1 9th August 1916 John O'Connell Esq. L.L.D.
Dear O'Connell re Stack and Collins:- I have now had an opportunity of considering the documents
contained in your letter of the 29th ult. I do not propose to
say anything about the weight of evidence for that is difficulty
ground, but I am inclined to think that you have a strong case even
here in normal times and that something should be made of it
even now. The main point is that of jurisdiction; the Habeas Corpus
Acts have not yet been suspended in this country and with the
greatest respect to Mr, Healy, who is a valued friend of mine, I am
quite at a loss to understand what difficulty there can be in
applying for Habeas Corpus in these cases. I do not say that we
are sure to win because because that is a tall order in wartime, but on
the face of it I cannot conceive a more fr l agrant violation of the
law than the trial of these two prisoners by Court Martial. I am
sending you under separate cover a print of the Defense of the
Realm Act and Regulations in case you have not got them, and you
will see that it is perfectly clear from Section 56 that your
Clients had a right under sub-section 8 to a written notice that
they could claim trial by a civil court with a jury, and there is
nothing that I can find in the Regulations passed after the rising
to make the application of martial law to Ireland and the
suspension of the right to civil trial in any way retrospective. It follows if I am right that the military authorities 2 would have the greatest difficulty in justifying the claim that
Stack and Collins were persons subject to military law and so
amenable to a court martial. I am of course assuming that no
notice of their right to civil trial was given to them. My own
opinion is that an English Judge would give us the writ and that
the case ought to be taken up without delay. The question is whether the application should be made in
England or in Ireland. Stack and Collins are now in an English
prison. It is quite clear that the writ of Habeus Corpus at
Common Law ran from England to Ireland (Anon.1681 1 Vent 357). I
imagine the Habeus Corpus Acts do not over-ride Common Law and
that if the writ runs from England to Ireland it would run from
Ireland to England. However, to preclude any difficulty on this
score the writ could of course be applied for here. It is equally clear that the writ of Habeus Corpus runs
in the case of a person wrongfully taken before a court martial.
You will remember Wolf e Tone's case and there have been others
applicable to the case of persons not subject to martial law. I
am inclined to think that we are further helped by the fact that
the court martial appears to have acted on its general knowledge
rather than upon the evidence, and this is a fact which would
weigh with a Judge who saw the facts ward? for the first time. You do not say whether you have (as advised by Mr Healy)
applied for copies of the warrants on which Stack and Collins were
held and of the convictions recorded against them; these I think
we ought to have. And it is also necessary to know where they
are and who is the Governor of the prison in whose custody they
are detained. I think it would be well worth while (as these seem to me
quite the best cases I have come across among the Irish Prisoners 3 for Habeus Corpus) for you to get into touch with Corrigan of
Dublin the Solicitor to the National Aid Committee who I am sure
will be inclined to take the case up provided they are legally
advised that the view I have expressed is correct and has a
reasonable chance of being upheld. It is a great pity that there has been delay in the matter
but the writ is a writ of right and I do not think the delay should
stand in our way; but we should lose no time now. Any relation or friend may apply for the writ. We ought
to have the full names , descriptions and address of the applicant. Please state whether the trial was by Field guard Court Martial,
or District Court Martial. The former trials have been
quite illegal. Yrs G. Gavan Duffy