With the UK government currently in the throes of contravening international law it might be instructive to look at a previous occasion on which Brittania ‘waived the rules’ and how this affected Ireland. 

While there is a world of difference between the attempt by Boris and Dom to renege on the Brexit deal that helped get Johnson elected in December, and the Dublin executions in the aftermath of the 1916 Easter Rising, both illustrate a predilection for British ‘improvisation’ when it comes to rules and procedures.  While the Dublin firing squads of May 1916 might be seen as an understandable British political reaction to a perceived ‘stab in the back’ from the ‘Bolshie Paddies’ they were established with precious little legal cover or legitimacy.

159 men and one woman, adjudged by the British military authorities to have taken a lead in the Easter Rising, were tried by court martial in May 1916. Ninety-three were sentenced to death, fifteen were executed. 

What has finally emerged, only within the last two decades, are the actual records of the courts martial. They are, in the main, flimsy documents but in that respect are probably reflective of the cursory nature of the tribunals themselves. They do not always tally with the memories, memoirs and statements of those who took part in the process – including those taken by the Bureau of Military History in the 1940s and 50s – but their release in 2001 added a crucial element to the, often contradictory, narrative of one of the most momentous weeks in the history of Ireland under the Union. They also helped to underscore the lack of legitimacy—on numerous levels—of the tribunals that preceded the firing squads. They offer confirmatory evidence of what had long been surmised, that legal ‘due process’ was not observed by the military authorities in May 1916.

On 25 April the British Cabinet had declared martial law throughout Ireland. The following day a Military Governor, General Sir John Grenfell Maxwell was appointed. He was given ‘full authority to restore order, put down the rebellion and punish its participants’.  He took his political masters at their word.

Maxwell first toyed with the idea of trying the ‘ringleaders’ of the Rising under martial law itself. But, in essence, once a military emergency has passed martial law ‘withers’ and the military, in theory at any rate, cannot simply execute prisoners merely because of their involvement in the civil strife which had led to the invocation of martial law in the first place. At least not without a trial. [Not that such niceties had saved the lives of around fifty South African rebels during the Boer War]

In the Bureau of Military History statement of a former admiralty lawyer, 2^nd Lt. Alfred Bucknill – later Mr. Justice Bucknill –  who had been sent to Ireland as a young man to assist Maxwell, he makes it clear that Prime Minister Herbert Asquith had instructed Maxwell that…  

At all costs whatever was done would have to be done legally, there would have to be a complete answer to possible criticism in the House of Commons. 

Bucknill was charged with ensuring that Maxwell did what he was told and observed due process. Instead, as the foremost authority on the subject Judge Sean Enright, author of Easter Rising 1916: The Trials, has observed, ‘Unfettered by either law or lawyers, Maxwell was guided by pragmatism’.

In essence Maxwell made up the rules as he went along and was guided in his choices by an affiliation to the military culture of maintaining discipline through the court martial process, even where that contravened natural justice. One of Maxwell’s priorities was the prevention of a recrudescence of rebellion by eliminating the leadership cadre of the rebels. He was there to ‘restore order’, as per his instructions, by culling rather than cuddling. 

He quickly decided that his best option was to court-martial the leaders of the insurrection, not under martial law but under the terms of the Defence of the Realm Act. DORA had been passed in September 1914 and augmented on many subsequent occasions by executive order and/or by amending Act of Parliament. It began as an enabling paragraph of legislation and ended with more than 650 pages of regulations.

Bear in mind that while martial law does confer extraordinary powers of arrest and detention on a military government it does not, per se, suspend the normal legal process of trial in open court for the commission of a felony, including the crime of treason-felony. While you might get away with exemplary and illegal punishments in India or South Africa there would be far more scrutiny of the aftermath of a rebellion on Britain’s own doorstep. Maxwell would also have been aware that his actions under martial law would be ‘justiciable’ – in other words he, and others, could be held criminally liable for any extra-legal actions for which they were judged responsible.

It is important to distinguish between a trial in the aftermath or even in the course of a martial law regime, and a court martial under emergency legislation like the Defence of the Realm Act. 

An early provision in the DORA legislation provided for trial of civilians by General Court Martial rather than through the regular courts system. This facility was availed of infrequently.

DORA, based on the rules of the General Court Martial (GCM), called for the creation of 

1. a court with up to thirteen members (and a minimum of five) 
2. a professional judge  
3. a legal advocate,
4. trials to be conducted openly. 

In the case of a court marital of a civilian under DORA the death penalty was not applicable except in the extreme case of ‘assisting the enemy’.  

However, the procedure adopted by Maxwell in Dublin in 1916 was closer to that of a ‘drumhead’ court martial of the type normally seen at the battlefront – these were officially known as Field General Courts Martial (FGCM) and they were permitted where a General Court Martial was deemed  ‘not practicable’. 

But even a more ‘improvisational’ Field General Court Martial, convened at the front in time of war—and primarily conducted in the interests of discipline rather than strict justice— still had procedures of its own laid down in the military rulebook. Even those rather basic rules were not followed by Maxwell in 1916.  

The Volunteer leaders were tried by three-judge military courts. This was permissible under FGCM rules, but there were no defence representatives present and all trials were held in camera. This was not permitted even under military law and were certainly not envisioned in DORA legislation.

Furthermore, in the case of verdicts handed down by FGCM’s the office of the Judge Advocate General, based in London, well away from the exigencies of the front, had a right of oversight and could countermand or afford clemency on sight of the court martial transcripts. This did not occur in the case of the 1916 trials. During the later War of Independence (1919-21) the JAG’s office would zealously ensure that it retained its oversight capacity when it came to the sentencing of IRA prisoners.

In addition, there was no mechanism for the judicial appeal of a court martial verdict. The only recourse was to Maxwell himself, who was obliged to confirm or commute the sentences. The military administration had unilaterally seized itself of Lord Lieutenant Wimborne’s powers of clemency in capital cases. Correspondence between Wimborne and Maxwell suggests that the former would only have countenanced the executions of the seven signatories of the 1916 Proclamation and disapproved of the much wider and more controversial blood-letting. As it happens there was no provision under DORA for the removal of the Royal prerogative power of the Lord Lieutenant when it came to clemency exercised on behalf of the monarch. During the War of Independence it was re-asserted, despite the imposition of martial law. 

Maxwell’s template might well have seemed appropriate given the circumstances of the rebellion but it still amounted to arbitrary procedure and, in essence, led to summary execution. Even the British Adjutant General, Sir Neville Macready, conceded, for example, that ‘There is no legal justification for a Court Martial to be held in camera, either in the Army Act, or in any regulation under the Defence of the Realm Act.’

Coincidentally, and significantly, four British soldiers were tried for murders committed during the Rising. They were tried by General Court Martial [not FGCM] – that procedure was deemed ‘practicable’ in their cases – and the four were allowed legal representation. 

The Easter Rising courts martial took place in Richmond Barracks over a nine-day period, with two trials generally taking place simultaneously. One of the prosecutors was thirty-five-year old 2^nd Lieutenant William Evelyn Wylie, a Dublin barrister. Wylie left a record of his participation in the form of a memoir written for his daughter. This was subsequently edited and published by historian Leon O’Broin. It’s an account of Wylie’s increasing disillusionment with the courts martial process. He objected to the trials being conducted in camera and often did his best to mitigate the absence of defence counsel.

‘Prisoner No.1’ Pearse was court-martialled on the afternoon of 2 May. The President of the Court, as was to be the case with most of the prominent leaders of the Rising, was Brigadier General Charles Blackader, a forty-six-year old career soldier who would, shortly thereafter, lead the 38^th (Welsh) Division through the horrors of the Somme. Wylie was prosecuting attorney. 

Blackader’s involvement was, to say the least, also of dubious legality. Even under the more permissive Field General Court Martial process the rules of procedure specifically excluded presiding officers who had a potential conflict of interest – as commander of 176 Brigade, which included the Sherwood Foresters and which had incurred most of the 1916 British military casualties, Blackader should have stood down. The same was true of the president of the parallel court martial, Colonel Ernest Maconchy – a native of Longford – who was the CO of the Sherwood Foresters. Both men had egregious conflicts of interest and should not have been permitted to participate in the courts martial process. 

A veneer of legality was retained in this respect by the fact that the members of the court ritually identified themselves to each of the prisoners prior to their court martial. The prisoners had the right to object to any of the officers presiding over their cases. But, at least as far as is revealed in the transcripts, at no point was the significance of this right explained to the prisoners. 

Pearse, pleaded not guilty to the charge that he  ‘ … did take part in an armed rebellion and in the waging of war against His Majesty the King such act being of such a nature as to be calculated to be prejudicial to the Defence of the Realm and being done with the intention and for the purpose of assisting the enemy’.

The latter element of the charge was crucial – as civilians, none of those being court-martialled could legitimately be executed without proof that they had consorted with Germany. The charge of colluding with the enemy was, in the circumstances, not as easy to establish as it sounds. It required direct and convincing testimony or clear documentary evidence. In reality, however, these were in camera tribunals where the military authorities could, in effect, do whatever they wanted, however dubious the evidence. Maxwell had seen to that.

The transcript of Pearse’s court martial reveals, however, that he admitted collusion – he referred to having opened negotiations with Germany. Included in Pearse’s file is a letter written to his mother written from prison after the collapse of the Rising. It runs to four pages. Included at the top of Page 1 is a post-script which reads ‘

P.S. I understand that the German Expedition which I was counting on actually set sail but was defeated by the British’

It was an admission that legally entitled the court martial to sentence Pearse to death. However, it appears to have been equally significant for others similarly charged.

At no point in any of the other transcripts, or the individual files associated with those court-martialled, is any reference made to ‘assisting the enemy’, other than the reading out of the original charge. There is no indication in the transcripts that the presiding officers indicated to the prisoners the importance of that particular element of the charge. In fact, it is clear from the transcripts that the only evidence taken by the courts martial was designed to satisfy the presiding officers that the prisoner had, indeed, taken part in the rising. All the prosecution testimony recorded is identification evidence. 

In fact, in a number of instances, prisoners specifically refer to the charge of collusion and, in unsworn statements [they were not allowed to give sworn evidence on their own behalf] denied any such involvement. Ned Daly told his court martial that ‘The reason I pleaded “not guilty” was because I had no dealings with any outside forces …’

It is clear from John MacBride’s own statement, as well as corroborating sworn defence witness evidence, that he joined the rebellion at the last minute, was not a member of the Volunteers and, therefore, could not have conspired to collude with Germany. That did not prevent him being found guilty and executed.

However, it appears that the courts martial took the view that the Pearse postscript – which, it is often argued, he may well have been appended to guarantee his own execution – was used, without any overt reference to that fact, in all subsequent cases and became a convenient fig leaf which allowed the presiding officers to hand down death sentences on 93 prisoners.  

Significantly Blackader appears in the case of the second court martial, that of Thomas MacDonagh, to be looking for an alternative to the Pearse postscript, in order to sentence the prisoner to death by establishing collusion with Germany.

After MacDonagh had been arraigned Blackader had asked Wylie to produce a copy of the 1916 Proclamation. This would, Blackader blithely assumed, establish beyond doubts the prisoner’s collaboration with the enemy because of the controversial reference in the text to ‘our gallant allies in Europe’. 

Wylie, however, pointed out that the provenance of the document (of which he actually had a copy) could not be established and, therefore, it was not admissible in evidence. The proclamation was a printed document. It would be necessary to locate the original and confirm the signatures before it could be presented as evidence. Wylie advised that the presiding officers expunge it from their minds when considering their verdicts and sentencing. 

After the court martial of MacDonagh, Wylie began a practice of consulting with prisoners about to face trial while the court was considering its verdict in a previous case. This was with a view to discovering whether they wished to call defence witnesses. Pearse, MacDonagh and Thomas Clarke had been given no opportunity to produce any such mitigating evidence. 

Partly as a result of Wylie’s intervention, Eamon Ceannt’s court martial continued into a second day when he called three defence witnesses. Ceannt argued that in his case ‘there is reasonable doubt’ about the fact of his participation in the rebellion, ‘and the benefit of the doubt should be given to the accused.’  He was certainly not convicted on the basis of the quality of the evidence presented against him. For example, the only prosecution witness who testified at Ceannt’s court martial seemed convinced that Ceannt had been in command at the Jacob’s Biscuit factory. In fact, he had led the South Dublin Union Volunteers, whose surrender had taken place at Jacobs. Ceannt was able to cross-examine that witness, Major Armstrong of the Inniskilling Fusiliers, and call witnesses of his own to refute the suggestion that he had served in Jacob’s factory – these included John MacBride, who openly admitted to being (albeit belatedly) part of the Jacobs factory command structure. Ceannt also, cleverly, called Thomas MacDonagh as a witness. He must have known MacDonagh had already been executed, but by requesting that MacDonagh speak up on his behalf Ceannt was throwing the untimely speed of the executions into perspective. Arguably, the authorities had a legal obligation to postpone carrying out sentences of execution on the convicted rebel leaders until the courts martial were completed and they were no longer required as potential witnesses. This was candidly accepted by the Home Office official, Edward Troup, in a conversation with Herbert Asquith in 1917 when they discussed (and long fingered) the issue of publishing the court martial transcripts.

Ceannt also explicitly denied ‘assisting the enemy’ and pointed out in his unsworn statement that ‘the Crown did not even tender evidence in this regard’. A reading of Ceannt’s court martial transcript suggests that, in an open criminal court with the customary level of evidential testing, the Crown might well have failed to establish a bona fide case against him.

This suspicion is reinforced by an opinion offered by the Adjutant General, Sir Neville Macready, on the issue of whether or not the accounts of the courts martial should be released. Publication had been promised by Asquith to the House of Commons in October 1916. Having consulted with Maxwell, General Macready wrote: 

Publication is in my opinion a complete admission that there was no justification for trial in camera … [and] I have reason to believe that in certain cases the evidence was not too strong 

He was referring to the flawed testimony in Ceannt’s case. Subsequently, in 1917, Ceannt’s widow, Frances Ceannt, sought a transcript of the court marital and was refused access to the document on the grounds of ‘privilege from production of these proceedings for reasons of public policy.’  Ned Daly’s mother made a similar request. This too was denied, on the basis of ‘public interest’.

The court martial process was a mass of anomalies, contradictions and unsafe procedures and verdicts. Both the transcripts, as well as subsequent memoirs and testimonies, underline the relative paucity of information available to the Crown forces that would have enabled them to identify readily those chiefly responsible for the rebellion. Men of little consequence, like Willie Pearse (a glorifed aide de camp to his brother) were executed, while the timing of his court martial [8 May] and the political row over the murder of Francis Sheehy Skeffington—according to the BMH witness statement of Alfred Bucknill—ensured that one of the most successful commandants of the Rising, Eamon de Valera, was spared. It is a well-squashed myth that Dev’s survival had anything to do with his being born in the USA. He was fortunate to have been held at first in the RDS after the Volunteer surrender, thus delaying his court-martial. 

The arrival of Prime Minister Asquith in Dublin on 12 May might also have contributed to the failure to execute Eamon de Valera. Wylie records that Maxwell consulted him on the importance of de Valera, a commandant, [3^rd Battalion] and therefore of similar rank to many of the executed leaders, and of higher rank than others who were shot. Maxwell asked Wylie “I wonder would he be likely to make trouble in the future?” To which Wylie responded “I wouldn’t think so, sir, I don’t think he is important enough. From all I can hear he is not one of the leaders.” Apart from the ex post facto comic element of the conversation, it’s an interesting insight into Maxwell’s thinking, and into his motivation for approving so many of the death sentences imposed by the courts martial – i.e., the eradication of future potential trouble makers. 

Asquith, while defending Maxwell in the House of Commons, must have been belatedly aware that due process played little or no part in the field general courts martial process. Force majeure, the inclination towards retribution, and a desire to geld the nascent physical force movement by killing off its leadership corps, were far more in evidence in May 1916.

On the other hand … there is little doubt that the unwonted savagery of the British reaction to the rebellion was one of the factors (along with the attempt to introduce conscription in 1918 and the toll of Irish war dead between 1914-18) that led to the 1918 Sinn Féin landslide, the War of Independence, and, ultimately, legislative freedom for twenty-six Irish counties. A freedom which means that, unlike the people of Northern Ireland and Scotland, a bad case of revanchist English nationalism, will not ensure our forced exit from the European Union on 1 January 2021.