QC v JC: Junior Bar Privilege, 1836-1912

From the Cork Examiner, 17 March 1864:

“CORK SPRING ASSIZES (before Mr Justice Keogh) – BAR PRIVILEGE

Mary Sullivan was indicted for stealing a letter from the Post-office.

Mr Coffey defended the prisoner.  Messrs Clarke QC and Brereton QC, instructed by the Post-office department, prosecuted.

Mr Coffey said that he wished to know if the prosecutors were going to proceed with the case in the absence of junior counsel.

Mr Brereton – We are directed by the Attorney –General to prosecute.

Mr Coffey – Keep tranquil, if you please.   When the Attorney-General acts himself, the Crown are entitled to select whom they please, but when the Attorney-General does not act, the indictment is always opened by junior counsel.   It is a new practice to have the indictment opened by gentlemen of the Inner Bar.

Mr Brereton – I have been acting on it for ten years.

Mr Coffey – More shame for you (laughter).

His Lordship – For my part I think it is very desirable to have a junior barrister engaged in the case. 

Mr Heron QC (intervening) – The old rule was that junior counsels opened every indictment, in the same way as pleadings were opened in the civil side of the court.

Mr Coffey – Mr Exham was always the junior counsel for the Post-office, but he now belongs to the Inner Bar.

His Lordship –  My own experience is that it is the practice always of junior counsel to open the indictment, and I do not understand why that practice should be departed from now.  I do not think it right for Queen’s Counsel to interfere with the practice of the junior bar.

Mr Clarke – The Post-office and the public are protected by arrangements of a complicated and technical nature which must necessarily be kept secret, and the same staff of counsel entrusted with them.   If, on the promotion of each junior counsel to the inner bar, the Post-office were to appoint another junior, there is no saying how many counsel they would have.  In the course of time, every QC would hold a brief for the Post-Office – forming a long line of silk gowns with a stuff one at the end for ornament (laughter).  

His Lordship – I have no hesitation in saying that I believe the notion that there is a code of special signals, such as exists upon the high seas, in the Post-Office, which it should be locked up in the breast of certain special counsel is a wild a delusion as ever was entertained (laughter). I will not allow a record to be opened without junior counsel being in the case, and I do not see why a public department should not comply with the same rules that a private individual is obliged to comply with.  When I was Attorney-General I always respected the privilege of the Bar.

After some further conversation, his Lordship stated that he would confer with the Chief Justice on the subject of Mr Coffey’s objection, which was an important one, and he would also consult with the Attorney General on the subject.”

What fresh hell for juniors was this? Had the inner bar been rendered desperate for business by the Famine?  In fact, inroads on junior privilege had started as early as the 1830s, due to a decline in High Court business attributable to an extension of the jurisdiction of the County Courts and a corresponding reduction in the number of cases.

The first evidence of tension regarding such incursions came in 1836, when the Master of the Rolls refused to a motion of course moved by Mr Martley KC, saying that to allow members of the inner bar to move such motions would be a breach of a long course of usage and invariable practice exclusively allocating them to members of the junior bar.  According to the Dublin Register, the Master went further and pointedly remarked that when gentlemen thought proper to accept silk gowns they should not receive any such motions.

The next day Mr Martley appeared again in the Rolls Court to complain about the latter part of the Register’s report as a gross misrepresentation and as having placed him in a very false and invidious position with respect of the outer bar, having regard to the fact that he had specifically asked the Master, at the outset, whether it was appropriate for him to proceed. The Master of the Rolls tactfully replied that Mr Martley was entitled to the most marked expression of approbation for the manner in which he had originated the question and for the manly disinterested and honourable anxiety he had manifested to protect privileges of the outer bar, and the Register subsequently published an apology.

Not all QC’s took to heart the views of the Master of the Rolls regarding motions of course being moved by juniors only.  In June 1842, the Dublin Register again reported that

“The Lord Chief Justice [of the Queen’s Bench] refused the other day to hear Mr Brewster make a motion of course, which should, by right, have been made by a member of the outer bar.  His lordship observed that he could not sanction silk gownsmen making those motions which properly belonged to the junior branch of the profession.  Mr Hatchell came on the following day to make a similar motion, and Mr Justice Crampton, acting upon the preceded given by the Chief Justice refused to hear him.  We trust that the other two courts, particularly the Exchequer, where so much junior business is done by Queen’s Counsel, will following the example set by the Queen’s Bench.”

The above provoked a January 1843 letter in the Freeman’s Journal from ‘A Goer of the Hall Circuit’ warning of the impending evil caused to junior barristers by QC’s taking to themselves the business of the outer bar, and stating that “[t]he late Master of the Rolls of revered memory never allowed such practice in his courts.”

By 1853, members of the outer bar were openly objecting to such conduct.   When Mr Hickson QC applied to the Court of Common Pleas in November of that year for an order for substitute service in respect of a case pending in that court, he was immediately interrupted by Mr Duggan BL, who stated that he believed that the application making by his learned friend was of a class which the practice of the profession assigned exclusively to the junior bar.  When the Chief Justice joined his voice to that of Mr Duggan to remark that it was certainly an outer bar motion, Mr Hickson said that he would be very sorry to encroach on the privileges of the junior bar, and withdrew without pressing the question.

The judiciary was commendably trenchant in its defence of junior privilege.   When, in 1855, it transpired in that no junior counsel had been engaged although the name of a junior appeared on the pleadings, the Court of Exchequer, previously lax about recognising junior privilege, accepted that the practice of the court rendered it the duty of solicitors to engage a junior and that it was the undoubted right of the juniors to insist on this practice being upheld.  The case was adjourned until a junior counsel could be engaged.

Absence of a QC, on the other hand, did not preclude a case from proceeding – just as well, as Queen’s Counsel were all too frequently occupied with cases in other courts.  Indeed, the judiciary was not merely understanding, but encouraging, to any member of the Junior Bar proceeding in the absence of a leader.  In June 1856, when a junior apologised to the Court of King’s Bench for proceeding in the absence of senior, Lord Chief Justice Lefroy pointedly remarked that he was always pleased at finding the members of the junior bar afforded the opportunity of displaying their abilities, and he could say that their ability, learning and judgment reflected great credit on them.

Despite these efforts, however, the incursions continued.  In June 1858, the Belfast Newsletter reported that there were rumours of the probability of a meeting of the junior bar being held shortly for the purpose of considering the serious professional evil of encroachments by the ‘silk gowns’ on ‘junior business,’ something which had grown to the extent that the Lord Chancellor was requiring new silks to give a pledge that they would not transact such business.

The rule, that QCs could not sign pleadings without juniors, formally adopted by an 1864 resolution of the Bar of Ireland, provided additional assistance to members of the outer bar, but did not cover them against a situation where a newly appointed QC sought to hang on to existing cases as a second senior, without having a junior appointed in his stead.

In Kerans v McCamish (1873) 7 ILTR 73, a case stated for the opinion of the Court of Exchequer, counsel for the appellant, Mr Teeling BL, asserted, relying on Lefanu v Malcolmson 8 Ir LR 418, 423, that neither of the two QCs instructed for the respondent, could engage in law argument without a junior. Baron Dowse agreed, saying that, in Westminster Hall, a junior counsel would be required in such a case, and he did not see why a different rule should prevail in Ireland, particularly where the respondent (Dublin Corporation) was well able to afford a junior.  The case was adjourned for a junior to be appointed.

The same situation occurred in Provincial Bank of Ireland v Cronin in March 1907, when a case had to be adjourned due to the unnamed KC for the plaintiff being otherwise engaged and no Junior having been retained, the present KC having been junior in the same capacity until his recent call to the inner bar.  While expressing his emphatic disapproval of such a course of conduct, Mr Justice Barton did not go to far as to assert a breach of outer bar privilege.   With the advent of the 20th century, the absolute rule against appearing at trial without a junior to open the pleadings or indictment was now breaking down.

The same applied to the previously absolute rule that seniors could not move motions without juniors. In January 1912 an attempt was made to oppose the moving of a taxation motion by Mr Leech QC on the basis that, although there was no formal rule of the Bar on this matter, there was never a motion in which there was not a junior counsel.  Mr Leech’s response was that, although there was no doubt whatever that there was a rule of the Bar that KCs could not sign pleadings without junior, the rule that they could not appear at the hearing of the matter without junior had never been made the subject of a formal Bar resolution and was no longer being asserted as a rule of practice. 

Though no longer an absolute rule, the appearance of a member of the inner bar in a High Court action or motion without junior remained and continues to remain extremely unusual.  Moreover, by the early 20th century, the Irish junior bar, wisely not putting all their eggs in one basket in relation to potential work, had managed to wrestle from attorneys most if not all of the business in the County Courts, thereby guaranteeing themselves an alternative source of work to compensate for those cases in which senior might rudely proceed without them.  More on this parallel campaign by the junior bar to come!

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Barrister’s Son Returns from the Dead, 1896

From the Cork Constitution, 5 March 1896:

“DUBLIN WEDNESDAY

To-day the Master of the Rolls had before him a case which brought to light a modern Enoch Arden. In 1866 William Henry Boyle, son of a well-known barrister, emigrated to America, leaving his young wife at home. Fortune did not smile on him, and he did not send for his wife. He ceased to write, and for many years his family had heard nothing of him, and at length assumed that he was dead. In this belief his wife married again, and she had a family. At last the wandering husband, who had been a travelling salesman, a shorthand clerk, and at other avocations at turn, found his way back to Dublin. His sister informed him of what had happened in his absence and that he was entitled to a share of his uncle’s estate, which, in 1887, was ordered to be put to his credit and remained in court still. Mr Boyle having established his identity, the Master of the Rolls made an order that he should get the money. His lordship recalled an incident that occurred in court when administering the estate of another supposed dead man. The argument of counsel was interrupted by a man in the gallery saying, “My lord, I am the deceased,” and it turned out that he was the man whose property, on the erroneous hypothesis that he was dead, as he had not been heard of for years, it was sought to distribute among his next-of-kin.”

‘Enoch Arden’ is a narrative poem published in 1864 by Alfred Lord Tennyson about a man who left his family to seek his fortune, only to be shipwrecked on a desert island. On his return home, he discovers his wife to be happily married to another man. He dies of a broken heart after loving her too much to spoil her new happiness.

The story has inspired a number of movies, including Marilyn Monroe’s last (unfinished) film ‘Something’s Got to Give,’ in which she played a female Enoch by the name of Ellen Wagstaff Arden, who returned from shipwreck on a desert island to find her husband remarried to Cyd Charisse. The film starts with a judicial application to have Ellen declared dead. The ending is for the imagination.

There was no shipwreck in the case of William Henry Boyle, and surely he could have managed a letter or two. Judges – though not, it seems, Porter MR – could be extremely censorious of husbands who returned to expose as unwitting bigamists wives whom they had previously deserted. They tended to be less so when the husbands returned to defeat Workmen’s Compensation Act claims made in respect of the death of the second husband. This happened in quite a few cases in England.

The reverse happened in Dublin in 1914, where the death the subject of the claim was that of the returned husband, killed after his return. Madden J adjourned the case, but remarked that he felt that the wife was entitled to make such a claim.

It seems that, when it came to choosing between his wife’s honour and a substantial legacy, Mr Boyle opted for the ignoble but financially remunerative alternative! Unless, of course, he intended to remedy his wrong by providing for her out of the legacy proceeds!

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In the Footsteps of Kings: Chancery Place, 1224-1916

Chancery Place, on the eastern side of the Four Courts, was originally a much narrower street known as Mass Lane.  The buildings on its western side sat close against the eastern wing of the Four Courts until they were demolished by the Commissioners of Public Works in the early 19th century. The above image from the 1840s shows Chancery Place following these changes and – aside from differences in vehicles, costume, and traffic regulation, and the replacement of the perimeter wall with street bollards – it looks quite similar today.

One of the buildings removed in the course of these changes was the church which gave Mass Lane its name. This chapel, the location of which is marked on the maps below, sat right up against the east wing of Gandon’s Four Courts, pre-dating it by many years. Clarke Huston Irwin, in his History of Presbyterianism in Dublin, says that

“The church of Mass Lane was originally the chapel of a Dominican Friary.  After the suppression of the friary by Henry VIII, the Benchers of the King’s Inns obtained the building and used it as their chapel.  James II restored it to the Jesuits and heard mass in it during his stay in Dublin.  After the Revolution William III presented it to a congregation of French Huguenots, and the King himself attended service in Mass Lane after the Battle of the Boyne.”

Following this change, Mass Lane officially became Lucy Lane, or, as the Huguenots referred to it, Golblac Lane, but everyone else still referred to it by its original name. Later, in 1773, the Huguenots sold the church to a congregation of Presbyterian Seceders.

The Dominican Friary referred to by Irwin is of course the Priory of St Saviour, which once occupied the entirety of the Four Courts site, and whose monastery buildings formed the nucleus of the old Inns of Court.  Where was the Priory Church? Archaeologists carrying out investigations on the Aras Ui Dhalaigh site in the 1980s believed it to have been in the area of that site, just south of where the monastery buildings would have been – but did not find any conclusive evidence. 

Was this because, as suggested by Irwin, the Priory Church was in fact situated elsewhere, at the location which came to be called Mass Lane? If so, it may even have pre-dated the arrival of the Dominicans. In his paper, ‘The Dominicans in Medieval Dublin,’ delivered to the Old Dublin Society in 1947, Dominican historian Brian O’Sullivan suggests that there was already a chapel on the Priory site when it was taken over by the Dominicans in 1224. Perhaps, rather than erecting a new monastery church, the Dominicans simply used the old chapel, which then became the Mass Lane church.

There were other businesses in Mass Lane too, one of them employing a hero.  In August 1809, a youth of about 13 years was swimming in the part of the river opposite the Four Courts when his strength failed him. He was in the act of sinking in the presence of some hundreds of spectators when an unnamed young man in the employment of Mr Rinkle, Dyer, at the corner of Mass Lane, plunged into the river without taking off his clothes, and, by uncommon exertion, was so fortunate as to get hold of the boy on the first dive, and brought him on shore on his shoulders, and thereby saved him from a watery grave, to the no small gratification of the persons present. One of many Liffey rescues over the years!

The Wide Streets Commissioners’ plans for Chancery Street put an end to the Mass Lane church. In 1825, its contents, including an extensive gallery and pews, were advertised for sale. Though it is a pity that the building was not preserved or, at the very least, its antiquity investigated, there may indeed have been something to be said for getting rid of Mass Lane.  By now, its houses were very old, and, in December 1822, after a great storm, a wall fell on a bricklayer, who was buried beneath it.  On the same night, a forge also fell on the Lane, burying a woman passing by in ruins, though she was eventually taken out uninjured.

Most of the eastern end of Inns Quay was also demolished in the creation of Chancery Place, but there is a very fine building, 1-2 Inns Quay, at the corner of Chancery Place and Inns Quay, which dates from the early 1830s. This replaced earlier buildings on the site demolished by the Wide Streets Commissioners, who advertised the vacant site for sale as building ground in 1826. The Dublin City Council Digital Archives include plans of two very different designs put forward for the proposed building, the first a building consisting of two houses, the second, a mansion, both of which can be seen above. Ultimately, the former plan was adopted.

The building 1-2 Inns Quay must have been completed by 1834, as there was an advertisement that year for the sale of an interest in a lease for lives renewable forever applicable to the very excellent, new built Dwelling House No 2 Inns Quay which, from its contiguity to the Law Courts, was admirably adapted for the stamp and stationery business, and equally suitable as a private residence for a solicitor, or for law chambers.  The lease was initially taken up by William Connick, a merchant grocer, who, on the 7 November 1839 advertised to acquaint his Friends and the Public that he had just received his Winter Stock of New Fruit and was, as usual, well supplied with superior old Wines, in Wood and Bottle; Old Malt Whiskey, from one to seven years made; Cognac Brandy, twenty years old; Teas, Coffee, Sugar etc.  

If you look at the image at the very start of this post, you can see some men with placards bearing the words ‘Tea’ standing about on Richmond (now O’Donovan Rossa) bridge during the eventful State Trial of Daniel O’Connell in 1844; possibly they were advertising Mr Connick’s business. It seems that, like poor Dan, this business did not survive the Famine, since, in 1848, No 2 Inns Quay was once again advertised for letting to solicitors or merchants, the advertisement stating that, having been originally built with a shop front, it could alternatively be re-converted into a shop at very trifling expense.  It was subsequently occupied by solicitors.

The other half of the building, 1 Inns Quay, occupied the former site of John Bond’s helmet manufactory, the only extensive one in Dublin, supplying regiments and corps at a few days notice.   Later, Patrick Cooney opened a public house at No. 1, which became the Chancery Inn.

Meanwhile, round the corner in Chancery Street, there were looking-glass manufacturers and brass manufacturers, law agents, scriveners, attorneys, tailors and, of course, booksellers.  In 1846, Thomas Connolly’s Second Hand Book Establishment at 6 Chancery Place had a catalogue of over 4000 volumes of new and old books. In 1853, a letter of complaint was sent to the Warder and Dublin Mail about a religious painting displayed for sale outside a shop on Chancery Place, which was criticised as flagrant Popery. Clearly something of the spirit of the Presbyterian Seceders still lived on in the former Mass Lane!

The best known building in the street, the Legal Eagle, 1 Chancery Place, has been a public house since at least 1855.  Its original name was ‘The Victoria Inn’ or ‘Nerney’s Tavern.’ Its owner, William Nerney, lived above it with his family. The Nerneys were well known in the area already as they had previously owned a public house in nearby Charles Street.  It was at Nerney’s Tavern that Mr O’Moore, a member of the Bar, was arrested for debt in 1859, after having popped out with friends for a quick drink whilst waiting for a motion to be called on. His arrest was held to be in breach of the rule against arresting Counsel for debt while in the course of attending to legal business.  

Sadly, Mr Nerney got into difficulties around the time of his wife’s death in 1868. In November of that year, he published a notice in the newspaper to unnamed ‘neighbours’ saying that his failure to attend at an election was not due to having taken a bribe, but because he was unwell (the notice can be seen above). Soon afterwards, he went bankrupt, and his premises were sold on to another publican.

On the opposite side of the street, the Chancery Place entrance has always been a handy means of entry and exit for those with business in the Four Courts. There was much annoyance in 1896 when it was closed off during the construction of the new Law Library in the Eastern Wing, and even more annoyance when it was shut up during the War of Independence in 1921.  In the 19th century, this entrance would have been used by practitioners and, occasionally, litigants, but not yet by Judges, who at that time parked their carriages in the quadrangles on the river side of the Courts.

After the death of Four Courts caretaker Michael McDermott from a mysterious 1853 fall into the Chancery Place yard ultimately attributed to an attack of temporary insanity, a lodge was built for future caretakers and their families. Part of it may be visible in the last photograph in the slideshow above, which shows the entrance after the 1916 Rising, during which the Four Courts was occupied by rebels, with the East Wing, in which the Law Library was then located, coming in for particularly heavy gunfire.

Although it may seem an innocuous and even rather grey street today, Chancery Place has a long and interesting history.  Next time you are passing down Chancery Place, remember that you are crossing once-sacred ground, over which not one but two English monarchs likewise trod. Not many places in Dublin can claim that sort of lineage!

Maps and Plans: Dublin City Digital Archive and Harvard University Library

Historical Images: (top) (top middle)(bottom middle)(bottom)

News Articles: British Newspaper Archive

Current Images: Google Maps and Daft.ie

Marry a Former Chief Justice of Tobago in Haste, Repent at Leisure, 1840-55

There were many Irish barristers who took on the task of administering justice on foreign and often inclement shores in such a way as to do credit to their country of origin. Barristers such as John Jefcott, first Judge of the Supreme Court of South Australia, Henry Barnes Gresson, Judge of the New Zealand Supreme Court and Michael Hogan, Chief Justice of Hong Kong, to name only a few.

And then there was Robert Nicholas Fynn, whom Queen Victoria was pleased to appoint Chief Justice of the Island of Tobago in 1840, a mere four years after his call to the Irish Bar. Historic Irish judicial appointments usually received a mixed reception, but in Mr Fynn’s case the reaction was unanimous – he was absolutely unsuitable for the post. The Dublin Monitor of 15 October 1840 drew attention to the notable lack of congratulations, other than in the Galway Advertiser – Mr Fynn’s father was a Galway merchant – and remarked that there were some not very creditable rumours afloat concerning Mr Fynn’s peculiar claims upon the gratitude of a certain noble marquis, and that, in the total absence of all assignable reasonable motives for the appointment, there must be some truth in them.

The same publication the following week carried an effusive letter of thanks from ‘A Leinster Circuiter,’ saying that its criticism of the appointment deserved the thanks of every member of the Irish Bar, many of whom, being men of information and high moral character (the final three words highlighted), would have been far more suitable for the position accorded to Mr Fynn, to the extent that they were left outraged and indignant by being overlooked in his favour.

Though his name still appears on Wikipedia’s list of its Chief Justices, Robert Nicholas Fynn never actually reached Tobago, his appointment being revoked just as his intended ship was about to leave harbour, with all his baggage on board, already emblazoned with the grand seal to which his office technically entitled him.

Despite having been denied the opportunity to develop the law of the Caribbean, Mr Fynn did subsequently manage to leave his mark on English jurisprudence in the form of In Re Fynn, one of the earliest reported child custody decisions, the opposing parties being his estranged wife Emily (referred to in the judgment by her full name of Amelia) and mother-in-law Marian Ainsworth.

Robert Fynn first met Emily Ainsworth in Brussels in 1842, after his brief stint as Tobago Chief Justice had been followed by a lieutenancy in the 2nd division of the West Yorkshire Regiment and a period as promoter of the unsuccessful Galway and Ennis Grand Junction Railway Company. They married the following year. Emily’s mother had reservations about Robert from the start, which he temporarily quelled by producing a volume of his speeches, sealed with an official seal bearing his crest and the words ‘Chief Justice of Tobago,’ and telling her of an impending appointment as Judge Advocate in Malta, never actually to eventuate.

The morning after the wedding night Robert borrowed £50 from Emily for travel expenses; later, at Galway, when she remonstrated with him against what she thought his waste and extravagance, he struck her several blows on the head, kicked her, and threw a glass of hot spirits and water at her head and face, with so much violence that the glass was broken against her head, and at the same time threatened to thrust her head into the fire, and, on another occasion, threw her on the floor of a room with her infant child, with no other provocation than her having interfered to protect her nurse, a woman of nearly sixty years of age, from his violence.

Emily and Robert went to Plymouth, where Robert confessed that the bailiffs were after him for debts incurred before his marriage, and then to London, where Emily’s clothes were distrained for rent, before returning to Brussels. According to Emily, while in Brussels for the second time, Robert conducted himself in a most improper manner, drinking to excess, cursing and swearing and calling her a damned hypocrite, a damned bitch and a liar, before departing for Paris with their two sons, Alfred and Robert, aged three and two years old respectively, having pawned or sold certain articles of plate in order to fund the journey. Subsequently, in Paris, Robert was arrested for a bracelet that he had bought on credit, and sold on, but never paid for, and the boys had to be recovered by Emily from prison, where they had been incarcerated with their father.

Given that the above events were in no way seriously disputed by Robert Fynn, one might expect that Emily’s petition to restrain his application to regain custody of the boys would have succeeded. Such was not the case. Instead, Vice-Chancellor Knight-Bruce, despite a sympathetic initial ruling, ultimately refused the petition on account of Emily’s limited means. All the money originally settled on Emily had been expended by her on her husband, and Mrs Ainsworth’s suggestion, that she enter into a covenant to pay an annual sum to her daughter and the children, was rejected by the court as insufficient, as such a covenant was a personal one only, and would die with her.

There was, unsurprisingly, a minor kerfuffle following the Vice-Chancellor’s final ruling. Alfred Ainsworth, Emily’s teenage brother, hit Robert Fynn, and knocked off his hat. Robert justified a consequent application to have Alfred bound over to keep the peace by saying that he could forgive the contempt of court, but not the personal insult involved. His wife, he said, had also attacked him, but, of course, he was not applying to have her bound over. Possibly he felt it more appropriate to discipline her privately.

It is not reported whether the boys were subsequently returned to their father. An album of photos, entitled ‘Emily Ainsworth Fynn and family,’ was recently advertised for sale at an online auction. The album includes photos of three children who may have been Alfred, Robert, and little Emily, the latter fortunate enough not to have been included in the custody application, Robert having taken the view that, as a girl, he did not require her, and she could stay with her mother.

Robert Nicholas Fynn turns up again a few years later in the context of a private prosecution brought by him in respect of a stolen pocket knife. While admitting the item stolen was of trifling value, he stated that he had felt obliged to prosecute as a matter of principle. Unfortunately, Fynn’s own final appearance in the news, in 1855, was such as to call his own principles into question. Under the name of Captain RN Fynn, he had been advertising for governesses for two boys, requesting that successful applicants forward money for their travel expenses in advance, so that he could book their passage. Those who did, never received their tickets, though he did promise one of them that he would marry her when his wife died, which he anticipated as likely to occur within the next two months.

The governess scandal, as scandals often do, brought old history to the fore, in the form of two letters subsequently published in English newspapers, disclosing some interesting facts about Fynn’s abortive 1840 appointment. The first was a letter from Dominick Browne, 1st Lord Oranmore and Browne and former MP for Mayo, apologising for having nominated Mr Fynn for the appointment.

The second was an anonymous letter, circulated by the London Police as part of an investigation into Captain RN Fynn’s activities, which identified him as a member of the Irish Bar, referenced the Tobago appointment and stated as follows:

Mr Fynn appears to have had, at this time also, a hankering after governesses, for he inserted in the papers a notice to governesses, or something to the effect, as well as I recollect, that their position was to be more that of a lady in waiting than that of a governess, and that they were to have the same privileges as those attending on her Majesty. This having come to the ears of Lord John Russell, he immediately cancelled the appointment. Some time after this he left London for Brussels, where he managed to get introduced to some highly respectable families, and he passed himself off as Count Fynn, with many other etceteras, and contrived to get married to a beautiful woman, niece of a member of the House of Commons. We have reason to believe that very active measures will immediately be adopted upon this subject.”

Why did Mr Fynn require the company of a governess in Tobago if he had no children at the time? Was the motivation behind the 1840 advertisement similar to that of Gerald Kingsland, later to be immortalised in ‘Castaway’?

No matter how sympathetic one might normally feel towards impecunious 19th century barristers – then, as now, building a Four Courts practice could be a challenging task – it is hard to feel much sympathy for Mr Fynn.

Particularly when looking at the photos of his lovely family above.

Poor Emily! How careful a woman in those days had to be regarding whom she married!

Image Credits

The Irish Bar and Bench at Home, 1784-1890

Wilmot Harrison’s 1890 book, ‘Memorable Dublin Houses: A Handy and Descriptive Guide,’ includes much interesting information about town residences of the Irish bar and bench in the early and middle parts of the 19th century.

First up is 14 Harcourt Street, home of barrister and raconteur Jonah Barrington, whose memoirs can be read in full here. Barrington later moved to 42 Merrion Square before financial irregularities forced him to retire to Versailles, France.

Up the street at 17 Harcourt Street was Clonmel House, the residence of John Scott, 1st Earl of Clonmel, Lord Chief Justice of Ireland 1784-1798. Scott sported a permatan – something less fashionable then than now – and the well-known nightclub down the street at 29-30 Harcourt Street references his resulting nickname of Copper Faced Jack.

As the 19th century progressed, the area around Merrion Square replaced that around Mountjoy as the place of residence for the Bar to aspire to. Daniel O’Connell lived at 58 Merrion Square South, where he could be seen through his parlour window standing at his brief-strewn desk, working late. No executive chair for Dan!

Ely Place, round the corner, had been popular with eminent members of the Bar and Bench from a very early stage. Ireland’s greatest advocate, the self-made John Philpot Curran, Master of the Rolls in Ireland 1806-1814, lived at No 4 – a better-sounding address than his previous residence, Hog Hill!

Next door, at No 5, was the townhouse of the silver-tongued Charles Kendal Bushe, Lord Chief Justice of Ireland, 1822-41. In 1885, his equally persuasive grandson Seymour was to shock Dublin when he eloped from the same street.

John Fitzgibbon, Earl of Clare, Lord Chancellor of Ireland, 1789-1802, lived at No 6. It was here that a colleague, Richard Power, Chief Baron of the Irish Exchequer, came to kill him in 1794; fortunately, Fitzgibbon was out at the time.

Those rebellious Junior Counsel, the Sheares brothers, lived just around the corner at 128 Lower Baggot Street prior to their arrest and execution in 1798.

Jane Austen’s former beau, Tom Lefroy, Lord Chief Justice of Ireland, 1852-66, favoured Lower Leeson Street, ending his days in the bosom of his family at No 18 (later the Convent of the Sacred Heart).

Another great memoirist of the Irish Bar, Richard Lalor Sheil, lived at 23 Holles Street.

Though no illustration of it is shown, the book also references the house of John Toler, Lord Norbury, Lord Chief Justice of the Common Pleas, 1800-1827, at 3 Great Denmark Street, now the Olivier Cornet Gallery. Rumour has it that he still haunts his old place. Who knows? Perhaps they all do.

Almost all of the lawyers mentioned in this post were among the very top fee earners in their profession. Most also enjoyed substantial private incomes. The majority of 19th century Irish lawyers did not own or rent city mansions. Whilst many were comfortably off, a not inconsiderable percentage experienced financial difficulties in the course of their careers, with some living throughout in reduced and even pitiful circumstances. Looking forward to sharing details of less palatial legal residences in a future post!

In the meantime, here is a list of other legal addresses mentioned in Harrison’s book:

5 Leinster Street, where the unfortunate Lord Kilwarden, Lord Chief Justice of Ireland from 1798 until murdered in the Emmet rebellion, was brought to die in July 1803.

54 Merrion Square South, townhouse of Francis Blackburne, Lord Chancellor of Ireland, 1866-67.

3 Ely Place, home of Barry Yelverton, Lord Avonmore, Chief Baron of the Irish Exchequer 1783-1805, whose fault as a judge was that he jumped too quickly to conclusions.

5 Fitzwilliam Square, home of Edward Pennefather, Lord Chief Justice of Ireland, 1842-46.

18 Stephen’s Green, residence of bare-knuckle boxing aficionado William Cunningham Plunket, Lord Chancellor of Ireland, 1835-41.

31 and 33 Stephen’s Green, homes of Attorney-General William Saurin, who took charge of the Bar Militia during the 1798 Rebellion.

29 Lower Leeson Street, home of the now forgotten Peter Burrowes, ‘the Goldsmith of the Irish Bar.’

2 Mountjoy Square, residence of smell-sensitive James Whiteside, Lord Chief Justice of Ireland, 1866-76.

38 Mountjoy Square, home of the humourist Baron Dowse, another barrister who forced his way to eminence by merit.

Full book available to read here.

A Pleading Two-Step, Part 2: The Proper Business of the Junior Bar, 1856-64

From the Dublin Evening Packet and Correspondent, Saturday 8 March 1856:

IMPORTANT – BAR PRACTICE

Judge Ball having during the day proceeded to settle issues in records to be tried in Cork at the ensuing assizes, and Mr Brereton, QC, having appeared for one of the parties, Mr John Leahy interrupted the learned gentleman, and said that as the senior of the junior bar in court, he had been requested to object to a Queen’s counsel acting in the settlement of issues without a junior with him.  The drawing of the pleadings, and the settlement of the issues as a part of the pleadings, were by long-established practice the proper business of the junior bar, and a Queen’s counsel had no right to draw them under the old system, or to settle issues under the modern practice without having a junior with him.

Mr Brereton stated that the point raised by Mr Leahy did not arise, inasmuch as he was only holding the brief of Mr Exham, who was prevented from coming on circuit by unforeseen circumstances.  He said that he was one of the seniors employed for the trial, and admitted that he had no brief of his own on the present motion.

Judge Ball observed that the practice was most objectionable, and one that ought not to be followed.  He would, however, allow Mr Brereton to act for Mr Exham on the present occasion; but in doing so, he wished it to be understood that it was not to be considered as a precedent, and that he disapproved of the practice.”

The practice, that Queen’s Counsel could not appear at the trial of cases without Junior, was well established in the Courts of Chancery and King’s Bench, but the question of whether they could draft and sign pleadings, move motions and agree settlements, thereby potentially limiting the Junior Bar’s role to the substantive hearing, was less certain.

On 8 June 1858, the Belfast Newsletter reported that

“There are rumours of the probability of a meeting of the Junior Bar being held shortly, or the purpose of considering the subject of the serious encroachments by the ‘silk gowns’ on ‘junior business.’   This unprofessional evil has grown, it is said, to an inconvenient extent, and some Queen’s Counsel – regardless of the honour of the silk – hesitate no to draft and sign pleadings, move trivial guinea motions, and motions of course.  Indeed, there are rumours that the right Hon. Lord Chancellor when conferring the honour of silk gowns, during the present term, on several utter-barristers, required of each of them a pledge that he would not receive or transact junior business.”

On the 16th of the same month, the Southern Reporter and Cork Commercial Courier reported the Lord Chancellor as having stated in court that there was as subject he wished to mention, which he hoped would not be taken in ill part by any members of the Bar. Having noticed that several Chancery petitions had been signed by members of the Inner Bar, he thought it of the greatest importance to the Bar generally to preserve the classification of business. He knew that in the King’s Bench, it was thought that a Queen’s Counsel ought not to sign pleadings unless signed by a member of the Junior Bar, and he thought it of the greatest importance to suitors that the Outer Bar should have the proper training which the discharge of Junior business would give them, and that the Queen’s Counsel should be relieved of such business.  All such petitions should in future be drawn and moved by members of the Outer Bar and if the case was one of difficulty or required the intervention or assistance of a member of the Inner Bar it might be sent after being prepared by Junior Counsel for the revision and consideration of a Queen’s Counsel.  He thought it was a matter which affected the public and he would not make any orders on such petitions unless signed by Junior Counsel.

The Lord Chancellor’s statement did not resolve the matter, and in June 1863 a meeting of the Bar of Ireland appointed a Committee of 12 Queen’s Counsel and 12 Junior Counsel to consider if members of the Inner Bar should sign pleadings at law or Equity unless countersigned by Junior Counsel. Having completed the Herculean task of analysing the pleadings in the Court of Chancery during every sixth year since 1800, and the Court of Queen’s Bench in Trinity Term during every tenth year of the same period, the Committee found that, although no positive rule had hitherto existed as to the signature of Queen’s Counsel of pleadings in Equity or at law, it was desirable that, for the future, no Queen’s Counsel should sign any pleading at law or Equity, or any document to which the signature of counsel was required – a recommendation subsequently approved by the Bar of Ireland at an 1864 meeting convened to discuss the Committee’s report.

The rule applied to pleadings only, and did not extend to petitions of appeal.   Though not included in the current Bar Council Code of Conduct, it seems to have survived into the twentieth century, being referenced in a taxation application in 1912. Subjected to some criticism from the Incorporated Society of Attorneys and Solicitors of Ireland for its potential to result in additional costs for clients, the requirement that a Junior Counsel’s name appear on pleadings did have the benefit of securing, for the Outer Bar, drafting, motion and settlement experience (not to mention fees) which might otherwise have been denied to them and, in so doing, may have provided some compensatory public service by raising the standard of subsequent Senior Counsel and judiciary. Even today, it remains most unusual to find Junior Counsel’s name omitted from pleadings – something which almost certainly would not have been the case but for that 1864 resolution!

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A Rare Bird at the Four Courts, 1888

From the Irish Times, 24 May 1888:

“CHASE AFTER A WILD BIRD IN THE LIFFEY

Yesterday, for nearly three hours, the inhabitants, and those who could spare the time, were entertained by a most interesting and exciting chase after a large bird of varied plumage, which was observed in the River Liffey opposite the Four Courts.  It transpired that the bird had some days since wandered from its habitation in the Zoological Gardens, Phoenix Park, and a reward was offered for its recovery.  The bird, however, regardless of its plumage, had taken up its quarters in the Liffey and was sporting about for some time before attracting attention. Shortly after three o’clock, the large red beak and unusual size of the bird attracted the attention of some of the denizens of Cook Street who chanced to be sauntering along the banks of the river at Merchants’ Quay.  All kinds of inducements were held out by those on shore to entice the bird to leave its quarters, but without avail.  Finally two young men divested themselves of their upper garments and went in pursuit.  They waded half way through the oozing mud banks before getting to the stream, and coming up with the bird, which was almost within grasp, but as quickly disappeared beneath the water only to reappear at a considerable distance from the pursuers.  The chase was carried on for about three quarters of an hour from opposite the Four Courts up to Queen Street Bridge.  Two boats manned by three hands in each rowed in the pursuit, but with no success, and the chase was abandoned at half-past six o’clock.  The bird was then seen proceeding leisurely towards the King’s Bridge.”

The chase would have taken place just upriver from the bridge shown in the contemporaneous image above. A subsequent report in the Dublin Evening Mail of 30 May 1888, reports that the bird, a red-faced cormorant like the one above, had been secured at Chapelizod a few days later and returned to the care of Mr Snow, of Dublin Zoo.

The Zoological Gardens had featured in a famous trial in the Four Courts four years previously, when Gustavus Cornwall, head of the Post Office in Ireland, was charged with sodomy in relation to, among others, Malcolm Johnston, of the famous Johnston, Mooney and O’Brien bread family, and witnesses gave evidence of assignations taking place within Zoo precincts. Like the later Wilde trial, the Cornwall prosecution followed a disastrously unsuccessful defamation action; unlike Wilde, Cornwall was acquitted. David Boyle, a descendant of one of the parties implicated, has written a wonderful book about the scandal – well worth a read!

Perhaps the cormorant headed for the Courts as the next best thing to the Zoo, having regard to Chief Baron Palles’ many invectives during this period against noisy barristers turning his court into a ‘bear-garden.’

There remains, of course, the intriguing possibility that William Supple, Zoo-Keeper, of Liffey Street, Dublin, who died of a python bite at the Zoo in 1867, may have been one and the same as William Supple, Law Library staff member and later Keeper of the Rolls Court, defendant in an 1852 breach of promise action. More here!

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A Pleading Two-Step, Part 1: The Dangers of Dispensing With Counsel, 1866

From the Evening Freeman, 28 July 1866 and the Cork Constitution, 30 July 1866:

Mr Hardy applied to have the defence filed in the case of Tedcastle v Stockholme set aside on the ground that it was informal and embarrassing.

Mr O’Driscoll said he held a brief for the defendant, but he would save much trouble by stating that the defence was not maintainable.  It was framed in the old style and pleaded the general issues.

Mr Justice Keogh – Who prepared it?

Mr O’Driscoll – It was drawn by a barrister, the only one in town at the time.  He is a member of the Bar, but I have never seen him.

Mr Hardy – I have never seen him either, although he was called to the Bar in 1834.  He seems to have been asleep since. (laughter)

Mr Justice Keogh – Who is the attorney?

Mr O’Driscoll – Mr Geary.

Mr Justice Keogh – Is Mr Geary here?

Mr O’Driscoll – He is not, but his son is.

In reply to the learned judge, a little boy stated that his father, Mr Geary, was at the Head-Police-Office.  After a lapse of about half an hour, and when the business of the court was about to conclude, Mr Geary was called, and did not answer.

Mr Driscoll – I suppose Mr Geary will be here yet.

Mr Hardy – I do not think he will. (laughter)

Mr O’Driscoll – That is a very pert observation.  He is labouring from physical infirmity and I believe he is a very respectable man.  I do not think any gentleman at the Bar should make such an observation.

Mr Justice Keogh – I do not like to say anything about it, but I concur with Mr Hardy. I require an express affidavit from the gentleman at the Bar who signed that defence, and an affidavit from Mr Geary himself, if necessary.  It has been sought to suppress all discussion by declaring that the thing was indefensible.

Mr O’Driscoll – I did not intend to do so.  I had no object in doing so.  

Mr Justice Keogh – There is an old French maxim ‘Qui s’excuse s’accuse.’

Mr O’Driscoll – Your lordship used a hard expression.

Mr Justice Keogh – I deliberately used that expression.”

The matter resumed the following Tuesday, when the court was furnished with an Affidavit from Mr Thomas Barrington Geary, of no 22 Peter Street, stating that he had drafted a defence, and taken it to the residence of Mr Curran BL for approval, only to be told that Mr Curran was at the Tullamore Assizes, and that, although the defence could be sent down to him there, it would take two days for it to be signed and returned.  As the defence had to be in the following day, Mr Geary then recollected Mr Thomas W Reilly, a member of the Bar whom he had known for many years and who, after having been paid the proper and usual fee, signed the defence in his presence.  

Also read out in court was a letter from Mr Reilly:

“DEAR GEARY I need not say how much concerned I was upon reading the Irish Times of Saturday last, to perceive that the draft defence to which I attached my signature had been the subject of such serious animadversion.  I can only remark that if I made an error in the pleading it was an inadvertence that, perhaps, might occur to any other barrister.  All I can say is, that, considering your long experience, I did not very attentively examine the draft and felt myself perfectly secure in putting my name to it when you brought it to me, accompanied by the usual fee which you paid me on the 19th inst, the day on which you signed the defence.  I hope this letter will answer the purpose.”

Judge Keogh said that the fact that Mr Reilly was not known at the bar as a practising barrister had caused him to fear that a name had been put to the defence without Counsel signing it.  His only anxiety in the matter was the the legitimate rights of the Bar should be respected.  It would appear that Mr Reilly put his name to the pleadings without judging himself of their contents.  It was to be regretted that any professional gentleman would make himself the instrument of an attorney by attaching his name to a document without taking the proper pains to see if it were correct.  Mr Reilly’s letter contained an admission that he had acted in a most improper manner, and he was sure it would be condemned by every member of the Bar in far stronger terms than he had just used.

The question of defences unsigned by Counsel had been troubling Irish courts generally for some years.  It was a requirement of General Rule 33d that all pleadings subsequent to summons and plaint be so signed, the fee on taxation, for advising and preparing on such pleadings, to be not less than one guinea. 

Purportedly developed to prevent defences being filed purely for the purposes of delay, the rule was strictly enforced by the judiciary, former barristers themselves, with an eye to preventing any abrogation of the Bar’s privileges.   A defence filed without Counsel’s signature would be struck out, and a solicitor who signed Counsel’s name on their behalf – even if out of town – could expect to be heavily censured.

In 1862, the Court of Common Pleas took it on itself to inquire as to the purported signature of Mr Tuckey, a conveyancing and chamber barrister in Cork, on a defence described by Chief Justice Monahan as ‘such an extraordinary attempt at pleading that it is doubtful any member of the Bar ever prepared it.’  In response, Mr Robert Martin, solicitor, admitted that Mr Tuckey had not signed the defence, but said that he had, in other cases, given him authority to put his name to pleadings if he could not get to Dublin in time to sign them, something which was denied by Mr Tuckey.  

Mr Martin received a fine of £15, and a severe dressing down from the Chief Justice, who remarked that the case would of course have been much more serious if the court had been of the opinion that there had been an understanding between the two men that Mr Martin would be at liberty to place the name of Mr Tuckey to documents of this kind.

The requirement that Counsel’s signature appear on the defence was removed by the Supreme Court of Judicature (Ireland) Act 1877, which must have resulted in a drying-up of income for any non-practising barristers ready willing and able to append their names for a guinea.  Mr Reilly’s embarrassing fate must have served as a reminder to all members of the Bar to read any solicitor-drafted pleadings carefully before signing – and to keep up to date with professional developments!

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The Brats of Mountrath Street, 1867-1890

From the Freeman’s Journal, 27 May 1867:

“CHANCERY PLACE AND MOUNTRATH STREET

Dear Sir-

I beg, through the medium of your influential journal, to call the attention of the authorities to an assemblage of ill-behaved boys and girls that meet nightly at the corner of the above mentioned localities, throwing stones and making use of the most obscene language to passers-by.  Whilst passing through Chancery-place from my business the other evening I was struck with a stone and cut severely.  It is really too bad that the public should be obliged to raise their voice in the matter.  If the police on this beat were a little more vigilant this annoyance would soon be squelched.  I remain, dear Sir, yours gratefully.

AN OBSERVER.”

And again in the Freeman’s Journal, 5 June 1890:

“REPREHENSIBLE CONDUCT

SIR –  I wish to bring before your readers what happened to myself and one of my brother clergymen on Sunday week evening when returning from service.  We met a number of children, between 20 and 30, aged from 5 to 12 (about).  The moment we came past them the elder boys sang the most disgusting song about us, evidently prepared beforehand, several of the girls joining in. When passing Mountrath Street, stones were thrown with great force.  We had just crossed to the other side.  By your kindly giving publicity to this letter you may be the means of circumventing a repetition of this conduct. – Yours faithfully

T Long

Rector of St Michans.

Though written two decades apart, the theme and content of both letters is surprisingly similar, suggesting a long and proud tradition on the part of local children of verbal (and sometimes, even physical) assaults on daytime interlopers.  With deprivation in the once prosperous surrounding area reaching its peak in the second half of the 19th century the contrast between the lives of these children and those working – as opposed to residing – there must have been very stark. Not that this made things any easier for those who – like Reverend Long and most of the Four Courts – had to pass along Chancery Street on a daily basis.

Chancery Street is referred to by its old name of Pill Lane on the 19th century map below, and you can see Mountrath Street (later incorporated into the Four Courts complex and Chancery Place) south-east of it on the map. Though not marked on the map, the Reverend Long’s church, St Michan’s, would have been located just north of the opposite end of Pill Lane.

A generation later, things had moved on, with proper housing, designed by Dublin Corporation Housing Architect, Herbert Simms, now available for local residents. By September 12, 1935, the Irish Independent was able to excitedly report that a miniature park beside the new Chancery Place flats was due to be finished in about three months, with a number of workmen already engaged in laying out a flowerbed faced by a dressed stone wall of octagonal design and surrounded by a pathway of crazy paving. An ornamental stork which had previously graced an old rockery on the site was intended to be placed at the centre of the flowerbed to create a charming vista completed by trees, ornamental shrubs and a spacious lawn.

The location of this Eden? Just opposite the corner previously occupied by the feral subjects of this post. Perhaps the author of the article even had them in mind when penning the following ending:

“It is to be hoped that the public generally, and children in particular, will show their appreciation of the Corporation’s efforts towards transforming the grounds into a park and will do nothing to despoil it.”

A beautifully cared for Chancery Park remains in place to this day – a wonderful symbol of Dublin progress and testament to the work of the Corporation and Mr Simms. Why not take a closer look at its water feature here to see if that stork is still about?

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The Man of Many Wives, 1884-1895

From the Illustrated London News, 14 June 1884:

“At the Dublin Commission Court, before Mr Justice Lawson, on Saturday, Brian Denis Molloy, son of a magistrate for the County of Mayo, and who, on the death of his father, will become entitled to £1000 per annum, was indicted for bigamy.  The prisoner has married five times, the last person with whom he went through the ceremony being his own first cousin, a lady of about forty, Miss Robertina Greene, who has an income in her own right of £400 per annum.  The prisoner pleaded not guilty.

 Mr Curtis, for the defence, said he would be able to shorten the case. Substantially their defence was that the prisoner was insane.  Dr Banks was examined, and deposed that he had been physician to the prisoner’s family for a number of years; with regard to the accused he said that at one time he was labouring under symptoms of insanity, and had been placed in a private lunatic asylum.  He also understood that he had been confined in two lunatic asylums in Bruges, and that he escaped from one recently.

Mr Curtis: Do you think he is capable of discerning right from wrong?

Witness: Certainly not as regards his matrimonial alliances (laughter).

Serjeant O’Brien (for the prosecution) I never heard of a more captivating character (Laughter) No less than four ladies have succumbed to his winning influence.

Here, Miss Greene, who had been intently reading the newspaper during the proceedings, looked up and smiled, whilst another of the ladies, Miss Cassidy, laughed aloud.

Mr Justice Lawson: There is no accounting for taste (Laughter)

Serjeant O’Brien: You know, my lord, when men are afflicted, women are the ministering angels.

The prisoner was found guilty of the charge alleged, and on the verdict being entered the jury found that the prisoner was insane at the time he went through the ceremony of marriage.   He was then ordered to be detained in an asylum during the pleasure of his Excellency the Lord Lieutenant.

When leaving the dock Molloy, who himself looked the picture of misery, smiled to each of the women.”

Mr Molloy was liberated from the asylum after two years on the petition of his magistrate father, who undertook to be his surety for good behaviour.  The following year, in London, he married yet again – to Emma Jane Moreton, half his age –  without having divorced his first wife.   On discovery of the true situation, Miss Moreton, less understanding than her predecessors, reported her new husband to Scotland Yard.  

Another bigamy prosecution resulted, and this time Mr Molloy was sentenced to twelve months’ imprisonment; indeed, he was lucky not to get more, as the court does not seem to have been made aware of his previous conviction in Ireland, or the fact that the complainant was in fact his sixth concurrent spouse (she was reported as being his third).  The first Mrs Molloy finally brought her divorce action in 1895, to which her errant husband consented, and was awarded £8 a month alimony.

What to think of Mr Molloy – a reprehensible bounder or just one of many sent to asylums by families for daring to flout social convention?   At least as far as his Irish ‘wives’ went, perhaps, as the Glasgow Evening Post remarked, his only fault was that he loved too well!  And could the above series of events mean that the record for the most wives ever – outside Utah at least – belongs to an Irish magistrate’s son?

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