The Irish Civil War - Seán Enright

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It became National Army practice to load a significant number of rifles with blanks, increasing the chances of a prisoner surviving the volley and this would happen again and again. These difficulties were made worse because many of the executions took place in different parts of the country, so no local command ever acquired the necessary degree of competence. In a significant number of civil war executions, the prisoner survived the firing squad and lay on the ground wounded and sometimes conscious. In a small number of cases, the prisoner survived the volley and in a desperate reflex got to his feet. The presence of an officer with a pistol to administer the coup de grace was essential and soon the National Army was billing the state for whiskey for the firing squads.

      After the executions, the families of the dead men were sent a typed pro forma notification. The note for the Cassidy family read as follows: ‘I am to inform you that Peter Cassidy was tried by a military court on 8 November 1922. That he was found guilty of possession of a firearm without lawful authority and that he was sentenced to death. This sentence was executed on the morning of 17th November 1922.’ This practice was challenged in the Dáil but continued throughout the civil war and it became common for parents to learn that their son had been executed through a press release or a typed memo shoved through the letterbox.14 In Dublin, the public and the Dáil learned of the first executions in the afternoon papers. Later that day there was an emergency debate in the Dáil and the decision to execute was hotly challenged by the Labour opposition and other deputies.

      Mulcahy justified what was done by what he called the need ‘to stem the tide’ of lawlessness. ‘These men,’ he told the Dáil, ‘were found on the streets of Dublin at night carrying loaded revolvers and waiting to take the lives of other men.’ They had certainly been tried and convicted of possessing loaded revolvers. It is a reasonable inference that they were not charged with the attack on Oriel House because it could not be proved against them. To be tried for one reason and executed for another would become a common scenario during the war.

      In the Dáil, government ministers rallied to support Mulcahy. Nothing at all was said about the men being involved in an attack on Oriel House and O’Higgins argued that in order to deter others it was best to execute the rank and file: ‘If you took as your first case some man who was outstandingly active or wicked in his activities the unfortunate dupes through the country might say Oh he was killed because he was a leader or he was killed because he was an Englishman … better to take the plain ordinary case.’ Not all the deputies were satisfied with this and some argued against the government: ‘I think they ought to have got a public trial’; and another argued that possession of a handgun could never merit the death sentence. Other deputies questioned whether the prisoners were represented by lawyers, and on behalf of the government Ernest Blythe reassured the Dáil that the prisoners had a ‘full opportunity of employing legal aid and calling witnesses in their defence’. Blythe added that: ‘Every person who will be tried under the Resolutions passed by the Dáil will have a full opportunity for conducting his defence.’ This was certainly the undertaking given to the Dáil when the Army (Special Powers) Resolution was passed. Although it should be said that the trial regulations approved by the Dáil contained no provision for legal representation at public expense.15 It does not seem that many prisoners had the money to pay for a lawyer and the trials were often carried out so swiftly and in such secrecy that the families of the prisoners had no chance to arrange a lawyer.

      The provisional government survived the immediate crisis, but the deterrent effect of the execution policy remained uncertain and the daily round of shooting and killing continued. At Inchicore in the west of Dublin, four young men laying a road mine for National Army troops blew themselves to pieces. On the Monaghan border a mine detonated as a National Army lorry crossed a bridge. An officer lost an eye and five of his men were wounded.16 The following day, the attention of the country turned to Erskine Childers who had just been tried at Portobello barracks for possession of a handgun.

      There were at this time only a handful of senior ranking anti-Treaty officers captured in arms after the cut-off date. One was Ernie O’Malley who was unfit for trial because of wounds and there was no enthusiasm to execute him on account of his record. Another was the burly Pax Whelan: a brigade commander in west Waterford who was captured in arms with two of his officers in a safe house.17 Pax Whelan was a man with friends on the other side, perhaps. The only other ranking prisoner was Childers who the provisional government blamed for fostering opposition to the Treaty and also believed (wrongly) that he had played a leading role in the fighting.

      Childers

      He was not captured by chance: National Army intelligence officers had built a file on Childers and were actively looking for him. It had been known for some time that he was coming back to Ireland by ship: just before Michael Collins was killed he had directed that Childers be held as ‘a stow-away’, which, it was reckoned, would be sufficient to snuff out the threat. But Childers was an accomplished yachtsman and he got into the country undetected. He joined the anti-Treaty forces in Cork and after many weeks trying and failing to establish a role, he set off for Dublin on foot and got as far as Wicklow.1

      The National Army got a tip-off as soon as he arrived at his cousin Robert Barton’s home in Wicklow. The raiding party was led by an officer who himself had been a fugitive at the house during the War of Independence. He knew that the maid came out of a side door early every morning to get milk. Just after dawn, Captain Byrne and his men crept up behind the house and surprised the maid at the door and forced their way in. Coming up the stairs, Byrne was challenged by one of the Barton ladies for his warrant. ‘This is no time to speak of warrants,’ he replied and pushed her away with the butt of his gun. Childers emerged from a bedroom holding an automatic. He made no attempt to use it but passed along the hallway with the gun at his side and at last it was wrestled from his grip. At the time, it was suspected that he was on his way up to Dublin to act as secretary to de Valera who had announced a new counter state, but until Childers produced a gun there had been nothing to hang a capital charge on him. All that had now changed.2

      Trial

      Childers was brought up to Dublin and held at Portobello barracks. The JAG later wrote that Childers had been roughed up after capture: his watch and cufflinks had been stolen and he had been kicked so hard he was unable to lie down. He was put down for immediate trial and he asked for legal counsel. Under the trial regulations, a prisoner was entitled to a lawyer if it was practicable and Michael Comyn was telephoned.

      Comyn was then appearing at the Red Cow inquest.3 In the preceding months, he had appeared at many inquests, attempting to secure verdicts of murder against National Army forces, but jurors resisted efforts to make propaganda out of their verdicts and the Red Cow inquest was proving no different. Comyn left the inquest to his junior counsel and cadged a lift to Portobello in an army convoy. There he found his old friend chain smoking and drinking tea from a tin mug. Childers was then aged 52; clever, thin and usually impassive but for the ‘disdainful sniff’ that infuriated opponents. A few weeks before, he had been with the anti-Treaty forces that had retreated from Clonmel in a tearing hurry. When the dust settled, Childers sat down and wrote a thank you note to the hotel where he had been staying and enclosed a cheque for bed and board.4 Comyn had a brief conference with Childers. He was perfectly calm, Comyn recalled. Childers had been told that his trial was to take place in forty-eight hours and he had little to say to his counsel except: ‘There is no defence in fact. I had a gun.’5 He had already begun writing his last letter home to his wife Molly.

      Comyn had defended many prisoners who lacked a defence and his most famous victory had been won in just such a case during the War of Independence.6 In that case, it was Comyn’s tactical acumen and his ability to spin the case out until the Truce that saved the lives of the prisoners and many others. Comyn also brought in Patrick Lynch, KC, another formidable advocate.7 On the day of the first four executions, Childers was tried by military court at Portobello barracks on a charge of being in possession of an automatic without proper authority. The trial was conducted in private; the press and the public were never admitted to these hearings nor was any public notice given of the trial. No defence was advanced to the charge, but counsel submitted a list of legal objections to the jurisdiction of the army tribunal. The fundamental point was that it had been open to the Dáil to pass

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