Month: April 2021

Marry a Former Chief Justice of Tobago in Haste, Repent at Leisure, 1840-55

There were many Irish barristers who took on the task of administering justice on foreign and often inclement shores in such a way as to do credit to their country of origin. Barristers such as John Jefcott, first Judge of the Supreme Court of South Australia, Henry Barnes Gresson, Judge of the New Zealand Supreme Court and Michael Hogan, Chief Justice of Hong Kong, to name only a few.

And then there was Robert Nicholas Fynn, whom Queen Victoria was pleased to appoint Chief Justice of the Island of Tobago in 1840, a mere four years after his call to the Irish Bar. Historic Irish judicial appointments usually received a mixed reception, but in Mr Fynn’s case the reaction was unanimous – he was absolutely unsuitable for the post. The Dublin Monitor of 15 October 1840 drew attention to the notable lack of congratulations, other than in the Galway Advertiser – Mr Fynn’s father was a Galway merchant – and remarked that there were some not very creditable rumours afloat concerning Mr Fynn’s peculiar claims upon the gratitude of a certain noble marquis, and that, in the total absence of all assignable reasonable motives for the appointment, there must be some truth in them.

The same publication the following week carried an effusive letter of thanks from ‘A Leinster Circuiter,’ saying that its criticism of the appointment deserved the thanks of every member of the Irish Bar, many of whom, being men of information and high moral character (the final three words highlighted), would have been far more suitable for the position accorded to Mr Fynn, to the extent that they were left outraged and indignant by being overlooked in his favour.

Though his name still appears on Wikipedia’s list of its Chief Justices, Robert Nicholas Fynn never actually reached Tobago, his appointment being revoked just as his intended ship was about to leave harbour, with all his baggage on board, already emblazoned with the grand seal to which his office technically entitled him.

Despite having been denied the opportunity to develop the law of the Caribbean, Mr Fynn did subsequently manage to leave his mark on English jurisprudence in the form of In Re Fynn, one of the earliest reported child custody decisions, the opposing parties being his estranged wife Emily (referred to in the judgment by her full name of Amelia) and mother-in-law Marian Ainsworth.

Robert Fynn first met Emily Ainsworth in Brussels in 1842, after his brief stint as Tobago Chief Justice had been followed by a lieutenancy in the 2nd division of the West Yorkshire Regiment and a period as promoter of the unsuccessful Galway and Ennis Grand Junction Railway Company. They married the following year. Emily’s mother had reservations about Robert from the start, which he temporarily quelled by producing a volume of his speeches, sealed with an official seal bearing his crest and the words ‘Chief Justice of Tobago,’ and telling her of an impending appointment as Judge Advocate in Malta, never actually to eventuate.

The morning after the wedding night Robert borrowed £50 from Emily for travel expenses; later, at Galway, when she remonstrated with him against what she thought his waste and extravagance, he struck her several blows on the head, kicked her, and threw a glass of hot spirits and water at her head and face, with so much violence that the glass was broken against her head, and at the same time threatened to thrust her head into the fire, and, on another occasion, threw her on the floor of a room with her infant child, with no other provocation than her having interfered to protect her nurse, a woman of nearly sixty years of age, from his violence.

Emily and Robert went to Plymouth, where Robert confessed that the bailiffs were after him for debts incurred before his marriage, and then to London, where Emily’s clothes were distrained for rent, before returning to Brussels. According to Emily, while in Brussels for the second time, Robert conducted himself in a most improper manner, drinking to excess, cursing and swearing and calling her a damned hypocrite, a damned bitch and a liar, before departing for Paris with their two sons, Alfred and Robert, aged three and two years old respectively, having pawned or sold certain articles of plate in order to fund the journey. Subsequently, in Paris, Robert was arrested for a bracelet that he had bought on credit, and sold on, but never paid for, and the boys had to be recovered by Emily from prison, where they had been incarcerated with their father.

Given that the above events were in no way seriously disputed by Robert Fynn, one might expect that Emily’s petition to restrain his application to regain custody of the boys would have succeeded. Such was not the case. Instead, Vice-Chancellor Knight-Bruce, despite a sympathetic initial ruling, ultimately refused the petition on account of Emily’s limited means. All the money originally settled on Emily had been expended by her on her husband, and Mrs Ainsworth’s suggestion, that she enter into a covenant to pay an annual sum to her daughter and the children, was rejected by the court as insufficient, as such a covenant was a personal one only, and would die with her.

There was, unsurprisingly, a minor kerfuffle following the Vice-Chancellor’s final ruling. Alfred Ainsworth, Emily’s teenage brother, hit Robert Fynn, and knocked off his hat. Robert justified a consequent application to have Alfred bound over to keep the peace by saying that he could forgive the contempt of court, but not the personal insult involved. His wife, he said, had also attacked him, but, of course, he was not applying to have her bound over. Possibly he felt it more appropriate to discipline her privately.

It is not reported whether the boys were subsequently returned to their father. An album of photos, entitled ‘Emily Ainsworth Fynn and family,’ was recently advertised for sale at an online auction. The album includes photos of three children who may have been Alfred, Robert, and little Emily, the latter fortunate enough not to have been included in the custody application, Robert having taken the view that, as a girl, he did not require her, and she could stay with her mother.

Robert Nicholas Fynn turns up again a few years later in the context of a private prosecution brought by him in respect of a stolen pocket knife. While admitting the item stolen was of trifling value, he stated that he had felt obliged to prosecute as a matter of principle. Unfortunately, Fynn’s own final appearance in the news, in 1855, was such as to call his own principles into question. Under the name of Captain RN Fynn, he had been advertising for governesses for two boys, requesting that successful applicants forward money for their travel expenses in advance, so that he could book their passage. Those who did, never received their tickets, though he did promise one of them that he would marry her when his wife died, which he anticipated as likely to occur within the next two months.

The governess scandal, as scandals often do, brought old history to the fore, in the form of two letters subsequently published in English newspapers, disclosing some interesting facts about Fynn’s abortive 1840 appointment. The first was a letter from Dominick Browne, 1st Lord Oranmore and Browne and former MP for Mayo, apologising for having nominated Mr Fynn for the appointment.

The second was an anonymous letter, circulated by the London Police as part of an investigation into Captain RN Fynn’s activities, which identified him as a member of the Irish Bar, referenced the Tobago appointment and stated as follows:

“Mr Fynn appears to have had, at this time also, a hankering after governesses, for he inserted in the papers a notice to governesses, or something to the effect, as well as I recollect, that their position was to be more that of a lady in waiting than that of a governess, and that they were to have the same privileges as those attending on her Majesty. This having come to the ears of Lord John Russell, he immediately cancelled the appointment. Some time after this he left London for Brussels, where he managed to get introduced to some highly respectable families, and he passed himself off as Count Fynn, with many other etceteras, and contrived to get married to a beautiful woman, niece of a member of the House of Commons. We have reason to believe that very active measures will immediately be adopted upon this subject.”

Why did Mr Fynn require the company of a governess in Tobago if he had no children at the time? Was the motivation behind the 1840 advertisement similar to that of Gerald Kingsland, later to be immortalised in ‘Castaway’?

No matter how sympathetic one might normally feel towards impecunious 19th century barristers – then, as now, building a Four Courts practice could be a challenging task – it is hard to feel much sympathy for Mr Fynn.

Particularly when looking at the photos of his lovely family above.

Poor Emily! How careful a woman in those days had to be regarding whom she married!

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The Irish Bar and Bench at Home, 1784-1890

Wilmot Harrison’s 1890 book, ‘Memorable Dublin Houses: A Handy and Descriptive Guide,’ includes much interesting information about town residences of the Irish bar and bench in the early and middle parts of the 19th century.

First up is 14 Harcourt Street, home of barrister and raconteur Jonah Barrington, whose memoirs can be read in full here. Barrington later moved to 42 Merrion Square before financial irregularities forced him to retire to Versailles, France.

Up the street at 17 Harcourt Street was Clonmel House, the residence of John Scott, 1st Earl of Clonmel, Lord Chief Justice of Ireland 1784-1798. Scott sported a permatan – something less fashionable then than now – and the well-known nightclub down the street at 29-30 Harcourt Street references his resulting nickname of Copper Faced Jack.

As the 19th century progressed, the area around Merrion Square replaced that around Mountjoy as the place of residence for the Bar to aspire to. Daniel O’Connell lived at 58 Merrion Square South, where he could be seen through his parlour window standing at his brief-strewn desk, working late. No executive chair for Dan!

Ely Place, round the corner, had been popular with eminent members of the Bar and Bench from a very early stage. Ireland’s greatest advocate, the self-made John Philpot Curran, Master of the Rolls in Ireland 1806-1814, lived at No 4 – a better-sounding address than his previous residence, Hog Hill!

Next door, at No 5, was the townhouse of the silver-tongued Charles Kendal Bushe, Lord Chief Justice of Ireland, 1822-41. In 1885, his equally persuasive grandson Seymour was to shock Dublin when he eloped from the same street.

John Fitzgibbon, Earl of Clare, Lord Chancellor of Ireland, 1789-1802, lived at No 6. It was here that a colleague, Richard Power, Chief Baron of the Irish Exchequer, came to kill him in 1794; fortunately, Fitzgibbon was out at the time.

Those rebellious Junior Counsel, the Sheares brothers, lived just around the corner at 128 Lower Baggot Street prior to their arrest and execution in 1798.

Jane Austen’s former beau, Tom Lefroy, Lord Chief Justice of Ireland, 1852-66, favoured Lower Leeson Street, ending his days in the bosom of his family at No 18 (later the Convent of the Sacred Heart).

Another great memoirist of the Irish Bar, Richard Lalor Sheil, lived at 23 Holles Street.

Though no illustration of it is shown, the book also references the house of John Toler, Lord Norbury, Lord Chief Justice of the Common Pleas, 1800-1827, at 3 Great Denmark Street, now the Olivier Cornet Gallery. Rumour has it that he still haunts his old place. Who knows? Perhaps they all do.

Almost all of the lawyers mentioned in this post were among the very top fee earners in their profession. Most also enjoyed substantial private incomes. The majority of 19th century Irish lawyers did not own or rent city mansions. Whilst many were comfortably off, a not inconsiderable percentage experienced financial difficulties in the course of their careers, with some living throughout in reduced and even pitiful circumstances. Looking forward to sharing details of less palatial legal residences in a future post!

In the meantime, here is a list of other legal addresses mentioned in Harrison’s book:

5 Leinster Street, where the unfortunate Lord Kilwarden, Lord Chief Justice of Ireland from 1798 until murdered in the Emmet rebellion, was brought to die in July 1803.

54 Merrion Square South, townhouse of Francis Blackburne, Lord Chancellor of Ireland, 1866-67.

3 Ely Place, home of Barry Yelverton, Lord Avonmore, Chief Baron of the Irish Exchequer 1783-1805, whose fault as a judge was that he jumped too quickly to conclusions.

5 Fitzwilliam Square, home of Edward Pennefather, Lord Chief Justice of Ireland, 1842-46.

18 Stephen’s Green, residence of bare-knuckle boxing aficionado William Cunningham Plunket, Lord Chancellor of Ireland, 1835-41.

31 and 33 Stephen’s Green, homes of Attorney-General William Saurin, who took charge of the Bar Militia during the 1798 Rebellion.

29 Lower Leeson Street, home of the now forgotten Peter Burrowes, ‘the Goldsmith of the Irish Bar.’

2 Mountjoy Square, residence of smell-sensitive James Whiteside, Lord Chief Justice of Ireland, 1866-76.

38 Mountjoy Square, home of the humourist Baron Dowse, another barrister who forced his way to eminence by merit.

Full book available to read here.

A Pleading Two-Step, Part 2: The Proper Business of the Junior Bar, 1856-64

From the Dublin Evening Packet and Correspondent, Saturday 8 March 1856:

“IMPORTANT – BAR PRACTICE

Judge Ball having during the day proceeded to settle issues in records to be tried in Cork at the ensuing assizes, and Mr Brereton, QC, having appeared for one of the parties, Mr John Leahy interrupted the learned gentleman, and said that as the senior of the junior bar in court, he had been requested to object to a Queen’s counsel acting in the settlement of issues without a junior with him.  The drawing of the pleadings, and the settlement of the issues as a part of the pleadings, were by long-established practice the proper business of the junior bar, and a Queen’s counsel had no right to draw them under the old system, or to settle issues under the modern practice without having a junior with him.

Mr Brereton stated that the point raised by Mr Leahy did not arise, inasmuch as he was only holding the brief of Mr Exham, who was prevented from coming on circuit by unforeseen circumstances.  He said that he was one of the seniors employed for the trial, and admitted that he had no brief of his own on the present motion.

Judge Ball observed that the practice was most objectionable, and one that ought not to be followed.  He would, however, allow Mr Brereton to act for Mr Exham on the present occasion; but in doing so, he wished it to be understood that it was not to be considered as a precedent, and that he disapproved of the practice.”

The practice, that Queen’s Counsel could not appear at the trial of cases without Junior, was well established in the Courts of Chancery and King’s Bench, but the question of whether they could draft and sign pleadings, move motions and agree settlements, thereby potentially limiting the Junior Bar’s role to the substantive hearing, was less certain.

On 8 June 1858, the Belfast Newsletter reported that

“There are rumours of the probability of a meeting of the Junior Bar being held shortly, or the purpose of considering the subject of the serious encroachments by the ‘silk gowns’ on ‘junior business.’   This unprofessional evil has grown, it is said, to an inconvenient extent, and some Queen’s Counsel – regardless of the honour of the silk – hesitate no to draft and sign pleadings, move trivial guinea motions, and motions of course.  Indeed, there are rumours that the right Hon. Lord Chancellor when conferring the honour of silk gowns, during the present term, on several utter-barristers, required of each of them a pledge that he would not receive or transact junior business.”

On the 16th of the same month, the Southern Reporter and Cork Commercial Courier reported the Lord Chancellor as having stated in court that there was as subject he wished to mention, which he hoped would not be taken in ill part by any members of the Bar. Having noticed that several Chancery petitions had been signed by members of the Inner Bar, he thought it of the greatest importance to the Bar generally to preserve the classification of business. He knew that in the King’s Bench, it was thought that a Queen’s Counsel ought not to sign pleadings unless signed by a member of the Junior Bar, and he thought it of the greatest importance to suitors that the Outer Bar should have the proper training which the discharge of Junior business would give them, and that the Queen’s Counsel should be relieved of such business.  All such petitions should in future be drawn and moved by members of the Outer Bar and if the case was one of difficulty or required the intervention or assistance of a member of the Inner Bar it might be sent after being prepared by Junior Counsel for the revision and consideration of a Queen’s Counsel.  He thought it was a matter which affected the public and he would not make any orders on such petitions unless signed by Junior Counsel.

The Lord Chancellor’s statement did not resolve the matter, and in June 1863 a meeting of the Bar of Ireland appointed a Committee of 12 Queen’s Counsel and 12 Junior Counsel to consider if members of the Inner Bar should sign pleadings at law or Equity unless countersigned by Junior Counsel. Having completed the Herculean task of analysing the pleadings in the Court of Chancery during every sixth year since 1800, and the Court of Queen’s Bench in Trinity Term during every tenth year of the same period, the Committee found that, although no positive rule had hitherto existed as to the signature of Queen’s Counsel of pleadings in Equity or at law, it was desirable that, for the future, no Queen’s Counsel should sign any pleading at law or Equity, or any document to which the signature of counsel was required – a recommendation subsequently approved by the Bar of Ireland at an 1864 meeting convened to discuss the Committee’s report.

The rule applied to pleadings only, and did not extend to petitions of appeal.   Though not included in the current Bar Council Code of Conduct, it seems to have survived into the twentieth century, being referenced in a taxation application in 1912. Subjected to some criticism from the Incorporated Society of Attorneys and Solicitors of Ireland for its potential to result in additional costs for clients, the requirement that a Junior Counsel’s name appear on pleadings did have the benefit of securing, for the Outer Bar, drafting, motion and settlement experience (not to mention fees) which might otherwise have been denied to them and, in so doing, may have provided some compensatory public service by raising the standard of subsequent Senior Counsel and judiciary. Even today, it remains most unusual to find Junior Counsel’s name omitted from pleadings – something which almost certainly would not have been the case but for that 1864 resolution!

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A Rare Bird at the Four Courts, 1888

From the Irish Times, 24 May 1888:

“CHASE AFTER A WILD BIRD IN THE LIFFEY

Yesterday, for nearly three hours, the inhabitants, and those who could spare the time, were entertained by a most interesting and exciting chase after a large bird of varied plumage, which was observed in the River Liffey opposite the Four Courts.  It transpired that the bird had some days since wandered from its habitation in the Zoological Gardens, Phoenix Park, and a reward was offered for its recovery.  The bird, however, regardless of its plumage, had taken up its quarters in the Liffey and was sporting about for some time before attracting attention. Shortly after three o’clock, the large red beak and unusual size of the bird attracted the attention of some of the denizens of Cook Street who chanced to be sauntering along the banks of the river at Merchants’ Quay.  All kinds of inducements were held out by those on shore to entice the bird to leave its quarters, but without avail.  Finally two young men divested themselves of their upper garments and went in pursuit.  They waded half way through the oozing mud banks before getting to the stream, and coming up with the bird, which was almost within grasp, but as quickly disappeared beneath the water only to reappear at a considerable distance from the pursuers.  The chase was carried on for about three quarters of an hour from opposite the Four Courts up to Queen Street Bridge.  Two boats manned by three hands in each rowed in the pursuit, but with no success, and the chase was abandoned at half-past six o’clock.  The bird was then seen proceeding leisurely towards the King’s Bridge.”

The chase would have taken place just upriver from the bridge shown in the contemporaneous image above. A subsequent report in the Dublin Evening Mail of 30 May 1888, reports that the bird, a red-faced cormorant like the one above, had been secured at Chapelizod a few days later and returned to the care of Mr Snow, of Dublin Zoo.

The Zoological Gardens had featured in a famous trial in the Four Courts four years previously, when Gustavus Cornwall, head of the Post Office in Ireland, was charged with sodomy in relation to, among others, Malcolm Johnston, of the famous Johnston, Mooney and O’Brien bread family, and witnesses gave evidence of assignations taking place within Zoo precincts. Like the later Wilde trial, the Cornwall prosecution followed a disastrously unsuccessful defamation action; unlike Wilde, Cornwall was acquitted. David Boyle, a descendant of one of the parties implicated, has written a wonderful book about the scandal – well worth a read!

Perhaps the cormorant headed for the Courts as the next best thing to the Zoo, having regard to Chief Baron Palles’ many invectives during this period against noisy barristers turning his court into a ‘bear-garden.’

There remains, of course, the intriguing possibility that William Supple, Zoo-Keeper, of Liffey Street, Dublin, who died of a python bite at the Zoo in 1867, may have been one and the same as William Supple, Law Library staff member and later Keeper of the Rolls Court, defendant in an 1852 breach of promise action. More here!

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A Pleading Two-Step, Part 1: The Dangers of Dispensing With Counsel, 1866

From the Evening Freeman, 28 July 1866 and the Cork Constitution, 30 July 1866:

“Mr Hardy applied to have the defence filed in the case of Tedcastle v Stockholme set aside on the ground that it was informal and embarrassing.

Mr O’Driscoll said he held a brief for the defendant, but he would save much trouble by stating that the defence was not maintainable.  It was framed in the old style and pleaded the general issues.

Mr Justice Keogh – Who prepared it?

Mr O’Driscoll – It was drawn by a barrister, the only one in town at the time.  He is a member of the Bar, but I have never seen him.

Mr Hardy – I have never seen him either, although he was called to the Bar in 1834.  He seems to have been asleep since. (laughter)

Mr Justice Keogh – Who is the attorney?

Mr O’Driscoll – Mr Geary.

Mr Justice Keogh – Is Mr Geary here?

Mr O’Driscoll – He is not, but his son is.

In reply to the learned judge, a little boy stated that his father, Mr Geary, was at the Head-Police-Office.  After a lapse of about half an hour, and when the business of the court was about to conclude, Mr Geary was called, and did not answer.

Mr Driscoll – I suppose Mr Geary will be here yet.

Mr Hardy – I do not think he will. (laughter)

Mr O’Driscoll – That is a very pert observation.  He is labouring from physical infirmity and I believe he is a very respectable man.  I do not think any gentleman at the Bar should make such an observation.

Mr Justice Keogh – I do not like to say anything about it, but I concur with Mr Hardy. I require an express affidavit from the gentleman at the Bar who signed that defence, and an affidavit from Mr Geary himself, if necessary.  It has been sought to suppress all discussion by declaring that the thing was indefensible.

Mr O’Driscoll – I did not intend to do so.  I had no object in doing so.  

Mr Justice Keogh – There is an old French maxim ‘Qui s’excuse s’accuse.’

Mr O’Driscoll – Your lordship used a hard expression.

Mr Justice Keogh – I deliberately used that expression.”

The matter resumed the following Tuesday, when the court was furnished with an Affidavit from Mr Thomas Barrington Geary, of no 22 Peter Street, stating that he had drafted a defence, and taken it to the residence of Mr Curran BL for approval, only to be told that Mr Curran was at the Tullamore Assizes, and that, although the defence could be sent down to him there, it would take two days for it to be signed and returned.  As the defence had to be in the following day, Mr Geary then recollected Mr Thomas W Reilly, a member of the Bar whom he had known for many years and who, after having been paid the proper and usual fee, signed the defence in his presence.  

Also read out in court was a letter from Mr Reilly:

“DEAR GEARY I need not say how much concerned I was upon reading the Irish Times of Saturday last, to perceive that the draft defence to which I attached my signature had been the subject of such serious animadversion.  I can only remark that if I made an error in the pleading it was an inadvertence that, perhaps, might occur to any other barrister.  All I can say is, that, considering your long experience, I did not very attentively examine the draft and felt myself perfectly secure in putting my name to it when you brought it to me, accompanied by the usual fee which you paid me on the 19th inst, the day on which you signed the defence.  I hope this letter will answer the purpose.”

Judge Keogh said that the fact that Mr Reilly was not known at the bar as a practising barrister had caused him to fear that a name had been put to the defence without Counsel signing it.  His only anxiety in the matter was the the legitimate rights of the Bar should be respected.  It would appear that Mr Reilly put his name to the pleadings without judging himself of their contents.  It was to be regretted that any professional gentleman would make himself the instrument of an attorney by attaching his name to a document without taking the proper pains to see if it were correct.  Mr Reilly’s letter contained an admission that he had acted in a most improper manner, and he was sure it would be condemned by every member of the Bar in far stronger terms than he had just used.

The question of defences unsigned by Counsel had been troubling Irish courts generally for some years.  It was a requirement of General Rule 33d that all pleadings subsequent to summons and plaint be so signed, the fee on taxation, for advising and preparing on such pleadings, to be not less than one guinea. 

Purportedly developed to prevent defences being filed purely for the purposes of delay, the rule was strictly enforced by the judiciary, former barristers themselves, with an eye to preventing any abrogation of the Bar’s privileges.   A defence filed without Counsel’s signature would be struck out, and a solicitor who signed Counsel’s name on their behalf – even if out of town – could expect to be heavily censured.

In 1862, the Court of Common Pleas took it on itself to inquire as to the purported signature of Mr Tuckey, a conveyancing and chamber barrister in Cork, on a defence described by Chief Justice Monahan as ‘such an extraordinary attempt at pleading that it is doubtful any member of the Bar ever prepared it.’  In response, Mr Robert Martin, solicitor, admitted that Mr Tuckey had not signed the defence, but said that he had, in other cases, given him authority to put his name to pleadings if he could not get to Dublin in time to sign them, something which was denied by Mr Tuckey.  

Mr Martin received a fine of £15, and a severe dressing down from the Chief Justice, who remarked that the case would of course have been much more serious if the court had been of the opinion that there had been an understanding between the two men that Mr Martin would be at liberty to place the name of Mr Tuckey to documents of this kind.

The requirement that Counsel’s signature appear on the defence was removed by the Supreme Court of Judicature (Ireland) Act 1877, which must have resulted in a drying-up of income for any non-practising barristers ready willing and able to append their names for a guinea.  Mr Reilly’s embarrassing fate must have served as a reminder to all members of the Bar to read any solicitor-drafted pleadings carefully before signing – and to keep up to date with professional developments!

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