1916 (41 page)

Having gone down that road it is scarcely surprising that one of the first symptoms of the ‘revulsion of feeling’ of which Maxwell complained was his being described, on 17 May, by the bishop of Limerick, Dr O’Dwyer, as a ‘military dictator’ who had shot ‘the poor fellows who surrendered to you in Dublin … in cold blood [thereby] outraging the conscience of the country’.
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Against such a public indictment it was in vain for Maxwell to complain, as he did privately to the British government, that his powers had been exaggerated. He had been positively portrayed as a sort of archangel of vengeance with plenary powers over all, including the Irish executive, and neither he nor the government could resile from that image, especially after the executions.

N
ATURE OF MARTIAL LAW

The term ‘martial law’ connotes one of the most elusive concepts in law, firstly because it has changed dramatically over time and is probably still changing; secondly, because it is popularly used to connote procedures such as trial by military court which do not amount to martial law; thirdly, because the very fraught circumstances in which martial law arises anywhere in the world do not lend themselves to careful jurisprudential analysis. Accordingly, a full examination of the meaning of the term would involve an extended discourse in law that I do not think is called for here. Fortunately, it is also quite unnecessary since the topic has already been subject to magisterial scrutiny by former Chief Justice Ronan Keane.
⁵²
This article is a remarkable feat of both legal and historical erudition, which traces the concept of martial law from medieval origins up to the foundation of the state. The highlights of this eventful history are the 1628 ‘Petition of Right’ grudgingly conceded by Charles I, against the use of martial law in peace time; and the dramatic issue of a writ of habeas corpus by the lord chief justice of Ireland, Arthur Wolfe, Lord Kilwarden, in favour of Wolfe Tone in 1798. This was on the basis that martial law could not exist while the ordinary courts were open and functioning. When the military refused to act on the writ Kilwarden courageously ordered the military commander and the provost marshal to be taken into custody: further developments were arrested by the death of Tone. It is sad to reflect that Kilwarden was piked to death during Emmet’s rebellion in 1803.

What emerges most clearly from Chief Justice Keane’s long and detailed account is that the term ‘martial law’ is a great misnomer. What it actually describes is the absence of law, a state of affairs in which the law of the land is incapable of operating or being enforced so that the only form of authority left is the military power. The common law does not endorse this state of affairs, but it acknowledges it. The duke of Wellington is not usually cited as a legal authority but one may endorse what he said about
martial law at the very end of his life: ‘Martial law was neither more nor less than the will of the general who commands the army. In fact, martial law means no law at all.’
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In the more figurative language of Chief Justice Keane:

Martial law is the lawyer’s equivalent of the physicist’s anti-matter, a kind of juristic black hole, to shift the metaphor, into which are sucked all the cherished principles which normally guarantee life and liberty. It is only when all else has failed, including the law itself, that it becomes society’s last line of defence:
salus populi suprema lex
.
⁵⁴

Under martial law, then, military impositions of all kinds (including detentions and executions with or without ‘drum head’ courts martial, and the destruction of property) may occur. In law it is military necessity, and not a proclamation, which brings this condition about and it exists only where, as long as, and to the extent that, such necessity endures. This state of affairs is acknowledged by the common law, rather than approved by it. Periods of martial law are invariably followed by the passage of an Indemnity Act after it is completed: otherwise those who exercise the military power might well be liable to an action at law for things done under it. This procedure was always followed under English rule. It is a sobering reflection that it was also followed under a native government when an Act of Indemnity for the military forces was passed in 1923. In no other way could many of the military actions of 1922 and early 1923 be defended at law.

A period of so-called martial law, then, is a period when the army reigns supreme and ‘the will of the general’ is substituted for the law. It is the antithesis of the common law’s concept of the rule of law and objectionable to it. It must clearly be distinguished from a period (such as we have had both in the days of the old United Kingdom and after independence) where laws were enforced by military courts. This was the position under the Defence of the Realm Act in 1916 and later, in respect of certain offences, in Cosgrave’s and de Valera’s Ireland. But military courts do not make martial law: in 1916 the law they were acting under was that providing for the trial of offences against the Defence of the Realm regulations by military courts. There was thus a profound contradiction in the action of the British authorities, on the very same day, in proclaiming martial law and almost simultaneously suspending the grounds of section 1 of the Defence of the Realm Act, 1915, as regards Ireland. The first permitted the
trial of offences under the extraordinary wartime legislation to take place in military courts: this was in itself an enormous step. But the second was in effect an assertion that law itself had ceased to operate. This was unreal at the time it was first proclaimed by Lord Winborne, still more so when it was extended to the country as a whole by the government a week later, and it was utterly unrealistic when it was proclaimed permanently at the end of May 1916. To a lawyer’s eye, the second and still more surely the third proclamation of martial law appear wholly unlawful, and the first at least otiose.

M
ARTIAL LAW AND
DORA

The papers in UCD Archives, already referred to, throw an interesting light on the co-existence of martial law and the Defence of the Realms Acts. On 2 May, 1916, the day Pearse, Clarke and MacDonagh were tried, Maxwell wrote to Lord Kitchener the following fascinating letter:

I hope to get through with the courts martial. I have been advised to deal with them under DORA,
I rather wanted to do so under martial law
.
Today the presidents of the courts sitting today have begun
to raise legal difficulties
,
but I hope to get over these. I will have three courts sitting and ought to be through with this part in a week or ten days.
⁵⁵
[Emphasis added in both places]

Maxwell’s prediction was exactly correct: the last of the relevant courts martial in Dublin took place on 9 May and the last of the executions, those of Connolly and MacDermott, on 12 May. For our purposes, however, attention must focus on the emphasised parts: why was Maxwell persuaded, against his own wishes, to hold the courts martial under DORA and not under martial law? And what were the ‘legal difficulties’ which General Blackadder and his colleagues raised?

Some light is thrown on the first issue in a letter from Brigadier General Byrne to the Home Office, quoted in Professor Townshend’s recent book: ‘Sir John was very keen to try everybody “under military courts” held under martial law but I persuaded him against this.’
⁵⁶
Byrne gave this advice on the basis that the DORA regulations were adequate and ‘will not raise any difficulties afterwards’.
⁵⁷
It is possible to be reasonably sure of the sort of ‘difficulties’ he had in mind. Most senior soldiers would have been aware that the difficulty with martial law was that acts done under it were
regarded as beyond the reach of the ordinary law only during the time and in the place where the operation of the ordinary law had collapsed. There had been well-known cases both in England and in Ireland where acts done under cover of martial law in the colonies had been challenged in the ordinary courts on the grounds of an absence of proven military necessity. The leading such case was
R. v. Nelson and Brand
[1867]. One such case, however, had been tried in Ireland only a few years before 1916,
Rainsford v. Browne
.
⁵⁸
From these cases it was clear that a civil tribunal, whether exercising criminal or civil jurisdiction, could be very demanding in requiring proof that the ordinary law had in fact collapsed, leaving the military authorities with a free hand.

This, probably, is what Byrne meant by his reference to avoiding later difficulties. It is not possible, at this distance in time, to be definitive about the nature of the legal difficulties raised by the presidents of the courts martial. These men were soldiers and not lawyers: the most senior of them, General Blackadder, is described by W.E. Wylie as ‘a rather unimaginative major general’.
⁵⁹
It is unlikely that they would have devised a legal difficulty of any great sophistication. On the other hand, the work of presiding over mass courts martial of civilians was unusual work for soldiers, and Black-adder himself was observed by the countess of Fingal to be upset after the first court martial: improbably, he had been impressed by the character of the prisoners and in particular Pádraig Pearse.
⁶⁰
One may speculate, and that is all one can do, that their difficulties related to the holding of the trials in secret, which might have struck a soldier as unusual. If that is so, they received no comfort from Maxwell. Alternatively, the court presidents may have felt that such momentous cases should have merited a general court martial with a full court of thirteen members and a professional judge advocate to instruct them on the law. To judge by Wylie’s later account, the presidents of the courts martial before which he appeared gave him every latitude to bring out facts favourable to the defendants and on occasion asked him, privately, if he considered a particular prisoner to be a dupe. He seems always to have replied in the affirmative and the officers then recommended commutation of the sentence.
⁶¹

The notes or transcripts of the field general courts martial in relation to the fifteen persons executed have recently been published with extensive commentary by Brian Barton.
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From these it appears that the proceedings were perfunctory in the extreme. The evidence typically consisted of that of an officer who had been present at the time the prisoner surrendered or was captured, or sometimes of an officer who had himself been a prisoner
of the rebels. In all such cases the evidence was directed at establishing that the prisoner was not merely involved in the rebellion but exercised a position of some authority. In a number of cases, notably those of William Pearse and Michael O’Hanrahan, the evidence on the latter point was virtually non-existent.

Still more significantly, it will be remembered that the death penalty was available under DORR in respect of acts done with intent to assist the enemy. Only in the case of Pádraig Pearse was there express evidence of this, and that evidence came from his own speech. Another court martial president, Brigadier Maconchey, said that he simply refused to write down some things certain prisoners had said on the basis that it simply made their position worse: he may have been thinking of some reference to German allies. Maconchey also, incidentally, had asked to be relieved of the duty of presiding at courts martial on the basis that he was an Irishman, but Maxwell had refused to excuse him.
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D
ID IT MATTER?

After ninety years it is apt to raise the question as to whether the secrecy, the informality of proceedings and the absence of defence counsel made any real difference. Most certainly it made no difference in certain cases: Pearse supplied all the evidence that was needed both to convict him and to expose him to the death penalty. Others, like Clarke and MacDermott, remained absolutely silent and it is difficult to imagine that their attitude would have been different even if counsel had been available to them. But other prisoners such as Éamonn Ceannt and Michael Mallin made strenuous efforts to defend themselves. The former very cleverly cross-examined the officer who took his surrender into admitting that he was not really sure whether or not Ceannt had been armed. Mallin challenged whether he had in fact been in a commanding position and specifically challenged any intention to help Germany.
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There is surviving evidence that relations of some of the prisoners attempted to get legal assistance for them. The half-yearly general meeting of the Law Society of Ireland took place on Tuesday 16 May. At that event a number of solicitors led by Mr James Brady complained that they had been retained by relatives of various prisoners but were not permitted to see their putative clients. Mr Brady described how he went to the Richmond Barracks to interview the persons for whom he had been retained, and
‘got a point blank refusal of admission’.
⁶⁵
A solicitor of unionist leanings, Mr Seddall, said that the ordinary court martial rules did not apply since ‘under martial law the procedure was entirely different’.
⁶⁶
From this it can be seen that even some lawyers were confused as to the effect of DORA as opposed to martial law. The Law Society records indicate that this problem was resolved after dealings between the president of the society and Major General Sandbach – but that was too late for many.
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A
SUGGESTIVE COMPARISON

The fate of the men who were executed may be compared with that of Eoin MacNeill. The question of what to do with MacNeill troubled the authorities greatly since they knew that he was the founder and formerly the head of the Irish Volunteers but also knew that he had taken no part in the rebellion and had attempted to countermand the mobilisation orders on the basis that there was no realistic hope of success and that they lacked a mandate to embark on armed revolution.