Tuesday, April 26, 2016

The Easter Rising courts-martial

Lord Wimborne
Lord Lieutenant
of Ireland, 1916
One hundred years ago Ireland was rocked by the Easter Rising. The legal aftermath is little known today, and not a pretty picture, as witness this Irish Examiner column by Seán Enright. Excerpts:
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.
* * * 
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 [the Lord Lieutenant] 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.”
* Not so terminally. He died in 1928. (Footnote added.) 

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