Читать книгу The Irish Civil War - Seán Enright - Страница 12

CHAPTER 3

The Origins of the

Execution Policy

The pro-Treaty side believed the war would be wound up in a few weeks and at first all went well. Anti-Treaty forces were driven out of most towns and villages with seaborne landings being a prelude to decisive offensives in Cork and Kerry. Large numbers of prisoners were taken and there were many arms seizures. Michael Collins privately intimated that modest punishments might be handed out for possession of arms and his Chief of Staff Mulcahy agreed.

But as the weeks wore on, the anti-Treaty campaign began to develop into guerrilla warfare. For the National Army, there were no bases to attack and no set piece battles to be fought against an elusive enemy. In the weeks before his death, Collins’ attitude began to shift. He went down to west Cork for a requiem mass for National Army soldiers killed in action and that night he wrote to his fiancé about the mothers and widows ‘weeping and almost shrieking’.1 The people were ‘splendid’ wrote Collins, but the country was also beset by the looters and carpet baggers that ride on the coat tails of every revolution. A few days later, he wrote a memo to his director of intelligence that ‘any man caught looting or destroying should be shot on sight’.2 He still could not countenance summary executions of captured anti-Treaty fighters.

The hard fighting in Cork and Kerry was driving Collins onwards. Only two weeks before his death, Collins wrote to the provisional government in Dublin suggesting ‘special punishments’ for those found in arms in areas designated special military areas.3 He did not stipulate the nature of the punishment, but no one was in any doubt what was implied. It was a poisoned chalice and it was batted back and forth in meetings and memos. In response to a note from Cosgrave, Collins wrote: ‘I am against shooting down unarmed men.’4 Such a decision, he told Cosgrave, was for the government not the army. In the emerging six county state in the North, possession of arms by anti-Treaty fighters was already being dealt with by lashes with the cat and a long term in prison.5 South of the border, policy was developing more slowly but into a much more draconian response.

A pivotal event took place in late July. Just outside Abbeyleix on a bend in the road a National Army convoy was ambushed. Reinforcements soon arrived led by National Army Commandant Jack Collison and Divisional Commandant McCurtain: both officers died in a single volley. Very quickly their attackers threw up their hands and all twenty-eight were taken into custody.

The next day at the old courthouse at Maryborough, the inquest jury heard evidence that the officers had been killed by expanding bullets. ‘Wilful murder’ was the verdict of the jury who added a rider, condemning the use of expanding bullets.6 The funerals followed soon after and at the graveside Executive Council member Joe McGrath praised the survivors for the ‘extraordinary forbearance they had shown after their much loved officers had been shot down’. In terms of how the conflict was fought, that quality of forbearance would soon dissipate and in the months that followed there were many well-grounded complaints of ill treatment of prisoners.

For the provisional government, the ambush resonated of all that was wrong. Collison and McCurtain had fine records in the recent war and both were now dead, but the prisoners had gone off for internment without trial. They were mostly young – too young to have fought in the recent war but raised in an era when fighting for country was everything and there were many more like them still out there. Ernest Blythe seized the moment and suggested the surrender should not have been accepted. It was the first time the argument had been made in public and no one dissented.

August became the month of ambushes. The anti-Treaty fighters were still well organised and not at all short of ammunition and the National Army suffered fifty-eight killed and many more wounded. A significant number of casualties were high-ranking National Army officers. Among these was Colonel Frank Thornton who led a convoy out into Tipperary to make contact with the enemy with a view to negotiating a peace. Thornton’s convoy was ambushed and only he survived, gravely wounded. His brother, Colonel Hugh Thornton, died at Clonakilty and Michael Collins was killed at Béal na mBláth and the attackers once again disappeared into the hinterland.

After the death of Collins, General Richard Mulcahy became commander in chief and was immediately under pressure from his generals to permit the execution of captured anti-Treaty fighters. In Cork, Major General Dalton was sustaining heavy casualties and wrote to Mulcahy at GHQ asking for permission ‘to shoot without trial men caught in possession of arms’.7 The request was echoed by General O’Duffy in Limerick. Permission was refused, but events were boiling over and the first execution by firing squad soon went ahead. National Army Private ‘Barney’ Winsley was a chimney sweep from Cork. After a spell in the British Army, he came back to Cork and ended up in the National Army: semi-literate, still living on his wits and the only breadwinner for his widowed mother. Like other National Army men in Cork, he was selling guns to the anti-Treaty forces and he was singled out for court martial. Major General Emmet Dalton had him shot by firing squad and that put an end to selling guns to the anti-Treaty faction, in Cork at least. Commander in Chief General Mulcahy was informed and replied: ‘I approve’. All the while, however, there was the continuing guerrilla action and a tide of gunpoint robberies. On the Executive Council all ministers had now come round to the view that executions were necessary, but the final straw was unexpected and mundane: the economy.

The Economic Crisis

The strategy of the anti-Treaty faction had begun to morph into making the country ungovernable and seizing a republic from the wreckage. That policy was pursued by guerrilla action and also by degrading the transport and communications infrastructure: roads were trenched, bridges and railway lines torn up and engines destroyed. Telephone wires were cut and as soon as they were fixed cut again. The big houses were burned out and the old ascendancy was forced out of the country by degrees and their money went with them.8 The provisional government had been warned months before by Churchill, the minister in England with responsibility for implementing the Treaty: ‘Capital is taking flight.’9

People were taking flight also: the protestant exodus in 1920–2 had damaged the country financially and young people were still leaving Ireland as they always did when times were hard.10 Economic migration was damaging the new state. The turning point in this growing crisis came in September when the institutions of the state began to pull in the same direction. In a habeas corpus motion brought by one of the thousands of anti-Treaty prisoners the High Court upheld internment during the emergency.11 From the pulpits, the bishops put out a strong message that had the approval of the government: ‘stay and live in the land of your birth and work for the good of the country’.12 Cosgrave’s big cabinet shuffle and his address to the Dáil promised decisive action: ‘life and property must be respected and the laws of the country must be obeyed.’

Cosgrave had financial experience as a minister for local government in the recent war and balancing the books quickly became the central plank of government policy. In his budget statement he told the deputies that revenue from taxes stood at £27 million but projected expenditure was £40 million. He attempted to calm speculation by adding that there was ‘no immediate cause for concern’. Cosgrave was rather understating the position; he was one of a number of cabinet ministers not drawing pay. In Ireland, agriculture was the main source of revenue, but the country lacked any significant mineral resources and industry, fishing, forestry and tourism were all at an embryonic stage of development. There was also a growing urban population to sustain.

Unlike established states elsewhere, this new Ireland had no gold reserves, assets or bonds to fall back on in bad times. The provisional government was operating on a loan from Westminster that was fast running out because of the cost of fighting the war. In that year, the army bill exceeded seven million pounds: one quarter of government revenue. That figure would continue to rise sharply the following year.13 The army and public-sector wage bill had to be paid or the new state would simply unravel. Everything depended on people paying taxes and doing so promptly. The anti-Treaty faction was alive to this weakness and would soon begin to try and drive the government into bankruptcy.

It was at this stage that the two prongs of government policy emerged. First, to rid the country of arms and second, to build the confidence of the business community. The financial cost of anti-Treaty action continued to grow: theft, damage and arson were becoming a heavy burden.14 Cosgrave recognised that these claims had to be paid by his government or the business community might take their investment capital elsewhere. To meet this, the provisional government let it be known that compensation would be paid for damage occasioned by anti-Treaty action and an official announcement to this effect soon followed.15

The concept of a failed state is a modern one and remained unarticulated at that time, but this was the fear driving events: that the state would become bankrupt, ungovernable and would be plunged into chaos and that Britain might once again send in the troops. It was then, and in these circumstances, that the provisional government drew up plans to allow the army to use military courts to try prisoners captured in arms and carry out executions. These proposals were set out in the Army (Special Powers) Resolution in late September 1922.

The Army (Special Powers) Resolution

The Army (Special Powers) Resolution has been variously described as the Emergency Powers Act,16 ‘legislation’,17 ‘legally dubious’,18 or as the Public Safety Bill.19 It was none of these things. It had no legal standing and was simply a resolution passed by the Dáil. When the provisional government decided to take this drastic step a fundamental question arose: was there power to legislate before the Free State was brought into being in December? In the Dáil there was some muddled discussion on the legal position and eventually the Attorney General Hugh Kennedy advised the provisional government that the Anglo-Irish Treaty provided a legal power to legislate.

A further difficulty quickly emerged. The problem was that legislation required the consent of the King which would in practice be given by the governor general. However, the provisional government was not yet able to create the new state, not least because the Irish Constitution was still a work in progress and a governor general had not yet been appointed. Hugh Kennedy wrote a supplemental opinion the same day and advised that, pending the creation of the Free State, legislation would require the personal consent of the King.20 Kennedy anticipated the British government would object to legislation passed without royal assent and added ‘this question may give rise to much difficulty’.

The provisional government saw the difficulty of legislating very differently. To seek the personal consent of an English king to execute anti-Treaty prisoners was not a step they were comfortable with and it would have played into the hands of the other side. It might also have been a step too far for many pro-Treaty deputies.21 On 25 September, the cabinet met to discuss the draft proclamation creating military courts. As was so often the case, the minutes do not disclose what was said, but the law officers were asked to attend and the subject matter of the discussion may be inferred. The result of the discussions was soon made known: ‘We will not ask for royal assent.’ It was made to sound like a grand statement of principle, but the reality was the government chose not to legislate to create military courts because of political embarrassment. Instead, it was decided that the Dáil would simply pass a resolution asking that the National Army take steps to bring the emergency to an end.

Supporters of the provisional government were able to argue that it had simply taken a leaf out of British colonial jurisprudence where, in times gone by, rebellion might be overcome by bringing in the army. At this juncture in Ireland, the argument ran, the institutions of the state were not able to curb widespread and serious disorder and there was no choice but to call in the army. The weakness of this argument was that the provisional government had the opportunity of passing legislation but chose not to do so. Going ahead on the basis of resolution alone would expose the government and its supporters to the risk of prosecution after the war, but a pragmatic solution soon emerged: an act of indemnity would be passed after the crisis. Such a statute would not render lawful that which was unlawful, but it would provide a bar against any prosecution or litigation arising out of the war. The Army (Special Powers) Resolution invited the National Army to set up military courts and committees to try offenders for attacking the National Army, possession of arms or explosives, arson and destruction of property and looting.

The pro-Treaty deputies had been briefed in private before the debate and some were not enthusiastic, but the provisional government’s task was made easier because half of all the elected deputies were not present at this crucial debate. Three anti-Treaty deputies were already dead: Boland and Brugha and Seamus Devins had been killed on Benbulben. An order had been issued for the arrest of anti-Treaty deputies who had taken up arms and two of them were now in custody.22 One more had been expelled for suggesting the assembly was an illegal body that had usurped the authority of the Dáil.23 This line of thinking had led de Valera to pursue an abstentionist policy and in any event the rest of the anti-Treaty deputies were out leading the fighting against the provisional government. By this series of events the provisional government had found itself with a complete grip on the levers of power.

The brunt of the argument in the Dáil was carried by Mulcahy who was now commander in chief and minister of defence. Mulcahy told the Dáil that the destruction of bridges, roads and the rail network in the south and west was choking the life out of the country. There was no machinery of justice to deal with the Irregulars and while the government established itself, the army needed to ‘stand in the gap’. Internment of prisoners was not a sufficient deterrent: ‘Life must be taken, if necessary and it is the responsibility of the government to say that it must be taken.’

Mulcahy also raised a fresh argument: that his soldiers out in the field were constantly exposed to ambush and did not regard internment of prisoners as a sufficient response to inflicting casualties on the army. He cited two examples: one near Ballina where a Free State officer had struggled to prevent his men shooting prisoners who had laughed at the sight of a dead National Army soldier; the second, the Macroom landmine explosion that had claimed the lives of seven soldiers. The Dublin Guard had responded by killing a prisoner. The argument advanced by Mulcahy can be simply stated: our troops must know that we will execute where necessary or they will do so themselves.

Opposition to the measure was led by Tom Johnson, leader of the Labour Party, who favoured open justice carried out by criminal courts, although it was probably unrealistic to suggest that juries would convict in such cases. Gavan Duffy also opposed the measure. He had defended military court trials under British rule and there had been many executions and he perhaps foresaw where all this might end up. He may also have had an eye on the wider picture. Europe was riven with small civil wars and the many atrocities that had been committed had caused the Red Cross to stipulate that captured fighters should be accorded prisoner-of-war status.24 There was no support for these alternatives, but some amendments on matters of detail were made and after an acrimonious debate and an overnight adjournment, the Resolution was passed by 47 votes to 15. The judge advocate general had been finishing the regulations governing the trial by court martial of National Army soldiers. Even before the vote in the Dáil, he was asked to produce regulations to govern the summary trial of prisoners as a matter of urgency.25

The government signed off the military courts proclamation in early October and at the same meeting despatched a formal request to the bishops to intervene to halt ‘the low moral standard prevailing throughout the country’.26 There can be no doubt that the support of the Catholic Church had been canvassed in advance. The pressure on the government was mounting in other ways that may not have been obvious. Cosgrave’s uncle was shot dead in a raid on his grocery shop: just one of a wave of revolver point robberies blighting the country. An attempt was made to storm General Mulcahy’s home in Rathmines: a grenade was thrown and a shoot-out followed before the raiding party was driven off, but the press rather unhelpfully published Mulcahy’s address. The war was getting closer to home.

Preparations for military courts and firing squads were finalised and the National Army published a proclamation announcing the setting up of military courts with power to inflict the death penalty for ‘proclaimed offences’ committed on or after 15 October.27 A second proclamation offered an amnesty to all those who surrendered arms and gave up the fight by the cut-off date. These proclamations went up on walls and fence posts all over the country. The support sought from the church now materialised: the Bishops’ Pastoral Letter was read out in every Catholic church in the country. The bishops framed their approach on the footing that the provisional government had won the elections decisively and called on their congregation to back that decision. They condemned those who fought against the government as ‘guilty of grievous sins, which may not be absolved in confession if they persist’ and denounced the killing of national soldiers as ‘murder before God’.28

Regulations for trial were signed off by the judge advocate general. Three army officers would be assembled to carry out summary trials of prisoners for attacking national forces, looting or possession of arms and other specified offences.29 The criminal courts would continue to sit, but in respect of ‘proclaimed offences’, would give up their jurisdiction to military courts.30 Prisoners’ rights were few. No prisoner could be tried within forty-eight hours of capture. The prisoner was entitled to see a charge sheet and summary of evidence no later than twenty-four hours before trial. The regulations stated prisoners could have the services of a lawyer but were silent on the issue of who paid. The core of the legal team headed by Cahir Davitt began to live in at army HQ at Portobello barracks in Dublin and there was a last-minute rush to recruit lawyers to ensure that every army command had a legal officer to oversee the trials.