Chapter I: Part 1

THE SEVEN LAMPS
OF ADVOCACY

WHAT THE JUDGE THOUGHT

By HIS HONOUR JUDGE EDWARD PARRY. Demy 8vo. Cloth. 21s. net

(_Third Impression_)

T. FISHER UNWIN, LTD., LONDON

THE SEVEN LAMPS
OF ADVOCACY _By
His Honour Judge_ EDWARD
ABBOTT PARRY

T. FISHER UNWIN LTD
LONDON: ADELPHI TERRACE

_First published in 1923_

(_All rights reserved_)

TO
THE NORTHERN CIRCUIT
WHERE I LEARNED
THESE THINGS

CONTENTS

PAGE

I. THE LAMP OF HONESTY 11

II. THE LAMP OF COURAGE 23

III. THE LAMP OF INDUSTRY 37

IV. THE LAMP OF WIT 49

V. THE LAMP OF ELOQUENCE 61

VI. THE LAMP OF JUDGMENT 75

VII. THE LAMP OF FELLOWSHIP 93

I

THE LAMP
OF HONESTY

I

THE LAMP OF HONESTY

The great advocate is like the great actor: he fills the stage for his span of life, succeeds, gains our applause, makes his last bow, and the curtain falls. Nothing is so elusive as the art of acting, unless indeed it be the sister art of advocacy. You cannot say that the methods of Garrick, Kean or Irving, Erskine, Hawkins or Russell, were the right methods or the only methods, or even that they were the best methods of practising their several arts; you can only say that they succeeded in their day, and that their contemporaries acclaimed them as masters.

Inasmuch as their methods were often new and startling to their own generation, the young student of acting or advocacy is eager to believe that there are no methods and no technique to learn, and no school in which to graduate. Youth is at all times prone to act on the principle that there are no principles, that there is no one from whom it can learn, and nothing to teach. Any one, it seems, can don a wig and gown, and thereby become an advocate. Yet there are principles of advocacy; and if a few generations were to forget to practise these, it would indeed be a lost art. The student of advocacy can draw inspiration and hope from the stored-up experience of his elders. He can trace in the plans and life-charts of the ancients the paths along which they strode, journeying towards Eldorado. True, these figures of forgotten advocates are dim and obscure--only to be painfully seen through the dusty gauzes of forgotten years, pictured for us in drowsy voluminous memoirs, or baldly reported in mouldering law reports; but if we search these records diligently we gradually discern a race of worthy men--see them haunting the old libraries, pacing the ancient halls with their clients, proud of the traditions of their great profession--advocates--advocates all.

It is in an endeavour to recapture something of the lives of these great ones, and the principles upon which they built their success, that I have struggled through forbidding masses of decaying biography in hopes to catch a faint whisper here and there of the triumphant works and days of my professional forbears.

For a race of moderns, that, maybe, care for none of these things, I have lighted again the old lamps which burned so brightly in the days that are gone, which I myself have seen lighting the darkness of our courts, and guiding the footsteps of the judges in the paths of justice and truth. For without a free and honourable race of advocates the world will hear little of the message of justice. Advocacy is the outward and visible appeal for the spiritual gift of justice. The advocate is the priest in the temple of justice, trained in the mysteries of the creed, active in its exercises. For this reason Wyclif in his translation of I John ii. 1 sanctifies the word in the text: “We haue auoket anentis the fadir, Jhesu Crist just.” Modern versions retain “advocate,” but unhappily substitute “righteous” for “just”. Advocacy connotes justice. Upon the altars of justice the advocate must keep his seven lamps clean and burning brightly. In the centre of these must ever be the lamp of honesty.

The English Bar is a society of advocates, though, as Blackstone tells us, we generally call them counsel. The Scots retain the name in their Faculty of Advocates. The word must be insisted upon for its ancientry and meaning. The order of advocates is, in D’Aguesseau’s famous phrase, “as noble as virtue.” Far back in the Capitularies of Charlemagne it was ordained of the profession of advocates “that nobody should be admitted therein but men mild, pacific, fearing God, and loving justice, upon pain of elimination.” So may it continue, world without end.

From the earliest, Englishmen have understood that advocacy is necessary to justice, and honesty is essential to advocacy. The thirteenth century _Mirrour of Justices_ may, as modern jurists hold, be a contemptible legal compilation. It is said to have been written by one Andrew Horn, a fishmonger; and what could he have known, say the learned ones, about the origin and history of legal affairs? Nevertheless, to the reader of to-day the views of the man in the street, the common citizen of a bygone age, about the place in the world of the advocate is more precious than many black-letter folios of crabbed juridical learning.

“Some there be,” says our fishmonger very shrewdly, “who know not how to state their causes or to defend them in court, and some who cannot, and therefore are pleaders necessary; so that what plaintiffs and others cannot or know not how to do by themselves they may do by their serjeants, proctors, or friends. Pleaders are serjeants wise in the law of the realm who serve the commonality of the people, stating and defending for hire actions in court for those who have need of them. Every pleader who acts in the business of another should have regard to four things:--First, that he be a person receivable in court, that he be no heretic, nor excommunicate, nor criminal, nor man of religion, nor woman, nor ordained clerk above the order of sub-deacon, nor beneficed clerk with the cure of souls, nor infant under twenty-one years of age, nor judge in the same cause, nor open leper, nor man attainted of falsification against the law of his office. Secondly, that every pleader is bound by oath that he will not knowingly maintain or defend wrong or falsehood, but will abandon his client immediately that he perceives his wrong-doing. Thirdly, that he will never have recourse to false delays or false witnesses, and never allege, proffer, or consent to any corruption, deceit, lie, or falsified law, but loyally will maintain the right of his client, so that he may not fail through his folly or negligence, nor by default of him, nor by default of any argument that he could urge; and that he will not by blow, contumely, brawl, threat, noise, or villain conduct disturb any judge, party, serjeant, or other in court, nor impede the hearing or the course of justice. Fourthly, there is the salary, concerning which four points must be regarded--the amount of the matter in dispute, the labour of the serjeant, his value as a pleader in respect of his (learning), eloquence, and repute, and lastly the usage of the court.”

Note how from the earliest days the advocate may in no way maintain or defend wrong or falsehood. It is the right of his client he is there to uphold, and the right only. Nevertheless, although an advocate is bound by obligations of honour and probity not to overstate the truth of his client’s case, and is forbidden to have recourse to any artifice or subterfuge which may beguile the judge, he is not the judge of the case, and within these limits must use all the knowledge and gifts he possesses to advance his client’s claims to justice.

Many good men have been troubled with the thought that advocacy implied a certain want of honesty. Boswell asked Doctor Johnson whether he did not think “that the practice of the law in some degree hurt the nice feeling of honesty?” To whom the doctor replied: “Why no, Sir, if you act properly. You are not to deceive your clients with false representations of your opinion: you are not to tell lies to a judge.” _Boswell_: “But what do you think of supporting a cause which you know to be bad?” _Johnson_: “Sir, you do not know it to be good or bad till the judge determines it. I have said that you are to state facts fairly; so that your thinking, or what you call knowing, a cause to be bad must be from reasoning, must be from your supposing your arguments to be weak and inconclusive. But, Sir, that is not enough. An argument which does not convince yourself, may convince the judge to whom you urge it: and if it does convince him, why, then, Sir, you are wrong, and he is right. It is his business to judge; and you are not to be confident in your own opinion that a cause is bad, but to say all you can for your client, and then hear the Judge’s opinion.” _Boswell_: “But, Sir, does not affecting a warmth when you have no warmth, and appearing to be clearly of one opinion when you are in reality of another opinion, does not such dissimulation impair one’s honesty? Is there not some danger that a lawyer may put on the same mask in common life, in the intercourse with his friends?” _Johnson_: “Why no, Sir, everybody knows you are paid for affecting warmth for your client; and it is, therefore, properly no dissimulation: the moment you come from the bar you resume your usual behaviour. Sir, a man will no more carry the artifice of the bar into the common intercourse of society, than a man who is paid for tumbling upon his hands will continue to tumble upon his hands when he should walk on his feet.”

I like the rough English common-sense of this; but the Irishman in the dock had an inspired vision of the same truth when, in answer to the Clerk of the Crown, who called upon him with the familiar interrogatory, “Guilty or Not Guilty?” he replied with a winning smile, “And how can I tell till I hear the evidence?”

When Lord Brougham, at a dinner to M. Berryer, claimed in his speech that the advocate should reckon everything as subordinate to the interests of his client, Lord Chief Justice Cockburn, “feeling that our guest might leave us with a false impression of our ideals,” set forth his views of an advocate’s duty, concluding with these memorable words: “The arms which an advocate wields he ought to use as a warrior, not as an assassin. He ought to uphold the interests of his client _per fas_, and not _per nefas_. He ought to know how to reconcile the interests of his clients with the eternal interests of truth and justice.”

The best advocates of all generations have been devotees of honesty. Abraham Lincoln founded his fame and success in the profession on what some called his “perverse honesty.” On his first appearance in the Supreme Court of Illinois he addressed the court as follows: “This is the first case I have ever had in this court, and I have therefore examined it with great care. As the court will perceive by looking at the abstract of the record, the only question in the case is one of authority. I have not been able to find any authority to sustain my side of the case, but I have found several cases directly in point on the other side. I will now give these authorities to the court, and then submit the case.”

There have been advocates who regard such a course as quixotic. The late Joshua Williams was asked whether, if an advocate knows of a decided case in point against him which he has reason to believe is not known to the other side, he is bound to reveal it, and gave it as his opinion that “in principle this is no part of his duty as an advocate.” It must be remembered that this opinion was given when a host of cases were decided against their merits on purely technical points of law; but there is no doubt what the practice ought to be, and what among English advocates the practice is.

If an advocate knows the law to be _x_, it is not honest to lead the court to believe that it is _y_. Whether the advocate does this by directly mis-stating the law, or by deliberately omitting to state it fully within the means of his knowledge, it is equally without excuse, and dims the lamp of honesty.

For the advocate must remember that he is not only the servant of the client, but the friend of the court, and honesty is as essential to true friendship as it is to sound advocacy.

II

THE LAMP
OF COURAGE

II

THE LAMP OF COURAGE

Advocacy needs the “king-becoming graces: devotion, patience, courage, fortitude.” Advocacy is a form of combat where courage in danger is half the battle. Courage is as good a weapon in the forum as in the camp. The advocate, like Cæsar, must stand upon his mound facing the enemy, worthy to be feared, and fearing no man.

Unless a man has the spirit to encounter difficulties with firmness and pluck, he had best leave advocacy alone. Richard Bethell, Lord Westbury, in early life took for his motto: “_De l’audace et encore de l’audace, et toujours de l’audace_.” In advising on a case he was always clear and direct, saying that he was “paid for his opinion, not for his doubts.” Charles Hatton, writing as a layman of Jeffreys in his early days at the bar, shrewdly notes his best quality: “He hath in perfection the three chief qualifications of a lawyer: Boldness, Boldness, Boldness.” A modern advocate kindly reproving a junior for his timidity of manner wisely said: “Remember it is better to be strong and wrong than weak and right.”

The belief that success in advocacy can be attained by influence, apart from personal qualifications, is ill-founded. There was never a youngster with better backing than Francis North, afterwards Lord Keeper to Charles II., yet, as his biographer says, “observe his preparatives,” his earnest attendances at moots, his diligent waiting in that “dismal hole” the “corner chamber, one pair of stairs in Elm Court.”

In the same way his younger brother, Roger, though born in the ermine, so to speak, had to plod his way up like any other junior. It is good to be the brother of a Lord Chancellor, but it does not make a man an advocate.

Roger North’s autobiography is full of interest to the student of advocacy. His memory of his first appearance is vivid and entertaining. “I was immediately called,” he writes, “to the Bar, _ex gratiâ_, not having standing, although I had performed such exercises as the house required, save a few. My first flight in practice was the opening a declaration at _Nisi Prius_ in Guildhall, under my brother, which was a crisis like the loss of a maidenhead; but with blushing and blundering I got through it, and afterwards grew bold and ready at such a formal performance; but it was long ere I adventured to ask a witness a question.”

Roger North would never have attained the eminence he did in his profession by merely hanging on to the gown of his greater brother. Hard work and dogged courage, not patronage, earned him the dignities he achieved. The description of his early beginnings is full of encouragement for the young advocate. “During my practice under Hale,” he says, “at the King’s Bench I was raw, and not at all quaint and forward as some are, so that I did but learn experience and discover my own defects, which were very great. I was a plant of a slow growth, and when mature but slight wood, and of a flashy fruit. But my profession obliged me to go on, which I resolved to do against all my private discouragements, and whatever absurdities and errors I committed in public I would not desist, but forgot them as fast as I could, and took more care another time. My comfort was, if some, all did not see my failings, and those upon whom I depended, the attorneys and suitors, might think the pert and confident forwardness I put on might produce somewhat of use to them.”

North held the sound opinion that “he who is not a good lawyer before he comes to the Bar, will never be a good one after it.” It is very true that learning begets courage, and wise self-confidence can only be founded on knowledge. The long years of apprenticeship, the studious attention to “preparatives,” are, to the advocate, like the manly exercises of the young squire that enabled the knight of old to earn his spurs on the field of battle. In no profession is it more certain that “knowledge is power,” and when the opportunity arrives, knowledge, and the courage to use it effectively, proclaim the presence of the advocate.

The best instance of what is meant perhaps may be found in Sir John Hollams’s account of the first appearance of Mr. Benjamin. He was a great lawyer before he addressed the court, but he sat down a great advocate. It was in a case which came on for hearing before Lord Justice James, then Vice-Chancellor, and “it appeared to be generally thought that, as usual at the time, a decree would be made directing inquiries in chambers. The matter was being so dealt with when Mr. Benjamin, then unknown to any one in Court, rose from the back seat in the Court. He had not a commanding presence, and at that time had rather an uncouth appearance. He, in a stentorian voice, not in accord with the quiet tone usually prevailing in the Court of Chancery, startled the Court by saying, ‘Sir, notwithstanding the somewhat off-hand and supercilious manner in which this case has been dealt with by my learned friend Sir Roundell Palmer, and to some extent acquiesced in by my learned leader Mr. Kay, if, sir, you will only listen to me--if, sir, you will only listen to me’ (repeating the same words three times, and on each occasion raising his voice), ‘I pledge myself you will dismiss this suit with costs.’ The Vice-Chancellor and Sir Roundell Palmer, and indeed all the Court, looked at him with a kind of astonishment, but he went on without drawing rein for between two and three hours. The Court became crowded, for it soon became known that there was a very unusual scene going on. In the end the Vice-Chancellor did dismiss the suit with costs, and his decision was confirmed on appeal.”

There have been many advocates whose courage was founded on humour rather than knowledge, and who have successfully asserted their independence in the face of an impatient or overbearing Bench through the medium of wit, where mere wisdom might have failed in effect.

Of such was Tom Jones, who startled Mr. Justice Byles into indignant attention by opening his case with bold impertinence: “No one, my lords, who looks at this case with common fairness and honesty, can hesitate for a moment in declaring that there ought to be a new trial.”

Byles observed, “This is rather strong language to use to us, Mr. Jones. I hope you think that we, at the least, are commonly fair and honest.”

“We shall see, my lord,” said Tom; “we shall see.”

Serjeant Robinson tells us a further good story of Tom’s refusal to be hustled by the Bench.

“Our friend Tom Jones,” he writes, “was a little lengthy sometimes in the exposition of his client’s rights, and one day the chief baron said to him, ‘Mr. Jones, this case has occupied a great deal of time, and we have a very long list of cases to get through.’

“‘My lord,’ said Tom, ‘I have carefully looked through that list, and I did not find there was a single cause in which I or my client was in the slightest degree interested.’”

But these sallies should never degenerate into mere incivility or abuse, in which there is little real courage, since a judge of sense will always refrain, if it be at all possible, from reply to such attacks, which only injure the reputation of the Bar and destroy the reputation of the advocate.

In the early days of American Sessions a certain judge was violently attacked by a young and very impudent attorney. To the manifest surprise of everybody present, the judge heard him quite through as though unconscious of what was said, and made no reply. After the adjournment of the day, and all had assembled at the inn where the judge and many of the attorneys had their lodgings, one of the company, referring to the scene in court, asked the judge why he did not rebuke the impertinent fellow.

“Permit me,” said the judge, loud enough to call the attention of all the company, among whom was the fellow in question--“permit me to tell you a story. My father, when we lived down in the country, had a dog--a mere puppy, I may say. Well, this puppy would go out every moonlight night and bark at the moon for hours together.” Here the judge paused, as if he had done with his story.

“Well, what of it?” exclaimed half-a-dozen of the audience at once.

“Oh, nothing, nothing whatever; the moon kept right on, as if nothing had happened.”

Independence without moderation becomes licentiousness, but true independence is an essential attribute of advocacy, and the English Bar has never wanted men endowed with this form of true courage. The sacrifice of the highest professional honours to the maintenance of principle has been a commonplace in the history of English advocates, and the names of the living could be added if need be to those who have passed away, leaving us this clean heritage as example.

The true position of the independence of the English Bar, the right and the duty of the advocate to appear in every case, however poor, degraded, or wicked the party may be, is laid down once and for all in a celebrated speech of Erskine’s in his defence of Thomas Paine, who was indicted in 1792 for publishing the _Rights of Man_. Great public indignation was expressed against Erskine for daring to defend Paine. As he said in his speech, “In every place where business or pleasure collects the public together, day after day, my name and character have been the topics of injurious reflection. And for what? Only for not having shrunk from the discharge of a duty which no personal advantage recommended, and which a thousand difficulties repelled.”

He then continued, in words which the learned editor of Howell’s State Trials emphasises by printing in capital letters, to enunciate one of the basic principles of English advocacy:

“Little, indeed, did they know me, who thought that such calumnies would influence my conduct: I WILL FOR EVER, AT ALL HAZARDS, ASSERT THE DIGNITY, INDEPENDENCE, AND INTEGRITY OF THE ENGLISH BAR; WITHOUT WHICH, IMPARTIAL JUSTICE, THE MOST VALUABLE PART OF THE ENGLISH CONSTITUTION, CAN HAVE NO EXISTENCE. From the moment that any advocate can be permitted to say that he will or will not stand between the Crown and the subject arraigned in the court where he daily sits to practise--from that moment the liberties of England are at an end. If the advocate refuses to defend, from what he may think of the charge or of the defence, he assumes the character of the judge; nay, he assumes it before the hour of judgment; and, in proportion to his rank and reputation, puts the heavy influence of perhaps a mistaken opinion into the scale against the accused, in whose favour the benevolent principle of English law makes all presumptions, and which commands the very judge to be his counsel.”

Side by side with this may be set the grand example of William Henry Seward in acting in the defence of the negro Freeman in 1846. A horrible murder was committed. Without any provocation or desire for plunder, Freeman killed a farmer and several of his family. He was easily captured, when he laughed in the face of his captors and acknowledged the crime. He was a recently emancipated slave, deaf, and obviously insane. The sheriff had the greatest difficulty in preventing him from being lynched. The clergyman at the victims’ funeral made a rousing appeal for his punishment, which was printed and circulated round the district.

Seward undertook his defence, and a storm of prejudice and passion was directed against him to dissuade him from doing what he believed to be his duty as an advocate. In the crowded court-house, when the judge asked, “Will any one defend this man?” and Seward rose, and said he was counsel for the prisoner, a murmur of indignation ran round the court. His advocacy was of no avail to the individual, but his eloquent speech remains a noble statement of the duty of the advocate, and a fine example of devotion and courage in the exercise of that duty.

The whole speech is worthy of study, as it contains a glowing and reasoned appeal for the right of the most degraded human being in a civilised state to a real hearing of his case in a judicial court, which can only be obtained through honest and competent advocacy.

As the yellow harvest-moon rose outside the darkening court-house his peroration was listened to by the indignant crowd with, at least, outward respect, and it remains a message of encouragement to the advocates of future generations.

“In due time, gentlemen of the jury, when I shall have paid the debt of nature, my remains will rest here in your midst with those of my kindred and neighbours. It is very possible they may be unhonoured, neglected, spurned! But perhaps years hence, when the passion and excitement which now agitate this community shall have passed away, some wandering stranger, some lone exile, some Indian, some negro, may erect over them an humble stone, and thereon this epitaph: ‘He was faithful.’”

These words, as he desired, are engraved on the marble over him, and he is remembered at the American Bar as an advocate who upheld its best traditions, and feared not to hold aloft the Lamp of Courage.

III

THE LAMP
OF INDUSTRY

III

THE LAMP OF INDUSTRY

The first task of the advocate is to learn to labour and to wait. There never was a successful advocate who did not owe some of his prowess to industry. From the biographies of our ancestors we may learn that the eminent successful ones of each generation practiced at least enough industry in their day to preach its virtues to aspiring juniors.

Work soon becomes a habit. It may not be altogether a good habit, but it is better to wear out than to rust out. Nothing, we are told, is impossible to industry. Certainly without industry the armoury of the advocate will lack weapons on the day of battle.

There must be years of what Charles Lamb described with graceful alliteration as “the dry drudgery of the desk’s dead wood” before the young advocate can hope to dazzle juries with eloquent perorations, confound dishonest witnesses by skilful cross-examination, and lead the steps of erring judges into the paths of precedent.

All great advocates tell us that they have had either steady habits of industry or grand outbursts of work. Charles Russell had a continuous spate of energy. Many of us can remember him, tireless and active himself, bustling into the robing-room at St. George’s Hall, Liverpool, and finding several members of the Junior Bar standing around the fire.

“Why are you loafing about here?” he asked. “Why don’t you _do_ something?”

“We have nothing to do,” said the Junior Bar.

“Why don’t you go to the races?” he rejoined. “_Do_ something!”

Abraham Lincoln owed his sound knowledge of law to grim, zealous industry. As a storekeeper he studied Blackstone out of shop-hours, perched on a wood-pile or lying under a tree. On circuit, in the bedroom of the village inn, a candle at his head and his feet protruding over the foot-board of his bed, he lay reading law until two in the morning, undisturbed by snoring comrades. When possible, he would read aloud, for thus, he said, “two senses catch the idea. First, I see what I read; second, I hear it, and can therefore remember it better.” In after-life to every student who came near him his advice was, “Work! work! work!”

Advocacy is indeed a life of industry. Each new success brings greater toil. Campbell, writing home from the Oxford Circuit, describes the weary round of his daily task. Some advocates suffer thus every day the court sits, whilst others sit round and suffer envy.

“I ought to have got so far to-night on my way to Hereford, but we have a long day’s work before us, and I shall be obliged to travel all to-morrow night. You can hardly form a notion of the life of labour, anxiety, and privation which I lead upon the circuit. I am up every morning by six. I never get out of court till seven, eight, or nine in the evening, and, having swallowed any indifferent fare that my clerk provides for me at my lodgings, I have consultations and read briefs till I fall asleep. This arises very much from the incompetence of the judge. It is from the incompetency of judges that the chief annoyances I have in life arise. I could myself have disposed of the causes here in half the time the judge employed. He has tried two causes in four days. Poor fellow, he is completely knocked up.”

An advocate must study his brief in the same way that an actor studies his part. Success in advocacy is not arrived at by intuition. Mr. O’Brien, in his excellent biography of Charles Russell, details an interesting conversation with his hero which enforces this truth. He had raised the question of an advocate succeeding by mere intuition in picking up the threads of a case in court, when Russell interrupted him in a characteristic phrase.

“‘That’s all nonsense,’ he said. ‘You don’t know anything by intuition. You have to work hard and to think hard. I get some good help, as I tell you. My mode of work is this: One of these young men reads the brief and makes a note--a full one. I go through the note with him’ (smiling), ‘cross-examining him, if you like. Sometimes, I admit, it may not be necessary for me to read the brief; the note may be so complete, and the man’s knowledge of the case so exact, that I get everything from him. But it often is--in fact, generally is--necessary to go to the brief. You have seen me reading briefs here. I admit that I am quick in getting at the kernel of a case, and that saves me some trouble; but I must read the brief with my own eyes, or somebody else’s.’

“I said, ‘Sir John Karslake went blind because he could only read his brief with his own eyes. It is a great point to be able to read your brief with somebody else’s eyes!’

“_Russell_--‘Well, well, well, that’s so! but it is not intuition.’

“I said, ‘It has been said that O’Connell never read his brief when he appeared for the defendant. He made his case out of the plaintiff’s case.’

“_Russell_--‘I don’t think that is likely; I think O’Connell knew his case--the vital points in his case--before he went into court. There is often a great deal in a brief which is not vital, which is not even pertinent. I can read a brief quickly; I can take in a page at a glance, if you like; I can throw the rubbish over easily, and come right on the marrow of the case. But I can only do that by reading the brief, or by the help of my friends. I learn a great deal at consultations; I am not above taking hints from everybody, and I think carefully over everything that is said to me’ (holding his hand up with open palm); ‘I shut out no view. If I have a good point, it is that I can see quickly the hinge on which the whole case turns, and I never lose sight of it. But that is not intuition, my friend; it is work.’”

Industry in reading and book-learning may make a man a good jurist, but the advocate must exercise his industry in the double art of speaking and arranging his thoughts in ordered speech. He must be ready to leave his books awhile and practise the athletics of eloquence with equal industry.

The silver-tongued Heneage Finch advises students “to study all the morning and talk all the afternoon.” Old Serjeant Maynard, deeply learned in booklore as he was, described the calling of the advocate as _ars bablativa_. Brougham told the law students of London University to habituate themselves to talk about everything.

For “bare reading without practice pedantiseth a student, but never makes him a clever lawyer.” Our fathers understood this better perhaps than we do, and made provision of halls and cloisters and gardens, where students could take exercise and discuss the mysteries of their profession when the hours of reading were over.

Roger North tells us in his life of his brother, the Lord Keeper: “I remember that, after the fire of the Temple, it was considered whether the old cloister walks should be rebuilt or rather improved into chambers; which latter had been for the benefit of the Middle Temple. But in regard it could not be done without the consent of the Inner house, the masters of the Middle house waited upon the then Mr. Attorney Finch, to desire the concurrence of his society upon a proposition of some benefit to be thrown in on that side. But Mr. Attorney would by no means give way to it, and reproved the Middle Templars very wittily and eloquently upon the subject of students walking in evenings there and putting cases, ‘which,’ he said, ‘was done in his time, as mean and low as the buildings were then, however it comes that such a benefit to students is now made so little account of.’ And thereupon the cloisters, by the order and disposition of Sir Christopher Wren, were built as they now stand.”

The days of wandering in cloisters and gardens, putting cases to one’s fellow-students, and listening to the wisdom of elders by the margin of the fountain are, alas! not for us. But even to-day a wise youngster should recognise that sitting in court to listen to the conduct of cases, attendance at circuit mess and dining in Hall, where the law-talk of seniors may still on occasion be of value--these things are all forms of industry, for the advocate can only learn the true creed of his faith from oral tradition.

In recent years we have wisely revived the old moots which date back to early days when the Inns of Court were really schools of law. Dugdale thus describes the ancient ceremony of the moot: “The pleadings are first recited by the students, then the case heard and argued by the barristers; and lastly by the reader elect and benchers, who all three argue in English; but the pleadings are recited, and the case argued by the utter barristers, in law French. The moot being ended, all parties return to the cupboard, where the mootmen present the benchers with a cup of beer and a slice of bread.”

Roger North also remembers that in his day, the time of Charles II., the custom of mooting had been discontinued for upwards of a century; but modern wisdom brings us back to many old customs of our fathers, and to-day all dramatic methods of education are recognised as of greater value than dictatorial lectures.

And not only are these more social forms of industry good in themselves, but they are the only antidote to that despondency and dread of failure which cloud the brightest and most hopeful mind in the long days of apprenticeship. Even the greatest advocates have suffered such moments. Had John Scott yielded to his own sinking inclinations, he might have been a provincial barrister at Newcastle instead of Lord Chancellor; Kenyon nearly became a Welsh parson instead of Chief Justice of England; and Russell tells us that in our own day Gully nearly exiled himself to the Straits Settlements, and Herschell proposed to emigrate to the Indian Bar.

A learned County Court judge, in dealing with the unfortunate bankruptcy of a brother-barrister, expressed the opinion that for a man to come to the Bar without private means, or, at least, expectations from a maiden aunt, was “a rash and hazardous speculation.” His dictum was unsound in law and history. Some of the greatest advocates began life as poor men. And though men of wealth have succeeded in advocacy, yet poverty is a true friend to industry. “Parts and poverty,” said Lord Chancellor Talbot, “are the only things needed by the law student.”

Kenyon, when asked by a fashionable lady how her son might best prepare for success at the Bar, said: “Let him spend all his money, marry a rich wife, spend all hers, and when he has got not a shilling in the world, let him attack the law.” For a lawyer, as an old pleader said, must be prepared in his early days “to eat sawdust without butter,” or, as Lord Eldon put it, “to live like a hermit and work like a horse.”

If a man is endowed with health and industry, the profession of an advocate is not “a rash and hazardous speculation.” He may even without blame give hostages to fortune, remembering that when Erskine made his first appearance at the Bar his agitation nearly overcame him, and he was just about to sit down a failure when, he says, “I thought I felt my little children tugging at my gown, and the idea roused me to an exertion of which I did not think myself capable.” He succeeded, indeed, far beyond his expectations, and he found, when he had overcome that first modest inertia which benumbs even the greatest genius, that he was fully equipped to fight the battles of his clients against all comers. And the reason of it was that he had not failed to read and learn and digest beneath the Lamp of Industry.

IV

THE LAMP
OF WIT

IV

THE LAMP OF WIT

At the back of this little word “wit” lies the idea of knowledge, understanding, sense. In its manifestation we look for a keen perception of some incongruity of the moment. The murky atmosphere of the court is illuminated by a flash of thought, quick, happy, and even amusing. Wit, wisely used, bridges over a difficulty, smooths away annoyance, or perhaps turns aside anger, dissolving embarrassment in a second’s laughter.

Nor can “(laughter in court),” a derogatory parenthesis unknown in the official law reports, be wholly condemned among human men. “How much lies in laughter, the cipher key wherewith we decipher the whole man!” Laughter may be derisive, unkind, even cruel, or it may be rightly used as a just weapon of ridicule wherewith to smite pretension and humbug. It may be gracious and full of kindliness, putting a timid man at his ease, or instinct with good-humour, softening wrath or mitigating tedious irrelevancy. It may be the due recognition of a witty text preaching a useful truth, that could otherwise be expressed only in a treatise; as when Common Law said unto Chancery, “Truth will leak out even in an affidavit;” or when Erskine replied to Kenyon, who suggested that he should apply to Chancery for relief, “Would your lordship send a dog you loved there?”

From the earliest times wit has been a light to lighten the darkness of advocacy. Cicero was noted for the jests and repartees which punctuated his forensic speeches, and these were held “not foreign to the business of the forum.” Yet, like many a man of wit, he stumbled on occasion through the temptation of the gift, and offended some with malevolent sayings, as Bethell and others have done in our own time. It is easy to forget the poet’s warning about “the medium in all things.”

Pedants and bores resent all forms of wit, but a real humorist rejoices in nothing so much as a good story against himself. Rufus Choate was a man of great eloquence and abounding vocabulary, but he had a true sense of wit. No one enjoyed better the remark of Mr. Justice Wilde, a dry, precise judge who, out of court, on occasion allowed his wit expression. He was asked by a junior if he had not heard that Mr. Worcester had just published a new edition of his dictionary with a great number of additional words. Gripping his young friend’s arm, he said in a perturbed whisper, “No, I had not heard of it. But, for God’s sake, don’t tell Choate!”

Choate had his own wit, which charmed many juries to his clients’ cause. No one could more pleasantly disperse the frowning morality of a common jury by a human simile. What could be more pastoral and poetical than his description of his clients in an Arcadian divorce case? “They were playful, gentlemen of the jury, not guilty. After the morning toil they sat down upon the hay-mow for refreshment, not crime. There may have been a little youthful fondling, playful, not amorous. They only wished to _soften the asperities of hay-making_.” One can see the jury broadening into sympathy and smiles over the pleasantry of the final phrase.

Often the wit of an advocate will turn a judge from an unwise course where argument or rhetoric would certainly fail. Lord Mansfield paid little attention to religious holidays. He would sit on Ash-Wednesday, to the scandal of some members of the Bar, whose protests made no impression upon him. At the end of Lent he suggested that the court might sit on Good Friday. The members of the Bar were horrified. Serjeant Davy, who was in the case, bowed in acceptance of the proposition. “If your lordship pleases; but your lordship will be the first judge that has done so since Pontius Pilate.” The court adjourned until Saturday.

But the learned Serjeant “Bull Davy,” as he was called on circuit, could never pass a jest, even at the expense of his client. He was defending a criminal against whom the prosecution had opened a very strong case.

“Who is concerned for the prisoner?”

“My lord,” replied Davy, rising with grave solemnity, “I am concerned for him, and very much concerned, after what I have heard.”

Wit is often the fittest instrument with which to destroy the bubble of bombast. When Curran, in an outburst of histrionic anger, placed his hand upon his heart, saying, “I am the trusty guardian of my own honour,” it was Sir Boyle Roche who spoiled the episode by rising with much friendliness to say, “I congratulate my honourable friend on the snug little sinecure to which he has appointed himself.”

Wit may fairly be used to strip the cloak of pretension from the shoulders of impudence. Holker was cross-examining a big vulgar Jew jeweller in a money-lending case and began by looking him up and down in a sleepy dismal way and drawled out: “Well, Mr. Moselwein, and what are you?”

“A genschelman,” replied the jeweller with emphasis.

“Just so, just so,” ejaculated Holker with a dreary yawn, “but what were you before you were a gentleman?”

Wit, skilfully used, is the kindliest and most effective method of exhibiting the futility of judicial interruptions.

“Where do you draw the line, Mr. Bramwell?” asked a learned judge in the Court of Common Pleas.

“I don’t know, and I don’t care, my lord. It is enough for me that my client is on the right side of it.”

Wit and courtesy need never be divorced. They are, indeed, complementary. Wit, deftly used, refreshes the spirit of the weary judge.

Lord Chief Justice Coleridge, writing from the Northern Circuit, says: “Gully was excellent. His phrase, when he asked for a stay of execution ‘in order to consider more at leisure some of your lordship’s observations,’ tickled my fancy very much. Misdirection was never more courteously described.”

Satire or irony is often in danger of being misunderstood by the simple-minded jury. Ridicule, to be effective, must be pointed, even extravagant.

In combating the defence of Act of God set up by an American advocate defending a client on the charge of arson, Governor Wisher, for the prosecution, disposed of the theory of spontaneous combustion, and succeeded in satisfying the jury of its absurdity: “It is said, gentlemen, that this was Act of God. It may be, gentlemen. I believe in the Almighty’s power to do it, but I never knew of His walking twice round a straw stack to find a dry place to fire it, with double-nailed boots on so exactly fitting the ones worn by the defendant.”

Bowen, on the Western Circuit, was less fortunate. Prosecuting a burglar caught red-handed on the roof of a house, he left the case to the jury in the following terms: “If you consider, gentlemen, that the accused was on the roof of the house for the purpose of enjoying the midnight breeze, and, by pure accident, happened to have about him the necessary tools of a housebreaker, with no dishonest intention of employing them, you will, of course, acquit him.” The simple sons of Wessex nodded complacently at counsel, and, accepting his invitation, acquitted the prisoner.

And as there is danger of satire being misunderstood, there is also a certain danger that an advocate, in an endeavour to shorten a case, may fail to drive home all the points he seeks to make. Modern advocates, however, are more likely to remind the Bench of Quintilian’s maxim, “There is not so much inconvenience in listening to superfluous matter as to be ignorant of such things as are necessary,” than to remember the more pertinent first principle of their own art that “brevity is the soul of wit.”

It has always been a reproach to our advocacy that it injured its clients by calculated circumlocution, an exuberance of verbosity, and a prolixity of style and method ruinous to the widows and the fatherless and the strangers that strayed within the gates of the temple.

Good advocacy displays the highest form of wit in an instinct for brevity. The healthy appetite of judge and advocate alike is shown in a keenness to “get through the rind of the orange and reach the pulp as soon as possible.” This wit and wisdom of Bramwell should be painted on the wall in bold letters of silver opposite every judge on the bench, and in larger letters of gold over every bench in the kingdom in the face of the nation’s advocates.

Judges are, indeed, a long-suffering race, but there are some advocates difficult to suffer gladly. Mr. Justice Wightman showed a Christian forbearance to Mr. Ribton, who, after pounding away for several hours, began repeating himself unto the third or fourth iteration.

“Really, Mr. Ribton, you know, you’ve said that before.”

“Have I, my lord? I am very sorry. I quite forgot it.”

“Don’t apologise,” said the mild old judge, patiently stifling a sigh. “I forgive you; for it was a very long time ago.”

How many advocates weary juries into forgetfulness by long-continued repetition of their cross-examination, often giving a clever witness opportunities of rehabilitating himself, forgetting Josh Billings’s immortal advice: “When you strike ile, stop boring; many a man has bored clean thru and let the ile run out of the bottom.”

But whatever sound maxims may be cited, it is to be feared that there will always be a line of advocacy answering to the definition of length without breadth. Nor will the old story, first told, perhaps, of Chief Baron Kelly, ever want a new and even more long-winded hero. A legal comrade of Kelly on circuit dreamed that they appeared before the tribunal on the Great Day of Judgment. Upon Kelly’s name being called, and his being put up in the dock, the recording angel arose and shouted out in a loud voice, “No other case will be taken to-day!”

Lest I should provoke a similar reproof from a devout reader, let me leave the Lamp of Wit upon the altar of justice and retire from the pulpit.

V

THE LAMP
OF ELOQUENCE

V

THE LAMP OF ELOQUENCE

The eloquence of advocates of the past must largely be taken on trust. There is no evidence of it that is not hearsay. For, though we have the accounts of ear-witnesses of the eloquence of Erskine, Scarlett, Choate, or Lincoln, and can ourselves read their speeches, the effect of their eloquence does not remain. We are told about it by those who experienced it, and can believe or not as we choose. It is the same with actors. It requires genius to describe acting, so that the reader captures some of the experience of the witness. Fielding did it for Garrick when he took Partridge to see _Hamlet_; Charles Lamb can feature the old actors for us on the screen of the written page; but how few real records remain of the eloquence of the advocates of old!

Perhaps the best way to realise their powers is to read their speeches aloud; but even then they seem diffuse and out of proportion to the present interest in the litigation. The most eloquent advocacy that is reported in print is to be found not in law reports, but in fiction--in the speeches of Portia and Serjeant Buzfuz, for instance, where for all time the world continues hanging on the lips of the advocate in excited sympathy with the client.

There are some who think that rhetoric at the Bar has fallen in esteem. The modern world has certainly lost its taste for sweet and honeyed sentences, and sets a truer value on fine phrases and the fopperies of the tongue; but there will always be a high place in the profession for the man who speaks good English with smooth elocution, and whose speeches fall within Pope’s description:

Fit words attended on his weighty sense,
And mild persuasion flow’d in eloquence.

The test of eloquence in advocacy is necessarily its effect upon those to whom it is addressed. The aim of eloquence is persuasion. The one absolute essential is sincerity, or, perhaps one should say, the appearance of sincerity. As Garrick reminded a clerical friend: “We actors portray fiction as if it were truth, and you clergymen preach truth as if it were fiction.” It is no use preaching to a jury, but the eloquence of persuasion will work miracles; and there is a well-authenticated story on every circuit of the criminal who, listening with rapt attention to his counsel’s pathetic details of his wrongs, burst into sobs after his peroration, crying out, “I never knew I was such an ill-used man until now--s’help me, I never did!”

It would appear from the history of advocacy that the flame of the lamp of eloquence may vary from time to time in heat and colour. One cannot say that the style of one advocate is correct and another incorrect, since the style is the attribute of the man and the generation he is trying to persuade. Yet, however different the style may be, the essential power of persuasion must be present. He must, as Hamlet says, be able to play upon his jury, knowing the stops, and sounding them from the lowest note to the top of the compass.

Brougham’s tribute to Erskine’s eloquence is perhaps the best pen-picture of an English advocate we possess, and it is noticeable how he emphasises this power of persuasion and endeavours to solve the psychology of it. He places in the foreground the physical appearance of the man, a great factor in each style of advocacy.