His brother, Richard Pennefather, has a longer and more successful career as a judge. Appointed a Baron of the Court of Exchequer in 1821, he serves for nearly 40 years and is held in universal regard. With the general support of the profession, he remains on the Bench until shortly before his death at eighty-six, by which time he is blind. Edward and Richard, “the two Pennefathers,” are leading practitioners in the Court of Chancery (Ireland).
Pennefather is generally regarded as more gifted, a master of the law of equity and also a skilled libel lawyer. In 1816, he is one of the lead counsels in the celebrated libel case of Bruce v. Grady, which arises from the publication of a scurrilous poem called “The Nosegay,” written by a barrister, Thomas Grady, about his former friend, the notably eccentric banker George Evans Brady of Hermitage House, Castleconnell, County Limerick. The quarrel is said to arise from a dispute over money which Bruce had loaned to Grady. The plaintiff claims £20000 but the jury awards £500.
According to Elrington Ball, Pennefather is considered to be one of the greatest Irish advocates of his time, and one with few rivals in any age, but he does not live up to expectations as a judge, due largely to his age and increasing ill-health. As a judge he is remembered mainly for presiding at the trial of Daniel O’Connell in 1843 for sedition, where his alleged bias against the accused damages his reputation: he is accused of acting as prosecutor rather than judge, and his summing-up is described as simply an extra speech for the prosecution. Further damage to his reputation is done by the majority decision of the House of Lords quashing the verdict in the O’Connell case: while many of the errors were the fault of the prosecution, the Law Lords do not spare Pennefather for his conduct of the proceedings, and in particular for his summing-up. The Law Lords comment severely that the course of the trial, if condoned, will make a mockery of trial by jury in Ireland.
The related trial of Sir John Gray descends into farce when the Attorney-General, Sir Thomas Cusack-Smith, who is noted for his hot temper, challenges one of the defence counsel, Gerald Fitzgibbon, to a duel, for having allegedly accused him of improper motives. Pennefather tells the Attorney-General severely that a man in his position has no excuse for such conduct, whereupon the Attorney-General agrees to let the matter drop. The public notes with interest that Fitzgibbon’s wife and daughter are present in Court during the contretemps.
Following a long illness, Pennefather dies in Dunlavin, County Wicklow, on September 6, 1847. He is buried in Christ Church Cemetery, Delgany, County Wicklow.
Gray is the third son of John and Elizabeth Gray of Mount Street. He is educated at Trinity College Dublin and obtains the degree of M.D. and Master of Surgery at the University of Glasgow in 1839. Shortly before his marriage in the same year, he settles in Dublin and takes up a post at a hospital in North Cumberland Street. He is admitted as a licentiate of the Royal College of Physicians in due course.
Gray is publicly minded and contributes to periodicals and the newspaper press. In 1841, he becomes joint proprietor of the Freeman’s Journal, a nationalist paper which is then published daily and weekly. He acts as political editor of the Journal for a time, before becoming sole proprietor in 1850. As owner, he increases the newspaper’s size, reduces its price and extends its circulation.
Gray enters politics at a relatively young age and attaches himself to Daniel O’Connell‘s Repeal Association. As a Protestant Nationalist, he supports the movement for the repeal of the Acts of Union with Britain. In October 1843, he is indicted with O’Connell and others in the Court of the Queen’s Bench in Dublin on a charge of sedition and “conspiracy against the queen.” The following February, he, together with O’Connell, is condemned to nine months imprisonment, but in early September 1844 the sentence is remitted on appeal. The trial has a strong element of farce, as the hot-tempered Attorney-General for Ireland, Sir Thomas Cusack-Smith, challenges Gray’s counsel, Gerald Fitzgibbon, to a duel, for which he is sternly reprimanded by the judges. From then on Gray is careful to distance himself from the advocacy of violence in the national cause, though he is sympathetic to the Young Ireland movement without being involved in its 1848 rebellion. Through the growing influence of the Freeman’s Journal, he becomes a significant figure in Dublin municipal politics. He is also active in national politics during an otherwise quiet period of Irish politics up until 1860. With the resurgence of nationalism after the famine, he helps to organise the Tenant’s League founding conference in 1850, standing unsuccessfully as the League’s candidate for Monaghan in the 1852 United Kingdom general election.
Later Gray originates and organises the “courts of arbitration” which O’Connell endeavours to substitute for the existing legal tribunals of the country. Following O’Connell’s death, in 1862 he inaugurates an appeal for subscriptions to build a monument to O’Connell on Sackville Street (now O’Connell Street). Independent from O’Connell, he continues to take a prominent part in Irish politics and in local affairs.
In municipal politics, Gray is elected councillor in 1852 and alderman of Dublin Corporation and takes an interest in the improvement of the city. As chairman of the committee for a new water supply to Dublin, he actively promotes what becomes the “Vartry scheme.” The Vartry Reservoir scheme involves the partial redirection and damming of the River Vartry in County Wicklow, and the building of a series of water piping and filtering systems (and related public works) to carry fresh water to the city. This work is particularly important in the improvement of conditions in the city, and to public health, as it improves sanitation and helps reduce outbreaks of cholera, typhus and other diseases associated with contaminated water. On the opening of the works on June 30, 1863, he is knighted by the Earl of Carlisle, then Lord Lieutenant of Ireland. Partially in recognition of these efforts, he is later be nominated for the position of Lord Mayor of Dublin for the years 1868–69, but he declines to serve.
In national politics, the Liberal government at the time is keen to conciliate an influential representative of the moderate nationalists to support British Liberalism and who will resume O’Connell’s constitutional agitation. In an unusual alliance with the CatholicArchbishop of Dublin, Paul Cullen, a man devoted to O’Connell’s memory, Gray’s newspaper exploits this shift in government policy. It supports the archbishop’s creation, the National Association of Ireland, established in 1864 with the intention of providing a moderate alternative to the revolutionary nationalism of the Fenians. The Freeman’s Journal adopts the aims of the Association as its own: it advocates the disestablishment of the AnglicanChurch of Ireland, reform of the land laws, educational aspirations of Irish Catholicism and free denominal education.
In the 1865 United Kingdom general election Gray is elected MP for Kilkenny City as a Liberal candidate. In this capacity he campaigns successfully at Westminster and in Ireland for the reforms also advocated in his paper. His newspaper’s inquiry into the anomalous wealth of the established church amidst a predominately Catholic population contributes considerably to William Ewert Gladstone‘s Irish Church Act 1869. He helps to furnish the proof that Irish demands are not to be satisfied by anything other than by radical legislation. He fights for the provision in the new Landlord & Tenant (Ireland) Act 1870 for fixity of tenure, which Gladstone eventually concedes. The Act’s other weaknesses, however, result in its failure to resolve the “land question,” the accompanying coercion, the disappointment with Gladstone’s handling of the university question and national education, causing Gray to deflect from the Liberals and become mistrusted in Britain. In the 1874 United Kingdom general election he is re-elected as a Home Rule League MP for Kilkenny, joining its Home Rule majority in the House of Commons, and holds his seat until his death the following year.
Gray dies at Bath, Somerset, England, on April 9, 1875. His remains are returned to Ireland, and he is honoured with a public funeral at Glasnevin Cemetery. Almost immediately afterwards public subscriptions are sought for the erection in O’Connell Street, of a monument to Gray. The monument is completed in 1879 and is dedicated to the “appreciation of his many services to his country, and of the splendid supply of pure water which he secured for Dublin.” His legacy also includes his contributions to the passage of the Irish Church and Land Bills, his advocacy for tenant’s rights and his support of the Home Rule movement.
(Pictured: Statue to Sir John Gray on Dublin’s O’Connell Street, designed by Thomas Farrell and unveiled on June 24, 1879. Photo credit: Graham Hickey)
Holmes appears to be a stern judge, who does not suffer fools gladly and often imposes exceptionally severe sentences in criminal cases. Although the story is often thought to be apocryphal, Maurice Healy maintains that Holmes did once sentence a man of great age to 15 years in prison, and when the prisoner pleaded that he could not do 15 years, replied “Do as much of it as you can.” His judgments do however display some good humour and humanity, and the sentences he imposes often turned out to be less severe in practice than those he announces in Court.
The quality of his judgments is very high and Holmes, together with Christopher Palles and Gerald FitzGibbon, is credited with earning for the Irish Court of Appeal its reputation as perhaps the strongest tribunal in Irish legal history. His retirement, followed by that of Palles (FitzGibbon had died in 1909), causes a loss of expertise in the Court of Appeal from which its reputation never recovers. Among his more celebrated remarks is that the Irish “have too much of a sense of humour to dance around a maypole.” His judgment in The SS Gairloch remains the authoritative statement in Irish law on the circumstances in which an appellate court can overturn findings of fact made by the trial judge.
During 1920 and 1921, Kennedy is a senior legal adviser to the representatives of Dáil Éireann during the negotiations for the Anglo-Irish Treaty. He is highly regarded as a lawyer by Michael Collins, who later regrets that Kennedy had not been part of the delegation sent to London in 1921 to negotiate the terms of the treaty.
On January 31, 1922, Kennedy becomes the first Attorney General in the Provisional Government of the Irish Free State. Later that year he is appointed by the Provisional Government to the Irish Free State Constitution Commission to draft the Constitution of the Irish Free State, which is established on December 6, 1922. The functions of the Provisional Government are transferred to the Executive Council of the Irish Free State. He is appointed Attorney General of the Irish Free State on December 7, 1922.
In 1923, Kennedy is appointed to the Judiciary Commission by the Government of the Irish Free State, on a reference from the Government to establish a new system for the administration of justice in accordance with the Constitution of the Irish Free State. The Judiciary Commission is chaired by James Campbell, 1st Baron Glenavy, who had also been the last Lord Chancellor of Ireland. It drafts the Courts of Justice Act 1924 for a new court system, including a High Court and a Supreme Court, and provides for the abolition, inter alia, of the Court of Appeal in Ireland and the Irish High Court of Justice. Most of the judges are not reappointed to the new courts. Kennedy personally oversees the selection of the new judges and makes impressive efforts to select them on merit alone. The results are not always happy. His diary reveals the increasingly unhappy atmosphere, in the Supreme Court itself, due to frequent clashes between Kennedy and his colleague Gerald Fitzgibbon, since the two men prove to be so different in temperament and political outlook that they find it almost impossible to work together harmoniously. In a similar vein, Kennedy’s legal opinion and choice of words could raise eyebrows amongst legal colleagues and fury in the Executive Council e.g. regarding the Kenmare incident.
Kennedy is also a delegate of the Irish Free State to the Fourth Assembly of the League of Nations between September 3-29, 1923.
Kennedy is elected to Dáil Éireann on October 27, 1923, as a Cumann na nGaedheal TD at a by-election in the Dublin South constituency. He is the first person to be elected in a by-election to Dáil Éireann. He resigns his seat when he is appointed Chief Justice of Ireland in 1924.
On June 5, 1924, Kennedy is appointed Chief Justice of Ireland, thereby becoming the first Chief Justice of the Irish Free State. He is also the youngest person appointed Chief Justice of Ireland. When he is appointed, he is 44 years old. Although the High Court of Justice and the Court of Appeal had been abolished and replaced by the High Court and the Supreme Court respectively, one of his first acts is to issue a practice note that the wearing of wigs and robes will continue in the new courts. This practice is still continued in trials and appeals in the High Court and the Supreme Court (except in certain matters). He holds the position of Chief Justice until his death on December 1, 1936, in Goatstown, Dublin.
In September 2015, a biography by Senator Patrick Kennedy (no relation) is written about Kennedy called Hugh Kennedy: The Great but Neglected Chief Justice.
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