On Thursday last week, the action of D Coffey, Derrymilleen, Co. Cork, farmer, v Denis P O’Regan, Farransbesbary, Enniskeen, Co. Cork, farmer, was listed for hearing in the Chancery division before Mr Justice Powell. The plaintiff sought specific performance of an agreement for sale by the defendant.
When the case was called, Mr DB Sullivan BL said neither of the parties had turned up, and he would have to ask his lordship to take the case out of the list for the present. They could only guess what had happened. Mr Bourke was for the defendant and he consented.
Mr JF Bourke BL – I can do nothing else but consent. We do not know what has happened. We can only guess. The fact is no witnesses are here on either side.
Mr Justice Powell – The best thing I can do is to strike the case out.
Mr Bourke – We have no definite instructions of what has happened.
Mr Sullivan – Let it stand out of the llst for the moment. We will mention it again in the event of it going on. I don’t suppose it will.
Mr Justice Powell – Very well. By consent take the case out of the list for the present.”
A barrister’s worst nightmare! Whatever could have happened? The date of the above events raises the suspicion that the missing parties had eschewed the Four Courts in favour of the Dáil Courts – the first alternative dispute resolution mechanism in Ireland since duelling went out of fashion midway through the previous century.
The first newspaper reference to Irish barristers being involved in such proceedings is to be found in the Evening Mail of 21st May 1920, which references one Kevin O’Sheil BL as presiding over a landlord and tenant dispute before an Sinn Féin Arbitration Court in Ballinrobe, County Mayo.
A subsequent court held in Ballinasloe, County Galway, the following week was presided over by an unnamed barrister of the High Court. Eight or ten solicitors of the Circuit argued cases. The evidence was taken in the usual way with a pledge of honour substituted for the oath.
The Ballinasloe Court – the largest Arbitration Court so far – led to a question being asked in the House of Commons as to what steps the Attorney General for Ireland, Denis Henry KC, proposed to take to deal officially with lawyers who participated in such court proceedings. Mr Henry’s response was that this was a matter, in the case of barristers, for the Benchers of the King’s Inns and, in the case of solicitors, for the Incorporated Law Society. The questioner, Colonel Ashley, then asked if he was to understand that the Crown had no power to deal with barristers or solicitors who had taken part in treasonable and illegal proceedings. There was no reply from Mr Henry.
On the 24th June, 1920, the news broke in the Four Courts that the Bar Council had, at a special meeting, passed a resolution declaring that it was professional misconduct for any barrister to practice in a Sinn Féin Arbitration Court. It was stated on behalf of those who attended that any barrister found so practising would be reported to the Bar Council and dealt with thereafter by the Benchers, who would have the duty of determining what sanction should be imposed against them. This was in contrast with the decision of the Incorporated Law Society of Ireland not to interfere with the appearance of solicitors at such courts.
The Bar Council resolution created considerable hubbub, having regard to the fact that, during the 1913 Home Rule agitation in Ulster, many members of the judiciary and prominent lawyers had been members of a Provisional Government which declared its refusal to recognise the Home Rule Act, without any objection from the Bar Council.
On the 28th June a letter from Maurice Healy KC, 1 King’s Bench Walk, Temple, London, brother of controversial Irish barrister and politician Tim Healy, was published in the Irish Independent. Mr Healy stated that
“So far as I understand the position of a barrister he is entitled not only to appear before every court (other than certain statutory exceptions); he is also entitled to act as arbitrator or to appear as counsel before such arbitrator. Accordingly, the only objection that can be raised to a barrister appearing before a Sinn Fein court is that he is acknowledging the jurisdiction of an authority other than his Majesty’s government… whatever weight should be attached to this objection in 1920, should also have been attached to it in 1913.”
The following day a decree of the First Dail abolished the Sinn Féin Arbitration Courts and replaced them with Dáil Courts of wider jurisdiction.
On the 3rd July 1920 The Freeman’s Journal carried a letter from Serjeant McSweeney KC saying that the Bar Council resolution involved the threat of professional ruin to Irish barristers and deprivation of their means of living. He also pointed out that the resolution was not yet technically in force, as it had not yet been formally posted up in the Library.
The Londonderry Sentinel, on the other hand, regarded the Bar Council resolution as unnecessary, since no decent counsel would soil themselves by association with such tribunals:
“The slaves who are bullied into submitting to the Sinn Fein courts subscribe to the lie that the Irish Courts, of which every member of the Bar is an officer, are enemy organisations for the oppression of Ireland. No man, unless afflicted with the mind of a prostitute, could believe in this declaration and still desire to be a member of the Irish Bar.”
Of course, involuntary starvation can lead even the most chaste to sacrifice their virtue, and, as the Sentinel itself acknowledged, the official courts were by now practically empty throughout three fourths of Ireland, the only business being applications for criminal injury compensation, with the word in the Law Library being that when the judges went out on Circuit in 1921 there would be practically no business for them.
The forthcoming July Assizes showed that things were even worse than predicted. Lord Justice Ronan had practically nothing to do in the Record Court at the opening of the Mayo Assizes in Castlebar. This was due to the fact that a Dáil Court held on the previous day, and attended by a large number of barristers and solicitors, had heard almost all the appeals listed for the Assizes.
On 7th July 1920, it was reported that an informal meeting of the Leinster Circuit had resulted in a resolution of the majority of the Circuit that a member of the Bar, instructed by a solicitor, was entitled to appear before any Dáil Court.
Later that month, the news broke that the Attorney-General’s brother-in-law Hugh Holmes, son of Lord Justice Holmes of the Irish Court of Appeal, John Monroe, son of Mr Justice Monroe, and Mr Webb, a leading junior on the Connaught Circuit, were leaving Ireland to take up judicial positions in Egypt. Meanwhile, the Derry Journal of 27 August 1920 reported that three of their colleagues from Dublin were spending the long vacation learning Irish at Coláiste Cholmcille in Cloghaneely, Co. Donegal.
A meeting of the Bar to consider the June resolution, postponed due to the July Assizes, took place in the Law Library on 5th November 1920. It was held in response to a requisition signed by about seventy members of the Bar and there was a large attendance. Tim Healy, in an address frequently interrupted by applause throughout, expressed the view that the Bar Council had no right to pass judgment on the conduct of any member of the Bar or on their action or non-action, the only body with a right to do so being the Benchers. According to Mr Healy, the Bar Council was under a misapprehension if it thought that its duties corresponded with those of the Bar Council in England, where, due to the presence of four Inns of Court, it was necessary that some body should exist there which would have general jurisdiction in matters of professional etiquette.
After some discussion the meeting adjourned indefinitely. According to the Freeman’s Journal of the following day, it was generally understood that the feeling of the meeting was that the Bar Council had acted without jurisdiction and that the effect of the proceedings of the meeting had been to nullify the previous resolution.
On the 12th of the same month, Mr Diarmuid Crowley, barrister and Circuit Court judge in the Dáil Courts, was arrested on returning to his lodgings at the Moy Hotel, Ballina, after presiding over a court in that town. A report of his arrest in the Manchester Evening News described Mr Crowley was known as a sound lawyer and a fearless advocate has appears in some important civil cases before the judges in the Four Courts. One suspects that his arrest was not unconnected to what had taken place in the Law Library the previous week.
What happened to Mr Crowley? Or, indeed, the Dáil Courts? What did barristers and solicitors unwilling to practise in these courts do to occupy their time throughout 1920? You’ve guessed it – they lobbied for an increase in fees! How many went to the Colonies? The story continues here!
A farmer of 42 years, who sent emissaries to arrange a marriage with a girl half his age, figured as defendant in a breach of promise action in Ballina Circuit Court. He was ordered to pay £220 damages.
One of the witnesses made the interesting statement that nine-tenths of the marriages in Co Mayo are arranged by parties other than the principals.
The judge said it was the most extraordinary case of the kind he had ever heard of. ‘The defendant’s own public confession here in court,’ he declared, ‘is sufficient condemnation of him.‘
‘I have no hesitation in saying that the way this case has developed is the most extraordinary breach of promise action I have ever heard myself, or of which I have ever heard.’
This was the comment of Judge Wyse-Power at Ballina Circuit Court, giving judgment for £220 in breach of promise action, preferred by Miss O, a farmer’s daughter, against a farmer named Edward C.
The girl’s age was given as 21 and the defendant’s as 42. The plaintiff was stylishly dressed and a pretty girl. The parties were neighbours, said Mr Fitzgerald Kenny, who appeared for the plaintiff, and the claim was for £500 for damages for breach of promise of marriage.
In June 1923, the defendant sent two emissaries, one a man named Murphy, to the plaintiff, and the other his brother, Daniel C, to the father of the plaintiff, asking whether there would be a possibility of a marriage between himself and the plaintiff being arranged.
Towards the end of June defendant came to the plaintiff’s father’s house and asked if a marriage between Baby, the plaintiff’s pet name, and himself could be arranged. The parents consented, and the question of the fortune was considered. The plaintiff was to get a fortune of £150 down and £50 in 12 months’ time and the marriage was to take place in three weeks.
The defendant, who lived with his mother and his brother, Dan, told his mother
‘I am going to bring down this girl before Christmas, and I hope you will like her,’ and the mother replied: ‘I wish you had brought her here long ago.’
When the three weeks had nearly elapsed the defendant showed the plaintiff a deed of conveyance of the farm from his mother and brother to him and told her they would go on their honeymoon for a week to Belmullet. Defendant told her he wanted to build a room to his house, and would have to postpone the wedding.
Up to that he had come frequently to the plaintiff’s father’s house, and was teaching her to play the melodeon. A coolness arose, but there was no breaking off of friendly relations. In September defendant came to the plaintiff’s house, and said he wished to have the date fixed for the marriage. The plaintiff’s mother had a sore foot, and it was arranged the wedding should be put off until after Christmas. They went into Ballina, and defendant bought the plaintiff a pair of gloves, which cost the substantial price of 17s.
Counsel went on to say that on February 10 plaintiff met the defendant on the road and he seduced her, and told her they would be married on February 17, but he did not keep his engagement, and little more than a month later he married another woman. A baby girl was born to the plaintiff on November 21, 1921, and a cloud of disgrace was cast by the defendant over an honourable and respectable household.
John O, father of the plaintiff, told of the negotiations, and of his asking the defendant how much fortune he wanted. Defendant said he would leave it to himself. Witness offered £100, but his (witness’s) wife said he would give more, and he agreed to give £150 down and £50 in 12 months’ time, which satisfied the defendant, who said his brother Dan wanted £300 for his interest in the form, but that he would supplement the £200 by rearing a few pigs and cattle for Dan.
It was the custom in Co Mayo, witness said in answer to counsel, that nine-tenths of the marriages were arranged by parties other than the principals.
The plaintiff said when defendant left her father’s house after his first visit of arrangement, he came to her outside and said he had arranged a marriage. ‘He asked me was I satisfied,’ she went on, ‘and I said I was. He told me then to get something new, and he would bring me to Belmullet for a week after the marriage.’ She had known the defendant, she said, for years, and was fond of him.
‘Was there no more romance about it than that,’ questioned the Judge. ‘Did he kiss you?’
Plaintiff – No, my lord.
She met him again that evening, when there was a crowd present.
‘Love can make opportunities,’ said the Judge. ‘Did he kiss you then?’
Plaintiff – No, my lord.
Continuing, she said the marriage was put off first until September, and then until Christmas. On Christmas Eve, he took her to Ballina, and bought her a pair of gloves (the gloves, still new and unworn, were produced.)
Plaintiff gave evidence of the act of seduction.
To Mr Kelly, she said she was not surprised that defendant did not kiss her after they became engaged, and she could not tell when he kissed her first. She first heard of his intended marriage to Mary L, another neighbour, the night before he was married.
Defendant denied that he ever promised to marry the plaintiff or that he asked her to marry him, or asked her father to agree to their marriage. He admitted he seduced her, but not under promise of marriage. He had been keeping company with his present wife for 15 years, and the match with her was arranged a fortnight before the wedding. Plaintiff’s father asked him to marry his daughter (the plaintiff) in 1922 and at Christmas 1923, saying he would be well off and not to marry the other girl, as she would have no money, and he told the father he did not know what he would do yet.
‘Are you ashamed of yourself for ruining this girl,’ asked Mr Kenny, and the defendant’s reply was ‘I don’t think so.’
Defendant’s wife gave evidence that he had been keeping company with her for 15 years and gave her a ring 5 years ago. In January, 1921, he sent a man to her to arrange marriage, and they were married on March 15.
‘I don’t want to comment too strongly on the action of the defendant,’ said the judge at the conclusion of the case. ‘I think his own public confession here in court is sufficient condemnation of him. The damages must be such as will speak for themselves,’ and he made the decree for £220.“
Was Mr C a rotten cad? Or were the O family lying through their teeth? Claims by girls allegedly seduced were a lucrative source of revenue for Irish barristers as late as the 1920s, but we find significantly less of them in the following decades, as ‘ruined’ women disappeared into the shadow of Magdalen homes, with their children adopted rather than, as in this case, kept in their mother’s family. Did Mr C step up to the plate in future years and assume parental responsibility for his son? Or did ‘Baby’ and her child use the money to emigrate to a new life in America? How did the new Mrs C feel about the whole thing? It would be fascinating to know!
Though the grounds and means of complaint may have changed over time, there is nothing new about criticism of Irish judges.
As far back as 1826, one Daniel O’Connell petitioned for the removal of Lord Norbury, Chief Justice of the Common Pleas, on the ground that he was 85, afflicted with deafness, and lethargic stupor which rendered him entirely unfit for discharging the duties of his office, as he frequently fell asleep during the most important trials.
Throughout the 19th century, almost every judicial appointment was subjected to criticism from one or more organs of the press; the burning of effigies of judges who had given unpopular decisions was not uncommon, and there were a number of assassination attempts.
Even non-politically charged publications were not afraid to tweak judicial robes as popular interest in the judiciary peaked in the latter part of the 19th century. In 1889-90 Irish Society (Dublin) ran a weekly series, ‘Our Judges,’ in which an anonymous ‘Dublin Barrister‘ recounted in the most intimate detail the personalities and peculiarities of each individual member of the Irish Bench of the time.
Despite the shock of the pieces, most of the subjects were still alive in 1891 when the Graphic published the above two-page illustration of the Irish judiciary. Let’s see what ‘Dublin Barrister’ had to say about each of them.
I. Mr Justice Gibson
Brother of Lord Chancellor Edward Gibson, Lord Ashbourne, John Gibson comes in for some criticism for committing the fatal sin of ‘forgetting that he himself had once been a barrister.’ Possessed of the indescribable Gibson voice and accent, and prematurely white hair, he is described as ‘difficult’ when sitting as a Divisional Judge, particularly when his colleagues agree with him.
II. Mr Justice O’Brien
‘Extravagantly Celtic’ in nature, and ‘reminiscent of a Cardinal in appearance,’ Corkman and former Green Street prosecutor William O’Brien can be a terror to witnesses, ‘often recalling them to the box after they had stepped down and thought themselves safe.’ Although ‘occasionally angry, sometimes even storming with anger,’ he always comes into court in a good mood,‘amiable characteristics returning as soon as the storm was over.’
III. The Lord Chief Justice
‘Mickey’ Morris, ‘the most Irish of judges with his strong Galway brogue, his wit, his shrewdness, his great power of striking terror and his preference for common sense over law,’ got a tough time from ‘Dublin Barrister,’ who described his rulings as ‘unpopular’, and the judge himself as ‘dullness itself’ as a public speaker – comments so controversial that a colleague subsequently wrote in complaining. Possibly the writer had been personally offended by the Lord Chief Justice’s practice of ‘conspicuously reading the newspaper during counsel’s summing up in jury trials,’ while actually listening intently; his own subsequent summing-up being invariably excellent.
IV. The Lord Chief Baron
No criticism for Christopher Palles, described in glowing terms as ‘one of the most popular judges in Ireland, but besides popularity he commands the respect of all who know him… what an infinite variety of learning he possesses to be sure and with what ingenuity he applies it to everything – though sometimes it can be hard to understand his judgments… As conscientious and painstaking in small matters as in great, to the most trivial motion he gives his whole attention determined to do absolute justice to every party – according to law. His love for the law is a governing principle in his nature and can only tolerate common sense when in strict agreement with law – though where he finds man a stickler for his legal rights without regard to the real justice of the case he will find means ‘within the law’ to bring him to sense of fair and honourable dealing as between man and man.’ Although ‘generally somewhat pedantic and no means always in the sweetest of humour, when angry, the Bar never resents it, as they instinctively feel that his anger is founded on righteousness... In fact, the first person to comfort the victim is usually Chief Baron himself, who is magnanimous enough to make up by a kind, complimentary word later on for the annihilation he has wrought.’
Even disappointed litigants were reluctant to appeal Palles’ rulings -though he himself was never happier than when one of his judgments was on the way to the House of Lords. Once, as a junior barrister, ‘after hearing that some advice he had given in his professional capacity had resulted in pecuniary loss, [Palles] sat down at once and wrote a cheque for a sum of money sufficient to indemnify the unhappy client... it is to be hoped that such conduct was mere chivalry and generosity on Palles’ part, and that no obligation of the sort attaches to the opinion of Junior Counsel in general.’
William Drennan Andrews is described as ‘thin and delicate, with the marks of study, and work, and scant response on his face, his countenance occasionally lighted up by mirthful enthusiasm and of a temperament the farthest possible removed from the phlegmatic.’ He is unusually energetic, and always three points ahead of counsel, thinking of new relevant cases, and sending to his private library for books which might assist. ‘Dublin Barrister’ describes Judge Andrews as possessing ‘what is, in a judge, more powerful than brilliance, namely a power of concentrating his faculties on every subject before him whether of interest or not.’ Although he can consequently take an hour to dispose of a motion of course, he jealously guards the rights of an accused, and, when in practice, was known as a hard working barrister, ‘who although loaded with briefs and importuned by annoying attorneys would nevertheless make time to give friendly advice and assistance to any other brother barrister that consumed him.’
VI. Mr Justice Harrison
A portly, round, comfortable man, who travels to the Four Courts each day in a comfortable brougham, ‘prosperity shines from [Michael] Harrison’s countenance, his person, his gait and his attire.’ A Northern Ireland man, he has great respect for commerce, strong common sense and moderation but ‘becomes a little talkative on circuit, especially in Ulster.’ He has ‘a useful faith in counsel’s competency to conduct his own case,’ and is extremely fair to the prisoner in criminal cases. Without ‘brilliant talent or very deep learning,’ his judgments are ‘short, lucid and well expressed.‘
VII. Mr Justice Murphy
In the palmy days of Green Street, Limerickman James Murphy used to prosecute for the Crown. Originally ‘a man without too much of the milk of human kindness,’ he is now known as ‘a judge of tender feelings and generous emotions, sometimes so overcome by the pathetic side of a case that his feelings are apt to run away with a sober judgment.’ He is however, terrifyingly bombastic in sentencing. His ‘extreme solicitude for the convenience and comfort of jurors makes him very popular with Dublin businessmen.’
VIII. The Recorder of Dublin
Though not a judge of the superior courts, Frederick Falkiner, Recorder of Dublin, is as well known as any of its justices; every practitioner addresses him as ‘my lord’ and no member of the Bar dare appear before him unrobed – even during the long vacation when other judges allow counsel to appear in undress. Custom has surrounded him with all the dignity and circumstance of a judge; he despatches a vacant amount of business, his decrees ‘having recourse to every kind of device – common law, natural equity, legal equity and common sense’ – and he will exercise every means to promote settlement. Of a literary bent, he is ‘willing and able to illumine the dreary proceedings of the day by reflecting on them the gleams of his own refined thoughts and imagination as they come flashing through his mind – a single word will recall to him some scene in Shakespeare or an incident in the Arabian Nights.’
When his tipstaff, Robert Pierson, was tragically killed in the Phoenix Park in June 1905, the Recorder took personal charge of the collection for his family. Some of the cases which came before him were more amusing than others – read about one of the most pleasant ones here.
IX: Mr Justice Johnson
Of essentially ecclesiastical appearance, with a mild and polite urbanity of temper suggestive rather of the English cleric than the Irish lawyer, it is almost impossible to conceive Judge Johnson as having passed through ‘the rough and ready training, and the scrambling, more or less undignified‘ of the Irish bar. An excellent explainer of law, he has no grasp of facts, thinking that he has a good knowledge of ordinary business matters, and insisting upon importing same (such as it is) into the sworn testimony of witnesses, usually with lamentable results.
X. Mr Justice Holmes
According to ‘Dublin Barrister,’ ‘there is scarcely any part of the law that [Hugh] Holmes has not touched, and there is no part which he has touched but he has made it completely his own… Few men on the Irish bench have worked so industriously as him and fewer still have such a competent knowledge of law.’ In his early years on the bench, Holmes had an unfortunate habit of sending young barristers back to the Library to re-read their briefs, but has mellowed of late. His primary fault is informality; his delivery is like that of a university debater, not a judge, and he lolls on the bench rather than sitting up straight.
Richard Dowse is the humorist of the Irish bench, ‘free to say anything or everything that comes into his head, whether it be apropos of the matters before him or not, provided only it be amusing.’ Highly intelligent, well-read and the most cynical man on the bench, an Irish patriot since his days in Trinity College, he consults ancient authorities ‘chiefly for the purposes of finding something amusing in them, and if he thinks them rubbish he says so.’ Though the Bar does not resent his joking ‘for they recognise its thoroughly good nature and as such are willing to take it,’ litigants are often horrified to see their case translated into a high class comedy for the entertainment of even more highly paid advocates, and his humour can be out of place in criminal proceedings, no matter how ludicrous the facts. Baron Dowse, who lived at 38 Mountjoy Square, died shortly after the above piece.
XII: The Lord Chancellor
Benevolent and powerful, ‘a man that stands well in the estimation of the companions of his youth,’ and ‘the object of a veritable worship at Trinity College,’ Edward Gibson, Lord Ashbourne, has ‘a way of looking at the facts and circumstances of each particular case, as it comes before him; of dealing with it on its own special merits; and of forming his decision with a general all-round satisfaction, that suggests rather the broad-minded, practical man of the world than the narrow, rule ridden intellect of the law.’ An indifferent lawyer, he had long ceased to practice at the Bar when appointed Lord Chancellor, seldom even paying a visit to the Law Court, preferring the House of Commons. Now, ‘his dignified manners, his fresh ruddy face, his fine sonorous voice, his graceful courtesy to his colleagues and the Bar, is a valuable educational function for whosoever would cultivate a humane and polite side to his own character.’ Occasionally attends race meetings, and does not patronise the theatre in Dublin, though sometimes in London.
A man about whose high position as a lawyer, as a judge and as an orator there is almost unanimity of opinion, Gerald Fitzgibbon the second can even make interesting a disquisition on contingent remainders. A wonderful orator, combining beauty and warmth of expression with sensible judgment and moderation, and the only public speaker in Ireland who makes an attempt at good elocution, he manages, when reading aloud his judgments, ‘to diffuse through the court some of the superabundance of his own intellectual light and energy so that people who never understood a legal judgment before will understand him, and glimmerings of the reason and simplicity of the law will shine into minds to which law has hitherto come in an complex and seemingly irrational form.’
A personal symbol of the seriousness of the Court of Chancery, Corkman Hedges Eyre Chatterton resembles ‘a school master of 30 years ago warning his pupils that playtime is over.’ Always suspecting that an attack is being meditated upon the order of the Court, ‘he appears to believe that if the pressure of his authority were for one moment removed, the Bar would break out in open insubordination of the rules.’ He insists on inspecting all documents handed up to him, and even the slightest irregularity will bring down his serious displeasure. He particularly dislikes the introduction into affidavits of unnecessary and irrelevant matter, punishing it by an award of costs against the offending party. Securing an adjournment in his court is ‘an enterprise of extreme peril and uncertainty, requiring considerable eloquence and prodigious pertinacity.’ However, where there is bona fide arguable matter he will listen with ‘a fortitude of endurance and fairness of mind that make him one of the best judges on the Bench.’
XV. Judge Warren
Robert Warren, judge of the Probate Court, is described as a dignified, elderly gentleman, ‘with a long flowing white beard and the usual legal shaven upper lip,’ a serious man, with ‘high notions of the importance of every judicial position.’ The Probate Court being far from busy, he ‘does not sit every day, but when he does he does not break for lunch but has a sandwich on the bench.’
XVI. The Master of the Rolls
Andrew Marshall Porter, Master of the Rolls, has a wide and varied knowledge of many matters outside the region of pure and simple law, demonstrating that ‘the deepest lawyers are often the most versatile in their accomplishments.’ His greatest judicial fault is that he is ‘preternaturally serious… inclined to become really angry, and lose all amenity of disposition ‘because the directorate of a company has acted ultra vires, or because a contracting party resists the specific performance of his contract.’ Consequently mornings in his court can be terrible, with ‘the white heat of Porter’s half suppressed anger’ being more than most counsel can bear before lunch.
Marshall Porter was to suffer tragedy in later life when his son, also Andrew Marshall Porter, was killed during the Boer War. More here.
XVII. Lord Justice Barry
‘One of those hearty good fellows who make themselves agreeable to the whole world,’ everyone in Ireland, from clerks, to medical students, to dowdy ladies in provincial towns, seems to know Limerickman ‘Charlie’ Barry, though, on the bench, he has ‘a vehement – not to say violent -way of expressing his strong opinions which most people would diagnose as the symptoms of an intractable temper.’ A man of the world, indisposed to great exertion, his judgments are extremely short and persuasive, delivered in full round judicial tones with a curiously sibilant sound. His ‘fine red setter dog’ accompanies him to the courts each morning, turning up him again at 4 o’clock to take him to the club after work. Dresses with ‘an attention to fashion unusual in an Irishman of his profession;’ his judicial bands, from London, are enormous, and of the finest muslin.
Lord Justice Barry and Lord Ashbourne once narrowly escaped being killed when a ventilator nearly fell on them in the Law Library. More here.
XVIII. Mr Justice Boyd
Apt to describe himself as half Scotch, half Irish, Walter Boyd gets his sternness from the Scotch side and the enjoyment of its effect from the Irish. Apart from sailing, his main desire in life is to bring home the terrors of the law to an anarchical people; something which he struggles to achieve in his role of Bankruptcy Judge.
Judge Boyd, like many barristers of the era, an expert yachtsman, did however have the satisfaction of catching a thief some years later. More here.
XIX. Lord Justice Naish
A man of retiring studious deposition, with ‘no enthusiasm, no passion, no eloquence and no delusions’, the forensic success of John Naish is flatteringly described as ‘a mystery to the Irish Bar,’ though it is admitted that, as a judge, he ‘comes to very sound conclusions in a modest unobtrusive course of excellent reasoning.’ At the time of publication of this piece, he was in the South of France for his health, and died shortly afterwards. One of his final appearance was at the famous Bar/Vice-Regal Cricket Match in the Phoenix Park in May 1889.
XX. Judge Townsend
‘Eighty years old, dignified courteous and kind, it is impossible to imagine in [John Fitzhenry] Townsend’s court an unpleasant incident, a quarrel among counsel or an interchange of warm words between the bench and the bar. His genial presence causes warm and kindly feeling to flourish in the little company around the barristers’ table, and everybody instinctively recognises that it is a professional duty to make the judge’s position as pleasant and as free from irksomeness as possible.’ Appropriately for an Admiralty judge, he is (like his colleague Judge Boyd) a capital sailor.
XXI. Mr Justice Monroe
The ‘brilliant and popular jury counsel’John Monroe now spends his time as a Land judge, ‘arguing real property issues with Chancery Counsel.’ Though briefless for the first few years at the bar, spending his time chiefly in noting cases for Law reports, ‘once he finally got work he made the best advantage of it,’ displaying a ready knowledge, good judgment and ‘wonderful tact and dexterity in mastering difficult facts.’ Very popular at the bar, though sterner on the bench. An ‘exceptionally able and efficient judge.’
XXII. Judge Miller
Even after 23 years on the bench, Stearne Ball Miller, Armagh man and senior judge of the Court of Bankruptcy, remains ‘a man of perpetual youthfulness, who rises with the lark to ride every morning… His movements in court betoken a marvellous activity for a man of his years: his hands and fingers are in constant motion; he slaps the books down on the desk, and throws the papers about with a charming youthful disregard for the laws relating to falling bodies.’
XXIII. Mr Justice Litton
Edward Falconer Litton, the new appointment as Land Judge, is described as having ‘a cool, clear calculating head,’ and ‘the ability to dispose of a case with facility and despatch.’ A ‘particularly patient man, and scrupulously courteous to everybody,’ he does not long survive the publication of ‘Our Judges,’ dying after catching pneumonia on holiday the same year.
XXIV. Lord Chief Justice O’Brien
Described by Irish Society as one of the few ‘Peters’ ever to rise to fame, no one refers to Lord Chief Justice O’Brien by anything other than his Christian name, often followed by the words ‘the Packer.’ Though no law officer ever received greater abuse than was heaped upon him when was was attorney general, ‘he could never be really hated; his good humour, his bonhomie, his plausibility and his courage was proof against his deadliest darts – his easy manners his jolly, well-favoured face, his strong minded determination to do what he conceived to be his duty (even though it should be the unpleasant task of packing the jury).’ Very popular with the bar, so far he has ‘committed no mistakes beyond remaining unaffectedly the old somewhat affected Peter,’ though he still suffers from a tendency to think himself an advocate, and ‘when there are no witnesses before him, will actually cross-examine the counsel at the bar.’
Although many of the judges featured, such as Palles, the Gibson brothers, Porter, Boyd and Holmes, continued in office for decades and others enjoyed a happy retirement, four out of the twenty four featured – Naish, Litton, Dowse and Warren – sadly died within a year or two of the series being published – hopefully not out of shock!
Thanks to the anonymous ‘Dublin Barrister’, whoever he may have been, a record of their traits, and those of their longer-lived colleagues, survives to remind us that, no matter how much may have changed in the past 140 years, one current Irish judicial characteristic – that of magnanimous imperturbability in the face of criticism – is of long-standing!
In 1890, Irish Society (Dublin) decided, with the help of one ‘A M’Lud,’ to give its readers a day out in the Four Courts. The first part of the ensuing visit, featured here, took us to the Round Hall. Today, we accompany ‘M’Lud,’ a practising barrister, to the original Law Library located just behind. M’Lud’s piece gives us an intimate picture of the final days of this very small law library, which closed in 1897 after a typhoid outbreak, to be replaced by a new and larger law library in the East Wing.
“The busy, idle, seething, talkative, tempestuous, stifling Library! A Babel of tumult, where practically the whole legal business of the country is transacted! It is noisier than the Paris Bourse, less salubrious than the Paris sewers, and more full, at times, of fun and gossip than the gayest of the Boulevards.
Perhaps in all the world there is not a place more full of human interest than the Library of the Four Courts. It is a microcosm – a little world of ambition, despair, jealousies, scandal, honest work, good fortune and bad fortune, good temper and bad temper, petty pride and false conceited notions, wit and humour, dullness and cleverness, ignorance the most profound, and knowledge wide and generous; cliques, cabals, and provincial narrowness; good fellowship open and free-hearted and ‘the dear love of comrades.’ All are there to be found, crushed together as indiscriminately and free from order as I have set them down. Everybody appears to be shouting, and at intervals the tones of the strongest-voiced man on earth, the door-keeper, are heard above the general din, delivering a thunderous summons to some barrister to come for a consultation at the door.
Here, as in the dressing-room, all are equal. There is no part of the room set aside for the Queen’s Counsel, or even for the Chief Law Officers of the Crown. But the latest junior may plant himself beside the Attorney-General, if he likes, and is entitled to ask him, or anybody else, for assistance in his briefs. Only by prescription can the right to a particular seat in the Library be acquired. The prescriptive owner is entitled to turn anyone else out of it when he himself wants to sit down; but he cannot claim to have his ownership respected in his absence. ‘Ote-toi de la question je m’y mette.’ To say this, and enforce it, is the sum-total of his rights. There must be, in the present year, some thirty or forty members of the Library , paying their annual subscription, like the rest, but who, for all that, have no seat, no desk, nor any place except the ground, on which to leave their books and papers. When they murmur for a revolution they are not listened to. We, older members, have gone through the same inconveniences in our day. At long last, we secured a seat for ourselves, and now, with the conservative instincts of our profession, we utter our ‘nolumus mutari,’and smile cynically at the malcontent rising generation. Nevertheless, in our hearts, we fully recognise that the unclean over-crowded Library is a disgrace to the Irish Bar.
The ‘Long Room’ – a compartment at right angles to the main building – is sacred to the Equity lawyers, though some common law men have also found admittance there. Most of the well-known Nisi Prius advocates are in the other room, the noisy talkative room. Mr Walker has gone up to the gallery to escape from the mephitic exhalations of the floor. The MacDermot sits beneath an open window with a similar grim determination to survive the present government. Mr Adams, at the round table in the middle of the room, is the delight of the Library with his even, fertile imagination and mirth-provoking tales. Mr Healy, industrious ever and indefatigable, sitting between two Tories, is searching the Year Books with a savage intention of crushing Mr Balfour with a certiorari. The Solicitor-General, universally liked, is doing his duty in a leisurely sort of way, telling and listening to stories with a thoroughly unofficial gout for them. The Northern Barristers cluster together round the fireplace and entertain one another with anecdotes of the wits of Antrim. The Leinster men are scattered about the Library with the cosmopolitan instinct of the capital province. The Connaught circuit are gone to Connaught! The pleasant brogue of the Munster men rings out distinctly in the merriest company; and when they are not talking (which is seldom) or writing (which is seldom) they are playing such juvenile pranks of merriment as would do credit to their youngest sons. Immortal gods! but there is much Olympian laughter in this dull dirty Library, and much honest good humour and happiness among this struggling, badly-paid Bar in these distressful times.
There are other qualities too – not quite so pleasant. But on these we will not dwell nor enquire too curiously into their causes. One act, however, we might note as a striking and surprising thing about the Bar of to-day. Amid great legal learning, great talent, and a commune, so to say, of Irish brain-power and genius, there undoubtedly exists a vast amount of voluntary ignorance, ignorance of men – of ‘the people beyond the mountains’ – of art, of poetry, of contemporary ‘thought,’ and the progress of the big world in which the Irish Bar is, after all, a very little thing indeed. To a great many barristers the Irish Bar is everything, not only the whole of Ireland, but all the world besides. It is so pleasant a Bar, so pleasant a profession, and our land question and other politics are so important in their own way that even the men of genius refuse to look out of the windows and see what else is going on outside.
It may be natural, but it seems a pity, and it was not always so. The Irish Bar contains the best of Irish intellect and the highest potentialities of Irish enlightenment. It holds a position with regard to the country at large which is not held by the legal or by any learned profession in other countries. It is the most popular institution in Ireland, and its influence as an educating agent is superior almost to every other. Hence it should seek for itself the broadest culture of the highest inspiration, and refuse to justify what has been said in satire by Erasmus, that lawyers are everywhere ‘doctissimum genus indoctissimorum hominum.’
With this little well-meant lecture to the gentlemen of the long robe, which you, my friends and companions of this imaginary tour will, I know, approve, we will leave them to their briefs and books…”
And on that subject, the reassuring words that criticism of the judiciary is nothing new – Irish Society followed up the above with a series on the merits and demerits of each member of the Irish Bench of the time, shockingly frank and personal to today’s barristers but mild by the standards of most 19th century newspaper criticism of the Irish judiciary… nolumus mutari indeed!
More to come!
For those who would like to read more about the original Law Library (1836-1897), a collection of other posts on it to date may be found here. You can also click on their names to read more about its esteemed Law Librarian, Mr Delany, its famous crier, Sergeant Bramley, and slippery library assistant William Supple, who featured in a notorious breach of promise case only to subsequently die at the hands (or more properly the forked tongue) of a Dublin Zoo snake…
For those who cannot spare time for a corporeal visit to the Temple of Justice, let them come with me now in spirit, and I will be their guide, philosopher, and friend in an imaginary personally-conducted tour through the noble pile of buildings in Inns Quay, which forms the material home and domicile of Irish law.
Let us be at the courts by a quarter to eleven of the clock, and take up our position in the great hall, which is the centre of the main building, and round which are the four chambers formerly occupied by the ancient independent Courts of Chancery, Queen’s Bench, Exchequer and Common Pleas. Since the abolition (a couple of years ago) of the Common Pleas division of the High Court of Justice these four chambers have been labelled “Chancery,”, “Queen’s Bench No 1,” “Queen’s Bench No. 2,” and “Exchequer.” The judges are not sitting yet, so we will, for the present, confine our attention to the crowd of people in the Hall.
What a motley crowd it is! Quite impossible to make an exhaustive analysis of the men and women that compose it! But I will mention a few types and classes that are certain to be represented, being constant constituents of all court crowds.
Well, first there are the professional men, barristers and attorneys, who have business (more or less) to attend to. The barristers themselves are a motley collection. There are prosperous dignified Queen’s Counsel, and Queen’s Counsel blighted by their ‘silk,’ or past their work, or out of favour with the public, looking with jealous eyes upon the rising juniors. There are leading juniors, and dilettante brief-holders in silk and in stuff, and the large and varied classes of the briefless. Briefless however, or full of briefs, every barrister in Dublin comes down daily to the courts, for which, no matter how cruel they may have been to him, he nevertheless maintains a faithful affection. The barrister, more than any other man, has need of the virtue of patience, and patience once acquired never deserts him, but remains with him to the end, and prompts him to hope against hope, and despairing to hope again. There are very few pessimists at the Bar; for only the most ridiculous optimists survive the third year.
The people holding black bags in their hands are connected with the solicitors’ branch of the profession, being either themselves full-sworn solicitors, or the apprentices or clerks of others. They too present many varieties and nice degrees of position and importance. There is the ‘highly respectable and eminent solicitor’ as he is referred to by the junior whom he has not employed, but who has expectations of briefs in that quarter. The ‘highly respectable’ solicitor is neatly dressed, wears an irreproachable hat, is on familiar terms with the leading Q.C.’s and even nods to the judges. He condescends majestically to the junior, whom he occasionally briefs. He does a large business in the Equity Courts, and his instructions are generally taken from landlords and other highly-respectable people of means. Then there is the ordinary unpretending Dublin solicitor, who acts for all sorts and conditions of men, and has great faith in one particular Q.C., and one particular junior – men, often, of mediocre ability and little practice – whom he always employs, except when his clients won’t let him. There is the Country Solicitor, in a suit of tweed and brown billy-cock hat, up in town for an important case and a little spree in the metropolis at the expense of rustic litigants. There are nervous fidgeting people, endeavouring to hold conference with barristers; clients anxious for the fate of their suits, and fully impressed, each one, that his is the only case in court to-day. The Counsel (who has his guineas in his pocket) scolds his interlocutor ungratefully, refuses to listen to him, and hurries off to the Library, where the discomfited client can follow him no further.
Other representatives of the general public in the hall are witnesses attending on their subpoena; some sullen and discontented at being brought away from their business; others, on the contrary (such as civil servants and clerks) only too delighted to have a day off. Jurors, too, in their hundreds are rushing about from court to court to ascertain what particular judge has been threatening to fine them £10 each for not being present when the panel was called. Then there are, besides policemen and tip-staffs, and court-keepers and attendances, a few of the process-serving community prowling about for hire. There are bag-men and bag-women who, having brought down the barristers’ bags at ten o’clock, will sit on the pedestals of the statues and pillars till it is time to take them home again at five. Some women earn a livelihood by selling the Daily Express and Freeman’s Journal; others, by retailing saffron-cakes and currant-buns to the busier members of the bar whose press of work will not permit of a more elaborate repast.
Even now it is an animated scene in the Hall of the Four Courts, 11 o’clock in the early and busy part of the sittings. But time was when the place was literally packed with barristers and attorneys, many of them full of briefs and money. Compared with those times these are poor indeed, and the Four Courts are now unquestionably the least congested district in Ireland.
The hands of the clock show that it is now eleven, and the Judges should be on the Bench at that hour. But, trust me, you have a quarter of an hour to spare still, for their lordships are never punctual. So we may go down and inspect those gloomy subterranean chambers to which the ‘counsellors’ descend to dress for court. There you will see hundreds of tin band-boxes containing the wigs of the barristers, whose names are inscribed ‘So-and-so, So-and-so Esq.’ in golden letters – for barristers are gentlemen, and entitled to the ‘Esq’ by the common law, unlike solicitors, who depend for that distinction upon an Act of Parliament. The Q.C.’s go through a more complete costuming than juniors, being obliged to wear a peculiar coat of black dress-cloth, elegantly braided, collarless, and cut away from the first button. In the dressing-rooms, all members of the Bar are equal – first come being first served; the Attorney-General claiming no precedence over the rawest junior. For the Bar is, in many ways, a veritable democracy.”
When the Four Courts originally opened, a regulation was passed and published in the newspapers specifically precluding the wearing hats in the Round Hall, but it did not last very long! Today, hats, jurors, bag-persons, newspaper and currant-bun sellers are long-gone, QC’s have become SC’s, and the so-called ‘highly respectable’ solicitor is now more often than not a partnership based in a corporate palace.
Though there are still rising juniors, worried clients, eager and reluctant witnesses, and – perhaps to a greater extent than there should properly be – involuntarily and unjustly briefless barristers, there are also women practitioners and judges, cases in Irish, and the flag of a Republic flying above the courts – things which would have been dismissed as mere fancies, or at best vague hopes, by the members of the crowd described above.
What change will there be in this magical place, 120 years, or even 20 years on?
Every journey towards a new and better reality starts with a dream sincerely held, and the determination to implement it.
How would you – practitioner or layperson, workaholic or dilettante, because the courts belong to all citizens – like the Hall of the Four Courts to appear in the future?
