This week sees the centenary of the Defence Forces (Temporary Provisions) Act, signed into law on 3 August 1923. Not only did it rename the state’s military forces (dropping the original moniker of National Army), it also gave them a formal legal basis - a surprisingly tardy move given that the Civil War had begun more than a year earlier. It’s one of the little-known anomalies of the war that the National Army was never formally constituted by the Oireachtas, operating instead within a loosely defined legal framework. Or, as the Army’s Judge Advocate General Cahir Davitt would later put it: ‘The legal basis for its existence was … a matter of some doubt’.
That anomaly was acknowledged by Richard Mulcahy when he introduced the Temporary Provisions bill to the dáil on 24 July 1923. Mulcahy was then both Minister for Defence and Commander in Chief of the National Army, an unusual (and highly unsatisfactory) situation that was one of the issues the legislation was designed to address.
The Act was clearly overdue, but who drafted it? Running to 246 sections and nine schedules across more than 250 pages, it was a weighty piece of legislation that might suggest a team of parliamentary draftsmen, beavering away for months on end. But the Irish government had just one parliamentary draftsman, Arthur Matheson, appointed in January 1923. Matheson came under extraordinary pressure to draft the legislation necessary for the new state to function - his diary shows that on a single day in November 1923 he received instructions from the attorney general, Hugh Kennedy, to draft no less than seven bills.
But Matheson had no hand in the Defence Forces legislation. Mulcahy instead delegated responsibility to the National Army’s legal section, a department attached to Adjutant General Gearóid O’Sullivan’s office. Established in August 1922, the department initially consisted of just two men: Davitt, a former justice of the Dáil Courts and the first Judge Advocate General appointed to the National Army, and his deputy, Colonel George Hodnett (a veteran of the first world war and father of the well-known musician and journalist of the same name). Together they had written the National Army’s code of discipline. With the demands of enforcing military discipline proving greater than anticipated, and the introduction of military tribunals and state-sanctioned executions in September 1922, it quickly became apparent that the Army’s legal department would need greater manpower.
Davitt moved quickly, initially recruiting John Donovan (son of journalist and academic Robert Donovan), Charles Casey and Thomas J. Coyne. All three had served with British forces during the first world war and had either completed or were close to completing their legal studies. Donovan, who brought with him the experience of acting as counsel during British military tribunals, went on to become assistant secretary of the Electricity Supply Board (ESB). After leaving the army in 1924, Casey was involved in some of the most high profile legal cases of the mid century, before serving as attorney general and judge of the high court. A dedicated civil servant, Coyne rose to become secretary general of the Department of Justice.
They were soon joined in the legal department by at least a dozen others, all of whom were either solicitors or junior barristers, including Eugene Sheehy, John Hearne and Gerald McCarthy. At nearly forty years of age, Sheehy was older than most of the others and had been one of the Irish Volunteers who answered John Redmond’s call to join the British army. Commissioned in the Royal Dublin Fusiliers, he served at the Somme and Ypres, and was stationed in Dublin during the 1916 Rising. He later succeeded Davitt as Judge Advocate General, while also sitting as a judge of the circuit court. Hearne was personally recommended to Davitt by Kevin O’Higgins, the Minister for Home Affairs (renamed Minister for Justice in 1924); he joined the office of the parliamentary draftsman as Arthur Matheson’s assistant in November 1923 and was later one of the chief architects of the 1937 Constitution. His remarkable career included stints as Irish Ambassador to Canada (1939-49) and the US (1950-60), before a brief return to the parliamentary draftsman’s office.
McCarthy was the person entrusted with compiling the Defence Forces (Temporary Provisions) Act in the summer of 1923, doing so with no guidance from the government. As Davitt recalled: ‘No plan or outline of a scheme for the new Defence Forces was prepared by anyone, and we were told simply to go ahead and draft a Defence Forces Bill’. Borrowing heavily from the British Army Act, McCarthy also incorporated elements of Canadian, Australian and South African legislation. As the title of the Act suggests, it was intended to be replaced within a year by new legislation, better suited to national defence policy. Instead it was renewed annually until 1954, when it was replaced by the Defence Act - a thirty year delay that speaks to the neglect of the Defence Forces by successive governments.
By the end of the Civil War, when the National Army had more than 50,000 men in uniform, the legal department had grown to a staff of nearly fifty. The work of its officers had ranged from mundane legal administration to the heavy burden of overseeing the trials of anti-Treaty IRA prisoners, eighty-one of whom were officially executed. Demobilisation at the war’s end meant that most of the department had moved on by the summer of 1923. Davitt resigned his commission in August 1924 but remained as part-time Judge Advocate General. Despite an attempt by the Council of Defence to have him replaced by Hodnett in 1925, Davitt had the political clout to hold on to his sinecure until he resigned it of his own volition in November 1926. A career soldier, Hodnett remained with the Defence Forces as Deputy Judge Advocate General. Shortly before his retirement in 1955, Hodnett was closely consulted during the drafting of the 1954 Defence Act; a fitting end to the career of one of the founding members of the Defence Forces' legal section.