Law and Laughter
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Title: Law and Laughter
Author: George A. Morton
D. Macleod Malloch
Release date: September 16, 2009 [eBook #30003]
Most recently updated: October 24, 2024
Language: English
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*** START OF THE PROJECT GUTENBERG EBOOK LAW AND LAUGHTER ***
LAW AND LAUGHTER
BY GEORGE A. MORTON
AND D. MACLEOD MALLOCH
ILLUSTRATED WITH PORTRAITS OF
EMINENT MEMBERS OF BENCH & BAR
T. N. FOULIS
LONDON & EDINBURGH
1913
_Published October 1913_
Printed by BALLANTYNE, HANSON & CO.
at the Ballantyne Press, Edinburgh
TO
THE MEMORY OF
D. MACLEOD MALLOCH
"As crafty lawyers to acquire applause
Try various arts to get a double cause,
So does an author, rummaging his brain,
By various methods, try to entertain."
PASQUIN.
PREFACE
The scope of this volume is indicated by its title--a presentation of
the lighter side of law, as it is exhibited from time to time in the
witty remarks, repartees, and _bon mots_ of the Bench and Bar of Great
Britain, Ireland, and America. The idea of presenting such a collection
of legal _facetiæ_ originated with the late Mr. D. Macleod Malloch, and
it is greatly to be regretted that by his untimely death, his share of
the work had reached the stage of selecting only about one-half of the
material included in the book. His knowledge of law, and his wide
reading in legal biography, was such as would have increased
considerably the value of this volume.
In addition to sources which are acknowledged in the text, I have to
mention contributions drawn from the following works: W. D. Adams'
_Modern Anecdotes_; W. Andrews' _The Lawyer in History, Literature and
Humour_; Croake James's _Curiosities of Law_; F. R. O'Flanagan's _The
Irish Bar_; and A. Engelbach's comprehensive and entertaining _Anecdotes
of the Bench and Bar_. I am further indebted to Sir James Balfour Paul,
Lyon King of Arms, for permission to include "The Circuiteer's Lament,"
from the privately printed volume _Ballads of the Bench and Bar_, and to
the editor of the _Edinburgh Evening Dispatch_ for a number of the more
recent anecdotes in the Scottish chapters of the book.
GEO. A. MORTON.
LIST OF CONTENTS
I. THE JUDGES OF ENGLAND PAGE 3
II. THE BARRISTERS OF ENGLAND 67
III. THE JUDGES OF IRELAND 107
IV. THE BARRISTERS OF IRELAND 127
V. THE JUDGES OF SCOTLAND 153
VI. THE ADVOCATES OF SCOTLAND 199
VII. THE AMERICAN BENCH AND BAR 223
LIST OF PORTRAITS
LORD THURLOW _Frontispiece_
_From a painting by Thomas Phillips, R.A.
By permission of the Trustees of the National Portrait
Gallery._
EARL OF ROSSLYN _Page_ 8
EARL OF MANSFIELD 16
EARL OF ELDON 20
_By permission of the Trustees of the Scottish National
Portrait Gallery._
LORD KENYON 24
LORD ERSKINE 32
LORD WESTBURY 36
LORD BROUGHAM 40
LORD CAMPBELL 44
_By permission of the Trustees of the National Portrait
Gallery, and Mr. Emery Walker._
LORD CHELMSFORD 48
SIR ALEXANDER COCKBURN 52
_By permission of Harry A. Cockburn, Esq._
LORD BRAMPTON (SIR HENRY HAWKINS) 56
THE HON. MR. JUSTICE DARLING 60
_From a photograph by C. Vandyk._
SIR SAMUEL MARTIN 64
THE HON. MR. JUSTICE GRANTHAM 72
_From a photograph by Elliott & Fry, Ltd._
JOHN ADOLPHUS 76
SAMUEL WARREN, Q.C. 80
LORD ROMILLY 88
SERJEANT TALFOURD 96
VISCOUNT CARLETON 112
_By permission of the Trustees of the Scottish National
Portrait Gallery._
JOHN P. CURRAN 128
_By permission of the Trustees of the Scottish National
Portrait Gallery._
DANIEL O'CONNELL 144
_By permission of the Trustees of the Scottish National
Portrait Gallery._
LORD NEWTON 156
LORD ESKGROVE 160
LORD KAMES 164
LORD ELDIN 168
LORD COCKBURN 176
LORD BRAXFIELD 184
_By permission of the Trustees of the Scottish National
Portrait Gallery._
LORD YOUNG 192
_From a photograph by T. & R. Annan & Sons._
THE HON. HENRY ERSKINE 200
_By permission of the Trustees of the Scottish National
Portrait Gallery._
ANDREW CROSBIE 208
_By permission of the Faculty of Advocates._
THEOPHILUS PARSONS 224
RUFUS CHOATE 232
CHAPTER ONE
THE JUDGES OF ENGLAND
"The man resolv'd and steady to his trust,
Inflexible to ill, and obstinately just,
May the rude rabble's insolence despise,
Their senseless clamours, and tumultuous cries;
The tyrant's fierceness he beguiles,
And the stern brow, and the harsh voice defies,
And with superior greatness smiles."
HORACE: _Odes_.
"The charge is prepared, the lawyers are set;
The judges are ranged, a terrible show."
_Beggar's Opera._
LAW AND LAUGHTER
BY GEORGE A. MORTON
AND D. MACLEOD MALLOCH
CHAPTER ONE
THE JUDGES OF ENGLAND
Mr. Justice Darling, whose witty remarks from the Bench are so much
appreciated by his audiences in Court, and, it is rumoured, are not
always received with approval by his brother judges, says, in his
amusing book _Scintillæ Juris_:
"It is a common error to suppose that our law has no sense of humour,
because for the most part the judges who expound it have none."
But law is, after all, a serious business--at any rate for the
litigants--and it would appear also for the attorneys, for while
witticisms of the Bench and Bar abound, very few are recorded of the
attorney and his client. "Law is law" wrote the satirist who decided not
to adopt it as a profession. "Law is like a country dance; people are
led up and down in it till they are tired. Law is like a book of
surgery--there are a great many terrible cases in it. It is also like
physic--they who take least of it are best off. Law is like a homely
gentlewoman--very well to follow. Law is like a scolding wife--very bad
when it follows us. Law is like a new fashion--people are bewitched to
get into it. It is also like bad weather--most people are glad when they
get out of it."
From very early times there have appeared on the Bench expounders of the
law who by the phrase "for the most part" must be acquitted of Mr.
Justice Darling's charge of having no sense of humour; judges who, like
himself, have lightened the otherwise dreary routine of duty by
pleasantries which in no way interfered with the course of justice. One
of the earliest of our witty judges, whose brilliant sayings have come
down to us, was Henry VIII's Lord Chancellor, Sir Thomas More, who lost
his head because he would not acknowledge his king as head of the
Church. To Sir Thomas Manners, Earl of Rutland, who had made a somewhat
insolent remark, the Lord Chancellor quietly replied, 'Honores mutant
mores'--Honours change manners. Sir Thomas's humour was what may be
called _quiet_, because its effect did not immediately show itself in
boisterous merriment, but would undoubtedly remain long in the
remembrance of those to whom it was addressed. Made with as much
courtesy as irony, is it likely his keeper in the Tower would ever
forget his remark? "Assure yourself I do not dislike my cheer; but
whenever I do, then spare not to thrust me out of your doors." Nor did
his quaint humour desert him at the scaffold: "Master Lieutenant," said
he, "I pray you see me safe up; for my coming down let me shift for
myself." Even with his head on the block he could not resist a humorous
remark, when putting aside his beard he said to the executioner, "Wait,
my good friend, till I have removed my beard, for it has never offended
his highness."
Another judge of the sixteenth century, Sir Nicholas Bacon, who
resembled Sir Thomas More in the gentleness of his happiest speeches,
could also on occasion exhibit an unnecessary coarseness in his jocular
retorts. A circuit story is told of him in which a convicted felon named
Hog appealed for remission of his sentence on the ground that he was
related to his lordship. "Nay, my friend," replied the judge, "you and I
cannot be kindred except you be hanged, for hog is not bacon until it be
well hung." This retort was not quite so coarse as that attributed to
the Scottish judge, Lord Kames, two centuries later, who on sentencing
to death a man with whom he had often played chess and very frequently
been beaten, added after the solemn words of doom, "And noo, Matthew,
ye'll admit that's checkmate for you."
To Lord Chancellor Hatton, also an Elizabethan judge who aimed at
sprightliness on the Bench, a clever _mot_ is attributed. The case
before him was one concerning the limits of certain land. The counsel
having remarked with emphasis, 'We lie on this side, my lord,' and the
opposing counsel with equal vehemence having interposed, 'And we lie on
this side, my lord'--the Lord Chancellor dryly observed, "If you lie on
both sides, whom am I to believe?" It would seem that punning was as
great a power in the Law Courts of that time as it is at the present
day. When Egerton as Master of the Rolls was asked to commit a
cause--refer it to a Master in Chancery--he would reply, "What has the
cause done that it should be committed?"
Many witticisms of Westminster Hall, attributed to barristers of the
Georgian and Victorian periods, are traceable to a much earlier date.
There is the story of Serjeant Wilkins, whose excuse for drinking a pot
of stout at mid-day was, that he wanted to fuddle his brain down to the
intellectual standard of a British jury. Two hundred and fifty years
earlier, Sir John Millicent, a Cambridgeshire judge, on being asked how
he got on with his brother judges replied, "Why, i' faithe, I have no
way but to drink myself down to the capacity of the Bench." And this
merry thought has also been attributed to one eminent barrister who
became Lord Chancellor, and to more than one Scottish advocate who
ultimately attained to a seat on the Bench.
And to various celebrities of the later Georgian period has been
attributed Lord Shaftesbury's reply to Charles II. When the king
exclaimed, "Shaftesbury, you are the most profligate man in my
dominions," the Chancellor answered somewhat recklessly, "Of a subject,
sir, I believe I am."
Bullying witnesses is an old practice of the Bar, but for instances of
it emanating from the Bench one has to go very far back. A witness with
a long beard was giving evidence that was displeasing to Jeffreys, when
judge, who said: "If your conscience is as large as your beard, you'll
swear anything." The old man retorted: "My lord, if your lordship
measures consciences by beards, your lordship has none at all."
A somewhat similar story of Jeffreys' bullying manner, when at the Bar,
is that of his cross-examining a witness in a leathern doublet, who had
made out a complete case against his client. Jeffreys shouted: "You
fellow in the leathern doublet, pray what have you for swearing?" The
man looked steadily at him, and "Truly, sir," said he, "if you have no
more for lying than I have for swearing, you might wear a leathern
doublet as well as I."
Instances of disrespect to the Bench are rarely met with in early as
happily in later days. There is, perhaps, the most flagrant example of
young Wedderburn in the Scottish Court of Session, when with dramatic
effect he threw off his gown and declared he would never enter the Court
again; but he rose to be Lord Chancellor of England. Scarcely less
disrespectful (but not said openly to the Bench) was young Edward Hyde
when hinting that the death of judges was of small moment compared with
his chances of preferment. "Our best news," he wrote to a friend, "is
that we have good wine abundantly come over; our worst that the plague
is in town, _and no judges die_."
[Illustration: ALEXANDER WEDDERBURN, EARL OF ROSSLYN, LORD CHANCELLOR.]
In squabbles between the Bench and the Bar there are few stories that
match for personality the retort of a counsel to Lord Fortescue. His
lordship was disfigured by a purple nose of abnormal growth.
Interrupting counsel one day with the observation: "Brother, brother,
you are handling the case in a very lame manner," the angry counsel
calmly retorted, "Pardon me, my lord; have patience with me and I will
do my best to make the case as plain as--as--the nose on your lordship's
face." Nor did the retort of an Attorney-General to a judge, after a
warm discussion on a point which the latter claimed to decide, show much
respect for the Bench. The judge closed the argument with "I ruled so
and so."--"_You_ ruled," muttered the Attorney-General. "_You_ ruled!
You were never fit to rule anything but a copy-book."
Verse has been used as a medium of much amusing legal wit and humour,
although law and law cases do not offer very easy subjects for turning
into rhyme. But a good illustration is afforded by Mr. Justice Powis,
who had a habit of repeating the phrase, "Look, do you see," and "I
humbly conceive." At York Assize Court on one occasion he said to Mr.
Yorke, afterwards Lord Hardwicke, "Mr. Yorke, I understand you are going
to publish a poetical version of 'Coke upon Lyttelton.' Will you
favour me with a specimen?"--"Certainly, my lord," replied the
barrister, who thereupon gravely recited:
"He that holdeth his lands in fee
Need neither shake nor shiver,
I humbly conceive, for, look, do you see,
They are his and his heirs for ever."
In Sir James Burrows' reports is given a poetical version of Chief
Justice Pratt's decision with regard to a woman of English birth who was
the widow of a foreigner.
"A woman having a settlement,
Married a man with none,
The question was, he being dead,
If what she had was gone.
Quoth Sir John Pratt, 'The settlement
Suspended doth remain
Living the husband; but him dead
It doth revive again.'"
Chorus of Puisne Judges:
"Living the husband; but him dead
It doth revive again."
The Chief Justice's decision having been reversed by his successor,
Chief Justice Ryder's decision was reported:
"A woman having a settlement
Married a man with none;
He flies and leaves her destitute,
What then is to be done?
Quoth Ryder the Chief Justice,
'In spite of Sir John Pratt,
You'll send her to the parish
In which she was a brat.'
_Suspension of a settlement_
Is not to be maintained.
That which she had by birth subsists
Until another's gained."
Chorus of Puisne Judges:
"That which she had by birth subsists
Until another's gained."
* * * * *
[Illustration: EDWARD THURLOW, BARON THURLOW. LORD CHANCELLOR.]
Many of the well-known witticisms attributed to great judges are so
tinged with personality--even tending to malignity--that no one
possessing respect for human nature can read them without being tempted
to regard them as mere biographical fabrications. But such a
construction cannot be put upon the stories told of Lord Chancellor
Thurlow, whose overbearing insolence to the Bar is well known. To a few
friends like John Scott, Lord Eldon, and Lloyd Kenyon, Lord Kenyon, he
could be consistently indulgent; but to those who provoked him by an
independent and fearless manner he was little short of a persecutor.
Once when Scott was about to follow his leader, who had made an
unusually able speech, the Chancellor addressed him: "Mr. Scott, I am
glad to find you are engaged in the cause, for I now stand some chance
of knowing something about the matter." This same leader of the Bar on
one occasion, in the excitement of professional altercation, made use of
an undignified expression before Lord Thurlow; but before his lordship
could take notice of it the counsel immediately apologised, saying, "My
lord, I beg your lordship's pardon. I really forgot for the moment where
I was." A silent recognition of the apology would have made the counsel
feel his position more keenly, but the Chancellor could not let such an
opportunity pass and immediately flashed out: "You thought you were in
your own Court, I presume," alluding to a Welsh judgeship held by the
offending counsel.
As a contrast to Lord Thurlow's treatment of Scott's leader, the
following story--given in Scott's own words--shows how the great
Chancellor could unbend himself in the company of men who were in his
favour. "After dinner, one day when nobody was present but Lord Kenyon
and myself, Lord Thurlow said, 'Taffy, I decided a cause this morning,
and I saw from Scott's face that he doubted whether I was right.'
Thurlow then stated his view of the case, and Kenyon instantly said,
'Your decision was quite right.' 'What say you to that?' asked the
Chancellor. I said, 'I did not presume to form a case on which they were
both agreed. But I think a fact has not been mentioned, which may be
material.' I was about to state the fact, and my reasons. Kenyon,
however, broke in upon me, and with some warmth stated that I was always
so obstinate there was no dealing with me. 'Nay,' interposed Thurlow,
'that's not fair. You, Taffy, are obstinate, and give no reasons. You,
Jack, are obstinate too; but then you give your reasons, and d--d bad
ones they are!'"
Another anecdote again illustrates the Chancellor's treatment of even
those who were on a friendly footing with him. Sir Thomas Davenport, a
great Nisi Prius leader, had long flattered himself with the hope of
succeeding to some valuable appointment in the law; but several good
things passing by, he lost his patience and temper along with them. At
last he addressed this laconic application to his patron: "The Chief
Justiceship of Chester is vacant; am I to have it?" and received the
following laconic answer: "No! by G--d! Kenyon shall have it."
Scarcely less courteous was this Lord Chancellor's treatment of a
solicitor who endeavoured to prove to him a certain person's death. To
all his statements the Chancellor replied, "Sir, that is no proof," till
at last the solicitor losing patience exclaimed: "Really, my lord, it is
very hard and it is not right that you should not believe me. I knew the
man well: I saw the man dead in his coffin. My lord, the man was my
client." "Good G--d, sir! why didn't you tell me that sooner? I should
not have doubted the fact one moment; for I think nothing can be so
likely to kill a man as to have you for his attorney."
As Keeper of the Great Seal Thurlow had the alternate presentation to a
living with the Bishop of ----. The Bishop's secretary called upon the
Lord Chancellor and said, "My Lord Bishop of ---- sends his compliments
to your lordship, and believes that the next turn to present to ----
belongs to his lordship."--"Give his lordship my compliments," replied
the Chancellor, "and tell him that I will see him d--d first before he
shall present."--"This, my lord," retorted the secretary, "is a very
unpleasant message to deliver to a bishop." To which the Chancellor
replied, "You are right, it is so; therefore tell the Bishop that _I
will be_ d--d first before he shall present."
Lord Campbell in his life of Thurlow says that in his youth the
Chancellor was credited with wild excesses. There was a story, believed
at the time, of some early amour with the daughter of a Dean of
Canterbury, to which the Duchess of Kingston alluded when on her trial
at the House of Lords. Looking Thurlow, then Attorney-General, full in
the face she said, "That learned gentleman dwelt much on my faults, but
I too, if I chose, could tell a Canterbury tale."
But with all his bitterness and sarcasm Lord Thurlow had a genuine
sense of humour, as the following story of his Cambridge days
illustrates--days when he was credited with more disorderly pranks and
impudent escapades than attention to study. "Sir," observed a tutor, "I
never come to the window but I see you idling in the Court."--"Sir,"
replied the future Lord Chancellor, "I never come into the Court but I
see you idling at the window."
* * * * *
[Illustration: WILLIAM MURRAY, EARL OF MANSFIELD, LORD CHIEF JUSTICE.]
Mansfield was not credited with lively sensibility, but his humanity was
shocked at the thought of killing a man for a trifling theft. Trying a
prisoner at the Old Baily on the charge of stealing in a dwelling-house
to the value of 40_s._--when this was a capital offence--he advised the
jury to find a gold trinket, the subject of the indictment, to be of
less value. The prosecutor exclaimed with indignation, "Under 40_s._, my
lord! Why, the _fashion_ alone cost me more than double the sum."--"God
forbid, gentlemen, we should hang a man for fashion's sake," observed
Lord Mansfield to the jury.
An indictment was tried before him at the Assizes, preferred by parish
officers for keeping an hospital for lying-in women, whereby the parish
was burdened by illegitimate children. He expressed doubts whether this
was an indictable offence, and after hearing arguments in support of it
he thus gave his judgment. "We sit here under a Commission requiring us
to _deliver_ this gaol, and the statute has been cited to make it
unlawful to _deliver_ a woman who is with child. Let the indictment be
quashed."
Having met at supper the famous Dr. Brocklesby, he entered into familiar
conversation with him, and there was an interchange of stories just a
little trenching on the decorous. It so happened that the doctor had to
appear next morning before Lord Mansfield in the witness-box; and on the
strength of the previous evening's doings the witness, on taking up his
position, nodded to the Chief Justice with offensive familiarity as to a
boon companion. His lordship taking no notice of his salutation, but
writing down his evidence, when he came to summing it up to the jury
thus proceeded: "The next witness is one Rocklesby or Brocklesby,
Brocklesby or Rocklesby--I am not sure which--and first he swears he is
a physician."
Lord Chief Baron Parker, in his eighty-seventh year, having observed to
Lord Mansfield who was seventy-eight: "Your lordship and myself are now
at sevens and eights," the younger Chief Justice replied: "Would you
have us to be all our lives at sixes and sevens? But let us talk of
young ladies and not old age."
Trying an action which arose from the collision of two ships at sea, a
sailor who gave an account of the accident said, "At the time I was
standing abaft the binnacle."--"Where is abaft the binnacle?" asked
Lord Mansfield; upon which the witness, who had taken a large share of
grog before coming into Court, exclaimed loud enough to be heard by all
present: "A pretty fellow to be a judge, who don't know where abaft the
binnacle is!" Lord Mansfield, instead of threatening to commit him for
contempt, said: "Well, my friend, fit me for my office by telling me
where _abaft the binnacle is_; you have already shown me the meaning of
_half-seas over_."
On one occasion Lord Mansfield covered his retreat from an untenable
position with a sparkling pleasantry. An old witness named ELM having
given his evidence with remarkable clearness, although he was more than
eighty years of age, Lord Mansfield examined him as to his habitual mode
of living, and found he had been through life an early riser and a
singularly temperate man. "Ay," remarked the Chief Justice, in a tone of
approval, "I have always found that without temperance and early habits
longevity is never attained." The next witness, the elder brother of
this model of temperance, was then called, and he almost surpassed his
brother as an intelligent and clear-headed utterer of evidence. "I
suppose," observed Lord Mansfield, "that you are an early riser?"--"No,
my lord," answered the veteran stoutly; "I like my bed at all hours, and
special-_lie_ I like it of a morning."--"Ah, but like your brother, you
are a very temperate man?" quickly asked the judge, looking out
anxiously for the safety of the more important part of his theory. "My
lord," responded this ancient Elm, disdaining to plead guilty to a
charge of habitual sobriety, "I am a very old man, and my memory is as
clear as a bell, but I can't remember the night when I've gone to bed
without being more or less drunk."--"Ah, my lord," Mr. Dunning
exclaimed, "this old man's case supports a theory unheld by many
persons--that habitual intemperance is favourable to longevity."--"No,
no," replied the Chief Justice with a smile; "this old man and his
brother merely teach us what every carpenter knows--that Elm, whether it
be wet or dry, is a very tough wood."
* * * * *
[Illustration: JOHN SCOTT, EARL OF ELDON, LORD CHANCELLOR.]
Lord Eldon's good humour gained him the affection of all counsel who
practised before him, but there is one story--apocryphal it may be,
coming from Lord Campbell--of a prejudice he had against Lord Brougham,
who, in Scottish cases, frequently appeared before him in the House of
Lords. Lord Eldon persisted in addressing the advocate as Mr. Bruffam.
This was too much for Brougham, who was rather proud of the form and
antiquity of his name, and who at last, in exasperation, sent a note to
the Chancellor, intimating that his name was pronounced "Broom." At the
conclusion of the argument the Chancellor stated, "Every authority upon
the question has been brought before us: new Brooms sweep clean."
As Lord Chancellor, Lord Eldon's great foible was an apparent inability
to arrive at an early decision on any question: it was really a desire
to weigh carefully all sides of a question before expressing his
opinion. This hesitancy was expressed in the formula "I doubt," which
became the subject of frequent jests among the members of the Bar.
Sir George Rose, in absence of the regular reporter of Lord Eldon's
decisions, was requested to take a note of any decision which should be
given. As a full record of all that was material, which had occurred
during the day, Sir George made the following entry in the reporter's
notebook:
"Mr. Leach made a speech,
Angry, neat, but wrong;
Mr. Hart, on the other part,
Was heavy, dull, and long;
Mr. Parker made the case darker,
Which was dark enough without;
Mr. Cooke cited his book;
And the Chancellor said--I doubt."
This _jeu d'esprit_, flying about Westminster Hall, reached the
Chancellor, who was very much amused with it, notwithstanding the
allusion to his doubting propensity. Soon after, Sir George Rose having
to argue before him a very untenable proposition, he gave his opinion
very gravely, and with infinite grace and felicity thus concluded: "For
these reasons the judgment must be against your clients; and here, Sir
George, the Chancellor does not _doubt_."
The following was Lord Eldon's answer to an application for a piece of
preferment from his old friend Dr. Fisher, of the Charter House:
"DEAR FISHER,--I cannot, to-day, give you the preferment for which you
ask.--I remain, your sincere friend, ELDON." Then, on the other side, "I
gave it to you yesterday."
According to his biographer, Lord Eldon caused a loud laugh while the
old Duke of Norfolk was fast asleep in the House of Lords, and amusing
their lordships with "that tuneful nightingale, his nose," by announcing
from the woolsack, with solemn emphasis, that the Commons had sent up a
bill for "enclosing and dividing Great Snoring in the county of
Norfolk!"
Like Lord Thurlow, Lord Eldon was in close intimacy with George III in
the days when his Majesty's mind was supposed to be not very strong. "I
took down to Kew," relates his lordship, "some Bills for his assent, and
I placed on a paper the titles and the effect of them. The king, being
perhaps suspicious that my coming down might be to judge of his
competence for public business, as I was reading over the titles of the
different Acts of Parliament he interrupted me and said: 'You are not
acting correctly, you should do one of two things; either bring me down
the Acts for my perusal, or say, as Thurlow once said to me on a like
occasion, having read several he stopped and said, "It is all d--d
nonsense trying to make you understand them, and you had better consent
to them at once."'"
* * * * *
It is not often, but it sometimes happens that a judge finds himself in
conflict with members of the public who are under no restraint of
professional privilege or etiquette. Some maintain the dignity of the
Court by fining and committing for contempt. Occasionally this may be
necessary, but it has been found that delicate ridicule is often more
effective. An attorney, pleading his cause before Lord Ellenborough,
became exasperated because the untenable points he continually raised
were invariably overruled, and exclaimed, "My lord, my lord, although
your lordship is so great a man now, I remember the time when I could
have got your opinion for five shillings." With an amused smile his
lordship quietly observed, "Sir, I say it was not worth the money."
The same judge used to be greatly annoyed during the season of colds
with the noise of coughing in Court. On one occasion, when disturbances
of this kind recurred with more than usual frequency, he was seen
fidgeting about in his seat, and availing himself of a slight
cessation observed in his usual emphatic manner: "Some slight
interruption one _might_ tolerate, but there seems to be an _industry_
of coughing."
As an illustration of figurative oratory a good story is told of a
barrister pleading before Lord Ellenborough: "My lord, I appear before
you in the character of an advocate for the City of London; my lord, the
City of London herself appears before you as a suppliant for justice. My
lord, it is written in the book of nature."--"What book?" said Lord
Ellenborough. "The book of nature."--"Name the page," said his lordship,
holding his pen uplifted, as if to note the page down.
Moore relates the story of a noble lord in the course of one of his
speeches saying, "I ask myself so and so," and repeating the words "I
ask myself." "Yes," quietly remarked Lord Ellenborough, "and a d--d
foolish answer you'll get."
* * * * *
The comparison of a father and son who have both ascended the Bench has
afforded a good story of a famous Scottish advocate which is told later,
and the following is an equally cutting retort from the Bench to any
assumed superiority through such a connection. A son of Lord Chief
Justice Willes (who rose to the rank of a Puisne Judge) was checked one
day for wandering from the subject. "I wish that you would remember,"
he exclaimed, "that I am the son of a Chief Justice." To which Justice
Gould replied with great simplicity, "Oh, we remember your father, but
he was a sensible man."
* * * * *
When hanging was the sentence, on conviction, for crimes--in these days
termed offences--which are now punished by imprisonment, some judges
from meting out the sentence of death almost indiscriminately came to be
known as "hanging judges." Justice Page was one of them. When he was
decrepit he perpetrated a joke against himself. Coming out of the Court
one day and shuffling along the street a friend stopped him to inquire
after his health. "My dear sir," the judge replied, "you see I keep just
hanging on--hanging on."
A Chief Justice of the "hanging" period, whose integrity was not above
suspicion, was sitting in Court one day at his ease and lolling on his
elbow, when a convict from the dock hurled a stone at him which
fortunately passed over his head. "You see," said the learned man as he
smilingly received the congratulations of those present--"you see now,
if I had been an _upright judge_ I had been slain."
* * * * *
[Illustration: LLOYD KENYON, BARON KENYON, LORD CHIEF JUSTICE.]
Some of the stories respecting Lord Kenyon's historical allusions and
quotations are surely greatly exaggerated, or are pure inventions. In
addressing a jury in a blasphemy case, he is reported to have said that
the Emperor Julian "was so celebrated for the practice of every
Christian virtue that he was called 'Julian the Apostle'"; and to have
concluded an elaborate address in dismissing a grand jury with the
following valediction: "Having thus discharged your consciences,
gentlemen, you may return to your homes in peace, with the delightful
consciousness of having performed your duties well, and may lay your
heads on your pillows, saying to yourselves 'Aut Cæsar, aut nullus.'"
And this was his remark on detecting the trick of an attorney to delay a
trial: "This is the last hair in the tail of procrastination, and it
must be plucked out."
Among other failings attributed to this Lord Chief Justice was the
extreme penuriousness he practised in his domestic arrangements and his
dress. His shoes were patched to such an extent that little of their
original material could be seen, and once when trying a case he was
sitting on the bench in a way to expose them to all in Court. It was an
action for breach of contract to deliver shoes soundly made, and to
clinch a witness for the pursuer he suddenly asked, "Were the shoes
anything like these?" pointing to his own. "No, my lord," replied the
witness, "they were a good deal better and more genteeler."
As an example of his (Lord Kenyon's) style of addressing a condemned
prisoner we have the following. A butler had been charged and convicted
of stealing his master's wine.
"Prisoner at the bar, you stand convicted on the most conclusive
evidence of a crime of inexpressible atrocity--a crime that defiles the
sacred springs of domestic confidence, and is calculated to strike alarm
into the breast of every Englishman who invests largely in the choicer
vintages of Southern Europe. Like the serpent of old, you have stung the
hand of your protector. Fortunate in having a generous employer, you
might without discovery have continued to supply your wretched wife and
children with the comforts of sufficient prosperity, and even with some
of the luxuries of affluence; but, dead to every claim of natural
affection, and blind to your own real interest, you burst through all
the restraints of religion and morality, and have for many years been
_feathering_ your nest with your master's _bottles_."
Lord Kenyon was warmly attached to George III, who had a high opinion of
him; but like many of his lordship's contemporaries, his Majesty
strongly deprecated the frequent outbursts of temper on the part of his
Chief Justice. "At a levee, soon after an extraordinary explosion of
ill-humour in the Court of King's Bench, his Majesty said to him: 'My
Lord Chief Justice, I hear that you have lost your temper, and from my
great regard for you, I am very glad to hear it, for I hope you will
find a better one.'"
* * * * *
Of Lord Chief Justice Tenterden, Lord Campbell asserts that he once, and
only once, uttered a pun. A learned gentleman, who had lectured on the
law and was too much addicted to oratory came to argue a special
demurrer before him. "My client's opponent," said the figurative
advocate, "worked like a mole under ground, _clam et secretè_." His
figures only elicited a grunt from the Chief Justice. "It is asserted in
Aristotle's _Rhetoric_--."--"I don't want to hear what is asserted in
Aristotle's _Rhetoric_," interposed Lord Tenterden. The advocate shifted
his ground and took up, as he thought, a safe position. "It is laid down
in the _Pandects_ of Justinian--." "Where are you got now?" "It is a
principle of the civil law--." "Oh sir," exclaimed the judge, with a
tone and voice which abundantly justified his assertion, "we have
nothing to do with the _civil_ law in this Court."
* * * * *
Judges sometimes stray into humour without intending it. At an election
petition trial one allegation was, that a number of rosettes, or "marks
of distinction," had been kept in a table drawer in the central
committee-room. To meet this charge it was thought desirable to call
witnesses to swear that the only table in the room consisted of planks
laid on trestles. "So that the table had no proper legs," said counsel
cheerfully. "Never mind whether it had proper legs," said one of the
learned judges. "The more important question is: Had it drawers?"
And in _The Story of Crime_ the author recalls an instance of a judge
unconsciously furnishing material for laughter in Court. "At the
beginning of the session at the Old Baily a good deal of work is got
through by the judge who takes the small cases, and it may be this fact
that accounted for the confusion of thought which he describes. One of
the prisoners was charged with stealing a camera, and after all the
evidence had been taken his lordship proceeded to sum up to the jury. He
began by correctly describing the stolen article as a camera, but had
not gone very far before the camera had become a concertina, and by the
time he had finished the concertina had become an accordion. And he
never once saw his mistake. The usher noticed it at the first trip, and
kept repeating in a kind of hoarse stage-whisper, 'Camera! Camera!' but
his voice did not reach the Bench, and so the complicated article
remained on record."
Mr. Andrews in his book, _The Lawyer in History, Literature, and
Humour_, relates that a leader of the Bar on rising to address the
drowsy jury after a ponderous oration by Sir Samuel Prime, said:
"Gentlemen, after the long speech of the learned serjeant--" "Sir, I
beg your pardon," interrupted Mr. Justice Nares, "you might say--you
might say--after the long soliloquy, for my brother Prime has been
talking an hour to himself."
* * * * *
[Illustration: THOMAS ERSKINE, BARON ERSKINE, LORD CHANCELLOR.]
Thomas, Lord Erskine was the youngest of three brothers, who were all
distinguished men. The eldest was the well-known Earl of Buchan, one of
the founders of the Society of Antiquaries of Scotland, whose
eccentricities formed the subject of much gossip in the Scottish
capital. To an English nobleman he declared: "My brothers Harry and Tom
are certainly remarkable men, but they owe everything to me." Seeing a
look of surprise upon his friend's face he added: "Yes, it is true; they
owe everything to me. On my father's death they pressed me for an annual
allowance. I knew this would have been their ruin, by relaxing their
industry. So making a sacrifice of my inclinations to gratify them I
refused to give them a farthing, and they have thriven ever
since--_owing everything to me_."
Henry, the second brother, was universally beloved and respected, and one
of the most popular advocates at the Scottish Bar. He was twice
Lord-Advocate for Scotland--on the second occasion under the Ministry of
"All the Talents," when his younger brother was Lord Chancellor. He was
famous in the Parliament House and outside of it for his witticisms, a
selection of which will be given later.
Thomas, who became Lord Chancellor, obtained an unique influence while
practising at the Bar, and, like his older brother, he was a universal
favourite. "Juries have declared," said Lord Brougham, "that they have
felt it impossible to remove their looks from him when he had riveted,
and as it were fascinated, them by his first glance. Then hear his
voice, of surpassing sweetness, clear, flexible, strong, exquisitely
fitted to strains of serious earnestness." Yet although he did not rely
on wit, or humour, or sarcasm in addressing a jury, he could use them to
effect in cross-examination. "You were born and bred in Manchester, I
perceive," he said to a witness. "Yes."--"I knew it," said Erskine
carelessly, "from the absurd tie of your neckcloth." The witness'
presence of mind was gone, and he was made to unsay the greatest part of
his evidence in chief. Another witness confounding 'thick' whalebone
with 'long' whalebone, and unable to distinguish the difference after
counsel's explanation, Erskine exclaimed, "Why, man, you do not seem to
know the difference between what is _thick_ or what is _long_! Now I
tell you the difference. You are _thick_-headed, and you are not
_long_-headed."
Lord Erskine's addiction to punning is well known, and many examples
might be cited. An action was brought against a stable-keeper for not
taking proper care of a horse. "The horse," said counsel for the
plaintiff, "was turned into the stable, with nothing to eat but musty
hay. To such the horse 'demurred.'"--"He should have 'gone to the
country,'" at once retorted Lord Erskine. For the general reader it
should be explained that "demurring" and "going to the country" are
technical terms for requiring a cause to be decided on a question of law
by the judge, or on a question of fact by the jury. Here is another. A
low-class attorney who was much employed in bail-business and moving
attachments against the sheriff for not "bringing in the body"--that is,
not arresting and imprisoning a debtor, when such was the law--sold his
house in Lincoln's Inn Fields to the Corporation, of Surgeons to be used
as their Hall. "I suppose it was recommended to them," said Erskine,
"from the attorney being so well acquainted 'with the practice of
bringing in the body!'"
Perhaps one of his smartest puns he relates himself. "A case being laid
before me by my veteran friend, the Duke of Queensberry--better known as
'old Q'--as to whether he could sue a tradesman for breach of contract
about the painting of his house; and the evidence being totally
insufficient to support the case, I wrote thus: 'I am of opinion that
this action will not lie unless the witnesses do.'"
He was also fond of a practical joke. In answer to a circular letter
from Sir John Sinclair, proposing that a testimonial should be presented
to himself for his eminent public services, Lord Erskine replied:
"MY DEAR SIR JOHN,--I am certain there are few in this kingdom
who set a higher value on your public services than myself;
and I have the honour to subscribe"--then, on turning over the
leaf, was to be found--"myself, your most obedient faithful
servant,
"ERSKINE."
"Gentlemen of the jury," were his closing words after an impassioned
address, "the reputation of a cheesemonger in the City of London is like
the bloom upon a peach. Breathe upon it, and it is gone for ever."
Among many apocryphal stories told of expedients by which smart counsel
have gained verdicts, this one respecting a case in which Mr. Justice
Gould was the judge and Erskine counsel for the defendant is least
likely of credit. The judge entertained a most unfavourable opinion of
the defendant's case, but being very old was scarcely audible, and
certainly unintelligible, to the jury. While he was summing up the case,
Erskine, sitting on the King's Counsel Bench, and full in the view of
the jury, nodded assent to the various remarks which fell from the
judge; and the jury, imagining that they had been directed to find for
the defendant, immediately did so.
When at the Bar, Erskine was always encouraged by the appreciation of
his brother barristers. On one occasion, when making an unusual exertion
on behalf of a client, he turned to Mr. Garrow, who was his colleague,
and not perceiving any sign of approbation on his countenance, he
whispered to him, "Who do you think can get on with that d--d wet
blanket face of yours before him."
Nor did he always exhibit graciousness to older members. One nervous old
barrister named Lamb, who usually prefaced his pleadings with an
apology, said to Erskine one day that he felt more timid as he grew
older. "No wonder," replied Erskine, "the older the lamb the more
sheepish he grows."
When he was Lord Chancellor he was invited to attend the ministerial
fish dinner at Greenwich--known in later years as the Whitebait
Dinner--he replied: "To be sure I will attend. What would your fish
dinner be without the Great Seal?"
* * * * *
When a stupid jury returns an obviously wrong verdict the judge must
feel himself in an awkward position; but in such cases--if they ever
occur now--a good precedent has been set by Mr. Justice Maule who, when
in that predicament, addressed the prisoner in these terms:
"Prisoner, your counsel thinks you innocent, the prosecution thinks you
innocent, and I think you innocent. But a jury of your own
fellow-countrymen, in the exercise of such common sense as they possess,
have found you guilty, and it remains that I should pass sentence upon
you. You will be imprisoned for one day, and as that day was yesterday,
you are free to go about your business."
"May God strike me dead! my lord, if I did it," excitedly exclaimed a
prisoner who had been tried before the same justice for a serious
offence, and a verdict of "guilty" returned by the jury. The judge
looked grave, and paused an unusually long time before saying a word. At
last, amid breathless silence, he began: "As Providence has not seen fit
to interpose in your case, it now becomes my duty to pronounce upon you
the sentence of the law," &c. When somewhat excited over a very bad case
tried before him he would delay sentence until he felt calmer, lest his
impulse or his temper should lead him astray. On one such occasion he
exclaimed, "I can't pass sentence now. I might be too severe. I feel as
if I could give the man five-and-twenty years' penal servitude. Bring
him up to-morrow when I feel calmer."--"Thank you, my lord," said the
prisoner, "I know you will think better of it in the morning." Next
day the man appeared in the dock for sentence. "Prisoner," said the
judge, "I was angry yesterday, but I am calm to-day. I have spent a
night thinking of your awful deeds, and I find on inquiry I can sentence
you to penal servitude for life. I therefore pass upon you that
sentence. I have thought better of what I was inclined to do yesterday."
There are instances of brief summing up of a case by judges, but few in
the terms expressed by this worthy judge. "If you believe the witnesses
for the plaintiff, you will find for the defendant; if you believe the
witnesses for the defendant, you will find for the plaintiff. If, like
myself, you don't believe any of them, Heaven knows which way you will
find. Consider your verdict."
To Mr. Justice Maule a witness said: "You may believe me or not, but I
have stated not a word that is false, for I have been wedded to truth
from my infancy."--"Yes, sir," said the judge dryly; "but the question
is, _how long have you been a widower?_"
In the good old days a learned counsel of ferocious mien and loud voice,
practising before him, received a fine rebuke from the justice. No reply
could be got from an elderly lady in the box, and the counsel appealed
to the judge. "I really cannot answer," said the trembling lady. "Why
not, ma'am?" asked the judge. "Because, my lord, he frightens me
so."--"So he does me, ma'am," replied the judge.
He was as a rule patient and forbearing, and seldom interfered with
counsel in their mode of laying cases before a jury or the Bench, but
once he was fairly provoked to do so, by the confused blundering way in
which one of them was trying to instil a notion of what he meant into
the minds of the jury. "I am sorry to interfere, Mr. ----," said the
judge, "but do you not think that, by introducing a little order into
your narrative, you might possibly render yourself a trifle more
intelligible? It may be my fault that I cannot follow you--I know that
my brain is getting old and dilapidated; but I should like to stipulate
for some sort of order. There are plenty of them. There is the
chronological, the botanical, the metaphysical, the geographical--even
the alphabetical order would be better than no order at all."
* * * * *
Baron Thomson, of the Court of Exchequer, was asked how he got on in his
Court with the business, when he sat between Chief Baron Macdonald and
Baron Graham. He replied, "What between snuff-box on one side, and
chatterbox on the other, we get on pretty well!"
Sir Richard Bethel, Lord Westbury, and Lord Campbell were on very
friendly terms. An amusing story is told of a meeting of the two in
Westminster Hall, when the first rumour of Lord Campbell's appointment
as Lord Chancellor was current. The day being cold for the time of the
year, Lord Campbell had gone down to the House of Lords in a fur coat,
and Bethel, observing this, pretended not to recognise him. Thereupon
Campbell came up to him and said: "Mr. Attorney, don't you know me?"--"I
beg your pardon, my lord," was the reply. "I mistook you for the _Great
Seal_."
[Illustration: RICHARD BETHEL, BARON WESTBURY, LORD CHANCELLOR.]
Lord Cranworth, Vice-Chancellor, after hearing Sir Richard Bethel's
argument in an appeal, said he "would turn the matter over in his mind."
Sir Richard turning to his junior with his usual bland calm utterance
said: "Take a note of that; his honour says he will turn it over in what
he is pleased to call his mind."
Sir James Scarlett, Lord Abinger, had to examine a witness whose
evidence would be somewhat dangerous unless he was thrown off his guard
and "rattled." The witness in question--an influential man, whose
vulnerable point was said to be his self-esteem--was ushered into the
box, a portly overdressed person, beaming with self-assurance. Looking
him over for a few minutes without saying a word Sir James opened fire:
"Mr. Tompkins, I believe?"--"Yes."--"You are a stockbroker, I believe,
are you not?"--"I ham." Pausing for a few seconds and making an
attentive survey of him, Sir James remarked sententiously, "And a very
fine and well-dressed ham you are, sir."
In a breach of promise case Scarlett appeared for the defendant, who was
supposed to have been cajoled into the engagement by the plaintiff's
mother, a titled lady. The mother, as a witness, completely baffled the
defendant's clever counsel when under his cross-examination; but by one
of his happiest strokes of advocacy, Scarlett turned his failure into
success. "You saw, gentlemen of the jury, that I was but a child in her
hands. _What must my client have been?_"
Sir James was a noted cross-examiner and verdict-getter, but on one
occasion he was beaten. Tom Cooke, a well-known actor and musician in
his day, was a witness in a case in which Sir James had him under
cross-examination.
Scarlett: "Sir, you say that the two melodies are the same, but
different; now what do you mean by that, sir?"
Cooke: "I said that the notes in the two copies are alike, but with a
different accent."
Scarlett: "What is a musical accent?"
Cooke: "My terms are nine guineas a quarter, sir."
Scarlett (ruffled): "Never mind your terms here. I ask you what is a
musical accent? Can you see it?"
Cooke: "No."
Scarlett: "Can you feel it?"
Cooke: "A musician can."
Scarlett (angrily): "Now, sir, don't beat about the bush, but explain to
his lordship and the jury, who are expected to know nothing about music,
the meaning of what you call accent."
Cooke: "Accent in music is a certain stress laid upon a particular note,
in the same manner as you would lay stress upon a given word, for the
purpose of being better understood. For instance, if I were to say, 'You
are an _ass_,' it rests on ass, but if I were to say, '_You_ are an
ass,' it rests on you, Sir James." The judge, with as much gravity as he
could assume, then asked the crestfallen counsel, "Are you satisfied,
Sir James."--"The witness may go down," was the counsel's reply.
* * * * *
Lord Justice Holt, when a young man, was very dissipated, and belonged
to a club, most of whose members took an infamous course of life. When
his lordship was engaged at the Old Baily a man was convicted of highway
robbery, whom the judge remembered to have been one of his early
companions. Moved by curiosity, Holt, thinking the man did not recognise
him, asked what had become of his old associates. The culprit making a
low bow, and giving a deep sigh, replied, "Oh, my lord, they are all
hanged but your lordship and I."
We have already given examples of personalities in the retorts of
counsel upon members of the Bench, and if the same derogatory reflection
can be traced in the two following anecdotes of judges' retorts on
counsel, it is at least veiled in finer sarcasm. A nervous young
barrister was conducting a first case before Vice-Chancellor Bacon, and
on rising to make his opening remarks began in a faint voice: "My lord,
I must apologise--er--I must apologise, my lord"--"Go on, sir," said his
lordship blandly; "so far the Court is with you." The other comes from
an Australian Court. Counsel was addressing Chief Justice Holroyd when a
portion of the plaster of the Court ceiling fell, and he stopping his
speech for the moment, incautiously advanced the suggestion, "Dry rot
has probably been the cause of that, my lord."--"I am quite of your
opinion, Mr. ----," observed his lordship.
On the other hand, judges can be severely personal at times, and Lord
Justice Chitty was almost brutal in a case where counsel had been
arguing to distraction on a bill of sale. "I will now proceed to address
myself to the furniture--an item covered by the bill," counsel
continued. "You have been doing nothing else for the last hour,"
lamented the weary judge.
And Mr. Justice Wills once made a rather cutting remark to a barrister.
The barrister was, in the judge's private opinion, simply wasting the
time of the Court, and, in the course of a long-winded speech, he dwelt
at quite unnecessary length on the appearance of certain bags connected
with the case. "They might," he went on pompously, "they might have been
full bags, or they might have been half-filled bags, or they might even
have been empty bags, or--."--"Or perhaps," dryly interpolated the
judge, "they might have been wind-bags!"
* * * * *
[Illustration: HENRY BROUGHAM, BARON BROUGHAM AND VAUX, LORD
CHANCELLOR.]
When Lord Brougham attained the position of Lord Chancellor he was
greatly addicted to the habit of writing during the course of counsel's
argument of the case being heard before him. On one occasion this
practice so annoyed Sir Edward Sugden, whenever he noticed it, that he
paused in the course of his argument, expecting his lordship to stop
writing; but the Chancellor, without even looking up, remarked, "Go on,
Sir Edward; I am listening to you."--"I observe that your lordship is
engaged in writing, and not favouring me with your attention," replied
Sir Edward. "I am signing papers of mere form," warmly retorted the
Chancellor. "You may as well say that I am not to blow my nose or take
snuff while you speak."
When counsel at the Bar, a witness named John Labron was thus
cross-examined by Brougham at York Assizes:
"What are you?"
"I am a farmer, and malt a little."
"Do you know Dick Strother?"
"No."
"Upon your oath, sir, are you not generally known by the name of Dick
Strother?"
"That has nothing to do with this business."
"I insist upon hearing an answer. Have you not obtained that name?"
"I am sometimes called so."
"Now, Dick, as you admit you are so called, do you know the story of the
hare and the ball of wax?"
"I have heard it."
"Then pray have the goodness to relate it to the judge and the jury."
"I do not exactly remember it."
"Then I will refresh your memory by relating it myself. Dick Strother
was a cobbler, and being in want of a hare for a friend, he put in his
pocket a ball of wax and took a walk into the fields, where he soon
espied one. Dick then very dexterously threw the ball of wax at her
head, where it stuck, which so alarmed poor puss that in the violence of
her haste she ran in contact with the head of another; both stuck fast
together, and Dick, lucky Dick! caught both. Dick obtained great
celebrity by telling this wondrous feat, which he always affirmed as a
truth, and from that every notorious liar in Thorner bears the title
of Dick Strother. Now, Dick--I mean John--is not that the reason why you
are called Dick Strother?"
"It may be so."
"Then you may go."
The same turbulent spirit (Lord Brougham) fell foul of many other law
lords. It is well known that in a speech made at the Temple he accused
Lord Campbell, who had just published his _Lives of the Chancellors_, of
adding a new terror to death. Lord Campbell tells an amusing story which
shows that he could retort with effect upon his noble and learned
friend. He says that he called one morning upon Brougham at his house in
Grafton Street, who "soon rushed in very eagerly, but suddenly stopped
short, exclaiming, 'Lord bless me, is it you? They told me it was
Stanley'; and notwithstanding his accustomed frank and courteous manner,
I had some difficulty in fixing his attention. In the evening I stepped
across the House to the Opposition Bench, where Brougham and Stanley
were sitting next each other, and, addressing the latter in the hearing
of the former, I said, 'Has our noble and learned friend told you the
disappointment he suffered this morning? He thought he had a visit from
the Leader of the Protectionists to offer him the Great Seal, and it
turned out to be only Campbell come to bore him about a point of Scotch
law.' _Brougham_: 'Don't mind what Jack Campbell says; he has a
prescriptive privilege to tell lies of all Chancellors, dead and
living.'"
According to the same authority, Brougham was at one time very anxious
to be made an earl, but his desire was entirely quenched when Lord John
Russell gave an earldom to Lord Chancellor Cottenham. He is said to have
been so indignant that he either wrote or dictated a pamphlet in which
the new creation was ridiculed, and to which was appended the
significant motto, "The offence is rank."
The common feeling with regard to Sir James Scarlett's (Lord Abinger)
success in gaining verdicts led to the composition of the following
pleasantry, attributed to Lord Campbell. "Whereas Scarlett had contrived
a machine, by using which, while he argued, he could make the judges'
heads nod with pleasure, Brougham in course of time got hold of it; but
not knowing how to manage it when he argued, the judges, instead of
nodding, shook their heads."
And it is Lord Campbell who has preserved the following specimen of a
judge's concluding remarks to a prisoner convicted of uttering a forged
one-pound note. After having pointed out to him the enormity of the
offence, and exhorted him to prepare for another world, added: "And I
trust that through the merits and the mediation of our Blessed Redeemer,
you may there experience that mercy which a due regard to the _credit
of the paper currency_ of the country forbids you to hope for here."
Campbell married Miss Scarlett, a daughter of Lord Abinger, and was
absent from Court when a case in which he was to appear was called
before Mr. Justice Abbot. "I thought, Mr. Brougham," said his lordship,
"that Mr. Campbell was in this case?"--"Yes, my lord," replied Mr.
Brougham, with that sarcastic look peculiarly his own. "He was, my lord,
but I understand he is ill."--"I am sorry to hear that, Mr. Brougham,"
said the judge. "My lord," replied Mr. Brougham, "it is whispered here
that the cause of my learned friend's absence is scarlet fever."
* * * * *
[Illustration: JOHN CAMPBELL, BARON CAMPBELL, LORD CHANCELLOR.]
In his native town of Cupar, Fife, Lord Chancellor Campbell's abilities
and position were not so much appreciated as they were elsewhere. This
was a sore point with his father, who was parish minister, and when the
son was not selected by the town authorities to conduct their legal
business in London the future Lord Chancellor also felt affronted. On
the publication of the _Lives of the Chancellors_ some of his townsmen
wrote asking him to present a copy to the local library of his native
town, which gave Campbell an opportunity to square accounts with them
for their past neglect of him, for he curtly replied to their request
that "they could purchase the book from any bookseller." An old lady of
the town relating some gossip about the Campbell family said, "They
meant John for the Church, but he went to London _and got on very
well_." Such was the good lady's idea of the relative positions of
minister of a Scottish parish and Lord Chancellor of England.
The difference in the pronunciation of a word led to an amiable contest
between Lord Campbell and a learned Q.C. In an action to recover damages
to a carriage the counsel called the vehicle a "brougham," pronouncing
both syllables of the word. Lord Campbell pompously observed, "Broom is
the usual pronunciation--a carriage of the kind you mean is not
incorrectly called a 'Broom'--that pronunciation is open to no grave
objection, and it has the advantage of saving the time consumed by
uttering an extra syllable." Later in the trial Lord Campbell alluding
to a similar case referred to the carriage which had been injured as an
"Omnibus."--"Pardon me, my lord," interposed the Q.C., "a carriage of
the kind to which you draw attention is usually termed a 'bus'; that
pronunciation is open to no grave objection, and it has the great
advantage of saving the time consumed by uttering _two_ extra
syllables."
* * * * *
[Illustration: SIR SAMUEL MARTIN, BARON OF EXCHEQUER.]
Mr. Martin (afterwards Baron Martin), when at the Bar, was addressing
the Court in an insurance case, when he was interrupted by Baron
Alderson, who said, "Mr. Martin, do you think any office would insure
your life?"--"Certainly, my lord," replied Mr. Martin, "mine is a very
good life."--"You should remember, Mr. Martin, that yours is brief
existence."
This judge's reason for releasing a juryman from duty was equally smart.
The juryman in question confessed that he was deaf in one ear. "Then
leave the box before the trial begins," observed his lordship; "it is
necessary that the jurymen should hear _both_ sides."
Baron Martin was one of the good-natured judges who from the following
story seem to stretch that amiable quality to its fullest extent. In
sentencing a man convicted of a petty theft he said: "Look, I hardly
know what to do with you, but you can take six months."--"I can't take
that, my lord," said the prisoner; "it's too much. I can't take it; your
lordship sees I did not steal very much after all." The Baron indulged
in one of his characteristic chuckling laughs, and said: "Well that's
vera true; ye didn't steal _much_. Well then, ye can tak' _four_. Will
that do--four months?"--"No, my lord, but I can't take that
neither."--"Then take _three_."--"That's nearer the mark, my lord,"
replied the prisoner, "but I'd rather you'd make it _two_, if you'll be
so kind."--"Very well then, tak' two," said the judge; "and don't come
again. If you do, I'll give you--well, it'll all depend."
* * * * *
[Illustration: FREDERICK THESIGER, BARON CHELMSFORD, LORD CHANCELLOR.]
Lord Erskine's punning upon legal terms has already been noticed, but no
better quip is recorded than that of Lord Chelmsford, when as Sir
Frederick Thesiger, and a leader at the Bar, he took exception to the
irregular examination of a witness by a learned serjeant. "I have a
right," maintained the serjeant, "to deal with my witness as I
please."--"To that I offer no objection," retorted Sir Frederick. "You
may _deal_ as you like, but you shan't _lead_."
On all occasions Samuel Warren, the author of _Ten Thousand a Year_, was
given to boasting, at the Bar mess, of his intimacy with members of the
peerage. One day he was saying that, while dining lately at the Duke of
Leeds, he was surprised at finding no fish of any kind was served. "That
is easily accounted for," said Thesiger; "they had probably eaten it all
_upstairs_."
Walking down St. James's Street one day, Lord Chelmsford was accosted by
a stranger, who exclaimed, "Mr. Birch, I believe."--"If you believe
that, sir, you'll believe anything," replied his lordship as he passed
on.
* * * * *
[Illustration: SIR ALEXANDER COCKBURN, BART., LORD CHIEF JUSTICE.]
In the recently published _Cockburn Family Records_ the following is
told of the Chief Justice's ready wit:
"At a certain trial an extremely pretty girl was called as a witness.
The Lord Chief Justice was very particular about her giving her full
name and address. Of course he took note. So did the sheriff's officer!
That evening they both arrived at the young lady's door simultaneously,
whereupon Sir Alexander tapped the officer on the shoulder, remarking,
'No, no, no, Mr. Sheriff's Officer, judgment first, execution
afterwards!'"
There never was a barrister whose rise at the Bar was more rapid or
remarkable than that of Sir Alexander Cockburn, and along with him was
his friend and close associate as a brother lawyer of the Crown and
Bencher of the same Inn, Sir Richard Bethel, who became Lord Chancellor
a few years after Sir Alexander was made Chief Justice. Sir Richard once
said to his colleague, "My dear fellow, equity will swallow up your
common law."--"I don't know about that," said Sir Alexander, "but you'll
find it rather hard of digestion."
* * * * *
Although the wit of Lord Justice Knight Bruce was somewhat sarcastic it
was rarely so severe as that of Lord Westbury. There was always a tone
of good humour about it. He had indeed a kind of grave judicial waggery,
which is well exemplified in the following judgment in a separation suit
between an attorney and his wife. "The Court has been now for several
days occupied in the matrimonial quarrels of a solicitor and his wife.
He was a man not unaccustomed to the ways of the softer sex, for he
already had nine children by three successive wives. She,
however--herself a widow--was well informed of these antecedents; and it
appears did not consider them any objection to their union; and they
were married. No sooner were they united, however, than they were
unhappily disunited by unhappy disputes as to her property. These
disputes disturbed even the period usually dedicated to the softer
delights of matrimony, and the honeymoon was occupied by endeavours to
induce her to exercise a testamentary power of appointment in his
favour. She, however, refused, and so we find that in due course, at the
end of the month, he brought home with some disgust his still intestate
bride. The disputes continued, until at last they exchanged the
irregular quarrels of domestic strife for the more disciplined warfare
of Lincoln's Inn and Doctors Commons."
Of this judge the story is told that a Chancery counsel in a long and
dry argument quoted the legal maxim--_expressio unius est exclusio
alterius_--pronouncing the "i" in _unius_ as short as possible. This
roused his lordship from the drowsiness into which he had been lulled.
"Unyus! Mr. ----? We always pronounced that _unius_ at school."--"Oh
yes, my lord," replied the counsel; "but some of the poets use it short
for the sake of the metre."--"You forget, Mr. ----," rejoined the
judge, "that we are prosing here."
* * * * *
Mr. Justice Willes was a judge of kindly disposition, and when he had to
convey a rebuke he did so in some delicate and refined way like this. A
young barrister feeling in a hobble, wished to get out of it by saying,
"I throw myself on your lordship's hands."--"Mr. ----, I decline the
burden," replied the learned judge.
One day in judge's chambers, after being pressed by counsel very
strongly against his own views, he said with quaint humour: "I'm one of
the most obstinate men in the world."--"God forbid that I should be so
rude as to contradict your lordship," replied the counsel.
Mr. Montague Williams in his _Leaves of a Life_ relates the following
story of Mr. Justice Byles. He was once hearing a case in which a woman
was charged with causing the death of her child by not giving it proper
food, or treating it with the necessary care. Mr. F----, of the Western
Circuit, conducted the defence, and while addressing the jury said:
"Gentlemen, it appears to be impossible that the prisoner can have
committed this crime. A mother guilty of such conduct to her own child?
Why, it is repugnant to our better feelings"; and then being carried
away by his own eloquence, he proceeded: "Gentlemen, the beasts of the
field, the birds of the air, suckle their young, and----"
But at this point the learned judge interrupted him, and said:
"Mr. F----, if you establish the latter part of your proposition, your
client will be acquitted to a certainty."
And to the same authority we are indebted for a judge's gentle but
sarcastic reproof of a prosing counsel. In an action for false
imprisonment, heard before Mr. Justice Wightman, Ribton was addressing
the jury at great length, repeating himself constantly, and never giving
the slightest sign of winding up. When he had been pounding away for
several hours, the good old judge interposed, and said: "Mr. Ribton,
you've said that before."--"Have I, my lord?" said Ribton; "I'm very
sorry. I quite forgot it."--"Don't apologise, Mr. Ribton," was the
answer. "I forgive you; for it was a very long time ago."
A very old story is told of a highwayman who sent for a solicitor and
inquired what steps were necessary to be taken to have his trial
deferred. The solicitor answered that he would require to get a doctor's
affidavit of his illness. This was accordingly done in the following
manner: "The deponent verily believes that if the said ---- is obliged
to take his trial at the ensuing sessions, he will be in imminent danger
of his life."--"I verily believe so too," replied the judge, and the
trial proceeded immediately.
* * * * *
Some judges profess ignorance of slang terms used in evidence, and seek
explanation from counsel. Lord Coleridge in the following story had his
inquiry not only answered but illustrated. A witness was describing an
animated conversation between the pursuer and defendant in a case and
said: "Then the defendant turned and said, 'If 'e didn't 'owld 'is noise
'ed knock 'im off 'is peark.'"--"Peark? Mr. Shee, what is meant by
peark?" asked the Lord Chief Justice. "Oh, peark, my lord, is any
position when a man elevates himself above his fellows--for instance, a
bench, my lord."
Another story illustrating this alleged ignorance of every-day terms
used by the masses comes from the Scottish Court of Session. In this
instance the explanation was volunteered by the witness who used the
term. One of the counsel in the case was Mr. (now Lord) Dewar, who was
cross-examining the witness on a certain incident, and drew from him the
statement that he (the witness) had just had a "nip." "A nip," said the
judge; "what is a nip?"--"Only a small Dewar, my lord," explained the
witness.
Lord Russell of Killowen, himself a Lord Chief Justice, tells some
amusing stories of Lord Coleridge in his interesting reminiscences of
that great judge in the _North American Review_. When at the Bar he was
counsel in a remarkable case--Saurin against Starr. The pursuer, an
Irish lady, sued the Superior of a religious order at Hull for expulsion
without reasonable cause. Mr. Coleridge cross-examined a Mrs. Kennedy,
one of the superintendents of the convent, who had mentioned in her
evidence, among other peccadilloes of the pursuer, that she had been
found in the pantry eating strawberries, when she should have been
attending some class duties.
Mr. Coleridge: "Eating strawberries, really!"
Mrs. Kennedy: "Yes, sir, she was eating strawberries."
Mr. Coleridge: "How shocking!"
Mrs. Kennedy: "It was forbidden, sir."
Mr. Coleridge: "And did you, Mrs. Kennedy, really consider there was any
great harm in that?"
Mrs. Kennedy: "No, sir, not in itself, any more than there was harm in
eating an apple; but you know, sir, the mischief that came from that."
When as Lord Chief Justice, Lord Coleridge visited the United States, he
was continually pestered by interviewers, and one of them failing to
draw him, began to disparage the old country in its physical features
and its men. Lord Coleridge bore it all in good part; finally the
interviewer said, "I am told, my lord, you think a great deal of your
great fire of London. Well, I guess, that the conflagration we had in
the little village of Chicago made your great fire look very small." To
which his lordship blandly responded: "Sir, I have every reason to
believe that the great fire of London was quite as great as the people
of that time desired."
There are few of Lord Bowen's witticisms from the Bench in circulation,
but his after-dinner stories are worth recording, and perhaps one of the
best is that given in _Anecdotes of the Bench and Bar_, as told by
himself in the following words: "One of the ancient rabbinical writers
was engaged in compiling a history of the minor prophets, and in due
course it became his duty to record the history of the prophet Daniel.
In speaking of the most striking incident in the great man's career--I
refer to his critical position in the den of lions--he made a remark
which has always seemed to me replete with judgment and observation. He
said that the prophet, notwithstanding the trying circumstances in which
he was placed, had one consolation which has sometimes been forgotten.
He had the consolation of knowing that when the dreadful banquet was
over, at any rate it was not he who would be called upon to return
thanks."
* * * * *
The following story cannot be classed a witticism from the Bench, but
the judge clearly gave the opening for the lady's smart retort.
Mrs. Weldon, a well-known lady litigant in the Courts a generation ago,
was on one occasion endeavouring in the Court of Appeal to upset a
judgment of Vice-Chancellor Bacon, and one ground of complaint was that
the judge was too old to understand her case. Thereupon Lord Esher said:
"The last time you were here you complained that your case had been
tried by my brother Bowen, and you said he was only a bit of a boy, and
could not do you justice. Now you come here and say that my brother
Bacon was too old. What age do you want the judge to be?"--"Your age,"
promptly replied Mrs. Weldon, fixing her bright eyes on the handsome
countenance of the Master of the Rolls.
On Charles Phillips, who became a judge of the Insolvent Court, noticing
a witness kiss his thumb instead of the Testament, after rebuking him
said, "You may think to _desave_ God, sir, but you won't desave me."
* * * * *
[Illustration: SIR HENRY HAWKINS, LORD BRAMPTON.]
That racy and turf-attending judge, Lord Brampton, better known as Sir
Henry Hawkins, tells many good stories of himself in his
_Reminiscences_, but it is the unconscious humorist of Marylebone Police
Court who records this _bon mot_ of Sir Henry.
An old woman in the witness-box had been rattling on in the most voluble
manner, until it was impossible to make head or tail of her evidence.
Mr. Justice Hawkins, thinking he would try his hand, began with a
soothing question, but the old woman would not have it at any price. She
replied testily, "It's no use you bothering me. I have told you all I
know."--"That may be," replied his lordship, "but the question rather
is, do you know all you have told us?"
When Sir Henry (then Mr.) Hawkins was prosecuting counsel in the
Tichborne trial, over which Lord Chief Justice Cockburn presided, an
amusing incident is recorded by Mr. Plowden. The antecedents of a man
who had given sensational evidence for the claimant were being inquired
into, and in answer to Sir Henry the witness under examination said he
knew the man to be married, but his wife passed under another name.
"What name?" asked Mr. Hawkins. "Mrs. Hawkins," replied the witness.
"What was her maiden name?" added Mr. Hawkins. "Cockburn." Such a
coincident of names naturally caused hearty and prolonged laughter.
In the course of this celebrated trial another amusing incident occurred
which Sir Henry used to tell against himself. One morning as the
claimant came into Court, a lady dressed in deep mourning presented
Orton with a tract. After a few minutes he wrote something on it, and
had it passed on to the prosecuting counsel. The tract was boldly headed
in black type, "Sinner--Repent," and the claimant had written upon it,
"Surely this must have been meant for Hawkins."
Not long after he had ascended the Bench Mr. Justice Hawkins was hearing
a case in which a man was being tried for murder. The counsel for the
prosecution observed the prisoner say something earnestly to the
policeman seated by his side in the dock, and asked that the constable
should be made to disclose what had passed. "Yes," said his lordship, "I
think you may demand that. Constable, inform the Court what passed
between you and the prisoner."--"I--I would rather not, your lordship. I
was--."--"Never mind what you would rather not do. Inform the Court what
the prisoner said."--"He asked me, your lordship, who that hoary heathen
with the sheepskin was, as he had often seen him at the
race-course."--"That will do," said his lordship. "Proceed with the
case."
An action for damages against a fire insurance company, brought by some
Jews, was heard before Chief Justice Cockburn, which clearly was a
fraudulent claim. The plaintiffs claimed for loss of ready-made clothes
in the fire. Hawkins, who appeared for the defendant company, elicited
the fact that ready-made clothes in this firm had all brass buttons as a
rule; and, further, that after sifting the debris of the fire no buttons
had been found. The trial was not concluded on that day, but on the
following morning hundreds of buttons partially burnt were brought into
Court by the Jew plaintiffs. Cockburn was not long in appreciating this
mode of furnishing evidence after its necessity had been pointed out,
and he asked: "How do you account for these buttons, Mr. Hawkins? You
said none were found."--"Up to last night none had been found," replied
Hawkins. "But," said the Chief Justice--"but these buttons have
evidently been burnt in the fire. How do they come here?"--"_On their
own shanks_," was Hawkins' smart and ready reply. Verdict for
defendants.
The alibi has come in for its fair share of jests. Sir Henry Hawkins
relates in his _Reminiscences_ how he once found the following in his
brief: "If the case is called on before 3.15, the defence is left to the
ingenuity of the counsel; if after that hour, the defence is an alibi,
as by then the usual alibi witnesses will have returned from Norwich,
where they are at present professionally engaged."
Sitting as a vacation judge, Sir Walter Phillimore, whose views on the
law of divorce are well known, protested against being called on to make
absolute a number of decrees _nisi_ granted in the Divorce Division.
This fact is said to have called forth a witty pronouncement by a late
president of that Division of the Courts. "Here is my brother
Phillimore, who objects to making decrees _nisi_ absolute because he
believes in the sanctity of the marriage tie. By and by we may be having
a Unitarian appointed to the Bench, and he will refuse to try Admiralty
suits, as he would have to sit with Trinity Masters."
In sentencing a burglar recently, the judge referred to him as a
"professional," to which the prisoner strongly protested from the dock.
"Here," he exclaimed, "I dunno wot you mean by callin' me a professional
burglar. I've only done it once before, an' I've been nabbed both
times." The judge, in the most suave manner, replied, "Oh, I did not
mean to say that you had been very successful in your profession."
* * * * *
[Illustration: THE HON. MR JUSTICE GRANTHAM, JUDGE OF THE KING'S BENCH
DIVISION.]
Mr. Justice Grantham had a keen sense of humour. On one occasion, when
he was judge at the Newcastle Assizes, he left the mansion-house where
he was staying, at night, to post his letters. As he was wearing a cap
he was not recognised by the police officer who was on duty outside, and
the constable inquired of his lordship if "the old ---- had gone to bed
yet." The judge replied that he thought not, and a short while after he
had returned to the house he raised his bedroom window, and putting out
his head called to the constable below: "Officer, the old ---- is just
going to bed now."
[Illustration: THE HON. MR JUSTICE DARLING, JUDGE OF THE KING'S BENCH
DIVISION.]
Hardly a case of any importance comes into Mr. Justice Darling's Court
without attracting a large attendance of the public, as much from
expectation of being entertained by the repartees between Bench and Bar
as from interest in the proceedings before the Court. In a recent turf
libel case his lordship gave a free rein to his proclivity to give an
amusing turn to statements of both counsel and witnesses. At one point
he intervened by remarking that other witnesses than the one under
examination had said that a horse is made fit by running on the course
before he is expected to win a position, and added, "That is so, not
only on the race-course. You can never make a good lawyer by putting him
to read in the library." To which the defendant, who conducted his own
case, replied, "But I take it a barrister does try."--"You have no
notion how he tries the judge," responded Mr. Justice Darling. In the
same case a question arose as to whether the stewards of the Jockey Club
had the power to check riding "short," as it is termed, and the Justice
inquired if the stewards could say, "You must ride with a leather of a
prescribed length," and got the answer, "Yes; they could say if you
don't ride longer we won't give you a license."--"Which means," said the
judge, "if you don't ride longer you won't ride long."
"Who made the translation from the German?" asked the same judge,
regarding a document to which counsel had referred. "God knows; I
don't," was the reply of Mr. Danckwerts. "Are you sure," responded the
Justice, "that what is not known to you is known at all?"
Perhaps Mr. Justice Darling never raised heartier laughter than in an
action some years ago where the issue was whether the plaintiff, who had
been engaged by the defendant to sing in "potted opera" at a music-hall,
was competent to fulfil his contract.
"Well, he could not sing like the archangel Gabriel," a witness had
said, in reply to Mr. Duke, K. C.
"I have never heard the archangel Gabriel," commented the eminent
counsel.
"That, Mr. Duke, is a pleasure to come," was his lordship's swift, if
gently sarcastic, rejoinder.
* * * * *
If witnesses occasionally undergo severe handling in cross-examination
by counsel, there are also occasions when their ready reply has rather
nonplussed the judge.
A case was being tried at York before Mr. Justice Gould. When it had
proceeded for upwards of two hours the judge observed that there were
only eleven jurymen in the box, and inquired where the twelfth man was.
"Please you, my lord," said one of them, "he has gone away about some
business, but he has left his verdict with me."
"How old are you?" asked the judge of a lady witness.
"Thirty."--"Thirty!" said the judge; "I have heard you give the same age
in this Court for the last three years."--"Yes," responded the lady; "I
am not one of those persons who say one thing to-day and another
to-morrow."
Mr. Justice Keating one day had occasion to examine a witness who
stuttered very much in giving his evidence. "I believe," said his
lordship, "you are a very great rogue."--"Not so great a rogue as you,
my lord--t--t--t--t--take me to be," was the reply.
Judge: "Is this your signature?"
Witness: "I don't know."
Judge: "Look at it carefully."
Witness: "I can't say for certain."
Judge: "Is it anything like your writing?"
Witness: "I don't think it is."
Judge: "Can't you identify it?"
Witness: "Not quite."
Judge: "Well, let me see, just write your name here and I will examine
the two signatures."
Witness: "I can't write, sir."
Medical men are not as a rule the best witnesses, being too fond of
using technical words peculiar to them in their own profession. In an
action for assault tried by a Derbyshire common jury before Mr. Justice
Patteson, a surgical witness was asked to describe the injuries the
plaintiff had received; he stated he had "ecchymosis" of the left eye.
Upon the judge inquiring whether that did not mean what was commonly
understood by a black eye, the witness answered: "Yes."--"Then why did
you not say so, sir? What do the jury know of 'ecchymosis'? They might
think, as the farmer did of the word 'felicity,' used by a clergyman in
his sermon, that it meant something in the inside of a pig."
A notorious thief, being tried for his life, confessed the robbery he
was charged with. The judge thereupon directed the jury to find him
guilty upon his own confession. The jury having consulted together
brought him in "Not guilty." The judge bade them consider their verdict
again, but still they brought in a verdict of "Not guilty." The judge
asking the reason, the foreman replied: "There is reason enough, for we
all know him to be one of the greatest liars in the country."
"Have you committed all these crimes?" asked the judge of a hoary old
sinner. "Yes, my lord, and worse." "Worse, I should have thought it
impossible. What have you done then?"--"My lord, I allowed myself to be
caught."
"I knows yer," said a prisoner to the present Lord Chief Justice, "and
many's the time I've given yer a hand when ye've been stepping it round
the track like a greyhound. So let's down lightly, like a good cove as
yer are."
* * * * *
The retort of a witness to Lord Avory was too good to be soon forgotten,
and is still circulating among the juniors of the law-courts. "Let me
see," said his lordship, "you have been convicted before, haven't
you?"--"Yes, sir," answered the man; "but it was due to the incapacity
of my counsel rather than to any fault on my part."--"It always is,"
said Lord Avory, with a grim smile, "and you have my sincere
sympathy."--"And I deserve it," retorted the man, "seeing that you were
my counsel on that occasion!"
CHAPTER TWO
THE BARRISTERS OF ENGLAND
"Hark the hour of ten is sounding!
Hearts with anxious fears are bounding;
Hall of Justice crowds surrounding,
Breathing hope and fear.
For to-day in this arena
Summoned by a stern subpœna,
Edwin sued by Angelina
Shortly will appear."
Sir W. S. GILBERT: _Trial by Jury_.
"As your Solicitor, I should have no hesitation in saying:
Chance it----"
Sir W. S. GILBERT: _The Mikado_.
CHAPTER TWO
THE BARRISTERS OF ENGLAND
From the middle of the thirteenth century the senior rank to which a
barrister could attain at the Bar was that of serjeant-at-law, and from
that body, which existed until 1875, the judges were selected. If a
barrister below the rank of serjeant was invited to take a seat on the
Bench he invariably conformed to the recognised custom and "took the
coif"--became a serjeant-at-law--before he was sworn as one of his (or
her) Majesty's judges. This explains the term "brother" applied by
judges when addressing serjeants pleading before them in Court. "Taking
the coif" had a curious origin. It was customary in very early times for
the clergy to add to their clerical duties that of a legal practitioner,
by which considerable fees were obtained, and when the Canon law forbade
them engaging in all secular occupations the remuneration they had
obtained from the law-courts proved too strong a temptation to evade the
new law. They continued therefore to practise in the Courts, and to hide
their clerical identity they concealed the tonsure by covering the upper
part of their heads with a black cap or coif. When ultimately clerical
barristers were driven from the law-courts, the "coif" or black patch on
the crown of a barrister's wig became the symbol of the rank of
serjeant-at-law. That this distinguishing mark has been, in later years,
occasionally misunderstood is illustrated in the story of Serjeant
Allen and Sir Henry Keating, Q.C., who were opposed to one another in a
case before the Assize Court at Stafford. During the hearing of the case
a violent altercation had taken place between them, but when the Court
rose they left the building together, walking amicably to their
lodgings. Two men who had been in Court and had heard their wrangle were
following behind them, when one said to the other: "If you was in
trouble, Bill, which o' them two tip-top 'uns would you have to defend
you?"--"Well, Jim," was the reply, "I should pitch upon this 'un,"
pointing to the Q.C. "Then you'd be a fool," said his companion; "the
fellow with the _sore head_ is worth six of t'other 'un."
There used to be a student joke against the serjeants. "Why is a
serjeant's speech like a tailor's goose?"--"Because it is hot and
heavy."
* * * * *
"Taking silk," or becoming a K.C. and a senior at the Bar, originated at
a much later date than that of serjeant-at-law. Lord Bacon was the first
to be recognised as Queen's Counsel, but this distinction arose from his
position as legal adviser to Queen Elizabeth, and did not indicate the
existence of a senior body (as K.C. does now) among the barristers of
that period. The institution of the rank dates from the days of Charles
II, when Sir Francis North, Lord Guildford, was created King's Counsel
by a writ issued under the Great Seal. As was customary in the case of a
barrister proposing to "take the coif," so in that of one proposing to
"take silk"; he intimates to the seniors already holding the rank that
he intends to apply for admission to the body. A story is current in the
Temple that when Mr. Justice Eve "took silk" the usual notification of
his intention was sent to the seniors, and from one of them he received
the following reply: "My dear Eve, whether you wear silk or a fig-leaf,
I do not care.--A Dam."
* * * * *
Our selection of facetiæ of the English Bar, therefore, naturally opens
with stories of the serjeants-at-law, and one of the best-known members
of that body in early days was Serjeant Hill, a celebrated lawyer, who
was also somewhat remarkable for absence of mind, which was attributed
to the earnestness with which he devoted himself to his professional
duties.
On the very day when he was married, he had an intricate case on hand,
and forgot his engagement, until reminded of his waiting bride, and that
the legal time for performing the ceremony had nearly elapsed. He then
quitted law for the church; after the ceremony, the serjeant returned to
his books and his papers, having forgotten the _cause_ he had been
engaged in during the morning, until again reminded by his clerk that
the assembled company impatiently awaited his presence at dinner.
Being once on Circuit, and having occasion to refer to a law authority,
he had recourse, as usual, to his bag; but, to the astonishment of the
Court, instead of a volume of Viner's abridgment, he took out a specimen
candlestick, the property of a Birmingham traveller, whose bag Serjeant
Hill had brought into Court by mistake.
A learned serjeant kept the Court waiting one morning for a few minutes.
The business of the Court commenced at nine. "Brother," said the judge,
"you are behind your time this morning. The Court has been waiting for
you."--"I beg your lordship's pardon," replied the serjeant; "I am
afraid I was longer than usual in dressing."--"Oh," returned the judge,
"I can dress in five minutes at any time."--"Indeed!" said the learned
brother, a little surprised for the moment; "but in that my dog Shock
beats your lordship hollow, for he has nothing to do but to shake his
coat, and thinks himself fit for any company."
Serjeant Davy, when at the height of his professional career, once
received a large brief on which a fee of two guineas only was marked on
the back. His client asked him if he had read the brief. Pointing with
his finger to the fee, Davy replied: "As far as that I have read, and
for the life of me I can read no further." Of the same eminent serjeant
in his earlier years an Old Baily story is told. Judge Gould, who
presided, asked: "Who is concerned for the prisoner?"--"I am concerned
for him, my lord," said Davy, "and very much concerned after what I have
just heard."
If Serjeant Davy was concerned about his client, Serjeant Miller had no
such scruple about the man charged with horse stealing whom he
successfully defended, although the evidence convinced the judge and
everybody in the Court that there ought to have been a conviction. When
the trial was over and the prisoner had been acquitted, the judge said
to him: "Prisoner, luckily for you, you have been found Not Guilty by
the jury, but you know perfectly well you stole that horse. You may as
well tell the truth, as no harm can happen to you now by a confession,
for you cannot be tried again. Now tell me, did you not steal that
horse?" "Well, my lord," replied the man, "I always thought I did, until
I heard my counsel's speech, but now I begin to think I didn't."
* * * * *
In the days of "riding" and "driving circuit," and even later, the
Circuit mess was a very popular institution with circuiteers, and was
made the occasion of much merriment. After the table had been cleared a
fictitious charge would be made against one of the barristers present,
and a mock tribunal was immediately constituted before which he was
arraigned and his case duly set forth with all solemnity. The victim was
invariably fined--generally in wine, which had to be paid at once, and
consumed before the company retired to bed. On one such occasion
Serjeant Prime, who is represented as a good-natured but rather dull
man, and as a barrister wearisome beyond comparison, was engaged in an
important case in an over-crowded courtroom. He had been speaking for
three hours, when a boy, seated on a beam above the heads of the
audience, overcome by the heat and the serjeant's monotonous tones, fell
asleep, and, losing his balance, tumbled down on the people below. The
incident was made the subject of a charge against the serjeant at the
mess, and he was duly sentenced to pay a fine of two dozen of wine,
which he did with the greatest good humour.
Serjeant Wilkins, on one occasion, on defending a prisoner, said: "Drink
has upon some an elevating, upon others a depressing, effect; indeed,
there is a report, as we all know, that an eminent judge, when at the
Bar, was obliged to resort to heavy drinking in the morning, to reduce
himself to the level of the judges." Lord Denman, the judge, who had no
love for Wilkins, bridled up instantly. His voice trembled with
indignation as he uttered the words: "Where is the report, sir? Where is
it?" There was a death-like silence. Wilkins calmly turned round to the
judge and said: "It was burnt, my lord, in the Temple fire." The
effect of this was considerable, and it was a long time before order
could be restored, but Lord Denman was one of the first to acknowledge
the wit of the answer.
Difference of manner or temperament sometimes gives point to the
collisions which occasionally occur in Court between rival counsel.
Serjeant Wilkins, who had an inflated style of oratory, was once opposed
in a case to Serjeant Thomas, whose manner of delivery was lighter and
more lively. On the conclusion of a heavy bombardment of ponderous
Johnsonian sentences from the former, Thomas rose, and, with his eyes
fixed on his opponent, prefaced his address to the jury with the words,
delivered with much solemnity of manner and intonation: "And now the
hurly-burly's done."
* * * * *
Dunning was defending a gentleman in an action brought from _crim. con._
with the plaintiff's wife. The chief witness for the plaintiff was the
lady's maid, a clever, self-composed person, who spoke confidently as to
seeing the defendant in bed with her mistress. Dunning, on rising to
cross-examine her, first made her take off her bonnet, that they might
have a good view of her face, but this did not discompose her, as she
knew she was good-looking. He then arranged his brief, solemnly drew up
his shirt sleeves, and then began: "Are you sure it was not your master
you saw in bed with your mistress?"--"Perfectly sure."--"What, do you
pretend to say you can be certain when the head only appeared from the
bedclothes, and that enveloped in a nightcap?"--"Quite certain."--"You
have often found occasion, then, to see your master in his
nightcap?"--"Yes--very frequently."--"Now, young woman, I ask you, on
your solemn oath, does not your master occasionally go to bed with
you?"--"Oh, that trial does not come on to-day, Mr. Slabberchops!"
replied the witness. A loud shout of laughter followed, and Lord
Mansfield leaned back to enjoy it, and then gravely leaned forward and
asked if Mr. Dunning had any more questions to put to the witness. No
answer was given, and none were put. The same counsel, when at the
height of his large practice at the Bar, was asked how he got through
all his work. He replied: "I do one-third of it; another third does
itself; and I don't do the remaining third."
A witness under severe cross-examination by Serjeant Dunning was
repeatedly asked if he did not live close to the Court. On admitting
that he did, the further question was put, "And pray, sir, for what
reason did you take up your residence in that place?"--"To avoid the
rascally impertinence of dunning," came the ready answer.
A barrister's name once gave a witness the opportunity to score in the
course of a severe cross-examination. Missing was the leader of his
Circuit and was defending his client charged with stealing a donkey. The
prosecutor had left the donkey tied up to a gate, and when he returned
it was gone. "Do you mean to say," said counsel, "the donkey was stolen
from the gate?"--"I mean to say, sir," said the witness, giving the
judge and then the jury a sly look, at the same time pointing to the
counsel, "the ass was missing."
* * * * *
Mr. Clarke, a leader of the Midland Circuit, was a very worthy lawyer of
the old school. A client long refusing to agree to refer to arbitration
a cause which judge, jury, and counsel wished to get rid of, he at last
said to him, "You d--d infernal fool, if you do not immediately follow
his lordship's recommendation, I shall be obliged to use strong language
to you." Once, in a council of the Benchers of Lincoln's Inn, the same
gentleman very conscientiously opposed their calling a Jew to the Bar.
Some tried to point out the hardship to be imposed upon the young
gentleman, who had been allowed to keep his terms, and whose prospects
in life would thus be suddenly blasted. "Hardship!" said the zealous
churchman, "no hardship at all! Let him become a Christian, and be d--d
to him!"
It is sometimes imagined by laymen that verdicts may be obtained by the
trickery of counsel. Doubtless counsel may try to throw dust in the
eyes of jurors, but they are not very successful. Lord Campbell tells a
story of Clarke, who by such tactics brought a case to a satisfactory
compromise. The attorney, coming to him privately, said, "Sir, don't you
think we have got very good terms? But you rather went beyond my
instructions."--"You fool!" retorted Clarke; "how do you suppose you
could have got such terms if I had stuck to your instructions."
[Illustration: JOHN ADOLPHUS, BARRISTER.]
In the biography of John Adolphus, a famous criminal lawyer, we are told
that the judges of his time were much impressed with the following table
of degrees. "The three degrees of comparison in a lawyer's progress are:
getting on; getting on-er (honour); getting on-est (honest)." He
declared the judges acknowledged much truth in the degrees. The third
degree in Mr. Adolphus' table reminds us of the story of the farmer who
was met by the head of a firm of solicitors, who inquired the name of a
plant the farmer was carrying. "It's a plant," replied the latter, "that
will not grow in a lawyer's garden; it is called honesty."
One night, walking through St. Giles's by way of a short cut towards
home, an Irish woman came up to Mr. Adolphus. "Why, Misther Adolphus!
and who'd a' thought of seeing you in the Holy Ground?"--"And how came
you to know who I am?" said Adolphus. "Lord bless and save ye, sir!
not know ye? Why, I'd know ye if ye was boiled up in a soup!"
Mr. Montagu Chambers was counsel for a widow who had been put in a
lunatic asylum, and sued the two medical men who signed the certificate
of her insanity. The plaintiff's case was to prove that she was not
addicted to drinking, and that there was no pretence for treating hers
as a case of _delirium tremens_. Dr. Tunstal, the last of plaintiff's
witnesses, described one case in which he had cured a patient of
_delirium tremens_ in a _single night_, and he added, "It was a case of
gradual drinking, _sipping all day_ from morning till night." These
words were scarcely uttered when Mr. Chambers rose in triumph, and said,
"My lord, that is _my case_."
* * * * *
On the Northern Circuit a century ago, there was a famous barrister who
was familiarly known among his brother advocates as Jack Lee. He was
engaged in examining one Mary Pritchard, of Barnsley, and began his
examination with, "Well, Mary, if I may credit what I hear, I may
venture to address you by the name of Black Moll."--"Faith you may,
mister lawyer, for I am always called so by the blackguards." On another
occasion he was retained for the plaintiff in an action for breach of
promise of marriage. When the consultation took place, he inquired
whether the lady for whose injury he was to seek redress was
good-looking. "Very handsome indeed, sir," was the assurance of her
attorney. "Then, sir," replied Lee, "I beg you will request her to be in
Court, and in a place where she can be seen." The attorney promised
compliance, and the lady, in accordance with Lee's wishes, took her seat
in a conspicuous place, where the jury could see her. Lee, in addressing
the jury, did not fail to insist with great warmth on the "abominable
cruelty" which had been exercised towards "the highly attractive and
modest girl who trusted her cause to their discernment"; and did not sit
down until he had succeeded in working upon their feelings with great
and, as he thought, successful effect. The counsel on the other side,
however, speedily broke the spell with which Lee had enchanted the jury,
by observing that "his learned friend, in describing the graces and
beauty of the plaintiff, ought in common fairness not to have concealed
from the jury the fact that the lady had a _wooden leg_!" The Court was
convulsed with laughter at this discovery, while Lee, who was ignorant
of this circumstance, looked aghast; and the jury, ashamed of the
influence that mere eloquence had had upon them, returned a verdict for
the defendant.
Justice Willes, the son of Chief Justice Willes, had an offensive habit
of interrupting counsel. On one occasion an old practitioner was so
irritated by this practice that he retorted sharply by saying, "Your
lordship doubtless shows greater acuteness even than your father, the
Chief Justice, for he used to understand me _after I had done_, but your
lordship understands me even _before I have begun_."
Of Whigham, a later leader on the Northern Circuit, an amusing story
used to be told. He was defending a prisoner, and opened an alibi in his
address to the jury, undertaking to prove it by calling the person who
had been in bed with his client at the time in question, and deprecating
their evil opinion of a woman whose moral character was clearly open to
grave reproach, but who was still entitled to be believed upon her oath.
Then he called "Jessie Crabtree." The name was, as usual, repeated by
the crier, and there came pushing his way sturdily through the crowd a
big Lancashire lad in his rough dress, who had been the prisoner's
veritable bedfellow--Whigham's brief not having explained to him that
the Christian name of his witness was, in this case, a male one.
Colman, in his _Random Records_, tells the following anecdote of the
witty barrister, Mr. Jekyll. One day observing a squirrel in Colman's
chambers, in the usual round cage, performing the same operation as a
man in a tread-mill, and looking at it for a minute, exclaimed, "Oh!
poor devil, he's going the Home Circuit."
Jekyll was asked why he no longer spoke to a lawyer named Peat; to which
he replied, "I choose to give up his acquaintance--I have common of
turbary, and have a right to cut _peat_!" An impromptu of his on a
learned serjeant who was holding the Court of Common Pleas with his
glittering eye, is well known:
"Behold the serjeant full of fire,
Long shall his hearers rue it,
His purple garments _came_ from Tyre,
His arguments _go to it_."
Mr. H. L. Adam, in his volume _The Story of Crime_, tells an amusing
story of a prisoner whose counsel had successfully obtained his
acquittal on a charge of brutal assault. A policeman came across a man
one night lying unconscious on the pavement, and near by him was an
ordinary "bowler" hat. That was the only clue to the perpetrator of the
deed. The police had their suspicions of a certain individual, whom they
proceeded to interrogate. In addition to being unable to give a
satisfactory account of his movements on the night of the assault, it
was found that the "bowler" hat in question fitted him like a glove. He
was accordingly arrested and charged with the crime, the hat being the
chief evidence against him. Counsel for the defence, however, dwelt so
impressively on the risk of accepting such evidence that the jury
brought in a verdict of "not proven," and the prisoner was discharged.
Before leaving the dock he turned to the judge, and pointing to the
hat in Court, said, "My lord, may I 'ave my 'at."
* * * * *
Some amusing scenes have occurred in suits brought by tailors and
dressmakers to recover the price of garments for which their customers
have declined to pay on the ground of misfit. Serjeant Ballantine, in
his _Experiences of a Barrister_, relates the case of a tailor in which
the defendant was the famous Sir Edwin Landseer. It was tried in the
Exchequer Court, before Baron Martin. "The coat was produced," says the
serjeant, "and the judge suggested that Sir Edwin should try it on; he
made a wry face, but consented, and took off his own upper garment. He
then put an arm into one of the sleeves of that in dispute, and made an
apparently ineffectual endeavour to reach the other, following it round
amidst roars of laughter from all parts of the Court. It was a common
jury, and I was told that there was a tailor upon it, upon which I
suggested that there was a gentleman of the same profession as the
plaintiff in Court who might assist Sir Edwin. This was acceded to, and
out hopped a little Hebrew slop-seller from the Minories, to whom the
defendant submitted his body. With difficulty he got into the coat, and
then stood as if spitted, his back one mass of wrinkles. The tableau was
truly amusing; the indignant plaintiff looking at the performance with
mingled horror and disgust; Sir Edwin, as if he were choking; whilst the
juryman, with the air of a connoisseur, was examining him and the coat
with profound gravity. At last the judge, when able to stifle his
laughter, addressing the little Hebrew, said, 'Well, Mr. Moses, what do
you say?'--'Oh,' cried he, holding up a pair of hands not over clean,
and very different from those encased in lavender gloves which graced
the plaintiff, 'it ish poshitively shocking, my lord; I should have been
ashamed to turn out such a thing from my establishment.' The rest of the
jury accepted his view, and Sir Edwin, apparently relieved from
suffocation, entered his own coat with a look of relief, which again
convulsed the Court, bowed, and departed."
* * * * *
Financial prosecutions are as a rule very dreary, and any little joke
perpetrated by counsel during the course of them is a relief. One was
being heard, in which Mr. Muir was counsel, and to many of his
statements the junior counsel for the prosecution shook his head
vehemently, although he said nothing. This continual dumb contradiction
at length got on the customary patience of Mr. Muir, who blurted out: "I
do not know why my friend keeps shaking his head, whether it is that he
has palsy, or that there's nothing in it!"
Mr. Baldwin was the counsel employed to oppose a person justifying bail
in the Court of King's Bench. After some common questions, a waggish
counsel sitting near suggested that the witness should be asked as to
his having been a prisoner in Gloucester gaol. Mr. Baldwin thereon
boldly asked: "When, sir, were you last in Gloucester gaol?" The
witness, a respectable tradesman, with astonishment declared that he
never was in a gaol in his life. Mr. Baldwin being foiled after putting
the question in various ways, turned round to his friendly prompter, and
asked for what the man had been imprisoned. He was told that it was for
suicide. Thereupon Mr. Baldwin, with great gravity and solemnity
addressed the witness: "Now, sir, I ask you upon your oath, and remember
that I shall have your words taken down, were you not imprisoned in
Gloucester gaol for suicide?"
A young lawyer who had just "taken the coif," once said to Samuel
Warren, the author of _Ten Thousand a Year_: "Hah! Warren, I never could
manage to get quite through that novel of yours. What did you do with
Oily Gammon?"--"Oh," replied Warren, "I made a serjeant of him, and of
course he never was heard of afterwards."
[Illustration: SAMUEL WARREN, Q.C., MASTER IN LUNACY.]
* * * * *
Warner Sleigh, a great thieves' counsel, was not debarred by etiquette
from taking instructions direct from his clients. One day, following a
rap on the door of his chambers in Middle Temple Lane, a thick-set man,
with cropped poll of unmistakably Newgate cut, slunk into the room, when
the following colloquy took place.
"Mornin', sir," said the man, touching his forelock. "Morning," replied
counsel. "What do you want?"--"Well, sir, I'm sorry to say, sir, our
little Ben, sir, has 'ad a misfortin'; fust offence, sir, only a
'wipe'--"--"Well, well!" interrupted counsel. "Get on."--"So, sir, we
thought as you've 'ad all the family business we'd like you to defend
'im, sir."--"All right," said counsel; "see my clerk--."--"Yessir,"
continued the thief; "but I thought I'd like to make sure you'd attend
yourself, sir; we're anxious, 'cos it's little Ben, our youngest
kid."--"Oh! that will be all right. Give Simmons the fee."--"Well, sir,"
continued the man, shifting about uneasily, "I was going to arst you,
sir, to take a little less. You see, sir (wheedlingly), it's little
Ben--his first misfortin'."--"No, no," said the counsel impatiently.
"Clear out!"--"But, sir, you've 'ad all our business. Well, sir, if you
won't, you won't, so I'll pay you now, sir." And as he doled out the
guineas: "I may as well tell you, sir, you wouldn't 'a' got the
'couties' if I 'adn't 'ad a little bit o' luck on the way."
The gravity of the Court of Appeal was once seriously disturbed by
Edward Bullen reading to them the following paragraph from a pleading in
an action for seduction: "The defendant denies that he is the father of
the said twins, _or of either of them_." This he apologetically
explained was due to an accident in his pupil-room, but everyone
recognised the style of the master-hand.
* * * * *
Serjeant Adams, who acted as assistant judge at the sessions, had a very
pleasant wit, and knew how to deal with any counsel who took to
"high-falutin." On one occasion, after an altercation with the judge,
the counsel for the prisoner in his address to the jury reminded them
that "they were the great palladium of British Liberty--that it was
_their_ province to deal with the facts, the _judge_ with the law--that
they formed one of the great institutions of their country, and that
they came in with William the Conqueror." Adams at the end of his
summing up said: "Gentlemen, you will want to retire to consider your
verdict, and as it seems you came in with the Conqueror you can now go
out with the beadle."
There was always a mystery how Edwin James, who at the Bar was earning
an income of at least £10,000 a year, was continually in monetary
difficulties. Like Sir Thomas Lawrence, he must have had some private
drain on his resources which was never disclosed. Among others who
suffered was the landlord of his chambers, whose rent was very much in
arrear. In the end the landlord hit upon a plan to discover which would
be the best method of recovering his rent, and one day asked James to
advise him on a legal matter in which he was interested, and thereupon
drew up a statement of his grievance against his own tenant. The paper
was duly returned to the landlord next day with the following sentence
subjoined: "In my opinion this is a case which admits of only one
remedy--patience. Edwin James."
In a case before Lord Campbell, James took a line with a witness which
his lordship considered quite inadmissible, and stopped him. When
summing up to the jury Lord Campbell thought to soften his interruption
by saying: "You will have observed, gentlemen, that I felt it my duty to
stop Mr. Edwin James in a certain line which he sought to adopt in the
cross-examination of one of the witnesses; but at the same time I had no
intention to cast any reflection on the learned counsel who I am sure is
known to you all as a most able--" but before his lordship could proceed
any further James interposed, and in a contemptuous voice exclaimed: "My
lord, I have borne your lordship's censure, spare me your lordship's
praise."
* * * * *
Mr. W. G. Thorpe, F.S.A., in his entertaining volume of _Middle Temple
Table Talk_, relates a curious story of a judge taking an extremely
personal interest in a case which was brought before him. A milk company
had sold off a lot of old stock to a cake-maker, and the cake-maker had
declined to pay because the milk had turned out to be poisonous. As the
case went on the judge became more and more exercised. "What do they do
with this stuff?" he asked, pointing to a mass of horrible mixture. "Oh,
my lord, they make cakes of it; it doesn't taste in the cakes."--"Where
do they sell these cakes?" was the judge's next question, and the reply
was, "They are used for certain railway stations, school-treats, and
excursions." Then the defendant specified one of the places. "Bless me!"
said the judge, turning an olive-green, "I had some there myself," and
with a shudder he retired to his private room, returning in a few
minutes wiping his mouth.
There is another story of a counsel defending a woman on a charge of
causing the death of her husband by administering a poisoned cake to
him. "I'll eat some of the cake myself," he said in Court, and took a
bite. Just at this moment a telegram was brought to him to say that his
wife was seriously ill, and he obtained permission to leave in order to
answer the message. He returned, finished his speech, and obtained the
acquittal of his client. It transpired afterwards that the telegram
business was arranged in order that counsel could obtain an emetic
after swallowing the cake.
* * * * *
Mr. Montagu Williams tells a story, in his interesting _Leaves of a
Life_, of two members of the Bar, one of whom had made a large fortune
by his practice, but worked too hard to enjoy his gains, while the
other, who only made a decent living, liked to enjoy life. They met on
one occasion at the end of a long vacation, and the rich man asked his
less fortunate brother what he had been doing. "I have been on the
Continent," the other replied, "and I enjoyed my holiday very much. What
have you been doing?"--"I have been working," said the rich Q.C., "and
have not been out of town; I had lots of work to do."--"What is the use
of it?" queried the other; "you can't carry the money with you when you
die; and if you could, _it would soon melt_."
From the same work we take the following story of Serjeant Ballantine.
On one occasion he was acting in a case with a Jewish solicitor, and it
happened that one of the hostile witnesses also belonged to the same
race. Just as the serjeant was about to examine him, the solicitor
whispered in Ballantine's ear: "Ask him as your first question, if he
isn't a Jew."--"Why, but you're a Jew yourself," said the serjeant in
some surprise. "Never mind, never mind," replied the little solicitor
eagerly. "Please do--just to prejudice the jury."
* * * * *
[Illustration: JOHN ROMILLY, BARON ROMILLY, MASTER OF THE ROLLS.]
No collection of the wit and humour of the Bar would be complete without
some specimens of Sir Frank Lockwood's racy sayings. From Mr. Augustine
Birrell's _Life of Lockwood_ we quote the following:
"A tale is attached to Lockwood's first brief. It was on a petition to
the Master of the Rolls for payment out of Court of a sum of money; and
Lockwood appeared for an official liquidator of a company whose consent
had to be obtained before the Court would part with the fund. Lockwood
was instructed to consent, and his reward was to be three guineas on the
brief and one guinea for consultation. The petition came on in due
course before Lord Romilly, and was made plain to him by counsel for the
petitioner, and still a little plainer by counsel for the principal
respondent.
"Then up rose Lockwood, an imposing figure, and indicated his appearance
in the case.
"'What brings _you_ here?' said Lord Romilly, meaning, I presume, 'Why
need I listen to you?'
"Lockwood looking puzzled, Lord Romilly added a little testily, 'What do
you come here for?'
"The answer was immediate, unexpected, and, accompanied as it was by a
dramatic glance at the outside of his brief, as if to refresh his
memory, triumphant, 'Three and one, my lord!'"
"The following letter is to Mrs. Atkinson:
1 HARE COURT, TEMPLE, E.C., LONDON.
_September 18, '72._
MY DEAR LOO,--I trust it is well with yourself, John, and the
childer.... It is an off-day. We are resting on our legal oars
after a prolonged and determined struggle yesterday. Know!
that near our native hamlet is the level of Hatfield Chase,
whereon are numerous drains. Our drain (speaking from the
Corporation of Hatfield Chase point of view) we have stopped,
for our own purposes. Consequently, the adjacent lands have
been flooded, are flooded, and will continue to be flooded.
The landed gentry wish us to remove our dam, saying that if we
don't they won't be worth a d--n. We answer that we don't care
a d--n.
This interesting case has been simmering in the law-courts
since 1820. The landed gentry got a verdict in their favour at
the last Lincoln Assizes, but find themselves little the
better, as we have appealed, and our dam still reigns
triumphant. Yesterday an application was made to the judge to
order our dam to be removed. In the absence of Mellor, I
donned my forensic armour and did battle for the Corporation.
After two hours' hard fighting, we adjourned for a week; in
the meantime the floods may rise, and the winds blow. The
farmers yelled with rage when they heard that the dam had got
a week's respite. I rather fancy that they will yell louder on
Tuesday, as I hope to win another bloodless victory. It is a
pretty wanton sport, the cream of the joke being that the dam
is no good to us or to anybody else, and we have no real
objection to urge against its removal, excepting that such a
measure would be informal, and contrary to the law as laid
down some hundred years ago by an old gentleman who never
heard of a steam-engine, and who would have fainted at the
sight of a telegraph post. As we have the most money on our
side, I trust we shall win in the end. None of this useful
substance, however, comes my way, as it is Mellor's work. But
I hope to reap some advantage from it, both as to experience
and introduction. I make no apology for troubling you with
this long narration. I wish it to sink into your mind, and
into that of your good husband. Let it be a warning to you and
yours. And never by any chance become involved in any
difficulties which will bring you into a court of law of
higher jurisdiction than a police court. An occasional 'drunk
and disorderly' will do you no harm, and only cost you 5_s._
Beyond a little indulgence of this kind--beware! In all
probability I shall be in the North in a few weeks. Sessions
commence next month. I will write to the Mum this week.--With
best love to all, I am, Your affectionate brother,
FRANK LOCKWOOD."
"Mr. Mellor vouches for the following story, which, as it illustrates
Lockwood's humour and had gone the round of the newspapers, I will tell.
It is the ancient custom of the new Lord Mayor of London, attended by
the Recorder and Sheriffs, to come into the law-courts and be introduced
to the Lord Chief Justice or, if he is not there, to the senior judge to
be found on the premises, and, after a little lecture from the Bench, to
return good for evil by inviting the judges to dinner, only to receive
the somewhat chilling answer, 'Some of their lordships will attend.' On
this occasion the ceremony was over, and the Lord Mayor and his retinue
was retiring from the Court, when his lordship's eye rested on Lockwood,
who in a new wig was one of the throng by the door. 'Ah, my young
friend!' said the Lord Mayor in a pompous way (for in those days there
was no London County Council to teach Lord Mayors humility); 'picking up
a little law, I suppose?' Lockwood had his answer ready. With a profound
bow, he replied: 'I shall be delighted to accept your lordship's
hospitality. I think I heard your lordship name seven as the hour.' The
Lord Mayor hurried out of Court, and even the policeman (and to the
police Lord Mayors are almost divine) shook with laughter."
Counsel sometimes find their position so weak that their only hope of
damaging the other side lies in ridiculing their witnesses. Serjeant
Parry on one occasion was defending a client against a claim for breach
of promise of marriage made a few hours after a chance meeting in Regent
Street. According to the lady's story the introduction had been effected
through the gentleman offering to protect her from a dog. In course of
cross-examination Parry said: "You say you were alarmed at two dogs
fighting, madam?"--"No, no, it was a single dog," was the reply. "What
you mean, madam," retorted Parry, "is that there was only one dog; but
whether it was a single dog or a married dog you are not in a position
to say." With this correction it need not be wondered that the lady had
little more to say.
A learned counsellor in the midst of an affecting appeal in Court on a
slander case delivered himself of the following flight of genius.
"Slander, gentlemen, like a boa constrictor of gigantic size and
immeasurable proportions, wraps the coil of its unwieldy body about its
unfortunate victim, and, heedless of the shrieks of agony that come from
the utmost depths of its victim's soul, loud and reverberating as the
night thunder that rolls in the heavens, it finally breaks its unlucky
neck upon the iron wheel of public opinion; forcing him first to
desperation, then to madness, and finally crushing him in the hideous
jaws of mortal death."
Talking of his early days at the Bar, Mr. Thomas Edward Crispe, in
_Reminiscences of a K.C._, relates how on one occasion he was opposed by
a somewhat eccentric counsel named Wharton, known in his day as the
"Poet of Pump Court." The case was really a simple one, but Wharton made
so much of it that when the luncheon half-hour came the judge, Mr.
Justice Archibald, with some emphasis, addressing Mr. Wharton, said: "We
will now adjourn, and, Mr. Wharton, I hope you will take the opportunity
of conferring with your friend Mr. Crispe and settling the matter out of
Court."
But Wharton would not agree to this, and when at last he had to address
the jury, he, in the course of his speech, made the following remarks,
for every word of which Mr. Crispe vouches:
"Gentlemen, I think it only courteous to the learned judge to refer to
the advice his lordship gave me to settle the matter out of Court. That
reminds me of a case, tried in a country court, in an action for
detention of a donkey. The plaintiff was a costermonger and the
defendant a costermonger; they conducted the case in person. At one
o'clock the judge said: 'Now, my men, I'm going to have my lunch, and
before I come back I hope you'll settle your dispute out of Court.' When
he returned the plaintiff came in with a black eye and the defendant
with a bleeding nose, and the defendant said: 'Well, your honour, we've
taken your honour's advice; Jim's given me a good hiding, and I've
given him back his donkey.'"
Mr. F. E. Smith, M.P., tells a story of a County Court case he was once
engaged in, in which the plaintiff's son, a lad of eight years, was to
appear as a witness.
When the youngster entered the box he wore boots several sizes too
large, a hat that almost hid his face, long trousers rolled up so that
the baggy knees were at his ankles, and, to complete the picture, a
swallow-tail coat that had to be held to keep it from sweeping the
floor. This ludicrous picture was too much for the Court; but the judge,
between his spasms of laughter, managed to ask the boy his reason for
appearing in such garb.
With wondering look the lad fished in an inner pocket and hauled the
summons from it, pointing out a sentence with solemn mien as he did so:
"To appear in his father's suit" it read.
* * * * *
There have been few readier men in retort than the late Mr. Francis
Oswald, the author of _Oswald on Contempt of Court_. After a stiff
breeze in a Chancery Court, the judge snapped out, "Well, I can't teach
you manners, Mr. Oswald."--"That is so, m'lud, that is so," replied the
imperturbable one. On another occasion, an irascible judge observed, "If
you say another word, Mr. Oswald, I'll commit you."--"That raises
another point--as to your lordship's power to commit counsel engaged in
arguing before you," was the cool answer.
The author of _Pie Powder_ in his entertaining volume, tells us that he
was once dining with a barrister who had just taken silk. In the course
of after-dinner talk, the new K.C. invited his friend to tell him what
he considered was his (the K.C.'s) chief fault in style. After some
considerable hesitation his friend admitted that he thought the K.C.
erred occasionally in being too long. This apparently somewhat annoyed
the K.C., and his friend feeling he had perhaps spoken too freely,
thought he would smooth matters by inviting similar criticism of himself
from the K.C., who at once replied, "My dear boy, I don't think really
you have any fault. _Except, you know, you are so d--d offensive._"
A judge and a facetious lawyer conversing on the subject of the
transmigration of souls, the judge said, "If you and I were turned into
a horse and an ass, which of them would you prefer to be?"--"The ass, to
be sure," replied the lawyer.--"Why?"--"Because," replied the lawyer, "I
have heard of an ass being a judge, but of a horse, never."
* * * * *
[Illustration: SERJEANT TALFOURD.]
In some cases counsel receive answers to questions which they had no
business to put, and these, if not quite to their liking, are what they
justly deserve. The following story of George Clarke, a celebrated
negro minstrel, is a case in point. On one occasion, when being examined
as a witness, he was severely interrogated by a lawyer. "You are in the
minstrel business, I believe?" inquired the lawyer. "Yes, sir," was the
reply. "Is not that rather a low calling?"--"I don't know but what it
is, sir," replied the minstrel; "but it is so much better than my
father's that I am rather proud of it." The lawyer fell into the trap.
"What was your father's calling?" he inquired. "He was a lawyer,"
replied Clarke, in a tone that sent the whole Court into a roar of
laughter as the discomfited lawyer sat down.
At the Durham Assizes an action was tried which turned out to have been
brought by one neighbour against another for a trifling matter. The
plaintiff was a deaf old lady, and after a pause the judge suggested
that the counsel should get his client to compromise it, and to ask her
what she would take to settle it. Very loudly counsel shouted out to his
client: "His lordship wants to know what you will take?" She at once
replied: "I thank his lordship kindly, and if it's no ill convenience to
him, I'll take a little _warm ale_."
A tailor sent his bill to a lawyer, and a message to ask for payment.
The lawyer bid the messenger tell his master that he was not running
away, and was very busy at the time. The messenger returned and said he
must have the money. The lawyer testily answered, "Did you tell your
master that I was not running away?"--"Yes, I did, sir; but he bade me
tell you that _he was_."
A well-known barrister at the criminal Bar, who prided himself upon his
skill in cross-examining a witness, had an odd-looking witness upon whom
to operate. "You say, sir, that the prisoner is a thief?"--"Yes,
sir--'cause why, she confessed it."--"And you also swear she did some
repairs for you subsequent to the confession?"--"I do, sir."--"Then,"
giving a knowing look at the Court, "we are to understand that you
employ dishonest people to work for you, even after their rascalities
are known?"--"Of course! How else could I get assistance from a
lawyer?"--"Stand down!" shouted the man of law.
* * * * *
At Worcester Assizes, a cause was tried as to the soundness of a horse,
and a clergyman had been a witness, who gave a very confused account of
the transaction, and the matters he spoke to. A blustering counsel on
the other side, after many attempts to get at the facts, said: "Pray,
sir, do you know the difference between a horse and a cow?"--"I
acknowledge my ignorance," replied the clergyman. "I hardly know the
difference between a horse and a cow, or between a bully and a bull.
Only a bull, I am told, has horns, and a bully," bowing respectfully to
the counsel, "_luckily for me, has none_."
"In Court one day," says Mr. W. Andrews in _The Lawyer_, "I heard the
following sharp encounter between a witness and an exceedingly irascible
old-fashioned solicitor who, among other things, hated the modern custom
of growing a beard or moustache. He himself grew side-whiskers in the
most approved style of half a century ago. "Speak up, witness," he
shouted, "and don't stand mumbling there. If you would shave off that
unsightly moustache we might be better able to hear what was coming out
of your lips." "And if you, sir," said the witness quietly, "would shave
off those side-whiskers you would enable my words to reach your ears.""
"My friend," said an irritable lawyer, "you are an ass."--"Do you mean,
sir," asked the witness, "that I am your friend because I am an ass, or
an ass because I am your friend?"
* * * * *
Counsel sometimes comes to grief in dealing with experts. "Do you,"
asked one of a scientist, "know of a substance called Sulphonylic
Diazotised Sesqui Oxide of Aldehyde?" and he looked round triumphantly.
"Certainly," came the reply. "It is analogous in diatomic composition of
Para Sulpho Benzine Azode Methyl Aniline in conjunction with
Phehekatoline." Counsel said he would pursue the matter no further.
An action was brought by the owner of a donkey which was forced against
a wall by a waggon and killed. The driver of the donkey was the chief
witness, and was much bullied by Mr. Raine, the defendant's counsel, so
that he lost his head and was reprimanded by the judge for not giving
direct answers, and looking the jury in the face. Mr. Raine had a
powerful cast in his eye, which probably heightened the poor fellow's
confusion; and he continued to deal very severely with the witness,
reminding him again and again of the judge's caution, saying: "Hold up
your head, man: look up, I say. Can't you hold up your head, fellow?
Can't you look as I do?" The witness, with much simplicity, at once
answered, "I can't, you squint." On re-examination, Serjeant Cockle for
the plaintiff, seeing gleams of the witness's recovery from his
confusion, asked him to describe the position of the waggon and the
donkey. After much pressing, at last he said, "Well, my lord judge, I'll
tell you as how it happened." Turning to Cockle, he said, "You'll
suppose ye are the wall."--"Aye, aye, just so, go on. I am the wall,
very good."--"Yes, sir, you are the wall." Then changing his position a
little, he said, "I am the waggon."--"Yes, very good; now proceed, you
are the waggon," said the judge. The witness then looked to the judge,
and hesitating at first, but with a low bow and a look of sudden
despair, said, "And your lordship's the ass!"
Serjeant Cockle, who had a rough, blustering manner, once got from a
witness more than he gave. In a trial of a right of fishery, he asked
the witness: "Dost thou love fish?"--"Aye," replied the witness, with a
grin, "but I donna like cockle sauce with it." The learned serjeant was
not pleased with the roar of laughter which followed the remark.
* * * * *
Mr. H. L. Adam in _The Story of Crime_ says he remembers a very amusing
incident in one of our police courts. A prisoner had engaged a solicitor
to defend him, and while the latter was speaking on his behalf he
suddenly broke in with, "Why, he dunno wot the devil he's talking
abaht!" Thereupon the magistrate informed him that if he was
dissatisfied with his advocate's capabilities, he could, if he chose,
defend himself. This he elected to do, and in the end was acquitted, the
magistrate remarking that had the case been left to counsel he would
unquestionably have been convicted.
In cross-examining a witness, says Judge Parry in _What the Judge Saw_,
who had described the effects of an accident, was confronted by counsel
with his statement, and asked, "But hadn't you told the doctor that
your thigh was numb and had no feeling?"--"What's the good o' telling
him anything," replied the witness. "That's where doctor made a mistake.
I told 'im I was numb i' front, and what does he do but go and stick a
pin into my back-side. 'E's no doctor."
From the same source is the following story. Another man was testifying
to an accident that had occurred to him at the works where he was
employed. It was sought to prove that his testimony was false because he
had a holiday that day, and this poser was put to him: "Do you mean to
tell the Court that you came to work when you might have been enjoying a
holiday?"--"Certainly."--"Why did you do that?" The reply was too
obviously truthful. "What should I do? I have nowhere to go. I'm
teetotal now."
A Jew had been condemned to be hanged, and was brought to the gallows
along with a fellow prisoner; but on the road, before reaching the place
of execution, a reprieve arrived for the Jew. When informed of this, it
was expected that he would instantly leave the cart in which he was
conveyed, but he remained and saw his fellow prisoner hanged. Being
asked why he did not at once go about his business, he said, "He was
waiting to see if he could bargain with Mr. Ketch for the _other
gentleman's clothes_!"
* * * * *
A sign-painter presented his bill to a lawyer for payment. After
examining it the lawyer said, "Do you expect any painter will go to
heaven if they make such charges as these?"--"I never heard of but one
that went," said the painter, "and he behaved so badly that they
determined to turn him out, but there being no lawyer present to draw up
the Writ of Ejectment, he remained."
This must be the lawyer who, being refused entrance to heaven by St.
Peter, contrived to throw his hat inside the door; and then, being
permitted to go and fetch it, took advantage of the Saint being fixed to
his post as doorkeeper and refused to come back again.
A solicitor who was known to occasionally exceed the limit at lunch
betrayed so much unsteadiness that the magistrate quickly observed, "I
think, Mr. ----, you are not quite well, perhaps you had a little too
much wine at lunch."--"Quite a mistake, your worship," hiccoughed Mr.
----. "It was brandy and water."
The son-in-law of a Chancery barrister having succeeded to the lucrative
practice of the latter, came one morning in breathless haste to inform
him that he had succeeded in bringing nearly to its termination a cause
which had been pending in the Court for several years. Instead of
obtaining the expected congratulations of the retired veteran of the
law, his intelligence was received with indignation. "It was by this
suit," exclaimed he, "that my father was enabled to provide for me, and
to portion your wife, and with the exercise of common prudence it would
have furnished you with the means of providing handsomely for your
children and grandchildren."
CHAPTER THREE
THE JUDGES OF IRELAND
"So slow is justice in its ways
Beset by more than customary clogs,
Going to law in these expensive days
Is much the same as going to the dogs."
WILLOCK: _Legal Facetiæ_.
CHAPTER THREE
THE JUDGES OF IRELAND
In the days of Queen Anne corruption was rife among Irish judges, as it
was also among members of the Scottish Bench at an earlier period, and
it was not uncommon to find the former concurring in Privy Council
reports issued contrary to evidence. Within the area of the Munster
Circuit in the early years of the eighteenth century a petition was
signed and presented to Parliament by clergy, resident gentry, and
others in the district, because Lord Chancellor Phipps refused to be
influenced in his decision of cases coming before him, and had thereby
incurred the displeasure of a certain section of the Irish Parliament.
Even a Lord Chief Justice was not above taking a gift; and in this
connection O'Flanagan in _The Munster Circuit_ tells a story of Chief
Justice Pyne, who was a great cattle-breeder and owner of valuable
stock. One day before starting for Cork Assizes to try a case in which a
Mr. Weller and a Mr. Nangle were concerned, he received a visit from the
former's steward, who had been sent with a herd of twenty-five splendid
heifers for his lordship. The judge was highly pleased, and returned by
the steward a gracious message of thanks to his master. On the way to
Cork the Chief Justice's coach was stopped by a drove of valuable
shorthorns on the road. Looking out, his lordship demanded of the
drover, "Whose beasts are these, my man?"--"They belong, please your
honour, to a great gentleman of these parts, Judge Pyne, your honour,"
replied the man. "Indeed," cried the Chief Justice in much surprise,
"and where are you taking them now?"--"They are grazing in my master Mr.
Nangle's farm, your honour; and as the Assizes are coming on at Cork my
master thought the judge might like to see that he took good care of
them, so I'm taking them to Waterpark (his lordship's estate) to show to
the judge." The judge felt the delicacy of Mr. Nangle's mode of giving
his present, and putting a guinea in the drover's hand said, "As your
master has taken such good care of my cattle, I will take care of him."
When the case came on it appeared at first that the judge favoured the
plaintiff, Mr. Weller, but as it proceeded he changed his views and
finally decided for the defendant, Mr. Nangle. On arriving home the
judge's first question was, "Are the cattle all safe?"--"Perfectly, my
lord."--"Where are the beasts I received on leaving for the Cork
Assizes?"--"They are where you left them, my lord."--"Where I left
them--that is impossible," exclaimed the judge. "I left them on the
road." The steward looked puzzled. "I'll have a look at them myself,"
said Chief Justice Pyne. The steward led the way, and pointed out the
twenty-five fine heifers presented by Mr. Weller, the plaintiff. "But
where are the shorthorns that came after I left home?"--"Bedad, the
long and the short of it is, them's all the cattle on the land, except
what we have bred ourselves, my lord." And so it was. Mr. Nangle, the
defendant, had so arranged his gift to meet the judge on the road, but
as soon as his lordship's coach was out of sight the cattle were driven
back to their familiar fields. The Chief Justice had been outwitted and
had no power of showing resentment.
In the manners and customs of the legal profession of Ireland in the
latter part of the eighteenth century, there is also a strong similarity
between the members of the Scottish Bench and their Irish brethren, in
that they were heavy port drinkers; and did not hesitate to indulge in
it while sitting on the Bench. It is reported of one Irish judge that he
had a specially constructed metal tube like a penholder, through which
he sucked his favourite liquor, from what appeared to the audience to be
a metal inkstand. Another judge on being asked if, at a social
gathering, he had seen a learned brother dance, "Yes," he replied, "I
saw him in a _reel_"; while Curran referring to a third judge, who had
condemned a prisoner to death, said, "He did not weep, but he had a drop
in his eye."
* * * * *
Unblushing effrontery and a bronzed visage gained for John Scott (Lord
Clonmel) while at the Bar the sobriquet of "Copper-faced Jack." He took
the popular side in politics, which ordinarily would not have led to
promotion in his profession; but his outstanding ability attracted the
attention of Lord Chancellor Lifford, and through his influence Scott
was offered a place under the Government. On accepting it at the hands
of Lord Townshend, he said, "My lord, you have spoiled a good patriot."
Some time after he met Flood, a co-patriot, and addressed him: "Well, I
suppose you will be abusing me as usual." To which Flood replied: "When
I began to abuse you, you were a briefless barrister; by abuse I made
you counsel to the revenue, by abuse I got you a silk gown, by abuse I
made you Solicitor-General, by abuse I may make you Chief Justice. No,
Scott, I'll praise you."
When Lord Clonmel was Lord Chief Justice he upheld the undignified
practice of demanding a shilling for administering an oath, and used to
be well satisfied, provided the coin was a _good one_. In his time the
Birmingham shilling was current, and he used the following extraordinary
precautions to avoid being imposed upon by taking a bad one. "You shall
true answer make to such questions as shall be demanded of you touching
this affidavit, so help you God! _Is this a good shilling?_ Are the
contents of this affidavit true? Is this your name and handwriting?"
* * * * *
The family of Henn belonging to Clare have been, generation after
generation, since the first of the name became Chief Baron in 1679,
connected with the Irish Bench and Bar. William Henn, a descendant of
the Chief Baron, was made a Judge of the King's Bench in 1767, and when
on Circuit at Wexford in 1789 two young barristers contended before him
with great zeal and pertinacity, each flatly contradicting the other as
to the law of the case; and both at each turn of the argument again and
again referred with exemplary confidence to the learned judge, as so
well knowing that what was said by him (the speaker) was right. The
judge said, "Well, gentlemen, can I settle this matter between you? You,
sir, say positively the law is one way; and you, sir (turning to the
opponent), as unequivocally say it is the other way. I wish to God,
Billy Harris (leaning over and addressing the registrar who sat beneath
him), I knew what the law really was!"--"My lord," replied Billy Harris,
rising, and turning round with great gravity and respect, "if I
possessed that knowledge, I assure your lordship that I would tell your
lordship with great pleasure!"--"Then," exclaimed the judge, "we'll save
the point, Billy Harris!"
Although more appropriate in the following chapter, we may here
introduce a story of the younger son of the Judge Henn of the previous
story. Jonathan, who was more distinguished than his elder
brother--another Judge Henn--did not attain to the Bench. In early
years he was indifferent whether briefs were given him or not, and
indeed on one occasion he is said to have sent a message to the
Attorney-General, who had called to engage him in a case, to keep "his
d--d brief and to take himself to the d--l." But later he became very
industrious, and his natural ability soon brought him into a large and
lucrative practice. He was counsel for the Government at the trial of
John Mitchell, and at its close the wags of the Court declared that
"Judge Moore _spoke_ to the evidence, but Jonathan Henn _charged the
jury_."
* * * * *
[Illustration: HUGH CARLETON, VISCOUNT CARLETON, LORD CHIEF JUSTICE OF
IRELAND.]
Chief Justice Carleton was a most lugubrious judge, and was always
complaining of something or other, but chiefly about the state of his
health, so that Curran remarked that it was strange the old judge was
_plaintive_ in every case tried before him.
One day his lordship came into Court very late, looking very woeful. He
apologised to the Bar for being obliged to adjourn the Court at once and
dismiss the jury for that day. "Though," his lordship added, "I am aware
that an important issue stands for trial. But, the fact is, gentlemen
(addressing the Bar in a low tone of voice and somewhat confidentially),
I have met with a domestic misfortune, which has altogether deranged my
nerves. Poor Lady Carleton has, most unfortunately, miscarried,
and--." "Oh, then, my lord," exclaimed Curran, "I am sure we are all
quite satisfied your lordship has done right in deciding there is no
_issue_ to try to-day." His lordship smiled a ghastly smile, and,
retiring, thanked the Bar for their sympathy.
* * * * *
Judge Foster was trying five prisoners for murder, and misunderstood the
drift of the evidence. Four of the prisoners seem to have assisted, but
a witness said as to the fifth, Denis Halligan, that it was he who gave
the fatal blow: "My lord, I saw Denis Halligan (that's in the dock
there) take a vacancy (Irish word for 'aim' at an unguarded part) at the
poor soul that's kilt, and give him a wipe with a _clehalpin_ (Irish
word for 'bludgeon'), and lay him down as quiet as a child." They were
found guilty. The judge, sentencing the first four, gave them seven
years' imprisonment. But when he came to Halligan, who really killed the
deceased, the judge said, "Denis Halligan, I have purposely reserved the
consideration of your case to the last. Your crime is doubtless of a
grievous nature, yet I cannot avoid taking into consideration the
mitigating circumstances that attend it. By the evidence of the witness
it clearly appears that _you_ were the only one of the party who showed
any mercy to the unfortunate deceased. You took him to a vacant seat,
and wiped him with a clean napkin, and you laid him down with the
gentleness one shows to a little child. In consideration of these
extenuating circumstances, which reflect some credit upon you, I shall
inflict upon you three weeks' imprisonment." So Denis Halligan got off
by the judge mistaking a vacancy for a vacant seat, and a _clehalpin_
for a clean napkin.
John Toler (Lord Norbury) was Chief Justice of the Common Pleas in
Ireland. His humour was broad, and his absolute indifference to
propriety often saved the situation by converting a serious matter into
a wholly ludicrous one. His Court was in constant uproar, owing to his
noisy jesting, and like a noted old Scottish judge he would have his
joke when the life of a human being was hanging in the balance. Even on
his own deathbed he could not resist the impulse. On hearing that his
friend Lord Erne was also nearing his end at the same time, he called
for his valet: "James," said Lord Norbury, "run round to Lord Erne and
tell him with my compliments that it will be a _dead_-heat between us."
The best illustration of the almost daily condition of things when Lord
Norbury presided at Nisi Prius is given by himself in his reply to the
answer of a witness. "What is your business?" asked the judge. "I keep a
_racquet-court_, my lord."--"So do I, so do I," immediately exclaimed
the judge. Nor did he reserve his _bon mots_ for Court merriment.
Passing the Quay on his way to the Four Courts one morning, he noticed a
crowd and inquired of a bystander the cause of it. On being told that a
tailor had just been rescued from attempted suicide by drowning, his
lordship exclaimed, "What a fool to leave his _hot goose_ for a _cold
duck_." The boastful statement of a gentleman in his company that he had
shot seventy hares before breakfast drew from the Chief Justice the
sarcastic remark, "I suppose, sir, you fired at a wig."
A son of a peer having been accused of arson, of which offence he was
generally believed guilty, but acquitted on a point of insufficiency of
evidence to sustain the indictment, was tried before Lord Norbury. The
young gentleman met the judge next at the Lord-Lieutenant's levee in the
Castle. Instead of avoiding the Chief Justice, the scion of nobility
boldly said, "I have recently married, and have come here to enable me
to present my bride at the Drawing-Room."--"Quite right to mind the
Scripture. Better marry than burn," retorted Lord Norbury.
A barrister once pressed him to non-suit the plaintiff in a case; but
his lordship decided to let it go to a jury trial. "I do believe," said
the disappointed advocate, "your lordship has not the _courage to
non-suit_."--"You say, sir," replied the irate judge, "you don't believe
I'd have the courage to non-suit. I tell you I have courage to _shoot_
and to _non-shoot_, but I'll not non-suit for you." This same counsel
was once horsewhipped by an army officer at Nelson's Pillar in Sackville
Street, and applied for a Criminal Information against his assailant.
"Certainly he shall have it," said the witty judge. "The Court is bound
to give protection to any one who has _bled under the gallant Nelson_."
On a motion before this judge, a sheriff's officer, who had the
hardihood to serve a process in Connemara, where the king's writ _did
not run_, swore that the natives made him eat and swallow both copy and
original. Norbury, affecting great disgust, exclaimed: "Jackson,
Jackson, I hope it's not made returnable into this Court."
While giving a judgment on a writ of right, Lord Norbury observed that
it was not sufficient for a demandant to say he "claimed by descent."
"Such an answer," he continued, "would be a shrewd one for a sweep, who
got into your house by coming down the chimney; and it would be an easy,
as well as a sweeping, way of getting in."
His lordship was attacked by a fit of gout when on Circuit, and sent to
the Solicitor-General requesting the loan of a pair of large slippers.
"Take them," said the Solicitor to the servant, "with my respects, and I
hope soon to be in his lordship's shoes."
At the instigation of O'Connell, Lord Norbury was finally removed from
the Bench. A flagrant case of partiality was brought to Lord Brougham's
notice which exasperated Lord Norbury, and he is reported to have said,
"I'll resign to demand satisfaction. That Scottish Broom wants to be
made acquainted with an Irish stick."
* * * * *
Two notorious highwaymen were charged before Chief Baron O'Grady with
robbery, and to the surprise of all the jury returned a verdict of not
guilty. "Mr. Murphy," said the judge to the gaoler, "you will greatly
ease my mind by keeping these two respectable gentlemen in custody until
seven o'clock. I leave for Dublin at five, and I should like to have at
least two hours' start of them." There is also the story of a barrister
who made an eloquent speech and got his client off, but he was very
anxious to know whether the prisoner was guilty or not. "Well, sir,"
said the man when applied to, "to tell the truth I thought I was guilty
until I heard you speak, and then I didn't see how I could be." This at
once recalls an old story. "Prisoner, I understand you confess your
guilt," said the judge. "No, I don't," said the prisoner. "My counsel
has convinced me of my innocence."
On hearing that some spendthrift barristers, friends of his, were
appointed to be Commissioners of Insolvent Debtors the Chief Baron
remarked, "At all events, the insolvents can't complain of not being
tried by their peers." It was the same judge who caustically observed,
after a long and dull legal argument: "I agree with my brother J----,
for the reasons given by my brother M----." A prisoner once was given a
practical specimen of his lordship's wit, and must have been rather
distressed by it. He was passing sentence upon a pickpocket, and
ordering a punishment common at that time. "You will be whipped from
North Gate to South Gate," said the judge. "Bad luck to you, you old
blackguard," said the prisoner. "--And back again," said the Chief
Baron, as if he had been interrupted in the delivery of the sentence.
A cause of much celebrity was tried at a county Assize, at which Chief
Baron O'Grady presided. Bushe, then a K.C., who held a brief for the
defence, was pleading the cause of his client with much eloquence, when
a donkey in the courtyard outside set up a loud bray. "One at a time,
brother Bushe!" called out his lordship. Peals of laughter filled the
Court. The counsel bore the interruption as best he could. The judge was
proceeding to sum up with his usual ability: the donkey again began to
bray. "I beg your lordship's pardon," said Bushe, putting his hand to
his ear; "but there is such an echo in the Court that I can't hear a
word you say."
In his charges to juries, O'Grady frequently made some quaint remarks.
There was a Kerry case in which a number of men were indicted for riot
and assault. Several of them bore the familiar names of O'Donoghue,
Moriarty, Duggan, &c., while among the jurymen these names were also
found. Well knowing that consanguinity was prevalent in the district,
the judge began his address to the jury with the significant remark: "Of
course, gentlemen, you will acquit your own relatives." In another case
of larceny of pantaloons which was clearly proved, but in which the
thief got a good character for honesty, he began: "Gentlemen, the
prisoner was an honest boy, but he stole the pantaloons."
"I merely wish to address your lordship on the form of the indictment,
if your lordship pleases," said a young barrister to the Chief Baron.
"Oh, certainly, I will hear you with mighty great pleasure, sir; but
I'll be after taking the verdict of the jury first," was the sarcastic
reply.
The brother of Chief Baron O'Grady once caught a boy stealing turnips
from one of his fields and asked his lordship if the culprit could be
prosecuted under the Timber Acts. "No," said the Chief Baron, "unless
you can prove that your turnips are sticky."
* * * * *
Yelverton, first Baron Avonmore, possessed remarkable rhetorical
ability and a highly cultivated mind. He rose rapidly at the Bar, until
he became Chief Baron of Exchequer. He was the founder of the convivial
order of St. Patrick, called "The Monks of the Screw," of which Curran,
who wrote its charter song, was Prior. Avonmore was a man of warm and
benevolent feelings, which he gave vent to in an equal degree in private
life, in the senate, and on the Bench.
Before giving an anecdote of Lord Avonmore it may interest readers,
especially English and Scottish, to quote here the charter song of this
famous Irish convivial club of the eighteenth century.
THE CHARTER SONG OF THE
MONKS OF THE SCREW
When St. Patrick this order establish'd,
He called us the "Monks of the Screw"!
Good rules he reveal'd to our Abbot,
To guide us in what we should do.
But first he replenish'd our fountain,
With liquor the best in the sky;
And he swore on the word of a saint
That the fountain should never run dry.
Each year when your octaves approach,
In full chapter convened let me find you,
And when to the convent you come
Leave your favourite temptation behind you;
And be not a glass in your convent,
Unless on a festival found;
And this rule to enforce I ordain it,
Our festival all the year round.
My brethren, be chaste till you're tempted;
While sober be grave and discreet;
And humble your bodies with fasting,
As oft as you've nothing to eat.
Yet, in honour of fasting, one lean face
Among you I'll always require,
If the Abbot should please he may wear it--
If not, let it come to the Prior.
The last two lines hit off the appearance of the Abbot, a Mr. Doyle, and
of the Prior, J. P. Curran. The former was a big burly man with a fat,
jovial face, while Curran was a short and particularly spare man whose
"lean face" always attracted attention.
On a Lent Circuit, one of the Assize towns happened to be a place, of
which one of Lord Avonmore's college contemporaries held a living: at
his own request, the Chief Baron's reverend friend preached the Assize
sermon. The time being the month of March the weather was cold, the
judge was chilled, and unhappily the sermon was long, and the preacher
tedious. After the discourse was over, the preacher descended from the
pulpit and approached the judge, smirking and smiling, looking fully
satisfied with his own exertions, and expecting to receive the
compliments and congratulations of his quondam chum. "Well, my lord,"
he asked, "and how did you like the sermon?"--"Oh! most wonderfully,"
replied Avonmore. "It was like the peace of God--it passed all
understanding; and--like his mercy--I thought it would have endured for
ever."
* * * * *
When Plunket was at the Bar his great friend and rival was C. K. Bushe.
The former was Attorney-General at the same time as the latter was
Solicitor-General, and it caused him much dissatisfaction when Plunket
learned that on a change of Government Solicitor-General Bushe had not
followed his example and resigned office. At the time this occurred both
barristers happened to be engaged in a case at which, when it was
called, Bushe only appeared. On the judge inquiring of Mr. Bushe if he
knew the reason of Mr. Plunket's absence his friend jocosely remarked,
"I suppose, my lord, he is Cabinet-making." This pleasantry, at his
expense, was told to Plunket by a friend, when he arrived in Court, on
which, turning to the judge, the ex-Attorney-General proudly said, "I
assure your lordship I am not so well qualified for Cabinet-making as my
learned friend. I never was either a _turner_ or a _joiner_."
Two eminent Irish astronomers differed in an argument on the parallax of
a lyræ--the one maintaining that it was three seconds, and the other
that it was only two seconds. On being told of this discussion, and
that the astronomers parted without arriving at an agreement, Plunket
quietly remarked: "It must be a very serious quarrel indeed, when even
the seconds cannot agree."
Once applying the common expression to accommodation bills of exchange,
that they were _mere kites_, the judge, an English Chancellor, said "he
never heard that expression applied before to any but the kites of
boys."--"Oh," replied Plunket, "that's the difference between kites in
England and in Ireland. In England the wind raises the kite, but in
Ireland the kite raises the wind."
Everybody (says Phillips) knew how acutely Plunket felt his forced
resignation of the chancellorship, and his being superseded by Lord
Campbell. A violent storm arose on the day of Campbell's expected
arrival, and a friend remarking to Plunket how sick of his promotion the
passage must have made the new Chancellor: "Yes," said the former,
ruefully, "but it won't make him throw up the seals."
* * * * *
Mr. Frankfort Moore, in his _Journalist's Notebook_, relates how Justice
Lawson summed up in the case of a man who was charged with stealing a
pig. The evidence of the theft was quite conclusive, and, in fact, was
not combated; but the prisoner called the priests and neighbours to
attest to his good character. "Gentlemen of the jury," said the judge,
"I think that the only conclusion you can arrive at is, that the pig was
stolen by the prisoner, and that he is the most amiable man in the
country."
CHAPTER FOUR
THE BARRISTERS OF IRELAND
"'Men that hire out their words and anger'; that are more or
less passionate according as they are paid for it, and allow
their client a quantity of wrath proportionable to the fee
which they receive from him."
ADDISON: _The Spectator_.
CHAPTER FOUR
THE BARRISTERS OF IRELAND
The Irish counsel like the occupants of the Bench were, in early times,
eminent for their jolly carousing. Once, about 1687, a heavy argument
coming on before Lord Chancellor Fitton, Mr. Nagle, the solicitor,
retained Sir Toby Butler as counsel, who entered into a bargain that he
would not drink a drop of wine while the case was at hearing. This
bargain reached the ears of the Chancellor, who asked Sir Toby if it was
true that such a compact had been made. The counsel said it was true,
and the bargain had been rigidly kept; but on further inquiry he
admitted that as he had only promised not to _drink_ a _drop_ of wine,
he felt he must have some stimulant. So he got a basin, into which he
poured two bottles of claret, and then got two hot rolls of bread,
sopped them in the claret and ate them. "I see," replied the Chancellor;
"in truth, Sir Toby, you deserve to be master of the rolls!"
* * * * *
[Illustration: JOHN P. CURRAN, MASTER OF ROLLS.]
One naturally turns to Curran for a selection of the witty sayings of
the Irish Bar, and abundantly he supplies them, although in these days
many of his jests may be considered as in somewhat doubtful taste.
Phillips tells us he remembered Curran once--in an action for breach of
promise of marriage, in which he was counsel for the defendant, a young
clergyman--thus appealing to the jury: "Gentlemen, I entreat you not to
ruin this young man by a vindictive verdict; for _though_ he has
talents, and is in the Church, _he may rise_!"
After his college career Curran went to London to study for the
Bar. His circumstances were often straitened, and at times so much
so that he had to pass the day without dinner. But under such
depressing circumstances his high spirits never forsook him. One
day he was sitting in St. James's Park merrily whistling a tune
when a gentleman passed, who, struck by the youth's melancholy
appearance while, at the same time, he whistled a lively air, asked
how he "came to be sitting there whistling while other people were
at dinner." Curran replied, "I would have been at dinner too, but a
trifling circumstance--delay in remittances--obliges me to dine on
an Irish tune." The result was that Curran was invited to dine with
the stranger, and years afterwards, when he had become famous, he
recalled the incident to his entertainer--Macklin, the celebrated
actor--with the assurance, "You never acted better in your life."
From Phillips again we have Curran's retort upon an Irish judge, who was
quite as remarkable for his good humour and raillery as for his legal
researches. Curran was addressing a jury on one of the State trials in
1803 with his usual animation. The judge, whose political bias, if any
judge can have one, was certainly supposed not to be favourable to the
prisoner, shook his head in doubt or denial of one of the advocate's
arguments. "I see, gentlemen," said Curran, "I see the motion of his
lordship's head; common observers might imagine that implied a
difference of opinion, but they would be mistaken; it is merely
accidental. Believe me, gentlemen, if you remain here many days, you
will yourselves perceive that when his lordship shakes his head, there's
_nothing in it_!"
Curran was one day engaged in a case in which he had for a junior a
remarkably tall and slender gentleman, who had been originally intended
to take orders. The judge observing that the case under discussion
involved a question of ecclesiastical law, Curran interposed with: "I
refer your lordship to a high authority behind me, who was once intended
for the Church, though in my opinion he was fitter for the steeple."
He was one day walking with a friend, who, hearing a person say
"curosity" for "curiosity," exclaimed: "How that man murders the English
language!"--"Not so bad as that," replied Curran. "He has only knocked
an 'i' out."
Curran never joined the hunt, except once, not far from Dublin. His
horse joined very keenly in the sport, but the horseman was inwardly
hoping all the while that the dogs would not find. In the midst of his
career, the hounds broke into a potato field of a wealthy land-agent,
who happened to have been severely cross-examined by Curran some days
before. The fellow came up patronisingly and said, "Oh sure, you are
Counsellor Curran, the great lawyer. Now then, Mr. Lawyer, can you tell
me by what law you are trespassing on my ground?"--"By what law, did you
ask, Mr. Maloney?" replied Curran. "It must be the _Lex Tally-ho-nis_,
to be sure."
During one of the Circuits, Curran was dining with a brother advocate at
a small inn kept by a worthy woman known by the Christian name of
Honoria, or, as it is generally called, Honor. The gentlemen were so
pleased with their entertainment that they summoned Honor to receive
their compliments and drink a glass of wine with them. She attended at
once, and Curran after a brief eulogium on the dinner filled a glass,
and handing it to the landlady proposed as a toast "Honor and Honesty,"
to which the lady with an arch smile added, "Our absent friends," drank
off her amended toast and withdrew.
He happened one day to have for his companion in a stage-coach a very
vulgar and revolting old woman, who seemed to have been encrusted with a
prejudice against Ireland and all its inhabitants. Curran sat chafing in
silence in his corner. At last, suddenly, a number of cows, with their
tails and heads in the air, kept rushing up and down the road in
alarming proximity to the coach windows. The old woman manifestly was
but ill at ease. At last, unable to restrain her terror, she faltered
out, "Oh dear; oh dear, sir! what can the cows mean?"--"Faith, my good
woman," replied Curran, "as there's an Irishman in the coach, I
shouldn't wonder if they were on the outlook for _a bull_!"
Curran was once asked what an Irish gentleman, just arrived in England,
could mean by perpetually putting out his tongue. "I suppose," replied
the wit, "he's trying _to catch the English accent_."
During the temporary separation of Lord Avonmore and Curran, Egan
espoused the judge's imaginary quarrel so bitterly that a duel was the
consequence. The parties met, and on the ground Egan complained that the
disparity in their sizes gave his antagonist a manifest advantage. "I
might as well fire at a razor's edge as at him," said Egan, "and he may
hit me as easily as a turf-stack."--"I'll tell you what, Mr. Egan,"
replied Curran; "I wish to take no advantage of you--let my _size_ be
_chalked_ out upon your side, and I am quite content that every shot
which hits outside that mark should _go for nothing_." And in another
duel, in which his opponent was a major who had taken offence at some
remark the eminent counsel had made about him in Court, the major asked
Curran to fire first. "No," replied Curran, "I am here on your
invitation, so you must _open the ball_."
Sir Thomas Furton, who was a respectable speaker, but certainly nothing
more, affected once to discuss the subject of eloquence with Curran,
assuming an equality by no means palatable to the latter. Curran
happening to mention, as a peculiarity of his, that he could not speak
above a quarter of an hour without requiring something to moisten his
lips, Sir Thomas, pursuing his comparisons, declared _he_ had the
advantage in that respect. "I spoke," said he, "the other night in the
Commons for five hours on the Nabob of Oude, and never felt in the least
thirsty."--"It is very remarkable, indeed," replied Curran, "for
everyone agrees that was the _driest_ speech of the session."
Lord Clare (says Mr. Hayward) had a favourite dog which was permitted to
follow him to the Bench. One day, during an argument of Curran's, the
Chancellor turned aside and began to fondle the dog, with the obvious
view of intimating inattention or disregard. The counsel stopped; the
judge looked up: "I beg your pardon," continued Curran, "I thought your
lordship had been in consultation."
Curran often raised a laugh at Lord Norbury's expense. The laws, at that
period, made capital punishment so general that nearly all crimes were
punishable with death by the rope. It was remarked Lord Norbury never
hesitated to condemn the convicted prisoner to the gallows. Dining in
company with Curran, who was carving some corned beef, Lord Norbury
inquired, "Is that hung beef, Mr. Curran?"--"Not yet, my lord," was the
reply; "you have not _tried_ it."
"A doldrum, Mr. Curran! What does the witness mean by saying you put him
in a doldrum?" asked Lord Avonmore. "Oh, my lord, it is a very common
complaint with persons of this description; it's merely a confusion of
the head arising from a corruption of the heart."
Angered one day in debate, he put his hand on his heart, saying, "I am
the trusty guardian of my own honour."--"Then," replied Sir Boyle Roche,
"I congratulate my honourable friend in the snug little sinecure to
which he has appointed himself."
But on one occasion he met his match in a pert, jolly, keen-eyed son of
Erin, who was up as a witness in a case of dispute in the matter of a
horse deal. Curran was anxious to break down the credibility of this
witness, and thought to do it by making the man contradict himself--by
tangling him up in a network of adroitly framed questions--but to no
avail. The ostler's good common sense, and his equanimity and good
nature, were not to be upset. Presently, Curran, in a towering rage,
thundered forth, as no other counsel would have dared to do in the
presence of the Court: "Sir, you are incorrigible! The truth is not to
be got from you, for it is not in you. I see the villain in your
face!"--"Faith, yer honour," replied the witness, with the utmost
simplicity of truth and honesty, "my face must be moighty clane and
shinin' indade, if it can reflect like that." For once in his life the
great barrister was floored by a simple witness. He could not recover
from that repartee, and the case went against him.
When Curran heard that there was a likelihood of trouble for the part he
took in 1798, and that in all probability he would be deprived of the
rank of Q.C., he remarked: "They may take away the _silk_, but they
leave the _stuff_ behind."
* * * * *
"Bully" Egan had a great muscular figure, as may be guessed from the
story of the duel with Curran. To his bulk he added a stentorian voice,
which he freely used in Nisi Prius practice to browbeat opposing counsel
and witnesses, and through which he acquired his _sobriquet_. On one
occasion his opponent was a dark-visaged barrister who had made out a
good case for his client. Egan, in the course of an eloquent address,
begged the jury not to be carried away by the "dark oblivion of a
brow."--"What do you mean by using such balderdash?" said a friend. "It
may be balderdash," replied Egan, "but depend upon it, it will do very
well for that jury." On another occasion he concluded a vituperative
address by describing the defendant as "a most naufrageous
ruffian."--"What sort of a ruffian is that?" whispered his junior. "I
have no idea," responded Egan, "but I think _it sounds well_."
* * * * *
H. D. Grady was a strong supporter, in the Irish Parliament, of the
Union of Great Britain and Ireland, although he represented a
constituency strongly opposed to it; and he did not conceal the fact
that the Government had made it worth his while to support them. "What!"
exclaimed one of his constituents who remonstrated with him; "do you
mean to sell your country?"--"Thank God," cried this patriot, "I have a
country to sell."
For his Court work this anti-Nationalist barrister had what he called
his "jury-eye." When he wanted a jury to note a particular point he kept
winking his right eye at them. Entering the Court one day looking very
depressed, a sympathetic friend asked if he was quite well, adding, "You
are not so lively as usual."--"How can I be," replied Grady, "my
jury-eye is out of order."
He was examining a foreign sailor at Cork Assizes. "You are a Swede, I
believe?"--"No, I am not."--"What are you then?"--"I am a Dane." Grady
turned to the jury, "Gentlemen, you hear the equivocating scoundrel. _Go
down, sir!_"
Judge Boyd who, according to O'Connell, was guilty of sipping his wine
through a peculiarly made tube from a metal inkstand, to which we have
already referred, one day presided at a trial where a witness was
charged with being intoxicated at the time he was speaking about. Mr.
Harry Grady laboured hard to show that the man had been sober. Judge
Boyd at once interposed and said: "Come now, my good man, it is a very
important consideration; tell the Court truly, were you drunk or were
you sober upon that occasion?"--"Oh, quite sober, my Lord." Grady added,
with a significant look at the _inkstand_, "As sober as a judge!"
* * * * *
Mr. Bethell, a barrister at the time of the Union of Ireland and Great
Britain, like many of his brethren, published a pamphlet on that
much-vexed subject. Mr. Lysaght, meeting him, said: "Bethell, you never
told me you had published a pamphlet on the Union. The one I saw
contained some of the best things I have ever seen in any of these
publications."--"I am proud you think so," rejoined the other eagerly.
"Pray what was the thing that pleased you so much?"--"Well," replied
Lysaght, "as I passed a pastry-cook's shop this morning, I saw a girl
come out with three hot mince-pies wrapped up in one of your
productions!"
"Pleasant Ned Lysaght," as his familiar friends called him, meeting a
Dublin banker one day offered himself as an assistant if there was a
vacancy in the bank's staff. "You, my dear Lysaght," said the banker;
"what position could you fill?"--"Two," was the reply. "If you made me
_cashier_ for one day, I'll become _runner_ the next."
And it was Lysaght who made a neat pun on his host's name at a dinner
party during the Munster Circuit. The gentleman, named Flatly, was in
the habit of inviting members of the Bar to his house when the Court was
held in Limerick. One evening the conversation turned upon matrimony,
and surprise was expressed that their host still remained a bachelor. He
confessed that he never had had the courage to propose to a young lady.
"Depend upon it," said Lysaght, "if you ask any girl _boldly_ she will
not refuse you, _Flatly_."
* * * * *
O'Flanagan, author of _The Lord Chancellors of Ireland_, writes of
Holmes, an Irish barrister: "He made us laugh very much one day in the
Queen's Bench. I was waiting for some case in which I was counsel, when
the crier called, 'Pluck and Diggers,' and in came James Scott, Q.C.,
very red and heated, and, throwing his bag on the table within the bar,
he said, 'My lords, I beg to assure your lordships I feel so exhausted I
am quite unable to argue this case. I have been speaking for three hours
in the Court of Exchequer, and I am quite tired; and pray excuse me, my
lords, I must get some refreshment.' The Chief Justice bowed, and said,
'Certainly, Mr. Scott.' So that gentleman left the Court. 'Mr. Holmes,
you are in this case,' said the Chief Justice; 'we'll be happy to hear
you.'--'Really, my lord, I am very tired too,' said Mr. Holmes.
'Surely,' said the Chief Justice, 'you have not been speaking for three
hours in the Court of Exchequer? What has tired you?'--'Listening to Mr.
Scott,' was Holmes' sarcastic reply."
* * * * *
Although rivals in their profession, C. K. Bushe had a great admiration
for Plunket's abilities, and would not listen to any disparagement of
them. One day while Plunket was speaking at the Bar a friend said to
Bushe, "Well, if it was not for the eloquence, I'd as soon listen to
----," who was a very prosy speaker. "No doubt," replied Bushe, "just as
the Connaught man said, ''Pon my conscience if it was not for the malt
and the hops, I'd as soon drink ditch water as porter.'"
There is an impromptu of Bushe's upon two political agitators of the day
who had declined an appeal to arms, one on account of his wife, the
other from the affection in which he held his daughter:
"Two heroes of Erin, abhorrent of slaughter,
Improved on the Hebrew command--
One honoured his wife, and the other his daughter,
That 'their' days might be long in 'the land.'"
A young barrister once tried to raise a laugh at the Mess dinner at the
expense of "Jerry Keller," a barrister who was prominent in social
circles of Dublin, and whose cousin, a wine merchant, held the contract
for supplying wine to the Mess cellar. "I have noticed," said the
junior, "that the claret bottles are growing smaller and smaller at each
Assizes since your cousin became our wine merchant."--"Whist!" replied
Jerry; "don't you be talking of what you know nothing about. It's quite
natural the bottles should be growing smaller, because we all know _they
shrink in the washing_."
An ingenious expedient was devised to save a prisoner charged with
robbery in the Criminal Court at Dublin. The principal thing that
appeared in evidence against him was a confession, alleged to have been
made by him at the police office. The document, purporting to contain
this self-criminating acknowledgment, was produced by the officer, and
the following passage was read from it:
"Mangan said he never robbed but twice
Said it was Crawford."
This, it will be observed, has no mark of the writer having any notion
of punctuation, but the meaning attached to it was, that
"Mangan said he never robbed but twice.
_Said it was Crawford._"
Mr. O'Gorman, the counsel for the prisoner, begged to look at the paper.
He perused it, and rather astonished the peace officer by asserting,
that so far from its proving the man's guilt, it clearly established his
innocence. "This," said the learned gentleman, "is the fair and obvious
reading of the sentence:
"Mangan said he never robbed;
_But twice said it was Crawford_."
This interpretation had its effect on the jury, and the man was
acquitted.
* * * * *
There were two barristers at the Irish Bar who formed a singular
contrast in their stature--Ninian Mahaffy was as much above the middle
size as Mr. Collis was below it. When Lord Redsdale was Lord Chancellor
of Ireland these two gentlemen chanced to be retained in the same cause
a short time after his lordship's elevation, and before he was
personally acquainted with the Irish Bar. Mr. Collis was opening the
motion, when the Lord Chancellor observed, "Mr. Collis, when a barrister
addresses the Court, he must stand."--"I am standing on the bench, my
lord," said Collis. "I beg a thousand pardons," said his lordship,
somewhat confused. "Sit down, Mr. Mahaffy."--"I am sitting, my lord,"
was the reply to the confounded Chancellor.
A barrister who was present on this occasion made it the subject of the
following epigram:
"Mahaffy and Collis, ill-paired in a case,
Representatives true of the rattling size ace;
To the heights of the law, though I hope you will rise,
You will never be judges I'm sure of a(s)size."
A very able barrister, named Collins, had the reputation of occasionally
involving his adversary in a legal net, and, by his superior subtlety,
gaining his cause. On appearing in Court in a case with the eminent
barrister, Mr. Pigot, Q.C., there arose a question as to who should be
leader, Mr. Collins being the senior in standing at the Bar, Mr. Pigot
being one of the Queen's Counsel. "I yield," said Mr. Collins; "my
friend holds the honours."--"Faith, if he does, Stephen," observed Mr.
Herrick, "'tis you have all the tricks."
* * * * *
[Illustration: DANIEL O'CONNELL, "THE LIBERATOR."]
It is told by one of O'Connell's biographers that he never prepared his
addresses to judges or juries--he trusted to the inspiration of the
moment. He had at command humour and pathos, invective and argument; he
was quick-witted and astonishingly ready in repartee, and he brought all
these into play, as he found them serviceable in influencing the bench
or the jury-box.
Lord Manners, Lord Chancellor of Ireland, stopped several of the many
counsels in a Chancery suit by saying he had made up his mind. He, in
fact, lost his temper as each in succession rose, and he declined them
in turn. At last O'Connell, one of the unheard counsel, began in his
deepest and most emphatic tone: "Well then, my lord, since your lordship
refuses to hear my learned friend, you will be pleased to hear ME"; and
then he plunged into the case, without waiting for any expression,
assent or dissent, or allowing any interruption. On he went, discussing
and distinguishing, and commenting and quoting, till he secured the
attention of, and evidently was making an impression on, the unwilling
judge. Every few minutes O'Connell would say: "Now, my lord, my learned
young friend beside me, had your lordship heard him, would have informed
your lordship in a more impressive and lucid manner than I can hope to
do," etcetera, until he finished a masterly address. The Lord Chancellor
next morning gave judgment in favour of O'Connell's client.
He was engaged in a will case, the allegation being that the will was a
forgery. The subscribing witness swore that the will had been signed by
the deceased "while life was in him"--that being an expression derived
from the Irish language, which peasants who have long ceased to speak
Irish still retain. The evidence was strong in favour of the will, when
O'Connell was struck by the persistency of the man, who always repeated
the same words, "The life was in him." O'Connell asked: "On the virtue
of your oath, was he alive?"--"By the virtue of my oath, the life was
in him."--"Now I call upon you in the presence of your Maker, who will
one day pass sentence on you for this evidence, I solemnly ask--and
answer me at your peril--was there not a live fly in the dead man's
mouth when his hand was placed on the will?" The witness was taken aback
at this question; he trembled, turned pale, and faltered out an abject
confession that the counsellor was right; a fly had been introduced into
the mouth of the dead man, to allow the witness to swear that "life was
in him."
O'Connell was defending John Connor on a charge of murder. The most
incriminating evidence was the finding of the murderer's hat, left
behind on the road. The all-important question was as to the
identity of the hat as that of the accused man. A constable was
prepared to swear to it. "You found this hat?" said O'Connell.
"Yes."--"You examined it?"--"Yes."--"You know it to be the
prisoner's property?"--"Yes."--"When you picked it up you saw it
was damaged?"--"Yes."--"And looking inside you saw the prisoner's
name, J-O-H-N C-O-N-N-O-R?" (here he spelt out the name slowly).
"Yes," was the answer. "There is no name inside at all, my lord,"
said O'Connell, and the prisoner was saved.
* * * * *
Explaining to a judge his absence from the Civil Court at the time a
case was heard, in which he should have appeared as counsel, O'Connell
said he could not leave a client in the Criminal Court until the verdict
was given. "What was it?" inquired the judge. "Acquitted," responded
O'Connell. "Then you have got off a wretch who is not fit to live," said
the judge. O'Connell, knowing his lordship to be a very religious man,
at once replied: "I am sure you will agree with me that a man whom you
regard as not fit to _live_ would be still more _unfit_ to die."
* * * * *
There was a young barrister--a contemporary of O'Connell--named Parsons,
who had a good deal of humour, and who hated the whole tribe of
attorneys. Perhaps they had not treated him very well, but his prejudice
against them was very constant and conspicuous. One day, in the Hall of
the Four Courts, an attorney came up to him to beg a subscription
towards burying a brother attorney who had died in distressed
circumstances. Parsons took out a one-pound note and tendered it. "Oh,
Mr. Parsons," said the applicant, "I do not want so much--I only ask a
shilling from each contributor. I have limited myself to that, and I
cannot really take more."--"Oh, take it, take it," said Parsons; "for
God's sake, my good sir, take the pound, and while you are at it bury
twenty of them."
There is a terseness in the following which seems to be inimitable.
Lord Norbury was travelling with Parsons; they passed a gibbet.
"Parsons," said Norbury, with a chuckle, "where would _you_ be now if
every one had his due?"--"Alone in my carriage," replied Parsons.
* * * * *
Here is a young Irishman's first Bar-speech. "Your lordships perceive
that we stand here as our grandmothers' administrators _de bonis non_;
and really, my lords, it does strike me that it would be a monstrous
thing to say that a party can now come in, in the very teeth of an Act
of Parliament, and actually turn us round, under colour of hanging us
up, on the foot of a contract made behind our backs."
A learned Serjeant MacMahon was noted for his confusion of language in
his efforts to be sublime. He cared less for the sense than the sound.
As, for example: "Gentlemen of the jury, I smell a rat--but I'll nip it
in the bud." And, "My client acted boldly. He saw the storm brewing in
the distance, but he was not dismayed! He took the bull by the horns and
he _indicted him for perjury_."
Peter Burrowes, a well-known member of the Irish Bar, was on one
occasion counsel for the prosecution at an important trial for murder.
Burrowes had a severe cold, and opened his speech with a box of lozenges
in one hand and in the other the small pistol bullet by which the man
had met his death. Between the pauses of his address he kept supplying
himself with a lozenge. But at last, in the very middle of a
'high-falutin' period, he stopped. His legal chest heaved, his eyes
seemed starting from his head, and in a voice tremulous with fright he
exclaimed: "Oh! h-h!!! Gentlemen, gentlemen; I've swallowed the
bul-let!"
An Irish counsel who was once asked by the judge for whom he was
"concerned," replied: "My lord, I am retained by the defendant, and
therefore I am concerned for the plaintiff."
A junior at the Bar in course of his speech began to use a simile of
"the eagle soaring high above the mists of the earth, winning its daring
flight against a midday sun till the contemplation becomes too dazzling
for humanity, and mortal eyes gaze after it in vain." Here the orator
was noticed to falter and lose the thread of his speech, and sat down
after some vain attempts to regain it; the judge remarking: "The next
time, sir, you bring an eagle into Court, I should recommend you to clip
its wings."
Mr. Tim Healy's power of effective and stinging repartee is probably
unexcelled. He is seldom at a loss for a retort, and there are not a few
politicians and others who regret having been foolish enough to rouse
his resentment. There is on record, however, an amusing interlude in the
passing of which Tim was discomfited--crushed, and found himself unable
to "rise to the occasion."
During the hearing of a case at the Recorder's Court in Dublin the
Testament on which the witnesses were being sworn disappeared. After a
lengthy hunt for it, counsel for the defendant noticed that Mr. Healy
had taken possession of the book, and was deeply absorbed in its
contents, and quite unconscious of the dismay its disappearance was
causing.
"I think, sir," said the counsel, addressing the Recorder, "that Mr.
Healy has the Testament." Hearing his name mentioned, Mr. Healy looked
up, realised what had occurred, and, with apologies, handed it over.
"You see, sir," added the counsel, "Mr. Healy was so interested that he
did not know of our loss. He took it for a new publication." For once
Mr. Healy's nimble wit failed him, and forced him to submit to the
humiliation of being scored off.
In the North of Ireland the peasantry pronounce the word witness
"wetness." At Derry Assizes a man said he had brought his "wetness" with
him to corroborate his evidence. "Bless me," said the judge, "about what
age are you?"--"Forty-two my last birthday, my lord," replied the
witness. "Do you mean to tell the jury," said the judge, "that at your
age you still have a wet nurse?"--"Of course I have, my lord." Counsel
hereupon interposed and explained.
The witness who gave the following valuable testimony, however, was
probably keeping strictly to fact. "I sees Phelim on the top of the
wall. 'Paddy,' he says. 'What,' says I. 'Here,' says he. 'Where?' says
I. 'Hush,' says he. 'Whist,' says I. And that's all."
The wit of the Irish Bar seems to infect even the officers of the Courts
and the people who enter the witness-box. It is impossible, for example,
not to admire the fine irony of the usher who, when he was told to clear
the Court, called out: "All ye blaggards that are not lawyers lave the
building."
Irish judges have much greater difficulties to contend against, because
the people with whom they have to deal have a fund of ready retort.
"Sir," said an exasperated Irish judge to a witness who refused to
answer the questions put to him--"sir, this is a contempt of Court."--"I
know it, my lord, but I was endeavouring to concale it," was the
irresistible reply.
A certain Irish attorney threatening to prosecute a printer for
inserting in his paper the death of a person still living, informed him
that "No person should publish a death unless informed of the fact by
the party deceased."
A rather amusing story is told of a trial where one of the Irish jurymen
had been "got at" and bribed to secure the jury agreeing to a verdict of
"Manslaughter," however much they might want to return one upon the
capital charge of "Murder." The jury were out for several hours, and it
was believed that eventually the result would be that they would not
agree upon a verdict at all. However, close upon midnight, they were
starved into one, and it was that of "Manslaughter." Next day the
particular juryman concerned received his promised reward, and in paying
it, the man who had arranged it for him remarked: "I suppose you had a
great deal of difficulty in getting the other jurymen to agree to a
verdict of 'Manslaughter'?"--"I should just think I did," replied the
man. "I had to knock it into them, for all the others--the whole eleven
of them--wanted to acquit him."
An Irish lawyer addressed the Court as _Gentlemen_ instead of _Your
Honours_. When he had concluded, a brother lawyer pointed out his error.
He immediately rose and apologised thus: "In the heat of the debate I
called your honours gentlemen,--I made a mistake, your honours."
CHAPTER FIVE
THE JUDGES OF SCOTLAND
"Ye Barristers of England
Your triumphs idle are,
Till ye can match the names that ring
Round Caledonia's Bar.
Your _John Doe_ and your Richard Roe
Are but a paltry pair:
Look at those who compose
The flocks round Brodie's Stair,
Who ruminate on Shaw and Tait
And flock round Brodie's Stair.
* * * * *
"But, Barristers of England,
Come to us lovingly,
And any Scot who greets you not
We'll send to Coventry.
Put past your brief, embark for Leith,
And when you've landed there,
Any wight with delight
Will point out Brodie's Stair
Or lead you all through Fountainhall
Till you enter Brodie's Stair."
OUTRAM: _Legal and other Lyrics_.
CHAPTER FIVE
THE JUDGES OF SCOTLAND
From the Institution of the Court of Session by James V of Scotland till
well into the nineteenth century, it was the custom of Scottish judges
when taking their seat on the Bench to assume a title from an estate--it
might even be from a farm--already in their own or their family's
possession. So we find that nearly every parish in Scotland has given
birth to a judge who by this practice has made that parish or an estate
in it more or less familiar to Scottish ears. Monboddo, near Fordoun, in
Kincardineshire, at once recalls the judge who gave "attic suppers" in
his house in St. John Street, Edinburgh, and held a theory that all
infants were born with tails like monkeys; but under the modern practice
of simply adding "Lord" to his surname of Burnet, we doubt if his
eccentric personality would be so readily remembered. Lord Dirleton's
_Doubts_, Lord Fountainhall's _Historical Observes_, carry a more
imposing sound in their titles than if those one-time indispensable
works of reference had been simply named Nisbet on Legal Doubts, and
Lauder on Historical Observations of Memorable Events.
The selection of a title was an important matter with these old judges.
When Lauder was raised to the Bench, his estate to the south-east of
Edinburgh was called Woodhead; but it would never have done for a
Senator of the College of Justice to be known as "Lord Woodhead," so the
name of the estate was changed to Fountainhall, and as Lord Fountainhall
he took his seat among "the Fifteen" as the full Bench of judges was
then termed.
These old-time judges with their rugged ferocity, corruption, and
occasionally brave words and deeds, in a great measure present to us now
a miniature history of Scotland in the seventeenth and eighteenth
centuries. "Show me the man, and I will show you the law," one is
reported to have said, meaning that the litigant with the longest purse
was pretty certain to win his case in the long run. They delighted in
long arguments, and highly appreciated bewilderment in pleadings; "Dinna
be brief," cried one judge when an advocate modestly asked to be briefly
heard in a case in which he appeared as junior counsel. But the tendency
to delay cases in the old Courts stretched beyond all reasonable lengths
and became a scandal to the country. It was not a question of a month or
even a year. Years passed and still cases remained undecided, some even
were passed on from one generation to another--a litigant by his will
handing on his plea in the Court to his successor along with his estate.
This protracted delay in deciding causes formed the subject of that
highly amusing and characteristic skit on the Scottish judges for which
Boswell was largely responsible:
THE COURT OF SESSION GARLAND
PART FIRST
The Bill charged on was payable at sight
And decree was craved by Alexander Wight;[1]
But, because it bore a penalty in case of failzie
It therefore was null contended Willie Baillie.[2]
The Ordinary not chusing to judge it at random
Did with the minutes make avizandum.
And as the pleadings were vague and windy
His Lordship ordered memorials _hinc inde_.
We setting a stout heart to a stey brae
Took into the cause Mr. David Rae:[3]
Lord Auchenleck,[4] however, repelled our defence,
And over and above decerned for expence.
However of our cause not being asham'd,
Unto the whole Lords we straightway reclaim'd;
And our petition was appointed to be seen,
Because it was drawn by Robbie Macqueen.[5]
The answer of Lockhart[6] himself it was wrote,
And in it no argument or fact was forgot;
He is the lawyer that from no cause will flinch,
And on this occasion divided the Bench.
Alemoor,[7] the judgment as illegal blames,
'Tis equity, you bitch, replies my Lord Kames;[8]
This cause, cries Hailes,[9] to judge I can't pretend,
For Justice, I see, wants an _e_ at the end.
Lord Coalston[10] expressed his doubts and his fears,
And Strichen[11] then in his weel weels and O dears;
This cause much resembles that of M'Harg,
And should go the same way, says Lordy Barjarg.[12]
Let me tell you, my Lords, this cause is no joke;
Says with a horse laugh my Lord Elliock[13]
To have read all the papers I pretend not to brag,
Says my Lord Gardenstone[14] with a snuff and a wag.
U
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