He remained an unapologetic and convinced nationalist, but also remained utterly opposed to the IRA. He was realistic about the situation—arguably more realistic than he had been when in power. In April 1972, after the parliament of Northern Ireland was prorogued and direct rule instituted, Seán MacEoin put forward the ingenious theory that the British Government had acted illegally. Under the Treaty, he argued, the Six Counties had the right to opt out of the All-Ireland Parliament, but not to return to direct rule by Westminster. He told Fine Gael leader Liam Cosgrave that the Government should apply to the International Court of Justice to have the relevant British Act declared illegal. Cosgrave turned to the most eminent legal adviser he could think of, Jack Costello. The former Taoiseach said the Treaty, as an international agreement, could only be regarded as binding while it was in operation; but, as he had pointed out when declaring the Republic, it had been dismantled by the Fianna Fáil government after 1932. “Because the British acquiesced in these fundamental breaches of the Treaty and because the Executive Authority (External Relations) Act 1936 did nothing to keep this country within the Commonwealth of Nations, even though the British pretended it did, the resultant position was that the Treaty no longer had any effect … the Republic of Ireland Act 1948 put the issue beyond all doubt.”152
The following August, Costello was chosen to deliver the main oration at the Michael Collins commemoration at Béal na mBláth. As well as being the fiftieth anniversary of Collins’s death, the ceremony was also notable for the presence of the Minister for Defence, for the first time under a Fianna Fáil government. The Minister, Jerry Cronin, received “a surprisingly enthusiastic reception” according to the Irish Times, but “his welcome was pale compared to the thunderous applause” which greeted Costello.153
The former Taoiseach reflected on the progress made under an independent Irish government, remarking that “if everything has not been achieved, much has been achieved and it has been achieved through our own efforts and from our own resources and without our hands out to the British taxpayer”. But the main thrust of his speech dealt, naturally, with partition and the use of force. He observed that there was only one legitimate army of the Republic of Ireland, the one founded by Collins. And he said that while the unity of the nation was “an article of our national faith” for Collins, the General was above all else a realist. “He knew the tactic of the limited objective, the deluding, narcissistic folly of extremism. He knew when force was legitimate and that it was immoral and illegitimate when employed against greater force and when the design did not include the … objective of lasting peace based on the mutual recognition of community rights … He wished to convert our northern fellow countrymen and not to coerce them.”
This was not strictly accurate, given the plans Collins at one point pursued for armed attacks on the infant Northern state, but it was what the crowd wanted to hear. Costello was on safer ground when he returned to his own views on the North. He pointed out that the British people had a “serious responsibility” because their governments created the problem, and said no settlement could ignore the “just rights” of Northern Catholics. The eventual solution would require, he said, “idealism, patience, tolerance and a supreme exercise of the virtues of Christian charity”. And, in a superb phrase directed squarely at those who supported violence in the cause of unity, he said “even Irish unity may be bought at too great a price if bought at the price of sin and shame”.154
As an elder statesman in both politics and the Bar, he received many honours in his later years. His seventieth birthday brought congratulations from the Fine Gael parliamentary party, from President de Valera, and from Justice Brian Walsh, who observed that “in your case it is clear that the biblical three score and ten falls far short of the value of the case”.155 His golden jubilee at the Bar in 1964 was marked by a celebration in the Central Hotel,156 while 10 years later both the then Taoiseach, Liam Cosgrave, and his predecessor (and successor) Jack Lynch attended a diamond jubilee event in the King’s Inns, where a “huge attendance showed the esteem in which John A. Costello was held”.157 In 1962, he received from the Pope the Grand Cross of the Order of Pius,158 a papal knighthood which is one of the highest honours bestowed by the Vatican.159
He didn’t forget old friends, putting in a determined but unsuccessful effort to have Cecil Lavery appointed Chief Justice. He explained to the Taoiseach, Seán Lemass, that Lavery had “selflessly” declined a chance to be appointed President of the High Court by Costello’s government, because of a technical point raised by the Department of Justice. “I myself felt that there was no substance to the point and that Mr Justice Lavery ought to accept the position … The matter has troubled me very considerably ever since as I felt Judge Lavery had suffered an injustice … He is, as you doubtless know, the outstanding legal personality of the last half-century in this country.” Costello piously added that he had “never interfered in any way with any judicial appointment, nor endeavoured to influence it, except when it fell to my duty as a member of the government to do so”. He did his best in this case, though, lobbying Cardinal D’Alton and Fianna Fáil minister Jack Lynch (through their mutual friend, the Fine Gael TD from Cork, Stephen Barrett).160 After the failure of this effort, he was involved in an equally unsuccessful attempt to have Lavery elected to the United Nations International Court of Justice.161
Old rivals weren’t forgotten either. As a former Taoiseach, Costello was a member of the Council of State, and in that context continued to have dealings with Eamon de Valera, who remained President of Ireland until 1973. Declan Costello recalled that while they were polite on a personal level, they did not have a particularly warm relationship,162 which is understandable in the context of their political dealings over many years.
Against this, some in the Costello family remember a friendlier relationship. One of Costello’s grandchildren recalls picking up the phone one day to hear the President on the other end of the line, ringing with an invitation to a Council of State meeting. The two men “chatted amiably” for some time.163 There is even a suggestion—apparently emanating from the de Valera family—that the President used to call into Herbert Park for a cup of tea and a chat on occasion. It seems unlikely that civility went quite that far, although they certainly appeared to get on well at their last public appearance together, at the joint conferral of the Freedom of Dublin on them in March 1975, just five months before de Valera’s death and 10 months before Costello’s.
In his speech at the Freedom ceremony, the Lord Mayor, James O’Keeffe, said that de Valera and Costello were “without question the two most famous Irish statesmen alive today”. While de Valera made a very brief reply of thanks, Costello was characteristically more verbose, recalling that he was Dublin born, but didn’t have enough ancestry to be a “jackeen”. He mentioned his father’s service as a councillor, and his own work with the Corporation to get houses for his constituents. Costello observed that his fellow freeman did not like lawyers—but the profession had turned the tables on him while he was President by making him an Honorary Bencher of the King’s Inns. “We fought many a fight, but I can say that never once did I hear him utter a single ungracious word or expletive about me. I received nothing but courtesy from him at all times.”164
But despite this public conviviality, there was a reserve on Costello’s part. In September 1970, he turned down a request to discuss Longford and O’Neill’s biography of de Valera on RTÉ. “I have formed the very definite view that it would be quite inappropriate for me in all the circumstances to make any public comment. I may say that I have also turned down a request to review another biography of the same person.”165 Perhaps unfortunately, he did not keep his counsel in the immediate aftermath of de Valera’s death in August 1975. Interviewed on television within hours of the former President’s passing, Costello said “his influence was widespread in his life. I think his influence is now at an end. In my opinion he left nothing of permanent value.”166 The Britis
h Embassy noted that “virtually the only good thing he could say about Mr de Valera was the back-handed compliment that he had ‘slavishly’ adopted the parliamentary customs of Westminster”.167
The remarks led to considerable public controversy, and were regarded as “disparaging” by the de Valera family.168 Various explanations were offered: Tom Finlay, former Fine Gael TD and future Chief Justice, went to the funeral with Costello, who he said had a “fair hostility” towards his former rival. He felt the “rather dismissive” remarks on television were probably due to the fact that he hadn’t had time to think of what he might diplomatically say.169 De Valera’s son Terry suggested that “the lawyer in him came out and he was simply speaking to what he regarded as his brief”.170 The truth is probably simpler. Jack Costello was asked a question, and gave his views honestly. It may not have been diplomatic, but it was a characteristic response.
In a newspaper interview in 1974, Costello said he was a “perfectly” happy man; the worst thing about his life was “that so many of my dear friends are dead and I am still here”. His only pastime, apart from golf, was reading; the rest of his time was spent with his family, especially his 19 grandchildren.171 Those grandchildren have fond memories of him, of the trips in the State car (even though it made some of them carsick), the half-crown coins he dispensed, and the gifts of Turkish Delight he would bring back from his trips to Cork.172 One Christmas Eve, as he took a number of them round the shops, he remarked to his Garda driver that Seán MacEntee used to refer to him as “the nursemaid of Labour and Clann na Poblachta”; now here he was, acting as nursemaid to all his grandchildren.173 For family occasions such as Communions and Confirmations, he would throw a big party in Herbert Park, and also had a Hallowe’en party for the grandchildren every year, as well as an afternoon party on his birthday.174
Grandchildren were frequently in and out of Herbert Park—Alexis and Grace’s son Kyran stayed on and off in the house, partly to keep his grandfather company. Legal colleagues joked that the former Taoiseach had become an authority on a particular cowboy series on the television because his grandson kept putting it on.175 He helped with the homework of any children staying in Herbert Park, but to the disappointment of at least some of them he declined to discuss his role in various historical events. He didn’t want to “rake over the coals” of past controversies, although he did have a few favourite jokes, such as his assertion that he had been “out” in 1916—out on the golf course.176 One granddaughter remembers spending hours in his study, “swinging around in his swivel chair, messing with his Dictaphone machine and trying on his wig”. His influence was lasting—10 of his 19 grandchildren became either barristers or solicitors (although only one, Isabelle Sutton, entered politics—she was elected twice to Kinsale Town Council for the Green Party).177
He had well-entrenched habits: rising at 7.30, breakfast of bacon and eggs with freshly squeezed orange juice, then out of the house by 9 during the Law Term, for daily Mass in Donnybrook Church or in the Church of Adam and Eve on the quays on his way to the Four Courts. He would usually come home for lunch—he was an “avid” listener to the BBC “World at One” programme on radio.178 In those days, Dublin traffic was much lighter, and it was possible for his driver to collect him at the Four Courts at 1.10, bring him home for lunch and drop him off again at 1.50.179
The two Garda drivers, Mick Kilkenny and Jack Christal (who succeeded Paddy Byrne in 1968), along with housekeeper Molly Ennis, formed “a small, very happy family” with the former Taoiseach. He included them along with the family in various celebrations (for instance, a seventy-seventh birthday dinner in the Burlington Hotel, or the celebrations after he was made a Freeman of Dublin) and was “generous and decent”.180 He remained addicted to golf, continuing to play well into his eighties, greatly enjoying the game (though his grandson remembers his progress round the course being punctuated by quiet grumbling about the quality of his shots).181
As well as going to the golf club and the King’s Inns, he socialised at home, with dinner parties which featured Molly’s excellent cooking, and legal and political reminiscences. The former Taoiseach drank wine, but very much in moderation, and the parties were quite traditional, with the ladies withdrawing after dinner, at which point the port would be produced for the men. When eating out, he was particular about the lights in the restaurant not being too dim, as he wanted to see what he was eating. He also disliked having his plate over-filled—if it was, he would send it back, asking for some of the food to be removed. And he hated picnics at the beach, as he didn’t like sand in his food.182
At the weekends, Wilfrid, by then a permanent patient at St Patrick’s Hospital, would come home to Herbert Park, making his own way there and being dropped home by one of his father’s drivers on the Sunday evening. Wilfrid’s care remained of huge concern to Costello for the remainder of his life—his eldest son was to die three years after him in 1979, of congestive heart failure.183 On his visits home to Herbert Park, Wilfrid enjoyed playing his old 78 records up in his room; on Sunday evenings, the two of them would go to Grace and Alexis’ house for supper.184 Tragically, in 1972, Grace died of cancer at the age of just 50. The loss of his eldest daughter, the “apple of his eye”, was a shocking blow to Jack Costello. Apparently he hadn’t realised quite how sick she was when she was admitted to Saint Luke’s cancer hospital.185
He was perplexed by some aspects of the modern world—for instance, he acted for a supermarket objecting to the rule that butchers’ shops in Dublin should close at six o’clock. The supermarket didn’t want to have to close its butcher counter at 6 while the rest of the shop remained open. But Costello had difficulty with the idea of having one shop inside another, having never been in a supermarket.186 Costello remained a traditionalist on moral matters—when one of his grandsons (aged about 12) argued in favour of the importation of contraceptives, he became quite irate.187 He was also a traditionalist on legal matters, opposing the suggested fusion of the two branches of the law. He believed that an independent Bar served the interests of justice, because it allowed the opposing parties, whatever their status or wealth, to be represented by counsel, and thus equalised before the Bar of the court.188 In a newspaper interview to mark his sixtieth anniversary at the Bar, he stoutly defended the profession, describing it as “so completely independent that it is the greatest safeguard the public has against pressures from the State, big business or other sources. It is able to take up the cudgels in any fight.”189
In those days, with no pension scheme at the Bar, retirement was not really an option for most barristers—in any case, Jack Costello would certainly have missed the activity.190 But he remained sharp and alert into his eighties. In January 1975—when he was 83—he was lead counsel for Tara Mines in a complicated action in the Supreme Court involving the then Minister for Industry and Commerce, Justin Keating. The company was demanding an oral hearing on a particular issue, which it believed the Minister was anxious to avoid. One of the judges asked Costello how long such a hearing would take; he replied that it would be about forty days. “Forty days in the desert, Mr Costello?” “Yes, my lord, and no manna from heaven for the Minister.” During the next recess, fellow counsel Kevin Liston commented on the alacrity of that exchange—and observed that none of the five judges had even been born when Costello was called to the Bar in 1914.191
Another prominent brief was at the moneylending tribunal, set up in December 1969 to inquire into an RTÉ television programme on that subject. The Government viewed the “Seven Days” programme as sensationalist and misleading; the RTÉ authority stood over it. The motion establishing the tribunal called for an inquiry into “the authenticity of the programme and, in particular, the adequacy of the information on which the programme was based and whether or not the statements, comments and implications of the programme … amounted to a correct and fair representation of the facts”.192 As the current affairs magazine Hibernia noted, “if the Government was seriously concerned
about money lending, the terms of reference of this enquiry would be very different indeed”.193
Muiris Mac Conghail, the editor of “Seven Days”, came to the same conclusion. He believed the Government was determined to clip the wings of RTÉ in general and “Seven Days” in particular. “It was the OK Corral—Fianna Fáil were not going to let me away with it.” As the opening of the tribunal drew near, he received, out of the blue, a phone call from Alexis FitzGerald, who advised him that at some stage the interests of the programme team and those of the RTÉ authority would diverge. For that reason, “Seven Days” needed separate legal representation. Given the political context, FitzGerald felt he as a Fine Gael senator couldn’t act as solicitor for them.194
If “Seven Days” couldn’t have a Fine Gael politician as solicitor, it could have a former Fine Gael Taoiseach as lead barrister. John A. Costello was briefed to lead the “Seven Days” legal team, and made quite an impression during the 51 days the tribunal sat. “Dominating the daunting front row of the all-star legal line-up is the awe-inspiring figure of John A. Costello … At 78 years of age, incredibly sprightly and endowed with immense intellectual acuity and drive, he is said to be working regularly into the early hours of the morning on the case. It could well be a fine and fitting climax to his career.”195
Mac Conghail was impressed with Costello’s physical fitness and mental sharpness, and wondered how he maintained his “baby faced glow”. He kept a meticulous record of everything that was said, and could summarise the evidence of any witness after a quick look at his notes. He guided the “very young and very nervous” members of the programme team through their evidence, outlining the likely questions they would face. Costello also had the advantage of remembering how the Locke’s Tribunal had worked, which was an advantage in the lengthy procedural wrangles which dominated the opening days. According to Mac Conghail, the members of the tribunal and the other barristers were “extremely rude” to the former Taoiseach, but Costello never responded to them. He was there to see that fair play was done; in Mac Conghail’s view, he was “somewhat naïve in not understanding that the Tribunal was a political hatchet job”.196
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