THE SEVEN LAMPS
OF ADVOCACY
WHAT THE JUDGE THOUGHT
By HIS HONOUR JUDGE EDWARD PARRY. Demy 8vo. Cloth. 21s. net
(_Third Impression_)
T. FISHER UNWIN, LTD., LONDON
THE SEVEN LAMPS
OF ADVOCACY _By
His Honour Judge_ EDWARD
ABBOTT PARRY
T. FISHER UNWIN LTD
LONDON: ADELPHI TERRACE
_First published in 1923_
(_All rights reserved_)
TO
THE NORTHERN CIRCUIT
WHERE I LEARNED
THESE THINGS
CONTENTS
PAGE
I. THE LAMP OF HONESTY 11
II. THE LAMP OF COURAGE 23
III. THE LAMP OF INDUSTRY 37
IV. THE LAMP OF WIT 49
V. THE LAMP OF ELOQUENCE 61
VI. THE LAMP OF JUDGMENT 75
VII. THE LAMP OF FELLOWSHIP 93
I
THE LAMP
OF HONESTY
I
THE LAMP OF HONESTY
The great advocate is like the great actor: he fills the stage for
his span of life, succeeds, gains our applause, makes his last bow,
and the curtain falls. Nothing is so elusive as the art of acting,
unless indeed it be the sister art of advocacy. You cannot say that the
methods of Garrick, Kean or Irving, Erskine, Hawkins or Russell, were
the right methods or the only methods, or even that they were the best
methods of practising their several arts; you can only say that they
succeeded in their day, and that their contemporaries acclaimed them as
masters.
Inasmuch as their methods were often new and startling to their own
generation, the young student of acting or advocacy is eager to believe
that there are no methods and no technique to learn, and no school in
which to graduate. Youth is at all times prone to act on the principle
that there are no principles, that there is no one from whom it can
learn, and nothing to teach. Any one, it seems, can don a wig and
gown, and thereby become an advocate. Yet there are principles of
advocacy; and if a few generations were to forget to practise these,
it would indeed be a lost art. The student of advocacy can draw
inspiration and hope from the stored-up experience of his elders. He
can trace in the plans and life-charts of the ancients the paths along
which they strode, journeying towards Eldorado. True, these figures
of forgotten advocates are dim and obscure--only to be painfully seen
through the dusty gauzes of forgotten years, pictured for us in drowsy
voluminous memoirs, or baldly reported in mouldering law reports; but
if we search these records diligently we gradually discern a race of
worthy men--see them haunting the old libraries, pacing the ancient
halls with their clients, proud of the traditions of their great
profession--advocates--advocates all.
It is in an endeavour to recapture something of the lives of these
great ones, and the principles upon which they built their success,
that I have struggled through forbidding masses of decaying biography
in hopes to catch a faint whisper here and there of the triumphant
works and days of my professional forbears.
For a race of moderns, that, maybe, care for none of these things,
I have lighted again the old lamps which burned so brightly in the
days that are gone, which I myself have seen lighting the darkness of
our courts, and guiding the footsteps of the judges in the paths of
justice and truth. For without a free and honourable race of advocates
the world will hear little of the message of justice. Advocacy is
the outward and visible appeal for the spiritual gift of justice.
The advocate is the priest in the temple of justice, trained in the
mysteries of the creed, active in its exercises. For this reason Wyclif
in his translation of I John ii. 1 sanctifies the word in the text:
“We haue auoket anentis the fadir, Jhesu Crist just.” Modern versions
retain “advocate,” but unhappily substitute “righteous” for “just”.
Advocacy connotes justice. Upon the altars of justice the advocate must
keep his seven lamps clean and burning brightly. In the centre of these
must ever be the lamp of honesty.
The English Bar is a society of advocates, though, as Blackstone tells
us, we generally call them counsel. The Scots retain the name in their
Faculty of Advocates. The word must be insisted upon for its ancientry
and meaning. The order of advocates is, in D’Aguesseau’s famous phrase,
“as noble as virtue.” Far back in the Capitularies of Charlemagne
it was ordained of the profession of advocates “that nobody should
be admitted therein but men mild, pacific, fearing God, and loving
justice, upon pain of elimination.” So may it continue, world without
end.
From the earliest, Englishmen have understood that advocacy is
necessary to justice, and honesty is essential to advocacy. The
thirteenth century _Mirrour of Justices_ may, as modern jurists hold,
be a contemptible legal compilation. It is said to have been written
by one Andrew Horn, a fishmonger; and what could he have known, say
the learned ones, about the origin and history of legal affairs?
Nevertheless, to the reader of to-day the views of the man in the
street, the common citizen of a bygone age, about the place in the
world of the advocate is more precious than many black-letter folios of
crabbed juridical learning.
“Some there be,” says our fishmonger very shrewdly, “who know not
how to state their causes or to defend them in court, and some who
cannot, and therefore are pleaders necessary; so that what plaintiffs
and others cannot or know not how to do by themselves they may do by
their serjeants, proctors, or friends. Pleaders are serjeants wise in
the law of the realm who serve the commonality of the people, stating
and defending for hire actions in court for those who have need of
them. Every pleader who acts in the business of another should have
regard to four things:--First, that he be a person receivable in court,
that he be no heretic, nor excommunicate, nor criminal, nor man of
religion, nor woman, nor ordained clerk above the order of sub-deacon,
nor beneficed clerk with the cure of souls, nor infant under twenty-one
years of age, nor judge in the same cause, nor open leper, nor man
attainted of falsification against the law of his office. Secondly,
that every pleader is bound by oath that he will not knowingly maintain
or defend wrong or falsehood, but will abandon his client immediately
that he perceives his wrong-doing. Thirdly, that he will never have
recourse to false delays or false witnesses, and never allege, proffer,
or consent to any corruption, deceit, lie, or falsified law, but
loyally will maintain the right of his client, so that he may not
fail through his folly or negligence, nor by default of him, nor by
default of any argument that he could urge; and that he will not by
blow, contumely, brawl, threat, noise, or villain conduct disturb any
judge, party, serjeant, or other in court, nor impede the hearing or
the course of justice. Fourthly, there is the salary, concerning which
four points must be regarded--the amount of the matter in dispute,
the labour of the serjeant, his value as a pleader in respect of his
(learning), eloquence, and repute, and lastly the usage of the court.”
Note how from the earliest days the advocate may in no way maintain or
defend wrong or falsehood. It is the right of his client he is there
to uphold, and the right only. Nevertheless, although an advocate is
bound by obligations of honour and probity not to overstate the truth
of his client’s case, and is forbidden to have recourse to any artifice
or subterfuge which may beguile the judge, he is not the judge of the
case, and within these limits must use all the knowledge and gifts he
possesses to advance his client’s claims to justice.
Many good men have been troubled with the thought that advocacy implied
a certain want of honesty. Boswell asked Doctor Johnson whether he
did not think “that the practice of the law in some degree hurt the
nice feeling of honesty?” To whom the doctor replied: “Why no, Sir,
if you act properly. You are not to deceive your clients with false
representations of your opinion: you are not to tell lies to a judge.”
_Boswell_: “But what do you think of supporting a cause which you know
to be bad?” _Johnson_: “Sir, you do not know it to be good or bad
till the judge determines it. I have said that you are to state facts
fairly; so that your thinking, or what you call knowing, a cause to be
bad must be from reasoning, must be from your supposing your arguments
to be weak and inconclusive. But, Sir, that is not enough. An argument
which does not convince yourself, may convince the judge to whom you
urge it: and if it does convince him, why, then, Sir, you are wrong,
and he is right. It is his business to judge; and you are not to be
confident in your own opinion that a cause is bad, but to say all you
can for your client, and then hear the Judge’s opinion.” _Boswell_:
“But, Sir, does not affecting a warmth when you have no warmth, and
appearing to be clearly of one opinion when you are in reality of
another opinion, does not such dissimulation impair one’s honesty? Is
there not some danger that a lawyer may put on the same mask in common
life, in the intercourse with his friends?” _Johnson_: “Why no, Sir,
everybody knows you are paid for affecting warmth for your client; and
it is, therefore, properly no dissimulation: the moment you come from
the bar you resume your usual behaviour. Sir, a man will no more carry
the artifice of the bar into the common intercourse of society, than
a man who is paid for tumbling upon his hands will continue to tumble
upon his hands when he should walk on his feet.”
I like the rough English common-sense of this; but the Irishman in
the dock had an inspired vision of the same truth when, in answer
to the Clerk of the Crown, who called upon him with the familiar
interrogatory, “Guilty or Not Guilty?” he replied with a winning smile,
“And how can I tell till I hear the evidence?”
When Lord Brougham, at a dinner to M. Berryer, claimed in his speech
that the advocate should reckon everything as subordinate to the
interests of his client, Lord Chief Justice Cockburn, “feeling that our
guest might leave us with a false impression of our ideals,” set forth
his views of an advocate’s duty, concluding with these memorable words:
“The arms which an advocate wields he ought to use as a warrior, not as
an assassin. He ought to uphold the interests of his client _per fas_,
and not _per nefas_. He ought to know how to reconcile the interests of
his clients with the eternal interests of truth and justice.”
The best advocates of all generations have been devotees of honesty.
Abraham Lincoln founded his fame and success in the profession on what
some called his “perverse honesty.” On his first appearance in the
Supreme Court of Illinois he addressed the court as follows: “This is
the first case I have ever had in this court, and I have therefore
examined it with great care. As the court will perceive by looking at
the abstract of the record, the only question in the case is one of
authority. I have not been able to find any authority to sustain my
side of the case, but I have found several cases directly in point on
the other side. I will now give these authorities to the court, and
then submit the case.”
There have been advocates who regard such a course as quixotic. The
late Joshua Williams was asked whether, if an advocate knows of a
decided case in point against him which he has reason to believe is
not known to the other side, he is bound to reveal it, and gave it
as his opinion that “in principle this is no part of his duty as an
advocate.” It must be remembered that this opinion was given when a
host of cases were decided against their merits on purely technical
points of law; but there is no doubt what the practice ought to be, and
what among English advocates the practice is.
If an advocate knows the law to be _x_, it is not honest to lead the
court to believe that it is _y_. Whether the advocate does this by
directly mis-stating the law, or by deliberately omitting to state it
fully within the means of his knowledge, it is equally without excuse,
and dims the lamp of honesty.
For the advocate must remember that he is not only the servant of the
client, but the friend of the court, and honesty is as essential to
true friendship as it is to sound advocacy.
II
THE LAMP
OF COURAGE
II
THE LAMP OF COURAGE
Advocacy needs the “king-becoming graces: devotion, patience, courage,
fortitude.” Advocacy is a form of combat where courage in danger is
half the battle. Courage is as good a weapon in the forum as in the
camp. The advocate, like Cæsar, must stand upon his mound facing the
enemy, worthy to be feared, and fearing no man.
Unless a man has the spirit to encounter difficulties with firmness
and pluck, he had best leave advocacy alone. Richard Bethell, Lord
Westbury, in early life took for his motto: “_De l’audace et encore
de l’audace, et toujours de l’audace_.” In advising on a case he was
always clear and direct, saying that he was “paid for his opinion, not
for his doubts.” Charles Hatton, writing as a layman of Jeffreys in
his early days at the bar, shrewdly notes his best quality: “He hath
in perfection the three chief qualifications of a lawyer: Boldness,
Boldness, Boldness.” A modern advocate kindly reproving a junior for
his timidity of manner wisely said: “Remember it is better to be strong
and wrong than weak and right.”
The belief that success in advocacy can be attained by influence,
apart from personal qualifications, is ill-founded. There was never
a youngster with better backing than Francis North, afterwards Lord
Keeper to Charles II., yet, as his biographer says, “observe his
preparatives,” his earnest attendances at moots, his diligent waiting
in that “dismal hole” the “corner chamber, one pair of stairs in Elm
Court.”
In the same way his younger brother, Roger, though born in the ermine,
so to speak, had to plod his way up like any other junior. It is good
to be the brother of a Lord Chancellor, but it does not make a man an
advocate.
Roger North’s autobiography is full of interest to the student of
advocacy. His memory of his first appearance is vivid and entertaining.
“I was immediately called,” he writes, “to the Bar, _ex gratiâ_, not
having standing, although I had performed such exercises as the house
required, save a few. My first flight in practice was the opening a
declaration at _Nisi Prius_ in Guildhall, under my brother, which
was a crisis like the loss of a maidenhead; but with blushing and
blundering I got through it, and afterwards grew bold and ready at such
a formal performance; but it was long ere I adventured to ask a witness
a question.”
Roger North would never have attained the eminence he did in his
profession by merely hanging on to the gown of his greater brother.
Hard work and dogged courage, not patronage, earned him the dignities
he achieved. The description of his early beginnings is full of
encouragement for the young advocate. “During my practice under Hale,”
he says, “at the King’s Bench I was raw, and not at all quaint and
forward as some are, so that I did but learn experience and discover my
own defects, which were very great. I was a plant of a slow growth, and
when mature but slight wood, and of a flashy fruit. But my profession
obliged me to go on, which I resolved to do against all my private
discouragements, and whatever absurdities and errors I committed in
public I would not desist, but forgot them as fast as I could, and took
more care another time. My comfort was, if some, all did not see my
failings, and those upon whom I depended, the attorneys and suitors,
might think the pert and confident forwardness I put on might produce
somewhat of use to them.”
North held the sound opinion that “he who is not a good lawyer before
he comes to the Bar, will never be a good one after it.” It is very
true that learning begets courage, and wise self-confidence can only be
founded on knowledge. The long years of apprenticeship, the studious
attention to “preparatives,” are, to the advocate, like the manly
exercises of the young squire that enabled the knight of old to earn
his spurs on the field of battle. In no profession is it more certain
that “knowledge is power,” and when the opportunity arrives, knowledge,
and the courage to use it effectively, proclaim the presence of the
advocate.
The best instance of what is meant perhaps may be found in Sir John
Hollams’s account of the first appearance of Mr. Benjamin. He was a
great lawyer before he addressed the court, but he sat down a great
advocate. It was in a case which came on for hearing before Lord
Justice James, then Vice-Chancellor, and “it appeared to be generally
thought that, as usual at the time, a decree would be made directing
inquiries in chambers. The matter was being so dealt with when Mr.
Benjamin, then unknown to any one in Court, rose from the back seat
in the Court. He had not a commanding presence, and at that time had
rather an uncouth appearance. He, in a stentorian voice, not in accord
with the quiet tone usually prevailing in the Court of Chancery,
startled the Court by saying, ‘Sir, notwithstanding the somewhat
off-hand and supercilious manner in which this case has been dealt with
by my learned friend Sir Roundell Palmer, and to some extent acquiesced
in by my learned leader Mr. Kay, if, sir, you will only listen to
me--if, sir, you will only listen to me’ (repeating the same words
three times, and on each occasion raising his voice), ‘I pledge myself
you will dismiss this suit with costs.’ The Vice-Chancellor and Sir
Roundell Palmer, and indeed all the Court, looked at him with a kind of
astonishment, but he went on without drawing rein for between two and
three hours. The Court became crowded, for it soon became known that
there was a very unusual scene going on. In the end the Vice-Chancellor
did dismiss the suit with costs, and his decision was confirmed on
appeal.”
There have been many advocates whose courage was founded on humour
rather than knowledge, and who have successfully asserted their
independence in the face of an impatient or overbearing Bench through
the medium of wit, where mere wisdom might have failed in effect.
Of such was Tom Jones, who startled Mr. Justice Byles into indignant
attention by opening his case with bold impertinence: “No one, my
lords, who looks at this case with common fairness and honesty, can
hesitate for a moment in declaring that there ought to be a new trial.”
Byles observed, “This is rather strong language to use to us, Mr.
Jones. I hope you think that we, at the least, are commonly fair and
honest.”
“We shall see, my lord,” said Tom; “we shall see.”
Serjeant Robinson tells us a further good story of Tom’s refusal to be
hustled by the Bench.
“Our friend Tom Jones,” he writes, “was a little lengthy sometimes in
the exposition of his client’s rights, and one day the chief baron said
to him, ‘Mr. Jones, this case has occupied a great deal of time, and we
have a very long list of cases to get through.’
“‘My lord,’ said Tom, ‘I have carefully looked through that list, and I
did not find there was a single cause in which I or my client was in
the slightest degree interested.’”
But these sallies should never degenerate into mere incivility or
abuse, in which there is little real courage, since a judge of sense
will always refrain, if it be at all possible, from reply to such
attacks, which only injure the reputation of the Bar and destroy the
reputation of the advocate.
In the early days of American Sessions a certain judge was violently
attacked by a young and very impudent attorney. To the manifest
surprise of everybody present, the judge heard him quite through as
though unconscious of what was said, and made no reply. After the
adjournment of the day, and all had assembled at the inn where the
judge and many of the attorneys had their lodgings, one of the company,
referring to the scene in court, asked the judge why he did not rebuke
the impertinent fellow.
“Permit me,” said the judge, loud enough to call the attention of all
the company, among whom was the fellow in question--“permit me to tell
you a story. My father, when we lived down in the country, had a dog--a
mere puppy, I may say. Well, this puppy would go out every moonlight
night and bark at the moon for hours together.” Here the judge paused,
as if he had done with his story.
“Well, what of it?” exclaimed half-a-dozen of the audience at once.
“Oh, nothing, nothing whatever; the moon kept right on, as if nothing
had happened.”
Independence without moderation becomes licentiousness, but true
independence is an essential attribute of advocacy, and the English
Bar has never wanted men endowed with this form of true courage. The
sacrifice of the highest professional honours to the maintenance of
principle has been a commonplace in the history of English advocates,
and the names of the living could be added if need be to those who have
passed away, leaving us this clean heritage as example.
The true position of the independence of the English Bar, the right
and the duty of the advocate to appear in every case, however poor,
degraded, or wicked the party may be, is laid down once and for all in
a celebrated speech of Erskine’s in his defence of Thomas Paine, who
was indicted in 1792 for publishing the _Rights of Man_. Great public
indignation was expressed against Erskine for daring to defend Paine.
As he said in his speech, “In every place where business or pleasure
collects the public together, day after day, my name and character
have been the topics of injurious reflection. And for what? Only for
not having shrunk from the discharge of a duty which no personal
advantage recommended, and which a thousand difficulties repelled.”
He then continued, in words which the learned editor of Howell’s State
Trials emphasises by printing in capital letters, to enunciate one of
the basic principles of English advocacy:
“Little, indeed, did they know me, who thought that such calumnies
would influence my conduct: I WILL FOR EVER, AT ALL HAZARDS, ASSERT
THE DIGNITY, INDEPENDENCE, AND INTEGRITY OF THE ENGLISH BAR; WITHOUT
WHICH, IMPARTIAL JUSTICE, THE MOST VALUABLE PART OF THE ENGLISH
CONSTITUTION, CAN HAVE NO EXISTENCE. From the moment that any advocate
can be permitted to say that he will or will not stand between the
Crown and the subject arraigned in the court where he daily sits to
practise--from that moment the liberties of England are at an end. If
the advocate refuses to defend, from what he may think of the charge or
of the defence, he assumes the character of the judge; nay, he assumes
it before the hour of judgment; and, in proportion to his rank and
reputation, puts the heavy influence of perhaps a mistaken opinion into
the scale against the accused, in whose favour the benevolent principle
of English law makes all presumptions, and which commands the very
judge to be his counsel.”
Side by side with this may be set the grand example of William Henry
Seward in acting in the defence of the negro Freeman in 1846. A
horrible murder was committed. Without any provocation or desire
for plunder, Freeman killed a farmer and several of his family. He
was easily captured, when he laughed in the face of his captors and
acknowledged the crime. He was a recently emancipated slave, deaf, and
obviously insane. The sheriff had the greatest difficulty in preventing
him from being lynched. The clergyman at the victims’ funeral made a
rousing appeal for his punishment, which was printed and circulated
round the district.
Seward undertook his defence, and a storm of prejudice and passion was
directed against him to dissuade him from doing what he believed to be
his duty as an advocate. In the crowded court-house, when the judge
asked, “Will any one defend this man?” and Seward rose, and said he was
counsel for the prisoner, a murmur of indignation ran round the court.
His advocacy was of no avail to the individual, but his eloquent speech
remains a noble statement of the duty of the advocate, and a fine
example of devotion and courage in the exercise of that duty.
The whole speech is worthy of study, as it contains a glowing and
reasoned appeal for the right of the most degraded human being in a
civilised state to a real hearing of his case in a judicial court,
which can only be obtained through honest and competent advocacy.
As the yellow harvest-moon rose outside the darkening court-house his
peroration was listened to by the indignant crowd with, at least,
outward respect, and it remains a message of encouragement to the
advocates of future generations.
“In due time, gentlemen of the jury, when I shall have paid the debt
of nature, my remains will rest here in your midst with those of my
kindred and neighbours. It is very possible they may be unhonoured,
neglected, spurned! But perhaps years hence, when the passion and
excitement which now agitate this community shall have passed away,
some wandering stranger, some lone exile, some Indian, some negro, may
erect over them an humble stone, and thereon this epitaph: ‘He was
faithful.’”
These words, as he desired, are engraved on the marble over him, and he
is remembered at the American Bar as an advocate who upheld its best
traditions, and feared not to hold aloft the Lamp of Courage.
III
THE LAMP
OF INDUSTRY
III
THE LAMP OF INDUSTRY
The first task of the advocate is to learn to labour and to wait. There
never was a successful advocate who did not owe some of his prowess to
industry. From the biographies of our ancestors we may learn that the
eminent successful ones of each generation practiced at least enough
industry in their day to preach its virtues to aspiring juniors.
Work soon becomes a habit. It may not be altogether a good habit, but
it is better to wear out than to rust out. Nothing, we are told, is
impossible to industry. Certainly without industry the armoury of the
advocate will lack weapons on the day of battle.
There must be years of what Charles Lamb described with graceful
alliteration as “the dry drudgery of the desk’s dead wood” before the
young advocate can hope to dazzle juries with eloquent perorations,
confound dishonest witnesses by skilful cross-examination, and lead
the steps of erring judges into the paths of precedent.
All great advocates tell us that they have had either steady habits of
industry or grand outbursts of work. Charles Russell had a continuous
spate of energy. Many of us can remember him, tireless and active
himself, bustling into the robing-room at St. George’s Hall, Liverpool,
and finding several members of the Junior Bar standing around the fire.
“Why are you loafing about here?” he asked. “Why don’t you _do_
something?”
“We have nothing to do,” said the Junior Bar.
“Why don’t you go to the races?” he rejoined. “_Do_ something!”
Abraham Lincoln owed his sound knowledge of law to grim, zealous
industry. As a storekeeper he studied Blackstone out of shop-hours,
perched on a wood-pile or lying under a tree. On circuit, in the
bedroom of the village inn, a candle at his head and his feet
protruding over the foot-board of his bed, he lay reading law until
two in the morning, undisturbed by snoring comrades. When possible, he
would read aloud, for thus, he said, “two senses catch the idea. First,
I see what I read; second, I hear it, and can therefore remember it
better.” In after-life to every student who came near him his advice
was, “Work! work! work!”
Advocacy is indeed a life of industry. Each new success brings greater
toil. Campbell, writing home from the Oxford Circuit, describes the
weary round of his daily task. Some advocates suffer thus every day the
court sits, whilst others sit round and suffer envy.
“I ought to have got so far to-night on my way to Hereford, but we
have a long day’s work before us, and I shall be obliged to travel all
to-morrow night. You can hardly form a notion of the life of labour,
anxiety, and privation which I lead upon the circuit. I am up every
morning by six. I never get out of court till seven, eight, or nine in
the evening, and, having swallowed any indifferent fare that my clerk
provides for me at my lodgings, I have consultations and read briefs
till I fall asleep. This arises very much from the incompetence of the
judge. It is from the incompetency of judges that the chief annoyances
I have in life arise. I could myself have disposed of the causes here
in half the time the judge employed. He has tried two causes in four
days. Poor fellow, he is completely knocked up.”
An advocate must study his brief in the same way that an actor studies
his part. Success in advocacy is not arrived at by intuition. Mr.
O’Brien, in his excellent biography of Charles Russell, details an
interesting conversation with his hero which enforces this truth. He
had raised the question of an advocate succeeding by mere intuition in
picking up the threads of a case in court, when Russell interrupted him
in a characteristic phrase.
“‘That’s all nonsense,’ he said. ‘You don’t know anything by intuition.
You have to work hard and to think hard. I get some good help, as I
tell you. My mode of work is this: One of these young men reads the
brief and makes a note--a full one. I go through the note with him’
(smiling), ‘cross-examining him, if you like. Sometimes, I admit, it
may not be necessary for me to read the brief; the note may be so
complete, and the man’s knowledge of the case so exact, that I get
everything from him. But it often is--in fact, generally is--necessary
to go to the brief. You have seen me reading briefs here. I admit
that I am quick in getting at the kernel of a case, and that saves me
some trouble; but I must read the brief with my own eyes, or somebody
else’s.’
“I said, ‘Sir John Karslake went blind because he could only read his
brief with his own eyes. It is a great point to be able to read your
brief with somebody else’s eyes!’
“_Russell_--‘Well, well, well, that’s so! but it is not intuition.’
“I said, ‘It has been said that O’Connell never read his brief when he
appeared for the defendant. He made his case out of the plaintiff’s
case.’
“_Russell_--‘I don’t think that is likely; I think O’Connell knew his
case--the vital points in his case--before he went into court. There
is often a great deal in a brief which is not vital, which is not
even pertinent. I can read a brief quickly; I can take in a page at
a glance, if you like; I can throw the rubbish over easily, and come
right on the marrow of the case. But I can only do that by reading
the brief, or by the help of my friends. I learn a great deal at
consultations; I am not above taking hints from everybody, and I think
carefully over everything that is said to me’ (holding his hand up with
open palm); ‘I shut out no view. If I have a good point, it is that I
can see quickly the hinge on which the whole case turns, and I never
lose sight of it. But that is not intuition, my friend; it is work.’”
Industry in reading and book-learning may make a man a good jurist, but
the advocate must exercise his industry in the double art of speaking
and arranging his thoughts in ordered speech. He must be ready to leave
his books awhile and practise the athletics of eloquence with equal
industry.
The silver-tongued Heneage Finch advises students “to study all the
morning and talk all the afternoon.” Old Serjeant Maynard, deeply
learned in booklore as he was, described the calling of the advocate as
_ars bablativa_. Brougham told the law students of London University to
habituate themselves to talk about everything.
For “bare reading without practice pedantiseth a student, but never
makes him a clever lawyer.” Our fathers understood this better perhaps
than we do, and made provision of halls and cloisters and gardens,
where students could take exercise and discuss the mysteries of their
profession when the hours of reading were over.
Roger North tells us in his life of his brother, the Lord Keeper:
“I remember that, after the fire of the Temple, it was considered
whether the old cloister walks should be rebuilt or rather improved
into chambers; which latter had been for the benefit of the Middle
Temple. But in regard it could not be done without the consent of
the Inner house, the masters of the Middle house waited upon the then
Mr. Attorney Finch, to desire the concurrence of his society upon a
proposition of some benefit to be thrown in on that side. But Mr.
Attorney would by no means give way to it, and reproved the Middle
Templars very wittily and eloquently upon the subject of students
walking in evenings there and putting cases, ‘which,’ he said, ‘was
done in his time, as mean and low as the buildings were then, however
it comes that such a benefit to students is now made so little account
of.’ And thereupon the cloisters, by the order and disposition of Sir
Christopher Wren, were built as they now stand.”
The days of wandering in cloisters and gardens, putting cases to one’s
fellow-students, and listening to the wisdom of elders by the margin of
the fountain are, alas! not for us. But even to-day a wise youngster
should recognise that sitting in court to listen to the conduct of
cases, attendance at circuit mess and dining in Hall, where the
law-talk of seniors may still on occasion be of value--these things are
all forms of industry, for the advocate can only learn the true creed
of his faith from oral tradition.
In recent years we have wisely revived the old moots which date back
to early days when the Inns of Court were really schools of law.
Dugdale thus describes the ancient ceremony of the moot: “The pleadings
are first recited by the students, then the case heard and argued by
the barristers; and lastly by the reader elect and benchers, who all
three argue in English; but the pleadings are recited, and the case
argued by the utter barristers, in law French. The moot being ended,
all parties return to the cupboard, where the mootmen present the
benchers with a cup of beer and a slice of bread.”
Roger North also remembers that in his day, the time of Charles II.,
the custom of mooting had been discontinued for upwards of a century;
but modern wisdom brings us back to many old customs of our fathers,
and to-day all dramatic methods of education are recognised as of
greater value than dictatorial lectures.
And not only are these more social forms of industry good in
themselves, but they are the only antidote to that despondency and
dread of failure which cloud the brightest and most hopeful mind in
the long days of apprenticeship. Even the greatest advocates have
suffered such moments. Had John Scott yielded to his own sinking
inclinations, he might have been a provincial barrister at Newcastle
instead of Lord Chancellor; Kenyon nearly became a Welsh parson instead
of Chief Justice of England; and Russell tells us that in our own day
Gully nearly exiled himself to the Straits Settlements, and Herschell
proposed to emigrate to the Indian Bar.
A learned County Court judge, in dealing with the unfortunate
bankruptcy of a brother-barrister, expressed the opinion that for a man
to come to the Bar without private means, or, at least, expectations
from a maiden aunt, was “a rash and hazardous speculation.” His dictum
was unsound in law and history. Some of the greatest advocates began
life as poor men. And though men of wealth have succeeded in advocacy,
yet poverty is a true friend to industry. “Parts and poverty,” said
Lord Chancellor Talbot, “are the only things needed by the law student.”
Kenyon, when asked by a fashionable lady how her son might best prepare
for success at the Bar, said: “Let him spend all his money, marry a
rich wife, spend all hers, and when he has got not a shilling in the
world, let him attack the law.” For a lawyer, as an old pleader said,
must be prepared in his early days “to eat sawdust without butter,” or,
as Lord Eldon put it, “to live like a hermit and work like a horse.”
If a man is endowed with health and industry, the profession of an
advocate is not “a rash and hazardous speculation.” He may even without
blame give hostages to fortune, remembering that when Erskine made his
first appearance at the Bar his agitation nearly overcame him, and
he was just about to sit down a failure when, he says, “I thought I
felt my little children tugging at my gown, and the idea roused me to
an exertion of which I did not think myself capable.” He succeeded,
indeed, far beyond his expectations, and he found, when he had overcome
that first modest inertia which benumbs even the greatest genius, that
he was fully equipped to fight the battles of his clients against all
comers. And the reason of it was that he had not failed to read and
learn and digest beneath the Lamp of Industry.
IV
THE LAMP
OF WIT
IV
THE LAMP OF WIT
At the back of this little word “wit” lies the idea of knowledge,
understanding, sense. In its manifestation we look for a keen
perception of some incongruity of the moment. The murky atmosphere of
the court is illuminated by a flash of thought, quick, happy, and even
amusing. Wit, wisely used, bridges over a difficulty, smooths away
annoyance, or perhaps turns aside anger, dissolving embarrassment in a
second’s laughter.
Nor can “(laughter in court),” a derogatory parenthesis unknown in the
official law reports, be wholly condemned among human men. “How much
lies in laughter, the cipher key wherewith we decipher the whole man!”
Laughter may be derisive, unkind, even cruel, or it may be rightly used
as a just weapon of ridicule wherewith to smite pretension and humbug.
It may be gracious and full of kindliness, putting a timid man at his
ease, or instinct with good-humour, softening wrath or mitigating
tedious irrelevancy. It may be the due recognition of a witty text
preaching a useful truth, that could otherwise be expressed only in a
treatise; as when Common Law said unto Chancery, “Truth will leak out
even in an affidavit;” or when Erskine replied to Kenyon, who suggested
that he should apply to Chancery for relief, “Would your lordship send
a dog you loved there?”
From the earliest times wit has been a light to lighten the darkness of
advocacy. Cicero was noted for the jests and repartees which punctuated
his forensic speeches, and these were held “not foreign to the business
of the forum.” Yet, like many a man of wit, he stumbled on occasion
through the temptation of the gift, and offended some with malevolent
sayings, as Bethell and others have done in our own time. It is easy to
forget the poet’s warning about “the medium in all things.”
Pedants and bores resent all forms of wit, but a real humorist rejoices
in nothing so much as a good story against himself. Rufus Choate was
a man of great eloquence and abounding vocabulary, but he had a true
sense of wit. No one enjoyed better the remark of Mr. Justice Wilde,
a dry, precise judge who, out of court, on occasion allowed his wit
expression. He was asked by a junior if he had not heard that Mr.
Worcester had just published a new edition of his dictionary with a
great number of additional words. Gripping his young friend’s arm, he
said in a perturbed whisper, “No, I had not heard of it. But, for God’s
sake, don’t tell Choate!”
Choate had his own wit, which charmed many juries to his clients’
cause. No one could more pleasantly disperse the frowning morality of a
common jury by a human simile. What could be more pastoral and poetical
than his description of his clients in an Arcadian divorce case? “They
were playful, gentlemen of the jury, not guilty. After the morning toil
they sat down upon the hay-mow for refreshment, not crime. There may
have been a little youthful fondling, playful, not amorous. They only
wished to _soften the asperities of hay-making_.” One can see the jury
broadening into sympathy and smiles over the pleasantry of the final
phrase.
Often the wit of an advocate will turn a judge from an unwise course
where argument or rhetoric would certainly fail. Lord Mansfield paid
little attention to religious holidays. He would sit on Ash-Wednesday,
to the scandal of some members of the Bar, whose protests made no
impression upon him. At the end of Lent he suggested that the court
might sit on Good Friday. The members of the Bar were horrified.
Serjeant Davy, who was in the case, bowed in acceptance of the
proposition. “If your lordship pleases; but your lordship will be the
first judge that has done so since Pontius Pilate.” The court adjourned
until Saturday.
But the learned Serjeant “Bull Davy,” as he was called on circuit,
could never pass a jest, even at the expense of his client. He was
defending a criminal against whom the prosecution had opened a very
strong case.
“Who is concerned for the prisoner?”
“My lord,” replied Davy, rising with grave solemnity, “I am concerned
for him, and very much concerned, after what I have heard.”
Wit is often the fittest instrument with which to destroy the bubble
of bombast. When Curran, in an outburst of histrionic anger, placed
his hand upon his heart, saying, “I am the trusty guardian of my own
honour,” it was Sir Boyle Roche who spoiled the episode by rising with
much friendliness to say, “I congratulate my honourable friend on the
snug little sinecure to which he has appointed himself.”
Wit may fairly be used to strip the cloak of pretension from the
shoulders of impudence. Holker was cross-examining a big vulgar Jew
jeweller in a money-lending case and began by looking him up and down
in a sleepy dismal way and drawled out: “Well, Mr. Moselwein, and what
are you?”
“A genschelman,” replied the jeweller with emphasis.
“Just so, just so,” ejaculated Holker with a dreary yawn, “but what
were you before you were a gentleman?”
Wit, skilfully used, is the kindliest and most effective method of
exhibiting the futility of judicial interruptions.
“Where do you draw the line, Mr. Bramwell?” asked a learned judge in
the Court of Common Pleas.
“I don’t know, and I don’t care, my lord. It is enough for me that my
client is on the right side of it.”
Wit and courtesy need never be divorced. They are, indeed,
complementary. Wit, deftly used, refreshes the spirit of the weary
judge.
Lord Chief Justice Coleridge, writing from the Northern Circuit, says:
“Gully was excellent. His phrase, when he asked for a stay of execution
‘in order to consider more at leisure some of your lordship’s
observations,’ tickled my fancy very much. Misdirection was never more
courteously described.”
Satire or irony is often in danger of being misunderstood by the
simple-minded jury. Ridicule, to be effective, must be pointed, even
extravagant.
In combating the defence of Act of God set up by an American advocate
defending a client on the charge of arson, Governor Wisher, for the
prosecution, disposed of the theory of spontaneous combustion, and
succeeded in satisfying the jury of its absurdity: “It is said,
gentlemen, that this was Act of God. It may be, gentlemen. I believe in
the Almighty’s power to do it, but I never knew of His walking twice
round a straw stack to find a dry place to fire it, with double-nailed
boots on so exactly fitting the ones worn by the defendant.”
Bowen, on the Western Circuit, was less fortunate. Prosecuting a
burglar caught red-handed on the roof of a house, he left the case to
the jury in the following terms: “If you consider, gentlemen, that the
accused was on the roof of the house for the purpose of enjoying the
midnight breeze, and, by pure accident, happened to have about him the
necessary tools of a housebreaker, with no dishonest intention of
employing them, you will, of course, acquit him.” The simple sons of
Wessex nodded complacently at counsel, and, accepting his invitation,
acquitted the prisoner.
And as there is danger of satire being misunderstood, there is also a
certain danger that an advocate, in an endeavour to shorten a case, may
fail to drive home all the points he seeks to make. Modern advocates,
however, are more likely to remind the Bench of Quintilian’s maxim,
“There is not so much inconvenience in listening to superfluous matter
as to be ignorant of such things as are necessary,” than to remember
the more pertinent first principle of their own art that “brevity is
the soul of wit.”
It has always been a reproach to our advocacy that it injured its
clients by calculated circumlocution, an exuberance of verbosity, and a
prolixity of style and method ruinous to the widows and the fatherless
and the strangers that strayed within the gates of the temple.
Good advocacy displays the highest form of wit in an instinct for
brevity. The healthy appetite of judge and advocate alike is shown in a
keenness to “get through the rind of the orange and reach the pulp as
soon as possible.” This wit and wisdom of Bramwell should be painted
on the wall in bold letters of silver opposite every judge on the
bench, and in larger letters of gold over every bench in the kingdom in
the face of the nation’s advocates.
Judges are, indeed, a long-suffering race, but there are some advocates
difficult to suffer gladly. Mr. Justice Wightman showed a Christian
forbearance to Mr. Ribton, who, after pounding away for several hours,
began repeating himself unto the third or fourth iteration.
“Really, Mr. Ribton, you know, you’ve said that before.”
“Have I, my lord? I am very sorry. I quite forgot it.”
“Don’t apologise,” said the mild old judge, patiently stifling a sigh.
“I forgive you; for it was a very long time ago.”
How many advocates weary juries into forgetfulness by long-continued
repetition of their cross-examination, often giving a clever witness
opportunities of rehabilitating himself, forgetting Josh Billings’s
immortal advice: “When you strike ile, stop boring; many a man has
bored clean thru and let the ile run out of the bottom.”
But whatever sound maxims may be cited, it is to be feared that there
will always be a line of advocacy answering to the definition of
length without breadth. Nor will the old story, first told, perhaps, of
Chief Baron Kelly, ever want a new and even more long-winded hero. A
legal comrade of Kelly on circuit dreamed that they appeared before the
tribunal on the Great Day of Judgment. Upon Kelly’s name being called,
and his being put up in the dock, the recording angel arose and shouted
out in a loud voice, “No other case will be taken to-day!”
Lest I should provoke a similar reproof from a devout reader, let me
leave the Lamp of Wit upon the altar of justice and retire from the
pulpit.
V
THE LAMP
OF ELOQUENCE
V
THE LAMP OF ELOQUENCE
The eloquence of advocates of the past must largely be taken on trust.
There is no evidence of it that is not hearsay. For, though we have
the accounts of ear-witnesses of the eloquence of Erskine, Scarlett,
Choate, or Lincoln, and can ourselves read their speeches, the effect
of their eloquence does not remain. We are told about it by those
who experienced it, and can believe or not as we choose. It is the
same with actors. It requires genius to describe acting, so that the
reader captures some of the experience of the witness. Fielding did it
for Garrick when he took Partridge to see _Hamlet_; Charles Lamb can
feature the old actors for us on the screen of the written page; but
how few real records remain of the eloquence of the advocates of old!
Perhaps the best way to realise their powers is to read their speeches
aloud; but even then they seem diffuse and out of proportion to the
present interest in the litigation. The most eloquent advocacy that is
reported in print is to be found not in law reports, but in fiction--in
the speeches of Portia and Serjeant Buzfuz, for instance, where for all
time the world continues hanging on the lips of the advocate in excited
sympathy with the client.
There are some who think that rhetoric at the Bar has fallen in esteem.
The modern world has certainly lost its taste for sweet and honeyed
sentences, and sets a truer value on fine phrases and the fopperies of
the tongue; but there will always be a high place in the profession
for the man who speaks good English with smooth elocution, and whose
speeches fall within Pope’s description:
Fit words attended on his weighty sense,
And mild persuasion flow’d in eloquence.