The state, the law and political imprisonment, 1914-1918, by Dr. William Murphy
In the years 1916 to 1918 the most important legal weapon in the hands of the British state in Ireland, as it sought to repress the activities of Irish separatists, was the Defence of the Realm Act (DORA). DORA was a piece emergency legislation created in the context of the outbreak of World War One. It was passed by parliament on 7 August 1914, three days after Great Britain entered the war, and received the royal assent a day later.
DORA was a short piece of legislation but its ramifications were enormous. In effect it enabled the government to devise regulations – known as Defence of the Realm Regulations (DORR) – giving to the military powers to secure ‘the public safety and defence of realm’. Specifically, that first Act provided that those who breached regulations designed to prevent communicating with, or providing information to, the enemy or those who breached regulations designed to secure key communication and transport infrastructure could be tried by court martial rather than in civil court.
Subsequently, DORA was amended and consolidated by five further Acts that widened the areas governed by DORR and increased the number of these that might be prosecuted before a court martial. A plethora of DORR followed, restricting subjects in myriad areas of life, including travel, place of residence, postal communication, food production and consumption, publications and public speeches. In a letter to the Evening Mail in June 1915 George Bernard Shaw wrote, ‘The Defence of the Realm Act abolishes all liberty in Great Britain and Ireland except such as the authorities may choose to leave us’.
There was a good deal of truth in this, though in practice the system that grew up through these Acts and regulations did not devolve to the military the untrammelled power that might one might assume at first glance. In Ireland, the military authorities, senior civil servants, and politicians in consultation took the key policy decisions concerning the enforcement of the new regulations. Further, an amending Act of March 1915 restored to British subjects the right to trial in civil courts. This would prove a problem for the British authorities in Ireland because Irish juries were slow to convict separatist activists, restricting them to taking prosecutions in magistrate courts where the sentences that could be handed down were limited. Not only that, but some Irish magistrates – especially in the provinces – also proved reluctant to convict or jail separatist activists.
Nonetheless, even before the Easter Rising, the authorities began to use DORA against Irish separatists. In late 1914 and early 1915, they used the regulations to shut down certain separatist newspapers and to restrict the movement of several known activists. Then from the middle of 1915 they began a policy of selective prosecution of activists who breached orders restricting their movement and activists who attempted to discourage or interfere with recruitment. For example, Ernest Blythe was jailed in July 1915 for breaching an order that compelled him to reside in Britain, while Desmond FitzGerald was jailed in October for making an anti-recruitment speech.
Rebellion broke out in Dublin on Easter Monday, 24 April 1916. Lord Wimborne, the Lord Lieutenant, declared martial law in Dublin city and county, on the following day, 25 April, and extended it to the rest of the country on 26 April. Perhaps the most important act taken under martial law was the suspension in Ireland of the key provision of the Defence of the Realm (Amendment) Act of 1915. As a consequence of this, once more, civilians in Ireland could be tried by court martial.
As Brian Barton explains, 187 civilians (183 in Dublin, 2 in Cork, and 2 in Enniscorthy) were tried by court martial after the Rising. They faced charges under DORRs 42 and 50, those relating to attempting to ‘cause a mutiny, sedition or dissatisfaction . . . among the civil population’ and carrying out an act ‘prejudicial to the public safety or the defence of the realm . . . for the purpose of assisting the enemy.’ Twenty-two of the trials were General Courts Martial (presided over by a judge advocate assisted by thirteen officers) while the rest were Field General Courts Martial (presided over by just three officers). Fifteen men were subsequently executed (fourteen at Kilmainham Gaol and one, Thomas Kent, at Cork detention barracks). At least 53 more were sentenced to death but had their punishment commuted to terms in prison. In total, 140 men and one woman would serve prison sentences imposed by these courts martial.
Those interned without trial were also held under DORA. In this case the relevant regulation was 14B, which allowed for the internment – by the competent military authority – of individuals with ‘hostile origin or association’. This regulation had been devised to facilitate the holding of what were termed ‘alien internees’, for the most part individuals of German or Austrian background who were living (or in some cases holidaying) in Britain and Ireland at the outbreak of the war. By November 1915 there were more than 32,000 such individuals in camps and other detention centres around Britain and Ireland. The regulations did provide for the establishment of an advisory committee to which individuals interned in such circumstances could appeal. In the case of those interned after the Rising the equivalent committee was chaired of Sir John Sankey, who was assisted by Justice Jonathan Pim, a former solicitor-general and attorney-general of Ireland, and J. J. Mooney, an Irish Party MP.
Though many of the internees refused to appeal to it, that committee met over the summer of 1916 and made adjudications in the cases of all 1,846 internees still in custody. They held hearings on twenty-five days, twenty-four days initially (27 June – 28 July) and then an extra day (28 August) to hear the cases of five internees who had been ill. They recommended the continued internment of only 573 (or 31% of those interviewed). Sankey’s diary entry for 28 July read ‘Finished the S. Fein prisoners except for few in hospital. Thank God. One of the hardest and certainly the most disagreeable job I have ever done.’ The subsequent decision to release all the internees in December 1916 and, indeed, the decision to release all the convicts in June 1917 were political not legal or judicial decisions.
Between July 1916 and July 1917 the military in Ireland had prosecuted a mere 29 persons before courts martial for seditious offences under DORA. In late June 1917, however, Sir Bryan Mahon, the General Officer Commanding in Ireland, urged the government to sanction a more assertive use of DORA. He did so in response to a new confidence and assertiveness among separatists, best exemplified by the growth in public drilling by Irish Volunteers, This led to a cabinet decision on 14 July to pursue a consistent policy of prosecuting by court martial those participating in public ‘marching and drilling’. As a consequence, a total of 89 prisoners would be committed to Irish prisons following a court martial in the year 1917 and in 1918 this figure would reach 148. These figures do not include the majority of activists who were committed to Irish prisons during 1917 and 1918 following prosecutions before civil courts using DORA, nonetheless, they give a sense of the trend.
From mid-March 1918, following a series of hunger strikes, Irish Volunteer prisoners won from the authorities in Ireland an ameliorated prison regime for many DORA convicts. It was available to those whose offences were not criminal per se, thus excluding those guilty of assault, violence, robbery, and agrarian crimes. A system to adjudicate upon entitlement to this was established, and between mid-March and the end of the 1918 the GPB examined the cases of c.870 convicts, affording ameliorations to c.590 of these (just over 66%). These ‘political’ prisoners were, for the most part, held separately at Dundalk and Belfast prisons. For example, on 11 April 1918, following decisions by the GPB, its secretary sent warrants ordering the removal of 70 such prisoners to Belfast from seven local prisons – Cork (26) Galway (2), Limerick (16), Londonderry (4), Mountjoy (10), Sligo (6) and Waterford (6). Most of those excluded from the ‘political’ regime seem to have been prosecuted for their involvement in the agrarian unrest that had become widespread in several western counties during 1918, sometimes with the direct encouragement and participation of local Irish Volunteer or Sinn Féin leaders.
Other Irish Volunteers, though a much smaller number, were prosecuted during 1918 using the Crimes Act of 1887. It had been introduced in response to the agrarian unrest associated with the Plan of Campaign. The authorities could and did use it to take prosecutions for unlawful assembly, and not just during agrarian unrest. Some arrested suspects, including Michael Collins, thought that the authorities had begun to use the 1887 Act against some Irish Volunteers so as to avoid having to grant the ameliorated regime that conviction under DORA would have opened up to them. Once this became a matter of controversy in the press, however, the GPB – on instruction from the Chief Secretary – afforded ‘political’ treatment to those convicted under the Crimes Act when the offence was, for example, ‘illegal drilling’ rather than ‘land grabbing’. In this way the authorities did, for the most part, keep to the spirit rather than the letter of the agreement reached in mid-March.
During 1918 DORA (regulation 14B) was again used to facilitate the internment without trial of a cohort of leading Sinn Féin activitsts. This began in May when 69 men and women were arrested. These including the party’s four MPs (Eamon de Valera, George Noble Plunkett, W.T. Cosgrave and Joe McGuinness), Arthur Griffith, who was a candidate in the East Cavan by-election, the majority of the national standing committee of the party, various well-known propagandists, and less well-known but important local figures. Justifying the internments, the authorities alleged that these men and women were actively involved in a conspiracy with Germany – derisively referred to as ‘the German Plot’ in Ireland. In reality it was an attempt to check Sinn Féin’s growth, particularly in the context of the anti-conscription campaign of spring 1918. The number of internments climbed steadily in the months that followed until, on 17 October, 92 internees were held in small groups at seven British prisons – Gloucester, Usk, Lincoln, Reading, Durham, Birmingham and Holloway. Some of the later internees were captured on the run, while others were re-arrested and interned on the completion of sentences in Irish prisons. When Colivet was interned on his release from Belfast prison in August, Kevin O’Higgins mockingly suggested that Colivet must have been plotting with the Germans from prison.
The ‘German Plot’ internees were released in March 1919. Given that the war with Germany was over, it had become increasingly difficult to justify their incarceration. The British state in Ireland would, however, continue to use DORA throughout the War of Independence. Indeed, as the situation in the country became more violent, it would add a significant weapon to its armoury of emergency legislation with the introduction of the Restoration of Order in Ireland Act, passed in August of 1920.
Dr William Murphy is a lecturer in the School of History and Geography, DCU. He is the author of Political Imprisonment and the Irish, 1912-1921 (2014).