By 1916, having recently requested an oil sketch of his late wife (lot 44), Mr Justice Darling was well aware of Lavery’s pre-eminence. Regarding himself as something of an aesthete, the vainglorious judge, had been portrayed during his rise to the Bench, by Charles Wellington Furse (National Portrait Gallery) and George Henry (Colchester and Ipswich Museums) in 1890 and 1898 respectively, and in 1904, having secured Lavery’s small sketch of his daughter, he returned to the painter for his own controversial portrait (fig 1).[1] Even though its theatrical air matched the sitter’s reputation, portraying Darling as a hanging judge was considered inappropriate by some.

Now a widower, Darling had just received the news that his only son (see lot 45) was severely wounded on the Western Front when he received the call to preside over the Casement Appeal in July 1916. For public and personal reasons, leniency in this instance was not an option for a staunch Unionist who had trained Edward Carson in his chambers.[2] Since his own portrait was painted, he had seen Lavery take on important commissions and maintain his pre-eminence with the portrait of the Royal Family, 1913 (National Portrait Gallery). In 1915, he would have noted the newsworthiness of the artist’s Wounded, London Hospital, (Dundee Museum and Art Gallery), painted in the wake of the retreat from Mons, and shown in an Academy exhibition castigated for largely ignoring the unfolding horror of war. This was an artist unafraid to tackle a difficult project and, in the summer of 1916, when Darling was appointed to try the Casement Appeal, he was in a position to offer just such a testing opportunity.[3]

Although their circumstances were very different, Sir Roger Casement (1864-1917) had, like Lavery, spent his childhood in Ulster. Having entered the Colonial Service, his friendships with Herbert Ward, ED Morel and the novelist, Joseph Conrad, and his whistleblowing work on the brutal exploitation of local populations in the Congo Free State, the personal fiefdom of King Leopold of the Belgians, had brought him to public attention. A similar task was performed on the rubber plantations of the Peruvian Amazon while acting as a British Consul at Rio de Janeiro, and for his reporting and anti-slavery campaigning, Casement was awarded a knighthood in 1911.

It is not known precisely when he converted to the cause of Irish independence but after the outbreak of war, his anti-Imperialist sympathies led him to Germany on an unsuccessful campaign to recruit prisoners-of-war to an ‘Irish’ (Volunteer) Brigade.[4] Becoming an embarrassment to the German government, he was landed from a U-boat on Banna Strand, in county Kerry on Good Friday 1916, where he was immediately arrested and transported to London on a charge of High Treason.[5] The Easter Rising in Dublin came two days later on Easter Monday. After the rebel leaders were rounded up and executed, Casement’s trial began on 26 June, lasted four days, and he was convicted.[6] The Appeal on points of law in front of five Law Lords on 17 July 1916 took two days and he was hanged at Pentonville on 3 August.

For those two days, Lavery, accompanied by his wife, Hazel, sat in the witness box recording the scene in the present sketch. Its rediscovery, and historical importance, is beyond dispute.

During the painful excursion into legal precedent deriving from a fourteenth century statute on treason, Lavery’s concentration on the scene before him was intense. Although he made efforts to conceal his industry, the production of the present 10 x 14-inch canvas-board in an awkward space was detected by the press as well as by the prisoner in the dock facing him.  The appellant sent notes to his cousin, Gertrude Bannister, inquiring ‘who was the painter in the Jury box?’ and who was the ‘sad-faced’ lady who sat near him? Casement, as Lavery recounts, was extremely taken with Hazel’s appearance, despite the fact that reports concerning his homosexuality and allusions to the infamous ‘Black Diaries’, were circulating in the press. 

Much is made of Casement’s attitude to the proceedings.[7] Thinking back over what had passed before his eyes, the artist reflected that,

It was difficult to realize that a man’s life was at stake in the drowsy monotony of the talk that went on for two days, or even at the end when Justice Darling, in the most casual manner, said "the Appeal is dismissed".  Casement stood up and looked round the Court, waved to someone in the gallery, turned his back and disappeared down the stairs that would lead to the scaffold.[8]

Using the present sketch as his primary source, Lavery set to work on an ensemble study of the scene before embarking of the large canvas (fig 2).

When it became known ‘in artistic circles’ that the artist was working on something more than on-the-spot notes, he was warned off memorializing the subject in the ‘secret history’ column of The Weekly Dispatch.

Mr Lavery ought not to paint his picture without knowing the contents of the two diaries found on Casement, which diaries afford such a realistic insight into the sort of life pursued by the dead traitor. In Germany, it now appears, Casement’s habits were no secret in certain circles and the Eulenberg (sic) coterie were proud to acclaim him as among their number. From all of which it follows that the forthcoming picture is sure to attract immense attention, but scarcely the kind of notice that so popular an artist is seeking.[9]

Lavery read this but pressed on undeterred.[10] Lord Darling and his colleagues convened in the artist’s studio at 5 Cromwell Place on 10 December 1916 to view and approve the ensemble study (fig 7).[11] The painter then continued working on the large version.[12] However, early in the new year he, his wife and stepdaughter travelled to Mimizan and St Jean de Luz and on his return in April, other commissions were pending.[13] The difficulty in arranging further sittings with the protagonists, delayed the completion of the finished version and in August 1917 the painter received his ‘pass’ as an Official War Artist, an appointment which would dominate his diary until the summer of 1919.[14] With no formal commission, High Treason … languished uncompleted until 1931.[15] In Lavery’s will, dated 8 May 1940, the picture was to be offered to the National Portrait Gallery in London, although it ended up with the Government Art Collection – yet in line with the artist’s earlier wish that it should hang in the Irish capital, in 1951 it was placed on long loan at King’s Inns, the Dublin Inns of Court.

It is now possible, for the first time in over one hundred years to view the complete sequence leading from swift sketch to finished work, noting the dramatic light and shade the painter has introduced into what otherwise might be a static, dutiful composition containing over two dozen identifiable figures and measuring nearly ten feet wide. On such a scale we need to stand back.

Back in the July days in 1916, with his pochade box perched on his lap, concealed by the parapet of the witness box, omitted from the final composition, Lavery’s original perception of what was before his eyes was contained on a board, a mere fourteen inches wide. There is an untidy flutter of papers in the foreground, as the judges, blobs of scarlet, oppose the stammering Serjeant Sullivan, Casement’s defender, his face mere single stroke of flesh colour. Light, where it hits the room, flashes on the varnished panels on the front of the Bench, and overall, like a rising moon, is the faceless clock on which time will be seen to be running out – as it always is. In truth (and nothing but the truth!) the weary moment is caught.

And here, for the first time, we have the unmitigated probity of visual notation, the rescued fragment that stands for the whole attenuated two-day circus. It collapses time into a single series of brush marks - backdrop, stage flats and props, the untidy splotches of performers, saying their lines – and barely visible, behind bars of brass, the smudged subject of it all.

Kenneth McConkey

[1]              John Lavery, The Life of a Painter, 1940 (Cassell), p. 188 records that the artist noticed the Black Cap, ‘of a shape worn by Erasmus in the Holbein portrait’, on a table when invited to lunch at the Old Bailey. He then suggested that the judge wear it during sittings.

[2]           Edward Carson PC (1854-1935) had led Ulster Protestants in the signing of the Ulster Covenant in 1912 and had sat for Lavery in 1915 (Hugh Lane Gallery, Dublin). Lavery’s sympathies were of course, republican.

[3]              We do not know precisely when this conversation – if conversation it was – took place, but it is likely to have happened between the trial at the end of June and the 17 July, the date of the Appeal. Lavery was up for the challenge. There appears to have been no formal commission as such, but given the public interest in the proceedings, it is likely that even if a buyer did not come forward, his monumental record of the event would in future, be historically quotable. 

[4]              In Barbara Dawson et al, High Treason, Roger Casement, 2016 (exhibition catalogue, Dublin City Gallery, The Hugh Lane), p.14, Dawson suggests, I believe correctly, that Casement took up the Irish Nationalist cause in 1913 when a fever epidemic, echoing the Famine, swept Connemara.

[5]              Casement was arrested on Good Friday (21 April 1916), two days before the ‘Easter Rising’ in Dublin on Easter Monday.

[6]           The trial has been exhaustively documented, both in the contemporary press and in Dudley Barker, Lord Darling’s Famous Cases, 1936 (Hutchinson), pp. 165-178. It has been recounted in even greater detail in H Montgomery Hyde, Famous Trials 9, Roger Casement, 1964 (Penguin Books), pp. 115-146 (for the Appeal). For a discussion of Lavery’s large courtroom version (fig 8) including a helpful numbered identification of its protagonists, see John McGuiggan, ‘A Rare Document of Irish history, “High Treason” by Sir John Lavery’, Irish Art Review, vol 15, 1999, pp. 157-9; see also McConkey 2010, pp. 131-2; and most recently in Donal O’Donnell, ‘High Treason: The Appeal of Roger Casement’, in Dawson ed., 2016, pp. 27-41.

[7]              He wondered, with some irony, for instance, if the painter did not come ‘dangerously close’ to ‘aiding and comforting’ the Judge, words that come straight from the Treason Act of 1351, over which the debate raged.

[8]           John Lavery, The Life of a Painter, 1940 (Cassell), p. 190.

[9]              Anon, ‘Secret History of the Week – A Hint to Mr John Lavery’, The Weekly Dispatch, 22 October 1916, p. 5. The ‘Eulenburg coterie’ refers to a homosexual group in Kaiser Wilhelm’s administration that was unmasked and led to a series of trials in Germany in the run-up to the Great War.

[10]              A copy of the Weekly Dispatch text, not fully ascribed, was pasted into Hazel Lavery’s scrapbook; see McConkey 2010, p. 132, (note 102).

[11]              In a letter the following day (11 December 1916, HKA Tate), Darling advised that ‘historic truth would not gravely suffer’ if the apellant was shown standing up, since a brass bar across the front of the dock obscured Casement’s face from where Lavery was sitting.

[12]              A Christmas letter to Lavery’s cousin, Kate Clenaghan (Private Collection) confirms that he was ‘engaged on the large canvas of the appeal of Roger Casement which will also - I hope – go to Ireland one day’.

[13]              They had been invited to stay at The Woolsack, The Duke of Westminster’s shooting lodge at Mimizan in the Landes, and thereafter, in March repaired to Fuenterabbia and St Jean de Luz; see Kenneth McConkey, Lavery On Location, 2023-4 (exhibition catalogue, National Gallery of Ireland, Dublin; Ulster Museum, Belfast & National Galleries of Scotland, Edinburgh), pp. 150-4.

[14]              McConkey 2010, pp. 136-144. In January 1918 a letter from Professor JH Morgan, who assisted Gavin Duffy, the solicitor in the Appeal, indicates that Sir John Simon was wrongly placed and a further letter from Darling (1 January 1918) congratulating Lavery on his knighthood, expresses the hope that he will take it that ‘HM Government’ wishes him to complete the work. Darling had no grounds to imply that the government, with war still raging, was remotely interested in the project. Clearly, he wanted the picture completed for personal reasons even though he was not paying for it.

[15]           Lavery seems to have resumed the painting while confined to base, recovering from an operation.

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Auction Details

Wednesday 13 March, 10.30am GMT
Donnington Priory, Newbury, Berkshire RG14 2JE

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