• Robert Spicer

Conspiracy law, class and society - Part 4

Twentieth-Century Cases

By 1916, Irish nationalism had declined to the same extent that Dublin was regarded as a provincial British city in the same way as Cardiff or Edinburgh. In April of that year, the main buildings in central Dublin were taken over by armed rebels under the command of James Connolly and Patrick Pearse. The rebels comprised elements of the Irish Citizen Army (a militant offshoot of the Irish Transport and General Workers’ Union) and the Irish Volunteers, descendants of the Fenian Irish Republican Brotherhood. During five days of fighting, over 1000 people were killed or seriously injured, After the rebellion had been crushed, fourteen of the leaders were summarily court-martialled and executed.

We have seen that the Irish conspiracy cases, developed as a reaction to waves of violent nationalism, made a permanent contribution to the English common law. Further, the common law itself displayed a flexibility beyond the limits acceptable in England when faced with nationalist movements which threatened English control over Ireland. This analysis stops short, however, at the 1916 Easter Rising, where the threat posed to the state was far more serious than by any of the abortive nineteenth-century risings. In the first place, England was at war, and the Irish rebels had collaborated with the Germans in return for the supply of arms. Second, a good part of the capital city of Ireland was in rebel hands. In these circumstances, it is irrelevant to refer to the flexibility of the common law or the function of the judiciary in controlling threats to the status quo. In effect, the rebels were simply eliminated with a minimum of legal formality. The façade of the liberal democratic state was dropped, and the imposition of criminal sanctions handed over to the military.

Paradoxically, it is now accepted by historians that this reaction to the rebellion (particularly the killing of James Connolly, who had been seriously wounded) so inflamed Irish opinion that the founding of the Free State in 1921 became inevitable. One might speculate that, if the English government had reacted with its traditional flexibility, using common law doctrines such as conspiracy to give a general aura of legitimacy to the punishment of the rebels, the independence of Southern Ireland might have been further postponed. In relation to events on the mainland, the analysis of the Easter Rising may provide a clue to the solution of one of the problems involved in setting out a coherent view of the history of conspiracy law – the fact that during the great emergencies of the twentieth-century, that law does not appear to have been employed.

The jurisdiction of English courts over Eire ended in 1933, when rights of appeal to the Judicial Committee of the Privy Council were removed from the Constitution. This did not mean that English judges would no longer concern themselves with Irish nationalism. The fact that the six counties of Ulster were excluded from the Home Rule Act of 1920, and remained part of the United Kingdom, meant that the history of conspiracy law and the history of Irish nationalism would continue to be linked.

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