The Death Penalty in Ireland: A Legacy of the Civil War?
John Grundy
Department of History

It has always been a matter of great regret to me that it was not abolished in 1922. The Draft Constitution submitted to the Provisional Government and signed by Hugh Kennedy, C.J. France and myself, included a provision that the penalty of death shall not be attached to any offence. I discussed the matter with Michael Collins and he said that he would endeavour to get the Provisional Government to accept the abolition of capital punishment. Collins told me that he was opposed to the death penalty for treason and that he had an open mind as to whether or not it should be imposed for murder.1

This quote from James Greene Douglas was made in Dáil Eireann in October 1951 by Seán MacBride, speaking on his motion that the Dáil appoint a Select Committee to examine and report on the desirability of abolishing capital punishment. MacBride had told the Dáil that he had received a letter supporting his move from Douglas, a Dublin Quaker businessman who had been a member of the Senate of the Free State. The Irish State was to execute one more person, three years after MacBride's motion was debated and finally defeated in the Dáil in early 1952.2 Michael Manning of Limerick City proved to be the last citizen hanged, in April 1954 in Easter Week of that year in fact.3 The Irish State would of course continue to retain and often impose the death penalty up until less than ten years ago. It might be observed here that it was ironic that MacBride had been a prominent member, with Noel Browne, of the 1948-51 first inter-party Government, which presided over the second last execution in the State in its first year of office, that of William Gambon of Dublin in November 1948.
The reasons why the Provisional Government in mid-1922 did not, in fact, accept the inclusion in the new constitution of the draft proposal prohibiting the death penalty are complex, almost certainly consisting of a combination of factors, prime among them being the ominous and poisonous political atmosphere immediately before the formal outbreak of civil war in late June 1922; and not least perhaps the inability, in a country about to become officially independent, to expunge all traces of a colonial mindset. After all, the entire corpus of statute law enacted by the British parliament was to remain in place in the new State until and unless it was reformed by the Dáil and Seanad; while the English common law was, of course, also to remain applicable in the Irish Free State.4
The supervention of civil war certainly made it almost inevitable that the civilian use of the death penalty would be not infrequent and largely unquestioned in the wars aftermath. The civil war saw the often quoted figure of seventy-seven official State executions by the Provisional Government and its successor Executive Council, but the historian Padraic O'Farrell (1996) gives a figure of eighty-one persons killed officially by the Government, in the six months between November of 1922 and May of 1923. The Dáil Resolution of September 1922, which allowed the passing of a sentence of death by a military tribunal, was the point, it will be contended, at which the Irish State adopted capital punishment, albeit that the Resolution was presented, and indeed seen by the authorities, as a war or anti-insurrectionary measure.5 From November 1922, when four young men taken in arms were executed on the same day in Dublin (Macardle, 1968), Cosgrave and his Government colleagues ruthlessly pursued State killing as an instrument of policy. While figures such as Kevin O'Higgins and Richard Mulcahy are often seen as the most zealous proponents of this policy, it should not be forgotten that Cosgrave himself was relentlessly dedicated to it. In the last phase of the civil war, in February of 1923, W.T. Cosgrave, now President of the appropriately-named Executive Council, declared in what Tom Garvin (1996) calls a chilling sentence, that he was not going to hesitate [...] if the country is to live and we have to exterminate ten thousand Republicans, the three millions of our people are bigger than this ten thousand. Professor Garvin states that Cosgrave was here expressing his determination to defend the infant democracy by mass killing if necessary (pp. 161-2).
It can hardly be surprising, then, that any qualms or reservations about the ordinary peacetime use of the death penalty should have been dissolved utterly for members of the Government and indeed the general public, if one is to judge from the newspapers when the idea of official State killing had been made so awesomely familiar during the very terrible eleven months of civil war. The Government could now, from late 1923, also claim an absolute judicial legality for what were judicial killings, often made less repugnant by the term executions. The civil war executions, invariably referred to as such in the mainstream historiography of the period, were at best quasi-legal, or downright illegal, as Tom Garvin concedes with regard to the reprisal killings of Richard Barrett, Joseph McKelvey, Liam Mellowes and Rory OConnor on 8 December 1922 (Garvin, pp.161-2). The shooting of Erskine Childers two weeks earlier was done under a fig leaf of legality, provided by the lawyers, both barristers and judges, including Hugh Kennedy who had been favourable to the draft proposal to prohibit the death penalty and was believed to be personally opposed to capital punishment. This did not inhibit Kennedy during, and following, the civil war from placing the exigencies of the moment above his personal scruples. According to the legal historian and lawyer Gerard Hogan (1996), Kennedy was complicit in the Provisional Governments highly dubious execution of Childers, Kennedy being the Governments principal law adviser and soon to be Attorney General and later Chief Justice of the new State. Charles OConnor, still entitled Master of the Rolls, was clearly determined on not giving Childers any assistance in avoiding the Governments firing squad. In an uncharacteristically bitter judgment against Childers habeas corpus application, O'Connor referred to Childers as epitomising those who had wrecked the physical seat of justice, the Dublin Four Courts. While an appeal against O'Connor's ruling was still pending, the Government, advised by Hugh Kennedy that it was technically legally safe to do so, went ahead and shot Childers on 24 November 1922 (Hogan, 1996).
Was the death penalty in the Irish State a legacy of civil war? The answer in large measure must be Yes. Within six months of the civil wars formal end, and with large sections of the country still extremely turbulent, the civilian use of the death penalty was resorted to almost routinely, one might say. The colonial overtones were rich. The first four civilian executions after the ending of the civil war took place in four weeks towards the end of 1923, two on the same day, 12 December.6 These death sentences were each imposed by the Lord Chief Justice, Thomas Francis Moloney, whom Hugh Kennedy had earlier described as being judicially collaborative with the British during the terror (Hogan, 1996).7 This patently did not prevent the Governments acceptance of Moloney as the judge who, in effect, established the practice of judicial killing in the new Irish State: although, as already mentioned, the Dáil Resolution of September 1922 was in fact the point at which the Irish State enshrined the death penalty. There would be sixteen hangings in the nine years of Cumann na nGaedheal Government after the civil war; thirteen of these took place in the four years 1923-1927. The civil war connection may be pointed up by the fact that in the first five years of De Valera's Government there occurred just three hangings.
In 1925 the Irish State hanged a woman, Annie Walsh of Co. Limerick. The British had reprieved all six females sentenced to death in the last seventeen years prior to independence.8 For the historian, anachronism is an ever present pitfall, but even at the time it was confidently expected that Annie Walsh would not be hanged; the press had earlier predicted Walshs reprieve. After her execution, together with one Michael Talbot, the newspapers highlighted that this was the first female hanging in twenty-one years.9 As was the practice at the time, the newspaper reports enlightened the public to the effect that Walsh had died by the breaking of the third vertebra; and that the condemned woman had been greatly consoled by the ministrations of Roman Catholic priests, who had walked with her in prayer to the execution chamber.10
We might end with the case of Felix McMullen, who had killed a civic guard in the course of an attempt to escape after a bank robbery in Baltinglass Co. Wicklow. McMullens defence was one of manslaughter and much of the evidence indicated this. His first trial was presided over by Mr Justice Thomas Lopdell O'Shaughnessy who had, rather bizarrely, been appointed to the High Court in 1924 at the age of almost 73, despite the fact that the Courts of Justice Act of 1924 had set 72 as the retirement age for judges. Manslaughter or not, McMullen was always going to hang for the killing of a police officer. The jury in the first trial failed to agree on a murder verdict, having been prevented by the judge from returning one of manslaughter, the judge reminding them that there was a court of appeal. The jury was clearly hectored, almost bullied, by O'Shaughnessy.11 Despite intense judicial pressure the jury refused to convict Felix McMullen of murder and was discharged. The re-trial was ordered by OShaughnessy for the next day and only under vehement protests by McMullen's counsel did the judge allow a 24-hour postponement. The second jury, given the stark choice of acquittal or conviction of murder, chose the latter, but entered a strong recommendation to mercy. There were petitions by the two juries that had tried McMullen, seeking a commutation of the death sentence and many other attempts to save him by appeal to the Government. All were unavailing, and McMullen was hanged on 1 August 1924. In the Dáil that same day Kevin O'Higgins was asked why the Government had not responded to the petitions from the juries to reprieve McMullen. The question was asked on behalf of Joseph McGrath, who had until recently been a member of the Government. O'Higgins was , stating simply that the juries were no longer such but twelve private citizens.12
The Macmillan case, examined in greater detail than allowed here, indicates that Thomas O'Shaughnessy was the right judge in the right place from the Governments perspective: Hugh Kennedy himself had sat on the Court of Criminal Appeal that confirmed this death sentence. When O'Shaughnessy retired the following year, the Irish Law Times of December 1925 described him as a judge with an unerring instinct, which at times was almost uncanny, for the true bearings of a case.13 The eulogist of this legal periodical may have been saying more than intended.
However inadequately the argument has been developed in this paper, it is possible to see the determined use of the civilian death penalty by the Irish State, for over thirty years from 1923, as one of the many unfortunate legacies of the civil war.

Bibliography

O'Farrell, P. (1996), Who's Who in the Irish War of Independence and Civil War, Dublin, Lilliput Press.
Macardle, D. (1968) [1937], The Irish Republic, London, Corgi Books.
Garvin, T. (1996), 1922. The Birth of Irish Democracy, Dublin, Gill and Macmillan.
Hogan, G. (1996), Hugh Kennedy, The Childers Habeas Corpus Application and the Return to the Four Courts, in The Four Courts: 200 years, edited by C. Costello, Dublin, Incorporated Council for Law Reporting for Ireland, pp. 177-219.

1 PDDE, Volume 127, October 1951.

2 PDDE, Volume 128, February 1952.

3 See Prisons Report, 1954, Dublin Department of Justice.

4 Article 73 of the Irish Free State Constitution.

5 PDDE, 27, September 1922.

6 Return of Persons Sentences to Death 1923 - 1932, National Archives Dublin.

7 The title 'Lord Chief Justice' remained operative until 1924.

8 Death Book, General Prisons Board of Ireland, National Archives Dublin.

9 Irish Independent, 4 August 1925.

10 Irish Independent, Irish Times, 6 August 1925.

11 Irish Independent, Irish Times, 9 - 11 July 1924.

12 PDDE, 1 August 1924.

13 Irish Law Times and Solicitors Journal, July 1924.