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 the government and its supporters to the risk of prosecution after the war, but a pragmatic solution soon emerged: an act of indemnity would be passed after the crisis. Such a statute would not render lawful that which was unlawful, but it would provide a bar against any prosecution or litigation arising out of the war. The Army (Special Powers) Resolution invited the National Army to set up military courts and committees to try offenders for attacking the National Army, possession of arms or explosives, arson and destruction of property and looting.
The pro-Treaty deputies had been briefed in private before the debate and some were not enthusiastic, but the provisional government’s task was made easier because half of all the elected deputies were not present at this crucial debate. Three anti-Treaty deputies were already dead: Boland and Brugha and Seamus Devins had been killed on Benbulben. An order had been issued for the arrest of anti-Treaty deputies who had taken up arms and two of them were now in custody.22 One more had been expelled for suggesting the assembly was an illegal body that had usurped the authority of the Dáil.23 This line of thinking had led de Valera to pursue an abstentionist policy and in any event the rest of the anti-Treaty deputies were out leading the fighting against the provisional government. By this series of events the provisional government had found itself with a complete grip on the levers of power.
The brunt of the argument in the Dáil was carried by Mulcahy who was now commander in chief and minister of defence. Mulcahy told the Dáil that the destruction of bridges, roads and the rail network in the south and west was choking the life out of the country. There was no machinery of justice to deal with the Irregulars and while the government established itself, the army needed to ‘stand in the gap’. Internment of prisoners was not a sufficient deterrent: ‘Life must be taken, if necessary and it is the responsibility of the government to say that it must be taken.’
Mulcahy also raised a fresh argument: that his soldiers out in the field were constantly exposed to ambush and did not regard internment of prisoners as a sufficient response to inflicting casualties on the army. He cited two examples: one near Ballina where a Free State officer had struggled to prevent his men shooting prisoners who had laughed at the sight of a dead National Army soldier; the second, the Macroom landmine explosion that had claimed the lives of seven soldiers. The Dublin Guard had responded by killing a prisoner. The argument advanced by Mulcahy can be simply stated: our troops must know that we will execute where necessary or they will do so themselves.
Opposition to the measure was led by Tom Johnson, leader of the Labour Party, who favoured open justice carried out by criminal courts, although it was probably unrealistic to suggest that juries would convict in such cases. Gavan Duffy also opposed the measure. He had defended military court trials under British rule and there had been many executions and he perhaps foresaw where all this might end up. He may also have had an eye on the wider picture. Europe was riven with small civil wars and the many atrocities that had been committed had caused the Red Cross to stipulate that captured fighters should be accorded prisoner-of-war status.24 There was no support for these alternatives, but some amendments on matters of detail were made and after an acrimonious debate and an overnight adjournment, the Resolution was passed by 47 votes to 15. The judge advocate general had been finishing the regulations governing the trial by court martial of National Army soldiers. Even before the vote in the Dáil, he was asked to produce regulations to govern the summary trial of prisoners as a matter of urgency.25
The government signed off the military courts proclamation in early October and at the same meeting despatched a formal request to the bishops to intervene to halt ‘the low moral standard prevailing throughout the country’.26 There can be no doubt that the support of the Catholic Church had been canvassed in advance. The pressure on the government was mounting in other ways that may not have been obvious. Cosgrave’s uncle was shot dead in a raid on his grocery shop: just one of a wave of revolver point robberies blighting the country. An attempt was made to storm General Mulcahy’s home in Rathmines: a grenade was thrown and a shoot-out followed before the raiding party was driven off, but the press rather unhelpfully published Mulcahy’s address. The war was getting closer to home.
Preparations for military courts and firing squads were finalised and the National Army published a proclamation announcing the setting up of military courts with power to inflict the death penalty for ‘proclaimed offences’ committed on or after 15 October.27 A second proclamation offered an amnesty to all those who surrendered arms and gave up the fight by the cut-off date. These proclamations went up on walls and fence posts all over the country. The support sought from the
