Letter was read out in every Catholic church in the country. The bishops framed their approach on the footing that the provisional government had won the elections decisively and called on their congregation to back that decision. They condemned those who fought against the government as ‘guilty of grievous sins, which may not be absolved in confession if they persist’ and denounced the killing of national soldiers as ‘murder before God’.28
Regulations for trial were signed off by the judge advocate general. Three army officers would be assembled to carry out summary trials of prisoners for attacking national forces, looting or possession of arms and other specified offences.29 The criminal courts would continue to sit, but in respect of ‘proclaimed offences’, would give up their jurisdiction to military courts.30 Prisoners’ rights were few. No prisoner could be tried within forty-eight hours of capture. The prisoner was entitled to see a charge sheet and summary of evidence no later than twenty-four hours before trial. The regulations stated prisoners could have the services of a lawyer but were silent on the issue of who paid. The core of the legal team headed by Cahir Davitt began to live in at army HQ at Portobello barracks in Dublin and there was a last-minute rush to recruit lawyers to ensure that every army command had a legal officer to oversee the trials.
CHAPTER 4
Military Courts and the
First Executions
The first execution took place only a few days later and it was entirely unauthorised. It happened at the end of October in Ballyheigue, a single-street village on the edge of Kerry’s Atlantic coast. On the hill overlooking the village stood the burned-out ruins of the Crosbie castle and a little further inland the square tower of the church of Saint James and its small graveyard filled with mausoleums and stone crosses where no one lingered long. There had been intense fighting in Ballyheigue parish for some days and the anti-Treaty fighters had been driven off by the First Western Division of the National Army. During the retreat two shotguns had been left hidden in the graveyard. That evening Jack Lawlor and another man came back under cover of darkness to retrieve the firearms. Lawlor was then aged 21, a big solid young man, a farm labourer, who lived with his widowed mother on the headland. When the split came many young men from the parish had gone with the anti-Treaty faction and Lawlor had been one of them.
Lawlor and his companion were seen and fired on by a National Army patrol. Both were captured but escaped in the darkness and the maze of mausoleums. Lawlor was wounded in the arm and both were soon recaptured. He was tried that night at McCarthy’s shop where the National Army had established their base in the village. The trial, if it can be called that, was presided over by Colonel Commandant Michael Hogan from the First Western Division. Lawlor was sentenced to death.1 The National Army had no barracks in Ballyheigue and so Lawlor was held overnight in the old RIC station which was just a small terraced house with a cell built onto the rear. In the morning he was taken up to the graveyard on the hillside and shot in plain sight of the village. Lawlor’s body was left where he fell and a messenger was sent to tell his mother.2 This trial was not authorised by GHQ and the rudimentary safeguards laid down in the regulations were not followed.3 The officially sanctioned trials by military court began on 3 November and in Dublin and Kerry military courts convened at once.
In Kerry, a National Army raid netted another arms find and two more prisoners: Patrick O’Connor from Causeway and Patrick Joseph O’Halloran from Ballyheigue.4 They were tried and convicted and went back into custody while sentence was considered. In Donegal, a few days after military courts were brought in, a National Army raid had resulted in the arrest of two unlikely prisoners. The first was a formidable widow farmer, 53-year-old Catherine Johnstone from Letterkenny. She was charged with possession of bombs, detonators, ammunition and part of a stolen wireless. Her 21-year-old daughter Georgie was charged with possession of an automatic pistol. The widow Johnstone was wealthy and immediately instructed her solicitor to challenge the legality of the military courts by writs of habeas corpus and the case stalled while the lawyers prepared their case.
By mid-November only twelve cases had been tried, all for possession of arms and only a single conviction had been confirmed: twelve months hard labour was ordered.5 The Executive Council had been pressing for executions, but the Army Council delayed for many days and the sequence of events suggests that the Council had already settled on four young men who had not yet been tried. A prisoner at Wellington barracks later wrote that the young men were brought out of their cells, tried and executed the same night.6 It was not so, but the facts are only a little less grim. On 8 November, these four young men were each tried by military court at Wellington barracks for the unauthorised possession of revolvers.7 The evidence showed that each had been found in possession of a loaded revolver in a Dublin street. Their trials by military court were held in secret and lasted only minutes and all were sentenced to death. The prisoners were Dubliners: James Fisher, John Gaffney, Richard Twohig and Peter Cassidy. The oldest, Cassidy, was 21 and the youngest was 18. They were shot by firing squad on 17 November.
There were many prisoners in custody who might have been singled out for execution and the question is: why this four? It was their misfortune to be captured when the Executive Council was pressing General Mulcahy to commence the execution policy. A more important factor was that these men were suspected of taking part in an attack on Oriel House which was the headquarters of the counter insurgency operation in Dublin. The Criminal Investigation Department at Oriel House had been set up to combat the wave of armed robberies. That was a misnomer if there ever was one because it was swiftly redirected to counter the anti-Treaty forces and later amalgamated with another semi-vigilante outfit – the Citizens Defence Force. Oriel House quickly acquired a reputation for torturing and killing prisoners and for these reasons the anti-Treaty forces launched a series of attacks on the building. It was not an easy target: a substantial four-storey terrace on the corner of Westland Row and every assault was fought off.
The fighting in Dublin was now reaching a new pitch. Ernie O’Malley, the anti-Treaty deputy chief of staff had been operating from a concealed compartment built onto the bedroom of a house in the suburbs. During a raid on the house, his hiding place was found. He fired through the door and in the frenetic shoot out that followed one of the ladies in the house was wounded and a National Army soldier killed. O’Malley got out of the house, firing a rifle from his hip as he crossed the lawn and here he was shot down. A National Army soldier who tried to finish him off had his gun knocked away by another soldier. There were many attacks on the National Army that week; at Wellington barracks troops on parade were fired on from the rooftops on the other side of the canal. One National Army soldier was killed and seventeen wounded. The firing went on for some minutes and was watched by anti-Treaty prisoners from their cells overlooking the parade ground. As the attackers made off, some of the men on parade turned their guns on the prisoners.8
The following night there were attacks on both Portobello and Wellington barracks. At Portobello, the army legal team were playing poker and there was a scramble as they rushed to grab their guns and get out into the barrack square where one of the lawyers tripped and fell into barbed wire. He was the only casualty inside the barracks. The streets resounded to the rattle of Lewis machine guns and it was described in the papers as ‘twenty minutes of din’ although it was rather more than that: two civilians were killed. This was the developing context of the fight in Dublin, but it seems that Oriel House was the big issue.
Kevin O’Higgins was the minister with responsibility for that unit. The day after the attack on Oriel House he assured deputies that action was being taken, confirming ‘I have reports from Oriel House and the DMP and the Military … The situation was well in hand,’ he said and invited deputies to a private briefing. Ostensibly, no one was ever charged with the attack on Oriel House, but the provisional government issued a directive to General Mulcahy to bring the suspects to trial immediately.9 This directive has some significance because the trial regulations put control of the military courts entirely in the hands of the army, but it suggests that the usual separation of powers between those who tried criminal cases and the Executive had evaporated. The only delay was occasioned by the absence of the main witness who
