John O'Byrne

John O'Byrne (1884- January 14, 1954) was the second Attorney-General of Ireland, serving between June 7, 1924 and January 9, 1926.

He was born on April 24, 1884, the fourth son of Patrick O’Byrne and Marjorie O'Byrne, née McGuire, of Seskin, County Wicklow, in Ireland, which, along with England, Scotland and Wales, was then one of the constituent units of the United Kingdom. He was educated at the Patrician Monastery, Tullow, County Carlow, and studied Moral and Mental Science at the Royal Irish University, where he graduated in 1907 in First Place with First Class Honours. He was awarded a Master of Arts degree.

He joined the Land Commission, where he acquired an intimate knowledge of the system of real property and land tenure in Ireland. Subsequently, he studied at King's Inns, Dublin, and was called to the Irish Bar in 1911, where he practised mainly in real property.

During 1920 and 1921 there were negotiations between the representatives of Dáil Éireann and His Majesty’s Government (The Right Honourable David Lloyd George, The Right Honourable Austin Chamberlain, The Right Honourable Winston Churchill and Lord Birkenhead). The representatives of Dáil Éireann wanted to establish a republic outside the Empire. His Majesty’s Government would only concede dominion status, ie, independence within the community of autonomous and freely associated states comprising what was then called the British Commonwealth of Nations (renamed the Commonwealth of Nations and, subsequently, the Commonwealth in more recent times, the prefix “British” being dropped).

Following approval of the Treaty by the Parliament of Southern Ireland (an entity having almost the same membership as Dáil Éireann (it also included Dublin Unionists), but, unlike Dáil Éireann, established under legislation of the UK Parliament), the Provisional Government of Southern Ireland came into being on January 16, 1922 when the Lieutenant-Governor, Lord Fitzalan, transferred the executive power of the Crown in Ireland to it. The Provisional Government of Southern Ireland was intended as a transitional government pending the establishment of the Irish Free State. Michael Collins (who was President of the Irish Republican Brotherhood) was Chairman of the Provisional Government.

From 1922 to 1924 John O’Byrne was counsel to Hugh Kennedy, KC (the only Attorney-General of the Provisional Government of Southern Ireland and the first Attorney-General of the Irish Free State). The position of John O’Byrne at this time might be described as being equivalent to that of Crown Counsel.

He appeared as junior to the Attorney-General, Hugh Kennedy, in R (Childers) v Adjutant-General of the Forces of the Irish Provisional Government [1923] 1 IR 5 and R (O’Brien) v Military Governor of the Military Internment Camp, North Dublin Union [1924] 1 IR 32. In those proceedings, Erskine Childers (a well-known English author who claimed to be an officer in the IRA) and other arrested people applied for habeas corpus. In evidence was a statement by De Valera, claiming to be “President of the Irish Republic”, and Frank Aiken, as Chief of Staff of the IRA, stating that as the Irish people were “weary and need a rest” (no reference to the fact that a majority of the electorate had voted for parties which had supported the Treaty) there would be a temporary suspension in hostilities until a more favourable moment.

The court in both proceedings received uncontradicted evidence that the irregular forces led by De Valera and Aiken had conducted house robberies under arms; burnt houses; robbed banks; attacked post offices; robbed post offices; conducted road robberies under arms; plundered private property; thrown bombs into crowded public places; caused rail obstructions; killed unarmed soldiers leaving a church one Sunday in Wexford. The applications were dismissed. In the first proceeding, the judge noted that the court case was being conducted in temporary accommodation in Green Street under military guard as the Four Courts had been destroyed (an IRA unit had taken over the Four Courts and ordered the judges to leave — Collins had requested the IRA unit to vacate the building, but they refused, so the National Army launched an attack to retake the Four Courts).

Erskine Childers was subsequently executed by the Irish Free State for possession of a firearm (which he claimed had been given to him by Michael Collins). Others were also executed merely for possession of firearms. Indeed, more people were executed by the Irish Free State during the Civil War than were executed by His Majesty's Government during the War of Independence. These executions, as well the murders committed by the IRA, served as a source of bitterness for a generation.

In 1922 John O’Byrne was appointed by the Provisional Government of Southern Ireland to the Irish Free State Constitution Commission to draft the Constitution of the Irish Free State. It prepared a draft Constitution. He was thus one of the constitutional architects of the Irish Free State.

The Irish Free State was established on December 6, 1922, and the former Provisional Government of Southern Ireland ceased to exist, its functions being transferred to the newly created Executive Council (ie, Government) of the Irish Free State.

In 1923 John O’Byrne was 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 was chaired by the last Lord Chief Justice of Ireland (who had also been the last Lord Chancellor of Ireland). It drafted legislation for a new system of courts, including a High Court and a Supreme Court, and provided for the abolition, inter alia, of the Irish Court of Appeal and the Irish High Court of Justice. Most of the judges were not reappointed to the new courts.

He was appointed King’s Counsel in 1924. He was also a delegate of the Irish Free State to the League of Nations in 1924. On June 7, 1924 he was appointed by the Governor-General as the second Attorney-General of the Irish Free State when Hugh Kennedy, the first Attorney-General, was appointed Chief Justice. His photograph appears at [1] (http://www.gov.ie/ag/gallery/prevag1.htm). On January 9, 1926 he was appointed a Justice of the High Court.

On December 29, 1937, the Irish Free State ceased to exist and was superseded by a republic known as Éire (one of the traditional names for Ireland in the Goidelic or Gaelic language). The office of the King’s representative, the Governor-General, was abolished and replaced by the office of President. Douglas Hyde became its first President and De Valera became its first Prime Minister (or “Taoiseach” in the official standardised Erse dialect of the Goidelic or Gaelic language). Although Éire was a republic, it remained within the British Commonwealth of Nations.

As a trial judge, he was known as "the hanging judge" because of the number of murder trials which he presided over. Like most judges, he was not personally in favor of hanging.

He was well liked by the Irish Bar. When he was ill for a while, The Irish Jurist of the period reported that he was missed by the barristers, who regarded him as kind and friendly.

In 1940 The Honourable Mr Justice O’Byrne was appointed a Justice of the Supreme Court. He was Chairman of the Irish Legal Terms Advisory Committee from May 14, 1948 to May 13, 1953. On April 18, 1949 Éire became the Republic of Ireland, and it left the Commonwealth of Nations in the same year. He died on January 14, 1954.

He had three sons and two daughters.