Hugh Kennedy

Hugh Kennedy (1879-1934) was the first Attorney-General of the Republic of Ireland. He was born in Dublin, Ireland, which, along with England, Scotland and Wales, was then one of the constituent parts of the United Kingdom.

He studied at the Royal Irish University and King's Inns, Dublin, and was called to the Irish Bar in 1902. He was appointed King’s Counsel in 1920 and became a Bencher of King's Inns until 1922.

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). Hugh Kennedy was senior legal adviser to the representatives of Dáil Éireann.

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), which then comprised the United Kingdom, the Dominion of Canada, the Commonwealth of Australia, the Union of South Africa, the Dominion of New Zealand and the Dominion of Newfoundland (Newfoundland later became a Province of the Dominion of Canada).

De Valera, who was President of Dáil Éireann (and subsequently elected by Dáil Éireann as “President of the Irish Republic” — a supposed entity which the US Administration refused to recognize; nor did any government recognize its existence in international law), had issued a position paper which envisaged a relationship with the United Kingdom which was not too dissimilar from the current relationship between the Member States of the Commonwealth. However, it was unacceptable to His Majesty's Government at that time, which then comprised Ministers from the Unionist Party of Great Britain (now known as the Conservative Party of Great Britain). The primary political objective of the Unionist Party of Great Britain was to maintain the Union between Ireland and the remainder of the United Kingdom. They would not concede more than Dominion status.

The Treaty was opposed by Sir Henry Wilson, MP, and many other Members of Parliament from the Unionist Party of Great Britain, but was approved by the Parliament of the United Kingdom after a brilliant speech by The Right Honourable Winston Churchill.

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.

On January 31, 1922 Hugh Kennedy became the first and only Attorney-General of the Provisional Government of Southern Ireland.

In 1922 he 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.

On December 7, 1922 he was appointed by the Governor-General as the first Attorney-General of the Irish Free State. A photograph from this period appears at [1] (http://www.gov.ie/ag/gallery/prevag1.htm).

In 1923 he 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 also a delegate of the Irish Free State to the Fourth Assembly of the League of Nations between September 3-29, 1923. His photograph as a member of the delegation of the Irish Free State appears at [2] (http://www.indiana.edu/~librcsd/nt/db.cgi?db=ig&do=search_results&details=2&ID=685&ID-opt==).

Erskine Childers, a well-known English author who claimed to be an officer in the IRA, was convicted of possession of a firearm (a capital offence), which he claimed had been given to him by Michael Collins.

Hugh Kennedy appeared as senior counsel 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 and other arrested people applied to the Irish High Court of Justice 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).

On this, see further, Dr Gerard Hogan, SC, “Hugh Kennedy, the Childers Habeas Corpus Application and the Return to the Four Courts” in Caroline Costello (ed), The Four Courts: Two Hundred Years, Dublin, 1996.

While his appeal was still pending, Erskine Childers was executed. Others were also executed merely because they were convicted of possession of a firearm. 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.

On June 5, 1924 he was appointed Chief Justice, thereby becoming the first Chief Justice of the Irish Free State. A photograph from this period appears at [3] (http://www.ucd.ie/archives/html/collections/kennedy-hugh.htm). 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 was to issue a practice note that the wearing of wigs and robes would continue in the new courts, to the disappointment of those who had hoped that the new Irish Free State would follow the practice in the federal and State jurisdictions in the USA and dispense with wigs and robes for practitioners. This practice is still continued in trials and appeals in the High Court and the Supreme Court (except in certain matters). He held the position of Chief Justice until his death in 1934.

External links

• Article at University College Dublin archives department (http://www.ucd.ie/archives/html/collections/kennedy-hugh.htm)