The Gazette 1976

GAZETTE

AUGUST 1976

At the meeting Tinelly having made frequent inter- ruptions, called out 'liar' when a vote of thanks was being passed, and having been suspended from the Committee by unanimous motion, was called on by the Chairman to quit the Council Chamber and refused. He was thereupon removed by the three appellants. It was contended on their behalf that their action in ejecting Tinelly was justified because:— (a) he was behaving in an abusive and violent manner and refused to leave the Council Chamber when requested to do so, so that it was necessary to remove him to maintain order in the meeting, and (b) in any event, the appellants acted in accordance with the rules of the Standing Orders and if there- under Marshall was entitled to order Tinelly to be removed, he was entitled to effect the removal Continued from p. 130 attention; it must have been chosen of set purpose, because the grave subject-matter demanded that Ire- land to-day should define her position in unequivocal terms. Thus, for religion, for marriage, for the family and the children, we have laid our own foundations. Much of the resultant polity is both remote from British precedent and alien to the English way of life, and, when the powerful torch of transmarine legal authority is flashed across our path to show us the way we should go, that disconformitv may point decisively another way." "The cardinal position ascribed to the family by our fundamental law is profoundly significant; the home is the pivot of our plan of life. The confused philosophy of law bequeathed to us by the nineteenth century is superseded by articles which exalt the family by pro- claiming and adopting in the text of the Constitution it- self the Christian conception of the place of the family in society and in the State; hence an ante-nuptial agree- ment, made to be effective within the ambit of the parental sphere and to reinforce in its vital religious role that indispensable moral institution, that funda- mental unit of society, in a State which honours and respects religion, has a claim to the most serious con- sideration in our Courts." Despite the praise that he won as an advocate, he was unfortunate in the sphere of politics. For as a result of his resignation from the Provisional Government, he was subjected to much criticism; and in the bitterness engendered by the fighting in the Civil War the reasons for his resignation carried little weight. Unhappily, part of the political obloquy was carried over into the legal world and echoes of the old controversies which still linger on affected to a great extent the estimation in which he was held as a jurist. It was alleged that he was pedantic, impractical, and inclined to change well settled law too much. This criticism must be taken with a grain of salt; as, in a large measure, it was prompted by the earlier political antagonism stemming from the Civil War. As a Judge, he was vulnerable to imputa- tions of that kind because it was his duty to insist on compliance with the letter of the law; at the same time, there was a considerable area of Irish jurisprudence which needed bringing up to date, and the concomitant changes inevitably were not always popular with every- one.

himself with the help of the other appellants. On behalf of Tinelly it was contended that the appellants had assaulted him without justification in fact or in law. The Justices held that the appellants were not entitled personally to eject Tinelly and were consequently guilty of assault. Lord Hewart, C.J. said it was quite clear that the appeals must be allowed. When Marshall, acting in pursuance of the Resolution carried by the Committee, ordered Tinelly to with- draw, and Tinelly had refused to withdraw, the latter became a mere trespasser. In these circumstances Marshall and the other appellants were entitled to do what they had done, and it was found as a fact that what they had done was done as gently as the cir- cumstances permitted. The appeal was allowed, Humphreys and Du Parcq, JJ. agreed. Part II will be published in the September 1976 Gazette.

With conviction it can be claimed that though it may be too early yet to pronounce a definitive assess- ment of the merits of Mr. Justice George Gavan Duffy as an advocate and as a Judge, there is ample evidence that he was an unusually skilful, and persuasive advocate; and one of the most courteous, scholarly, high minded and perceptive jurists who sat on the Irish bench. Moreover, in years to come when political prejudice has fully died out, his judgements will be given the respect they deserve, and will then form a noble and imperishable memorial to his attainments.

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