The centre of the profession was the Bar Library, which, in the words of a near contemporary of Costello’s, Maurice Healy, gave “the Irish Bar its corporate personality … the Bar in Ireland was open to very poor men, who could carry out their profession without any of the expenses which the English system of chambers necessarily imposes”.13 Once the annual subscription was paid, the member had access to all the legal texts and reference books he would require. It was also, as Judge Matthias Bodkin pointed out, “the fair or market where barristers are hired … Business or no business, he daily robes himself in full legal toggery, climbs a flight of stairs to the law library, and takes his place very literally like a cabman on his hazard, waiting for a fare.”14
Costello’s UCD rival, George O’Brien, “found the Library a very congenial place. In spite of a good many personal animosities and jealousies, the atmosphere was friendly. Professional esprit de corps was very high. Political and religious differences did not prevent amicable relations in the Library. In the smoking-room and the dressing-room much good conversation and many amusing stories were to be heard. To mix on terms of equality with my elders taught me a great deal about the way of the world.”15 It also taught young barristers a great deal about the law. One of the traditions of the Law Library was the “inflexible code of etiquette [which] prescribes that even the most junior barrister can invoke the assistance of even the most senior. The latter will immediately lay aside his work and give his advice. Accordingly, a solicitor can send a brief for an opinion to a newly called junior, in the comfortable assurance that even if his nominee does not know the answer, the opinion he will get back will have emanated from someone who does.”16 In later life, when he was an extremely successful barrister, Jack Costello was himself renowned for being helpful to more junior barristers—Patrick Lindsay recalled that despite being “the busiest man in the Library”, he was “never too busy to offer a helping hand to even the most junior member”.17
Costello’s call to the Bar came three months after the outbreak of the First World War—and the war was to be a good time for those lawyers who stayed at home. Out of a practising Bar of around 300, almost 130 joined up, and 25 died in action.18 The tone of the main legal publication, the Irish Law Times and Solicitors’ Journal, was distinctly bellicose. It published, in February 1916, “a War Supplement which contains a full record of the members and sons of members of the legal profession in Ireland who are serving in His Majesty’s Forces in the present war or have been killed in action … The Supplement shows that the Bench, the Bar and the Solicitors’ Profession in Ireland have promptly given of their best to the services of the country.”19 Even many of those involved in the law who remained at home tried to “do their bit”, for instance forming a Four Courts Auxiliary Munitions Association to “keep the [munitions] factory going over the weekends while the ordinary workers are obtaining their well-earned rest”.20
Of course, while Unionists naturally supported the war effort, so too did Redmondite Nationalists, as was demonstrated by Jack Costello’s brother, Tom. Having qualified as a doctor and served for a time as house surgeon in the Mater Hospital and as a temporary doctor in Mountjoy Prison,21 he joined the Royal Army Medical Corps, becoming a lieutenant in the Wessex Field Ambulance.22 He was promoted to Captain in June 191623—some eight months before his arrival at the front in France24—and was awarded the Military Cross at the end of 1917 in the New Year’s Honours List.25 After the war Tom married and settled in Darwen in Lancashire, where he had seven children,26 was elected to the Town Council for the Liberal Party in 1927,27 and served as Mayor for two terms from 1941 to 1943.28 He died in March 1945.29
Jack Costello, though, was not moved by what he later referred to as Redmond’s “generous gesture” in encouraging nationalists to enlist in the British Army. He said this led to the “sacrifice in vain of many thousands of Irish lives”, but had “taught us the unforgettable lesson not to pay for the goods until they are actually and decisively delivered”.30 In any event, war held no attractions for Jack, then or later—he was far more interested in furthering his career. A week after his call, the Bar Council agreed to follow the example of the Inns of Court in London by adopting resolutions “as to the holding of briefs by counsel on behalf of brethren who have joined Lord Kitchener’s army”.31 The idea was to preserve the practices of those who had volunteered for military service, with barristers urged “to make it a point of honour to ensure that an absent barrister should get back his practice intact when he resumed work at the Bar”.32 But these good intentions did not survive four years of war—as the Irish Law Times recognised in 1919: “Beyond doubt the position of lawyers who surrendered their positions in 1914 is unenviable. Juniors who stayed at home stepped forward, gained ground and held it tenaciously.”33
Costello later recalled the advice of his mentor, law lecturer and barrister Arthur Clery, who said there were three ways for a young junior counsel in those days to make his way at the Bar—write a book, marry a solicitor’s daughter, or go to Quarter Sessions, on circuit in the provinces. He chose the third option, and not surprisingly, given his connections through his father and his childhood visits to the county, he opted for Quarter Sessions in Clare, going for seven years to Ennis and the surrounding towns several times a year.34 Clare had the further advantage that the presiding judge was Matthias Bodkin, the father of Tom, his friend from UCD. Judge Bodkin had been a journalist as well as a barrister and in the former guise wrote editorials for the nationalist Freeman’s Journal, in which his opponents admitted he displayed “admirable political malice”. He was appointed a County Court judge after the Liberals returned to Government. “At first he was not a conspicuous success; but his good nature and common sense took charge of his Court, and when he retired he was universally regretted.”35
According to Maurice Healy’s account of the Munster Circuit, which covered the jurisdictions of five County Court judges, in Clare, Limerick, Kerry, and the East and West Ridings of Cork, it was difficult to follow more than one judge as he went on his rounds four times a year. So “each judge usually was followed by a bar of some half-dozen members”, each likely to end up with a few appeals to take to the half-yearly Assizes, which would rehear the whole case. Both civil and criminal cases were heard.36
In Clare, the young Jack Costello built up a steady stream of work, the foundation of his subsequent practice in the capital.37 His time there also opened his eyes to the ways of the world—he later recalled asking a man he was defending in a slander case if he had used the words the plaintiff complained of. His client replied, “I have, but I have two witnesses here to swear I did not.” Experiences like this led Costello to conclude that the Irish courts saw “rather wholesale perjury”.38
In Dublin, he worked closely with the solicitor John Burke, who briefed him for his first jury action, a case involving payment for grazing horses, which earned him five guineas.39 Burke later pointed to his inability to afford a more senior barrister in such cases as a stroke of luck for Costello’s future career. “I think you will agree with me that 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. For people who saw you then perform would ask round the Court who you were. I remember so well the day you appeared on a motion sent me by J. O’Connell Tralee whose agent I was. Those present were spellbound.”40
This could, of course, have been flattery of a man who was by then Taoiseach—but flattery does not appear to have been in John Burke’s line. He was not a political supporter of Costello’s, despite their lengthy professional and personal relationship, and far from flattering the Taoiseach, he wrote to him some two months before the comments quoted above to say, “strange as it may seem I have never been able to summon any enthusiasm for your election to Taoiseach, not because we differed in politics, but just because the qualities we as friends admire in you made you seem unfit for such
a task”.41
There can be no doubt that Costello was very much fit for the task of being a barrister. But his performances, spellbinding or otherwise, did not happen by accident—the key to his lifelong success at the bar was hard work. Tom Finlay, a colleague in later years, recalled that he was “always very well prepared for a brief”, and that, allied to his very effective cross-examination, made him perhaps the top barrister of his day.42 As Finlay said of him at his retirement from politics, he led the Irish Bar “not only in brilliance … not only in success [but also] … in matters of standards, matters of integrity and matters of ethics. His talents never became the preserve of the great corporations, or of the vested bodies, much as they would have liked. Rather have they been untiringly, brilliantly, and, may I be permitted to say, belligerently at the disposal of the oppressed and the under-privileged.”43
Even the son of his greatest political rival found that Costello showed him “nothing but kindness and consideration”. As a solicitor, Terry de Valera often briefed Jack Costello in later years, “and a more learned, loyal and conscientious leader one could not have”. He recalled winning one case against Costello, after which the latter successfully argued that his client should be spared some of the costs. Outside court, the younger de Valera, somewhat woebegone, was called over by Costello, who said, “I’m sorry about the costs, Terry, but you know that I had to do my duty”—an extremely gracious comment in the circumstances.44 Another testament to Costello’s ability came from fellow barrister Kevin Liston, at a King’s Inns tribute evening: “He passed the supreme test of a good advocate—he could win a poor case before a good judge.”45
Ability, kindness, hard work—all were in evidence from the earliest days of his legal career. He was not, however, much interested in the revolutionary ferment which was about to sweep away his former schoolmate Seán Heuston. Costello candidly admitted he “hadn’t the remotest idea what was going on … I was engaged in laying the foundations for my practice at the Bar and it was difficult enough without my going into the Troubles at that time.”46
In fact, on the day the Easter Rising broke out, Costello was—characteristically—playing golf. As he put it more than half a century later, with some evident lingering resentment, he had “very considerable difficulty in getting home. The IRA … had a barricade across … the North Circular Road and I lived down in Rathdown Road at the time. I was coming home on a bicycle from Finglas Golf Club and I had the greatest difficulty in getting through that barricade and it was only when the gentlemen who were armed keeping the barricade were not looking that I slipped behind them and got home where I remained for a solid week incarcerated, not able to go anywhere.”47 The Irish Law Times was equally put out, condemning the “deplorable rising in Dublin”, during which the rebels “took possession of the Law Library and other buildings [in the Four Courts], piling textbooks, law reports, and books of record in the windows as barriers behind which to shoot”.48
For the ambitious young barrister, career came before politics—but it would be a mistake to think he was unaffected by the events going on around him. Many years later, as Taoiseach, he remembered his first sight, in early 1922, “of men in the green uniform walking through College Green. He had felt then a thrill of pride at the concrete evidence of what had been achieved by the sacrifices of people over the centuries.”49 He was to make a contribution, in his own modest way, to the developments of the War of Independence. In the meantime, his career was progressing. During 1916, he became one of two barristers reporting cases for the Irish Law Times from the King’s Bench Division of the High Court.50 While paying very little, this was a way for a young barrister to gain some profile, while at the same time keeping up to date with case law.51
He was also fighting his own cases—appearing before the Master of the Rolls in July 1916, for instance, for a defendant, Hynes, who was trying to stop a mortgage company selling his land after he failed to meet repayments. Costello argued that under wartime regulations the plaintiff should have obtained leave from the court before instituting proceedings. He lost the case, but the fact that it merited mention in the Irish Law Times Reports suggests it was of some significance—and therefore that the young barrister was starting to make his mark.52
The legal establishment at this time was still rather splendid—and extraordinarily overstaffed. The Supreme Court of Ireland had no fewer than fifteen judges: the Chancellor, the Master of the Rolls and two others in the Chancery Division; the Lord Chief Justice and seven others in the King’s Bench Division; two Lords Justice of Appeal; and the Judicial Commissioner of the Irish Land Commission.53 This judicial hierarchy had its last moment of glory at the start of the Easter sittings of 1919, when for the first time since the war the Lord Chancellor, Sir James Campbell (later Lord Glenavy), held a levée in the Benchers’ Chambers in the Four Courts. This was “largely attended by King’s Counsel, Junior Barristers and officials. Subsequent to the levée there was the usual procession of the Judges to the Hall of the Four Courts. The Lord Chancellor and the other Judges in their official robes made a goodly show which attracted a large crowd of interested spectators … The procession of judges went to the main entrance, and then turned and walked to the steps underneath the clock, where the Lord Chancellor took up his position for the reception of the judges. His Lordship was attended by his private secretary and purse bearer … his permanent secretary; and by his train bearer, mace bearer, and other officials …”54 For the arduous task of holding the Lord Chancellor’s train on the five occasions a year when he wore his full robes, his train bearer was paid £100 per annum.55
By the following year, the opening of the Easter Term was much more low-key—not least because several Judges missed it as a general strike had stopped the trains. “The Lord Chancellor’s levée and the procession of the judges, which in former years formed a picturesque feature of the inauguration of the legal year, were abandoned …”56 By this stage, the War of Independence was in full spate, a war in which the legal system was becoming a hotly contested, if secondary, battleground.
The Dáil or Republican courts—with a full structure of parish, district, circuit and supreme courts—were established by a Dáil decree of 29 June 1920, functioning most openly in the summer and autumn of that year, and again after the truce in July 1921.57 In the intervening period, they were driven underground by the British authorities. One of the judges, Kevin O’Shiel, recalled of this period, “To carry on, we had to assume fictitious names and disguises, and make ourselves and our courts as inconspicuous as possible. Accordingly, I … assumed the calling of a commercial traveller.”58 The Republican Courts were a considerable challenge to the British, with Assistant Under-Secretary Andy Cope warning a Cabinet conference in London that they were “doing more harm to the prestige of the government than the assassinations”.59
O’Shiel remembered that “local solicitors of every religious and political complexion pleaded in my courts, but it was somewhat different with the Bar whose superiors took a much more rigid view as to the propriety of their members countenancing our courts, which resulted in my having the assistance of comparatively few of them”.60 The Dáil Minister for Home Affairs, Austin Stack, put it more bluntly, complaining that he found “the Irish Bar worthy of the bad traditions it always had; there were scarcely half a dozen patriotic men among them”.61 In fact, more than a dozen barristers were involved in the Dáil courts, including Arthur Clery, Hugh Kennedy, John O’Byrne, Cecil Lavery and Cahir Davitt.62 The latter was approached about taking a judicial position by Arthur Clery, one of the two members of the Dáil Supreme Court, in July 1920. Davitt said the reason he, a relatively inexperienced barrister, was approached was that “men of more standing” had refused63—which raises the intriguing question of whether Clery approached another favourite former pupil, John A. Costello, who had a couple of years’ more experience at the Bar than Davitt.
In fact, there is no reference to Costello being involved in the Dáil cour
ts at this stage, although he did appear in them after the truce. He clearly confused his role in a newspaper interview half a century later, when he claimed to have “a happy memory” of the Republican Courts: “I’m delighted to say that as a result of them I was found guilty of ‘professional misconduct’. You see, the Bar Council at the time passed a resolution saying that it was professional misconduct to appear in Sinn Féin courts. I appeared in them and I had many good men in company with me, some very eminent men.”64
This presumably refers to a “very largely attended” meeting of the Bar Council in June 1920, which debated the question of the Dáil courts and whether it was professional misconduct, or simply a breach of professional etiquette, for members to appear as advocates before such courts. The Council resolved “that it is professional misconduct on the part of any member of the Bar to appear before such tribunals …”65 Despite Costello’s later claim this decision did not affect him, as he doesn’t seem to have appeared in the Republican courts.
The question arose again five months later, when another meeting of members of the Bar discussed a motion in the name of Tim Healy declaring the earlier resolution ultra vires. When Healy was called on to speak, he revealed that he had not drafted the resolution, or agreed to let his name be attached to it. But he believed the Bar Council “had no right to pass judgement upon the conduct of any member of the Bar … the only body who had that right was the Benchers, who admitted men to the Bar. He had been 39 years at the Bar, and nothing like this had arisen in his time. He did not know what was to be done, but he felt that the senior members should do what they could to protect the junior members of the Bar.” The only other speaker was S.L. Brown, K.C., who claimed “they had all been a happy family in the Library, and it would be a pity to introduce anything that would cause friction or disagreement”. On his suggestion, it was agreed to adjourn the meeting indefinitely, without coming to a decision on the issue.66
The Reluctant Taoiseach Page 5
