CHAPTER X

SOME FAMOUS CROSS-EXAMINERS AND THEIR METHODS

One of the best ways to acquire the art of cross-examination is to study

the methods of the great cross-examiners who serve as models for the

legal profession.

Indeed, nearly every great cross-examiner attributes his success to the

fact of having had the opportunity to study the art of some great

advocate in actual practice.

In view of the fact also that a keen interest is always taken in the

personality and life sketches of great cross-examiners, it has seemed

fitting to introduce some brief sketches of great cross-examiners, and

to give some illustrations of their methods.

Sir Charles Russell, Lord Russell of Killowen, who died in February,

1901, while he was Lord Chief Justice of England, was altogether the

most successful cross-examiner of modern times. Lord Coleridge said of

him while he was still practising at the bar, and on one side or the

other in nearly every important case tried, "Russell is the biggest

advocate of the century."

It has been said that his success in cross-examination, like his success

in everything, was due to his force of character. It was his striking

personality, added to his skill and adroitness, which seemed to give

him his overwhelming influence over the witnesses whom he

cross-examined. Russell is said to have had a wonderful faculty for

using the brain and knowledge of other men. Others might possess a

knowledge of the subject far in excess of Russell, but he had the

reputation of being able to make that knowledge valuable and use it in

his examination of a witness in a way altogether unexpected and unique.

Unlike Rufus Choate, "The Ruler of the Twelve," and by far the greatest

advocate of the century on this side of the water, Russell read but

little. He belonged to the category of famous men who "neither found nor

pretended to find any real solace in books." With Choate, his library of

some eight thousand volumes was his home, and "his authors were the

loves of his life." Choate used to read at his meals and while walking

in the streets, for books were his only pastime. Neither was Russell a

great orator, while Choate was ranked as "the first orator of his time

in any quarter of the globe where the English language was spoken, or

who was ever seen standing before a jury panel."

Both Russell and Choate were consummate actors; they were both men of

genius in their advocacy. Each knew the precise points upon which to

seize; each watched every turn of the jury, knew at a glance what was

telling with them, knew how to use to the best advantage every accident

that might arise in the progress of the case.

"One day a junior was taking a note in the orthodox fashion. Russell was

taking no note, but he was thoroughly on the alert, glancing about the

court, sometimes at the judge, sometimes at the jury, sometimes at the

witness or the counsel on the other side. Suddenly he turned to the

junior and said, 'What are you doing?' 'Taking a note,' was the answer.

'What the devil do you mean by saying you are taking a note? Why don't

you watch the case?' he burst out. _He_ had been 'watching' the case.

Something had happened to make a change of front necessary, and he

wheeled his colleagues around almost before they had time to grasp the

new situation."[16]

[16] "Life of Lord Russell," Barry O'Brien.

Russell's maxim for cross-examination was, "Go straight at the witness

and at the point; throw your cards on the table, mere _finesse_ English

juries do not appreciate."

Speaking of Russell's success as a cross-examiner, his biographer, Barry

O'Brien says: "It was a fine sight to see him rise to cross-examine. His

very appearance must have been a shock to the witness,--the manly,

defiant bearing, the noble brow, the haughty look, the remorseless

mouth, those deep-set eyes, widely opened, and that searching glance

which pierced the very soul. 'Russell,' said a member of the Northern

Circuit, 'produced the same effect on a witness that a cobra produces on

a rabbit.' In a certain case he appeared on the wrong side. Thirty-two

witnesses were called, thirty-one on the wrong side, and one on the

right side. Not one of the thirty-one was broken down in

cross-examination; but the one on the right side was utterly annihilated

by Russell.

"'How is Russell getting on?' a friend asked one of the judges of the

Parnell Commission during the days of Pigott's cross-examination.

'Master Charlie is bowling very straight,' was the answer. 'Master

Charlie' always bowled 'very straight,' and the man at the wicket

generally came quickly to grief. I have myself seen him approach a

witness with great gentleness--the gentleness of a lion reconnoitring

his prey. I have also seen him fly at a witness with the fierceness of a

tiger. But, gentle or fierce, he must have always looked a very ugly

object to the man who had gone into the box to lie."

Rufus Choate had little of Russell's natural force with which to command

his witnesses; his effort was to magnetize, he was called "the wizard of

the court room." He employed an entirely different method in his

cross-examinations. He never assaulted a witness as if determined to

browbeat him. "Commenting once on the cross-examination of a certain

eminent counsellor at the Boston Bar with decided disapprobation, Choate

said, 'This man goes at a witness in such a way that he inevitably gets

the jury all on the side of the witness. I do not,' he added, 'think

that is a good plan.' His own plan was far more wary, intelligent, and

circumspect. He had a profound knowledge of human nature, of the springs

of human action, of the thoughts of human hearts. To get at these and

make them patent to the jury, he would ask only a few telling

questions--a very few questions, but generally every one of them was

fired point-blank, and hit the mark. His motto was: 'Never cross-examine

any more than is absolutely necessary. If you don't break your witness,

he breaks you.' He treated every man who appeared like a fair and honest

person on the stand, as if upon the presumption that he was a gentleman;

and if a man appeared badly, he demolished him, but with the air of a

surgeon performing a disagreeable amputation--as if he was profoundly

sorry for the necessity. Few men, good or bad, ever cherished any

resentment against Choate for his cross-examination of them. His whole

style of address to the occupants of the witness-stand was soothing,

kind, and reassuring. When he came down heavily to crush a witness, it

was with a calm, resolute decision, but no asperity--nothing curt,

nothing tart."[17]

[17] "Reminiscences of Rufus Choate," Parker.

Choate's idea of the proper length of an address to a jury was that "a

speaker makes his impression, if he ever makes it, in the first _hour_,

sometimes in the first fifteen minutes; for if he has a proper and firm

grasp of his case, he then puts forth the outline of his grounds of

argument. He plays the _overture_, which hints at or announces all the

airs of the coming opera. All the rest is mere filling up: answering

objections, giving one juryman little arguments with which to answer the

objections of his fellows, etc. Indeed, this may be taken as a fixed

rule, that the popular mind can never be vigorously addressed, deeply

moved, and stirred and fixed more than _one hour_ in any single

address."

What Choate was to America, and Erskine, and later Russell, to England,

John Philpot Curran was to Ireland. He ranked as a jury lawyer next to

Erskine. The son of a peasant, he became Master of Rolls for Ireland in

1806. He had a small, slim body, a stuttering, harsh, shrill voice,

originally of such a diffident nature that in the midst of his first

case he became speechless and dropped his brief to the floor, and yet by

perseverance and experience he became one of the most eloquent and

powerful forensic advocates of the world. As a cross-examiner it was

said of Curran that "he could unravel the most ingenious web which

perjury ever spun, he could seize on every fault and inconsistency, and

build on them a denunciation terrible in its earnestness."[18]

[18] "Life Sketches of Eminent Lawyers," Gilbert J. Clark.

It was said of Scarlett, Lord Abinger, that he won his cases because

there were twelve Sir James Scarletts in the jury-box. He became one of

the leading jury lawyers of his time, so far as winning verdicts was

concerned. Scarlett used to wheedle the juries over the weak places in

his case. Choate would rush them right over with that enthusiasm which

he put into everything, "with fire in his eye and fury on his tongue."

Scarlett would level himself right down to each juryman, while he

flattered and won them. In his cross-examinations "he would take those

he had to examine, as it were by the hand, made them his friends,

entered into familiar conversation with them, encouraged them to tell

him what would best answer his purpose, and thus secured a victory

without appearing to commence a conflict."

A story is told about Scarlett by Justice Wightman who was leaving his

court one day and found himself walking in a crowd alongside a

countryman, whom he had seen, day by day, serving as a juryman, and to

whom he could not help speaking. Liking the look of the man, and finding

that this was the first occasion on which he had been at the court,

Judge Wightman asked him what he thought of the leading counsel. "Well,"

said the countryman, "that lawyer Brougham be a wonderful man, he can

talk, he can, but I don't think nowt of Lawyer Scarlett."--"Indeed!"

exclaimed the judge, "you surprise me, for you have given him all the

verdicts."--"Oh, there's nowt in that," was the reply, "he be so lucky,

you see, he be always on the right side."[19]

[19] "Curiosities of Law and Lawyers."

Choate also had a way of getting himself "into the jury-box," and has

been known to address a single juryman, who he feared was against him,

for an hour at a time. After he had piled up proof and persuasion all

together, one of his favorite expressions was, "But this is only _half_

my case, gentlemen, I go now to the main body of my proofs."

Like Scarlett, Erskine was of medium height and slender, but he was

handsome and magnetic, quick and nervous, "his motions resembled those

of a blood horse--as light, as limber, as much betokening strength and

speed." He, too, lacked the advantage of a college education and was at

first painfully unready of speech. In his maiden effort he would have

abandoned his case, had he not felt, as he said, that his children were

tugging at his gown. "In later years," Choate once said of him, "he

spoke the best English ever spoken by an advocate." Once, when the

presiding judge threatened to commit him for contempt, he replied, "Your

Lordship may proceed in what manner you think fit; I know my duty as

well as your Lordship knows yours." His simple grace of diction, quiet

and natural passion, was in marked contrast to Rufus Choate, whose

delivery has been described as "a musical flow of rhythm and cadence,

more like a long, rising, and swelling song than a _talk_ or an

argument." To one of his clients who was dissatisfied with Erskine's

efforts in his behalf, and who had written his counsellor on a slip of

paper, "I'll be hanged if I don't plead my own cause," Erskine quietly

replied, "You'll be hanged if you do." Erskine boasted that in twenty

years he had never been kept a day from court by ill health. And it is

said of Curran that he has been known to rise before a jury, after a

session of sixteen hours with only twenty minutes' intermission, and

make one of the most memorable arguments of his life.

Among the more modern advocates of the English Bar, Sir Henry Hawkins

stands out conspicuously. He is reputed to have taken more money away

with him from the Bar than any man of his generation. His leading

characteristic when at the Bar, was his marvellous skill in

cross-examination. He was associated with Lord Coleridge in the first

Tichborne trial, and in his cross-examination of the witnesses, Baignet

and Carter, he made his reputation as "the foremost cross-examiner in

the world."[20] Sir Richard Webster was another great cross-examiner. He

is said to have received $100,000 for his services in the trial before

the Parnell Special Commission, in which he was opposed to Sir Charles

Russell.

[20] "Life Sketches of Eminent Lawyers," Clark.

Rufus Choate said of Daniel Webster, that he considered him the grandest

lawyer in the world. And on his death-bed Webster called Choate the most

brilliant man in America. Parker relates an episode characteristic of

the clashing of swords between these two idols of the American Bar. "We

heard Webster once, in a sentence and a look, crush an hour's argument

of Choate's curious workmanship; it was most intellectually wire-drawn

and hair-splitting, with Grecian sophistry, and a subtlety the Leontine

Gorgias might have envied. It was about two car-wheels, which to common

eyes looked as like as two eggs; but Mr. Choate, by a fine line of

argument between tweedle-dum and tweedle-dee, and a discourse on 'the

fixation of points' so deep and fine as to lose itself in obscurity,

showed the jury there was a heaven-wide difference between them. 'But,'

said Mr. Webster, and his great eyes opened wide and black, as he stared

at the big twin wheels before him, 'gentlemen of the jury, there they

are--look at 'em;' and as he pronounced this answer, in tones of vast

volume, the distorted wheels seemed to shrink back again into their

original similarity, and the long argument on the 'fixation of points'

died a natural death. It was an example of the ascendency of mere

_character_ over mere _intellectuality_; but so much greater,

nevertheless, the _intellectuality_."[21]

[21] "Reminiscences of Rufus Choate," Parker.

Jeremiah Mason was quite on a par with either Choate or Webster before a

jury. His style was conversational and plain. He was no orator. He would

go close up to the jury-box, and in the plainest possible logic force

conviction upon his hearers. Webster said he "owed his own success to

the close attention he was compelled to pay for nine successive years,

day by day, to Mason's efforts at the same Bar." As a cross-examiner he

had no peer at the New England Bar.

In the history of our own New York Bar there have been, probably, but

few equals of Judge William Fullerton as a cross-examiner. He was famous

for his calmness and mildness of manner, his rapidly repeated questions;

his sallies of wit interwoven with his questions, and an ingenuity of

method quite his own.

Fullerton's cross-examinations in the celebrated Tilton _vs._ Henry Ward

Beecher case gave him an international reputation, and were considered

the best ever heard in this country. And yet these very examinations,

laborious and brilliant, were singularly unproductive of results, owing

probably to the unusual intelligence and shrewdness of the witnesses

themselves. The trial as a whole was by far the most celebrated of its

kind the New York courts have ever witnessed. One of the most eminent of

Christian preachers was charged with using the persuasive powers of his

eloquence, strengthened by his religious influence, to alienate the

affections and destroy the probity of a member of his church--a devout

and theretofore pure-souled woman, the wife of a long-loved friend. He

was charged with continuing the guilty relation during the period of a

year and a half, and of cloaking the offence to his own conscience and

to hers under specious words of piety; of invoking first divine blessing

on it, and then divine guidance out of it; and finally of adding perjury

to seduction in order to escape the consequences. His accusers,

moreover, Mr. Tilton and Mr. Moulton, were persons of public reputation

and honorable station in life.

The length and complexity of Fullerton's cross-examinations preclude any

minute mention of them here. Once when he found fault with Mr. Beecher

for not answering his questions more freely and directly, the reply was

frankly made, "_I am afraid of you!_"

While cross-examining Beecher about the celebrated "ragged letter,"

Fullerton asked why he had not made an explanation to the church, if he

was innocent. Beecher answered that he was keeping his part of the

compact of silence, and added that he did not believe the others were

keeping theirs. There was audible laughter throughout the court room at

this remark, and Judge Neilson ordered the court officer to remove from

the court room any person found offending--"Except the counsel," spoke

up Mr. Fullerton. Later the cross-examiner exclaimed impatiently to Mr.

Beecher that he was bound to find out all about these things before he

got through, to which Beecher retorted, "I don't think you are

succeeding very well."

_Mr. Fullerton_ (in a voice like thunder). "Why did you not rise up and

deny the charge?"

_Mr. Beecher_ (putting into his voice all that marvellous magnetic

force, which so distinguished him from other men of his time). "Mr.

Fullerton, that is not my habit of mind, nor my manner of dealing with

men and things."

_Mr. Fullerton._ "So I observe. You say that Theodore Tilton's charge of

intimacy with his wife, and the charges made by your church and by the

committee of your church, made no impression on you?"

_Mr. Beecher_ (shortly). "Not the slightest."

At this juncture Mr. Thomas G. Sherman, Beecher's personal counsel,

jumped to his client's aid, and remarked that it was a singular

coincidence that when counsel had not the record before him, he never

quoted correctly.

_Mr. Fullerton_ (addressing the court impressively). "When Mr. Sherman

is not impertinent, he is nothing in this case."

_Judge Neilson_ (to the rescue). "Probably counsel thought--"

_Mr. Fullerton_ (interrupting). "What Mr. Sherman _thinks_, your Honor,

cannot possibly be of sufficient importance to take up the time either

of the court or opposing counsel."

"Are you in the habit of having your sermons published?" continued Mr.

Fullerton. Mr. Beecher acknowledged that he was, and also that he had

preached a sermon on "The Nobility of Confession."

_Mr. Sherman_ (sarcastically). "I hope Mr. Fullerton is not going to

preach _us_ a sermon."

_Mr. Fullerton._ "I would do so if I thought I could convert brother

Sherman."

_Mr. Beecher_ (quietly). "I will be happy to give you the use of my

pulpit."

_Mr. Fullerton_ (laughing). "Brother Sherman is the only audience I

shall want."

_Mr. Beecher_ (sarcastically). "Perhaps he is the only audience you can

get."

_Mr. Fullerton._ "If I succeed in converting brother Sherman, I will

consider my work as a Christian minister complete."

Mr. Fullerton then read a passage from the sermon, the effect of which

was that if a person commits a great sin, and the exposure of it would

cause misery, such a person would not be justified in confessing it,

merely to relieve his own conscience. Mr. Beecher admitted that he still

considered that "sound doctrine."

At this point Mr. Fullerton turned to the court, and pointing to the

clock, said, "Nothing comes after the sermon, I believe, but the

benediction." His Honor took the hint, and the proceedings

adjourned.[22]

[22] Extracts from the daily press accounts of the proceedings

of one of the thirty days of the trial, as reported in "Modern

Jury Trials," Donovan.

In this same trial Hon. William M. Evarts, as leading counsel for Mr.

Beecher, heightened his already international reputation as an advocate.

It was Mr. Evarts's versatility in the Beecher case that occasioned so

much comment. Whether he was examining in chief or on cross, in the

discussion of points of evidence, or in the summing up, he displayed

equally his masterly talents. His cross-examination of Theodore Tilton

was a masterpiece. His speeches in court were clear, calm, and logical.

Mr. Evarts was not only a great lawyer, but an orator and statesman of

the highest distinction. He has been called "the Prince of the American

Bar." He was a gentleman of high scholarship and fine literary tastes.

His manner in the trial of a case has been described by some one as "all

head, nose, voice, and forefinger." He was five feet seven inches tall,

thin and slender, "with a face like parchment."

Mr. Joseph H. Choate once told me he considered that he owed his own

success in court to the nine years during which he acted as Mr. Evarts's

junior in the trial of cases. No one but Mr. Choate himself would have

said this. His transcendent genius as an advocate could not have been

acquired from any tutelage under Mr. Evarts. When Mr. Choate accepted

his appointment as Ambassador to the Court of St. James, he retired from

the practice of the law; and it is therefore permissible to comment upon

his marvellous talents as a jury lawyer. He was not only easily the

leading trial lawyer of the New York Bar, but was by many thought to be

the representative lawyer of the American Bar. Surely no man of his time

was more successful in winning juries. His career was one uninterrupted

success. Not that he shone especially in any particular one of the

duties of the trial lawyer, but he was preëminent in the quality of his

humor and keenness of satire. His whole conduct of a case, his treatment

of witnesses, of the court, of opposing counsel, and especially of the

jury, were so irresistibly fascinating and winning that he carried

everything before him. One would emerge from a three weeks' contest with

Choate in a state almost of mental exhilaration, despite the jury's

verdict.

It was not so with the late Edward C. James; a contest with him meant

great mental and physical fatigue for his opponent. James was ponderous

and indefatigable. His cross-examinations were labored in the extreme.

His manner as an examiner was dignified and forceful, his mind always

alert and centred on the subject before him; but he had none of Mr.

Choate's fascination or brilliancy. He was dogged, determined, heavy. He

would pound at you incessantly, but seldom reached the mark. He

literally wore out his opponent, and could never realize that he was on

the wrong side of a case until the foreman of the jury told him so. Even

then he would want the jury polled to see if there was not some mistake.

James never smiled except in triumph and when his opponent frowned. When

Mr. Choate smiled, you couldn't help smiling with him. During the last

ten years of his life James was found on one side or the other of most

of the important cases that were tried. He owed his success to his

industrious and indefatigable qualities as a fighter; not, I think, to

his art.

James T. Brady was called "the Curran of the New York Bar." His success

was almost entirely due to his courtesy and the marvellous skill of his

cross-examinations. He had a serene, captivating manner in court, and

was one of the foremost orators of his time. He has the proud record of

having defended fifty men on trial for their lives, and of saving every

one of them from the gallows.

On the other hand, William A. Beech, "the Hamlet of the American Bar,"

was a poor cross-examiner. He treated all his witnesses alike. He was

methodical, but of a domineering manner. He was slow to attune himself

to an unexpected turn in a case he might be conducting. He lost many

cases and was not fitted to conduct a desperate one. It was as a court

orator that he was preëminent. His speech in the Beecher case alone

would have made him a reputation as a consummate orator. His vocabulary

was surprisingly rich and his voice wonderfully winning.

It is said of James W. Gerard, the elder, that "he obtained the greatest

number of verdicts against evidence of any one who ever practised at the

New York Bar. He was full of expedients and possessed extraordinary

tact. In his profound knowledge of human nature and his ready

adaptation, in the conduct of trials, to the peculiarities, caprices,

and whims of the different juries before whom he appeared he was almost

without a rival.... Any one who witnessed the telling hits made by Mr.

Gerard on cross-examination, and the sensational incidents sprung by him

upon his opponents, the court, and the jury, would have thought that he

acted upon the inspiration of the moment--that all he did and all he

said was _impromptu_. In fact, Mr. Gerard made thorough preparation for

trial. Generally his hits in cross-examination were the result of

previous preparation. He made briefs for cross-examination. To a large

extent his flashes of wit and his extraordinary and grotesque humor were

well pondered over and studied up beforehand."[23]

[23] "Extraordinary Cases," Henry Lauran Clinton.

Justice Miller said of Roscoe Conkling that "he was one of the greatest

men intellectually of his time." He was more than fifty years of age

when he abandoned his arduous public service at Washington, and opened

an office in New York City. During his six years at the New York Bar,

such was his success, that he is reputed to have accumulated, for a

lawyer, a very large fortune. He constituted himself a barrister and

adopted the plan of acting only as counsel. He was fluent and eloquent

of speech, most thorough in the preparation of his cases, and an

accomplished cross-examiner. Despite his public career, he said of

himself, "My proper place is to be before twelve men in the box."

Conkling used to study for his cross-examinations, in important cases,

with the most painstaking minuteness. In the trial of the Rev. Henry

Burge for murder, Conkling saw that the case was likely to turn upon the

cross-examination of Dr. Swinburne, who had performed the autopsy. The

charge of the prosecution was that Mrs. Burge had been strangled by her

husband, who had then cut her throat. In order to disprove this on

cross-examination, Mr. Conkling procured a body for dissection and had

dissected, in his presence, the parts of the body that he wished to

study. As the result of Dr. Swinburne's cross-examination at the trial,

the presiding judge felt compelled to declare the evidence so entirely

untrustworthy that he would decline to submit it to the jury and

directed that the prisoner be set at liberty.

This studious preparation for cross-examination was one of the secrets

of the success of Benjamin F. Butler. He was once known to have spent

days in examining all parts of a steam-engine, and even learning to

drive one himself, in order to cross-examine some witnesses in an

important case in which he had been retained. At another time Butler

spent a week in the repair shop of a railroad, part of the time with

coat off and hammer in hand, ascertaining the capabilities of iron to

resist pressure--a point on which his case turned. To use his own

language: "A lawyer who sits in his office and prepares his cases only

by the statements of those who are brought to him, will be very likely

to be beaten. A lawyer in full practice, who carefully prepares his

cases, must study almost every variety of business and many of the

sciences." A pleasant humor and a lively wit, coupled with wonderful

thoroughness and acuteness, were Butler's leading characteristics. He

was not a great lawyer, nor even a great advocate like Rufus Choate, and

yet he would frequently defeat Choate. His cross-examination was his

chief weapon. Here he was fertile in resource and stratagem to a degree

attained by few others. Choate had mastered all the little tricks of the

trial lawyer, but he attained also to the grander thoughts and the

logical powers of the really great advocate. Butler's success depended

upon zeal, combined with shrewdness and not overconscientious trickery.

In his autobiography, Butler gives several examples of what he was

pleased to call his legerdemain, and to believe were illustrations of

his skill as a cross-examiner. They are quoted from "Butler's Book," but

are not reprinted as illustrations of the subtler forms of

cross-examination, but rather as indicative of the tricks to which

Butler owed much of his success before country juries.

"When I was quite a young man I was called upon to defend a man for

homicide. He and his associate had been engaged in a quarrel which

proceeded to blows and at last to stones. My client, with a sharp stone,

struck the deceased in the head on that part usually called the temple.

The man went and sat down on the curbstone, the blood streaming from his

face, and shortly afterward fell over dead.

"The theory of the government was that he died from the wound in the

temporal artery. My theory was that the man died of apoplexy, and that

if he had bled more from the temporal artery, he might have been

saved--a wide enough difference in the theories of the cause of death.

"Of course to be enabled to carry out my proposition I must know all

about the temporal artery,--its location, its functions, its

capabilities to allow the blood to pass through it, and in how short a

time a man could bleed to death through the temporal artery; also, how

far excitement in a body stirred almost to frenzy in an embittered

conflict, and largely under the influence of liquor on a hot day, would

tend to produce apoplexy. I was relieved on these two points in my

subject, but relied wholly upon the testimony of a surgeon that the man

bled to death from the cut on the temporal artery from a stone in the

hand of my client. That surgeon was one of those whom we sometimes see

on the stand, who think that what they don't know on the subject of

their profession is not worth knowing. He testified positively and

distinctly that there was and could be no other cause for death except

the bleeding from the temporal artery, and he described the action of

the bleeding and the amount of blood discharged.

"Upon all these questions I had thoroughly prepared myself.

"_Mr. Butler._ 'Doctor, you have talked a great deal about the temporal

artery; now will you please describe it and its functions? I suppose the

temporal artery is so called because it supplies the flesh on the

outside of the skull, especially that part we call the temples, with

blood.'

"_Witness._ 'Yes; that is so.'

"_Mr. Butler._ 'Very well. Where does the temporal artery take its rise

in the system? Is it at the heart?'

"_Witness._ 'No, the aorta is the only artery leaving the heart which

carries blood toward the head. Branches from it carry the blood up

through the opening into the skull at the neck, and the temporal artery

branches from one of these.'

"_Mr. Butler._ 'Doctor, where does it branch off from it? On the inside

or the outside of the skull?'

"_Witness._ 'On the inside.'

"_Mr. Butler._ 'Does it have anything to do inside with supplying the

brain?'

"_Witness._ 'No.'

"_Mr. Butler._ 'Well, doctor, how does it get outside to supply the head

and temples?'

"_Witness._ 'Oh, it passes out through its appropriate opening in the

skull.'

"_Mr. Butler._ 'Is that through the eyes?'

"_Witness._ 'No.'

"_Mr. Butler._ 'The ears?'

"_Witness._ 'No.'

"_Mr. Butler._ 'It would be inconvenient to go through the mouth, would

it not, doctor?'

"Here I produced from my green bag a skull. 'I cannot find any opening

on this skull which I think is appropriate to the temporal artery. Will

you please point out the appropriate opening through which the temporal

artery passes from the inside to the outside of the skull?'

"He was utterly unable so to do.

"_Mr. Butler._ 'Doctor, I don't think I will trouble you any further;

you can step down.' He did so, and my client's life was saved on that

point.

"The temporal artery doesn't go inside the skull at all.

"I had a young client who was on a railroad car when it was derailed by

a broken switch. The car ran at considerable speed over the cross-ties

for some distance, and my client was thrown up and down with great

violence on his seat. After the accident, when he recovered from the

bruising, it was found that his nervous system had been wholly

shattered, and that he could not control his nerves in the slightest

degree by any act of his will. When the case came to trial, the

production of the pin by which the position of the switch was

controlled, two-thirds worn away and broken off, settled the liability

of the road for any damages that occurred from that cause, and the case

resolved itself into a question of the amount of damages only. My claim

was that my client's condition was an incurable one, arising from the

injury to the spinal cord. The claim put forward on behalf of the

railroad was that it was simply nervousness, which probably would

disappear in a short time. The surgeon who appeared for the road claimed

the privilege of examining my client personally before he should

testify. I did not care to object to that, and the doctor who was my

witness and the railroad surgeon went into the consultation room

together and had a full examination in which I took no part, having

looked into that matter before.

"After some substantially immaterial matters on the part of the defence,

the surgeon was called and was qualified as a witness. He testified that

he was a man of great position in his profession. Of course in that I

was not interested, for I knew he could qualify himself as an expert.

In his direct examination he spent a good deal of the time in giving a

very learned and somewhat technical description of the condition of my

client. He admitted that my client's nervous system was very much

shattered, but he also stated that it would probably be only temporary.

Of all this I took little notice; for, to tell the truth, I had been up

quite late the night before and in the warm court room felt a little

sleepy. But the counsel for the road put this question to him:--

"'Doctor, to what do you attribute this condition of the plaintiff which

you describe?'

"'Hysteria, sir; he is hysterical.'

"That waked me up. I said, 'Doctor, did I understand--I was not paying

proper attention--to what did you attribute this nervous condition of my

client?'

"'Hysteria, sir.'

"I subsided, and the examination went on until it came my turn to

cross-examine.

"_Mr. Butler._ 'Do I understand that you think this condition of my

client wholly hysterical?'

"_Witness._ 'Yes, sir; undoubtedly.'

"_Mr. Butler._ 'And therefore won't last long?'

"_Witness._ 'No, sir; not likely to.'

"_Mr. Butler._ 'Well, doctor, let us see; is not the disease called

hysteria and its effects hysterics; and isn't it true that hysteria,

hysterics, hysterical, all come from the Greek word ὑστέρα?'

"_Witness._ 'It may be.'

"_Mr. Butler._ 'Don't say it may, doctor; isn't it? Isn't an exact

translation of the Greek word ὑστέρα the English word "womb"?'

"_Witness._ 'You are right, sir.'

"_Mr. Butler._ 'Well, doctor, this morning when you examined this young

man here,' pointing to my client, 'did you find that he had a womb? I

was not aware of it before, but I will have him examined over again and

see if I can find it. That is all, doctor; you may step down.'"

Robert Ingersoll took part in numerous noted lawsuits in all parts of

the country. But he was almost helpless in court without a competent

junior. He was a born orator if ever there was one. Henry Ward Beecher

regarded him as "the most brilliant speaker of the English tongue in any

land on the globe." He was not a profound lawyer, however, and hardly

the equal of the most mediocre trial lawyer in the examination of

witnesses. Of the art of cross-examining witnesses he knew practically

nothing. His definition of a lawyer, to use his own words, was "a sort

of intellectual strumpet." "My ideal of a great lawyer," he once wrote,

"is that great English attorney who accumulated a fortune of a million

pounds, and left it all in his will to make a home for idiots, declaring

that he wanted to give it back to the people from whom he took it."

Judge Walter H. Sanborn relates a conversation he had with Judge Miller

of the United States Court about Ingersoll. "Just after Colonel

Ingersoll had concluded an argument before Mr. Justice Miller, while on

Circuit I came into the court and remarked to Judge Miller that I wished

I had got there a little sooner, as I had never heard Colonel Ingersoll

make a legal argument."--"Well," said Judge Miller, "you never

will."[24]

[24] "Life Sketches of Eminent Lawyers," Gilbert J. Clark.

Ingersoll's genius lay in other directions. Who but Ingersoll could have

written the following:--

"A little while ago I stood by the grave of the old Napoleon--a

magnificent tomb of gilt and gold, fit almost for a dead deity, and

gazed upon the sarcophagus of black marble, where rest at last the ashes

of that restless man. I leaned over the balustrade, and thought about

the career of the greatest soldier of the modern world. I saw him

walking upon the banks of the Seine, contemplating suicide; I saw him at

Toulon; I saw him putting down the mob in the streets of Paris; I saw

him at the head of the army in Italy; I saw him crossing the bridge of

Lodi, with the tricolor in his hand; I saw him in Egypt, in the shadows

of the Pyramids; I saw him conquer the Alps, and mingle the eagles of

France with the eagles of the crags; I saw him at Marengo, at Ulm, and

at Austerlitz; I saw him in Russia, where the infantry of the snow and

the cavalry of the wild blast scattered his legions like winter's

withered leaves. I saw him at Leipsic, in defeat and disaster; driven by

a million bayonets back upon Paris; clutched like a wild beast;

banished to Elba. I saw him escape and retake an empire by the force of

his genius. I saw him upon the frightful field of Waterloo, where chance

and fate combined to wreck the fortunes of their former king. And I saw

him at St. Helena, with his hands crossed behind him, gazing out upon

the sad and solemn sea. I thought of the orphans and widows he had made,

of the tears that had been shed for his glory, and of the only woman who

had ever loved him, pushed from his heart by the cold hand of ambition.

And I said I would rather have been a French peasant, and worn wooden

shoes; I would rather have lived in a hut, with a vine growing over the

door, and the grapes growing purple in the kisses of the autumn sun. I

would rather have been that poor peasant, with my loving wife by my

side, knitting as the day died out of the sky, with my children upon my

knees, and their arms about me. I would rather have been that man, and

gone down to the tongueless silence of the dreamless dust, than to have

been that imperial impersonation of force and murder, known as Napoleon

the Great."

The Art of Cross-Examination With the Cross-Examinations of Important Witnesses in Some Celebrated Cases · 第 10 / 15 章