LITMIR.BIZ

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there were now two competing court structures. In Dublin, the courts established under British rule was still functioning but so also were the Dáil courts. Out in the provinces, the only remnant of the British justice system was the coroner’s jury. The remainder of the justice system had been substantially supplanted by the Dáil courts. This dual system was unsustainable and it all came to a head when the Four Courts siege was broken by an artillery bombardment by the National Army. One of the republican prisoners captured was George Plunkett, whose father, Count Plunkett brought an application for a writ of habeas corpus before a Dáil court. Judge Diarmuid Crowley issued the writ after hearing legal argument.14 The writ required the release of George Plunkett and if taken to a logical conclusion, all the hundreds of republican prisoners. Unsurprisingly, the prison governor declined to obey the writ and passed it to the National Army headquarters at Portobello. The status quo had changed very suddenly and the provisional government ordered Crowley’s arrest. Judge Crowley was picked up late at night by an army officer, ‘one of the intelligence crowd’. He was held at Wellington barracks and his abiding memory was the brutal interrogation of an anti-Treaty prisoner in the adjoining cell and the sound of mock executions.15 Crowley got out some weeks later but only after an intervention by Cahir Davitt.

      The provisional government’s formal response to the habeas corpus writ was even more robust. They retained the British justice system in Dublin and abolished with immediate effect all the Dáil courts except for the parish and district courts in the provinces.16 Two more momentous events took place that summer. Arthur Griffith, president of the provisional government died suddenly. His health had been on the wane for some months and his death was keenly felt, but he was hardly a war leader and so the loss was managed. Twelve days later, Michael Collins was killed in an ambush and this was a critical event.17

      Collins’ body was brought up by sea to Dublin’s North Wall, arriving long after midnight. In the darkness, the cabinet of the provisional government and many others stood in silence as the coffin was brought onto the quayside and loaded onto a horse-drawn carriage. The cortege crossed the city with just the sound of a piper, the rattle of the gun carriage and murmured prayers for the dead. A procession of ministers, soldiers and many others followed. The funeral took place later that week: huge silent crowds lined the streets for 6 miles on the road to Glasnevin cemetery. Collins had been the last pro-Treaty leader who had both the inclination and the ability to forge a peace.

      After the deaths of Griffith and Collins, William Cosgrave emerged as the new head of the provisional government. A quietly spoken man of slight figure with a silvery blond quiff, he was a grocer by trade although he had an incongruous fondness for a top hat. Many of the anti-Treaty faction reckoned that Cosgrave had not the mettle for the coming fight. He had last handled a gun at the South Dublin Union in 1916 and afterwards made his reputation as minister for local government, but as a leader he did not initially inspire many on his own side. This new government teetered as the war intensified. The threat of assassination was very real and the inner core of the government camped out in offices on Upper Merrion Street with a heavy guard. Some slept on mattresses that were rolled up each morning so that the business of government could begin.

      There was much more to all this than fighting the war: the public sector pay bill had to be met, schools needed to run, hospitals had to remain open, the post had to be delivered. They were running a small country without allies in the North or in Britain.18 That summer and autumn one crisis followed another: the Four Courts siege, the death of two great leaders and a prison hunger strike – the prisoners were told they would be buried in unmarked graves. A postal workers’ strike was beaten off and also a long-running industrial action by railwaymen. There were other pressing political issues to be dealt with. Not least bringing in a new constitution consistent with the terms of the Anglo-Irish Treaty and therefore acceptable to the British government but palatable to the Irish electorate. It was a heavy burden.19 Not all of the ministers were weighed down by responsibility. Eoin MacNeill was writing what would become his most famous monograph on ancient Irish legal history: Franchise or Law. A big man with gold spectacles and a heavy grey beard, buried in Brehon law tracts, he occasionally waved away requests to go down to his office.

      In the long evenings, ministers and their wives gathered in the main lounge, but the women became a source of friction and they were soon evicted while the men smoked, talked, read newspapers or played endless games of bridge that MacNeill often won. The only senior figure absent was Mulcahy, the new commander in chief. Mulcahy kept long hours at GHQ Portobello and spent the rest of the time at his home next door and did not often attend cabinet meetings. Kevin O’Higgins distrusted the army and also General Mulcahy in equal measure. O’Higgins was right about the National Army – it was malleable, riven by cliques and honeycombed with IRB members who were now without their leader (Collins). O’Higgins’ suspicions of General Mulcahy would prove to be entirely misplaced: the general, dark, wiry and a little intense, was driven by his work and, for the time being, was oblivious to the suspicions of his colleague.

      It was still the war that dominated events. The casualties in the fighting grew on both sides and the National Army lost some of their best men – shot down in ambush or occasionally shot in the street or leaving church.20 In the streets of Dublin, anti-Treaty fighters threw grenades and planted mines with a singular lack of regard for civilian casualties. In the face of all this, the government began to formulate the execution policy and while this was developing a new trend became apparent. There began a covert campaign of kidnap and murder of men suspected or believed to be involved in the anti-Treaty cause. A review of inquests in the Dublin area alone shows that during the civil war thirteen suspected anti-Treaty men were kidnapped from their homes or workplaces and shot dead.21 There were ten other cases where the evidence showed that prisoners were shot after surrender or while in custody.22 These killings, never publicly disavowed by any government minister until the war was all but won, became part of the process by which victory was achieved.

      One of the responses by the anti-Treaty side was a concerted legal challenge to the killing of prisoners. This could not be effected through the Dáil as it had been adjourned and when it finally reconvened it was boycotted by the anti-Treaty deputies. The press was heavily censored and so the focus of the challenge became the inquest system, which began with the inquest into the death of Cathal Brugha who was shot down at the end of the Four Courts siege. He had already surrendered some said, but the coroner declined to allow witnesses to be brought to court.23 A few weeks later, Harry Boland, another anti-Treaty deputy was killed.24 Here again, the coroner refused to allow evidence to be called to show Boland had been killed after capture.

      A series of inquests into the deaths of anti-Treaty fighters killed in custody followed. Usually there was no one left to tell the tale to the inquest jury, but in a handful of cases there was evidence of state involvement. The Yellow Lanes affair concerned the kidnap and shooting of two unarmed youths in broad daylight. One of the killers wore a National Army uniform and the case caused profound embarrassment to the government. Another inquest concerned Patrick Mannion who was shot dead near Mount Street Bridge by a National Army patrol, but the evidence at the inquest showed that he was unarmed and in custody when he was shot. The jury returned a verdict of ‘wilful murder by National Army soldiers’.25 Journalists had their notebooks confiscated by plain-clothes men after the hearing and The Irish Times published a short report recording the verdict of ‘wilful murder by men in uniform’ and said little else.

      In response to a letter of protest written by Count Plunkett, The Irish Times conceded the report had been ‘summarised by order of the government censor’.26 President Cosgrave told the Dáil the next day that the censor had intervened because the evidence was untrue and there the matter rested. What was done in Dublin was more easily done in isolated districts. Anti-Treaty prisoners in the custody of the National Army became particularly vulnerable. Three prisoners were killed in Kerry, six in Sligo, three in Cork and one each in Limerick, Tipperary and Mayo.27 It is likely that there were many more, but usually there was no one left to recount what took place apart from the national soldiers who had fired the fatal shots.

      One prisoner was Tim Kennefick from Coachford.28 He was one of the many anti-Treaty fighters captured in early September as the National Army swarmed around Cork. The inquest jury viewed the body in the usual way and heard evidence that Kennefick was captured, badly beaten, shot in the head and dumped in

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