he met his contact. Both were arrested and notes from the file were recovered from his contact who turned out to be an anti-Treaty intelligence officer. McGuinness was taken to Wellington barracks and got a beating from which he never fully recovered. As he rested up in hospital, he learned that he had more serious difficulties to face. An order was made for his trial by court martial and the sentence on conviction was death. An acrimonious argument followed between Davitt and O’Sullivan. Davitt, the new JAG, questioned the legality of what was taking place. O’Sullivan, the adjutant general, simply maintained the man was a spy and had to be shot.
Only a year earlier, before the Truce with Britain, the IRA had routinely court-martialled suspected spies. These were often hurried night-time affairs and the result was very often inevitable. The habits of the revolution were ingrained. The trial of James McGuinness went ahead and he was convicted and sentenced to death by firing squad. Davitt intervened again and pointed out that if the man were executed, then after the conflict was over, they might all face a murder charge. In this, he was speaking no more than the literal truth. The trial was not lawful and obeying orders would be no defence to a murder charge: the law was beyond doubt. O’Sullivan relented a shade: the sentence was commuted to life and the prisoner stayed inside until after the war.
This situation had come about because the country lacked a coherent justice system or even a police force worth the name. In the spring, the Royal Irish Constabulary (RIC) had been disbanded. The bulk of the British Army marched out and with them went the Black and Tans and the Auxiliaries. Dublin was still policed by the Dublin Metropolitan Police – a legacy of the outgoing British regime.
The new police force, the Civic Guard, was still undergoing training, which had become a turbulent process. One night Dublin city centre echoed to the sound of ‘terrific volleys’ and a government minister, fearing the worst, asked an old man what the firing was about. ‘It’s them Civic Guards,’ said the old man. ‘They were paid last night.’12 In the summer, the Civic Guard rebelled and chased their commanders out of camp and later handed over lorry loads of guns and ammunition to the anti-Treaty faction. In the weeks that followed, the Guards were disbanded and the process of starting a police force was begun again.
In the provinces, law and order of a sort was maintained by the two opposing armies that were already beginning to fight. The country was riven by crime – land grabs, stock driving and gun-point robbery for personal gain – often on the pretext of defending the Republic. There were also shootings of ex-RIC men, attacks on the homes of Unionists and murder of a more domestic hue.13
The justice system was more problematic because there were now two competing court structures. In Dublin, the courts established under British rule was still functioning but so also were the Dáil courts. Out in the provinces, the only remnant of the British justice system was the coroner’s jury. The remainder of the justice system had been substantially supplanted by the Dáil courts. This dual system was unsustainable and it all came to a head when the Four Courts siege was broken by an artillery bombardment by the National Army. One of the republican prisoners captured was George Plunkett, whose father, Count Plunkett brought an application for a writ of habeas corpus before a Dáil court. Judge Diarmuid Crowley issued the writ after hearing legal argument.14 The writ required the release of George Plunkett and if taken to a logical conclusion, all the hundreds of republican prisoners. Unsurprisingly, the prison governor declined to obey the writ and passed it to the National Army headquarters at Portobello. The status quo had changed very suddenly and the provisional government ordered Crowley’s arrest. Judge Crowley was picked up late at night by an army officer, ‘one of the intelligence crowd’. He was held at Wellington barracks and his abiding memory was the brutal interrogation of an anti-Treaty prisoner in the adjoining cell and the sound of mock executions.15 Crowley got out some weeks later but only after an intervention by Cahir Davitt.
The provisional government’s formal response to the habeas corpus writ was even more robust. They retained the British justice system in Dublin and abolished with immediate effect all the Dáil courts except for the parish and district courts in the provinces.16 Two more momentous events took place that summer. Arthur Griffith, president of the provisional government died suddenly. His health had been on the wane for some months and his death was keenly felt, but he was hardly a war leader and so the loss was managed. Twelve days later, Michael Collins was killed in an ambush and this was a critical event.17
Collins’ body was brought up by sea to Dublin’s North Wall, arriving long after midnight. In the darkness, the cabinet of the provisional government and many others stood in silence as the coffin was brought onto the quayside and loaded onto a horse-drawn carriage. The cortege crossed the city with just the sound of a piper, the rattle of the gun carriage and murmured prayers for the dead. A procession of ministers, soldiers and many others followed. The funeral took place later that week: huge silent crowds lined the streets for 6 miles on the road to Glasnevin cemetery. Collins had been the last pro-Treaty leader who had both the inclination and the ability to forge a peace.
After the deaths of Griffith and Collins, William Cosgrave emerged as the new head of the provisional government. A quietly spoken man of slight figure with a silvery blond quiff, he was a grocer by trade although he had an incongruous fondness for a top hat. Many of the anti-Treaty faction reckoned that Cosgrave had not the mettle for the coming fight. He had last handled a gun at the South Dublin Union in 1916 and afterwards made his reputation as minister for local government, but as a leader he did not initially inspire many on his own side. This new government teetered as the war intensified. The threat of assassination was very real and the inner core of the government camped out in offices on Upper Merrion Street with a heavy guard. Some slept on mattresses that were rolled up each morning so that the business of government could begin.
There was much more to all this than fighting the war: the public sector pay bill had to be met, schools needed to run, hospitals had to remain open, the post had to be delivered. They were running a small country without allies in the North or in Britain.18 That summer and autumn one crisis followed another: the Four Courts siege, the death of two great leaders and a prison hunger strike – the prisoners were told they would be buried in unmarked graves. A postal workers’ strike was beaten off and also a long-running industrial action by railwaymen. There were other pressing political issues to be dealt with. Not least bringing in a new constitution consistent with the terms of the Anglo-Irish Treaty and therefore acceptable to the British government but palatable to the Irish electorate. It was a heavy burden.19 Not all of the ministers were weighed down by responsibility. Eoin MacNeill was writing what would become his most famous monograph on ancient Irish legal history: Franchise or Law. A big man with gold spectacles and a heavy grey beard, buried in Brehon law tracts, he occasionally waved away requests to go down to his office.
In the long evenings, ministers and their wives gathered in the main lounge, but the women became a source of friction and they were soon evicted while the men smoked, talked, read newspapers or played endless games of bridge that MacNeill often won. The only senior figure absent was Mulcahy, the new commander in chief. Mulcahy kept long hours at GHQ Portobello and spent the rest of the time at his home next door and did not often attend cabinet meetings. Kevin O’Higgins distrusted the army and also General Mulcahy in equal measure. O’Higgins was right about the National Army – it was malleable, riven by cliques and honeycombed with IRB members who were now without their leader (Collins). O’Higgins’ suspicions of General Mulcahy would prove to be entirely misplaced: the general, dark, wiry and a little intense, was driven by his work and, for the time being, was oblivious to the suspicions of his colleague.
It was still the war that dominated events. The casualties in the fighting grew on both sides and the National Army lost some of their best men – shot down in ambush or occasionally shot in the street or leaving church.20 In the streets of Dublin, anti-Treaty fighters threw grenades and planted mines with a singular lack of regard for civilian casualties. In the face of all this, the government began to formulate the execution policy and while this was developing a new trend became apparent. There began a covert campaign of kidnap and murder of men suspected or believed
