THE ADMINISTRATION OF JUSTICE

A

BY REV. DAVID BARRY

SHORT time ago a rather heated controversy was carried on by some publicists regarding the defects in the machinery of justice in our Irish courts. There seemed to be general consent that the interests of law and order (to use a catch cry of the old ascendancy party) are not as efficiently protected as may be reasonably expected. And, indeed, no one can deny this, seeing that it has been found necessary to make public perjury a reserved sin in some dioceses; and seeing, moreover, that criminal cases of capital importance have had for years past to be sent from all over the Free State to Dublin for trial. And this, under a native government; and although to be tried in his own county is the common law right of every accused person. Accordingly, the real ground of the disagreement referred to concerns the ultimate responsibility for the negligence or positive wrong-doing of those immediately or intimately connected with the business of the courts. That is to say, it may be legitimately disputed whether the admitted miscarriages of justice and failure to enforce the laws have been due to a more or less natural dislike, still persisting on under the new régime, to a legal system devised by another country, and largely controlled by those sympathetic with it and out of harmony with our national aspirations. If this be so, the timidity, partiality and perversity that have now and then been so painfully evident, may be looked on as purely transitory, and their correction a mere matter of time; which would not be the case at all, if our moral fibre in civic affairs (to use another phrase of our critics) were weak or undeveloped

1 Irish Independent, February 11, 1927.

owing to our having been, as it were, infected with a double dose of original sin.

However this may be, I think it will be useful to direct the attention of the clergy to the duties of those in whose hands the pure and impartial administration of justice mainly rests. For possibly, they will see their way to bring the matter before their flocks, and give them such instruction and advice as may be necessary. I have already in this review treated at some length of the obligations of judges and jurors; and on this occasion I propose to discuss those of the other principal parties in a trial--the plaintiff and the defendant, then those of witnesses, and lastly, those of the legal advisers that may be employed.

1

As regards the plaintiff in civil cases, I may remark that the theologians, as a rule, treat but meagrely of his rights and duties, in comparison with the pains they take to define what might be expected of others that are no more deeply interested in the just issue of the proceedings. They merely tell us that the general rules of ethics will solve any difficulties that may arise for the confessor under this head. One of the principles in question is, if I may so put it, that the plaintiff should not figure in that capacity at all; and that he ought to exhaust every other peaceful method of getting redress before resorting to the legal one. Because, even on the assumption that his right is undoubted, he may not have much assurance that he will be able successfully to vindicate it. And if he does, this will be at the expense of the defendant, who, as a more or less inevitable consequence, will bitterly resent his action. Everyone knows how seldom it is that those who have been engaged in litigation ever again entertain friendly feelings for each other, even though the relations between them were previously cordial enough; and any reconciliation that may be effected between them is too often only artificial and external.

'But brother goeth to law with brother, and that before

1 I. E. RECORD, September, 1922, vol. xx. pp. 294, sqq.

unbelievers. Already, indeed, there is plainly a fault among you, that you have lawsuits one with another. Why do you not rather take wrong? Why do you not rather suffer yourselves to be defrauded?' i St. Paul, in this passage, had it in view primarily to put an end to the scandal of Christians appearing in contention before their common enemies, the pagan judges. But the same principle applies to some extent no matter how sympathetic the judges may be. Two things are reprehended: first, that they should go to law with each other at all; secondly, that they should do so before unbelievers, from whom they could not expect justice, and whom they would surely scandalize by their disputes.' So it would be a valuable exercise of Christian patience, good example, and charity for a person who is convinced or who fancies that he is the victim of an injustice, to strain every endeavour to secure his rights outside the courts, or even to heap coals of fire on his adversary's head by waiving them in some degree.

If, however, he has discharged his duty in this respect, without being met in a corresponding spirit of accommodation by the other side, he may, without any prejudice to his character as a good Christian, seek legal redress. Or it may be that from the outset, not having much of the milk of forgiveness or forbearance in his nature, he wishes to insist on what is strictly his due. In either hypothesis the first moral problem that may confront him has reference to the degree of certainty as to his claims, and as to his ability to prove them, that is requisite to entitle him to seek the protection of the court. For manifestly, if he has only, e.g., a slender probability that his rights are well founded, he is unwarrantably endangering those of the other party by calling them in question. While if he has no available evidence to sustain his case (however good), he is, as lawsuits are notoriously expensive, throwing good money after bad, and squandering his means, on which others, e.g., his family, may have valid and pressing claims.

11 Cor. vi. 6, 7.

2 MacRory, The Epistles of St. Paul to the Corinthians, p. 74.

Well, considering how extensively the principles of Probabilism are adopted-and that they must be insisted on as a minimum-it may safely be said on the one hand that a person can conscientiously proceed who has any substantial ground for thinking both that he has a grievance, and that he can satisfy the court that he has. And the assurance of a reputable lawyer on these points is as much as a normal measure of prudence would require. On the other hand, if such an authority advises him not to take the case further, his own opinion to the contrary would not usually be foundation enough to excuse him from the results of his temerity.

Another of the ethical principles regulating the action of the plaintiff is, no doubt, that he must carefully comply with the terms of his oath to tell the truth, the whole truth, and nothing but the truth. And I suppose a more fundamental one is that he ought to conduct his own case as he would wish his antagonist to conduct it, in the event of their respective roles being reversed.

1

Almost the only problem that the authorities whom I have had the opportunity of consulting handle in detail is that of a person who is certain of the fairness of his claim, but is unable to prove it satisfactorily, owing to the loss of certain documentary evidence or because this was never available. The theologians raise the question of what sins he is guilty, supposing he forges the instruments necessary to support his case. And they agree that while the plaintiff would commit fraud, and perjury as well, if he backed them with his oath, they do not admit that he is guilty of a strict injustice, if he is quite certain of his right to the property, and provided it is actually in his possession. Although, if the latter stipulation be verified, he would not usually find it necessary to assume the part of plaintiff at all; inasmuch as being in possession of his rights, there would be no need for him to vindicate them legally. All hold that one who has recourse to such devious expedients is guilty of a positive injustice if his claim were merely a

1 Génicot-Salsmans, Theologia Moralis, ii. n. 10 (9th ed.).

probable one, and a few if its object were not actually under his control.

As to the position of the defendant in civil cases, the details given by the moralists are similarly scanty in reference to how he may lawfully manage his side of the proceedings. No doubt, a good deal of what I have said regarding the obligations of charity and patience incumbent on a plaintiff should in equal measure be taken to heart by him. Perhaps the most important basis of difference ethically between them is occasioned by the occupation of the property that may be in litigation. Now, the fact of such possession, though it is not in morals nine points of the law, raises a presumption of very considerable strength on behalf of the one who has the benefit of it, and puts a corresponding barrier in the way of the just prosecution of his cause by the other party. And various schools of theologians, as will be clear to anyone who reads St. Alphonsus,1 assign very different value and weight to it. Those of them who discount the fact of possession, if the reasons advanced on the other side are more cogent, have a warrant for their view in English jurisprudence: 'Unless and until a superior title or justification is shown, existing legal possession is not only presumptive but conclusive evidence of the right to possess.' 'We have seen that possession confers more than a personal right to be protected against wrongdoers; it confers a qualified right to possess, a right in the nature of property, which is valid against every one who cannot show a prior and better right.'

3

It goes without saying, if a litigant who is clearly in the wrong gains a favourable verdict through some misapprehending of the facts, that he cannot avail of this, even though the other party does not appeal and submits to the sentence. 'Because his doing so must be presumed to be quite involuntary, and it must be taken for granted that

1 Theologia Moralis, lib. iv. n. 210, and lib. i. n. 207. See also Lugo, De Justitia et Jure, disp. 16, n. 99.

2 Pollock, Torts, p. 299.

3 Pollock and Wright, Possession, p. 93.