The Percy Anecdotes: |
"Tis the divine's to convert by faith, the soldier's to overcome by force, the politician's to circumvent by art; but to the Bar it especially belongs to prevail with men through means which their reason can comprehend, which their courage need not disdain, and which their honesty must revere." - ANON.
Few reigns, it has been remarked, have produced so many eminent lawyers as that of Queen Elizabeth. The graces of oratory, however, formed no part of the character of an able lawyer in those days. Sir Edward Coke, the most distinguished among the number for talents and attainments, was at the same time one of the coarsest pleaders that perhaps ever practised at the English bar; in putting on his wig and gown, he seemed as it were to throw away for the time, every share of gentlemanly, nay, even of manly feeling, which his nature possessed.
In the prosecution of the Earl of Essex for high treason, 'Coke,' says Hume, 'opened the cause against him, and treated him with the cruelty and insolence which that great lawyer usually exercised against the unfortunate.' At the conclusion of his speech he said, that 'by the just judgment of God, he of his earldom should be Robert the Last, that of a kingdom thought to be Robert the First.'
Coke made a still more outrageous exhibition in the prosecution which he also managed against Sir Walter Ralegh, a name which can never be mentioned without exciting a blush of shame and indignation for his cruel fate. His trial was a mere mockery, and conducted in a manner which, at the present day, would not be tolerated for a single moment.
The Attorney-General, Coke, feeling too sensibly the unequal grounds on which he stood, to endeavour to succeed by argument, began by loading Sir Walter with abuse and insult, calling him the most 'notorious traitor that ever came to that bar. His schemes,' he said, 'were directed equally against the religion of his country as against its king; and when he had taken off the one he would have altered the other, and established Popery in its place.' 'Sir Walter,' he added, 'was a viper and a monster with an English face; but with a Spanish heart, against whom there was no occasion to confront the witnesses; his criminality was evident, and he was a reptile, and the dregs of the earth.'
The Attorney-General proceeded still farther, and said, 'That the king would be dethroned in less than a year, if a traitor could not be condemned upon circumstances; that it would be very dangerous for his majesty to acquit the prisoner; protesting in a solemn manner before his Maker, that he never knew a crime of treason more clearly made out than that against Sir Walter, who was 'the most vile and execrable traitor that ever existed in the world.'
Here the prisoner interrupted the Attorney-General, whose irascible zeal and scurrility exceeded all bounds.
Sir Walter. 'You speak indiscreetly, and barbarously.'
Attorney-General. 'I cannot find words to express such viperous treasons.'
Sir Walter. 'I think you want words indeed, for you have repeated one thing half a-dozen times.'
Attorney-General. 'Thou art an odious fellow; thy name is hateful to all England for thy pride.'
Sir Walter. 'It will then go near to prove a measuring cast between you and me, Mr. Attorney.'
Nor was Coke less blameable with respect to the high court before which he stood. His arrogance was so offensive, that Lord Cecil demanded 'If he came hither to direct them?' Coke chose to be so indignant at this rebuke, that he sat down and refused to utter another word till he was solicited by all the commissioners, when he rose, and summed up the case for the prosecution.
After a brief charge from the Lord Chief justice, in which he said, that 'he presumed Sir Walter was not so clear a man as he had protested,' the jury withdrew for a quarter of an hour, and then brought in a verdict of guilty against the most injured man of his age or country.
Sir Edward Coke had a strong dislike to Lord Bacon, and did everything in his power to elbow him out of place; to such excess did he carry it, that he could not refrain from attacking him even in the Courts of Justice. The following instance of this is related by Bacon, in a letter from him to Secretary Cecil. For pointedness of remark, and retort, it has seldom been surpassed in any of the uncourteous controversies which not unfrequently happen at the bar. Bacon, it may be necessary to remark, had been appointed Queen's Attorney-General in the time of Elizabeth, but had not at this time taken the oaths of office. Coke was Attorney-General. Bacon styles his narrative 'a true remembrance of the abuse I received from Mr. Attorney-General, publicly in the Exchequer, the first day of term.'
'I moved', says Bacon, 'to have a reseizure of the lands of George Moore, a relapsed recusant and fugitive, and a practising traitor, and showed better matter for the queen against the discharge by plea, which is ever with a salvo jure, and this I did in as gentle and reasonable terms as might be.
Mr. Attorney kindled at it, and said,
"Mr. Bacon, if you have any tooth against me, pluck it out, for it will do you more hurt than all the teeth in your head will do you good."
'I answered coolly in these words:- "Mr. Attorney, I respect you; I fear you not; and the less you speak of your own greatness, the more I shall think of it."
'He replied, "I think scorn to stand upon terms of greatness towards you; who are less than I little, less than the least" and other such strange light terms, he gave me with that insulting air which cannot be expressed.
'Herewith stirred, I said no more than this:- "Mr. Attorney, do not depress me so far, for I have been your better, and may be again, when it pleases the queen."
'With this he spoke, neither I nor himself could tell what, as - if he had been born Attorney-General, and in the end bid me meddle not with the queen's business, but my own; and that I was unsworn, &C.
'I told him, sworn or unsworn, was all one to an honest man, and that I ever set my service first, and myself second, and wished to God that he would do the like.
'Then he said, it were good to clap a caput le gatum upon my back. To which I only said, he could not; and that he was at a halt, for he hunted me upon an old scent.
'He gave me a number of disgraceful words besides, which I answered with silence, and showed that I was not moved with them.'
In the reign of Queen Elizabeth, one Peter Palmer, of Lincoln's Inn, brought an action against a barrister of the name of Boyer, for having, with the intention to injure him in his name and practice, said, 'Peter Palmer is a paltry lawyer, and hath as much law as a jackanapes.' It was moved in arrest, that the words would not maintain an action, because they were not slanderous. Had Mr. Boyer said, 'Mr. Palmer had no more law than a jackanapes,' it had been actionable, for then he had lessened the opinion of his learning; but the words were, 'he hath as much law as a jackanapes,' which was no impeachment of his learning, for every man that hath more law than a jackanapes, hath as much. Sed non, allocatur, for the comparison is to be taken in the worse sense.
Judge Berkeley says it has been adjudged, where a person said of a lawyer, 'that he had as much law as a monkey,' that the words were not actionable, because he had as much law, and more also; but if he had said 'he hath no more law than a monkey,' these words would have been actionable.
When Sir Nicholas Throgmorton was tried for high treason, in the reign of Queen Mary, he wished to address the court before he pleaded to the indictment; but this was refused. He then prayed their lordships not to make too much haste with him. nor to think it long before their dinner time came, for his case required deliberation, and they would not dine well without they truly administered justice, since our Saviour said, 'Blessed are they that hunger and thirst after righteousness.'
The court took offence at the expressions, and the Lord Chief Justice Bromley said, 'I can forbear my dinner as well as you, Sir Nicholas, and perhaps care as little for it as yourself.'
The Earl of Shrewsbury. 'Do you come hither, Throgmorton, to check the court? We will not be used so. No, no: for my own part, I have gone without my breakfast, dinner, and supper, to serve the queen.
Sir Nicholas replied, 'I know it very well, my lord I had no design to offend your lordship your pains and services are evidently known to everybody.
Sir Richard Southwell said, 'Sir Nicholas, there is no occasion for this discourse; we know what we have to do; you pretend to teach us our duty, you do yourself an injury; come to the matter in hand.' 'Sir, you mistake me,' said Sir Nicholas 'I have no thoughts of instructing you, or any of you; but to put you in mind, I hope, of all you are well informed of; and therefore I shall say nothing upon a supposition, that you know what you have to do, and ought to know; and so I answer to the indictment, and do plead not guilty of the whole, nor of any part of it.'
Mr. Sendal. 'How will you be tried.'
Sir Nicholas. 'Shall I be tried as I would, or as I should?'
Chief Justice Bromley. 'You shall be tried as the law requires, and therefore you must be tried by God and your country.
'Is that your law for me?' said Sir Nicholas. 'It is not as I would; but finding you will have it so, I am content, tried by just and honest men, that fear God more than man.'
On the names of the jury being called over, the Attorney-General went to Sir Roger Cholmley, one of the judges, and showed him the pannel, telling him, that being acquainted with the citizens, he knew their corruptions and dexterities in affairs of this nature, and named some who ought to be challenged on the queen's behalf. Two persons who were known to be honest and substantial citizens, were then challenged without assigning any reason, and two others with as little reason substituted in their stead.
The prisoner observing this hitherto unexampled perversion of justice told the court, he 'hoped that they had not dealt with him that day, as formerly he had known a gentle man used, who stood in the same place and circumstances as himself.' One of the judges being suspicious that a prisoner, by reason of the justice of his cause was likely to be acquitted, said to one of his brethren, when the Jury appeared, 'I do not like this jury, they are not for our purpose, they seem to have too much compassion and charity to condemn the prisoner.' 'No, no,' said the other Judge, Cholmley by name, "I'll warrant you they are fellows picked on purpose, but he shall drink of the same cup with his associates." I was then a spectator of the pageantry, as other's are now; but now, the more is my misfortune, am an actor in the woeful tragedy.'
In the meantime, Cholmley consulted with the Attorney-General about the jury, which being observed by the prisoner at the bar, he said. 'Ah, Sir Roger Cholmley, will you never leave off this foul play?' 'Why, what hurt do I do, pray, Sir Nicholas?' he replied. 'I am sure I did not hurt; why do you pick quarrels with me?' Throgmorton only replied 'Sir Roger, if you do well, it will be better for you. 'God help you.'
On the trial proceeding, Sir Nicholas Throgmorton made so admirable a defence, that the jury brought in a verdict of not guilty. [See Anecdotes of Eloquence.]
A person having voted against Serjeant Maynard rar, at a Borough Election in the West of England, the serjeant brought an action against him for scandalous words he had used. He first laid his action in the County of Middlesex, by virtue of a privilege, which supposes a serjeant to be attendant on the Court Of Common Pleas, and not to be drawn from the County where the court sits. In the next place, he charged the words in Latin, in order that if he proved the effect it would be sufficient, whereas, if they were in English, he must prove the actual words that had been used. The action was tried before the Lord Keeper Guilford. The witness related the story as he said he had heard it from the defendant:- 'A client came to the serjeant, and gave him a basket of pippins, and every pippin had a piece of gold in it.' The Judge. 'Those were golden pippins, I presume ?' The serjeant did not relish the jest, but said nothing, and the witness went on, to 'The party on the other side came also the serjeant, and gave him a roasting pig in the belly of which were fifty gold pieces.' The Judge. 'Excellent sauce indeed to a pig.'
This additional sarcasm put the serjeant out of all patience, and he remarked to those near him, that it was said in order to make him appear ridiculous.
The story being sworn to, the judge directed the jury to find a verdict for the serjeant, which was done; but the judgment was arrested, in consequence of the words being the burden of an old story, which had been applied to the serjeant in jest, and without any intention to slander.
Mr. Chute, a Lawyer who lived in the reign of Charles II, "would sometimes quit the fatigues of business, and pass his time in pleasure for many months. He would say to his clerk, 'tell the people I will not practise this term.' He was as good as his word, and would not see any person on business. But when his clerk intimated that his master was ready to resume practice, briefs would flow in upon him, in as great abundance as ever. It is rare to see a genius thus superior to the slavery of a lucrative profession.
In the reign of Charles II., seventeen sergeants-at-law were made in one day, and as was customary, each presented rings to the judges. A few days afterwards, on Sergeant Powis coming to the King's Bench Bar, the Chief justice Keeling told him that the rings which he and his brethren had given, weighed but eighteen shillings a piece; whereas Fortesque, in his book 'De laudibus Legum Angliae,' says, that the rings given to the chief justices and to the chief baron ought to weigh twenty shillings each. He added, that he did not mention this from any expectation of recompense, but that it might not be drawn into a precedent, and that the Young gentlemen at the bar might take notice of it.
A Young student of law, was obliged by lot to inscribe his name among certain new levies of the Austrian Imperial army. He sent a Petition to the emperor, stating, that as he was on the point of being called to the bar, he flattered himself he could be of more service to his country as a lawyer than as a soldier.'My good friend,' said the emperor, 'you are not ignorant that I am engaged in a very intricate suit against the French Convention, and that I want the assistance of men of talent as you appear to be. Have the goodliess to accept these twelve ducats. Do your duty, and I promise you promotion.'
In an action of debt, tried before Lord Mansfield at sittings at Guildhall, the defendant, a merchant of London, complained with great warmth to his lordship of the indignity which had been put on him by the plaintiff, in causing him to be arrested, not only in the face of day, but in the Royal Exchange, in the face of the whole assembled credit of the metropolis. The chief justice stopped him with great composure, saying, 'Friend, you forget yourself; You were the defaulter in refusing to pay a just debt; and let me give you a piece of advice worth more to you than the debt and costs. Be careful in future not to put it in any man's power to arrest you for a just debt in public or in private.'
An action was brought at Lincoln assizes for the recovery of a horse. Justice Bailey at the close of the cause, in which £25 damages were given, strongly discouraged going to law in cases of that nature. 'Take my advice, gentlemen,' said he, 'and accommodate matters of this kind, if possible; for men, in general, lose more than £25 in bringing an action on the warranty of a horse, even if they win; and such is the danger from the evidence common in cases like this, that justice is no security to a man, of success. I perceive that the gentlemen below me do not approve of my doctrine; but the truth must be told sometimes.'
On the arraignment of Ann Turner, a physician's widow, who was indicted for being an accessary before the fact, to the murder of Sir Thomas Overbury, she kept on her hat. Sir Edward Coke observing this, bade her put it off, saying, 'that a woman might be covered in church, but not when arraigned in a court of justice;' the prisoner said she thought it singular that she might be covered in the house of God, and not in the judicature of man. Sir Edward replied, 'that from God no secrets were hid, but it was not so with man, whose intellects were weak; therefore in the investigation of truth, and especially when the lives of our fellow creatures are in jeopardy, on the charge of having deprived another thereof, the court should see all the obstacles removed; and because the countenance is often an index to the mind, all covering should be removed from the face.' The Chief Justice then ordered her hat to be taken off, and she covered her head with her handkerchief.
Privilege of King's Advocate in Scotland.
Sir Thomas Hope, King's Advocate in Scotland, during part of the reign of Charles I., though he was never himself elevated to the bench, had the singular pleasure of seeing three of his sons advanced to be senators of the College of Justice, one of whom, of the same name with himself, was afterwards raised to the high office of Justice General. It being thought indecorous to allow a man of his reverend age to stand uncovered when in his pleadings he addressed a court in which so many of his own children sat as judges, he was permitted to be covered whenever he pleased. This was the origin of a privilege which the king's advocates are said still to enjoy, of pleading before the Court of Session with their hats on; a privilege, however, of which we need hardly say they have uniformly too much politeness to avail themselves.
About the middle of the seventeenth century, the Lords of Session in Scotland, reverting to the origin of their institution, when they consisted of a select number of members of Parliament, and were, in-fact, a Committee of Parliament, took it into their heads to revive their pretensions to the supremacy of a court of last resort, although they could no longer lay claim in any respect to a parliamentary character, and although statutes had intervened, establishing a right of appeal from their decisions to Parliament. In this unconstitutional attempt to stretch their power, they met with a spirited and manly resistance from the faculty of advocates, who contended for the right of the subject on all occasions to appeal to Parliament, from the decrees of the Session. The judges finding both law and reason to fail them in the contest, had recourse to another and a worse stretch of power, to sustain them in their usurpation. An order was procured from the king and council discharging all appeals, and commanding the advocates to submit to the Lords of Session. The faculty, indignant at such an arbitrary assumption of dispensing power, immediately withdrew in a body from court; and refusing to act in any proceeding before their lordships, brought the legal business of the country to a complete stand. The Judges, incensed at this resolute proceeding, procured a second order from the king and council, banishing the whole of the refractory barristers to a distance of twelve miles from Edinburgh.
Sir George Mackenzie, afterwards so distinguished as Lord Advocate, during a very troubled period of Scottish history, was among the number of the exiled; and to this gentleman the judges were, after a short time, pleased to give permission to appear before them, and vindicate, if he could, the conduct of himself and brethren. Sir George appears to have acquitted himself well; he spoke with much warmth; and produced such an impression on their lordships, that they were content to enter into a compromise, which 'whatever might have been the saving clauses attached to it, put an end for ever to their pretensions to supremacy, and restored to the bar a body of gentlemen whose patriotism and spirit would have done honour to the brightest periods of its history.
In 1674, Sir George Mackenzie, to whom his country was so much indebted in the question of appeal, was appointed his Majesty's Advocate for Scotland. Being called to the office in troublesome and rebellious times, when the minds of contending parties were inflamed with political, as well as religious zeal, he could scarcely be expected to fulfil the duties of it without incurring the hatred of those whose friends or relatives suffered under the severity of the law, and provoking a torrent of calumny and abuse on his character. It is quite true that his political principles accorded singularly well with the sort of work which was required of him, being a zealous advocate for the doctrines of passive obedience and conformity; yet with all this furniture for persecution, there is certainly nothing in his conduct to warrant the application of such epithets as 'bloodthirsty advocate', 'persecutor of the Saints of God,' and others equally coarse, by which we find him sometimes designated. The great care which he took in regulating the forms used in trials for treason, was far from savouring of any desire for a rigour far beyond the law; so much indeed was the contrary the fact, that there never was a period when so many thousands were pardoned, and so many indemnities granted, as during his administration. He says himself, that he 'never informed against any man, nor suggested any prosecution; and that when a prosecution was advised by others, he pleaded as much in private for the defendant, as if the case had been dubious, or he had been advocate for him.
The memory of Sir George Mackenzie ought, on a separate account, to be for ever dear to the members of the Scottish bar. He was the founder of the Advocates' Library at Edinburgh, one of the most extensive and valuable repositories of ancient and modern learning of which this island can boast.
In Scotland, though general verdicts appear to have been authorized by the most ancient practice of the criminal courts, it was long customary to consider jurymen as tied down to determine simply whether the series of facts stated in the libel or indictment were true, the judges reserving to themselves the power of determining the ultimate conclusion of guilty or not guilty of the crime charged. The accused person was indeed tried by his peers, but his guilt or innocence was rarely within their cognizance; and many a fellow citizen became thus the victim of the arbitrary discretion of the bench. Such was the case till the trial of Carnegie, of Finhaven, before the Court of justiciary, for the murder of Charles Earl of Strathmore, in 1728. At a meeting in the country, where the company had drank to intoxication, Carnegie having received very abusive language, and sustained a personal outrage from Lyon, of Bridgeton, drew his sword and staggering forward to make a thrust at Lyon, chanced to kill the Earl of Strathmore, a nobleman for whom he entertained the highest regard and esteem, and who had at that moment unfortunately stepped between the parties with a view to separate them. The facts of the case were perfectly clear, and the court had by a preliminary award, declared that if found to be proved, they were relevant to infer the pains of law for the crime of murder. There remained therefore no hope for the prisoner, unless the jury could be roused to assert a right which juries in Scotland had long relinquished, and to vindicate their privilege of deciding generally on the guilt or innocence of the accused. This important point was gained by the powerful eloquence of the prisoner's counsel, Mr. Dundas (afterwards Lord President Dundas): the jury found the prisoner not guilty; and since that time the right of a Scottish jury to return a general verdict has never been disputed.
In March, 1747, Mr. Murray, afterwards Lord Mansfield, was one of the managers for the impeachment of Lord Lovat by the House of Commons, and when commenting on the evidence, displayed so much candour and moderation, that the celebrated Lord Talbot, on the conclusion of his speech, felt called upon to pay him the following enthusiastic compliment:- 'The abilities of the learned manager who has just now spoke never appeared with greater splendour than at this very hour, when his candour and humanity have been joined to those great abilities which have already made him so conspicuous, that I hope to see him one day add lustre to the dignity of the first civil employment in this nation.' Lord Lovat himself bore remarkable testimony to the abilities and fairness of his adversary. Alluding to one of the witnesses on the trial, he said, 'I thought myself very much loaded by one Murray, who your lordships knew was the bitterest evidence there was against me. I have since suffered by another Mr. Murray, who I must say is an honour to his country, and whose eloquence and learning is much beyond what is to be expressed by an ignorant man like me. I heard him with pleasure, though it was against me; I have the honour to be his relation, though perhaps he neither knows it nor values it. I wish that his being born in the North may not hinder him from the preferment that his merit and learning deserve.'
The oath used among the Highlanders in judicial proceedings under the feudal system contained a most solemn denunciation of vengeance in case of perjury, and involved the wife and children, with the arable and the meadow land of the party who took it all together in one abyss of destruction. When it was administered there was no book to be kissed, but the right hand was held up while the oath was repeated. The superior idea of sanctity which this imprecation conveyed to those accustomed to it, may be judged from the expression of a Highlander, who at a trial at Carlisle had sworn positively in the English mode to a fact of consequence. His indifference during that solemnity having been observed by the opposite counsel, he was required to confirm his testimony by taking the oath of his own country to the same. 'Na, na,' said the mountaineer, 'ken ye not thar is a hantle o' difference 'twixt blawing on a buke, and domming ane's ain saul?'
Mr. Serjeant Prime, one of the ablest lawyers of his day, was driven from the Bar by Lord Thurlow, without intending it. His lordship was walking in Westminster Hall with him, while Dr. Florence Henzey was on his trial in the Court of King's Bench for high treason. Serjeant Prime was at that time the King's Prime Serjeant, and as such had precedence of all lawyers in the king's service. But the ministers of that day, wishing to pay court to Sir Fletcher Norton, although he had no other rank than that of king's counsel, entrusted the management of the trial to him. Lord Thurlow said to the serjeant, 'It is a little singular, sir, that I should be walking up and down Westminster Hall with the King's Prime Serjeant, while a trial at bar for high treason is going on in that court.' The expression struck the serjeant; he felt the affront which had been put upon him, and the next morning resigned his office, and retired from the profession.
A lawyer, who some years ago was distinguished by the epithet of the extraordinary special pleader, and was afterwards raised to the peerage, is said to have received the sum Of 420,000 in one single cause, the defence of a young lady of rank, who was indicted for child murder. The principal evidence was a female accoucheur, who had been forcibly carried to the lady's house blindfolded. She swore that her guide forded a river twice in going to the house where her assistance was wanted; when, said the lawyer, it was known that there was but one straight river between the houses: and supposing the guide, in order to deceive the midwife, should have made a wheel round to pass it again, she must then have forded it a third time. The ingenuity of this remark so completely puzzled the jury, that they acquitted the prisoner without going out of court.
Some years ago an unsuccessful candidate for the borough of Berwick-upon-Tweed, preferred a petition to the House of Commons, and retained an eminent counsel with a fee of fifty guineas, just before the business was about to come before the House. The barrister, who had in the interval changed his political sentiments, declined to plead. The candidate immediately waited on his advocate, mildly expostulated and remonstrated, but all in vain; he would riot by any means consent either to plead or return the money, adding, with a sneer of professional insolence, that the law was open, and he might have recourse to it if he felt himself injured. 'No, no, sir,' replied the spirited client, 'I was weak enough to give you a fee, but I am not quite fool enough to go to law with you, as I perceive my whole fortune may be wasted in retaining fees alone, before I find one honest barrister to plead for me. I have therefore brought my advocate in my pocket!' Then taking out a brace of pistols, he offered one to the astonished counsellor, and protested that before he quitted the room he would either have his money or satisfaction. The money was accordingly returned, but for want of so able an advocate, the justice of his cause did not prevent his losing it.
A counsellor famed for his eloquence and covetousness, and who seldom considered the goodness of the cause that he undertook, provided that his client could pay him, was consulted by a notorious robber, who promised him a large reward, provided that he brought him off. The pleader managed the defence with so much ingenuity, that he saved the rogue from the gallows; and the client, to show his gratitude to his good friend, as soon as liberated, hastened to his house, and presented him with a thousand crowns. The counsellor, in return for such generosity, solicited his client to sup with him, and afterwards invited him to take a bed, both of which he accepted. In the middle of the night the robber rose, found the way to the room of his host, and without ceremony bound and gagged him. He then re-pocketed his thousand crowns, and broke open a chest, in which he found plenty of silver and gold, with which he marched off in triumph.
A man was tried before the Lord Keeper Guilford, at Taunton, for being a wizard. The evidence against him was, that he had bewitched a girl of about thirteen years of age, for that she had strange and unaccountable fits whenever she was near the man, and that she used to discharge straight pins from her mouth. His lordship wondered at the straight pins, which could not be so well concealed in the mouth as crooked ones, and these only used to be found in persons bewitched. He examined the witnesses very tenderly and carefully, fearing the jurymen's precipitancy. When the poor man was called upon for his defence, he clearly and sensibly declared that the charge originated in malice, and that the girl was an impostor; and he called witnesses in support of it. The judge suspecting the imposture, and being unwilling to charge the jury until it was proved, cross-examined all the witnesses very closely. At length he called the magistrate who had committed the man and taken his first examinations, and said to him, 'Sir, pray will you ingenuously declare your thoughts, if you have any, touching these straight pins, for you saw the girl in the fit?' 'My lord.' said the Justice, 'I did not know that I might concern myself in the evidence, having taken the examination and committed the man; but since your lordship demands, I must say I think that the girl, doubling herself in the fit as if she were convulsed, bent her head down close to her stomacher, and with her mouth took pins out of it, which she afterwards put into the hands of the persons near her.' This declaration gave great satisfaction to the court, and the man was acquitted. As the judge went out of the court, a hideous old woman exclaimed. 'God bless your lordship!' 'What's the matter, good woman?' said the judge. 'My lord' said she, 'forty years ago they would have hanged me for a witch, and they could not; and now they would have hanged my poor son.'
In the trial of the Earl of Thanet, Mr. Fergusson, and others, for an attempt to rescue O'Connor, at Maidstone Assizes in 1799, the celebrated Richard Brinsley Sheridan appeared as a witness for the defendants. The following are extracts from the examination of this distinguished individual:
Erskine. Do you know Mr. Fergusson?
Sheridan. Perfectly.
Q. If he had been upon the table flourishing and waving a stick in the manner that has been described, in his bar dress, must you not have seen it?
A. 'Yes; it must have been a remarkable thing indeed for a counsel in his bar dress to have a Stick flourishing in his hand. He had paper in his hand.
Q. Does that enable you to swear that Mr. Fergusson was not in that situation?
A. Certainly.
Q. Do you think if he had taken such a part in the riot, in the presence of the judges, that you must have observed it?
A. I must have observed it.
Cross-examined by Mr. Law (afterwards Lord Ellenborough).
Q. You have said you saw Lord Thanet going towards the judges as if he was going to complain; did you hear him make any complaint to the judges?
A. I did not hear him, certainly.
Q. I will ask you whether you do or do not believe that Lord Thanet and Mr. Fergusson meant to favour O'Connor's escape, upon your oath?
A. Am I to give an answer to a question which amounts merely to an opinion?
Q. I ask, as an inference from their conduct, as it fell under your observation, whether you think Lord Thanet or Mr. Fergusson, or either of them, meant to favour Mr. O'Connor's escape, upon your solemn oath?
A. Upon my solemn oath, I saw them do nothing that could be at all auxiliary to an escape.
Q. That is not an answer to my question?
A. I do not wish to be understood to blink any question; and if I had been standing there, and been asked whether I should have pushed or stood aside, I should have had no objection to answer that question.
Q. My question is, whether from what you saw of the conduct of Lord Thanet and Mr. Fergusson, they did not mean to favour the escape of O'Conner, upon your solemn oath?
A. The learned counsel need not remind me that I am upon my oath: I know as well as the learned counsel does, that I am upon my oath; and I will say that I saw nothing that could be auxiliary to an escape.
Q. After what has passed, I am warranted in reminding the honourable gentleman that he is upon his oath. My question is, whether from the conduct of Lord Thanet or Mr. Fergusson, or either of them, as it fell under your observation, you believe that either of them meant to favour O'Connor's escape?
A. I desire to know how far I am obliged to answer that question? I certainly will answer it in this way, that from what they did being a mere observer of what passed, I should not think myself justified in saying that either of them did. Am I to say whether I think they would have been glad if he had escaped? That is what you are pressing me for.
Q. No man can misunderstand me. I ask whether, from the conduct of Lord Thanet or Mr. Fergusson, or either of them, as it fell under your observation, you believe, upon your oath that they meant to favour the escape of O'Connor?
A. I repeat it again that from what either of them did, I should have no right to conclude that they were persons assisting the escape of O'Connor.
Q. I ask you again, whether you believe, from the conduct of Lord Thanet or Mr. Fergusson, or either of them, upon your oath, that they did not mean to favour the escape of O'Connor?
A. I have answered it already.
Lord Kenyon. If you do not answer it, to be sure we must draw the natural inference.
Mr. Sheridan. I have no doubt that they wished he might escape; but from anything I saw them do, I have no right to conclude that they did.
Mr. Law. I will have an answer; I ask you again, whether from their conduct, as it fell under your observation, you do not believe they meant to favour the escape of O'Connor?
A. If the learned gentleman thinks he can entrap me, he will find himself mistaken.
Mr. Erskine. It is hardly a legal question.
Lord Kenyon. I think it is not an illegal question.
Mr. Law. I will repeat the question whether from their conduct, as it fell under your observation, you do not believe they meant to favour the escape of O'Connor?
A. My belief is, that they wished him to escape; but, from anything I saw of their conduct upon that occasion, I am not justified in saying so.
Q. I will ask you, whether it was not previously intended that he should escape, if possible?
A. Certainly the contrary.
Q. Nor had you any intimation that it was intended to be attempted?
A. Certainly the contrary. There was a loose rumour of another warrant, and that it was meant that he should be arrested again, which was afterwards contradicted. Then the question was mooted, whether the writ could be issued before he was dismissed from custody. Certainly there was no idea of a rescue. There was no friend of Mr. O'Connor's, I believe, but saw with regret any attempt on his part to leave the court.
Re-examined by Mr. Erskine. You were asked by Mr. Law, whether you believed that the defendants wished or meant to favour the escape of Mr. O'Connor. I ask you, after what you have sworn, whether you believe these gentlemen did any act to rescue Mr. O'Connor?
A. Certainly not; and I have stated upon my oath, that every man in the narrow gateway endeavoured to stop him; I remarked it particularly; because, there being a common feeling among Englishmen, and he being acquitted, I thought they might form a plan to let him escape.
Q. You have stated that you saw no one act done or committed by any one of the defendants, indicative of an intention to aid Mr. O'Connor's escape?
A. Certainly.
Q. I ask you, whether you believe they did take any part in rescuing Mr. O'Connor?
A. Certainly not.
Mr. Wallace, and Dunning, Lord Ashburton, both very eminent lawyers, were by accident in the same inn at Bagshot, a short time before Ashburton's decease. The one was on his way to Devonshire, and the other returning to London. Both of them were conscious that their recovery from the disorders under which they laboured was desperate; they expressed a mutual wish to enjoy a last interview with each other. For that purpose they were carried into the same apartment, laid down on two sofas nearly opposite, and remained together for a long time in conversation. They then parted, as men who could not hope to meet again in this world, and died within a few months of each other.
One of the contemporaries of Mr. Wedderburn (afterwards Lord Loughborough) at the Scottish Bar, was Mr. Lockhart, a very celebrated pleader, who bore away all the laurels and all the emoluments of the profession. He appears to have excelled chiefly in the pathetic, and it was jocularly remarked of him, that the amount of his honorarium, or fee, could be easily discovered in his countenance; for if handsome, he appeared deeply affected at the justice of his client's case; but if unexpectedly great, he regularly melted into tears. It was owing to a sarcasm by Mr. Wedderburn on this weeping propensity of Mr. L., that Mr. W. was driven from the Scottish Bar, to reap that harvest of renown which awaited him in England. - [See Anecdotes of Eloquence.]
When Curran was called to the bar, he was without friends, without connexions, without fortune, conscious of talents far above the mob by which he was elbowed, and endued with a sensibility which rendered him painfully alive to the mortifications he was fated to experience. After toiling for a very inadequate recompense at the sessions of Cork, and wearing, as he said himself, his teeth almost to their stumps, he proceeded to the metropolis, taking for his wife and young children, a miserable lodging on Hog-hill. Term after Term, without either profit or professional reputation, he paced the hall of the Four Courts. Yet even thus he was not altogether undistinguished. If his pocket was not heavy, his heart was light: he was young and ardent, buoyed up not less by the consciousness of what he felt within, than by the encouraging comparison with those who were successful around him; and he took his station among the crowd of idlers, whom he amused with his wit, or amazed by his eloquence. Many even who had emerged from that crowd, did not disdain occasionally to glean from his conversation the rich and varied treasures which he did not fail to squander with the most unsparing prodigality; and some there were who observed the brightness of the infant luminary struggling through the obscurity that clouded its commencement. Amongst those who had the discrimination to appreciate, and the heart to feel for him, luckily for Curran, was Mr. Arthur Wolfe, afterwards the unfortunate but respected Lord Kilwarden. The first fee of any consequence which he received, was through his recommendation; and his recital of the incident cannot be without its interest to the young professional aspirant, whom a temporary neglect may have sunk into dejection. 'I then lived,' said he, 'upon Hoghill; my wife and children were the chief furniture of my apartments; and as to my rent, it stood pretty much the same chance of liquidation with the national debt. Mrs. Curran, however, was a barrister's lady, and what was wanted in wealth, she was well determined should be supplied by dignity. The landlady, on the other hand, had no idea of any gradation except that of pounds, shillings, and pence. I walked out one morning to avoid the perpetual altercations on the subject, with my mind, you may imagine, in no very enviable temperament. I fell into the gloom in which from my infancy I had been occasionally subject. I had a family for whom I had no dinner, and a landlady for whom I had no rent. I had gone abroad in despondence: I returned home almost in desperation. When I opened the door of my study, where Lavater alone could have found a library, the first object which presented itself was an immense folio of a brief, 20 golden guineas wrapped up beside it, and the name of Old Bob Lyons, marked upon the back of it. I paid my landlady; bought a good dinner; gave Bob Lyons a share of it; and that dinner was the date of my prosperity!' Such was his own exact account of his professional advancement.
Mr. Bethel, an Irish counsellor, as celebrated for his wit as his practice, was once robbed of a suit of clothes in rather an extraordinary manner. Meeting a brother barrister in the hall of the Four Courts, on the day after, the latter began to condole with him on his misfortune, mingling some expressions of surprise at the singularity of the thing; 'It is extraordinary indeed, my dear friend,' replied Bethel, 'for without vanity, I may say it as the first suit I ever lost.'
At a late assize in Limerick, a boy was brought forward as a witness for the prosecution, in a case of murder. He appeared so young and so ignorant, that the judge (Solicitor-General Bushe) thought it necessary to examine him as to his qualifications for a witness, when the following dialogue took place;
Do you know, my lad, the nature of an oath?
A. An oath! no.
Q. Do you mean to say that you do not how what an oath is?
A. Yes.
Q. Do you know anything of the consequence of telling a lie?
A. No.
Q. No! What religion are you of?
A. A Catholic.
Q. Do you never go to mass?
A. No.
Q. Do you never see your priest?
A. Yes.
Q. Did he never speak to you?
A. O yes.
Q. What did he say to you?
A. I met him on the mountain one day, and he bid me hold his horse, and be - to me.
Judge. Go down: you are not fit to be sworn.
It is only proper to add, that the boy appeared to be more knave than fool, and that his ignorance was in all probability paid for by the defendant.
Mademoiselle Bourgoin, one of the most elegant actresses in Paris, appeared some time ago in a new character, and on a new stage; where, before severer judges than she usually addressed, she not only obtained the applause which she generally commanded, but a solid verdict in her favour. She had ordered a shawl from a shopkeeper, on condition that if it did not suit on trial, it was to be returned. In this shawl she attempted the character of Monimia, but it did not produce the expected effect. She therefore sent it back to the shopkeeper, who refused to receive it, and cited her before the Tribunal of First Instance for the price, alleging that the sale of the article was complete; that the shawl had been hemmed in her possession; and by that act of ownership, she had precluded herself from taking benefit of the original condition. The actress pleaded her own cause: and having proved that the sale was conditional, and that the shopkeeper had hemmed the shawl himself, obtained a verdict against him. The fair pleader left the court in triumph, amid the shouts of a numerous crowd, who accompanied her to her carriage, and extolled her forensic eloquence as much as they had formerly applauded her dramatic acting.
The versatility of talent for which Patrick Henry, the American orator and patriot, was distinguished, was happily illustrated in a trial which took place soon after the war of independence. During the distress of the republican army, consequent on the invasion of Cornwallis and Phillips in 1781, Mr. Venable, an Army Commissary, took two steers for the use of the troops from Mr. Hook, a Scotchman, and a man of wealth, who was suspected of being unfriendly to the American cause. The act had not been strictly legal; and on the establishment of peace, Hook, under the advice of Cowan, a gentleman of some distinction in the law, thought proper to bring an action of trespass against Mr. Venable, in the district court of New London. Mr. Henry appeared for the defendant, and is said to have conducted himself in a manner much to the enjoyment of his hearers, the unfortunate Hook always excepted. After Mr. Henry became animated in the cause, he appeared to have complete control over the passions of his audience: at one time he excited their indignation against Hook; vengeance was visible in every countenance: again, when he chose to relax and ridicule him, the whole audience was in a roar of laughter. He painted the distress of the American army, exposed almost naked to the rigour of a winter's sky; and marking the frozen ground over which they matched, with the blood of their unshod feet. 'Where was the man,' he said, 'who had an American heart in his bosom, who would not have thrown open his fields, his barns, his cellars, the doors of his house, the portals of his breast, to have received with open arms the meanest soldier in that little band of famished patriots? Where is the man? There he stands; but whether the heart of an American beats in his bosom, you, gentlemen, are to judge.' He then carried the jury, by the power of his imagination, to the plains around York, the surrender of which had followed shortly after the act complained of. He depicted the surrender in the most glowing and noble colours of his eloquence: the audience saw before their eyes the humiliation and dejection of the British, as they marched out of their trenches; they saw the triumph which lighted up every patriotic face; they heard the shouts of victory, the cry of Washington and liberty, as it rung and echoed through the American ranks, and was reverberated from the hills and shores of the neighbouring river. 'But hark!' continued Henry, 'what notes of discord are these which disturb the general joy, and silence the acclamations of victory? They are the notes of John Hook, hoarsely bawling through the American camp, 'Beef! beef! beef!'
The court was convulsed with laughter, when Hook, turning to the clerk, said, 'Never mind you, mon; wait till Billy Cowan gets up, and he'll show him the la.' But Mr. Cowan was so completely overwhelmed by the torrent which bore upon his client, that when he rose to reply to Mr. Henry, he was scarcely able to make an intelligible or audible remark. The cause was decided almost by acclamation. The jury retired for form sake, and instantly returned with a verdict for the defendant.
A striking example of the witchery of Henry's eloquence, even on common subjects, is related by the late Major Joseph Scott.
This gentleman had been summoned, at great inconvenience to his private affairs, to attend, as witness, a distant court, in which Mr. Henry practised. The cause which had carried him thither having been disposed of, he was setting out in great haste to return, when the sheriff summoned him to serve on a jury. This cause was represented as a complicated and important one; so important, as to have enlisted in it all the most eminent members of the bar. He was therefore alarmed at the prospect of a long detention, and made an unavailing effort with the court, to get himself discharged from the jury. He was compelled to take his seat. When his patience had been nearly exhausted by the previous speakers, Mr. Henry rose to conclude the cause; and having much matter to answer, the major stated that he considered himself a prisoner for the evening, if not for the night. But, to his surprise, Mr. Henry appeared to have consumed not more than fifteen minutes in the reply: and he would scarcely believe his own watch, or those of the other jurymen, when they informed him that Mr. H. had, in reality, been speaking upwards of two hours! So powerful was the charm by which he would bind the senses of his hearers, and make even the most impatient unconscious of the lapse of time.
Judge R., who presided in the County Court of an American state, was fond of indulging himself occasionally in a joke at the expense of Counsellor B., a practising attorney in the same, court, with whom he was very intimate, and for whom he had a high regard. On a certain occasion, when pleading a cause at the bar, Mr. B. observed that he would conclude his remarks on the following day, unless the court would consent to set late enough for him to finish them that evening. 'Sit, sir,' said the judge, 'not set, hens set.' 'I stand corrected, sir,' said the counsellor, bowing, Not long after, while giving an opinion, the judge remarked, that under such and such circumstances, an action would not lay. 'Lie, may it please your honour,' says the counsellor, 'not lay; hens lay.'
A debate once took place among the members of the court of another American state, as to how long they should set to dispose of the business before them. Three weeks at last were determined on. 'Why, in the name of wonder,' inquired a wag at the bar, 'do they not set four weeks, like other geese!"
Some workmen in Italy being on the point of hurling a stone from the roof of a house, called out to the persons passing to take care. A man going by, and neglecting the caution, was wounded by the fall of a stone; and summoning the workmen into a court of law, demanded damages. Pylaeus, a lawyer of much eminence in the twelfth century, was employed as counsel for the workmen; and finding that there was no possibility of procuring evidence that his clients had called out to the passers by, he advised them how to act accordingly. When the trial came on, and they were interrogated by the judge, and asked why they had hurled down the stone so carelessly? they made no answer. The judge repeated his question, but still they were silent. The judge astonished at this, Pylaeus informed him that his clients were unhappily deaf and dumb. 'Nay,' exclaimed the plaintiff, 'that' never can be, for I heard these very men cry out to everybody to take care.' 'If so,' said Pylaeus, 'I have proved what was necessary; no damages can be awarded, and they must be acquitted.'
A Dutch farmer, who had more honesty than wit, sold a milch cow to a swindler, who gave it a promissory note for the purchase money, him payable on St. Yetemos Day, a cant phrase in Holland, answering to the Latter Lammas-day in England, or as the schoolboys say, the Christmas that never comes. Some time after, a friend of the farmer, who possessed more shrewdness, on seeing this, explained to him how he was overreached, and advised him to bring an action for the debt, and entrust the management of the business to a celebrated lawyer, Mynheer Ploos Van Amstel, who was never known to lose a cause, however intricate. This advice was followed, and the cause was brought into court. M. Van Amstel enforced his client's claim with his usual eloquence, but in vain; the day of payment was indefinite; there was no such saint in the calendar. 'Nay, then,' replied the lawyer, 'justice will surely prompt the court to order the payment on All Saints Day, when St. Yetemos must be included among the rest.' This ingenious defence also failed. The Amsterdam judges were by some fatality on that day equally deaf to Van Amstel's arguments and his humour, and for the first time in his life he lost his cause.
When old Serjeant Maynard waited upon William the Third with an address and congratulation from the gentlemen of the bar, the king complimented the old man on his looking so well at his advanced age, adding, that he had outlived all his brother lawyers. 'Yes, sire,' replied the serjeant; 'and had it not been for your majesty's arrival, I should have outlived the law itself.'
An attorney in a distant part of Scotland, or as he is called there, a writer, representing to an oppressed and needy tacksman, who had applied to him for advice, the futility of entering into a lawsuit with a wealthy neighbour, having himself no means of defending his Cause, received for answer, 'Ye dinna ken what you say, maister; there's nae a puir man in Scotland need to want a friend, or fear an enemy, while Harry Erskine lives!'
How much honour did that simple sentence convey to the generous and benevolent object of it! He had indeed a claim to the affection avid respect of all who were in the knowledge of his extraordinary talents, and more uncommon virtues. To professional knowledge, and powers of eloquence of the highest order, he possessed a liberality of spirit which scrupled at no sacrifice or exertion, where private right was to be vindicated, or the public welfare promoted.
It is said that Swift, after having written that celebrated satire on mankind, 'Gulliver's Travels,' exclaimed, whilst meditating on the rare virtues of his friend Arbuthnot, 'Oh! were there ten Arbuthnots in the world, I would burn my book.' It is difficult to contemplate such a character as Henry Erskine's without a similar sentiment, without feeling that were there many Erskines, one should learn to think better of mankind.
The character of Mr. Erskine's eloquence bore a strong resemblance to that of his noble brother (Lord Erskine), but being much less diffusive, it was better calculated to leave a forcible impression. 'He was distinguished,' says Mr. Jeffrey, in an animated sketch which he has written of his departed friend, 'not only by the peculiar brilliancy of his wit, and the gracefulness, ease, and vivacity of his eloquence, but by the still rarer power of keeping those seducing qualities in perfect subordination to his judgment. By their assistance, he could not only make the most repulsive subjects agreeable, but the most abstruse easy and intelligible. In his profession, indeed, all his wit was argument, and each of his delightful illustrations a material step in his reasoning. To himself it seemed always as if they were recommended rather for their use than their beauty; and unquestionably they often enabled him to state argument, or a nice distinction, not only in a more striking and pleasing way, but actually with greater precision than could have been attained by the severer forms of reasoning. In this extraordinary talent, as well as the charming facility of his eloquence, and the constant radiance of good humour and gaiety which encircled his manner in debate, he had no rival in his own times, and as yet has had no successor.'
Like most men who have a high reputation in society for that wit and hilarity which render social converse so delightful, Mr. Erskine had for a long time the imputed property of almost all the bon mots and jeux d'espirits circulated in the northern metropolis. An abundant collection of happy thoughts and expressions, the genuine effusions of Henry Erskine, might certainly be formed, without pressing one of doubtful origin into the service; and it becomes therefore the more hazardous to offer anything in the light of specimens of so fertile an excellence. The following we give not as by any means characteristic of a mind which was once the delight and admiration of (perhaps) the most enlightened capital in Europe, but as the only specimens relating to our immediate subject which happen at the present moment to lie in our way.
Soon after being called to the bar, Mr. Erskine went a circuit in the train of the celebrated Lord Kaimes. His lordship, though a man of very enlarged mind, fell sometimes into the sin of being pitifully parsimonious; and on no occasion was he more apt to be so, than when he travelled and feasted at the public expense, and there was a possibility of saving something to himself out of the sum regularly allotted (in Scotland) to judges in their official county excursions. On the rising of the court one day, Lord K. invited Mr. E., with some other young barristers, to dine with him. When the cloth was drawn, the company found that hort alone was to be the order of the day; hint after hint was given to his lordship, that since the public were to pay, something better might be afforded; his lordship passed over every allusion of the kind unnoticed; and when at last the war oblique seemed verging towards a more direct order of hostilities, he turned towards Mr. Erskine, and with a view of shifting the subject, asked him very gravely, 'What could have become of the Dutch?' who had a short time before been drubbed off the Doggerbank by Admiral Parker. No shift could have been more unfortunate for his lordship. Mr. Erskine, with a smile replied, 'I suppose, my lord, they are like us, confined to Port.' Lord K., who with all his niggardliness had a mind sensibly alive to the sallies of genius, immediately ordered a supply of the best claret in the house to be placed on the table.
Some parts of the north-east coast of Scotland, are famous for a peculiar sort of small dried haddocks, called speldings, which are sent in large quantities to the southern counties, and form a prominent article of luxury at all the country fairs. The best idea that an English reader can form of this luxury is, to suppose himself chewing a strap of leather. The late eccentric Hugo Arnot, author of the 'History of Edinburgh,' who was in his person remarkably meagre, happening one day to come into the Parliament House exercising his jaws on one of these delicacies. Mr. Erskine stepping up to him, said, 'I wish you much joy, Mr. Arnot; I never saw you look so like your meat before.'
The same gentleman, Mr. Arnot, was remarkable for the looseness of his opinions with respect to futurity; while Mr. Erskine was as much distinguished on the contrary, for a deep sense of revealed religion, and an attention to every Christian ordinance. One Sunday afternoon Mr. A. happened to be on horseback, when he met Mr. Erskine returning from divine service. 'Where have you been, Harry?' said the historian. 'What has a man of your sense and education to do among a parcel of old women? What did you expect to hear? Where was your text?' 'Our text,' said Mr. Erskine, 'was in the sixth chapter of the Revelations: "And I looked and beheld a pale horse, and his name that sat on him was DEATH, and Hell followed with him.'
Mr. Arnot. who was actually mounted on a pale-coloured horse, felt the sarcasm in all its force; and muttering a hasty execration, rode off.
On the formation of what was called the Coalition Ministry, Mr. Erskine was appointed to succeed Mr. Henry Dundas (afterwards Lord Melville), in the important situation of Lord Advocate for Scotland. On the morning of receiving his appointment, he had an interview with Mr. Dundas in the Outer Parliament House; when observing that the ex-Premier had already resumed the ordinary stuff gown which all practitioners at the Scottish bar, except the Lord Advocate and Solicitor-General for the time being, are in the custom of wearing, gaily said, that 'he must leave off talking, and go and order his silk gown to be made.' 'It is hardly worth while,' said Mr. Dundas, dryly, 'for the time you will want it. You had better borrow mine.' Mr. Erskine, with admirable promptness, replied: 'From the readiness, Mr. Dundas, with which you make the offer, I have no doubt, that yours is a gown made to fit any party; but however short my time in office may be, it shall never be said of Harry Erskine, that he put on the abandoned habits of his predecessor.'
Mr. Dundas, though foiled in wit, had the advantage in prescience. Mr. Erskine held the office for little more than half a year; when the downfall of the Coalition Ministry carried his along with it.
The name of Andrew Crosbie, is well known to all those who are in the slightest degree acquainted with the modern forensic eloquence of Scotland. The imprudences that tarnished the splendour of his great talents, the vicissitudes that shed a malignant gloom over the evening of his days, it is painful to recollect and tedious to record. His latter indigence was extreme. While in this situation, Mr. Dundas, (afterwards Lord Melville) who had been Crosbie's rival at the bar, and his enemy in politics, gave him to understand, that a vacant seat in the Court of Session was ready for his acceptance.
'No,' said Crosbie, 'judges ought to be blameless, superior to corruption, as well in situation as in principle. I never will sacrifice the reputation of my country's tribunals to my necessities.'
The praise of good men will be divided between the generosity of the offer, and the magnanimity of the refusal.
On the 20th of July, 1789, an action was tried before the Court of King's Bench, brought by Mr. Spurrier, auctioneer, against a Mr. Beard, to recover a sum of about £230, being a charge of one per cent. commission for selling an estate.
Mr. Christie, the auctioneer of 'hanging wood' memory, was called as a witness for the plaintiff. He said, 'he had been an auctioneer upwards of twenty-five years. The business of an auctioneer, consisted in something more than in making bows, and in knocking down the hammer. It required a knowledge, grounded on experience; a proper acquaintance with all the circumstances belonging to the estate, and the mode of preparing proper advertisements to enlarge the ideas of the public.'
Mr. Erskine, who was counsel for the defendant, addressed the jury in a speech replete with wit and ingenuity. He said he found the profession of an auctioneer, was infinitely preferable, in point of pleasure and profit, to that of a barrister, for the difference between the charge of the present plaintiff and his, was as follows.
Auctioneer's charge. To a pleasant journey into Sussex, where I was hospitably entertained, (out two days) £230.
Mr. Erskine's charge. To pleading from nine in the morning till four in the afternoon, by which I was melted down by fatigue, to the size of a silver penny, £10 10s.
Mr. Erskine said. if auctioneers were paid the demand in question on every adventure, they would be the richest subjects in the nation. By enlarging the ideas of the public, which he found was the business of the gentlemen of the hammer, he supposed was meant, representing an estate to be worth £20,000, when it would only sell for £10,000.
The plaintiff was non-suited.
At the Lancaster assizes, September, 1817, an action was tried at the instance of Mr. Peter Hodgson, an attorney, against Mr. Scarlett, the counsel, for words spoken at the preceding Spring assizes for that county.
Mr. Raine, who opened the case for the prosecution, observed, that Mr. Hodgson had long been an eminent attorney in White-hog in the county of Cumberland, and applied now to a jury of his countrymen, in consequence of the wound given to his professional reputation, by Mr. Scarlett's language at the bar. 'The freedom of speech at the bar,' said Mr. R., 'is of the utmost importance, not only to the dignity of the bar, but to the interests of the public, whose high and delicate interests are entrusted to it. Of this freedom none can be a more strenuous and tenacious friend than I am. In importance and utility, I hold it to be of the same rank as freedom of discussion in the Commons House of Parliament. I have thus made the highest admission in favour of Mr. Scarlett; but bounds must be set to this freedom of speech; otherwise, from the greatest blessing, it becomes the bitterest curse that can infest and annoy society. These bounds were overleaped in this case. Mr. Scarlett, while addressing the jury for the defendant in an action in this court, went out of his way to traduce and vilify the character of the attorney for the plaintiff, and to wound his reputation. The words charged, and which we shall prove to have been spoken, are these.
"Some actions are founded in folly, some in knavery."'
Mr. B. Wood. That is surely true.
Mr. Raine. Yes, my lord, these are certainly truisms, but they are thus connected.
'Some in both; some actions in the folly and knavery of the attornies, and some in the folly and knavery of the parties.' My friend is not apt to deal in metaphysical abstraction; you know very well that he does not use words without application. We shall not attempt to prove his whole speech. You know with how little credit a long story is received from witnesses; but we shall prove the words here entered upon the record: 'Mr. Peter Hodgson was the attorney for the plaintiff; he drew the promissory note; he fraudulently got Beaumont to pay £150 to the plaintiff. This was the most profligate thing I ever knew done by a professional man.' Then follows the particular expression which we have charged in the second count on the record: it concludes the remarks already stated to you. The sting is always in the tail. 'Mr. Hodgson is a fraudulent and wicked attorney.' Now, gentlemen, I ask you, if you were wrong in any action brought into this court, how would you like such abuse of the freedom of speech, by a gentleman holding a high reputation at the bar? A humble individual, if he had not the spirit and the honour to vindicate his fame from such an attack, would be ruined. My client has the spirit and honour to repel it. He only wants the vindication of his injured character. You will take care, that he sustain no loss by the vindication. I do not ask for angry and vindictive damages. I ask no more than justice to my client; less than justice you will not give.
Mr. Baron Wood. Can you mention any action of the same kind, or upon what principle it can be maintained?
Mr. Raine. I do not know that any action of the kind has ever been brought.
Mr. Baron Wood. It appears to me that an action cannot be maintained for words spoken in judicial proceedings. If a counsel misbehaves, or goes too far, the judge who presides corrects his misconduct; but if an action is once maintained, there is no end of it. Actions of this kind would perpetually occupy the court. If a counsel were to pause in his pleading, and to say such a man is a great rogue, that would be actionable.
Mr. Raine. That is precisely our case. We say the libellous expressions were voluntarily and gratuitously used.
Mr. Baron Wood. No; whether a note was fraudulent or not, as I understand the record, for I know nothing of the nature of the first action.
Mr. Richardson. The privileges of Parliament have been alluded to. I apprehend that the question has not any resemblance to them.
Baron Wood. Why not?
Mr. Richardson. Well be it that the utmost freedom of speech is allowed; but to go out of the way to attack character!
Baron Wood. No, it was not out of the way; the words might be too severe, but they were connected with the note. It would be a dangerous precedent to receive an action on such a ground.
Mr. Topping, for the defendant. If such an action can be maintained, very different will be the situation of every client in a court of justice, when deprived of the free and vigorous exercise of his counsel, at full liberty, to apply his talents, learning, and industry, to the cause in which he is engaged. The words in the record are only the opinion, the inference, the comment, which my honourable and learned friend felt at the time to be merited. The facts of the case warranted the comment. The words were severe, because my honourable and learned friend felt severity to be warranted. They were the comments which the learning and ability of my friend suggested on the facts proved. 'Some actions are founded in folly.' That action was so, for it ended in a nonsuit. The whole passage was not respecting the character of Mr. Hodgson in general, but in this case. If the counsel are not allowed to comment on the facts proved, there is an end of the British Bar's utility; its energies are paralyzed for ever: without those fair and honourable exertions which are thus attempted to be suppressed, it will be neither creditable nor useful. The expressions used by my friend were called for and merited in my opinion. But it was necessary not only to prove that they were false, but malicious. Good God! will it be said that we feel any malice against a party, against whom we exert ourselves at this bar? Will your lordship be the first judge to fetter the bar; and, if I may use a coarse and vulgar expression, to oblige every counsel to address a jury with a halter about his neck? The danger is palpable and plain. Your lordship will not allow, in 1817, a principle to be established hitherto unknown to English law.
Mr. Raine (in reply). The words are false. The comment was unmerited. That they were malicious, I may say, appears on the face of the expressions. I have been twitted twice; one sneer would be enough for not citing a case. I distinctly admitted that I knew no case. The question is, whether there are no bounds, and counsel may go any length? If there are, to call my client fraudulent and wicked, was going beyond the bounds and limits which must be fixed.
Mr. Baron Wood was not for giving sanction to this action, brought for the first time, because it would be most mischievous, not merely to the bar, but to the public. The words might overstep the bounds of propriety, and be too severe, but they were not to be corrected by such an action. If they had been said elsewhere, if they had been published, they could have been punished. In the privileges of parliament it was the same. The principle was this: whatever is said in judicial or legislative proceedings, is not actionable. It had been said, some limits must be set. His objection to this action was the difficulty of fixing limits. During one assize they might have nothing to do but try actions brought for words used by counsel at the previous assize. The htaintijlr was non,suited.
A motion was afterwards made in the Court of King's Bench, for setting aside the nonsuit; when, after a long argument, the judges thus delivered their opinions.
Lord Ellenborough said, the law privileges many communications which otherwise might be considered calumnious, and the subject of actions: in those, for instance regarding the characters of servants, it is necessary, for the convenience of mankind, that there should be a free disclosure; and if it be made bona fide, and without express malice, without a design to state what is untrue and unprovoked, the law protects it from being the subject of an action. So in the case of counsel, who are appointed by the parties as better able to conduct their causes, the client consigns his interests to a counsel, who only speaks from information; and he is privileged, when commenting upon the evidence or instruments produced in the course of the trial. I should say, that in the present case the language is strongly charged; for it accuses Mr. Hodgson of a fraud between man and man, and with wickedness in foro divino. This was perhaps not displaying that forbearance which it might be prudent to adopt; but yet I cannot say the accusation did not arise out of the subject matter of the case. If the attorney knowingly placed the parties in a situation where they must undoubtedly be sufferers without any benefit, it does seem to give a colour to the charge of being fraudulent and wicked: I cannot say that there is no reasonable or probable cause for a counsel so to state, in the exercise of his duty of commenting. It appears to me that the words spoken were uttered in the cause, and relevant to the cause; and consequently that the action is not maintainable.
Mr. Justice Bayley thought that the expressions were harsh, but that they came within the privilege.
Mr. Justice Abbot concurred: words used in the course of a judicial enquiry, relevant and pertinent to the matter in issue, are not actionable, unless it appear that the counsel availed himself of his situation to gratify personal malice previously entertained against the person slandered. Justice could not be properly administered, if on every occasion, counsel were to be questioned for the strength of an expression employed in the fair conduct of a cause. Here the words were relevant and pertinent; and if a new trial were granted, the result would, and ought to be, the same as it had been.
Mr. Justice Holroyd observed, that the slanderous words only expressed the opinion of an individual to the jury, who were subsequently to decide upon the merits, and whether the counsel had spoken truly or untruly. A less latitude ought to be allowed to counsel than to parties, on account of their superior knowledge and cooler temperament; but they were not liable to actions, unless it clearly appeared that the slander had no relation to the cause. He referred to four cases in Hawkins, Saunders, and Coke, in order to show that parties were not liable for words in the course of a judicial proceeding, unless express malice were established. He thought the present action not maintainable, for the reasons stated by the rest of the court.- The Rule for setting aside the nonsuit was discharged.
The late Counsellor, E---, Chairman of the Quarter Sessions for Dublin, was so remarkable for his lenity to female culprits, that a woman was seldom convicted when he presided. On one occasion when this humane barrister was in the chair, a prim-looking woman was put to the bar of the Commission Court, at which presided the equally humane, though perhaps not so, gallant, Baron S---. She was indicted for uttering forged Bank Notes. According to usual form of law, the Clerk of the Crown asked the prisoner if she was ready to take her trail? With becoming disdain, she answered, 'No!' She was told by, the Clerk, she must give her reasons why. As if scorning to hold conversation with the fellow, she thus addressed his lordship. 'My Lord, I wont be tried here at all. Ill be tried by my Lord E---.' The simplicity of the woman, coupled with the well-known character of E---, caused a roar of laughter in the Court, which even the Bench could not resist. Baron, S---, with his usual mildness was about to explain the impossibility of her being tried by the popular judge, and said, 'He can't try you-' when the woman stopped him short, and with an inimitable sneer, exclaimed, 'Can't try me! I beg your pardon, my lord; he tried me twice before.' She was tried, however; and, for the third, time, acquitted!
Lord Camden once presided at a trial, in which a charge was brought against a magistrait for false imprisonment, and for setting the plaintiff in the stocks. The counsel for the magistrate, in his reply, said, the charges were trifling, particularly that of setting in the stocks, which everybody knew was no punishment at all. The Chief justice rose, leaning over the bench, said in a half whisper, 'Brother, were you ever in the stocks?' 'In the stocks, my lord! no, never.' 'Then I have,' said his lordship, 'and I assure you brother, it is no such trifle as you represent.' His lordship's knowledge of the stocks, arose from the following circumstance. When he was on a visit to Lord Dacre, his brother-in-law, at Alveley in Essex, he walked out one day with a gentleman remarkable for his absence of mind. When they had reached a hill, at some distance from the house, his lordship sat down on the parish stocks, which stood by the road side; and afters some time asked his companion to open them, as he wished to know what the punishment was; the absent gentleman took a book from his pocket, and sauntered about, until he forgot both the judge and his situation, and returned to Lord Dacre's house. When the judge was tired of the experiment he had so rashly made, he found himself unable to open the stocks; and asked a countryman who passed by to assist him. 'No, no, old gentleman,' replied Hodge, 'you was not set there for nothing.' Lord C- protested his innocence, but in vain; the countryman walked on, and left his lordship to meditate for some time longer on his foolish situation, until some of Lord D's. servants chancing to pass that way, released him.
In the Court of Session in Scotland, the judges who do not attend, or give a proper excuse for their absence, are, by law, liable to a fine. This law, however is never enforced; but it is common on the first day of the Session, for the absentee to send an excuse to the Lord President. Lord Stonefield having sent such an excuse, on the President mentioning it, the late Lord justice, Clerk Braxfield said, in his broad dialect, 'What excuse can a stout fellow like him hae?' 'My lord,' said the President, 'he has lost his wife.' The justice, who was fitted with a Xantippe, replied, 'Has he? that is a gude excuse indeed; I wish we had a' the same'
Curran's notions of industry were somewhat ludicrous. An hour to him, was a day to another man; and in his natural capabilities his idleness found a powerful auxiliary. A single glance made him master of the subject; and though imagination could not supply him facts, still it very often became a successful substitute for authorities. He once said, in serious refutation of what he called the professional calumnies on this subject, that he was quite as laborious as was necessary for any Nisi Prius advocate to be: 'For,' said he, with the utmost simplicity, 'I always perused my briefs carefully when I was concerned for the plaintiff; and it was not necessary to do it for the defendant, because, you know, I could pick up the facts from the opposite counsel's statement.' This was what Curran considered being laborious; and, to say the truth, it was at best but an industrious idleness.
Judges and Witnesses.
At a Nisi Prius Court at York, in a cause of damages for an assault, a countryman, a friend of the plaintiff, gave a most clear and circumstantial evidence to all the main facts. Just before he was quitting the box, the Learned Judge, Baron Richards, asked him how old he thought the person assaulted might be? The witness pertinaciously avoided giving any information on this head. 'Is he twenty, thirty, or forty?' said the judge. The witness still persisted that he could not tell.
At length the judge said, 'Now in all probability you have never before seen me, nor I you, yet I think I could form a pretty correct guess at your age.' 'Very likely,' replied the honest countryman, 'but you are a better Judge than I am.' This reply produced a general laugh, while the witness stood amazed at being the unconscious cause of all the mirth. At length the Judge resumed; and having no further questions to put, said, 'Good morning, my friend.' The witness withdrew from the box; but to the amazement of the Court, thinking he had not quite properly behaved, quickly resumed his place, and significantly said, 'Good morning, sir!'
A litigious fellow of an attorney brought an action against a farmer for having called him a rascally lawer. An old husbandman being a witness, was asked if he heard the man call him a lawyer? 'I did,'was the reply. 'Pray,' says the Judge, 'what is your opinion of the import of the word?' ' There can be no doubt of that,' replied the fellow. 'Why, good man,' said the judge, 'there is no dishonour in the name, is there?' 'I know nothing about that,' answered he, 'but this I do know, if any man called me a lawer, I'd knock him down.' 'Why, sir,' said the judge, pointing to one of the counsel, 'that gentleman is a lawyer, and that, and that, and I too am a lawyer.' 'No, no,' replied the fellow; 'no, my lord: you are a Judge, I know; but you are not a lawer, I'm sure.'
Counsel and Witnesses.
A gentleman who was severely cross-examined by Mr. Dunning, was repeatedly asked if he did not lodge in the verge of the court; at length he answered. that he did. 'And pray, sir,' said the counsel, 'for what reason did you take up your residence in that place?' 'To avoid the rascally impertinence of dunning,' answered the witness.
When Serjeant Cockle was on the Northern Circuit, he once told a witness that he was very saucy, and followed up the remark by asking, 'Pray what sauce do you like best?' 'Any sauce, but Cockle sauce,' was the reply.
At an Old Bailey Sessions in 1788, a learned counsel thus examined a witness: 'What are you?' 'A Jew.' 'Well, what is your Christian name?' ' I never vas christened, my lord, but my name is Moses Levi.'
A witness at the Assizes at Kilkenny, being asked if when he was examined before a magistrate, he did not give a very different account of the transaction from what he now delivered, he admitted the fact, but said, that he was humbugged in the business. 'Humbugged, fellow!' exclaimed the opposite counsel, who was not very famous for his talents, 'I don't know what you mean.' 'Don't you, sir?' said the man; 'why then, upon my conscience, I must try to explain it in your own way, by putting a case. Suppose now I should tell his lordship and the gentlemen of the jury, that you were an able counsel, and they were to believe me, every mother's son of them would be humbugged, my dear, that's all.'
Mr. Curran cross-examining a horse jockey's servant, asked his master's age. 'I never put my hand in his mouth to try,' answered the witness. The laugh was against the counsel, until he retorted. 'You did perfectly right, friend, for your master, is said to be a great bite.'
On another occasion., Mr. Curran was examining Lundy Foot, the celebrated tobacconist; he put a question, at which Lundy hesitated a good deal. 'Lundy,' said Curran, 'that's a poser, a deuce of a pinch, Lundy.'
At a trial in Westminster Hall, an Irishman, who was a witness in a cause respecting some occurrence at a table where he dined frequently, being asked on his cross-examination, how he could possibly recollect the circumstances of that day in particular, when he had dined constantly at the same table for months; 'Recollect it,' replied Pat, 'how could I forget it? the dinner was a roast shoulder of mutton, in July, without potatoes.'
Mr. Curran distinguished himself not more as a barrister, than as a Member of Parliament; and in the latter character, it was his misfortune to provoke the enmity of a man whose thirst of revenge was only to be satiated by the utter ruin of his adversary. On the discussion of a Bill of a penal nature, Mr. Curran inveighed in warm terms against the Attorney General, Mr. Fitzgibbon, for sleeping on the bench, when statutes of the most cruel kind were enacting; and he ironically lamented that the slumber of guilt, should so nearly resemble the repose of innocence! A message from Mr. Fitzgibbon, was the consequence of this sally; and the parties having met, were left to fire when they chose. 'I never,' said Mr. Curran, relating the circumstances of the duel, 'I never saw anyone whose determination seemed more malignant than Fitzgibbon's; after I had fired, he took aim at me for at least half a minute; and on its proving ineffectual, I could not help exclaiming to him, 'It was not your fault, Mr. Attorney; you were deliberate enough.' The Attorney General declared his honour satisfied; and here, at least for the present, the dispute appeared to terminate.
Not here, however, terminated Fitzgibbon's animosity. Soon after, he became Lord and a Peer of Ireland; and in the former capacity, found an opportunity, by means of his judicial authority, ungenerously to crush the rising powers of his late antagonist. Mr. Curran, who was at this time a leader, and one of the senior practitioners at the Chancery bar, soon felt all the force of his rival's vengeance. The Chancellor is said to have yielded a reluctant attention to every motion he made; he frequently stopped him in the midst of a speech; questioned his knowledge of law; recommended to him more attention to facts; in short, he succeeded :hot only in crippling all his professional efforts, but actually to leave him without a client. Mr. Curran. indeed, appeared as usual in the three other courts; but he had been already stripped of his most profitable practice; and as his expenses nearly kept pace with his gains, he was almost left a beggar; for all hopes of the wealth and honours of the long robe were now denied him. The memory of this persecution embittered the last moments of Curran's existence; and he could never even allude to it without evincing a just and excusable indignation. In a letter which he addressed to a friend, twenty years after, he says, 'I made no compromise with power; I had the merit of provoking and despising the personal malice of every man in Ireland who was the known enemy of the country. Without the walls of the court of justice, my character was pursued with the most persevering slander; and within those walls. though I was too strong to be beaten down by any judicial malignity, it was not so with my clients; and my consequent losses in professional income have never been estimated at less, as you must have often heard, than £30,000.'
The incidents attendant upon this disagreement, were at times ludicrous in the extreme. One day, when it was known that Curran was to make an elaborate argument in Chancery, Lord Clare (the title of Fitzgibbon) brought a large Newfoundland dog upon the bench with during the progress of the argument, his ear much more to the dog than to the barrister. At last the Chancellor seemed to lose all regard to decency; he turned himself quite aside, in the most material part of the case and began in full court to fondle the animal. Curran stopped short: 'Go on, go on, Mr. Curran,' said Lord Clare. 'Oh!' replied Mr. Curran, 'I beg a thousand pardons, lord; I really took it for granted that your lordship was employed in consultation.'
A Scottish advocate (we believe the present Lord H---), who had drank rather too freely, was called on unexpectedly to plead in a Cause in which he had been retained. The lawyer mistook the party for whom he was engaged, and, to the great amazement of the agent who had feed him, and the absolute horror of the poor client who was in court, he delivered a long and fervent speech, directly opposite to the interests he had been called upon to defend. Such was his zeal, that no whispered remonstrance, no justling of the elbow, could stop him, in medio gurgile dicendi. But just as he was about to sit down, the trembling solicitor in a brief note informed him, that he had been pleading for the wrong party. This intimation, which would have disconcerted most men, had a very different effect on the advocate, who, with an air of infinite composure, resumed his oration. 'Such, my lords,' said he, 'is the statement which you will probably hear from my learned brother on the opposite side in this cause. I shall now therefore beg leave, in a few words, to show your lordship how utterly untenable are the principles, and how distorted are the facts, upon which this very specious statement has proceeded.' The learned gentleman then went over the whole ground, and did not take his seat until he had completely and energetically refuted the whole of his former pleading.
A similar circumstance happened in the Rolls Court, on the 11th of July, 1788.
Mr. A., an eminent counsel, received a brief in court a short time before the case was called on, for the purpose of opposing the prayer of a petition. Mr. A. conceiving himself to be the petitioner, spoke very ably in support of the petition, and was followed by a counsel on the same side. The Master of the Rolls then enquired who opposed the petition? Mr. A. having by this time discovered his mistake, rose in much confusion., and said, that he felt really much ashamed for a blunder into which he had fallen, but that instead of supporting the petition, it was his business to have opposed it. The Master of the Rolls, with great good humour, desired him to proceed now on the other side, observing, he knew no counsel who could answer his arguments as well as himself.
In the trial of Hardy for high treason, Mr. (afterwards Sir Vicary) Gibbs, in rising to address the jury on behalf of the prisoner, fainted away. After he had somewhat recovered himself, he turned about suddenly, and bursting into tears, assured the jury that it was his anxiety for the miserable man at the bar, his own consciousness of his inability to do him that justice in his defence that he wished, that had overpowered him.
A very respectable gentleman once appeared at Westminster Hall, to justify bail. The counsel determining to be very witty upon him, opened upon him in the following extraordinary manner:
'Pray' sir is there not a certain lady who lives with you ?'
'Yes, sir, there is.'
'Oh. there is: and I suppose, if the truth were known, that lady has been very expensive to you?'
'Yes, sir, that lady has been very expensive to me.'
'And I suppose now you have had children by that lady, and they too have cost you a good deal of money?'
'Yes, they have.'
'And yet you come here to justify bail to a large amount!'
The counsel thought he had now done enough to prevent the confidence of the court being placed in the gentleman; when the latter raising his voice, indignantly said, 'It is true, Mr. Counsellor, that there is a lady with me, but that lady is my wife; we have been married these fifteen years, and have children; and whoever has a wife and children, will find them expensive.`
The counsellor looked a little foolish at this unexpected retort, which the gentleman followed up by asking him (with permission of the bench) 'whether in his brief, or otherwise, he had instructions to insult a respectable citizen, and a man of honour, by impertinent questions?' To this, as may be expected, no answer was made.
An Irish colonel of dragoons, previous to a trial in which he was the defendant, was informed by his counsel that if there were any of the jury to whom he had any personal objections, he might legally challenge them. 'Faith, and so I will.' replied the son of Mars; 'if they do not bring me off handsomely, I will challenge every man of them.'
The following anecdotes belong more properly perhaps to the bench than the bar; but the learned judge to whom they relate would say that ought not to be a bar to their insertion. Lord Norbury, whose love of punning is proverbial, and not always very consistent with the dignity of the bench, gave the following characteristic specimen of this foible in a civil action respecting the validity of an alleged marriage between a Mr. Watson and a Margaret Lee. His lordship began by congratulating Mr. Clarke (who closed the case for the plaintiff) on the great powers of his Stentorian lungs, which he had used so effectually, as to have made himself heard, not only by every person in the court, but by the very passengers in the mail-coaches that went by the window: he was highly pleased to see Mr. Clarke exert himself so ably for his client; he wished at all times to hear free and independent advocates, and did not think that now and then a dash at the judge and jury was at all amiss. But really Mr. Clarke had raised his voice to such a Hunting pitch, he had almost imagined himself in Spafields, or Smithfield at least. With respect to Mr. Meara's deposition about selling tubs, he did not think his 'Tale of a Tub' could have much weight. He begged to call the attention of the jury to the evidence of Mrs. Salter, and notwithstanding that she had been well salted in her cross-examination, he would request them to contrast it with that of Margaret Lee, and 'Look on this picture, and on that.' The jury would recollect the evidence of Gunman, who proved that both before and after the marriage was alleged to have taken place, Margaret Lee used to dine with Mr. Watson's servants, called him master, and, in short, instead of his having respected her as Mrs. Watson, he treated her as one of the very 'Lees' of society. His lordship summed up the remainder of the evidence, and concluded by congratulating the court and the jury that this trial was so nearly closed, for, from its great length, he feared it would have become a 'Watson's Sheet Almanack,' and detain them the whole year.
Giving judgment in another case in the Court of Common Pleas in Dublin, his lordship observed that it was quite insufficient for the demandant in a writ of right to say 'he claimed by descent.' 'That,' continued his lordship,' would be a shrewd answer for a sweep who had got into your house by coming down the chimney: "Pray, sir. how did you get into my house?" "I got in by descent." Facilis descensus averni; and this would be an easy and a sweeping way of getting in.'
During a trial at the Carlow Assizes in 1819, on an indictment against Dennis Nowlan and Edward Furlong for stealing thirty pounds of tobacco, the following confessions were extracted from James Ferris, an accomplice in the robbery, who was admitted king's evidence. He was cross-examined by Mr. Green:
Q. Witness, how many gaols have you been in?
A. Only two, and not more than once in each.
Q. How many robberies have you been at altogether?
A. Together! (laughing) why, sure I could not be at more
than one at a time.
Q. You certainly have knocked me down by that answer. (Loud laughing in court.) Come, now, tell us how many you have been at?
A. I never put them down; for I never thought it would come to my turn to give an account of them.
Q. By virtue of your oath, sir, will you swear that you
have not been at fifteen?
A. I would not (witness laughing).
Q. Would you swear that you have not been at twenty?
A. I would not (still laughing).
Q. Do you recollect robbing the Widow Byrne, in the county of Wicklow?
A. The Widow Byrne, who is she? May be it is big Nell you mean. Oh! I only took a trifle of whisky from her, that's all.
Q. Was it day or night?
A. (laughing) Why it was night, to be sure.
Q. Did you not rob the poor woman of every article in the house; even her bedclothes, and the clothes off her back?
A. I took clothes, but they were not on her back.
Q. Do you recollect stealing two flitches of bacon from Doran, the Wexford carman?
A. Faith I do, and a pig's head beside.
(Loud laughing in court.)
Q. Do you recollect robbing John Keogh, in the county of Wicklow, and taking every article in his house?
A. You're wrong there; I did not take everything; I only took his money and a few other things! (Witness and the auditory laughing immoderately.)
Q. Why, you're a mighty good-humoured fellow!
A. There is not a better-humoured fellow in the county - there may be honester!
The prisoners were acquitted, to the evident satisfaction of a very crowded court.
James Ferris, the approver, was then indicted for the robbery. He pleaded guilty; and while the Clerk of the Crown put the usual question to the prisoner, 'What have you to say why sentence of death and execution shall not be pronounced against you?' the fellow pleaded the benefit of the statute, and laughed in his face.
The following jeu d'esprit, from the pen of David Garrick, was sent by him to Mr. Counsellor Hotchkin, at a time when Garrick was involved in a law suit, respecting the possession of a house at Hampton:-
David Garrick to Mr. Hotchkin, his counsellor and friend.
On your care must depend the success of my suit,
The possession I mean of the house in dispute;
Remember, my friend, an attorney's my foe,
And the worst of his tribe, though the best are so-so;
In law, as in life, I well know 'tis a rule,
That the knave should be ever too hard for the fool;
To this rule one exception your client implores,
That the fool may for once kick the knave out of doors.
Dean Swift having taken a strong dislike to Serjeant Bettesworth, revenged himself by the following lines in one of his poems:-
So at the bar the booby Bettesworth,
Tho' half-a-crown out-pays his sweat's worth,
Who knows in law, nor text, nor margent,
Calls Singleton his brother Serjeant.
The poem was sent to Bettesworth when he was in company with some of his friends. He read it aloud till he had finished the lines relating to himself. He then flung it down with great violence, trembled, and turned pale. After some pause, his rage for a while depriving him of utterance, he took out his penknife, and swore he would cut off the dean's ears with it. Soon after he went to seek the dean at his house, and not finding him at home followed him to a friend's, where he had an interview with him. Upon entering the room, Swift desired to know his commands. 'Sir,' says he, 'I am Serjeant Bettes-worth,' in his usual pompous way of pronouncing his name in three distinct syllables. 'Of what regiment, pray?' says Swift. 'O, Mr. Dean, we know your powers of raillery; you know me well enough, that I am one of his majesty's serjeants at law.' 'What then, sir?' 'Why then, sir, I am come to demand of you whether you are the author of this poem (producing it) and the villainous lines on me?' at the same time reading them aloud with great vehemence of emphasis and much gesticulation. 'Sir,' said Swift, 'it was a piece of advice given me in my early days by Lord Somers, never to own or disown any writing laid to my charge, because if I did this in some cases, whatever I did not disown afterwards would infallibly be imputed to me as mine. Now, sir, I take this to have been a very wise maxim, and as such have followed it ever since; and I believe it will hardly be in the power of all your rhetoric, as great a master as you are of it, to make me swerve from that rule.' Bettesworth replied, 'Well since you will give me no satisfaction in this affair, let me tell you that your gown is alone your protection,' and then left the room.
The serjeant continuing to utter violent threats against the dean, there was an association formed and signed by all the principal inhabitants in the neighbourhood, to stand by and support their general benefactor, against anyone who should attempt to offer the least injury to his person or fortune. Besides, the public indignation became so strong against the serjeant, that although he had made a considerable figure at the bar, he now lost his business, and was seldom employed in any suit afterwards.
On the trial of Guy Fawkes and his associates for the Gunpowder Plot, Sir Edward Phillips, his Majesty's Serjeant-at-Law, opened the pleadings in the following singular manner: 'The matter that is now to be offered to you, my Lords Commissioners, and to the trial of you, the Knights and Gentlemen of the jury, is matter of treason; but of such horror and monstrous nature, that before now,
The tongue of man never delivered,
The ear of man never heard,
The heart of man never conceived,
Nor the malice of hellish or earthly devil ever practised.
For if it be abominable to murder the least;
If to touch God's anointed be to oppose themselves against God;
'If (by blood) to subvert Princes, States, and Kingdoms, be hateful to God and man, as all true Christians must acknowledge; then how much more than too monstrous shall all Christian hearts judge the horror of this treason; to murder and subvert
Such a king,
Such a queen,
Such a prince,
Such a progeny,
Such a State,
Such a Government,
So complete and absolute,
That God approves,
The world admires,
All true English hearts honour and reverence,
The Pope and his disciples only envy and malign.`
The proceeding wherein is properly divided into three general heads:
First, matter of declaration.
Second, matter of aggravation.
Thirdly, matter of probation.
Myself am limited to deal only with the matter of declaration, and that is contained within the compass of the Indictment only.
For the other two, I am to leave to him to whose place it belongeth.'
This was to Sir Edward Coke, then Attorney-General, who was as quaint, and more verbose, than the learned serjeant.
When Henry Garnet, the Jesuit, was tried for being concerned in the same plot, Sir Edward Coke took an extensive review of the various conspiracies against Queen Elizabeth, as well as his Majesty, James the First, whose descent he described with great minuteness. After he had traced him down to the union of the Houses of York and Lancaster, he said, 'But a more famous union is, by the goodness of the Almighty, perfected in his majesty's person of divers lions, two famous ancient and renowned kingdoms, not only without blood or any opposition, but with such an universal acclamation and applause of all sorts and degrees (as it were with one voice) as was never before seen or read of. And therefore, most excellent king, for to him I will now speak:
'Cum triplici fulvum conjunge bone leonem,
Ut varias Atavus Junxerat ante Rosas:
Majus opus varios sine pugna unire leones,
Sanguine quam varias consociasse Rosas.'
'These four noble and magnanimous lions, so firmly and individually united, are able without any difficulty or great labour, to subdue and overthrow all the letters and bulls (and their calves also) that have been or can be sent into England.
The rise of Noy, the Attorney-General in the reign of Charles I., is not perhaps generally known to have originated in a case which is very well known, that of the three graziers. At a country fair, the three graziers had left their money with their hostess, while they went to transact their business. A short time after, one of them returned, and under pretence that they had occasion for the whole money, received it from the hostess, and made his escape with it. The other two sued the woman for delivering that which she had received from the three, before the three came and demanded it. The cause was tried, and a verdict found against the defendant.
Mr. Noy, who was then making his first appearance at the bar, requested to be feed by the woman, saying that he thought he could still bring her off. He then moved an arrest of judgment, stated that he was retained by the defendant, and that the case was this: The defendant had received the money from the three together, and was certainly not to deliver it until the same three demanded it. She asks for no other condition; let the three men come, and it shall be paid. This motion altered the whole course of proceeding; and, according to Lloyd, in his 'State Worthies', first brought Mr. Noy into notice.
Noy was unquestionably a man of great abilities, but flattered so much upon that account, that Clarendon says, he thought 'he could not give a clear testimony, that his knowledge in the law was greater than all other men's, than by making that law which all men believed not to be so. So he moulded, framed, and pursued the odious and crying project of soap, and with his own hand drew and prepared the writ for ship money; both which will be the lasting monuments of his fame.'
On the trial of the celebrated Colonel Lilburne for high treason, during the Protectorship, he addressed the following demand to the court: 'I desire to know whether, after I have pleaded to matter of fact, you will permit me to speak to the jury, on whose integrity my life depends; and who are judges of law as well as fact, and you only the pronouncers of their will; you, who call yourselves judges of the law, are only Norman intruders, cyphers to pronounce their sentence, who are judges of law as well as fact.'
Judge Jermyn. 'Was ever such blasphemous heresy, to call the judges cyphers? The judges have been judges of law, from the first settlement of the law of England, and the jury only judges of fact.'
Lilburne. 'If you will permit me to read, I will disprove this from your own law: here is the first part of 'Coke's Institutes' (holding the book in his hand), which all lawyers allow to be good law; and here Coke says, that a special verdict, or at large, may be given upon an issue; but if they will take upon them the knowledge of the law, they may give their verdict general.'
The prisoner then objected, 'that some of the books laid in the indictment were published before the act on which he was indicted took place; and urged that where there was no law there could be no transgression. He observed further, that it was the intention, and not the act, which made a thing criminal; and he had always consulted the prosperity of the nation, though it was true he had been proclaimed a traitor in all the great towns in and imprisoned for crimes with had never been since charged; and now, for complaining of hard usage, acts were made on purpose to bring him within a charge of high treason.'
The court observed that this was nothing to the purpose; they should not suffer him to go on at this rate.
Lilburne. 'Well, if you will not let me proceed, my blood be upon your heads: I desire the jury will take notice of your unjust and cruel usage.' He then resigned himself to the care and consciences of his fellow Citizens, the honest jury; who (he again observed) were judges of the law, as well as fact; and prayed God to direct them to act according to justice.
'Whereupon,' says the old record. 'the audience cried "Amen!" and gave a great hum; and the judges, apprehensive of a tumult, directed Major-General Skippon to send for three companies of soldiers more for their protection.'
Prideaux, the Attorney-General, summed up the evidence, and told the jury that if they hid any remembrance of the great and wonderful things their renowned army had done, and with what confidence and despite to all and authority Lilburne had published those books, they would take care he should smart for it; concluding, that the court were Judges of the law, as the jury were of the fact.
Judge Keble, in his directions to the jury, told them that this was the greatest treason that ever was attempted by one man; that it struck at the subversion of the Commonwealth, and to have laid them all in blood; and left it to their consciences, if Lilburne had not been guilty of the most transcendent treason that ever was hatched in England.
The jury, before they went out, desired they might nave a quart of sack to refresh themselves, but were told no jury were ever allowed to drink in capital cases, and it was thought a great indulgence to permit them to have a candle.
The jury returning into court about an hour afterwards, gave in their verdict that the prisoner was NOT GUILTY; at which the people, when told, shouted for half an hour, without ceasing.
Notwithstanding Mr. Lilburne was acquit, he was remanded to the Tower; and Major-General Skippon ordered to guard him thither, with a good body of troops. The multitude followed him with loud acclamation to the Tower gates; and the nation in general appeared afterwards so exasperated at Lilburne's being continued a prisoner, that the Council of State, on the 8th of November, thought fit to direct their warrant to the Lieutenant of the Tower to discharge him.
Cromwell appears to have been under great apprehensions from the daring spirit of this man, and could not rest till he got an Act of Parliament passed for his banishment, whereby it was declared that he should be adjudged guilty of felony if ever he appeared in England after a certain limited time. Lilburne, however, paid but little regard to this stretch of power; he was afterwards found in England, and brought to trial at the Old Bailey, on that Act of Banishment, but again acquitted by the jury. The Parliament were so incensed at this result that they ordered the jurors to be apprehended, and brought before the Council of State, to show cause why they acquitted the prisoner of felony, against the plainest evidence; but though all the jury were separately examined and threatened, they would give no other answer but that they looked upon themselves to be judges of the law as well as the fact, and gave the verdict according to their consciences. Cromwell had at last no other way to defend his usurpation against the attacks of this brave and popular man but by imprisoning him arbitrarily in Dover Castle, where he died a martyr to liberty.
A medallion was struck, to commemorate the triumph of Lilburne on his original acqittal from the charge of high treason. It had on one side these words:
John Lilburne, saved by the power of the Lord, and the integrity of his jury, who are judges of the law as well as of fact, Oct. 26, 1649.'
The reverse presented the names of the jurymen, in several circles, one within the other, with a rose in the centre:
'Miles Petty, Ste. Iles, Abr. Smith, John King, Mic. Murin, Tho. Dainty, Edm. Keysar, Eder. Parkins, Rob. Packman, Wil. Comins, Ly. Widon, Hus. Towlin, Oct. 26, 1649.'
The opinion delivered in this trial by judge Jermyn, that the doctrine of juries being judges of the law as well as the fact, was a blasphemous heresy; an opinion so favourable to tyranny, and tending, as Sir John Hawles well observed 'to defeat the principal end of the institution of juries, and so subtilly to undermine that which was too strong to be battered down' was afterwards supported by the infamous Jefferies, and was again revived under the powerful auspices of Lord Chief Justice Mansfield. 'Upon the reason of the thing,' said he, 'and the eternal principles of justice, the jury ought not to assume the jurisdiction of the law.'
At length, however, it was thought necessary to bring in a bill declaratory of the law of libel, which completely settles the disputed or disputable points; and in cases of indictments, or informations for libels, leaves not a loophole for corrupt or ambitious judges. Lord Kenyon called this bill 'a race for popularity,' and repeatedly declared that he should 'have acted exactly the same before as after the Libel Bill, so very clear was he respecting the doctrine.'
In the year 1689, several persons were indicted in Ireland for stealing cows, but the witnesses against most of them durst not appear to prosecute. Witnesses being brought against three of them, Michael Cavenagh, Edmund Poor, and William Bowland, Justice Keating, who appears to have acted in a manner very derogatory to the dignity and impartiality of a judge, said to the witnesses:
'I charge you, as you will answer it before God, that you neither, for favour nor affection, be inclined to spare any of these villains.'
Two Protestant witnesses against Cavenagh, hearing judge Keating speak against skeans (a sort of long dirk) one of them said :
'My lord, when we seized him, we took a skean away from him.'
Justice Keating. Sir, how durst you carry such an unlawful weapon?
Cavenagh. My lord, I am a butcher; it was a butcher's knife.
Justice Keating. Aye, I do not question but thou canst butcher upon occasion.
One Hick said, 'My lord, he is no butcher, but one of the greatest rogues in the country round us. I have been in pursuit of him several times.'
Cavenagh. He is a murderer, my lord, do not believe him.
A Witness. My lord it was near ten inches long, thick at the back, and sharp point, every way a skean.
Justice Keating. Is that your butcher's knife? You are a great villain for carrying such a weapon.
Cavenagh. I was ordered to have a skean, my lord.
Justice Keating. Pray, sir, who ordered you?
Cavenagh. The priest of the parish.
Justice Keating. A priest, Sir! (turning to his brother judge) Do you hear that, brother?
Baron Lynch. What priest, sir? what priest? what is your priest's name?
Justice Keating. Hold, brother. Come, I shall not ask your priest's name, I believe you will have occasion to see your priest soon, to do you a better office than to advise you to carry skeans. It is not for priests to arm or animate such villains as you are for mischief. I shall not ask your priest's name.
Clancy, an Irish gentleman. My lord, he belies the priest; he is a rogue.
Cavenagh. I do not. The priests of every parish did give orders to get half-pikes and skeans; and they were getting together in companies in every p