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FA1A - ENGLISH I
PREVIOUS SEMESTER QUESTION PAPER

HIGH COURT OF JUSTICE OF THE IRISH FREE STATE

LYNCH V. FITZGERALD AND OTHERS (1938) I.R. 382

The present prose work is a description of the case Lynch V. Fitzgerald & Others which took place in Ireland’s High Court in 1938. A boy was killed by the detective service agents repressing an attempt to disrupt a cattle sale in Cork. The trial took place in the court of Justice Hanna.

It was described that the Sheriff of Cork seized number of Cattle under a warrant from the Irish Land Commission and attempted to sell them with a force of about 200 Guards with about 12 armed detectives was placed outside the yard, and 40 Guards including 10 ordinary detectives were placed inside the place of sale. The security was there in Marsh’s Yard in Copley Street, Cork due to a threatened demonstration against the sale of cattle.

Only the prospective buyers were there to take part in the sales as it was said that the buyers and their representatives were only allowed in the yard. For some time before the hour fixed for the sale, a large crowd of about 1500 people had collected in Anglesea Street which was the main street into which Copley Street opened. By the time, a lorry filled with men carrying sticks came through the crowd in Anglesea Street, turned into Copley Street. It was driven against the several barriers of the Guards and crashed into the gates of the yard breaking through it.  After a few moments, the crowd outside the yard was held in check with the exception of one or two, who succeeded in entering into the yard. Immediately, the three detectives of the Special Branch of the Civic Guards Moore, Condon, and Rodgers opened fire which killed Lynch, who had followed the lorry to see what was happening.

Against this unlawful event, the father of killed boy filed a case against three detectives of the Special Branch of the Civic Guards Moore, Condon, and Rodgers as the first three defendants and the fourth defendant was Mr. Fitzgerald, the Chief Superintendent of Civic Guards who was in charge of the Civic Guards at Cork and he claimed damages under the Fatal Accidents Act, 1846.

Justice Hanna expressed his views on this case in the trial that there is no case or authority dealing with the position of an uncontrolled body of men in the employment of the State left to use their firearms at their own discretion. He further quoted Case of Arms (1596), ‘a cry of made for weapons to keep the peace’ and in later cases, with instances where the soldiers of the regular Army have fired upon civilians either with or without orders. In addition, he mentioned Curwood’s Hawkins’ Pleas of the Crown in which the regulation of firearms was given. Apart from the above he cited various acts, reports, legal papers with regard to the same.

The justice expressed the three defendants did not follow the instructions issued to the  Civic Guards on the use of firearms, dated November 24^th, 1932, copies of which the Chief Commissioner had sent for the use of the Court. The justice said that, according to law, armed forces could use firearms only against an unlawful or riotous assembly only where such a course was necessary as a last resort to preserve life. But what was done by the defendants was not so and they violated the law. The Justice came to the conclusion that the shot was done not to protect lives of buyers and others and completely was an unjustifiable act and they (the three defendants) were acted as a group with a common unlawful purpose. So, the Justice imposed a damage of 300 Pounds in favor of the Plaintiff under the Fatal Accidents Act, 1846. Further, the Justice ordered for the criminal liability against the three defendants.

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CROSS-EXAMINATION BY CHARLESS RUSSELL OF PIGOTT BEFORE THE PARNELL COMMISSION

Summary

Lord Frederick Cavendish (Chief Secretary of Ireland had taken an oath on May 6, 1882) and Mr. Burke (Under Secretary of Ireland) were murdered in Phoenix Park, Dublin on May 6, 1882. Charles S. Parnell and 65 Irish members of the Parliament were suspected to be involved in the murder. The suspicion arose because of a facsimile letter that was published in the Times that suggested Parnell supported those who carried out the brutal Phoenix Park murders of Lord Frederick Cavendish and Thomas H. Burke in May 1882. The question was that arose in people’s mind was: Was Charles S. Parnell responsible in some way for the murders?

Charles S. Parnell denied the veracity of the letter. His involvement in the murder was first brought to public knowledge by the publication of Charles S. Parnell’s letter, a facsimile one in which the sentence “I cannot refuse to admit that Burke got no more than his deserts”, seemed to ascertain his involvement in the crime. Whether the letter was actually written by Charles S. Parnell, as was claimed by the Times was a matter to be debated upon, as Charles S. Parnell stated in the House of Commons that the letter was a forged one. The Government, much against its wishes eventually relented to appoint a special committee that had three judges to investigate all the charges on Charles S. Parnell as was made in the facsimile letter published by the Times.

Sir Charles Russell an eminent lawyer undertook the defence of Charles S. Parnell. In the process, he cross-examined Mr. Pigott who had sold the damaging letter, supposedly written by Charles S. Parnell to Mr. Houston, the Secretary of Loyal and Patriotic Union, who had in turn, sold it to the Times. Pigott claimed that he had been employed by the Irish Loyal and Patriotic Union to hunt for the documents which might incriminate Charles S. Parnell. So, through his sources he had bought letter from an Irish Republican Organisation in Paris, Clan-na-Gael(a secret society of Irish Fenians founded in Philadelphia in 1881). Since Pigott had the answers to these questions, he had to be cross-examined which proved to be one of the most dramatic, successful and celebrated cross-examination in the history of English Courts. The common people looked forward to the day when Pigott would go into box tell his story about the letter in question published by the Times in facsimile.

The first evidence that Russell established was the spelling of the word hesitancy which was misspelt as ‘hesitency’, in the facsimile published by the Times. The suspicion that Pigott was behind this forgery was ascertained because Pigott in one of his letters to Patrick Egan, a member of the Parliament, had misspelt the word ‘hesitancy‘ as ‘hesitency’

Egan believed that the letter in question had been forged and had conveyed this to Russell. Russell began his cross-examination in a very suave and assertive manner and established among other lies, that Pigott knew when the facsimile letter as part of the series of articles on “Parnellism and Crime”, was to be published by the Times, i.e. on 7th March 1887. When the cross-examination started, Pigott denied having any knowledge about the letter’s publication on the 7th of March 1887.

In the process of gaining evidence to defend Parnell, Russell had managed to gain access to a series of letters written by Pigott, addressed to Archbishop Walsh. These letters were written three days before the 7th of March (that is the on the 4th of March). The letters were accessed by Russell from the Anderton’s Hotel. In these letters, Pigott claimed that he was aware of certain proceedings that were in preparation with the object of destroying the influence of the Parnellite Party in the Parliament. Upon cross- examining Pigott, his first feigned ignorance about the matter but is eventually gave in and acknowledged to have heard something about the publication of the Times articles.

In one of the letters written by Pigott to the Archbishop, Russell read out that Pigott claimed to have evidence to prove the complicity of Parnell and his supporters regarding the murders and outrages in Ireland. Pigott also claimed to have the means to combat and finally defeat the designs made by Parnell and his supporters. However each time when Russell asked Pigott to elaborate or provide evidence on his claims, he was unable to do so.

Instead, Russell had the evidence in the form of the series of letters written by Pigott to the Archbishop which proved to be very crucial in the investigation. When asked, Pigott flip-flopped in agreeing to have written to the Archbishop and at Times not being able to recollect that he had written letters to the Archbishop. Russell was also able to bring out and Court that Pigott, upon having received no reply from the Archbishop on whether his evidence against Parnell would be considered, pleaded with the Archbishop that he had no other motive other than the welfare of the state in mind and was merely doing his duty. He added that, however, if the Archbishop wanted to shield the guilty or decide not to interfere in the matter, or he/Parnell should be allowed the liberty to take up the matter further with other sources. He also pleaded with the Archbishop, (as read by Russell), that his name should not be made known to anyone. He did not want to know about his letters that were addressed to his grace, Archbishop Walsh. He further claimed that he had no prejudice against the Parnellite Party but was doing it out of his sense of duty as he had become acquainted with all the details of the Phoenix Park murder.

Till the first day of the cross-examination, Pigott maintained that he had no knowledge of the facsimile letter that was going to b published in the Times on the 7^th March, 1887. Pigott’s stance was very confusing: at Times he acknowledged knowing answers to questions asked by Russell and at Times denied having any knowledge. What he, however, acknowledged was being privy to something more serious with respect to providing some ‘incriminating evidence’ about the involvement of Parnell and the Irish members of the British Parliament of activities in preparation to overthrow the English rule through lawless and even murderous activities.

Eventually, after having been concerned to having a role in involving Parnell and other 65 Irish members of the Parliament with the Phoenix Park murder and after being unable to explain the authenticity of the facsimile letter published by the Times, Pigott disappeared entirely after two days of cross-questioning. He later sent confession from Paris, admitting to his perjury and gave details of how he had executed it. After the Parnell Commission evaluated the confession and concluded that the so-called damaging letter was indeed a forged one, the Times withdraw the facsimile letter. A warrant was issued for Pigott’s arrest on a charge of perjury. When the Police went to arrest him in a hotel in Madrid, Pigott asked for some time to collect his belongings but after retiring to his room, shot himself dead.

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THE LAW IS A JEALOUS MISTRESS- A POPULAR FALLACY

JOSEPH W PLANCK

About the Author

Joseph W Planck was a member of the Michigan Board of Bar Examiners and was the President of the State Bar of Michigan from 1951 to 1952. He practiced in Lansing ever since he graduated from the Law School. He articulated the merits of an integrated bar system in and was instrumental in a change thereof in Michigan. He stressed on the relationship between law and basic human values. He opined in various platforms his views about Jurisprudence, Legal Science, and Legal Philosophy.

Summary

Joseph W Planck refutes the statement that the Law is a jealous mistress, which was a popular proverb among the Anglo-American law fraternity. He believed that the statement was a libelous one on a great profession like law and was utterly false or a fallacy. He put forward the views of lawyers and litterateurs who were eminent authorities in their respective fields, who agreed to and disagreed to the fundamentals of this statement/proverb.

He believed that the Lady Common Law does not like to lie alone, as believed by a few eminent professionals. Instead he proposed that this venerable ghost be laid to rest. He believed that law cannot be mastered in isolation. He said that the Lady Common Law requires a host of bedfellows. Some of them are decidedly practical. He was driving home the point that ultimately the purpose of law is to attain social justice and therefore, it must be mastered along with other disciplines such as History, Anthropology, Natural Science, social Science, Political Science, Economics, psychology, and the like, which will help a student of law to integrate the philosophy of learning and life with practicing law.

Merely memorizing statues and law reports without paying attention to the subject of Jurisprudence or Literature or Science is to give a poverty stricken meaning to the subject of law. A lawyer must not merely store the precedents of law in his knowledge bank but must possess the width of comprehension, the serenity of a broad overall outlook of life and the catholicity of compassion, which can be attained by gaining an overall knowledge of all aspects by interacting with subject matter experts from all fields like Philosophy, Economics or History to name a few.

In this chapter, he put forwards the thoughts and views expressed by many eminent lawyers and specialists from Juvenal, a powerful Roman poet to Dean Leon Green of North-western University of the US to Sir Frederick Macmillan, a British Publisher, widely respected names in the literary circles and among the fraternity of lawyers. He concluded by saying that it is time for the law fraternity to bury the popular fallacy that ‘Law is a Jealous Mistress’ and an epitaph reading ‘Requiescat in pace’ must be put on the tombstone.

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ON THE ENTIRELY REASONABLE MURDER OF A POLICE CONSTABLE

GEORGE BERNARD SHAW

About the Author

George Bernard Shaw, (born July 26, 1856, Dublin, Ireland—died November 2, 1950, Ayot St. Lawrence, Hertfordshire, England), Irish comic dramatist, literary critic, and socialist propagandist, winner of the Nobel Prize for Literature in 1925.

Summary

George Bernard Shaw was asked to give his opinion on ‘Capital Punishment’ with reference to the murder of the Police Constable Gutteridge, where the popular public perception was that it was callous and brutal murder and therefore the punishment to be given to the perpetrators of the crime was capital punishment. Great Britain at that time was debating for and against capital punishment.

The incident that was in highlight was that Constable Gutteridge was murdered point blank. It appeared that the murderer had a sufficient knowledge of physiology to know as per the prevailing beliefs then about the marvels of science that the picture last focused on the victim’s retina can be photographed in a laboratory and may be used to identify the murderer! This naïve belief was an extension of an existing belief that prevailed in the Age of Faith.

However, Shaw termed this murder as reasonable because he felt that the murderer was an out and out rationalist, who believed in the ‘cause and effect’ theory or the theory of consequences. Further, he argued that it was committed by a person who was a sensitive person to whom the condition of a criminal under punishment was unbearable. It was committed to escape detention and capture. The Police records also showed that a good proportion of criminals were never brought to justice, thus emboldening these perpetrators of commit crime with impunity. When looked rationally, if a robber surrendered she/he would have to spend several years in penal servitude. However, if he shot the victim and killed him, the punishment would be replaced, that is either with the risk of being hanged or if lucky, a chance of escape. This, G.B. Shaw said was a reasonable reason enough for the murderer to shoot Constable Gutteridge.

When the words, ‘Callous and brutal’ were used to describe the murder, Shaw dismissed it, saying that it was a customary English habit to resort to vituperation in order to relieve the strain they faced in life. Further, Shaw interpreted the murder to be business-like and said that the murderer was sensitive and imaginative because only such people could take the risk of being hanged to avoid penal servitude. He added that the murderer had brains to calculate his chances of getting caught.

He also said that the murderer was less vicious that the fictional ‘Bill Sikes’, the sadistic, violent and most barbaric character in Charles Dickens’ “Oliver Twist”. Shaw further said that such murderers usually lose the squeamishness about bloodshed that could possibly make one think of peace before committing murder, but this thinking was similar to the psyche of the millions of men who were involved in a war. A criminal who shot to escape detection was as homicidal as a soldier who shot an enemy in a war, he argued.

Shaw ultimately blamed the justice system calling it ‘brutal and callous’, which was worse than a criminal who forced to commit such crimes in order to be one up on the law. The justice system threatened not only the Police force, but also the people who were at the receiving end of a crime as there were chances that a police may be called whenever such crimes were committed, thus leading to more chances of getting killed in the process.

Shaw called these criminals much more tame than those who may not murder their woman but in a cowardly and spiteful way entrap them into bogus marriages and desert them after spending their spouses’ money.

Shaw felt that there was only one excuse for commuting a death sentence and that is if the criminal in question was like a rabid dog or a tiger. He gave the examples of different interpretations of punishments by law of the same crime being committed in two different countries. The punishment for throwing vitriol in Scotland was death but in England it was not, as vitriol does not cause death but may blind the victim. Shaw called this distinction of punishment in two regions absurd. He pleaded that there should be no vindictiveness nor emotion in this matter and argued that ‘an eye for an eye’ was not the answer to reduce the crime rate in a society.

Shaw begged to differ from the ‘deterrent theory’, which was the official theory that the state followed in keeping a check on crime rates. He objected to this theory on two accounts.

1.      “When detection is uncertain, no severity in punishment can keep people away from committing a serious crime. This was seen in the times when people were hanged in the gallows, where pockets were picked without the fear of being caught even when Police Man was looking on:

2.      The Deterrence Theory that led to the conclusion that somebody must be punished for a crime, no matter who, to deter others from committing similar crimes. So, an innocent may do as well as a guilty, one may just pronounce it to serve the purpose”.

Shaw’s point of argument was that he pleaded with the State to do away with Capital Punishment which he called ‘callous and brutal’, as the State in in its capacity  should take steps to dilute the punishment and must look at reforming the person if the person is capable of being reformed. He felt that after reform, he person would positively contribute to the welfare of the society. He rested the blame on the stringent and unreasonable laws of the State for encouraging brutal and callous crimes.

“If the law is diluted and if there is fear of being watched, a criminal will deter himself from committing a crime. Vindictiveness and emotions should not play any role in meting out punishments. An innocent must not be punished just to set an example”, he pleaded as he had concluded.

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