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The Irish Civil War. Seán Enright
Читать онлайн.Название The Irish Civil War
Год выпуска 0
isbn 9781785372551
Автор произведения Seán Enright
Издательство Ingram
The lawyers did not enlighten him, but McPeake’s fears were that his deportation for larceny was a ruse by the National Army to bring him into the jurisdiction in order to try him for treachery. In the autumn of the year before, dozens of National Army soldiers had deserted and gone over to the other side. Most had taken as many rifles and ammunition as they could carry, but McPeake had gone a step further and taken an armoured car which had been used in action against the National Army. Most of the deserters were never traced, but at least one was killed fighting for the other side.4 Some were recaptured but not identified and went off to internment camps. Six of the deserters were recognised and all were tried and executed. McPeake was reckoned to have done ‘immense damage’ to the government cause and he was now at risk of sharing their fate.5
McPeake was released by the district judge and set off to catch a ferry back to Scotland, but as he came down the steps of the court with his supporters he was arrested by a squad of National Army soldiers who had been lying in wait. Jock McPeake was taken to the barracks, a charge of treachery was laid against him and preparations for a trial by a military court began. His brother Frank, who had come over from Scotland to help him, was also picked up and held without charge. In a letter smuggled out of Keogh barracks some days later, the brother wrote that he had been badly beaten and was in fear for his life. McPeake’s solicitor retained Michael Comyn, KC. A small wiry man with a black handlebar moustache, he had used his skills to challenge the legality of all that the Free State government had done during the war. Comyn sought a writ of habeas corpus at the High Court in Dublin.6
McPeake’s case came before the only judge on duty during the long vacation; it happened to be Chief Justice Molony. In argument, Comyn accepted that on the face of the papers the deportation of McPeake for larceny was legal, but there was a more sinister dimension.7 He argued that the charge of larceny had been used as a pretext to bring McPeake into the jurisdiction to allow the National Army to bring the charge of treachery and try him by military court. He could never have been deported to Ireland for treachery, Comyn argued. This was because McPeake deserted before the creation of the Irish Free State on 6 December 1922. Before that date the new state was not a legal entity and nor was the National Army. How, argued Comyn, could a prisoner be charged with treachery to an organisation that had never been an entity recognised by law?
Comyn’s more fundamental argument was that the civil war was over and the power of the army to try civilians by military court had evaporated. In this respect, Comyn had correctly stated the law, but as a matter of fact trials by military court were still continuing.8 He posed the question: was Ireland governed by the rule of law or the army? This was a question being asked by many. As the civil war had taken hold, the army had gradually become the most powerful institution in the country. In the Dáil, Kevin O’Higgins and many other deputies wanted to curb the power of the army and reassert the authority of the democratically elected government. Tension between ministers and General Mulcahy the commander in chief of the National Army had been an enduring issue throughout the civil war and culminated in Mulcahy and his staff submitting their resignations.9 Their resignations were not accepted and they remained in post, subject to increased oversight by the cabinet.
Subsequent events suggest that Chief Justice Molony also had an agenda: to reassert the rule of law. Molony had steered the law through some difficult years when the authority of the courts had been usurped by the British Army, the Irish Volunteers and then the National Army during the civil war. In the summer of 1923, there were about 13,000 prisoners interned without trial in Ireland. Most were captured anti-Treaty fighters or those suspected of involvement in the anti-Treaty cause. Over 100 more had been unlawfully deported from England, but it was only a ruling of the House of Lords not the Irish Courts that resulted in them being set at liberty.10 There were quite a number of other prisoners still in custody for no reason that would withstand scrutiny.11 In June, anti-Treaty prisoners brought a series of habeas corpus actions against the army, arguing that the war was over and there was no longer any lawful power to hold them. In each case, the courts had accepted the argument put forward by the army: the country was at war and according to case law, the courts could not intervene durrante bello. But the civil war had fizzled out and McPeake’s habeas corpus writ had exposed the tensions within government: the politicians wanted control, but the army seemed not ready to give up power. The minister for home affairs, the leading critic of the army, still needed a few more days grace to put in place emergency legislation legalising internment and the Dáil was sitting overnight on the Bill. McPeake’s case threatened to unravel the fragile status quo. Chief Justice Molony issued a conditional writ and the case was adjourned for both sides to be represented.
At the full hearing, Attorney General Hugh Kennedy, KC, appeared for the state and told the court it had all been a misunderstanding: the witnesses had been found and were now all available. McPeake was no longer in army custody; he was back in a prison run by the civil authorities and was to be sent for trial by jury on a charge of larceny.12 The attorney general had avoided or at least delayed the great constitutional issue and the government had found some breathing space to get emergency legislation through the Dáil that would legitimise the internment of thousands of prisoners then in custody. The circumstances of McPeake’s case hinted at unrecorded high-level discussions to avoid a habeas corpus ruling that might come before the government were ready. The application for a writ was withdrawn, but Chief Justice Molony awarded substantial costs against General Mulcahy – a slap on the wrist for the generals.13
It was in these circumstances that McPeake passed out of the control of the army and back into the hands of the civil authorities and was sent for trial before the courts of justice. The charge was larceny not treachery: the death sentence had been avoided. In late October he was moved up from Cork prison to Mountjoy. McPeake’s case was still a sensitive political issue and by order of the minister for home affairs the prison guard was reinforced by a convoy of soldiers. From Mountjoy he was brought to trial for the theft of the Slievenamon at the Green Street courthouse – the graceful neo-classical building that had seen so many of the most important criminal trials in the preceding century. Chief Justice Molony again presided.
There is no doubt that McPeake stole the Slievenamon, but like many criminal trials, what was true and what could be proved were two different things: the evidence in support of the charge was not overwhelming. While McPeake debated with his counsel the decision to fight or plead, events took another twist. McPeake confided in his counsel, Michael Comyn, that he was gravely worried about the emerging rumour that he killed Michael Collins.14 The known facts were that at Béal na mBláth his Lewis gun had kept the anti-Treaty fighters’ heads down, but then it had jammed and could not be fixed again that day. The rumours about McPeake focussed on his antecedents: he was Scottish not Irish and he had previously served in the British Army. All these factors and his subsequent desertion with his armoured car had fuelled suspicions he had some involvement in the death of Michael Collins. Jock the Giant Killer was a nickname being bandied around by those who knew no better.15
‘There is no such charge against you,’ said Comyn. McPeake’s fears about the danger to him were well grounded. The bodies of anti-Treaty supporters had been turning up around Dublin for many months: kidnapped, shot in the back of the head and dumped in quiet locations. The last was Noel Lemass, whose remains had been found in the Featherbed Mountains only ten days before. The inquest, which was widely reported, heard evidence that he had been kidnapped and killed by clandestine supporters of the government. The coroner said his body bore signs of torture that would ‘shame the most primitive savage’.16
All this must have been in McPeake’s mind; heightened by the knowledge that prosecuting counsel in his case was attended by a bevy of army officers who suspected him of involvement in the death of their old commander in chief. Collins had suffered a gaping wound to his head which could have been caused by a handgun fired at close range. The army officers asked defence counsel: ‘What about his revolver?’
Counsel went back down to the