Legal reaction to 1916 Rising, Illegal?

The British legal reaction, inherently flawed from its outset, was fatally impeded by the inconstant and ambitious legal regime it resurrected in response to the 1916 Rising. More damaging still proved to be the trials and execution of the leaders. Characterised by they're secrecy, expediency and the severity of their rulings the trials in 1916 engendered a revulsion of feeling in favour of the rebels and can be assumed to have it fact been illegal. General Maxwell was given free rein to establish a regime to deal with the rebels and the punishment of the leaders, the legality of which remains dubious. 

The immediate legal rescues to the outbreak of fighting in 1916 began with the declaration of Martial Law by Lord Lieutenant Winbourne on 26th April, two days after Padraig Pearse proclaimed an Irish Republic on the steps of the GPO. Within a matter of hours Westminster simultaneously invoke emergency powers conferred namely the ‘Defence of the Real Acts’ to ensure the rebels would be tried by courts martial. And by Friday the 28th April General Maxwell was appointed as ‘Military Governor’ of Ireland. However, in the haste to secure the ‘prompt suppression of insurrection’ and assembled some semblance of stability Westminster had created a complex legal problem. By permitting the trial of offences under the extraordinary wartime legislation and for the trials to take place in military courts the government seemed to negate its prior declaration of Martial Law which in effect asserted that law itself had ceased to operate. 

The spearhead of the legal response to the Rising was General Maxwell. He was imbued with ‘plenary powers under Martial Law that bestowed him to restore order, put down the rebellion and punish its participants’. In pursuance of this directive 3,226 people were arrested nationwide between 1 May and 3 July, 1, 867 of whom were deported while 171 so called ‘ringleaders’ faced trial. In accordance with the Defence of the Realm Acts each of the tried rebels would face a Court Martial. However, another problem arises here which can be used as evidence that the trails were illegal. Normally, the procedure under the act dictated that an accused would be tried by a General Court Martial method of trial which required at least five army officers to act as judges, the appointment of a judge advocate to control the course of the trail, give legal rulings and a sum summing up and which entitled the accused to certain, important legal protections. Maxwell however, in the interest of expediency chose to try the rebels by Field General Court Martial, a rudimentary form of trail usually reserved for soldiers on active duty. This meant the rebels were stripped of the entitlements afforded under a General Court Martial. The jury panel was reduced to three officers, there were no requirements for the appointment of a judge advocate and the accused did not have free access to a defence witness or any opportunity to prepare a defence. 

Another issue was the lack and the ambiguity of evidence. To be proved in evidence was the rebels could only face the death penalty if charged with having acted under breach of the regulations with the intention of aiding the enemy’. The enemy in this circumstance being Germany. Commander in Chief of the Rising and acting President of the Government Padraig Pearse was the first of the rebels to face trial with lack of evidence. While he pleaded not guilty they used a postscript in a letter to his mother in the ordinary course of due process, in the words of the Adjutant General on 10 January 1917 ‘the evidence in some of the cases was far from conclusive’. Comparatively, Pearse’s younger brother William pleaded guilty and the evidence against him consisted nothing more than the testimony of a Lieutenant King who merely said ‘I know that he was an officer but I do not know his rank’. In the case of Thomas Kent, he was sentenced to death having been convicted of the same charge as those who had surrendered in Dublin. Kent was the only man executed outside Dublin and the evidence of his trial did little to prove he had ‘taken part in an armed Rebellion with the intention of and for the purpose of assisting the enemy’. The entirely circumstantial , misleading and inaccurate nature of much of the evidence presented against the rebels in 1916 may be attributed to the extreme rapidity to the proceedings and the considerable numbers facing trials. 

The duration of many of the trials was merely a matter of minutes, Cosgrove recalled his to have been taken less than fifteen minutes. The speed with which the cases were built against the rebels gives rise to further concerns as to the legitimacy of the cases mounted against them. Prior to the first case Lieutenant W.E Wylie who served as the prosecutor for most of the trials was afforded little more than a night's notice as to his position as such. Pearse, Mac Donagh and Clarke those first in line to face trials recurved even less notice as to their charge and had no real opportunity to prepare a defence. 

As the convening officer and owing to the incredible pace at which the trails were held Maxwell was encumbered with the onus of deciding the fate of each of the accused. In the ambit of his considerable power it was for him alone to determine not only who would face trial but whether to confirm the findings of the sentence of the Courts Martial, from which there was no appeal, or no opportunity to make a recommendation of merit and commute the sentence to penal servitude’. Maxwell had more material than was presented before the court. This calls into question why these materials were not admitted into 

evidence and puts their legality into question. The only check placed on Maxwell over the course of the trials was the rather obsolete Captain Arthur Bucknill. More damaging to the case of the rebels was the fact that the likes of Bucknill had little experience in capital trials. Owing to the lack of legal qualifications of the members of the court and their limited trial practice, Maconchy requested the assistance of more experienced officers such as Colonel Sapte. Sapte however, was described as a ‘buffoon’ with no understanding of how to conduct a trial by Joseph Pluncett, added little to the competence of the courts. Worse still proved to be Brigadier General Peel who, brandished ‘stupid and as obstinate a mule’. So haphazard was the procedure of the courts that it was for Wylie, the prosecuting counsel, to explain basic legal principles to the judges administering the proceedings. In large, the reality of the situation here was that the outcome of the trails was a forgone conclusion. The most controversial characteristic of the trials in 1916 was that the trails were held in camera. It was by the order of Maxwell that no member of the public or press were admitted to the trials which was strange as no court martial ever purported to have exercised this jurisdiction. This has been criticised even by the British adjutant general who conceded there to be no justification of the court martial to be held in camera. 

In conclusion, there were several serious legal issues underpinning the trail of the rebels in 1916. Removing contemporary standards and considering the proceedings in a military context does not excuse or explain many of these aberrations. Each of the cases were heard and adjudicated by men with little Court Martial experience and no legal training by a trial method conceptualised as a means of maintaining army discipline. The standard of evidence used to convict those facing the death penalty was negligible and those accused were denied legal representation. All of this gives weight to deciding the legal reaction to the 1916 rebellion was in fact illegal. 

le Callie Crawley

References 

Adrien Hardiman ‘ Shot in Cold Blood: Military Law and Irish Perception In the Suppression of the 1916 Rebellion’ in Gabriel Doherty and Dermot Keogh, 1916 - The long Revolution (Mercier Press, 2008) 21 

B Barton, From Behind a Closed Door, Secret Court Martial Records of the 1916 Easter Rising, (Blackstaff Press 2002) 

Sean Enright, Easter Rising 1916; The Trails (Merrion, 20140 .