O’Connell ‘never lost faith in justice’ – judge
A High Court judge has said that Daniel O’Connell’s commitment to a strong and independent judiciary is “as universally relevant now as it was then”.
Ms Justice Nessa Cahill was speaking at a discussion, chaired by Chief Justice Donal O’Donnell, entitled ‘Liberation through law: Daniel O’Connell and the path to justice’ at Trinity College in Dublin (29 July).
It was part of the O’Connell 250 Symposium, marking 250 years since The Liberator’s birth, organised by the Bar of Ireland and the Trinity Long Room Hub.
Ms Justice Cahill told the event that to say that O’Connell was not universally complimentary about the judiciary would have been an understatement, adding that the contempt he expressed about certain members of the bench in correspondence was often just as apparent in the courtroom.
The High Court judge cited his particularly scathing remarks about Lord Norbury, the judge in the 1803 trial of Robert Emmet, whom he dubbed ‘the thing’, and tried to have removed from the bench.
Theatrics
Ms Justice Cahill said that O’Connell was also known for various theatrics in court, citing an occasion where he stormed out of court after an inexperienced judge had upheld objections to his “blatantly inadmissible” questions to a witness.
He returned to tell the judge that his client’s “blood will be on your head if he be so condemned”. O’Connell later explained that his only chance was to throw responsibility onto the judge, whom he knew would shrink from causing a capital conviction.
The judge, however, told the audience that O’Connell’s stinging abuse and unorthodox tactics had to be seen in a context where discrimination against Catholics was rife, and capital punishment widespread – even for property offences.
She added that, in O’Connell’s view, many of the judges appointed after the Act of Union lacked the skills required for the bench.
Ms Justice Cahill argued, however, that O’Connell’s behaviour in court and remarks about judges never undermined “in any way” his deep-seated belief in the system of administration of justice, and his strong desire to strengthen and improve appointments to the Irish bench to advance that system and public confidence in it.
“Despite his acute disappointments, he did not lose faith in the system of administration of justice,” she concluded.
Magee speech
Sean Guerin SC (chair of the Council of the Bar of Ireland) spoke about O’Connell’s role in The King v John Magee, where he defended Magee, the proprietor of the Dublin Evening Post, who had been accused of libelling the late lord-lieutenant the Duke of Richmond.
Guerin told the event that O’Connell’s famous four-hour speech in defence of Magee had been highly regarded at the time, but had drawn recent criticism, with the barrister accused of sacrificing his client's legal interests to his own political ambitions.
In the speech, O’Connell told the court that “the system cannot last” and that Catholic emancipation was “certain”.
“He then proceeded to explain and justify every word of the publication, relying on Leland's History of Ireland to support the charges made against Richmond's predecessors, including murder, the packing of juries, and corruption of the judiciary,” Guerin explained.
‘Triumph of forensic advocacy’
The Bar Council chair, however, pointed out that Magee, who was ultimately convicted, published a record of O’Connell’s speech and that O’Connell continued to act for him after the trial.
“An unjustified degree of disapproval has developed,” Guerin said, pointing out that, while O'Connell’s language could be provocative, he was acting in “a lost cause” and in a prosecution that was itself “wholly political”.
He described the speech as “a triumph of forensic advocacy under oppression”, adding that O’Connell had used the process of law to denounce injustice.
O’Connell, he concluded, had displayed skill and bravery and his conduct of Magee’s defence continued to be “an inspiration to barristers the world over”.
‘Submitted to the law’
Barrister John Berry SC contrasted O’Connell’s public commitment to working within the law – and his urgings of restraint on his followers – with aspects of his personal life.
Berry cited an address from O’Connell in 1824, when he said that “violence and outrage and crime have always increased the quantity of misery and oppression in Ireland and have never produced any relief or mitigation of the suffering of the people”.
He also pointed out, however, that O’Connell took part in a duel with John D’Esterre in 1815, after which his opponent died from his injuries, and was only prevented from participating in another (with Sir Robert Peel) when he was arrested after being reported by his wife.
This, Berry said, was the last act of O’Connell’s duelling career, as he refused all further challenges.
“He submitted to the law, and he allowed the law to govern his conduct of affairs of honour,” he stated.
‘Chaotic’ jury system
Dr Niamh Howlin (vice-president of the Irish Legal History Society) used the rules governing juries in O’Connell’s time to illustrate the obstacles he faced in defending clients – and himself.
O’Connell was arrested for conspiracy in 1843 after the cancellation of a ‘monster meeting’ in Clontarf and faced ‘trial at bar’ before a ‘special jury’ comprising those of a higher social standing.
Dr Howlin outlined the often “chaotic and inefficient” system for compiling and revising lists of eligible jurors at the time.
O’Connell’s legal team attended sessions for revising the jury list ahead of his trial but found that many eligible Catholics were missing from the list.
‘Unsurprising’
For O’Connell’s trial, the crown struck out 12 Catholics from the proposed list of jurors, and his ‘challenge to the array’ (composition) of the jury was not allowed.
Though O’Connell was found guilty, he spent only three months in prison.
Dr Howlin described the jury issues that arose in the O’Connell trial as “not atypical” for the period but added that it was unusual to see so many of them come together in one trial.
“Given the profile of the accused and wider context of the case, it's probably unsurprising that there were no Catholics on the jury that tried Daniel O'Connell,” she concluded.