From the Sun (London), 1 February 1844:
“The Irish State trials were resumed on Tuesday, when Mr Fitzgibbon QC, appearing for Mr Gray, said that the doctrine of conspiracy, as laid down by the Attorney-General, was that it was a combination of two or more persons to do an illegal act, or do a lawful act through unlawful means. He had looked in Coke, and all the old authorities on the subject, without being able to discover any such doctrine. The people met in large numbers, but it was by such means that redress of grievances was always obtained. He referred to the means adopted by the mailed Barons of England when the great charter of England’s liberties was wrested from King John, and to the attitude assumed by the people at the time of the Clare election.
Mr Fitzgibbon QC afterwards commented, in very strong language, on the conduct of the Attorney-General with regard to the prosecutions. He did not object to his doing his duty, but he ought to do so in a manly and straightforward manner, and not state the law incorrectly to obtain the conviction of a brother barrister, who had been an ornament to his profession for many years. This was a momentous case – momentous to the Attorney-General and the party with which he was connected. It would afford that party a scourge to repress the people from giving expression to their feelings and opinions, but he trusted the Court and jury would interpose from obtaining that power. The juries of England had always saved the liberties of the people when they were sought to be crushed by charges like the present.
During the progress of Mr Fitzgibbon’s speech, the Court and Jury retired as usual about two o’clock, for refreshment. During their absence the Attorney-General was observed to convey a note to Mr Fitzgibbon, which he had been writing in court. On the return of their Lordships, Mr Fitzgibbon applied to them to ascertain whether he had, during the progress of his address, permitted himself to make use of any improper expressions personally reflecting on the conduct of the Attorney-General with regard to the trials. He then called on the Attorney General to hand up to their Lordship a note which the Attorney-General had sent over to him.
The Attorney-General said that if the Learned Counsel had any motion to make on the subject he had better state it upon affidavit.
Mr Fitzgibbon (vehemently) – Never. And if the Attorney-General does not hand up the note to the Court I will state the substance of it.
Mr Fitzgibbon then stated that the Attorney-General had sent him a note, calling on him to retract certain expressions which he was represented to have used in the course of his address, and which the Attorney-General considered as personally reflecting on himself, and calling on him, if he did not retract them, to name a friend.
This statement caused the most marked sensation, surprise being the most prominent feature of it, throughout the Court.
Attorney General of Ireland – and challenger to Mr FitzGibbon QC – Thomas Berry ‘Alphabet’ Cusack-Smith
The Attorney-General said that Mr Fitzgibbon had stated in his address to the Court, that he was influenced by private motives in the conduct of the present prosecution – that he was guided in the conduct of it by his feelings as to what effect success or failure might have upon his political advancement, and if he withdrew the reflection thus cast upon his conduct, he would be satisfied.
Mr Fitzgibbon said the Attorney General came with pistol in hand, and he could not help telling him that he would not thus draw an apology from him
Mr Moore suggested that as all must regret that such an occurrence had taken place, an opportunity should be given to both parties to become reconciled with each other by mutual explanation.
The Chief Justice thanked Mr Moore for his suggestion, and stated that the Court felt itself in a very embarrassing situation; and that the Attorney-General was the last man that ought to have allowed himself to be betrayed into any such expression as that now declared to the Court.
The Attorney-General said that now he would not impose any condition respecting the withdrawal of the expressions which had hurt him.
Mr Fitzgibbon declared that he had never meant to impute anything like improper motives to the Attorney-General in the conduct of the trials, but that he felt he did not exceed his duty in canvassing his conduct as a public man.
After some further observations from the mutual friends of both learned gentlemen, Mr Fitzgibbon resumed his address to the Court, which rose at a quarter to five.
There is one circumstance that rendered the sending the challenge at such a time and in such a manner especially blameable. The lady of Mr Fitzgibbon and her child were sitting at the table nearly by the side of Mr Fitzgibbon.”
Just another day in the 1844 State trial of Daniel O’Connell and Mr FitzGibbon’s client John Gray in the Court of Queen’s Bench in Dublin’s Four Courts. Later that month both men were condemned to nine months’ imprisonment but in September 1844 their sentences were remitted on appeal.
Media opinion on the incident above tended to be polarised – the Morning Herald came out strongly in favour of the Attorney-General, Thomas Berry Cusack-Smith, describing him as a gentleman by birth, education and habits and a man of a delicate and a high spirit who, in response to a gross insult by personal allusion, took that course which many gentlemen would condemn in their moments of reflection but which most would imitate if subjected to similar provocation.
The Morning Advertiser, on the other hand, was firmly on the side of Mr FitzGibbon:
“Mr Smith has done and said many extraordinary things in the course of these proceedings; but his exhibition of today outdoes all his former outdoings… there is one opinion here as to the worse than indecency – the absolute criminality – of her Majesty’s Attorney-General – a magistrate ex officio of every county in Ireland – sending a hostile message to a brother barrister during the sittings.”
Probably most common-sense people shared the view of the Evening Mail:
“Mr Smith remains, no doubt, an excellent advocate in a real action or ordinary prosecution for burglary; but preserve the public from such an attorney general.”
Meanwhile, like every advocate with the wind in his sails, Mr FitzGibbon had no intention of bringing the show to an end any time soon, profusely apologising for having, “as an ardent man in a high degree – too much so, I must confess, but I cannot help it any more than I can help sleeping… unintentionally pressed upon a temper which could not be helped by the Attorney- General more than the air he breathed…”
A temper which was probably not improved by reading the above!
All court rows die down in time, and this one did too, with both parties involved subsequently being appointed to positions of high eminence – Master in Chancery for FitzGibbon and the Master of the Rolls in Ireland for Smith – no harm done – though some did say that Smith might have attained an even higher judicial office had it not been for that nearly-fatal afternoon in February 1844.
The little boy in court to hear his father challenged went on to become Solicitor-General and Lord Justice of Appeal in Ireland.
What a day out in what is now Court No 1, Four Courts, for him – and for Mrs FitzGibbon!