a witness kiss his thumb instead of the Testament, after rebuking him
said, "You may think to _desave_ God, sir, but you won't desave me."
* * * * *
[Illustration: SIR HENRY HAWKINS, LORD BRAMPTON.]
That racy and turf-attending judge, Lord Brampton, better known as Sir
Henry Hawkins, tells many good stories of himself in his
_Reminiscences_, but it is the unconscious humorist of Marylebone Police
Court who records this _bon mot_ of Sir Henry.
An old woman in the witness-box had been rattling on in the most voluble
manner, until it was impossible to make head or tail of her evidence.
Mr. Justice Hawkins, thinking he would try his hand, began with a
soothing question, but the old woman would not have it at any price. She
replied testily, "It's no use you bothering me. I have told you all I
know."--"That may be," replied his lordship, "but the question rather
is, do you know all you have told us?"
When Sir Henry (then Mr.) Hawkins was prosecuting counsel in the
Tichborne trial, over which Lord Chief Justice Cockburn presided, an
amusing incident is recorded by Mr. Plowden. The antecedents of a man
who had given sensational evidence for the claimant were being inquired
into, and in answer to Sir Henry the witness under examination said he
knew the man to be married, but his wife passed under another name.
"What name?" asked Mr. Hawkins. "Mrs. Hawkins," replied the witness.
"What was her maiden name?" added Mr. Hawkins. "Cockburn." Such a
coincident of names naturally caused hearty and prolonged laughter.
In the course of this celebrated trial another amusing incident occurred
which Sir Henry used to tell against himself. One morning as the
claimant came into Court, a lady dressed in deep mourning presented
Orton with a tract. After a few minutes he wrote something on it, and
had it passed on to the prosecuting counsel. The tract was boldly headed
in black type, "Sinner--Repent," and the claimant had written upon it,
"Surely this must have been meant for Hawkins."
Not long after he had ascended the Bench Mr. Justice Hawkins was hearing
a case in which a man was being tried for murder. The counsel for the
prosecution observed the prisoner say something earnestly to the
policeman seated by his side in the dock, and asked that the constable
should be made to disclose what had passed. "Yes," said his lordship, "I
think you may demand that. Constable, inform the Court what passed
between you and the prisoner."--"I--I would rather not, your lordship. I
was--."--"Never mind what you would rather not do. Inform the Court what
the prisoner said."--"He asked me, your lordship, who that hoary heathen
with the sheepskin was, as he had often seen him at the
race-course."--"That will do," said his lordship. "Proceed with the
case."
An action for damages against a fire insurance company, brought by some
Jews, was heard before Chief Justice Cockburn, which clearly was a
fraudulent claim. The plaintiffs claimed for loss of ready-made clothes
in the fire. Hawkins, who appeared for the defendant company, elicited
the fact that ready-made clothes in this firm had all brass buttons as a
rule; and, further, that after sifting the debris of the fire no buttons
had been found. The trial was not concluded on that day, but on the
following morning hundreds of buttons partially burnt were brought into
Court by the Jew plaintiffs. Cockburn was not long in appreciating this
mode of furnishing evidence after its necessity had been pointed out,
and he asked: "How do you account for these buttons, Mr. Hawkins? You
said none were found."--"Up to last night none had been found," replied
Hawkins. "But," said the Chief Justice--"but these buttons have
evidently been burnt in the fire. How do they come here?"--"_On their
own shanks_," was Hawkins' smart and ready reply. Verdict for
defendants.
The alibi has come in for its fair share of jests. Sir Henry Hawkins
relates in his _Reminiscences_ how he once found the following in his
brief: "If the case is called on before 3.15, the defence is left to the
ingenuity of the counsel; if after that hour, the defence is an alibi,
as by then the usual alibi witnesses will have returned from Norwich,
where they are at present professionally engaged."
Sitting as a vacation judge, Sir Walter Phillimore, whose views on the
law of divorce are well known, protested against being called on to make
absolute a number of decrees _nisi_ granted in the Divorce Division.
This fact is said to have called forth a witty pronouncement by a late
president of that Division of the Courts. "Here is my brother
Phillimore, who objects to making decrees _nisi_ absolute because he
believes in the sanctity of the marriage tie. By and by we may be having
a Unitarian appointed to the Bench, and he will refuse to try Admiralty
suits, as he would have to sit with Trinity Masters."
In sentencing a burglar recently, the judge referred to him as a
"professional," to which the prisoner strongly protested from the dock.
"Here," he exclaimed, "I dunno wot you mean by callin' me a professional
burglar. I've only done it once before, an' I've been nabbed both
times." The judge, in the most suave manner, replied, "Oh, I did not
mean to say that you had been very successful in your profession."
* * * * *
[Illustration: THE HON. MR JUSTICE GRANTHAM, JUDGE OF THE KING'S BENCH
DIVISION.]
Mr. Justice Grantham had a keen sense of humour. On one occasion, when
he was judge at the Newcastle Assizes, he left the mansion-house where
he was staying, at night, to post his letters. As he was wearing a cap
he was not recognised by the police officer who was on duty outside, and
the constable inquired of his lordship if "the old ---- had gone to bed
yet." The judge replied that he thought not, and a short while after he
had returned to the house he raised his bedroom window, and putting out
his head called to the constable below: "Officer, the old ---- is just
going to bed now."
[Illustration: THE HON. MR JUSTICE DARLING, JUDGE OF THE KING'S BENCH
DIVISION.]
Hardly a case of any importance comes into Mr. Justice Darling's Court
without attracting a large attendance of the public, as much from
expectation of being entertained by the repartees between Bench and Bar
as from interest in the proceedings before the Court. In a recent turf
libel case his lordship gave a free rein to his proclivity to give an
amusing turn to statements of both counsel and witnesses. At one point
he intervened by remarking that other witnesses than the one under
examination had said that a horse is made fit by running on the course
before he is expected to win a position, and added, "That is so, not
only on the race-course. You can never make a good lawyer by putting him
to read in the library." To which the defendant, who conducted his own
case, replied, "But I take it a barrister does try."--"You have no
notion how he tries the judge," responded Mr. Justice Darling. In the
same case a question arose as to whether the stewards of the Jockey Club
had the power to check riding "short," as it is termed, and the Justice
inquired if the stewards could say, "You must ride with a leather of a
prescribed length," and got the answer, "Yes; they could say if you
don't ride longer we won't give you a license."--"Which means," said the
judge, "if you don't ride longer you won't ride long."
"Who made the translation from the German?" asked the same judge,
regarding a document to which counsel had referred. "God knows; I
don't," was the reply of Mr. Danckwerts. "Are you sure," responded the
Justice, "that what is not known to you is known at all?"
Perhaps Mr. Justice Darling never raised heartier laughter than in an
action some years ago where the issue was whether the plaintiff, who had
been engaged by the defendant to sing in "potted opera" at a music-hall,
was competent to fulfil his contract.
"Well, he could not sing like the archangel Gabriel," a witness had
said, in reply to Mr. Duke, K. C.
"I have never heard the archangel Gabriel," commented the eminent
counsel.
"That, Mr. Duke, is a pleasure to come," was his lordship's swift, if
gently sarcastic, rejoinder.
* * * * *
If witnesses occasionally undergo severe handling in cross-examination
by counsel, there are also occasions when their ready reply has rather
nonplussed the judge.
A case was being tried at York before Mr. Justice Gould. When it had
proceeded for upwards of two hours the judge observed that there were
only eleven jurymen in the box, and inquired where the twelfth man was.
"Please you, my lord," said one of them, "he has gone away about some
business, but he has left his verdict with me."
"How old are you?" asked the judge of a lady witness.
"Thirty."--"Thirty!" said the judge; "I have heard you give the same age
in this Court for the last three years."--"Yes," responded the lady; "I
am not one of those persons who say one thing to-day and another
to-morrow."
Mr. Justice Keating one day had occasion to examine a witness who
stuttered very much in giving his evidence. "I believe," said his
lordship, "you are a very great rogue."--"Not so great a rogue as you,
my lord--t--t--t--t--take me to be," was the reply.
Judge: "Is this your signature?"
Witness: "I don't know."
Judge: "Look at it carefully."
Witness: "I can't say for certain."
Judge: "Is it anything like your writing?"
Witness: "I don't think it is."
Judge: "Can't you identify it?"
Witness: "Not quite."
Judge: "Well, let me see, just write your name here and I will examine
the two signatures."
Witness: "I can't write, sir."
Medical men are not as a rule the best witnesses, being too fond of
using technical words peculiar to them in their own profession. In an
action for assault tried by a Derbyshire common jury before Mr. Justice
Patteson, a surgical witness was asked to describe the injuries the
plaintiff had received; he stated he had "ecchymosis" of the left eye.
Upon the judge inquiring whether that did not mean what was commonly
understood by a black eye, the witness answered: "Yes."--"Then why did
you not say so, sir? What do the jury know of 'ecchymosis'? They might
think, as the farmer did of the word 'felicity,' used by a clergyman in
his sermon, that it meant something in the inside of a pig."
A notorious thief, being tried for his life, confessed the robbery he
was charged with. The judge thereupon directed the jury to find him
guilty upon his own confession. The jury having consulted together
brought him in "Not guilty." The judge bade them consider their verdict
again, but still they brought in a verdict of "Not guilty." The judge
asking the reason, the foreman replied: "There is reason enough, for we
all know him to be one of the greatest liars in the country."
"Have you committed all these crimes?" asked the judge of a hoary old
sinner. "Yes, my lord, and worse." "Worse, I should have thought it
impossible. What have you done then?"--"My lord, I allowed myself to be
caught."
"I knows yer," said a prisoner to the present Lord Chief Justice, "and
many's the time I've given yer a hand when ye've been stepping it round
the track like a greyhound. So let's down lightly, like a good cove as
yer are."
* * * * *
The retort of a witness to Lord Avory was too good to be soon forgotten,
and is still circulating among the juniors of the law-courts. "Let me
see," said his lordship, "you have been convicted before, haven't
you?"--"Yes, sir," answered the man; "but it was due to the incapacity
of my counsel rather than to any fault on my part."--"It always is,"
said Lord Avory, with a grim smile, "and you have my sincere
sympathy."--"And I deserve it," retorted the man, "seeing that you were
my counsel on that occasion!"
CHAPTER TWO
THE BARRISTERS OF ENGLAND
"Hark the hour of ten is sounding!
Hearts with anxious fears are bounding;
Hall of Justice crowds surrounding,
Breathing hope and fear.
For to-day in this arena
Summoned by a stern subpœna,
Edwin sued by Angelina
Shortly will appear."
Sir W. S. GILBERT: _Trial by Jury_.
"As your Solicitor, I should have no hesitation in saying:
Chance it----"
Sir W. S. GILBERT: _The Mikado_.
CHAPTER TWO
THE BARRISTERS OF ENGLAND
From the middle of the thirteenth century the senior rank to which a
barrister could attain at the Bar was that of serjeant-at-law, and from
that body, which existed until 1875, the judges were selected. If a
barrister below the rank of serjeant was invited to take a seat on the
Bench he invariably conformed to the recognised custom and "took the
coif"--became a serjeant-at-law--before he was sworn as one of his (or
her) Majesty's judges. This explains the term "brother" applied by
judges when addressing serjeants pleading before them in Court. "Taking
the coif" had a curious origin. It was customary in very early times for
the clergy to add to their clerical duties that of a legal practitioner,
by which considerable fees were obtained, and when the Canon law forbade
them engaging in all secular occupations the remuneration they had
obtained from the law-courts proved too strong a temptation to evade the
new law. They continued therefore to practise in the Courts, and to hide
their clerical identity they concealed the tonsure by covering the upper
part of their heads with a black cap or coif. When ultimately clerical
barristers were driven from the law-courts, the "coif" or black patch on
the crown of a barrister's wig became the symbol of the rank of
serjeant-at-law. That this distinguishing mark has been, in later years,
occasionally misunderstood is illustrated in the story of Serjeant
Allen and Sir Henry Keating, Q.C., who were opposed to one another in a
case before the Assize Court at Stafford. During the hearing of the case
a violent altercation had taken place between them, but when the Court
rose they left the building together, walking amicably to their
lodgings. Two men who had been in Court and had heard their wrangle were
following behind them, when one said to the other: "If you was in
trouble, Bill, which o' them two tip-top 'uns would you have to defend
you?"--"Well, Jim," was the reply, "I should pitch upon this 'un,"
pointing to the Q.C. "Then you'd be a fool," said his companion; "the
fellow with the _sore head_ is worth six of t'other 'un."
There used to be a student joke against the serjeants. "Why is a
serjeant's speech like a tailor's goose?"--"Because it is hot and
heavy."
* * * * *
"Taking silk," or becoming a K.C. and a senior at the Bar, originated at
a much later date than that of serjeant-at-law. Lord Bacon was the first
to be recognised as Queen's Counsel, but this distinction arose from his
position as legal adviser to Queen Elizabeth, and did not indicate the
existence of a senior body (as K.C. does now) among the barristers of
that period. The institution of the rank dates from the days of Charles
II, when Sir Francis North, Lord Guildford, was created King's Counsel
by a writ issued under the Great Seal. As was customary in the case of a
barrister proposing to "take the coif," so in that of one proposing to
"take silk"; he intimates to the seniors already holding the rank that
he intends to apply for admission to the body. A story is current in the
Temple that when Mr. Justice Eve "took silk" the usual notification of
his intention was sent to the seniors, and from one of them he received
the following reply: "My dear Eve, whether you wear silk or a fig-leaf,
I do not care.--A Dam."
* * * * *
Our selection of facetiæ of the English Bar, therefore, naturally opens
with stories of the serjeants-at-law, and one of the best-known members
of that body in early days was Serjeant Hill, a celebrated lawyer, who
was also somewhat remarkable for absence of mind, which was attributed
to the earnestness with which he devoted himself to his professional
duties.
On the very day when he was married, he had an intricate case on hand,
and forgot his engagement, until reminded of his waiting bride, and that
the legal time for performing the ceremony had nearly elapsed. He then
quitted law for the church; after the ceremony, the serjeant returned to
his books and his papers, having forgotten the _cause_ he had been
engaged in during the morning, until again reminded by his clerk that
the assembled company impatiently awaited his presence at dinner.
Being once on Circuit, and having occasion to refer to a law authority,
he had recourse, as usual, to his bag; but, to the astonishment of the
Court, instead of a volume of Viner's abridgment, he took out a specimen
candlestick, the property of a Birmingham traveller, whose bag Serjeant
Hill had brought into Court by mistake.
A learned serjeant kept the Court waiting one morning for a few minutes.
The business of the Court commenced at nine. "Brother," said the judge,
"you are behind your time this morning. The Court has been waiting for
you."--"I beg your lordship's pardon," replied the serjeant; "I am
afraid I was longer than usual in dressing."--"Oh," returned the judge,
"I can dress in five minutes at any time."--"Indeed!" said the learned
brother, a little surprised for the moment; "but in that my dog Shock
beats your lordship hollow, for he has nothing to do but to shake his
coat, and thinks himself fit for any company."
Serjeant Davy, when at the height of his professional career, once
received a large brief on which a fee of two guineas only was marked on
the back. His client asked him if he had read the brief. Pointing with
his finger to the fee, Davy replied: "As far as that I have read, and
for the life of me I can read no further." Of the same eminent serjeant
in his earlier years an Old Baily story is told. Judge Gould, who
presided, asked: "Who is concerned for the prisoner?"--"I am concerned
for him, my lord," said Davy, "and very much concerned after what I have
just heard."
If Serjeant Davy was concerned about his client, Serjeant Miller had no
such scruple about the man charged with horse stealing whom he
successfully defended, although the evidence convinced the judge and
everybody in the Court that there ought to have been a conviction. When
the trial was over and the prisoner had been acquitted, the judge said
to him: "Prisoner, luckily for you, you have been found Not Guilty by
the jury, but you know perfectly well you stole that horse. You may as
well tell the truth, as no harm can happen to you now by a confession,
for you cannot be tried again. Now tell me, did you not steal that
horse?" "Well, my lord," replied the man, "I always thought I did, until
I heard my counsel's speech, but now I begin to think I didn't."
* * * * *
In the days of "riding" and "driving circuit," and even later, the
Circuit mess was a very popular institution with circuiteers, and was
made the occasion of much merriment. After the table had been cleared a
fictitious charge would be made against one of the barristers present,
and a mock tribunal was immediately constituted before which he was
arraigned and his case duly set forth with all solemnity. The victim was
invariably fined--generally in wine, which had to be paid at once, and
consumed before the company retired to bed. On one such occasion
Serjeant Prime, who is represented as a good-natured but rather dull
man, and as a barrister wearisome beyond comparison, was engaged in an
important case in an over-crowded courtroom. He had been speaking for
three hours, when a boy, seated on a beam above the heads of the
audience, overcome by the heat and the serjeant's monotonous tones, fell
asleep, and, losing his balance, tumbled down on the people below. The
incident was made the subject of a charge against the serjeant at the
mess, and he was duly sentenced to pay a fine of two dozen of wine,
which he did with the greatest good humour.
Serjeant Wilkins, on one occasion, on defending a prisoner, said: "Drink
has upon some an elevating, upon others a depressing, effect; indeed,
there is a report, as we all know, that an eminent judge, when at the
Bar, was obliged to resort to heavy drinking in the morning, to reduce
himself to the level of the judges." Lord Denman, the judge, who had no
love for Wilkins, bridled up instantly. His voice trembled with
indignation as he uttered the words: "Where is the report, sir? Where is
it?" There was a death-like silence. Wilkins calmly turned round to the
judge and said: "It was burnt, my lord, in the Temple fire." The
effect of this was considerable, and it was a long time before order
could be restored, but Lord Denman was one of the first to acknowledge
the wit of the answer.
Difference of manner or temperament sometimes gives point to the
collisions which occasionally occur in Court between rival counsel.
Serjeant Wilkins, who had an inflated style of oratory, was once opposed
in a case to Serjeant Thomas, whose manner of delivery was lighter and
more lively. On the conclusion of a heavy bombardment of ponderous
Johnsonian sentences from the former, Thomas rose, and, with his eyes
fixed on his opponent, prefaced his address to the jury with the words,
delivered with much solemnity of manner and intonation: "And now the
hurly-burly's done."
* * * * *
Dunning was defending a gentleman in an action brought from _crim. con._
with the plaintiff's wife. The chief witness for the plaintiff was the
lady's maid, a clever, self-composed person, who spoke confidently as to
seeing the defendant in bed with her mistress. Dunning, on rising to
cross-examine her, first made her take off her bonnet, that they might
have a good view of her face, but this did not discompose her, as she
knew she was good-looking. He then arranged his brief, solemnly drew up
his shirt sleeves, and then began: "Are you sure it was not your master
you saw in bed with your mistress?"--"Perfectly sure."--"What, do you
pretend to say you can be certain when the head only appeared from the
bedclothes, and that enveloped in a nightcap?"--"Quite certain."--"You
have often found occasion, then, to see your master in his
nightcap?"--"Yes--very frequently."--"Now, young woman, I ask you, on
your solemn oath, does not your master occasionally go to bed with
you?"--"Oh, that trial does not come on to-day, Mr. Slabberchops!"
replied the witness. A loud shout of laughter followed, and Lord
Mansfield leaned back to enjoy it, and then gravely leaned forward and
asked if Mr. Dunning had any more questions to put to the witness. No
answer was given, and none were put. The same counsel, when at the
height of his large practice at the Bar, was asked how he got through
all his work. He replied: "I do one-third of it; another third does
itself; and I don't do the remaining third."
A witness under severe cross-examination by Serjeant Dunning was
repeatedly asked if he did not live close to the Court. On admitting
that he did, the further question was put, "And pray, sir, for what
reason did you take up your residence in that place?"--"To avoid the
rascally impertinence of dunning," came the ready answer.
A barrister's name once gave a witness the opportunity to score in the
course of a severe cross-examination. Missing was the leader of his
Circuit and was defending his client charged with stealing a donkey. The
prosecutor had left the donkey tied up to a gate, and when he returned
it was gone. "Do you mean to say," said counsel, "the donkey was stolen
from the gate?"--"I mean to say, sir," said the witness, giving the
judge and then the jury a sly look, at the same time pointing to the
counsel, "the ass was missing."
* * * * *
Mr. Clarke, a leader of the Midland Circuit, was a very worthy lawyer of
the old school. A client long refusing to agree to refer to arbitration
a cause which judge, jury, and counsel wished to get rid of, he at last
said to him, "You d--d infernal fool, if you do not immediately follow
his lordship's recommendation, I shall be obliged to use strong language
to you." Once, in a council of the Benchers of Lincoln's Inn, the same
gentleman very conscientiously opposed their calling a Jew to the Bar.
Some tried to point out the hardship to be imposed upon the young
gentleman, who had been allowed to keep his terms, and whose prospects
in life would thus be suddenly blasted. "Hardship!" said the zealous
churchman, "no hardship at all! Let him become a Christian, and be d--d
to him!"