Revolutionary lawyers

Sinn Féin and crown courts in Ireland and Britain, 1916–23

David Foxton

'This is a superb study of the revolutionary period from a distinctive viewpoint written with an intimate understanding of the underlying concepts. The author has a talent for explaining complex legal issues in a simple conversation manner. He is also an accomplished historian who does not baulk at presenting clear conclusions based on the evidence that he has produced. His research is meticulous and his use of judicial decisions is a lesson to historians that they neglect these sources at their peril', Tim P. O'Neill, Irish Economic and Social History (2012).

‘The republican struggle against British rule in Ireland in the years 1916–21 featured a great deal of picturesque gunplay and noble suffering but, once the killing and dying was done, it was the lawyers’ turn to wage war. For every battle in the streets there was another in the courtroom; but, while narratives of combat abound, David Foxton is the first to write a blow-by-blow account of this parallel legal campaign. We should be grateful that he has, as he has produced a terrifically interesting and useful book, obviously enhanced by his personal experience of practising law in London … Given its subject matter, Revolutionary Lawyers could easily have been dry, confusing or simply opaque to non-specialists. Instead, it is clear, enormously informative, and often quite entertaining. Foxton explains legal issues very well and he also enjoys story-telling. Beyond this, it is a treasure trove of details on lawyers, laws and court cases that would be very difficult to find elsewhere, underpinned by very wide-ranging research. All in all, it is a major addition to the history of the Irish Revolution … what set the new model Sinn Féin apart from earlier groups was its access to professional élites. Foxton’s book makes this plain, and will be an indispensible starting point to explaining how that came about', Peter Hart, EHR (Spring 2010).

‘… the real merit of the book lies in its treatment: not only of the approach of the courts to Sinn Féiners, but also its analysis; based on a wealth of previously unpublished or obscure material, of the subtle and inventive use of the Crown Courts and the legal order by the Republicans themselves as both an instrument of rebellion and of their claim to legitimacy. This book offers a singular view of both parties to the paradoxical situation where the courts face those who deny their authority but who simultaneously employ the rule of law to further their cause. It is also that rare combination: a work of extensive scholarship and a splendid read. Definitely one to pack for the Long Vacation’, Simon Rainey, Counsel Magazine (July 2008).

'Foxton, a Queen’s Counsel who practises commercial law in London, writes an assured account of Sinn Féin’s legal activities in this period. He manages to make interesting what might have been a dry account of legal niceties and arguments', Books Ireland (Summer 2008).

'This book is perhaps unique in its examination of the relentlessly pragmatic use by nationalist leaders of the Crown courts which they routinely – and contemporaneously – decried as 'enemy courts'. Dr Foxton‘s skill and knowledge unfolds that story with a lively grace: it is legal history in that it sets out the varying legal issues of the unremitting continuum of applications to crown courts and all the way to the House of Lords, the gist of the arguments, the names of judges and counsel, the decisions and references, but it is also history in the very best sense (and in A.J.P.Taylor’s sense) because it tells the reader 'what happened next' in the flow of events.
Little more than six months after the Treaty there was the trial of Dunne and O’Sullivan who had assassinated Sir Henry Wilson (p. 340); other outrages on the mainland and civil war in Ireland ensured more set pieces in the British courts, more campaigns for the release of prisoners. Through that saga moves the enigmatic figure of Art O’Brien, who seems to have been a born 'stirrer-upper' and there is much here of the legal and financial shenanigans which appear to have followed him like trailing coattails, pursued by the British, the Free State government and finally by the Republican side. However, it was on his behalf that the ghost of Charles II was first raised and he succeeded in getting compensation for being deported to Ireland! He survived to become Irish diplomatic representative in Paris in 1935. One hopes that Dr Foxton will expand his information about this intriguing character into a biography.
The sources which David Foxton has examined are widely spread; to have read the number of judgments alone is extraordinary, not to mention British and Irish papers, official and private. It is particularly heartening the use he has made of the records in the Bureau of Military History, released at last to the readers for whom they were always intended. However, it is a bit daunting to learn that in addition to all that work, he has another life in which he is a busy Queen’s Counsel engaged in commercial law. All the more then is praise due to him for having written such a great book', Mary Kotsonouris, Irish Historical Studies (2008).

‘David Foxton’s new study is a valuable addition to the growing body of knowledge on the revolutionary era, which despite the growing volume of published research on the period, remains very much in its infancy … Foxton’s attention to detail, buttressed by meticulous research and nuanced analysis represents a tour de force in unravelling the divergence of responses by the government to political violence during the revolutionary period in Ireland, as well as the efforts of individual lawyers to defend the accused. A wealth of research is very evident throughout and even the footnotes provide many enlightening gems … Far from being parochial in scope, this study should support the increasing realisation in Irish historiography that only studies rooted in local, social and political dynamics can unlock the truth about the various debates surrounding political violence in an inherently complex society’, Conor McNamara, Studies: An Irish Quarterly Review (2008).

‘Foxton has brought his legal expertise to bear on a subject hitherto neglected by historians of the Irish struggle to independence: the role Irish and British lawyers played in defending separatists before military tribunals. The reader will be surprised to learn of the support granted to IRA members (often under sentence of death) by Crown legal officials of barristers from a loyalist background … Foxton has a facility to explain complex legal issues in terms understandable to the layman … Foxton’s excellent study demonstrates that central concepts of British liberty – the “rule of law” and “questions in the House” – enabled Irish lawyers to “play the system” and, disapproval of violence notwithstanding, save the lives of some of their countrymen’, Barry McLoughlin, Books Ireland (September 2008).

‘Foxton is a barrister and Queen’s Counsel. Consequently, Revolutionary Lawyers offers many fascinating insights into the legal intricacies of what is aptly referred to in the book as the “legal front” of the War of Independence (16) …. In its exploration of the impact of Republican legal strategy in its entirety on the Crown legal system, Revolutionary Lawyers does offer genuine insights into the Republican movement’s attempt to combine “doctrinaire abstentionism with a pragmatic interaction with the institutions of the British state” (9)’, Heather Laird, Journal of British Studies (Winter 2009).

‘Some might call it hypocrisy while others might see it as pragmatism, but the use by Sinn Féin, the political wing of the Irish Republican Army, of British legal institutions to further their own revolutionary ends, presents a story that is as revealing as it is fascinating. David Foxton, a commercial silk who practises in London, has researched the subject with the forensic skills of a barrister and the thoroughness of a professional historian’, The Commonwealth Lawyer (April 2009).

‘This book demonstrates the buried wealth that lies there for all those with fortitude enough to undertake the exploration. The law can be a fruitful historical source, and not simply for the noble band of legal and constitutional historians who inhabit the land and speak the language … What shines through this book is an extraordinary, cool, detached, synthesis of disparate material … the book is a truly substantial contribution to the entire mainstream scholarship of the War of Independence and the Civil War. This is a deeply impressive, provocative, and important work of history. It should not be labelled as legal history. It nudges and stimulates the reader. You might think this happens by coincidence, until you recollect the author’s characteristics as an advocate, identified earlier. The intelligence in this book is the author’s; but he lets you think it is yours. It is a characteristic of great advocacy, and of great historical writing', Mr Justice John MacMenamin, The Irish Jurist (February 2010).

‘Foxton acknowledges that the organizations which led the Irish revolution preferred to deny the legitimacy of a legal system that they characterized as alien and that their instinct was to refuse to engage with it, but this is not his theme. Instead, he explores a parallel process of engagement by the rebels with the civil and military courts of the crown … One of the most admirable qualities of this book is the clarity with which Foxton guides the uninitiated through a myriad of complicated, often technical, matters of law. In the wrong hands this subject could have become very dry indeed, but Foxton writes with verve. It helps that he is not interested in the law in the abstract, but propels the reader forward using specific trials and courts martial. In doing so, he draws upon the inherent drama of the courtroom … He has a firm grasp of the political context and draws on a wide variety of fascinating primary sources, while his scene-setting, opening chapter provides invaluable introductions to a slew of solicitors, barristers and judges … Foxton himself is a barrister, and like a good judge he summarizes the arguments in a balanced manner, but does not shirk judgement. If Revolutionary Lawyers is a harbinger of the history to come then we may be in for an exciting time in revolutionary studies after all', William Murphy, Irish Literary Supplement (Spring 2010).