1 4th October 1916. Messrs Corrigan & Corrigan.
Dear Sirs-; Re: Irish Prisoners: I enclose the documents set out at the end of this letter.
Please return to me in due course the bundle from Dr. O'Connell
relating to the case of Counsel re Stack and Collins of which I
have kept no copy. 1. Correspondence sent herewith includes a letter of 16th May
last to Mr Healy showing conclusively that there was no Statutory
authority for the trial in camera of the prisoners who were so tried
in Ireland, that is the great majority of those tried after the Rising.
Mr Ginnell and others put questions in the House repeatedly on this
point and obtained evasive and contradictory answers the general
effect of which was that there was some unspecified authority in the
Defence of the Realm Regulations recognising in camera proceedings
before a court-martial, but ultimately Mr Ginnell elicited from
Mr Asquith that the military authorities have to justify themselves
by the plea that the public interest was sufficient warranty for
excluding the public. The dicta of the Lords of Appeal in Hollinshead
v. Hazleton decided by the House of Lords last December would, I think
be helpful to show the great difficulty of setting up public interest
as an excuse for violating public right. You will see that if
proceedings in camera cannot be justified the great majority of the
prisoners who have been tried are entitled to habeas corpus. 2. You will also find a copy of Dr. O'Connell's letter to me
of 29th July and my reply of 9th August last relating to Stack and
Collins who seem to me to have a very strong claim. The committal 2 warrant in the case of Collins is identical with that in the case
of Stack (copy herewith). You will see that they are both convicted
of conspiracy and the evidence against them is anything but strong.
I think a victory in the Courts in their case would have a very
good moral effect. You will notice that the correspondence here
deals with the question of the right of habeas corpus running from
England to Ireland and vice versa. 3. A very important question indeed which is worth of
Counsels best consideration is the point as to the authority, if
any, by which a person convicted in Ireland is sent to an English
prison. My view is that there is a great deal to be said against
such a transfer and that the military authorities would have the
utmost difficulty in supporting their action. Probably there would
be less difficulty in supporting the transfer of people who are
merely interned, but Counsel might also consider this. 4. It would be well to supply Counsel not only with one
of the notices of an order of internment as supplied to each
interned person, but also with a copy of an actual order of
internment, I mean a copy of the order itself, not the notice.
I think it will be found that the order in every case specifies
Frongoch as a the place of internment and a client of mine at Reading
Gaol has raised the question whether it would be worth while
applying for habeas corpus on this ground, since Reading is not
Frongoch. I think we might score a technical success by such an
application, but I am not sure if it is worth while as a new order
could easily be made by the competent authority. 5. It will be important that Counsel should have the
very recentest edition of the Defence of the Realm Regulations
Consolidated from Ponsonby's which refers w.refce to one of the questions
which you are submitting to Counsel , it may be worth mentioning
that Regulation 14b of the Defence of the Realm Regulations
was amended by an order dated 8th June 1916 (reported in Solicitors'
Journal 17th June 1916 and probably included in the latest print 3 of the Consolidated Regulations) as follows:- 'Any person interned
under such order shall be subject to the like restrictions and may
be dealt with in like manner as a prisoner of war, except so far as
the Secretary of State may relax such restrictions'. You will notice
that this amendment has been made since the Rising. The documents herewith comprise
1) copy correspondance
2) copy Stack's committal warrant
3) Case to Counsel re Stack & accompany
ing papers and Counsel's opinion.
Mr. HG.
G. Gavan Duffy. M.s. secretary to you of 3w July
last (Nov 2) as w April association
G.G.D 4 WHEREAS AUSTIN STACK ( q 224 ). was by a General Court martial held at Richmond Barracks, Dublin
convicted of the offence
DOING AN ACT PROHIBITED BY THE REGULATIONS UNDER THE DEFENCE
OF THE REALM ACT in that he
in or about the month of April 1916, did conspire and agree with
certain other disloyal and disaffected persons to bring about
rebellion in Ireland and to spread disaffection among the civil-
ian population of that country such act being of such a nature
as to be calculated to be prejudicial to the public safety and
defence of the Realm and being committed with the intention and
for the purpose of assisting the enemy,
and by a sentence signed on the 17th. day of June, 1916, sentenced
to - Suffer Penal Servitude for Life commencing on the aforesaid
day, and such sentence has been confirmed by me as required by
law: Now, therefore,I the undersigned the General Officer Commanding
-in- Chief of the Forces in Ireland do hereby in pursuance of the
K Defence of the Realm Acts and the Regulations thereunder,and
of the several proclamations of his Majesty, King George V.,and
of the power conferred on me thereunder and of all other Acts,
Proclamations and Powers enabling me in this behalf, order that
the said convict shall be, as soon as practicable, transferred to
a prison in which a prisoner sentenced to a Penal Servitude by
a Civil Court in the United Kingdom can be, for the time obeing
confirmed either permanently or temporarily there to undergo his
sentence according to law. AND I do hereby in pursuance of the
above mentioned Acts and Powers order the Governor or Chief
Officer of any such prison to whom the convict is brought to
receive him into his custody and detain him accordingly, and
for so doing this shall be sufficient warrant. Signed this 21st. day of June, 1916. ( Sd. ) J.G. Maxwell,
General
Commanding-in-Chief of the forces in Ireland. 5 I think the 'Frongoch' argument is technically
sound but as it is only technical it does not really
carry very far because the mistake can easily be corrected The 'Alien' argument is based on a misapprehension
The Aliens advisory committee is expressly authorised
under r. 14 B. to deal with all persons interned under
that regulation but it is not necessary that such persons
should be aliens themselves. The only court to which application can be made
seems to me to be the High Court of Justice, and the only
application one for Habeas Corpus. The argument based on section 2 of the Defence
of the Realm Amendment Act perplexes the advisory committee
presumably because that Committee did not know that a
Defendant in an Irish Police Court cannot give evidence
on his own behalf as that is the law of Ireland in criminal
cases; there is an exception to that law, I believe, under
the Army Act which allows a soldier Courtmartialled in
Ireland to give evidence on his own behalf in the same
way as in England when the Defence of the Realm Amendment
Act was passed, the question arose whether a civilian who
might thereafter be tried by Court Martial in Ireland 6
was to be tried according to the procedure governing Irish
Police Courts or according to the procedure governing
Courts Martial, and the legislature evident by Section 2
of the amending Act intended to make it clear that the
ordinary civil procedure in the matter of evidence by a
Defendant was to apply to a civilian who might be Court
martialled in Ireland under the new Act or regulations. Moreover as internees under r. 14 B. are not charged
with any 'offence', Section 2 certainly does not imply
that they have a right to call evidence before the
Advisory Committee or elsewhere; in proceedings by Habeas
Corpus the evidence is given by affidavit and the affidavit
may be made by the applicant or a friend or a relative.