From the Freeman’s Journal, 2 September 1898, this interesting account of the professional career of Irish patriot Theobald Wolfe Tone, best known for his unsuccessful attempt a century earlier to land in Ireland with French troops and supplies, followed by his capture, court-martial and subsequent suicide:
“WOLFE TONE AND THE LAW
BY JG SWIFT MACNEILL, Q.C., M.P.
A remarkable feature in Tone’s career has, so far as I am aware, been scarcely noticed – his cordial relations with lawyers and his own obligations to the study of the Bar.
Tone derived his Christian name from his god-father, Theobald Wolfe, a leader of the Irish Bar in the middle of the eighteenth century, and an uncle of Arthur Wolfe (Lord Kilwarden), who, as Attorney-General for Ireland in 1795, yielding to sentiments of generosity and clemency, permitted Tone to leave the country when he might have placed him on his trial for high treason, with every possibility of procuring a conviction…
It will probably be a surprise to persons well acquainted with the biography of legal celebrities to learn that Theobald Wolfe Tone became, in January 1787, a student of the Middle Temple. He lived for two years at No 4 Hare’s Court on the first floor and has placed on record this somewhat disparaging account of his life as a law student in London:-
‘I had no great affection for study in general, but that of the law I particularly disliked; and to this hour I think it an illiberal profession, both in principles and practice. I was, likewise, amenable to nobody for my conduct; and, in consequence, after the first month I never opened a law book, nor was I ever three times in Westminster Hall in my life. In addition to the reasons I have mentioned, the extreme uncertainty of my circumstances, which kept me in much uneasiness of mind, disabled me totally for that cool and systematic habit of study which is indispensable for attaining a knowledge of a science so abstruse and difficult as that of the English code.’
Later on he describes his call in 1789 to the Irish Bar, in which one perceives the same note of self-deprecation in reference to all forensic aptitude or ability.
‘I purchased,’ he writes, ‘about £100 worth of law books, and determined, in earnest, to begin and study the profession to which I was doomed. In pursuance of this resolution, I commenced bachelor of laws in February, 1789, and was called to the Bar in due form in Trinity Term following; shortly after which I went my first (the Leinster) circuit, having been previously elected a member of the Bar Club. On this circuit, notwithstanding my ignorance, I pretty nearly cleared my expenses; and I cannot doubt, if I had continued to apply sedulously to the law, but I might have risen in some eminence; but whether it was my incorrigible habits of idleness, the sincere dislike I had to the profession, which the little insight I was beginning to get into it did not tend to remove, or whether it was a controlling destiny, I know not; but so it was that I soon got sick and weary of the law.’
In these notices Tone does himself an injustice. The legal ability of his first pamphlet, in which he discussed the constitutional position of the Irish Parliament, commended him to the notice of Mr George Ponsonby, then a leader of the Irish Bar, who in 1806 became Lord Chancellor of Ireland, and was, from his resignation of the Irish seals in 1807, till his death in 1816, the Leader of the Opposition in the British House of Commons. Mr Ponsonby gave the best proof of his belief in Tone’s ability as a lawyer by directing him to be retained, when scarcely a year at the Bar, as counsel for one of his relatives in an Irish election petition.
It would not be difficult to show conclusively, that Tone’s merit as a political controversialist is essentially due to his knowledge of the principles of law. His pamphlet on the Penal Laws could only have been written by a trained lawyer, and the late Mr Isaac Butt, who was, with the sole exception of O’Connell, the greatest Irish constitutional lawyer of the present century, when expressing in a highly technical argument the constitutional position of Ireland in relation to Great Britain before the Union, stated that he could not describe these relations more accurately than by a quotation from Mr Tone’s pamphlet published in 1791…
The obligations of Wolfe Tone to the law which he derided form a subject of contemplation only less curious than his personal intimacy with distinguished lawyers, some of whom were bitterly opposed to his principles. His friendship with the Right Hon George Knox, a member of the Irish Bar, who represented Dublin University in the House of Commons, and was an uncompromising foe to Tone’s principles, lasted through his life.
Tone was also on terms of closest intimacy with TA Emmet and Sampson, Irish barristers, who in the main sympathised with his views. His friendship, however, with Peter Burrowes, a barrister, a man of most powerful and comprehensive mind, and William Johnston (subsequently a judge), a lawyer of respectable talents, were contracted nothwithstanding the widest differences on political matters. Peter Burrowes, indeed, with respect to whose constitutional principles there was never for a moment the shadow of a doubt, liberally provided for some relations of Tone who were left in impoverished circumstances on his tragic death.
But the strongest irony in Tone’s relations to law and lawyers consists in the fact that Tone’s case (27, State Trials, 614) reflects credit on the Irish Judicial Bench. It is thus summarised by Professor Dicey:-
‘Nothing better illustrates the noble energy with which judges have maintained the rule of regular law even at periods of revolutionary violence, than Wolfe Tone’s case. In 1798 Wolfe Tone, an Irish rebel, took part in a French invasion of Ireland. The man-of-war in which he sailed was captured, and Wolfe Tone was brought to trial before a courtmartial in Dublin. He was thereupon sentenced to be hanged. He held, however, no commission as an English officer, his only commission being one from the French Republic. On the morning when his execution was about to take place, application was made to the Irish King’s Bench for a writ of habeas corpus. The ground taken was that Wolfe Tone, not being a military person, was not subject to punishment by court martial, or in effect that the officers who tried him were attempting illegally to enforce military law. The Court of King’s Bench at once granted the writ. When it is remembered that Wolfe Tone’s substantial guilt was admitted, that the court was filled with judges who detested the rebels, and that in 1798 Ireland was in the midst of a revolutionary crisis it will be admitted that no more splendid association of the supremacy of law can be found than that made by the Irish Bench.’
(Dicey’s Law of the Constitution, pp302-303)
Nor have we yet exhausted the interesting subject of the association of Wolfe Tone with lawyers. The first Lord Plunket, the Irish Chancellor, lived, in his college days, with his mother and sister in Jervis street, within a stone’s throw from the residence of Tone’s father in Stafford street. Lord Rathmore, in his ‘Memoir of Lord Plunket’ records that Tone and Bushe, subsequently Chief Justice of Ireland, were on terms of intimate friendship with Plunket, and frequently guests in his house. Bushe, indeed, when an attack was made on Tone in the Irish House of Commons, on March 24, 1797, thus spoke of Tone:- “I knew him from early infancy, friend and companion of my studies, and while I bear testimony to the greatness of his abilities I shall also say of him that he had a heart which nothing but the accursed spirit of perverted politics could mislead.’”
A more romantic side to Tone relates to his romance with Matilda Witherington, whom he courted while he was a student at Trinity College. An account of their meeting is given in an article by Doreen Mills in the Leinster Leader, 24 June, 1933:
“During his college days [Tone] often paced Grafton street where from her window he saw a beautiful girl who lived in that street with her grandfather, Matilda Witherington, whom he fell in love with at first sight – the attraction was mutual. Shortly after they met, he proposed, she accepted, and one beautiful July morning they were married, the bridal pair went to Maynooth for their honeymoon. Wolfe Tone brought his young wife to his father’s home in County Kildare where she was received with great affection, here she stayed while he went to London in connection with his profession.”
Matilda, who was disinherited after her elopement with Tone, survived him by many years, dying in the United States in 1849. The Tone family’s connection with the Irish legal community survived even in exile – Tone’s son William was apprenticed in the law office of his former Law Library colleague William Sampson in New York, and later married Sampson’s daughter.
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