Author: Dr John Kennedy McLaughlin AMPublisher: The Federation PressReviewer: Matthew Hickey

By the time English colonies in this continent were established, a century-long division along the lines of social status, religion and law had besieged Ireland. [1]  Penal laws, passed in the wake of the Reformation, imposed penalties upon practising Catholics  Priests who celebrated mass in Britain and Ireland, did so under threat of execution. The same laws prohibited Catholics from holding public office and owning land.  They could not practice law or medicine.  Nor could they enter academia or hold military commissions.[2]

Against that background, despite the gradual and eventual relaxation of those laws, it is perhaps unsurprising that some Irish found the prospect of life on the other side of the world a more promising prospect than languishing in “the bogs of Connemara”.[3]

In 1791, New South Wales received its first Irish settlers—convicts, to be clear. 155 of them banished from County Cork.[4] The purpose of the policy of penal transport, as the Times of London contemporaneously reported it, was:

to send the convict abroad to a distant colony, in which, after the expiration of a certain number of years, he is set free, with the certainty of employment before him, and without any of the temptations which prompted him in the first instance to the commission of crime, is to make a man of him once more – to give him, as it were, a fresh start in life.[5]

Nearly 70 years later, 7000 or so more settlers (some free, some coerced) had arrived.[6] Among those were lawyers.  Their experience is the subject of a book written by the late Dr John Kennedy McLaughlin AM, recently published by The Federation Press: The Immigration of Irish Lawyers to Australia in the Nineteenth Century.  McLaughlin[7]  was a barrister, master in equity and, later, Associate Justice of the Supreme Court of New South Wales.  His book (which, sadly, he did not live to see published) is based on a dissertation for which he earned a PhD from Monash University in 2020.

The liner notes explain that McLaughlin was a “deeply devout man”, who (like Sir Gerard Brennan, according to a recently published biography by the same publisher[8]) was inspired by the example of Sir Thomas More. Among other things, McLaughlin was a Councillor of the Royal Australian Historical Society. He was made a Member of the Order of Australia in 2014 “for significant service to the judiciary and to the law, particularly through the documentation and preservation” of Australian legal and constitutional history, and to the community. A tribute published by the NSW Bar Association suggests he was a barrister’s barrister for whom this book was the culmination of a lifelong fascination with his Irish ancestry.[9] It is an interest many readers likely share.

Of the Irish, Edward Gibbon Wakefield[10] is supposed to have said they “do not colonise, they only emigrate miserably”.[11]  Perhaps less disparagingly, although it is arguable, Benjamin Disraeli[12] said:

“the Irishman is an imaginative being. He lives on an island in a damp climate, and contiguous to the melancholy ocean. He has no variety of pursuit. There is no nation in the world that leads so monotonous a life as the Irish, because their only occupation is the cultivation of the soil before them. These men are discontented because they are not amused. The Irishman in other countries, where he has a fair field for his talents in various occupations, is equal, if not superior, to most races”.[13]

In a way, those ideas point towards the issues McLaughlin explores in this book: what were the motivations of those Irish lawyers who came here? What was their experience here? What contribution did they make?

On McLaughlin’s analysis, a number of themes emerge as explanations for the migration of Irish lawyers to Australia: historical sectarian division; transport to the colonies by way of criminal penalty; practical and economic impediments to success in Ireland in the early 1800s; then later (particular in the wake of the Great Potato Famine and the Revolutionary Spring of 1848, which saw the uprising by Young Ireland in July that year, which later gave birth to the Fenian movement),[16] the hope for new opportunities elsewhere.

The works of Dickens,[14] and plenty of others since, have given rise to the trope that those transported were peasants found guilty of crimes of desperation driven by poverty. But, as McLaughlin explains, it was not “merely denizens of the Dublin slums” who were so transported;[15] lawyers were among those dispatched to the great southern land.

Irish lawyers enjoyed high social status in Ireland at that time.[17] And they were plentiful. By the end of the 18th century, there were more than 400 members of the Irish bar in a Dublin population of around 150,000.[18] Despite their number being many, the bar was a “closed shop”, with new members being accepted on the basis of already established connections, rather than on merit.[19]

The sectarian divisions made establishing a career at the bar even harder for Catholics in particular. And those Catholics who found their way to the bar came from the well-trodden path of study at Trinity College (University of Dublin),[20] where the majority commenced between the ages of 16 to 18.[21] Even though the rule was that Catholics were prohibited from entering Trinity without the express permission of their bishop, that rule seems to have been honoured in the breach as much as in the observance. After graduating from Trinity, pupils enrolled at King’s Inn Dublin and at one of the English Inns.[22] A restriction imposed upon Irish pupils (which continued until 1886) was that they had to be called in England, in order to practise at the Irish bar.[23]

The converse, of course, did not obtain.

Poverty was rife in Ireland. More than 50% of the dwellings were described in a national census as “fourth class”, and consisted of no more than a mud cabin with one room.[44]

In 1792, Edmund Burke, an Anglo-Irish statesman and philosopher,[25] wrote that the Penal Laws then in place in Ireland “divided the nation into two distinct bodies, without common interest, sympathy or connection. One of those bodies was to possess all the franchises, all the property, all the education; the other was to be composed of drawers of water and cutters of turf for them.”[26] So, one part of society found itself subjugated, both formally and informally, at various times in Ireland. As a consequence, in the fledgling colonies, where infrastructure and commerce was limited (if not non-existent), opportunities were still far greater than those that existed for lawyers at home in Ireland.[27]

Work was slim, even for those with connections. Because of that, as William Stawell (later to become Victoria’s second chief justice) put it, because “there were 40 hats on the Munster Circuit and not enough work for 20, it was time to go.”[24]

But the enormity of that undertaking cannot be understated. McLaughlin includes an evocative quote[28] from Sir Victor Windeyer, writing of his great-great-grandfather, who had emigrated (albeit from England) in 1828:

To leave England [Ireland might easily have been written] for Australia was a big decision in those days: to leave one’s native land; to say goodbye to friends and kinsfolk knowing that almost surely this was forever; to set out on a long, and sometimes hazardous, voyage in a sailing ship to a new land, still known as a Convict Colony—to do this with a young family, to do it voluntarily, require courage. Many of the men and women who made this decision were not adventurers going out to seek a fortune and expecting to return and spend it at home. Rather they came to make their homes in a new country… Hope, not bitterness or compulsion led them to a new land which was to be their home.

The colonies of this place did provide an opportunity for those Irish lawyers brave enough to come, because they had automatic rights of appearance here and the lawyers were few but the criminals were many.

Though it would be wrong to think they were welcomed with open arms. The local press described Ireland as a country where “pigs and people huddle together promiscuously” (the Melbourne Age) and its inhabitants as “lawless savages” whose arrival here threatened its Anglo-Saxon racial character (Melbourne Argus).[43]

And for some (at least) of those who came, it proved well worth it. In 1866, one Irish-born barrister in New South Wales wrote to his father (who held a senior position in the Irish Court of Chancery) and told him of his income for that year. His father’s response? “There are not five men at the Irish Bar making that [great an] income.”[29]

Part of the reason for the influx of Irish in Australia, McLaughlin explains, was because “neither Irishmen nor lawyers—let alone Irish lawyers—were particularly welcome in the British colonies of North America.”[30] This reminds me to mention one minor criticism of the work. Similar to the way Victor Hugo’s Les Miserables and Leo Tolstoy’s War and Peace contain discursive non sequitur essays in the midst of the drama, which (on one view) seem justified only on the basis that the author had something to say at the time, McLaughlin takes the reader a leisurely side-quest into the history of the Irish in colonies other than in Australia. To me, it was a little like finding a potato gem in a box of hot chips: tasty, but not what I ordered. But an elderly author indulging his life’s passion can be forgiven a digression or two.

Because of the lack of any other qualified lawyers in New South Wales in the early 1800s, two rogues—Edward Eagar and George Chartres, who arrived here on the same ship in 1811[31]—were permitted to appear in Court on behalf of clients, despite their criminal antecedents.[32] Eagar received a pardon from Governor Macquarie in 1813 and wasted no time getting to work. His advertisements appeared in the Sydney Gazette as early as 10 April that year.[33] Chartres was bolder than Eagar. He began advertising his practice in the Gazette in October 1812, two years before he had even received his conditional pardon (and even after having been sentenced for further misconduct in the colonies after he had arrived).[34]

Irish arrivals apart from criminals included those who (perhaps) felt they had little to lose, whether at home or in the colonies. One was Charles William Blakeney, who had been born into an upper-class family in County Roscommon. After being called to the bar in England, then spending some years at the Irish bar, Blakeney squandered his family’s estate on gambling debts. “Mortified”, he fled to Queensland, where his son (the Registrar-General of Queensland) lived. Here, Blakeney the elder enjoyed professional success: he was elected to the Legislative Assembly and was later appointed a judge of the District Court.

Poor-born migrants also fared better here. One such example to whom McLaughlin refers was Patrick Real. Bruce McPherson described his life as “a triumph of talent and determination over poverty and adversity”.[35] Real’s father died en route from Ireland, while the family was emigrating. Because of that, Real received limited education in Ipswich but left it to pursue hard work labouring to support his family. Impressively, he eventually gained admission to the Queensland Bar, and was so professionally successful that he was appointed to the bench.

By the time the last Irish convict arrived, one-quarter of Australia’s overseas-born population was Irish.[36] Many among those had been active in rebellion against the Penal Laws in Ireland. They contributed to the “rich discourse of rights” that ultimately became a hallmark of Australian life.[37] In his seminal work of Irish-Australian history, The Irish in Australia, Professor Patrick O’Farrell suggests that “the distinctive Australian identity was not born in the bush, nor at Anzac Cove … it was born in Irishness protesting against the extremeness of Englishness.”[38] That “insubordinate” minority’s agitation led to “a general atmosphere in which exclusion, discrimination and rigid hierarchies became increasingly less possible to sustain”.[39] O’Farrell argues that the “tension, abrasion and sometimes collision” between the competing cultures of the Protestant English and the Catholic Irish, “far from being divisive, became the main unifying principle of Australian history”.[40]

Those kinds of contributions also feature in McLaughlin’s work. The involvement of Irish lawyers in attempts to protect the legal rights and entitlements of the First Nations people is especially illuminating. His discussion of the role Irish-born Attorney-General George Plunkett and Irish-born barrister, Roger Therry, played in the prosecution of those involved in the Myall Creek massacre is remarkable.

Women, of course, were among the Irish who made contributions. McLaughlin does not forget them. One Queensland story is that of Anne Beatson, an Irish woman, born in County Clare, who arrived with her parents in 1853. At the age of 82, she became the first female justice of the peace appointed in Queensland.

Particularly interesting is McLaughlin’s explanation for why Australian judges came to be called “your Honour”, instead of “My Lord or Your Lordship” as was (and remains) the custom in the superior courts of Britain. He contends it is because the first Chief Justice of New South Wales, Francis Forbes, was born in Bermuda and practiced in the West Indies before coming here. “Your Honour” was the form of judicial address of there. McLaughlin also explains that the Irish are responsible for the quirk of Victorian courts, in which solicitors face counsel, with their backs to the bench, unlike their northern counterparts.[42]

The highlight of the book, for me, is an hilarious anecdote about a duel that was convened after an act of affrontery at the Melbourne Club in 1841, between an Irish barrister called Snodgrass and an older Scottish squatter called Barry. Their stoush resulted in a challenge and a duel, at which at least one of them arrived resplendent in top hat, gloves and a swallow-tailed coat. According to McLaughlin, duelling was a relatively common form of dispute resolution among barristers in Ireland, during that era. I won’t spoil the outcome of this one.

If the Irish were the sand in the English oyster, and whose combined irritation gave us the pearl of settler identity while the first nations’ cultures were displaced and eradicated, the question of what role Irish lawyers had to play—as part of the “insubordinate” minority (to adopt O’Farrell’s phrase) in either agitating, observing or resolving the “tension, abrasion and sometimes collision” between those of competing cultures, and no doubt afterwards defend other active participants—begs for answers. And Dr McLaughlin’s book provides them, in a thoroughly researched work which swells with fascinating stories and illuminating tidbits.

The results of Dr McLaughlin’s evident labour of love—this very interesting book—demonstrates that, at least in the case of Irish lawyers who made this place home, there was (at least) a kernel of truth in what both Wakefield and Disraeli had to say.

1. Dr John McLaughlin AM, The Immigration of Irish Lawyers to Australia in the Nineteenth Century (Federation Press, 2023) 3 (Irish Lawyers).
2. Irish Lawyers, xvi.
3. https://nswbar.asn.au/docs/webdocs/BN_012015_59_68.pdf, page 68. Although there is some debate about the origins of this (perhaps) apocryphal quip. See: https://quoteinvestigator.com/2024/05/16/legal-latin/
4. Australian Bureau of Statistics Community Information Summary – Ireland Born (accessed 2024-03-24).
5. Irish Lawyers, 23
6. Australian Bureau of Statistics, Community Information Summary – Ireland Born (accessed 2024-03-24).
7. For convenience, and without intending any disrespect to the late Dr McLaughlin AM or his family, I will simply refer to him as McLaughlin.
8. Jeff FitzGerald, Sir Gerard Brennan (Federation Press, 2024) 210-14.
9. https://bn.nswbar.asn.au/article/john-kennedy-mclaughlin-am-kcsg-kgchs-1938-2023-barrister-master-in-equity-district-court-judge-legal-historian
10. A key promoter of the free-settler colony in South Australia.
11. Irish Lawyers, 4.
12. A British novelist who served as British Prime Minister twice in the late 1800s.
13. Irish Lawyers, 16.
14. For instance, Great Expectations.
15. Irish Lawyers, 13.
16. As to the 1848 revolutions throughout Europe, for an excellent recently published history of those events, see: Christopher Clark, Revolutionary Spring (Allen Lane, 2023).
17. Irish Lawyers, 7.
18. Ibid, 10.
19. Ibid, 11.
20. Ibid, 9.
21. Ibid, 8.
22. Ibid, 9.
23. Ibid, 9.
24. Ibid, 35.
25. Ibid, 5.
26. Ibid, 3.
27. Ibid, xvi.
28. Ibid, 74.
29. Ibid, 37.
30. Ibid, 45.
31. Ibid, 22.
32. Ibid, 13.
33. Ibid, 21.
34. Ibid, 22.
35. B.H. McPherson, The Supreme Court of Queensland 1859-1960, p 188, cited in Irish Lawyers, p 13.
36. Australian Bureau of Statistics, Community Information Summary – Ireland Born (accessed 2024-03-24).
37. Cane, Ford & McMillan (eds), The Cambridge Legal History of Australia (Cambridge University Press, 2022), 539.
38. Elizabeth Malcolm & Dianne Hall, A New History of the Irish in Australia (NewSouth, 2018) 8.
39. Ibid.
40. Ibid.
41. Irish Lawyers, 23.
42. Ibid, 108.
43. A New History of the Irish in Australia (n 38 supra), 22-23.
44. Gibney, A Short History of Ireland 1500-2000 (Yale University Press), 143.

Author: Evan ThomasPublisher: Random HouseReviewer: Matthew Hickey OAM

Judges of the United States Supreme Court are “subject to a form of celebrity that would be disquieting to an Australian judge”, said Justice Virginia Bell of the High Court of Australia, in 2017.[1] Her Honour observed that, for $24, fans of Justice Ruth Bader Ginsburg – arguably the most famous Supreme Court Justice[2]  – can purchase a coffee mug featuring ‘a rather grim portrait of her Honour under the words “I dissent”’. The “Notorious RBG” (as she became known by excitable undergraduates) was the second woman appointed to the US Supreme Court. The first, for those not old enough to remember, was Sandra Day O’Connor, who died in December.

In his meticulously researched 2019 biography, the writer and journalist Evan Thomas gives an intimate[3] glimpse into the life and mind of this important American. The book is the product of some 350 interviews, and was written with the assistance of Day O’Connor, her family, 94 of her (108!) law clerks, seven sitting Supreme Court Justices, and a constellation of other friends and colleagues.

The first chapter deals with Day O’Connor’s early years. She was raised on “Lazy B”, a sprawling cattle ranch, straddling the Arizona and New Mexico border, in tough and unforgiving country. Her father, of similar constitution, was a notoriously truculent, no-nonsense sort of fellow. He taught Day O’Connor, when she was still a girl, to muster cattle on horseback with experienced cowboys, drive trucks, fix tractors, read weather, and to understand that initiative, hard work and resilience were fundamental for survival. Those qualities, learned through her early harsh experiences, became hallmarks of Day O’Connor’s life and career.   

Thomas’ writing in that chapter is lyrical and poetic. In parts it reads more like a grand American saga than a biography. It evoked for me something of the Hamilton family’s Salinas Valley trials and tribulations in Steinbeck’s East of Eden ­. But painting a literary picture is not merely self-indulgence on the author’s part. It provides a vivid backdrop for later events and lays an effective foundation for themes to which Thomas, cleverly, returns throughout the book (echoing Day O’Connor’s own relationship with Arizona).

Later chapters explore Day O’Connor’s adolescence and early adulthood.

Having recognised Day O’Connor’s obvious intelligence, her family sent her to Texas when she turned 16, to live with her grandmother while completing High School. Stanford University law school followed. There, (after briefly dating William Rehnquist, with whom she would later serve on the Supreme Court) she met her husband John, and graduated near the top of her class.

Despite her considerable academic ability, Day O’Connor struggled to gain employment as a lawyer in the “white shoe” firms by whom her male peers (including her husband) were recruited. One, Gibson, Dunn & Crutcher in LA, offered her a role as a typist. She declined. Three decades later, when William French Smith (the Attorney-General) called to sound Day O’Connor out about the Supreme Court position, she said to him, wryly, “I assume you’re calling about secretarial work”. Smith had been a partner at Gibson, Dunn & Crutcher.

After a brief stint in Germany (having followed John, who served as a civilian attorney in the military) Day O’Connor returned to Arizona. She served in a number of public roles, gave birth to three sons, and rose to the position of assistant Attorney-General. In 1969, she was appointed to fill a casual vacancy in the State Senate. By the time she left politics (by choice, not electoral failure) in 1973, she had become the first woman to hold the position of Majority Leader in that (indeed, in any) state.

In 1974, Day O’Connor stood for election as a Superior Court judge. In 1979 she was appointed to the Arizona Court of Appeals.  President Ronald Regan appointed her as a Justice of the Supreme Court in 1981. According to Thomas, Regan regarded appointing the first woman to the Supreme Court among the greatest achievements of his presidency.

Naturally, the book dedicates more than half its contents to events after Day O’Connor’s appointment to the Supreme Court. Those chapters set out a richly-described historical account of contemporaneous events, to give context to a discussion of a selection of cases which Day O’Connor decided.  These include repeated attempts to overturn Roe v Wade (the book suggests the effect of that case upon American public discourse cannot be overstated), various affirmative action cases (involving women and minority groups), and the case concerning the Florida recount in the 2000 Gore / Bush Presidential election. Day O’Connor’s approach to the last of these (and her reflections on the case as revealed through interviews with family members and contemporaneous documents) is made particularly interesting because of her history as a Republican politician and close friendship with the Bush family.   

Other moments of human interest in the book are provided by Day O’Connor’s (sometimes difficult) relationships with Chief Justice Warren Burger (whose friendship, established during a summer boating holiday, laid the groundwork for Day O’Connor’s ultimate elevation), her college boyfriend Chief Justice William Rehnquist, Justices William Brennan Jr, Thurgood Marshall, Anthony Kennedy, Clarence Thomas and Antonin Scalia (whose regular withering criticisms of Day O’Connor in written opinions, seem not to have damaged their friendship).

Day O’Connor’s Supreme Court appointment came shortly after the publication of “The Brethren”, an explosive behind the scenes page-turner about the Supreme Court, by Bob Woodward.[4]  It was critical of a number of members of the Court, and its processes, but heaped praise on others. As a result, this biography suggests, the Court remained stung and internally divided, when Day O’Connor arrived. Against that background, she is credited with restoring harmony (or, at least, ostensible harmony) to the Court, over time, including by encouraging the justices to join each other each day for lunch – a tradition which, evidently, persists. 

The apparently political nature of the US Supreme Court (including the process of appointments to it) may be contrasted with our own High Court. As Chief Justice Gleeson observed in 2003:

”Because so many of the High Court’s decisions have political consequences, and because the Justices of the Court are appointed by the government of the day, it is natural that the Court is watched for signs of political influence.  Any appearance of such influence would be the subject of comment and criticism. What would surely be taken as such a sign would be a pattern of decision-making by members of the Court along the lines of the political colour of the government that appointed them. That does not happen.  In my first five years on the Court, four of the Justices had been appointed by Labor governments, and three by a Coalition government.  The only case that I can think of in which the Court divided along those lines was a tort case of no party political significance.  It is interesting that this has gone unremarked.  The fact that Australians take it for granted that the Court does not divide along such lines is, it seems to me, itself an achievement worth noting.”[5]

Another interesting point of difference is the apparent power wielded by the Justice’s clerks (associates), particularly in influencing judicial decision-making and judgement writing. Some associates’ preparedness to go on the record about things they might have been expected, in propriety, to have kept confidential – like, for instance, specific judges’ lobbying and jockeying to persuade others to join them in majority opinions – is surprising, but juicy reading.  

Finally, the book turns to Day O’Connor’s life after retirement. It paints a vivid, and sometimes sad, picture of her attempt to maintain relevance and to continue to make meaningful contributions to public life, even as her own health (and that of her beloved husband, John) was in decline. That section answers the question one so often hears asked around the bar, when recent judicial retirees return to the fray as mediators or arbitrators: why won’t they just take up a hobby?  

The book contains a full and florid depiction of Day O’Connor’s character and personality, as told in hundreds of anecdotes by those who knew her best. One of her clerk’s described how O’Connor modelled a balanced life, with the lesson being:

“Make time for your family. Take care of yourself. Experience the outdoors and get some exercise. Have a sense of the wider culture. Enjoy lively dinner parties and a varied circle of friends. Never be above taking care of people.”

But this book is not an exercise in hagiography. In a clever counterpoint to these personal anecdotes, Thomas deftly scatters objective facts among them, from which the reader is implicitly invited to draw their own inferences. To do so is irresistible.

Ultimately, despite her significant achievements, Thomas reveals Day O’Connor to have been fallible and sometimes flawed, a human like the rest of us. But what an extraordinary human being.

This is a brilliantly-executed biography of a female jurist who deserves greater attention from modern students of (American) legal history.

5 STARS

[1] http://www.hcourt.gov.au/assets/publications/speeches/current-justices/bellj/bellj29May2017.pdf.pdf

[2] Except, perhaps, for quite different reasons, the most recent appointee: Justice Brett Kavanaugh.

[3] The author relies extensively on diaries which John O’Connor kept meticulously and contemporaneously throughout his life, and whose insights into Day O’Connor’s private thoughts are truly fascinating. 

[4] Woodward continues to cause controversy, all these years later. His most recent work was “Fear: Trump in the White House”, published last year amidst a flurry of Presidential criticism, delivered in a typical twilight Twitter tirade.

[5] http://www.hcourt.gov.au/assets/publications/speeches/former-justices/gleesoncj/cj_3oct.html