LAW AND LAUGHTER
BY GEORGE A. MORTON
AND D. MACLEOD MALLOCH
ILLUSTRATED WITH PORTRAITS OF
EMINENT MEMBERS OF BENCH & BAR
T. N. FOULIS
LONDON & EDINBURGH
1913
_Published October 1913_
Printed by BALLANTYNE, HANSON & CO.
at the Ballantyne Press, Edinburgh
TO
THE MEMORY OF
D. MACLEOD MALLOCH
"As crafty lawyers to acquire applause
Try various arts to get a double cause,
So does an author, rummaging his brain,
By various methods, try to entertain."
PASQUIN.
PREFACE
The scope of this volume is indicated by its title--a presentation of
the lighter side of law, as it is exhibited from time to time in the
witty remarks, repartees, and _bon mots_ of the Bench and Bar of Great
Britain, Ireland, and America. The idea of presenting such a collection
of legal _facetiæ_ originated with the late Mr. D. Macleod Malloch, and
it is greatly to be regretted that by his untimely death, his share of
the work had reached the stage of selecting only about one-half of the
material included in the book. His knowledge of law, and his wide
reading in legal biography, was such as would have increased
considerably the value of this volume.
In addition to sources which are acknowledged in the text, I have to
mention contributions drawn from the following works: W. D. Adams'
_Modern Anecdotes_; W. Andrews' _The Lawyer in History, Literature and
Humour_; Croake James's _Curiosities of Law_; F. R. O'Flanagan's _The
Irish Bar_; and A. Engelbach's comprehensive and entertaining _Anecdotes
of the Bench and Bar_. I am further indebted to Sir James Balfour Paul,
Lyon King of Arms, for permission to include "The Circuiteer's Lament,"
from the privately printed volume _Ballads of the Bench and Bar_, and to
the editor of the _Edinburgh Evening Dispatch_ for a number of the more
recent anecdotes in the Scottish chapters of the book.
GEO. A. MORTON.
LIST OF CONTENTS
I. THE JUDGES OF ENGLAND PAGE 3
II. THE BARRISTERS OF ENGLAND 67
III. THE JUDGES OF IRELAND 107
IV. THE BARRISTERS OF IRELAND 127
V. THE JUDGES OF SCOTLAND 153
VI. THE ADVOCATES OF SCOTLAND 199
VII. THE AMERICAN BENCH AND BAR 223
LIST OF PORTRAITS
LORD THURLOW _Frontispiece_
_From a painting by Thomas Phillips, R.A.
By permission of the Trustees of the National Portrait
Gallery._
EARL OF ROSSLYN _Page_ 8
EARL OF MANSFIELD 16
EARL OF ELDON 20
_By permission of the Trustees of the Scottish National
Portrait Gallery._
LORD KENYON 24
LORD ERSKINE 32
LORD WESTBURY 36
LORD BROUGHAM 40
LORD CAMPBELL 44
_By permission of the Trustees of the National Portrait
Gallery, and Mr. Emery Walker._
LORD CHELMSFORD 48
SIR ALEXANDER COCKBURN 52
_By permission of Harry A. Cockburn, Esq._
LORD BRAMPTON (SIR HENRY HAWKINS) 56
THE HON. MR. JUSTICE DARLING 60
_From a photograph by C. Vandyk._
SIR SAMUEL MARTIN 64
THE HON. MR. JUSTICE GRANTHAM 72
_From a photograph by Elliott & Fry, Ltd._
JOHN ADOLPHUS 76
SAMUEL WARREN, Q.C. 80
LORD ROMILLY 88
SERJEANT TALFOURD 96
VISCOUNT CARLETON 112
_By permission of the Trustees of the Scottish National
Portrait Gallery._
JOHN P. CURRAN 128
_By permission of the Trustees of the Scottish National
Portrait Gallery._
DANIEL O'CONNELL 144
_By permission of the Trustees of the Scottish National
Portrait Gallery._
LORD NEWTON 156
LORD ESKGROVE 160
LORD KAMES 164
LORD ELDIN 168
LORD COCKBURN 176
LORD BRAXFIELD 184
_By permission of the Trustees of the Scottish National
Portrait Gallery._
LORD YOUNG 192
_From a photograph by T. & R. Annan & Sons._
THE HON. HENRY ERSKINE 200
_By permission of the Trustees of the Scottish National
Portrait Gallery._
ANDREW CROSBIE 208
_By permission of the Faculty of Advocates._
THEOPHILUS PARSONS 224
RUFUS CHOATE 232
CHAPTER ONE
THE JUDGES OF ENGLAND
"The man resolv'd and steady to his trust,
Inflexible to ill, and obstinately just,
May the rude rabble's insolence despise,
Their senseless clamours, and tumultuous cries;
The tyrant's fierceness he beguiles,
And the stern brow, and the harsh voice defies,
And with superior greatness smiles."
HORACE: _Odes_.
"The charge is prepared, the lawyers are set;
The judges are ranged, a terrible show."
_Beggar's Opera._
LAW AND LAUGHTER
BY GEORGE A. MORTON
AND D. MACLEOD MALLOCH
CHAPTER ONE
THE JUDGES OF ENGLAND
Mr. Justice Darling, whose witty remarks from the Bench are so much
appreciated by his audiences in Court, and, it is rumoured, are not
always received with approval by his brother judges, says, in his
amusing book _Scintillæ Juris_:
"It is a common error to suppose that our law has no sense of humour,
because for the most part the judges who expound it have none."
But law is, after all, a serious business--at any rate for the
litigants--and it would appear also for the attorneys, for while
witticisms of the Bench and Bar abound, very few are recorded of the
attorney and his client. "Law is law" wrote the satirist who decided not
to adopt it as a profession. "Law is like a country dance; people are
led up and down in it till they are tired. Law is like a book of
surgery--there are a great many terrible cases in it. It is also like
physic--they who take least of it are best off. Law is like a homely
gentlewoman--very well to follow. Law is like a scolding wife--very bad
when it follows us. Law is like a new fashion--people are bewitched to
get into it. It is also like bad weather--most people are glad when they
get out of it."
From very early times there have appeared on the Bench expounders of the
law who by the phrase "for the most part" must be acquitted of Mr.
Justice Darling's charge of having no sense of humour; judges who, like
himself, have lightened the otherwise dreary routine of duty by
pleasantries which in no way interfered with the course of justice. One
of the earliest of our witty judges, whose brilliant sayings have come
down to us, was Henry VIII's Lord Chancellor, Sir Thomas More, who lost
his head because he would not acknowledge his king as head of the
Church. To Sir Thomas Manners, Earl of Rutland, who had made a somewhat
insolent remark, the Lord Chancellor quietly replied, 'Honores mutant
mores'--Honours change manners. Sir Thomas's humour was what may be
called _quiet_, because its effect did not immediately show itself in
boisterous merriment, but would undoubtedly remain long in the
remembrance of those to whom it was addressed. Made with as much
courtesy as irony, is it likely his keeper in the Tower would ever
forget his remark? "Assure yourself I do not dislike my cheer; but
whenever I do, then spare not to thrust me out of your doors." Nor did
his quaint humour desert him at the scaffold: "Master Lieutenant," said
he, "I pray you see me safe up; for my coming down let me shift for
myself." Even with his head on the block he could not resist a humorous
remark, when putting aside his beard he said to the executioner, "Wait,
my good friend, till I have removed my beard, for it has never offended
his highness."
Another judge of the sixteenth century, Sir Nicholas Bacon, who
resembled Sir Thomas More in the gentleness of his happiest speeches,
could also on occasion exhibit an unnecessary coarseness in his jocular
retorts. A circuit story is told of him in which a convicted felon named
Hog appealed for remission of his sentence on the ground that he was
related to his lordship. "Nay, my friend," replied the judge, "you and I
cannot be kindred except you be hanged, for hog is not bacon until it be
well hung." This retort was not quite so coarse as that attributed to
the Scottish judge, Lord Kames, two centuries later, who on sentencing
to death a man with whom he had often played chess and very frequently
been beaten, added after the solemn words of doom, "And noo, Matthew,
ye'll admit that's checkmate for you."
To Lord Chancellor Hatton, also an Elizabethan judge who aimed at
sprightliness on the Bench, a clever _mot_ is attributed. The case
before him was one concerning the limits of certain land. The counsel
having remarked with emphasis, 'We lie on this side, my lord,' and the
opposing counsel with equal vehemence having interposed, 'And we lie on
this side, my lord'--the Lord Chancellor dryly observed, "If you lie on
both sides, whom am I to believe?" It would seem that punning was as
great a power in the Law Courts of that time as it is at the present
day. When Egerton as Master of the Rolls was asked to commit a
cause--refer it to a Master in Chancery--he would reply, "What has the
cause done that it should be committed?"
Many witticisms of Westminster Hall, attributed to barristers of the
Georgian and Victorian periods, are traceable to a much earlier date.
There is the story of Serjeant Wilkins, whose excuse for drinking a pot
of stout at mid-day was, that he wanted to fuddle his brain down to the
intellectual standard of a British jury. Two hundred and fifty years
earlier, Sir John Millicent, a Cambridgeshire judge, on being asked how
he got on with his brother judges replied, "Why, i' faithe, I have no
way but to drink myself down to the capacity of the Bench." And this
merry thought has also been attributed to one eminent barrister who
became Lord Chancellor, and to more than one Scottish advocate who
ultimately attained to a seat on the Bench.
And to various celebrities of the later Georgian period has been
attributed Lord Shaftesbury's reply to Charles II. When the king
exclaimed, "Shaftesbury, you are the most profligate man in my
dominions," the Chancellor answered somewhat recklessly, "Of a subject,
sir, I believe I am."
Bullying witnesses is an old practice of the Bar, but for instances of
it emanating from the Bench one has to go very far back. A witness with
a long beard was giving evidence that was displeasing to Jeffreys, when
judge, who said: "If your conscience is as large as your beard, you'll
swear anything." The old man retorted: "My lord, if your lordship
measures consciences by beards, your lordship has none at all."
A somewhat similar story of Jeffreys' bullying manner, when at the Bar,
is that of his cross-examining a witness in a leathern doublet, who had
made out a complete case against his client. Jeffreys shouted: "You
fellow in the leathern doublet, pray what have you for swearing?" The
man looked steadily at him, and "Truly, sir," said he, "if you have no
more for lying than I have for swearing, you might wear a leathern
doublet as well as I."
Instances of disrespect to the Bench are rarely met with in early as
happily in later days. There is, perhaps, the most flagrant example of
young Wedderburn in the Scottish Court of Session, when with dramatic
effect he threw off his gown and declared he would never enter the Court
again; but he rose to be Lord Chancellor of England. Scarcely less
disrespectful (but not said openly to the Bench) was young Edward Hyde
when hinting that the death of judges was of small moment compared with
his chances of preferment. "Our best news," he wrote to a friend, "is
that we have good wine abundantly come over; our worst that the plague
is in town, _and no judges die_."
[Illustration: ALEXANDER WEDDERBURN, EARL OF ROSSLYN, LORD CHANCELLOR.]
In squabbles between the Bench and the Bar there are few stories that
match for personality the retort of a counsel to Lord Fortescue. His
lordship was disfigured by a purple nose of abnormal growth.
Interrupting counsel one day with the observation: "Brother, brother,
you are handling the case in a very lame manner," the angry counsel
calmly retorted, "Pardon me, my lord; have patience with me and I will
do my best to make the case as plain as--as--the nose on your lordship's
face." Nor did the retort of an Attorney-General to a judge, after a
warm discussion on a point which the latter claimed to decide, show much
respect for the Bench. The judge closed the argument with "I ruled so
and so."--"_You_ ruled," muttered the Attorney-General. "_You_ ruled!
You were never fit to rule anything but a copy-book."
Verse has been used as a medium of much amusing legal wit and humour,
although law and law cases do not offer very easy subjects for turning
into rhyme. But a good illustration is afforded by Mr. Justice Powis,
who had a habit of repeating the phrase, "Look, do you see," and "I
humbly conceive." At York Assize Court on one occasion he said to Mr.
Yorke, afterwards Lord Hardwicke, "Mr. Yorke, I understand you are going
to publish a poetical version of 'Coke upon Lyttelton.' Will you
favour me with a specimen?"--"Certainly, my lord," replied the
barrister, who thereupon gravely recited:
"He that holdeth his lands in fee
Need neither shake nor shiver,
I humbly conceive, for, look, do you see,
They are his and his heirs for ever."
In Sir James Burrows' reports is given a poetical version of Chief
Justice Pratt's decision with regard to a woman of English birth who was
the widow of a foreigner.
"A woman having a settlement,
Married a man with none,
The question was, he being dead,
If what she had was gone.
Quoth Sir John Pratt, 'The settlement
Suspended doth remain
Living the husband; but him dead
It doth revive again.'"
Chorus of Puisne Judges:
"Living the husband; but him dead
It doth revive again."
The Chief Justice's decision having been reversed by his successor,
Chief Justice Ryder's decision was reported:
"A woman having a settlement
Married a man with none;
He flies and leaves her destitute,
What then is to be done?
Quoth Ryder the Chief Justice,
'In spite of Sir John Pratt,
You'll send her to the parish
In which she was a brat.'
_Suspension of a settlement_
Is not to be maintained.
That which she had by birth subsists
Until another's gained."
Chorus of Puisne Judges:
"That which she had by birth subsists
Until another's gained."
* * * * *
[Illustration: EDWARD THURLOW, BARON THURLOW. LORD CHANCELLOR.]
Many of the well-known witticisms attributed to great judges are so
tinged with personality--even tending to malignity--that no one
possessing respect for human nature can read them without being tempted
to regard them as mere biographical fabrications. But such a
construction cannot be put upon the stories told of Lord Chancellor
Thurlow, whose overbearing insolence to the Bar is well known. To a few
friends like John Scott, Lord Eldon, and Lloyd Kenyon, Lord Kenyon, he
could be consistently indulgent; but to those who provoked him by an
independent and fearless manner he was little short of a persecutor.
Once when Scott was about to follow his leader, who had made an
unusually able speech, the Chancellor addressed him: "Mr. Scott, I am
glad to find you are engaged in the cause, for I now stand some chance
of knowing something about the matter." This same leader of the Bar on
one occasion, in the excitement of professional altercation, made use of
an undignified expression before Lord Thurlow; but before his lordship
could take notice of it the counsel immediately apologised, saying, "My
lord, I beg your lordship's pardon. I really forgot for the moment where
I was." A silent recognition of the apology would have made the counsel
feel his position more keenly, but the Chancellor could not let such an
opportunity pass and immediately flashed out: "You thought you were in
your own Court, I presume," alluding to a Welsh judgeship held by the
offending counsel.
As a contrast to Lord Thurlow's treatment of Scott's leader, the
following story--given in Scott's own words--shows how the great
Chancellor could unbend himself in the company of men who were in his
favour. "After dinner, one day when nobody was present but Lord Kenyon
and myself, Lord Thurlow said, 'Taffy, I decided a cause this morning,
and I saw from Scott's face that he doubted whether I was right.'
Thurlow then stated his view of the case, and Kenyon instantly said,
'Your decision was quite right.' 'What say you to that?' asked the
Chancellor. I said, 'I did not presume to form a case on which they were
both agreed. But I think a fact has not been mentioned, which may be
material.' I was about to state the fact, and my reasons. Kenyon,
however, broke in upon me, and with some warmth stated that I was always
so obstinate there was no dealing with me. 'Nay,' interposed Thurlow,
'that's not fair. You, Taffy, are obstinate, and give no reasons. You,
Jack, are obstinate too; but then you give your reasons, and d--d bad
ones they are!'"
Another anecdote again illustrates the Chancellor's treatment of even
those who were on a friendly footing with him. Sir Thomas Davenport, a
great Nisi Prius leader, had long flattered himself with the hope of
succeeding to some valuable appointment in the law; but several good
things passing by, he lost his patience and temper along with them. At
last he addressed this laconic application to his patron: "The Chief
Justiceship of Chester is vacant; am I to have it?" and received the
following laconic answer: "No! by G--d! Kenyon shall have it."
Scarcely less courteous was this Lord Chancellor's treatment of a
solicitor who endeavoured to prove to him a certain person's death. To
all his statements the Chancellor replied, "Sir, that is no proof," till
at last the solicitor losing patience exclaimed: "Really, my lord, it is
very hard and it is not right that you should not believe me. I knew the
man well: I saw the man dead in his coffin. My lord, the man was my
client." "Good G--d, sir! why didn't you tell me that sooner? I should
not have doubted the fact one moment; for I think nothing can be so
likely to kill a man as to have you for his attorney."
As Keeper of the Great Seal Thurlow had the alternate presentation to a
living with the Bishop of ----. The Bishop's secretary called upon the
Lord Chancellor and said, "My Lord Bishop of ---- sends his compliments
to your lordship, and believes that the next turn to present to ----
belongs to his lordship."--"Give his lordship my compliments," replied
the Chancellor, "and tell him that I will see him d--d first before he
shall present."--"This, my lord," retorted the secretary, "is a very
unpleasant message to deliver to a bishop." To which the Chancellor
replied, "You are right, it is so; therefore tell the Bishop that _I
will be_ d--d first before he shall present."
Lord Campbell in his life of Thurlow says that in his youth the
Chancellor was credited with wild excesses. There was a story, believed
at the time, of some early amour with the daughter of a Dean of
Canterbury, to which the Duchess of Kingston alluded when on her trial
at the House of Lords. Looking Thurlow, then Attorney-General, full in
the face she said, "That learned gentleman dwelt much on my faults, but
I too, if I chose, could tell a Canterbury tale."
But with all his bitterness and sarcasm Lord Thurlow had a genuine
sense of humour, as the following story of his Cambridge days
illustrates--days when he was credited with more disorderly pranks and
impudent escapades than attention to study. "Sir," observed a tutor, "I
never come to the window but I see you idling in the Court."--"Sir,"
replied the future Lord Chancellor, "I never come into the Court but I
see you idling at the window."
* * * * *
[Illustration: WILLIAM MURRAY, EARL OF MANSFIELD, LORD CHIEF JUSTICE.]
Mansfield was not credited with lively sensibility, but his humanity was
shocked at the thought of killing a man for a trifling theft. Trying a
prisoner at the Old Baily on the charge of stealing in a dwelling-house
to the value of 40_s._--when this was a capital offence--he advised the
jury to find a gold trinket, the subject of the indictment, to be of
less value. The prosecutor exclaimed with indignation, "Under 40_s._, my
lord! Why, the _fashion_ alone cost me more than double the sum."--"God
forbid, gentlemen, we should hang a man for fashion's sake," observed
Lord Mansfield to the jury.
An indictment was tried before him at the Assizes, preferred by parish
officers for keeping an hospital for lying-in women, whereby the parish
was burdened by illegitimate children. He expressed doubts whether this
was an indictable offence, and after hearing arguments in support of it
he thus gave his judgment. "We sit here under a Commission requiring us
to _deliver_ this gaol, and the statute has been cited to make it
unlawful to _deliver_ a woman who is with child. Let the indictment be
quashed."
Having met at supper the famous Dr. Brocklesby, he entered into familiar
conversation with him, and there was an interchange of stories just a
little trenching on the decorous. It so happened that the doctor had to
appear next morning before Lord Mansfield in the witness-box; and on the
strength of the previous evening's doings the witness, on taking up his
position, nodded to the Chief Justice with offensive familiarity as to a
boon companion. His lordship taking no notice of his salutation, but
writing down his evidence, when he came to summing it up to the jury
thus proceeded: "The next witness is one Rocklesby or Brocklesby,
Brocklesby or Rocklesby--I am not sure which--and first he swears he is
a physician."
Lord Chief Baron Parker, in his eighty-seventh year, having observed to
Lord Mansfield who was seventy-eight: "Your lordship and myself are now
at sevens and eights," the younger Chief Justice replied: "Would you
have us to be all our lives at sixes and sevens? But let us talk of
young ladies and not old age."
Trying an action which arose from the collision of two ships at sea, a
sailor who gave an account of the accident said, "At the time I was
standing abaft the binnacle."--"Where is abaft the binnacle?" asked
Lord Mansfield; upon which the witness, who had taken a large share of
grog before coming into Court, exclaimed loud enough to be heard by all
present: "A pretty fellow to be a judge, who don't know where abaft the
binnacle is!" Lord Mansfield, instead of threatening to commit him for
contempt, said: "Well, my friend, fit me for my office by telling me
where _abaft the binnacle is_; you have already shown me the meaning of
_half-seas over_."
On one occasion Lord Mansfield covered his retreat from an untenable
position with a sparkling pleasantry. An old witness named ELM having
given his evidence with remarkable clearness, although he was more than
eighty years of age, Lord Mansfield examined him as to his habitual mode
of living, and found he had been through life an early riser and a
singularly temperate man. "Ay," remarked the Chief Justice, in a tone of
approval, "I have always found that without temperance and early habits
longevity is never attained." The next witness, the elder brother of
this model of temperance, was then called, and he almost surpassed his
brother as an intelligent and clear-headed utterer of evidence. "I
suppose," observed Lord Mansfield, "that you are an early riser?"--"No,
my lord," answered the veteran stoutly; "I like my bed at all hours, and
special-_lie_ I like it of a morning."--"Ah, but like your brother, you
are a very temperate man?" quickly asked the judge, looking out
anxiously for the safety of the more important part of his theory. "My
lord," responded this ancient Elm, disdaining to plead guilty to a
charge of habitual sobriety, "I am a very old man, and my memory is as
clear as a bell, but I can't remember the night when I've gone to bed
without being more or less drunk."--"Ah, my lord," Mr. Dunning
exclaimed, "this old man's case supports a theory unheld by many
persons--that habitual intemperance is favourable to longevity."--"No,
no," replied the Chief Justice with a smile; "this old man and his
brother merely teach us what every carpenter knows--that Elm, whether it
be wet or dry, is a very tough wood."
* * * * *
[Illustration: JOHN SCOTT, EARL OF ELDON, LORD CHANCELLOR.]
Lord Eldon's good humour gained him the affection of all counsel who
practised before him, but there is one story--apocryphal it may be,
coming from Lord Campbell--of a prejudice he had against Lord Brougham,
who, in Scottish cases, frequently appeared before him in the House of
Lords. Lord Eldon persisted in addressing the advocate as Mr. Bruffam.
This was too much for Brougham, who was rather proud of the form and
antiquity of his name, and who at last, in exasperation, sent a note to
the Chancellor, intimating that his name was pronounced "Broom." At the
conclusion of the argument the Chancellor stated, "Every authority upon
the question has been brought before us: new Brooms sweep clean."
As Lord Chancellor, Lord Eldon's great foible was an apparent inability
to arrive at an early decision on any question: it was really a desire
to weigh carefully all sides of a question before expressing his
opinion. This hesitancy was expressed in the formula "I doubt," which
became the subject of frequent jests among the members of the Bar.
Sir George Rose, in absence of the regular reporter of Lord Eldon's
decisions, was requested to take a note of any decision which should be
given. As a full record of all that was material, which had occurred
during the day, Sir George made the following entry in the reporter's
notebook:
"Mr. Leach made a speech,
Angry, neat, but wrong;
Mr. Hart, on the other part,
Was heavy, dull, and long;
Mr. Parker made the case darker,
Which was dark enough without;
Mr. Cooke cited his book;
And the Chancellor said--I doubt."
This _jeu d'esprit_, flying about Westminster Hall, reached the
Chancellor, who was very much amused with it, notwithstanding the
allusion to his doubting propensity. Soon after, Sir George Rose having
to argue before him a very untenable proposition, he gave his opinion
very gravely, and with infinite grace and felicity thus concluded: "For
these reasons the judgment must be against your clients; and here, Sir
George, the Chancellor does not _doubt_."
The following was Lord Eldon's answer to an application for a piece of
preferment from his old friend Dr. Fisher, of the Charter House:
"DEAR FISHER,--I cannot, to-day, give you the preferment for which you
ask.--I remain, your sincere friend, ELDON." Then, on the other side, "I
gave it to you yesterday."
According to his biographer, Lord Eldon caused a loud laugh while the
old Duke of Norfolk was fast asleep in the House of Lords, and amusing
their lordships with "that tuneful nightingale, his nose," by announcing
from the woolsack, with solemn emphasis, that the Commons had sent up a
bill for "enclosing and dividing Great Snoring in the county of
Norfolk!"
Like Lord Thurlow, Lord Eldon was in close intimacy with George III in
the days when his Majesty's mind was supposed to be not very strong. "I
took down to Kew," relates his lordship, "some Bills for his assent, and
I placed on a paper the titles and the effect of them. The king, being
perhaps suspicious that my coming down might be to judge of his
competence for public business, as I was reading over the titles of the
different Acts of Parliament he interrupted me and said: 'You are not
acting correctly, you should do one of two things; either bring me down
the Acts for my perusal, or say, as Thurlow once said to me on a like
occasion, having read several he stopped and said, "It is all d--d
nonsense trying to make you understand them, and you had better consent
to them at once."'"
* * * * *
It is not often, but it sometimes happens that a judge finds himself in
conflict with members of the public who are under no restraint of
professional privilege or etiquette. Some maintain the dignity of the
Court by fining and committing for contempt. Occasionally this may be
necessary, but it has been found that delicate ridicule is often more
effective. An attorney, pleading his cause before Lord Ellenborough,
became exasperated because the untenable points he continually raised
were invariably overruled, and exclaimed, "My lord, my lord, although
your lordship is so great a man now, I remember the time when I could
have got your opinion for five shillings." With an amused smile his
lordship quietly observed, "Sir, I say it was not worth the money."
The same judge used to be greatly annoyed during the season of colds
with the noise of coughing in Court. On one occasion, when disturbances
of this kind recurred with more than usual frequency, he was seen
fidgeting about in his seat, and availing himself of a slight
cessation observed in his usual emphatic manner: "Some slight
interruption one _might_ tolerate, but there seems to be an _industry_
of coughing."
As an illustration of figurative oratory a good story is told of a
barrister pleading before Lord Ellenborough: "My lord, I appear before
you in the character of an advocate for the City of London; my lord, the
City of London herself appears before you as a suppliant for justice. My
lord, it is written in the book of nature."--"What book?" said Lord
Ellenborough. "The book of nature."--"Name the page," said his lordship,
holding his pen uplifted, as if to note the page down.
Moore relates the story of a noble lord in the course of one of his
speeches saying, "I ask myself so and so," and repeating the words "I
ask myself." "Yes," quietly remarked Lord Ellenborough, "and a d--d
foolish answer you'll get."
* * * * *
The comparison of a father and son who have both ascended the Bench has
afforded a good story of a famous Scottish advocate which is told later,
and the following is an equally cutting retort from the Bench to any
assumed superiority through such a connection. A son of Lord Chief
Justice Willes (who rose to the rank of a Puisne Judge) was checked one
day for wandering from the subject. "I wish that you would remember,"
he exclaimed, "that I am the son of a Chief Justice." To which Justice
Gould replied with great simplicity, "Oh, we remember your father, but
he was a sensible man."
* * * * *
When hanging was the sentence, on conviction, for crimes--in these days
termed offences--which are now punished by imprisonment, some judges
from meting out the sentence of death almost indiscriminately came to be
known as "hanging judges." Justice Page was one of them. When he was
decrepit he perpetrated a joke against himself. Coming out of the Court
one day and shuffling along the street a friend stopped him to inquire
after his health. "My dear sir," the judge replied, "you see I keep just
hanging on--hanging on."
A Chief Justice of the "hanging" period, whose integrity was not above
suspicion, was sitting in Court one day at his ease and lolling on his
elbow, when a convict from the dock hurled a stone at him which
fortunately passed over his head. "You see," said the learned man as he
smilingly received the congratulations of those present--"you see now,
if I had been an _upright judge_ I had been slain."
* * * * *
[Illustration: LLOYD KENYON, BARON KENYON, LORD CHIEF JUSTICE.]
Some of the stories respecting Lord Kenyon's historical allusions and
quotations are surely greatly exaggerated, or are pure inventions. In
addressing a jury in a blasphemy case, he is reported to have said that
the Emperor Julian "was so celebrated for the practice of every
Christian virtue that he was called 'Julian the Apostle'"; and to have
concluded an elaborate address in dismissing a grand jury with the
following valediction: "Having thus discharged your consciences,
gentlemen, you may return to your homes in peace, with the delightful
consciousness of having performed your duties well, and may lay your
heads on your pillows, saying to yourselves 'Aut Cæsar, aut nullus.'"
And this was his remark on detecting the trick of an attorney to delay a
trial: "This is the last hair in the tail of procrastination, and it
must be plucked out."
Among other failings attributed to this Lord Chief Justice was the
extreme penuriousness he practised in his domestic arrangements and his
dress. His shoes were patched to such an extent that little of their
original material could be seen, and once when trying a case he was
sitting on the bench in a way to expose them to all in Court. It was an
action for breach of contract to deliver shoes soundly made, and to
clinch a witness for the pursuer he suddenly asked, "Were the shoes
anything like these?" pointing to his own. "No, my lord," replied the
witness, "they were a good deal better and more genteeler."
As an example of his (Lord Kenyon's) style of addressing a condemned
prisoner we have the following. A butler had been charged and convicted
of stealing his master's wine.
"Prisoner at the bar, you stand convicted on the most conclusive
evidence of a crime of inexpressible atrocity--a crime that defiles the
sacred springs of domestic confidence, and is calculated to strike alarm
into the breast of every Englishman who invests largely in the choicer
vintages of Southern Europe. Like the serpent of old, you have stung the
hand of your protector. Fortunate in having a generous employer, you
might without discovery have continued to supply your wretched wife and
children with the comforts of sufficient prosperity, and even with some
of the luxuries of affluence; but, dead to every claim of natural
affection, and blind to your own real interest, you burst through all
the restraints of religion and morality, and have for many years been
_feathering_ your nest with your master's _bottles_."
Lord Kenyon was warmly attached to George III, who had a high opinion of
him; but like many of his lordship's contemporaries, his Majesty
strongly deprecated the frequent outbursts of temper on the part of his
Chief Justice. "At a levee, soon after an extraordinary explosion of
ill-humour in the Court of King's Bench, his Majesty said to him: 'My
Lord Chief Justice, I hear that you have lost your temper, and from my
great regard for you, I am very glad to hear it, for I hope you will
find a better one.'"
* * * * *
Of Lord Chief Justice Tenterden, Lord Campbell asserts that he once, and
only once, uttered a pun. A learned gentleman, who had lectured on the
law and was too much addicted to oratory came to argue a special
demurrer before him. "My client's opponent," said the figurative
advocate, "worked like a mole under ground, _clam et secretè_." His
figures only elicited a grunt from the Chief Justice. "It is asserted in
Aristotle's _Rhetoric_--."--"I don't want to hear what is asserted in
Aristotle's _Rhetoric_," interposed Lord Tenterden. The advocate shifted
his ground and took up, as he thought, a safe position. "It is laid down
in the _Pandects_ of Justinian--." "Where are you got now?" "It is a
principle of the civil law--." "Oh sir," exclaimed the judge, with a
tone and voice which abundantly justified his assertion, "we have
nothing to do with the _civil_ law in this Court."
* * * * *
Judges sometimes stray into humour without intending it. At an election
petition trial one allegation was, that a number of rosettes, or "marks
of distinction," had been kept in a table drawer in the central
committee-room. To meet this charge it was thought desirable to call
witnesses to swear that the only table in the room consisted of planks
laid on trestles. "So that the table had no proper legs," said counsel
cheerfully. "Never mind whether it had proper legs," said one of the
learned judges. "The more important question is: Had it drawers?"
And in _The Story of Crime_ the author recalls an instance of a judge
unconsciously furnishing material for laughter in Court. "At the
beginning of the session at the Old Baily a good deal of work is got
through by the judge who takes the small cases, and it may be this fact
that accounted for the confusion of thought which he describes. One of
the prisoners was charged with stealing a camera, and after all the
evidence had been taken his lordship proceeded to sum up to the jury. He
began by correctly describing the stolen article as a camera, but had
not gone very far before the camera had become a concertina, and by the
time he had finished the concertina had become an accordion. And he
never once saw his mistake. The usher noticed it at the first trip, and
kept repeating in a kind of hoarse stage-whisper, 'Camera! Camera!' but
his voice did not reach the Bench, and so the complicated article
remained on record."
Mr. Andrews in his book, _The Lawyer in History, Literature, and
Humour_, relates that a leader of the Bar on rising to address the
drowsy jury after a ponderous oration by Sir Samuel Prime, said:
"Gentlemen, after the long speech of the learned serjeant--" "Sir, I
beg your pardon," interrupted Mr. Justice Nares, "you might say--you
might say--after the long soliloquy, for my brother Prime has been
talking an hour to himself."
* * * * *
[Illustration: THOMAS ERSKINE, BARON ERSKINE, LORD CHANCELLOR.]
Thomas, Lord Erskine was the youngest of three brothers, who were all
distinguished men. The eldest was the well-known Earl of Buchan, one of
the founders of the Society of Antiquaries of Scotland, whose
eccentricities formed the subject of much gossip in the Scottish
capital. To an English nobleman he declared: "My brothers Harry and Tom
are certainly remarkable men, but they owe everything to me." Seeing a
look of surprise upon his friend's face he added: "Yes, it is true; they
owe everything to me. On my father's death they pressed me for an annual
allowance. I knew this would have been their ruin, by relaxing their
industry. So making a sacrifice of my inclinations to gratify them I
refused to give them a farthing, and they have thriven ever
since--_owing everything to me_."
Henry, the second brother, was universally beloved and respected, and one
of the most popular advocates at the Scottish Bar. He was twice
Lord-Advocate for Scotland--on the second occasion under the Ministry of
"All the Talents," when his younger brother was Lord Chancellor. He was
famous in the Parliament House and outside of it for his witticisms, a
selection of which will be given later.
Thomas, who became Lord Chancellor, obtained an unique influence while
practising at the Bar, and, like his older brother, he was a universal
favourite. "Juries have declared," said Lord Brougham, "that they have
felt it impossible to remove their looks from him when he had riveted,
and as it were fascinated, them by his first glance. Then hear his
voice, of surpassing sweetness, clear, flexible, strong, exquisitely
fitted to strains of serious earnestness." Yet although he did not rely
on wit, or humour, or sarcasm in addressing a jury, he could use them to
effect in cross-examination. "You were born and bred in Manchester, I
perceive," he said to a witness. "Yes."--"I knew it," said Erskine
carelessly, "from the absurd tie of your neckcloth." The witness'
presence of mind was gone, and he was made to unsay the greatest part of
his evidence in chief. Another witness confounding 'thick' whalebone
with 'long' whalebone, and unable to distinguish the difference after
counsel's explanation, Erskine exclaimed, "Why, man, you do not seem to
know the difference between what is _thick_ or what is _long_! Now I
tell you the difference. You are _thick_-headed, and you are not
_long_-headed."
Lord Erskine's addiction to punning is well known, and many examples
might be cited. An action was brought against a stable-keeper for not
taking proper care of a horse. "The horse," said counsel for the
plaintiff, "was turned into the stable, with nothing to eat but musty
hay. To such the horse 'demurred.'"--"He should have 'gone to the
country,'" at once retorted Lord Erskine. For the general reader it
should be explained that "demurring" and "going to the country" are
technical terms for requiring a cause to be decided on a question of law
by the judge, or on a question of fact by the jury. Here is another. A
low-class attorney who was much employed in bail-business and moving
attachments against the sheriff for not "bringing in the body"--that is,
not arresting and imprisoning a debtor, when such was the law--sold his
house in Lincoln's Inn Fields to the Corporation, of Surgeons to be used
as their Hall. "I suppose it was recommended to them," said Erskine,
"from the attorney being so well acquainted 'with the practice of
bringing in the body!'"
Perhaps one of his smartest puns he relates himself. "A case being laid
before me by my veteran friend, the Duke of Queensberry--better known as
'old Q'--as to whether he could sue a tradesman for breach of contract
about the painting of his house; and the evidence being totally
insufficient to support the case, I wrote thus: 'I am of opinion that
this action will not lie unless the witnesses do.'"
He was also fond of a practical joke. In answer to a circular letter
from Sir John Sinclair, proposing that a testimonial should be presented
to himself for his eminent public services, Lord Erskine replied:
"MY DEAR SIR JOHN,--I am certain there are few in this kingdom
who set a higher value on your public services than myself;
and I have the honour to subscribe"--then, on turning over the
leaf, was to be found--"myself, your most obedient faithful
servant,
"ERSKINE."
"Gentlemen of the jury," were his closing words after an impassioned
address, "the reputation of a cheesemonger in the City of London is like
the bloom upon a peach. Breathe upon it, and it is gone for ever."
Among many apocryphal stories told of expedients by which smart counsel
have gained verdicts, this one respecting a case in which Mr. Justice
Gould was the judge and Erskine counsel for the defendant is least
likely of credit. The judge entertained a most unfavourable opinion of
the defendant's case, but being very old was scarcely audible, and
certainly unintelligible, to the jury. While he was summing up the case,
Erskine, sitting on the King's Counsel Bench, and full in the view of
the jury, nodded assent to the various remarks which fell from the
judge; and the jury, imagining that they had been directed to find for
the defendant, immediately did so.
When at the Bar, Erskine was always encouraged by the appreciation of
his brother barristers. On one occasion, when making an unusual exertion
on behalf of a client, he turned to Mr. Garrow, who was his colleague,
and not perceiving any sign of approbation on his countenance, he
whispered to him, "Who do you think can get on with that d--d wet
blanket face of yours before him."
Nor did he always exhibit graciousness to older members. One nervous old
barrister named Lamb, who usually prefaced his pleadings with an
apology, said to Erskine one day that he felt more timid as he grew
older. "No wonder," replied Erskine, "the older the lamb the more
sheepish he grows."
When he was Lord Chancellor he was invited to attend the ministerial
fish dinner at Greenwich--known in later years as the Whitebait
Dinner--he replied: "To be sure I will attend. What would your fish
dinner be without the Great Seal?"
* * * * *
When a stupid jury returns an obviously wrong verdict the judge must
feel himself in an awkward position; but in such cases--if they ever
occur now--a good precedent has been set by Mr. Justice Maule who, when
in that predicament, addressed the prisoner in these terms:
"Prisoner, your counsel thinks you innocent, the prosecution thinks you
innocent, and I think you innocent. But a jury of your own
fellow-countrymen, in the exercise of such common sense as they possess,
have found you guilty, and it remains that I should pass sentence upon
you. You will be imprisoned for one day, and as that day was yesterday,
you are free to go about your business."
"May God strike me dead! my lord, if I did it," excitedly exclaimed a
prisoner who had been tried before the same justice for a serious
offence, and a verdict of "guilty" returned by the jury. The judge
looked grave, and paused an unusually long time before saying a word. At
last, amid breathless silence, he began: "As Providence has not seen fit
to interpose in your case, it now becomes my duty to pronounce upon you
the sentence of the law," &c. When somewhat excited over a very bad case
tried before him he would delay sentence until he felt calmer, lest his
impulse or his temper should lead him astray. On one such occasion he
exclaimed, "I can't pass sentence now. I might be too severe. I feel as
if I could give the man five-and-twenty years' penal servitude. Bring
him up to-morrow when I feel calmer."--"Thank you, my lord," said the
prisoner, "I know you will think better of it in the morning." Next
day the man appeared in the dock for sentence. "Prisoner," said the
judge, "I was angry yesterday, but I am calm to-day. I have spent a
night thinking of your awful deeds, and I find on inquiry I can sentence
you to penal servitude for life. I therefore pass upon you that
sentence. I have thought better of what I was inclined to do yesterday."
There are instances of brief summing up of a case by judges, but few in
the terms expressed by this worthy judge. "If you believe the witnesses
for the plaintiff, you will find for the defendant; if you believe the
witnesses for the defendant, you will find for the plaintiff. If, like
myself, you don't believe any of them, Heaven knows which way you will
find. Consider your verdict."
To Mr. Justice Maule a witness said: "You may believe me or not, but I
have stated not a word that is false, for I have been wedded to truth
from my infancy."--"Yes, sir," said the judge dryly; "but the question
is, _how long have you been a widower?_"
In the good old days a learned counsel of ferocious mien and loud voice,
practising before him, received a fine rebuke from the justice. No reply
could be got from an elderly lady in the box, and the counsel appealed
to the judge. "I really cannot answer," said the trembling lady. "Why
not, ma'am?" asked the judge. "Because, my lord, he frightens me
so."--"So he does me, ma'am," replied the judge.
He was as a rule patient and forbearing, and seldom interfered with
counsel in their mode of laying cases before a jury or the Bench, but
once he was fairly provoked to do so, by the confused blundering way in
which one of them was trying to instil a notion of what he meant into
the minds of the jury. "I am sorry to interfere, Mr. ----," said the
judge, "but do you not think that, by introducing a little order into
your narrative, you might possibly render yourself a trifle more
intelligible? It may be my fault that I cannot follow you--I know that
my brain is getting old and dilapidated; but I should like to stipulate
for some sort of order. There are plenty of them. There is the
chronological, the botanical, the metaphysical, the geographical--even
the alphabetical order would be better than no order at all."
* * * * *
Baron Thomson, of the Court of Exchequer, was asked how he got on in his
Court with the business, when he sat between Chief Baron Macdonald and
Baron Graham. He replied, "What between snuff-box on one side, and
chatterbox on the other, we get on pretty well!"
Sir Richard Bethel, Lord Westbury, and Lord Campbell were on very
friendly terms. An amusing story is told of a meeting of the two in
Westminster Hall, when the first rumour of Lord Campbell's appointment
as Lord Chancellor was current. The day being cold for the time of the
year, Lord Campbell had gone down to the House of Lords in a fur coat,
and Bethel, observing this, pretended not to recognise him. Thereupon
Campbell came up to him and said: "Mr. Attorney, don't you know me?"--"I
beg your pardon, my lord," was the reply. "I mistook you for the _Great
Seal_."
[Illustration: RICHARD BETHEL, BARON WESTBURY, LORD CHANCELLOR.]
Lord Cranworth, Vice-Chancellor, after hearing Sir Richard Bethel's
argument in an appeal, said he "would turn the matter over in his mind."
Sir Richard turning to his junior with his usual bland calm utterance
said: "Take a note of that; his honour says he will turn it over in what
he is pleased to call his mind."
Sir James Scarlett, Lord Abinger, had to examine a witness whose
evidence would be somewhat dangerous unless he was thrown off his guard
and "rattled." The witness in question--an influential man, whose
vulnerable point was said to be his self-esteem--was ushered into the
box, a portly overdressed person, beaming with self-assurance. Looking
him over for a few minutes without saying a word Sir James opened fire:
"Mr. Tompkins, I believe?"--"Yes."--"You are a stockbroker, I believe,
are you not?"--"I ham." Pausing for a few seconds and making an
attentive survey of him, Sir James remarked sententiously, "And a very
fine and well-dressed ham you are, sir."