The Reluctant Taoiseach

by David McCullagh

  The Bar Council found it easier to reach agreement when it was acting as a trade association—agreeing a new scale of minimum fees early in 1920.67 It also complained to the Attorney General at the use of English barristers as prosecutors at courts martial at the end of the year, at a time when “there is no lack of Irish counsel who are willing to undertake this work …”68—a comment Austin Stack might have taken as confirmation of his view of the Bar.

  As well as setting up their own courts, Republicans were intent on ensuring that the established legal system didn’t work. This they did through a mixture of intimidation of witnesses and jurors and the destruction of the physical infrastructure of the courts. In July 1920, only nine grand jurors and nine common jurors, out of a list of 78, answered the call at Waterford City Assizes, a situation the presiding judge described as “without parallel in the history of Ireland, England or Scotland”, and which he blamed on “threatening notices in Dublin newspapers”.69 The judges attending the summer Assizes in Limerick had to be accommodated in the county courthouse, guarded by soldiers and police.70 Westmeath County Council ordered the closure of all courthouses in the county and the eviction of Government officials from them, and refused to pay the salary of the Under Sheriff “on the grounds that that official was engaged in carrying out decrees and legal processes of courts not recognised by Dáil Éireann”.71 When the local Resident Magistrate and his clerk arrived at Newbridge Town Hall, venue for petty sessions courts for forty years, they found the doors locked on the orders of the Town Commissioners.72

  Not surprisingly, given this level of hostility, 315 magistrates resigned between May and August 1920.73 The pathetic state to which British law in Ireland had been reduced was illustrated at Borrisokane, Co. Tipperary, in the latter month. “The local courthouses having been recently destroyed by fire, the … monthly petty sessions was held in the ruins of the burned building. Major Dease, R.M., who was the only magistrate that attended, occupied a seat inside the entrance gate, and the rain, which fell at intervals, made it very unpleasant for those present.”74

  By far the most prominent case with which Jack Costello was involved in the initial stages of the War of Independence was that of Father Thomas O’Donnell, a Tasmanian chaplain in the British army during the First World War, who was charged with making seditious remarks about the King during a visit to Killarney in October 1919. He was arrested and taken to the Tower of London, and faced a court martial in London’s Guildhall.75 The two senior barristers in the case were Paddy Lynch and the legendary Tim Healy,76 previously a leading, if disruptive, figure in the Irish Parliamentary Party, and later first Governor General of the Irish Free State. As the junior counsel, Costello doesn’t appear to have spoken at the court martial, which found the priest not guilty.77

  More typical was Costello’s continuing work in Clare. In March 1920, for instance, he was again junior to Paddy Lynch when they represented Clare County Council in a compensation case brought against it by the brother of an RIC sergeant killed in the War of Independence. The Council was liable for compensation under the Criminal Injuries (Ireland) Act, 1919, but successfully argued that the claimant had no prospect of benefit from the continuance of his brother’s life.78 The council at this time was controlled by Sinn Féin; the chairman was a local IRA commander, and almost all its members were on the run.79

  Early in 1918, Clare had been declared a special military area after Volunteer activity. Permission was needed to enter and leave the county, mail was censored, and a curfew was imposed in some areas.80 The legal profession was affected by these developments. With train services interrupted, barristers on the Munster Circuit were not guaranteed that their luggage would arrive, and so had to obtain “permission to appear in court without wig and gown”.81 A more serious problem was the partial or complete destruction of the courthouses of Ennistymon, Killaloe, Kilrush and Tulla, which meant the Quarter Sessions for those towns had to be held in Ennis.82

  In these disturbed conditions, the local judge, Matthias Bodkin, lived up to his nationalist credentials by criticising the activities of the Black and Tans. As Costello later recalled, Bodkin “displayed great judicial courage when … he read in open Court on the 5 February 1921 a report on the reprisals of the Black and Tans in Clare. He sent a second report to the British Authorities which was described by the late Lord Asquith in the House of Commons as ‘one of the gravest indictments ever presented by a Judicial officer against the Executive Government in a free country’ …”83 According to Maurice Healy, Bodkin “refused to be silenced, and at the imminent risk of his life continued to denounce the infamies that were being perpetrated by these notorious servants of the Crown. It was in a large part due to his efforts that blackguardism was at last checked; and many a Clare household can thank Judge Bodkin for having been spared from arson and loot.”84 He was later “blackbeaned” from membership of the RDS for his troubles.85

  The legal aspects of the War of Independence were a constant problem for the British. While the legal system had largely broken down at a local level, the higher courts were still functioning—and were frequently prepared to hear appeals against decisions of the military courts. Dublin Castle officials had little regard for the legal establishment, one of them, Mark Sturgis, dismissing the Lord Chancellor, Sir James Campbell, as “a poltroon of the most contemptible dye—does nothing and apparently thinks of nothing but the best way to show SF that he is neutral and passive. A coward and a shirker, and by God a thief too since he continues to draw his salary.”86 In order to minimise the chance of trouble with the civil courts over Habeas Corpus applications, the Judge Advocate General advised the military to carry out death sentences as soon as possible after they were handed down. As Sturgis mordantly put it, “Macready [the Army commander] must wait for the Act of Indemnity to be cleared of a murder charge.”87

  In order to protect military courts from judicial interference, the British had to demonstrate that a state of active hostility existed in the area concerned—which rather upset their repeated claim that there wasn’t a war going on.88 The law appeared to have been settled in the case of John Allen in February 1921. He had been arrested for possession of arms in January and sentenced to death. On 24 February, the King’s Bench Division rejected an appeal for Habeas Corpus because a state of war existed, during which the Government was bound to repel force with force. It also ruled that military courts could act even though the ordinary courts were sitting, and that civil courts had no authority to control the military authorities during the period of war.89 Allen was executed four days later.90 Despite this ruling, further appeals were made, to the evident frustration of the authorities. Mark Sturgis wrote, “I can’t understand why one High Court case doesn’t settle this but it seems it doesn’t.”91 In total, out of 37 death sentences in 23 cases, there were five appeals to the courts, all of which followed the Allen ruling, until the cases of Egan and Higgins,92 in which John A. Costello was centrally involved.

  John Joseph Egan, a motor engineer with Clare County Council, had been arrested on 26 May 1921. Some soldiers claimed they had seen him throw a parcel over a wall, at a place where they subsequently found a quantity of ammunition. He appeared before a military court on 11 June represented by Clare-based barrister Paddy Lynch. Egan was found guilty and sentenced to death.93 Costello first became aware of the case when the condemned man’s solicitor, Jack Lynch, “came up to Dublin and asked me if anything could be done as this man was to be shot the next morning”. Costello arranged for Hugh Kennedy to come in as Senior, and together they decided to make their application for Habeas Corpus before the Master of the Rolls, Charles O’Connor.94

  They chose their judge well. By his own admission, O’Connor’s “practice at the Bar and … life as a Judge of the Chancery Division have left me unqualified for criminal cases”. But he recognised the right of anyone under arrest “to apply to any Judge of the High Court for the writ of Habeas Corpus, and if the writ is refused to proceed from J
udge to Judge … it is the duty of each Judge to form his independent opinion and to act upon it”.95 He had also been involved in unsuccessful attempts to broker a peace deal, accompanying leading Sinn Féiner Fr Michael O’Flanagan to Downing Street in early January to meet Lloyd George.96

  The application was made on 14 June 1921.97 As Costello recalled, “There was always the tradition at the Bar that an application for Habeas Corpus took precedence over all other business and when Hugh Kennedy and I went in to make this application and told him what it was about he immediately stopped the case which was at hearing before him, heard the application, granted the conditional order, [and] fixed a particular date for the hearing of the application.”98

  Costello’s account of subsequent developments left out two important points. The first was the involvement of Lynch, who was to conduct practically all the legal argument in the main hearing of the case. Lynch was to have an interesting political career. A moderate nationalist, he represented the Parliamentary Party in the by-election arising from the death on the Western Front of Willie Redmond. His opponent, of course, was Eamon de Valera, and Lynch was defeated. However, he was later to serve as de Valera’s Attorney General, a mark of the respect in which his by-election opponent held him. His courtroom style was described by Maurice Healy: “He loved to lull his audience into comfort with a succession of softly-spoken sentences, and then suddenly to thunder out some impassioned phrase in tones that caused everyone in court to jump. To hear Paddy lead a witness along the flowery path until every suspicion had been allayed, and then shout a fierce and fatal question, with a vicious ‘Answer me that!!!’ was an experience of the dramatic not to be equalled in any theatre.”99

  The second important point was that the legal team represented a second condemned man, Patrick Higgins, whose case ran in tandem with Egan’s, but who is left out of nearly all accounts. Higgins had been arrested following an engagement at Clonmult, Co. Cork, on 20 February 1921. An informer had alerted the British forces to a house full of IRA men, which was duly surrounded. A gun battle erupted during which 12 IRA men were killed, four wounded, and four others captured.100

  According to his statement, Higgins had until 1918 been a member of the Volunteers, “which at that time was more or less a hobby with young fellows and consisted of no more than marching”. Hobby or not, it had resulted in a recurrence of an old illness—improper treatment of appendicitis some years before left him with an incision which did not heal permanently—and at the request of his mother he resigned. However, his name had come to the attention of the authorities, and he claimed he became a target for harassment and threats from the military. At the suggestion of a friend he went to the house at Clonmult, which he “knew … was a hiding place … He was hardly there ten minutes when the military arrived, surrounded the house and started firing …” After he surrendered, Higgins said he was shot in the mouth by a stray bullet, but his statement insisted he “had no gun and there is no evidence connecting him with one”.101

  This was pure invention. In fact, Higgins was a captain in the IRA and Battalion Quartermaster, and had a central role in the Battle of Clonmult.102 Although he was the most senior officer left in the house after the flying column’s commander and deputy commander went on a reconnaissance, he was not left in charge because one of his superiors felt he “didn’t show any great aptitude for the work” during an earlier engagement.103 The historian of Clonmult, Tom O’Neill, believes Higgins’ resentment at this slight impaired the flying column’s effectiveness in the battle.104 And far from being hit by a stray bullet, he was shot in the mouth after surrendering by Auxiliaries who executed six of the other IRA men and were only stopped from killing the rest by the arrival of an officer in the regular British Army.105

  Higgins was detained in Victoria Barracks in Cork, but due to his injuries and a recurrence of appendicitis, his trial was delayed until June. A military court then sentenced him to death—two of the other prisoners captured at Clonmult had already been executed, on 28 April, after their own application for Habeas Corpus had been rejected. As Macready’s affidavit in the Higgins case pointed out, he “was arrested at the same time and place and by the same persons and in the same circumstances [as the executed men] … there is no distinction in law or in fact between the cases …”.106

  O’Connor granted conditional orders of Habeas Corpus for both men.107 In preparation for the main hearing of the case, their legal team gathered affidavits claiming that there was no state of war in either Cork or Clare, that the civil courts were still operating, and therefore there was no justification for resorting to military courts.108 In response, affidavits on behalf of Macready detailed the activities of the IRA, the deaths of policemen and soldiers, and the difficulties of running the law courts.109 By the time he came to deliver his judgment on 26 July, O’Connor’s ruling was probably academic, as the truce had come into operation on 11 July. But it was a rather ingenious judgment all the same. He accepted that under the Prerogative of the Crown, the civil courts had no right to interfere with the military during a state of war—but then went on to argue that the Royal Prerogative had been limited by the Restoration of Order in Ireland Act of 1920. This Act gave the military special powers, but also imposed conditions, including the requirement that in a trial for an offence punishable by death, the court martial must include one member nominated by the Lord Lieutenant and certified to be a person of legal knowledge and experience. He rejected the proposition put forward by the military that there could be no limitation on the Prerogative of the Crown in a state of war, even by Act of Parliament, and found that “on the ground that the Restoration of Order Act has limited the powers of the Military Authority in the present state of war in Ireland, I must hold that the writ of Habeas Corpus must be issued”.110

  According to Macready, this ruling “caused a terrific stir in Sinn Féin circles, being described as ‘a staggering blow’ against military rule. So far as I was concerned I considered that the position of the military was unassailable, and had no intention of paying attention to the writ …”111 On the day the prisoners were due to be produced in court, Macready’s counsel, Serjeant Hanna, said he was not going to do so, pending an appeal, although the authorities did undertake not to execute the two men.112 Jack Costello later remembered that “the Master of the Rolls was very cross at this, he got as white as a sheet, he denounced the action of the military and said that if they persisted in their refusal to carry out the order, there would be nothing but red ruin and the break up of all law …”.113 The Master issued a writ of attachment against Macready and the other senior officers named in the case, as well as the governor of Limerick Prison, for failing to produce the prisoners.114 As Macready ruefully observed, O’Connor’s outburst “was a perfect godsend for the press, and the next day the headlines were a joy to read”, although he took some solace in the reported unhappiness of the High Sheriff, who, probably wisely, “had … come to the conclusion that it was for the police rather than for him to carry out the order of the court”.115

  In his memoirs, the general tried to make light of the affair, referring to the “amusement it caused”, and calling it a “breeze between the Master of the Rolls and myself [which] made no difference in our personal relations, which remained cordial up to the day on which I left Ireland …”.116 But it is clear that Macready took it very seriously indeed at the time. Travelling from London, he decided “to go to Cork on my return [rather than travelling through Dublin] … In the martial law area I should not have hesitated to arrest anyone, including the Master of the Rolls himself, who attempted to carry out the service of the writs.” And he was most put out when Lloyd George, on the advice of the Irish law officers, agreed to release the two men. He was so annoyed that he wrote to the Army Council saying that “unless my authority as Chief Governor of the martial law area was not speedily restored I must ask to be relieved of a position I could no longer hold without loss of self-respect”.117

  On 1
August, a Cabinet sub-committee—including Irish Secretary Hamar Greenwood, Lord Privy Seal Austen Chamberlain, Secretary of State for War Worthington Evans and Lord Chancellor Birkenhead (“looking very holidayish in a light suit and soft white hat”) met to consider the situation.118 A week later, Chamberlain announced that the decision to release Egan and Higgins was due to the importance of avoiding conflict between the civil and military authorities in Ireland, and had nothing to do with the decision by the civil courts, which had no power to overrule the military courts in the martial law area in Ireland. According to Macready, “the pronouncement of the Government … was so unequivocal as to safeguard the position of officers charged in the future with the burden of administering martial law, and on that account alone was an ample compensation for the absurd position in which I and my officers had been placed”.119 Clearly, not a laughing matter.

  In November 1921, the two cases came before the Court of Appeal, but counsel for Macready asked for them to be taken out of the list (with liberty to re-enter) because of the truce, and expressed the hope that “the Court might hear no more of the cases”.120

  Ironically, many of the arguments—and many of the same people—were to be involved in the case of Erskine Childers, the anti-Treaty Director of Publicity who had been arrested in possession of a revolver—given to him as a souvenir by Michael Collins—and sentenced to death by a military court during the Civil War. On the evening of 23 November 1923, just hours before he was due to be executed, his legal team applied for a writ of Habeas Corpus to none other than the Master of the Rolls, Charles O’Connor. The courts were then sitting in the King’s Inns following the destruction of the Four Courts, and the emergency hearing was conducted by candlelight in the dining hall of the Inns.121