After the Rising review: acts of a state whose fabric is threatened
Seán Enright looks at the well-meaning but inadequate judicial system put in place after 1916
Detail from picture of Roger Casement by Mick O’Dea. Photograph: Nick Bradshaw
After the Rising, Soldiers, Lawyers and Trials of the Irish Revolution
Modern Ireland is often short-handed into the Rising, War of Independence, truce, Treaty, and Civil War, followed by the setting up of the Free State. England’s need for Irish men to fight in the trenches was even greater after the Rising. Lloyd George was of necessity in a conciliatory mood. He released all convicted prisoners in early 1917. Conscription was announced but with the offer of Home Rule as a trade off.
But the dynamic had irredeemably changed. In March, 20,000 people lined up outside Mountjoy to sing psalms and pray for six young men hanged in pairs. Insurgents were openly attacking police barracks (ultimately 277 were burned down), senior officers assassinated. Four Resident Magistrates were shot dead and 47 courthouses burned down. Four arsonists burnt to death after a draft closed the doors, trapping them.
Juries were reluctant to convict in cases with a political hue. The courts were at first supplemented, and then virtually replaced, by courts martial for certain offences. Such courts initially tried sedition, unlawful drilling and firearms offences but this jurisdiction was much enlarged. Army officers tried treason and murder as well as a farmer breaching a curfew, or theft of geese.
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Martial law was declared in Munster after 16 auxiliaries were killed in an ambush, and later extended to south Leinster – a state that the author (a barrister and sitting English County Court Judge ) gently reminds us is no law at all. Internment, curfew and censorship were all mechanisms to crush dissent.
Modern history writing
Some of the trials – 18 in all – are recounted. Eoin MacNeill, who famously countermanded the Order for the Rebellion, was one of the first convicted. He was sentenced to life imprisonment but benefitted from Lloyd George’s amnesty the following year. Sir Roger Casement, having travelled by U-Boat, was arrested in sand dunes on Banna Strand with a train ticket from Berlin to the naval port of Wilhelmshaven in his pocket. Also included are Countess Markievicz, three cases involving British military, two priests, and an assortment of rebels on diverse charges of sedition and rescuing a captured prisoner to murder.
Some of the accounts are cursory. However, this is not sketch reprised in a Penny Dreadful format. This is history written in the modern way: economic, pithy and enlivened with anecdote. Brevity is achieved by the distillation of research (there are almost 60 pages of footnotes).
Army officers acting as judges, even those who were well intentioned, are strangers to a courtroom and the quality of justice predictably fell short. Some miscarriages occurred in identification cases and people were condemned to death on the verdict.
The author is inclined to minimise these cases on the basis that similar infirmities applied to jury trials, and extend something of a fool’s pardon in much the same way that the medical profession is not overly criticised for treatments that today are seen as quack medicine. Such “quacks” were at least, mostly, trained doctors.
The British authorities were also annoyed when the accused called alibi evidence, which they considered to be perjured. The author appears to endorse this complaint which is not reassuring given that he highlights cases in whichpeople with genuine alibis were sentenced to death.
The conduct of an individual court martial is, on occasion, roundly criticised but the participants are generally portrayed as decent men doing a difficult job in adverse circumstances.
Markievicz ‘drama queen’
The excesses of the Black and Tans and Auxiliaries are sometimes extenuated and the characters of the offenders tempered by references to their good war records. The author may have regarded Countess Markievicz as a “drama queen”, but it is a measure of his even-handedness that he debunks certain material confirmatory of this on the basis that he does not consider it reliable. Nonetheless, some aspects are written from an avowedly British perspective. I mention this as an alert, not as a criticism.
The separation of power lies at the heart of the modern State. The roles are complementary. The judiciary, in particular, must be vigilant in maintaining a delicate balance. Nowhere is this more apparent than when the legitimacy of the State is challenged by violence.
The first Dáil set up its own courts as a stamp of authenticity. Judges moved around incognito as commercial travellers. The Bar Council issued a direction, forbidding barristers to appear before these courts but many did not abide by it. The courts sat in secret, but were often broken up at gunpoint. One judge whose sitting was interrupted was himself arrested and convicted before a court martial and sentenced to two years in jail.
The new Irish Free State government copied the system of court martial with gusto. It executed 81 people during the Civil War, more than three times the number executed by the British during the War of Independence.
More recently the British government introduced internment and curtailed the right to trial by jury in Diplock courts during the “Troubles”. It withdrew political status in 1976 and sought to treat paramilitaries as ordinary criminals, an action that led to the blanket protests, hunger strikes and ultimately the politicisation of the republican cause in a form that had mass appeal.
The Offences Against the State Act 1939 established the Special Criminal Court. The Government immediately promulgated a state of emergency (a necessary pre-requisite to the court coming into being), which exists to this day. The act permits army officers to sit as judges. In the 1940s military tribunals sentenced six people to death. Two had shot (but not killed) a member of An Garda Siochana.
A chief superintendent is permitted to give evidence of his belief that a person is a member of the IRA. Invariably the basis for the opinion is not disclosed and his evidence cannot be meaningfully challenged.
This is a book that will linger in your thoughts, a compelling compendium of how a state reacts when it perceives that its fabric is threatened.
Michael O’Higgins is a barrister and a writer