The third contribution in Tinteán‘s series on the Irish and Australian Law by Peter Moore
This article is adapted from Peter Moore’s chapter on Irish judges and lawyers in Irish South Australia (2018), edited by Susan Arthure, Fidelma Breen, Stephanie James and Dymphna Lonergan.
Irish lawyers constituted almost 15% of the 471 United kingdom practitioners who were admitted in Australia and New Zealand up to 1861. In South Australia, during the much longer period from the foundation of the colony in 1837 to the outbreak of war in 1914, eighteen (barely 3%) of the 591 practitioners were Irish. Small numbers and limited proportions left the group well short of the critical mass to act as a potent minority, still less to threaten the colony’s English-style legal system.
Irish lawyers were never going to stand out as Irish lawyers because English law prevailed in the colony. The transition proved relatively easy, however, because Irish lawyers were cultural hybrids. Dublin’s Four Courts of Common Pleas, King’s Bench, Exchequer and Chancery operated at one remove from Westminster’s courts with the same legal jurisdictions. Irish barristers trained at King’s Inns as well as one of the Inns of Court in London, on which Dublin institution was modelled in the 1540s. Irish solicitors trained under articles of clerkship with an admitted solicitor, just like their English counterparts, and by the 1830s organised in law societies like England’s. The intended result was that Irish lawyers worked and thought like English ones.
In the colony, Irish lawyers would function like English lawyers. The playing field was levelled because even Englishmen had to adjust, on the job, to frontier conditions. In addition, taking oaths to the Crown and the Court, English in content and context, identified lawyers with the colonial jurisdiction. Formation in Ireland confirmed an Irish man as an Irish lawyer. Admission in Adelaide, however, meant an Irish-qualified man abandoned his professional ethnicity to become a South Australian lawyer. His national ethnicity counted for little in the colony’s legal system.
The eighteen Irish-born practitioners qualified in Ireland and admitted in Adelaide comprised seven King’s Inn barristers and eleven Four Courts solicitors. Their fathers ranged socially from the lower nobility to the upper trades. Barristers exhibited higher social caste. Robert Molesworth descended from three aristocrats although his father was a Dublin solicitor. Others came from the gentry. John Bagot and Matthew Martyn were younger sons of landed squires in Laois and Galway respectively. More were sons of lawyers. Robert Bernard’s father was a Dublin solicitor, William Barlow’s and Frederick Pennefather’s were both senior barristers. By contrast, from the upper trades came Patrick Glynn whose pater was a well-off hardware merchant. Solicitors hailed from a narrower social range. Land-holding contributed only Thomas Lucas of Poyntzpass and James FitzGerald from Youghal, both fathers mere ‘squireens’. Most fathers had professions: a vicar (Charles Johnston), doctors (James Kennedy and George Labatt), solicitors (William Bernard and Luke Cullen) and a tax collector (William Ma’guire). Two came from commerce: Edward Fitzgerald was a wealthy Galway brewer’s son and Daniel O’Brien’s a humbler Clonmel shopkeeper. Next to nothing is known about the last to arrive, Charles O’Brien, admitted in Dublin in 1900 and Adelaide in 1913. Their families were sufficiently well off to afford long years of professional formation, the bar more expensive than solicitor training.
The capital featured heavily in the emigrant lawyers’ lives. Half were born and more were educated in Dublin. Most bar pupils attended Trinity College, not to study law but for the Arts degree that reduced their pupillage from five to three years. Better educated than their English counterparts, solicitors Bernard, Kennedy and Labatt graduated and Johnston and Lucas enrolled for a year or two. Professional lives were Dublin-centred, too. All emigrant barristers and most solicitors gained their practical experience there. Two-thirds had ten or more years’ standing, indicating that their emigrations were not about failing to make a start. Only two, Cullen and Glynn, left within four years of admission, apparently unable to build a practice.
Legal practitioners showed some mobility before ‘taking the emigration’. Barristers had studied in London and most went the circuits at home. Some solicitors maintained professional contacts with their provincial roots as well as keeping a Dublin office. All but Molesworth, who was 47, left before they turned 40, giving themselves time to build careers abroad. They took the drastic step steadily rather than responding to national crises like the Famine.
Reasons to leave remain elusive. Molesworth, Protestant, better-connected, and with twice the experience, had his eye on pastoralism rather than law. All expected to improve their prospects or their health, and to avoid the triple blister of professional overcrowding, scant patronage, and commonplace sectarianism. Catholic Martyn’s testimonials show all three, his success ‘certain’ yet so ‘distant’ in the ‘crowded state of our Bar’ that ‘advancement’ could occur only in a ‘distant land’. His Catholic and Protestant referees alike used similar terms to explain why ‘few opportunities’ opened for young men ‘unaided by strong connection’, hinting that a Catholic from Connaught’s small gentry passed little muster across at the Four Courts. Thirty years later, fellow-Catholic Glynn left in response to similar problems. Overcrowding applied to solicitors too. Two-thirds of the emigrant cohort entered the profession at home during a great surge in admissions between 1838 and 1850. Cullen trained with his father’s firm, yet inexplicably departed within a year of admission. Irish prospects, of course, related not only to legal practice. Barrister Bagot, a second son, looked unlikely to inherit his father’s Kilcoursey estate and emigrated in 1850 to ‘try his fortune’ (his own words). When he inherited unexpectedly, he went ‘home’ to take possession but returned to busy colonial careers in both law and politics. Famine tumults upset Daniel O’Brien’s arrangement to conduct the legal business for Clonmel’s town council.
Leaving Ireland was one thing, choosing South Australia another. Some responded to the colony’s promotion by Dr John Bernard, Robert’s and William’s cousin. Its provincial character, free market and assured labour force fed middle-class aspiration. Their sub-text, land speculation, attracted eager investors. The lawyers came to invest but also, as if second-guessing the strifes that might arise, to work as conveyancers and litigators. Others joined relatives and friends already in the colony. In a chain of migration, Robert Bernard, expecting to practise under his cousin Judge Jeffcott, set sail before hearing his honour was dead; William expected Robert to greet him but he too had died. Bagot was re-united with a cousin, Charles Hervey Bagot, a wealthy Legislative Councillor. Bagot’s brother-in-law George Labatt joined him five years later. O’Brien caught up with his brother, Father Michael O’Brien, Mt Barker’s parish priest. John Brady joined his enterprising uncle Daniel, and Richard Cullen came to train with his brother Luke. Some of their jurisdiction-hopping was for professional gain but also involved climate-changing for their health. Most won at least a few years’ respite. The three Bernards were all consumptive. Robert and William arrived at 29 and were dead at 32. Ponsonby Moore, barely 31, the Earl of Drogheda’s son, did not live to see his admission day. Martyn, too, had been ill prior to leaving home.
Missing motives may be deduced from prompt admission, office holding and practice duration. Most applied for admission soon after arriving, indicating that they expected to practise law. William Barlow, called in Dublin in 1858 and admitted in Adelaide in 1870, was so keen to practise he wrote ahead to Luke Cullen to give the court notice even before he arrived. Thomas Lucas, nearly 40 in 1838 when he left Armagh without (in his own words) ‘any idea of following [his] profession’, farmed at Reynella until the colony’s economic collapse induced him to return to legal work. A stop-gap, apparently, Lucas practised for barely a year, in partnership with fellow-Irishman, James Kennedy.
A quarter of the Irish-born advanced their careers through legal office-holding. For barristers, colonies offered good prospects for appointments as judges. Being on the spot for positions to open up worked for some, but proved more a matter of timing than talent. Robert Bernard replaced the Advocate General soon after arriving in mid-1838. He held other legal offices before appointment as Acting Judge for three months in 1840. He did not sit in open court during that period. He stepped down into the lighter duties of Registrar-General before sinking into his grave in October. Molesworth and Martyn were admitted amid discussion in late 1852 about replacing Justice Crawford from the local profession. Neither succeeded. With 24 years at the Irish bar under his wig, Molesworth did not seek the vacant seat but set up in practice until, a year later, he launched a distinguished Victorian career starting at the top with a stint as Acting Chief Justice. By contrast, Martyn applied on the strength of seven years’ experience and a sheaf of high-powered testimonials solicited from senior Irish barristers and Catholic bishops. He was admitted in June 1853, long after he knew he would not fill the vacancy, even temporarily. He took the next ship home. Bagot and Glynn became Attorneys-General. Pennefather, admitted when he was appointed Adelaide University’s first professor of law, without intending to practise, became a judge in New Zealand. Solicitors had fewer opportunities for public appointments although two held lower offices early, indicating their value as launching pads rather than career paths. Johnston was Clerk to the Magistrates, 1837–38. William Bernard served as Assistant Crown Solicitor, 1842–43.
The Irish-born-and-qualified made little impact on the colony. Only five of the eighteen practised extensively. Thirteen, through short lives, low profiles and short stays contributed little to the development of South Australia’s profession and legal system. The Bernards died young. James Fitzgerald applied ten years’ Dublin experience to 30 years as a humble clerk at the Registry of Deeds. Half of the cohort moved on. Edward Fitzgerald (no relation of James) arrived in Adelaide in 1850 eight years after his Dublin admission, but eighteen months later joined the rush to the Victorian goldfields. He practised in Castlemaine where, following his father’s line, he started the famous brewery with his younger brother Nicholas, a Dublin barrister. Molesworth shifted to Melbourne and Johnston to Hobart, while Ma’guire chose Sydney and Kennedy tried New Zealand. Remarkably, three lived the emigrant’s dream of returning home. Martyn, without practising, and O’Brien after twenty years, both returned to practise in Dublin. Pennefather retired to the County Wicklow estate he inherited in 1904.
Only five were spared to lead long lives and committed themselves to the colony-state. All prospered. Brothers-in-law Bagot & Labatt developed a major practice. Cullen’s firm, Belt, Cullen & Wigley, was among the strongest and most lucrative in the colony for decades. If an ethno-religious division loomed, Catholic Cullen bridged it, his partners both English, both Anglicans. Barlow co-led a prestigious partnership and helped direct the fledgling University. Glynn co-led Barlow’s chief competitor firm, became King’s Counsel in 1913 and held colonial and Federal ministries.
The majority took up the kind of legal work they had done at home, especially lucrative conveyancing. Johnston plunged in conspicuously during the spree in 1837–40 and the rest followed. Few Irish-trained solicitors crossed over to barrister’s work as they might in the blended colonial profession. By contrast, the barristers availed themselves of a slice of the conveyancing pie usually reserved for solicitors.
The Irish proved as Adelaide-centred as they had been Dublin-centred, with two exceptions. Daniel O’Brien from distant Clonmel, set up in regional Mount Barker once a Local Court opened there in mid-1850. Patrick Glynn found getting legal work in Melbourne as difficult as ‘attacking the devil with an icicle’ and opened an office at Kapunda north of Adelaide in 1882 for a city firm. He bought the practice in 1883 and conducted it for five years before opening an Adelaide office.
Irish-qualified lawyers provide a point of comparison with their English counterparts, but not an ‘other’ to contradict them. They practised successfully but without ‘undermining’ or ‘transforming’ the law—not as individuals, not as a group, not even for a while. If they made an impact on the law it was as politicians who changed it rather than as lawyers who practised it.
Peter Moore is a former Adelaide lawyer. Over 40 years he has developed autobiographical profiles of every lawyer admitted in South Australia from 1837 to 1945, and in New South Wales and New Zealand up to 1861. Currently, he is building a Dictionary of Biography of NSW Lawyers to 1861, supported by the Sir Frances Forbes Society for Australian Legal History.