Personal note: Michael Comyn was my Grandfather but James Comyn (“JJ”) was my mother’s first cousin and as they say in Ireland my cousin once removed.  I know JJ if he was still alive would encourage me to record this, even though the written piece must be lost to history that is apart from JJ’s book.

Chapter XXIII

Background:

‘It was de Valera who offered my uncle the circuit court judgeship and I believe at first he refused, saying, “You had higher positions in your gift and passed me over”…principally on the wise advice of his wife he accepted’.

“After his years on the bench, and with his long experience of the bar and the law, my uncle had certain reflections on the judicial office which may be of interest.  I will now give them in his own words”

Judge Michael Comyn (1872-1952) reflects:-

Governments should regard the appointment of Judges as a supremely important function.  A Judge has great power – not general and diffused like the power of a Government but intimate and personal, directly affecting the lives and fortunes of individuals.  Some Judges can be very bad, the two worst defects being an itch to exercise power on all occasions and the desire to be humorous.  It s not easy to foretell whether a man will make a good Judge but I have seen many cases where it was obvious that a man would be a bad Judge, and he was.  A man who is not a good lawyer with a sound knowledge of the law should not be made a Judge, because it is the law of the land which the Judge has to administer, not what he thinks the law should be.  In civil cases he usually has little discretion but in criminal cases quite a lot.

The lawyers practising on my circuit were careful and competent men.  I tried to be always courteous to them and I particularly tried to be especially understanding of and kind to young men.  A Judge has much to do with the training and conduct of the professional men who appear before him and should never forget that he has a responsibility to them and for them.

Laws should be made and administered so as to suit the particular people concerned.  Legislation which in England might be fitting might neither suit nor fit Ireland.  Some laws are of course common to all civilized communities, such as the law about stealing.  So far as we are concerned we started with the simple commandment “Thou shalt not steal” – a classic example of simple, easily-understood legislation – but the complexities of our society have necessitated elaborating it.

A Judge’s greatest responsibility arises in dealing with crime.  He must be fair to everyone and it must be obvious to all that he is being so.  Apparent unfairness to a prisoner from the bench will often lead a jury to acquit a clearly guilty man.  In passing sentence the Judge should guard particularly against any feeling of anger or resentment.  Many times in the hearing of a bad, or an ill-conducted case a Judge may feel such emotions.  If they predominate at the end of the trial he is in no fit state to pass sentence and should put the prisoner back for a time.  Whenever I felt excessive emotion I used to write down the sentence which occurred to me and then postpone the sentence until the following morning.  In many cases the sentence passed then was less and in no case was it heavier.  Whatever philanthropists and reformers may say there must be an element of pure punishment or retaliation in a sentence, but the sentence must be measured – yes measured – by a Judge whose mind is perfectly level.  Then I think there should be a little abatement for the sake of mercy.  Mercy*, and charity, are important and can sometimes be extended even to those who did not show it themselves.

I am against very long sentences if they can possibly be avoided.  A prisoner suffers every day of a short sentence, because he is counting the hours until he is free again.  If he gets a very long sentence he simply surrenders to his fate and succumbs to hopelessness.  It also creates problems in respect of his family.

I never favoured sending young offenders to institutions unless I had absolutely no option.  An institution can be a sort of finishing school for delinquents.  Those who passed the common entrance of crime go on to take degrees.  Wild lads may be hard to control and their misdeeds may look formidable in statistics but there were juvenile delinquents before there were any statistics, and it should not be forgotten that the world is not exclusively for good people.  On one of my visits to a reformatory I saw about 200 boys and the general impression I got was of vigour, independence and ardour.  I felt then, and always feel, that one of our greatest tasks must be to see those qualities utilized in the community and not segregated from it.

In regard to criminal statistics I always think it desirable to have in mind factors which cannot be reflected in statistics – namely such factors as an improvement in the efficiency of detection (which can make comparisons dangerous) and varying fashions in entertainment, use of leisure and youthful activity in general.  Also as any Judge can testify, some types of crime (for example sex crimes) can prove unaccountably more prevalent in particular areas.

I have also found that many things which do not amount to crimes within our law are often worse in their effect than actual crimes – for example deceit, sharp practice and unfair dealing.  In that connection it is indeed a sobering thought that there is frequently a very narrow line between being a thief and being a “good business man”.  Taking sixpence from a man’s pocket is theft but taking advantage of him in a deal to the tune of several hundred pounds will often carry praise and not blame in the eyes of the law and the community.  A Judge’s prime task is to enforce fairness and reasonableness wherever and whenever he can.

It is easy for a Judge to be impatient with what he may regard as the stupid ways and views of others, but he must learn to respect people’s beliefs, habits, mannerisms and even superstitions.  Particularly is this so in rural districts and sea-coast areas.

Simplicity and clarity, brevity and the minimum of interruptions – these should be the key-notes of the judicial office but, my goodness, how difficult they are to live up too.  Temptation is constant, there is ample opportunity or often considerable inclination.  Some Judges I have known seemed to regard themselves as heaven-sent preachers and were always ready to give long sermons, but a captive audience in court is rarely receptive.

What is most needed by a Judge is a clear, logical faculty and an accurate sense of justice.  He ought to know the law, of course, but he ought to know human nature too.  Soon after I came to the bar, a very conscientious Judge, Judge Andrews, was hearing a case in which two Kerry farmers were disputing about the ownership of cattle on a mountain.  The Judge wrote down every word that was said and had no time to observe the demeanour of the witnesses.  This was too much for Mr. Sandford, one of the counsel engaged in the case, who stopped his cross-examination and said “My Lord, if you would only lay down your pen and look at the witness, it might be an advantage”.  I thought I had never heard a more disrespectful observation, but the Judge took no offence.  He laid down his pen.  Then after looking at the witness for a time he said, “I think you were right, Mr. Sandford”.

Crimes of violence are always a problem and particularly so after war or civil war.  Wars create dangerous precedent for violence.  Fortunately there was not a lot of such crime on the Eastern circuit.  But I have unfortunately seen a lot of violence in my time and it has made me realize that there are some men, otherwise decent and able, who positively delight in it.  I knew some in the civil war who got an exhilaration from and revelled in skirmishes and narrow escapes.  Of such must have come the “soldiers of fortune” of days gone by.  No man with cruel or sadistic tendencies is fit to be a Judge or to be in any position of authority over prisoners.  I believe that such comparatively few incidents of unprovoked violence to prisoners as are established (as distinct from the many which are alleged) occur at the hands of sadistic men, of whom there are a few to be found in nearly every group of society.  But authority abused soon becomes authority despised.

It is said that the Irish have less respect for authority than the British. That is a generalization born of the long years of fighting for independence but it is not, I think, accurate.  Indeed I regard the Irish as being ultra-conservative and extremely conformist by nature.  They do not on the whole like to be different from their neighbours.

It is also said that the Irish are more litigious than most.  I doubt it.  In matters connected with land they have always shown a ready disposition to litigate, but that is not surprising because most of Ireland’s wealth lies in her land and it has ever been a commodity in short supply.  But land apart I would not consider the Irish more litigious than anybody else: perhaps in recent years even less so because there is only very limited “legal aid” in Ireland and that confined to criminal cases.

On the bench I had a variety of case to try, from arson to breach of promise, from negligence to bribery.  There were of course many claims for damages for personal injuries – a great many genuine ones, but some absolutely bogus.  The latter have been nicely described as cases where “compensation has quickly set in”.

So far as bribery is concerned, I think the briber and the bribed must have an instinct for knowing each other akin to the acute sense of smell in dogs.  One instance of attempted bribery actually occurred in my court.  It was a workmen’s compensation claim where I had a distinguished doctor sitting with me as my medical assessor.  I wanted a special examination of the claimant by the assessor and while this was being conducted in my room I went on with other cases in court.  After a time the doctor resumed his place near me on the bench.  He had a look of outraged virtue about him and he told me later that the workman had produced a roll of notes when they were in the room together and offered them to him.  I told the doctor that I was satisfied that the claim was not bona fide and I intended to dismiss it.  “But are you not going to do anything about the attempt to bribe me?” he asked.  “No,” I replied.  “It is not necessary to do so and it is better not to mention that such a thing could even have been attempted.”

I knew of one case of bribery in a particular type of election where a local councillor had a vote.  The person who wanted his vote gave him a horse and actually delivered it before polling took place.  When the result was announced it was seen that this man got no vote at all, so it was obvious that the councillor had not fulfilled his promise.  A few days later the briber saw the horse standing saddled near the councillor’s house.  He promptly went up to the horse and rode him away.  In the nature of things there could be no claim (even to the saddle which really belonged to the councillor) and so a sort of rough justice was done between the two unjust men.

In most cases before me it was usually fairly easy to tell where the truth lay, but I distrust any Judge or lawyer who seeks to say that he can always do so.  Some liars are very convincing and some truthful witnesses very bad.  Lord Justice Mathew said “Truth will out, even in in an affidavit”, but I would respectfully add – not always.

I have seen plenty of witnesses caught out in lies and have even heard of one who, when that happened, simply turned to the Judge and said, with an air resignation, “Well that’s it, Yer Honour.”.

It is well known that there are ladies in particular dress with particular care for appearance in court.  I have even heard of solicitors and counsel suggesting a form of court dress for clients, usually something demure.

I have great respect for juries, and often a lot of sympathy for them too.  They try to do their best as a rule but sometimes the legal intricacies are too much for them.  They always pay considerable attention to what the Judge tells them but they expect him to be impartial and if he is not they may well, in a criminal case, refuse to trust a prisoner to him and prefer to acquit.

Juries are prevalent in Ireland even for civil cases – long after England dispensed with them except in a few instances.  In an accident case the jury of course apt to be more generous – to the plaintiff.  But that is not – always – a good thing.  And I respectfully doubt the value of juries in long and complicated cases, even in crime.  There is a limit to what even an intelligent and willing layman can absorb and understand about a case such as complex fraud.

A curious thing in regard to Judge is that those who lose cases before them or are sentenced by them rarely bare resentment against the Judge.  Their resentment is against the system and they tend to regard the Judge as a figurehead who has the task of applying rules which others have laid down.  And this seems to be so, strangely enough, even when a Judge has gone out of his way to make some weighty pronouncement of his own.

I often think it is a pity that most of the pageantry has gone out of Irish law since Independence.  Wigs and gowns are retained but coloured robes and processions have gone.  I for one think that the “Red Judge” in his scarlet robes was a useful figure.  He personified the majesty of the law and coming to judge crime inspired awe, admiration and just the right amount of fear.  It is strange in a way that pageantry has not returned because the Irish at heart love pageantry every bit as much as the British.

Robes were for a time abolished in the early days of the circuit court, but on the Munster circuit we determined to restore the wig and gown.  After all these were the highest courts for the ordinary litigant.  It so happened that business for counsel increased: so much for the effect of clothes.

No Judge likes being reversed but it is sometimes comforting to remember that one’s decision can be reviewed by others.  It is of course a common failing – by no means confined to Judges – to believe that one’s judgments are always right.  It was I think Tim Healy who once referred to a 4-3 decision of the House of Lords as being “the transpondine voice of infallibility speaking with a narrow margin”.   And Pope Said:

‘Tis with our judgments as our watches, None go just alike, yet each believes his own”

There is a nice story told of an English Chancery Judge who was getting a little elderly.  He had two points to decide in a case and announced his intention of giving judgment on one in the morning and on the other in the afternoon.  He duly gave a splendid judgment on the first point next morning, and decided it in favour of the plaintiff.  In the afternnoon he resumed and it soon became obvious to everyone’s surprise that he was giving judgment on the first point again – but this time in favour of the defendant.  When he had finished, counsel for the plaintiff got up and said politely, “I take it My Lord, that we’re playing the best of five.”

In England Chancery is a specialty of its own with a district Chancery Bar, and I believe some common lawyers will only accept a brief in the division if assured that it is “light Chancery” and not “deep Chancery”.  In Ireland we have always been G.P.’s knowing something about everything.

From time to time in the law one comes across pleasant misprints and infelicities.  I have seen a writ which claimed interest “until the Day of Judgment” and a solicitor’s letter which spoke of “His Holiness the Judge”.  I have heard of a statement by a lady petitioner in a divorce case in England which said, “I did not really know what adultery meant until I met my solicitor”.

Aloofness is thrust upon a Judge.  With appointment to the bench he is cut off from the comradeship of the bar and from many of his old activities.  He becomes very much alone and is surrounded by deference.  It does not suit some men and can easily go to their heads.  “Dressed in a little brief authority” they should of course try never to lose touch with the thoughts, feelings and problems of those who come before them as litigants or lawyers.  Above all they should remember that they were once briefless, or nearly briefless, barristers.

Of all things the one which appeals to a Judge is reasonableness.  The reasonable man, the reasonable letter, the reasonable approach, they attract him, and I think more cases are probably lost because of unreasonableness than for anything else.

I have often heard it said, usually in retrospect, “I would never have trusted him” or “It’s all very well for him to say that he trusted him completely, but how could he?”  I am not impressed by this hindsight.  Trust is a valuable commodity and in very common use.  What about the passenger who boards an aircraft – just think how much he takes on trust: and he often never sets eyes on the pilot.

“Having practised on the Munster and been Judge on the Eastern circuit I noticed considerable difference between people of the East and West of Ireland.  I always felt that those in the East resembled more their neighbours just across the Irish sea.  In ancient times, and even as late as Cromwell’s time, I expect that far more crossed the Irish Sea to Wales and England than ever went through the gaps to the West of Ireland.  There was much travel from the West to France, Spain and the Continent.  As an old man in County Clare once said to me, in the days before cars and aeroplanes, “Isn’t it wonderful we have the sea – it enables us to travel.”  There was continuous trading and smuggling with France and Spain, until the police and coastguards became efficient.  Men came and went – political exiles like the “Wild Geese”, too – until Australia and American were opened to emigration.  Many people in the West have relations in France and Spain and there are distinct Spanish and French types to be found all along the West coast, even still.

I have often been asked whether I can trace any continuity in the Republican movement since 1798.  Answering particularly in regard to the West, I say that the desire to win freedom has been continuous but it has not been Republican.  Freedom was always the goal but Republicanism only developed later.  It might well be that in the 1800’s a separate monarchy, or even a dual monarchy with England, might have been the solution to the Irish question.  But it was not until the 1930’s that the British – with an instinct of amounting to genius – developed a new conception in turning an Empire into a Commonwealth.  It is known that Kevin O’Higgins up to the time of his tragic death in 1927 felt that there were possibilities for Ireland in the dual monarchy idea, but by then the very harbouring of such an idea was to many a capital offence and may well have led to his assassination.

JJ concludes this chapter of his book:

“That is what Michael said: and although he liked being an advocate better, he enjoyed being a Judge.”  And to add a little humour and JJ was witty, kind and a great story teller.

A witness before him in court once said, when asked where he came from, “Ballyjamesduff, Me Lord: you know, the place in the song: ‘Where the grass is so green around.'” “I know,” replied Michael, “but the boys aren’t so green around Ballyjamesduff.”

*An interview by Charlie Rose Bloomberg TV with Bryan Stevenson is a book added to my list of essential reading.  The title is ‘Just Mercy’.

Bryan Stevenson, a public interest attorney and the founder of the Equal Justice Initiative, talks to Charlie Rose about the challenge of owning up to America’s …