fighters and did a deal: in exchange for getting him out of Ireland he would hand over the Slievenamon. When the time came, he drove the Slievenamon out of Bandon barracks and delivered it to anti-Treaty fighters. McPeake was forgotten while the National Army tried to recover the armoured car.
The fate of the Slievenamon became tangled up in myth and legend. According to the judge advocate general (JAG) a team of officers from General Headquarters (GHQ) went down to Cork and quickly recaptured the armoured car and brought it back to Portobello barracks where they held a party in the officers’ mess. Late that night, as the party was winding up, a gun was discharged and Bob, one of the mess orderlies was mortally wounded. The barracks chaplain rushed in still in dressing gown and pyjamas and was about to administer the last rites when Bob spoke his last words: ‘Tell Father Concannon to go and fuck himself. I’m a protestant.’
The account about Father Concannon is entirely true, but in fact more than one armoured car was captured during the war and the JAG seems to have mixed them up. The real story is that the Slievenamon was brought into action against the National Army again and again with telling effect.2 Eventually, riddled with punctures and lacking spare parts, it was driven into the furze where it gathered rust.
Jock McPeake hid out in the hills and took no further part in the war. In the summer of 1923 he escaped to Scotland in the hold of a cattle boat. After the civil war was over and at the request of the Free State government, he was deported back to Ireland on a charge of larceny of the Slievenamon. McPeake appeared before the District Court in Cork. A slim young man in a blue suit, he gripped the rail of the dock and looked about for a friendly face as the district judge remanded him for seven days. When he next appeared before the court, he had acquired a young and quite inexperienced solicitor.3
State Prosecutor Captain Healy told the court that the witnesses were all soldiers and could not be traced and the state wanted to drop the case. McPeake’s solicitor informed the district judge that his client would plead guilty. ‘No,’ said the state prosecutor, ‘we are dropping the case.’ McPeake’s solicitor again urged the court to adjourn so the witnesses could be found and his client enter a guilty plea. The state prosecutor refused: ‘We are not proceeding with the case. We cannot.’ McPeake’s solicitor insisted that the witnesses should be traced and that the case be adjourned to allow this to happen. District Judge Kelly was increasingly perplexed and turned to McPeake’s solicitor: ‘I don’t see how your client can suffer by not being prosecuted.’
The lawyers did not enlighten him, but McPeake’s fears were that his deportation for larceny was a ruse by the National Army to bring him into the jurisdiction in order to try him for treachery. In the autumn of the year before, dozens of National Army soldiers had deserted and gone over to the other side. Most had taken as many rifles and ammunition as they could carry, but McPeake had gone a step further and taken an armoured car which had been used in action against the National Army. Most of the deserters were never traced, but at least one was killed fighting for the other side.4 Some were recaptured but not identified and went off to internment camps. Six of the deserters were recognised and all were tried and executed. McPeake was reckoned to have done ‘immense damage’ to the government cause and he was now at risk of sharing their fate.5
McPeake was released by the district judge and set off to catch a ferry back to Scotland, but as he came down the steps of the court with his supporters he was arrested by a squad of National Army soldiers who had been lying in wait. Jock McPeake was taken to the barracks, a charge of treachery was laid against him and preparations for a trial by a military court began. His brother Frank, who had come over from Scotland to help him, was also picked up and held without charge. In a letter smuggled out of Keogh barracks some days later, the brother wrote that he had been badly beaten and was in fear for his life. McPeake’s solicitor retained Michael Comyn, KC. A small wiry man with a black handlebar moustache, he had used his skills to challenge the legality of all that the Free State government had done during the war. Comyn sought a writ of habeas corpus at the High Court in Dublin.6
McPeake’s case came before the only judge on duty during the long vacation; it happened to be Chief Justice Molony. In argument, Comyn accepted that on the face of the papers the deportation of McPeake for larceny was legal, but there was a more sinister dimension.7 He argued that the charge of larceny had been used as a pretext to bring McPeake into the jurisdiction to allow the National Army to bring the charge of treachery and try him by military court. He could never have been deported to Ireland for treachery, Comyn argued. This was because McPeake deserted before the creation of the Irish Free State on 6 December 1922. Before that date the new state was not a legal entity and nor was the National Army. How, argued Comyn, could a prisoner be charged with treachery to an organisation that had never been an entity recognised by law?
Comyn’s more fundamental argument was that the civil war was over and the power of the army to try civilians by military court had evaporated. In this respect, Comyn had correctly stated the law, but as a matter of fact trials by military court were still continuing.8 He posed the question: was Ireland governed by the rule of law or the army? This was a question being asked by many. As the civil war had taken hold, the army had gradually become the most powerful institution in the country. In the Dáil, Kevin O’Higgins and many other deputies wanted to curb the power of the army and reassert the authority of the democratically elected government. Tension between ministers and General Mulcahy the commander in chief of the National Army had been an enduring issue throughout the civil war and culminated in Mulcahy and his staff submitting their resignations.9 Their resignations were not accepted and they remained in post, subject to increased oversight by the cabinet.
Subsequent events suggest that Chief Justice Molony also had an agenda: to reassert the rule of law. Molony had steered the law through some difficult years when the authority of the courts had been usurped by the British Army, the Irish Volunteers and then the National Army during the civil war. In the summer of 1923, there were about 13,000 prisoners interned without trial in Ireland. Most were captured anti-Treaty fighters or those suspected of involvement in the anti-Treaty cause. Over 100 more had been unlawfully deported from England, but it was only a ruling of the House of Lords not the Irish Courts that resulted in them being set at liberty.10 There were quite a number of other prisoners still in custody for no reason that would withstand scrutiny.11 In June, anti-Treaty prisoners brought a series of habeas corpus actions against the army, arguing that the war was over and there was no longer any lawful power to hold them. In each case, the courts had accepted the argument put forward by the army: the country was at war and according to case law, the courts could not intervene durrante bello. But the civil war had fizzled out and McPeake’s habeas corpus writ had exposed the tensions within government: the politicians wanted control, but the army seemed not ready to give up power. The minister for home affairs, the leading critic of the army, still needed a few more days grace to put in place emergency legislation legalising internment and the Dáil was sitting overnight on the Bill. McPeake’s case threatened to unravel the fragile status quo. Chief Justice Molony issued a conditional writ and the case was adjourned for both sides to be represented.
At the full hearing, Attorney General Hugh Kennedy, KC, appeared for the state and told the court it had all been a misunderstanding: the witnesses had been found and were now all available. McPeake was no longer in army custody; he was back in a prison run by the civil authorities and was to be sent for trial by jury on a charge of larceny.12 The attorney general had avoided or at least delayed the great constitutional issue and the government had found some breathing space to get emergency legislation through the Dáil that would legitimise the internment of thousands of prisoners then in custody. The circumstances of McPeake’s case hinted at unrecorded high-level discussions to avoid a habeas corpus ruling that might come before the government were ready. The application for a writ was withdrawn, but Chief Justice Molony awarded substantial costs against General Mulcahy – a slap on the wrist for the generals.13
It was in these circumstances that McPeake passed out of the control of the army and back into the hands of the civil authorities and was sent for trial before the courts of justice. The charge
