R v Roger Casement

The trial and execution of Sir Roger Casement in 1916 marks one of the low points of English justice. In particular, the role played by F.E. Smith reflects no credit on a man who was a great advocate and a great intellect.
The background

Between 1912 and 1914, great political energy had been spent on the question of Home Rule for Ireland. Asquith’s Home Rule Bill (1912) had twice been passed in the Commons and rejected by the House of Lords. It eventually was passed a third time by the Commons, which made passage by the Lords unnecessary. Because war had broken out, its operation had been suspended for the duration of the war.

Two of the most prominent opponents of Home Rule were Sir Edward Carson and F.E. Smith. Just before the outbreak of war, they had been deeply involved in organizing the Ulster volunteers to resist Home Rule, by force if necessary. They helped the Ulster volunteers arm themselves, principally by importing weapons from Germany into Ireland.

Sir Roger Casement had enjoyed a distinguished career in the English colonial service. He was a strong supporter of Home Rule who saw with dismay that the Ulster volunteers were arming with impunity, having declared themselves ready to “resist the King and commons and to blow the statute off the books with powder”. Casement thought Ireland’s future could only be secured if the nationalist Irish volunteers were similarly armed. So he went to America to raise money, then into Germany. Between December 1914 and February 1915 he went to various prison camps in Germany and addressed the Irish prisoners, urging them to join the Irish brigade which he proposed to form. It was his speeches to Irish prisoners which constituted the overt acts of the treason with which he was later charged.

Early in the morning of 21 April 1916, Casement came ashore at the Bay of Tralee in County Kerry. He was in company with Robert Monteith (a member of the IRA) and Private Daniel Bailey (a member of the Royal Irish Rifles, recently released from the German Prisoner of War camp at Limburg). Casement stayed in an abandoned fort near the beach. He had not slept for 12 days, and needed rest. Bailey and Monteith made for Tralee.

A local farmer saw the abandoned boat on the beach and told the police. Casement was soon arrested. He gave a false name, and tried to dispose of a sheet which contained military codes. The code sheet unmistakably linked Casement to a plan to bring German weapons into Ireland.

Later that morning, the MV Aud was captured at sea not far from Tralee. It had been sailing under Norwegian colours, but on being challenged it was found to be manned by German sailors, and was carrying a cargo of 20,000 rifles and machine guns.

The Easter Rising began in Dublin two days later. It was quickly suppressed and its principal actors were summarily executed. Despite the view in some quarters that Casement should be treated likewise, he was sent to London and charged with high treason. In accordance with tradition, he was held initially in the Tower of London – in a cell from which, as his warder told him, no prisoner charged with treason had ever walked free.

Casement’s trial began on 26 June 1916. It was a trial at bar: that is, a trial before a Full Bench and jury. Lord Reading CJ presided, with Avory and Horridge JJ. The interest of the trial lies chiefly in three things
The cab rank?

First, the identity of Counsel for the parties. The Prosecution was led by the Attorney-General, Sir Frederick Edwin Smith KC, MP, with the Solicitor-General, Sir George Cave KC, MP (later Viscount Cave) with A.H. Bodkin, Travers Humphreys and G.A.H. Branson.

No English silk could be found to act for Casement. The brief was offered to, but refused by, Sir John Simon KC and Gordon Hewart KC (later LCJ). Casement was represented by Sergeant A.M. Sullivan. Sullivan was silk in Ireland and was the last of the Irish sergeants. F.E. Smith tried to arrange for Sullivan to be given silk in England on the grounds that “the disparity in attack and defence was too marked for a State trial”. Lord Findlay LC refused.

Sullivan’s junior was Thomas Artemus Jones. Jones was a competent senior junior, later appointed to the County Court. He had come to prominence not as Counsel but as a litigant: he was the successful plaintiff in Jones v. Hulton (the appeal is reported as Hulton v. Jones (1910) AC 20) which established that an unintended libel of an invented character is libel nonetheless if the invented character has an identifiable counterpart in the real world.

The Treason Act permitted the prisoner only two Counsel. The difficult legal argument at the heart of the case was to be worked up by Professor J.H. Morgan, who was permitted to address the Court as amicus curiae, although in reality he was an important member of the defence team.
The Statute of Treasons, 1351

The second interesting feature of the case was this: The principal question at issue was the meaning of the statute under which the charge was laid. The Statute of Treasons was enacted in 1351, in the reign of Edward III. It is written in Norman French. Consistent with the conventions of the times, it has no punctuation. It defines various modes of treason. The relevant measure provides:

“Si homme leve de guerre contre notre dit Seigneur le Roi en son Roialme ou soit aherdant as enemys notre seigneur le Roi en le Roialme donant a euz eid ou confort en son Roialme ou per aillours”

which translates as:

“If a man do levy war against our said Lord the King in his realm or be adherent to the enemies of our Lord the King in his realm giving to them aid and comfort in the realm or elsewhere”

The only acts alleged against Casement were acts committed in Germany.

The question of interpretation can be shortly stated: is it treason to adhere outside the realm to the King’s enemies? In other words, do the words or elsewhere qualify only the words which immediately precede them, or do they qualify the entire phrase be adherent to the enemies of our Lord the King in his realm giving to them aid and comfort in the realm? If the document had been punctuated, where would the commas have been?

Sergeant Sullivan had two principal arguments: the first was based simply on the language used. The statute read more naturally as referring to adherence within the realm, and giving aid in the realm or elsewhere.

Second, until the 35th year of the reign of Henry VIII, no procedure existed which would have enabled a charge of adhering to the King’s enemies outside the realm to be heard in any English court. It was unlikely that the statute intended to create an offence for which no trial procedure existed.

The difficulty in his path was that commentators including Coke, Hale, Hawkins and Fitzherbert had asserted for centuries that the statute created the offence of adhering to the King’s enemies outside the realm. The trial court took the same view. The motion to quash the indictment therefore failed. On the facts, which were hardly contested, Casement was convicted and sentenced to death by hanging.

On appeal, Sergeant Sullivan had a third argument. It was this: in feudal times, the barons very often held land in England and in France. In England, they owed their allegiance to the King of England. In France they owed their allegiance to the King of France. From the time of King John, the King of England’s claim to France was, at the very least, tenuous. Edward III claimed to be King of France in 1347, as did his successors down to 1801. But in truth, feudal allegiance in France did not coincide with feudal allegiance in England. This political reality, so the argument ran, provided a rational explanation for adherence outside the realm not to constitute treason, as distinct from giving aid or comfort outside the realm.

The appeal failed.
F.E. Smith

Perhaps the most striking feature of the case is the conduct of F.E. Smith. This can be illustrated by 4 things.

First, he was in the exquisitely ambiguous position of having himself helped arm the Ulster volunteers with German weapons in order to resist the implementation of Home Rule. His own conduct was in many ways similar to Casement’s, although it was undertaken just before, not during, war with Germany.

Second, he ran the prosecution hard. His opening statement concluded with the words:

“The prisoner, blinded by a hatred for this country, as malignant in quality as it was sudden in origin, has played a desperate hazard. He has played it and he has lost. Today the forfeit is claimed.”

Whilst Casement made his statement from the dock immediately before being sentenced to death, Smith walked ostentatiously out of Court. He threatened to resign from Cabinet if the death sentence were commuted.

Third, before the trial began, he made it known that the Crown had possession of some diaries of Casement’s which implicated him in profligate homosexual behaviour. These notorious “black diaries” have been the subject of great dispute. They were suppressed by the Crown for over 40 years. Their suppression made it impossible to investigate the claim that they were forgeries. That question cannot now be answered satisfactorily. It is enough to say that there is a real question whether the relevant entries in the diaries were genuine.

Smith and other members of the coalition government circulated copies of the diaries to influential people, apparently in order to dissuade them from speaking out against Casement’s execution. The disgrace of Oscar Wilde was still a matter of living memory: many important figures were in fact deterred from helping Casement because of the whispering campaign which centered on the black diaries. The whispering campaign had another purpose: the government thought it would prevent Casement from being seen as a martyr when he was executed. In that respect, it failed.

Fourth, when the Court of Appeal dismissed Casement’s appeal, the only remaining hope was the House of Lords. There was great controversy in legal circles about the correctness of the judgment. An Appeal to the House of Lords lay only with the fiat of the Attorney General.

A delegation visited Smith in his capacity as Attorney General. They pointed out the doubts which attended the interpretation of a measure written on vellum in law French in 1351. They said that they had the support of no less a person than Sir William Holdsworth (the author of the monumental History of English Law). Smith replied archly:

“I am well acquainted with the legal attainments of Sir William Holdsworth. He was, after all, runner up to me in the Vinerian prize when we were at Oxford”

He refused his fiat.

Casement was hanged at Pentonville prison on 3 August 1916.

Julian Burnside

For a short biography of Casement, click here

For a general account of his crime and trial, click here

For more on the black diaries, click here

For more on Casement’s work in the Amazon, click here

And for Conan Doyle’s account of Casement’s work in the Congo, click here