Chapter ONE: The Judges of England (2)

According to the same authority, Brougham was at one time very anxious to be made an earl, but his desire was entirely quenched when Lord John Russell gave an earldom to Lord Chancellor Cottenham. He is said to have been so indignant that he either wrote or dictated a pamphlet in which the new creation was ridiculed, and to which was appended the significant motto, "The offence is rank."

The common feeling with regard to Sir James Scarlett's (Lord Abinger) success in gaining verdicts led to the composition of the following pleasantry, attributed to Lord Campbell. "Whereas Scarlett had contrived a machine, by using which, while he argued, he could make the judges' heads nod with pleasure, Brougham in course of time got hold of it; but not knowing how to manage it when he argued, the judges, instead of nodding, shook their heads."

And it is Lord Campbell who has preserved the following specimen of a judge's concluding remarks to a prisoner convicted of uttering a forged one-pound note. After having pointed out to him the enormity of the offence, and exhorted him to prepare for another world, added: "And I trust that through the merits and the mediation of our Blessed Redeemer, you may there experience that mercy which a due regard to the _credit of the paper currency_ of the country forbids you to hope for here."

Campbell married Miss Scarlett, a daughter of Lord Abinger, and was absent from Court when a case in which he was to appear was called before Mr. Justice Abbot. "I thought, Mr. Brougham," said his lordship, "that Mr. Campbell was in this case?"--"Yes, my lord," replied Mr. Brougham, with that sarcastic look peculiarly his own. "He was, my lord, but I understand he is ill."--"I am sorry to hear that, Mr. Brougham," said the judge. "My lord," replied Mr. Brougham, "it is whispered here that the cause of my learned friend's absence is scarlet fever."

* * * * *

In his native town of Cupar, Fife, Lord Chancellor Campbell's abilities and position were not so much appreciated as they were elsewhere. This was a sore point with his father, who was parish minister, and when the son was not selected by the town authorities to conduct their legal business in London the future Lord Chancellor also felt affronted. On the publication of the _Lives of the Chancellors_ some of his townsmen wrote asking him to present a copy to the local library of his native town, which gave Campbell an opportunity to square accounts with them for their past neglect of him, for he curtly replied to their request that "they could purchase the book from any bookseller." An old lady of the town relating some gossip about the Campbell family said, "They meant John for the Church, but he went to London _and got on very well_." Such was the good lady's idea of the relative positions of minister of a Scottish parish and Lord Chancellor of England.

The difference in the pronunciation of a word led to an amiable contest between Lord Campbell and a learned Q.C. In an action to recover damages to a carriage the counsel called the vehicle a "brougham," pronouncing both syllables of the word. Lord Campbell pompously observed, "Broom is the usual pronunciation--a carriage of the kind you mean is not incorrectly called a 'Broom'--that pronunciation is open to no grave objection, and it has the advantage of saving the time consumed by uttering an extra syllable." Later in the trial Lord Campbell alluding to a similar case referred to the carriage which had been injured as an "Omnibus."--"Pardon me, my lord," interposed the Q.C., "a carriage of the kind to which you draw attention is usually termed a '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."

* * * * *

Mr. Martin (afterwards Baron Martin), when at the Bar, was addressing the Court in an insurance case, when he was interrupted by Baron Alderson, who said, "Mr. Martin, do you think any office would insure your life?"--"Certainly, my lord," replied Mr. Martin, "mine is a very good life."--"You should remember, Mr. Martin, that yours is brief existence."

This judge's reason for releasing a juryman from duty was equally smart. The juryman in question confessed that he was deaf in one ear. "Then leave the box before the trial begins," observed his lordship; "it is necessary that the jurymen should hear _both_ sides."

Baron Martin was one of the good-natured judges who from the following story seem to stretch that amiable quality to its fullest extent. In sentencing a man convicted of a petty theft he said: "Look, I hardly know what to do with you, but you can take six months."--"I can't take that, my lord," said the prisoner; "it's too much. I can't take it; your lordship sees I did not steal very much after all." The Baron indulged in one of his characteristic chuckling laughs, and said: "Well that's vera true; ye didn't steal _much_. Well then, ye can tak' _four_. Will that do--four months?"--"No, my lord, but I can't take that neither."--"Then take _three_."--"That's nearer the mark, my lord," replied the prisoner, "but I'd rather you'd make it _two_, if you'll be so kind."--"Very well then, tak' two," said the judge; "and don't come again. If you do, I'll give you--well, it'll all depend."

* * * * *

Lord Erskine's punning upon legal terms has already been noticed, but no better quip is recorded than that of Lord Chelmsford, when as Sir Frederick Thesiger, and a leader at the Bar, he took exception to the irregular examination of a witness by a learned serjeant. "I have a right," maintained the serjeant, "to deal with my witness as I please."--"To that I offer no objection," retorted Sir Frederick. "You may _deal_ as you like, but you shan't _lead_."

On all occasions Samuel Warren, the author of _Ten Thousand a Year_, was given to boasting, at the Bar mess, of his intimacy with members of the peerage. One day he was saying that, while dining lately at the Duke of Leeds, he was surprised at finding no fish of any kind was served. "That is easily accounted for," said Thesiger; "they had probably eaten it all _upstairs_."

Walking down St. James's Street one day, Lord Chelmsford was accosted by a stranger, who exclaimed, "Mr. Birch, I believe."--"If you believe that, sir, you'll believe anything," replied his lordship as he passed on.

* * * * *

In the recently published _Cockburn Family Records_ the following is told of the Chief Justice's ready wit:

"At a certain trial an extremely pretty girl was called as a witness. The Lord Chief Justice was very particular about her giving her full name and address. Of course he took note. So did the sheriff's officer! That evening they both arrived at the young lady's door simultaneously, whereupon Sir Alexander tapped the officer on the shoulder, remarking, 'No, no, no, Mr. Sheriff's Officer, judgment first, execution afterwards!'"

There never was a barrister whose rise at the Bar was more rapid or remarkable than that of Sir Alexander Cockburn, and along with him was his friend and close associate as a brother lawyer of the Crown and Bencher of the same Inn, Sir Richard Bethel, who became Lord Chancellor a few years after Sir Alexander was made Chief Justice. Sir Richard once said to his colleague, "My dear fellow, equity will swallow up your common law."--"I don't know about that," said Sir Alexander, "but you'll find it rather hard of digestion."

* * * * *

Although the wit of Lord Justice Knight Bruce was somewhat sarcastic it was rarely so severe as that of Lord Westbury. There was always a tone of good humour about it. He had indeed a kind of grave judicial waggery, which is well exemplified in the following judgment in a separation suit between an attorney and his wife. "The Court has been now for several days occupied in the matrimonial quarrels of a solicitor and his wife. He was a man not unaccustomed to the ways of the softer sex, for he already had nine children by three successive wives. She, however--herself a widow--was well informed of these antecedents; and it appears did not consider them any objection to their union; and they were married. No sooner were they united, however, than they were unhappily disunited by unhappy disputes as to her property. These disputes disturbed even the period usually dedicated to the softer delights of matrimony, and the honeymoon was occupied by endeavours to induce her to exercise a testamentary power of appointment in his favour. She, however, refused, and so we find that in due course, at the end of the month, he brought home with some disgust his still intestate bride. The disputes continued, until at last they exchanged the irregular quarrels of domestic strife for the more disciplined warfare of Lincoln's Inn and Doctors Commons."

Of this judge the story is told that a Chancery counsel in a long and dry argument quoted the legal maxim--_expressio unius est exclusio alterius_--pronouncing the "i" in _unius_ as short as possible. This roused his lordship from the drowsiness into which he had been lulled. "Unyus! Mr. ----? We always pronounced that _unius_ at school."--"Oh yes, my lord," replied the counsel; "but some of the poets use it short for the sake of the metre."--"You forget, Mr. ----," rejoined the judge, "that we are prosing here."

* * * * *

Mr. Justice Willes was a judge of kindly disposition, and when he had to convey a rebuke he did so in some delicate and refined way like this. A young barrister feeling in a hobble, wished to get out of it by saying, "I throw myself on your lordship's hands."--"Mr. ----, I decline the burden," replied the learned judge.

One day in judge's chambers, after being pressed by counsel very strongly against his own views, he said with quaint humour: "I'm one of the most obstinate men in the world."--"God forbid that I should be so rude as to contradict your lordship," replied the counsel.

Mr. Montague Williams in his _Leaves of a Life_ relates the following story of Mr. Justice Byles. He was once hearing a case in which a woman was charged with causing the death of her child by not giving it proper food, or treating it with the necessary care. Mr. F----, of the Western Circuit, conducted the defence, and while addressing the jury said:

"Gentlemen, it appears to be impossible that the prisoner can have committed this crime. A mother guilty of such conduct to her own child? Why, it is repugnant to our better feelings"; and then being carried away by his own eloquence, he proceeded: "Gentlemen, the beasts of the field, the birds of the air, suckle their young, and----"

But at this point the learned judge interrupted him, and said:

"Mr. F----, if you establish the latter part of your proposition, your client will be acquitted to a certainty."

And to the same authority we are indebted for a judge's gentle but sarcastic reproof of a prosing counsel. In an action for false imprisonment, heard before Mr. Justice Wightman, Ribton was addressing the jury at great length, repeating himself constantly, and never giving the slightest sign of winding up. When he had been pounding away for several hours, the good old judge interposed, and said: "Mr. Ribton, you've said that before."--"Have I, my lord?" said Ribton; "I'm very sorry. I quite forgot it."--"Don't apologise, Mr. Ribton," was the answer. "I forgive you; for it was a very long time ago."

A very old story is told of a highwayman who sent for a solicitor and inquired what steps were necessary to be taken to have his trial deferred. The solicitor answered that he would require to get a doctor's affidavit of his illness. This was accordingly done in the following manner: "The deponent verily believes that if the said ---- is obliged to take his trial at the ensuing sessions, he will be in imminent danger of his life."--"I verily believe so too," replied the judge, and the trial proceeded immediately.

* * * * *

Some judges profess ignorance of slang terms used in evidence, and seek explanation from counsel. Lord Coleridge in the following story had his inquiry not only answered but illustrated. A witness was describing an animated conversation between the pursuer and defendant in a case and said: "Then the defendant turned and said, 'If 'e didn't 'owld 'is noise 'ed knock 'im off 'is peark.'"--"Peark? Mr. Shee, what is meant by peark?" asked the Lord Chief Justice. "Oh, peark, my lord, is any position when a man elevates himself above his fellows--for instance, a bench, my lord."

Another story illustrating this alleged ignorance of every-day terms used by the masses comes from the Scottish Court of Session. In this instance the explanation was volunteered by the witness who used the term. One of the counsel in the case was Mr. (now Lord) Dewar, who was cross-examining the witness on a certain incident, and drew from him the statement that he (the witness) had just had a "nip." "A nip," said the judge; "what is a nip?"--"Only a small Dewar, my lord," explained the witness.

Lord Russell of Killowen, himself a Lord Chief Justice, tells some amusing stories of Lord Coleridge in his interesting reminiscences of that great judge in the _North American Review_. When at the Bar he was counsel in a remarkable case--Saurin against Starr. The pursuer, an Irish lady, sued the Superior of a religious order at Hull for expulsion without reasonable cause. Mr. Coleridge cross-examined a Mrs. Kennedy, one of the superintendents of the convent, who had mentioned in her evidence, among other peccadilloes of the pursuer, that she had been found in the pantry eating strawberries, when she should have been attending some class duties.

Mr. Coleridge: "Eating strawberries, really!"

Mrs. Kennedy: "Yes, sir, she was eating strawberries."

Mr. Coleridge: "How shocking!"

Mrs. Kennedy: "It was forbidden, sir."

Mr. Coleridge: "And did you, Mrs. Kennedy, really consider there was any great harm in that?"

Mrs. Kennedy: "No, sir, not in itself, any more than there was harm in eating an apple; but you know, sir, the mischief that came from that."

When as Lord Chief Justice, Lord Coleridge visited the United States, he was continually pestered by interviewers, and one of them failing to draw him, began to disparage the old country in its physical features and its men. Lord Coleridge bore it all in good part; finally the interviewer said, "I am told, my lord, you think a great deal of your great fire of London. Well, I guess, that the conflagration we had in the little village of Chicago made your great fire look very small." To which his lordship blandly responded: "Sir, I have every reason to believe that the great fire of London was quite as great as the people of that time desired."

There are few of Lord Bowen's witticisms from the Bench in circulation, but his after-dinner stories are worth recording, and perhaps one of the best is that given in _Anecdotes of the Bench and Bar_, as told by himself in the following words: "One of the ancient rabbinical writers was engaged in compiling a history of the minor prophets, and in due course it became his duty to record the history of the prophet Daniel. In speaking of the most striking incident in the great man's career--I refer to his critical position in the den of lions--he made a remark which has always seemed to me replete with judgment and observation. He said that the prophet, notwithstanding the trying circumstances in which he was placed, had one consolation which has sometimes been forgotten. He had the consolation of knowing that when the dreadful banquet was over, at any rate it was not he who would be called upon to return thanks."

* * * * *

The following story cannot be classed a witticism from the Bench, but the judge clearly gave the opening for the lady's smart retort.

Mrs. Weldon, a well-known lady litigant in the Courts a generation ago, was on one occasion endeavouring in the Court of Appeal to upset a judgment of Vice-Chancellor Bacon, and one ground of complaint was that the judge was too old to understand her case. Thereupon Lord Esher said: "The last time you were here you complained that your case had been tried by my brother Bowen, and you said he was only a bit of a boy, and could not do you justice. Now you come here and say that my brother Bacon was too old. What age do you want the judge to be?"--"Your age," promptly replied Mrs. Weldon, fixing her bright eyes on the handsome countenance of the Master of the Rolls.

On Charles Phillips, who became a judge of the Insolvent Court, noticing a witness kiss his thumb instead of the Testament, after rebuking him said, "You may think to _desave_ God, sir, but you won't desave me."

* * * * *

That racy and turf-attending judge, Lord Brampton, better known as Sir Henry Hawkins, tells many good stories of himself in his _Reminiscences_, but it is the unconscious humorist of Marylebone Police Court who records this _bon mot_ of Sir Henry.

An old woman in the witness-box had been rattling on in the most voluble manner, until it was impossible to make head or tail of her evidence. Mr. Justice Hawkins, thinking he would try his hand, began with a soothing question, but the old woman would not have it at any price. She replied testily, "It's no use you bothering me. I have told you all I know."--"That may be," replied his lordship, "but the question rather is, do you know all you have told us?"

When Sir Henry (then Mr.) Hawkins was prosecuting counsel in the Tichborne trial, over which Lord Chief Justice Cockburn presided, an amusing incident is recorded by Mr. Plowden. The antecedents of a man who had given sensational evidence for the claimant were being inquired into, and in answer to Sir Henry the witness under examination said he knew the man to be married, but his wife passed under another name. "What name?" asked Mr. Hawkins. "Mrs. Hawkins," replied the witness. "What was her maiden name?" added Mr. Hawkins. "Cockburn." Such a coincident of names naturally caused hearty and prolonged laughter.

In the course of this celebrated trial another amusing incident occurred which Sir Henry used to tell against himself. One morning as the claimant came into Court, a lady dressed in deep mourning presented Orton with a tract. After a few minutes he wrote something on it, and had it passed on to the prosecuting counsel. The tract was boldly headed in black type, "Sinner--Repent," and the claimant had written upon it, "Surely this must have been meant for Hawkins."

Not long after he had ascended the Bench Mr. Justice Hawkins was hearing a case in which a man was being tried for murder. The counsel for the prosecution observed the prisoner say something earnestly to the policeman seated by his side in the dock, and asked that the constable should be made to disclose what had passed. "Yes," said his lordship, "I think you may demand that. Constable, inform the Court what passed between you and the prisoner."--"I--I would rather not, your lordship. I was--."--"Never mind what you would rather not do. Inform the Court what the prisoner said."--"He asked me, your lordship, who that hoary heathen with the sheepskin was, as he had often seen him at the race-course."--"That will do," said his lordship. "Proceed with the case."

An action for damages against a fire insurance company, brought by some Jews, was heard before Chief Justice Cockburn, which clearly was a fraudulent claim. The plaintiffs claimed for loss of ready-made clothes in the fire. Hawkins, who appeared for the defendant company, elicited the fact that ready-made clothes in this firm had all brass buttons as a rule; and, further, that after sifting the debris of the fire no buttons had been found. The trial was not concluded on that day, but on the following morning hundreds of buttons partially burnt were brought into Court by the Jew plaintiffs. Cockburn was not long in appreciating this mode of furnishing evidence after its necessity had been pointed out, and he asked: "How do you account for these buttons, Mr. Hawkins? You said none were found."--"Up to last night none had been found," replied Hawkins. "But," said the Chief Justice--"but these buttons have evidently been burnt in the fire. How do they come here?"--"_On their own shanks_," was Hawkins' smart and ready reply. Verdict for defendants.

The alibi has come in for its fair share of jests. Sir Henry Hawkins relates in his _Reminiscences_ how he once found the following in his brief: "If the case is called on before 3.15, the defence is left to the ingenuity of the counsel; if after that hour, the defence is an alibi, as by then the usual alibi witnesses will have returned from Norwich, where they are at present professionally engaged."

Sitting as a vacation judge, Sir Walter Phillimore, whose views on the law of divorce are well known, protested against being called on to make absolute a number of decrees _nisi_ granted in the Divorce Division. This fact is said to have called forth a witty pronouncement by a late president of that Division of the Courts. "Here is my brother Phillimore, who objects to making decrees _nisi_ absolute because he believes in the sanctity of the marriage tie. By and by we may be having a Unitarian appointed to the Bench, and he will refuse to try Admiralty suits, as he would have to sit with Trinity Masters."

In sentencing a burglar recently, the judge referred to him as a "professional," to which the prisoner strongly protested from the dock. "Here," he exclaimed, "I dunno wot you mean by callin' me a professional burglar. I've only done it once before, an' I've been nabbed both times." The judge, in the most suave manner, replied, "Oh, I did not mean to say that you had been very successful in your profession."

* * * * *

Mr. Justice Grantham had a keen sense of humour. On one occasion, when he was judge at the Newcastle Assizes, he left the mansion-house where he was staying, at night, to post his letters. As he was wearing a cap he was not recognised by the police officer who was on duty outside, and the constable inquired of his lordship if "the old ---- had gone to bed yet." The judge replied that he thought not, and a short while after he had returned to the house he raised his bedroom window, and putting out his head called to the constable below: "Officer, the old ---- is just going to bed now."

Hardly a case of any importance comes into Mr. Justice Darling's Court without attracting a large attendance of the public, as much from expectation of being entertained by the repartees between Bench and Bar as from interest in the proceedings before the Court. In a recent turf libel case his lordship gave a free rein to his proclivity to give an amusing turn to statements of both counsel and witnesses. At one point he intervened by remarking that other witnesses than the one under examination had said that a horse is made fit by running on the course before he is expected to win a position, and added, "That is so, not only on the race-course. You can never make a good lawyer by putting him to read in the library." To which the defendant, who conducted his own case, replied, "But I take it a barrister does try."--"You have no notion how he tries the judge," responded Mr. Justice Darling. In the same case a question arose as to whether the stewards of the Jockey Club had the power to check riding "short," as it is termed, and the Justice inquired if the stewards could say, "You must ride with a leather of a prescribed length," and got the answer, "Yes; they could say if you don't ride longer we won't give you a license."--"Which means," said the judge, "if you don't ride longer you won't ride long."

"Who made the translation from the German?" asked the same judge, regarding a document to which counsel had referred. "God knows; I don't," was the reply of Mr. Danckwerts. "Are you sure," responded the Justice, "that what is not known to you is known at all?"

Perhaps Mr. Justice Darling never raised heartier laughter than in an action some years ago where the issue was whether the plaintiff, who had been engaged by the defendant to sing in "potted opera" at a music-hall, was competent to fulfil his contract.

"Well, he could not sing like the archangel Gabriel," a witness had said, in reply to Mr. Duke, K. C.

"I have never heard the archangel Gabriel," commented the eminent counsel.

"That, Mr. Duke, is a pleasure to come," was his lordship's swift, if gently sarcastic, rejoinder.

* * * * *

If witnesses occasionally undergo severe handling in cross-examination by counsel, there are also occasions when their ready reply has rather nonplussed the judge.

A case was being tried at York before Mr. Justice Gould. When it had proceeded for upwards of two hours the judge observed that there were only eleven jurymen in the box, and inquired where the twelfth man was. "Please you, my lord," said one of them, "he has gone away about some business, but he has left his verdict with me."

"How old are you?" asked the judge of a lady witness. "Thirty."--"Thirty!" said the judge; "I have heard you give the same age in this Court for the last three years."--"Yes," responded the lady; "I am not one of those persons who say one thing to-day and another to-morrow."

Mr. Justice Keating one day had occasion to examine a witness who stuttered very much in giving his evidence. "I believe," said his lordship, "you are a very great rogue."--"Not so great a rogue as you, my lord--t--t--t--t--take me to be," was the reply.

Judge: "Is this your signature?"

Witness: "I don't know."

Judge: "Look at it carefully."

Witness: "I can't say for certain."

Judge: "Is it anything like your writing?"

Witness: "I don't think it is."

Judge: "Can't you identify it?"

Witness: "Not quite."

Judge: "Well, let me see, just write your name here and I will examine the two signatures."

Witness: "I can't write, sir."

Medical men are not as a rule the best witnesses, being too fond of using technical words peculiar to them in their own profession. In an action for assault tried by a Derbyshire common jury before Mr. Justice Patteson, a surgical witness was asked to describe the injuries the plaintiff had received; he stated he had "ecchymosis" of the left eye. Upon the judge inquiring whether that did not mean what was commonly understood by a black eye, the witness answered: "Yes."--"Then why did you not say so, sir? What do the jury know of 'ecchymosis'? They might think, as the farmer did of the word 'felicity,' used by a clergyman in his sermon, that it meant something in the inside of a pig."

A notorious thief, being tried for his life, confessed the robbery he was charged with. The judge thereupon directed the jury to find him guilty upon his own confession. The jury having consulted together brought him in "Not guilty." The judge bade them consider their verdict again, but still they brought in a verdict of "Not guilty." The judge asking the reason, the foreman replied: "There is reason enough, for we all know him to be one of the greatest liars in the country."

"Have you committed all these crimes?" asked the judge of a hoary old sinner. "Yes, my lord, and worse." "Worse, I should have thought it impossible. What have you done then?"--"My lord, I allowed myself to be caught."

"I knows yer," said a prisoner to the present Lord Chief Justice, "and many's the time I've given yer a hand when ye've been stepping it round the track like a greyhound. So let's down lightly, like a good cove as yer are."

* * * * *

The retort of a witness to Lord Avory was too good to be soon forgotten, and is still circulating among the juniors of the law-courts. "Let me see," said his lordship, "you have been convicted before, haven't you?"--"Yes, sir," answered the man; "but it was due to the incapacity of my counsel rather than to any fault on my part."--"It always is," said Lord Avory, with a grim smile, "and you have my sincere sympathy."--"And I deserve it," retorted the man, "seeing that you were my counsel on that occasion!"

CHAPTER TWO

THE BARRISTERS OF ENGLAND

"Hark the hour of ten is sounding!
Hearts with anxious fears are bounding;
Hall of Justice crowds surrounding,
Breathing hope and fear.
For to-day in this arena
Summoned by a stern subpœna,
Edwin sued by Angelina
Shortly will appear."

Sir W. S. GILBERT: _Trial by Jury_.

"As your Solicitor, I should have no hesitation in saying:
Chance it----"

Sir W. S. GILBERT: _The Mikado_.