Lecture Given As Part of Lecture Series Organised by the Courts Centenary Commemoration Committee

Lecture given as part of lecture series organised by the Courts Centenary Commemoration Committee Date: Thursday 13th November 2014 Speaker: Dr. Myles Dungan Title: The Irish Law Times goes to war – 1914-1918 Introduction My intention tonight is to view the four years and three months of the Great War through the prism of a specialist journal, one that watched over the activities of the legal profession with the loving gaze of an adoring mother, anxious to defend her children against outside interference but capable of admonishment if the situation arose. The Irish Law Times and Solicitor’s Journal traced its ancestry back to the Irish Law Times and Reports established in 1865 - it was, in 1914, published on a weekly basis – it also published a comprehensive annual supplement of law reports containing details of significant cases which might have an impact on a legal system based on judicial precedents and judgments Its reporters at the time of the war included, in 1918, a very young John A Costello who was covering the King’s Bench court for the periodical – other contributors included J.R.Peart and Hugh J.McCann – surnames which have persisted in Irish legal circles to this day. In 1914 it was generally ten pages long – by 1918 that had been reduced to 8 or even 6 pages given the scarcity of newsprint Background What was the legal landscape like in 1914? - there were fewer than 500 barristers (as compared with more than 2000 today) and fewer than 2000 solicitors (as compared with 10,000 today) The Judiciary in 1914 included a total of 14 Superior Court justices. This included a six judge Court of Appeal – ultimate appeal was still to the House of Lords. The lower courts were the domain of County Court judges, Justices of the Peace and Resident Magistrates. In 1914 there were 6000 JPs holding court in Quarter Sessions or Petty Sessions – [2400 were Catholic- twice the number of 1886] – There were also 64 RMs in 1914 – paid by the Crown and expected to be legally expert. – The leading judicial lights of the period were the extraordinary Baron Christopher Palles who had been Chief Baron of the Court of Exchequer since 1874. He would retain the post until his retirement in 1916 at the age of 85 [he died in 1920] One of his judgments was cited as recently as 2006 in an action against a certain national broadcasting station. At the time of his retirement his court had already been absorbed into the Kings Bench, hence his title of ‘the last of the Chief Barons’ Lord Peter O’Brien, the Lord Chief Justice, proprietor of the Airfield estate in Dundrum – died in 1914 shortly after the outbreak of the war. Known while a Crown Prosecutor in the 1880s as ‘Peter the Packer’, for his renowned ability to pack a jury in favour of the Crown, his obituaries in the ILT are uncontaminated by any reference to his expertise in this questionable practice. Questionable, that is, if you were a defence attorney. The judiciary presided over a system that within a few years would be supplanted by a shadow ‘subversive’ apparatus of Sinn Fein supreme court, district court and parish court which, bar the judicial robes, would pay the official system the homage of imitation while ruthlessly seeking to replace it Times were already uncertain for the members of the Bar even before the declaration of war. On 31 October 1914 the Irish Law Times noted that ‘the decrease in business to which we called attention last year continues’. There were fewer cases before the courts. The total amount allowed in costs had declined from £240,000 to £199,000. Bankruptcy sittings were down from 1384 in 1912 to 1188 in 1913. Good news all round for society at large perhaps, but not for the legal profession. The outbreak of war The first issue of the ILT after the outbreak of war was published on 8 August 1914. Despite the tumultuous events of 3 / 4 August 1914 the ILT concentration was on matters decidedly more mundane than murderous global conflict – estate duty on agricultural land in Ireland - Section 63 of the Companies Consolidation Act 1908 - the adjudication of costs in civil cases - the Statute of Distributions relating to the division of the residue of a will after provision for the widow - & the results of the annual Bar examinations in UCD. For the record one M.Binchy finished 2nd – it has been suggested to me that this may be Michael Binchy, who went on to become Circuit Court judge - a female candidate, Miss May Hogan, received 2nd class honours and was placed 21st and 12 of the successful candidates were from India. An interesting footnote … One of the Indian students who studied law in Ireland – at UCD - during the war period and whose examination successes were mentioned in the Irish Law Times was V. V. Giri – a political activist he went on to join Sinn Fein and befriend Eamon de Valera – this resulted in his expulsion from the country in 1918 – on returning to India he became a Labour activist and a member of the Congress Party - he was imprisoned by the British Raj prior to Indian independence in 1948 - in 1969 he became Acting President of India before taking on the role in his own right until 1974, during which period Indira Gandhi was Prime Minister By 15 August, however, the ILT had hit its stride and had woken up to the fact that Ireland was, willy nilly, at war. It was now engaged enough in the concerns of a wider world to quote a Law Times editorial on the questionable constitutionality of the appointment of Lord Kitchener as Secretary of State for War … popular opinion must undoubtedly endorse the action of the Cabinet in putting that all-important department, at such a time as this, in the capable hands of one whose services and achievements mark him out as essentially the person to deal with the situation so far as our active land forces are concerned. But the ILT still devoted space to what the general public would see as trivialities but which, presumably, were of no little importance to the legal profession – for example, the right of a junior to carry a ‘brief bag’ – the ILT pointed out that … In these days the right of the very newest junior at the Bar to provide himself with a brief bag is so unquestioned that it may surprise some members of the profession to learn that this privilege did not always exist Apparently in 1806 it had been ordained that … no man could carry a bag who had not received one from a King’s Counsel … however large the junior barrister’s business might be, he was forced to carry his papers in his hand. The practice was not formally abolished until 1831 though it was moribund long before that. In the issue of 22 August 1914 comes the first detailed reference to a piece of legislation that will come to dominate the legal landscape for the duration of the war – the Defence of the Realm Act – DORA to her good friends, among whom only the Crown Prosecutors at the Irish Bar could reasonably be numbered. This was a short and rather vague piece of legislation rushed through Parliament with the intention, according to the ILT, of enabling … the authorities to deal summarily with matters of immediate danger It began as a couple of paragraphs conferring power on the government but by 1918 the list of regulations was so long as to encompass more than 650 pages banning, amongst many other things, the flying of kites, the practice of treating in public houses and the throwing of rice at weddings – on pain of a fine, or in the case of the latter heinous offence, of imprisonment The first overt reference to the military side of the conflict in the ILT was on 5 September 1914 with a helpful article on the wills of solders on active service. In what must have been quite a sobering experience for the ordinary volunteer Tommy the Army allocated a page in the soldier’s pay book for the writing of a simple will. Soldiers on active service, the ILT pointed out, were exempt from many of the provisions of the 1837 Wills Act. They did not, for example, have to be 21 before they could make a will and there was no requirement for the document to be witnessed. The ILT opined that … in relaxing the rules of will-making, in favour of our soldiers at the front, our law exhibits a wise and just discretion. It was the first recognition by the ILT of the serious and pressing health and safety implications of going to war These early days of the war, before awareness of the precarious position of the BEF became widespread, have a certain surreality about them – there is a matter of factness in relation to the immediate consequences of the outbreak of the war but, by and large it is business as usual for the ILT. Recent legal decisions are published, advertisements continue to be carried, the death of Lord O’Brien the LCJ is noted and his career is discussed. The war impinges, but only in a professional sense. The air of surreality was reinforced by a piece carried on 19 September in which the reader is informed that … A natural feeling of panic, coupled with the fact that alien enemies are forbidden under the new Alien Restrictions Act to own homing pigeons, has led … numerous persons in various parts of the country to wage warfare on all carrier pigeons, or pigeons presumed to be such, which cross their range of vision.

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