"Whoe'er has drawn a special plea

Has heard of old Tom Tewkesbury,

Deaf as a post, and thick as mustard,

He aim'd at wit, and bawl'd and bluster'd

And died a Nisi Prius leader--

That genius was my special pleader--

That great man's office I attended,

By Hawk and Buzzard recommended

Attorneys both of wondrous skill,

To pluck the goose and drive the quill.

Three years I sat his smoky room in,

Pens, paper, ink, and pounce consuming;

The fourth, when Epsom Day begun,

Joyful I hailed th' auspicious sun,

Bade Tewkesbury and Clerk adieu;

(Purification, eighty-two)

Of both I wash'd my hands; and though

With nothing for my cash to show,

But precedents so scrawl'd and blurr'd,

I scarce could read a single word,

Nor in my books of common-place

One feature, of the law could trace,

Save Buzzard's nose and visage thin,

And Hawk's deficiency of chin,

Which I while lolling at my ease

Was wont to draw instead of pleas.

My chambers I equipt complete,

Made friends, hired books, and gave to eat;

If haply to regale my friends on,

My mother sent a haunch of ven'son,

I most respectfully entreated

The choicest company to eat it;

_To wit_, old Buzzard, Hawk, and Crow;

_Item_, Tom Thornback, Shark, and Co.

Attorneys all as keen and staunch

As e'er devoured a client's haunch.

And did I not their clerks invite

To taste said ven'son hash'd at night?

For well I knew that hopeful fry

My rising merit would descry,

The same litigious course pursue,

And when to fish of prey they grew,

By love of food and contest led,

Would haunt the spot where once they fed.

Thus having with due circumspection

Formed my professional connexion,

My desks with precedents I strew'd,

Turned critic, danc'd, or penn'd an ode,

Suited the _ton_, became a free

And easy man of gallantry;

But if while capering at my glass,

Or toying with a favorite lass,

I heard the aforesaid Hawk a-coming,

Or Buzzard on the staircase humming,

At once the fair angelic maid

Into my coal-hole I convey'd;

At once with serious look profound,

Mine eyes commencing with the ground,

I seem'd like one estranged to sleep,

'And fixed in cogitation deep,'

Sat motionless, and in my hand I

Held my 'Doctrina Placitandi,'

And though I never read a page in't,

Thanks to that shrewd, well-judging agent,

My sister's husband, Mr. Shark,

Soon got six pupils and a clerk.

Five pupils were my stint, the other

I took to compliment his mother."

Having fleeced pupils, and worked as a special pleader for a time, Mr.

Surrebutter is called to the bar; after which ceremony his action

towards 'the inferior branch' of the profession is not more dignified

than it was whilst he practised as a Special Pleader.

It appears that in Mr. Surrebutter's time (_circa_ 1780) it was usual

for a student to spend three whole years in the same pleader's chambers,

paying three hundred guineas for the course of study. Not many years

passed before students saw it was not to their advantage to spend so

long a period with the same instructor, and by the end of the century

the industrious student who could command the fees wherewith to pay for

such special tuition, usually spent a year or two in a pleader's

chambers, and another year or two in the chambers of an equity

draughtsman, or conveyancer. Lord Campbell, at the opening of the

present century, spent three years in the chambers of the eminent

Special Pleader, Mr. Tidd, of whose learning and generosity the

biographer of the Chancellors makes cordial and grateful acknowledgment.

Finding that Campbell could not afford to pay a second hundred guineas

for a second year's instruction, Tidd not only offered him the run of

his chambers without payment, but made the young Scotchman take back the

L105 which he had paid for the first twelve months.

In his later years Lord Campbell delighted to trace his legal pedigree

to the great pleader and 'pupillizer' of the last century, Tom Warren.

The chart ran thus: "Tom Warren had for pupil Sergeant Runnington, who

instructed in the mysteries of special pleading the learned Tidd, who

was the teacher of John Campbell." With honest pride and pleasant vanity

the literary Chancellor maintained that he had given the genealogical

tree another generation of forensic honor, as Solicitor General Dundas

and Vaughan Williams, of the Common Pleas Bench, were his pupils.

Though Campbell speaks of _Tom Warren_ as "the greater founder of the

special pleading race," and maintains that "the voluntary discipline of

the special pleader's office" was unknown before the middle of the last

century, it is certain that the voluntary discipline of a legal

instructor's office or chambers was an affair of frequent occurrence

long before Warren's rise. Roger North, in his 'Discourse on the Study

of the Laws,' makes no allusion to any such voluntary discipline as an

ordinary feature of a law-student's career; but in his 'Life of Lord

Keeper Guildford' he expressly informs us that he was a pupil in his

brother's chambers. "His lordship," writes the biographer, "having taken

that advanced post, and designing to benefit a relation (the Honorable

Roger North), who was a student in the law, and kept him company, caused

his clerk to put into his hands all his draughts, such as he himself had

corrected, and after which conveyances had been engrossed, that, by a

perusal of them, he might get some light into the formal skill of

conveyancing. And that young gentleman instantly went to work, and first

numbered the draughts, and then made an index of all the clauses,

referring to that number and folio; so that, in this strict perusal and

digestion of the various matters, he acquired, not only a formal style,

but also apt precedents, and a competent notion of instruments of all

kinds. And to this great condescension was owing that little progress he

made, which afterwards served to prepare some matters for his lordship's

own perusal and settlement." Here then is a case of a pupil in a

barrister's chambers in Charles II.'s reign; and it is a case that

suffers nothing from the fact that the teacher took no fee.

In like manner, John Trevor (subsequently Master of the Rolls and

Speaker of the Commons) about the same time was "bred a sort of clerk in

old Arthur Trevor's chamber, an eminent and worthy professor of the law

in the Inner Temple." On being asked what might be the name of the boy

with such a hideous squint who sate at a clerk's desk in the outer room,

Arthur Trevor answered, "A kinsman of mine that I have allowed to sit

here, to learn the knavish part of the law." It must be observed that

John Trevor was not a clerk, but merely a "sort of a clerk" in his

kinsman's chamber.

In the latter half of the seventeenth century, and in the earlier half

of the eighteenth century, students who wished to learn the practice of

the law usually entered the offices of attorneys in large practice. At

that period, the division between the two branches of the profession was

much less wide than it subsequently became; and no rule or maxim of

professional etiquette forbade Inns-of-Court men to act as the

subordinates of attorneys and solicitors. Thus Philip Yorke (Lord

Hardwicke) in Queen Anne's reign acted as clerk in the office of Mr.

Salkeld, an attorney residing in Brook Street, Holborn, whilst he kept

his terms at the Temple; and nearly fifty years later, Ned Thurlow (Lord

Thurlow), on leaving Cambridge, and taking up his residence in the

Temple, became a pupil in the office of Mr. Chapman, a solicitor, whose

place of business was in Lincoln's Inn. There is no doubt that it was

customary for young men destined the bar thus to work in attorneys'

offices; and they continued to do so without any sense of humiliation or

thought of condescension, until the special pleaders superseded the

attorneys as instructors.

[29] The mention of 'the Hardwicke' brings a droll story to the writer's

mind. Some few years since the members of that learned fraternity

assembled at their customary plate of meeting--a large room in

Anderton's Hotel, Fleet Street--to discuss a knotty point of law about

anent Uses. The master of young men was strong; and amongst

them--conspicuous for his advanced years, jovial visage, red nose, and

air of perplexity--sate an old gentleman who was evidently a stranger to

every lawyer present. Who was he? Who brought him? Was there any one in

the room who knew him? Such were the whispers that floated about,

concerning the portly old man, arrayed in blue coat and drab breeches

and gaiters, who took his snuff in silence, and watched the proceedings

with evident surprise and dissatisfaction. After listening to three

speeches this antique, jolly stranger rose, and with much embarrassment

addressed the chair. "Mr. President," he said--"excuse me; but may I

ask,--is this 'The Convivial Rabbits?'" A roar of laughter followed this

enquiry from a 'convivial rabbit,' who having mistaken the evening of

the week, had wandered into the room in which his convivial

fellow-clubsters had held a meeting on the previous evening. On

receiving the President's assurance that the learned members of a

law-debating society were not 'convivial rabbits,' the elderly stranger

buttoned his blue coat and beat a speedy retreat.

PART VIII.

MIRTH.

CHAPTER XXXIX.

WIT OF LAWYERS.

No lawyer has given better witticisms to the jest-books than Sir Thomas

More. Like all legal wits, he enjoyed a pun, as Sir Thomas Manners, the

mushroom Earl of Rutland discovered, when he winced under the cutting

reproof of his insolence, conveyed in the translation of 'Honores mutant

mores'--_Honors change manners_. But though he would condescend to play

with words as a child plays with shells on a sea-beach, he could at will

command the laughter of his readers without having recourse to mere

verbal antics. He delighted in what may be termed humorous

mystification. Entering Bruges at a time when his leaving had gained

European notoriety, he was met by the challenge of a noisy fellow who

proclaimed himself ready to dispute with the whole world--or any other

man--"in omni scibili et de quolibet ente." Accepting the invitation,

and entering the lists in the presence of all the scholastic magnates of

Bruges, More gravely inquired, "An averia carucae capta in vetitonamio

sint irreplegibilia?" Not versed in the principles and terminology of

the common law of England, the challenger could only stammer and

blush--whilst More's eye twinkled maliciously, and his auditors were

convulsed with laughter.

Much of his humor was of the sort that is ordinarily called _quiet_

humor, because its effect does not pass off in shouts of merriment. Of

this kind of pleasantry he gave the Lieutenant of the Tower a specimen,

when he said, with as much courtesy as irony, "Assure yourself I do not

dislike my cheer; but whenever I do, then spare not to thrust me out of

your doors!" Of the same sort were the pleasantries with which, on the

morning of his execution, he with fine consideration for others strove

to divert attention from the cruelty of his doom. "I see no danger," he

observed, with a smile, to his friend Sir Thomas Pope, shaking his

water-bottle as he spoke, "but that this man may live longer if it

please the king." Finding in the craziness of the scaffold a good

pretext for leaning in friendly fashion on his gaoler's arm, he extended

his hand to Sir William Kingston, saying, "Master Lieutenant, I pray you

see me safe up; for my coming down let me shift for myself." Even to the

headsman he gave a gentle pleasantry and a smile from the block itself,

as he put aside his beard so that the keen blade should not touch it.

"Wait, my good friend, till I have removed my beard," he said, turning

his eyes upwards to the official, "for it has never offended his

highness."

His wit was not less ready than brilliant, and on one occasion its

readiness saved him from a sudden and horrible death. Sitting on the

roof of his high gate-house at Chelsea, he was enjoying the beauties of

the Thames and the sunny richness of the landscape, when his solitude

was broken by the unlooked-for arrival of a wandering maniac. Wearing

the horn and badge of a Bedlamite, the unfortunate creature showed the

signs of his malady in his equipment as well as his countenance. Having

cast his eye downwards from the parapet to the foot of the tower, he

conceived a mad desire to hurl the Chancellor from the flat roof. "Leap,

Tom! leap!" screamed the athletic fellow, laying a firm hand on More's

shoulder. Fixing his attention with a steady look, More said, coolly,

"Let us first throw my little dog down, and see what sport that will

be." In a trice the dog was thrown into the air. "Good!" said More,

feigning delight at the experiment: "now run down, fetch the dog, and

we'll throw him off again." Obeying the command, the dangerous intruder

left More free to secure himself by a bar, and to summon assistance with

his voice.

For a good end this wise and mirth-loving lawyer would play the part of

a practical joker; and it is recorded that by a jest of the practical

sort he gave a wholesome lesson to an old civic magistrate, who, at the

Sessions of the Old Bailey, was continually telling the victims of

cut-purses that they had only themselves to thank for their losses--that

purses would never be cut if their wearers took proper care to retain

them in their possession. These orations always terminated with, "I

never lose _my_ purse; cut-purses never take _my_ purse; no, i'faith,

because I take proper care of it." To teach his worship wisdom, and cure

him of his self-sufficiency, More engaged a cut-purse to relieve the

magistrate of his money-bag whilst he sat upon the bench. A story is

recorded of another Old Bailey judge who became the victim of a thief

under very ridiculous circumstances. Whilst he was presiding at the

trial of a thief in the Old Bailey, Sir John Sylvester, Recorder of

London, said incidentally that he had left his watch at home. The trial

ended in an acquittal, the prisoner had no sooner gained his liberty

than he hastened to the recorder's house, and sent in word to Lady

Sylvester that he was a constable and had been sent from the Old Bailey

to fetch her husband's watch. When the recorder returned home and found

he had lost his watch, it is to be feared that Lady Sylvester lost her

usual equanimity. _Apropos_ of these stories Lord Campbell tells--how,

at the opening period of his professional career, soon after the

publication of his 'Nisi Prius Reports,' he on circuit successfully

defended a prisoner charged with a criminal offence; and how, whilst the

success of his advocacy was still quickening his pulses, he discovered

that his late client, with whom he held a confidential conversation, had

contrived to relieve him of his pocket-book, full of bank-notes. As soon

as the presiding judge, Lord Chief Baron Macdonald, heard of the mishap

of the reporting barrister, he exclaimed, "What! does Mr. Campbell think

that no one is entitled to _take notes_ in court except himself?"

By the urbane placidity which marked the utterance of his happiest

speeches, Sir Nicholas Bacon often recalled to his hearers the courteous

easiness of More's _repartees_. Keeping his own pace in society, as well

as in the Court of Chancery, neither satire nor importunity could ruffle

or confuse him. When Elizabeth, looking disdainfully at his modest

country mansion, told him that the place was too small, he answered with

the flattery of gratitude, "Not so, madam, your highness has made me too

great for my house." Leicester having suddenly asked him his opinion of

two aspirants for court favor, he responded on the spur of the moment,

"By my troth, my lord, the one is a grave councillor: the other is a

proper young man, and so he will be as long as he lives." To the queen,

who pressed him for his sentiments respecting the effect of

monopolies--a delicate question for a subject to speak his mind

upon--he answered, with conciliatory lightness, "Madam, will you have me

speak the truth? _Licentia_ omnes deteriores sumus." In court he used to

say, "Let us stay a little, that we may have done the sooner." But

notwithstanding his deliberation and the stutter that hindered his

utterances, he could be quicker than the quickest, and sharper than the

most acrid, as the loquacious barrister discovered who was suddenly

checked in a course of pert talkativeness by this tart remark from the

stammering Lord Keeper: "There is a difference between you and me,--for

me it is a pain to s-speak, for you a pain to hold your tongue." That

the familiar story of his fatal attack of cold is altogether true one

cannot well believe, for it seems highly improbable that the Lord

Keeper, in his seventieth year, would have sat down to be shaved near an

open window in the month of February. But though the anecdote may not be

historically exact, it may be accepted as a faithful portraiture of his

more stately and severely courteous humor. "Why did you suffer me to

sleep thus exposed?" asked the Lord Keeper, waking in a fit of shivering

from slumber into which his servant had allowed him to drop, as he sat

to be shaved in a place where there was a sharp current of air. "Sir, I

durst not disturb you," answered the punctilious valet, with a lowly

obeisance. Having eyed him for a few seconds, Sir Nicholas rose and

said, "By your civility I lose my life." Whereupon the Lord Keeper

retired to the bed from which he never rose.

Amongst Elizabethan Judges who aimed at sprightliness on the Bench,

Hatton merits a place; but there is reason to think that the idlers, who

crowded his court to admire the foppishness of his judicial costume, did

not get one really good _mot_ from his lips to every ten bright sayings

that came from the clever barristers practising before him. One of the

best things attributed to him is a pun. In a case concerning the limits

of certain land, the counsel on one side having remarked with

explanatory emphasis, "We lie on this side, my Lord;" and the counsel on

the other side having interposed with equal vehemence, "We lie on this

side, my Lord,"--the Lord Chancellor leaned backwards, and dryly

observed, "If you lie on both sides, whom am I to believe?" In

Elizabethan England the pun was as great a power in the jocularity of

the law-courts as it is at present; the few surviving witticisms that

are supposed to exemplify Egerton's lighter mood on the bench, being for

the most part feeble attempts at punning. For instance, when he was

asked, during his tenure of the Mastership of the Rolls, to _commit_ a

cause, _i.e._, to refer it to a Master in Chancery, he used to answer,

"What has the cause done that it should be committed?" It is also

recorded of him that, when he was asked for his signature to a petition

of which he disapproved, he would tear it in pieces with both hands,

saying, "You want my hand to this? You shall have it; aye, and both my

hands, too."

Of Egerton's student days a story is extant, which has merits,

independent of its truth or want of truth. The hostess of a Smithfield

tavern had received a sum of money from three graziers, in trust for

them, and on engagement to restore it to them on their joint demand.

Soon after this transfer, one of the co-depositors, fraudulently

representing himself to be acting as the agent of the other two, induced

the old lady to give him possession of the whole of the money--and

thereupon absconded. Forthwith the other two depositors brought an

action against the landlady, and were on the point of gaining a decision

in their favor, when young Egerton, who had been taking notes of the

trial, rose as _amicus curiae_, and argued, "This money, by the contract,

was to be returned to _three_, but _two_ only sue;--where is the

_third_? let him appear with the others; till then the money cannot be

demanded from her." Nonsuit for the plaintiffs--for the young student a

hum of commendation.

Many of the pungent sayings current in Westminster Hall at the present

time, and attributed to eminent advocates who either are still upon the

forensic stage, or have recently withdrawn from it, were common jests

amongst the lawyers of the seventeenth century. What law-student now

eating dinners at the Temple has not heard the story of Sergeant

Wilkins, who, on drinking a pot of stout in the middle of the day,

explained that, as he was about to appear in court, he thought it right

to fuddle his brain down to the intellectual standard of a British jury.

This merry thought, two hundred and fifty years since, was currently

attributed to Sir John Millicent, of Cambridgeshire, of whom it is

recorded--"being asked how he did conforme himselfe to the grave

justices his brothers, when they met, 'Why, in faithe,' sayes he, 'I

have no way but to drinke myself downe to the capacitie of the Bench.'"

Another witticism, currently attributed to various recent celebrities,

but usually fathered upon Richard Brinsley Sheridan--on whose reputation

have been heaped the brilliant _mots_ of many a speaker whom he never

heard, and the indiscretions of many a sinner whom he never knew--is

certainly as old as Shaftesbury's bright and unprincipled career. When

Charles II. exclaimed, "Shaftesbury, you are the most profligate man in

my dominions," the reckless Chancellor answered, "Of a subject, sir, I

believe I am." It is likely enough that Shaftesbury merely repeated the

witticism of a previous courtier; but it is certain that Sheridan was

not the first to strike out the pun.

In this place let a contradiction be given to a baseless story, which

exalts Sir William Follett's reputation for intellectual readiness and

argumentative ability. The story runs, that early in the January of

1845, whilst George Stephenson, Dean Buckland, and Sir William Follett

were Sir Robert Peel's guests at Drayton Manor, Dean Buckland vanquished

the engineer in a discussion on a geological question. The next morning,

George Stephenson was walking in the gardens of Drayton Manor before

breakfast, when Sir William Follett accosted him, and sitting down in an

arbor asked for the facts of the argument. Having quickly 'picked up the

case,' the lawyer joined Sir Robert Peel's guests at breakfast, and

amused them by leading the dean back to the dispute of the previous day,

and overthrowing his fallacies by a skilful use of the same arguments

which the self-taught engineer had employed with such ill effect. "What

do you say, Mr. Stephenson?" asked Sir Robert Peel, enjoying the dean's

discomfiture. "Why," returned George Stephenson, "I only say this, that

of all the powers above and under earth, there seems to me no power so

great as the gift of the gab." This is the story. But there are facts

which contradict it. The only visit paid by George Stephenson to Drayton

Manor was made in the December of 1844, not the January of 1845. The

guests (invited for Dec. 14, 1844), were Lord Talbot, Lord Aylesford,

the Bishop of Lichfield, Dr. Buckland, Dr. Lyon Playfair, Professor

Owen, George Stephenson, Mr. Smith of Deanston, and Professor

Wheatstone. Sir William Follett was not of the party, and did not set

foot within Drayton Manor during George Stephenson's visit there. Of

this, Professor Wheatstone (who furnished the present writer with these

particulars), is certain. Moreover, it is not to be believed that Sir

William Follett, an overworked invalid (who died in the June of 1845 of

the pulmonary disease under which he had suffered for years), would sit

in an arbor before breakfast on a winter's morning to hold debate with

a companion on any subject. The story is a revival of an anecdote first

told long before George Stephenson was born.

In lists of legal _facetiae_ the habit of punning is not more noticeable

than the prevalent unamiability of the jests. Advocates are intellectual

gladiators, using their tongues as soldiers of fortune use their swords;

and when they speak, it is to vanquish an adversary. Antagonism is an

unavoidable condition of their existence; and this incessant warfare

gives a merciless asperity to their language, even when it does not

infuse their hearts with bitterness. Duty enjoins the barrister to leave

no word unsaid that can help his client, and encourages him to perplex

by satire, baffle by ridicule, or silence by sarcasm, all who may oppose

him with statements that cannot be disproved, or arguments that cannot

be upset by reason. That which duty bids him do, practice enables him to

do with terrible precision and completeness; and in many a case the

caustic tone, assumed at the outset as a professional weapon, becomes

habitual, and, without the speaker's knowledge, gives more pain within

his home than in Westminster Hall.

Some of the well-known witticisms attributed to great lawyers are so

brutally personal and malignant, that no man possessing any respect for

human nature can read them without endeavoring to regard them as mere

biographic fabrications. It is recorded of Charles Yorke that, after his

election to serve as member for the University of Cambridge, he, in

accordance with etiquette, made a round of calls on members of senate,

giving them personal thanks for their votes; and that on coming to the

presence of a supporter--an old 'fellow' known as the ugliest man in

Cambridge--he addressed him thus, after smiling 'an aside' to a knot of

bystanders--"Sir, I have reason to be thankful to my friends in

general; but I confess myself under particular obligation to you for

the very _remarkable countenance_ you have shown me on this occasion."

There is no doubt that Charles Yorke could make himself unendurably

offensive; it is just credible that without a thought of their double

meaning he uttered the words attributed to him; but it is not to be

believed that he--an English gentleman--thus intentionally insulted a

man who had rendered him a service.

A story far less offensive than the preceding anecdote, but in one point

similar to it, is told of Judge Fortescue-Aland (subsequently Lord

Fortescue), and a counsel. Sir John Fortescue-Aland was disfigured by a

nose which was purple, and hideously misshapen by morbid growth. Having

checked a ready counsel with the needlessly harsh observation, "Brother,

brother, you are handling the case in a very lame manner," the angry

advocate gave vent to his annoyance by saying, with a perfect appearance

of _sang-froid_, "Pardon me, my lord; have patience with me, and I will

do my best to make the case as plain as--as--the nose on your lordship's

face." In this case the personality was uttered in hot blood, by a man

who deemed himself to be striking the enemy of his professional

reputation.

If they were not supported by incontrovertible testimony, the admirers

of the great Sir Edward Coke would reject as spurious many of the

overbearing rejoinders which escaped his lips in courts of justice. His

tone in his memorable altercation with Bacon at the bar of the Court of

Exchequer speaks ill for the courtesy of English advocates in

Elizabeth's reign; and to any student who can appreciate the dignified

formality and punctilious politeness that characterized English

gentlemen in the old time, it is matter of perplexity how a man of

Coke's learning, capacity, and standing, could have marked his contempt

for 'Cowells Interpreter,' by designating the author in open court Dr.

Cowheel. Scarcely in better taste were the coarse personalities with

which, as Attorney General, he deluged Garnet the Jesuit, whom he

described as "a Doctor of Jesuits; that is, a Doctor of six D's--as

Dissimulation, Deposing of princes, Disposing of kingdoms, Daunting and

Deterring of Subjects, and Destruction."

In comparatively recent times few judges surpassed Thurlow in

overbearing insolence to the bar. To a few favorites, such as John Scott

and Kenyon, he could be consistently indulgent, although even to them

his patronage was often disagreeably contemptuous; but to those who

provoked his displeasure by a perfectly independent and fearless bearing

he was a malignant persecutor. For instance, in his animosity to Richard

Pepper Arden (Lord Alvanley), he often forgot his duty as a judge and

his manners as a gentleman. John Scott, on one occasion, rising in the

Court of Chancery to address the court after Arden, who was his leader

in the cause, and had made an unusually able speech, Lord Thurlow had

the indecency to say, "Mr. Scott, I am glad to find that you are engaged

in the cause, for I now stand some chance of knowing something about the

matter." To the Chancellor's habitual incivility and insolence it is

allowed that Arden always responded with dignity and self-command,

humiliating his powerful and ungenerous adversary by invariable

good-breeding. Once, through inadvertence, he showed disrespect to the

surly Chancellor, and then he instantly gave utterance to a cordial

apology, which Thurlow was not generous enough to accept with

appropriate courtesy. In the excitement of professional altercation with

counsel respecting the ages of certain persons concerned in a suit, he

committed the indecorum of saying aloud, "I'll lay you a bottle of

wine." Ever on the alert to catch his enemy tripping, Thurlow's eye

brightened as his ear caught the careless words; and in another instant

he assumed a look of indignant disgust. But before the irate judge could

speak, Arden exclaimed, "My lord, I beg your lordship's pardon; I really

forgot where I was." Had Thurlow bowed a grave acceptance of the

apology, Arden would have suffered somewhat from the misadventure; but

unable to keep his abusive tongue quiet, the 'Great Bear' growled out,

in allusion to the offender's Welsh judgeship, "You thought you were in

your own court, I presume."

More laughable, but not more courteous, was the same Chancellor's speech

to a solicitor who had made a series of statements in a vain endeavor to

convince his lordship of a certain person's death. "Really, my lord," at

last the solicitor exclaimed, goaded into a fury by Thurlow's repeated

ejaculations of "That's no proof of the man's death;" "Really, my lord,

it is very hard, and it is not right that you won't believe me. I saw

the man dead in his coffin. My lord, I tell you he was my client, and he

is dead." "No wonder," retorted Thurlow, with a grunt and a sneer,

"_since he was your client_. Why did you not tell me that sooner? It

would kill me to have such a fellow as you for my attorney." That this

great lawyer could thus address a respectable gentleman is less

astonishing when it is remembered, that he once horrified a party of

aristocratic visitors at a country-house by replying to a lady who

pressed him to take some grapes, "Grapes, madam, grapes! Did not I say a

minute ago that I had the _gripes_!" Once this ungentle lawyer was

fairly worsted in a verbal conflict by an Irish pavier. On crossing the

threshold of his Ormond Street house one morning, the Chancellor was

incensed at seeing a load of paving-stones placed before his door.

Singling out the tallest of a score of Irish workmen who were repairing

the thoroughfare, he poured upon him one of those torrents of curses

with which his most insolent speeches were usually preluded, and then

told the man to move the stones away instantly. "Where shall I take them

to, your honor?" the pavier inquired. From the Chancellor another volley

of blasphemous abuse, ending with, "You lousy scoundrel, take them to

hell!--do you hear me?" "Have a care, your honor," answered the workman,

with quiet drollery, "don't you think now that if I took 'em to the

other place your honor would be less likely to fall over them?"

Thurlow's incivility to the solicitor reminds us of the cruel answer

given by another great lawyer to a country attorney, who, through fussy

anxiety for a client's interests, committed a grave breach of

professional etiquette. Let this attorney be called Mr. Smith, and let

it be known that Mr. Smith, having come up to London from a secluded

district of a remote country, was present at a consultation of

counsellors learned in the law upon his client's cause. At this

interview, the leading counsel in the cause, the Attorney General of the

time, was present and delivered his final opinion with characteristic

clearness and precision. The consultation over, the country attorney

retreated to the Hummums Hotel, Covent Garden, and, instead of sleeping

over the statements made at the conference, passed a wretched and

wakeful night, harassed by distressing fears, and agitated by a

conviction that the Attorney General had overlooked the most important

point of the case. Early next day, Mr. Smith, without appointment, was

at the great counsellor's chambers, and by vehement importunity, as well

as a liberal donation to the clerk, succeeded in forcing his way to the

advocate's presence. "Well, Mis-ter Smith," observed the Attorney

General to his visitor, turning away from one of his devilling juniors,

who chanced to be closeted with him at the moment of the intrusion,

"what may you want to say? Be quick, for I am pressed for time."

Notwithstanding the urgency of his engagements, he spoke with a slowness

which, no less than the suspicious rattle of his voice, indicated the

fervor of displeasure. "Sir Causticus Witherett, I trust you will excuse

my troubling you; but, sir, after our yesterday's interview, I went to

my hotel, the Hummums, in Covent Garden, and have spent the evening and

all night turning over my client's case in my mind, and the more I turn

the matter over in my mind, the more reason I see to fear that you have

not given one point due consideration." A pause, during which Sir

Causticus steadily eyed his visitor, who began to feel strangely

embarrassed under the searching scrutiny: and then--"State the point,

Mis-ter Smith, but be brief." Having heard the point stated, Sir

Causticus Witherett inquired, "Is that all you wish to say?" "All,

sir--all," replied Mr. Smith; adding nervously, "And I trust you will

excuse me for troubling you about the matter; but, sir, I could not

sleep a wink last night; all through the night I was turning this matter

over in my mind." A glimpse of silence. Sir Causticus rose and standing

over his victim made his final speech--"Mis-ter Smith, if you take my

advice, given with sincere commiseration for your state, you will

without delay return to the tranquil village in which you habitually

reside. In the quietude of your accustomed scenes you will have leisure

to _turn this matter over in what you are pleased to call your mind_.

And I am willing to hope that _your mind_ will recover its usual

serenity. Mr. Smith, I wish you a very good morning."

Legal biography abounds with ghastly stories that illustrate the

insensibility with which the hanging judges in past generations used to

don the black cap jauntily, and smile at the wretched beings whom they

sentenced to death. Perhaps of all such anecdotes the most thoroughly

sickening is that which describes the conduct of Jeffreys, when, as

Recorder of London, he passed sentence of death on his old and familiar

friend, Richard Langhorn, the Catholic barrister--one of the victims of

the Popish Plot phrensy. It is recorded that Jeffreys, not content with

consigning his friend to a traitor's doom, malignantly reminded him of

their former intercourse, and with devilish ridicule admonished him to

prepare his soul for the next world. The authority which gives us this

story adds, that by thus insulting a wretched gentleman and personal

associate, Jeffreys, instead of rousing the disgust of his auditors,

elicited their enthusiastic applause.

In a note to a passage in one of the Waverley Novels, Scott tells a

story of an old Scotch judge, who, as an enthusiastic chess-player, was

much mortified by the success of an ancient friend, who invariably beat

him when they tried their powers at the beloved game. After a time the

humiliated chess-player had his day of triumph. His conqueror happened

to commit murder, and it became the judge's not altogether painful duty

to pass upon him the sentence of the law. Having in due form and with

suitable solemnity commended his soul to the divine mercy, he, after a

brief pause, assumed his ordinary colloquial tone of voice, and nodding

humorously to his old friend, observed--"And noo, Jammie, I think ye'll

alloo that I hae checkmated you for ance."

Of all the bloodthirsty wearers of the ermine, no one, since the opening

of the eighteenth century, has fared worse than Sir Francis Page--the

virulence of whose tongue and the cruelty of whose nature were marks for

successive satirists. In one of his Imitations of Horace, Pope says--

"Slanderer, poison dread from Delia's rage,

Hard words or hanging, if your judge be Page."

In the same spirit the poet penned the lines of the 'Dunciad'--

"Mortality, by her false guardians drawn,

Chicane in furs, and Casuistry in lawn,

Gasps, as they straighten at each end the cord,

And dies, when Dulness gives her----the Sword."

Powerless to feign insensibility to the blow, Sir Francis openly fitted

this _black_ cap to his dishonored head by sending his clerk to

expostulate with the poet. The ill-chosen ambassador performed his

mission by showing that, in Sir Francis's opinion, the whole passage

would be sheer nonsense, unless 'Page' were inserted in the vacant

place. Johnson and Savage took vengeance on the judge for the judicial

misconduct which branded the latter poet a murderer; and Fielding, in

'Tom Jones,' illustrating by a current story the offensive levity of the

judge's demeanor at capital trials, makes him thus retort on a

horse-stealer: "Ay! thou art a lucky fellow; I have traveled the circuit

these forty years, and never found a horse in my life; but I'll tell

thee what, friend, thou wast more lucky than thou didst know of; for

thou didst not only find a horse, but a halter too, I promise thee."

This scandal to his professional order was permitted to insult the

humane sentiments of the nation for a long period. Born in 1661, he died

in 1741, whilst he was still occupying a judicial place; and it is said

of him, that in his last year he pointed the ignominious story of his

existence by a speech that soon ran the round of the courts. In answer

to an inquiry for his health, the octogenarian judge observed, "My dear

sir--you see how it fares with me; I just manage to keep _hanging on,

hanging on_." This story is ordinarily told as though the old man did

not see the unfavorable significance of his words; but it is probable

that, he uttered them wittingly and with, a sneer--in the cynicism and

shamelessness of old age.

A man of finer stuff and of various merits, but still famous as a

'hanging judge,' was Sir Francis Buller, who also made himself odious to

the gentler sex by maintaining that husbands might flog their wives, if

the chastisement were administered with a stick not thicker than the

operator's thumb. But the severity to criminals, which gave him a place

amongst hanging judges, was not a consequence of natural cruelty.

Inability to devise a satisfactory system of secondary punishments, and

a genuine conviction that ninety-nine out of every hundred culprits were

incorrigible, caused him to maintain that the gallows-tree was the most

efficacious as well as the cheapest instrument that could be invented

for protecting society against malefactors. Another of his stern _dicta_

was, that previous good character was a reason for increasing rather

than a reason for lessening a culprit's punishment; "For," he argued,

"the longer a prisoner has enjoyed the good opinion of the world, the

less are the excuses for his misdeeds, and the more injurious is his

conduct to public morality."

In contrast to these odious stories of hanging judges are some anecdotes

of great men, who abhorred the atrocities of our penal system, long

before the worst of them were swept away by reform. Lord Mansfield has

never been credited with lively sensibilities, but his humanity was so

shocked by the bare thought of killing a man for committing a trifling

theft, that he on one occasion ordered a jury to find that a stolen

trinket was of less value than forty shillings--in order that the thief

might escape the capital sentence. The prosecutor, a dealer in jewelry,

was so mortified by the judge's leniency, that he exclaimed, "What, my

lord, my golden trinket not worth forty shillings? Why, the fashion

alone cost me twice the money!" Removing his glance from the vindictive

tradesman, Lord Mansfield turned towards the jury, and said, with solemn

gravity, "As we stand in need of God's mercy, gentlemen, let us not hang

a man for fashion's sake."

Tenderness of heart was even less notable in Kenyon than in Murray; but

Lord Mansfield's successor was at least on one occasion stirred by

apathetic consequence of the bloody law against persons found guilty of

trivial theft. On the Home Circuit, having passed sentence of death on a

poor woman who had stolen property to the value of forty shillings in a

dwelling-house, Lord Kenyon saw the prisoner drop lifeless in the dock,

just as he ceased to speak. Instantly the Chief Justice sprang to his

feet, and screamed in a shrill tone, "I don't mean to hang you--do you

hear!--don't you hear?--Good----will nobody tell her that I don't mean

to hang her?"

One of the humorous aspects of a repulsive subject is seen in the

curiosity and fastidiousness of prisoners on trial for capital offences

with regard to the professional _status_ of the judges who try them. A

sheep-stealer of the old bloody days liked that sentence should be

passed upon him by a Chief Justice; and in our own time murderers

awaiting execution, sometimes grumble at the unfairness of their trials,

because they have been tried by judges of inferior degree. Lord Campbell

mentions the case of a sergeant, who, whilst acting as Chief Justice

Abbott's deputy, on the Oxford circuit, was reminded that he was 'merely

a temporary' by the prisoner in the dock. Being asked in the usual way

if he had aught to say why sentence of death should not be passed upon

him, the prisoner answered--"_Yes; I have been tried before a journeyman

judge._"

CHAPTER XL.

HUMOROUS STORIES.

Alike commendable for its subtlety and inoffensive humor was the

pleasantry with which young Philip Yorke (afterwards Lord Hardwicke),

answered Sir Lyttleton Powys's banter on the Western Circuit. An amiable

and upright, but far from brilliant judge, Sir Lyttleton had a few pet

phrases---amongst them, "I humbly conceive," and "Look, do you

see"--which he sprinkled over his judgments and colloquial talk with

ridiculous profuseness. Surprised at Yorke's sudden rise into lucrative

practice, this most gentlemanlike worthy was pleased to account for the

unusual success by maintaining that young Mr. Yorke must have written a

law-book, which had brought him early into favor with the inferior

branch of the profession. "Mr. Yorke," said the venerable justice,

whilst the barristers were sitting over their wine at a 'judges'

dinner,' "I cannot well account for your having so much business,

considering how short a time you have been at the bar: I humbly conceive

you must have published something; for look you, do you see, there is

scarcely a cause in court but you are employed in it on one side or the

other. I should therefore be glad to know, Mr. Yorke, do you see,

whether this be the case." Playfully denying that he possessed any

celebrity as a writer on legal matters, Yorke, with an assumption of

candor, admitted that he had some thoughts of lightening the labors of

law-students by turning Coke upon Littleton into verse. Indeed, he

confessed that he had already begun the work of versification. Not

seeing the nature of the reply, Sir Lyttleton Powys treated the droll

fancy as a serious project, and insisted that the author should give a

specimen of the style of his contemplated work. Whereupon the young

barrister--not pausing to remind a company of lawyers of the words of

the original. "Tenant in fee simple is he which hath lands or tenements

to hold to him and his heirs for ever"--recited the lines--

"He that holdeth his lands in fee

Need neither to quake nor quiver,

_I humbly conceive: for look, do you see_

They are his and his heirs' forever."

The mimicry of voice being not less perfect than the verbal imitation,

Yorke's hearers were convulsed with laughter, but so unconscious was Sir

Lyttleton of the ridicule which he had incurred, that on subsequently

encountering Yorke in London, he asked how "that translation of Coke

upon Littleton was getting on." Sir Lyttleton died in 1732, and exactly

ten years afterwards appeared the first edition of 'The Reports of Sir

Edward Coke, Knt., in Verse'--a work which its author may have been

inspired to undertake by Philip Yorke's proposal to versify 'Coke on

Littleton.'

Had Yorke's project been carried out, lawyers would have a large supply

of that comic but sound literature of which Sir James Burrow's Reports

contain a specimen in the following poetical version of Chief Justice

Pratt's memorable decision with regard to a woman of English birth, who

was the widow of a foreigner:

"A woman having settlement

Married a man with none,

The question was, he being dead,

If what she had was gone.

"Quoth Sir John Pratt, 'The settlement

Suspended did remain,

Living the husband; but him dead

It doth revive again.'

(_Chorus of Puisne Judges._)

"Living the husband; but him dead

It doth revive again."

Chief Justice Pratt's decision on this point having been reversed by his

successor, Chief Justice Ryder's judgment was thus reported:

"A woman having a settlement,

Married a man with none,

He flies and leaves her destitute;

What then is to be done?

"Quoth Ryder, the Chief Justice,

'In spite of Sir John Pratt,

You'll send her to the parish

In which she was a brat.

"'_Suspension of a settlement_

Is not to be maintained;

That which she had by birth subsists

Until another's gained.'

(_Chorus of Puisne Judges._)

"That which she had by birth subsists

Until another's gained."

In the early months of his married life, whilst playing the part of an

Oxford don, Lord Eldon was required to decide in an important action

brought by two undergraduates against the cook of University College.

The plaintiffs declared that the cook had "sent to their rooms an

apple-pie _that could not be eaten_." The defendant pleaded that he had

a remarkably fine fillet of veal in the kitchen. Having set aside this

plea on grounds obvious to the legal mind, and not otherwise then

manifest to unlearned laymen, Mr. John Scott ordered the apple-pie to be

brought in court; but the messenger, dispatched to do the judge's

bidding, returned with the astounding intelligence that during the

progress of the litigation a party of undergraduates had actually

devoured the pie--fruit and crust. Nothing but the pan was left.

Judgment: "The charge here is, that the cook has sent up an apple-pie

that cannot be eaten. Now that cannot be said to have been uneatable

which has been eaten; and as this apple-pie has been eaten, it was

eatable. Let the cook be absolved."

But of all the judicial decisions on record, none was delivered with

more comical effect than Lord Loughborough's decision not to hear a

cause brought on a wager about a point in the game of 'Hazard.' A

constant frequenter of Brookes's and White's, Lord Loughborough was well

known by men of fashion to be fairly versed in the mysteries of

gambling, though no evidence has ever been found in support of the

charge that he was an habitual dicer. That he ever lost much by play is

improbable; but the scandal-mongers of Westminster had some plausible

reasons for laughing at the virtuous indignation of the spotless

Alexander Wedderburn, who, whilst sitting at _Nisi Prius_, exclaimed,

"Do not swear the jury in this case, but let it be struck out of the

paper. I will not try it. The administration of justice is insulted by

the proposal that I should try it. To my astonishment I find that the

action is brought on a wager as to the mode of playing an illegal,

disreputable, and mischievous game called 'Hazard;' whether, allowing

seven to be the main, and eleven to be a nick to seven, there are more

ways than six of nicking seven on the dice? Courts of justice are

constituted to try rights and redress injuries, not to solve the

problems of the gamesters. The gentlemen of the jury and I may have

heard of 'Hazard' as a mode of dicing by which sharpers live, and young

men of family and fortune are ruined; but what do any of us know of

'seven being the main,' or 'eleven being the nick to seven?' Do we come

here to be instructed in this lore, and are the unusual crowds (drawn

hither, I suppose, by the novelty of the expected entertainment) to take

a lesson with us in these unholy mysteries, which they are to practice

in the evening in the low gaming-houses in St. James Street, pithily

called by a name which should inspire a salutary terror of entering

them? Again, I say, let the cause be struck out of the paper. Move the

court, if you please, that it may be restored, and if my brethren think

that I do wrong in the course that I now take, I hope that one of them

will officiate for me here, and save me from the degradation of trying

'whether there be more than six ways of nicking seven on the dice,

allowing seven to be the main and eleven to be a nick to seven'--a

question, after all, admitting of no doubt, and capable of mathematical

demonstration."

With equal fervor Lord Kenyon inveighed against the pernicious usage of

gambling, urging that the hells of St. James's should, be indicted as

common nuisances. The 'legal monk,' as Lord Carlisle stigmatized him for

his violent denunciations of an amusement countenanced by women of the

highest fashion, even went so far as to exclaim--"If any such

prosecutions are fairly brought before me, and the guilty parties are

convicted, whatever may be their rank or station in the country, though

they may be the first ladies in the land, they shall certainly exhibit

themselves in the pillory."

The same considerations, which decided Lord Loughborough not to try an

action brought by a wager concerning chicken-hazard, made Lord

Ellenborough decline to hear a cause where the plaintiff sought to

recover money wagered on a cock-fight. "There is likewise," said Lord

Ellenborough, "another principle on which I think an action on such

wagers cannot be maintained. They tend to the degradation of courts of

justice. It is impossible to be engaged in ludicrous inquiries of this

sort consistently with that dignity which it is essential to the public

welfare that a court of justice should always preserve. I will not try

the plaintiff's right to recover the four guineas, which might involve

questions on the weight of the cocks and the construction of their steel

spurs."

It has already been remarked that in all ages the wits of Westminster

Hall have delighted in puns; and it may be here added, with the

exception of some twenty happy verbal freaks, the puns of lawyers have

not been remarkable for their excellence. L'Estrange records that when a

stone was hurled by a convict from the dock at Charles I.'s Chief

Justice Richardson, and passed just over the head of the judge, who

happened to be sitting at ease and lolling on his elbow, the learned man

smiled, and observed to those who congratulated him on his escape, "You

see now, if I had been an _upright judge_ I had been slaine." Under

George III. Joseph Jekyll[30] was at the same time the brightest wit and

most shameless punster of Westminster Hall; and such pride did he take

in his reputation as a punster, that after the fashion of the wits of an

earlier period he was often at considerable pains to give a pun a

well-wrought epigrammatic setting. Bored with the long-winded speech of

a prosy sergeant, he wrote on a slip of paper, which was in due course

passed along the barristers' benches in the court where he was

sitting--

"The sergeants are a grateful race,

Their dress and language show it;

Their purple garments come from _Tyre_,

Their arguments go to it."

When Garrow, by a more skilful than successful cross-examination, was

endeavoring to lure a witness (an unmarried lady of advanced years) into

an acknowledgment that payment of certain money in dispute had been

tendered, Jekyll threw him this couplet--

"Garrow, forbear; that tough old jade

Will never prove a _tender maid_."

So also, when Lord Eldon and Sir Arthur Pigott each made a stand in

court for his favorite pronunciation of the word 'lien;' Lord Eldon

calling the word _lion_ and Sir Arthur maintaining that it was to be

pronounced like _lean_, Jekyll, with an allusion to the parsimonious

arrangements of the Chancellor's kitchen, perpetrated the _jeu

d'esprit_--

"Sir Arthur, Sir Arthur, why what do you mean

By saying the Chancellor's _lion_ is _lean_?

D'ye think that his kitchen's so bad as all that,

That nothing within it can ever get fat?"

By this difference concerning the pronunciation of a word the present

writer is reminded of an amicable contest that occurred in Westminster

Hall between Lord Campbell and a Q.C. who is still in the front rank of

court-advocates. In an action brought to recover for damages done to a

carriage, the learned counsel repeatedly called, the vehicle in question

a broug-ham, pronouncing both syllables of the word _brougham_.

Whereupon, Lord Campbell with considerable pomposity observed, "_Broom_

is the more usual pronunciation; a carriage of the kind you mean is

generally and not incorrectly called a _broom_--that pronunciation is

open to no grave objection, and it has the great advantage of saving the

time consumed by uttering an extra syllable." Half an hour later in the

same trial Lord Campbell, alluding to a decision given in a similar

action, said, "In that case the carriage which had sustained injury was

an _omnibus_----" "Pardon me, my lord," interposed the Queen's Counsel,

with such promptitude that his lordship was startled into silence, "a

carriage of the kind, to which you draw attention is usually termed

'bus;' that pronunciation is open to no grave objection, and it has the

great advantage of saving the time consumed by uttering two extra

syllables." The interruption was followed by a roar of laughter, in

which Lord Campbell joined more heartily than any one else.

One of Jekyll's happy sayings was spoken at Exeter, when he defended

several needlemen who were charged with raising a riot for the purpose

of forcing the master-tailors to give higher wages. Whilst Jekyll was

examining a witness as to the number of tailors present at the alleged

riot, Lord Eldon--then Chief Justice of the Common Pleas--reminded him

that three persons can make that which the law regards as a riot;

whereupon the witty advocate answered, "Yes, my lord, Hale and Hawkins

lay down the law as your lordship states it, and I rely on their

authority; for if there must be three men to make a riot, the rioters

being _tailors_, there must be nine times three present, and unless the

prosecutor make out that there were twenty-seven joining in this breach

of the peace, my clients are entitled to an acquittal." On Lord Eldon

enquiring whether he relied on common-law or statute-law, the counsel

for the defence answered firmly, "My lord, I rely on a well-known maxim,

as old as Magna Charta, _Nine Tailors make a Man_." Finding themselves

unable to reward a lawyer for so excellent a jest with an adverse

verdict, the jury acquitted the prisoners. Towards the close of his

career Eldon made a still better jest than this of Jekyll's concerning

tailors. In 1829, when Lyndhurst was occupying the woolsack for the

first time, and Eldon was longing to recover the seals, the latter

presented a petition from the Tailors' Company at Glasgow against

Catholic Belief.

"What!" asked Lord Lyndhurst from the woolsack, in a low voice, "do the

_tailors_ trouble themselves about such _measures_?" Whereto, with

unaccustomed quickness, the old Tory of the Tories retorted, "No wonder;

you can't suppose that _tailors_ like _turncoats_."

As specimens of a kind of pleasantry becoming more scarce every year,

some of Sir George Rose's court witticisms are excellent. When Mr.

Beams, the reporter, defended himself against the _friction_ of passing

barristers by a wooden bar, the flimsiness of which was pointed out to

Sir George (then Mr. Rose), the wit answered--

"Yes--the partition is certainly thin--

Yet thick enough, truly, the Beams within."

The same originator of happy sayings pointed to Eldon's characteristic

weakness in the lines--

"Mr. Leach made a speech,

Pithy, clear, and strong;

Mr. Hart, on the other part,

Was prosy, dull, and long;

Mr. Parker made that darker

Which was dark enough without;

Mr. Bell spoke so well,

That the Chancellor said--'I doubt.'"

Far from being offended by this allusion to his notorious mental

infirmity, Lord Eldon, shortly after the verses had floated into

circulation, concluded one of his decisions by saying, with a

significant smile, "And here _the Chancellor does not doubt_."

Not less remarkable for precipitancy than Eldon for procrastination, Sir

John Leach, Vice-Chancellor, was said to have done more mischief by

excessive haste in a single term than Eldon in his whole life wrought

through extreme caution. The holders of this opinion delighted to repeat

the poor and not perspicuous lines--

"In equity's high court there are

Two sad extremes, 'tis clear;

Excessive slowness strikes us there,

Excessive quickness here.

"Their source, 'twixt good and evil, brings

A difficulty nice;

The first from Eldon's _virtue_, springs,

The latter from his _vice_."

It is needless to remark that this attempt to gloss the Chancellor's

shortcomings is an illustration of the readiness with which censors

apologize for the misdeeds of eminently fortunate offenders. Whilst

Eldon's procrastination and Leach's haste were thus put in contrast, an

epigram also placed the Chancellor's frailty in comparison with the

tedious prolixity of the Master of the Rolls--

"To cause delay in Lincoln's Inn

Two diff'rent methods tend:

His lordship's judgments ne'er begin,

His honors never end."

A mirth-loving judge, Justice Powell, could be as thoroughly humorous in

private life as he was fearless and just upon the bench. Swift describes

him as a surpassingly merry old gentleman, laughing heartily at all

comic things, and his own droll stories more than aught else. In court

he could not always refrain from jocularity. For instance, when he

tried Jane Wenham for witch-craft, and she assured him that she could

fly, his eye twinkled as he answered, "Well, then you may; there is no

law against flying." When Fowler, Bishop of Gloucester--a thorough

believer in what is now-a-days called spiritualism--was persecuting his

acquaintance with silly stories about ghosts, Powell gave him a telling

reproof for his credulity by describing a horrible apparition which was

represented as having disturbed the narrator's rest on the previous

night. At the hour of midnight, as the clocks were striking twelve, the

judge was roused from his first slumber by a hideous sound. Starting up,

he saw at the foot of his uncompanioned bed a figure--dark, gloomy,

terrible, holding before its grim and repulsive visage a lamp that shed

an uncertain light. "May Heaven have mercy on us!" tremulously

ejaculated the bishop at this point of the story. The judge continued

his story: "Be calm, my lord bishop; be calm. The awful part of this

mysterious interview has still to be told. Nerving myself to fashion the

words of inquiry, I addressed the nocturnal visitor thus--'Strange

being, why hast thou come at this still hour to perturb a sinful

mortal?' You understand, my lord, I said this in hollow tones--in what I

may almost term a sepulchral voice." "Ay--ay," responded the bishop,

with intense excitement; "go on--I implore you to go on. What did _it_

answer?" "It answered in a voice not greatly different from the voice of

a human creature--'Please, sir, _I am the watchman on beat, and your

street-door is open_.'" Readers will remember the use which Barham has

made of this story in the Ingoldsby Legends.

As a Justice of the King's Bench, Powell had in Chief Justice Holt an

associate who could not only appreciate the wit of others, but could

himself say smart things. When Lacy, the fanatic, forced his way into

Holt's house in Bedford Row, the Chief Justice was equal to the

occasion. "I come to you," said Lacy, "a prophet from the Lord God, who

has sent me to thee and would have thee grant a _nolle prosequi_ for

John Atkins, his servant, whom thou hast sent to prison." Whereto the

judge answered, with proper emphasis, "Thou art a false prophet and a

lying knave. If the Lord God had sent thee, it would have been to the

Attorney General, for the Lord God knows that it belongeth not to the

Chief Justice, to grant a _nolle prosequi_; but I, as Chief Justice, can

grant a warrant to commit thee to John Atkins's company." Whereupon the

false prophet, sharing the fate of many a true one, was forthwith

clapped in prison.

Now that so much has been said of Thurlow's brutal sarcasms, justice

demands for his memory an acknowledgment that he possessed a vein of

genuine humor that could make itself felt without wounding. In his

undergraduate days at Cambridge he is said to have worried the tutors of

Caius with a series of disorderly pranks and impudent _escapades_, but

on one occasion he unquestionably displayed at the university the quick

wit that in after life rescued him from many an embarrassing position.

"Sir," observed a tutor, giving the unruly undergraduate a look of

disapproval, "I never come to the window without seeing you idling in

the court." "Sir," replied young Thurlow, imitating the don's tone, "I

never come into the court without seeing you idling at the window."

Years later, when he had become a great man, and John Scott was paying

him assiduous court, Thurlow said, in ridicule of the mechanical

awkwardness of many successful equity draughtsmen, "Jack Scott, don't

you think we could invent a machine to draw bills and answers in

Chancery?" Having laughed at the suggestion when it was made, Scott put

away the droll thought in his memory; and when he had risen to be

Attorney General reminded Lord Thurlow of it under rather awkward

circumstances. Macnamara, the conveyancer, being concerned as one of the

principals in a Chancery suit, Lord Thurlow advised him to submit the

answer to the bill filed against him to the Attorney General. In due

course the answer came under Scott's notice, when he found it so

wretchedly drawn, that he advised Macnamara to have another answer drawn

by some one who understood pleading. On the same day he was engaged at

the bar of the House of Lords, when Lord Thurlow came to him, and said,

"So I understand you don't think my friend Mac's answer will do?" "Do!"

Scott replied, contemptuously. "My Lord, it won't do at all! it must

have been drawn by that wooden machine which you once told me might be

invented to draw bills and answers." "That's very unlucky," answered

Thurlow, "and impudent too, if you had known--_that I drew the answer

myself_."

Lord Lyndhurst used to maintain that it was one of the chief duties of a

judge to render it disagreeable to counsel to talk nonsense. Jeffreys in

his milder moments no doubt salved his conscience with the same

doctrine, when he recalled how, after elating him with a compliment, he

struck down the rising junior with "Lord, sir! you must be cackling too.

We told you, Mr. Bradbury, your objection was very ingenious; that must

not make you troublesome: you cannot lay an egg, but you must be

cackling over it." Doubtless, also, he felt it one of the chief duties

of a judge to restrain attorneys from talking nonsense when--on hearing

that the solicitor from whom he received his first brief had boastfully

remarked, in allusion to past services, "My Lord Chancellor! I _made_

him!"--he exclaimed, "Well, then, I'll lay my maker by the heels," and

forthwith committed his former client and patron to the Fleet prison. If

this bully of the bench actually, as he is said to have done,

interrupted the venerable Maynard by saying, "You have lost your

knowledge of law; your memory, I tell you, is failing through old age,"

how must every hearer of the speech have exulted when Maynard quietly

answered, "Yes, Sir George, I have forgotten more law than you ever

learned; but allow me to say, I have not forgotten much."

On the other hand it should be remembered that Maynard was a man

eminently qualified to sow violent animosities, and that he was a

perpetual thorn in the flesh of the political barristers, whose

principles he abhorred. A subtle and tricky man, he was constantly

misleading judges by citing fictitious authorities, and then smiling at

their professional ignorance when they had swallowed his audacious

fabrications. Moreover, the manner of his speech was sometimes as

offensive as its substance was dishonest. Strafford spoke a bitter

criticism not only with regard to Maynard and Glyn, but with regard to

the prevailing tone of the bar, when, describing the conduct of the

advocates who managed his prosecution, he said: "Glynne and Maynard used

me _like advocates_, but Palmer and Whitelock _like gentlemen_; and yet

the latter left out nothing against me that was material to be urged

against me." As a Devonshire man Maynard is one of the many cases which

may be cited against the smart saying of Sergeant Davy, who used to

observe: "The further I journey toward the West, the more convinced I am

that the wise men come from the East." But shrewd, observant, liberal

though he was in most respects, he was on one matter so far behind the

spirit of the age that, blinded and ruled by an unwise sentiment, he

gave his parliamentary support to an abortive measure "to prevent

further building in London and the neighborhood." In support of this

measure he observed, "This building is the ruin of the gentry and ruin

of religion, as leaving many good people without churches to go to.

This enlarging of London makes it filled with lacqueys and pages. In St.

Giles's parish scarce the fifth part come to church, and we shall have

no religion at last."

Whilst justice has suffered something in respect of dignity from the

overbearing temper of judges to counsel, from collisions of the bench

with the bar, and from the mutual hostility of rival advocates, she has

at times sustained even greater injury from the jealousies and

altercations of judges. Too often wearers of the ermine, sitting on the

same bench, nominally for the purpose of assisting each other, have

roused the laughter of the bar, and the indignation of suitors, by their

petty squabbles. "It now comes to my turn," an Irish judge observed,

when it devolved on him to support the decision of one or the other of

two learned coadjutors, who had stated with more fervor than courtesy

altogether irreconcilable opinions--"It now comes to my turn to declare

my view of the case, and fortunately I can be brief. I agree with my

brother A, from the irresistible force of my brother B's arguments."

Extravagant as this case may appear, the King's Bench of Westminster

Hall, under Mansfield and Kenyon, witnessed several not less scandalous

and comical differences. Taking thorough pleasure in his work, Lord

Mansfield was not less industrious than impartial in the discharge of

his judicial functions; so long as there was anything for him to learn

with regard to a cause, he not only sought for it with pains but with a

manifest pleasure similar to that delight in judicial work which caused

the French Advocate, Cottu, to say of Mr. Justice Bayley: "Il s'amuse a

juger:" but notwithstanding these good qualities, he was often culpably

deficient in respect for the opinions of his subordinate coadjutors. At

times a vain desire to impress on the minds of spectators that his

intellect was the paramount power of the bench; at other times a

personal dislike to one of his _puisnes_ caused him to derogate from the

dignity of his court, in cases where he was especially careful to

protect the interests of suitors. With silence more disdainful than any

words could have been, he used to turn away from Mr. Justice Willes, at

the moment when the latter expected his chief to ask his opinion; and on

such occasions the indignant _puisne_ seldom had the prudence and nerve

to conceal his mortification. "I have not been consulted, and I will be

heard!" he once shrieked forth in a paroxysm of rage caused by

Mansfield's contemptuous treatment; and forty years afterwards Jeremy

Bentham, who was a witness of the insult and its effect, observed: "At

this distance of time--five-and-thirty or forty years--the feminine

scream issuing out of his manly frame still tingles in my ears."

Mansfield's overbearing demeanor to his _puisnes_ was reproduced with

less dignity by his successor; but Buller, the judge who wore ermine

whilst he was still in his thirty-third year, and who confessed that his

"idea of heaven was to sit at Nisi Prius all day, and to play whist all

night," seized the first opportunity to give Taffy Kenyon a lesson in

good manners by stating, with impressive self-possession and convincing

logic, the reasons which induced him to think the judgment delivered by

his chief to be altogether bad in law and argument.

[30] One of Jekyll's best displays of brilliant impudence was

perpetrated on a Welsh judge, who was alike notorious for his greed of

office and his want of personal cleanliness. "My dear sir," Jekyll

observed in his most amiable manner to this most unamiable personage,

"you have asked the minister for almost everything else, why _don't_ you

ask him for a piece of soap and a nail-brush?"

CHAPTER XLI.

WITS IN 'SILK' AND PUNSTERS IN 'ERMINE.'

Whilst Lord Camden held the chiefship of the Common Pleas, he was

walking with his friend Lord Dacre on the outskirts of an Essex village,

when they passed the parish stocks. "I wonder," said the Chief Justice,

"whether a man in the stocks endures a punishment that is physically

painful? I am inclined to think that, apart from the sense of

humiliation and other mental anguish, the prisoner suffers nothing,

unless the populace express their satisfaction at his fate by pelting

him with brick-bats." "Suppose you settle your doubts by putting your

feet into the holes," rejoined Lord Dacre, carelessly. In a trice the

Chief Justice was sitting on the ground with his feet some fifteen

inches above the level of his seat, and his ankles encircled by hard

wood. "Now, Dacre!" he exclaimed, enthusiastically, "fasten the bolts,

and leave me for ten minutes." Like a courteous host Lord Dacre complied

with the whim of his guest, and having placed it beyond his power to

liberate himself bade him 'farewell' for ten minutes. Intending to

saunter along the lane and return at the expiration of the stated

period, Lord Dacre moved away, and falling into one of his customary

fits of reverie, soon forgot all about the stocks, his friend's freak,

and his friend. In the meantime the Chief Justice went through every

torture of an agonizing punishment--acute shootings along the confined

limbs, aching in the feet, angry pulsations under the toes, violent

cramps in the muscles and thighs, gnawing pain at the point where his

person came in immediate contact with the cold ground, pins-and-needles

everywhere. Amongst the various forms of his physical discomfort,

faintness, fever, giddiness, and raging thirst may be mentioned. He

implored a peasant to liberate him, and the fellow answered with a shout

of derision; he hailed a passing clergyman, and explained that he was

not a culprit, but Lord Camden, Chief Justice of the Common Pleas, and

one of Lord Dacre's guests. "Ah!" observed the man of cloth, not so much

answering the wretched culprit as passing judgment on his case, "mad

with liquor. Yes, drunkenness is sadly on the increase; 'tis droll,

though, for a drunkard in the stocks to imagine himself a Chief

Justice!" and on he passed. A farmer's wife jogged by on her pillion,

and hearing the wretched man exclaim that he should die of thirst, the

good creature gave him a juicy apple, and hoped that his punishment

would prove for the good of his soul. Not ten minutes, but ten hours did

the Chief Justice sit in the stocks, and when at length he was carried

into Lord Dacre's house, he was in no humor to laugh at his own

miserable plight. Not long afterwards he presided at a trial in which a

workman brought an action against a magistrate who had wrongfully placed

him in the stocks. The counsel for the defence happening to laugh at the

statement of the plaintiff, who maintained that he had suffered intense

pain during his confinement, Lord Camden leaned forwards and inquired in

a whisper, "Brother were you ever in the stocks?" "Never, my lord,"

answered the advocate, with a look of lively astonishment "I have been,"

was the whispered reply; "and let me assure you that the agony inflicted

by the stocks is--_awful_!"

Of a different sort, but scarcely less intense, was the pain endured by

Lord Mansfield whenever a barrister pronounced a Latin word with a false

quantity. "My lords," said the Scotch advocate, Crosby, at the bar of

the House of Lords, "I have the honor to appear before your lordships as

counsel for the Curators." "Ugh!" groaned the Westminster Oxford

law-lord, softening his reproof by an allusion to his Scotch

nationality, "Curators, Mr. Crosby, Curators: I wish _our_ countrymen

would pay a little more attention to prosody." "My Lord," replied Mr.

Crosby, with delightful readiness and composure, "I can assure you that

_our_ countrymen are very proud of your lordship as the greatest

senator and orator of the present age." The barrister who made Baron

Alderson shudder under his robes by applying for a 'nolle prosequi,' was

not equally quick at self-defence, when that judge interposed, "Stop,

sir--consider that this is the last day of term, and don't make things

unnecessarily long." It was Baron Alderson who, in reply to the

juryman's confession that he was deaf in one ear, observed, "Then leave

the box before the trial begins; for it is necessary that jurymen should

_hear both sides_."

Amongst legal wits, Lord Ellenborough enjoys a high place; and though in

dealing out satire upon barristers and witnesses, and even on his

judicial coadjutors, he was often needlessly severe, he seldom

perpetrated a jest the force of which lay solely in its cruelty. Perhaps

the most harsh and reprehensible outburst of satiric humor recorded of

him is the crushing speech by which he ruined a young man for life. "The

_unfortunate_ client for whom it is my privilege to appear," said a

young barrister, making his first essay in Westminster Hall--"the

unfortunate client, my lord, for whom I appear--hem! hem!--I say, my

lord, my _unfortunate client_----" Leaning forwards, and speaking in a

soft, cooing voice, that was all the more derisive, because it was so

gentle, Lord Ellenborough said, "you may go on, sir--so far the court is

with you." One would have liked his lordship better had he sacrificed

his jest to humanity, and acted as long afterwards that true gentleman,

Mr. Justice Talfourd, acted, who, seeing a young barrister overpowered

with nervousness, gave him time to recover himself by saying, in the

kindest possible manner, "Excuse me for interrupting you--but for a

minute I am not at liberty to pay you attention." Whereupon the Judge

took up his pen and wrote a short note to a friend. Before the note was

finished, the young barrister had completely recovered his

self-possession, and by an admirable speech secured a verdict for his

client. A highly nervous man, he might on that day have been broken for

life, like Ellenborough's victim, by mockery; but fortunate in appearing

before a judge whose witty tongue knew not how to fashion unkind words,

he triumphed over his temporary weakness, and has since achieved well

deserved success in his profession. Talfourd might have made a jest for

the thoughtless to laugh at; but he preferred to do an act, on which

those who loved him like to think.

When Preston, the great conveyancer, gravely informed the judges of the

King's Bench that "an estate in fee simple was the highest estate known

to the law of England," Lord Ellenborough checked the great Chancery

lawyer, and said with politest irony, "Stay, stay, Mr. Preston, let me

take that down. An estate" (the judge writing as he spoke) "in fee

simple is--the highest estate--known to--the law of England. Thank you,

Mr. Preston! The court, sir, is much indebted to you for the

information." Having inflicted on the court an unspeakably dreary

oration, Preston, towards the close of the day, asked when it would be

their lordship's pleasure to hear the remainder of his argument;

whereupon Lord Ellenborough uttered a sigh of resignation, and answered,

'We are bound to hear you, and we will endeavor to give you our

undivided attention on Friday next; but as for _pleasure_, that, sir,

has been long out of the question.'

Probably mistelling an old story, and taking to himself the merit of

Lord Ellenborough's reply to Preston, Sir Vicary Gibbs (Chief of the

Common Pleas) used to tell his friends that Sergeant Vaughan--the

sergeant who, on being subsequently raised to the bench through the

influence of his elder brother, Sir Henry Halford, the court physician,

was humorously described by the wits of Westminster Hall as a judge _by

prescription_--once observed in a grandiose address to the Judges of the

Common Pleas, "For though our law takes cognizance of divers different

estates, I may be permitted to say, without reserve or qualification of

any kind, that the highest estate known to the law of England is an

estate in fee simple." Whereupon Sir Vicary, according to his own

account, interrupted the sergeant with an air of incredulity and

astonishment. "What is your proposition, brother Vaughan? Perhaps I did

not hear you rightly!" Flustered by the interruption, which completely

effected its object, the sergeant explained, "My lord, I mean to contend

that an estate in fee simple is _one of the highest estates_ known to

the law of England, that is, my lord, that it may be under certain

circumstances--and sometimes is so."

Notwithstanding his high reputation for wit, Lord Ellenborough would

deign to use the oldest jests. Thus of Mr. Caldecott, who over and over

again, with dull verbosity, had said that certain limestone quarries,

like lead and copper mines, "were not rateable, because the limestone

could only be reached by boring, which was matter of science," he

gravely inquired, "Would you, Mr. Caldecott, have us believe that every

kind of _boring_ is matter of science?" With finer humor he nipped in

the bud one of Randle Jackson's flowery harangues. "My lords," said the

orator, with nervous intonation, "in the book of nature it is

written----" "Be kind enough, Mr. Jackson," interposed Lord

Ellenborough, "to mention the page from which you are about to quote."

This calls to mind the ridicule which, at an earlier period of his

career, he cast on Sheridan for saying at the trial of Warren Hastings,

"The treasures in the Zenana of the Begum are offerings laid by the

hand of piety on the altar of a saint." To this not too rhetorical

statement, Edward Law, as leading counsel for Warren Hastings, replied

by asking, "how the lady was to be considered a saint, and how the

camels were to be laid upon the altar?" With greater pungency, Sheridan

defended himself by saying, "This is the first time in my life that I

ever heard of special pleading on a metaphor, or a bill of indictment

against a trope; but such is the turn of the learned gentleman's mind,

that when he attempts to be humorous no jest can be found, and when

serious no fact is visible."[31] To the last Law delighted to point the

absurdities of orators who in aiming at the sublime only achieved the

ridiculous. "My lords," said Mr. Gaselee, arguing that mourning coaches

at a funeral were not liable to post-horse duty, "it never could have

been the intention of a Christian legislature to aggravate the grief

which mourners endure whilst following to the grave the remains of their

dearest relatives, by compelling them at the same time to pay the

horse-duty." Had Mr. Gaselee been a humorist, Lord Ellenborough would

have laughed; but as the advocate was well known to have no turn for

raillery, the Chief Justice gravely observed, "Mr. Gaselee, you incur

danger by sailing in high sentimental latitudes."

To the surgeon in the witness-box who said, "I employ myself as a

surgeon," Lord Ellenborough retorted, "But does anybody else employ you

as a surgeon?"

The demand to be examined _on affirmation_ being preferred by a Quaker

witness, whose dress was so much like the costume of an ordinary

_conformist_ that the officer of the court had begun to administer the

usual oath, Lord Ellenborough inquired of the 'friend,' "Do you really

mean to impose upon the court by appearing here in the disguise of a

reasonable being?" Very pungent was his ejaculation at a cabinet dinner

when he heard that Lord Kenyon was about to close his penurious old age

by dying. "Die!--why should he die?--what would he get by that?"

interposed Lord Ellenborough, adding to the pile of jests by which men

have endeavored to keep a grim, unpleasant subject out of sight--a pile

to which the latest _mot_ was added the other day by Lord Palmerston,

who during his last attack of gout exclaimed playfully. "_Die_, my dear

doctor! That's the _last_ thing I think of doing." Having jested about

Kenyon's parsimony, as the old man lay _in extremis_, Ellenborough

placed another joke of the same kind upon his coffin. Hearing that

through the blunder of an illiterate undertaker the motto on Kenyon's

hatchment in Lincoln's Inn Fields had been painted '_Mors Janua Vita_,'

instead of 'Mors Janua Vitae,' he exclaimed, "Bless you, there's no

mistake; Kenyon's will directed that it should be 'Vita,' so that his

estate might be saved the expense of _a diphthong._" Capital also was

his reply when Erskine urged him to accept the Great Seal. "How can

you," he asked, in a tone of solemn entreaty, "wish me to accept the

office of Chancellor, when you know, Erskine, that I am as ignorant of

its duties as you are yourself?" At the time of uttering these words,

Ellenborough was well aware that if he declined them Erskine would take

the seals. Some of his puns were very poor. For instance, his

exclamation, "Cite to me the decisions of the judges of the land: not

the judgments of the Chief Justice of Ely, who is fit only to _rule_ a

copybook."

One of the best 'legal' puns on record is unanimously attributed by the

gossipers of Westminster Hall to Lord Chelmsford. As Sir Frederick

Thesiger he was engaged in the conduct of a cause, and objected to the

irregularity of a learned sergeant who in examining his witnesses

repeatedly put leading questions. "I have a right," maintained the

sergeant, doggedly, "to _deal_ with my witnesses as I please." "To that

I offer no objection," retorted Sir Frederick; "you may _deal_ as you

like, but you shan't _lead_." Of the same brilliant conversationalist

Mr. Grantley Berkeley has recorded a good story in 'My Life and

Recollections.' Walking down St. James's Street, Lord Chelmsford was

accosted by a stranger, who exclaimed "Mr. Birch I believe?" "If you

believe that, sir, you'll believe anything," replied the ex-Chancellor,

as he passed on.

When Thelwall, instead of regarding his advocate with grateful silence,

insisted on interrupting him with vexatious remarks and impertinent

criticisms, Erskine neither threw up his brief nor lost his temper, but

retorted with an innocent flash of merriment. To a slip of paper on

which the prisoner had written, "I'll be hanged if I don't plead my own

cause," he contented himself with returning answer, "You'll be hanged if

you do." His _mots_ were often excellent, but it was the tone and joyous

animation of the speaker that gave them their charm. It is said that in

his later years, when his habitual loquaciousness occasionally sank into

garrulity, he used to repeat his jests with imprudent frequency,

shamelessly giving his companions the same pun with each course of a

long dinner. There is a story that after his retirement from public life

he used morning after morning to waylay visitors on their road through

the garden to his house, and, pointing to his horticultural attire and

the spade in his hand assure them that he was 'enjoying his otium cum

_digging a tatie_.' Indeed the tradition lives that before his fall from

the woolsack, pert juniors used to lay bets as to the number of times he

could fire off a favorite old pun in the course of a sitting in the

Court of Chancery, and that wily leaders habitually strove to catch his

favor by giving him opportunities for facetious interruptions during

their arguments. If such traditions be truthful, it is no matter for

surprise that Erskine's court-jokes have come down to us with so many

variations. For instance, it is recorded with much circumstantiality

that on circuit, accosting a junior who had lost his portmanteau from

the back of a post-chaise, he said, with mock gravity, "Young gentlemen,

henceforth imitate the elephant, the wisest of animals, who always

_carries his trunk before him_;" and on equally good authority it is

stated that when Polito, the keeper of the Exeter 'Change Menagerie, met

with a similar accident and brought an action for damages against the

proprietor of the coach from the hind-boot of which his property had

disappeared, Erskine, speaking for the defence, told the jury that they

would not be justified in giving a verdict favorable to the man, who,

though he actually possessed an elephant, had neglected to imitate its

prudent example and carry his trunk before him.

As a _litterateur_ Erskine met with meagre success; but some of his

squibs and epigrams are greatly above the ordinary level of '_vers de

societe_.' For instance this is his:--

"DE QUODAM REGE.

"I may not do right, though I ne'er can do wrong;

I never can die, though I can not live long;

My jowl it is purple, my hand it is fat--

Come, riddle my riddle. What is it? _What? What?_"

The liveliest illustrations of Erskine's proverbial egotism are the

squibs of political caricaturists; and from their humorous

exaggerations it is difficult to make a correct estimate of the lengths

of absurdity to which his intellectual vanity and self-consciousness

sometimes carried him. From what is known of his disposition it seems

probable that the sarcasms aimed by public writers at his infirmity

inclined him to justify their attacks rather than to disprove them by

his subsequent demeanor, and that some of his most extravagant outbursts

of self-assertion were designed in a spirit of bravado and reckless

good-nature to increase the laughter which satirists had raised against

him. However this may be, his conduct drew upon him blows that would

have ruffled the composure of any less self-complacent or less amiable

man. The Tory prints habitually spoke of him as Counsellor Ego whilst he

was at the bar; and when it was known that he had accepted the seals,

the opposition journals announced that he would enter the house as

"Baron Ego, of Eye, in the county of Suffolk." Another of his nicknames

was _Lord Clackmannan_; and Cobbett published the following notice of an

harangue made by the fluent advocate in the House of Commons:--"Mr.

Erskine delivered a most animated speech in the House of Commons on the

causes and consequences of the late war, which lasted thirteen hours,

eighteen minutes, and a second, by Mr. John Nichol's stop-watch. Mr.

Erskine closed his speech with a dignified climax: 'I was born free,

and, by G-d, I'll remain so!'--[A loud cry of '_Hear! hear_' in the

gallery, in which were citizens Tallien and Barrere.] On Monday three

weeks we shall have the extreme satisfaction of laying before the public

a brief analysis of the above speech, our letter-founder having entered

into an engagement to furnish a fresh font of I's."[32]

From the days of Wriothesley, who may be regarded as the most

conspicuous and unquestionable instance of judicial incompetency in the

annals of English lawyers, the multitudes have always delighted in

stories that illustrate the ignorance and incapacity of men who are

presumed to possess, by right of their office, an extraordinary share of

knowledge and wisdom. What law-student does not rub his hands as he

reads of Lord St. John's trouble during term whilst he held the seals,

and of the impatience with which he looked forward to the long vacation,

when he would not be required to look wise and speak authoritatively

about matters concerning which he was totally ignorant. Delicious are

the stories of Francis Bacon's clerical successor, who endeavored to get

up a _quantum suff_. of Chancery law by falling on his knees and asking

enlightenment of Heaven. Gloomily comical are the anecdotes of Chief

Justice Fleming, whose most famous and disastrous blunder was his

judgment in Bates's case. Great fun may be gathered from the tales that

exemplify the ignorance of law which characterized the military, and

also the non-military laymen, who helped to take care of the seals

during the civil troubles of the seventeenth century. Capital is Roger

North's picture of Bob Wright's ludicrous shiftlessness whenever the

influence of his powerful relations brought the loquacious, handsome,

plausible fellow a piece of business. "He was a comely fellow," says

Roger North, speaking of the Chief Justice Wright's earlier days, "airy

and flourishing both in his habits and way of living; and his relation

Wren (being a powerful man in those parts) set him in credit with the

country; but withal, he was so poor a lawyer that he used to bring such

cases as came to him to his friend Mr. North, and he wrote the opinion

on the paper, and the lawyer copied it, and signed under the case as if

it had been his own. It ran so low with him that when Mr. North was at

London he sent up his cases to him, and had opinions returned by the

post; and, in the meantime he put off his clients on pretence of taking

the matter into serious consideration." Perhaps some readers of this

page can point to juniors of the present date whose professional

incapacity closely resembles the incompetence of this gay young

barrister of Charles II.'s time. Laughter again rises at the thought of

Lord Chancellor Bathurst and the judicial perplexities and blunders

which caused Sir Charles Williams to class him with those who

"Were cursed and stigmatized by power,

And rais'd to be expos'd."

Much more than an average or altogether desirable amount of amiability

has fallen to the reader who can refrain from a malicious smile, when he

is informed by reliable history that Lord Loughborough (no mean lawyer

or inefficient judge), gave utterance to so much bad law, as Chairman of

Quarter Sessions in canny Yorkshire, that when on appeal his decisions

were reversed with many polite expressions of _sincere_ regret by the

King's Bench, all Westminster Hall laughed in concert at the mistakes of

the sagacious Chief of the Common Pleas.

But no lawyer, brilliant or dull, has been more widely ridiculed for

incompetence than Erskine. Sir Causticus Witherett, being asked some

years since why a certain Chancellor, unjustly accused of intellectual

dimness by his political adversaries and by the uninformed public,

preferred his seat amongst the barons to his official place on the

woolsack, is said to have replied: "The Lord Chancellor usually takes

his seat amongst the peers whenever he can do so with propriety, because

he is a highly nervous man, and when he is on the woolsack, he is apt to

be frightened at finding himself all alone--_in the dark_." As soon as

Erskine was mentioned as a likely person to be Lord Chancellor, rumors

began to circulate concerning his total unfitness for the office; and no

sooner had he mounted the woolsack than the wits declared him to be

alone and in the dark. Lord Ellenborough's sarcasm was widely repeated,

and gave the cue to the advocate's detractors, who had little difficulty

in persuading the public that any intelligent law-clerk would make as

good a Chancellor as Thomas Erskine. With less discretion than

good-humor, Erskine gave countenance to the representations of his

enemies by ridiculing his own unfitness for the office. During the

interval between his appointment and his first appearance as judge in

the Court of Chancery, he made a jocose pretence of 'reading up' for his

new duties: and whimsically exaggerating his deficiencies, he

represented himself as studying books with which raw students have some

degree of familiarity. Caught with 'Cruise's Digest' of the laws

relating to real property, open in his hand, he observed to the visitor

who had interrupted his studies, "You see, I am taking a little from my

_cruise_ daily, without any prospect of coming to the end of it."

In the autumn of 1819 two gentlemen of the United States having differed

in opinion concerning his incompetence in the Court of Chancery--the one

of them maintaining that the greater number of his decrees had been

reversed, and the other maintaining that so many of his decisions had

not endured reversal--the dispute gave rise to a bet of three dozen of

port. With comical bad taste one of the parties to the bet--the one who

believed that the Chancellor's judgments had been thus frequently

upset--wrote to Erskine for information on the point. Instead of giving

the answer which his correspondent desired, Erskine informed him in the

following terms that he had lost his wine:--

"Upper Berkley Street, Nov. 13, 1819.

"SIR:--I certainly was appointed Chancellor under the administration

in which Mr. Fox was Secretary of State, in 1806, and could have been

Chancellor under no administration in which he had not a post; nor

would have accepted without him any office whatsoever. I believe the

administration was said, by all the _Blockheads_, to be made up of

all the _Talents_ in the country.

"But you have certainly lost your bet on the subject of my decrees.

None of them were appealed against, except one, upon a branch of Mr.

Thellusson's will--but it was affirmed without a dissentient voice,

on the motion of Lord Eldon, then and now Lord Chancellor. If you

think I was no lawyer, you may continue to think so. It is plain you

are no lawyer yourself; but I wish every man to retain his opinion,

though at the cost of three dozen of port.

"Your humble servant,

"ERSKINE.

"To save you from spending your money on bets which you are sure to

lose, remember that no man can be a great advocate who is no lawyer.

The thing is impossible."

Of the many good stories current about chiefs of the law who are still

alive, the present writer, for obvious reasons, abstains from taking

notice; but one humorous anecdote concerning a lively judge may with

propriety be inserted in these pages, since it fell from his own lips

when he was making a speech from the chair at a public dinner. Between

sixty-five and seventy years from the present time, when Sir Frederick

Pollock was a boy at St. Paul's school, he drew upon himself the

displeasure of Dr. Roberts, the somewhat irascible head-master of the

school, who frankly told Sir Frederick's father, "Sir, you'll live to

see that boy of yours hanged." Years afterwards, when the boy of whom

this dismal prophecy was made had distinguished himself at Cambridge and

the bar, Dr. Roberts, meeting Sir Frederick's mother in society,

overwhelmed her with congratulations upon her son's success, and

fortunately oblivious of his former misunderstanding with his pupil,

concluded his polite speeches by saying--"Ah! madam, I always said he'd

fill an _elevated_ situation." Told by the venerable judge at a recent

dinner of 'Old Paulines,' this story was not less effective than the

best of those post-prandial sallies with which William St. Julien

Arabin--the Assistant Judge of Old Bailey notoriety--used to convulse

his auditors something more than thirty years since. In the 'Arabiniana'

it is recorded how this judge, in sentencing an unfortunate woman to a

long term of transportation, concluded his address with--"You must go

out of the country. You have disgraced _even_ your own sex."

Let this chapter close with a lawyer's testimony to the moral qualities

of his brethren. In the garden of Clement's Inn may still be seen the

statue of a negro, supporting a sun-dial, upon which a legal wit

inscribed the following lines:--

"In vain, poor sable son of woe,

Thou seek'st the tender tear;

From thee in vain with pangs they flow,

For mercy dwells not here.

From cannibals thou fled'st in vain;

Lawyers less quarter give;

The _first_ won't eat you till you're _slain_,

The _last_ will do't _alive_."

Unfortunately these lines have been obliterated.

[31] Robert Dallas--one of Edward Law's coadjutors in the defence of

Hastings--gave another 'manager' a more telling blow. Indignant with

Burke for his implacable animosity to Hastings, Dallas (subsequently

Chief Justice of the Common Pleas) wrote the stinging lines--

"Oft have we wondered that on Irish ground No poisonous reptile has e'er

yet been found; Reveal'd the secret stands of nature's work--She saved

her venom to produce her Burke."

[32] In the 'Anti-Jacobin,' Canning, in the mock report of an imaginary

speech, represented Erskine as addressing the 'Whig Club' thus:--"For

his part he should only say that, having been, as he had been, both a

soldier and a sailor, if it had been his fortune to have stood in either

of these relations to the Directory--as _a_ man and a major-general he

should not have scrupled to direct his artillery against the national

representatives:--as a naval officer he would undoubtedly have

undertaken for the removal of the exiled deputies; admitting the

exigency, under all its relations, as it appeared to him to exist, and

the then circumstances of the times with all their bearings and

dependencies, branching out into an infinity of collateral

considerations and involving in each a variety of objects, political,

physical, and moral; and these, again, under their distinct and separate

heads, ramifying into endless subdivisions, which it was foreign to his

purpose to consider, Mr. Erskine concluded by recapitulating, in a

strain of agonizing and impressive eloquence, the several more prominent

heads of his speech; he had been a soldier and a sailor, and had a son

at Winchester school--he had been called by special retainers, during

the summer, into many different and distant parts of the

country--traveling chiefly in post-chaises. He felt himself called upon

to declare that his poor faculties were at the service of his

country--of the free and enlightened part of it at least. He stood there

as a man--he stood in the eye, indeed, in the hand of God--to whom (in

the presence of the company and the waiters), he solemnly appealed. He

was of noble, perhaps royal, blood--he had a house at Hampsted--was

convinced of the necessity of a thorough and radical reform. His

pamphlets had gone through thirty editions, skipping alternately the odd

and even numbers. He loved the Constitution, to which he would cling and

grapple--and he was clothed with the infirmities of man's nature."

CHAPTER XLII.

WITNESSES.

In the days when Mr. Davenport Hill, the Recorder of Birmingham, made a

professional reputation for himself in the committee-rooms of the Houses

of Parliament, he had many a sharp tussle with one of those venal

witnesses who, during the period of excitement that terminated in the

disastrous railway panic, were ready to give scientific evidence on

engineering questions, with less regard to truth than to the interests

of the persons who paid for their evidence. Having by mendacious

evidence gravely injured a cause in which Mr. Hill was interested as

counsel, and Mr. Tite, the eminent architect, and present member for

Bath, was concerned as a projector, this witness was struck with

apoplexy and died--before he could complete the mischief which he had so

adroitly begun. Under the circumstances, his sudden withdrawal from the

world was not an occasion for universal regret. "Well, Hill, have you

heard the news?" inquired Mr. Tite of the barrister, whom he encountered

in Middle Temple Lane on the morning after the engineer's death. "Have

you heard that ---- died yesterday of apoplexy?" "I can't say," was the

rejoinder, "that I shall shed many tears for his loss. He was an arrant

scoundrel." "Come, come," replied the architect, charitably, "you have

always been too hard on that man. He was by no means so bad a fellow as

you would make him out. I do verily believe that in the whole course of

his life that man never told a lie--_out of the witness-box_." Strange

to say, this comical testimony to character was quite justified by the

fact. This man, who lied in public as a matter of business, was

punctiliously honorable in private life.

Of the simplest method of tampering with witnesses an instance is found

in a case which occurred while Sir Edward Coke was Chief Justice of the

King's Bench. Loitering about Westminster Hall, one of the parties in an

action stumbled upon the witness whose temporary withdrawal from the

ways of men he was most anxious to effect. With a perfect perception of

the proper use of hospitality, he accosted this witness (a staring,

open-mouthed countryman), with suitable professions of friendliness, and

carrying him into an adjacent tavern, set him down before a bottle of

wine. As soon as the sack had begun to quicken his guest's circulation,

the crafty fellow hastened into court with the intelligence that the

witness, whom he had left drinking in a room not two hundred yards

distant, was in a fit and lying at death's door. The court being asked

to wait, the impudent rascal protested that to wait would be useless;

and the Chief Justice, taking his view of the case, proceeded to give

judgment without hearing the most important evidence in the cause.

In badgering a witness with noisy derision, no barrister of Charles

II.'s time could surpass George Jeffreys; but on more than one occasion

that gentleman, in his most overbearing moments, met with his master in

the witness whom he meant to brow-beat. "You fellow in the leathern

doublet," he is said to have exclaimed to a countryman whom he was about

to cross-examine, "Pray, what are you paid for swearing?" "God bless

you, sir, and make you an honest man," answered the farmer, looking the

barrister full in the face, and speaking with a voice of hearty

good-humor; "if you had no more for lying than I have for swearing, you

would wear a leather doublet as well as I."

Sometimes Erskine's treatment of witnesses was very jocular, and

sometimes very unfair; but his jocoseness was usually so distinct from

mere flippant derisiveness, and his unfairness was redeemed by such

delicacy of wit and courtesy of manner, that his most malicious _jeux

d'esprit_ seldom raised the anger of the witnesses at whom they were

aimed. A religious enthusiast objecting to be sworn in the usual manner,

but stating that though he would not "kiss the book," he would "hold up

his hand" and swear, Erskine asked him to give his reason for preferring

so eccentric a way to the ordinary mode of giving testimony. "It is

written in the book of Revelations," answered the man, "that the angel

standing on the sea _held up his hand_." "But that does not apply to

your case," urged the advocate; "for in the first place, you are no

angel; secondly, you cannot tell how the angel would have sworn if he

had stood on dry ground, as you do." Not shaken by this reply, which

cannot be called unfair, and which, notwithstanding its jocoseness, was

exactly the answer which the gravest divine would have made to such

scruples, the witness persisted in his position; and on being permitted

to give evidence in his own peculiar way, he had enough influence with

the jury to induce them to give a verdict adverse to Erskine's wishes.

Less fair but more successful was Erskine's treatment of the commercial

traveller, who appeared in the witness box dressed in the height of

fashion, and wearing a starched white necktie folded with the 'Brummel

fold.' In an instant reading the character of the man, on whom he had

never before set eyes, and knowing how necessary it was to put him in a

state of extreme agitation and confusion, before touching on the facts

concerning which he had come to give evidence, Erskine rose, surveyed

the coxcomb, and said, with an air of careless amusement, "You were born

and bred in Manchester, _I perceive_." Greatly astonished at this

opening remark, the man answered, nervously, that he was "a Manchester

man--born and bred in Manchester." "Exactly," observed Erskine, in a

conversational tone, and as though he were imparting information to a

personal friend--"exactly so; I knew it from the absurd tie of your

neckcloth." The roars of laughter which followed this rejoinder so

completely effected the speaker's purpose that the confounded bagman

could not tell his right hand from his left. Equally effective was

Erskine's sharp question, put quickly to the witness, who, in an action

for payment of a tailor's bill, swore that a certain dress-coat was

badly made--one of the sleeves being longer than the other. "You will,"

said Erskine, slowly, having risen to cross-examine, "swear--that one of

the sleeves was--longer--than the other?" _Witness._ "I do swear it."

_Erskine_, quickly, and with a flash of indignation, "Then, sir, I am to

understand that you positively deny that one of the sleeves was

_shorter_ than the other?" Startled into a self-contradiction by the

suddenness and impetuosity of this thrust, the witness said, "I do deny

it." _Erskine_, raising his voice as the tumultuous laughter died away,

"Thank you, sir; I don't want to trouble you with another question." One

of Erskine's smartest puns referred to a question of evidence. "A case,"

he observed, in a speech made during his latter years, "being laid

before me by my veteran friend, the Duke of Queensbury--better known as

'old Q'--as to whether he could sue a tradesman for breach of contract

about the painting of his house; and the evidence being totally

insufficient to support the case, I wrote thus: 'I am of opinion that

this action will not _lie_ unless the witnesses _do_.'" It is worthy of

notice that this witticism was but a revival (with a modification) of a

pun attributed to Lord Chancellor Hatton in Bacon's 'Apophthegmes.'

In this country many years have elapsed since duels have taken place

betwixt gentlemen of the long robe, or between barristers and witnesses

in consequence of words uttered in the heat of forensic strife; but in

the last century, and in the opening years of the present, it was no

very rare occurrence for a barrister to be called upon for

'satisfaction' by a person whom he had insulted in the course of his

professional duty. During George II.'s reign, young Robert Henley so

mercilessly badgered one Zephaniah Reeve, whom he had occasion to

cross-examine in a trial at Bristol, that the infuriated witness--Quaker

and peace-loving merchant though he was--sent his persecutor a challenge

immediately upon leaving court. Rather than incur the ridicule of 'going

out with a Quaker,' and the sin of shooting at a man whom he had

actually treated with unjustifiable freedom, Henley retreated from an

embarrassing position by making a handsome apology; and years

afterwards, when he had risen to the woolsack, he entertained his old

acquaintance, Zephaniah Reeve, at a fashionable dinner-party, when he

assembled guests were greatly amused by the Lord Chancellor's account of

the commencement of his acquaintance with his Quaker friend.

Between thirty and forty years later Thurlow was 'called out' by the

Duke of Hamilton's agent, Mr. Andrew Stewart, whom he had grievously

offended by his conduct of the Great Douglas Case. On Jan. 14,

1769-1770, Thurlow and his adversary met in Hyde Park. On his way to the

appointed place, the barrister stopped at a tavern near Hyde Park

Corner, and "ate an enormous breakfast," after which preparation for

business, he hastened to the field of action. Accounts agree in saying

that he behaved well upon the ground. Long after the bloodless

_rencontre_, the Scotch agent, not a little proud of his 'affair' with a

future Lord Chancellor, said, "Mr. Thurlow advanced and stood up to me

like an elephant." But the elephant and the mouse parted without hurting

each other; the encounter being thus faithfully described in the 'Scots'

Magazine:' "On Sunday morning, January 14, the parties met with swords

and pistols, in Hyde Park, one of them having for his second his

brother, Colonel S----, and the other having for his Mr. L----, member

for a city in Kent. Having discharged pistols, at ten yards' distance,

without effect, they drew their swords, but the seconds interposed, and

put an end to the affair."

One of the best 'Northern Circuit stories' pinned upon Lord Eldon

relates to a challenge which an indignant suitor is said to have sent to

Law and John Scott. In a trial at York that arose from a horse-race, it

was stated in evidence that one of the conditions of the race required

that "each horse should be ridden by a gentleman." The race having been

run, the holders refused to pay the stakes to the winner on the ground

that he was not a gentleman; whereupon the equestrian whose gentility

was thus called in question brought an action for the money. After a

very humorous inquiry, which terminated in a verdict for the defendants,

the plaintiff _was said_ to have challenged the defendants' counsel.

Messrs. Scott and Law, for maintaining that he was no gentleman; to

which invitation, it also averred, reply was made that the challengees

"could not think of fighting one who had been found _no gentleman_ by

the solemn verdict of twelve of his countrymen." Inquiry, however, has

deprived this delicious story of much of its piquancy. Eldon had no part

in the offence; and Law, who was the sole utterer of the obnoxious

words, received no invitation to fight. "No message was sent," says a

writer, supposed to be Lord Brougham, in the 'Law Magazine,' "and no

attempt was made to provoke a breach of the peace. It is very possible

Lord Eldon may have said, and Lord Ellenborough too, that they were not

bound to treat one in such a predicament as a gentleman, and hence the

story has arisen in the lady's mind. The fact was as well known on the

Northern Circuit as the answer of a witness to a question, whether the

party had a right by his circumstances to keep a pack of fox-hounds; 'No

more right than I to keep a pack of archbishops.'"

Curran is said to have received a call, before he left his bed one

morning, from a gentleman whom he had cross-examined with needless

cruelty and unjustifiable insolence on the previous day. "Sir!" said

this irate man, presenting himself in Curran's bedroom, and rousing the

barrister from slumber to a consciousness that he was in a very awkward

position, "I am the gintleman whom you insulted yesterday in His

Majesty's court of justice, in the presence of the whole county, and I

am here to thrash you soundly!" Thus speaking, the Herculean intruder

waved a horsewhip over the recumbent lawyer. "You don't mean to strike a

man when he is lying down?" inquired Curran. "No, bedad; I'll just wait

till you've got out of bed and then I'll give it to you sharp and fast."

Curran's eye twinkled mischievously as he rejoined: "If that's the case,

by ---- I'll lie here all day." So tickled was the visitor with this

humorous announcement, that he dropped his horsewhip, and dismissing

anger with a hearty roar of laughter, asked the counsellor to shake

hands with him.