his "jury-eye." When he wanted a jury to note a particular point he kept
winking his right eye at them. Entering the Court one day looking very
depressed, a sympathetic friend asked if he was quite well, adding, "You
are not so lively as usual."--"How can I be," replied Grady, "my
jury-eye is out of order."
He was examining a foreign sailor at Cork Assizes. "You are a Swede, I
believe?"--"No, I am not."--"What are you then?"--"I am a Dane." Grady
turned to the jury, "Gentlemen, you hear the equivocating scoundrel. _Go
down, sir!_"
Judge Boyd who, according to O'Connell, was guilty of sipping his wine
through a peculiarly made tube from a metal inkstand, to which we have
already referred, one day presided at a trial where a witness was
charged with being intoxicated at the time he was speaking about. Mr.
Harry Grady laboured hard to show that the man had been sober. Judge
Boyd at once interposed and said: "Come now, my good man, it is a very
important consideration; tell the Court truly, were you drunk or were
you sober upon that occasion?"--"Oh, quite sober, my Lord." Grady added,
with a significant look at the _inkstand_, "As sober as a judge!"
* * * * *
Mr. Bethell, a barrister at the time of the Union of Ireland and Great
Britain, like many of his brethren, published a pamphlet on that
much-vexed subject. Mr. Lysaght, meeting him, said: "Bethell, you never
told me you had published a pamphlet on the Union. The one I saw
contained some of the best things I have ever seen in any of these
publications."--"I am proud you think so," rejoined the other eagerly.
"Pray what was the thing that pleased you so much?"--"Well," replied
Lysaght, "as I passed a pastry-cook's shop this morning, I saw a girl
come out with three hot mince-pies wrapped up in one of your
productions!"
"Pleasant Ned Lysaght," as his familiar friends called him, meeting a
Dublin banker one day offered himself as an assistant if there was a
vacancy in the bank's staff. "You, my dear Lysaght," said the banker;
"what position could you fill?"--"Two," was the reply. "If you made me
_cashier_ for one day, I'll become _runner_ the next."
And it was Lysaght who made a neat pun on his host's name at a dinner
party during the Munster Circuit. The gentleman, named Flatly, was in
the habit of inviting members of the Bar to his house when the Court was
held in Limerick. One evening the conversation turned upon matrimony,
and surprise was expressed that their host still remained a bachelor. He
confessed that he never had had the courage to propose to a young lady.
"Depend upon it," said Lysaght, "if you ask any girl _boldly_ she will
not refuse you, _Flatly_."
* * * * *
O'Flanagan, author of _The Lord Chancellors of Ireland_, writes of
Holmes, an Irish barrister: "He made us laugh very much one day in the
Queen's Bench. I was waiting for some case in which I was counsel, when
the crier called, 'Pluck and Diggers,' and in came James Scott, Q.C.,
very red and heated, and, throwing his bag on the table within the bar,
he said, 'My lords, I beg to assure your lordships I feel so exhausted I
am quite unable to argue this case. I have been speaking for three hours
in the Court of Exchequer, and I am quite tired; and pray excuse me, my
lords, I must get some refreshment.' The Chief Justice bowed, and said,
'Certainly, Mr. Scott.' So that gentleman left the Court. 'Mr. Holmes,
you are in this case,' said the Chief Justice; 'we'll be happy to hear
you.'--'Really, my lord, I am very tired too,' said Mr. Holmes.
'Surely,' said the Chief Justice, 'you have not been speaking for three
hours in the Court of Exchequer? What has tired you?'--'Listening to Mr.
Scott,' was Holmes' sarcastic reply."
* * * * *
Although rivals in their profession, C. K. Bushe had a great admiration
for Plunket's abilities, and would not listen to any disparagement of
them. One day while Plunket was speaking at the Bar a friend said to
Bushe, "Well, if it was not for the eloquence, I'd as soon listen to
----," who was a very prosy speaker. "No doubt," replied Bushe, "just as
the Connaught man said, ''Pon my conscience if it was not for the malt
and the hops, I'd as soon drink ditch water as porter.'"
There is an impromptu of Bushe's upon two political agitators of the day
who had declined an appeal to arms, one on account of his wife, the
other from the affection in which he held his daughter:
"Two heroes of Erin, abhorrent of slaughter,
Improved on the Hebrew command--
One honoured his wife, and the other his daughter,
That 'their' days might be long in 'the land.'"
A young barrister once tried to raise a laugh at the Mess dinner at the
expense of "Jerry Keller," a barrister who was prominent in social
circles of Dublin, and whose cousin, a wine merchant, held the contract
for supplying wine to the Mess cellar. "I have noticed," said the
junior, "that the claret bottles are growing smaller and smaller at each
Assizes since your cousin became our wine merchant."--"Whist!" replied
Jerry; "don't you be talking of what you know nothing about. It's quite
natural the bottles should be growing smaller, because we all know _they
shrink in the washing_."
An ingenious expedient was devised to save a prisoner charged with
robbery in the Criminal Court at Dublin. The principal thing that
appeared in evidence against him was a confession, alleged to have been
made by him at the police office. The document, purporting to contain
this self-criminating acknowledgment, was produced by the officer, and
the following passage was read from it:
"Mangan said he never robbed but twice
Said it was Crawford."
This, it will be observed, has no mark of the writer having any notion
of punctuation, but the meaning attached to it was, that
"Mangan said he never robbed but twice.
_Said it was Crawford._"
Mr. O'Gorman, the counsel for the prisoner, begged to look at the paper.
He perused it, and rather astonished the peace officer by asserting,
that so far from its proving the man's guilt, it clearly established his
innocence. "This," said the learned gentleman, "is the fair and obvious
reading of the sentence:
"Mangan said he never robbed;
_But twice said it was Crawford_."
This interpretation had its effect on the jury, and the man was
acquitted.
* * * * *
There were two barristers at the Irish Bar who formed a singular
contrast in their stature--Ninian Mahaffy was as much above the middle
size as Mr. Collis was below it. When Lord Redsdale was Lord Chancellor
of Ireland these two gentlemen chanced to be retained in the same cause
a short time after his lordship's elevation, and before he was
personally acquainted with the Irish Bar. Mr. Collis was opening the
motion, when the Lord Chancellor observed, "Mr. Collis, when a barrister
addresses the Court, he must stand."--"I am standing on the bench, my
lord," said Collis. "I beg a thousand pardons," said his lordship,
somewhat confused. "Sit down, Mr. Mahaffy."--"I am sitting, my lord,"
was the reply to the confounded Chancellor.
A barrister who was present on this occasion made it the subject of the
following epigram:
"Mahaffy and Collis, ill-paired in a case,
Representatives true of the rattling size ace;
To the heights of the law, though I hope you will rise,
You will never be judges I'm sure of a(s)size."
A very able barrister, named Collins, had the reputation of occasionally
involving his adversary in a legal net, and, by his superior subtlety,
gaining his cause. On appearing in Court in a case with the eminent
barrister, Mr. Pigot, Q.C., there arose a question as to who should be
leader, Mr. Collins being the senior in standing at the Bar, Mr. Pigot
being one of the Queen's Counsel. "I yield," said Mr. Collins; "my
friend holds the honours."--"Faith, if he does, Stephen," observed Mr.
Herrick, "'tis you have all the tricks."
* * * * *
[Illustration: DANIEL O'CONNELL, "THE LIBERATOR."]
It is told by one of O'Connell's biographers that he never prepared his
addresses to judges or juries--he trusted to the inspiration of the
moment. He had at command humour and pathos, invective and argument; he
was quick-witted and astonishingly ready in repartee, and he brought all
these into play, as he found them serviceable in influencing the bench
or the jury-box.
Lord Manners, Lord Chancellor of Ireland, stopped several of the many
counsels in a Chancery suit by saying he had made up his mind. He, in
fact, lost his temper as each in succession rose, and he declined them
in turn. At last O'Connell, one of the unheard counsel, began in his
deepest and most emphatic tone: "Well then, my lord, since your lordship
refuses to hear my learned friend, you will be pleased to hear ME"; and
then he plunged into the case, without waiting for any expression,
assent or dissent, or allowing any interruption. On he went, discussing
and distinguishing, and commenting and quoting, till he secured the
attention of, and evidently was making an impression on, the unwilling
judge. Every few minutes O'Connell would say: "Now, my lord, my learned
young friend beside me, had your lordship heard him, would have informed
your lordship in a more impressive and lucid manner than I can hope to
do," etcetera, until he finished a masterly address. The Lord Chancellor
next morning gave judgment in favour of O'Connell's client.
He was engaged in a will case, the allegation being that the will was a
forgery. The subscribing witness swore that the will had been signed by
the deceased "while life was in him"--that being an expression derived
from the Irish language, which peasants who have long ceased to speak
Irish still retain. The evidence was strong in favour of the will, when
O'Connell was struck by the persistency of the man, who always repeated
the same words, "The life was in him." O'Connell asked: "On the virtue
of your oath, was he alive?"--"By the virtue of my oath, the life was
in him."--"Now I call upon you in the presence of your Maker, who will
one day pass sentence on you for this evidence, I solemnly ask--and
answer me at your peril--was there not a live fly in the dead man's
mouth when his hand was placed on the will?" The witness was taken aback
at this question; he trembled, turned pale, and faltered out an abject
confession that the counsellor was right; a fly had been introduced into
the mouth of the dead man, to allow the witness to swear that "life was
in him."
O'Connell was defending John Connor on a charge of murder. The most
incriminating evidence was the finding of the murderer's hat, left
behind on the road. The all-important question was as to the
identity of the hat as that of the accused man. A constable was
prepared to swear to it. "You found this hat?" said O'Connell.
"Yes."--"You examined it?"--"Yes."--"You know it to be the
prisoner's property?"--"Yes."--"When you picked it up you saw it
was damaged?"--"Yes."--"And looking inside you saw the prisoner's
name, J-O-H-N C-O-N-N-O-R?" (here he spelt out the name slowly).
"Yes," was the answer. "There is no name inside at all, my lord,"
said O'Connell, and the prisoner was saved.
* * * * *
Explaining to a judge his absence from the Civil Court at the time a
case was heard, in which he should have appeared as counsel, O'Connell
said he could not leave a client in the Criminal Court until the verdict
was given. "What was it?" inquired the judge. "Acquitted," responded
O'Connell. "Then you have got off a wretch who is not fit to live," said
the judge. O'Connell, knowing his lordship to be a very religious man,
at once replied: "I am sure you will agree with me that a man whom you
regard as not fit to _live_ would be still more _unfit_ to die."
* * * * *
There was a young barrister--a contemporary of O'Connell--named Parsons,
who had a good deal of humour, and who hated the whole tribe of
attorneys. Perhaps they had not treated him very well, but his prejudice
against them was very constant and conspicuous. One day, in the Hall of
the Four Courts, an attorney came up to him to beg a subscription
towards burying a brother attorney who had died in distressed
circumstances. Parsons took out a one-pound note and tendered it. "Oh,
Mr. Parsons," said the applicant, "I do not want so much--I only ask a
shilling from each contributor. I have limited myself to that, and I
cannot really take more."--"Oh, take it, take it," said Parsons; "for
God's sake, my good sir, take the pound, and while you are at it bury
twenty of them."
There is a terseness in the following which seems to be inimitable.
Lord Norbury was travelling with Parsons; they passed a gibbet.
"Parsons," said Norbury, with a chuckle, "where would _you_ be now if
every one had his due?"--"Alone in my carriage," replied Parsons.
* * * * *
Here is a young Irishman's first Bar-speech. "Your lordships perceive
that we stand here as our grandmothers' administrators _de bonis non_;
and really, my lords, it does strike me that it would be a monstrous
thing to say that a party can now come in, in the very teeth of an Act
of Parliament, and actually turn us round, under colour of hanging us
up, on the foot of a contract made behind our backs."
A learned Serjeant MacMahon was noted for his confusion of language in
his efforts to be sublime. He cared less for the sense than the sound.
As, for example: "Gentlemen of the jury, I smell a rat--but I'll nip it
in the bud." And, "My client acted boldly. He saw the storm brewing in
the distance, but he was not dismayed! He took the bull by the horns and
he _indicted him for perjury_."
Peter Burrowes, a well-known member of the Irish Bar, was on one
occasion counsel for the prosecution at an important trial for murder.
Burrowes had a severe cold, and opened his speech with a box of lozenges
in one hand and in the other the small pistol bullet by which the man
had met his death. Between the pauses of his address he kept supplying
himself with a lozenge. But at last, in the very middle of a
'high-falutin' period, he stopped. His legal chest heaved, his eyes
seemed starting from his head, and in a voice tremulous with fright he
exclaimed: "Oh! h-h!!! Gentlemen, gentlemen; I've swallowed the
bul-let!"
An Irish counsel who was once asked by the judge for whom he was
"concerned," replied: "My lord, I am retained by the defendant, and
therefore I am concerned for the plaintiff."
A junior at the Bar in course of his speech began to use a simile of
"the eagle soaring high above the mists of the earth, winning its daring
flight against a midday sun till the contemplation becomes too dazzling
for humanity, and mortal eyes gaze after it in vain." Here the orator
was noticed to falter and lose the thread of his speech, and sat down
after some vain attempts to regain it; the judge remarking: "The next
time, sir, you bring an eagle into Court, I should recommend you to clip
its wings."
Mr. Tim Healy's power of effective and stinging repartee is probably
unexcelled. He is seldom at a loss for a retort, and there are not a few
politicians and others who regret having been foolish enough to rouse
his resentment. There is on record, however, an amusing interlude in the
passing of which Tim was discomfited--crushed, and found himself unable
to "rise to the occasion."
During the hearing of a case at the Recorder's Court in Dublin the
Testament on which the witnesses were being sworn disappeared. After a
lengthy hunt for it, counsel for the defendant noticed that Mr. Healy
had taken possession of the book, and was deeply absorbed in its
contents, and quite unconscious of the dismay its disappearance was
causing.
"I think, sir," said the counsel, addressing the Recorder, "that Mr.
Healy has the Testament." Hearing his name mentioned, Mr. Healy looked
up, realised what had occurred, and, with apologies, handed it over.
"You see, sir," added the counsel, "Mr. Healy was so interested that he
did not know of our loss. He took it for a new publication." For once
Mr. Healy's nimble wit failed him, and forced him to submit to the
humiliation of being scored off.
In the North of Ireland the peasantry pronounce the word witness
"wetness." At Derry Assizes a man said he had brought his "wetness" with
him to corroborate his evidence. "Bless me," said the judge, "about what
age are you?"--"Forty-two my last birthday, my lord," replied the
witness. "Do you mean to tell the jury," said the judge, "that at your
age you still have a wet nurse?"--"Of course I have, my lord." Counsel
hereupon interposed and explained.
The witness who gave the following valuable testimony, however, was
probably keeping strictly to fact. "I sees Phelim on the top of the
wall. 'Paddy,' he says. 'What,' says I. 'Here,' says he. 'Where?' says
I. 'Hush,' says he. 'Whist,' says I. And that's all."
The wit of the Irish Bar seems to infect even the officers of the Courts
and the people who enter the witness-box. It is impossible, for example,
not to admire the fine irony of the usher who, when he was told to clear
the Court, called out: "All ye blaggards that are not lawyers lave the
building."
Irish judges have much greater difficulties to contend against, because
the people with whom they have to deal have a fund of ready retort.
"Sir," said an exasperated Irish judge to a witness who refused to
answer the questions put to him--"sir, this is a contempt of Court."--"I
know it, my lord, but I was endeavouring to concale it," was the
irresistible reply.
A certain Irish attorney threatening to prosecute a printer for
inserting in his paper the death of a person still living, informed him
that "No person should publish a death unless informed of the fact by
the party deceased."
A rather amusing story is told of a trial where one of the Irish jurymen
had been "got at" and bribed to secure the jury agreeing to a verdict of
"Manslaughter," however much they might want to return one upon the
capital charge of "Murder." The jury were out for several hours, and it
was believed that eventually the result would be that they would not
agree upon a verdict at all. However, close upon midnight, they were
starved into one, and it was that of "Manslaughter." Next day the
particular juryman concerned received his promised reward, and in paying
it, the man who had arranged it for him remarked: "I suppose you had a
great deal of difficulty in getting the other jurymen to agree to a
verdict of 'Manslaughter'?"--"I should just think I did," replied the
man. "I had to knock it into them, for all the others--the whole eleven
of them--wanted to acquit him."
An Irish lawyer addressed the Court as _Gentlemen_ instead of _Your
Honours_. When he had concluded, a brother lawyer pointed out his error.
He immediately rose and apologised thus: "In the heat of the debate I
called your honours gentlemen,--I made a mistake, your honours."
CHAPTER FIVE
THE JUDGES OF SCOTLAND
"Ye Barristers of England
Your triumphs idle are,
Till ye can match the names that ring
Round Caledonia's Bar.
Your _John Doe_ and your Richard Roe
Are but a paltry pair:
Look at those who compose
The flocks round Brodie's Stair,
Who ruminate on Shaw and Tait
And flock round Brodie's Stair.
* * * * *
"But, Barristers of England,
Come to us lovingly,
And any Scot who greets you not
We'll send to Coventry.
Put past your brief, embark for Leith,
And when you've landed there,
Any wight with delight
Will point out Brodie's Stair
Or lead you all through Fountainhall
Till you enter Brodie's Stair."
OUTRAM: _Legal and other Lyrics_.
CHAPTER FIVE
THE JUDGES OF SCOTLAND
From the Institution of the Court of Session by James V of Scotland till
well into the nineteenth century, it was the custom of Scottish judges
when taking their seat on the Bench to assume a title from an estate--it
might even be from a farm--already in their own or their family's
possession. So we find that nearly every parish in Scotland has given
birth to a judge who by this practice has made that parish or an estate
in it more or less familiar to Scottish ears. Monboddo, near Fordoun, in
Kincardineshire, at once recalls the judge who gave "attic suppers" in
his house in St. John Street, Edinburgh, and held a theory that all
infants were born with tails like monkeys; but under the modern practice
of simply adding "Lord" to his surname of Burnet, we doubt if his
eccentric personality would be so readily remembered. Lord Dirleton's
_Doubts_, Lord Fountainhall's _Historical Observes_, carry a more
imposing sound in their titles than if those one-time indispensable
works of reference had been simply named Nisbet on Legal Doubts, and
Lauder on Historical Observations of Memorable Events.
The selection of a title was an important matter with these old judges.
When Lauder was raised to the Bench, his estate to the south-east of
Edinburgh was called Woodhead; but it would never have done for a
Senator of the College of Justice to be known as "Lord Woodhead," so the
name of the estate was changed to Fountainhall, and as Lord Fountainhall
he took his seat among "the Fifteen" as the full Bench of judges was
then termed.
These old-time judges with their rugged ferocity, corruption, and
occasionally brave words and deeds, in a great measure present to us now
a miniature history of Scotland in the seventeenth and eighteenth
centuries. "Show me the man, and I will show you the law," one is
reported to have said, meaning that the litigant with the longest purse
was pretty certain to win his case in the long run. They delighted in
long arguments, and highly appreciated bewilderment in pleadings; "Dinna
be brief," cried one judge when an advocate modestly asked to be briefly
heard in a case in which he appeared as junior counsel. But the tendency
to delay cases in the old Courts stretched beyond all reasonable lengths
and became a scandal to the country. It was not a question of a month or
even a year. Years passed and still cases remained undecided, some even
were passed on from one generation to another--a litigant by his will
handing on his plea in the Court to his successor along with his estate.
This protracted delay in deciding causes formed the subject of that
highly amusing and characteristic skit on the Scottish judges for which
Boswell was largely responsible:
THE COURT OF SESSION GARLAND
PART FIRST
The Bill charged on was payable at sight
And decree was craved by Alexander Wight;[1]
But, because it bore a penalty in case of failzie
It therefore was null contended Willie Baillie.[2]
The Ordinary not chusing to judge it at random
Did with the minutes make avizandum.
And as the pleadings were vague and windy
His Lordship ordered memorials _hinc inde_.
We setting a stout heart to a stey brae
Took into the cause Mr. David Rae:[3]
Lord Auchenleck,[4] however, repelled our defence,
And over and above decerned for expence.
However of our cause not being asham'd,
Unto the whole Lords we straightway reclaim'd;
And our petition was appointed to be seen,
Because it was drawn by Robbie Macqueen.[5]
The answer of Lockhart[6] himself it was wrote,
And in it no argument or fact was forgot;
He is the lawyer that from no cause will flinch,
And on this occasion divided the Bench.
Alemoor,[7] the judgment as illegal blames,
'Tis equity, you bitch, replies my Lord Kames;[8]
This cause, cries Hailes,[9] to judge I can't pretend,
For Justice, I see, wants an _e_ at the end.
Lord Coalston[10] expressed his doubts and his fears,
And Strichen[11] then in his weel weels and O dears;
This cause much resembles that of M'Harg,
And should go the same way, says Lordy Barjarg.[12]
Let me tell you, my Lords, this cause is no joke;
Says with a horse laugh my Lord Elliock[13]
To have read all the papers I pretend not to brag,
Says my Lord Gardenstone[14] with a snuff and a wag.
Up rose the President,[15] and an angry man was he,
To alter this judgment I never can agree;
The east wing said yes, and the west wing cried not,
And it carried ahere by my Lord's casting vote.
This cause being somewhat knotty and perplext,
Their Lordships not knowing what they'd determine next;
And as the session was to rise so soon,
They superseded extract till the 12th of June.
PART SECOND
Having lost it, so now we prepare for the summer,
And on the 12th of June presented a reclaimer;
But dreading a refuse, we gave Dundas[16] a fee,
And though it run nigh it was carried to see.