Chapter II: Part 2

“Nor let it be deemed trivial,” he says, “or beneath the historian’s province, to mark that noble figure, every look of whose countenance is expressive, every motion of whose form graceful, an eye that sparkles and pierces, and almost assures victory, while it ‘speaks audience ere the tongue.’ Juries have declared that they felt it impossible to remove their looks from him when he had riveted and, as it were, fascinated them by his first glance; and it used to be a common remark among men who observed his motions that they resembled those of a blood-horse, as light, as limber, as much betokening strength and speed, as free from all gross superfluity or encumbrance. Then hear his voice of surpassing sweetness, clear, flexible, strong, exquisitely fitted to strains of serious earnestness, deficient in compass indeed, and much less fitted to express indignation, or even scorn, than pathos, but wholly free from harshness or monotony. All these, however, and even his chaste, dignified, and appropriate action, were very small parts of this wonderful advocate’s excellence. He had a thorough knowledge of men, of their passions, and their feelings--he knew every avenue to the heart, and could at will make all its chords vibrate to his touch. His fancy, though never playful in public, where he had his whole faculties under the most severe control, was lively and brilliant; when he gave it vent and scope it was eminently sportive, but while representing his client it was wholly subservient to that in which his whole soul was wrapped up, and to which each faculty of body and of mind was subdued--the success of the cause.”

And if one reads the speeches of our greatest advocates and the records of those who heard them, one finds that each had some peculiar condiment of eloquence, so that if one could beg a flavour from each one might hope to produce an olio of super-eloquence.

Bethell, for instance, was a master of deliberation, remembering Bacon’s maxim that “a slow speech confirmeth the memory, addeth a conceit of wisdom to the hearers.” Shorthand-writers listened eagerly to his speeches, fearing to miss a sentence that would ruin their report. Repetitions and unnecessary phrases were banned, and useless words he looked upon as matter in the wrong place. His voice was clear and musical, and he had a telling wit. Students from the first thronged the court to learn his magic, and judges listened to him with respect. When he was a junior it is said that Sir John Leach, the Master of the Rolls, succumbing to his arguments, said, “Mr. B_ee_thell, you understand the matter as you understand everything else.” And that was the real secret of Mr. Bethell’s eloquence.

Serjeant Copley, better known as Lord Lyndhurst, was not a brilliant or showy advocate, but, as a friend said, “had no rubbish in his head.” He won many of his triumphs by dexterous and successful sophistry and his extreme plausibility of manner. Mr. James Grant tells us that “a perpetual smile played on his countenance while he gazed at the faces of the court and the jury; and there was something so winning in the tones of his voice that he must have been a man possessing a remarkably lively perception of the real facts of a case, of a vigorous intellect, and of great energy of character who was not carried away by Mr. Copley’s address.” The mere wording of the description might suggest to an unsympathetic reader that Serjeant Copley was the Fascination Fledgeby of the Bar, but the intention of the writer was probably to portray something of that charm of manner which is often a form of eloquence leading to the highest success in advocacy. Gully, in our own day, possessed it in a high degree. It is easy to fall under the spell of it in court, but it would require the pen of a genius to recall it to life on the printed page.

Eloquence of manner is real eloquence, and is a gift not to be despised. There is a physical as well as a psychological side to advocacy, documentary evidence of which may be found in the old prints and portraits of those who have been called to high office from among us. They are, on the whole, a stout, well-favoured race.

Charm of voice and manner has always received due reward. Thomas Denman had a fine, musical voice, an easy manner, and the sincerity and fervour of his address made him a popular advocate. Scarlett was “the very incarnation of contentedness and good nature.” A spectator notes his “perpetual cheerfulness,” his “laughing and seductive eyes,” his “How-do-you-do style” as he used to stand before the jury, “fold up the sides of his gown on his hands, and then, placing his arms on his breast, smile in their faces from the beginning to the end of his address, talking all the while to them as if he were engaged on a mere matter of friendly conversation.”

Many an advocate has attempted a similar method with but small success, and there must have been, as Mr. Atlay says, “an exquisite dexterity” in his method of address that does not reach us through contemporary descriptions. The effect of it was undoubted. A North-Country juryman was once asked, after a long assize at Lancaster, “What do you think of the counsellors on the Northern Circuit?”

“Why,” he replied, “there’s not a man in England can touch that Mr. Brougham.”

“But you gave all the verdicts to Mr. Scarlett?”

“Why, of course; he gets all the easy cases.”

It is eloquence that persuades the jury that your case is the easy case. As Cobbett said--and Cobbett had a common jury mind--“He is an orator that can make me think as he thinks, and feel as he feels.”

Mr. Montagu Williams has pointed out that the best English eloquence of his time was founded on what he calls a solid style of advocacy. “As leading examples,” he writes, “of what I may call the solid style, I should name Serjeant Shee, Serjeant Parry, and Lord Justice Holker. When I say ‘solid,’ I do not refer to heaviness of manner, but to solidity of appearance, robustness of speech, and a general air of good English honesty. This style is very taking with the juries of this country. It was the heavy, nay, almost languid, way in which Lord Justice Holker opened his cases, taken in conjunction with his sudden awakenings and bursts of eloquence when important points were reached, that rendered his style of advocacy so telling.”

Nearly every great advocate has found it necessary to make use of the eloquence of persuasion. Charles Russell is the one exception. He did not seek to persuade, he directed the court and jury. Whether or not he was, as Lord Coleridge said, “the biggest advocate of the century,” he was undoubtedly a very great advocate. Clearness, force, and earnestness were the basic qualities of his eloquence. It was said of him that “ordinarily the judge dominates the jury, the counsel, the public,--he is the central figure of the piece. But when Russell is there the judge isn’t in it. Russell dominates every one.”

But no man can dominate a jury in a doubtful case, and though Russell was supreme in a good case, he had not that power possessed in a high degree by another great advocate--still, happily, among us--Sir Edward Clarke, who could not only insinuate doubts into the hearts of the jury, but could leave his arguments so clearly in men’s minds that he became, as it were, the thirteenth man on the jury when they retired to consider their verdict. This requires real eloquence.

The moral of the lives of the advocates seems to be that in the house of eloquence there are many mansions, and any style natural to the man who uses it is his right style, and may succeed. One besetting sin of many would-be eloquent speakers is fatal, and that is bombast. The young advocate who opened a libel case, “My client, gentlemen, is a cheesemonger; and the reputation of a cheesemonger is like the bloom upon a peach. Touch it, and it is gone for ever,” must have been immune from eloquence. Yet there are solicitors and clients who still like that kind of thing, and advocates who supply it.

Nearer to eloquence was the advocate who, in defence of a woman for child murder, said in passionate tones: “Gentlemen, it is impossible that the prisoner can have committed this crime. A mother guilty of such conduct to her own child! Why, it is repugnant to our better feelings! Gentlemen, the beasts of the field, the birds of the air, suckle their young----”

The simile might perhaps have passed with the jury had not a dry, unsympathetic voice from the bench interrupted with: “Mr. X, if you establish the latter part of your proposition, your client will be acquitted to a certainty.”

And though eloquence at its highest is a gift, the art of speaking can be learned and personal difficulties overcome. Demosthenes, with his pebbles in his mouth or running up a hill spouting an oration, has been an example to us from the schoolroom. Cicero took lessons from Roscius and Æsop. Lord Guildford, Lord Campbell, Lord Brougham, and others have impressed on students the importance of attending and practising at moots and debating societies. The mechanics of eloquence can be as certainly learned by the student as the mechanics of etching or engraving, but how far these will make an artist of him and help to bring real eloquence to the learner lies in himself.

There is no golden rule of method, but there is this golden principle to remember that the message of eloquence is addressed to the heart rather than the brain. This is well put by Lord Chesterfield, who was more human than many will allow, when he wrote to his son: “Gain the heart, or you gain nothing; the eyes and the ears are the only road to the heart. Merit and knowledge will not gain hearts, though they will secure them when gained. Pray have that truth ever in your mind. Engage the eyes by your address, air, and motions; soothe the ears by the elegancy and harmony of your diction; the heart will certainly follow; and the whole man and woman will as certainly follow the heart.”

Thus is the grammar of the matter set down by a skilled grammarian, yet it is but a bundle of dry sticks and kindles no flame. The high privilege of lighting the torch at the lamp of eloquence is a gift of the gods, for orators are born, and not made.

VI

THE LAMP
OF JUDGMENT

VI

THE LAMP OF JUDGMENT

Judgment inspires a man to translate good sense into right action. I would not quarrel with the philosopher who describes judgment as an instinct, but I would bid him remember that even an instinct is acquired by “cunning” rather than luck. Let no one think that he can attain to sound judgment without hard work. The judgment of the advocate must be based on the maxim, “He that judges without informing himself to the utmost that he is capable cannot acquit himself of judging amiss.”

A client is entitled to the independent judgment of the advocate. Whether his judgment is right or wrong, it is the duty of the advocate to place it at the disposal of his client. In the business of advocacy judgment is the goods that the advocate is bound to deliver. Yet he is under constant temptation to please his client by giving him an inferior article. The duty of the advocate to give only his best is wisely insisted upon by Serjeant Ballantine, who relates a personal experience that all advocates must be ready to face.

“The solicitor instructing me,” he writes, “was vehement in expressing belief in his client’s innocence. I was of a different opinion. He, acting upon his belief, desired that certain witnesses should be called. I, governed by my convictions, absolutely refused to do so, offering at the same time to return my brief. This, however, was refused, and I was left to exercise my own responsibility. The above question frequently arises, and some counsel have considered themselves bound to obey the wishes of the solicitor. There is no doubt that this is the safest course for the advocate, for, if he does otherwise and the result is adverse, he is likely to be much blamed, and the solicitor also is exposed to disagreeable comments; but I hold, and have always acted upon the opinion, that the client retains counsel’s judgment, which he has no right to yield to the wishes or opinions of any one else. He is bound, if required, to return his brief, but if he acts against his own convictions he sacrifices, I think, his duty as an advocate.”

An advocate of judgment has the power of gathering up the scattered threads of facts and weaving them into a pattern surrounding and emphasising the central point of the case. In every case there is one commanding theory, to the proof of which all the facts must be skilfully marshalled. An advocate with one point has infinitely greater chances than an advocate with twenty points.

Rufus Choate was an advocate of great judgment, and not only was he enthusiastic and diligent in searching for the central theory, or “hub of his case,” as he called it, but having made up his mind what it was, he rightly put it forward without delay, believing that it was the “first strike” that conquered the jury. Parker, his biographer, tells us that “he often said to me that the first moments were the great moments for the advocate. Then, said he, the attention is all on the alert, the ears are quicker, the mind receptive. People think they ought to go on gently, till, somewhere about the middle of their talk, they will put forth all their power. But this is a sad mistake. At the beginning the jury are all eager to know what you are going to say, what the strength of your case is. They don’t go into details and follow you critically all along: they try to get hold of your leading notion, and lump it all up. At the outset, then, you want to strike into their minds what they want--a good, solid, general view of _your_ case; and let them think over that for a good while. ‘If,’ said he emphatically, ‘you haven’t got hold of them, got their convictions at least open, in your first half-hour or hour, you will never get at them at all.’”

Abraham Lincoln had a genius for seeing the real point of his case and putting it straight to the Court. A contemporary who was asked in later life what was Lincoln’s trick with the jury replied, “He saw the kernel of every case at the outset, never lost sight of it, and never let it escape the jury. That was the only trick I ever saw him play.”

Sir Henry Hawkins held the same view. He used to say, “Concentration is the art of argument. If you are diffuse, you will be cut up in detail.” And he was fond of quoting the teachings of Denman on this subject: “Remember also to put forward your best points first, for the weak ones are very likely to prejudice the good ones if they take the lead. It would be better advice to say never bring them forward at all, because they are useless.”

Johnny Williams, who appeared with Brougham and Denman for Queen Caroline, was a man of great sagacity, but much given to strong expletives. He was once induced by an attorney, against his own better judgment, to ask a question, the answer to which convicted his client on a capital charge. The circuit considered he was well justified, when the trial was over, in turning to the attorney and saying with great emphasis (formal expletives omitted), “Go home, cut your throat, and _when_ you meet your client in hell, beg his pardon.”

But an apology was also due from Williams for surrendering his judgment to that of his attorney.

In nothing does the advocate more openly exhibit want of judgment than in prolixity. Modern courts of justice are blamed by the public, not wholly without cause, for the length and consequent expense of trials. To poor people this may mean a denial of justice. No one desires that the judge should constantly interfere with counsel in the discharge of their duties, but it seems to be his duty on occasion to blow his whistle and point out to the combatants that they are offside.

If every one connected with the trial of an action were to train and use his judgment and co-operate with the judgments of his fellow-workers in a policy of anti-waste, a great reproach would be lifted from our courts of justice.

Prolixity is no new disease. Many wise judges have sought to eradicate it. In the time of Charles II. things seem to have been in a specially bad way, and Lord Guildford, though he probably went to dangerous extremes, was well thought of by the public for his endeavour to speed up the legal machine.

“In his lordship’s conduct of trials he was very careful of three matters: 1. To adjust what was properly the question, and to hold the counsel to that; for he that has the worst end of the staff, is very apt to fling off from the point and go out of the right way of the cause. 2. To keep the counsel in order; for in trials they have their parts and their times. His lordship used frequently to inculcate to counsel the decorum of evidencing practice. 3. To keep down repetition, to which the counsel, one after another, are very propense; and, in speeching to the jury one and the same matter over and over again, the waste of time would be so great that, if the judge gave way to it, there would scarce be an end; for most of the talk was not so much for the causes as for their own sakes, to get credit in the country for notable talkers. And his lordship often told them that their confused harangues disturbed the order of his thoughts; and, after the trial was over, it was very hard for him to resume his method and direct the jury to comprise all the material parts of the evidence. Therefore he was positive not to permit more than one counsel of a side to speech it to the jury, by way of summing up the evidence; and he permitted that in such a way as made them weary of it. For, in divers sorts of trials, he wholly retrenched it; and where he observed much stiffness and zeal of the parties in a cause, then, after the evidence was over, he would say, ‘Come, make your speeches;’ and then sat him down: and that looked with a sort of contempt of their talents, which gave them a distrust, and discomposed their extempore so much that, for the most part, they said, ‘No, we will leave it to your lordship.’ And thus the abuse, by fastidious talk, wore away; and the practice before him was so well known, as it became at length a pure management of evidence and argument of law.”

The judgment of an advocate may be called upon at any moment for a sudden decision that may mean the victory or defeat of his client. For this reason it is necessary that he should be always alert. The contents of his brief must be already in his mind, and his attention must be fixed on what is happening in court, which has rarely been foreseen in the best-prepared brief ever delivered to counsel.

It was Russell who turned round to his junior and said, “What are you doing?”

“Taking a note,” was the answer.

At which Russell burst out in his uncompromising way: “What the devil do you mean by saying you are taking a note? Why don’t you watch the case?”

“Watch the case!” It is a golden rule.

It was the same when he was playing cards. He would get impatient with a partner shuffling and handling his cards in a state of indecision. “Why are you looking at your cards?” he asked. “Why don’t you watch the game? The game is on the table.”

In the same way an advocate who is always fumbling with his brief when he is examining a witness cannot follow the game that is on the table before him.

Sound judgment is essential to the examination of witnesses. How few advocates know how to examine a witness-in-chief! Birrell tells us that Sir Frank Lockwood had very clear views on the subject. “He believed that the examination of a witness-in-chief, or the direct examination of witnesses, as it was called in Ireland, was very much underrated in its significance and its importance. If they had to examine a witness, what they had got to do was to induce him to tell his story in the most dramatic fashion, without exaggeration; they had got to get him, not to make a mere parrot-like repetition of the proof, but to tell his own story as though he were telling it for the first time--not as though it were words learnt by heart; but if it were a plaintive story, plaintively telling it. And they had got to assist him in the difficult work. They had got to attract him to the performance of his duty, but woe be to them if they suggested to him the terms in which it was to be put! They must avoid any suspicion of leading the witness, while all the time they were doing it. They knew perfectly well the story he was going to tell; but they destroyed absolutely the effect if every minute they were looking down at the paper on which his proof was written. It should appear to be a kind of spontaneous conversation between the counsel on the one hand and the witnesses on the other, the witness telling artlessly his simple tale, and the counsel almost appalled to hear of the iniquity under which his client had suffered.

“It was in this way, and in this way alone, that they could effectively examine a witness.”

There is probably more waste of time and irrelevance in the examination of witnesses-in-chief than in any other procedure of counsel. This is the modern drama of it.

COUNSEL (_his eyes glued to his brief_): “Your name is Mary Ann Snooks.”

WITNESS (_annoyed_): “Martha Ann.”

COUNSEL: “Oh, yes, Martha Ann Snooks; and you are the wife of Thomas Snooks, the bookmaker.”

WITNESS (_very indignant_): “Nothing of the sort.”

COUNSEL: “I beg your pardon--my mistake--bootmaker.”

WITNESS: “And has been this thirty year----”

COUNSEL: “And you live at 139 Doncaster Street, Upper Tulse Hill.”

WITNESS: “We did live there; we’ve moved now, sir.”

COUNSEL: “What is your present address?”

etc., etc., _ad lib._

Consider for a moment, if you will, the horrid waste of all this irrelevance standing between the Court and Mrs. Snooks’s version of what she saw of an accident in High Street, Kensington, and reducing her to a state of nervous irritation antipathetic to accurate testimony.

How much more business-like was the method of the eighteenth century! In a State trial in the days of Queen Anne the name of the lady is announced in the oath, and then counsel approaches her, as Sir Frank Lockwood might have done: “Pray, madam, will you be pleased to acquaint my lord and the jury what you know concerning the matter, and what passed between your brother Mr. Colepepper and Mr. Denew at his first coming to him?”

Much public time could be saved by more economical methods of examination-in-chief, and greater efficiency would be ensured.

Cross-examination, too, is almost entirely a matter of judgment. Two golden rules handed down from the eighteenth century, and maybe from beyond, are still unlearned lessons to each succeeding generation of advocates:

1. Never ask a question without having a good reason to assign for asking it.

2. Never hazard a critical question without having good ground to believe that the answer will be in your favour.

Serjeant Ballantine has some just observations on the art of cross-examination and the use and abuse of it.

“The records of justice,” he says, “from all time show that truth cannot, in a great number of cases tried, be reasonably expected. Even when witnesses are honest, and have no intention to deceive, there is a natural tendency to exaggerate the facts favourable to the cause for which they are appearing, and to ignore the opposite circumstances; and the only means known to English law by which testimony can be sifted is cross-examination. By this agent, if skilfully used, falsehood ought to be exposed, and exaggerated statements reduced to their true dimensions. An unskilful use of it, on the contrary, has a tendency to uphold rather than destroy. If the principles upon which cross-examination ought to be founded are not understood and acted upon, it is worse than useless, and it becomes an instrument against its employer. The reckless asking of a number of questions on the chance of getting at something is too often a plan adopted by unskilful advocates, and noise is mistaken for energy. Mr. Baron Alderson once remarked to a counsel of this type, ‘Mr. ----, you seem to think that the art of cross-examination is to examine crossly.’”

How few advocates have the capacity to let well alone! They must repeat and emphasise, and emphasise and repeat. In a case tried before Sir Henry Hawkins, a junior, not content with his own witness’s answer, continues:

JUNIOR (_emphatically_): “And you are quite sure of this?”

WITNESS: “Yes.”

JUNIOR: “Quite?”

WITNESS: “Quite!”

JUNIOR: “You have no doubt about it?”

WITNESS: “Well, I haven’t much doubt, because I asked my wife.”

SIR HENRY (_pouncing on his prey_): “You asked your wife in order to be sure in your own mind?”

WITNESS: “Quite so, my lord.”

SIR HENRY: “Then you had some doubt before?”

WITNESS: “Well, I may have had, my lord.”

It is part of the advocate’s rôle to make the jury believe in his infallibility, and every question he asks that gives the witness an opportunity to score off him and belittle him in their eyes is an error of judgment. Serjeant Buzfuz, who conducted his case with fine judgment, was guilty of a grave error in his examination of Sam Weller. Brow-beating is always a dangerous policy; it antagonises the jury and leads to reprisals. There is an old story of the counsel in an assault case who asked the witness at what distance from the parties he was at the time of the assault. Not content with the reply of “A few feet,” but pressing for greater accuracy, he was answered by the witness: “Just four feet five and a half inches.”

“How do you come to be so very exact, fellow?” asked counsel sternly.

“Because I expected some fool or other would ask me, so I measured it.”

A good story, too, is told against Lord Coleridge in Mr. O’Brien’s _Life of Lord Russell_. He appeared in a libel action for a young lady who had been expelled from a college. His case was that the breaches of discipline were trivial, and he pressed Mrs. Kennedy, the mistress of novices, asking what his young client had done. Mrs. Kennedy said, as an example, that she had eaten strawberries.

“Eaten strawberries!” exclaimed Coleridge. “What harm was there in that?”

“It was forbidden, sir,” replied Mrs. Kennedy simply.

Coleridge should have accepted her answer, but he retorted with a contemptuous question, not foreseeing the reprisal, “But, Mrs. Kennedy, what trouble was likely to come from eating strawberries?”

“Well, sir,” replied Mrs. Kennedy, “you might ask what trouble was likely to come from eating an apple, yet we know what trouble did come from it.”

Coleridge’s cross-examination dissolved in laughter, in which, of course, he joined good-naturedly.

The art of re-examination, which is a task often as futile as the endeavour to set Humpty Dumpty on the wall again, can be learned only by the experience of watching the game on the table and playing any few remaining cards in your hand with rapid judgment.

A wise student will take Lord Halsbury’s advice and go to the Old Bailey to study cross-examination; and, if Lockwood’s view still holds good, he might attend the Chancery Courts to learn how not to re-examine. Birrell tells us that “once, in the Court of Chancery, a witness was asked, in cross-examination by an eminent Chancery leader, whether it was true that he had been convicted of perjury. The witness owned the soft impeachment, and the cross-examining counsel very promptly sat down. Then it became the duty of an equally eminent Chancery Q.C. to re-examine. ‘Yes,’ said he, ‘it is true you have been convicted of perjury. But tell me, have you not on many other occasions been accused of perjury, and been acquitted?’”

Most re-examination intending to rehabilitate the character of a witness is apt to make matters worse.

These stories of actual happenings, trivial in themselves, teach us the necessity of judgment in advocacy. And I pray the young advocate not to rejoice too merrily over the errors of judgment of his seniors or lament too grievously about his own. Bear in mind that by acknowledged error we may learn wisdom, and that the only illuminant for the lamp of judgment is the oil of experience.

VII

THE LAMP
OF FELLOWSHIP

VII

THE LAMP OF FELLOWSHIP

An advocate lacking in fellowship, careless of the sacred traditions of brotherhood which have kept the lamp of fellowship burning brightly for the English Bar through many centuries, a man who joins the Bar merely as a trade or business, and does not understand that it is also a professional community with public ideals, misses the heart of the thing, and he and his clients will suffer accordingly.

Fitzjames Stephen wisely said of the English Bar that it is “exactly like a great public school, the boys of which have grown older, and have exchanged boyish for manly objects. There is just the same rough familiarity, the general ardour of character, the same kind of unwritten code of morals and manners, the same kind of public opinion expressed in exactly the same blunt, unmistakable manner.”

The very title of Inns of Court is redolent of hospitality, fellowship, and even conviviality. How many glorious things have their beginnings at an inn! How pleasant it would be to investigate with the antiquarians the earliest origins of our Inns of Court! But to come to comparatively modern days, Sir John Fortescue, who was Chief Justice of the King’s Bench in the time of Henry VI., gives us a pleasant picture of their traditions of fellowship. These Inns of Court, or hostels, he says, anciently received the sons of noble men and the better sort of gentlemen, “who did there not only study the laws to serve the courts of justice and profit their country, but did further learn to dance, to sing, to play on instruments on the ferial days and to study divinity on the festival, using such exercises as they did who were brought up in the King’s Court.” There were Inns of Chancery, too, where the younger students learned the first elements of law before they were taken into the greater hostels, which were called Inns of Court. The expenses of the student were no less than twenty marks a year in Fortescue’s day, and if he was attended by his servant, as most were, that was an added charge, so that only the sons of gentlemen could afford so expensive an education.

At this time a young fellow would come from the university, or perhaps straight from the grammar-school, and would learn the first elements of law in one of the ten minor Inns of Chancery, and would then apply for admission to one of the four houses or Inns of Court: Inner or Middle Temple, Gray’s Inn or Lincoln’s Inn. There they continued for the space of seven years, attending readings, moots--where cases were put and discussed--and “boltings,” as the practice arguments were called, “whereby,” as Fortescue tells us, “growing ripe in the knowledge of the laws, and approved withal to be of honest conversation, they are either by the general consent of the benchers or readers (being of the most ancient, grave, and judicial men of every Inn of Court), or by the special privilege of the present reader there, selected and called to the degree of utter (outer) barristers, and so enabled to be common counsellers and to practise the law both in their chambers and at the bars.”

The whole social scheme of education and control in the exercise of professional rights and advancement was most carefully thought out. An utter barrister of not less than ten or twelve years’ standing and “of good profit in study” was chosen as reader to educate the students. At about fifteen years’ standing he became a bencher, after which he might be appointed a serjeant, and go away to Serjeants’ Inn, that important society “where none but serjeants and judges do converse,” and from which alone could judges be chosen.

It was for this reason that the judges always addressed a serjeant as “Brother.” I can well remember as a boy feeling a certain glow of satisfaction at hearing the judges in the Tichborne trial calling my father “Brother Parry,” and it seems a pity that this fraternal greeting, this courteous link of fellowship between Bench and Bar, necessarily disappeared with the abolition of Serjeants’ Inn. Yet, though the talisman is no longer spoken, the spirit of brotherhood will always be with us.

In the old days education in the law was undertaken very seriously, but in a fraternal spirit. The reader would propound a case, the utter barristers would declare their opinion, the reader would confute the objections laid against him, and the students would eagerly note the learned points of the seniors. These readings took four or five hours daily, and were held in the halls. The moots and the boltings took place after supper, and at other times among the students under the leadership of a barrister.

But the whole term was not taken up with the dry study of the law. There were feastings, grand nights, and, greatest of all, the Christmas Saturnalia, at one of which, after a costly dinner, a pack of hounds was brought into the hall, a fox and a cat were let loose, and a mad hunt took place. Isaac D’Israeli gives an excellent account of these wild doings, taken from a rare tract supposed to have been written in 1594. “Supper ended,” he writes, “the constable-marshal presented himself, with drums playing, mounted on a stage borne by four men, and carried round; at length he cries out, ‘A lord, a lord,’ &c., and then calls his mock court every one by name.

“‘Sir Francis Flatterer, of Fowls-hurt.

“‘Sir Randall Rackabite, of Rascal-hall, in the county of Rake-hell.

“‘Sir Morgan Mumchance, of Much Monkery, in the county of Mad Mopery.

“‘Sir Bartholomew Bald-breech, of Buttock-bury, in the county of Break-neck.’

“They had also their mock arraignments. The king’s-serjeant, after dinner or supper, ‘oratour-like,’ complained that the constable-marshal had suffered great disorders to prevail; the complaint was answered by the common-serjeant, who was to show his talent at defending the cause. The king’s-serjeant replies; they rejoin, &c.: till one at length is committed to the Tower, for being found most deficient. If any offender contrived to escape from the lieutenant of the Tower into the buttery, and brought into the hall a manchet (or small loaf) upon the point of a knife, he was pardoned; for the buttery in this jovial season was considered as a sanctuary. Then began the _revels_. Blount derives this term from the French _reveiller_, to awake from sleep. These were sports of dancing, masking comedies, &c. (for some were called solemn revels), used in great houses, and were so denominated because they were performed by night; and these various pastimes were regulated by a master of the revels.

“Amidst ‘the grand Christmass’ a personage of no small importance was ‘the Lord of Misrule.’ His lordship was abroad early in the morning, and if he lacked any of his officers, he entered their chambers to drag forth the loiterers; but after breakfast his lordship’s power ended, and it was in suspense till night, when his personal presence was paramount, or, as Dugdale expresses it, ‘and then his power is most potent.’

“Such were then the pastimes of the whole learned bench; and when once it happened that the under-barristers did not dance on Candlemas Day, according to the ancient order of the society, when the judges were present, the whole bar was offended, and at Lincoln’s Inn were by decimation put out of commons, for example-sake; and should the same omission be repeated, they were to be fined or disbarred; for these dancings were thought necessary, ‘as much conducing to the making of gentlemen more fit for their books at other times.’”

The details of the alliteration with which Sir Francis Flatterer and others are called into court have always interested me deeply, as on the Northern Circuit, when the crier at Grand Court calls in the absent ones, he has to do it in curious and measured phrases of alliterative abuse. When Fitzjames Stephen was made crier on account of his stentorian voice, his delicate mind revolted against the coarseness of his duties, and he sought to have the Circuit Court and its ancient, outspoken manners abolished, but fortunately he did not succeed.

For though some of this ancientry is better honoured in the breach than the observance, yet even the buffoonery, as Stephen called it, of Grand Court has its value as a link with the past.

It is an excellent thing for the profession that in the same way as the lessons of advocacy in the past were learned by the young students from their elders, who sat at meat with them and shared their lives in intimate and homely fashion, so to-day we enter a common Inn, dine at a common table, join a common mess upon circuit, all of which is evidence of the continuance of that right spirit of fellowship which, to my mind, is an essential of advocacy.

The fellowship of the Temple springs from its long traditions of brotherhood among the Templars. To turn out of the Strand into its quiet courts brings over your brooding spirit something of that sacred melancholy pleasure which one feels on entering the old school or dining once again in the college hall. But you are no longer actor, art and part, in the school and college life. Here in the Temple, though others are judges and benchers and fashionable leaders, you can still wander in shabby honesty in the gardens, pull down some of the old volumes in the library, and dine below the salt with your fellow-ancients.

Thackeray has a true insight into the pleasures of memory that the Temple possesses for those who have lived there, and pictures, as he alone can, its historic charm.

“Nevertheless,” he writes, “those venerable Inns which have the Lamb and Flag and the Winged Horse for their ensigns have attractions for persons who inhabit them, and a share of rough comforts and freedom which men always remember with pleasure. I don’t know whether the student of law permits himself the refreshment of enthusiasm, or indulges in poetical reminiscences as he passes by historical chambers and says, ‘Yonder Eldon lived--upon this site Coke mused upon Lyttelton--here Chitty toiled--here Barnwell and Alderson joined in their famous labours--here Byles composed his great work upon bills, and Smith compiled his immortal leading cases--here Gustavus still toils, with Solomon to aid him:’ but the man of letters can’t but love the place which has been inhabited by so many of his brethren, or peopled by their creations, as real to us at this day as the authors whose children they were--and Sir Roger de Coverley, walking in the Temple Garden and discoursing with Mr. Spectator about the beauties in hoops and patches who are sauntering over the grass, is just as lovely a figure to me as old Samuel Johnson rolling through the fog with the Scotch gentleman at his heels on their way to Dr. Goldsmith’s chambers in Brick Court; or Harry Fielding, with inked ruffles and a wet towel round his head, dashing off articles at midnight for the _Covent Garden Journal_ while the printer’s boy is asleep in the passage.”

The Temple is full of ghosts--honest ghosts with whom it is a privilege to claim fellowship.

There are some who speak of the Bar sneeringly as a Trade Union--which it certainly is, and to my thinking one of the oldest and best unions. And if advocacy could be honestly described as a trade, then the phrase trade union might be accepted without demurrer. For the basic quality of a trade union, that which has made these institutions thrive against opposition, is the spirit of fellowship and unselfishness which is the ideal of its members.

We have seen how of old the senior members of the Bar trained up the juniors in the mystery of their craft, and throughout the practice of the profession it has always been a point of honour for the elders to assist the beginners in those difficult days of apprenticeship.

What could be more delightful and encouraging to a youngster than to be received by his genial, handsome leader in the presence of an admiring attorney after the fashion that Montagu Williams tells us of his first meeting with Serjeant Shee? “I shall never forget,” he writes, “my consultation with dear old Serjeant Shee. I knew very little about pleadings, and matters of that kind, and so the work naturally made me feel somewhat nervous. On going upstairs to the consulting-room to see Serjeant Shee, whom I already knew slightly, I had my briefs stuck under my arm, somewhat ostentatiously, I am afraid. The old serjeant patted me on the shoulder and said, ‘Lots of briefs flowing in, my boy; delighted to see it.’

“When we had taken our seats, and the consultation had begun, he said, turning to the solicitor who instructed us, ‘Winning case--pleadings all wrong. That young dog over there smelt it out long ago, as a terrier would a rat, I can see--eh, Montagu Williams? You’ve found it out; I can see it by your face.’

“Heaven knows I was as innocent of finding anything out as the man in the moon. I sniggered feebly; and then the serjeant proceeded to put into my mouth the vital blots in the case of our adversary, which he alone had discovered.

“That was the way leaders treated their juniors then. I must leave my successors at the Bar to decide whether or not things are the same now.”

With equal kindness that great man and honest advocate, Abraham Lincoln, stretched out the hand of welcome and encouragement to the younger men who came along.

James Haines tells us the story of his first brief, The People _v._ Gideon Hawley. “There were,” he says, “thirty-two indictments against my client for obstructing a public road, and as the authorities were inclined to make an example, the case was somewhat serious. I retained Mr. L. to conduct the defence, and after we had completed our preparations he said, ‘Of course, you will make the opening speech.’ I was surprised, for I had supposed that he would want to assume full control, and I said as much, adding that I would prefer him to take the lead. ‘No,’ he answered, and then, laying a hand on my shoulder, he continued: ‘I want you to open the case, and when you are doing it, talk to the jury as though your client’s fate depends on every word you utter. Forget that you have any one to fall back upon, and you will do justice to yourself and your client.’ I have never forgotten the kind, gentle, and tactful manner in which he spoke those words,” Mr. Haines continued, “and that is a fair sample of the way he treated the younger members of the Bar.”

No man ever attains a position at the Bar in which he can afford to despise the opinion of his fellow-men. The eulogies of public journals, even the praise and patronage of attorneys, are of no worth compared with the respect of the Bar. As a French advocate wrote: “A solid reputation proceeds only from the Court.”

Charles Russell, who stood on a somewhat lonely eminence at the head of his profession, and dealt with the affairs of his fellows in a very rough-handed and independent manner, was at heart very jealous of the good opinion of the Bar.

He had, during the course of a trial, cross-examined a lady with great severity, and afterwards received an anonymous letter of a very abusive character, in which he was charged with having been guilty of conduct in his cross-examination “which no gentleman should pursue towards any woman.” He thereupon sat down and wrote a letter to the counsel on the other side, in which he said, “I should be sorry to think this was true, but I am not the best judge of my own conduct,” and asked for his learned friend’s opinion on the charge.

The interesting point of the correspondence is that Russell felt that it might possibly be true. It reminds one of the celebrated line in a lively mid-Victorian comedy, where the servant-girl said, “Really, ma’am, I’m that flustered that I don’t know whether I am standing on my head or my heels.” To which Mrs. John Wood used to reply with stern emphasis, “No decent woman ought to have the slightest doubt on a subject of that kind.”

Russell’s learned friend cleverly evaded responsibility by telling him that the character of a gentleman was one “we all know you eminently possess,” with which certificate of character the great man was soothed and satisfied.

With the decay of circuits and the passing of old customs and the silence of ancient convivialities, some of the spirit of fellowship may be lost. But we must remember that even the good old days were not without evidence of professional malice and uncharitableness. As far back as the reign of François I. it was a rule of the French Bar that “advocates must not use contentious words or exclamations the one toward the other; or talk several at the same time, or interrupt each other.” These words might still be engraved in letters of gold on the walls of our own law-courts, for on occasion the lamp of fellowship burns so low that such things occur. Still, at the English Bar we may claim that we set a good example to other bodies of learned men by our real attachment to the precepts and practice of fellowship, and may, without hypocrisy, commend the rest of mankind to follow in our footsteps,

And do as adversaries do in law,
Strive mightily, but eat and drink as friends.

For it is by keeping the lamp of fellowship burning that we encourage each other to walk in the light of the seven lamps of advocacy.

INDEX

Alderson, Baron, 86

Atlay, J. B., 67

Bacon, Francis, 65

Ballantine, Serjeant, 76, 85

Benjamin, J. P., 26

Berryer, M., 18

Bethell, Richard, 23, 65, 66

Billings, Josh, 56

Birrell, A., 82, 89

Blackstone, Sir W., 13

Boswell, James, 16, 17, 18

Bowen, Lord Justice, 54

Bramwell, Lord, 53

Brougham, Lord, 18, 42, 63, 68, 71, 78

Campbell, Lord Chief Justice, 39, 71

Capitularies of Charlemagne, 14

Chesterfield, Lord, 71

Choate, Rufus, 50, 51, 61, 77

Cicero, 50

Clarke, Sir Edward, 69

Cobbett, William, 68

Cockburn, Lord Chief Justice, 18

Coleridge, Lord Chief Justice, 53, 69, 88, 89

Copley, Serjeant (Lord Lyndhurst), 66

Curran, J. P., 52

D’Aguesseau, 14

Davy, Serjeant, 52

Denman, Lord, 67, 78

D’Israeli, Isaac, 97

Dugdale, Sir William, 44

Eldon, Lord. _See_ Scott, John

Erskine, Lord, 11, 30, 31, 50, 61, 63

Faculty of Advocates, 13

Fielding, Henry, 61, 102

Finch, Heneage, 42, 43

Fortescue, Sir John, 94

François I, 106

Garrick, 11, 61, 62

Grant, James, 66

Guildford, Lord. _See_ North, Francis.

Gully, W. C. (Lord Selby), 45, 53, 66

Haines, James, 104, 105

Hale, Lord Chief Justice, 25

Halsbury, Lord, 89

Hatton, Charles, 23

Hawkins, Sir Henry, 11, 78, 87

Herschell, Lord, 45

Holker, Sir John, 53, 68

Hollams, Sir John, 26

Horn, Andrew, 14

Irving, Sir Henry, 11

James, Lord Justice, 26

Jeffreys, Baron, 23

Johnson, Doctor, 16, 17, 18, 102

Jones, Tom, 28

Karslake, Sir John, 40

Kay, Lord Justice, 27

Kean, 11

Kelly, Chief Baron, 57

Kennedy, Mrs., 88, 89

Kenyon, Lord Chief Justice, 45, 50

Lamb, Charles, 37, 61

Leach, Sir John, 65

Lincoln, Abraham, 19, 38, 61, 78, 104

Lockwood, Sir Frank, 82, 85

Mansfield, Lord Chief Justice, 51

Maynard, Serjeant, 42

_Mirrour of Justices_, 14

North, Francis, 24, 42, 80

North, Roger, 24, 25, 26, 42, 44

O’Brien, R. B., 40, 88

O’Connell, Daniel, 41

Paine, Thomas, 30

Palmer, Sir Roundell (Lord Selborne), 27

Parry, Serjeant, 68, 96

Quintilian, 55

Ribton, 56

Robinson, Serjeant, 28

Roche, Sir Boyle, 52

Russell, Charles (Lord Russell of Killowen), 38, 40, 41, 45, 69, 82,
105, 106

Scarlett, James (Lord Abinger), 61, 67, 68

Scott, John (Lord Eldon), 44, 46

Seward, William Henry, 32

Shee, Serjeant, 68, 103

Stephen, FitzJames, Mr. Justice, 93, 99

Talbot, Charles, Lord Chancellor, 45

Thackeray, W. M., 101

Westbury, Lord. _See_ Bethell

Wightman, Mr. Justice, 56

Wilde, Mr. Justice, 50

Williams, Johnny, 78, 79

Williams, Joshua, 19

Williams, Montagu, 68, 103

Wood, Mrs. John, 106

Wren, Sir Christopher, 43

Wyclif, John, 13

_Printed in Great Britain by Hazell, Watson & Viney, Ld.,
London and Aylesbury._

TRANSCRIBER’S NOTES:

Italicized text is surrounded by underscores: _italics_.

Obvious typographical errors have been corrected.