In late October he was moved up from Cork prison to Mountjoy. McPeake’s case was still a sensitive political issue and by order of the minister for home affairs the prison guard was reinforced by a convoy of soldiers. From Mountjoy he was brought to trial for the theft of the Slievenamon at the Green Street courthouse – the graceful neo-classical building that had seen so many of the most important criminal trials in the preceding century. Chief Justice Molony again presided.
There is no doubt that McPeake stole the Slievenamon, but like many criminal trials, what was true and what could be proved were two different things: the evidence in support of the charge was not overwhelming. While McPeake debated with his counsel the decision to fight or plead, events took another twist. McPeake confided in his counsel, Michael Comyn, that he was gravely worried about the emerging rumour that he killed Michael Collins.14 The known facts were that at Béal na mBláth his Lewis gun had kept the anti-Treaty fighters’ heads down, but then it had jammed and could not be fixed again that day. The rumours about McPeake focussed on his antecedents: he was Scottish not Irish and he had previously served in the British Army. All these factors and his subsequent desertion with his armoured car had fuelled suspicions he had some involvement in the death of Michael Collins. Jock the Giant Killer was a nickname being bandied around by those who knew no better.15
‘There is no such charge against you,’ said Comyn. McPeake’s fears about the danger to him were well grounded. The bodies of anti-Treaty supporters had been turning up around Dublin for many months: kidnapped, shot in the back of the head and dumped in quiet locations. The last was Noel Lemass, whose remains had been found in the Featherbed Mountains only ten days before. The inquest, which was widely reported, heard evidence that he had been kidnapped and killed by clandestine supporters of the government. The coroner said his body bore signs of torture that would ‘shame the most primitive savage’.16
All this must have been in McPeake’s mind; heightened by the knowledge that prosecuting counsel in his case was attended by a bevy of army officers who suspected him of involvement in the death of their old commander in chief. Collins had suffered a gaping wound to his head which could have been caused by a handgun fired at close range. The army officers asked defence counsel: ‘What about his revolver?’
Counsel went back down to the cells and relayed this to his client. McPeake agreed revolvers were standard issue, ‘But I had no revolver.’ This explanation was relayed to the army officers but did not satisfy them. Comyn went back down to the cells for another conference and advised McPeake that he might be acquitted but ‘killed before nightfall’. Michael Comyn advised McPeake that prison was the safest option and he came up from the cells before Chief Justice Molony and pleaded guilty. The sentence was six years and McPeake went to prison.17
Over the preceding twelve months the government had delegated the suppression of the anti-Treaty faction to the National Army. The army brought in military courts to bring about the executions of people found in arms. Nearly 1,200 men were tried by the military courts and committees, of these over 400 were sentenced to death. Eighty-three prisoners were shot by firing squad during the civil war.18 Over 125 more were killed in the custody of the state: kidnapped and shot; shot after surrender; shot under interrogation; or tied to landmines and blown up. These men were killed because they were anti-Treaty fighters or because they were suspected of involvement or just being in sympathy. McPeake only narrowly avoided their fate.
During the civil war, the rule of law had just fallen by the wayside. To understand how it all came about it is necessary to wind the clock back twelve months.
CHAPTER 2
A State in Chaos
‘We have no army, we have only an armed mob,’ said Michael Collins, speaking just after the siege of the Four Courts.1 Dozens of republican prisoners captured at the Four Courts had been allowed to escape from Portobello barracks by National Army men assigned to guard them. The doors of the holding area were left open and prisoners just swarmed over the barracks’ walls and disappeared into the night.
Lack of discipline in the National Army had become a major issue; desertion and drunkenness were rife.2 Some units were well run, but in many battalions officers went drinking with their men, making control of troops all but impossible. In Limerick, there were reports of sentries falling drunk at their posts and in Clonmel soldiers potted birds with handguns and leered intimidatingly at passersby on street corners. In the months that followed, National Army soldiers would commit an astonishing number of criminal offences unrelated to the war.3
The cause of it all was that the National Army had been created in a tearing hurry. In the spring, the Irish Republican Army had parted company with the provisional government over the Treaty and this brought with it the first hint of civil war. To guard against this threat, the provisional government had created the National Army and many less than savoury men were recruited in the rush. ‘We have put guns in the hands of criminals,’ admitted Collins. Many other recruits had come from the British Army which was downsizing. Soldiers, demobbed in England, were brought over on the ferry and collected in lorries to be taken to Beggars Bush barracks and signed up.4 In the summer of 1922, the National Army was still taking shape: ill-disciplined and short of guns, ammunition, uniforms, boots and bedding. Poor diet and late pay fuelled discontent out in the west.5
Lack of uniforms, boots and ammunition hampered operations against the anti-Treaty faction. In County Leitrim, dissatisfaction about pay and supplies led to a collapse of morale and the surrender of an army barracks.6 At Riverstown in Sligo, dozens of National Army soldiers surrendered to a small anti-Treaty force. The defenders of the garrison were not inclined to fight ‘for those who do not care for us’.7 Discipline was one issue and divided loyalties were another: in Mayo and Cork National Army soldiers sold guns or just gave them over to anti-Treaty men. In Limerick, many soldiers ‘handed over arms wholesale to the enemy’.8 In Kerry, soldiers sold ammunition to anti-Treaty fighters: the going rate for a full bandolier was 12s/6d.
The critical point that Collins had recognised was that he could not create an army without a legal process to impose discipline by court martial.9 He hurriedly convened a meeting with a small group of men. One was a young lawyer, Cahir Davitt, son of the land leaguer. Davitt was then just 28 years old; he had established his ability by serving as a judge of the Dáil courts during the War of Independence. Also present was Gearoid O’Sullivan the adjutant general, who had been Collins’ right-hand man for some years.
Collins asked Davitt to become the first judge advocate general of the National Army to run the army legal department and oversee courts martial. ‘Get into uniform as soon as possible,’ said Collins. Davitt agreed to take the post and was given a small office at Portobello barracks.10 Realising he knew nothing whatsoever about military law, he went out and bought a copy of the British Army Manual of Military Law and began to read up with a view to creating a legal service from scratch. The military court system that he brought into being would soon be utilised to try anti-Treaty prisoners captured in arms.
There were more immediate pressing problems for the embryonic legal service. Out in the west the National Army had been carrying out policing functions and occasionally trying civilians and Cahir Davitt began to review their efforts. The first case involved a man who had stolen a pair of trousers. Had the trousers belonged to a common soldier it might have rested there, but the owner was a National Army colonel. The prisoner had been tried and sentenced to three years and twelve strokes of the ‘cat’ to be administered every three months. Davitt went off to see the adjutant general to point out the obvious: the army had no power to try civilians and the barbaric sentence was not a punishment known to law. It was a small victory for due process: the prisoner was released.
One Dublin case concerned an anti-Treaty spy. Suspicion arose that one of the civilian staff at National Army headquarters was passing information to the anti-Treaty forces and officers began to keep watch on James McGuinness from Offaly who had a brother fighting on the other side.11 McGuinness was given access
