Casement

“ Roger Casement from his earliest days was before everything else a lover of Ireland. In his school [Pg xi] days he begged from the aunt, with whom he spent his holidays, for possession of an attic room which he turned into a little study, and the writer remembers the walls papered with cartoons cut out of the Weekly Freeman, showing the various Irish Nationalists who had suffered imprisonment at English hands for the sake of their belief in Ireland a Nation. ”

“ Once, years before his retirement, he was joking with a friend about some wonderful plan that was conceived in a mood of playfulness, and the carrying out of which would have involved considerable danger. The friend pointed out that the disadvantage of it all lay in the fact that they might accidentally kill someone, and "then," she added, "we'd be hanged." Roger Casement was silent for a moment, his deepset eyes fixed on an invisible goal, and then he said very quietly, "I think I shall be hanged for Ireland." ”

“ He was wholly indifferent to money for its own sake. His scrupulous integrity as to public funds was illustrated by the following:—When he was called to give evidence before a certain commission, as he was waiting his turn with others who had to travel to London for the same purpose, one of the secretaries remarked to a witness, "Do you see that man?" (pointing to Roger Casement) , "Well, all the rest have charged first-class railway fares, but he has put down third."
He wrote much on the Irish question. ”

“ Whatever action we take is a precedent.
I cannot state too strongly my belief that if the courts are to retain their independence, they must decide cases taken on the merits. A confession of error by a litigant is, of course, an important factor to take into account in studying a record. [4] It may disclose an intervening decision on a question of law that undermines the lower court's conclusion; it may disclose perjury by an important witness or newly discovered evidence; it may disclose other factors which weaken the conclusion of the lower court. ”

“ I hold in my hand a very acute and eloquent address prepared for me by one of the able and zealous gentlemen who appears to-day as my counsel, and which, but for the iniquitous law which prohibits the advocate of a presumed felon, but possibly quite innocent person, from addressing the jury, upon whose verdict his client's fate depends, would no doubt have formed the subject-matter of an appeal to you not to yield credence to the apparently irrefragable testimony arrayed against me. ”

“ In the maxim, 'Ad quaestionem juris respondent judices, ad quaestionem facti respondent juratores,' the word 'quaestio' denotes an issue joined by the pleadings of the parties, or otherwise stated on the record, for decision by the appropriate tribunal. Issues of law, so joined or stated, are to be decided by the judge; issues of fact, by the jury. If the accused demurs to the indictment, an issue of law only is presented, which must be decided and judgment rendered thereon by the court, and by the court alone. ”

“ Thus then it is: you can be allowed counsel to examine your own witnesses, and cross-examine the witnesses for the crown, and speak to points of law, to be started by yourself,—but no further.
He then asked her what gentleman there present he should assign to her for counsel.
Her reply to this inquiry took the whole court by surprise, and made her solicitor, Houseman, very miserable. "None, my Lord," said she. "Half-justice is injustice; and I will lend it no color. I will not set able men to fight for me with their hands tied, against men as able whose hands be free. ”

“ While the testimony of numerous experts called by the district attorney and the defendant’s counsel is irreconcilable, that given by certain experts who personally examined the defendant during the trial and since the appointment of the commission, and who of all the alienists examined had greatest opportunity of observing, disclosed the fact that no indication of insanity at the present could be found in the speech, conduct, or physical condition of the defendant. ”

“ Defendant requests your Honor to charge the jury that the commission of the crime charged in the indictment [Pg 150] by a child of tender years from its very nature raises the question of abnormality of the defendant’s mind and in the absence of clear, strong, and convincing evidence on the part of the commonwealth, it must conclude that the defendant’s mental condition was such that he did not understand the wrongfulness of his act or understand the nature and quality of his act. ”

“ It is our deep and settled conviction, confirmed by a re-examination of the authorities under the responsibility of taking part in the consideration and decision of the capital case now before the court, that the jury, upon the general issue of guilty or not guilty in a criminal case, have the right, as well as the power, to decide, according to their own judgment and consciences, all questions, whether of law or of fact, involved in that issue. ”

“ Why did I not insist that he have some able counsel! To think that I—his closest friend, did not do for him what some hired [Pg 15] advocate could have done! His blood is on my hands—the hands he grasped as the jurors filed from the Court Room—and I did not hide my head in shame.
How gloomy this place is. I shudder at its every shadow, and the very air is poison. They’re lighting more gas jets now. That’s better. ”

“ THE JUDGE. [Bending a little towards the jury, and speaking in a business-like voice] Gentlemen, you have heard the evidence, and the comments on it. My only business is to make clear to you the issues you have to try. The facts are admitted, so far as the alteration of this cheque and counterfoil by the prisoner. The defence set up is that he was not in a responsible condition when he committed the crime. Well, you have heard the prisoner's story, and the evidence of the other witnesses—so far as it bears on the point of insanity. ”

“ Where a jury is waived, as therein provided, and the issues of fact are submitted to the court, the finding of the court may be either general or special, as in cases where an issue of fact is tried by a jury; but where the finding is general the parties are concluded by the determination of the court, except in cases where exceptions are taken to the rulings of the court in the progress of the trial. ”

“ But the learned counsel for the defendant take a somewhat loftier flight still. They are more concerned, they assure us, for the law itself, than even for their client. Your decision in this case, they say, will stand as a precedent. Gentlemen, we hope it will. We hope it will be a precedent both of candor and intelligence, of fairness and of firmness; a precedent of good sense and honest purpose pursuing their investigation discreetly, rejecting loose generalities, exploring all the circumstances, weighing each, in search of truth, and embracing and declaring the truth when found. ”

“ Whatever the line of defence adopted by counsel at the trial of a prisoner, we are of opinion that it is for the judge to put such questions as appear to him properly to arise upon the evidence, even though counsel may not have raised some question himself. ”

“ Where the involuntariness of a confession is conclusively demonstrated at any stage of a trial, the defendant is deprived of due process by entry of judgment of conviction without exclusion of the confession. ”

“ How would you feel yourselves as Englishmen if that man was to be submitted to trial by jury in a land inflamed against him and believing him to be a criminal, when his only crime was that he had cared for England more than for Ireland? ”

“ The attitude of the case is very like that of one in which a trial court refers all things to a master, who takes the testimony and reports it, with a general finding for the plaintiff or defendant, upon which report the trial court states its views of the facts and the law and enters its decree. ”

“ Due process, in other words, requires that he be present with counsel, have an opportunity to be heard, be confronted with witnesses against him, have the right to cross-examine, and to offer evidence of his own. ”

“ Subtle, having handed up two or three copies of the pedigree which he held in his hand to the judge, the jury, and his opponents, pointed out with distinctness and precision every link in the chain of evidence which he intended to lay before the jury; and having done this—having presented as few salient points of attack to his opponent as he possibly could—he sat down, professing his entire ignorance of what case could be set up in answer to that which he had opened. ”

“ If we correctly apprehend the position of the case as stated in the record in the suit in which judgment was rendered,-and which was handed to the court at the close of the argument, with the consent of both sides that it should be considered by us, there can be no difficulty in this case in reaching a correct conclusion. ”

“ But this has left the girl in this position, that she is charged with a crime in a complaint issued during the inquest, and I understand that inquest is still open. Your Honor sits here to hear this case, which is returnable before you, when you have already been sitting on the case in another capacity. We do not know what you have heard on this case in the inquest or of the purport of the testimony there. By all the laws of human nature you cannot help being prejudiced from the character of the evidence which has been submitted to you. ”

“ Mr. H. No, my lord. (Aside: Not if I know it, considering the quality of the evidence. Not that it much matters; the Judge is going to get a conviction; the Jury will do as he tells them—always do.) (To the Court) : My lord and gentlemen of the Jury, that’s my case.
J. N. Well, my good woman, what have you to say to this?
Mary Pinch. Say to it! What’s the use of saying anything to it? I’d do to it, if I could.
J. N. Woman! what do you mean? Violence will not do here. Have you witnesses to call?
M. P. Witnesses! how can I call witnesses to swear that I didn’t steal the loaves? ”

“ WHEN inquiry is made about the choice of a prosecutor, and judgment is rendered on the question to which of two or more persons the prosecution of a defendant, or a share in the prosecution, is to be entrusted, this process and examination by jurors is called divinatio. ”

“ We had one chair, and Usher took it away "as a lady wanted it in Court." Lady no doubt a spectator—did she hunt in her pocket for half-a-crown? Anyhow, after two days in the passage, I have just given my evidence in Court, with fearful cold on my lungs, owing to the draught. Very hoarse. Ordered by Judge, sternly, to "speak up." Conscious that I looked a wretched object. Jury regarded me with evident suspicion. Severely cross-examined. Mentioned to Judge about my windows being smashed, &c.; could I receive anything for it? "Oh, dear no," replied the Judge; "we never reward Witnesses." ”

“ The concept of due process would void a trial in which, by threats or promises in the presence of court and jury, a defendant was induced to testify against himself. The case can stand no better if, by resort to the same means, the defendant is induced to confess and his confession is given in evidence. ”

“ There is for the whole Republic a tribunal of cassation, which passes upon the appeals in cassation against the judgments rendered in the last resort by the tribunals, upon applications for the removal from one tribunal to another on account of legitimate suspicion or public security, and upon complaints of prejudice against a whole tribunal. ”

“ A suit in this Court is become proverbial for something interminable; and there is a very diverting caricature, which bears the inscription, ‘A Chancery Suit.’ At first a young man handsomely dressed, and in high blooming health, fills the hat of a starved skeleton of a lawyer with guineas, by way of retaining fee. A long, long procession of men and things follows; and at last we see the young man as a ragged broken-down beggar, asking alms of the lawyer, now grown fat as a tun, which the latter scornfully refuses. ”

“ Those attempted to be raised refer to the evidence, as embodied in the record, but which, in a trial of the facts before the court, a jury being waived, we do not look into. We look into them only when found by the court. ”

“ This presented a question of law which is reviewable-just as a motion by the plaintiff at the close of a trial without the intervention of a jury, for a declaration that he is entitled to judgment, presents a question of law which is reviewable by the appellate court. ”

“ It is settled that a trial court can, in its discretion, permit, upon direct examination, a leading question to be asked, when the counsel conducting the examination is surprised by the statements of the witness. ”

“ During the course of the trial the court held that there was no 'room for the similitude doctrine,' and that there was only a single question for the jury,-'whether they are paving tiles or not,'-and plaintiff excepted. ”

“ So, however irrelevant the statement of a witness may be, the merchant juryman will use it to explain Saldo-Conti, the carpenter juryman to explain carpentry, the agriculturist to notice the farming of cattle, and then having set the problem in his own field construct the most daring analogies, for use in determining the guilt of the accused. And we lawyers are no better. The more difficult and newer a case is the more are we inclined to seek analogies. ”

“ One was, that where a person met his death from the hand of another person, that other person was bound, either by direct evidence or out of the circumstances of the case as they appeared in evidence before the jury, to mitigate or reduce the charge to the lower or minor class of offence. But then some circumstance of alleviation, mitigation, excuse, or justification must be brought before the court and jury, or be derivable by fair inference{438} from the evidence. ”