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diff --git a/.gitattributes b/.gitattributes new file mode 100644 index 0000000..d7b82bc --- /dev/null +++ b/.gitattributes @@ -0,0 +1,4 @@ +*.txt text eol=lf +*.htm text eol=lf +*.html text eol=lf +*.md text eol=lf diff --git a/LICENSE.txt b/LICENSE.txt new file mode 100644 index 0000000..6312041 --- /dev/null +++ b/LICENSE.txt @@ -0,0 +1,11 @@ +This eBook, including all associated images, markup, improvements, +metadata, and any other content or labor, has been confirmed to be +in the PUBLIC DOMAIN IN THE UNITED STATES. + +Procedures for determining public domain status are described in +the "Copyright How-To" at https://www.gutenberg.org. + +No investigation has been made concerning possible copyrights in +jurisdictions other than the United States. Anyone seeking to utilize +this eBook outside of the United States should confirm copyright +status under the laws that apply to them. diff --git a/README.md b/README.md new file mode 100644 index 0000000..6c21e16 --- /dev/null +++ b/README.md @@ -0,0 +1,2 @@ +Project Gutenberg (https://www.gutenberg.org) public repository for +eBook #66162 (https://www.gutenberg.org/ebooks/66162) diff --git a/old/66162-0.txt b/old/66162-0.txt deleted file mode 100644 index c206bcc..0000000 --- a/old/66162-0.txt +++ /dev/null @@ -1,2488 +0,0 @@ -The Project Gutenberg eBook of The Seven Lamps of Advocacy, by Edward -Abbott Parry - -This eBook is for the use of anyone anywhere in the United States and -most other parts of the world at no cost and with almost no restrictions -whatsoever. You may copy it, give it away or re-use it under the terms -of the Project Gutenberg License included with this eBook or online at -www.gutenberg.org. If you are not located in the United States, you -will have to check the laws of the country where you are located before -using this eBook. - -Title: The Seven Lamps of Advocacy - -Author: Edward Abbott Parry - -Release Date: August 29, 2021 [eBook #66162] - -Language: English - -Produced by: David E. Brown and The Online Distributed Proofreading Team - at https://www.pgdp.net (This file was produced from images - generously made available by The Internet Archive/Canadian - Libraries) - -*** START OF THE PROJECT GUTENBERG EBOOK THE SEVEN LAMPS OF -ADVOCACY *** - - - - - - THE SEVEN LAMPS - OF ADVOCACY - - - - -WHAT THE JUDGE THOUGHT - - -By HIS HONOUR JUDGE EDWARD PARRY. Demy 8vo. Cloth. 21s. net - - -(_Third Impression_) - -T. FISHER UNWIN, LTD., LONDON - - - - - THE SEVEN LAMPS - OF ADVOCACY _By - His Honour Judge_ EDWARD - ABBOTT PARRY - - - T. FISHER UNWIN LTD - LONDON: ADELPHI TERRACE - - - - - _First published in 1923_ - - (_All rights reserved_) - - - - - TO - THE NORTHERN CIRCUIT - WHERE I LEARNED - THESE THINGS - - - - -CONTENTS - - - PAGE - - I. THE LAMP OF HONESTY 11 - - II. THE LAMP OF COURAGE 23 - - III. THE LAMP OF INDUSTRY 37 - - IV. THE LAMP OF WIT 49 - - V. THE LAMP OF ELOQUENCE 61 - - VI. THE LAMP OF JUDGMENT 75 - - VII. THE LAMP OF FELLOWSHIP 93 - - - - - I - - THE LAMP - OF HONESTY - - - - -I - -THE LAMP OF HONESTY - - -The great advocate is like the great actor: he fills the stage for -his span of life, succeeds, gains our applause, makes his last bow, -and the curtain falls. Nothing is so elusive as the art of acting, -unless indeed it be the sister art of advocacy. You cannot say that the -methods of Garrick, Kean or Irving, Erskine, Hawkins or Russell, were -the right methods or the only methods, or even that they were the best -methods of practising their several arts; you can only say that they -succeeded in their day, and that their contemporaries acclaimed them as -masters. - -Inasmuch as their methods were often new and startling to their own -generation, the young student of acting or advocacy is eager to believe -that there are no methods and no technique to learn, and no school in -which to graduate. Youth is at all times prone to act on the principle -that there are no principles, that there is no one from whom it can -learn, and nothing to teach. Any one, it seems, can don a wig and -gown, and thereby become an advocate. Yet there are principles of -advocacy; and if a few generations were to forget to practise these, -it would indeed be a lost art. The student of advocacy can draw -inspiration and hope from the stored-up experience of his elders. He -can trace in the plans and life-charts of the ancients the paths along -which they strode, journeying towards Eldorado. True, these figures -of forgotten advocates are dim and obscure--only to be painfully seen -through the dusty gauzes of forgotten years, pictured for us in drowsy -voluminous memoirs, or baldly reported in mouldering law reports; but -if we search these records diligently we gradually discern a race of -worthy men--see them haunting the old libraries, pacing the ancient -halls with their clients, proud of the traditions of their great -profession--advocates--advocates all. - -It is in an endeavour to recapture something of the lives of these -great ones, and the principles upon which they built their success, -that I have struggled through forbidding masses of decaying biography -in hopes to catch a faint whisper here and there of the triumphant -works and days of my professional forbears. - -For a race of moderns, that, maybe, care for none of these things, -I have lighted again the old lamps which burned so brightly in the -days that are gone, which I myself have seen lighting the darkness of -our courts, and guiding the footsteps of the judges in the paths of -justice and truth. For without a free and honourable race of advocates -the world will hear little of the message of justice. Advocacy is -the outward and visible appeal for the spiritual gift of justice. -The advocate is the priest in the temple of justice, trained in the -mysteries of the creed, active in its exercises. For this reason Wyclif -in his translation of I John ii. 1 sanctifies the word in the text: -“We haue auoket anentis the fadir, Jhesu Crist just.” Modern versions -retain “advocate,” but unhappily substitute “righteous” for “just”. -Advocacy connotes justice. Upon the altars of justice the advocate must -keep his seven lamps clean and burning brightly. In the centre of these -must ever be the lamp of honesty. - -The English Bar is a society of advocates, though, as Blackstone tells -us, we generally call them counsel. The Scots retain the name in their -Faculty of Advocates. The word must be insisted upon for its ancientry -and meaning. The order of advocates is, in D’Aguesseau’s famous phrase, -“as noble as virtue.” Far back in the Capitularies of Charlemagne -it was ordained of the profession of advocates “that nobody should -be admitted therein but men mild, pacific, fearing God, and loving -justice, upon pain of elimination.” So may it continue, world without -end. - -From the earliest, Englishmen have understood that advocacy is -necessary to justice, and honesty is essential to advocacy. The -thirteenth century _Mirrour of Justices_ may, as modern jurists hold, -be a contemptible legal compilation. It is said to have been written -by one Andrew Horn, a fishmonger; and what could he have known, say -the learned ones, about the origin and history of legal affairs? -Nevertheless, to the reader of to-day the views of the man in the -street, the common citizen of a bygone age, about the place in the -world of the advocate is more precious than many black-letter folios of -crabbed juridical learning. - -“Some there be,” says our fishmonger very shrewdly, “who know not -how to state their causes or to defend them in court, and some who -cannot, and therefore are pleaders necessary; so that what plaintiffs -and others cannot or know not how to do by themselves they may do by -their serjeants, proctors, or friends. Pleaders are serjeants wise in -the law of the realm who serve the commonality of the people, stating -and defending for hire actions in court for those who have need of -them. Every pleader who acts in the business of another should have -regard to four things:--First, that he be a person receivable in court, -that he be no heretic, nor excommunicate, nor criminal, nor man of -religion, nor woman, nor ordained clerk above the order of sub-deacon, -nor beneficed clerk with the cure of souls, nor infant under twenty-one -years of age, nor judge in the same cause, nor open leper, nor man -attainted of falsification against the law of his office. Secondly, -that every pleader is bound by oath that he will not knowingly maintain -or defend wrong or falsehood, but will abandon his client immediately -that he perceives his wrong-doing. Thirdly, that he will never have -recourse to false delays or false witnesses, and never allege, proffer, -or consent to any corruption, deceit, lie, or falsified law, but -loyally will maintain the right of his client, so that he may not -fail through his folly or negligence, nor by default of him, nor by -default of any argument that he could urge; and that he will not by -blow, contumely, brawl, threat, noise, or villain conduct disturb any -judge, party, serjeant, or other in court, nor impede the hearing or -the course of justice. Fourthly, there is the salary, concerning which -four points must be regarded--the amount of the matter in dispute, -the labour of the serjeant, his value as a pleader in respect of his -(learning), eloquence, and repute, and lastly the usage of the court.” - -Note how from the earliest days the advocate may in no way maintain or -defend wrong or falsehood. It is the right of his client he is there -to uphold, and the right only. Nevertheless, although an advocate is -bound by obligations of honour and probity not to overstate the truth -of his client’s case, and is forbidden to have recourse to any artifice -or subterfuge which may beguile the judge, he is not the judge of the -case, and within these limits must use all the knowledge and gifts he -possesses to advance his client’s claims to justice. - -Many good men have been troubled with the thought that advocacy implied -a certain want of honesty. Boswell asked Doctor Johnson whether he -did not think “that the practice of the law in some degree hurt the -nice feeling of honesty?” To whom the doctor replied: “Why no, Sir, -if you act properly. You are not to deceive your clients with false -representations of your opinion: you are not to tell lies to a judge.” -_Boswell_: “But what do you think of supporting a cause which you know -to be bad?” _Johnson_: “Sir, you do not know it to be good or bad -till the judge determines it. I have said that you are to state facts -fairly; so that your thinking, or what you call knowing, a cause to be -bad must be from reasoning, must be from your supposing your arguments -to be weak and inconclusive. But, Sir, that is not enough. An argument -which does not convince yourself, may convince the judge to whom you -urge it: and if it does convince him, why, then, Sir, you are wrong, -and he is right. It is his business to judge; and you are not to be -confident in your own opinion that a cause is bad, but to say all you -can for your client, and then hear the Judge’s opinion.” _Boswell_: -“But, Sir, does not affecting a warmth when you have no warmth, and -appearing to be clearly of one opinion when you are in reality of -another opinion, does not such dissimulation impair one’s honesty? Is -there not some danger that a lawyer may put on the same mask in common -life, in the intercourse with his friends?” _Johnson_: “Why no, Sir, -everybody knows you are paid for affecting warmth for your client; and -it is, therefore, properly no dissimulation: the moment you come from -the bar you resume your usual behaviour. Sir, a man will no more carry -the artifice of the bar into the common intercourse of society, than -a man who is paid for tumbling upon his hands will continue to tumble -upon his hands when he should walk on his feet.” - -I like the rough English common-sense of this; but the Irishman in -the dock had an inspired vision of the same truth when, in answer -to the Clerk of the Crown, who called upon him with the familiar -interrogatory, “Guilty or Not Guilty?” he replied with a winning smile, -“And how can I tell till I hear the evidence?” - -When Lord Brougham, at a dinner to M. Berryer, claimed in his speech -that the advocate should reckon everything as subordinate to the -interests of his client, Lord Chief Justice Cockburn, “feeling that our -guest might leave us with a false impression of our ideals,” set forth -his views of an advocate’s duty, concluding with these memorable words: -“The arms which an advocate wields he ought to use as a warrior, not as -an assassin. He ought to uphold the interests of his client _per fas_, -and not _per nefas_. He ought to know how to reconcile the interests of -his clients with the eternal interests of truth and justice.” - -The best advocates of all generations have been devotees of honesty. -Abraham Lincoln founded his fame and success in the profession on what -some called his “perverse honesty.” On his first appearance in the -Supreme Court of Illinois he addressed the court as follows: “This is -the first case I have ever had in this court, and I have therefore -examined it with great care. As the court will perceive by looking at -the abstract of the record, the only question in the case is one of -authority. I have not been able to find any authority to sustain my -side of the case, but I have found several cases directly in point on -the other side. I will now give these authorities to the court, and -then submit the case.” - -There have been advocates who regard such a course as quixotic. The -late Joshua Williams was asked whether, if an advocate knows of a -decided case in point against him which he has reason to believe is -not known to the other side, he is bound to reveal it, and gave it -as his opinion that “in principle this is no part of his duty as an -advocate.” It must be remembered that this opinion was given when a -host of cases were decided against their merits on purely technical -points of law; but there is no doubt what the practice ought to be, and -what among English advocates the practice is. - -If an advocate knows the law to be _x_, it is not honest to lead the -court to believe that it is _y_. Whether the advocate does this by -directly mis-stating the law, or by deliberately omitting to state it -fully within the means of his knowledge, it is equally without excuse, -and dims the lamp of honesty. - -For the advocate must remember that he is not only the servant of the -client, but the friend of the court, and honesty is as essential to -true friendship as it is to sound advocacy. - - - - - II - - THE LAMP - OF COURAGE - - - - -II - -THE LAMP OF COURAGE - - -Advocacy needs the “king-becoming graces: devotion, patience, courage, -fortitude.” Advocacy is a form of combat where courage in danger is -half the battle. Courage is as good a weapon in the forum as in the -camp. The advocate, like Cæsar, must stand upon his mound facing the -enemy, worthy to be feared, and fearing no man. - -Unless a man has the spirit to encounter difficulties with firmness -and pluck, he had best leave advocacy alone. Richard Bethell, Lord -Westbury, in early life took for his motto: “_De l’audace et encore -de l’audace, et toujours de l’audace_.” In advising on a case he was -always clear and direct, saying that he was “paid for his opinion, not -for his doubts.” Charles Hatton, writing as a layman of Jeffreys in -his early days at the bar, shrewdly notes his best quality: “He hath -in perfection the three chief qualifications of a lawyer: Boldness, -Boldness, Boldness.” A modern advocate kindly reproving a junior for -his timidity of manner wisely said: “Remember it is better to be strong -and wrong than weak and right.” - -The belief that success in advocacy can be attained by influence, -apart from personal qualifications, is ill-founded. There was never -a youngster with better backing than Francis North, afterwards Lord -Keeper to Charles II., yet, as his biographer says, “observe his -preparatives,” his earnest attendances at moots, his diligent waiting -in that “dismal hole” the “corner chamber, one pair of stairs in Elm -Court.” - -In the same way his younger brother, Roger, though born in the ermine, -so to speak, had to plod his way up like any other junior. It is good -to be the brother of a Lord Chancellor, but it does not make a man an -advocate. - -Roger North’s autobiography is full of interest to the student of -advocacy. His memory of his first appearance is vivid and entertaining. -“I was immediately called,” he writes, “to the Bar, _ex gratiâ_, not -having standing, although I had performed such exercises as the house -required, save a few. My first flight in practice was the opening a -declaration at _Nisi Prius_ in Guildhall, under my brother, which -was a crisis like the loss of a maidenhead; but with blushing and -blundering I got through it, and afterwards grew bold and ready at such -a formal performance; but it was long ere I adventured to ask a witness -a question.” - -Roger North would never have attained the eminence he did in his -profession by merely hanging on to the gown of his greater brother. -Hard work and dogged courage, not patronage, earned him the dignities -he achieved. The description of his early beginnings is full of -encouragement for the young advocate. “During my practice under Hale,” -he says, “at the King’s Bench I was raw, and not at all quaint and -forward as some are, so that I did but learn experience and discover my -own defects, which were very great. I was a plant of a slow growth, and -when mature but slight wood, and of a flashy fruit. But my profession -obliged me to go on, which I resolved to do against all my private -discouragements, and whatever absurdities and errors I committed in -public I would not desist, but forgot them as fast as I could, and took -more care another time. My comfort was, if some, all did not see my -failings, and those upon whom I depended, the attorneys and suitors, -might think the pert and confident forwardness I put on might produce -somewhat of use to them.” - -North held the sound opinion that “he who is not a good lawyer before -he comes to the Bar, will never be a good one after it.” It is very -true that learning begets courage, and wise self-confidence can only be -founded on knowledge. The long years of apprenticeship, the studious -attention to “preparatives,” are, to the advocate, like the manly -exercises of the young squire that enabled the knight of old to earn -his spurs on the field of battle. In no profession is it more certain -that “knowledge is power,” and when the opportunity arrives, knowledge, -and the courage to use it effectively, proclaim the presence of the -advocate. - -The best instance of what is meant perhaps may be found in Sir John -Hollams’s account of the first appearance of Mr. Benjamin. He was a -great lawyer before he addressed the court, but he sat down a great -advocate. It was in a case which came on for hearing before Lord -Justice James, then Vice-Chancellor, and “it appeared to be generally -thought that, as usual at the time, a decree would be made directing -inquiries in chambers. The matter was being so dealt with when Mr. -Benjamin, then unknown to any one in Court, rose from the back seat -in the Court. He had not a commanding presence, and at that time had -rather an uncouth appearance. He, in a stentorian voice, not in accord -with the quiet tone usually prevailing in the Court of Chancery, -startled the Court by saying, ‘Sir, notwithstanding the somewhat -off-hand and supercilious manner in which this case has been dealt with -by my learned friend Sir Roundell Palmer, and to some extent acquiesced -in by my learned leader Mr. Kay, if, sir, you will only listen to -me--if, sir, you will only listen to me’ (repeating the same words -three times, and on each occasion raising his voice), ‘I pledge myself -you will dismiss this suit with costs.’ The Vice-Chancellor and Sir -Roundell Palmer, and indeed all the Court, looked at him with a kind of -astonishment, but he went on without drawing rein for between two and -three hours. The Court became crowded, for it soon became known that -there was a very unusual scene going on. In the end the Vice-Chancellor -did dismiss the suit with costs, and his decision was confirmed on -appeal.” - -There have been many advocates whose courage was founded on humour -rather than knowledge, and who have successfully asserted their -independence in the face of an impatient or overbearing Bench through -the medium of wit, where mere wisdom might have failed in effect. - -Of such was Tom Jones, who startled Mr. Justice Byles into indignant -attention by opening his case with bold impertinence: “No one, my -lords, who looks at this case with common fairness and honesty, can -hesitate for a moment in declaring that there ought to be a new trial.” - -Byles observed, “This is rather strong language to use to us, Mr. -Jones. I hope you think that we, at the least, are commonly fair and -honest.” - -“We shall see, my lord,” said Tom; “we shall see.” - -Serjeant Robinson tells us a further good story of Tom’s refusal to be -hustled by the Bench. - -“Our friend Tom Jones,” he writes, “was a little lengthy sometimes in -the exposition of his client’s rights, and one day the chief baron said -to him, ‘Mr. Jones, this case has occupied a great deal of time, and we -have a very long list of cases to get through.’ - -“‘My lord,’ said Tom, ‘I have carefully looked through that list, and I -did not find there was a single cause in which I or my client was in -the slightest degree interested.’” - -But these sallies should never degenerate into mere incivility or -abuse, in which there is little real courage, since a judge of sense -will always refrain, if it be at all possible, from reply to such -attacks, which only injure the reputation of the Bar and destroy the -reputation of the advocate. - -In the early days of American Sessions a certain judge was violently -attacked by a young and very impudent attorney. To the manifest -surprise of everybody present, the judge heard him quite through as -though unconscious of what was said, and made no reply. After the -adjournment of the day, and all had assembled at the inn where the -judge and many of the attorneys had their lodgings, one of the company, -referring to the scene in court, asked the judge why he did not rebuke -the impertinent fellow. - -“Permit me,” said the judge, loud enough to call the attention of all -the company, among whom was the fellow in question--“permit me to tell -you a story. My father, when we lived down in the country, had a dog--a -mere puppy, I may say. Well, this puppy would go out every moonlight -night and bark at the moon for hours together.” Here the judge paused, -as if he had done with his story. - -“Well, what of it?” exclaimed half-a-dozen of the audience at once. - -“Oh, nothing, nothing whatever; the moon kept right on, as if nothing -had happened.” - -Independence without moderation becomes licentiousness, but true -independence is an essential attribute of advocacy, and the English -Bar has never wanted men endowed with this form of true courage. The -sacrifice of the highest professional honours to the maintenance of -principle has been a commonplace in the history of English advocates, -and the names of the living could be added if need be to those who have -passed away, leaving us this clean heritage as example. - -The true position of the independence of the English Bar, the right -and the duty of the advocate to appear in every case, however poor, -degraded, or wicked the party may be, is laid down once and for all in -a celebrated speech of Erskine’s in his defence of Thomas Paine, who -was indicted in 1792 for publishing the _Rights of Man_. Great public -indignation was expressed against Erskine for daring to defend Paine. -As he said in his speech, “In every place where business or pleasure -collects the public together, day after day, my name and character -have been the topics of injurious reflection. And for what? Only for -not having shrunk from the discharge of a duty which no personal -advantage recommended, and which a thousand difficulties repelled.” - -He then continued, in words which the learned editor of Howell’s State -Trials emphasises by printing in capital letters, to enunciate one of -the basic principles of English advocacy: - -“Little, indeed, did they know me, who thought that such calumnies -would influence my conduct: I WILL FOR EVER, AT ALL HAZARDS, ASSERT -THE DIGNITY, INDEPENDENCE, AND INTEGRITY OF THE ENGLISH BAR; WITHOUT -WHICH, IMPARTIAL JUSTICE, THE MOST VALUABLE PART OF THE ENGLISH -CONSTITUTION, CAN HAVE NO EXISTENCE. From the moment that any advocate -can be permitted to say that he will or will not stand between the -Crown and the subject arraigned in the court where he daily sits to -practise--from that moment the liberties of England are at an end. If -the advocate refuses to defend, from what he may think of the charge or -of the defence, he assumes the character of the judge; nay, he assumes -it before the hour of judgment; and, in proportion to his rank and -reputation, puts the heavy influence of perhaps a mistaken opinion into -the scale against the accused, in whose favour the benevolent principle -of English law makes all presumptions, and which commands the very -judge to be his counsel.” - -Side by side with this may be set the grand example of William Henry -Seward in acting in the defence of the negro Freeman in 1846. A -horrible murder was committed. Without any provocation or desire -for plunder, Freeman killed a farmer and several of his family. He -was easily captured, when he laughed in the face of his captors and -acknowledged the crime. He was a recently emancipated slave, deaf, and -obviously insane. The sheriff had the greatest difficulty in preventing -him from being lynched. The clergyman at the victims’ funeral made a -rousing appeal for his punishment, which was printed and circulated -round the district. - -Seward undertook his defence, and a storm of prejudice and passion was -directed against him to dissuade him from doing what he believed to be -his duty as an advocate. In the crowded court-house, when the judge -asked, “Will any one defend this man?” and Seward rose, and said he was -counsel for the prisoner, a murmur of indignation ran round the court. -His advocacy was of no avail to the individual, but his eloquent speech -remains a noble statement of the duty of the advocate, and a fine -example of devotion and courage in the exercise of that duty. - -The whole speech is worthy of study, as it contains a glowing and -reasoned appeal for the right of the most degraded human being in a -civilised state to a real hearing of his case in a judicial court, -which can only be obtained through honest and competent advocacy. - -As the yellow harvest-moon rose outside the darkening court-house his -peroration was listened to by the indignant crowd with, at least, -outward respect, and it remains a message of encouragement to the -advocates of future generations. - -“In due time, gentlemen of the jury, when I shall have paid the debt -of nature, my remains will rest here in your midst with those of my -kindred and neighbours. It is very possible they may be unhonoured, -neglected, spurned! But perhaps years hence, when the passion and -excitement which now agitate this community shall have passed away, -some wandering stranger, some lone exile, some Indian, some negro, may -erect over them an humble stone, and thereon this epitaph: ‘He was -faithful.’” - -These words, as he desired, are engraved on the marble over him, and he -is remembered at the American Bar as an advocate who upheld its best -traditions, and feared not to hold aloft the Lamp of Courage. - - - - - III - - THE LAMP - OF INDUSTRY - - - - -III - -THE LAMP OF INDUSTRY - - -The first task of the advocate is to learn to labour and to wait. There -never was a successful advocate who did not owe some of his prowess to -industry. From the biographies of our ancestors we may learn that the -eminent successful ones of each generation practiced at least enough -industry in their day to preach its virtues to aspiring juniors. - -Work soon becomes a habit. It may not be altogether a good habit, but -it is better to wear out than to rust out. Nothing, we are told, is -impossible to industry. Certainly without industry the armoury of the -advocate will lack weapons on the day of battle. - -There must be years of what Charles Lamb described with graceful -alliteration as “the dry drudgery of the desk’s dead wood” before the -young advocate can hope to dazzle juries with eloquent perorations, -confound dishonest witnesses by skilful cross-examination, and lead -the steps of erring judges into the paths of precedent. - -All great advocates tell us that they have had either steady habits of -industry or grand outbursts of work. Charles Russell had a continuous -spate of energy. Many of us can remember him, tireless and active -himself, bustling into the robing-room at St. George’s Hall, Liverpool, -and finding several members of the Junior Bar standing around the fire. - -“Why are you loafing about here?” he asked. “Why don’t you _do_ -something?” - -“We have nothing to do,” said the Junior Bar. - -“Why don’t you go to the races?” he rejoined. “_Do_ something!” - -Abraham Lincoln owed his sound knowledge of law to grim, zealous -industry. As a storekeeper he studied Blackstone out of shop-hours, -perched on a wood-pile or lying under a tree. On circuit, in the -bedroom of the village inn, a candle at his head and his feet -protruding over the foot-board of his bed, he lay reading law until -two in the morning, undisturbed by snoring comrades. When possible, he -would read aloud, for thus, he said, “two senses catch the idea. First, -I see what I read; second, I hear it, and can therefore remember it -better.” In after-life to every student who came near him his advice -was, “Work! work! work!” - -Advocacy is indeed a life of industry. Each new success brings greater -toil. Campbell, writing home from the Oxford Circuit, describes the -weary round of his daily task. Some advocates suffer thus every day the -court sits, whilst others sit round and suffer envy. - -“I ought to have got so far to-night on my way to Hereford, but we -have a long day’s work before us, and I shall be obliged to travel all -to-morrow night. You can hardly form a notion of the life of labour, -anxiety, and privation which I lead upon the circuit. I am up every -morning by six. I never get out of court till seven, eight, or nine in -the evening, and, having swallowed any indifferent fare that my clerk -provides for me at my lodgings, I have consultations and read briefs -till I fall asleep. This arises very much from the incompetence of the -judge. It is from the incompetency of judges that the chief annoyances -I have in life arise. I could myself have disposed of the causes here -in half the time the judge employed. He has tried two causes in four -days. Poor fellow, he is completely knocked up.” - -An advocate must study his brief in the same way that an actor studies -his part. Success in advocacy is not arrived at by intuition. Mr. -O’Brien, in his excellent biography of Charles Russell, details an -interesting conversation with his hero which enforces this truth. He -had raised the question of an advocate succeeding by mere intuition in -picking up the threads of a case in court, when Russell interrupted him -in a characteristic phrase. - -“‘That’s all nonsense,’ he said. ‘You don’t know anything by intuition. -You have to work hard and to think hard. I get some good help, as I -tell you. My mode of work is this: One of these young men reads the -brief and makes a note--a full one. I go through the note with him’ -(smiling), ‘cross-examining him, if you like. Sometimes, I admit, it -may not be necessary for me to read the brief; the note may be so -complete, and the man’s knowledge of the case so exact, that I get -everything from him. But it often is--in fact, generally is--necessary -to go to the brief. You have seen me reading briefs here. I admit -that I am quick in getting at the kernel of a case, and that saves me -some trouble; but I must read the brief with my own eyes, or somebody -else’s.’ - -“I said, ‘Sir John Karslake went blind because he could only read his -brief with his own eyes. It is a great point to be able to read your -brief with somebody else’s eyes!’ - -“_Russell_--‘Well, well, well, that’s so! but it is not intuition.’ - -“I said, ‘It has been said that O’Connell never read his brief when he -appeared for the defendant. He made his case out of the plaintiff’s -case.’ - -“_Russell_--‘I don’t think that is likely; I think O’Connell knew his -case--the vital points in his case--before he went into court. There -is often a great deal in a brief which is not vital, which is not -even pertinent. I can read a brief quickly; I can take in a page at -a glance, if you like; I can throw the rubbish over easily, and come -right on the marrow of the case. But I can only do that by reading -the brief, or by the help of my friends. I learn a great deal at -consultations; I am not above taking hints from everybody, and I think -carefully over everything that is said to me’ (holding his hand up with -open palm); ‘I shut out no view. If I have a good point, it is that I -can see quickly the hinge on which the whole case turns, and I never -lose sight of it. But that is not intuition, my friend; it is work.’” - -Industry in reading and book-learning may make a man a good jurist, but -the advocate must exercise his industry in the double art of speaking -and arranging his thoughts in ordered speech. He must be ready to leave -his books awhile and practise the athletics of eloquence with equal -industry. - -The silver-tongued Heneage Finch advises students “to study all the -morning and talk all the afternoon.” Old Serjeant Maynard, deeply -learned in booklore as he was, described the calling of the advocate as -_ars bablativa_. Brougham told the law students of London University to -habituate themselves to talk about everything. - -For “bare reading without practice pedantiseth a student, but never -makes him a clever lawyer.” Our fathers understood this better perhaps -than we do, and made provision of halls and cloisters and gardens, -where students could take exercise and discuss the mysteries of their -profession when the hours of reading were over. - -Roger North tells us in his life of his brother, the Lord Keeper: -“I remember that, after the fire of the Temple, it was considered -whether the old cloister walks should be rebuilt or rather improved -into chambers; which latter had been for the benefit of the Middle -Temple. But in regard it could not be done without the consent of -the Inner house, the masters of the Middle house waited upon the then -Mr. Attorney Finch, to desire the concurrence of his society upon a -proposition of some benefit to be thrown in on that side. But Mr. -Attorney would by no means give way to it, and reproved the Middle -Templars very wittily and eloquently upon the subject of students -walking in evenings there and putting cases, ‘which,’ he said, ‘was -done in his time, as mean and low as the buildings were then, however -it comes that such a benefit to students is now made so little account -of.’ And thereupon the cloisters, by the order and disposition of Sir -Christopher Wren, were built as they now stand.” - -The days of wandering in cloisters and gardens, putting cases to one’s -fellow-students, and listening to the wisdom of elders by the margin of -the fountain are, alas! not for us. But even to-day a wise youngster -should recognise that sitting in court to listen to the conduct of -cases, attendance at circuit mess and dining in Hall, where the -law-talk of seniors may still on occasion be of value--these things are -all forms of industry, for the advocate can only learn the true creed -of his faith from oral tradition. - -In recent years we have wisely revived the old moots which date back -to early days when the Inns of Court were really schools of law. -Dugdale thus describes the ancient ceremony of the moot: “The pleadings -are first recited by the students, then the case heard and argued by -the barristers; and lastly by the reader elect and benchers, who all -three argue in English; but the pleadings are recited, and the case -argued by the utter barristers, in law French. The moot being ended, -all parties return to the cupboard, where the mootmen present the -benchers with a cup of beer and a slice of bread.” - -Roger North also remembers that in his day, the time of Charles II., -the custom of mooting had been discontinued for upwards of a century; -but modern wisdom brings us back to many old customs of our fathers, -and to-day all dramatic methods of education are recognised as of -greater value than dictatorial lectures. - -And not only are these more social forms of industry good in -themselves, but they are the only antidote to that despondency and -dread of failure which cloud the brightest and most hopeful mind in -the long days of apprenticeship. Even the greatest advocates have -suffered such moments. Had John Scott yielded to his own sinking -inclinations, he might have been a provincial barrister at Newcastle -instead of Lord Chancellor; Kenyon nearly became a Welsh parson instead -of Chief Justice of England; and Russell tells us that in our own day -Gully nearly exiled himself to the Straits Settlements, and Herschell -proposed to emigrate to the Indian Bar. - -A learned County Court judge, in dealing with the unfortunate -bankruptcy of a brother-barrister, expressed the opinion that for a man -to come to the Bar without private means, or, at least, expectations -from a maiden aunt, was “a rash and hazardous speculation.” His dictum -was unsound in law and history. Some of the greatest advocates began -life as poor men. And though men of wealth have succeeded in advocacy, -yet poverty is a true friend to industry. “Parts and poverty,” said -Lord Chancellor Talbot, “are the only things needed by the law student.” - -Kenyon, when asked by a fashionable lady how her son might best prepare -for success at the Bar, said: “Let him spend all his money, marry a -rich wife, spend all hers, and when he has got not a shilling in the -world, let him attack the law.” For a lawyer, as an old pleader said, -must be prepared in his early days “to eat sawdust without butter,” or, -as Lord Eldon put it, “to live like a hermit and work like a horse.” - -If a man is endowed with health and industry, the profession of an -advocate is not “a rash and hazardous speculation.” He may even without -blame give hostages to fortune, remembering that when Erskine made his -first appearance at the Bar his agitation nearly overcame him, and -he was just about to sit down a failure when, he says, “I thought I -felt my little children tugging at my gown, and the idea roused me to -an exertion of which I did not think myself capable.” He succeeded, -indeed, far beyond his expectations, and he found, when he had overcome -that first modest inertia which benumbs even the greatest genius, that -he was fully equipped to fight the battles of his clients against all -comers. And the reason of it was that he had not failed to read and -learn and digest beneath the Lamp of Industry. - - - - - IV - - THE LAMP - OF WIT - - - - -IV - -THE LAMP OF WIT - - -At the back of this little word “wit” lies the idea of knowledge, -understanding, sense. In its manifestation we look for a keen -perception of some incongruity of the moment. The murky atmosphere of -the court is illuminated by a flash of thought, quick, happy, and even -amusing. Wit, wisely used, bridges over a difficulty, smooths away -annoyance, or perhaps turns aside anger, dissolving embarrassment in a -second’s laughter. - -Nor can “(laughter in court),” a derogatory parenthesis unknown in the -official law reports, be wholly condemned among human men. “How much -lies in laughter, the cipher key wherewith we decipher the whole man!” -Laughter may be derisive, unkind, even cruel, or it may be rightly used -as a just weapon of ridicule wherewith to smite pretension and humbug. -It may be gracious and full of kindliness, putting a timid man at his -ease, or instinct with good-humour, softening wrath or mitigating -tedious irrelevancy. It may be the due recognition of a witty text -preaching a useful truth, that could otherwise be expressed only in a -treatise; as when Common Law said unto Chancery, “Truth will leak out -even in an affidavit;” or when Erskine replied to Kenyon, who suggested -that he should apply to Chancery for relief, “Would your lordship send -a dog you loved there?” - -From the earliest times wit has been a light to lighten the darkness of -advocacy. Cicero was noted for the jests and repartees which punctuated -his forensic speeches, and these were held “not foreign to the business -of the forum.” Yet, like many a man of wit, he stumbled on occasion -through the temptation of the gift, and offended some with malevolent -sayings, as Bethell and others have done in our own time. It is easy to -forget the poet’s warning about “the medium in all things.” - -Pedants and bores resent all forms of wit, but a real humorist rejoices -in nothing so much as a good story against himself. Rufus Choate was -a man of great eloquence and abounding vocabulary, but he had a true -sense of wit. No one enjoyed better the remark of Mr. Justice Wilde, -a dry, precise judge who, out of court, on occasion allowed his wit -expression. He was asked by a junior if he had not heard that Mr. -Worcester had just published a new edition of his dictionary with a -great number of additional words. Gripping his young friend’s arm, he -said in a perturbed whisper, “No, I had not heard of it. But, for God’s -sake, don’t tell Choate!” - -Choate had his own wit, which charmed many juries to his clients’ -cause. No one could more pleasantly disperse the frowning morality of a -common jury by a human simile. What could be more pastoral and poetical -than his description of his clients in an Arcadian divorce case? “They -were playful, gentlemen of the jury, not guilty. After the morning toil -they sat down upon the hay-mow for refreshment, not crime. There may -have been a little youthful fondling, playful, not amorous. They only -wished to _soften the asperities of hay-making_.” One can see the jury -broadening into sympathy and smiles over the pleasantry of the final -phrase. - -Often the wit of an advocate will turn a judge from an unwise course -where argument or rhetoric would certainly fail. Lord Mansfield paid -little attention to religious holidays. He would sit on Ash-Wednesday, -to the scandal of some members of the Bar, whose protests made no -impression upon him. At the end of Lent he suggested that the court -might sit on Good Friday. The members of the Bar were horrified. -Serjeant Davy, who was in the case, bowed in acceptance of the -proposition. “If your lordship pleases; but your lordship will be the -first judge that has done so since Pontius Pilate.” The court adjourned -until Saturday. - -But the learned Serjeant “Bull Davy,” as he was called on circuit, -could never pass a jest, even at the expense of his client. He was -defending a criminal against whom the prosecution had opened a very -strong case. - -“Who is concerned for the prisoner?” - -“My lord,” replied Davy, rising with grave solemnity, “I am concerned -for him, and very much concerned, after what I have heard.” - -Wit is often the fittest instrument with which to destroy the bubble -of bombast. When Curran, in an outburst of histrionic anger, placed -his hand upon his heart, saying, “I am the trusty guardian of my own -honour,” it was Sir Boyle Roche who spoiled the episode by rising with -much friendliness to say, “I congratulate my honourable friend on the -snug little sinecure to which he has appointed himself.” - -Wit may fairly be used to strip the cloak of pretension from the -shoulders of impudence. Holker was cross-examining a big vulgar Jew -jeweller in a money-lending case and began by looking him up and down -in a sleepy dismal way and drawled out: “Well, Mr. Moselwein, and what -are you?” - -“A genschelman,” replied the jeweller with emphasis. - -“Just so, just so,” ejaculated Holker with a dreary yawn, “but what -were you before you were a gentleman?” - -Wit, skilfully used, is the kindliest and most effective method of -exhibiting the futility of judicial interruptions. - -“Where do you draw the line, Mr. Bramwell?” asked a learned judge in -the Court of Common Pleas. - -“I don’t know, and I don’t care, my lord. It is enough for me that my -client is on the right side of it.” - -Wit and courtesy need never be divorced. They are, indeed, -complementary. Wit, deftly used, refreshes the spirit of the weary -judge. - -Lord Chief Justice Coleridge, writing from the Northern Circuit, says: -“Gully was excellent. His phrase, when he asked for a stay of execution -‘in order to consider more at leisure some of your lordship’s -observations,’ tickled my fancy very much. Misdirection was never more -courteously described.” - -Satire or irony is often in danger of being misunderstood by the -simple-minded jury. Ridicule, to be effective, must be pointed, even -extravagant. - -In combating the defence of Act of God set up by an American advocate -defending a client on the charge of arson, Governor Wisher, for the -prosecution, disposed of the theory of spontaneous combustion, and -succeeded in satisfying the jury of its absurdity: “It is said, -gentlemen, that this was Act of God. It may be, gentlemen. I believe in -the Almighty’s power to do it, but I never knew of His walking twice -round a straw stack to find a dry place to fire it, with double-nailed -boots on so exactly fitting the ones worn by the defendant.” - -Bowen, on the Western Circuit, was less fortunate. Prosecuting a -burglar caught red-handed on the roof of a house, he left the case to -the jury in the following terms: “If you consider, gentlemen, that the -accused was on the roof of the house for the purpose of enjoying the -midnight breeze, and, by pure accident, happened to have about him the -necessary tools of a housebreaker, with no dishonest intention of -employing them, you will, of course, acquit him.” The simple sons of -Wessex nodded complacently at counsel, and, accepting his invitation, -acquitted the prisoner. - -And as there is danger of satire being misunderstood, there is also a -certain danger that an advocate, in an endeavour to shorten a case, may -fail to drive home all the points he seeks to make. Modern advocates, -however, are more likely to remind the Bench of Quintilian’s maxim, -“There is not so much inconvenience in listening to superfluous matter -as to be ignorant of such things as are necessary,” than to remember -the more pertinent first principle of their own art that “brevity is -the soul of wit.” - -It has always been a reproach to our advocacy that it injured its -clients by calculated circumlocution, an exuberance of verbosity, and a -prolixity of style and method ruinous to the widows and the fatherless -and the strangers that strayed within the gates of the temple. - -Good advocacy displays the highest form of wit in an instinct for -brevity. The healthy appetite of judge and advocate alike is shown in a -keenness to “get through the rind of the orange and reach the pulp as -soon as possible.” This wit and wisdom of Bramwell should be painted -on the wall in bold letters of silver opposite every judge on the -bench, and in larger letters of gold over every bench in the kingdom in -the face of the nation’s advocates. - -Judges are, indeed, a long-suffering race, but there are some advocates -difficult to suffer gladly. Mr. Justice Wightman showed a Christian -forbearance to Mr. Ribton, who, after pounding away for several hours, -began repeating himself unto the third or fourth iteration. - -“Really, Mr. Ribton, you know, you’ve said that before.” - -“Have I, my lord? I am very sorry. I quite forgot it.” - -“Don’t apologise,” said the mild old judge, patiently stifling a sigh. -“I forgive you; for it was a very long time ago.” - -How many advocates weary juries into forgetfulness by long-continued -repetition of their cross-examination, often giving a clever witness -opportunities of rehabilitating himself, forgetting Josh Billings’s -immortal advice: “When you strike ile, stop boring; many a man has -bored clean thru and let the ile run out of the bottom.” - -But whatever sound maxims may be cited, it is to be feared that there -will always be a line of advocacy answering to the definition of -length without breadth. Nor will the old story, first told, perhaps, of -Chief Baron Kelly, ever want a new and even more long-winded hero. A -legal comrade of Kelly on circuit dreamed that they appeared before the -tribunal on the Great Day of Judgment. Upon Kelly’s name being called, -and his being put up in the dock, the recording angel arose and shouted -out in a loud voice, “No other case will be taken to-day!” - -Lest I should provoke a similar reproof from a devout reader, let me -leave the Lamp of Wit upon the altar of justice and retire from the -pulpit. - - - - - V - - THE LAMP - OF ELOQUENCE - - - - -V - -THE LAMP OF ELOQUENCE - - -The eloquence of advocates of the past must largely be taken on trust. -There is no evidence of it that is not hearsay. For, though we have -the accounts of ear-witnesses of the eloquence of Erskine, Scarlett, -Choate, or Lincoln, and can ourselves read their speeches, the effect -of their eloquence does not remain. We are told about it by those -who experienced it, and can believe or not as we choose. It is the -same with actors. It requires genius to describe acting, so that the -reader captures some of the experience of the witness. Fielding did it -for Garrick when he took Partridge to see _Hamlet_; Charles Lamb can -feature the old actors for us on the screen of the written page; but -how few real records remain of the eloquence of the advocates of old! - -Perhaps the best way to realise their powers is to read their speeches -aloud; but even then they seem diffuse and out of proportion to the -present interest in the litigation. The most eloquent advocacy that is -reported in print is to be found not in law reports, but in fiction--in -the speeches of Portia and Serjeant Buzfuz, for instance, where for all -time the world continues hanging on the lips of the advocate in excited -sympathy with the client. - -There are some who think that rhetoric at the Bar has fallen in esteem. -The modern world has certainly lost its taste for sweet and honeyed -sentences, and sets a truer value on fine phrases and the fopperies of -the tongue; but there will always be a high place in the profession -for the man who speaks good English with smooth elocution, and whose -speeches fall within Pope’s description: - - Fit words attended on his weighty sense, - And mild persuasion flow’d in eloquence. - -The test of eloquence in advocacy is necessarily its effect upon -those to whom it is addressed. The aim of eloquence is persuasion. -The one absolute essential is sincerity, or, perhaps one should say, -the appearance of sincerity. As Garrick reminded a clerical friend: -“We actors portray fiction as if it were truth, and you clergymen -preach truth as if it were fiction.” It is no use preaching to a -jury, but the eloquence of persuasion will work miracles; and there -is a well-authenticated story on every circuit of the criminal who, -listening with rapt attention to his counsel’s pathetic details of his -wrongs, burst into sobs after his peroration, crying out, “I never knew -I was such an ill-used man until now--s’help me, I never did!” - -It would appear from the history of advocacy that the flame of the lamp -of eloquence may vary from time to time in heat and colour. One cannot -say that the style of one advocate is correct and another incorrect, -since the style is the attribute of the man and the generation he -is trying to persuade. Yet, however different the style may be, the -essential power of persuasion must be present. He must, as Hamlet says, -be able to play upon his jury, knowing the stops, and sounding them -from the lowest note to the top of the compass. - -Brougham’s tribute to Erskine’s eloquence is perhaps the best -pen-picture of an English advocate we possess, and it is noticeable -how he emphasises this power of persuasion and endeavours to solve the -psychology of it. He places in the foreground the physical appearance -of the man, a great factor in each style of advocacy. - -“Nor let it be deemed trivial,” he says, “or beneath the historian’s -province, to mark that noble figure, every look of whose countenance is -expressive, every motion of whose form graceful, an eye that sparkles -and pierces, and almost assures victory, while it ‘speaks audience -ere the tongue.’ Juries have declared that they felt it impossible -to remove their looks from him when he had riveted and, as it were, -fascinated them by his first glance; and it used to be a common remark -among men who observed his motions that they resembled those of a -blood-horse, as light, as limber, as much betokening strength and -speed, as free from all gross superfluity or encumbrance. Then hear his -voice of surpassing sweetness, clear, flexible, strong, exquisitely -fitted to strains of serious earnestness, deficient in compass indeed, -and much less fitted to express indignation, or even scorn, than -pathos, but wholly free from harshness or monotony. All these, however, -and even his chaste, dignified, and appropriate action, were very -small parts of this wonderful advocate’s excellence. He had a thorough -knowledge of men, of their passions, and their feelings--he knew every -avenue to the heart, and could at will make all its chords vibrate -to his touch. His fancy, though never playful in public, where he -had his whole faculties under the most severe control, was lively and -brilliant; when he gave it vent and scope it was eminently sportive, -but while representing his client it was wholly subservient to that in -which his whole soul was wrapped up, and to which each faculty of body -and of mind was subdued--the success of the cause.” - -And if one reads the speeches of our greatest advocates and the -records of those who heard them, one finds that each had some peculiar -condiment of eloquence, so that if one could beg a flavour from each -one might hope to produce an olio of super-eloquence. - -Bethell, for instance, was a master of deliberation, remembering -Bacon’s maxim that “a slow speech confirmeth the memory, addeth a -conceit of wisdom to the hearers.” Shorthand-writers listened eagerly -to his speeches, fearing to miss a sentence that would ruin their -report. Repetitions and unnecessary phrases were banned, and useless -words he looked upon as matter in the wrong place. His voice was clear -and musical, and he had a telling wit. Students from the first thronged -the court to learn his magic, and judges listened to him with respect. -When he was a junior it is said that Sir John Leach, the Master of -the Rolls, succumbing to his arguments, said, “Mr. B_ee_thell, you -understand the matter as you understand everything else.” And that was -the real secret of Mr. Bethell’s eloquence. - -Serjeant Copley, better known as Lord Lyndhurst, was not a brilliant or -showy advocate, but, as a friend said, “had no rubbish in his head.” -He won many of his triumphs by dexterous and successful sophistry and -his extreme plausibility of manner. Mr. James Grant tells us that “a -perpetual smile played on his countenance while he gazed at the faces -of the court and the jury; and there was something so winning in the -tones of his voice that he must have been a man possessing a remarkably -lively perception of the real facts of a case, of a vigorous intellect, -and of great energy of character who was not carried away by Mr. -Copley’s address.” The mere wording of the description might suggest -to an unsympathetic reader that Serjeant Copley was the Fascination -Fledgeby of the Bar, but the intention of the writer was probably to -portray something of that charm of manner which is often a form of -eloquence leading to the highest success in advocacy. Gully, in our own -day, possessed it in a high degree. It is easy to fall under the spell -of it in court, but it would require the pen of a genius to recall it -to life on the printed page. - -Eloquence of manner is real eloquence, and is a gift not to be -despised. There is a physical as well as a psychological side to -advocacy, documentary evidence of which may be found in the old prints -and portraits of those who have been called to high office from among -us. They are, on the whole, a stout, well-favoured race. - -Charm of voice and manner has always received due reward. Thomas -Denman had a fine, musical voice, an easy manner, and the sincerity -and fervour of his address made him a popular advocate. Scarlett was -“the very incarnation of contentedness and good nature.” A spectator -notes his “perpetual cheerfulness,” his “laughing and seductive eyes,” -his “How-do-you-do style” as he used to stand before the jury, “fold -up the sides of his gown on his hands, and then, placing his arms on -his breast, smile in their faces from the beginning to the end of his -address, talking all the while to them as if he were engaged on a mere -matter of friendly conversation.” - -Many an advocate has attempted a similar method with but small success, -and there must have been, as Mr. Atlay says, “an exquisite dexterity” -in his method of address that does not reach us through contemporary -descriptions. The effect of it was undoubted. A North-Country juryman -was once asked, after a long assize at Lancaster, “What do you think of -the counsellors on the Northern Circuit?” - -“Why,” he replied, “there’s not a man in England can touch that Mr. -Brougham.” - -“But you gave all the verdicts to Mr. Scarlett?” - -“Why, of course; he gets all the easy cases.” - -It is eloquence that persuades the jury that your case is the easy -case. As Cobbett said--and Cobbett had a common jury mind--“He is an -orator that can make me think as he thinks, and feel as he feels.” - -Mr. Montagu Williams has pointed out that the best English eloquence -of his time was founded on what he calls a solid style of advocacy. -“As leading examples,” he writes, “of what I may call the solid style, -I should name Serjeant Shee, Serjeant Parry, and Lord Justice Holker. -When I say ‘solid,’ I do not refer to heaviness of manner, but to -solidity of appearance, robustness of speech, and a general air of good -English honesty. This style is very taking with the juries of this -country. It was the heavy, nay, almost languid, way in which Lord -Justice Holker opened his cases, taken in conjunction with his sudden -awakenings and bursts of eloquence when important points were reached, -that rendered his style of advocacy so telling.” - -Nearly every great advocate has found it necessary to make use of -the eloquence of persuasion. Charles Russell is the one exception. -He did not seek to persuade, he directed the court and jury. Whether -or not he was, as Lord Coleridge said, “the biggest advocate of the -century,” he was undoubtedly a very great advocate. Clearness, force, -and earnestness were the basic qualities of his eloquence. It was said -of him that “ordinarily the judge dominates the jury, the counsel, the -public,--he is the central figure of the piece. But when Russell is -there the judge isn’t in it. Russell dominates every one.” - -But no man can dominate a jury in a doubtful case, and though Russell -was supreme in a good case, he had not that power possessed in a high -degree by another great advocate--still, happily, among us--Sir Edward -Clarke, who could not only insinuate doubts into the hearts of the -jury, but could leave his arguments so clearly in men’s minds that he -became, as it were, the thirteenth man on the jury when they retired -to consider their verdict. This requires real eloquence. - -The moral of the lives of the advocates seems to be that in the house -of eloquence there are many mansions, and any style natural to the man -who uses it is his right style, and may succeed. One besetting sin of -many would-be eloquent speakers is fatal, and that is bombast. The -young advocate who opened a libel case, “My client, gentlemen, is a -cheesemonger; and the reputation of a cheesemonger is like the bloom -upon a peach. Touch it, and it is gone for ever,” must have been immune -from eloquence. Yet there are solicitors and clients who still like -that kind of thing, and advocates who supply it. - -Nearer to eloquence was the advocate who, in defence of a woman for -child murder, said in passionate tones: “Gentlemen, it is impossible -that the prisoner can have committed this crime. A mother guilty of -such conduct to her own child! Why, it is repugnant to our better -feelings! Gentlemen, the beasts of the field, the birds of the air, -suckle their young----” - -The simile might perhaps have passed with the jury had not a dry, -unsympathetic voice from the bench interrupted with: “Mr. X, if you -establish the latter part of your proposition, your client will be -acquitted to a certainty.” - -And though eloquence at its highest is a gift, the art of speaking -can be learned and personal difficulties overcome. Demosthenes, with -his pebbles in his mouth or running up a hill spouting an oration, -has been an example to us from the schoolroom. Cicero took lessons -from Roscius and Æsop. Lord Guildford, Lord Campbell, Lord Brougham, -and others have impressed on students the importance of attending and -practising at moots and debating societies. The mechanics of eloquence -can be as certainly learned by the student as the mechanics of etching -or engraving, but how far these will make an artist of him and help to -bring real eloquence to the learner lies in himself. - -There is no golden rule of method, but there is this golden principle -to remember that the message of eloquence is addressed to the heart -rather than the brain. This is well put by Lord Chesterfield, who was -more human than many will allow, when he wrote to his son: “Gain the -heart, or you gain nothing; the eyes and the ears are the only road -to the heart. Merit and knowledge will not gain hearts, though they -will secure them when gained. Pray have that truth ever in your mind. -Engage the eyes by your address, air, and motions; soothe the ears by -the elegancy and harmony of your diction; the heart will certainly -follow; and the whole man and woman will as certainly follow the heart.” - -Thus is the grammar of the matter set down by a skilled grammarian, -yet it is but a bundle of dry sticks and kindles no flame. The high -privilege of lighting the torch at the lamp of eloquence is a gift of -the gods, for orators are born, and not made. - - - - - VI - - THE LAMP - OF JUDGMENT - - - - -VI - -THE LAMP OF JUDGMENT - - -Judgment inspires a man to translate good sense into right action. -I would not quarrel with the philosopher who describes judgment as -an instinct, but I would bid him remember that even an instinct is -acquired by “cunning” rather than luck. Let no one think that he -can attain to sound judgment without hard work. The judgment of the -advocate must be based on the maxim, “He that judges without informing -himself to the utmost that he is capable cannot acquit himself of -judging amiss.” - -A client is entitled to the independent judgment of the advocate. -Whether his judgment is right or wrong, it is the duty of the advocate -to place it at the disposal of his client. In the business of advocacy -judgment is the goods that the advocate is bound to deliver. Yet he -is under constant temptation to please his client by giving him an -inferior article. The duty of the advocate to give only his best is -wisely insisted upon by Serjeant Ballantine, who relates a personal -experience that all advocates must be ready to face. - -“The solicitor instructing me,” he writes, “was vehement in expressing -belief in his client’s innocence. I was of a different opinion. He, -acting upon his belief, desired that certain witnesses should be -called. I, governed by my convictions, absolutely refused to do so, -offering at the same time to return my brief. This, however, was -refused, and I was left to exercise my own responsibility. The above -question frequently arises, and some counsel have considered themselves -bound to obey the wishes of the solicitor. There is no doubt that -this is the safest course for the advocate, for, if he does otherwise -and the result is adverse, he is likely to be much blamed, and the -solicitor also is exposed to disagreeable comments; but I hold, and -have always acted upon the opinion, that the client retains counsel’s -judgment, which he has no right to yield to the wishes or opinions of -any one else. He is bound, if required, to return his brief, but if he -acts against his own convictions he sacrifices, I think, his duty as an -advocate.” - -An advocate of judgment has the power of gathering up the scattered -threads of facts and weaving them into a pattern surrounding and -emphasising the central point of the case. In every case there is -one commanding theory, to the proof of which all the facts must be -skilfully marshalled. An advocate with one point has infinitely greater -chances than an advocate with twenty points. - -Rufus Choate was an advocate of great judgment, and not only was he -enthusiastic and diligent in searching for the central theory, or “hub -of his case,” as he called it, but having made up his mind what it -was, he rightly put it forward without delay, believing that it was -the “first strike” that conquered the jury. Parker, his biographer, -tells us that “he often said to me that the first moments were the -great moments for the advocate. Then, said he, the attention is all -on the alert, the ears are quicker, the mind receptive. People think -they ought to go on gently, till, somewhere about the middle of their -talk, they will put forth all their power. But this is a sad mistake. -At the beginning the jury are all eager to know what you are going to -say, what the strength of your case is. They don’t go into details and -follow you critically all along: they try to get hold of your leading -notion, and lump it all up. At the outset, then, you want to strike -into their minds what they want--a good, solid, general view of _your_ -case; and let them think over that for a good while. ‘If,’ said he -emphatically, ‘you haven’t got hold of them, got their convictions at -least open, in your first half-hour or hour, you will never get at them -at all.’” - -Abraham Lincoln had a genius for seeing the real point of his case and -putting it straight to the Court. A contemporary who was asked in later -life what was Lincoln’s trick with the jury replied, “He saw the kernel -of every case at the outset, never lost sight of it, and never let it -escape the jury. That was the only trick I ever saw him play.” - -Sir Henry Hawkins held the same view. He used to say, “Concentration is -the art of argument. If you are diffuse, you will be cut up in detail.” -And he was fond of quoting the teachings of Denman on this subject: -“Remember also to put forward your best points first, for the weak ones -are very likely to prejudice the good ones if they take the lead. It -would be better advice to say never bring them forward at all, because -they are useless.” - -Johnny Williams, who appeared with Brougham and Denman for Queen -Caroline, was a man of great sagacity, but much given to strong -expletives. He was once induced by an attorney, against his own better -judgment, to ask a question, the answer to which convicted his client -on a capital charge. The circuit considered he was well justified, when -the trial was over, in turning to the attorney and saying with great -emphasis (formal expletives omitted), “Go home, cut your throat, and -_when_ you meet your client in hell, beg his pardon.” - -But an apology was also due from Williams for surrendering his judgment -to that of his attorney. - -In nothing does the advocate more openly exhibit want of judgment than -in prolixity. Modern courts of justice are blamed by the public, not -wholly without cause, for the length and consequent expense of trials. -To poor people this may mean a denial of justice. No one desires that -the judge should constantly interfere with counsel in the discharge -of their duties, but it seems to be his duty on occasion to blow his -whistle and point out to the combatants that they are offside. - -If every one connected with the trial of an action were to train -and use his judgment and co-operate with the judgments of his -fellow-workers in a policy of anti-waste, a great reproach would be -lifted from our courts of justice. - -Prolixity is no new disease. Many wise judges have sought to eradicate -it. In the time of Charles II. things seem to have been in a specially -bad way, and Lord Guildford, though he probably went to dangerous -extremes, was well thought of by the public for his endeavour to speed -up the legal machine. - -“In his lordship’s conduct of trials he was very careful of three -matters: 1. To adjust what was properly the question, and to hold the -counsel to that; for he that has the worst end of the staff, is very -apt to fling off from the point and go out of the right way of the -cause. 2. To keep the counsel in order; for in trials they have their -parts and their times. His lordship used frequently to inculcate to -counsel the decorum of evidencing practice. 3. To keep down repetition, -to which the counsel, one after another, are very propense; and, in -speeching to the jury one and the same matter over and over again, the -waste of time would be so great that, if the judge gave way to it, -there would scarce be an end; for most of the talk was not so much for -the causes as for their own sakes, to get credit in the country for -notable talkers. And his lordship often told them that their confused -harangues disturbed the order of his thoughts; and, after the trial -was over, it was very hard for him to resume his method and direct the -jury to comprise all the material parts of the evidence. Therefore he -was positive not to permit more than one counsel of a side to speech -it to the jury, by way of summing up the evidence; and he permitted -that in such a way as made them weary of it. For, in divers sorts of -trials, he wholly retrenched it; and where he observed much stiffness -and zeal of the parties in a cause, then, after the evidence was over, -he would say, ‘Come, make your speeches;’ and then sat him down: and -that looked with a sort of contempt of their talents, which gave them -a distrust, and discomposed their extempore so much that, for the most -part, they said, ‘No, we will leave it to your lordship.’ And thus the -abuse, by fastidious talk, wore away; and the practice before him was -so well known, as it became at length a pure management of evidence and -argument of law.” - -The judgment of an advocate may be called upon at any moment for a -sudden decision that may mean the victory or defeat of his client. -For this reason it is necessary that he should be always alert. The -contents of his brief must be already in his mind, and his attention -must be fixed on what is happening in court, which has rarely been -foreseen in the best-prepared brief ever delivered to counsel. - -It was Russell who turned round to his junior and said, “What are you -doing?” - -“Taking a note,” was the answer. - -At which Russell burst out in his uncompromising way: “What the devil -do you mean by saying you are taking a note? Why don’t you watch the -case?” - -“Watch the case!” It is a golden rule. - -It was the same when he was playing cards. He would get impatient with -a partner shuffling and handling his cards in a state of indecision. -“Why are you looking at your cards?” he asked. “Why don’t you watch the -game? The game is on the table.” - -In the same way an advocate who is always fumbling with his brief when -he is examining a witness cannot follow the game that is on the table -before him. - -Sound judgment is essential to the examination of witnesses. How few -advocates know how to examine a witness-in-chief! Birrell tells us that -Sir Frank Lockwood had very clear views on the subject. “He believed -that the examination of a witness-in-chief, or the direct examination -of witnesses, as it was called in Ireland, was very much underrated in -its significance and its importance. If they had to examine a witness, -what they had got to do was to induce him to tell his story in the -most dramatic fashion, without exaggeration; they had got to get him, -not to make a mere parrot-like repetition of the proof, but to tell -his own story as though he were telling it for the first time--not as -though it were words learnt by heart; but if it were a plaintive story, -plaintively telling it. And they had got to assist him in the difficult -work. They had got to attract him to the performance of his duty, but -woe be to them if they suggested to him the terms in which it was to be -put! They must avoid any suspicion of leading the witness, while all -the time they were doing it. They knew perfectly well the story he was -going to tell; but they destroyed absolutely the effect if every minute -they were looking down at the paper on which his proof was written. -It should appear to be a kind of spontaneous conversation between the -counsel on the one hand and the witnesses on the other, the witness -telling artlessly his simple tale, and the counsel almost appalled to -hear of the iniquity under which his client had suffered. - -“It was in this way, and in this way alone, that they could -effectively examine a witness.” - -There is probably more waste of time and irrelevance in the examination -of witnesses-in-chief than in any other procedure of counsel. This is -the modern drama of it. - -COUNSEL (_his eyes glued to his brief_): “Your name is Mary Ann Snooks.” - -WITNESS (_annoyed_): “Martha Ann.” - -COUNSEL: “Oh, yes, Martha Ann Snooks; and you are the wife of Thomas -Snooks, the bookmaker.” - -WITNESS (_very indignant_): “Nothing of the sort.” - -COUNSEL: “I beg your pardon--my mistake--bootmaker.” - -WITNESS: “And has been this thirty year----” - -COUNSEL: “And you live at 139 Doncaster Street, Upper Tulse Hill.” - -WITNESS: “We did live there; we’ve moved now, sir.” - -COUNSEL: “What is your present address?” - - etc., etc., _ad lib._ - -Consider for a moment, if you will, the horrid waste of all this -irrelevance standing between the Court and Mrs. Snooks’s version of -what she saw of an accident in High Street, Kensington, and reducing -her to a state of nervous irritation antipathetic to accurate testimony. - -How much more business-like was the method of the eighteenth century! -In a State trial in the days of Queen Anne the name of the lady is -announced in the oath, and then counsel approaches her, as Sir Frank -Lockwood might have done: “Pray, madam, will you be pleased to acquaint -my lord and the jury what you know concerning the matter, and what -passed between your brother Mr. Colepepper and Mr. Denew at his first -coming to him?” - -Much public time could be saved by more economical methods of -examination-in-chief, and greater efficiency would be ensured. - -Cross-examination, too, is almost entirely a matter of judgment. Two -golden rules handed down from the eighteenth century, and maybe from -beyond, are still unlearned lessons to each succeeding generation of -advocates: - -1. Never ask a question without having a good reason to assign for -asking it. - -2. Never hazard a critical question without having good ground to -believe that the answer will be in your favour. - -Serjeant Ballantine has some just observations on the art of -cross-examination and the use and abuse of it. - -“The records of justice,” he says, “from all time show that truth -cannot, in a great number of cases tried, be reasonably expected. Even -when witnesses are honest, and have no intention to deceive, there is -a natural tendency to exaggerate the facts favourable to the cause for -which they are appearing, and to ignore the opposite circumstances; -and the only means known to English law by which testimony can be -sifted is cross-examination. By this agent, if skilfully used, -falsehood ought to be exposed, and exaggerated statements reduced to -their true dimensions. An unskilful use of it, on the contrary, has a -tendency to uphold rather than destroy. If the principles upon which -cross-examination ought to be founded are not understood and acted -upon, it is worse than useless, and it becomes an instrument against -its employer. The reckless asking of a number of questions on the -chance of getting at something is too often a plan adopted by unskilful -advocates, and noise is mistaken for energy. Mr. Baron Alderson once -remarked to a counsel of this type, ‘Mr. ----, you seem to think that -the art of cross-examination is to examine crossly.’” - -How few advocates have the capacity to let well alone! They must repeat -and emphasise, and emphasise and repeat. In a case tried before Sir -Henry Hawkins, a junior, not content with his own witness’s answer, -continues: - -JUNIOR (_emphatically_): “And you are quite sure of this?” - -WITNESS: “Yes.” - -JUNIOR: “Quite?” - -WITNESS: “Quite!” - -JUNIOR: “You have no doubt about it?” - -WITNESS: “Well, I haven’t much doubt, because I asked my wife.” - -SIR HENRY (_pouncing on his prey_): “You asked your wife in order to be -sure in your own mind?” - -WITNESS: “Quite so, my lord.” - -SIR HENRY: “Then you had some doubt before?” - -WITNESS: “Well, I may have had, my lord.” - -It is part of the advocate’s rôle to make the jury believe in his -infallibility, and every question he asks that gives the witness an -opportunity to score off him and belittle him in their eyes is an -error of judgment. Serjeant Buzfuz, who conducted his case with fine -judgment, was guilty of a grave error in his examination of Sam Weller. -Brow-beating is always a dangerous policy; it antagonises the jury and -leads to reprisals. There is an old story of the counsel in an assault -case who asked the witness at what distance from the parties he was at -the time of the assault. Not content with the reply of “A few feet,” -but pressing for greater accuracy, he was answered by the witness: -“Just four feet five and a half inches.” - -“How do you come to be so very exact, fellow?” asked counsel sternly. - -“Because I expected some fool or other would ask me, so I measured it.” - -A good story, too, is told against Lord Coleridge in Mr. O’Brien’s -_Life of Lord Russell_. He appeared in a libel action for a young lady -who had been expelled from a college. His case was that the breaches of -discipline were trivial, and he pressed Mrs. Kennedy, the mistress of -novices, asking what his young client had done. Mrs. Kennedy said, as -an example, that she had eaten strawberries. - -“Eaten strawberries!” exclaimed Coleridge. “What harm was there in -that?” - -“It was forbidden, sir,” replied Mrs. Kennedy simply. - -Coleridge should have accepted her answer, but he retorted with a -contemptuous question, not foreseeing the reprisal, “But, Mrs. Kennedy, -what trouble was likely to come from eating strawberries?” - -“Well, sir,” replied Mrs. Kennedy, “you might ask what trouble was -likely to come from eating an apple, yet we know what trouble did come -from it.” - -Coleridge’s cross-examination dissolved in laughter, in which, of -course, he joined good-naturedly. - -The art of re-examination, which is a task often as futile as the -endeavour to set Humpty Dumpty on the wall again, can be learned only -by the experience of watching the game on the table and playing any few -remaining cards in your hand with rapid judgment. - -A wise student will take Lord Halsbury’s advice and go to the Old -Bailey to study cross-examination; and, if Lockwood’s view still -holds good, he might attend the Chancery Courts to learn how not to -re-examine. Birrell tells us that “once, in the Court of Chancery, -a witness was asked, in cross-examination by an eminent Chancery -leader, whether it was true that he had been convicted of perjury. The -witness owned the soft impeachment, and the cross-examining counsel -very promptly sat down. Then it became the duty of an equally eminent -Chancery Q.C. to re-examine. ‘Yes,’ said he, ‘it is true you have -been convicted of perjury. But tell me, have you not on many other -occasions been accused of perjury, and been acquitted?’” - -Most re-examination intending to rehabilitate the character of a -witness is apt to make matters worse. - -These stories of actual happenings, trivial in themselves, teach us the -necessity of judgment in advocacy. And I pray the young advocate not -to rejoice too merrily over the errors of judgment of his seniors or -lament too grievously about his own. Bear in mind that by acknowledged -error we may learn wisdom, and that the only illuminant for the lamp of -judgment is the oil of experience. - - - - - VII - - THE LAMP - OF FELLOWSHIP - - - - -VII - -THE LAMP OF FELLOWSHIP - - -An advocate lacking in fellowship, careless of the sacred traditions -of brotherhood which have kept the lamp of fellowship burning brightly -for the English Bar through many centuries, a man who joins the Bar -merely as a trade or business, and does not understand that it is also -a professional community with public ideals, misses the heart of the -thing, and he and his clients will suffer accordingly. - -Fitzjames Stephen wisely said of the English Bar that it is “exactly -like a great public school, the boys of which have grown older, and -have exchanged boyish for manly objects. There is just the same -rough familiarity, the general ardour of character, the same kind of -unwritten code of morals and manners, the same kind of public opinion -expressed in exactly the same blunt, unmistakable manner.” - -The very title of Inns of Court is redolent of hospitality, fellowship, -and even conviviality. How many glorious things have their beginnings -at an inn! How pleasant it would be to investigate with the -antiquarians the earliest origins of our Inns of Court! But to come to -comparatively modern days, Sir John Fortescue, who was Chief Justice of -the King’s Bench in the time of Henry VI., gives us a pleasant picture -of their traditions of fellowship. These Inns of Court, or hostels, he -says, anciently received the sons of noble men and the better sort of -gentlemen, “who did there not only study the laws to serve the courts -of justice and profit their country, but did further learn to dance, to -sing, to play on instruments on the ferial days and to study divinity -on the festival, using such exercises as they did who were brought -up in the King’s Court.” There were Inns of Chancery, too, where the -younger students learned the first elements of law before they were -taken into the greater hostels, which were called Inns of Court. The -expenses of the student were no less than twenty marks a year in -Fortescue’s day, and if he was attended by his servant, as most were, -that was an added charge, so that only the sons of gentlemen could -afford so expensive an education. - -At this time a young fellow would come from the university, or perhaps -straight from the grammar-school, and would learn the first elements of -law in one of the ten minor Inns of Chancery, and would then apply for -admission to one of the four houses or Inns of Court: Inner or Middle -Temple, Gray’s Inn or Lincoln’s Inn. There they continued for the -space of seven years, attending readings, moots--where cases were put -and discussed--and “boltings,” as the practice arguments were called, -“whereby,” as Fortescue tells us, “growing ripe in the knowledge of -the laws, and approved withal to be of honest conversation, they are -either by the general consent of the benchers or readers (being of the -most ancient, grave, and judicial men of every Inn of Court), or by -the special privilege of the present reader there, selected and called -to the degree of utter (outer) barristers, and so enabled to be common -counsellers and to practise the law both in their chambers and at the -bars.” - -The whole social scheme of education and control in the exercise of -professional rights and advancement was most carefully thought out. An -utter barrister of not less than ten or twelve years’ standing and “of -good profit in study” was chosen as reader to educate the students. At -about fifteen years’ standing he became a bencher, after which he might -be appointed a serjeant, and go away to Serjeants’ Inn, that important -society “where none but serjeants and judges do converse,” and from -which alone could judges be chosen. - -It was for this reason that the judges always addressed a serjeant -as “Brother.” I can well remember as a boy feeling a certain glow of -satisfaction at hearing the judges in the Tichborne trial calling -my father “Brother Parry,” and it seems a pity that this fraternal -greeting, this courteous link of fellowship between Bench and Bar, -necessarily disappeared with the abolition of Serjeants’ Inn. Yet, -though the talisman is no longer spoken, the spirit of brotherhood will -always be with us. - -In the old days education in the law was undertaken very seriously, -but in a fraternal spirit. The reader would propound a case, the utter -barristers would declare their opinion, the reader would confute the -objections laid against him, and the students would eagerly note the -learned points of the seniors. These readings took four or five hours -daily, and were held in the halls. The moots and the boltings took -place after supper, and at other times among the students under the -leadership of a barrister. - -But the whole term was not taken up with the dry study of the law. -There were feastings, grand nights, and, greatest of all, the Christmas -Saturnalia, at one of which, after a costly dinner, a pack of hounds -was brought into the hall, a fox and a cat were let loose, and a mad -hunt took place. Isaac D’Israeli gives an excellent account of these -wild doings, taken from a rare tract supposed to have been written -in 1594. “Supper ended,” he writes, “the constable-marshal presented -himself, with drums playing, mounted on a stage borne by four men, and -carried round; at length he cries out, ‘A lord, a lord,’ &c., and then -calls his mock court every one by name. - -“‘Sir Francis Flatterer, of Fowls-hurt. - -“‘Sir Randall Rackabite, of Rascal-hall, in the county of Rake-hell. - -“‘Sir Morgan Mumchance, of Much Monkery, in the county of Mad Mopery. - -“‘Sir Bartholomew Bald-breech, of Buttock-bury, in the county of -Break-neck.’ - -“They had also their mock arraignments. The king’s-serjeant, -after dinner or supper, ‘oratour-like,’ complained that the -constable-marshal had suffered great disorders to prevail; the -complaint was answered by the common-serjeant, who was to show his -talent at defending the cause. The king’s-serjeant replies; they -rejoin, &c.: till one at length is committed to the Tower, for being -found most deficient. If any offender contrived to escape from the -lieutenant of the Tower into the buttery, and brought into the hall a -manchet (or small loaf) upon the point of a knife, he was pardoned; -for the buttery in this jovial season was considered as a sanctuary. -Then began the _revels_. Blount derives this term from the French -_reveiller_, to awake from sleep. These were sports of dancing, masking -comedies, &c. (for some were called solemn revels), used in great -houses, and were so denominated because they were performed by night; -and these various pastimes were regulated by a master of the revels. - -“Amidst ‘the grand Christmass’ a personage of no small importance was -‘the Lord of Misrule.’ His lordship was abroad early in the morning, -and if he lacked any of his officers, he entered their chambers to drag -forth the loiterers; but after breakfast his lordship’s power ended, -and it was in suspense till night, when his personal presence was -paramount, or, as Dugdale expresses it, ‘and then his power is most -potent.’ - -“Such were then the pastimes of the whole learned bench; and when once -it happened that the under-barristers did not dance on Candlemas Day, -according to the ancient order of the society, when the judges were -present, the whole bar was offended, and at Lincoln’s Inn were by -decimation put out of commons, for example-sake; and should the same -omission be repeated, they were to be fined or disbarred; for these -dancings were thought necessary, ‘as much conducing to the making of -gentlemen more fit for their books at other times.’” - -The details of the alliteration with which Sir Francis Flatterer and -others are called into court have always interested me deeply, as on -the Northern Circuit, when the crier at Grand Court calls in the absent -ones, he has to do it in curious and measured phrases of alliterative -abuse. When Fitzjames Stephen was made crier on account of his -stentorian voice, his delicate mind revolted against the coarseness of -his duties, and he sought to have the Circuit Court and its ancient, -outspoken manners abolished, but fortunately he did not succeed. - -For though some of this ancientry is better honoured in the breach -than the observance, yet even the buffoonery, as Stephen called it, of -Grand Court has its value as a link with the past. - -It is an excellent thing for the profession that in the same way as -the lessons of advocacy in the past were learned by the young students -from their elders, who sat at meat with them and shared their lives in -intimate and homely fashion, so to-day we enter a common Inn, dine at a -common table, join a common mess upon circuit, all of which is evidence -of the continuance of that right spirit of fellowship which, to my -mind, is an essential of advocacy. - -The fellowship of the Temple springs from its long traditions of -brotherhood among the Templars. To turn out of the Strand into its -quiet courts brings over your brooding spirit something of that sacred -melancholy pleasure which one feels on entering the old school or -dining once again in the college hall. But you are no longer actor, -art and part, in the school and college life. Here in the Temple, -though others are judges and benchers and fashionable leaders, you -can still wander in shabby honesty in the gardens, pull down some of -the old volumes in the library, and dine below the salt with your -fellow-ancients. - -Thackeray has a true insight into the pleasures of memory that the -Temple possesses for those who have lived there, and pictures, as he -alone can, its historic charm. - -“Nevertheless,” he writes, “those venerable Inns which have the Lamb -and Flag and the Winged Horse for their ensigns have attractions -for persons who inhabit them, and a share of rough comforts and -freedom which men always remember with pleasure. I don’t know whether -the student of law permits himself the refreshment of enthusiasm, -or indulges in poetical reminiscences as he passes by historical -chambers and says, ‘Yonder Eldon lived--upon this site Coke mused upon -Lyttelton--here Chitty toiled--here Barnwell and Alderson joined in -their famous labours--here Byles composed his great work upon bills, -and Smith compiled his immortal leading cases--here Gustavus still -toils, with Solomon to aid him:’ but the man of letters can’t but love -the place which has been inhabited by so many of his brethren, or -peopled by their creations, as real to us at this day as the authors -whose children they were--and Sir Roger de Coverley, walking in the -Temple Garden and discoursing with Mr. Spectator about the beauties in -hoops and patches who are sauntering over the grass, is just as lovely -a figure to me as old Samuel Johnson rolling through the fog with the -Scotch gentleman at his heels on their way to Dr. Goldsmith’s chambers -in Brick Court; or Harry Fielding, with inked ruffles and a wet towel -round his head, dashing off articles at midnight for the _Covent Garden -Journal_ while the printer’s boy is asleep in the passage.” - -The Temple is full of ghosts--honest ghosts with whom it is a privilege -to claim fellowship. - -There are some who speak of the Bar sneeringly as a Trade Union--which -it certainly is, and to my thinking one of the oldest and best unions. -And if advocacy could be honestly described as a trade, then the phrase -trade union might be accepted without demurrer. For the basic quality -of a trade union, that which has made these institutions thrive against -opposition, is the spirit of fellowship and unselfishness which is the -ideal of its members. - -We have seen how of old the senior members of the Bar trained up the -juniors in the mystery of their craft, and throughout the practice of -the profession it has always been a point of honour for the elders to -assist the beginners in those difficult days of apprenticeship. - -What could be more delightful and encouraging to a youngster than to be -received by his genial, handsome leader in the presence of an admiring -attorney after the fashion that Montagu Williams tells us of his first -meeting with Serjeant Shee? “I shall never forget,” he writes, “my -consultation with dear old Serjeant Shee. I knew very little about -pleadings, and matters of that kind, and so the work naturally made -me feel somewhat nervous. On going upstairs to the consulting-room to -see Serjeant Shee, whom I already knew slightly, I had my briefs stuck -under my arm, somewhat ostentatiously, I am afraid. The old serjeant -patted me on the shoulder and said, ‘Lots of briefs flowing in, my boy; -delighted to see it.’ - -“When we had taken our seats, and the consultation had begun, he said, -turning to the solicitor who instructed us, ‘Winning case--pleadings -all wrong. That young dog over there smelt it out long ago, as a -terrier would a rat, I can see--eh, Montagu Williams? You’ve found it -out; I can see it by your face.’ - -“Heaven knows I was as innocent of finding anything out as the man in -the moon. I sniggered feebly; and then the serjeant proceeded to put -into my mouth the vital blots in the case of our adversary, which he -alone had discovered. - -“That was the way leaders treated their juniors then. I must leave my -successors at the Bar to decide whether or not things are the same now.” - -With equal kindness that great man and honest advocate, Abraham -Lincoln, stretched out the hand of welcome and encouragement to the -younger men who came along. - -James Haines tells us the story of his first brief, The People _v._ -Gideon Hawley. “There were,” he says, “thirty-two indictments against -my client for obstructing a public road, and as the authorities -were inclined to make an example, the case was somewhat serious. I -retained Mr. L. to conduct the defence, and after we had completed our -preparations he said, ‘Of course, you will make the opening speech.’ -I was surprised, for I had supposed that he would want to assume full -control, and I said as much, adding that I would prefer him to take -the lead. ‘No,’ he answered, and then, laying a hand on my shoulder, -he continued: ‘I want you to open the case, and when you are doing it, -talk to the jury as though your client’s fate depends on every word you -utter. Forget that you have any one to fall back upon, and you will do -justice to yourself and your client.’ I have never forgotten the kind, -gentle, and tactful manner in which he spoke those words,” Mr. Haines -continued, “and that is a fair sample of the way he treated the younger -members of the Bar.” - -No man ever attains a position at the Bar in which he can afford to -despise the opinion of his fellow-men. The eulogies of public journals, -even the praise and patronage of attorneys, are of no worth compared -with the respect of the Bar. As a French advocate wrote: “A solid -reputation proceeds only from the Court.” - -Charles Russell, who stood on a somewhat lonely eminence at the head -of his profession, and dealt with the affairs of his fellows in a very -rough-handed and independent manner, was at heart very jealous of the -good opinion of the Bar. - -He had, during the course of a trial, cross-examined a lady with great -severity, and afterwards received an anonymous letter of a very abusive -character, in which he was charged with having been guilty of conduct -in his cross-examination “which no gentleman should pursue towards any -woman.” He thereupon sat down and wrote a letter to the counsel on the -other side, in which he said, “I should be sorry to think this was -true, but I am not the best judge of my own conduct,” and asked for his -learned friend’s opinion on the charge. - -The interesting point of the correspondence is that Russell felt that -it might possibly be true. It reminds one of the celebrated line in -a lively mid-Victorian comedy, where the servant-girl said, “Really, -ma’am, I’m that flustered that I don’t know whether I am standing on -my head or my heels.” To which Mrs. John Wood used to reply with stern -emphasis, “No decent woman ought to have the slightest doubt on a -subject of that kind.” - -Russell’s learned friend cleverly evaded responsibility by telling him -that the character of a gentleman was one “we all know you eminently -possess,” with which certificate of character the great man was soothed -and satisfied. - -With the decay of circuits and the passing of old customs and the -silence of ancient convivialities, some of the spirit of fellowship -may be lost. But we must remember that even the good old days were not -without evidence of professional malice and uncharitableness. As far -back as the reign of François I. it was a rule of the French Bar that -“advocates must not use contentious words or exclamations the one -toward the other; or talk several at the same time, or interrupt each -other.” These words might still be engraved in letters of gold on the -walls of our own law-courts, for on occasion the lamp of fellowship -burns so low that such things occur. Still, at the English Bar we may -claim that we set a good example to other bodies of learned men by -our real attachment to the precepts and practice of fellowship, and -may, without hypocrisy, commend the rest of mankind to follow in our -footsteps, - - And do as adversaries do in law, - Strive mightily, but eat and drink as friends. - -For it is by keeping the lamp of fellowship burning that we encourage -each other to walk in the light of the seven lamps of advocacy. - - - - -INDEX - - - Alderson, Baron, 86 - - Atlay, J. B., 67 - - - Bacon, Francis, 65 - - Ballantine, Serjeant, 76, 85 - - Benjamin, J. P., 26 - - Berryer, M., 18 - - Bethell, Richard, 23, 65, 66 - - Billings, Josh, 56 - - Birrell, A., 82, 89 - - Blackstone, Sir W., 13 - - Boswell, James, 16, 17, 18 - - Bowen, Lord Justice, 54 - - Bramwell, Lord, 53 - - Brougham, Lord, 18, 42, 63, 68, 71, 78 - - - Campbell, Lord Chief Justice, 39, 71 - - Capitularies of Charlemagne, 14 - - Chesterfield, Lord, 71 - - Choate, Rufus, 50, 51, 61, 77 - - Cicero, 50 - - Clarke, Sir Edward, 69 - - Cobbett, William, 68 - - Cockburn, Lord Chief Justice, 18 - - Coleridge, Lord Chief Justice, 53, 69, 88, 89 - - Copley, Serjeant (Lord Lyndhurst), 66 - - Curran, J. P., 52 - - - D’Aguesseau, 14 - - Davy, Serjeant, 52 - - Denman, Lord, 67, 78 - - D’Israeli, Isaac, 97 - - Dugdale, Sir William, 44 - - - Eldon, Lord. _See_ Scott, John - - Erskine, Lord, 11, 30, 31, 50, 61, 63 - - - Faculty of Advocates, 13 - - Fielding, Henry, 61, 102 - - Finch, Heneage, 42, 43 - - Fortescue, Sir John, 94 - - François I, 106 - - - Garrick, 11, 61, 62 - - Grant, James, 66 - - Guildford, Lord. _See_ North, Francis. - - Gully, W. C. (Lord Selby), 45, 53, 66 - - - Haines, James, 104, 105 - - Hale, Lord Chief Justice, 25 - - Halsbury, Lord, 89 - - Hatton, Charles, 23 - - Hawkins, Sir Henry, 11, 78, 87 - - Herschell, Lord, 45 - - Holker, Sir John, 53, 68 - - Hollams, Sir John, 26 - - Horn, Andrew, 14 - - - Irving, Sir Henry, 11 - - - James, Lord Justice, 26 - - Jeffreys, Baron, 23 - - Johnson, Doctor, 16, 17, 18, 102 - - Jones, Tom, 28 - - - Karslake, Sir John, 40 - - Kay, Lord Justice, 27 - - Kean, 11 - - Kelly, Chief Baron, 57 - - Kennedy, Mrs., 88, 89 - - Kenyon, Lord Chief Justice, 45, 50 - - - Lamb, Charles, 37, 61 - - Leach, Sir John, 65 - - Lincoln, Abraham, 19, 38, 61, 78, 104 - - Lockwood, Sir Frank, 82, 85 - - - Mansfield, Lord Chief Justice, 51 - - Maynard, Serjeant, 42 - - _Mirrour of Justices_, 14 - - - North, Francis, 24, 42, 80 - - North, Roger, 24, 25, 26, 42, 44 - - - O’Brien, R. B., 40, 88 - - O’Connell, Daniel, 41 - - - Paine, Thomas, 30 - - Palmer, Sir Roundell (Lord Selborne), 27 - - Parry, Serjeant, 68, 96 - - - Quintilian, 55 - - - Ribton, 56 - - Robinson, Serjeant, 28 - - Roche, Sir Boyle, 52 - - Russell, Charles (Lord Russell of Killowen), 38, 40, 41, 45, 69, 82, - 105, 106 - - - Scarlett, James (Lord Abinger), 61, 67, 68 - - Scott, John (Lord Eldon), 44, 46 - - Seward, William Henry, 32 - - Shee, Serjeant, 68, 103 - - Stephen, FitzJames, Mr. Justice, 93, 99 - - - Talbot, Charles, Lord Chancellor, 45 - - Thackeray, W. M., 101 - - - Westbury, Lord. _See_ Bethell - - Wightman, Mr. Justice, 56 - - Wilde, Mr. Justice, 50 - - Williams, Johnny, 78, 79 - - Williams, Joshua, 19 - - Williams, Montagu, 68, 103 - - Wood, Mrs. John, 106 - - Wren, Sir Christopher, 43 - - Wyclif, John, 13 - - - _Printed in Great Britain by Hazell, Watson & Viney, Ld., - London and Aylesbury._ - - - - -TRANSCRIBER’S NOTES: - - - Italicized text is surrounded by underscores: _italics_. - - Obvious typographical errors have been corrected. - -*** END OF THE PROJECT GUTENBERG EBOOK THE SEVEN LAMPS OF -ADVOCACY *** - -Updated editions will replace the previous one--the old editions will -be renamed. - -Creating the works from print editions not protected by U.S. copyright -law means that no one owns a United States copyright in these works, -so the Foundation (and you!) can copy and distribute it in the -United States without permission and without paying copyright -royalties. 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You may copy it, give it away or re-use it under the terms -of the Project Gutenberg License included with this eBook or online -at <a href="https://www.gutenberg.org">www.gutenberg.org</a>. If you -are not located in the United States, you will have to check the laws of the -country where you are located before using this eBook. -</div> - -<p style='display:block; margin-top:1em; margin-bottom:1em; margin-left:2em; text-indent:-2em'>Title: The Seven Lamps of Advocacy</p> - <p style='display:block; margin-top:1em; margin-bottom:0; margin-left:2em; text-indent:-2em'>Author: Edward Abbott Parry</p> -<p style='display:block; text-indent:0; margin:1em 0'>Release Date: August 29, 2021 [eBook #66162]</p> -<p style='display:block; text-indent:0; margin:1em 0'>Language: English</p> - <p style='display:block; margin-top:1em; margin-bottom:0; margin-left:2em; text-indent:-2em; text-align:left'>Produced by: David E. Brown and The Online Distributed Proofreading Team at https://www.pgdp.net (This file was produced from images generously made available by The Internet Archive/Canadian Libraries)</p> -<div style='margin-top:2em; margin-bottom:4em'>*** START OF THE PROJECT GUTENBERG EBOOK THE SEVEN LAMPS OF ADVOCACY ***</div> - -<div class="figcenter"><img src="images/cover.jpg" width="50%" alt="" /></div> - -<hr class="chap x-ebookmaker-drop" /> - -<h1> -THE SEVEN LAMPS<br /> -OF ADVOCACY</h1> - - -<hr class="chap x-ebookmaker-drop" /> - -<div class="chapter"> -<div class="bbox"> -<p class="ph1">WHAT THE<br /> -JUDGE THOUGHT</p> - - - -<p class="center">By <span class="smcap">His Honour Judge Edward<br /> -Parry</span>. Demy 8vo. Cloth. 21s. net</p> - - -<p class="center">(<i>Third Impression</i>)</p> - -<p class="center">T. FISHER UNWIN, <span class="smcap">Ltd.</span>, LONDON</p> -</div></div> - -<hr class="chap x-ebookmaker-drop" /> - -<div class="figcenter"><img src="images/i_title.jpg" alt="" /></div> - -<hr class="chap x-ebookmaker-drop" /> - -<div class="chapter"> -<div class="titlepage"> - -<p><span class="xxlarge">THE SEVEN LAMPS<br /> -OF ADVOCACY</span> <span class="xlarge"><i>By<br /> -His Honour Judge</i> EDWARD<br /> -ABBOTT PARRY</span></p> - - -<p>T. FISHER UNWIN LTD<br /> -LONDON: ADELPHI TERRACE</p> -</div></div> - -<hr class="chap x-ebookmaker-drop" /> - -<div class="chapter"> -<p class="center"> -<i>First published in 1923</i><br /> -<br /> -<br /> -(<i>All rights reserved</i>)</p> -</div> - -<hr class="chap x-ebookmaker-drop" /> - -<div class="chapter"> -<p class="center">TO<br /> -<br /> -<span class="xlarge">THE NORTHERN CIRCUIT</span><br /> -<br /> -WHERE I LEARNED<br /> -<br /> -THESE THINGS</p> -</div> - -<hr class="chap x-ebookmaker-drop" /> - -<div class="chapter"> -<h2 class="nobreak">CONTENTS</h2> -</div> - - -<table border="0" cellpadding="2" cellspacing="2" summary="table"> - - -<tr><td> </td><td> </td><td class="tdr"><span class="small">PAGE</span></td></tr> - -<tr><td class="tdr">I.</td><td> <span class="smcap">The Lamp of Honesty</span></td><td class="tdr"><a href="#Page_11">11</a></td></tr> - -<tr><td class="tdr">II.</td><td> <span class="smcap">The Lamp of Courage</span></td><td class="tdr"><a href="#Page_23"> 23</a></td></tr> - -<tr><td class="tdr">III.</td><td> <span class="smcap">The Lamp of Industry</span></td><td class="tdr"><a href="#Page_37"> 37</a></td></tr> - -<tr><td class="tdr">IV.</td><td> <span class="smcap">The Lamp of Wit</span></td><td class="tdr"><a href="#Page_49"> 49</a></td></tr> - -<tr><td class="tdr">V.</td><td> <span class="smcap">The Lamp of Eloquence</span></td><td class="tdr"><a href="#Page_61"> 61</a></td></tr> - -<tr><td class="tdr">VI.</td><td> <span class="smcap">The Lamp of Judgment</span></td><td class="tdr"><a href="#Page_75"> 75</a></td></tr> - -<tr><td class="tdr">VII.</td><td> <span class="smcap">The Lamp of Fellowship</span></td><td class="tdr"><a href="#Page_93"> 93</a></td></tr> -</table> - - -<hr class="chap x-ebookmaker-drop" /> - -<div class="chapter"> -<p class="ph2">I<br /> - -THE LAMP<br /> -OF HONESTY</p> -</div> - - -<hr class="chap x-ebookmaker-drop" /> - -<div class="chapter"> -<span class="pagenum" id="Page_11">[11]</span> - -<h2 class="nobreak">I<br /> - - -THE LAMP OF HONESTY</h2> -</div> - -<p><span class="smcap">The</span> great advocate is like the great actor: -he fills the stage for his span of life, succeeds, -gains our applause, makes his last -bow, and the curtain falls. Nothing is so -elusive as the art of acting, unless indeed -it be the sister art of advocacy. You -cannot say that the methods of Garrick, -Kean or Irving, Erskine, Hawkins or -Russell, were the right methods or the -only methods, or even that they were the -best methods of practising their several -arts; you can only say that they succeeded -in their day, and that their contemporaries -acclaimed them as masters.</p> - -<p>Inasmuch as their methods were often -new and startling to their own generation, -the young student of acting or advocacy -is eager to believe that there are no -methods and no technique to learn, and -no school in which to graduate. Youth -is at all times prone to act on the principle -that there are no principles, that there is -no one from whom it can learn, and nothing<span class="pagenum" id="Page_12">[12]</span> -to teach. Any one, it seems, can don a -wig and gown, and thereby become an -advocate. Yet there are principles of -advocacy; and if a few generations were -to forget to practise these, it would indeed -be a lost art. The student of advocacy -can draw inspiration and hope from the -stored-up experience of his elders. He can -trace in the plans and life-charts of the -ancients the paths along which they strode, -journeying towards Eldorado. True, -these figures of forgotten advocates are -dim and obscure—only to be painfully -seen through the dusty gauzes of forgotten -years, pictured for us in drowsy voluminous -memoirs, or baldly reported in mouldering -law reports; but if we search these -records diligently we gradually discern -a race of worthy men—see them haunting -the old libraries, pacing the ancient halls -with their clients, proud of the traditions -of their great profession—advocates—advocates -all.</p> - -<p>It is in an endeavour to recapture something -of the lives of these great ones, and -the principles upon which they built their -success, that I have struggled through -forbidding masses of decaying biography -in hopes to catch a faint whisper here and -there of the triumphant works and days -of my professional forbears.</p> - - - -<p><span class="pagenum" id="Page_13">[13]</span>For a race of moderns, that, maybe, -care for none of these things, I have -lighted again the old lamps which burned -so brightly in the days that are gone, -which I myself have seen lighting the -darkness of our courts, and guiding the -footsteps of the judges in the paths of -justice and truth. For without a free -and honourable race of advocates the -world will hear little of the message of -justice. Advocacy is the outward and -visible appeal for the spiritual gift of -justice. The advocate is the priest in -the temple of justice, trained in the -mysteries of the creed, active in its exercises. -For this reason Wyclif in his translation -of I John ii. 1 sanctifies the word -in the text: “We haue auoket anentis the -fadir, Jhesu Crist just.” Modern versions -retain “advocate,” but unhappily substitute -“righteous” for “just”. Advocacy -connotes justice. Upon the altars of -justice the advocate must keep his seven -lamps clean and burning brightly. In -the centre of these must ever be the lamp -of honesty.</p> - -<p>The English Bar is a society of advocates, -though, as Blackstone tells us, we -generally call them counsel. The Scots -retain the name in their Faculty of Advocates. -The word must be insisted upon<span class="pagenum" id="Page_14">[14]</span> -for its ancientry and meaning. The order -of advocates is, in D’Aguesseau’s famous -phrase, “as noble as virtue.” Far back -in the Capitularies of Charlemagne it was -ordained of the profession of advocates -“that nobody should be admitted therein -but men mild, pacific, fearing God, and -loving justice, upon pain of elimination.” -So may it continue, world without end.</p> - -<p>From the earliest, Englishmen have -understood that advocacy is necessary to -justice, and honesty is essential to advocacy. -The thirteenth century <i>Mirrour -of Justices</i> may, as modern jurists hold, -be a contemptible legal compilation. It -is said to have been written by one -Andrew Horn, a fishmonger; and what -could he have known, say the learned ones, -about the origin and history of legal -affairs? Nevertheless, to the reader of -to-day the views of the man in the street, -the common citizen of a bygone age, -about the place in the world of the advocate -is more precious than many black-letter -folios of crabbed juridical learning.</p> - -<p>“Some there be,” says our fishmonger -very shrewdly, “who know not how to -state their causes or to defend them in -court, and some who cannot, and therefore -are pleaders necessary; so that what -plaintiffs and others cannot or know not<span class="pagenum" id="Page_15">[15]</span> -how to do by themselves they may do -by their serjeants, proctors, or friends. -Pleaders are serjeants wise in the law of -the realm who serve the commonality -of the people, stating and defending for -hire actions in court for those who have -need of them. Every pleader who acts -in the business of another should have -regard to four things:—First, that he be -a person receivable in court, that he be no -heretic, nor excommunicate, nor criminal, -nor man of religion, nor woman, nor -ordained clerk above the order of sub-deacon, -nor beneficed clerk with the cure -of souls, nor infant under twenty-one -years of age, nor judge in the same cause, -nor open leper, nor man attainted of -falsification against the law of his office. -Secondly, that every pleader is bound by -oath that he will not knowingly maintain -or defend wrong or falsehood, but will -abandon his client immediately that he -perceives his wrong-doing. Thirdly, that -he will never have recourse to false delays -or false witnesses, and never allege, proffer, -or consent to any corruption, deceit, lie, -or falsified law, but loyally will maintain -the right of his client, so that he may not -fail through his folly or negligence, nor by -default of him, nor by default of any -argument that he could urge; and that<span class="pagenum" id="Page_16">[16]</span> -he will not by blow, contumely, brawl, -threat, noise, or villain conduct disturb -any judge, party, serjeant, or other in -court, nor impede the hearing or the -course of justice. Fourthly, there is the -salary, concerning which four points must -be regarded—the amount of the matter -in dispute, the labour of the serjeant, his -value as a pleader in respect of his (learning), -eloquence, and repute, and lastly -the usage of the court.”</p> - -<p>Note how from the earliest days the -advocate may in no way maintain or defend -wrong or falsehood. It is the right -of his client he is there to uphold, and -the right only. Nevertheless, although -an advocate is bound by obligations of -honour and probity not to overstate the -truth of his client’s case, and is forbidden -to have recourse to any artifice or subterfuge -which may beguile the judge, he is -not the judge of the case, and within these -limits must use all the knowledge and gifts -he possesses to advance his client’s claims -to justice.</p> - -<p>Many good men have been troubled -with the thought that advocacy implied -a certain want of honesty. Boswell asked -Doctor Johnson whether he did not think -“that the practice of the law in some -degree hurt the nice feeling of honesty?”<span class="pagenum" id="Page_17">[17]</span> -To whom the doctor replied: “Why no, -Sir, if you act properly. You are not to -deceive your clients with false representations -of your opinion: you are not -to tell lies to a judge.” <i>Boswell</i>: “But -what do you think of supporting a cause -which you know to be bad?” <i>Johnson</i>: -“Sir, you do not know it to be good or -bad till the judge determines it. I have -said that you are to state facts fairly; -so that your thinking, or what you call -knowing, a cause to be bad must be from -reasoning, must be from your supposing -your arguments to be weak and inconclusive. -But, Sir, that is not enough. An -argument which does not convince yourself, -may convince the judge to whom you -urge it: and if it does convince him, why, -then, Sir, you are wrong, and he is right. -It is his business to judge; and you are -not to be confident in your own opinion -that a cause is bad, but to say all you can -for your client, and then hear the Judge’s -opinion.” <i>Boswell</i>: “But, Sir, does not -affecting a warmth when you have no -warmth, and appearing to be clearly of -one opinion when you are in reality of -another opinion, does not such dissimulation -impair one’s honesty? Is there not -some danger that a lawyer may put on the -same mask in common life, in the intercourse<span class="pagenum" id="Page_18">[18]</span> -with his friends?” <i>Johnson</i>: “Why -no, Sir, everybody knows you are paid for -affecting warmth for your client; and it -is, therefore, properly no dissimulation: -the moment you come from the bar you -resume your usual behaviour. Sir, a -man will no more carry the artifice of -the bar into the common intercourse of -society, than a man who is paid for tumbling -upon his hands will continue to -tumble upon his hands when he should -walk on his feet.”</p> - -<p>I like the rough English common-sense -of this; but the Irishman in the dock had -an inspired vision of the same truth when, -in answer to the Clerk of the Crown, who -called upon him with the familiar interrogatory, -“Guilty or Not Guilty?” he -replied with a winning smile, “And how -can I tell till I hear the evidence?”</p> - -<p>When Lord Brougham, at a dinner to -M. Berryer, claimed in his speech that the -advocate should reckon everything as -subordinate to the interests of his client, -Lord Chief Justice Cockburn, “feeling -that our guest might leave us with a false -impression of our ideals,” set forth his -views of an advocate’s duty, concluding -with these memorable words: “The arms -which an advocate wields he ought to use -as a warrior, not as an assassin. He ought<span class="pagenum" id="Page_19">[19]</span> -to uphold the interests of his client <i>per fas</i>, -and not <i>per nefas</i>. He ought to know how -to reconcile the interests of his clients -with the eternal interests of truth and -justice.”</p> - -<p>The best advocates of all generations -have been devotees of honesty. Abraham -Lincoln founded his fame and success in -the profession on what some called his -“perverse honesty.” On his first appearance -in the Supreme Court of Illinois he -addressed the court as follows: “This -is the first case I have ever had in this -court, and I have therefore examined it -with great care. As the court will perceive -by looking at the abstract of the -record, the only question in the case is -one of authority. I have not been able -to find any authority to sustain my side -of the case, but I have found several cases -directly in point on the other side. I will -now give these authorities to the court, -and then submit the case.”</p> - -<p>There have been advocates who regard -such a course as quixotic. The late Joshua -Williams was asked whether, if an advocate -knows of a decided case in point against -him which he has reason to believe is not -known to the other side, he is bound to -reveal it, and gave it as his opinion that -“in principle this is no part of his duty<span class="pagenum" id="Page_20">[20]</span> -as an advocate.” It must be remembered -that this opinion was given when a host -of cases were decided against their merits -on purely technical points of law; but -there is no doubt what the practice ought -to be, and what among English advocates -the practice is.</p> - -<p>If an advocate knows the law to be <i>x</i>, -it is not honest to lead the court to believe -that it is <i>y</i>. Whether the advocate does -this by directly mis-stating the law, or -by deliberately omitting to state it fully -within the means of his knowledge, it is -equally without excuse, and dims the lamp -of honesty.</p> - -<p>For the advocate must remember that -he is not only the servant of the client, but -the friend of the court, and honesty is as -essential to true friendship as it is to sound -advocacy.</p> -<hr class="chap x-ebookmaker-drop" /> - -<div class="chapter"> -<span class="pagenum" id="Page_21">[21]</span> - -<p class="ph2">II<br /> - -THE LAMP<br /> -OF COURAGE</p> -</div> - -<p><span class="pagenum" id="Page_22">[22]</span></p> -<hr class="chap x-ebookmaker-drop" /> - -<div class="chapter"> -<span class="pagenum" id="Page_23">[23]</span> - -<h2 class="nobreak">II<br /> - - -THE LAMP OF COURAGE</h2> -</div> - -<p><span class="smcap">Advocacy</span> needs the “king-becoming -graces: devotion, patience, courage, fortitude.” -Advocacy is a form of combat -where courage in danger is half the battle. -Courage is as good a weapon in the forum -as in the camp. The advocate, like Cæsar, -must stand upon his mound facing the -enemy, worthy to be feared, and fearing -no man.</p> - -<p>Unless a man has the spirit to encounter -difficulties with firmness and pluck, he had -best leave advocacy alone. Richard Bethell, -Lord Westbury, in early life took for his -motto: “<i>De l’audace et encore de l’audace, -et toujours de l’audace</i>.” In advising on a -case he was always clear and direct, saying -that he was “paid for his opinion, not for -his doubts.” Charles Hatton, writing as a -layman of Jeffreys in his early days at -the bar, shrewdly notes his best quality: -“He hath in perfection the three chief -qualifications of a lawyer: Boldness, Boldness, -Boldness.” A modern advocate<span class="pagenum" id="Page_24">[24]</span> -kindly reproving a junior for his timidity -of manner wisely said: “Remember it is -better to be strong and wrong than weak -and right.”</p> - -<p>The belief that success in advocacy can -be attained by influence, apart from personal -qualifications, is ill-founded. There -was never a youngster with better backing -than Francis North, afterwards Lord -Keeper to Charles II., yet, as his biographer -says, “observe his preparatives,” -his earnest attendances at moots, his -diligent waiting in that “dismal hole” the -“corner chamber, one pair of stairs in -Elm Court.”</p> - -<p>In the same way his younger brother, -Roger, though born in the ermine, so to -speak, had to plod his way up like any -other junior. It is good to be the brother -of a Lord Chancellor, but it does not make -a man an advocate.</p> - -<p>Roger North’s autobiography is full of -interest to the student of advocacy. His -memory of his first appearance is vivid -and entertaining. “I was immediately -called,” he writes, “to the Bar, <i>ex gratiâ</i>, -not having standing, although I had performed -such exercises as the house required, -save a few. My first flight in -practice was the opening a declaration at -<i>Nisi Prius</i> in Guildhall, under my brother,<span class="pagenum" id="Page_25">[25]</span> -which was a crisis like the loss of a maidenhead; -but with blushing and blundering -I got through it, and afterwards grew bold -and ready at such a formal performance; -but it was long ere I adventured to ask -a witness a question.”</p> - -<p>Roger North would never have attained -the eminence he did in his profession by -merely hanging on to the gown of his -greater brother. Hard work and dogged -courage, not patronage, earned him the -dignities he achieved. The description -of his early beginnings is full of encouragement -for the young advocate. “During -my practice under Hale,” he says, “at -the King’s Bench I was raw, and not at all -quaint and forward as some are, so that I -did but learn experience and discover my -own defects, which were very great. I was -a plant of a slow growth, and when mature -but slight wood, and of a flashy fruit. -But my profession obliged me to go on, -which I resolved to do against all my -private discouragements, and whatever -absurdities and errors I committed in -public I would not desist, but forgot them -as fast as I could, and took more care -another time. My comfort was, if some, -all did not see my failings, and those upon -whom I depended, the attorneys and -suitors, might think the pert and confident<span class="pagenum" id="Page_26">[26]</span> -forwardness I put on might produce somewhat -of use to them.”</p> - -<p>North held the sound opinion that “he -who is not a good lawyer before he comes -to the Bar, will never be a good one after -it.” It is very true that learning begets -courage, and wise self-confidence can only -be founded on knowledge. The long years -of apprenticeship, the studious attention -to “preparatives,” are, to the advocate, -like the manly exercises of the young -squire that enabled the knight of old to -earn his spurs on the field of battle. In -no profession is it more certain that -“knowledge is power,” and when the -opportunity arrives, knowledge, and the -courage to use it effectively, proclaim the -presence of the advocate.</p> - -<p>The best instance of what is meant -perhaps may be found in Sir John Hollams’s -account of the first appearance of -Mr. Benjamin. He was a great lawyer -before he addressed the court, but he sat -down a great advocate. It was in a case -which came on for hearing before Lord -Justice James, then Vice-Chancellor, and -“it appeared to be generally thought that, -as usual at the time, a decree would be -made directing inquiries in chambers. The -matter was being so dealt with when -Mr. Benjamin, then unknown to any one<span class="pagenum" id="Page_27">[27]</span> -in Court, rose from the back seat in the -Court. He had not a commanding presence, -and at that time had rather an uncouth -appearance. He, in a stentorian -voice, not in accord with the quiet tone -usually prevailing in the Court of Chancery, -startled the Court by saying, ‘Sir, -notwithstanding the somewhat off-hand -and supercilious manner in which this -case has been dealt with by my learned -friend Sir Roundell Palmer, and to some -extent acquiesced in by my learned leader -Mr. Kay, if, sir, you will only listen to -me—if, sir, you will only listen to me’ -(repeating the same words three times, and -on each occasion raising his voice), ‘I -pledge myself you will dismiss this suit -with costs.’ The Vice-Chancellor and -Sir Roundell Palmer, and indeed all the -Court, looked at him with a kind of -astonishment, but he went on without -drawing rein for between two and three -hours. The Court became crowded, for it -soon became known that there was a very -unusual scene going on. In the end the -Vice-Chancellor did dismiss the suit with -costs, and his decision was confirmed on -appeal.”</p> - -<p>There have been many advocates whose -courage was founded on humour rather -than knowledge, and who have successfully<span class="pagenum" id="Page_28">[28]</span> -asserted their independence in the -face of an impatient or overbearing Bench -through the medium of wit, where mere -wisdom might have failed in effect.</p> - -<p>Of such was Tom Jones, who startled -Mr. Justice Byles into indignant attention -by opening his case with bold impertinence: -“No one, my lords, who -looks at this case with common fairness -and honesty, can hesitate for a moment -in declaring that there ought to be a -new trial.”</p> - -<p>Byles observed, “This is rather strong -language to use to us, Mr. Jones. I hope -you think that we, at the least, are commonly -fair and honest.”</p> - -<p>“We shall see, my lord,” said Tom; -“we shall see.”</p> - -<p>Serjeant Robinson tells us a further -good story of Tom’s refusal to be hustled -by the Bench.</p> - -<p>“Our friend Tom Jones,” he writes, -“was a little lengthy sometimes in the -exposition of his client’s rights, and one -day the chief baron said to him, ‘Mr. -Jones, this case has occupied a great deal -of time, and we have a very long list of -cases to get through.’</p> - -<p>“‘My lord,’ said Tom, ‘I have carefully -looked through that list, and I did -not find there was a single cause in which I<span class="pagenum" id="Page_29">[29]</span> -or my client was in the slightest degree -interested.’”</p> - -<p>But these sallies should never degenerate -into mere incivility or abuse, in which -there is little real courage, since a judge of -sense will always refrain, if it be at all -possible, from reply to such attacks, which -only injure the reputation of the Bar and -destroy the reputation of the advocate.</p> - -<p>In the early days of American Sessions a -certain judge was violently attacked by a -young and very impudent attorney. To -the manifest surprise of everybody present, -the judge heard him quite through as -though unconscious of what was said, and -made no reply. After the adjournment -of the day, and all had assembled at the -inn where the judge and many of the -attorneys had their lodgings, one of the -company, referring to the scene in court, -asked the judge why he did not rebuke -the impertinent fellow.</p> - -<p>“Permit me,” said the judge, loud -enough to call the attention of all the -company, among whom was the fellow in -question—“permit me to tell you a story. -My father, when we lived down in the -country, had a dog—a mere puppy, I -may say. Well, this puppy would go out -every moonlight night and bark at the -moon for hours together.” Here the<span class="pagenum" id="Page_30">[30]</span> -judge paused, as if he had done with his -story.</p> - -<p>“Well, what of it?” exclaimed half-a-dozen -of the audience at once.</p> - -<p>“Oh, nothing, nothing whatever; the -moon kept right on, as if nothing had -happened.”</p> - -<p>Independence without moderation becomes -licentiousness, but true independence -is an essential attribute of advocacy, -and the English Bar has never wanted men -endowed with this form of true courage. -The sacrifice of the highest professional -honours to the maintenance of principle -has been a commonplace in the history of -English advocates, and the names of the -living could be added if need be to those -who have passed away, leaving us this -clean heritage as example.</p> - -<p>The true position of the independence of -the English Bar, the right and the duty of -the advocate to appear in every case, however -poor, degraded, or wicked the party -may be, is laid down once and for all in a -celebrated speech of Erskine’s in his defence -of Thomas Paine, who was indicted -in 1792 for publishing the <i>Rights of Man</i>. -Great public indignation was expressed -against Erskine for daring to defend Paine. -As he said in his speech, “In every place -where business or pleasure collects the<span class="pagenum" id="Page_31">[31]</span> -public together, day after day, my name -and character have been the topics of -injurious reflection. And for what? Only -for not having shrunk from the discharge -of a duty which no personal advantage -recommended, and which a thousand -difficulties repelled.”</p> - -<p>He then continued, in words which the -learned editor of Howell’s State Trials emphasises -by printing in capital letters, to -enunciate one of the basic principles of -English advocacy:</p> - -<p>“Little, indeed, did they know me, who -thought that such calumnies would influence -my conduct: <span class="smcap">I will for ever, at -all hazards, assert the dignity, independence, -and integrity of the English -Bar; without which, impartial -justice, the most valuable part of the -English Constitution, can have no -existence</span>. From the moment that any -advocate can be permitted to say that he -will or will not stand between the Crown -and the subject arraigned in the court -where he daily sits to practise—from that -moment the liberties of England are at an -end. If the advocate refuses to defend, -from what he may think of the charge or -of the defence, he assumes the character -of the judge; nay, he assumes it before -the hour of judgment; and, in proportion<span class="pagenum" id="Page_32">[32]</span> -to his rank and reputation, puts the heavy -influence of perhaps a mistaken opinion -into the scale against the accused, in -whose favour the benevolent principle of -English law makes all presumptions, and -which commands the very judge to be -his counsel.”</p> - -<p>Side by side with this may be set the -grand example of William Henry Seward -in acting in the defence of the negro Freeman -in 1846. A horrible murder was -committed. Without any provocation or -desire for plunder, Freeman killed a farmer -and several of his family. He was easily -captured, when he laughed in the face -of his captors and acknowledged the crime. -He was a recently emancipated slave, deaf, -and obviously insane. The sheriff had -the greatest difficulty in preventing him -from being lynched. The clergyman at -the victims’ funeral made a rousing appeal -for his punishment, which was printed and -circulated round the district.</p> - -<p>Seward undertook his defence, and a -storm of prejudice and passion was directed -against him to dissuade him from doing -what he believed to be his duty as an -advocate. In the crowded court-house, -when the judge asked, “Will any one -defend this man?” and Seward rose, and -said he was counsel for the prisoner, a<span class="pagenum" id="Page_33">[33]</span> -murmur of indignation ran round the -court. His advocacy was of no avail to -the individual, but his eloquent speech -remains a noble statement of the duty -of the advocate, and a fine example of -devotion and courage in the exercise of -that duty.</p> - -<p>The whole speech is worthy of study, as -it contains a glowing and reasoned appeal -for the right of the most degraded human -being in a civilised state to a real hearing of -his case in a judicial court, which can only -be obtained through honest and competent -advocacy.</p> - -<p>As the yellow harvest-moon rose outside -the darkening court-house his peroration -was listened to by the indignant -crowd with, at least, outward respect, and -it remains a message of encouragement to -the advocates of future generations.</p> - -<p>“In due time, gentlemen of the jury, -when I shall have paid the debt of nature, -my remains will rest here in your midst -with those of my kindred and neighbours. -It is very possible they may be unhonoured, -neglected, spurned! But perhaps -years hence, when the passion and excitement -which now agitate this community -shall have passed away, some wandering -stranger, some lone exile, some Indian, -some negro, may erect over them an<span class="pagenum" id="Page_34">[34]</span> -humble stone, and thereon this epitaph: -‘He was faithful.’”</p> - -<p>These words, as he desired, are engraved -on the marble over him, and he is remembered -at the American Bar as an advocate -who upheld its best traditions, and feared -not to hold aloft the Lamp of Courage.</p> -<hr class="chap x-ebookmaker-drop" /> - -<div class="chapter"> -<span class="pagenum" id="Page_35">[35]</span> - -<p class="ph2">III<br /> - -THE LAMP<br /> -OF INDUSTRY<br /> -</p> -</div> -<p><span class="pagenum" id="Page_36">[36]</span></p> -<hr class="chap x-ebookmaker-drop" /> - -<div class="chapter"> -<span class="pagenum" id="Page_37">[37]</span> -<h2 class="nobreak">III<br /> - - -THE LAMP OF INDUSTRY</h2> -</div> - -<p><span class="smcap">The</span> first task of the advocate is to learn -to labour and to wait. There never was a -successful advocate who did not owe some -of his prowess to industry. From the biographies -of our ancestors we may learn -that the eminent successful ones of each -generation practiced at least enough industry -in their day to preach its virtues to -aspiring juniors.</p> - -<p>Work soon becomes a habit. It may not -be altogether a good habit, but it is better -to wear out than to rust out. Nothing, -we are told, is impossible to industry. -Certainly without industry the armoury of -the advocate will lack weapons on the day -of battle.</p> - -<p>There must be years of what Charles -Lamb described with graceful alliteration -as “the dry drudgery of the desk’s dead -wood” before the young advocate can -hope to dazzle juries with eloquent perorations, -confound dishonest witnesses by -skilful cross-examination, and lead the<span class="pagenum" id="Page_38">[38]</span> -steps of erring judges into the paths of -precedent.</p> - -<p>All great advocates tell us that they have -had either steady habits of industry or -grand outbursts of work. Charles Russell -had a continuous spate of energy. Many -of us can remember him, tireless and active -himself, bustling into the robing-room at -St. George’s Hall, Liverpool, and finding -several members of the Junior Bar standing -around the fire.</p> - -<p>“Why are you loafing about here?” -he asked. “Why don’t you <i>do</i> something?”</p> - -<p>“We have nothing to do,” said the -Junior Bar.</p> - -<p>“Why don’t you go to the races?” he -rejoined. “<i>Do</i> something!”</p> - -<p>Abraham Lincoln owed his sound knowledge -of law to grim, zealous industry. -As a storekeeper he studied Blackstone out -of shop-hours, perched on a wood-pile or -lying under a tree. On circuit, in the -bedroom of the village inn, a candle at -his head and his feet protruding over the -foot-board of his bed, he lay reading law -until two in the morning, undisturbed by -snoring comrades. When possible, he -would read aloud, for thus, he said, “two -senses catch the idea. First, I see what I -read; second, I hear it, and can therefore -remember it better.” In after-life to every<span class="pagenum" id="Page_39">[39]</span> -student who came near him his advice was, -“Work! work! work!”</p> - -<p>Advocacy is indeed a life of industry. -Each new success brings greater toil. -Campbell, writing home from the Oxford -Circuit, describes the weary round of his -daily task. Some advocates suffer thus -every day the court sits, whilst others sit -round and suffer envy.</p> - -<p>“I ought to have got so far to-night on -my way to Hereford, but we have a long -day’s work before us, and I shall be obliged -to travel all to-morrow night. You can -hardly form a notion of the life of labour, -anxiety, and privation which I lead upon -the circuit. I am up every morning by -six. I never get out of court till seven, -eight, or nine in the evening, and, having -swallowed any indifferent fare that my -clerk provides for me at my lodgings, I -have consultations and read briefs till I -fall asleep. This arises very much from -the incompetence of the judge. It is from -the incompetency of judges that the chief -annoyances I have in life arise. I could -myself have disposed of the causes here -in half the time the judge employed. He -has tried two causes in four days. Poor -fellow, he is completely knocked up.”</p> - -<p>An advocate must study his brief in -the same way that an actor studies his<span class="pagenum" id="Page_40">[40]</span> -part. Success in advocacy is not arrived -at by intuition. Mr. O’Brien, in his excellent -biography of Charles Russell, details -an interesting conversation with his hero -which enforces this truth. He had raised -the question of an advocate succeeding by -mere intuition in picking up the threads -of a case in court, when Russell interrupted -him in a characteristic phrase.</p> - -<p>“‘That’s all nonsense,’ he said. ‘You -don’t know anything by intuition. You -have to work hard and to think hard. I -get some good help, as I tell you. My mode -of work is this: One of these young men -reads the brief and makes a note—a full -one. I go through the note with him’ -(smiling), ‘cross-examining him, if you -like. Sometimes, I admit, it may not be -necessary for me to read the brief; the -note may be so complete, and the man’s -knowledge of the case so exact, that I get -everything from him. But it often is—in -fact, generally is—necessary to go to the -brief. You have seen me reading briefs -here. I admit that I am quick in getting -at the kernel of a case, and that saves me -some trouble; but I must read the brief -with my own eyes, or somebody else’s.’</p> - -<p>“I said, ‘Sir John Karslake went blind -because he could only read his brief with -his own eyes. It is a great point to be able<span class="pagenum" id="Page_41">[41]</span> -to read your brief with somebody else’s -eyes!’</p> - -<p>“<i>Russell</i>—‘Well, well, well, that’s so! -but it is not intuition.’</p> - -<p>“I said, ‘It has been said that O’Connell -never read his brief when he appeared for -the defendant. He made his case out of -the plaintiff’s case.’</p> - -<p>“<i>Russell</i>—‘I don’t think that is likely; -I think O’Connell knew his case—the -vital points in his case—before he went -into court. There is often a great deal in -a brief which is not vital, which is not even -pertinent. I can read a brief quickly; I -can take in a page at a glance, if you like; -I can throw the rubbish over easily, and -come right on the marrow of the case. -But I can only do that by reading the -brief, or by the help of my friends. I -learn a great deal at consultations; I am -not above taking hints from everybody, -and I think carefully over everything that -is said to me’ (holding his hand up with -open palm); ‘I shut out no view. If -I have a good point, it is that I can see -quickly the hinge on which the whole case -turns, and I never lose sight of it. But that -is not intuition, my friend; it is work.’”</p> - -<p>Industry in reading and book-learning -may make a man a good jurist, but the -advocate must exercise his industry in<span class="pagenum" id="Page_42">[42]</span> -the double art of speaking and arranging -his thoughts in ordered speech. He must -be ready to leave his books awhile and -practise the athletics of eloquence with -equal industry.</p> - -<p>The silver-tongued Heneage Finch advises -students “to study all the morning -and talk all the afternoon.” Old Serjeant -Maynard, deeply learned in booklore as -he was, described the calling of the advocate -as <i>ars bablativa</i>. Brougham told -the law students of London University -to habituate themselves to talk about -everything.</p> - -<p>For “bare reading without practice -pedantiseth a student, but never makes -him a clever lawyer.” Our fathers understood -this better perhaps than we do, and -made provision of halls and cloisters and -gardens, where students could take exercise -and discuss the mysteries of their -profession when the hours of reading were -over.</p> - -<p>Roger North tells us in his life of his -brother, the Lord Keeper: “I remember -that, after the fire of the Temple, it was -considered whether the old cloister walks -should be rebuilt or rather improved into -chambers; which latter had been for the -benefit of the Middle Temple. But in -regard it could not be done without the<span class="pagenum" id="Page_43">[43]</span> -consent of the Inner house, the masters -of the Middle house waited upon the then -Mr. Attorney Finch, to desire the concurrence -of his society upon a proposition of -some benefit to be thrown in on that side. -But Mr. Attorney would by no means -give way to it, and reproved the Middle -Templars very wittily and eloquently upon -the subject of students walking in evenings -there and putting cases, ‘which,’ he -said, ‘was done in his time, as mean and -low as the buildings were then, however -it comes that such a benefit to students -is now made so little account of.’ And -thereupon the cloisters, by the order and -disposition of Sir Christopher Wren, were -built as they now stand.”</p> - -<p>The days of wandering in cloisters and -gardens, putting cases to one’s fellow-students, -and listening to the wisdom of -elders by the margin of the fountain are, -alas! not for us. But even to-day a wise -youngster should recognise that sitting in -court to listen to the conduct of cases, -attendance at circuit mess and dining in -Hall, where the law-talk of seniors may -still on occasion be of value—these things -are all forms of industry, for the advocate -can only learn the true creed of his faith -from oral tradition.</p> - -<p>In recent years we have wisely revived<span class="pagenum" id="Page_44">[44]</span> -the old moots which date back to early -days when the Inns of Court were really -schools of law. Dugdale thus describes -the ancient ceremony of the moot: “The -pleadings are first recited by the students, -then the case heard and argued by the -barristers; and lastly by the reader elect -and benchers, who all three argue in -English; but the pleadings are recited, -and the case argued by the utter barristers, -in law French. The moot being ended, all -parties return to the cupboard, where the -mootmen present the benchers with a -cup of beer and a slice of bread.”</p> - -<p>Roger North also remembers that in his -day, the time of Charles II., the custom -of mooting had been discontinued for -upwards of a century; but modern wisdom -brings us back to many old customs -of our fathers, and to-day all dramatic -methods of education are recognised as of -greater value than dictatorial lectures.</p> - -<p>And not only are these more social -forms of industry good in themselves, but -they are the only antidote to that despondency -and dread of failure which cloud the -brightest and most hopeful mind in the -long days of apprenticeship. Even the -greatest advocates have suffered such -moments. Had John Scott yielded to his -own sinking inclinations, he might have<span class="pagenum" id="Page_45">[45]</span> -been a provincial barrister at Newcastle -instead of Lord Chancellor; Kenyon nearly -became a Welsh parson instead of Chief -Justice of England; and Russell tells us -that in our own day Gully nearly exiled -himself to the Straits Settlements, and -Herschell proposed to emigrate to the -Indian Bar.</p> - -<p>A learned County Court judge, in dealing -with the unfortunate bankruptcy of a -brother-barrister, expressed the opinion -that for a man to come to the Bar without -private means, or, at least, expectations -from a maiden aunt, was “a rash and -hazardous speculation.” His dictum was -unsound in law and history. Some of the -greatest advocates began life as poor men. -And though men of wealth have succeeded -in advocacy, yet poverty is a true -friend to industry. “Parts and poverty,” -said Lord Chancellor Talbot, “are the -only things needed by the law student.”</p> - -<p>Kenyon, when asked by a fashionable -lady how her son might best prepare for -success at the Bar, said: “Let him -spend all his money, marry a rich wife, -spend all hers, and when he has got not -a shilling in the world, let him attack the -law.” For a lawyer, as an old pleader -said, must be prepared in his early days -“to eat sawdust without butter,” or, as<span class="pagenum" id="Page_46">[46]</span> -Lord Eldon put it, “to live like a hermit -and work like a horse.”</p> - -<p>If a man is endowed with health and -industry, the profession of an advocate is -not “a rash and hazardous speculation.” -He may even without blame give hostages -to fortune, remembering that when Erskine -made his first appearance at the Bar his -agitation nearly overcame him, and he -was just about to sit down a failure when, -he says, “I thought I felt my little children -tugging at my gown, and the idea roused -me to an exertion of which I did not think -myself capable.” He succeeded, indeed, -far beyond his expectations, and he found, -when he had overcome that first modest -inertia which benumbs even the greatest -genius, that he was fully equipped to fight -the battles of his clients against all comers. -And the reason of it was that he had not -failed to read and learn and digest beneath -the Lamp of Industry.</p> -<hr class="chap x-ebookmaker-drop" /> - -<div class="chapter"> -<span class="pagenum" id="Page_47">[47]</span> - -<p class="ph2">IV<br /> - - -THE LAMP<br /> -OF WIT</p> -</div> - -<p><span class="pagenum" id="Page_48">[48]</span></p> - -<hr class="chap x-ebookmaker-drop" /> - -<div class="chapter"> -<span class="pagenum" id="Page_49">[49]</span> - -<h2 class="nobreak">IV<br /> - - -THE LAMP OF WIT</h2> -</div> - -<p><span class="smcap">At</span> the back of this little word “wit” -lies the idea of knowledge, understanding, -sense. In its manifestation we look for a -keen perception of some incongruity of -the moment. The murky atmosphere of -the court is illuminated by a flash of -thought, quick, happy, and even amusing. -Wit, wisely used, bridges over a difficulty, -smooths away annoyance, or perhaps turns -aside anger, dissolving embarrassment in -a second’s laughter.</p> - -<p>Nor can “(laughter in court),” a derogatory -parenthesis unknown in the official -law reports, be wholly condemned among -human men. “How much lies in laughter, -the cipher key wherewith we decipher the -whole man!” Laughter may be derisive, -unkind, even cruel, or it may be rightly -used as a just weapon of ridicule wherewith -to smite pretension and humbug. It may -be gracious and full of kindliness, putting a -timid man at his ease, or instinct with -good-humour, softening wrath or mitigating<span class="pagenum" id="Page_50">[50]</span> -tedious irrelevancy. It may be the -due recognition of a witty text preaching -a useful truth, that could otherwise be -expressed only in a treatise; as when -Common Law said unto Chancery, “Truth -will leak out even in an affidavit;” or -when Erskine replied to Kenyon, who -suggested that he should apply to Chancery -for relief, “Would your lordship -send a dog you loved there?”</p> - -<p>From the earliest times wit has been a -light to lighten the darkness of advocacy. -Cicero was noted for the jests and repartees -which punctuated his forensic speeches, -and these were held “not foreign to the -business of the forum.” Yet, like many a -man of wit, he stumbled on occasion -through the temptation of the gift, and -offended some with malevolent sayings, -as Bethell and others have done in our -own time. It is easy to forget the poet’s -warning about “the medium in all -things.”</p> - -<p>Pedants and bores resent all forms of -wit, but a real humorist rejoices in nothing -so much as a good story against himself. -Rufus Choate was a man of great eloquence -and abounding vocabulary, but -he had a true sense of wit. No one enjoyed -better the remark of Mr. Justice Wilde, a -dry, precise judge who, out of court, on<span class="pagenum" id="Page_51">[51]</span> -occasion allowed his wit expression. He was -asked by a junior if he had not heard that -Mr. Worcester had just published a new -edition of his dictionary with a great number -of additional words. Gripping his -young friend’s arm, he said in a perturbed -whisper, “No, I had not heard of -it. But, for God’s sake, don’t tell Choate!”</p> - -<p>Choate had his own wit, which charmed -many juries to his clients’ cause. No one -could more pleasantly disperse the frowning -morality of a common jury by a -human simile. What could be more pastoral -and poetical than his description of his -clients in an Arcadian divorce case? -“They were playful, gentlemen of the -jury, not guilty. After the morning toil -they sat down upon the hay-mow for -refreshment, not crime. There may have -been a little youthful fondling, playful, -not amorous. They only wished to <i>soften -the asperities of hay-making</i>.” One can see -the jury broadening into sympathy and -smiles over the pleasantry of the final -phrase.</p> - -<p>Often the wit of an advocate will turn -a judge from an unwise course where -argument or rhetoric would certainly fail. -Lord Mansfield paid little attention to -religious holidays. He would sit on Ash-Wednesday, -to the scandal of some members<span class="pagenum" id="Page_52">[52]</span> -of the Bar, whose protests made no -impression upon him. At the end of -Lent he suggested that the court might -sit on Good Friday. The members of the -Bar were horrified. Serjeant Davy, who -was in the case, bowed in acceptance of -the proposition. “If your lordship pleases; -but your lordship will be the first judge -that has done so since Pontius Pilate.” -The court adjourned until Saturday.</p> - -<p>But the learned Serjeant “Bull Davy,” -as he was called on circuit, could never -pass a jest, even at the expense of his -client. He was defending a criminal -against whom the prosecution had opened -a very strong case.</p> - -<p>“Who is concerned for the prisoner?”</p> - -<p>“My lord,” replied Davy, rising with -grave solemnity, “I am concerned for -him, and very much concerned, after what -I have heard.”</p> - -<p>Wit is often the fittest instrument with -which to destroy the bubble of bombast. -When Curran, in an outburst of histrionic -anger, placed his hand upon his heart, -saying, “I am the trusty guardian of my -own honour,” it was Sir Boyle Roche who -spoiled the episode by rising with much -friendliness to say, “I congratulate my -honourable friend on the snug little sinecure -to which he has appointed himself.”</p> - - - -<p><span class="pagenum" id="Page_53">[53]</span>Wit may fairly be used to strip the -cloak of pretension from the shoulders of -impudence. Holker was cross-examining -a big vulgar Jew jeweller in a money-lending -case and began by looking him up -and down in a sleepy dismal way and -drawled out: “Well, Mr. Moselwein, and -what are you?”</p> - -<p>“A genschelman,” replied the jeweller -with emphasis.</p> - -<p>“Just so, just so,” ejaculated Holker -with a dreary yawn, “but what were you -before you were a gentleman?”</p> - -<p>Wit, skilfully used, is the kindliest and -most effective method of exhibiting the -futility of judicial interruptions.</p> - -<p>“Where do you draw the line, Mr. -Bramwell?” asked a learned judge in the -Court of Common Pleas.</p> - -<p>“I don’t know, and I don’t care, my -lord. It is enough for me that my client -is on the right side of it.”</p> - -<p>Wit and courtesy need never be divorced. -They are, indeed, complementary. Wit, -deftly used, refreshes the spirit of the -weary judge.</p> - -<p>Lord Chief Justice Coleridge, writing -from the Northern Circuit, says: “Gully -was excellent. His phrase, when he asked -for a stay of execution ‘in order to consider -more at leisure some of your lordship’s<span class="pagenum" id="Page_54">[54]</span> -observations,’ tickled my fancy very -much. Misdirection was never more -courteously described.”</p> - -<p>Satire or irony is often in danger of -being misunderstood by the simple-minded -jury. Ridicule, to be effective, -must be pointed, even extravagant.</p> - -<p>In combating the defence of Act of God -set up by an American advocate defending -a client on the charge of arson, Governor -Wisher, for the prosecution, disposed of -the theory of spontaneous combustion, -and succeeded in satisfying the jury of its -absurdity: “It is said, gentlemen, that -this was Act of God. It may be, gentlemen. -I believe in the Almighty’s power to do -it, but I never knew of His walking twice -round a straw stack to find a dry place to -fire it, with double-nailed boots on so -exactly fitting the ones worn by the -defendant.”</p> - -<p>Bowen, on the Western Circuit, was less -fortunate. Prosecuting a burglar caught -red-handed on the roof of a house, he left -the case to the jury in the following terms: -“If you consider, gentlemen, that the -accused was on the roof of the house for -the purpose of enjoying the midnight -breeze, and, by pure accident, happened -to have about him the necessary tools of -a housebreaker, with no dishonest intention<span class="pagenum" id="Page_55">[55]</span> -of employing them, you will, of course, -acquit him.” The simple sons of Wessex -nodded complacently at counsel, and, -accepting his invitation, acquitted the -prisoner.</p> - -<p>And as there is danger of satire being -misunderstood, there is also a certain -danger that an advocate, in an endeavour -to shorten a case, may fail to drive home all -the points he seeks to make. Modern -advocates, however, are more likely to -remind the Bench of Quintilian’s maxim, -“There is not so much inconvenience in -listening to superfluous matter as to be -ignorant of such things as are necessary,” -than to remember the more pertinent first -principle of their own art that “brevity -is the soul of wit.”</p> - -<p>It has always been a reproach to our -advocacy that it injured its clients by -calculated circumlocution, an exuberance -of verbosity, and a prolixity of style and -method ruinous to the widows and the -fatherless and the strangers that strayed -within the gates of the temple.</p> - -<p>Good advocacy displays the highest form -of wit in an instinct for brevity. The -healthy appetite of judge and advocate -alike is shown in a keenness to “get -through the rind of the orange and reach -the pulp as soon as possible.” This wit and<span class="pagenum" id="Page_56">[56]</span> -wisdom of Bramwell should be painted on -the wall in bold letters of silver opposite -every judge on the bench, and in larger -letters of gold over every bench in the -kingdom in the face of the nation’s -advocates.</p> - -<p>Judges are, indeed, a long-suffering race, -but there are some advocates difficult to -suffer gladly. Mr. Justice Wightman -showed a Christian forbearance to Mr. Ribton, -who, after pounding away for several -hours, began repeating himself unto the -third or fourth iteration.</p> - -<p>“Really, Mr. Ribton, you know, you’ve -said that before.”</p> - -<p>“Have I, my lord? I am very sorry. -I quite forgot it.”</p> - -<p>“Don’t apologise,” said the mild old -judge, patiently stifling a sigh. “I forgive -you; for it was a very long time ago.”</p> - -<p>How many advocates weary juries into -forgetfulness by long-continued repetition -of their cross-examination, often giving -a clever witness opportunities of rehabilitating -himself, forgetting Josh Billings’s -immortal advice: “When you strike ile, -stop boring; many a man has bored -clean thru and let the ile run out of the -bottom.”</p> - -<p>But whatever sound maxims may be -cited, it is to be feared that there will<span class="pagenum" id="Page_57">[57]</span> -always be a line of advocacy answering to -the definition of length without breadth. -Nor will the old story, first told, perhaps, -of Chief Baron Kelly, ever want a new and -even more long-winded hero. A legal comrade -of Kelly on circuit dreamed that they -appeared before the tribunal on the Great -Day of Judgment. Upon Kelly’s name -being called, and his being put up in the -dock, the recording angel arose and shouted -out in a loud voice, “No other case will be -taken to-day!”</p> - -<p>Lest I should provoke a similar reproof -from a devout reader, let me leave the -Lamp of Wit upon the altar of justice -and retire from the pulpit.</p> - -<p><span class="pagenum" id="Page_58">[58]</span></p> -<hr class="chap x-ebookmaker-drop" /> - -<div class="chapter"> -<span class="pagenum" id="Page_59">[59]</span> - -<p class="ph2">V<br /> - -THE LAMP<br /> -OF ELOQUENCE</p> -</div> - -<p><span class="pagenum" id="Page_60">[60]</span></p> - -<hr class="chap x-ebookmaker-drop" /> - -<div class="chapter"> -<span class="pagenum" id="Page_61">[61]</span> - -<h2 class="nobreak">V<br /> - - -THE LAMP OF ELOQUENCE</h2> -</div> - -<p><span class="smcap">The</span> eloquence of advocates of the past -must largely be taken on trust. There is -no evidence of it that is not hearsay. For, -though we have the accounts of ear-witnesses -of the eloquence of Erskine, -Scarlett, Choate, or Lincoln, and can ourselves -read their speeches, the effect of -their eloquence does not remain. We are -told about it by those who experienced it, -and can believe or not as we choose. It is -the same with actors. It requires genius -to describe acting, so that the reader captures -some of the experience of the witness. -Fielding did it for Garrick when he took -Partridge to see <i>Hamlet</i>; Charles Lamb -can feature the old actors for us on the -screen of the written page; but how few -real records remain of the eloquence of -the advocates of old!</p> - -<p>Perhaps the best way to realise their -powers is to read their speeches aloud; -but even then they seem diffuse and out -of proportion to the present interest in the<span class="pagenum" id="Page_62">[62]</span> -litigation. The most eloquent advocacy -that is reported in print is to be found -not in law reports, but in fiction—in the -speeches of Portia and Serjeant Buzfuz, -for instance, where for all time the world -continues hanging on the lips of the advocate -in excited sympathy with the client.</p> - -<p>There are some who think that rhetoric -at the Bar has fallen in esteem. The modern -world has certainly lost its taste for sweet -and honeyed sentences, and sets a truer -value on fine phrases and the fopperies -of the tongue; but there will always be a -high place in the profession for the man -who speaks good English with smooth -elocution, and whose speeches fall within -Pope’s description:</p> - -<div class="poetry-container"> -<div class="poetry"> -<div class="verse">Fit words attended on his weighty sense,</div> -<div class="verse">And mild persuasion flow’d in eloquence.</div> -</div></div> - -<p>The test of eloquence in advocacy is -necessarily its effect upon those to whom -it is addressed. The aim of eloquence is -persuasion. The one absolute essential -is sincerity, or, perhaps one should say, -the appearance of sincerity. As Garrick -reminded a clerical friend: “We actors -portray fiction as if it were truth, and -you clergymen preach truth as if it were -fiction.” It is no use preaching to a jury, -but the eloquence of persuasion will work<span class="pagenum" id="Page_63">[63]</span> -miracles; and there is a well-authenticated -story on every circuit of the criminal -who, listening with rapt attention to his -counsel’s pathetic details of his wrongs, -burst into sobs after his peroration, crying -out, “I never knew I was such an ill-used -man until now—s’help me, I never did!”</p> - -<p>It would appear from the history of -advocacy that the flame of the lamp of -eloquence may vary from time to time in -heat and colour. One cannot say that -the style of one advocate is correct and -another incorrect, since the style is the -attribute of the man and the generation -he is trying to persuade. Yet, however -different the style may be, the essential -power of persuasion must be present. -He must, as Hamlet says, be able to play -upon his jury, knowing the stops, and -sounding them from the lowest note to -the top of the compass.</p> - -<p>Brougham’s tribute to Erskine’s eloquence -is perhaps the best pen-picture of -an English advocate we possess, and it is -noticeable how he emphasises this power -of persuasion and endeavours to solve -the psychology of it. He places in the -foreground the physical appearance of the -man, a great factor in each style of -advocacy.</p> - -<p>“Nor let it be deemed trivial,” he says,<span class="pagenum" id="Page_64">[64]</span> -“or beneath the historian’s province, to -mark that noble figure, every look of -whose countenance is expressive, every -motion of whose form graceful, an eye that -sparkles and pierces, and almost assures -victory, while it ‘speaks audience ere the -tongue.’ Juries have declared that they -felt it impossible to remove their looks -from him when he had riveted and, as it -were, fascinated them by his first glance; -and it used to be a common remark among -men who observed his motions that they -resembled those of a blood-horse, as light, -as limber, as much betokening strength -and speed, as free from all gross superfluity -or encumbrance. Then hear his -voice of surpassing sweetness, clear, -flexible, strong, exquisitely fitted to strains -of serious earnestness, deficient in compass -indeed, and much less fitted to express -indignation, or even scorn, than pathos, -but wholly free from harshness or monotony. -All these, however, and even his -chaste, dignified, and appropriate action, -were very small parts of this wonderful -advocate’s excellence. He had a -thorough knowledge of men, of their -passions, and their feelings—he knew every -avenue to the heart, and could at will make -all its chords vibrate to his touch. His -fancy, though never playful in public,<span class="pagenum" id="Page_65">[65]</span> -where he had his whole faculties under -the most severe control, was lively and -brilliant; when he gave it vent and scope -it was eminently sportive, but while representing -his client it was wholly subservient -to that in which his whole soul was -wrapped up, and to which each faculty of -body and of mind was subdued—the -success of the cause.”</p> - -<p>And if one reads the speeches of our -greatest advocates and the records of -those who heard them, one finds that each -had some peculiar condiment of eloquence, -so that if one could beg a flavour from each -one might hope to produce an olio of super-eloquence.</p> - -<p>Bethell, for instance, was a master of -deliberation, remembering Bacon’s maxim -that “a slow speech confirmeth the -memory, addeth a conceit of wisdom to -the hearers.” Shorthand-writers listened -eagerly to his speeches, fearing to miss a -sentence that would ruin their report. -Repetitions and unnecessary phrases were -banned, and useless words he looked upon -as matter in the wrong place. His voice -was clear and musical, and he had a telling -wit. Students from the first thronged the -court to learn his magic, and judges listened -to him with respect. When he was -a junior it is said that Sir John Leach,<span class="pagenum" id="Page_66">[66]</span> -the Master of the Rolls, succumbing to -his arguments, said, “Mr. B<i>ee</i>thell, you -understand the matter as you understand -everything else.” And that was the real -secret of Mr. Bethell’s eloquence.</p> - -<p>Serjeant Copley, better known as Lord -Lyndhurst, was not a brilliant or showy -advocate, but, as a friend said, “had no -rubbish in his head.” He won many of -his triumphs by dexterous and successful -sophistry and his extreme plausibility of -manner. Mr. James Grant tells us that -“a perpetual smile played on his countenance -while he gazed at the faces of the -court and the jury; and there was something -so winning in the tones of his voice -that he must have been a man possessing a -remarkably lively perception of the real -facts of a case, of a vigorous intellect, and -of great energy of character who was not -carried away by Mr. Copley’s address.” -The mere wording of the description might -suggest to an unsympathetic reader that -Serjeant Copley was the Fascination -Fledgeby of the Bar, but the intention of -the writer was probably to portray something -of that charm of manner which is -often a form of eloquence leading to the -highest success in advocacy. Gully, in -our own day, possessed it in a high degree. -It is easy to fall under the spell of it in<span class="pagenum" id="Page_67">[67]</span> -court, but it would require the pen of a -genius to recall it to life on the printed page.</p> - -<p>Eloquence of manner is real eloquence, -and is a gift not to be despised. There -is a physical as well as a psychological side -to advocacy, documentary evidence of -which may be found in the old prints and -portraits of those who have been called to -high office from among us. They are, on -the whole, a stout, well-favoured race.</p> - -<p>Charm of voice and manner has always -received due reward. Thomas Denman -had a fine, musical voice, an easy manner, -and the sincerity and fervour of his address -made him a popular advocate. Scarlett -was “the very incarnation of contentedness -and good nature.” A spectator notes -his “perpetual cheerfulness,” his “laughing -and seductive eyes,” his “How-do-you-do -style” as he used to stand before -the jury, “fold up the sides of his gown on -his hands, and then, placing his arms on -his breast, smile in their faces from the -beginning to the end of his address, talking -all the while to them as if he were engaged -on a mere matter of friendly conversation.”</p> - -<p>Many an advocate has attempted a -similar method with but small success, -and there must have been, as Mr. Atlay -says, “an exquisite dexterity” in his -method of address that does not reach us<span class="pagenum" id="Page_68">[68]</span> -through contemporary descriptions. The -effect of it was undoubted. A North-Country -juryman was once asked, after a -long assize at Lancaster, “What do you -think of the counsellors on the Northern -Circuit?”</p> - -<p>“Why,” he replied, “there’s not a man -in England can touch that Mr. Brougham.”</p> - -<p>“But you gave all the verdicts to Mr. -Scarlett?”</p> - -<p>“Why, of course; he gets all the easy -cases.”</p> - -<p>It is eloquence that persuades the jury -that your case is the easy case. As Cobbett -said—and Cobbett had a common jury -mind—“He is an orator that can make -me think as he thinks, and feel as he -feels.”</p> - -<p>Mr. Montagu Williams has pointed out -that the best English eloquence of his time -was founded on what he calls a solid style -of advocacy. “As leading examples,” he -writes, “of what I may call the solid style, -I should name Serjeant Shee, Serjeant -Parry, and Lord Justice Holker. When I -say ‘solid,’ I do not refer to heaviness of -manner, but to solidity of appearance, -robustness of speech, and a general air of -good English honesty. This style is very -taking with the juries of this country. -It was the heavy, nay, almost languid, way<span class="pagenum" id="Page_69">[69]</span> -in which Lord Justice Holker opened his -cases, taken in conjunction with his sudden -awakenings and bursts of eloquence when -important points were reached, that rendered -his style of advocacy so telling.”</p> - -<p>Nearly every great advocate has found -it necessary to make use of the eloquence -of persuasion. Charles Russell is the one -exception. He did not seek to persuade, -he directed the court and jury. Whether -or not he was, as Lord Coleridge said, -“the biggest advocate of the century,” -he was undoubtedly a very great advocate. -Clearness, force, and earnestness were -the basic qualities of his eloquence. It -was said of him that “ordinarily the judge -dominates the jury, the counsel, the public,—he -is the central figure of the piece. -But when Russell is there the judge -isn’t in it. Russell dominates every -one.”</p> - -<p>But no man can dominate a jury in a -doubtful case, and though Russell was -supreme in a good case, he had not that -power possessed in a high degree by -another great advocate—still, happily, -among us—Sir Edward Clarke, who could -not only insinuate doubts into the hearts of -the jury, but could leave his arguments -so clearly in men’s minds that he became, -as it were, the thirteenth man on the jury<span class="pagenum" id="Page_70">[70]</span> -when they retired to consider their verdict. -This requires real eloquence.</p> - -<p>The moral of the lives of the advocates -seems to be that in the house of eloquence -there are many mansions, and any style -natural to the man who uses it is his right -style, and may succeed. One besetting -sin of many would-be eloquent speakers is -fatal, and that is bombast. The young -advocate who opened a libel case, “My -client, gentlemen, is a cheesemonger; and -the reputation of a cheesemonger is like -the bloom upon a peach. Touch it, and -it is gone for ever,” must have been immune -from eloquence. Yet there are -solicitors and clients who still like that -kind of thing, and advocates who supply -it.</p> - -<p>Nearer to eloquence was the advocate -who, in defence of a woman for child -murder, said in passionate tones: -“Gentlemen, it is impossible that the -prisoner can have committed this crime. -A mother guilty of such conduct to her -own child! Why, it is repugnant to our -better feelings! Gentlemen, the beasts -of the field, the birds of the air, suckle -their young——”</p> - -<p>The simile might perhaps have passed -with the jury had not a dry, unsympathetic -voice from the bench interrupted<span class="pagenum" id="Page_71">[71]</span> -with: “Mr. X, if you establish the latter -part of your proposition, your client will -be acquitted to a certainty.”</p> - -<p>And though eloquence at its highest -is a gift, the art of speaking can be learned -and personal difficulties overcome. Demosthenes, -with his pebbles in his mouth -or running up a hill spouting an oration, -has been an example to us from the schoolroom. -Cicero took lessons from Roscius -and Æsop. Lord Guildford, Lord Campbell, -Lord Brougham, and others have -impressed on students the importance of -attending and practising at moots and -debating societies. The mechanics of -eloquence can be as certainly learned by -the student as the mechanics of etching -or engraving, but how far these will make -an artist of him and help to bring real -eloquence to the learner lies in himself.</p> - -<p>There is no golden rule of method, but -there is this golden principle to remember -that the message of eloquence is addressed -to the heart rather than the brain. This -is well put by Lord Chesterfield, who was -more human than many will allow, when -he wrote to his son: “Gain the heart, or -you gain nothing; the eyes and the ears -are the only road to the heart. Merit and -knowledge will not gain hearts, though -they will secure them when gained. Pray<span class="pagenum" id="Page_72">[72]</span> -have that truth ever in your mind. Engage -the eyes by your address, air, and motions; -soothe the ears by the elegancy and harmony -of your diction; the heart will -certainly follow; and the whole man and -woman will as certainly follow the heart.”</p> - -<p>Thus is the grammar of the matter set -down by a skilled grammarian, yet it is -but a bundle of dry sticks and kindles no -flame. The high privilege of lighting the -torch at the lamp of eloquence is a gift -of the gods, for orators are born, and not -made.</p> -<hr class="chap x-ebookmaker-drop" /> - -<div class="chapter"> -<span class="pagenum" id="Page_73">[73]</span> - -<p class="ph2">VI<br /> - -THE LAMP<br /> -OF JUDGMENT</p> -</div> - -<p><span class="pagenum" id="Page_74">[74]</span></p> - -<hr class="chap x-ebookmaker-drop" /> - -<div class="chapter"> -<span class="pagenum" id="Page_75">[75]</span> - -<h2 class="nobreak">VI<br /> - -THE LAMP OF JUDGMENT</h2> -</div> - -<p><span class="smcap">Judgment</span> inspires a man to translate -good sense into right action. I would not -quarrel with the philosopher who describes -judgment as an instinct, but I would bid -him remember that even an instinct is -acquired by “cunning” rather than luck. -Let no one think that he can attain to -sound judgment without hard work. The -judgment of the advocate must be based -on the maxim, “He that judges without -informing himself to the utmost that he -is capable cannot acquit himself of judging -amiss.”</p> - -<p>A client is entitled to the independent -judgment of the advocate. Whether his -judgment is right or wrong, it is the duty -of the advocate to place it at the disposal -of his client. In the business of advocacy -judgment is the goods that the advocate is -bound to deliver. Yet he is under constant -temptation to please his client by -giving him an inferior article. The duty -of the advocate to give only his best is<span class="pagenum" id="Page_76">[76]</span> -wisely insisted upon by Serjeant Ballantine, -who relates a personal experience -that all advocates must be ready to face.</p> - -<p>“The solicitor instructing me,” he -writes, “was vehement in expressing -belief in his client’s innocence. I was of a -different opinion. He, acting upon his -belief, desired that certain witnesses -should be called. I, governed by my convictions, -absolutely refused to do so, offering -at the same time to return my brief. -This, however, was refused, and I was left -to exercise my own responsibility. The -above question frequently arises, and some -counsel have considered themselves bound -to obey the wishes of the solicitor. There -is no doubt that this is the safest course -for the advocate, for, if he does otherwise -and the result is adverse, he is likely -to be much blamed, and the solicitor also -is exposed to disagreeable comments; -but I hold, and have always acted upon -the opinion, that the client retains counsel’s -judgment, which he has no right to yield -to the wishes or opinions of any one else. -He is bound, if required, to return his -brief, but if he acts against his own convictions -he sacrifices, I think, his duty as -an advocate.”</p> - -<p>An advocate of judgment has the power -of gathering up the scattered threads of<span class="pagenum" id="Page_77">[77]</span> -facts and weaving them into a pattern -surrounding and emphasising the central -point of the case. In every case there -is one commanding theory, to the proof -of which all the facts must be skilfully -marshalled. An advocate with one point -has infinitely greater chances than an -advocate with twenty points.</p> - -<p>Rufus Choate was an advocate of great -judgment, and not only was he enthusiastic -and diligent in searching for the -central theory, or “hub of his case,” as -he called it, but having made up his mind -what it was, he rightly put it forward without -delay, believing that it was the “first -strike” that conquered the jury. Parker, -his biographer, tells us that “he often -said to me that the first moments were the -great moments for the advocate. Then, -said he, the attention is all on the alert, -the ears are quicker, the mind receptive. -People think they ought to go on gently, -till, somewhere about the middle of their -talk, they will put forth all their power. -But this is a sad mistake. At the beginning -the jury are all eager to know what -you are going to say, what the strength -of your case is. They don’t go into details -and follow you critically all along: they -try to get hold of your leading notion, -and lump it all up. At the outset, then,<span class="pagenum" id="Page_78">[78]</span> -you want to strike into their minds what -they want—a good, solid, general view of -<i>your</i> case; and let them think over that -for a good while. ‘If,’ said he emphatically, -‘you haven’t got hold of them, got -their convictions at least open, in your -first half-hour or hour, you will never get -at them at all.’”</p> - -<p>Abraham Lincoln had a genius for seeing -the real point of his case and putting it -straight to the Court. A contemporary -who was asked in later life what was -Lincoln’s trick with the jury replied, “He -saw the kernel of every case at the outset, -never lost sight of it, and never let it -escape the jury. That was the only trick -I ever saw him play.”</p> - -<p>Sir Henry Hawkins held the same view. -He used to say, “Concentration is the art -of argument. If you are diffuse, you will -be cut up in detail.” And he was fond of -quoting the teachings of Denman on this -subject: “Remember also to put forward -your best points first, for the weak ones -are very likely to prejudice the good ones -if they take the lead. It would be better -advice to say never bring them forward -at all, because they are useless.”</p> - -<p>Johnny Williams, who appeared with -Brougham and Denman for Queen Caroline, -was a man of great sagacity, but much<span class="pagenum" id="Page_79">[79]</span> -given to strong expletives. He was once -induced by an attorney, against his own -better judgment, to ask a question, the -answer to which convicted his client on a -capital charge. The circuit considered he -was well justified, when the trial was over, -in turning to the attorney and saying with -great emphasis (formal expletives omitted), -“Go home, cut your throat, and <i>when</i> you -meet your client in hell, beg his pardon.”</p> - -<p>But an apology was also due from -Williams for surrendering his judgment -to that of his attorney.</p> - -<p>In nothing does the advocate more -openly exhibit want of judgment than in -prolixity. Modern courts of justice are -blamed by the public, not wholly without -cause, for the length and consequent expense -of trials. To poor people this may -mean a denial of justice. No one desires -that the judge should constantly interfere -with counsel in the discharge of their duties, -but it seems to be his duty on occasion to -blow his whistle and point out to the combatants -that they are offside.</p> - -<p>If every one connected with the trial of -an action were to train and use his judgment -and co-operate with the judgments -of his fellow-workers in a policy of anti-waste, -a great reproach would be lifted -from our courts of justice.</p> - - - -<p><span class="pagenum" id="Page_80">[80]</span>Prolixity is no new disease. Many wise -judges have sought to eradicate it. In -the time of Charles II. things seem to have -been in a specially bad way, and Lord -Guildford, though he probably went to -dangerous extremes, was well thought of -by the public for his endeavour to speed -up the legal machine.</p> - -<p>“In his lordship’s conduct of trials he -was very careful of three matters: 1. To -adjust what was properly the question, -and to hold the counsel to that; for he -that has the worst end of the staff, is very -apt to fling off from the point and go out of -the right way of the cause. 2. To keep -the counsel in order; for in trials they -have their parts and their times. His -lordship used frequently to inculcate to -counsel the decorum of evidencing practice. -3. To keep down repetition, to -which the counsel, one after another, are -very propense; and, in speeching to the -jury one and the same matter over and -over again, the waste of time would be so -great that, if the judge gave way to it, -there would scarce be an end; for most -of the talk was not so much for the causes -as for their own sakes, to get credit in the -country for notable talkers. And his -lordship often told them that their confused -harangues disturbed the order of<span class="pagenum" id="Page_81">[81]</span> -his thoughts; and, after the trial was over, -it was very hard for him to resume his -method and direct the jury to comprise -all the material parts of the evidence. -Therefore he was positive not to permit -more than one counsel of a side to speech -it to the jury, by way of summing up the -evidence; and he permitted that in such -a way as made them weary of it. For, in -divers sorts of trials, he wholly retrenched -it; and where he observed much stiffness -and zeal of the parties in a cause, then, -after the evidence was over, he would say, -‘Come, make your speeches;’ and then -sat him down: and that looked with a sort -of contempt of their talents, which gave -them a distrust, and discomposed their -extempore so much that, for the most part, -they said, ‘No, we will leave it to your -lordship.’ And thus the abuse, by fastidious -talk, wore away; and the practice -before him was so well known, as it became -at length a pure management of evidence -and argument of law.”</p> - -<p>The judgment of an advocate may be -called upon at any moment for a sudden -decision that may mean the victory or -defeat of his client. For this reason it is -necessary that he should be always alert. -The contents of his brief must be already -in his mind, and his attention must be fixed<span class="pagenum" id="Page_82">[82]</span> -on what is happening in court, which has -rarely been foreseen in the best-prepared -brief ever delivered to counsel.</p> - -<p>It was Russell who turned round to his -junior and said, “What are you doing?”</p> - -<p>“Taking a note,” was the answer.</p> - -<p>At which Russell burst out in his uncompromising -way: “What the devil do you -mean by saying you are taking a note? -Why don’t you watch the case?”</p> - -<p>“Watch the case!” It is a golden -rule.</p> - -<p>It was the same when he was playing -cards. He would get impatient with a -partner shuffling and handling his cards -in a state of indecision. “Why are you -looking at your cards?” he asked. “Why -don’t you watch the game? The game is -on the table.”</p> - -<p>In the same way an advocate who is -always fumbling with his brief when he is -examining a witness cannot follow the -game that is on the table before him.</p> - -<p>Sound judgment is essential to the examination -of witnesses. How few advocates -know how to examine a witness-in-chief! -Birrell tells us that Sir Frank Lockwood -had very clear views on the subject. “He -believed that the examination of a witness-in-chief, -or the direct examination of -witnesses, as it was called in Ireland, was<span class="pagenum" id="Page_83">[83]</span> -very much underrated in its significance -and its importance. If they had to -examine a witness, what they had got to do -was to induce him to tell his story in the -most dramatic fashion, without exaggeration; -they had got to get him, not to make -a mere parrot-like repetition of the proof, -but to tell his own story as though he -were telling it for the first time—not as -though it were words learnt by heart; -but if it were a plaintive story, plaintively -telling it. And they had got to assist him -in the difficult work. They had got to -attract him to the performance of his duty, -but woe be to them if they suggested to -him the terms in which it was to be put! -They must avoid any suspicion of leading -the witness, while all the time they were -doing it. They knew perfectly well the -story he was going to tell; but they -destroyed absolutely the effect if every -minute they were looking down at the -paper on which his proof was written. -It should appear to be a kind of spontaneous -conversation between the counsel -on the one hand and the witnesses on -the other, the witness telling artlessly his -simple tale, and the counsel almost appalled -to hear of the iniquity under which his -client had suffered.</p> - -<p>“It was in this way, and in this way<span class="pagenum" id="Page_84">[84]</span> -alone, that they could effectively examine -a witness.”</p> - -<p>There is probably more waste of time -and irrelevance in the examination of -witnesses-in-chief than in any other procedure -of counsel. This is the modern drama -of it.</p> - -<p><span class="smcap">Counsel</span> (<i>his eyes glued to his brief</i>): -“Your name is Mary Ann Snooks.”</p> - -<p><span class="smcap">Witness</span> (<i>annoyed</i>): “Martha Ann.”</p> - -<p><span class="smcap">Counsel</span>: “Oh, yes, Martha Ann -Snooks; and you are the wife of Thomas -Snooks, the bookmaker.”</p> - -<p><span class="smcap">Witness</span> (<i>very indignant</i>): “Nothing of -the sort.”</p> - -<p><span class="smcap">Counsel</span>: “I beg your pardon—my -mistake—bootmaker.”</p> - -<p><span class="smcap">Witness</span>: “And has been this thirty -year——”</p> - -<p><span class="smcap">Counsel</span>: “And you live at 139 Doncaster -Street, Upper Tulse Hill.”</p> - -<p><span class="smcap">Witness</span>: “We did live there; we’ve -moved now, sir.”</p> - -<p><span class="smcap">Counsel</span>: “What is your present -address?”</p> - -<div class="blockquot"> - -<p>etc., etc., <i>ad lib.</i></p> -</div> - -<p>Consider for a moment, if you will, the -horrid waste of all this irrelevance standing -between the Court and Mrs. Snooks’s -version of what she saw of an accident in -High Street, Kensington, and reducing<span class="pagenum" id="Page_85">[85]</span> -her to a state of nervous irritation antipathetic -to accurate testimony.</p> - -<p>How much more business-like was the -method of the eighteenth century! In a -State trial in the days of Queen Anne the -name of the lady is announced in the oath, -and then counsel approaches her, as Sir -Frank Lockwood might have done: “Pray, -madam, will you be pleased to acquaint -my lord and the jury what you know -concerning the matter, and what passed -between your brother Mr. Colepepper and -Mr. Denew at his first coming to him?”</p> - -<p>Much public time could be saved by -more economical methods of examination-in-chief, -and greater efficiency would be -ensured.</p> - -<p>Cross-examination, too, is almost entirely -a matter of judgment. Two golden rules -handed down from the eighteenth century, -and maybe from beyond, are still unlearned -lessons to each succeeding generation of -advocates:</p> - -<p>1. Never ask a question without having -a good reason to assign for asking it.</p> - -<p>2. Never hazard a critical question without -having good ground to believe that the -answer will be in your favour.</p> - -<p>Serjeant Ballantine has some just observations -on the art of cross-examination -and the use and abuse of it.</p> - - - -<p><span class="pagenum" id="Page_86">[86]</span>“The records of justice,” he says, “from -all time show that truth cannot, in a -great number of cases tried, be reasonably -expected. Even when witnesses are honest, -and have no intention to deceive, there is a -natural tendency to exaggerate the facts -favourable to the cause for which they -are appearing, and to ignore the opposite -circumstances; and the only means known -to English law by which testimony can -be sifted is cross-examination. By this -agent, if skilfully used, falsehood ought to -be exposed, and exaggerated statements -reduced to their true dimensions. An -unskilful use of it, on the contrary, has a -tendency to uphold rather than destroy. -If the principles upon which cross-examination -ought to be founded are not understood -and acted upon, it is worse than -useless, and it becomes an instrument -against its employer. The reckless asking -of a number of questions on the chance of -getting at something is too often a plan -adopted by unskilful advocates, and noise -is mistaken for energy. Mr. Baron Alderson -once remarked to a counsel of this type, -‘Mr. ——, you seem to think that the -art of cross-examination is to examine -crossly.’”</p> - -<p>How few advocates have the capacity to -let well alone! They must repeat and<span class="pagenum" id="Page_87">[87]</span> -emphasise, and emphasise and repeat. In -a case tried before Sir Henry Hawkins, a -junior, not content with his own witness’s -answer, continues:</p> - -<p><span class="smcap">Junior</span> (<i>emphatically</i>): “And you are -quite sure of this?”</p> - -<p><span class="smcap">Witness</span>: “Yes.”</p> - -<p><span class="smcap">Junior</span>: “Quite?”</p> - -<p><span class="smcap">Witness</span>: “Quite!”</p> - -<p><span class="smcap">Junior</span>: “You have no doubt about -it?”</p> - -<p><span class="smcap">Witness</span>: “Well, I haven’t much -doubt, because I asked my wife.”</p> - -<p><span class="smcap">Sir Henry</span> (<i>pouncing on his prey</i>): -“You asked your wife in order to be sure -in your own mind?”</p> - -<p><span class="smcap">Witness</span>: “Quite so, my lord.”</p> - -<p><span class="smcap">Sir Henry</span>: “Then you had some -doubt before?”</p> - -<p><span class="smcap">Witness</span>: “Well, I may have had, my -lord.”</p> - -<p>It is part of the advocate’s rôle to make -the jury believe in his infallibility, and -every question he asks that gives the witness -an opportunity to score off him and -belittle him in their eyes is an error of -judgment. Serjeant Buzfuz, who conducted -his case with fine judgment, was -guilty of a grave error in his examination -of Sam Weller. Brow-beating is always a -dangerous policy; it antagonises the jury<span class="pagenum" id="Page_88">[88]</span> -and leads to reprisals. There is an old -story of the counsel in an assault case who -asked the witness at what distance from -the parties he was at the time of the assault. -Not content with the reply of “A few -feet,” but pressing for greater accuracy, -he was answered by the witness: “Just -four feet five and a half inches.”</p> - -<p>“How do you come to be so very exact, -fellow?” asked counsel sternly.</p> - -<p>“Because I expected some fool or other -would ask me, so I measured it.”</p> - -<p>A good story, too, is told against Lord -Coleridge in Mr. O’Brien’s <i>Life of Lord -Russell</i>. He appeared in a libel action -for a young lady who had been expelled -from a college. His case was that the -breaches of discipline were trivial, and he -pressed Mrs. Kennedy, the mistress of -novices, asking what his young client had -done. Mrs. Kennedy said, as an example, -that she had eaten strawberries.</p> - -<p>“Eaten strawberries!” exclaimed Coleridge. -“What harm was there in that?”</p> - -<p>“It was forbidden, sir,” replied Mrs. -Kennedy simply.</p> - -<p>Coleridge should have accepted her -answer, but he retorted with a contemptuous -question, not foreseeing the reprisal, -“But, Mrs. Kennedy, what trouble was -likely to come from eating strawberries?”</p> - - - -<p><span class="pagenum" id="Page_89">[89]</span>“Well, sir,” replied Mrs. Kennedy, “you -might ask what trouble was likely to come -from eating an apple, yet we know what -trouble did come from it.”</p> - -<p>Coleridge’s cross-examination dissolved -in laughter, in which, of course, he joined -good-naturedly.</p> - -<p>The art of re-examination, which is a -task often as futile as the endeavour to -set Humpty Dumpty on the wall again, -can be learned only by the experience of -watching the game on the table and playing -any few remaining cards in your hand -with rapid judgment.</p> - -<p>A wise student will take Lord Halsbury’s -advice and go to the Old Bailey to study -cross-examination; and, if Lockwood’s -view still holds good, he might attend the -Chancery Courts to learn how not to -re-examine. Birrell tells us that “once, -in the Court of Chancery, a witness was -asked, in cross-examination by an eminent -Chancery leader, whether it was true that -he had been convicted of perjury. The -witness owned the soft impeachment, and -the cross-examining counsel very promptly -sat down. Then it became the duty of an -equally eminent Chancery Q.C. to re-examine. -‘Yes,’ said he, ‘it is true you -have been convicted of perjury. But tell -me, have you not on many other occasions<span class="pagenum" id="Page_90">[90]</span> -been accused of perjury, and been acquitted?’”</p> - -<p>Most re-examination intending to rehabilitate -the character of a witness is apt -to make matters worse.</p> - -<p>These stories of actual happenings, -trivial in themselves, teach us the necessity -of judgment in advocacy. And I pray the -young advocate not to rejoice too merrily -over the errors of judgment of his seniors -or lament too grievously about his own. -Bear in mind that by acknowledged error -we may learn wisdom, and that the only -illuminant for the lamp of judgment is the -oil of experience.</p> -<hr class="chap x-ebookmaker-drop" /> - -<div class="chapter"> -<span class="pagenum" id="Page_91">[91]</span> - -<p class="ph2">VII<br /> - -THE LAMP<br /> -OF FELLOWSHIP</p> -</div> - -<p><span class="pagenum" id="Page_92">[92]</span></p> - -<hr class="chap x-ebookmaker-drop" /> - -<div class="chapter"> -<span class="pagenum" id="Page_93">[93]</span> - -<h2 class="nobreak">VII<br /> - - -THE LAMP OF FELLOWSHIP</h2> -</div> - -<p><span class="smcap">An</span> advocate lacking in fellowship, careless -of the sacred traditions of brotherhood -which have kept the lamp of fellowship -burning brightly for the English Bar -through many centuries, a man who joins -the Bar merely as a trade or business, and -does not understand that it is also a professional -community with public ideals, -misses the heart of the thing, and he and -his clients will suffer accordingly.</p> - -<p>Fitzjames Stephen wisely said of the -English Bar that it is “exactly like a -great public school, the boys of which -have grown older, and have exchanged -boyish for manly objects. There is just -the same rough familiarity, the general -ardour of character, the same kind of -unwritten code of morals and manners, the -same kind of public opinion expressed in -exactly the same blunt, unmistakable -manner.”</p> - -<p>The very title of Inns of Court is -redolent of hospitality, fellowship, and even<span class="pagenum" id="Page_94">[94]</span> -conviviality. How many glorious things -have their beginnings at an inn! How -pleasant it would be to investigate with -the antiquarians the earliest origins of our -Inns of Court! But to come to comparatively -modern days, Sir John Fortescue, -who was Chief Justice of the King’s Bench -in the time of Henry VI., gives us a -pleasant picture of their traditions of -fellowship. These Inns of Court, or hostels, -he says, anciently received the sons of -noble men and the better sort of gentlemen, -“who did there not only study the -laws to serve the courts of justice and -profit their country, but did further learn -to dance, to sing, to play on instruments -on the ferial days and to study divinity -on the festival, using such exercises as -they did who were brought up in the -King’s Court.” There were Inns of Chancery, -too, where the younger students -learned the first elements of law before -they were taken into the greater hostels, -which were called Inns of Court. The -expenses of the student were no less than -twenty marks a year in Fortescue’s day, -and if he was attended by his servant, -as most were, that was an added charge, -so that only the sons of gentlemen could -afford so expensive an education.</p> - -<p>At this time a young fellow would come<span class="pagenum" id="Page_95">[95]</span> -from the university, or perhaps straight -from the grammar-school, and would learn -the first elements of law in one of the ten -minor Inns of Chancery, and would then -apply for admission to one of the four -houses or Inns of Court: Inner or Middle -Temple, Gray’s Inn or Lincoln’s Inn. -There they continued for the space of -seven years, attending readings, moots—where -cases were put and discussed—and -“boltings,” as the practice arguments -were called, “whereby,” as Fortescue tells -us, “growing ripe in the knowledge of the -laws, and approved withal to be of honest -conversation, they are either by the -general consent of the benchers or readers -(being of the most ancient, grave, and -judicial men of every Inn of Court), or by -the special privilege of the present reader -there, selected and called to the degree -of utter (outer) barristers, and so enabled -to be common counsellers and to practise -the law both in their chambers and at the -bars.”</p> - -<p>The whole social scheme of education -and control in the exercise of professional -rights and advancement was most carefully -thought out. An utter barrister of -not less than ten or twelve years’ standing -and “of good profit in study” was chosen -as reader to educate the students. At<span class="pagenum" id="Page_96">[96]</span> -about fifteen years’ standing he became a -bencher, after which he might be appointed -a serjeant, and go away to Serjeants’ -Inn, that important society “where -none but serjeants and judges do converse,” -and from which alone could judges be -chosen.</p> - -<p>It was for this reason that the judges -always addressed a serjeant as “Brother.” -I can well remember as a boy feeling a -certain glow of satisfaction at hearing the -judges in the Tichborne trial calling my -father “Brother Parry,” and it seems a -pity that this fraternal greeting, this -courteous link of fellowship between Bench -and Bar, necessarily disappeared with -the abolition of Serjeants’ Inn. Yet, -though the talisman is no longer spoken, -the spirit of brotherhood will always be -with us.</p> - -<p>In the old days education in the law -was undertaken very seriously, but in a -fraternal spirit. The reader would propound -a case, the utter barristers would -declare their opinion, the reader would -confute the objections laid against him, -and the students would eagerly note the -learned points of the seniors. These readings -took four or five hours daily, and were -held in the halls. The moots and the -boltings took place after supper, and at<span class="pagenum" id="Page_97">[97]</span> -other times among the students under the -leadership of a barrister.</p> - -<p>But the whole term was not taken up -with the dry study of the law. There were -feastings, grand nights, and, greatest of -all, the Christmas Saturnalia, at one of -which, after a costly dinner, a pack of -hounds was brought into the hall, a fox -and a cat were let loose, and a mad hunt -took place. Isaac D’Israeli gives an -excellent account of these wild doings, -taken from a rare tract supposed to have -been written in 1594. “Supper ended,” -he writes, “the constable-marshal presented -himself, with drums playing, mounted -on a stage borne by four men, and carried -round; at length he cries out, ‘A lord, -a lord,’ &c., and then calls his mock court -every one by name.</p> - -<p>“‘Sir Francis Flatterer, of Fowls-hurt.</p> - -<p>“‘Sir Randall Rackabite, of Rascal-hall, -in the county of Rake-hell.</p> - -<p>“‘Sir Morgan Mumchance, of Much -Monkery, in the county of Mad Mopery.</p> - -<p>“‘Sir Bartholomew Bald-breech, of -Buttock-bury, in the county of Break-neck.’</p> - -<p>“They had also their mock arraignments. -The king’s-serjeant, after dinner -or supper, ‘oratour-like,’ complained that<span class="pagenum" id="Page_98">[98]</span> -the constable-marshal had suffered great -disorders to prevail; the complaint was -answered by the common-serjeant, who -was to show his talent at defending the -cause. The king’s-serjeant replies; they -rejoin, &c.: till one at length is committed -to the Tower, for being found most deficient. -If any offender contrived to escape from -the lieutenant of the Tower into the buttery, -and brought into the hall a manchet -(or small loaf) upon the point of a knife, -he was pardoned; for the buttery in this -jovial season was considered as a sanctuary. -Then began the <i>revels</i>. Blount derives this -term from the French <i>reveiller</i>, to awake -from sleep. These were sports of dancing, -masking comedies, &c. (for some were -called solemn revels), used in great houses, -and were so denominated because they -were performed by night; and these -various pastimes were regulated by a -master of the revels.</p> - -<p>“Amidst ‘the grand Christmass’ a -personage of no small importance was -‘the Lord of Misrule.’ His lordship was -abroad early in the morning, and if he -lacked any of his officers, he entered their -chambers to drag forth the loiterers; but -after breakfast his lordship’s power ended, -and it was in suspense till night, when his -personal presence was paramount, or, as<span class="pagenum" id="Page_99">[99]</span> -Dugdale expresses it, ‘and then his power -is most potent.’</p> - -<p>“Such were then the pastimes of the -whole learned bench; and when once it -happened that the under-barristers did -not dance on Candlemas Day, according -to the ancient order of the society, when -the judges were present, the whole bar -was offended, and at Lincoln’s Inn were -by decimation put out of commons, for -example-sake; and should the same -omission be repeated, they were to be -fined or disbarred; for these dancings -were thought necessary, ‘as much conducing -to the making of gentlemen more -fit for their books at other times.’”</p> - -<p>The details of the alliteration with which -Sir Francis Flatterer and others are called -into court have always interested me -deeply, as on the Northern Circuit, when -the crier at Grand Court calls in the absent -ones, he has to do it in curious and measured -phrases of alliterative abuse. When -Fitzjames Stephen was made crier on -account of his stentorian voice, his delicate -mind revolted against the coarseness of his -duties, and he sought to have the Circuit -Court and its ancient, outspoken manners -abolished, but fortunately he did not -succeed.</p> - -<p>For though some of this ancientry is<span class="pagenum" id="Page_100">[100]</span> -better honoured in the breach than the -observance, yet even the buffoonery, as -Stephen called it, of Grand Court has its -value as a link with the past.</p> - -<p>It is an excellent thing for the profession -that in the same way as the lessons of -advocacy in the past were learned by the -young students from their elders, who sat -at meat with them and shared their lives -in intimate and homely fashion, so to-day -we enter a common Inn, dine at a common -table, join a common mess upon circuit, -all of which is evidence of the continuance -of that right spirit of fellowship which, -to my mind, is an essential of advocacy.</p> - -<p>The fellowship of the Temple springs -from its long traditions of brotherhood -among the Templars. To turn out of the -Strand into its quiet courts brings over -your brooding spirit something of that -sacred melancholy pleasure which one -feels on entering the old school or dining -once again in the college hall. But you -are no longer actor, art and part, in the -school and college life. Here in the Temple, -though others are judges and benchers -and fashionable leaders, you can still -wander in shabby honesty in the gardens, -pull down some of the old volumes in the -library, and dine below the salt with your -fellow-ancients.</p> - - - -<p><span class="pagenum" id="Page_101">[101]</span>Thackeray has a true insight into the -pleasures of memory that the Temple -possesses for those who have lived there, -and pictures, as he alone can, its historic -charm.</p> - -<p>“Nevertheless,” he writes, “those venerable -Inns which have the Lamb and -Flag and the Winged Horse for their ensigns -have attractions for persons who inhabit -them, and a share of rough comforts and -freedom which men always remember -with pleasure. I don’t know whether -the student of law permits himself the -refreshment of enthusiasm, or indulges in -poetical reminiscences as he passes by -historical chambers and says, ‘Yonder -Eldon lived—upon this site Coke mused -upon Lyttelton—here Chitty toiled—here -Barnwell and Alderson joined in their -famous labours—here Byles composed his -great work upon bills, and Smith compiled -his immortal leading cases—here Gustavus -still toils, with Solomon to aid him:’ -but the man of letters can’t but love the -place which has been inhabited by so -many of his brethren, or peopled by their -creations, as real to us at this day as the -authors whose children they were—and -Sir Roger de Coverley, walking in the -Temple Garden and discoursing with Mr. -Spectator about the beauties in hoops and<span class="pagenum" id="Page_102">[102]</span> -patches who are sauntering over the grass, -is just as lovely a figure to me as old -Samuel Johnson rolling through the fog -with the Scotch gentleman at his heels -on their way to Dr. Goldsmith’s chambers -in Brick Court; or Harry Fielding, with -inked ruffles and a wet towel round his -head, dashing off articles at midnight -for the <i>Covent Garden Journal</i> while the -printer’s boy is asleep in the passage.”</p> - -<p>The Temple is full of ghosts—honest -ghosts with whom it is a privilege to claim -fellowship.</p> - -<p>There are some who speak of the Bar -sneeringly as a Trade Union—which it -certainly is, and to my thinking one of -the oldest and best unions. And if advocacy -could be honestly described as a -trade, then the phrase trade union might -be accepted without demurrer. For the -basic quality of a trade union, that which -has made these institutions thrive against -opposition, is the spirit of fellowship and unselfishness -which is the ideal of its members.</p> - -<p>We have seen how of old the senior -members of the Bar trained up the juniors -in the mystery of their craft, and throughout -the practice of the profession it has -always been a point of honour for the -elders to assist the beginners in those -difficult days of apprenticeship.</p> - - - -<p><span class="pagenum" id="Page_103">[103]</span>What could be more delightful and -encouraging to a youngster than to be -received by his genial, handsome leader -in the presence of an admiring attorney -after the fashion that Montagu Williams -tells us of his first meeting with Serjeant -Shee? “I shall never forget,” he writes, -“my consultation with dear old Serjeant -Shee. I knew very little about pleadings, -and matters of that kind, and so the work -naturally made me feel somewhat nervous. -On going upstairs to the consulting-room -to see Serjeant Shee, whom I already knew -slightly, I had my briefs stuck under my -arm, somewhat ostentatiously, I am afraid. -The old serjeant patted me on the shoulder -and said, ‘Lots of briefs flowing in, my -boy; delighted to see it.’</p> - -<p>“When we had taken our seats, and the -consultation had begun, he said, turning -to the solicitor who instructed us, ‘Winning -case—pleadings all wrong. That -young dog over there smelt it out long ago, -as a terrier would a rat, I can see—eh, -Montagu Williams? You’ve found it out; -I can see it by your face.’</p> - -<p>“Heaven knows I was as innocent of -finding anything out as the man in -the moon. I sniggered feebly; and -then the serjeant proceeded to put into -my mouth the vital blots in the case of<span class="pagenum" id="Page_104">[104]</span> -our adversary, which he alone had discovered.</p> - -<p>“That was the way leaders treated their -juniors then. I must leave my successors -at the Bar to decide whether or not things -are the same now.”</p> - -<p>With equal kindness that great man -and honest advocate, Abraham Lincoln, -stretched out the hand of welcome and -encouragement to the younger men who -came along.</p> - -<p>James Haines tells us the story of his -first brief, The People <i>v.</i> Gideon Hawley. -“There were,” he says, “thirty-two indictments -against my client for obstructing -a public road, and as the authorities -were inclined to make an example, the -case was somewhat serious. I retained -Mr. L. to conduct the defence, and after -we had completed our preparations he -said, ‘Of course, you will make the opening -speech.’ I was surprised, for I had supposed -that he would want to assume full -control, and I said as much, adding that -I would prefer him to take the lead. ‘No,’ -he answered, and then, laying a hand on -my shoulder, he continued: ‘I want you -to open the case, and when you are doing -it, talk to the jury as though your client’s -fate depends on every word you utter. -Forget that you have any one to fall back<span class="pagenum" id="Page_105">[105]</span> -upon, and you will do justice to yourself -and your client.’ I have never forgotten -the kind, gentle, and tactful manner in -which he spoke those words,” Mr. Haines -continued, “and that is a fair sample of -the way he treated the younger members -of the Bar.”</p> - -<p>No man ever attains a position at the -Bar in which he can afford to despise the -opinion of his fellow-men. The eulogies -of public journals, even the praise and -patronage of attorneys, are of no worth -compared with the respect of the Bar. -As a French advocate wrote: “A solid -reputation proceeds only from the Court.”</p> - -<p>Charles Russell, who stood on a somewhat -lonely eminence at the head of his -profession, and dealt with the affairs of -his fellows in a very rough-handed and -independent manner, was at heart very -jealous of the good opinion of the Bar.</p> - -<p>He had, during the course of a trial, -cross-examined a lady with great severity, -and afterwards received an anonymous -letter of a very abusive character, in which -he was charged with having been guilty -of conduct in his cross-examination “which -no gentleman should pursue towards any -woman.” He thereupon sat down and -wrote a letter to the counsel on the other -side, in which he said, “I should be sorry<span class="pagenum" id="Page_106">[106]</span> -to think this was true, but I am not the best -judge of my own conduct,” and asked for -his learned friend’s opinion on the charge.</p> - -<p>The interesting point of the correspondence -is that Russell felt that it might -possibly be true. It reminds one of the -celebrated line in a lively mid-Victorian -comedy, where the servant-girl said, -“Really, ma’am, I’m that flustered that -I don’t know whether I am standing on -my head or my heels.” To which Mrs. -John Wood used to reply with stern emphasis, -“No decent woman ought to have -the slightest doubt on a subject of that -kind.”</p> - -<p>Russell’s learned friend cleverly evaded -responsibility by telling him that the -character of a gentleman was one “we all -know you eminently possess,” with which -certificate of character the great man was -soothed and satisfied.</p> - -<p>With the decay of circuits and the -passing of old customs and the silence of -ancient convivialities, some of the spirit -of fellowship may be lost. But we must -remember that even the good old days -were not without evidence of professional -malice and uncharitableness. As far back -as the reign of François I. it was a rule -of the French Bar that “advocates must -not use contentious words or exclamations<span class="pagenum" id="Page_107">[107]</span> -the one toward the other; or talk -several at the same time, or interrupt each -other.” These words might still be engraved -in letters of gold on the walls of -our own law-courts, for on occasion the -lamp of fellowship burns so low that such -things occur. Still, at the English Bar -we may claim that we set a good example -to other bodies of learned men by our -real attachment to the precepts and -practice of fellowship, and may, without -hypocrisy, commend the rest of mankind -to follow in our footsteps,</p> - -<div class="poetry-container"> -<div class="poetry"> -<div class="verse">And do as adversaries do in law,</div> -<div class="verse">Strive mightily, but eat and drink as friends.</div> -</div></div> - -<p>For it is by keeping the lamp of fellowship -burning that we encourage each other -to walk in the light of the seven lamps of -advocacy.</p> -<p><span class="pagenum" id="Page_108">[108]</span></p> - -<hr class="chap x-ebookmaker-drop" /> - -<div class="chapter"> -<span class="pagenum" id="Page_109">[109]</span> - -<h2 class="nobreak" id="INDEX">INDEX</h2> -</div> - - -<p> -Alderson, Baron, <a href="#Page_86">86</a><br /> -<br /> -Atlay, J. B., <a href="#Page_67">67</a><br /> -<br /> -<br /> -Bacon, Francis, <a href="#Page_65">65</a><br /> -<br /> -Ballantine, Serjeant, <a href="#Page_76">76</a>, <a href="#Page_85">85</a><br /> -<br /> -Benjamin, J. P., <a href="#Page_26">26</a><br /> -<br /> -Berryer, M., <a href="#Page_18">18</a><br /> -<br /> -Bethell, Richard, <a href="#Page_23">23</a>, <a href="#Page_65">65</a>, <a href="#Page_66">66</a><br /> -<br /> -Billings, Josh, <a href="#Page_56">56</a><br /> -<br /> -Birrell, A., <a href="#Page_82">82</a>, <a href="#Page_89">89</a><br /> -<br /> -Blackstone, Sir W., <a href="#Page_13">13</a><br /> -<br /> -Boswell, James, <a href="#Page_16">16</a>, <a href="#Page_17">17</a>, <a href="#Page_18">18</a><br /> -<br /> -Bowen, Lord Justice, <a href="#Page_54">54</a><br /> -<br /> -Bramwell, Lord, <a href="#Page_53">53</a><br /> -<br /> -Brougham, Lord, <a href="#Page_18">18</a>, <a href="#Page_42">42</a>, <a href="#Page_63">63</a>, <a href="#Page_68">68</a>, <a href="#Page_71">71</a>, <a href="#Page_78">78</a><br /> -<br /> -<br /> -Campbell, Lord Chief Justice, <a href="#Page_39">39</a>, <a href="#Page_71">71</a><br /> -<br /> -Capitularies of Charlemagne, <a href="#Page_14">14</a><br /> -<br /> -Chesterfield, Lord, <a href="#Page_71">71</a><br /> -<br /> -Choate, Rufus, <a href="#Page_50">50</a>, <a href="#Page_51">51</a>, <a href="#Page_61">61</a>, <a href="#Page_77">77</a><br /> -<br /> -Cicero, <a href="#Page_50">50</a><br /> -<br /> -Clarke, Sir Edward, <a href="#Page_69">69</a><br /> -<br /> -Cobbett, William, <a href="#Page_68">68</a><br /> -<br /> -Cockburn, Lord Chief Justice, <a href="#Page_18">18</a><br /> -<br /> -Coleridge, Lord Chief Justice, <a href="#Page_53">53</a>, <a href="#Page_69">69</a>, <a href="#Page_88">88</a>, <a href="#Page_89">89</a><br /> -<br /> -Copley, Serjeant (Lord Lyndhurst), <a href="#Page_66">66</a><br /> -<br /> -Curran, J. P., <a href="#Page_52">52</a><br /> -<br /> -<br /> -D’Aguesseau, <a href="#Page_14">14</a><br /> -<br /> -Davy, Serjeant, <a href="#Page_52">52</a><br /> -<br /> -Denman, Lord, <a href="#Page_67">67</a>, <a href="#Page_78">78</a><br /> -<br /> -D’Israeli, Isaac, <a href="#Page_97">97</a><br /> -<br /> -Dugdale, Sir William, <a href="#Page_44">44</a><br /> -<br /> -<br /> -Eldon, Lord. <i>See</i> Scott, John<br /> -<br /> -Erskine, Lord, <a href="#Page_11">11</a>, <a href="#Page_30">30</a>, <a href="#Page_31">31</a>, <a href="#Page_50">50</a>, <a href="#Page_61">61</a>, <a href="#Page_63">63</a><br /> -<br /> -<br /> -Faculty of Advocates, <a href="#Page_13">13</a><br /> -<br /> -Fielding, Henry, <a href="#Page_61">61</a>, <a href="#Page_102">102</a><br /> -<br /> -Finch, Heneage, <a href="#Page_42">42</a>, <a href="#Page_43">43</a><br /> -<br /> -Fortescue, Sir John, <a href="#Page_94">94</a><br /> -<br /> -François I, <a href="#Page_106">106</a><br /> -<br /> -<br /> -Garrick, <a href="#Page_11">11</a>, <a href="#Page_61">61</a>, <a href="#Page_62">62</a><br /> -<br /> -Grant, James, <a href="#Page_66">66</a><br /> -<br /> -Guildford, Lord. <i>See</i> North, Francis.<br /> -<br /> -Gully, W. C. (Lord Selby), <a href="#Page_45">45</a>, <a href="#Page_53">53</a>, <a href="#Page_66">66</a><br /> -<br /> -<br /> -Haines, James, <a href="#Page_104">104</a>, <a href="#Page_105">105</a><br /> -<br /> -Hale, Lord Chief Justice, <a href="#Page_25">25</a><br /> -<br /> -Halsbury, Lord, <a href="#Page_89">89</a><br /> -<br /> -Hatton, Charles, <a href="#Page_23">23</a><br /> -<br /> -Hawkins, Sir Henry, <a href="#Page_11">11</a>, <a href="#Page_78">78</a>, <a href="#Page_87">87</a><br /> -<br /> -Herschell, Lord, <a href="#Page_45">45</a><br /> -<br /> -Holker, Sir John, <a href="#Page_53">53</a>, <a href="#Page_68">68</a><br /> -<br /> -Hollams, Sir John, <a href="#Page_26">26</a><br /> -<br /> -Horn, Andrew, <a href="#Page_14">14</a><br /> -<br /> -<br /> -Irving, Sir Henry, <a href="#Page_11">11</a><br /> -<br /> -<br /> -James, Lord Justice, <a href="#Page_26">26</a><br /> -<br /> -Jeffreys, Baron, <a href="#Page_23">23</a><br /> -<br /> -Johnson, Doctor, <a href="#Page_16">16</a>, <a href="#Page_17">17</a>, <a href="#Page_18">18</a>, <a href="#Page_102">102</a><br /> -<br /> -Jones, Tom, <a href="#Page_28">28</a><br /> -<br /> -<br /> -Karslake, Sir John, <a href="#Page_40">40</a><br /> -<br /> -Kay, Lord Justice, <a href="#Page_27">27</a><br /> -<br /> -<span class="pagenum" id="Page_110">[110]</span>Kean, <a href="#Page_11">11</a><br /> -<br /> -Kelly, Chief Baron, <a href="#Page_57">57</a><br /> -<br /> -Kennedy, Mrs., <a href="#Page_88">88</a>, <a href="#Page_89">89</a><br /> -<br /> -Kenyon, Lord Chief Justice, <a href="#Page_45">45</a>, <a href="#Page_50">50</a><br /> -<br /> -<br /> -Lamb, Charles, <a href="#Page_37">37</a>, <a href="#Page_61">61</a><br /> -<br /> -Leach, Sir John, <a href="#Page_65">65</a><br /> -<br /> -Lincoln, Abraham, <a href="#Page_19">19</a>, <a href="#Page_38">38</a>, <a href="#Page_61">61</a>, <a href="#Page_78">78</a>, <a href="#Page_104">104</a><br /> -<br /> -Lockwood, Sir Frank, <a href="#Page_82">82</a>, <a href="#Page_85">85</a><br /> -<br /> -<br /> -Mansfield, Lord Chief Justice, <a href="#Page_51">51</a><br /> -<br /> -Maynard, Serjeant, <a href="#Page_42">42</a><br /> -<br /> -<i>Mirrour of Justices</i>, <a href="#Page_14">14</a><br /> -<br /> -<br /> -North, Francis, <a href="#Page_24">24</a>, <a href="#Page_42">42</a>, <a href="#Page_80">80</a><br /> -<br /> -North, Roger, <a href="#Page_24">24</a>, <a href="#Page_25">25</a>, <a href="#Page_26">26</a>, <a href="#Page_42">42</a>, <a href="#Page_44">44</a><br /> -<br /> -<br /> -O’Brien, R. B., <a href="#Page_40">40</a>, <a href="#Page_88">88</a><br /> -<br /> -O’Connell, Daniel, <a href="#Page_41">41</a><br /> -<br /> -<br /> -Paine, Thomas, <a href="#Page_30">30</a><br /> -<br /> -Palmer, Sir Roundell (Lord Selborne), <a href="#Page_27">27</a><br /> -<br /> -Parry, Serjeant, <a href="#Page_68">68</a>, <a href="#Page_96">96</a><br /> -<br /> -<br /> -Quintilian, <a href="#Page_55">55</a><br /> -<br /> -<br /> -Ribton, <a href="#Page_56">56</a><br /> -<br /> -Robinson, Serjeant, <a href="#Page_28">28</a><br /> -<br /> -Roche, Sir Boyle, <a href="#Page_52">52</a><br /> -<br /> -Russell, Charles (Lord Russell of Killowen), <a href="#Page_38">38</a>, <a href="#Page_40">40</a>, <a href="#Page_41">41</a>, <a href="#Page_45">45</a>, <a href="#Page_69">69</a>, <a href="#Page_82">82</a>, <a href="#Page_105">105</a>, <a href="#Page_106">106</a><br /> -<br /> -<br /> -Scarlett, James (Lord Abinger), <a href="#Page_61">61</a>, <a href="#Page_67">67</a>, <a href="#Page_68">68</a><br /> -<br /> -Scott, John (Lord Eldon), <a href="#Page_44">44</a>, <a href="#Page_46">46</a><br /> -<br /> -Seward, William Henry, <a href="#Page_32">32</a><br /> -<br /> -Shee, Serjeant, <a href="#Page_68">68</a>, <a href="#Page_103">103</a><br /> -<br /> -Stephen, FitzJames, Mr. Justice, <a href="#Page_93">93</a>, <a href="#Page_99">99</a><br /> -<br /> -<br /> -Talbot, Charles, Lord Chancellor, <a href="#Page_45">45</a><br /> -<br /> -Thackeray, W. M., <a href="#Page_101">101</a><br /> -<br /> -<br /> -Westbury, Lord. <i>See</i> Bethell<br /> -<br /> -Wightman, Mr. Justice, <a href="#Page_56">56</a><br /> -<br /> -Wilde, Mr. Justice, <a href="#Page_50">50</a><br /> -<br /> -Williams, Johnny, <a href="#Page_78">78</a>, <a href="#Page_79">79</a><br /> -<br /> -Williams, Joshua, <a href="#Page_19">19</a><br /> -<br /> -Williams, Montagu, <a href="#Page_68">68</a>, <a href="#Page_103">103</a><br /> -<br /> -Wood, Mrs. John, <a href="#Page_106">106</a><br /> -<br /> -Wren, Sir Christopher, <a href="#Page_43">43</a><br /> -<br /> -Wyclif, John, <a href="#Page_13">13</a><br /> -</p> - - - -<p class="center"> -<i>Printed in Great Britain by Hazell, Watson & Viney, Ld.,<br /> -London and Aylesbury.</i></p> - - -<hr class="chap x-ebookmaker-drop" /> - -<div class="chapter"> -<div class="transnote"> -<p class="ph1">TRANSCRIBER’S NOTES:</p> - - - - -<p>Obvious typographical errors have been corrected.</p> - -<p>The cover image for this eBook was created by the transcriber and is entered into the public domain.</p> -</div></div> - - -<div style='display:block; margin-top:4em'>*** END OF THE PROJECT GUTENBERG EBOOK THE SEVEN LAMPS OF ADVOCACY ***</div> -<div style='text-align:left'> - -<div style='display:block; margin:1em 0'> -Updated editions will replace the previous one—the old editions will -be renamed. -</div> - -<div style='display:block; margin:1em 0'> -Creating the works from print editions not protected by U.S. copyright -law means that no one owns a United States copyright in these works, -so the Foundation (and you!) can copy and distribute it in the United -States without permission and without paying copyright -royalties. 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