Conniving in the courthouse

POLITICAL HISTORY: MICHAEL McDOWELLreviews Conspiracy: Irish Political TrialsBy Myles Dungan Royal Irish Academy, 357pp. €20

Myles Dungan, whose broadcast voice we are well used to hearing, is also a historian. His latest work, Conspiracy: Irish Political Trials, is a splendid book. Pleasantly opinionated, well-crafted, well-paced and absorbing, Conspiracylooks at the English struggle to subdue Irish separatism through the fusion of what he terms "political trials" during the "long century" of Unionism, from 1801 to 1916.

The core of the subject matter is the use and abuse of the legal process – from jury trials to commissions to courts martial – to subjugate the stirrings of resistance to the Union and the British presence in Ireland. The capacity of the British administration in Ireland to abuse and pervert justice in defence of the Union is legendary – but deserves to be revisited. From jury packing to suborning perjury, from intimidation of witnesses to bribery (even of defence counsel in the infamous case of Leonard MacNally, whose “Judas kiss” on the brow of Emmet as he was led away for execution was amply rewarded by the Castle), nearly every imaginable provision and perversion of the rule of law was deployed in one way or another to defend the Union.

But Dungan is not about the business of raking over well canvassed injustices of the Union era. His underlying theme is the ever-present potential for the “establishment” to deploy its legal system against its opponents and to hide behind the blindfold of justice while secretly weighting her scales to its ends.

A joy for the reader is Dungan’s writing style. It is lucid and terse but also sufficiently “pacey” to move the reader on with grace. While many will know some of the matter dealt with, only a handful will be familiar with all of the subject matter.

Revisionists might not be enamoured with the editorial choice of conspiracy trials which Dungan has chosen for his work. Every constitutional order defends itself by its laws – our present Constitution included. Every establishment, when faced with radical challenges, “gets going”. And, especially in the eyes of would be revolutionaries and radicals, many establishments “get dirty” in the defence of the constitutional status quo.

Viewed from the contemporary Unionist perspective, the injustices studied by Dungan were all capable of being either defended or overlooked on the basis that Irish separatism was, in their eyes, a retrograde, sectarian and potentially barbarous licence for mob rule.

But there is another theme in Dungan’s work – the counter-productive nature of the establishment’s efforts to pervert the course of justice. Use of the legal system to repress Irish nationalism and separatism was bound to erode general acceptance of the rule of law and bound to undermine the cause of constitutional agitation for nationalist and separatist goals.

Dungan fairly and effectively bridges the “gap of imagination” between what was considered fair, normal or conventional in the 19th century and the political and legal preconceptions of a 21st-century reader.

There is simply no point in attempting to evaluate the behaviour of political and legal actors in the early days of the Union by reference to modern values. Nor should republicans like myself forget the sheer horror which republican ideology created in the minds of huge swathes of the political and social establishment.

The French Terror was to the British establishment what Pol Pot is to contemporary liberals – unthinkable, unspeakable and indefensible. While many, including myself, will approbate the courage, eloquence and strength of Emmet in the dock, of O’Connell in defence of John Magee, and of Pearse and Casement in defence of their actions – the fact remains that these great speeches produced an entirely different reaction in the minds of the British establishment.

READERS WILL enjoy hugely the unmasking of Pigott as a forger in the pay of the British establishment and their efforts to use his forgeries to bring down Parnell. Many of the trials described by Dungan will increase the appetite of readers to explore related issues further. For instance, Roger Casement (about whose homosexuality there can be little doubt and which, in any event, seems of minor significance) wrote interesting pieces in the run up to the Great War from a strongly pro-German point of view. These writings have received little attention in recent years.

Likewise, the Maam Trasna murders have been well documented and reward the inquisitive reader. One character who appears in the John Magee chapter, Mr Justice Day, kept fascinating diaries of his days as a member of the Irish judiciary in the post-Union era which have recently been republished.

I was struck by Dungan’s interesting juxtaposition (in his “Afterword”) of the provisions of the Criminal Justice (Amendment) Act 2009, denying jury trial to gang members and the findings of the Morris Tribunal in relation to certain Donegal gardaí with the repression of the “19th-century ribbon men”.

Whether the precise means of denying jury trials for certain gangland offences under the 2009 Act is constitutional (and I have my doubts) or whether a meaningful parallel can be drawn between drug-gang members and the agrarian sedition of the ribbon men is debatable.

But Dungan’s pointed warning to the present generation about the capacity of the establishment to engage in counterproductive repression through the use of the legal system does call for reflection.

Anyone with an active appetite for history, politics and law will regard Conspiracyas a richly rewarding read.

Michael McDowell is a senior counsel, former tánaiste and Attorney General, and is adjunct Professor of Law at UCD