Fellow Citizens of the Irish Republic the fateful hour has come. At the dictation of our hereditary enemy our rightful cause is being treacherously assailed by recreant Irishmen. The crash of bombs and the boom of artillery reverberates in the supreme test of the nation’s destiny.
Gallant soldiers of the Irish Republic stand vigorously firm in its defence and worthily uphold their noblest traditions. The sacred spirits of the Illustrious Dead are with us in this great struggle, ‘Death before Dishonour’ being an unchanging principle of our national faith as it was of theirs, still inspires us to emulate their glorious effort.
We, therefore appeal to all citizens who have withstood unflinchingly the operations of the enemy during the last six years to rally to the support of the Republic and recognise that the resistance now being offered is but the continuance of the struggle which was suspended by the Truce with the British. We especially appeal to our former comrades of the Irish Republic to return to that allegiance and thus guard the nation’s honour from the infamous stigma that her sons aided her foes in retaining their hateful domination over her.
Confident of victory and of maintaining Ireland’s independence this appeal is issued by the Army Executive on behalf of the Irish Republican Army.95
Reflecting on the bombardment many years later, Sean MacBride ruefully recalled, ‘we were never a large enough garrison to have held such a building, nor did we expect to have to hold it’.96 Surrounded, out-gunned and out-numbered, detached from their Dublin comrades at Barry’s Hotel, and from the coterie of senior republican officers under Liam Lynch based in the Clarence Hotel, the Four Courts garrison was in a hopeless position. As the shells rained down in the early hours of 28 June, Rory O’Connor recited the refrain to his men, ‘How can man die better than facing fearful odds.’97 As the hours passed, stores of explosives caught fire, the roof began collapsing, fires broke out, the sewers flooded and the munitions block became an inferno. A hastily attempted sortie by the Dublin brigade of the IRA under Oscar Traynor met stiff resistance from Free State Forces. Ernie O’Malley recalled, ‘our nerves were getting taut, perhaps with strain, I felt emotional surges in myself and a desire to cry at times’.98 On the third day of the assault, the inevitable decision to surrender was supported by Joe McKelvey and Rory O’Connor, with Mellows alone holding out, ‘the Republic is being attacked here’, he told O’Malley, ‘we must stand or fall by it, if we surrender now, we have deserted it’.99 The decision to surrender was taken out of the hands of the garrison leadership, however, through a direct order from Oscar Traynor:
I have gone into the whole situation re your position, and have studied the same very carefully, and I have come to the following conclusion: To help me carry on the fight outside you must surrender forthwith. I would be unable to fight my way through to you even at terrible sacrifice. I am expecting re-enforcements at any moment. If the Republic is to be saved your surrender is a necessity. As Senior Officer outside I take it that I am entitled to order you to make a move which places me in a better military position. The order must be carried out without discussion. I take full responsibility.100
Mellows ignored the direct command from Traynor to the end and refused to even discuss it with his fellow officers. After conferring with O’Connor and other leaders, however, Ernie O’Malley took command of the garrison and surrendered unconditionally. ‘How hateful the green uniforms seemed now’, he recalled as he marched his garrison along the Dublin Quays to Jameson’s Distillery.101 The surrender deeply affected Mellows but for O’Connor, the symbolism of the battle, rather than strategic or tactical concerns, was paramount. As O’Malley later reflected, ‘the fight to him had been a symbol of resistance. He had built a dream in his mind and the dream was there; failure did not count and he evidently did not sense defeat.’102
Interned in Mountjoy Jail, Mellows was to languish in confinement as the stand-off between the National Army and the IRA descended into a squalid campaign of attrition with atrocities committed by both sides in an intermittent struggle that was to last until April 1923. The dispersed anti-Treaty forces under Liam Lynch fought localised campaigns in Munster, Connacht and parts of Leinster and Ulster. As the fighting escalated, Cahir Davitt, who was appointed Circuit Judge of the Dáil Courts in 1920, was charged in August with the establishment of a new section within the Adjutant General’s Department that would be responsible for the conduct and administration of military law. As the Civic Guard was still being organised and a system of district courts set up to replace the old petty sessions, Davitt believed ‘the only instrument at the immediate disposal of government with which to protect life and property was the National Army’.103
On 15 September, Richard Mulcahy sought the introduction of military courts from the provisional government and within ten days, the Army (Emergency Powers) Resolution was drafted and approved. Introducing the bill on 27 September, W.T. Cosgrave denounced ‘murderous attacks’ by republicans and assured TDs ‘we are not going to treat rebels as prisoners of war’.104 The ‘general regulations as to discipline’ were published in the first week of November, setting out procedures for arrests, investigations, detentions and punishments for military offences for the duration of the conflict; these were based upon the British manual of military law with adaptions and modifications.105
The bill granted the state the power to execute prisoners, which commenced with the execution of four IRA Volunteers in Kilmainham Jail on 17 November.106 Eighty-one prisoners (including four non-republican prisoners) would be executed in twenty-eight rounds of executions between November 1922 and May 1923. Executions took place in Kilmainham Jail, Mountjoy Jail and Beggars Bush Barracks (all Dublin), the Curragh Camp, Kilkenny, Dundalk, Roscrea, Carlow, Tralee, Limerick, Athlone, Waterford, Birr, Portlaoise, Cork, Mullingar, Wexford, Drumboe (Donegal), Tuam, Tralee and Ennis. Military courts could be convened by the general officer commanding any of the eight command areas of the National Army with sentences subject to the approval of a confirming authority composed of two members of the Army Council of the Free State. Trials were held in secret with news of the sentences communicated to relatives after the executions were carried out.
The IRA responded to the severity of the Free State’s new powers by warning that drastic measures would be taken against members of the Dáil who voted for the bill if the killings continued. The names of the TDs who originally voted for the bill were printed in the republican daily, Poblacht na h-Éireann: War News, under the heading ‘The Murder Members’, ‘Every one of these men, by his vote, supplied the murder gang with what they call their “authority” for the secret trials and executions. Every one of them is as much responsible for the deaths of these republicans as the Minister who devised the Courts, the men who constituted them, and the men who formed the firing parties.’107
The pretext for the executions of Mellows and his fellow commanders, Rory O’Connor, Joseph McKelvey and Richard Barrett was the shooting of Sean Hales TD by the IRA on the Dublin Quays on 7 December. A farmer’s son, Hales was at the forefront of the independence struggle as a member of the West Cork flying column and experienced some of the most brutal episodes of the War of Independence, including the torture of his brother, Tom. In retaliation for the destruction of their family home in the aftermath of the Crossbarry ambush in March 1921, he burned Castle Bernard, the residence of the earl of Bandon, with Lord Bandon held hostage until the British guaranteed that no more Volunteers would be executed in Cork Jail. Hales was exceptional in that he was the only senior republican commander in Cork to support the Anglo-Irish Treaty and during the Civil War he defied local sentiment by organising the expulsion of the anti-Treaty IRA from his native district. His brother Tom supported the anti-Treaty IRA and, along with Mellows, was a member of the IRA executive and imprisoned by the Free State in November 1922.
Hales’ shooting provoked the National Army leadership into a hastily convened crisis meeting, with Cahir Davitt brought before them