parentage to be Procurator Fiscal of his county, once got a sharp retort
from a witness in Court. It was a case of law-burrows--well known in
Scotland--which requires a person to give security against doing
violence to another. A lady had assaulted a priest who in the discharge
of his duty had been visiting her husband--a member of his flock. The
lady was herself a Protestant, and suspected the reverend gentleman of
designs on her husband's property for behoof of his Church. The witness
in the box was prepared on every point, and the following dialogue
ensued--P.F.: "Who was your father?" Lady: "My father was a gentleman."
P.F.: "Yes, but who was he?" Lady: "He was a good man and much
respected, although he didn't make such a noise in the world as yours."
The P.F.'s father had been the town crier.
Perhaps it was to the same lawyer who asked the question of a labouring
man: "Are you the husband of the previous witness?" and got the answer:
"I dinna ken onything aboot the previous witness, but if it was Mrs.
----, a'm her man."
* * * * *
The macer who calls the cases coming before the judges in Court was in
older days an interesting personality. Lord Cockburn recalls the time
when this duty was performed by the "crier" putting his head out of a
small window high up in the wall of the Parliament House and shouting
down to the counsel and agents assembled below him. Now it is performed
from a raised dais on the floor of the hall, and it is no joke when the
macer has to call in stentorian tones such a case as "Dampskibsselskabet
Danmary _v._ John Smith." Learned members of the Faculty approach such a
difficulty otherwise. During "motions" one day an astute counsel said,
"In number 11 of your lordship's roll." "What did you call it?" inquired
the judge. "I called it number 11," naïvely replied counsel. The case
was "Fiskiveidschlutafjelagid Island _v._ Standard Fishing Company."
* * * * *
The administration of the oath in Courts of Justice is apt to become
perfunctory, and some sheriffs shorten the formula, so that it is
administered somewhat after this fashion: "I swearbalmitygod, that I
will tell the truth, the wholetruth, anothingbuthetruth." There is one
sheriff more punctilious, and recently he administered the oath to a
female witness, making her recite it in sections after him. "I swear by
Almighty God" (pause). Witness: "I swear by Almighty God."--"As I shall
answer to God." Witness: "As I shall answer to God."--"At the Great Day
of Judgment." The witness stumbled over this clause, and the sheriff had
to repeat it twice. As she ran more glibly over the concluding words,
the sheriff remarked: "It's extraordinary how many people come to this
Court who seem never to have heard of that great occasion."
This is what took place in a Glasgow Court. Sheriff: "Repeat this after
me, 'I swear by Almighty God.'" Witness: "I swear by Almighty God."
Sheriff: "I will tell the truth." Witness: "I will tell the truth."
Sheriff: "The whole truth." Witness: "I HOPE so!"
In Edinburgh Sheriff Small Debt Court the oath was administered to a
witness who was dull of hearing. "I swear by Almighty God," said the
sheriff. The witness put his hollowed hand to his ear and asked: "Wha
dae ye sweer by?" Many Court reporters have heard a witness swear to
tell "the truth, the whole truth, and anything but the truth"; and one
old lady (mistaking certain words recited by the judge) affirmed her
determination to tell the truth "with a great deal of judgment."
* * * * *
As we indicated at the beginning of this volume, stories of wit and
humour from the ranks of agents in the legal profession are much rarer
than in those of the Bench and the Bar. From the _Court of Session
Garland_ we quote the following relating to a worthy practitioner in the
days when Councillor Pleydell played "high jinks" in his favourite
tavern.
In old times some stray agents in Scotland might be found who were not
particularly distinguished for professional attainments, and who
sometimes could not "draw" a paper as it is termed. One of these
worthies was impressed with the idea that his powers were equal to the
preparation of a petition for the appointment of a factor. His clerk was
summoned, pens, ink, and paper placed before him, and the process of
dictation commenced: "Unto the Right Honourable." "Right Honourable,"
echoed the clerk. "The Lords of Council and Session."--"Session,"
continued the scribe--"the Petition of Alexander Macdonald, tenant in
Skye--Skye--humbly sheweth--sheweth." "Stop, John, read what I've
said."--"Yes, sir. 'Unto the Right Honourable the Lords of Council and
Session the Petition of Alexander Macdonald, tenant in Skye, humbly
sheweth.'"--"Very well, John, very well. Where did you stop?"--"Humbly
sheweth--that the petitioner--petitioner"--here a pause for a
minute--"that the petitioner. It's down, sir." Here the master got up,
walked about the room, scratched his head, took snuff, but in vain; the
inspiration had fled with the mysterious word "petitioner." The clerk
looked up somewhat amazed that his master had got that length, and at
last ventured to suggest that the difficulty might be got over. "How,
John?" exclaimed his master. "As you have done the most important part,
what would you say, sir, to send the paper to be finished by Mr. M----
with a guinea?"--"The very thing, John, tak' the paper to Mr. M----,
and as we've done the maist fickle pairt of the work he's deevilish weel
aff wi' a guinea."
We are indebted to the author of that capital collection of Scottish
anecdote, _Thistledown_, for the following story, as illustrating one of
the many humorous attempts to get the better of the law, and one in
which the lawyer was "hoist with his own petard." A dealer having hired
a horse to a lawyer, the latter, either through bad usage or by
accident, killed the beast, upon which the hirer insisted upon payment
of its value; and if it was not convenient to pay costs, he expressed
his willingness to accept a bill. The lawyer offered no objection, but
said he must have a long date. The hirer desired him to fix his own
time, whereupon the writer drew a promissory note, making it payable at
the day of judgment. An action ensued, when in defence, the lawyer asked
the judge to look at the bill. Having done so, the judge replied: "The
bill is perfectly good, sir; and as this is the day of judgment, I
decree that you pay to-morrow."
Joseph Gillon was a well-known Writer to the Signet early in the
nineteenth century. Calling on him at his office one day, Sir Walter
Scott said, "Why, Joseph, this place is as hot as an oven."--"Well,"
quoth Gillon, "and isn't it here that I make my bread?"
A celebrated Scottish preacher and pastor was visiting the house of a
solicitor who was one of his flock, but had a reputation of indulging
in sharp practice. The minister was surprised to meet there two other
members of his flock whose relations with the solicitor were not at the
time known to be friendly or otherwise. In course of conversation the
solicitor, alluding to some disputed point, appealed to the minister:
"Doctor, these are members of your flock; may I ask whether you look on
them as black or as white sheep?"--"I don't know," answered the
minister, "whether they are black or white sheep; but this I know, that
if they are long here they are pretty sure to be _fleeced_."
_Apropos_ of this story is the one of a Scottish countrywoman who
applied to a respectable solicitor for advice. After detailing all the
circumstances of the case, she was asked if she had stated the facts
exactly as they had occurred. "Ou ay, sir," rejoined the applicant; "I
thought it best to tell you the plain truth; you can put the lees till't
yoursel'."
* * * * *
THE LAWYER'S TOAST
At a dinner of a Scots Law Society, the president called upon an old
solicitor present to give as a toast the person whom he considered the
best friend of the profession. "Then," said the gentleman very slyly,
"I'll give you 'The Man who makes his own will.'"
CHAPTER SEVEN
THE AMERICAN BENCH & BAR
"Going tew law is like skinning a new milch cow for the hide
and giving the meat tew the lawyers."
JOSH BILLINGS.
"Oh, sir, you understand a conscience, but not law."
MASSINGER: _The Old Law_.
CHAPTER SEVEN
THE AMERICAN BENCH & BAR
The Rev. H. R. Haweis has defined "humour as the electric atmosphere,
wit as the flash. A situation provides atmospheric humour, and with the
culminating point of it comes the flash." This definition is peculiarly
applicable to the humour of the Bench and Bar when the situation
invariably provides the atmosphere for the wit. Not less so is this the
case in American Courts than in British. Before Chief Justice Parsons
was raised to the Bench, and when he was the leading lawyer of America,
a client wrote, stating a case, requesting his opinion upon it, and
enclosing twenty dollars. After the lapse of some time, receiving no
answer, he wrote a second letter, informing him of his first
communication. Parsons replied that he had received both letters, had
examined the case and formed his opinion, but somehow or other "it stuck
in his throat." The client understood this hint, sent him one hundred
dollars, and received the opinion.
[Illustration: THEOPHILUS PARSONS, CHIEF JUSTICE OF THE SUPREME COURT OF
MASSACHUSETTS.]
He was engaged in a heavy case which gave rise to many encounters
between himself and the opposing counsel, Mr. Sullivan. During Parson's
speech Sullivan picked up Parson's large black hat and wrote with a
piece of chalk upon it: "This is the hat of a d--d rascal." The lawyers
sitting round began to titter, which called attention to the hat, and
the inscription soon caught the eye of Parsons, who at once said: "May
it please your honour, I crave the protection of the Court, Brother
Sullivan has been stealing my hat and writing his own name upon it."
Parsons was considered a strong judge, and somewhat overbearing in his
attitude towards counsel. One day he stopped Dexter, an eminent
advocate, in the middle of his address to the jury, on the ground that
he was urging a point unsupported by any evidence. Dexter hastily
observed, "Your honour, did you argue your own cases in the way you
require us to do?"--"Certainly not," retorted the judge; "but that was
the judge's fault, not mine."
Patrick Henry, "the forest-born Demosthenes," as Lord Byron called him,
was defending an army commissary, who, during the distress of the
American army in 1781, had seized some bullocks belonging to John Hook,
a wealthy Scottish settler. The seizure was not quite legal, but Henry,
defending, painted the hardships the patriotic army had to endure.
"Where was the man," he said, "who had an American heart in his bosom
who would not have thrown open his fields, his barbs, his cellars, the
doors of his house, the portals of his breast, to have received with
open arms the meanest soldier in that little band of famished patriots?
Where is the man? _There_ he stands; and whether the heart of an
American beats in his bosom, you gentlemen are to judge." He then
painted the surrender of the British troops, their humiliation and
dejection, the triumph of the patriot band, the shouts of victory, the
cry of "Washington and liberty," as it rang and echoed through the
American ranks, and was reverberated from vale to hill, and then to
heaven. "But hark! What notes of discord are these which disturb the
general joy and silence, the acclamations of victory; they are the notes
of _John Hook_, hoarsely bawling through the American camp--'Beef! beef!
beef!'"
* * * * *
It is sometimes imagined that eloquent oratory is everything required of
a good advocate, and certainly this idea must have been uppermost in the
minds of the young American counsel who figure in the following stories.
A Connecticut lawyer had addressed a long and impressive speech to a
jury, of which this was his peroration: "And now the shades of night had
wrapped the earth in darkness. All nature lay clothed in solemn thought,
when the defendant ruffians came rushing like a mighty torrent from the
mountains down upon the abodes of peace, broke open the plaintiff's
house, separated the weeping mother from the screeching infant, and
carried off--my client's rifle, gentlemen of the jury, for which we
claim fifteen dollars."
There was good excuse for adopting the "high-falutin" tone in the
second instance, that it was the lawyer's first appearance. He was
panting for distinction, and determined to convince the Court and jury
that he was "born to shine." So he opened: "May it please the Court and
gentlemen of the jury--while Europe is bathed in blood, while classic
Greece is struggling for her rights and liberties, and trampling the
unhallowed altars of the bearded infidels to dust, while the chosen few
of degenerate Italy are waving their burnished swords in the sunlight of
liberty, while America shines forth the brightest orb in the political
sky--I, I, with due diffidence, rise to defend the cause of this humble
hog thief."
And this extract from a barrister's address "out West," some fifty years
ago, surely could not fail to influence the jury in his client's behalf.
"The law expressly declares, gentlemen, in the beautiful language of
Shakespeare, that where a doubt of the prisoner exists, it is your duty
to fetch him in innocent. If you keep this fact in view, in the case of
my client, gentlemen, you will have the honour of making a friend of him
and all his relations, and you can allus look upon this occasion and
reflect with pleasure that you have done as you would be done by. But
if, on the other hand, you disregard the principles of law and bring him
in guilty, the silent twitches of conscience will follow you all over
every fair cornfield, I reckon, and my injured and down-trodden client
will be apt to light on you one of these dark nights as my cat lights on
a saucerful of new milk."
* * * * *
In a rural Justice Court in one of the Southern States the defendant in
a case was sentenced to serve thirty days in jail. He had known the
judge from boyhood, and addressed him as follows: "Bill, old boy, you're
gwine to send me ter jail, air you?"--"That's so," replied the judge;
"have you got anything to say agin it?"--"Only this, Bill: God help you
when I git out."
Daniel Webster was a clever and successful lawyer, who was engaged in
many important causes in his day. In a case in one of the Virginian
Courts he had for his opponent William Wirt, the biographer of Patrick
Henry, a work which was criticised as a brilliant romance. In the
progress of the case Webster brought forward a highly respectable
witness, whose testimony (unless disproved or impeached) settled the
case, and annihilated Wirt's client. After getting through his
testimony, Webster informed his opponent, with a significant expression,
that he had now closed his evidence, and his witness was at Wirt's
service. The counsel for defence rose to cross-examine, but seemed for a
moment quite perplexed how to proceed, but quickly assuming a manner
expressive of his incredulity as to the facts elicited, and coolly
eyeing the witness, said: "Mr. ----, allow me to ask you whether you
have ever read a work called _Baron Munchausen_?" Before the witness had
time to answer, Webster rose and said, "I beg your pardon, Mr. Wirt, for
the interruption, but there was one question I forgot to ask my witness,
and if you will allow me that favour I promise not to interrupt you
again." Mr. Wirt in the blandest manner replied, "Yes, most certainly";
when Webster in the most deliberate and solemn manner, said, "Sir, have
you ever read Wirt's _Life of Patrick Henry_?" The effect was so
irresistible that even the judge could not control his rigid features.
Wirt himself joined in the momentary laugh, and turning to Webster said:
"Suppose we submit this case to jury without summing up"; which was
assented to, and Mr. Webster's client won the case.
* * * * *
In the year 1785 an Indian murdered a Mr. Evans at Pittsburg. When,
after a confinement of several months, his trial was to be brought on,
the chiefs of his nation were invited to be present at the proceedings
and see how the trial would be conducted, as well as to speak in behalf
of the accused, if they chose. These chiefs, however, instead of going
as wished for, sent to the civil officers of that place the following
laconic answer: "Brethren! you inform us that ----, who murdered one of
your men at Pittsburg, is shortly to be tried by the laws of your
country, at which trial you request that some of us may be present.
Brethren! knowing ---- to have been always a very bad man, we do not
wish to see him. We therefore advise you to try him by your laws, and to
hang him, so that he may never return to us again."
* * * * *
There are many stories of the smart repartee of white and coloured
witnesses and prisoners appearing before American judges, but the most
of them bear such strong evidence of newspaper staff manufacture as to
be unworthy of more permanent record than the weekly "fill up" they were
designed for. Of the more reputable we select a few.
Judge Emory Speer, of the southern district of Georgia, had before his
Court a typical charge of illicit distilling. "What's your name?"
demanded the eminent judge. "Joshua, jedge," drawled the prisoner.
"Joshua who made the sun stand still?" smiled the judge, in amusement at
the laconic answer. "No, sir. Joshua who made the moon shine," answered
the quick-witted mountaineer. And it is needless to say that Judge Speer
made the sentence as light as he possibly could, saying to his friends
in telling the story that wit like that deserved some recompense.
A newly qualified judge in Tennessee was trying his first criminal
case. The accused was an old negro charged with robbing a hen-coop. He
had been in Court before on a similar charge, and was then acquitted.
"Well, Tom," began the judge, "I see you're in trouble again."--"Yes,
sah," replied the negro. "The last time, jedge, you was ma
lawyer."--"Where is your lawyer this time?" asked the judge. "I ain't
got no lawyer this time," answered Tom. "I'm going to tell the truth."
Judge M. W. Pinckney tells the story of a coloured man, Sam Jones by
name, who was on trial at Dawson City, for felony. The judge asked Sam
if he desired the appointment of a lawyer to defend him. "No, sah," Sam
replied, "I'se gwine to throw myself on the ignorance of the cote."
A Southern lawyer tells of a case that came to him at the outset of his
career, wherein his principal witness was a negro named Jackson,
supposed to have knowledge of certain transactions not at all to the
credit of his employer, the defendant. "Now, Jackson," said the lawyer,
"I want you to understand the importance of telling the truth when you
are put on the stand. You know what will happen, don't you, if you don't
tell the truth?"--"Yessir," was Jackson's reply; "in dat case I expects
our side will win de case."
When Senator Taylor was Governor of Tennessee, he issued a great many
pardons to men and women confined in penitentiaries or jails in that
State. His reputation as a "pardoning Governor" resulted in his being
besieged by everybody who had a relative incarcerated. One morning an
old negro woman made her way into the executive offices and asked Taylor
to pardon her husband, who was in jail. "What's he in for?" asked the
Governor. "Fo' nothin' but stealin' a ham," explained the wife. "You
don't want me to pardon him," argued the Governor. "If he got out he
would only make trouble for you again."--"'Deed I does want him out ob
dat place!" she objected. "I needs dat man."--"Why do you need him?"
inquired Taylor, patiently. "Me an' de chillun," she said, seriously,
"needs another ham."
* * * * *
Etiquette in the matter of dress was, in early days, of little or no
consequence with American lawyers, especially in the Southern States. In
South Carolina this neglect of the rigid observance of English rules on
the part of Mr. Petigru, a well-known barrister, gave rise to the
following passage between the Bench and the Bar.
"Mr. Petigru," said the judge, "you have on a light coat. You can't
speak."
"May it please the Bench," said the barrister, "I conform strictly to
the law. Let me illustrate. The law says the barrister shall wear a
black gown and coat, and your honour thinks that means a black coat?"
"Yes," said the judge.
"Well, the law also says the sheriff shall wear a cocked hat and sword.
Does your honour hold that the sword must be cocked as well as the hat?"
He was permitted to go on.
* * * * *
In the United States, as elsewhere, the average juryman is not very well
versed in the fine distinctions of the law. On these it is the judge's
duty to instruct him. What guidance the jury got from the explanation of
what constitutes murder is not quite clear to the lay mind, however
satisfactory it may have appeared to the judge.
"Gentlemen," he stated, with admirable lucidity, "murder is where a man
is murderously killed. The killer in such a case is a murderer. Now,
murder by poison is just as much murder as murder with a gun, pistol, or
knife. It is the simple act of murdering that constitutes murder in the
eye of the law. Don't let the idea of murder and manslaughter confound
you. Murder is one thing; manslaughter is quite another. Consequently,
if there has been a murder, and it is not manslaughter, then it must be
murder. Don't let this point escape you."
"Self-murder has nothing to do with this case. According to Blackstone
and other legal writers, one man cannot commit _felo-de-se_ upon
another; and this is my opinion. Gentlemen, murder is murder. The murder
of a brother is called fratricide; the murder of a father is called
parricide, but that don't enter into this case. As I have said before,
murder is emphatically murder."
"You will consider your verdict, gentlemen, and make up your minds
according to the law and the evidence, not forgetting the explanation I
have given you."
* * * * *
There is a delightful frankness about the address submitted to the
electors by a candidate who solicited their support for the position of
sheriff in one of the provinces of the United States, but its honesty
cannot be questioned:
"Gentlemen, I offer myself a candidate for sheriff; I have been a
revolutionary officer; fought many bloody battles, suffered hunger,
toil, heat; got honourable scars, but little pay. I will tell you
plainly how I shall discharge my duty should I be so happy as to obtain
a majority of your suffrages. If writs are put into my hands against any
of you, I will take you if I can, and, unless you can get bail, I will
deliver you over to the keeper of the gaol. Secondly, if judgments are
found against you, and executions directed to me, I will sell your
property as the law directs, without favour or affection; if there be
any surplus money, I will punctually remit it. Thirdly, if any of you
should commit a crime (which God forbid!) that requires capital
punishment, according to law, I will hang you up by the neck till you
are dead."
* * * * *
[Illustration: RUFUS CHOATE, LEADER OF THE MASSACHUSETTS BAR.]
Rufus Choate was designated _the_ leader of the Massachusetts Bar--a
distinctive title which long outlived him and marked the sense of esteem
in which he was held by his brother lawyers, as well as indicating his
outstanding ability and success.