Childers’ legal team—Patrick Lynch, Michael Comyn and Conor Maguire—based their appeal on O’Connor’s ruling in Egan v. Macready, arguing that the Provisional Government was precluded from establishing military tribunals unless it did so by statute, because the Restoration of Order (Ireland) Act was still in force. This time, though, O’Connor was having none of it, declaring that the Provisional Government was de jure as well as de facto the ruling authority, with the right to organise an army to protect the people; accepting the government’s case that war was raging; and arguing that the Restoration of Order Act only applied to British forces, so courts could not rule on the Irish Army’s acts while suppressing the rebellion. He then referred to a number of cases, most notably that of Allen, neatly reversing the argument he had followed in Egan v. Macready, and rejected the application.122 Childers was executed the following day.
In later life, Egan made the best of his moment of notoriety, and the contacts it had given him with lawyers who went on to greater things. In May 1924, by which time he was a lieutenant in the National Army attached to the staff of the GOC, he wrote to Hugh Kennedy, then still Attorney General, seeking an interview so he could “have the pleasure of thanking you, personally, for all you did for me during my trial in 1921”.123 A quarter of a century later, he was writing to the junior counsel in his case, by then Taoiseach, seeking help in being made permanent on the staff of Clare County Council. He had left his job with the Council in 1922 to join the Army, on the understanding that he would be reinstated when he was discharged. By the time he left the Army the Council was under Fianna Fáil control and refused to honour the understanding. At Costello’s request, the Minister for Local Government, T.J. Murphy, successfully intervened on Egan’s behalf.124 Egan died in 1954.125
The Egan and Higgins cases were important for Costello’s subsequent political career because they allowed him to answer the awkward question of what exactly he had “done during the war”. When he was Taoiseach, the US magazine Ave Maria bluntly stated that “John Costello took little or no part in the revolution which won Irish freedom except occasionally to defend a patriot in the Court of Law.”126 His supporters, by contrast, were inclined to wildly overestimate the importance of these cases and the extent of Costello’s role. Michael Hayes, for instance, described him as having “fearlessly, and I am sure without pay, devoted his legal talents to the defence of Irish Volunteers. With Hugh Kennedy he had achieved a resounding legal victory in a famous law case.”127 (In fact, Costello was paid for both cases—according to his copy of the Higgins brief he received £15.5.0 for his work on part of that case,128 while for the Egan case, for which he was finally paid in 1927, he received £43.129)
In February 1956, the Fine Gael Digest took a similar line, suggesting that Costello “had put his talents at the disposal of the Volunteers and the Sinn Féin movement”, which was stretching it quite a bit. The magazine described the decision in the Egan case as “a resounding blow against the British Military and the British Government’s methods of conducting the war in Ireland” which “undoubtedly helped in the making of a Truce”130—another very considerable imaginative leap. Costello himself was to make the same leap, telling David Thornley during their “Seven Days” interview that the case “had some considerable effect in bringing about the Truce some weeks afterwards”.131 As we have seen, the Master of the Rolls had only granted a conditional order of Habeas Corpus before the truce, only delivering his final judgment a fortnight after the cessation of hostilities. It is highly unlikely that such a conditional order had any bearing at all on the agreement of the truce. On the other hand, the lives of two men were saved; had it not been for the successful legal challenge, both Egan and Higgins would have been executed before the end of hostilities.
The outbreak of the Civil War was a disaster for the fledgling State—and it had ramifications for the legal profession too. The Irish Law Times thundered that the occupation of the Four Courts by anti-Treaty forces in April 1922 was “the event of the week—and indeed, it is no exaggeration to say, of the century, in legal circles”. Legal business was at a standstill as a result, and the courts and the Law Library moved, temporarily, to the King’s Inns.132 But things were to get much, much worse in July, when Provisional Government forces shelled the Irregular garrison in the Four Courts, turning the historic buildings into “piles of gaunt ruins … The magnificent Courts, with the adjoining Judges’ Chambers, the Round Hall with its fine statues, the Law Library with three or four sets of the reports and of text-books, the Probate office, with records of all modern wills, and perhaps more especially the Records Office, with its priceless treasures of the past, which are absolutely irreplaceable, are all gone … The legal profession has suffered a blow from which it will not recover for many years to come.”133 The courts remained at King’s Inns for a year while Dublin Castle was being prepared, in premises that were “very restricted and most inconvenient … King’s Inns is too small, too much out of the way, and continuance there is bad for the health of Bench and Bar, and is also detrimental to business.”134
The Castle proved to be a happier home, with “large and airy” court rooms and “very suitable” accommodation for the Law Library in St Patrick’s Hall, all in “large and convenient premises in an accessible position”.135 The courts moved to Dublin Castle in April 1923, and were to remain there until October 1931, as the Four Courts were slowly rebuilt.136 At this point, of course, the courts and the judiciary were still those inherited from the British. The Irish courts established under the Courts of Justice Act, 1924, did not come into being until 11 June 1924.137 The new system was considerably less bloated, with a Supreme Court of three and a High Court of only six. Only two of the eight remaining judges appointed under the ancien régime opted to stay on in the service of the new State—Charles O’Connor, who stayed for one more year, and W.E. Wylie, who was to serve for a further 12 years. The others retired.138
And so it was that one of Costello’s most colourful cases—involving ill-gotten gains from Tammany Hall and a putative Indian princess—was played out in June 1923 in Dublin Castle, before Lord Chief Justice Thomas Molony, the last British-appointed holder of that post. At issue was the will of Richard E. ‘Boss’ Croker, former head of New York City’s Tammany Hall, the political machine which controlled the government of that city, and which was a byword for the corruption on which Croker’s fortune was based. In comparison with his famous predecessor, Boss Tweed, he “spilt less blood and was less blatant”139, but there was no doubt about the nature of his power. Born in Mallow, Co. Cork, in November 1841, he emigrated to the United States eight years later, becoming a mechanic and later joining the New York Fire Brigade.140 At the age of 22, he demonstrated his enthusiasm for the political process by voting 17 times in one day for a Democratic candidate.141 After he lost control of Tammany in 1902, he moved to England before finally settling in Glencairn in south county Dublin (later the residence of British Ambassadors to Ireland), where he bred and trained horses, most famously the 1907 Epsom Derby winner Orby. As a result of his Derby victory, he was granted the Freedom of the City of Dublin.142
He had formally separated from his wife in 1897, and following her death in 1914, when he was 73, he married Bula Edmonson, who was 43 years his junior.143 The new Mrs Croker was somewhat exotic—she was one-sixteenth American Indian (on her mother’s side) and claimed to be a direct descendant of Sequoyah, the deviser of the Cherokee alphabet, and entitled to the name “Keetaw Kaiantuckt Sequoyah”.144 Although she said in court that she had never claimed to be royalty, “she had come to be identified in the newspaper mind and in the public mind as an Indian princess”. No doubt this was due to her appearance in full Indian costume, riding a black horse, at the head of a procession of Native Americans in President Woodrow Wilson’s inauguration parade in March 1913.145
In any event, her stepchildren did not take kindly to her arrival, especially after their father altered his will to leave most of h
is wealth to his new wife, and removed his son Richard junior from the running of his affairs in the United States. The children took a court case in Palm Beach in 1920, alleging that their father was entirely under the domination of Mrs Croker, and that he was incompetent to mange his affairs. The court dismissed their claim.146
However, after the Boss died in April 1922—Arthur Griffith, Oliver St John Gogarty and the Lord Mayor of Dublin were among his pall bearers147—his children decided to try their luck in the Irish courts. Richard junior sought to have the will condemned, while his sister, Mrs Edith White, accused the widow of fraud, on the grounds that she was already married to an Italian tailor by the name of Guy Marone at the time of her supposed marriage to Boss Croker.148
Although he apparently “went on his knees, begging her to accept” an offer of settlement of the claim,149 Mrs Croker’s solicitor, Henry O’Hanlon, put together the best legal team he could find when she refused. It included Jack Costello as junior counsel, Paddy Lynch K.C. and Serjeant Hanna. The Attorney General, Hugh Kennedy, was put under pressure by Mrs Croker’s friends to accept a brief in the case, which he was reluctant to do because of the pressure of his work as Attorney General.150 He finally agreed to take the brief under certain conditions, to O’Hanlon’s obvious delight:151 he believed Kennedy was the man most competent to protect Mrs Croker’s interests.152 But within a week, Kennedy wrote asking to be relieved, after “one of the Counsel with whom I was to collaborate, unable to throw a veil of decency over his personal hostility to me, or perhaps to the government with which I am associated, has so acted in breach of the traditions of our profession and in violation of the recognised canons of that profession as to make it impossible for me to make any useful contribution to the case”.153 O’Hanlon was shocked at this “gross abuse of your rights” and observed, “one would imagine that the passing away of the old order in this Country and the coming of the new would make any man sufficiently liberal of thought to feel a pride in finding himself associated with another who, in a time of danger and contention, has handled with success the destinies of a nation”.154 The guilty party was either Lynch or Hanna, although Kennedy appears to have had cordial relations with the latter up to the start of the year, when he asked him to gather information on other legal systems in preparation for the new court system.155
The case was heard in Court Number 4—formerly the Throne Room of the Castle—and was the subject of intense public interest, every seat in the public gallery being taken.156 Mrs Croker was taken through her evidence by Paddy Lynch, and was reported to have “replied to the questions calmly and clearly”. She pointed out that the name of her alleged husband, Guy Marone, was never mentioned in the 26 days of the Florida trial.157 Under cross-examination by Serjeant Sullivan, who had come over from London to lead Richard Croker junior’s legal team,158 she agreed that she had inherited around a million dollars’ worth of property, bonds and shares.159 The case against the will was that Croker “at the end of his days had become fascinated by a young, attractive and … clever … woman … The result was that he lost control of his affairs, and although the hand that wrote was the hand of Richard Croker, the real hand and voice were those of Bula Edmondson …”160
Richard junior’s case was damaged by US newspaper reports that the witnesses he was producing to allege his stepmother had been married to Marone had been paid lavishly for their trouble. The Boston Post reported one of them as saying, “It will be a wonderful trip for us, and they, the Crokers’ representatives, have taken care of every item of expense, even to engaging the taxi which called to our door to take us to the station … If things come out right we shall never have to worry about money again; that will be made certain.”161 The case was further damaged by a bumbling performance by Richard’s brother, Howard, who was given a rough time in the witness box by Serjeant Hanna.162 Another major problem for the claimants was their failure to trace, and produce, the mysterious Guy Marone, supposedly Mrs Croker’s real husband.
It would seem Mrs Croker’s case was also helped by the attitude of Lord Chief Justice Molony, who in summing up, remarked that “the jury would probably have some difficulty, as he himself had” in accepting the description of her by her stepson’s counsel as “cunning, calculating and clever … a person lacking refinement, culture and reputation”.163 Counsel for the claimants objected to his summing up, but the Lord Chief Justice declined to recall the jury, and after an hour and a quarter, they returned, finding for Mrs Croker on all points at issue. “Immediately after the reading of the findings of the jury there was a loud outburst of cheering and hand-clapping in court … When Mrs Croker left the court she was again warmly cheered outside. The demonstration of sympathy with her and approval of the verdict was renewed as she descended the staircase, several people approaching and cordially shaking hands with her. She was again cheered as she entered her motor car in the Castle Courtyard, and drove away waving her hand in acknowledgement.”164
After a 12-day hearing, the case still had a surprise to offer—Mrs Croker claimed that the day after her victory that she had received a telegram from the real wife of Guy Marone, now living in Missouri.165 The claimants sought and received an extension of the time allowed to consider an appeal,166 but in the end opted not to lodge one.167 According to Law Library legend, Mrs Croker thanked her legal team, including Costello, at a dinner in Glencairn, where the waiters removed the silver covers from the dinner plates to reveal a handsome bonus of 1,000 guineas for each lawyer. Whether or not this bonus was in fact paid, Costello made enough from his work on the case to put down a deposit on his first house.
Later, as Attorney General, Costello successfully lobbied for Henry O’Hanlon to be appointed Taxing Master of the superior courts, a position he assumed in 1930.168 Mrs Croker was not done with the law, although her further brushes with litigation were back in the United States. In August 1929 she lost a case in which she was trying to break a nine-year-old agreement to sell a parcel of Palm Beach property at a fraction of its value—the difference was around $5 million, plus costs. And Richard Croker junior was not finished with his stepmother, continuing his legal actions against her.169 As a result she had to file for bankruptcy in 1937. However, she was considered “a spirited addition to the Palm Beach social circuit”, being nominated to the Town Council in 1930, running for Congress, and operating “a Caribbean pirate treasure salvaging company” as well. She died in 1957.170
Most of Jack Costello’s cases were far less exotic—but some were legally significant. At this time, for instance, he represented a Ministry of Labour insurance officer, Major Fuge, whose decision to refuse unemployment benefit to striking rail workers was challenged (unsuccessfully) in the High Court.171 This case was later to be appealed to the Privy Council, a development that will be considered in the next chapter. He also had an indirect connection with the Dáil courts, when he represented 24 people who had taken a case in the Land Court. The defendants in that case went to the High Court seeking a writ of prohibition against Conor Maguire and Kevin O’Shiel, the judges in the Dáil Land Court, to prevent them hearing the case. Lord Chief Justice Molony argued that because the Dáil Courts were not properly established, there was nothing he could do about it. “… This Court, while it prohibits and quashes the orders of inferior tribunals which exceed their jurisdiction, does not take notice of bodies which act openly and avowedly in defiance of the law.”172 The plaintiffs didn’t even get their costs for challenging what the court found was an illegal tribunal.173
As well as building a legal career, Costello was also building a family. According to family tradition, he met his future wife, Ida O’Malley, at a dance in the Gresham Hotel in 1912,174 when he was still a law student. They “kept company” from then until their marriage in 1919. Ida had been educated at the Dominican School in Eccles Street in Dublin, and had spent the academic year 1907/8 in school in Amiens in France on an early exchange programme. This had been organised by Sophie Raffalovitch, the French
wife of Irish Party MP William O’Brien.175 After her husband’s death, Madame O’Brien moved back to France, living in rather reduced circumstances. Ida visited her from time to time. When he was Taoiseach, Jack Costello tried to sort out her will, which was causing her some distress in her ninetieth year.176 Jack and Ida shared an interest in the French language, even writing to each other in French at times.177
After taking a degree at UCD, Ida taught in Eccles Street until her marriage.178 She was the eldest of 13 children, seven boys and six girls. Her father, Dr David O’Malley, was the “popular medical officer of Glenamaddy”179 in County Galway. The family later lived at 11 Tudor Road in Ranelagh.180 Like the Costello family, the O’Malleys were Redmondite Nationalists, and at least four of the boys joined the British Army during the First World War, two of them being killed.181 The only other O’Malley sibling to stay in Ireland was Leilagh, the youngest of the family, who married and settled down in Cork. The rest emigrated to England, although one of Ida’s nieces, Patricia, was to have a very close connection to the Costello family in later years.
John A. and Ida were married at the Catholic University Church in St Stephen’s Green on 31 July 1919. The groom had just turned 28, while the bride was a few months older. The ceremony was performed by Costello’s cousin, Fr John McKeever, to whom he was very close, the pair having swum together at the Forty Foot as students. In later life, a Costello family tradition was to visit the priest at Christmas, in whichever parish he happened to be based, for dinner. The best man was John Herlihy, a childhood friend of Costello’s, who was to be godfather to his daughter Grace.182 The other witness was Mary O’Meara from Waterford, a school friend of Ida’s. She later taught English in Manchester, and came regularly at Christmas time to stay with the Costello family.183
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