those to whom it is addressed. The aim of eloquence is persuasion.
The one absolute essential is sincerity, or, perhaps one should say,
the appearance of sincerity. As Garrick reminded a clerical friend:
“We actors portray fiction as if it were truth, and you clergymen
preach truth as if it were fiction.” It is no use preaching to a
jury, but the eloquence of persuasion will work miracles; and there
is a well-authenticated story on every circuit of the criminal who,
listening with rapt attention to his counsel’s pathetic details of his
wrongs, burst into sobs after his peroration, crying out, “I never knew
I was such an ill-used man until now--s’help me, I never did!”
It would appear from the history of advocacy that the flame of the lamp
of eloquence may vary from time to time in heat and colour. One cannot
say that the style of one advocate is correct and another incorrect,
since the style is the attribute of the man and the generation he
is trying to persuade. Yet, however different the style may be, the
essential power of persuasion must be present. He must, as Hamlet says,
be able to play upon his jury, knowing the stops, and sounding them
from the lowest note to the top of the compass.
Brougham’s tribute to Erskine’s eloquence is perhaps the best
pen-picture of an English advocate we possess, and it is noticeable
how he emphasises this power of persuasion and endeavours to solve the
psychology of it. He places in the foreground the physical appearance
of the man, a great factor in each style of advocacy.
“Nor let it be deemed trivial,” he says, “or beneath the historian’s
province, to mark that noble figure, every look of whose countenance is
expressive, every motion of whose form graceful, an eye that sparkles
and pierces, and almost assures victory, while it ‘speaks audience
ere the tongue.’ Juries have declared that they felt it impossible
to remove their looks from him when he had riveted and, as it were,
fascinated them by his first glance; and it used to be a common remark
among men who observed his motions that they resembled those of a
blood-horse, as light, as limber, as much betokening strength and
speed, as free from all gross superfluity or encumbrance. Then hear his
voice of surpassing sweetness, clear, flexible, strong, exquisitely
fitted to strains of serious earnestness, deficient in compass indeed,
and much less fitted to express indignation, or even scorn, than
pathos, but wholly free from harshness or monotony. All these, however,
and even his chaste, dignified, and appropriate action, were very
small parts of this wonderful advocate’s excellence. He had a thorough
knowledge of men, of their passions, and their feelings--he knew every
avenue to the heart, and could at will make all its chords vibrate
to his touch. His fancy, though never playful in public, where he
had his whole faculties under the most severe control, was lively and
brilliant; when he gave it vent and scope it was eminently sportive,
but while representing his client it was wholly subservient to that in
which his whole soul was wrapped up, and to which each faculty of body
and of mind was subdued--the success of the cause.”
And if one reads the speeches of our greatest advocates and the
records of those who heard them, one finds that each had some peculiar
condiment of eloquence, so that if one could beg a flavour from each
one might hope to produce an olio of super-eloquence.
Bethell, for instance, was a master of deliberation, remembering
Bacon’s maxim that “a slow speech confirmeth the memory, addeth a
conceit of wisdom to the hearers.” Shorthand-writers listened eagerly
to his speeches, fearing to miss a sentence that would ruin their
report. Repetitions and unnecessary phrases were banned, and useless
words he looked upon as matter in the wrong place. His voice was clear
and musical, and he had a telling wit. Students from the first thronged
the court to learn his magic, and judges listened to him with respect.
When he was a junior it is said that Sir John Leach, the Master of
the Rolls, succumbing to his arguments, said, “Mr. B_ee_thell, you
understand the matter as you understand everything else.” And that was
the real secret of Mr. Bethell’s eloquence.
Serjeant Copley, better known as Lord Lyndhurst, was not a brilliant or
showy advocate, but, as a friend said, “had no rubbish in his head.”
He won many of his triumphs by dexterous and successful sophistry and
his extreme plausibility of manner. Mr. James Grant tells us that “a
perpetual smile played on his countenance while he gazed at the faces
of the court and the jury; and there was something so winning in the
tones of his voice that he must have been a man possessing a remarkably
lively perception of the real facts of a case, of a vigorous intellect,
and of great energy of character who was not carried away by Mr.
Copley’s address.” The mere wording of the description might suggest
to an unsympathetic reader that Serjeant Copley was the Fascination
Fledgeby of the Bar, but the intention of the writer was probably to
portray something of that charm of manner which is often a form of
eloquence leading to the highest success in advocacy. Gully, in our own
day, possessed it in a high degree. It is easy to fall under the spell
of it in court, but it would require the pen of a genius to recall it
to life on the printed page.
Eloquence of manner is real eloquence, and is a gift not to be
despised. There is a physical as well as a psychological side to
advocacy, documentary evidence of which may be found in the old prints
and portraits of those who have been called to high office from among
us. They are, on the whole, a stout, well-favoured race.
Charm of voice and manner has always received due reward. Thomas
Denman had a fine, musical voice, an easy manner, and the sincerity
and fervour of his address made him a popular advocate. Scarlett was
“the very incarnation of contentedness and good nature.” A spectator
notes his “perpetual cheerfulness,” his “laughing and seductive eyes,”
his “How-do-you-do style” as he used to stand before the jury, “fold
up the sides of his gown on his hands, and then, placing his arms on
his breast, smile in their faces from the beginning to the end of his
address, talking all the while to them as if he were engaged on a mere
matter of friendly conversation.”
Many an advocate has attempted a similar method with but small success,
and there must have been, as Mr. Atlay says, “an exquisite dexterity”
in his method of address that does not reach us through contemporary
descriptions. The effect of it was undoubted. A North-Country juryman
was once asked, after a long assize at Lancaster, “What do you think of
the counsellors on the Northern Circuit?”
“Why,” he replied, “there’s not a man in England can touch that Mr.
Brougham.”
“But you gave all the verdicts to Mr. Scarlett?”
“Why, of course; he gets all the easy cases.”
It is eloquence that persuades the jury that your case is the easy
case. As Cobbett said--and Cobbett had a common jury mind--“He is an
orator that can make me think as he thinks, and feel as he feels.”
Mr. Montagu Williams has pointed out that the best English eloquence
of his time was founded on what he calls a solid style of advocacy.
“As leading examples,” he writes, “of what I may call the solid style,
I should name Serjeant Shee, Serjeant Parry, and Lord Justice Holker.
When I say ‘solid,’ I do not refer to heaviness of manner, but to
solidity of appearance, robustness of speech, and a general air of good
English honesty. This style is very taking with the juries of this
country. It was the heavy, nay, almost languid, way in which Lord
Justice Holker opened his cases, taken in conjunction with his sudden
awakenings and bursts of eloquence when important points were reached,
that rendered his style of advocacy so telling.”
Nearly every great advocate has found it necessary to make use of
the eloquence of persuasion. Charles Russell is the one exception.
He did not seek to persuade, he directed the court and jury. Whether
or not he was, as Lord Coleridge said, “the biggest advocate of the
century,” he was undoubtedly a very great advocate. Clearness, force,
and earnestness were the basic qualities of his eloquence. It was said
of him that “ordinarily the judge dominates the jury, the counsel, the
public,--he is the central figure of the piece. But when Russell is
there the judge isn’t in it. Russell dominates every one.”
But no man can dominate a jury in a doubtful case, and though Russell
was supreme in a good case, he had not that power possessed in a high
degree by another great advocate--still, happily, among us--Sir Edward
Clarke, who could not only insinuate doubts into the hearts of the
jury, but could leave his arguments so clearly in men’s minds that he
became, as it were, the thirteenth man on the jury when they retired
to consider their verdict. This requires real eloquence.
The moral of the lives of the advocates seems to be that in the house
of eloquence there are many mansions, and any style natural to the man
who uses it is his right style, and may succeed. One besetting sin of
many would-be eloquent speakers is fatal, and that is bombast. The
young advocate who opened a libel case, “My client, gentlemen, is a
cheesemonger; and the reputation of a cheesemonger is like the bloom
upon a peach. Touch it, and it is gone for ever,” must have been immune
from eloquence. Yet there are solicitors and clients who still like
that kind of thing, and advocates who supply it.
Nearer to eloquence was the advocate who, in defence of a woman for
child murder, said in passionate tones: “Gentlemen, it is impossible
that the prisoner can have committed this crime. A mother guilty of
such conduct to her own child! Why, it is repugnant to our better
feelings! Gentlemen, the beasts of the field, the birds of the air,
suckle their young----”
The simile might perhaps have passed with the jury had not a dry,
unsympathetic voice from the bench interrupted with: “Mr. X, if you
establish the latter part of your proposition, your client will be
acquitted to a certainty.”
And though eloquence at its highest is a gift, the art of speaking
can be learned and personal difficulties overcome. Demosthenes, with
his pebbles in his mouth or running up a hill spouting an oration,
has been an example to us from the schoolroom. Cicero took lessons
from Roscius and Æsop. Lord Guildford, Lord Campbell, Lord Brougham,
and others have impressed on students the importance of attending and
practising at moots and debating societies. The mechanics of eloquence
can be as certainly learned by the student as the mechanics of etching
or engraving, but how far these will make an artist of him and help to
bring real eloquence to the learner lies in himself.
There is no golden rule of method, but there is this golden principle
to remember that the message of eloquence is addressed to the heart
rather than the brain. This is well put by Lord Chesterfield, who was
more human than many will allow, when he wrote to his son: “Gain the
heart, or you gain nothing; the eyes and the ears are the only road
to the heart. Merit and knowledge will not gain hearts, though they
will secure them when gained. Pray have that truth ever in your mind.
Engage the eyes by your address, air, and motions; soothe the ears by
the elegancy and harmony of your diction; the heart will certainly
follow; and the whole man and woman will as certainly follow the heart.”
Thus is the grammar of the matter set down by a skilled grammarian,
yet it is but a bundle of dry sticks and kindles no flame. The high
privilege of lighting the torch at the lamp of eloquence is a gift of
the gods, for orators are born, and not made.
VI
THE LAMP
OF JUDGMENT
VI
THE LAMP OF JUDGMENT
Judgment inspires a man to translate good sense into right action.
I would not quarrel with the philosopher who describes judgment as
an instinct, but I would bid him remember that even an instinct is
acquired by “cunning” rather than luck. Let no one think that he
can attain to sound judgment without hard work. The judgment of the
advocate must be based on the maxim, “He that judges without informing
himself to the utmost that he is capable cannot acquit himself of
judging amiss.”
A client is entitled to the independent judgment of the advocate.
Whether his judgment is right or wrong, it is the duty of the advocate
to place it at the disposal of his client. In the business of advocacy
judgment is the goods that the advocate is bound to deliver. Yet he
is under constant temptation to please his client by giving him an
inferior article. The duty of the advocate to give only his best is
wisely insisted upon by Serjeant Ballantine, who relates a personal
experience that all advocates must be ready to face.
“The solicitor instructing me,” he writes, “was vehement in expressing
belief in his client’s innocence. I was of a different opinion. He,
acting upon his belief, desired that certain witnesses should be
called. I, governed by my convictions, absolutely refused to do so,
offering at the same time to return my brief. This, however, was
refused, and I was left to exercise my own responsibility. The above
question frequently arises, and some counsel have considered themselves
bound to obey the wishes of the solicitor. There is no doubt that
this is the safest course for the advocate, for, if he does otherwise
and the result is adverse, he is likely to be much blamed, and the
solicitor also is exposed to disagreeable comments; but I hold, and
have always acted upon the opinion, that the client retains counsel’s
judgment, which he has no right to yield to the wishes or opinions of
any one else. He is bound, if required, to return his brief, but if he
acts against his own convictions he sacrifices, I think, his duty as an
advocate.”
An advocate of judgment has the power of gathering up the scattered
threads of facts and weaving them into a pattern surrounding and
emphasising the central point of the case. In every case there is
one commanding theory, to the proof of which all the facts must be
skilfully marshalled. An advocate with one point has infinitely greater
chances than an advocate with twenty points.
Rufus Choate was an advocate of great judgment, and not only was he
enthusiastic and diligent in searching for the central theory, or “hub
of his case,” as he called it, but having made up his mind what it
was, he rightly put it forward without delay, believing that it was
the “first strike” that conquered the jury. Parker, his biographer,
tells us that “he often said to me that the first moments were the
great moments for the advocate. Then, said he, the attention is all
on the alert, the ears are quicker, the mind receptive. People think
they ought to go on gently, till, somewhere about the middle of their
talk, they will put forth all their power. But this is a sad mistake.
At the beginning the jury are all eager to know what you are going to
say, what the strength of your case is. They don’t go into details and
follow you critically all along: they try to get hold of your leading
notion, and lump it all up. At the outset, then, you want to strike
into their minds what they want--a good, solid, general view of _your_
case; and let them think over that for a good while. ‘If,’ said he
emphatically, ‘you haven’t got hold of them, got their convictions at
least open, in your first half-hour or hour, you will never get at them
at all.’”
Abraham Lincoln had a genius for seeing the real point of his case and
putting it straight to the Court. A contemporary who was asked in later
life what was Lincoln’s trick with the jury replied, “He saw the kernel
of every case at the outset, never lost sight of it, and never let it
escape the jury. That was the only trick I ever saw him play.”
Sir Henry Hawkins held the same view. He used to say, “Concentration is
the art of argument. If you are diffuse, you will be cut up in detail.”
And he was fond of quoting the teachings of Denman on this subject:
“Remember also to put forward your best points first, for the weak ones
are very likely to prejudice the good ones if they take the lead. It
would be better advice to say never bring them forward at all, because
they are useless.”
Johnny Williams, who appeared with Brougham and Denman for Queen
Caroline, was a man of great sagacity, but much given to strong
expletives. He was once induced by an attorney, against his own better
judgment, to ask a question, the answer to which convicted his client
on a capital charge. The circuit considered he was well justified, when
the trial was over, in turning to the attorney and saying with great
emphasis (formal expletives omitted), “Go home, cut your throat, and
_when_ you meet your client in hell, beg his pardon.”
But an apology was also due from Williams for surrendering his judgment
to that of his attorney.
In nothing does the advocate more openly exhibit want of judgment than
in prolixity. Modern courts of justice are blamed by the public, not
wholly without cause, for the length and consequent expense of trials.
To poor people this may mean a denial of justice. No one desires that
the judge should constantly interfere with counsel in the discharge
of their duties, but it seems to be his duty on occasion to blow his
whistle and point out to the combatants that they are offside.
If every one connected with the trial of an action were to train
and use his judgment and co-operate with the judgments of his
fellow-workers in a policy of anti-waste, a great reproach would be
lifted from our courts of justice.
Prolixity is no new disease. Many wise judges have sought to eradicate
it. In the time of Charles II. things seem to have been in a specially
bad way, and Lord Guildford, though he probably went to dangerous
extremes, was well thought of by the public for his endeavour to speed
up the legal machine.
“In his lordship’s conduct of trials he was very careful of three
matters: 1. To adjust what was properly the question, and to hold the
counsel to that; for he that has the worst end of the staff, is very
apt to fling off from the point and go out of the right way of the
cause. 2. To keep the counsel in order; for in trials they have their
parts and their times. His lordship used frequently to inculcate to
counsel the decorum of evidencing practice. 3. To keep down repetition,
to which the counsel, one after another, are very propense; and, in
speeching to the jury one and the same matter over and over again, the
waste of time would be so great that, if the judge gave way to it,
there would scarce be an end; for most of the talk was not so much for
the causes as for their own sakes, to get credit in the country for
notable talkers. And his lordship often told them that their confused
harangues disturbed the order of his thoughts; and, after the trial
was over, it was very hard for him to resume his method and direct the
jury to comprise all the material parts of the evidence. Therefore he
was positive not to permit more than one counsel of a side to speech
it to the jury, by way of summing up the evidence; and he permitted
that in such a way as made them weary of it. For, in divers sorts of
trials, he wholly retrenched it; and where he observed much stiffness
and zeal of the parties in a cause, then, after the evidence was over,
he would say, ‘Come, make your speeches;’ and then sat him down: and
that looked with a sort of contempt of their talents, which gave them
a distrust, and discomposed their extempore so much that, for the most
part, they said, ‘No, we will leave it to your lordship.’ And thus the
abuse, by fastidious talk, wore away; and the practice before him was
so well known, as it became at length a pure management of evidence and
argument of law.”
The judgment of an advocate may be called upon at any moment for a
sudden decision that may mean the victory or defeat of his client.
For this reason it is necessary that he should be always alert. The
contents of his brief must be already in his mind, and his attention
must be fixed on what is happening in court, which has rarely been
foreseen in the best-prepared brief ever delivered to counsel.
It was Russell who turned round to his junior and said, “What are you
doing?”
“Taking a note,” was the answer.
At which Russell burst out in his uncompromising way: “What the devil
do you mean by saying you are taking a note? Why don’t you watch the
case?”
“Watch the case!” It is a golden rule.
It was the same when he was playing cards. He would get impatient with
a partner shuffling and handling his cards in a state of indecision.
“Why are you looking at your cards?” he asked. “Why don’t you watch the
game? The game is on the table.”
In the same way an advocate who is always fumbling with his brief when
he is examining a witness cannot follow the game that is on the table
before him.
Sound judgment is essential to the examination of witnesses. How few
advocates know how to examine a witness-in-chief! Birrell tells us that
Sir Frank Lockwood had very clear views on the subject. “He believed
that the examination of a witness-in-chief, or the direct examination
of witnesses, as it was called in Ireland, was very much underrated in
its significance and its importance. If they had to examine a witness,
what they had got to do was to induce him to tell his story in the
most dramatic fashion, without exaggeration; they had got to get him,
not to make a mere parrot-like repetition of the proof, but to tell
his own story as though he were telling it for the first time--not as
though it were words learnt by heart; but if it were a plaintive story,
plaintively telling it. And they had got to assist him in the difficult
work. They had got to attract him to the performance of his duty, but
woe be to them if they suggested to him the terms in which it was to be
put! They must avoid any suspicion of leading the witness, while all
the time they were doing it. They knew perfectly well the story he was
going to tell; but they destroyed absolutely the effect if every minute
they were looking down at the paper on which his proof was written.
It should appear to be a kind of spontaneous conversation between the
counsel on the one hand and the witnesses on the other, the witness
telling artlessly his simple tale, and the counsel almost appalled to
hear of the iniquity under which his client had suffered.
“It was in this way, and in this way alone, that they could
effectively examine a witness.”
There is probably more waste of time and irrelevance in the examination
of witnesses-in-chief than in any other procedure of counsel. This is
the modern drama of it.
COUNSEL (_his eyes glued to his brief_): “Your name is Mary Ann Snooks.”
WITNESS (_annoyed_): “Martha Ann.”
COUNSEL: “Oh, yes, Martha Ann Snooks; and you are the wife of Thomas
Snooks, the bookmaker.”
WITNESS (_very indignant_): “Nothing of the sort.”
COUNSEL: “I beg your pardon--my mistake--bootmaker.”
WITNESS: “And has been this thirty year----”
COUNSEL: “And you live at 139 Doncaster Street, Upper Tulse Hill.”
WITNESS: “We did live there; we’ve moved now, sir.”
COUNSEL: “What is your present address?”
etc., etc., _ad lib._
Consider for a moment, if you will, the horrid waste of all this
irrelevance standing between the Court and Mrs. Snooks’s version of
what she saw of an accident in High Street, Kensington, and reducing
her to a state of nervous irritation antipathetic to accurate testimony.
How much more business-like was the method of the eighteenth century!
In a State trial in the days of Queen Anne the name of the lady is
announced in the oath, and then counsel approaches her, as Sir Frank
Lockwood might have done: “Pray, madam, will you be pleased to acquaint
my lord and the jury what you know concerning the matter, and what
passed between your brother Mr. Colepepper and Mr. Denew at his first
coming to him?”
Much public time could be saved by more economical methods of
examination-in-chief, and greater efficiency would be ensured.
Cross-examination, too, is almost entirely a matter of judgment. Two
golden rules handed down from the eighteenth century, and maybe from
beyond, are still unlearned lessons to each succeeding generation of
advocates:
1. Never ask a question without having a good reason to assign for
asking it.
2. Never hazard a critical question without having good ground to
believe that the answer will be in your favour.
Serjeant Ballantine has some just observations on the art of
cross-examination and the use and abuse of it.