Military pushed legal matters to one side before it lined 1916 rebels up against the wall

General John Maxwell ignored calls from the viceroy to spare the lives of those on the periphery of the Rising and instead pursued martial justice, allowing defendants little more than 10 minutes in their ‘trials’ to tell their side of the story, writes Sean Enright

When the First World War broke out, the British parliament passed the Defence of the Realm Act, which allowed the court martial of civilians in the event of “military emergency or invasion”.

The Easter Rising was the first big test of this legislation. With 450 dead and half of Dublin city centre in ruins, the circumstances were ripe for the rule of law to be compromised.

When General John Maxwell gave the order for the prisoners to be court-martialled, the rebellion had already been suppressed. The prisoners could have been tried by ordinary process of law and most would have struggled to find a defence to a charge of rebellion or riot.

It was Maxwell’s choice to order trial by court martial, no doubt because it was a reliable tribunal.

But Maxwell was dismayed to discover that a death sentence could only be passed by a court martial if it was proved that the prisoner had acted “with the intention of assisting the enemy”.

There was no proof of a German connection: A ship had been scuttled off the coast of Cork and 23 Kriegsmarine surrendered but kept their silence. In the ranks of the army there was much talk about “German gold” and “German snipers”, but nothing was found.

And although there was a fleeting reference in the Proclamation to “our gallant allies in Europe”, there was no firm proof about a German connection until Padraig Pearse wrote a letter home to his mother with a famous postscript about help from “the German fleet”.

Pearse was tried the next day on a charge of “rebellion with the intention and for the purpose of assisting the enemy”.

An intention to assist Germany?

At his trial, Pearse readily agreed that Germany had sent arms. There was of course, a proper, life-saving difference between an intention to assist the enemy and simply accepting help from Germany but Pearse was bent on securing a death sentence. He did not take the point. The next prisoners to be tried were Thomas MacDonagh and Thomas Clarke; they were resigned to execution and neither spoke at their trial.

Joe Plunkett hinted that the Irish Volunteers had been jockeyed into rebellion by a secret organisation but was otherwise silent. Willie Pearse pleaded guilty and uttered the word ‘guilty’ with such satisfaction that it may have cost him his life. Con Colbert simply said: “I have nothing to say.”

It might be thought that that the officers trying these cases mistook the silence or obduracy of prisoners for a realisation that they had no defence. But there were other men among the leaders and officers who desperately wanted to live. Éamonn Ceannt, Michael Mallin, Sean MacDiarmada, and Edward Daly all fought their cases. Each denied any intention to assist Germany.

Ceannt succinctly and correctly observed: “The Crown did not even tender evidence in this regard.”

In none of the trials was evidence called to prove any prisoner had acted with the intention of assisting Germany. But the absence of evidence on this point does not seem to have troubled the officers who tried these cases.

In the course of 17 days, 160 prisoners were tried by field general court ,artial. The prisoners were held at Richmond Barracks, where they were lined up to be called into a dingy little office on the corner of the square. The trials took place here: None of the prisoners were allowed legal representation and most trials lasted no more than 10 or 15 minutes.

The prisoners did not have access to the rules under which these trials were conducted. Had they done so, they might have asked for the few legal entitlements that the rules allowed; free access to defence witnesses was one, time to prepare a defence was another.

Seán Heuston said little at his trial, save to ask for time to prepare a defence: “I had no intimation of the nature of the charge against me until this morning.”

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The role of the Judge Advocate General

The law required the judge advocate general (JAG) to provide an independent review of every capital court martial: his decision had force of law.

By Easter 1916, the JAG, Thomas Milvain, was terminally ill. The only lawyer sent with Maxwell to Ireland was Second Lieutenant Alfred Bucknill, an admiralty barrister.

The surviving correspondence suggests Bucknill regarded himself as part of the prosecution team. He was certainly not an officer of the JAG’s office and did not provide the unwelcome scrutiny that came with that post.

The role of the viceroy

All prisoners were entitled to petition the viceroy to exercise the royal prerogative of mercy: By law, it was his decision. But in the days after the rebellion, Maxwell swept the civil administration to one side.

The viceroy, again and again, attempted to reassert the powers of his office. On the night of May 7, the viceroy dined with Maxwell and forcefully argued against more executions.

But later that night the firing squads were reconvened. The following morning the viceroy cleared his desk, resigned his post, and wrote a cold note to Maxwell.

“After our conversation last night, I was, I must admit, dismayed to learn that three comparatively unknown insurgents were executed this morning.”

The collapse of the rule of law is just one dimension to this complex event and, even now, more material is coming to light about the rank and file.

The trial of the rank and file

The defence advanced by many was “I thought we were out for manoeuvres” — and for many, this was true.

Some prisoners asserted “I was not armed” or, in the case of one of the non-commissioned officers captured at Jacob’s factory: “It has not been proved I was armed.”

A few simply said: “I was a first-aider.”

James Burke, of the South Dublin Union garrison, cut off his sergeant’s stripes while awaiting trial, but this was noticed.

Farce was never far away: John Reynolds, taken prisoner at the GPO, told the court his daughter was buying stamps when the rebels charged the building. He said he had gone in to get her but he was held prisoner all week. At the general surrender, Reynolds was not armed or in uniform and this evidential lacuna secured his acquittal.

Perhaps the most poignant trial was that of John MacBride who, for reasons of his own, courted the death penalty. When he surrendered, he handed over a note which showed he was an officer.

MacBride did not endear himself to Maxwell; the day before his trial, he gave evidence for another prisoner. In MacBride’s speech at his own trial, he made no apology and told the court he had done his duty.

He called his landlady to give evidence, although she had nothing useful to say. It is likely that he just wanted to see her one last time; there is contemporary evidence of a romantic attachment. When she entered, MacBride, a ruddy and portly fifty-something, stood up and found her a chair.

People will remember the trials for different reasons. Perhaps that process might generate a wider understanding of the rule of law and how it may unravel in times of crisis.

A greater commitment to that concept is something that will strengthen our democracy and the legal institutions that support it.

Seán Enright is author of After the Rising: Soldiers, Lawyers and Trials of the Irish Revolution (due from Merrion Press, May 2016), and Easter Rising 1916: The Trials (Merrion Press, 2013).

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