supposed to have been cajoled into the engagement by the plaintiff's
mother, a titled lady. The mother, as a witness, completely baffled the
defendant's clever counsel when under his cross-examination; but by one
of his happiest strokes of advocacy, Scarlett turned his failure into
success. "You saw, gentlemen of the jury, that I was but a child in her
hands. _What must my client have been?_"
Sir James was a noted cross-examiner and verdict-getter, but on one
occasion he was beaten. Tom Cooke, a well-known actor and musician in
his day, was a witness in a case in which Sir James had him under
cross-examination.
Scarlett: "Sir, you say that the two melodies are the same, but
different; now what do you mean by that, sir?"
Cooke: "I said that the notes in the two copies are alike, but with a
different accent."
Scarlett: "What is a musical accent?"
Cooke: "My terms are nine guineas a quarter, sir."
Scarlett (ruffled): "Never mind your terms here. I ask you what is a
musical accent? Can you see it?"
Cooke: "No."
Scarlett: "Can you feel it?"
Cooke: "A musician can."
Scarlett (angrily): "Now, sir, don't beat about the bush, but explain to
his lordship and the jury, who are expected to know nothing about music,
the meaning of what you call accent."
Cooke: "Accent in music is a certain stress laid upon a particular note,
in the same manner as you would lay stress upon a given word, for the
purpose of being better understood. For instance, if I were to say, 'You
are an _ass_,' it rests on ass, but if I were to say, '_You_ are an
ass,' it rests on you, Sir James." The judge, with as much gravity as he
could assume, then asked the crestfallen counsel, "Are you satisfied,
Sir James."--"The witness may go down," was the counsel's reply.
* * * * *
Lord Justice Holt, when a young man, was very dissipated, and belonged
to a club, most of whose members took an infamous course of life. When
his lordship was engaged at the Old Baily a man was convicted of highway
robbery, whom the judge remembered to have been one of his early
companions. Moved by curiosity, Holt, thinking the man did not recognise
him, asked what had become of his old associates. The culprit making a
low bow, and giving a deep sigh, replied, "Oh, my lord, they are all
hanged but your lordship and I."
We have already given examples of personalities in the retorts of
counsel upon members of the Bench, and if the same derogatory reflection
can be traced in the two following anecdotes of judges' retorts on
counsel, it is at least veiled in finer sarcasm. A nervous young
barrister was conducting a first case before Vice-Chancellor Bacon, and
on rising to make his opening remarks began in a faint voice: "My lord,
I must apologise--er--I must apologise, my lord"--"Go on, sir," said his
lordship blandly; "so far the Court is with you." The other comes from
an Australian Court. Counsel was addressing Chief Justice Holroyd when a
portion of the plaster of the Court ceiling fell, and he stopping his
speech for the moment, incautiously advanced the suggestion, "Dry rot
has probably been the cause of that, my lord."--"I am quite of your
opinion, Mr. ----," observed his lordship.
On the other hand, judges can be severely personal at times, and Lord
Justice Chitty was almost brutal in a case where counsel had been
arguing to distraction on a bill of sale. "I will now proceed to address
myself to the furniture--an item covered by the bill," counsel
continued. "You have been doing nothing else for the last hour,"
lamented the weary judge.
And Mr. Justice Wills once made a rather cutting remark to a barrister.
The barrister was, in the judge's private opinion, simply wasting the
time of the Court, and, in the course of a long-winded speech, he dwelt
at quite unnecessary length on the appearance of certain bags connected
with the case. "They might," he went on pompously, "they might have been
full bags, or they might have been half-filled bags, or they might even
have been empty bags, or--."--"Or perhaps," dryly interpolated the
judge, "they might have been wind-bags!"
* * * * *
[Illustration: HENRY BROUGHAM, BARON BROUGHAM AND VAUX, LORD
CHANCELLOR.]
When Lord Brougham attained the position of Lord Chancellor he was
greatly addicted to the habit of writing during the course of counsel's
argument of the case being heard before him. On one occasion this
practice so annoyed Sir Edward Sugden, whenever he noticed it, that he
paused in the course of his argument, expecting his lordship to stop
writing; but the Chancellor, without even looking up, remarked, "Go on,
Sir Edward; I am listening to you."--"I observe that your lordship is
engaged in writing, and not favouring me with your attention," replied
Sir Edward. "I am signing papers of mere form," warmly retorted the
Chancellor. "You may as well say that I am not to blow my nose or take
snuff while you speak."
When counsel at the Bar, a witness named John Labron was thus
cross-examined by Brougham at York Assizes:
"What are you?"
"I am a farmer, and malt a little."
"Do you know Dick Strother?"
"No."
"Upon your oath, sir, are you not generally known by the name of Dick
Strother?"
"That has nothing to do with this business."
"I insist upon hearing an answer. Have you not obtained that name?"
"I am sometimes called so."
"Now, Dick, as you admit you are so called, do you know the story of the
hare and the ball of wax?"
"I have heard it."
"Then pray have the goodness to relate it to the judge and the jury."
"I do not exactly remember it."
"Then I will refresh your memory by relating it myself. Dick Strother
was a cobbler, and being in want of a hare for a friend, he put in his
pocket a ball of wax and took a walk into the fields, where he soon
espied one. Dick then very dexterously threw the ball of wax at her
head, where it stuck, which so alarmed poor puss that in the violence of
her haste she ran in contact with the head of another; both stuck fast
together, and Dick, lucky Dick! caught both. Dick obtained great
celebrity by telling this wondrous feat, which he always affirmed as a
truth, and from that every notorious liar in Thorner bears the title
of Dick Strother. Now, Dick--I mean John--is not that the reason why you
are called Dick Strother?"
"It may be so."
"Then you may go."
The same turbulent spirit (Lord Brougham) fell foul of many other law
lords. It is well known that in a speech made at the Temple he accused
Lord Campbell, who had just published his _Lives of the Chancellors_, of
adding a new terror to death. Lord Campbell tells an amusing story which
shows that he could retort with effect upon his noble and learned
friend. He says that he called one morning upon Brougham at his house in
Grafton Street, who "soon rushed in very eagerly, but suddenly stopped
short, exclaiming, 'Lord bless me, is it you? They told me it was
Stanley'; and notwithstanding his accustomed frank and courteous manner,
I had some difficulty in fixing his attention. In the evening I stepped
across the House to the Opposition Bench, where Brougham and Stanley
were sitting next each other, and, addressing the latter in the hearing
of the former, I said, 'Has our noble and learned friend told you the
disappointment he suffered this morning? He thought he had a visit from
the Leader of the Protectionists to offer him the Great Seal, and it
turned out to be only Campbell come to bore him about a point of Scotch
law.' _Brougham_: 'Don't mind what Jack Campbell says; he has a
prescriptive privilege to tell lies of all Chancellors, dead and
living.'"
According to the same authority, Brougham was at one time very anxious
to be made an earl, but his desire was entirely quenched when Lord John
Russell gave an earldom to Lord Chancellor Cottenham. He is said to have
been so indignant that he either wrote or dictated a pamphlet in which
the new creation was ridiculed, and to which was appended the
significant motto, "The offence is rank."
The common feeling with regard to Sir James Scarlett's (Lord Abinger)
success in gaining verdicts led to the composition of the following
pleasantry, attributed to Lord Campbell. "Whereas Scarlett had contrived
a machine, by using which, while he argued, he could make the judges'
heads nod with pleasure, Brougham in course of time got hold of it; but
not knowing how to manage it when he argued, the judges, instead of
nodding, shook their heads."
And it is Lord Campbell who has preserved the following specimen of a
judge's concluding remarks to a prisoner convicted of uttering a forged
one-pound note. After having pointed out to him the enormity of the
offence, and exhorted him to prepare for another world, added: "And I
trust that through the merits and the mediation of our Blessed Redeemer,
you may there experience that mercy which a due regard to the _credit
of the paper currency_ of the country forbids you to hope for here."
Campbell married Miss Scarlett, a daughter of Lord Abinger, and was
absent from Court when a case in which he was to appear was called
before Mr. Justice Abbot. "I thought, Mr. Brougham," said his lordship,
"that Mr. Campbell was in this case?"--"Yes, my lord," replied Mr.
Brougham, with that sarcastic look peculiarly his own. "He was, my lord,
but I understand he is ill."--"I am sorry to hear that, Mr. Brougham,"
said the judge. "My lord," replied Mr. Brougham, "it is whispered here
that the cause of my learned friend's absence is scarlet fever."
* * * * *
[Illustration: JOHN CAMPBELL, BARON CAMPBELL, LORD CHANCELLOR.]
In his native town of Cupar, Fife, Lord Chancellor Campbell's abilities
and position were not so much appreciated as they were elsewhere. This
was a sore point with his father, who was parish minister, and when the
son was not selected by the town authorities to conduct their legal
business in London the future Lord Chancellor also felt affronted. On
the publication of the _Lives of the Chancellors_ some of his townsmen
wrote asking him to present a copy to the local library of his native
town, which gave Campbell an opportunity to square accounts with them
for their past neglect of him, for he curtly replied to their request
that "they could purchase the book from any bookseller." An old lady of
the town relating some gossip about the Campbell family said, "They
meant John for the Church, but he went to London _and got on very
well_." Such was the good lady's idea of the relative positions of
minister of a Scottish parish and Lord Chancellor of England.
The difference in the pronunciation of a word led to an amiable contest
between Lord Campbell and a learned Q.C. In an action to recover damages
to a carriage the counsel called the vehicle a "brougham," pronouncing
both syllables of the word. Lord Campbell pompously observed, "Broom is
the usual pronunciation--a carriage of the kind you mean is not
incorrectly called a 'Broom'--that pronunciation is open to no grave
objection, and it has the advantage of saving the time consumed by
uttering an extra syllable." Later in the trial Lord Campbell alluding
to a similar case referred to the carriage which had been injured as an
"Omnibus."--"Pardon me, my lord," interposed the Q.C., "a carriage of
the kind to which you draw attention is usually termed a 'bus'; that
pronunciation is open to no grave objection, and it has the great
advantage of saving the time consumed by uttering _two_ extra
syllables."
* * * * *
[Illustration: SIR SAMUEL MARTIN, BARON OF EXCHEQUER.]
Mr. Martin (afterwards Baron Martin), when at the Bar, was addressing
the Court in an insurance case, when he was interrupted by Baron
Alderson, who said, "Mr. Martin, do you think any office would insure
your life?"--"Certainly, my lord," replied Mr. Martin, "mine is a very
good life."--"You should remember, Mr. Martin, that yours is brief
existence."
This judge's reason for releasing a juryman from duty was equally smart.
The juryman in question confessed that he was deaf in one ear. "Then
leave the box before the trial begins," observed his lordship; "it is
necessary that the jurymen should hear _both_ sides."
Baron Martin was one of the good-natured judges who from the following
story seem to stretch that amiable quality to its fullest extent. In
sentencing a man convicted of a petty theft he said: "Look, I hardly
know what to do with you, but you can take six months."--"I can't take
that, my lord," said the prisoner; "it's too much. I can't take it; your
lordship sees I did not steal very much after all." The Baron indulged
in one of his characteristic chuckling laughs, and said: "Well that's
vera true; ye didn't steal _much_. Well then, ye can tak' _four_. Will
that do--four months?"--"No, my lord, but I can't take that
neither."--"Then take _three_."--"That's nearer the mark, my lord,"
replied the prisoner, "but I'd rather you'd make it _two_, if you'll be
so kind."--"Very well then, tak' two," said the judge; "and don't come
again. If you do, I'll give you--well, it'll all depend."
* * * * *
[Illustration: FREDERICK THESIGER, BARON CHELMSFORD, LORD CHANCELLOR.]
Lord Erskine's punning upon legal terms has already been noticed, but no
better quip is recorded than that of Lord Chelmsford, when as Sir
Frederick Thesiger, and a leader at the Bar, he took exception to the
irregular examination of a witness by a learned serjeant. "I have a
right," maintained the serjeant, "to deal with my witness as I
please."--"To that I offer no objection," retorted Sir Frederick. "You
may _deal_ as you like, but you shan't _lead_."
On all occasions Samuel Warren, the author of _Ten Thousand a Year_, was
given to boasting, at the Bar mess, of his intimacy with members of the
peerage. One day he was saying that, while dining lately at the Duke of
Leeds, he was surprised at finding no fish of any kind was served. "That
is easily accounted for," said Thesiger; "they had probably eaten it all
_upstairs_."
Walking down St. James's Street one day, Lord Chelmsford was accosted by
a stranger, who exclaimed, "Mr. Birch, I believe."--"If you believe
that, sir, you'll believe anything," replied his lordship as he passed
on.
* * * * *
[Illustration: SIR ALEXANDER COCKBURN, BART., LORD CHIEF JUSTICE.]
In the recently published _Cockburn Family Records_ the following is
told of the Chief Justice's ready wit:
"At a certain trial an extremely pretty girl was called as a witness.
The Lord Chief Justice was very particular about her giving her full
name and address. Of course he took note. So did the sheriff's officer!
That evening they both arrived at the young lady's door simultaneously,
whereupon Sir Alexander tapped the officer on the shoulder, remarking,
'No, no, no, Mr. Sheriff's Officer, judgment first, execution
afterwards!'"
There never was a barrister whose rise at the Bar was more rapid or
remarkable than that of Sir Alexander Cockburn, and along with him was
his friend and close associate as a brother lawyer of the Crown and
Bencher of the same Inn, Sir Richard Bethel, who became Lord Chancellor
a few years after Sir Alexander was made Chief Justice. Sir Richard once
said to his colleague, "My dear fellow, equity will swallow up your
common law."--"I don't know about that," said Sir Alexander, "but you'll
find it rather hard of digestion."
* * * * *
Although the wit of Lord Justice Knight Bruce was somewhat sarcastic it
was rarely so severe as that of Lord Westbury. There was always a tone
of good humour about it. He had indeed a kind of grave judicial waggery,
which is well exemplified in the following judgment in a separation suit
between an attorney and his wife. "The Court has been now for several
days occupied in the matrimonial quarrels of a solicitor and his wife.
He was a man not unaccustomed to the ways of the softer sex, for he
already had nine children by three successive wives. She,
however--herself a widow--was well informed of these antecedents; and it
appears did not consider them any objection to their union; and they
were married. No sooner were they united, however, than they were
unhappily disunited by unhappy disputes as to her property. These
disputes disturbed even the period usually dedicated to the softer
delights of matrimony, and the honeymoon was occupied by endeavours to
induce her to exercise a testamentary power of appointment in his
favour. She, however, refused, and so we find that in due course, at the
end of the month, he brought home with some disgust his still intestate
bride. The disputes continued, until at last they exchanged the
irregular quarrels of domestic strife for the more disciplined warfare
of Lincoln's Inn and Doctors Commons."
Of this judge the story is told that a Chancery counsel in a long and
dry argument quoted the legal maxim--_expressio unius est exclusio
alterius_--pronouncing the "i" in _unius_ as short as possible. This
roused his lordship from the drowsiness into which he had been lulled.
"Unyus! Mr. ----? We always pronounced that _unius_ at school."--"Oh
yes, my lord," replied the counsel; "but some of the poets use it short
for the sake of the metre."--"You forget, Mr. ----," rejoined the
judge, "that we are prosing here."
* * * * *
Mr. Justice Willes was a judge of kindly disposition, and when he had to
convey a rebuke he did so in some delicate and refined way like this. A
young barrister feeling in a hobble, wished to get out of it by saying,
"I throw myself on your lordship's hands."--"Mr. ----, I decline the
burden," replied the learned judge.
One day in judge's chambers, after being pressed by counsel very
strongly against his own views, he said with quaint humour: "I'm one of
the most obstinate men in the world."--"God forbid that I should be so
rude as to contradict your lordship," replied the counsel.
Mr. Montague Williams in his _Leaves of a Life_ relates the following
story of Mr. Justice Byles. He was once hearing a case in which a woman
was charged with causing the death of her child by not giving it proper
food, or treating it with the necessary care. Mr. F----, of the Western
Circuit, conducted the defence, and while addressing the jury said:
"Gentlemen, it appears to be 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"; and then being carried
away by his own eloquence, he proceeded: "Gentlemen, the beasts of the
field, the birds of the air, suckle their young, and----"
But at this point the learned judge interrupted him, and said:
"Mr. F----, if you establish the latter part of your proposition, your
client will be acquitted to a certainty."
And to the same authority we are indebted for a judge's gentle but
sarcastic reproof of a prosing counsel. In an action for false
imprisonment, heard before Mr. Justice Wightman, Ribton was addressing
the jury at great length, repeating himself constantly, and never giving
the slightest sign of winding up. When he had been pounding away for
several hours, the good old judge interposed, and said: "Mr. Ribton,
you've said that before."--"Have I, my lord?" said Ribton; "I'm very
sorry. I quite forgot it."--"Don't apologise, Mr. Ribton," was the
answer. "I forgive you; for it was a very long time ago."
A very old story is told of a highwayman who sent for a solicitor and
inquired what steps were necessary to be taken to have his trial
deferred. The solicitor answered that he would require to get a doctor's
affidavit of his illness. This was accordingly done in the following
manner: "The deponent verily believes that if the said ---- is obliged
to take his trial at the ensuing sessions, he will be in imminent danger
of his life."--"I verily believe so too," replied the judge, and the
trial proceeded immediately.
* * * * *
Some judges profess ignorance of slang terms used in evidence, and seek
explanation from counsel. Lord Coleridge in the following story had his
inquiry not only answered but illustrated. A witness was describing an
animated conversation between the pursuer and defendant in a case and
said: "Then the defendant turned and said, 'If 'e didn't 'owld 'is noise
'ed knock 'im off 'is peark.'"--"Peark? Mr. Shee, what is meant by
peark?" asked the Lord Chief Justice. "Oh, peark, my lord, is any
position when a man elevates himself above his fellows--for instance, a
bench, my lord."
Another story illustrating this alleged ignorance of every-day terms
used by the masses comes from the Scottish Court of Session. In this
instance the explanation was volunteered by the witness who used the
term. One of the counsel in the case was Mr. (now Lord) Dewar, who was
cross-examining the witness on a certain incident, and drew from him the
statement that he (the witness) had just had a "nip." "A nip," said the
judge; "what is a nip?"--"Only a small Dewar, my lord," explained the
witness.
Lord Russell of Killowen, himself a Lord Chief Justice, tells some
amusing stories of Lord Coleridge in his interesting reminiscences of
that great judge in the _North American Review_. When at the Bar he was
counsel in a remarkable case--Saurin against Starr. The pursuer, an
Irish lady, sued the Superior of a religious order at Hull for expulsion
without reasonable cause. Mr. Coleridge cross-examined a Mrs. Kennedy,
one of the superintendents of the convent, who had mentioned in her
evidence, among other peccadilloes of the pursuer, that she had been
found in the pantry eating strawberries, when she should have been
attending some class duties.
Mr. Coleridge: "Eating strawberries, really!"
Mrs. Kennedy: "Yes, sir, she was eating strawberries."
Mr. Coleridge: "How shocking!"
Mrs. Kennedy: "It was forbidden, sir."
Mr. Coleridge: "And did you, Mrs. Kennedy, really consider there was any
great harm in that?"
Mrs. Kennedy: "No, sir, not in itself, any more than there was harm in
eating an apple; but you know, sir, the mischief that came from that."
When as Lord Chief Justice, Lord Coleridge visited the United States, he
was continually pestered by interviewers, and one of them failing to
draw him, began to disparage the old country in its physical features
and its men. Lord Coleridge bore it all in good part; finally the
interviewer said, "I am told, my lord, you think a great deal of your
great fire of London. Well, I guess, that the conflagration we had in
the little village of Chicago made your great fire look very small." To
which his lordship blandly responded: "Sir, I have every reason to
believe that the great fire of London was quite as great as the people
of that time desired."
There are few of Lord Bowen's witticisms from the Bench in circulation,
but his after-dinner stories are worth recording, and perhaps one of the
best is that given in _Anecdotes of the Bench and Bar_, as told by
himself in the following words: "One of the ancient rabbinical writers
was engaged in compiling a history of the minor prophets, and in due
course it became his duty to record the history of the prophet Daniel.
In speaking of the most striking incident in the great man's career--I
refer to his critical position in the den of lions--he made a remark
which has always seemed to me replete with judgment and observation. He
said that the prophet, notwithstanding the trying circumstances in which
he was placed, had one consolation which has sometimes been forgotten.
He had the consolation of knowing that when the dreadful banquet was
over, at any rate it was not he who would be called upon to return
thanks."
* * * * *
The following story cannot be classed a witticism from the Bench, but
the judge clearly gave the opening for the lady's smart retort.
Mrs. Weldon, a well-known lady litigant in the Courts a generation ago,
was on one occasion endeavouring in the Court of Appeal to upset a
judgment of Vice-Chancellor Bacon, and one ground of complaint was that
the judge was too old to understand her case. Thereupon Lord Esher said:
"The last time you were here you complained that your case had been
tried by my brother Bowen, and you said he was only a bit of a boy, and
could not do you justice. Now you come here and say that my brother
Bacon was too old. What age do you want the judge to be?"--"Your age,"
promptly replied Mrs. Weldon, fixing her bright eyes on the handsome
countenance of the Master of the Rolls.