The Irish Civil War - Seán Enright

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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.

      Military Courts and the

      First Executions

      The first execution took place only a few days later and it was entirely unauthorised. It happened at the end of October in Ballyheigue, a single-street village on the edge of Kerry’s Atlantic coast. On the hill overlooking the village stood the burned-out ruins of the Crosbie castle and a little further inland the square tower of the church of Saint James and its small graveyard filled with mausoleums and stone crosses where no one lingered long. There had been intense fighting in Ballyheigue parish for some days and the anti-Treaty fighters had been driven off by the First Western Division of the National Army. During the retreat two shotguns had been left hidden in the graveyard. That evening Jack Lawlor and another man came back under cover of darkness to retrieve the firearms. Lawlor was then aged 21, a big solid young man, a farm labourer, who lived with his widowed mother on the headland. When the split came many young men from the parish had gone with the anti-Treaty faction and Lawlor had been one of them.

      Lawlor and his companion were seen and fired on by a National Army patrol. Both were captured but escaped in the darkness and the maze of mausoleums. Lawlor was wounded in the arm and both were soon recaptured. He was tried that night at McCarthy’s shop where the National Army had established their base in the village. The trial, if it can be called that, was presided over by Colonel Commandant Michael Hogan from the First Western Division. Lawlor was sentenced to death.1 The National Army had no barracks in Ballyheigue and so Lawlor was held overnight in the old RIC station which was just a small terraced house with a cell built onto the rear. In the morning he was taken up to the graveyard on the hillside and shot in plain sight of the village. Lawlor’s body was left where he fell and a messenger was sent to tell his mother.2 This trial was not authorised by GHQ and the rudimentary safeguards laid down in the regulations were not followed.3 The officially sanctioned trials by military court began on 3 November and in Dublin and Kerry military courts convened at once.

      In Kerry, a National Army raid netted another arms find and two more prisoners: Patrick O’Connor from Causeway and Patrick Joseph O’Halloran from Ballyheigue.4 They were tried and convicted and went back into custody while sentence was considered. In Donegal, a few days after military courts were brought in, a National Army raid had resulted in the arrest of two unlikely prisoners. The first was a formidable widow farmer, 53-year-old Catherine Johnstone from Letterkenny. She was charged with possession of bombs, detonators, ammunition and part of a stolen wireless. Her 21-year-old daughter Georgie was charged

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