The newlyweds spent the first four years of their married life in a flat at 22 Ely Place,184 just off St Stephen’s Green. They were living there when the first of their five children were born—Wilfrid (‘Wilfie’) in 1921 and Grace in 1922. They were to be followed by Declan in 1926, Eavan in 1927, and finally John in 1931.
Wilfie’s birth was apparently difficult. He suffered a cerebral haemorrhage which left him with a mild mental disability.185 His medical problems were compounded by the development of epilepsy when he was a teenager. Physically, he was rather clumsy, which marked him off from other children as he was growing up. He was able to go to school in Belvedere like his brothers, and later completed a History degree at UCD. But he wasn’t capable of independent living, and was supported by his parents for the rest of his life. It appears that Wilfie could be quite difficult at times—a friend of his father’s reported in 1952 that in a letter Wilfrid “admitted his unreasonableness to the family”.186
At one point John A. Costello bought a tobacconist business for him in Fairview, which he went to every day, but it was largely run for him by a manager employed by his father. Eventually the shop had to be given up. On medical recommendation he lived in a psychiatric hospital in Scotland for a year, and later in St Patrick’s Hospital in James Street, visiting home at weekends.187 His care was obviously of concern to his parents throughout their lives. It also led to a family interest in disability. When St Michael’s House was established in 1955 to provide community-based services for people with intellectual disabilities, Ida Costello was offered, and accepted, the position of President. After her death, Declan Costello became President of the organisation, and worked for many years to improve what were, at that time, “absolutely inadequate” services.188
Two of the children, Grace and Declan, followed their father into the law, his eldest daughter being called to the Bar in 1943, and Declan in 1948.189 Grace, who was to be close to her father throughout her life, and particularly after the death of her mother in 1956, married Alexis FitzGerald, a solicitor and economist who was to have a very great influence on Costello, particularly during his time as Taoiseach.190
As well as becoming a barrister, Declan also followed in his father’s political footsteps, achieving lasting fame as the author of Fine Gael’s “Just Society” policy, and finishing his legal career as President of the High Court. Eavan completed a history degree in UCD, later working in the library there before marrying barrister Ralph Sutton. The first 15 years of their married life was spent in Cork, where her home became a welcome refuge for her father when he was on circuit in the southern capital. The youngest of the family, John, who was to become an architect, was artistically inclined. When he was just 11, one of his watercolours, described by a visiting journalist as having “a strong Paul Henry influence”, hung in his father’s study.191
The growing Costello family clearly needed more space, and the answer was found in August 1923 at 20 Herbert Park, “… a semi-detached red brick house with dark green drainpipes and window frames and an arched porch door. There is a wallflower border to a small lawn, and a laurel hedge. The garage is at the back and pear and apple trees grown in the garden …”192 The new house was clearly a step up in the world for Costello—it had a rateable value in 1924 of £60, compared to the £27 his father’s house in Rathdown Road attracted. Costello also employed domestic staff, which at the time of his first term as Taoiseach consisted of a cook, two maids and a gardener.193 The deposit on the house came from the Croker case, while Costello also took out a mortgage, on the advice of his solicitor Tommy Robinson. According to his son, he was very reluctant to do so as he didn’t want to be indebted.194
His new address would provide useful contacts for his legal career, as well as increased social standing—among the neighbours were solicitor G.A. Overend and barrister Frederick Price K.C.195 But contacts and status were also being provided by his almost simultaneous first steps into public service.
Chapter 3
HE HAS DONE WONDERFUL WORK
“The Evening Mail … stated that I had become Attorney General by a strange concatenation of fortuitous circumstances.”1
JOHN A. COSTELLO, 1969
“John A. Costello came to see me and tell me of developments. He has done wonderful work. I know no one else who could have even tackled the job.”2
HUGH KENNEDY, 1929
When W.T. Cosgrave retired from politics in 1944, he wrote to John A. Costello thanking him for his service as Attorney General, saying that he had never been wrong in the advice he gave.3 This tribute echoes the glowing comments of Hugh Kennedy quoted above, and contrasts with the rather lukewarm reaction of the Evening Mail to his appointment. But as with other phases of his life—at school, UCD and the Bar—Costello showed critics that by dint of hard work and a certain element of luck, he could succeed in a new role. The luck was once again to be in the right place at the right time and with the right contacts, in this case Hugh Kennedy.
In May 1922, Kennedy, Law Officer of the Provisional Government, was under pressure. He was faced with an “immense volume of work … files from all Ministries and Departments … not only with questions of Law and procedure, but also requiring the drafting of documents, letters, etc. I have been attempting to deal with all these single handed but it is quite impossible that I should do so efficiently.” The solution, he suggested to the Minister for Home Affairs, Kevin O’Higgins, was the appointment of a junior counsel who could do some of the time-consuming tasks for him. Kennedy thought the appointment should be for a period of six months “to carry us over the enormous work of the initial stages”.4 This was to be John A. Costello’s route into Government service, and he acknowledged it was due to his friendship with Kennedy.5
Costello later expressed pride at being appointed by a Government made up of prominent figures from the War of Independence, especially as he was “without what was then known as a National Record. I never died for Ireland, and don’t intend dying for Ireland!”6 Given his admitted lack of a “National Record”, his promotion was open to criticism. Half a century later, interviewer David Thornley suggested that “people like yourself, typical of the Law Library, the professions, the bureaucracy, from 1922 on took over the fruits of what had been won violently without their having helped”. Costello replied, “That is so, that’s a fair comment …”7
He was not alone. John M. Regan has argued that Kevin O’Higgins deliberately worked to bring into Government members of the Catholic nationalist elite who had been swept aside by the War of Independence. The appointment of John Marcus O’Sullivan as Minister for Education in 1926 marked a watershed as “there were now more non-combative Clongownians in the Cabinet than veterans of the 1916 Rising”.8 While not a Clongownian, Costello was certainly a non-combatant, and his rise can be seen as part of a wider process.
Costello described Kennedy’s job as Law Officer as very difficult, “because at that time nobody knew what the law was … when the transfer of functions from the British to the Irish was started …”.9 So enormous was the task, in fact, that Costello was initially only the Second Assistant to Kennedy—Kevin O’Shiel, former Land Court judge, was the First.10 Kennedy had sketched out the tasks he wanted performed by his new assistants in his letter to O’Higgins. “Many legal questions involve the hunting up and collation of Statutes and decisions, which often take a considerable amount of time. The drafting of documents in itself is a tedious process, and I think that you will agree that the only satisfactory way to do this class of work is to have the collection of materials and the rough drafting done by someone competent to do it, and then submit it for revision and final settlement by me.”11
Costello later described himself as “working in a very unobtrusive and humble fashion”,12 but the range of issues he dealt with was wide. In October 1922 he provided opinions on exhumation and on Commissions of Inquiry, while in February 1923 he wrote about extradition, theatre patents, and illegal trawling.13 A typical example
of the sort of tedious work Kennedy wanted done related to the appointment of a stockbroker to the courts. The Lord Chief Justice, Thomas Molony, was claiming the right to make the appointment, and Kennedy asked Costello to find out whether such a post existed, who should make the appointment, and whether it should be made or at least approved by the Minister for Home Affairs.14 A lengthy opinion from Costello informed Kennedy that the Lord Chief Justice did appear to have the right to make the appointment, and there was no basis on which the Minister for Home Affairs could establish a claim to make it—although, as he pointed out, the position had no salary or pension attached, and simply amounted to an indication that the appointee might receive “a certain proportion” of the stock exchange business connected with the courts.15
More substantial issues were raised by a Public Meetings Bill proposed by Kevin O’Higgins. According to the Department of Home Affairs, “very considerable inconvenience and loss have been caused to business people in Dublin by reason of the continued dislocation of traffic on account of meetings”.16 The Bill proposed a ban on public meetings unless permission had previously been given by the authorities.17 Kennedy, however, expressed concern about the proposed Bill to O’Higgins, pointing out that it aimed to regulate an existing right of public meeting, but that no such right existed, while it was silent on the right of assembly in procession, and seemed to assume the right of meeting in private buildings for any purpose whatever.18 The Executive Council agreed to the circulation of a 23-page memorandum on the Bill by Costello.19
The Legal Assistant argued that while people had a right to free expression of opinion and to free assembly under Article 9 of the Free State Constitution, there was no right to meet where and when they wanted, to meet on highways, or to enter private property. “The right must be exercised with due regard to the rights both of private individuals and those of the general public.”20 Kennedy noted that the memorandum “has confirmed the principles and views expressed by me … I am satisfied that the first Section of the draft Public Meetings Bill is unconstitutional and bad …”21 O’Higgins agreed to modify the Bill to avoid the constitutional difficulties raised,22 although the legislation was eventually abandoned because it proved impossible to avoid breaching Article 9 of the Constitution.23 In this case Kennedy’s—and Costello’s—concern for the rule of law proved stronger than the authoritarian impulses of O’Higgins.
As well as his work for Kennedy, and his continuing private practice at the Bar described in the previous chapter, Jack Costello also represented the State at various inquests—a tricky assignment at a time when elements of the security forces were assassinating Republicans. In August 1923, for instance, he represented the authorities at the inquest into the death of Henry McEntee, a staff captain in the (anti-Treaty) IRA, who had disappeared from his home on 31 July, and whose body was discovered three days later in a field near Finglas with several bullet wounds. The next of kin were represented by Costello’s friend from UCD days, Conor Maguire, who said the case was one of a series of murders in which there was such an air of mystery that it had been impossible to track down the parties responsible. He added that the Coroner and the jury stood between the public and a system of tyranny. Costello rather weakly replied that he was there to assist the Coroner and the jury in every way and that every possible step would be taken to trace the murderers.24
An even more notorious case was that of Noel Lemass, who was abducted from a Dublin street on 3 July 1923, and whose decomposed body was found in the Dublin Mountains in October. A friend of the family, Jimmy O’Dea—later a famous comedian, but who had trained as an optician—helped identify the corpse by recognising a pair of Noel’s glasses.25 When the inquest opened in Rathmines Town Hall, Coroner Dr J.P. Brennan (later a Clann na Poblachta TD) said he had received reports that “the teeth were torn from the jaws” which “suggested a barbarism of which the most pitiless savage would be ashamed”. Costello sought an adjournment in order to seek medical evidence, but this was opposed by A. Lynn, counsel for the murdered man’s brother, Seán Lemass. Lynn claimed some of his witnesses were afraid of being killed. Costello said that the forces of the State were available for their protection—which was not very reassuring given that the forces of the State were responsible for the murder of Noel Lemass. Lynn was allowed to call his witnesses, who disclosed death threats from the Free State forces warning them not to give evidence.26
Despite the extra assistance, Kennedy still appeared to be swamped by his work, receiving a blistering complaint from W.T. Cosgrave in April 1924 about delays in dealing with Colonial Office Despatches. “Many of these appear to have lain in your Office for over a year without attention … I cannot but think that there is something seriously wrong in the administration of a Department where Despatches on important matters are allowed to remain undealt with for so long.”27 Kennedy sent a spirited response, expressing surprise that Cosgrave had accepted “apparently without question, the far from fair indictment which has been put up to you, I suppose by the Secretariat”. He was able to give a reasonable excuse for the delay in dealing with each of the Despatches in question, and then addressed the wider issue of the running of his office. “I am afraid you lose sight of the fact that in a Department like mine … every matter dealt with is a matter of a personal ruling by me, and not the mere initialling of a Civil Service file … I must confess to having been overmuch accessible and agreeable to all and sundry who made demands upon my help regardless of time or my own convenience. The ‘statement’ you ask ‘as to what steps I propose to take in the matter’ need not go beyond the first step, namely, to cut out for the future accessibility and general agreeableness.”28
Kennedy’s period of inaccessibility and disagreeableness didn’t have to last long—a month later he was appointed the first Chief Justice of the Irish Free State. He was replaced as Attorney General by John O’Byrne.29 On the day of his appointment, O’Byrne wrote to W.T. Cosgrave reminding him to raise with the Executive Council his own appointment as a King’s Counsel.30 This was duly approved, and O’Byrne became the last barrister in the Free State appointed a K.C.31 As we have seen, the new courts system came into operation a few days later, on 11 June, and in July the Executive Council agreed that from then on, barristers called within the Bar would be termed Senior Counsel rather than King’s Counsel.32
Costello continued as Legal Assistant to the new Attorney General, who asked him to study the legal changes that would be necessary if, as expected, substantial portions of the territory of Northern Ireland were transferred to the Free State by the Boundary Commission.33 In April 1925, Costello took silk, writing to Diarmuid O’Hegarty, Secretary to the Executive Council, that he was “anxious to be called to the Inner Bar at an early date … I am authorised by the Chief Justice and by the Attorney General to say that they approve of and support my application.”34 Kennedy wrote in support of the application,35 and on 5 May 1925 Governor General Tim Healy issued the patents for Costello, along with James Geoghegan and Martin Cyril Maguire.36 The following day at the Supreme Court in Dublin Castle the three (wearing full-bottomed wigs) were duly called within the Bar by the Chief Justice, “whose formal inquiry, ‘Have you anything to move?’ they acknowledged with a bow”.37
More preferment was to come to John A. Costello soon after. On Friday 8 January 1926, the Executive Council nominated O’Byrne to a vacancy in the High Court, and Costello as his replacement as Attorney General. The appointments were made by the Governor General the following day, a Saturday. On Tuesday 12 January, Chief Justice Hugh Kennedy admitted Costello to the “precedence at the Bar to which he is entitled by virtue of such appointment”.38 The golfing correspondent of the Irish Times noted that this meant that devotees of the game held the post of Attorney General on both sides of the Border. The North’s Attorney, Anthony Babington, was “very closely identified in the game in Ireland” and “a regular competitor at our championship meetings”. Jack Costello was said to be “very popular” at his Mil
ltown Club, but in a case of damning with faint praise, it was noted that “he plays a good game, but figures but rarely in competitive golf”.39 Following his appointment as Attorney-General, Costello was also elevated to membership of the benchers of King’s Inns,40 a position he was proudly to hold for the rest of his life.
While reports of his appointment referred to his popularity at the Bar, he was undoubtedly young for the post at 35 and with just 12 years’ practice behind him—of the first 17 Attorneys none was younger and only Cearbhall Ó Dálaigh was the same age.41 He later said that any danger of his developing a swollen head as a result of his early promotion was dashed by the Evening Mail, which said he had become Attorney General by “a strange concatenation of fortuitous circumstances”. Another deflation came from British M.P. Lady Nancy Astor, who, on being introduced by W.T. Cosgrave to his new AG at the Imperial Conference of November 1926, responded, “That thing? Attorney General?”42 While this incident was doubtless apocryphal, the fact that Costello repeated the alleged comment may indicate his nervousness at taking up such an important post at a relatively young age.
His new job carried the very respectable salary of £2,500 per year, the same as the President of the Executive Council (by comparison, Cabinet ministers received just £1,700).43 The salary made up for the loss of his burgeoning practice at the Bar, and he was by the standards of the 1920s very well off. It appears he took some responsibility for the financial affairs of the wider family, paying for his mother’s funeral in July 1929, for instance.44 He also continued to make charitable donations, being included on the list of solid Catholic citizens subscribing to the St Vincent de Paul Night Shelter in January 1926. He gave £3.3.0, the same amount as Hugh Kennedy.45
The Reluctant Taoiseach Page 8
