Chapter 2  

AN ARDUOUS ROAD

“… the majority of successful barristers have an arduous road to travel before they can even make a bare living.”¹

JOHN A. COSTELLO

“… were it not for the many occasions in our early days in which we had no money to employ a senior and you had to do all the work, you might have never come to the front as quickly as you did.”²

JOHN L. BURKE, SOLICITOR

With no connections in the legal profession, Costello was warned he was mad to try to make a career in law. His first year as a barrister seemed to bear out those warnings, as he made a grand total of 5 guineas.³ As he put it himself many years later, with some understatement, he “had very considerable trouble” making his way at the Bar.⁴ And yet, within five years, he was successful enough to get married, and in another couple of years was able to purchase a very fine house in an upmarket part of Dublin. His success was partly due to natural ability, partly to luck, and very largely to sheer hard work.

One crucial element of luck was that he devilled with barrister Hugh Kennedy, and became “very great friends” with him.⁵ Kennedy was to become Law Officer to the Provisional Government, first Attorney General of the Irish Free State, and then the first Chief Justice. He brought his young protégé into Government service, which provided him in turn with his route into politics. They remained close—when he died, the then Chief Justice left Costello an old English snuff box “in token of their friendship”.⁶ Devilling was a system of apprenticeship, during which the young barrister would carry out various mundane jobs for his “master”, such as representing him in court on uncontested applications for adjournments and helping to draft pleadings. More importantly for the student, “by accompanying his master to court he would learn how to examine a witness and how to present evidence”.⁷ One practical benefit for Jack Costello was that Kennedy showed him how to do conveyancing—in later years he told colleagues this was how he got over the difficulty of breaking into a Bar still dominated by Protestants and Unionists.⁸

The profession which Jack Costello joined in 1914 was, on the surface at least, one governed by tradition—the wigs, the gowns, the formalities in court. The upper reaches were still overwhelmingly Protestant. In 1907, according to the Catholic Defence Society, only 7 of 22 County Court Judges, 19 of 66 Resident Magistrates, and 9 out of 44 Benchers of King’s Inns were Catholic.⁹ But the Bar was changing, as it became more open to Catholics of the rising middle class. Nationalist MP and barrister Tim Healy, writing just a couple of years before Costello’s call, looked forward to “the swamping of the Ascendancy Party, and to the probability that clever youngsters on our side will have better prospects at the Bar in the coming generation than could have been hoped for previously”.¹⁰Until 1885, Irish law students had had to keep several terms at an Inn of Court in London, as well as at King’s Inns in Dublin—the removal of this expensive requirement “opened the Bar to a broader spectrum of society”.¹¹ The change, which was to accelerate after independence and partition, was already well under way when Costello was called. In 1871, Protestants outnumbered Catholics at the Bar by more than two to one. Forty years later, the proportion of Catholics had risen to 44.5 per cent—still not a majority, but the trend was clear.¹²

The centre of the profession was the Bar Library, which, in the words of a near contemporary of Costello’s, Maurice Healy, gave “the Irish Bar its corporate personality … the Bar in Ireland was open to very poor men, who could carry out their profession without any of the expenses which the English system of chambers necessarily imposes”.¹³ Once the annual subscription was paid, the member had access to all the legal texts and reference books he would require. It was also, as Judge Matthias Bodkin pointed out, “the fair or market where barristers are hired … Business or no business, he daily robes himself in full legal toggery, climbs a flight of stairs to the law library, and takes his place very literally like a cabman on his hazard, waiting for a fare.”¹⁴

Costello’s UCD rival, George O’Brien, “found the Library a very congenial place. In spite of a good many personal animosities and jealousies, the atmosphere was friendly. Professional esprit de corps was very high. Political and religious differences did not prevent amicable relations in the Library. In the smoking-room and the dressing-room much good conversation and many amusing stories were to be heard. To mix on terms of equality with my elders taught me a great deal about the way of the world.”¹⁵ It also taught young barristers a great deal about the law. One of the traditions of the Law Library was the “inflexible code of etiquette [which] prescribes that even the most junior barrister can invoke the assistance of even the most senior. The latter will immediately lay aside his work and give his advice. Accordingly, a solicitor can send a brief for an opinion to a newly called junior, in the comfortable assurance that even if his nominee does not know the answer, the opinion he will get back will have emanated from someone who does.”¹⁶ In later life, when he was an extremely successful barrister, Jack Costello was himself renowned for being helpful to more junior barristers—Patrick Lindsay recalled that despite being “the busiest man in the Library”, he was “never too busy to offer a helping hand to even the most junior member”.¹⁷

Costello’s call to the Bar came three months after the outbreak of the First World War—and the war was to be a good time for those lawyers who stayed at home. Out of a practising Bar of around 300, almost 130 joined up, and 25 died in action.¹⁸ The tone of the main legal publication, the Irish Law Times and Solicitors’ Journal, was distinctly bellicose. It published, in February 1916, “a War Supplement which contains a full record of the members and sons of members of the legal profession in Ireland who are serving in His Majesty’s Forces in the present war or have been killed in action … The Supplement shows that the Bench, the Bar and the Solicitors’ Profession in Ireland have promptly given of their best to the services of the country.”¹⁹ Even many of those involved in the law who remained at home tried to “do their bit”, for instance forming a Four Courts Auxiliary Munitions Association to “keep the [munitions] factory going over the weekends while the ordinary workers are obtaining their well-earned rest”.²⁰

Of course, while Unionists naturally supported the war effort, so too did Redmondite Nationalists, as was demonstrated by Jack Costello’s brother, Tom. Having qualified as a doctor and served for a time as house surgeon in the Mater Hospital and as a temporary doctor in Mountjoy Prison,²¹ he joined the Royal Army Medical Corps, becoming a lieutenant in the Wessex Field Ambulance.²² He was promoted to Captain in June 1916²³—some eight months before his arrival at the front in France²⁴—and was awarded the Military Cross at the end of 1917 in the New Year’s Honours List.²⁵ After the war Tom married and settled in Darwen in Lancashire, where he had seven children,²⁶ was elected to the Town Council for the Liberal Party in 1927,²⁷ and served as Mayor for two terms from 1941 to 1943.²⁸ He died in March 1945.²⁹

Jack Costello, though, was not moved by what he later referred to as Redmond’s “generous gesture” in encouraging nationalists to enlist in the British Army. He said this led to the “sacrifice in vain of many thousands of Irish lives”, but had “taught us the unforgettable lesson not to pay for the goods until they are actually and decisively delivered”.³⁰ In any event, war held no attractions for Jack, then or later—he was far more interested in furthering his career. A week after his call, the Bar Council agreed to follow the example of the Inns of Court in London by adopting resolutions “as to the holding of briefs by counsel on behalf of brethren who have joined Lord Kitchener’s army”.³¹ The idea was to preserve the practices of those who had volunteered for military service, with barristers urged “to make it a point of honour to ensure that an absent barrister should get back his practice intact when he resumed work at the Bar”.³² But these good intentions did not survive four years of war—as the Irish Law Times recognised in 1919: “Beyond doubt the position of lawyers who surrendered their positions in 1914 is unenviable. Juniors who stayed at home stepped forward, gained ground and held it tenaciously.”³³

Costello later recalled the advice of his mentor, law lecturer and barrister Arthur Clery, who said there were three ways for a young junior counsel in those days to make his way at the Bar—write a book, marry a solicitor’s daughter, or go to Quarter Sessions, on circuit in the provinces. He chose the third option, and not surprisingly, given his connections through his father and his childhood visits to the county, he opted for Quarter Sessions in Clare, going for seven years to Ennis and the surrounding towns several times a year.³⁴ Clare had the further advantage that the presiding judge was Matthias Bodkin, the father of Tom, his friend from UCD. Judge Bodkin had been a journalist as well as a barrister and in the former guise wrote editorials for the nationalist Freeman’s Journal, in which his opponents admitted he displayed “admirable political malice”. He was appointed a County Court judge after the Liberals returned to Government. “At first he was not a conspicuous success; but his good nature and common sense took charge of his Court, and when he retired he was universally regretted.”³⁵

According to Maurice Healy’s account of the Munster Circuit, which covered the jurisdictions of five County Court judges, in Clare, Limerick, Kerry, and the East and West Ridings of Cork, it was difficult to follow more than one judge as he went on his rounds four times a year. So “each judge usually was followed by a bar of some half-dozen members”, each likely to end up with a few appeals to take to the half-yearly Assizes, which would rehear the whole case. Both civil and criminal cases were heard.³⁶

In Clare, the young Jack Costello built up a steady stream of work, the foundation of his subsequent practice in the capital.³⁷ His time there also opened his eyes to the ways of the world—he later recalled asking a man he was defending in a slander case if he had used the words the plaintiff complained of. His client replied, “I have, but I have two witnesses here to swear I did not.” Experiences like this led Costello to conclude that the Irish courts saw “rather wholesale perjury”.³⁸

In Dublin, he worked closely with the solicitor John Burke, who briefed him for his first jury action, a case involving payment for grazing horses, which earned him five guineas.³⁹ Burke later pointed to his inability to afford a more senior barrister in such cases as a stroke of luck for Costello’s future career. “I think you will agree with me that were it not for the many occasions in our early days in which we had no money to employ a senior and you had to do all the work, you might have never come to the front as quickly as you did. For people who saw you then perform would ask round the Court who you were. I remember so well the day you appeared on a motion sent me by J. O’Connell Tralee whose agent I was. Those present were spellbound.”⁴⁰

This could, of course, have been flattery of a man who was by then Taoiseach—but flattery does not appear to have been in John Burke’s line. He was not a political supporter of Costello’s, despite their lengthy professional and personal relationship, and far from flattering the Taoiseach, he wrote to him some two months before the comments quoted above to say, “strange as it may seem I have never been able to summon any enthusiasm for your election to Taoiseach, not because we differed in politics, but just because the qualities we as friends admire in you made you seem unfit for such a task”.⁴¹

There can be no doubt that Costello was very much fit for the task of being a barrister. But his performances, spellbinding or otherwise, did not happen by accident—the key to his lifelong success at the bar was hard work. Tom Finlay, a colleague in later years, recalled that he was “always very well prepared for a brief”, and that, allied to his very effective cross-examination, made him perhaps the top barrister of his day.⁴² As Finlay said of him at his retirement from politics, he led the Irish Bar “not only in brilliance … not only in success [but also] … in matters of standards, matters of integrity and matters of ethics. His talents never became the preserve of the great corporations, or of the vested bodies, much as they would have liked. Rather have they been untiringly, brilliantly, and, may I be permitted to say, belligerently at the disposal of the oppressed and the under-privileged.”⁴³

Even the son of his greatest political rival found that Costello showed him “nothing but kindness and consideration”. As a solicitor, Terry de Valera often briefed Jack Costello in later years, “and a more learned, loyal and conscientious leader one could not have”. He recalled winning one case against Costello, after which the latter successfully argued that his client should be spared some of the costs. Outside court, the younger de Valera, somewhat woebegone, was called over by Costello, who said, “I’m sorry about the costs, Terry, but you know that I had to do my duty”—an extremely gracious comment in the circumstances.⁴⁴ Another testament to Costello’s ability came from fellow barrister Kevin Liston, at a King’s Inns tribute evening: “He passed the supreme test of a good advocate—he could win a poor case before a good judge.”⁴⁵

Ability, kindness, hard work—all were in evidence from the earliest days of his legal career. He was not, however, much interested in the revolutionary ferment which was about to sweep away his former schoolmate Seán Heuston. Costello candidly admitted he “hadn’t the remotest idea what was going on … I was engaged in laying the foundations for my practice at the Bar and it was difficult enough without my going into the Troubles at that time.”⁴⁶

In fact, on the day the Easter Rising broke out, Costello was—characteristically—playing golf. As he put it more than half a century later, with some evident lingering resentment, he had “very considerable difficulty in getting home. The IRA … had a barricade across … the North Circular Road and I lived down in Rathdown Road at the time. I was coming home on a bicycle from Finglas Golf Club and I had the greatest difficulty in getting through that barricade and it was only when the gentlemen who were armed keeping the barricade were not looking that I slipped behind them and got home where I remained for a solid week incarcerated, not able to go anywhere.”⁴⁷ The Irish Law Times was equally put out, condemning the “deplorable rising in Dublin”, during which the rebels “took possession of the Law Library and other buildings [in the Four Courts], piling textbooks, law reports, and books of record in the windows as barriers behind which to shoot”.⁴⁸

For the ambitious young barrister, career came before politics—but it would be a mistake to think he was unaffected by the events going on around him. Many years later, as Taoiseach, he remembered his first sight, in early 1922, “of men in the green uniform walking through College Green. He had felt then a thrill of pride at the concrete evidence of what had been achieved by the sacrifices of people over the centuries.”⁴⁹ He was to make a contribution, in his own modest way, to the developments of the War of Independence. In the meantime, his career was progressing. During 1916, he became one of two barristers reporting cases for the Irish Law Times from the King’s Bench Division of the High Court.⁵⁰ While paying very little, this was a way for a young barrister to gain some profile, while at the same time keeping up to date with case law.⁵¹

He was also fighting his own cases—appearing before the Master of the Rolls in July 1916, for instance, for a defendant, Hynes, who was trying to stop a mortgage company selling his land after he failed to meet repayments. Costello argued that under wartime regulations the plaintiff should have obtained leave from the court before instituting proceedings. He lost the case, but the fact that it merited mention in the Irish Law Times Reports suggests it was of some significance—and therefore that the young barrister was starting to make his mark.⁵²

The legal establishment at this time was still rather splendid—and extraordinarily overstaffed. The Supreme Court of Ireland had no fewer than fifteen judges: the Chancellor, the Master of the Rolls and two others in the Chancery Division; the Lord Chief Justice and seven others in the King’s Bench Division; two Lords Justice of Appeal; and the Judicial Commissioner of the Irish Land Commission.⁵³ This judicial hierarchy had its last moment of glory at the start of the Easter sittings of 1919, when for the first time since the war the Lord Chancellor, Sir James Campbell (later Lord Glenavy), held a levée in the Benchers’ Chambers in the Four Courts. This was “largely attended by King’s Counsel, Junior Barristers and officials. Subsequent to the levée there was the usual procession of the Judges to the Hall of the Four Courts. The Lord Chancellor and the other Judges in their official robes made a goodly show which attracted a large crowd of interested spectators … The procession of judges went to the main entrance, and then turned and walked to the steps underneath the clock, where the Lord Chancellor took up his position for the reception of the judges. His Lordship was attended by his private secretary and purse bearer … his permanent secretary; and by his train bearer, mace bearer, and other officials …”⁵⁴ For the arduous task of holding the Lord Chancellor’s train on the five occasions a year when he wore his full robes, his train bearer was paid £100 per annum.⁵⁵

By the following year, the opening of the Easter Term was much more low-key—not least because several Judges missed it as a general strike had stopped the trains. “The Lord Chancellor’s levée and the procession of the judges, which in former years formed a picturesque feature of the inauguration of the legal year, were abandoned …”⁵⁶ By this stage, the War of Independence was in full spate, a war in which the legal system was becoming a hotly contested, if secondary, battleground.

The Dáil or Republican courts—with a full structure of parish, district, circuit and supreme courts—were established by a Dáil decree of 29 June 1920, functioning most openly in the summer and autumn of that year, and again after the truce in July 1921.⁵⁷ In the intervening period, they were driven underground by the British authorities. One of the judges, Kevin O’Shiel, recalled of this period, “To carry on, we had to assume fictitious names and disguises, and make ourselves and our courts as inconspicuous as possible. Accordingly, I … assumed the calling of a commercial traveller.”⁵⁸ The Republican Courts were a considerable challenge to the British, with Assistant Under-Secretary Andy Cope warning a Cabinet conference in London that they were “doing more harm to the prestige of the government than the assassinations”.⁵⁹

O’Shiel remembered that “local solicitors of every religious and political complexion pleaded in my courts, but it was somewhat different with the Bar whose superiors took a much more rigid view as to the propriety of their members countenancing our courts, which resulted in my having the assistance of comparatively few of them”.⁶⁰ The Dáil Minister for Home Affairs, Austin Stack, put it more bluntly, complaining that he found “the Irish Bar worthy of the bad traditions it always had; there were scarcely half a dozen patriotic men among them”.⁶¹ In fact, more than a dozen barristers were involved in the Dáil courts, including Arthur Clery, Hugh Kennedy, John O’Byrne, Cecil Lavery and Cahir Davitt.⁶² The latter was approached about taking a judicial position by Arthur Clery, one of the two members of the Dáil Supreme Court, in July 1920. Davitt said the reason he, a relatively inexperienced barrister, was approached was that “men of more standing” had refused⁶³—which raises the intriguing question of whether Clery approached another favourite former pupil, John A. Costello, who had a couple of years’ more experience at the Bar than Davitt.

In fact, there is no reference to Costello being involved in the Dáil courts at this stage, although he did appear in them after the truce. He clearly confused his role in a newspaper interview half a century later, when he claimed to have “a happy memory” of the Republican Courts: “I’m delighted to say that as a result of them I was found guilty of ‘professional misconduct’. You see, the Bar Council at the time passed a resolution saying that it was professional misconduct to appear in Sinn Féin courts. I appeared in them and I had many good men in company with me, some very eminent men.”⁶⁴

This presumably refers to a “very largely attended” meeting of the Bar Council in June 1920, which debated the question of the Dáil courts and whether it was professional misconduct, or simply a breach of professional etiquette, for members to appear as advocates before such courts. The Council resolved “that it is professional misconduct on the part of any member of the Bar to appear before such tribunals …”⁶⁵ Despite Costello’s later claim this decision did not affect him, as he doesn’t seem to have appeared in the Republican courts.

The question arose again five months later, when another meeting of members of the Bar discussed a motion in the name of Tim Healy declaring the earlier resolution ultra vires. When Healy was called on to speak, he revealed that he had not drafted the resolution, or agreed to let his name be attached to it. But he believed the Bar Council “had no right to pass judgement upon the conduct of any member of the Bar … the only body who had that right was the Benchers, who admitted men to the Bar. He had been 39 years at the Bar, and nothing like this had arisen in his time. He did not know what was to be done, but he felt that the senior members should do what they could to protect the junior members of the Bar.” The only other speaker was S.L. Brown, K.C., who claimed “they had all been a happy family in the Library, and it would be a pity to introduce anything that would cause friction or disagreement”. On his suggestion, it was agreed to adjourn the meeting indefinitely, without coming to a decision on the issue.⁶⁶

The Bar Council found it easier to reach agreement when it was acting as a trade association—agreeing a new scale of minimum fees early in 1920.⁶⁷ It also complained to the Attorney General at the use of English barristers as prosecutors at courts martial at the end of the year, at a time when “there is no lack of Irish counsel who are willing to undertake this work …”⁶⁸—a comment Austin Stack might have taken as confirmation of his view of the Bar.

As well as setting up their own courts, Republicans were intent on ensuring that the established legal system didn’t work. This they did through a mixture of intimidation of witnesses and jurors and the destruction of the physical infrastructure of the courts. In July 1920, only nine grand jurors and nine common jurors, out of a list of 78, answered the call at Waterford City Assizes, a situation the presiding judge described as “without parallel in the history of Ireland, England or Scotland”, and which he blamed on “threatening notices in Dublin newspapers”.⁶⁹ The judges attending the summer Assizes in Limerick had to be accommodated in the county courthouse, guarded by soldiers and police.⁷⁰ Westmeath County Council ordered the closure of all courthouses in the county and the eviction of Government officials from them, and refused to pay the salary of the Under Sheriff “on the grounds that that official was engaged in carrying out decrees and legal processes of courts not recognised by Dáil Éireann”.⁷¹ When the local Resident Magistrate and his clerk arrived at Newbridge Town Hall, venue for petty sessions courts for forty years, they found the doors locked on the orders of the Town Commissioners.⁷²

Not surprisingly, given this level of hostility, 315 magistrates resigned between May and August 1920.⁷³ The pathetic state to which British law in Ireland had been reduced was illustrated at Borrisokane, Co. Tipperary, in the latter month. “The local courthouses having been recently destroyed by fire, the … monthly petty sessions was held in the ruins of the burned building. Major Dease, R.M., who was the only magistrate that attended, occupied a seat inside the entrance gate, and the rain, which fell at intervals, made it very unpleasant for those present.”⁷⁴

By far the most prominent case with which Jack Costello was involved in the initial stages of the War of Independence was that of Father Thomas O’Donnell, a Tasmanian chaplain in the British army during the First World War, who was charged with making seditious remarks about the King during a visit to Killarney in October 1919. He was arrested and taken to the Tower of London, and faced a court martial in London’s Guildhall.⁷⁵ The two senior barristers in the case were Paddy Lynch and the legendary Tim Healy,⁷⁶ previously a leading, if disruptive, figure in the Irish Parliamentary Party, and later first Governor General of the Irish Free State. As the junior counsel, Costello doesn’t appear to have spoken at the court martial, which found the priest not guilty.⁷⁷

More typical was Costello’s continuing work in Clare. In March 1920, for instance, he was again junior to Paddy Lynch when they represented Clare County Council in a compensation case brought against it by the brother of an RIC sergeant killed in the War of Independence. The Council was liable for compensation under the Criminal Injuries (Ireland) Act, 1919, but successfully argued that the claimant had no prospect of benefit from the continuance of his brother’s life.⁷⁸ The council at this time was controlled by Sinn Féin; the chairman was a local IRA commander, and almost all its members were on the run.⁷⁹

Early in 1918, Clare had been declared a special military area after Volunteer activity. Permission was needed to enter and leave the county, mail was censored, and a curfew was imposed in some areas.⁸⁰ The legal profession was affected by these developments. With train services interrupted, barristers on the Munster Circuit were not guaranteed that their luggage would arrive, and so had to obtain “permission to appear in court without wig and gown”.⁸¹ A more serious problem was the partial or complete destruction of the courthouses of Ennistymon, Killaloe, Kilrush and Tulla, which meant the Quarter Sessions for those towns had to be held in Ennis.⁸²

In these disturbed conditions, the local judge, Matthias Bodkin, lived up to his nationalist credentials by criticising the activities of the Black and Tans. As Costello later recalled, Bodkin “displayed great judicial courage when … he read in open Court on the 5 February 1921 a report on the reprisals of the Black and Tans in Clare. He sent a second report to the British Authorities which was described by the late Lord Asquith in the House of Commons as ‘one of the gravest indictments ever presented by a Judicial officer against the Executive Government in a free country’ …”⁸³ According to Maurice Healy, Bodkin “refused to be silenced, and at the imminent risk of his life continued to denounce the infamies that were being perpetrated by these notorious servants of the Crown. It was in a large part due to his efforts that blackguardism was at last checked; and many a Clare household can thank Judge Bodkin for having been spared from arson and loot.”⁸⁴ He was later “blackbeaned” from membership of the RDS for his troubles.⁸⁵

The legal aspects of the War of Independence were a constant problem for the British. While the legal system had largely broken down at a local level, the higher courts were still functioning—and were frequently prepared to hear appeals against decisions of the military courts. Dublin Castle officials had little regard for the legal establishment, one of them, Mark Sturgis, dismissing the Lord Chancellor, Sir James Campbell, as “a poltroon of the most contemptible dye—does nothing and apparently thinks of nothing but the best way to show SF that he is neutral and passive. A coward and a shirker, and by God a thief too since he continues to draw his salary.”⁸⁶ In order to minimise the chance of trouble with the civil courts over Habeas Corpus applications, the Judge Advocate General advised the military to carry out death sentences as soon as possible after they were handed down. As Sturgis mordantly put it, “Macready [the Army commander] must wait for the Act of Indemnity to be cleared of a murder charge.”⁸⁷

In order to protect military courts from judicial interference, the British had to demonstrate that a state of active hostility existed in the area concerned—which rather upset their repeated claim that there wasn’t a war going on.⁸⁸ The law appeared to have been settled in the case of John Allen in February 1921. He had been arrested for possession of arms in January and sentenced to death. On 24 February, the King’s Bench Division rejected an appeal for Habeas Corpus because a state of war existed, during which the Government was bound to repel force with force. It also ruled that military courts could act even though the ordinary courts were sitting, and that civil courts had no authority to control the military authorities during the period of war.⁸⁹ Allen was executed four days later.⁹⁰ Despite this ruling, further appeals were made, to the evident frustration of the authorities. Mark Sturgis wrote, “I can’t understand why one High Court case doesn’t settle this but it seems it doesn’t.”⁹¹ In total, out of 37 death sentences in 23 cases, there were five appeals to the courts, all of which followed the Allen ruling, until the cases of Egan and Higgins,⁹² in which John A. Costello was centrally involved.

John Joseph Egan, a motor engineer with Clare County Council, had been arrested on 26 May 1921. Some soldiers claimed they had seen him throw a parcel over a wall, at a place where they subsequently found a quantity of ammunition. He appeared before a military court on 11 June represented by Clare-based barrister Paddy Lynch. Egan was found guilty and sentenced to death.⁹³ Costello first became aware of the case when the condemned man’s solicitor, Jack Lynch, “came up to Dublin and asked me if anything could be done as this man was to be shot the next morning”. Costello arranged for Hugh Kennedy to come in as Senior, and together they decided to make their application for Habeas Corpus before the Master of the Rolls, Charles O’Connor.⁹⁴

They chose their judge well. By his own admission, O’Connor’s “practice at the Bar and … life as a Judge of the Chancery Division have left me unqualified for criminal cases”. But he recognised the right of anyone under arrest “to apply to any Judge of the High Court for the writ of Habeas Corpus, and if the writ is refused to proceed from Judge to Judge … it is the duty of each Judge to form his independent opinion and to act upon it”.⁹⁵ He had also been involved in unsuccessful attempts to broker a peace deal, accompanying leading Sinn Féiner Fr Michael O’Flanagan to Downing Street in early January to meet Lloyd George.⁹⁶

The application was made on 14 June 1921.⁹⁷ As Costello recalled, “There was always the tradition at the Bar that an application for Habeas Corpus took precedence over all other business and when Hugh Kennedy and I went in to make this application and told him what it was about he immediately stopped the case which was at hearing before him, heard the application, granted the conditional order, [and] fixed a particular date for the hearing of the application.”⁹⁸

Costello’s account of subsequent developments left out two important points. The first was the involvement of Lynch, who was to conduct practically all the legal argument in the main hearing of the case. Lynch was to have an interesting political career. A moderate nationalist, he represented the Parliamentary Party in the by-election arising from the death on the Western Front of Willie Redmond. His opponent, of course, was Eamon de Valera, and Lynch was defeated. However, he was later to serve as de Valera’s Attorney General, a mark of the respect in which his by-election opponent held him. His courtroom style was described by Maurice Healy: “He loved to lull his audience into comfort with a succession of softly-spoken sentences, and then suddenly to thunder out some impassioned phrase in tones that caused everyone in court to jump. To hear Paddy lead a witness along the flowery path until every suspicion had been allayed, and then shout a fierce and fatal question, with a vicious ‘Answer me that!!!’ was an experience of the dramatic not to be equalled in any theatre.”⁹⁹

The second important point was that the legal team represented a second condemned man, Patrick Higgins, whose case ran in tandem with Egan’s, but who is left out of nearly all accounts. Higgins had been arrested following an engagement at Clonmult, Co. Cork, on 20 February 1921. An informer had alerted the British forces to a house full of IRA men, which was duly surrounded. A gun battle erupted during which 12 IRA men were killed, four wounded, and four others captured.¹⁰⁰

According to his statement, Higgins had until 1918 been a member of the Volunteers, “which at that time was more or less a hobby with young fellows and consisted of no more than marching”. Hobby or not, it had resulted in a recurrence of an old illness—improper treatment of appendicitis some years before left him with an incision which did not heal permanently—and at the request of his mother he resigned. However, his name had come to the attention of the authorities, and he claimed he became a target for harassment and threats from the military. At the suggestion of a friend he went to the house at Clonmult, which he “knew … was a hiding place … He was hardly there ten minutes when the military arrived, surrounded the house and started firing …” After he surrendered, Higgins said he was shot in the mouth by a stray bullet, but his statement insisted he “had no gun and there is no evidence connecting him with one”.¹⁰¹

This was pure invention. In fact, Higgins was a captain in the IRA and Battalion Quartermaster, and had a central role in the Battle of Clonmult.¹⁰² Although he was the most senior officer left in the house after the flying column’s commander and deputy commander went on a reconnaissance, he was not left in charge because one of his superiors felt he “didn’t show any great aptitude for the work” during an earlier engagement.¹⁰³ The historian of Clonmult, Tom O’Neill, believes Higgins’ resentment at this slight impaired the flying column’s effectiveness in the battle.¹⁰⁴ And far from being hit by a stray bullet, he was shot in the mouth after surrendering by Auxiliaries who executed six of the other IRA men and were only stopped from killing the rest by the arrival of an officer in the regular British Army.¹⁰⁵

Higgins was detained in Victoria Barracks in Cork, but due to his injuries and a recurrence of appendicitis, his trial was delayed until June. A military court then sentenced him to death—two of the other prisoners captured at Clonmult had already been executed, on 28 April, after their own application for Habeas Corpus had been rejected. As Macready’s affidavit in the Higgins case pointed out, he “was arrested at the same time and place and by the same persons and in the same circumstances [as the executed men] … there is no distinction in law or in fact between the cases …”.¹⁰⁶

O’Connor granted conditional orders of Habeas Corpus for both men.¹⁰⁷ In preparation for the main hearing of the case, their legal team gathered affidavits claiming that there was no state of war in either Cork or Clare, that the civil courts were still operating, and therefore there was no justification for resorting to military courts.¹⁰⁸ In response, affidavits on behalf of Macready detailed the activities of the IRA, the deaths of policemen and soldiers, and the difficulties of running the law courts.¹⁰⁹ By the time he came to deliver his judgment on 26 July, O’Connor’s ruling was probably academic, as the truce had come into operation on 11 July. But it was a rather ingenious judgment all the same. He accepted that under the Prerogative of the Crown, the civil courts had no right to interfere with the military during a state of war—but then went on to argue that the Royal Prerogative had been limited by the Restoration of Order in Ireland Act of 1920. This Act gave the military special powers, but also imposed conditions, including the requirement that in a trial for an offence punishable by death, the court martial must include one member nominated by the Lord Lieutenant and certified to be a person of legal knowledge and experience. He rejected the proposition put forward by the military that there could be no limitation on the Prerogative of the Crown in a state of war, even by Act of Parliament, and found that “on the ground that the Restoration of Order Act has limited the powers of the Military Authority in the present state of war in Ireland, I must hold that the writ of Habeas Corpus must be issued”.¹¹⁰

According to Macready, this ruling “caused a terrific stir in Sinn Féin circles, being described as ‘a staggering blow’ against military rule. So far as I was concerned I considered that the position of the military was unassailable, and had no intention of paying attention to the writ …”¹¹¹ On the day the prisoners were due to be produced in court, Macready’s counsel, Serjeant Hanna, said he was not going to do so, pending an appeal, although the authorities did undertake not to execute the two men.¹¹² Jack Costello later remembered that “the Master of the Rolls was very cross at this, he got as white as a sheet, he denounced the action of the military and said that if they persisted in their refusal to carry out the order, there would be nothing but red ruin and the break up of all law …”.¹¹³ The Master issued a writ of attachment against Macready and the other senior officers named in the case, as well as the governor of Limerick Prison, for failing to produce the prisoners.¹¹⁴ As Macready ruefully observed, O’Connor’s outburst “was a perfect godsend for the press, and the next day the headlines were a joy to read”, although he took some solace in the reported unhappiness of the High Sheriff, who, probably wisely, “had … come to the conclusion that it was for the police rather than for him to carry out the order of the court”.¹¹⁵

In his memoirs, the general tried to make light of the affair, referring to the “amusement it caused”, and calling it a “breeze between the Master of the Rolls and myself [which] made no difference in our personal relations, which remained cordial up to the day on which I left Ireland …”.¹¹⁶ But it is clear that Macready took it very seriously indeed at the time. Travelling from London, he decided “to go to Cork on my return [rather than travelling through Dublin] … In the martial law area I should not have hesitated to arrest anyone, including the Master of the Rolls himself, who attempted to carry out the service of the writs.” And he was most put out when Lloyd George, on the advice of the Irish law officers, agreed to release the two men. He was so annoyed that he wrote to the Army Council saying that “unless my authority as Chief Governor of the martial law area was not speedily restored I must ask to be relieved of a position I could no longer hold without loss of self-respect”.¹¹⁷

On 1 August, a Cabinet sub-committee—including Irish Secretary Hamar Greenwood, Lord Privy Seal Austen Chamberlain, Secretary of State for War Worthington Evans and Lord Chancellor Birkenhead (“looking very holidayish in a light suit and soft white hat”) met to consider the situation.¹¹⁸ A week later, Chamberlain announced that the decision to release Egan and Higgins was due to the importance of avoiding conflict between the civil and military authorities in Ireland, and had nothing to do with the decision by the civil courts, which had no power to overrule the military courts in the martial law area in Ireland. According to Macready, “the pronouncement of the Government … was so unequivocal as to safeguard the position of officers charged in the future with the burden of administering martial law, and on that account alone was an ample compensation for the absurd position in which I and my officers had been placed”.¹¹⁹ Clearly, not a laughing matter.

In November 1921, the two cases came before the Court of Appeal, but counsel for Macready asked for them to be taken out of the list (with liberty to re-enter) because of the truce, and expressed the hope that “the Court might hear no more of the cases”.¹²⁰

Ironically, many of the arguments—and many of the same people—were to be involved in the case of Erskine Childers, the anti-Treaty Director of Publicity who had been arrested in possession of a revolver—given to him as a souvenir by Michael Collins—and sentenced to death by a military court during the Civil War. On the evening of 23 November 1923, just hours before he was due to be executed, his legal team applied for a writ of Habeas Corpus to none other than the Master of the Rolls, Charles O’Connor. The courts were then sitting in the King’s Inns following the destruction of the Four Courts, and the emergency hearing was conducted by candlelight in the dining hall of the Inns.¹²¹

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 his 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

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 inUCD, 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.