on a study of facts and theories of which the parent knows nothing.

Discretion has a wider and more significant meaning than the mere licence of action it is said to imply. It includes the exercise of judgment, and is a responsibility deliberately cast upon those capable of exercising judgment, in the knowledge that that responsibility will not be wrongly exercised. There can be no discretion for those incapable of judgment, for the vicious or ignorant. Parliament recognised this in 1868 when it divested the parent of the right to neglect to provide medical aid for his child, of the right to do wrong; and the principle is recognised throughout modern life, where in all departments there are found those with special knowledge. The absurdity of the opposite view is apparent if a moment's consideration is given to the chaos which would result from the employment, say on railways, of men ignorant of the use and working of engines and signals, or in any phase of life where special knowledge is necessary, of men who have not that knowledge. Yet it is still claimed that in a matter of such supreme importance as the health of a little child, incapable of deciding for itself, and in spite of an Act of Parliament, an ignorant parent's shall still be the decisive voice, and medical knowledge stand by unheard.

Readers will judge from what has been written on both sides whether the views of Mr. Phillimore are worthy of attention when he says "attempts by a public body to reintroduce legal fictions and to use the Criminal law against persons who are in no sense criminals can only be regarded as a tyrannical action."

Meanwhile, through the action of those who, by serving notice on the authority at the hospital where the child was placed for operation, successfully prevented the operation being performed when the child was in the legal custody of the N.S.P.C.C. under the order of the justices, the child

still remains unoperated on-practically speechless-without the normal power of expressing itself.

The justification now offered for that action will not stand the test of reasonable investigation, whilst the legal claim it has been sought to establish is apparently due to a confusion. of statutes and a misunderstanding of their interpretation. REGINALD PROUDFOOT.

IN

V. DANIEL O'CONNELL AS AN ADVOCATE. N discussing the question as to who was the finest advocate in the annals of our law, different answers are given by different critics. Some would say Lord Erskine. Others would say Sir James Scarlett. Others again speak with enthusiasm of other names. The present writer is not sure, however, that a greater advocate than any that might be named in England cannot be found across the Channel. The career of Daniel O'Connell at the Bar was as remarkable as that of any English advocate. His adoption of a purely political rôle in later life, and the prominent position which he attained as an agitator and a demagogue overshadowed his forensic achievements. But he was none the less an advocate of supreme ability, and, if he had been a Protestant and in England, he would undoubtedly have attained the highest distinction. It is interesting to remember that, in spite of his renown as a public man, the Irish peasantry always loved better than all his titles the name of "the Counsellor."

O'Connell was, of course, a Roman Catholic, and in his early days the Bar was closed to members of his communion by the Penal laws. It was not until 1793 that an Act of Parliament was passed giving them the right to practise as barristers. In 1794 O'Connell, who was then about nineteen years of age, took advantage of the new statute and went to

UNIV. OF HIGH. LAW LIBRARY.

London to keep his terms in Lincoln's Inn. In London he
lodged first in a court on the north side of Coventry Street
and afterwards at Chiswick, and in both places he devoted
himself to the assiduous study of law and jurisprudence.
Nor did he neglect the acquisition of other branches of know-
ledge. In his diary under date the 3rd December, 1796, for
example, he records, "I read this day 130 pages of Gibbon.
I read, and with attention, the first chapter of Smith's
Wealth of Nations." In May, 1798, he was called to the
Bar, and faced the world, as one of his biographers says,
with a powerful frame and constitution, a stout, hopeful
heart, and, above all, a vigorous, domineering brain, full
of all the subtleties and resources of an acute lawyer, and
all the commanding energy of a consummate popular leader.
O'Connell joined the Munster Circuit, which included the
counties of Cork, Kerry, Limerick and Clare, where his
family connexion was strong. His success at the Bar was
remarkable from the first. An interesting indication of his
progress is afforded by his fee boɔk. In 1798, the year in
which he was called to the Bar, he got three briefs, and with
each a fee of £1: 2s. 9d., the sum which represented the
lawyer's guinea fee in Ireland until the Irish currency was
assimilated with that of England in 1826. In 1799, his
second year, he made £60. In 1800, he made £420. There
was a fall in his earnings in 1801, his third year at the Bar,
his total fees being £367; but in 1802, the year in which he
married, they rose to £522. Thenceforward his income in-
creased from year to year.
When he was but thirty-two
years of age, it was £2,598. It is recorded that in the
autumn of 1813 there were twenty-six cases at the Limerick
Assizes, and he was briefed in every one of them. A few
years later his annual income reached £8,000, and remained
at that figure even during the years in which he gave a large
share of his time to politics. In his last year at the Bar he
made £9,000, although he lost one term.

For a considerable time after his call to the Bar, O'Connell devoted himself almost exclusively to a diligent and laborious pursuit of professional reputation. Beyond a very occasional appearance in the political world, he took in his earlier years practically no part or action in public affairs. The difficulties which hampered him as a Catholic only roused him to more strenuous exertion in his profession. Although the Bar had been thrown open to men of his communion in 1793, it was not till 1829 that Catholics were eligible for the position of King's Counsel. O'Connell was thus deprived of the opportunities which a leader has of displaying his eloquence and showing his ability in important cases. But undiscouraged by his inferior position as a Catholic, he made a steady and continuous advance. His political opponents as well as his friends testified to his abilities as an advocate. Creevy, recording a conversation with Lord Chief Justice Bushe about O'Connell, says, "Bushe told me that he (O'Connell) was at the head of the Bar, and deservedly so, and that if he (the Chief Justice) had a suit at law, he would certainly employ him." A similar story is told of Sir Robert Peel. In 1803, in a fashionable drawing-room in London, the talk turned on lawyers and politicians. Someone contemptuously described O'Connell as a "low broguing Irish fellow." Sir Robert Peel, who was present, and was asked his opinion by Lord Westmoreland, replied, "If I wanted an efficient and eloquent advocate, I would readily give up all those of whom we have been speaking, provided I had on my side this same broguing Irish fellow."

To describe the legal or political career of O'Connell is not the intention of the present writer. It is sufficient to say that about nine years after the Union, O'Connell began to take a leading part in public affairs, and came so quickly to the front that by the close of 1810 he was the recognised

1 Creevy Papers, Vol. II, p. 183.

leader of the Irish Catholics. In the end, the exigencies of his political life compelled him to abandon his legal pursuits, and he became an agitator and politician pure and simple. It may be said, however, that his Nationalist principles did not prevent him from being willing to accept legal office on more than one occasion. When Plunket was appointed Lord Chancellor of Ireland, his elevation made a vacancy in the Court of Common Pleas. O'Connell was eager to fill the post of Chief Justice, but he was passed over for another. In 1837 he was very nearly appointed to the office of Attorney-General. Meeting two friends one day at the corner of Downing Street, he said, "Congratulate me, I am Attorney-General for Ireland. I have just been with Lord Melbourne, and have determined to accept the office. But nothing must be said at present." The king, however, heard of the appointment and forced Melbourne to recall his offer. In the year following (1838) the post of Master of the Rolls was offered to O'Connell, but he refused to accept it. And so in the end O'Connell never obtained that rank in the legal world that his great talents might well have justified.

At the Bar O'Connell was pre-eminently the counsel of the man in the dock. To the end he was perhaps greatest as a criminal advocate. But he was not, like many criminal advocates, ignorant and inefficient when dealing with other branches of the law. His learning in all departments of his profession was unquestionable and profound. He was a nisi prius lawyer of the greatest ability. In intricate actions about wills and disputed properties and contested successions he could be as thorough and patient as the dullest counsel in the Four Courts. He would sedulously read up the statutes and decisions involved in his case, and come into Court thoroughly equipped and prepared to argue the most abstruse questions as coldly and astutely as any of his great legal contemporaries. His nisi prius