The Reluctant Taoiseach
Page 4
On election night, Cox won 112 votes to Costello’s 63, a crushing defeat. George O’Brien, ever unsympathetic to Costello, wrote in his unpublished recollections in 1950, “If anybody had ventured to predict that one of the parties to this contest would have become prime minister of an Irish Republic his prophecy would have been received with some scepticism. If a hearer had chosen to believe that the prophecy would come true and had been asked to say which of the candidates was destined for this distinction, he would have unhesitatingly chosen Cox. I do not think that anybody would have chosen Costello, who matured late and whose elevation was the result of unforeseen political circumstances.”110 In his contribution to the L&H centenary history, published when Costello was in his second term as Taoiseach, O’Brien diplomatically left out the final two sentences of the quote above.111
Costello had a respectable showing in the committee elections, coming in second with 95 votes, which kept alive his hopes for another run the following year. Ominously for his prospects, though, first place was taken by M.J. Ryan, an ally of Cox, who received 122 votes.112 During the 1912/13 academic year, Costello was again a frequent and effective speaker—he was to end the year placed fourth overall,113 but, crucially, Ryan was first, winning the Society’s Gold Medal and cementing his claim to the auditorship. Among the topics Costello addressed were the future of the Intermediate System of Education (the National Student judged him “thoughtful and effective … his speech was, perhaps, the most interesting of the evening”), and, appropriately, International Arbitration (“Mr J.A. Costello cleverly sketched out the history of the growth of arbitration, and if Locke be correct when he asserts that a young man who is versed in the Jus Civile is assured of success, Mr Costello’s knowledge of international law should ensure his future”).114 He also successfully led the opposition to a motion calling for women to be given the vote,115 and to a motion by Ryan that the three Irish Universities should be federated.116
In a further sign of his stature within the L&H, he was one of the three members (the others were George O’Brien and Conor Maguire) elected to join the auditor, Cox, in an Inter-debate with the King’s Inns on the question of whether modern taste in literature was ‘decadent’. Their opponents were led by Tom Bodkin, and included Charles Bewley, later Irish Minister to Berlin.117 According to the following day’s Freeman’s Journal, Costello argued “that modern literature was a question of supply and demand. The commercialism of the day had gripped it, and the result was that it was not the finest taste that succeeded, but what was best from the point of view of the business man.”118
By the beginning of March, two months before the vote, Cox noted in his diary that “the Auditorial fight has begun in earnest. Three Hotspurs are already in the field—Ryan, Maguire and Costello.”119 Three days later he recorded that “Costello seems downcast. I think Maguire has the ball at his feet.”120 The last prediction was spectacularly wrong, but Costello had every reason to be downcast. He had asked Cahir Davitt to propose him, which, the future President of the High Court later confessed, “I did very ineptly. I think he pulled me down before my peroration.”121 Ryan had the support of his fellow Engineering students. He also managed to project an image of being an outsider trying to over come the “Establishment”—he was described by Michael Tierney, later the President of UCD, as “the candidate of the proletariat”.122
In a four-way race, Ryan won with a majority of the votes cast—113. Costello had the consolation of coming second, with 44, two votes ahead of Conor Maguire, while J.B. Magennis, a medical student, got just 10 votes.123 Costello later claimed that Ryan had pinpricked the ballot papers so he could see exactly who had voted for him. Addressing a meeting of the L&H in 1951, he turned to one of the other speakers, Seán Lemass, and assured him that “tactics were adopted here in connection with elections that have not even yet been thought up by the Opposition”. He added that what he had learned in the Society about politics and electioneering had been “of inestimable value” in his later career.124
John A. Costello was in good company—James Joyce was an unsuccessful candidate for the auditorship (against Costello’s future mentor, Hugh Kennedy), as were many other future legal and political stars.125 As an unsuccessful 1980s candidate for the post wrote, “Losing an election is a horrible feeling, even if there is the consolation that some of the best talents in the L&H, such as James Joyce and John A. Costello, also lost the Auditorial contest.”126 In a sense, the L&H also lost out, as its most recent historian has suggested, “twice profligately dismissing what is perhaps at this stage likely to prove to have been its sole prospect of having an auditor who became Taoiseach.”127 Ryan, incidentally, became Reid Professor of Law at Trinity College,128 and later still applied to be made a Senior Counsel—to the then Attorney General, John A. Costello.129
While their own internal politics naturally consumed a large amount of their attention, students at this period could not be unaffected by the dramatic events engulfing Ireland. It was the time of the crisis over Home Rule, of the Ulster Covenant, the formation of the Volunteers, and the 1913 Lockout. The L&H played its part at a huge Home Rule rally in the centre of Dublin on 31 March 1912. Professors and students of the National University occupied one of the four speakers’ platforms—John Redmond was on the main platform, while John Dillon was on the second, and Belfast’s Joe Devlin was the main speaker on the third. The speakers on the NUI platform, which backed onto the O’Connell monument facing College Green, included the President of UCD, Dr Denis Coffey, and its MP Professor Swift MacNeill. There were student speakers too, most notably Arthur Cox, Michael Davitt and John Ronayne. The latter stole the show with a vigorous denunciation of the Union Jack, “which for some extraordinary reason had been hoisted over the offices of a newspaper at Carlisle buildings”.130 Costello was there, and may have been on the platform, but there is no record of him speaking. Almost six decades later, he recalled the “tremendous demonstration”, and in particular the speech by Patrick Pearse, in which he agreed to give the British a chance to introduce a “proper” Home Rule bill. “That was Pearse … giving the British their chance and they didn’t take it … and they paid very dearly for that …”131
There could be no doubt about young Jack Costello’s political sympathies—he was a staunch Home Ruler. Many years later, he recalled listening to John Dillon address the L&H on the Home Rule Bill. “I was there as a very humble student indeed with no possible hope of ever attaining political significance in this country, but with a secret desire that if there was ever an Irish parliament set up in this country, that it would be vouchsafed to me by an Almighty Providence the privilege of being a member of that body …”132 He also attended an early meeting of the Proportional Representation Society of Ireland in the Antient Concert Rooms in 1911, where he heard Arthur Griffith extol the virtues of PR.133 But he doesn’t seem to have been stirred by the more martial spirit that was demonstrated in November 1913 with the formation of the Irish Volunteers. While it was reported that “practically every male student of University College … attended”134 the public meeting in the Rotunda which established the movement, there is no evidence that Costello was one of them. By then he was deeply immersed in his legal studies.
The exams for the LL.B, a one-year law degree, in the summer of 1913 reignited the competition between Costello and Arthur Cox. As his biographer notes, Cox “had no interest in coming second. His academic brilliance was matched by a very competitive instinct.”135 This comes through clearly in his diary for 1913, which demonstrates his increasing concern about the exam (in fairness it should be pointed out that he was writing an M.A. thesis in English literature at the same time). On 1 May he judged that while he was assured of getting through, he couldn’t depend on coming first. “O’Brien and Costello are formidable propositions.”136 Five days later, a rash of exclamation marks suggests mounting hysteria: “God help the 2nd Law! No work done! And George O’B and Costello working like blazes!”137 A fortnight late
r Cox was sunk in despondency: “George O’Brien … will probably beat me in the Law exam … I am in despair …”138 He had a brief moment of exhilaration two days later: “George O’Brien is not going up for the Law exam!”139 But this was quickly followed by a reminder that he wasn’t out of the woods: “Davoren, Meagher and Costello all serious propositions.”140 The exams lasted three days, with five papers: Jurisprudence; Real Property I; Real Property II; Constitutional Law and Legal History; and Law of Public and Private Wrongs. By coincidence, the two rivals met on the train some days after the exam as both went to supervise exams, Costello to Fermoy and Cox to Killarney.141
It was there that Cox received a telegram from Arthur Clery telling him he had come first. Two days later, he had a letter from Costello congratulating him, a characteristic gesture much appreciated by Cox, who wrote in his diary, “Decent of him to write.”142 Costello had come second, and both received £20 as First Class Exhibitioners in the LL.B. degree,143 which suggests there was not a great deal of difference in their marks. But for the ever-competitive Cox, winning was important, and remained important for the rest of his life. In the 1950s, Terence de Vere White wrote an article in the Irish Times, in which he said (wrongly) that Costello, the then Taoiseach, had been beaten only once in a law exam. He received an immediate complaint from Cox: “You did not say who it was beat Costello.”144
Fortunately for their future friendship, the rivals opted for different branches of the law, Cox becoming a solicitor, while Costello went to the Bar, possibly under the influence of Arthur Clery, who was a barrister as well as a lecturer and who was to sign the certificate seeking his admission to the Bar when he finished his studies.145 Costello was admitted as a student of King’s Inns at the beginning of Michaelmas Term 1911 (his studies there continued at the same time as those in UCD).
The King’s Inns date back to the time of Henry VIII, and like the Inns of Court in London, began as accommodation for the judges and lawyers working in the courts nearby. Later, the Inns developed a role in the education, administration and regulation of lawyers.146 But it wasn’t until 1850 that formal law lectures were introduced, after a select committee of the House of Commons revealed the inadequacies of legal education. Fourteen years later, examinations began, and students could opt either to attend lectures or sit exams—in 1872, both became compulsory.147 As one product of the system, Rex Mackey, wryly remarked, “the course of legal education pursued at the King’s Inns, or for that matter at the university, is nicely calculated to unfit the student for the practice of any profession whatsoever, and more especially for that of the Law”. The graduate might be an authority on Roman or medieval law, but would have never seen a counsel’s brief or been taught how to cross-examine a witness.148 Tom O’Higgins, later Chief Justice, wrote that “interesting as our lectures were, the main purpose of attendance at the Inns was the eating of the required number of dinners”.149
Students had to eat between four and six dinners in each of the four legal terms. The dinners were each of five courses, and included a bottle of wine and as much beer as one could drink—in 1939, the cost for all six was £1.150 The original idea of Commons was that students would learn from listening to the conversation of more experienced barristers—it evolved at a time when there was no formal legal education. It may be, as one participant observed, that the conversation was “more likely to relate to next Saturday’s prospects at the Curragh” than to complex legal problems, but the dinners had two advantages for the aspiring barrister: “they will, theoretically at any rate, teach him to hold his wine like a gentleman, and … bring him into an easy and friendly intimacy with the Bench and Bar among whom he will spend his professional life”.151
Despite such diversions, for an ambitious student, it was a place for hard work. Costello did well, although not quite as well as later writers claimed. He came third in his two law exams in his final year. In the final examinations for the Bar in June 1914, Costello won a £10 prize, compared to £25 for the winner, B. Fox, and £15 for James Francis Meagher of Trinity, who came second.152 In the Honour Examinations in October, Costello again placed third—this time Meagher was first, winning the John Brooke Scholarship of £50 per year for three years. Arthur Black was second, taking the Society’s Exhibition of £21 for three years. Costello won the Society’s prize of £21 for one year.153
During his time at the King’s Inns, he also won a prize at the Law Students’ Debating Society for Legal Composition.154 This was for an essay on “The Leading Principles of the Brehon Laws”, which was subsequently published in the December 1913 issue of Studies. The 25-page essay demonstrated a firm grasp on the subject matter and a clear writing style. Costello’s primary degree in Languages came to the fore, as he used a number of phrases in French (without translation) as well as many words in Irish (all of which are translated, presumably a recognition that his readers were more likely to know French than Irish). He concluded by comparing the Brehon Laws—imposing, but primitive—to “a certain wonderful fort which stands perched in lonely grandeur on the top of a high cliff on the Big Island of Aran … This fort is Dun Aonghus.” Even if his attempts to learn Irish there were not successful, his visit to the Aran Islands had left an impression.155 Publication in a prestigious journal like Studies must have done his reputation no harm, and was noticed by his contemporaries—Arthur Cox mentioned reading the piece, without commenting on its merits, in his diary.156
On Monday 2 November 1914, John A. Costello was one of eight new barristers called to the Bar, second in the order of precedence behind Meagher, the winner of the Brooke.157 The new barrister, having been admitted to the degree of barrister at law in the Benchers’ Room in the Four Courts,158 is formally called to his profession (nowadays by the Chief Justice, in Costello’s time by the Lord Chancellor). The new barrister is asked if he wishes to move the court. “The person thus addressed merely bows, without saying anything. He has now been recognised and addressed as a barrister for the first time, but he is not to be obliged to declare that he is still without a brief. For this reason he bows and says nothing.”159 On the sixtieth anniversary of his call, Costello suggested the day hadn’t had much impact on him. “To be honest I cannot remember much about it. It didn’t impress me, I think.”160 Impressive or not, the call meant that he was now a fully fledged barrister—although, as one member of the profession observed, “tomorrow he will find that he is very small fry indeed in a very big pond”.161
Chapter 2
AN ARDUOUS ROAD
“… the majority of successful barristers have an arduous road to travel before they can even make a bare living.”1
JOHN A. COSTELLO
“… were it not for the many occasions in our early days in which we had no money to employ a senior and you had to do all the work, you might have never come to the front as quickly as you did.”2
JOHN L. BURKE, SOLICITOR
With no connections in the legal profession, Costello was warned he was mad to try to make a career in law. His first year as a barrister seemed to bear out those warnings, as he made a grand total of 5 guineas.3 As he put it himself many years later, with some understatement, he “had very considerable trouble” making his way at the Bar.4 And yet, within five years, he was successful enough to get married, and in another couple of years was able to purchase a very fine house in an upmarket part of Dublin. His success was partly due to natural ability, partly to luck, and very largely to sheer hard work.
One crucial element of luck was that he devilled with barrister Hugh Kennedy, and became “very great friends” with him.5 Kennedy was to become Law Officer to the Provisional Government, first Attorney General of the Irish Free State, and then the first Chief Justice. He brought his young protégé into Government service, which provided him in turn with his route into politics. They remained close—when he died, the then Chief Justice left Costello an old English snuff box “in token of their friendship”.6 Devilling was a system of apprenticeship, during
which the young barrister would carry out various mundane jobs for his “master”, such as representing him in court on uncontested applications for adjournments and helping to draft pleadings. More importantly for the student, “by accompanying his master to court he would learn how to examine a witness and how to present evidence”.7 One practical benefit for Jack Costello was that Kennedy showed him how to do conveyancing—in later years he told colleagues this was how he got over the difficulty of breaking into a Bar still dominated by Protestants and Unionists.8
The profession which Jack Costello joined in 1914 was, on the surface at least, one governed by tradition—the wigs, the gowns, the formalities in court. The upper reaches were still overwhelmingly Protestant. In 1907, according to the Catholic Defence Society, only 7 of 22 County Court Judges, 19 of 66 Resident Magistrates, and 9 out of 44 Benchers of King’s Inns were Catholic.9 But the Bar was changing, as it became more open to Catholics of the rising middle class. Nationalist MP and barrister Tim Healy, writing just a couple of years before Costello’s call, looked forward to “the swamping of the Ascendancy Party, and to the probability that clever youngsters on our side will have better prospects at the Bar in the coming generation than could have been hoped for previously”.10 Until 1885, Irish law students had had to keep several terms at an Inn of Court in London, as well as at King’s Inns in Dublin—the removal of this expensive requirement “opened the Bar to a broader spectrum of society”.11 The change, which was to accelerate after independence and partition, was already well under way when Costello was called. In 1871, Protestants outnumbered Catholics at the Bar by more than two to one. Forty years later, the proportion of Catholics had risen to 44.5 per cent—still not a majority, but the trend was clear.12