Hugh Kennedy: How son of a Donegal man became Ireland’s first Chief Justice 

The Supreme Court sat in Donegal for the first time this week.

Significant legal history was made at Letterkenny Courthouse as the panel of five judges took their places in courtroom 1, including the Chief Justice, Mr Justice Donal O'Donnell, who presided.

Over 100 years ago, the son of a Donegal man became the first Chief Justice of the Irish Free State.

Hugh Kennedy was just 44 years of age - he remains the youngest ever to hold the position - when he was appointed in June 1924, two years after becoming the first Attorney General in the provisional government of the Irish Free State.

Kennedy reigned as Chief Justice between 1924 and 1936, during which he was also a judge of the Supreme Court.

Kennedy’s father, Hugh Boyle Kennedy, was a fluent Irish speaker born in Kilclooney in the 1840s. A former member of the Society of Jesus, he later became a surgeon at the Mater Hospital and personally educated his son at home. 

The younger Kennedy would go on to leave a lasting mark on Ireland’s legal system.

He was the editor of St Stephen’s, the magazine of University College (before it officially became University College Dublin), and among those whose works were published were James Joyce.

In Ruadhán Mac Cormaic’s book, The Supreme Court, published in 2017, Kennedy is said to have been Joyce’s “bête noire”. Kennedy beat Joyce in an election for auditor of the Literary and Historical Society at the college and it was believed that Kennedy was actually the inspiration for the character Hugh ‘Blazes’ Boylan in Ulysses.

“A small portly man whose high-pitched voice and rosy cheeks made him an easy target for press cartoonists,” is how Mac Cormaic depicts Kennedy.

The Free State Constitution was drafted by a committee that featured Kennedy, who was a close ally of William T Cosgrave, the first President of the Executive Council of the Free State, a role he filled from 1922 to 1932.

In March 1923, Kennedy was appointed as the first Attorney General of the Free State and he drafted the homages of Cosgrave to both Michael Collins and Arthur Griffith.

When Kennedy stood in the 1923 election, he did so for Cumann na nGaedheal in Dublin South, but gave initial consideration to standing in Donegal. Not long after he was elected, his house at Waterloo Place was firebombed. His wife, Clare, two friends and a maid were given a two-minute warning and escaped without injury. 

His reign as a TD in Dublin South was short-lived, however, as he had to vacate his seat when he took the role of Chief Justice.

Kennedy was a strong advocate for change.

He sought to replace the old order with a new courts system that was independent of political, writing at one stage: “In so far as the existing system is based upon English history we hope to cut it out and start afresh.”

He campaigned too for a change of the clothing and horsehair wigs were of particular concern, calling them “objectionable, stupid, ugly and cause headaches to people with sensitive heads”.

Kennedy wanted judges to be addressed as “a Bhreithimh” but was overruled on this and the clothing proposal, later remarking that colleagues clung to their wigs “with the greatest intensity”.

In 1933, he wrote to the Supreme Court registrar about the “arctic conditions” imposed by the Board of Works: “We shall eventually have to ask to be supplied with Lap-landers’ suits and a supply of whale oil for internal consumption to keep the fires burning and our impoverished blood brought to a proper warmth”

Kennedy addressed the American Bar Association in 1928 and was said to be someone fond of media attention, yet he often bemoaned that journalists didn’t do justice to his judgements.

Chief Justice Kennedy dissented from the majority opinion in a case, The State (Ryan) v Lennon in 1935.

He argued that the Oireachtas overstepped its constitutional authority by extending its own power to amend the Constitution without a referendum and contended that such fundamental changes required direct approval from the people. 

Kennedy emphasised that the judiciary's role was to safeguard the Constitution and protect citizens' liberties from unlawful encroachments by the legislative or executive branches. Despite his concerns, the majority upheld the amendments, allowing the Oireachtas to continue amending the Constitution without referenda during the extended period.​

In another case, Moore v. Attorney General for the Irish Free State, also in 1935, Chief Justice Kennedy delivered a notably erudite judgement when he dismissed a claim to exclusive fishing rights in tidal waters of the River Erne in Donegal. 

The plaintiffs argued their entitlement stemmed from a 1639 royal grant and an 1869 conveyance from the Landed Estates Court. 

Kennedy rejected the claim, emphasising that English law - under which private fisheries could be granted - had not extended to Donegal before Henry II’s death. 

Therefore, under Brehon law at that time, such private rights in tidal waters were unknown. The 1639 grant could not override public rights established by Magna Charta, and the Landed Estates Court conveyance merely passed on existing rights, not creating new ones. 

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Kennedy concluded that the plaintiffs failed to establish an exclusive legal right to the fishery, affirming the principle that tidal waters are generally subject to public, not private, rights. 

The case upheld the public interest in natural resources.

Hugh Kennedy died in December 1936 and he is interred at Glasnevin Cemetery. 

In his will, he left snuff boxes to various friends while his court papers are still held by UCD.