Changed utterly: Easter 1916 and the law

By spring 1916, wartime had become the norm for the legal world. Chancery Lane outfitter Ede, Son and Ravenscroft was advertising KHAKI OUTFITS (sic) alongside its usual lines of wigs and gowns. The London Guarantee and Accident Co of 22 Lincoln's Inn Fields offered a policy against 'death or injury directly caused by Aircraft, Bombs &c' for five shillings for six months' cover – or 10 shillings for the duration. (With hindsight, a better deal.)

And the Roll of Honour in the Law Society's Gazette recorded the monthly toll of solicitors and articled clerks killed on active service; 10 in April, a quiet month on the western front. 

Lawyers with an interest in the Irish corner of the UK might have noted an announcement in the London Gazette in March confirming that the implementation of the Government of Ireland Act 1914 had been postponed for the duration. The long-running Irish question, it seemed, was on hold. 

But in its edition of 6 May, the Solicitors' Journal and Weekly Reporter revealed: ‘The Irish Law Courts and the Four Courts Library were in possession of the rebels during the recent short-lived revolt and according to the earlier reports the library suffered severely, but we hope it will be found that these were exaggerated.’

This seems to have been the legal press's first notice of the Easter Rising, which had begun on 24 April and the centenary of which will be marked in Dublin and elsewhere this weekend. The law courts were among the first buildings seized by the rebels and retaken after an intense fire-fight across the Liffey. 

The rising put Ireland back on the legal agenda, and not just because of damage to a law library. On 28 April a proclamation was published suspending the right of civil trial in Ireland under the Defence of the Realm acts. The first field general court martials sat on 2 May and the firing squads began their work at Kilmainham Prison the following morning.

With commendable promptness the Journal's 13 May edition raised the question of whether justice was being done. An article entitled Rebellions in Ireland backed pleas for clemency, saying: 'Thirteen executions for civil rebellion under sentences of martial law are a phenomenon long unknown to British history.’ (In fact two more Easter rebels to be executed, James Connelly and Seán MacDiarmada had been shot on 12 May, presumably after the weekly went to press, bringing the total to 15.)

The article noted that two Canadian rebellions in the previous century were suppressed with only one execution in each case, that of the rebel leader. ‘Even the Young Ireland Insurrection of 1848, which followed on the continental revolutions of that year, was put down without one single execution.' 

To find a precedent for the 1916 executions, the Journal said, it was necessary to go back to the eighteenth century. ‘In 1798, as in 1916, the Irish rebels acted more or less in concert with with foreign enemies, then the French and now the Germans. This explains, and to some extent justifies, the extreme severity employed. It should be pointed out that in 1798, so soon as the rebels were actually defeated, the Lord Lieutenant, Cornwallis, who held both the civil and military power, at once abolished martial law and brought the prisoners before civil courts.'

It concluded: 'There seems no reason why the precedent of Lord Cornwallis should not now be followed.’

On 20 May the Journal printed a defence of the executions by General John 'Conky' Maxwell, who had hastily been appointed military governor of Ireland. Saying that the trials by court martial were 'practically finished' Maxwell justified the death sentences 'in view of the gravity of the rebellion and its connection with German intrigue propaganda‘.

On the same page a letter from Belfast-born barrister and Liberal peer Viscount Bryce (1838-1922) said that while 'a few of those most responsible for this mad outbreak in Dublin’ should be punished, ‘this once done, a large and generous clemency is the course recommended by wisdom as well as by pity.’

Such calls did not go unheeded. A century on, it is striking how quickly the sentences on the Easter rebels declined in severity. An example was the difference in treatment to the Kent brothers, Cork rebels convicted of the murder of a police officer. Thomas Kent, tried immediately by field general court martial, was shot on 9 May. David Kent, who was wounded and tried a few weeks later, was jailed for five years for an offence that would have merited the rope anywhere else in the UK.

The interned rebels, including such figures as Michael Collins as well as innocents caught in the police trawl, were amnestied the following year, albeit after some harsh treatment.

But in the meantime, there was one final legal drama of the Easter rising: the treason trial of internationally renowned human rights activist (though the term is anachronistic) and patriot Roger Casement. On 13 May the Solicitors' Journal predicted that the trial, ‘which by law must be in open court,’ would be conducted with procedure 'identical with that in the Lynch case in 1903'. This was a reference to Arthur Lynch, an Irishman convicted of fighting with the Boers. However Lynch's death sentence was immediately commuted to life imprisonment and he was pardoned in 1907: Casement would be hanged in August, the 16th execution of the rising.  

Even before the final act, the trial aroused some misgivings. On 3 June an article commented: ‘The archaic nature of our criminal procedure was illustrated in a striking manner last week when, after the grand jury of Middlesex found a true bill of high treason against Sir Roger Casement and his co-defendant, the Lord Chief Justice was invited to nominate on behalf of the prisoners a solicitor and two counsel.’

One anomaly in the proceedings, the court's decision to allow Casement allowed to make a second speech after the jury had found him guilty, also attracted fierce debate.

But on 15 July the Journal printed a letter from from barrister Sir Harry Poland, who said that after observing criminals trials since 1848: 'I should like to add that there is but one opinion as to the dignity, patience and balance with which the trial was conducted both by the judges and the counsel, certainly worthy of the best traditions of the administration of justice in England.’

That was obviously an establishment view. But, notwithstanding the government's dunderheaded and counterproductive failure to commute the sentence, the transcript of Casement's trial and appeal suggests he was given a fair hearing in the circumstances. Certainly fairer than the almost exactly contemporaneous treatment meted out by the Austro-Hungarian empire to Italian irredentists who took up arms with the allies. However Maxwell's field general court martials, held in camera between 2 and 17 May, stand up less well to international scrutiny.

Prime Minister Asquith's later claim that the authority of the Defence of the Realm Act amounted to due process was not widely accepted even at the time. Apart from the haste and secrecy and lack of legal representation, there was the fact that the act prescribed the death penalty only for offences committed 'with the intention and for the purpose of assisting the enemy'. No evidence of intention of to assist Germany was produced in the trials, except in the case of Pádraic Pearse, who quite possibly fabricated it in his quest for martyrdom. 

But the past is famously a foreign country and summer 1916 was one in which violent death was omnipresent. The August edition of the Law Society's Gazette recorded the opening of the Battle of the Somme with a Roll of Honour which filled more than three pages. And on 23 September the Solicitors' Journal reported the death in the battle of two notable barristers who had volunteered for the war: Raymond Asquith and Thomas Kettle. One was the eldest son of the prime minister, the other a leading Irish nationalist politician. Both were in British uniform.

* Further reading: Easter Rising 1916: The Trials by Seán Enright (Irish Academic Press) is an authoritative and highly readable study by a senior lawyer. Contemporary copies of the Gazette and the Solicitors' Journal can be consulted at the Law Society Library. A transcript of the trial and appeal of Roger Casement is at https://archive.org/stream/trialofsirrogerc00caseuoft/trialofsirrogerc00caseuoft_djvu.txt 

 Michael Cross is Gazette news editor