Part 19 (1/2)
”Your humble servant,
”ERSKINE.
”To save you from spending your money on bets which you are sure to lose, remember that no man can be a great advocate who is no lawyer.
The thing is impossible.”
Of the many good stories current about chiefs of the law who are still alive, the present writer, for obvious reasons, abstains from taking notice; but one humorous anecdote concerning a lively judge may with propriety be inserted in these pages, since it fell from his own lips when he was making a speech from the chair at a public dinner. Between sixty-five and seventy years from the present time, when Sir Frederick Pollock was a boy at St. Paul's school, he drew upon himself the displeasure of Dr. Roberts, the somewhat irascible head-master of the school, who frankly told Sir Frederick's father, ”Sir, you'll live to see that boy of yours hanged.” Years afterwards, when the boy of whom this dismal prophecy was made had distinguished himself at Cambridge and the bar, Dr. Roberts, meeting Sir Frederick's mother in society, overwhelmed her with congratulations upon her son's success, and fortunately oblivious of his former misunderstanding with his pupil, concluded his polite speeches by saying--”Ah! madam, I always said he'd fill an _elevated_ situation.” Told by the venerable judge at a recent dinner of 'Old Paulines,' this story was not less effective than the best of those post-prandial sallies with which William St. Julien Arabin--the a.s.sistant Judge of Old Bailey notoriety--used to convulse his auditors something more than thirty years since. In the 'Arabiniana'
it is recorded how this judge, in sentencing an unfortunate woman to a long term of transportation, concluded his address with--”You must go out of the country. You have disgraced _even_ your own s.e.x.”
Let this chapter close with a lawyer's testimony to the moral qualities of his brethren. In the garden of Clement's Inn may still be seen the statue of a negro, supporting a sun-dial, upon which a legal wit inscribed the following lines:--
”In vain, poor sable son of woe, Thou seek'st the tender tear; From thee in vain with pangs they flow, For mercy dwells not here.
From cannibals thou fled'st in vain; Lawyers less quarter give; The _first_ won't eat you till you're _slain_, The _last_ will do't _alive_.”
Unfortunately these lines have been obliterated.
[31] Robert Dallas--one of Edward Law's coadjutors in the defence of Hastings--gave another 'manager' a more telling blow. Indignant with Burke for his implacable animosity to Hastings, Dallas (subsequently Chief Justice of the Common Pleas) wrote the stinging lines--
”Oft have we wondered that on Irish ground No poisonous reptile has e'er yet been found; Reveal'd the secret stands of nature's work--She saved her venom to produce her Burke.”
[32] In the 'Anti-Jacobin,' Canning, in the mock report of an imaginary speech, represented Erskine as addressing the 'Whig Club' thus:--”For his part he should only say that, having been, as he had been, both a soldier and a sailor, if it had been his fortune to have stood in either of these relations to the Directory--as _a_ man and a major-general he should not have scrupled to direct his artillery against the national representatives:--as a naval officer he would undoubtedly have undertaken for the removal of the exiled deputies; admitting the exigency, under all its relations, as it appeared to him to exist, and the then circ.u.mstances of the times with all their bearings and dependencies, branching out into an infinity of collateral considerations and involving in each a variety of objects, political, physical, and moral; and these, again, under their distinct and separate heads, ramifying into endless subdivisions, which it was foreign to his purpose to consider, Mr. Erskine concluded by recapitulating, in a strain of agonizing and impressive eloquence, the several more prominent heads of his speech; he had been a soldier and a sailor, and had a son at Winchester school--he had been called by special retainers, during the summer, into many different and distant parts of the country--traveling chiefly in post-chaises. He felt himself called upon to declare that his poor faculties were at the service of his country--of the free and enlightened part of it at least. He stood there as a man--he stood in the eye, indeed, in the hand of G.o.d--to whom (in the presence of the company and the waiters), he solemnly appealed. He was of n.o.ble, perhaps royal, blood--he had a house at Hampsted--was convinced of the necessity of a thorough and radical reform. His pamphlets had gone through thirty editions, skipping alternately the odd and even numbers. He loved the Const.i.tution, to which he would cling and grapple--and he was clothed with the infirmities of man's nature.”
CHAPTER XLII.
WITNESSES.
In the days when Mr. Davenport Hill, the Recorder of Birmingham, made a professional reputation for himself in the committee-rooms of the Houses of Parliament, he had many a sharp tussle with one of those venal witnesses who, during the period of excitement that terminated in the disastrous railway panic, were ready to give scientific evidence on engineering questions, with less regard to truth than to the interests of the persons who paid for their evidence. Having by mendacious evidence gravely injured a cause in which Mr. Hill was interested as counsel, and Mr. t.i.te, the eminent architect, and present member for Bath, was concerned as a projector, this witness was struck with apoplexy and died--before he could complete the mischief which he had so adroitly begun. Under the circ.u.mstances, his sudden withdrawal from the world was not an occasion for universal regret. ”Well, Hill, have you heard the news?” inquired Mr. t.i.te of the barrister, whom he encountered in Middle Temple Lane on the morning after the engineer's death. ”Have you heard that ---- died yesterday of apoplexy?” ”I can't say,” was the rejoinder, ”that I shall shed many tears for his loss. He was an arrant scoundrel.” ”Come, come,” replied the architect, charitably, ”you have always been too hard on that man. He was by no means so bad a fellow as you would make him out. I do verily believe that in the whole course of his life that man never told a lie--_out of the witness-box_.” Strange to say, this comical testimony to character was quite justified by the fact. This man, who lied in public as a matter of business, was punctiliously honorable in private life.
Of the simplest method of tampering with witnesses an instance is found in a case which occurred while Sir Edward c.o.ke was Chief Justice of the King's Bench. Loitering about Westminster Hall, one of the parties in an action stumbled upon the witness whose temporary withdrawal from the ways of men he was most anxious to effect. With a perfect perception of the proper use of hospitality, he accosted this witness (a staring, open-mouthed countryman), with suitable professions of friendliness, and carrying him into an adjacent tavern, set him down before a bottle of wine. As soon as the sack had begun to quicken his guest's circulation, the crafty fellow hastened into court with the intelligence that the witness, whom he had left drinking in a room not two hundred yards distant, was in a fit and lying at death's door. The court being asked to wait, the impudent rascal protested that to wait would be useless; and the Chief Justice, taking his view of the case, proceeded to give judgment without hearing the most important evidence in the cause.
In badgering a witness with noisy derision, no barrister of Charles II.'s time could surpa.s.s George Jeffreys; but on more than one occasion that gentleman, in his most overbearing moments, met with his master in the witness whom he meant to brow-beat. ”You fellow in the leathern doublet,” he is said to have exclaimed to a countryman whom he was about to cross-examine, ”Pray, what are you paid for swearing?” ”G.o.d bless you, sir, and make you an honest man,” answered the farmer, looking the barrister full in the face, and speaking with a voice of hearty good-humor; ”if you had no more for lying than I have for swearing, you would wear a leather doublet as well as I.”
Sometimes Erskine's treatment of witnesses was very jocular, and sometimes very unfair; but his jocoseness was usually so distinct from mere flippant derisiveness, and his unfairness was redeemed by such delicacy of wit and courtesy of manner, that his most malicious _jeux d'esprit_ seldom raised the anger of the witnesses at whom they were aimed. A religious enthusiast objecting to be sworn in the usual manner, but stating that though he would not ”kiss the book,” he would ”hold up his hand” and swear, Erskine asked him to give his reason for preferring so eccentric a way to the ordinary mode of giving testimony. ”It is written in the book of Revelations,” answered the man, ”that the angel standing on the sea _held up his hand_.” ”But that does not apply to your case,” urged the advocate; ”for in the first place, you are no angel; secondly, you cannot tell how the angel would have sworn if he had stood on dry ground, as you do.” Not shaken by this reply, which cannot be called unfair, and which, notwithstanding its jocoseness, was exactly the answer which the gravest divine would have made to such scruples, the witness persisted in his position; and on being permitted to give evidence in his own peculiar way, he had enough influence with the jury to induce them to give a verdict adverse to Erskine's wishes.
Less fair but more successful was Erskine's treatment of the commercial traveller, who appeared in the witness box dressed in the height of fas.h.i.+on, and wearing a starched white necktie folded with the 'Brummel fold.' In an instant reading the character of the man, on whom he had never before set eyes, and knowing how necessary it was to put him in a state of extreme agitation and confusion, before touching on the facts concerning which he had come to give evidence, Erskine rose, surveyed the c.o.xcomb, and said, with an air of careless amus.e.m.e.nt, ”You were born and bred in Manchester, _I perceive_.” Greatly astonished at this opening remark, the man answered, nervously, that he was ”a Manchester man--born and bred in Manchester.” ”Exactly,” observed Erskine, in a conversational tone, and as though he were imparting information to a personal friend--”exactly so; I knew it from the absurd tie of your neckcloth.” The roars of laughter which followed this rejoinder so completely effected the speaker's purpose that the confounded bagman could not tell his right hand from his left. Equally effective was Erskine's sharp question, put quickly to the witness, who, in an action for payment of a tailor's bill, swore that a certain dress-coat was badly made--one of the sleeves being longer than the other. ”You will,”
said Erskine, slowly, having risen to cross-examine, ”swear--that one of the sleeves was--longer--than the other?” _Witness._ ”I do swear it.”
_Erskine_, quickly, and with a flash of indignation, ”Then, sir, I am to understand that you positively deny that one of the sleeves was _shorter_ than the other?” Startled into a self-contradiction by the suddenness and impetuosity of this thrust, the witness said, ”I do deny it.” _Erskine_, raising his voice as the tumultuous laughter died away, ”Thank you, sir; I don't want to trouble you with another question.” One of Erskine's smartest puns referred to a question of evidence. ”A case,”
he observed, in a speech made during his latter years, ”being laid before me by my veteran friend, the Duke of Queensbury--better known as 'old Q'--as to whether he could sue a tradesman for breach of contract about the painting of his house; and the evidence being totally insufficient to support the case, I wrote thus: 'I am of opinion that this action will not _lie_ unless the witnesses _do_.'” It is worthy of notice that this witticism was but a revival (with a modification) of a pun attributed to Lord Chancellor Hatton in Bacon's 'Apophthegmes.'
In this country many years have elapsed since duels have taken place betwixt gentlemen of the long robe, or between barristers and witnesses in consequence of words uttered in the heat of forensic strife; but in the last century, and in the opening years of the present, it was no very rare occurrence for a barrister to be called upon for 'satisfaction' by a person whom he had insulted in the course of his professional duty. During George II.'s reign, young Robert Henley so mercilessly badgered one Zephaniah Reeve, whom he had occasion to cross-examine in a trial at Bristol, that the infuriated witness--Quaker and peace-loving merchant though he was--sent his persecutor a challenge immediately upon leaving court. Rather than incur the ridicule of 'going out with a Quaker,' and the sin of shooting at a man whom he had actually treated with unjustifiable freedom, Henley retreated from an embarra.s.sing position by making a handsome apology; and years afterwards, when he had risen to the woolsack, he entertained his old acquaintance, Zephaniah Reeve, at a fas.h.i.+onable dinner-party, when he a.s.sembled guests were greatly amused by the Lord Chancellor's account of the commencement of his acquaintance with his Quaker friend.
Between thirty and forty years later Thurlow was 'called out' by the Duke of Hamilton's agent, Mr. Andrew Stewart, whom he had grievously offended by his conduct of the Great Douglas Case. On Jan. 14, 1769-1770, Thurlow and his adversary met in Hyde Park. On his way to the appointed place, the barrister stopped at a tavern near Hyde Park Corner, and ”ate an enormous breakfast,” after which preparation for business, he hastened to the field of action. Accounts agree in saying that he behaved well upon the ground. Long after the bloodless _rencontre_, the Scotch agent, not a little proud of his 'affair' with a future Lord Chancellor, said, ”Mr. Thurlow advanced and stood up to me like an elephant.” But the elephant and the mouse parted without hurting each other; the encounter being thus faithfully described in the 'Scots'
Magazine:' ”On Sunday morning, January 14, the parties met with swords and pistols, in Hyde Park, one of them having for his second his brother, Colonel S----, and the other having for his Mr. L----, member for a city in Kent. Having discharged pistols, at ten yards' distance, without effect, they drew their swords, but the seconds interposed, and put an end to the affair.”
One of the best 'Northern Circuit stories' pinned upon Lord Eldon relates to a challenge which an indignant suitor is said to have sent to Law and John Scott. In a trial at York that arose from a horse-race, it was stated in evidence that one of the conditions of the race required that ”each horse should be ridden by a gentleman.” The race having been run, the holders refused to pay the stakes to the winner on the ground that he was not a gentleman; whereupon the equestrian whose gentility was thus called in question brought an action for the money. After a very humorous inquiry, which terminated in a verdict for the defendants, the plaintiff _was said_ to have challenged the defendants' counsel.
Messrs. Scott and Law, for maintaining that he was no gentleman; to which invitation, it also averred, reply was made that the challengees ”could not think of fighting one who had been found _no gentleman_ by the solemn verdict of twelve of his countrymen.” Inquiry, however, has deprived this delicious story of much of its piquancy. Eldon had no part in the offence; and Law, who was the sole utterer of the obnoxious words, received no invitation to fight. ”No message was sent,” says a writer, supposed to be Lord Brougham, in the 'Law Magazine,' ”and no attempt was made to provoke a breach of the peace. It is very possible Lord Eldon may have said, and Lord Ellenborough too, that they were not bound to treat one in such a predicament as a gentleman, and hence the story has arisen in the lady's mind. The fact was as well known on the Northern Circuit as the answer of a witness to a question, whether the party had a right by his circ.u.mstances to keep a pack of fox-hounds; 'No more right than I to keep a pack of archbishops.'”