cannot, in a great number of cases tried, be reasonably expected. Even
when witnesses are honest, and have no intention to deceive, there is
a natural tendency to exaggerate the facts favourable to the cause for
which they are appearing, and to ignore the opposite circumstances;
and the only means known to English law by which testimony can be
sifted is cross-examination. By this agent, if skilfully used,
falsehood ought to be exposed, and exaggerated statements reduced to
their true dimensions. An unskilful use of it, on the contrary, has a
tendency to uphold rather than destroy. If the principles upon which
cross-examination ought to be founded are not understood and acted
upon, it is worse than useless, and it becomes an instrument against
its employer. The reckless asking of a number of questions on the
chance of getting at something is too often a plan adopted by unskilful
advocates, and noise is mistaken for energy. Mr. Baron Alderson once
remarked to a counsel of this type, ‘Mr. ----, you seem to think that
the art of cross-examination is to examine crossly.’”
How few advocates have the capacity to let well alone! They must repeat
and emphasise, and emphasise and repeat. In a case tried before Sir
Henry Hawkins, a junior, not content with his own witness’s answer,
continues:
JUNIOR (_emphatically_): “And you are quite sure of this?”
WITNESS: “Yes.”
JUNIOR: “Quite?”
WITNESS: “Quite!”
JUNIOR: “You have no doubt about it?”
WITNESS: “Well, I haven’t much doubt, because I asked my wife.”
SIR HENRY (_pouncing on his prey_): “You asked your wife in order to be
sure in your own mind?”
WITNESS: “Quite so, my lord.”
SIR HENRY: “Then you had some doubt before?”
WITNESS: “Well, I may have had, my lord.”
It is part of the advocate’s rôle to make the jury believe in his
infallibility, and every question he asks that gives the witness an
opportunity to score off him and belittle him in their eyes is an
error of judgment. Serjeant Buzfuz, who conducted his case with fine
judgment, was guilty of a grave error in his examination of Sam Weller.
Brow-beating is always a dangerous policy; it antagonises the jury and
leads to reprisals. There is an old story of the counsel in an assault
case who asked the witness at what distance from the parties he was at
the time of the assault. Not content with the reply of “A few feet,”
but pressing for greater accuracy, he was answered by the witness:
“Just four feet five and a half inches.”
“How do you come to be so very exact, fellow?” asked counsel sternly.
“Because I expected some fool or other would ask me, so I measured it.”
A good story, too, is told against Lord Coleridge in Mr. O’Brien’s
_Life of Lord Russell_. He appeared in a libel action for a young lady
who had been expelled from a college. His case was that the breaches of
discipline were trivial, and he pressed Mrs. Kennedy, the mistress of
novices, asking what his young client had done. Mrs. Kennedy said, as
an example, that she had eaten strawberries.
“Eaten strawberries!” exclaimed Coleridge. “What harm was there in
that?”
“It was forbidden, sir,” replied Mrs. Kennedy simply.
Coleridge should have accepted her answer, but he retorted with a
contemptuous question, not foreseeing the reprisal, “But, Mrs. Kennedy,
what trouble was likely to come from eating strawberries?”
“Well, sir,” replied Mrs. Kennedy, “you might ask what trouble was
likely to come from eating an apple, yet we know what trouble did come
from it.”
Coleridge’s cross-examination dissolved in laughter, in which, of
course, he joined good-naturedly.
The art of re-examination, which is a task often as futile as the
endeavour to set Humpty Dumpty on the wall again, can be learned only
by the experience of watching the game on the table and playing any few
remaining cards in your hand with rapid judgment.
A wise student will take Lord Halsbury’s advice and go to the Old
Bailey to study cross-examination; and, if Lockwood’s view still
holds good, he might attend the Chancery Courts to learn how not to
re-examine. Birrell tells us that “once, in the Court of Chancery,
a witness was asked, in cross-examination by an eminent Chancery
leader, whether it was true that he had been convicted of perjury. The
witness owned the soft impeachment, and the cross-examining counsel
very promptly sat down. Then it became the duty of an equally eminent
Chancery Q.C. to re-examine. ‘Yes,’ said he, ‘it is true you have
been convicted of perjury. But tell me, have you not on many other
occasions been accused of perjury, and been acquitted?’”
Most re-examination intending to rehabilitate the character of a
witness is apt to make matters worse.
These stories of actual happenings, trivial in themselves, teach us the
necessity of judgment in advocacy. And I pray the young advocate not
to rejoice too merrily over the errors of judgment of his seniors or
lament too grievously about his own. Bear in mind that by acknowledged
error we may learn wisdom, and that the only illuminant for the lamp of
judgment is the oil of experience.
VII
THE LAMP
OF FELLOWSHIP
VII
THE LAMP OF FELLOWSHIP
An advocate lacking in fellowship, careless of the sacred traditions
of brotherhood which have kept the lamp of fellowship burning brightly
for the English Bar through many centuries, a man who joins the Bar
merely as a trade or business, and does not understand that it is also
a professional community with public ideals, misses the heart of the
thing, and he and his clients will suffer accordingly.
Fitzjames Stephen wisely said of the English Bar that it is “exactly
like a great public school, the boys of which have grown older, and
have exchanged boyish for manly objects. There is just the same
rough familiarity, the general ardour of character, the same kind of
unwritten code of morals and manners, the same kind of public opinion
expressed in exactly the same blunt, unmistakable manner.”
The very title of Inns of Court is redolent of hospitality, fellowship,
and even conviviality. How many glorious things have their beginnings
at an inn! How pleasant it would be to investigate with the
antiquarians the earliest origins of our Inns of Court! But to come to
comparatively modern days, Sir John Fortescue, who was Chief Justice of
the King’s Bench in the time of Henry VI., gives us a pleasant picture
of their traditions of fellowship. These Inns of Court, or hostels, he
says, anciently received the sons of noble men and the better sort of
gentlemen, “who did there not only study the laws to serve the courts
of justice and profit their country, but did further learn to dance, to
sing, to play on instruments on the ferial days and to study divinity
on the festival, using such exercises as they did who were brought
up in the King’s Court.” There were Inns of Chancery, too, where the
younger students learned the first elements of law before they were
taken into the greater hostels, which were called Inns of Court. The
expenses of the student were no less than twenty marks a year in
Fortescue’s day, and if he was attended by his servant, as most were,
that was an added charge, so that only the sons of gentlemen could
afford so expensive an education.
At this time a young fellow would come from the university, or perhaps
straight from the grammar-school, and would learn the first elements of
law in one of the ten minor Inns of Chancery, and would then apply for
admission to one of the four houses or Inns of Court: Inner or Middle
Temple, Gray’s Inn or Lincoln’s Inn. There they continued for the
space of seven years, attending readings, moots--where cases were put
and discussed--and “boltings,” as the practice arguments were called,
“whereby,” as Fortescue tells us, “growing ripe in the knowledge of
the laws, and approved withal to be of honest conversation, they are
either by the general consent of the benchers or readers (being of the
most ancient, grave, and judicial men of every Inn of Court), or by
the special privilege of the present reader there, selected and called
to the degree of utter (outer) barristers, and so enabled to be common
counsellers and to practise the law both in their chambers and at the
bars.”
The whole social scheme of education and control in the exercise of
professional rights and advancement was most carefully thought out. An
utter barrister of not less than ten or twelve years’ standing and “of
good profit in study” was chosen as reader to educate the students. At
about fifteen years’ standing he became a bencher, after which he might
be appointed a serjeant, and go away to Serjeants’ Inn, that important
society “where none but serjeants and judges do converse,” and from
which alone could judges be chosen.
It was for this reason that the judges always addressed a serjeant
as “Brother.” I can well remember as a boy feeling a certain glow of
satisfaction at hearing the judges in the Tichborne trial calling
my father “Brother Parry,” and it seems a pity that this fraternal
greeting, this courteous link of fellowship between Bench and Bar,
necessarily disappeared with the abolition of Serjeants’ Inn. Yet,
though the talisman is no longer spoken, the spirit of brotherhood will
always be with us.
In the old days education in the law was undertaken very seriously,
but in a fraternal spirit. The reader would propound a case, the utter
barristers would declare their opinion, the reader would confute the
objections laid against him, and the students would eagerly note the
learned points of the seniors. These readings took four or five hours
daily, and were held in the halls. The moots and the boltings took
place after supper, and at other times among the students under the
leadership of a barrister.
But the whole term was not taken up with the dry study of the law.
There were feastings, grand nights, and, greatest of all, the Christmas
Saturnalia, at one of which, after a costly dinner, a pack of hounds
was brought into the hall, a fox and a cat were let loose, and a mad
hunt took place. Isaac D’Israeli gives an excellent account of these
wild doings, taken from a rare tract supposed to have been written
in 1594. “Supper ended,” he writes, “the constable-marshal presented
himself, with drums playing, mounted on a stage borne by four men, and
carried round; at length he cries out, ‘A lord, a lord,’ &c., and then
calls his mock court every one by name.
“‘Sir Francis Flatterer, of Fowls-hurt.
“‘Sir Randall Rackabite, of Rascal-hall, in the county of Rake-hell.
“‘Sir Morgan Mumchance, of Much Monkery, in the county of Mad Mopery.
“‘Sir Bartholomew Bald-breech, of Buttock-bury, in the county of
Break-neck.’
“They had also their mock arraignments. The king’s-serjeant,
after dinner or supper, ‘oratour-like,’ complained that the
constable-marshal had suffered great disorders to prevail; the
complaint was answered by the common-serjeant, who was to show his
talent at defending the cause. The king’s-serjeant replies; they
rejoin, &c.: till one at length is committed to the Tower, for being
found most deficient. If any offender contrived to escape from the
lieutenant of the Tower into the buttery, and brought into the hall a
manchet (or small loaf) upon the point of a knife, he was pardoned;
for the buttery in this jovial season was considered as a sanctuary.
Then began the _revels_. Blount derives this term from the French
_reveiller_, to awake from sleep. These were sports of dancing, masking
comedies, &c. (for some were called solemn revels), used in great
houses, and were so denominated because they were performed by night;
and these various pastimes were regulated by a master of the revels.
“Amidst ‘the grand Christmass’ a personage of no small importance was
‘the Lord of Misrule.’ His lordship was abroad early in the morning,
and if he lacked any of his officers, he entered their chambers to drag
forth the loiterers; but after breakfast his lordship’s power ended,
and it was in suspense till night, when his personal presence was
paramount, or, as Dugdale expresses it, ‘and then his power is most
potent.’
“Such were then the pastimes of the whole learned bench; and when once
it happened that the under-barristers did not dance on Candlemas Day,
according to the ancient order of the society, when the judges were
present, the whole bar was offended, and at Lincoln’s Inn were by
decimation put out of commons, for example-sake; and should the same
omission be repeated, they were to be fined or disbarred; for these
dancings were thought necessary, ‘as much conducing to the making of
gentlemen more fit for their books at other times.’”
The details of the alliteration with which Sir Francis Flatterer and
others are called into court have always interested me deeply, as on
the Northern Circuit, when the crier at Grand Court calls in the absent
ones, he has to do it in curious and measured phrases of alliterative
abuse. When Fitzjames Stephen was made crier on account of his
stentorian voice, his delicate mind revolted against the coarseness of
his duties, and he sought to have the Circuit Court and its ancient,
outspoken manners abolished, but fortunately he did not succeed.
For though some of this ancientry is better honoured in the breach
than the observance, yet even the buffoonery, as Stephen called it, of
Grand Court has its value as a link with the past.
It is an excellent thing for the profession that in the same way as
the lessons of advocacy in the past were learned by the young students
from their elders, who sat at meat with them and shared their lives in
intimate and homely fashion, so to-day we enter a common Inn, dine at a
common table, join a common mess upon circuit, all of which is evidence
of the continuance of that right spirit of fellowship which, to my
mind, is an essential of advocacy.
The fellowship of the Temple springs from its long traditions of
brotherhood among the Templars. To turn out of the Strand into its
quiet courts brings over your brooding spirit something of that sacred
melancholy pleasure which one feels on entering the old school or
dining once again in the college hall. But you are no longer actor,
art and part, in the school and college life. Here in the Temple,
though others are judges and benchers and fashionable leaders, you
can still wander in shabby honesty in the gardens, pull down some of
the old volumes in the library, and dine below the salt with your
fellow-ancients.
Thackeray has a true insight into the pleasures of memory that the
Temple possesses for those who have lived there, and pictures, as he
alone can, its historic charm.
“Nevertheless,” he writes, “those venerable Inns which have the Lamb
and Flag and the Winged Horse for their ensigns have attractions
for persons who inhabit them, and a share of rough comforts and
freedom which men always remember with pleasure. I don’t know whether
the student of law permits himself the refreshment of enthusiasm,
or indulges in poetical reminiscences as he passes by historical
chambers and says, ‘Yonder Eldon lived--upon this site Coke mused upon
Lyttelton--here Chitty toiled--here Barnwell and Alderson joined in
their famous labours--here Byles composed his great work upon bills,
and Smith compiled his immortal leading cases--here Gustavus still
toils, with Solomon to aid him:’ but the man of letters can’t but love
the place which has been inhabited by so many of his brethren, or
peopled by their creations, as real to us at this day as the authors
whose children they were--and Sir Roger de Coverley, walking in the
Temple Garden and discoursing with Mr. Spectator about the beauties in
hoops and patches who are sauntering over the grass, is just as lovely
a figure to me as old Samuel Johnson rolling through the fog with the
Scotch gentleman at his heels on their way to Dr. Goldsmith’s chambers
in Brick Court; or Harry Fielding, with inked ruffles and a wet towel
round his head, dashing off articles at midnight for the _Covent Garden
Journal_ while the printer’s boy is asleep in the passage.”
The Temple is full of ghosts--honest ghosts with whom it is a privilege
to claim fellowship.
There are some who speak of the Bar sneeringly as a Trade Union--which
it certainly is, and to my thinking one of the oldest and best unions.
And if advocacy could be honestly described as a trade, then the phrase
trade union might be accepted without demurrer. For the basic quality
of a trade union, that which has made these institutions thrive against
opposition, is the spirit of fellowship and unselfishness which is the
ideal of its members.
We have seen how of old the senior members of the Bar trained up the
juniors in the mystery of their craft, and throughout the practice of
the profession it has always been a point of honour for the elders to
assist the beginners in those difficult days of apprenticeship.
What could be more delightful and encouraging to a youngster than to be
received by his genial, handsome leader in the presence of an admiring
attorney after the fashion that Montagu Williams tells us of his first
meeting with Serjeant Shee? “I shall never forget,” he writes, “my
consultation with dear old Serjeant Shee. I knew very little about
pleadings, and matters of that kind, and so the work naturally made
me feel somewhat nervous. On going upstairs to the consulting-room to
see Serjeant Shee, whom I already knew slightly, I had my briefs stuck
under my arm, somewhat ostentatiously, I am afraid. The old serjeant
patted me on the shoulder and said, ‘Lots of briefs flowing in, my boy;
delighted to see it.’
“When we had taken our seats, and the consultation had begun, he said,
turning to the solicitor who instructed us, ‘Winning case--pleadings
all wrong. That young dog over there smelt it out long ago, as a
terrier would a rat, I can see--eh, Montagu Williams? You’ve found it
out; I can see it by your face.’
“Heaven knows I was as innocent of finding anything out as the man in
the moon. I sniggered feebly; and then the serjeant proceeded to put
into my mouth the vital blots in the case of our adversary, which he
alone had discovered.
“That was the way leaders treated their juniors then. I must leave my
successors at the Bar to decide whether or not things are the same now.”
With equal kindness that great man and honest advocate, Abraham
Lincoln, stretched out the hand of welcome and encouragement to the
younger men who came along.
James Haines tells us the story of his first brief, The People _v._
Gideon Hawley. “There were,” he says, “thirty-two indictments against
my client for obstructing a public road, and as the authorities
were inclined to make an example, the case was somewhat serious. I
retained Mr. L. to conduct the defence, and after we had completed our
preparations he said, ‘Of course, you will make the opening speech.’
I was surprised, for I had supposed that he would want to assume full
control, and I said as much, adding that I would prefer him to take
the lead. ‘No,’ he answered, and then, laying a hand on my shoulder,
he continued: ‘I want you to open the case, and when you are doing it,
talk to the jury as though your client’s fate depends on every word you
utter. Forget that you have any one to fall back upon, and you will do
justice to yourself and your client.’ I have never forgotten the kind,
gentle, and tactful manner in which he spoke those words,” Mr. Haines
continued, “and that is a fair sample of the way he treated the younger
members of the Bar.”
No man ever attains a position at the Bar in which he can afford to
despise the opinion of his fellow-men. The eulogies of public journals,
even the praise and patronage of attorneys, are of no worth compared
with the respect of the Bar. As a French advocate wrote: “A solid
reputation proceeds only from the Court.”
Charles Russell, who stood on a somewhat lonely eminence at the head
of his profession, and dealt with the affairs of his fellows in a very
rough-handed and independent manner, was at heart very jealous of the
good opinion of the Bar.
He had, during the course of a trial, cross-examined a lady with great
severity, and afterwards received an anonymous letter of a very abusive
character, in which he was charged with having been guilty of conduct
in his cross-examination “which no gentleman should pursue towards any
woman.” He thereupon sat down and wrote a letter to the counsel on the
other side, in which he said, “I should be sorry to think this was
true, but I am not the best judge of my own conduct,” and asked for his
learned friend’s opinion on the charge.
The interesting point of the correspondence is that Russell felt that
it might possibly be true. It reminds one of the celebrated line in
a lively mid-Victorian comedy, where the servant-girl said, “Really,
ma’am, I’m that flustered that I don’t know whether I am standing on
my head or my heels.” To which Mrs. John Wood used to reply with stern
emphasis, “No decent woman ought to have the slightest doubt on a
subject of that kind.”
Russell’s learned friend cleverly evaded responsibility by telling him
that the character of a gentleman was one “we all know you eminently
possess,” with which certificate of character the great man was soothed
and satisfied.
With the decay of circuits and the passing of old customs and the
silence of ancient convivialities, some of the spirit of fellowship
may be lost. But we must remember that even the good old days were not
without evidence of professional malice and uncharitableness. As far
back as the reign of François I. it was a rule of the French Bar that
“advocates must not use contentious words or exclamations the one
toward the other; or talk several at the same time, or interrupt each
other.” These words might still be engraved in letters of gold on the
walls of our own law-courts, for on occasion the lamp of fellowship
burns so low that such things occur. Still, at the English Bar we may
claim that we set a good example to other bodies of learned men by
our real attachment to the precepts and practice of fellowship, and
may, without hypocrisy, commend the rest of mankind to follow in our
footsteps,
And do as adversaries do in law,
Strive mightily, but eat and drink as friends.
For it is by keeping the lamp of fellowship burning that we encourage
each other to walk in the light of the seven lamps of advocacy.
INDEX
Alderson, Baron, 86
Atlay, J. B., 67
Bacon, Francis, 65
Ballantine, Serjeant, 76, 85
Benjamin, J. P., 26
Berryer, M., 18
Bethell, Richard, 23, 65, 66
Billings, Josh, 56
Birrell, A., 82, 89
Blackstone, Sir W., 13
Boswell, James, 16, 17, 18
Bowen, Lord Justice, 54
Bramwell, Lord, 53
Brougham, Lord, 18, 42, 63, 68, 71, 78
Campbell, Lord Chief Justice, 39, 71
Capitularies of Charlemagne, 14
Chesterfield, Lord, 71
Choate, Rufus, 50, 51, 61, 77
Cicero, 50
Clarke, Sir Edward, 69
Cobbett, William, 68
Cockburn, Lord Chief Justice, 18
Coleridge, Lord Chief Justice, 53, 69, 88, 89
Copley, Serjeant (Lord Lyndhurst), 66
Curran, J. P., 52
D’Aguesseau, 14
Davy, Serjeant, 52
Denman, Lord, 67, 78
D’Israeli, Isaac, 97
Dugdale, Sir William, 44
Eldon, Lord. _See_ Scott, John
Erskine, Lord, 11, 30, 31, 50, 61, 63
Faculty of Advocates, 13
Fielding, Henry, 61, 102
Finch, Heneage, 42, 43
Fortescue, Sir John, 94
François I, 106
Garrick, 11, 61, 62
Grant, James, 66
Guildford, Lord. _See_ North, Francis.
Gully, W. C. (Lord Selby), 45, 53, 66
Haines, James, 104, 105
Hale, Lord Chief Justice, 25
Halsbury, Lord, 89
Hatton, Charles, 23
Hawkins, Sir Henry, 11, 78, 87
Herschell, Lord, 45
Holker, Sir John, 53, 68
Hollams, Sir John, 26
Horn, Andrew, 14
Irving, Sir Henry, 11
James, Lord Justice, 26
Jeffreys, Baron, 23
Johnson, Doctor, 16, 17, 18, 102
Jones, Tom, 28
Karslake, Sir John, 40
Kay, Lord Justice, 27
Kean, 11
Kelly, Chief Baron, 57
Kennedy, Mrs., 88, 89
Kenyon, Lord Chief Justice, 45, 50
Lamb, Charles, 37, 61
Leach, Sir John, 65
Lincoln, Abraham, 19, 38, 61, 78, 104
Lockwood, Sir Frank, 82, 85
Mansfield, Lord Chief Justice, 51
Maynard, Serjeant, 42
_Mirrour of Justices_, 14
North, Francis, 24, 42, 80
North, Roger, 24, 25, 26, 42, 44
O’Brien, R. B., 40, 88
O’Connell, Daniel, 41
Paine, Thomas, 30
Palmer, Sir Roundell (Lord Selborne), 27
Parry, Serjeant, 68, 96
Quintilian, 55
Ribton, 56
Robinson, Serjeant, 28
Roche, Sir Boyle, 52
Russell, Charles (Lord Russell of Killowen), 38, 40, 41, 45, 69, 82,
105, 106
Scarlett, James (Lord Abinger), 61, 67, 68
Scott, John (Lord Eldon), 44, 46
Seward, William Henry, 32
Shee, Serjeant, 68, 103