LITMIR.BIZ

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and no one dissented.

      August became the month of ambushes. The anti-Treaty fighters were still well organised and not at all short of ammunition and the National Army suffered fifty-eight killed and many more wounded. A significant number of casualties were high-ranking National Army officers. Among these was Colonel Frank Thornton who led a convoy out into Tipperary to make contact with the enemy with a view to negotiating a peace. Thornton’s convoy was ambushed and only he survived, gravely wounded. His brother, Colonel Hugh Thornton, died at Clonakilty and Michael Collins was killed at Béal na mBláth and the attackers once again disappeared into the hinterland.

      After the death of Collins, General Richard Mulcahy became commander in chief and was immediately under pressure from his generals to permit the execution of captured anti-Treaty fighters. In Cork, Major General Dalton was sustaining heavy casualties and wrote to Mulcahy at GHQ asking for permission ‘to shoot without trial men caught in possession of arms’.7 The request was echoed by General O’Duffy in Limerick. Permission was refused, but events were boiling over and the first execution by firing squad soon went ahead. National Army Private ‘Barney’ Winsley was a chimney sweep from Cork. After a spell in the British Army, he came back to Cork and ended up in the National Army: semi-literate, still living on his wits and the only breadwinner for his widowed mother. Like other National Army men in Cork, he was selling guns to the anti-Treaty forces and he was singled out for court martial. Major General Emmet Dalton had him shot by firing squad and that put an end to selling guns to the anti-Treaty faction, in Cork at least. Commander in Chief General Mulcahy was informed and replied: ‘I approve’. All the while, however, there was the continuing guerrilla action and a tide of gunpoint robberies. On the Executive Council all ministers had now come round to the view that executions were necessary, but the final straw was unexpected and mundane: the economy.

      The Economic Crisis

      The strategy of the anti-Treaty faction had begun to morph into making the country ungovernable and seizing a republic from the wreckage. That policy was pursued by guerrilla action and also by degrading the transport and communications infrastructure: roads were trenched, bridges and railway lines torn up and engines destroyed. Telephone wires were cut and as soon as they were fixed cut again. The big houses were burned out and the old ascendancy was forced out of the country by degrees and their money went with them.8 The provisional government had been warned months before by Churchill, the minister in England with responsibility for implementing the Treaty: ‘Capital is taking flight.’9

      People were taking flight also: the protestant exodus in 1920–2 had damaged the country financially and young people were still leaving Ireland as they always did when times were hard.10 Economic migration was damaging the new state. The turning point in this growing crisis came in September when the institutions of the state began to pull in the same direction. In a habeas corpus motion brought by one of the thousands of anti-Treaty prisoners the High Court upheld internment during the emergency.11 From the pulpits, the bishops put out a strong message that had the approval of the government: ‘stay and live in the land of your birth and work for the good of the country’.12 Cosgrave’s big cabinet shuffle and his address to the Dáil promised decisive action: ‘life and property must be respected and the laws of the country must be obeyed.’

      Cosgrave had financial experience as a minister for local government in the recent war and balancing the books quickly became the central plank of government policy. In his budget statement he told the deputies that revenue from taxes stood at £27 million but projected expenditure was £40 million. He attempted to calm speculation by adding that there was ‘no immediate cause for concern’. Cosgrave was rather understating the position; he was one of a number of cabinet ministers not drawing pay. In Ireland, agriculture was the main source of revenue, but the country lacked any significant mineral resources and industry, fishing, forestry and tourism were all at an embryonic stage of development. There was also a growing urban population to sustain.

      Unlike established states elsewhere, this new Ireland had no gold reserves, assets or bonds to fall back on in bad times. The provisional government was operating on a loan from Westminster that was fast running out because of the cost of fighting the war. In that year, the army bill exceeded seven million pounds: one quarter of government revenue. That figure would continue to rise sharply the following year.13 The army and public-sector wage bill had to be paid or the new state would simply unravel. Everything depended on people paying taxes and doing so promptly. The anti-Treaty faction was alive to this weakness and would soon begin to try and drive the government into bankruptcy.

      It was at this stage that the two prongs of government policy emerged. First, to rid the country of arms and second, to build the confidence of the business community. The financial cost of anti-Treaty action continued to grow: theft, damage and arson were becoming a heavy burden.14 Cosgrave recognised that these claims had to be paid by his government or the business community might take their investment capital elsewhere. To meet this, the provisional government let it be known that compensation would be paid for damage occasioned by anti-Treaty action and an official announcement to this effect soon followed.15

      The concept of a failed state is a modern one and remained unarticulated at that time, but this was the fear driving events: that the state would become bankrupt, ungovernable and would be plunged into chaos and that Britain might once again send in the troops. It was then, and in these circumstances, that the provisional government drew up plans to allow the army to use military courts to try prisoners captured in arms and carry out executions. These proposals were set out in the Army (Special Powers) Resolution in late September 1922.

      The Army (Special Powers) Resolution

      The Army (Special Powers) Resolution has been variously described as the Emergency Powers Act,16 ‘legislation’,17 ‘legally dubious’,18 or as the Public Safety Bill.19 It was none of these things. It had no legal standing and was simply a resolution passed by the Dáil. When the provisional government decided to take this drastic step a fundamental question arose: was there power to legislate before the Free State was brought into being in December? In the Dáil there was some muddled discussion on the legal position and eventually the Attorney General Hugh Kennedy advised the provisional government that the Anglo-Irish Treaty provided a legal power to legislate.

      A further difficulty quickly emerged. The problem was that legislation required the consent of the King which would in practice be given by the governor general. However, the provisional government was not yet able to create the new state, not least because the Irish Constitution was still a work in progress and a governor general had not yet been appointed. Hugh Kennedy wrote a supplemental opinion the same day and advised that, pending the creation of the Free State, legislation would require the personal consent of the King.20 Kennedy anticipated the British government would object to legislation passed without royal assent and added ‘this question may give rise to much difficulty’.

      The provisional government saw the difficulty of legislating very differently. To seek the personal consent of an English king to execute anti-Treaty prisoners was not a step they were comfortable with and it would have played into the hands of the other side. It might also have been a step too far for many pro-Treaty deputies.21 On 25 September, the cabinet met to discuss the draft proclamation creating military courts. As was so often the case, the minutes do not disclose what was said, but the law officers were asked to attend and the subject matter of the discussion may be inferred. The result of the discussions was soon made known: ‘We will not ask for royal assent.’ It was made to sound like a grand statement of principle, but the reality was the government chose not to legislate to create military courts because of political embarrassment. Instead, it was decided that the Dáil would simply pass a resolution asking that the National Army take steps to bring the emergency to an end.

      Supporters of the provisional government were able to argue that it had simply taken a leaf out of British colonial jurisprudence where, in times gone by, rebellion might be overcome by bringing in the army. At this juncture in Ireland, the argument ran, the institutions of the state were not able to curb widespread and serious disorder and there was no choice but to call in the army. The weakness of this argument was that the provisional government had the opportunity of passing legislation but chose not to do so. Going ahead on the basis of resolution alone would expose

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