LAW AND LAUGHTER
BY GEORGE A. MORTON AND D. MACLEOD MALLOCH
ILLUSTRATED WITH PORTRAITS OF EMINENT MEMBERS OF BENCH & BAR
T. N. FOULIS LONDON & EDINBURGH 1913
Published October 1913
Printed by BALLANTYNE, HANSON & CO. at the Ballantyne Press, Edinburgh
TO THE MEMORY OF D. MACLEOD MALLOCH
"As crafty lawyers to acquire applause Try various arts to get a double cause, So does an author, rummaging his brain, By various methods, try to entertain."
The scope of this volume is indicated by its title—a presentation of the lighter side of law, as it is exhibited from time to time in the witty remarks, repartees, and bon mots of the Bench and Bar of Great Britain, Ireland, and America. The idea of presenting such a collection of legal facetiae originated with the late Mr. D. Macleod Malloch, and it is greatly to be regretted that by his untimely death, his share of the work had reached the stage of selecting only about one-half of the material included in the book. His knowledge of law, and his wide reading in legal biography, was such as would have increased considerably the value of this volume.
In addition to sources which are acknowledged in the text, I have to mention contributions drawn from the following works: W. D. Adams' Modern Anecdotes; W. Andrews' The Lawyer in History, Literature and Humour; Croake James's Curiosities of Law; F. R. O'Flanagan's The Irish Bar; and A. Engelbach's comprehensive and entertaining Anecdotes of the Bench and Bar. I am further indebted to Sir James Balfour Paul, Lyon King of Arms, for permission to include "The Circuiteer's Lament," from the privately printed volume Ballads of the Bench and Bar, and to the editor of the Edinburgh Evening Dispatch for a number of the more recent anecdotes in the Scottish chapters of the book.
GEO. A. MORTON.
LIST OF CONTENTS
I. THE JUDGES OF ENGLAND PAGE 3
II. THE BARRISTERS OF ENGLAND 67
III. THE JUDGES OF IRELAND 107
IV. THE BARRISTERS OF IRELAND 127
V. THE JUDGES OF SCOTLAND 153
VI. THE ADVOCATES OF SCOTLAND 199
VII. THE AMERICAN BENCH AND BAR 223
LIST OF PORTRAITS
LORD THURLOW Frontispiece
From a painting by Thomas Phillips, R.A. By permission of the Trustees of the National Portrait Gallery.
EARL OF ROSSLYN Page 8
EARL OF MANSFIELD 16
EARL OF ELDON 20
By permission of the Trustees of the Scottish National Portrait Gallery.
LORD KENYON 24
LORD ERSKINE 32
LORD WESTBURY 36
LORD BROUGHAM 40
LORD CAMPBELL 44
By permission of the Trustees of the National Portrait Gallery, and Mr. Emery Walker.
LORD CHELMSFORD 48
SIR ALEXANDER COCKBURN 52
By permission of Harry A. Cockburn, Esq.
LORD BRAMPTON (SIR HENRY HAWKINS) 56
THE HON. MR. JUSTICE DARLING 60
From a photograph by C. Vandyk.
SIR SAMUEL MARTIN 64
THE HON. MR. JUSTICE GRANTHAM 72
From a photograph by Elliott & Fry, Ltd.
JOHN ADOLPHUS 76
SAMUEL WARREN, Q.C. 80
LORD ROMILLY 88
SERJEANT TALFOURD 96
VISCOUNT CARLETON 112
By permission of the Trustees of the Scottish National Portrait Gallery.
JOHN P. CURRAN 128
By permission of the Trustees of the Scottish National Portrait Gallery.
DANIEL O'CONNELL 144
By permission of the Trustees of the Scottish National Portrait Gallery.
LORD NEWTON 156
LORD ESKGROVE 160
LORD KAMES 164
LORD ELDIN 168
LORD COCKBURN 176
LORD BRAXFIELD 184
By permission of the Trustees of the Scottish National Portrait Gallery.
LORD YOUNG 192
From a photograph by T. & R. Annan & Sons.
THE HON. HENRY ERSKINE 200
By permission of the Trustees of the Scottish National Portrait Gallery.
ANDREW CROSBIE 208
By permission of the Faculty of Advocates.
THEOPHILUS PARSONS 224
RUFUS CHOATE 232
THE JUDGES OF ENGLAND
"The man resolv'd and steady to his trust, Inflexible to ill, and obstinately just, May the rude rabble's insolence despise, Their senseless clamours, and tumultuous cries; The tyrant's fierceness he beguiles, And the stern brow, and the harsh voice defies, And with superior greatness smiles."
"The charge is prepared, the lawyers are set; The judges are ranged, a terrible show."
LAW AND LAUGHTER BY GEORGE A. MORTON AND D. MACLEOD MALLOCH
THE JUDGES OF ENGLAND
Mr. Justice Darling, whose witty remarks from the Bench are so much appreciated by his audiences in Court, and, it is rumoured, are not always received with approval by his brother judges, says, in his amusing book Scintillae Juris:
"It is a common error to suppose that our law has no sense of humour, because for the most part the judges who expound it have none."
But law is, after all, a serious business—at any rate for the litigants—and it would appear also for the attorneys, for while witticisms of the Bench and Bar abound, very few are recorded of the attorney and his client. "Law is law" wrote the satirist who decided not to adopt it as a profession. "Law is like a country dance; people are led up and down in it till they are tired. Law is like a book of surgery—there are a great many terrible cases in it. It is also like physic—they who take least of it are best off. Law is like a homely gentlewoman—very well to follow. Law is like a scolding wife—very bad when it follows us. Law is like a new fashion—people are bewitched to get into it. It is also like bad weather—most people are glad when they get out of it."
From very early times there have appeared on the Bench expounders of the law who by the phrase "for the most part" must be acquitted of Mr. Justice Darling's charge of having no sense of humour; judges who, like himself, have lightened the otherwise dreary routine of duty by pleasantries which in no way interfered with the course of justice. One of the earliest of our witty judges, whose brilliant sayings have come down to us, was Henry VIII's Lord Chancellor, Sir Thomas More, who lost his head because he would not acknowledge his king as head of the Church. To Sir Thomas Manners, Earl of Rutland, who had made a somewhat insolent remark, the Lord Chancellor quietly replied, 'Honores mutant mores'—Honours change manners. Sir Thomas's humour was what may be called quiet, because its effect did not immediately show itself in boisterous merriment, but would undoubtedly remain long in the remembrance of those to whom it was addressed. Made with as much courtesy as irony, is it likely his keeper in the Tower would ever forget his remark? "Assure yourself I do not dislike my cheer; but whenever I do, then spare not to thrust me out of your doors." Nor did his quaint humour desert him at the scaffold: "Master Lieutenant," said he, "I pray you see me safe up; for my coming down let me shift for myself." Even with his head on the block he could not resist a humorous remark, when putting aside his beard he said to the executioner, "Wait, my good friend, till I have removed my beard, for it has never offended his highness."
Another judge of the sixteenth century, Sir Nicholas Bacon, who resembled Sir Thomas More in the gentleness of his happiest speeches, could also on occasion exhibit an unnecessary coarseness in his jocular retorts. A circuit story is told of him in which a convicted felon named Hog appealed for remission of his sentence on the ground that he was related to his lordship. "Nay, my friend," replied the judge, "you and I cannot be kindred except you be hanged, for hog is not bacon until it be well hung." This retort was not quite so coarse as that attributed to the Scottish judge, Lord Kames, two centuries later, who on sentencing to death a man with whom he had often played chess and very frequently been beaten, added after the solemn words of doom, "And noo, Matthew, ye'll admit that's checkmate for you."
To Lord Chancellor Hatton, also an Elizabethan judge who aimed at sprightliness on the Bench, a clever mot is attributed. The case before him was one concerning the limits of certain land. The counsel having remarked with emphasis, 'We lie on this side, my lord,' and the opposing counsel with equal vehemence having interposed, 'And we lie on this side, my lord'—the Lord Chancellor dryly observed, "If you lie on both sides, whom am I to believe?" It would seem that punning was as great a power in the Law Courts of that time as it is at the present day. When Egerton as Master of the Rolls was asked to commit a cause—refer it to a Master in Chancery—he would reply, "What has the cause done that it should be committed?"
Many witticisms of Westminster Hall, attributed to barristers of the Georgian and Victorian periods, are traceable to a much earlier date. There is the story of Serjeant Wilkins, whose excuse for drinking a pot of stout at mid-day was, that he wanted to fuddle his brain down to the intellectual standard of a British jury. Two hundred and fifty years earlier, Sir John Millicent, a Cambridgeshire judge, on being asked how he got on with his brother judges replied, "Why, i' faithe, I have no way but to drink myself down to the capacity of the Bench." And this merry thought has also been attributed to one eminent barrister who became Lord Chancellor, and to more than one Scottish advocate who ultimately attained to a seat on the Bench.
And to various celebrities of the later Georgian period has been attributed Lord Shaftesbury's reply to Charles II. When the king exclaimed, "Shaftesbury, you are the most profligate man in my dominions," the Chancellor answered somewhat recklessly, "Of a subject, sir, I believe I am."
Bullying witnesses is an old practice of the Bar, but for instances of it emanating from the Bench one has to go very far back. A witness with a long beard was giving evidence that was displeasing to Jeffreys, when judge, who said: "If your conscience is as large as your beard, you'll swear anything." The old man retorted: "My lord, if your lordship measures consciences by beards, your lordship has none at all."
A somewhat similar story of Jeffreys' bullying manner, when at the Bar, is that of his cross-examining a witness in a leathern doublet, who had made out a complete case against his client. Jeffreys shouted: "You fellow in the leathern doublet, pray what have you for swearing?" The man looked steadily at him, and "Truly, sir," said he, "if you have no more for lying than I have for swearing, you might wear a leathern doublet as well as I."
Instances of disrespect to the Bench are rarely met with in early as happily in later days. There is, perhaps, the most flagrant example of young Wedderburn in the Scottish Court of Session, when with dramatic effect he threw off his gown and declared he would never enter the Court again; but he rose to be Lord Chancellor of England. Scarcely less disrespectful (but not said openly to the Bench) was young Edward Hyde when hinting that the death of judges was of small moment compared with his chances of preferment. "Our best news," he wrote to a friend, "is that we have good wine abundantly come over; our worst that the plague is in town, and no judges die."
In squabbles between the Bench and the Bar there are few stories that match for personality the retort of a counsel to Lord Fortescue. His lordship was disfigured by a purple nose of abnormal growth. Interrupting counsel one day with the observation: "Brother, brother, you are handling the case in a very lame manner," the angry counsel calmly retorted, "Pardon me, my lord; have patience with me and I will do my best to make the case as plain as—as—the nose on your lordship's face." Nor did the retort of an Attorney-General to a judge, after a warm discussion on a point which the latter claimed to decide, show much respect for the Bench. The judge closed the argument with "I ruled so and so."—"You ruled," muttered the Attorney-General. "You ruled! You were never fit to rule anything but a copy-book."
Verse has been used as a medium of much amusing legal wit and humour, although law and law cases do not offer very easy subjects for turning into rhyme. But a good illustration is afforded by Mr. Justice Powis, who had a habit of repeating the phrase, "Look, do you see," and "I humbly conceive." At York Assize Court on one occasion he said to Mr. Yorke, afterwards Lord Hardwicke, "Mr. Yorke, I understand you are going to publish a poetical version of 'Coke upon Lyttelton.' Will you favour me with a specimen?"—"Certainly, my lord," replied the barrister, who thereupon gravely recited:
"He that holdeth his lands in fee Need neither shake nor shiver, I humbly conceive, for, look, do you see, They are his and his heirs for ever."
In Sir James Burrows' reports is given a poetical version of Chief Justice Pratt's decision with regard to a woman of English birth who was the widow of a foreigner.
"A woman having a settlement, Married a man with none, The question was, he being dead, If what she had was gone.
Quoth Sir John Pratt, 'The settlement Suspended doth remain Living the husband; but him dead It doth revive again.'"
Chorus of Puisne Judges:
"Living the husband; but him dead It doth revive again."
The Chief Justice's decision having been reversed by his successor, Chief Justice Ryder's decision was reported:
"A woman having a settlement Married a man with none; He flies and leaves her destitute, What then is to be done?
Quoth Ryder the Chief Justice, 'In spite of Sir John Pratt, You'll send her to the parish In which she was a brat.'
Suspension of a settlement Is not to be maintained. That which she had by birth subsists Until another's gained."
Chorus of Puisne Judges:
"That which she had by birth subsists Until another's gained."
* * * * *
Many of the well-known witticisms attributed to great judges are so tinged with personality—even tending to malignity—that no one possessing respect for human nature can read them without being tempted to regard them as mere biographical fabrications. But such a construction cannot be put upon the stories told of Lord Chancellor Thurlow, whose overbearing insolence to the Bar is well known. To a few friends like John Scott, Lord Eldon, and Lloyd Kenyon, Lord Kenyon, he could be consistently indulgent; but to those who provoked him by an independent and fearless manner he was little short of a persecutor. Once when Scott was about to follow his leader, who had made an unusually able speech, the Chancellor addressed him: "Mr. Scott, I am glad to find you are engaged in the cause, for I now stand some chance of knowing something about the matter." This same leader of the Bar on one occasion, in the excitement of professional altercation, made use of an undignified expression before Lord Thurlow; but before his lordship could take notice of it the counsel immediately apologised, saying, "My lord, I beg your lordship's pardon. I really forgot for the moment where I was." A silent recognition of the apology would have made the counsel feel his position more keenly, but the Chancellor could not let such an opportunity pass and immediately flashed out: "You thought you were in your own Court, I presume," alluding to a Welsh judgeship held by the offending counsel.
As a contrast to Lord Thurlow's treatment of Scott's leader, the following story—given in Scott's own words—shows how the great Chancellor could unbend himself in the company of men who were in his favour. "After dinner, one day when nobody was present but Lord Kenyon and myself, Lord Thurlow said, 'Taffy, I decided a cause this morning, and I saw from Scott's face that he doubted whether I was right.' Thurlow then stated his view of the case, and Kenyon instantly said, 'Your decision was quite right.' 'What say you to that?' asked the Chancellor. I said, 'I did not presume to form a case on which they were both agreed. But I think a fact has not been mentioned, which may be material.' I was about to state the fact, and my reasons. Kenyon, however, broke in upon me, and with some warmth stated that I was always so obstinate there was no dealing with me. 'Nay,' interposed Thurlow, 'that's not fair. You, Taffy, are obstinate, and give no reasons. You, Jack, are obstinate too; but then you give your reasons, and d—d bad ones they are!'"
Another anecdote again illustrates the Chancellor's treatment of even those who were on a friendly footing with him. Sir Thomas Davenport, a great Nisi Prius leader, had long flattered himself with the hope of succeeding to some valuable appointment in the law; but several good things passing by, he lost his patience and temper along with them. At last he addressed this laconic application to his patron: "The Chief Justiceship of Chester is vacant; am I to have it?" and received the following laconic answer: "No! by G—d! Kenyon shall have it."
Scarcely less courteous was this Lord Chancellor's treatment of a solicitor who endeavoured to prove to him a certain person's death. To all his statements the Chancellor replied, "Sir, that is no proof," till at last the solicitor losing patience exclaimed: "Really, my lord, it is very hard and it is not right that you should not believe me. I knew the man well: I saw the man dead in his coffin. My lord, the man was my client." "Good G—d, sir! why didn't you tell me that sooner? I should not have doubted the fact one moment; for I think nothing can be so likely to kill a man as to have you for his attorney."
As Keeper of the Great Seal Thurlow had the alternate presentation to a living with the Bishop of ——. The Bishop's secretary called upon the Lord Chancellor and said, "My Lord Bishop of —— sends his compliments to your lordship, and believes that the next turn to present to —— belongs to his lordship."—"Give his lordship my compliments," replied the Chancellor, "and tell him that I will see him d—d first before he shall present."—"This, my lord," retorted the secretary, "is a very unpleasant message to deliver to a bishop." To which the Chancellor replied, "You are right, it is so; therefore tell the Bishop that I will be d—d first before he shall present."
Lord Campbell in his life of Thurlow says that in his youth the Chancellor was credited with wild excesses. There was a story, believed at the time, of some early amour with the daughter of a Dean of Canterbury, to which the Duchess of Kingston alluded when on her trial at the House of Lords. Looking Thurlow, then Attorney-General, full in the face she said, "That learned gentleman dwelt much on my faults, but I too, if I chose, could tell a Canterbury tale."
But with all his bitterness and sarcasm Lord Thurlow had a genuine sense of humour, as the following story of his Cambridge days illustrates—days when he was credited with more disorderly pranks and impudent escapades than attention to study. "Sir," observed a tutor, "I never come to the window but I see you idling in the Court."—"Sir," replied the future Lord Chancellor, "I never come into the Court but I see you idling at the window."
* * * * *
Mansfield was not credited with lively sensibility, but his humanity was shocked at the thought of killing a man for a trifling theft. Trying a prisoner at the Old Baily on the charge of stealing in a dwelling-house to the value of 40s.—when this was a capital offence—he advised the jury to find a gold trinket, the subject of the indictment, to be of less value. The prosecutor exclaimed with indignation, "Under 40s., my lord! Why, the fashion alone cost me more than double the sum."—"God forbid, gentlemen, we should hang a man for fashion's sake," observed Lord Mansfield to the jury.
An indictment was tried before him at the Assizes, preferred by parish officers for keeping an hospital for lying-in women, whereby the parish was burdened by illegitimate children. He expressed doubts whether this was an indictable offence, and after hearing arguments in support of it he thus gave his judgment. "We sit here under a Commission requiring us to deliver this gaol, and the statute has been cited to make it unlawful to deliver a woman who is with child. Let the indictment be quashed."
Having met at supper the famous Dr. Brocklesby, he entered into familiar conversation with him, and there was an interchange of stories just a little trenching on the decorous. It so happened that the doctor had to appear next morning before Lord Mansfield in the witness-box; and on the strength of the previous evening's doings the witness, on taking up his position, nodded to the Chief Justice with offensive familiarity as to a boon companion. His lordship taking no notice of his salutation, but writing down his evidence, when he came to summing it up to the jury thus proceeded: "The next witness is one Rocklesby or Brocklesby, Brocklesby or Rocklesby—I am not sure which—and first he swears he is a physician."
Lord Chief Baron Parker, in his eighty-seventh year, having observed to Lord Mansfield who was seventy-eight: "Your lordship and myself are now at sevens and eights," the younger Chief Justice replied: "Would you have us to be all our lives at sixes and sevens? But let us talk of young ladies and not old age."
Trying an action which arose from the collision of two ships at sea, a sailor who gave an account of the accident said, "At the time I was standing abaft the binnacle."—"Where is abaft the binnacle?" asked Lord Mansfield; upon which the witness, who had taken a large share of grog before coming into Court, exclaimed loud enough to be heard by all present: "A pretty fellow to be a judge, who don't know where abaft the binnacle is!" Lord Mansfield, instead of threatening to commit him for contempt, said: "Well, my friend, fit me for my office by telling me where abaft the binnacle is; you have already shown me the meaning of half-seas over."
On one occasion Lord Mansfield covered his retreat from an untenable position with a sparkling pleasantry. An old witness named ELM having given his evidence with remarkable clearness, although he was more than eighty years of age, Lord Mansfield examined him as to his habitual mode of living, and found he had been through life an early riser and a singularly temperate man. "Ay," remarked the Chief Justice, in a tone of approval, "I have always found that without temperance and early habits longevity is never attained." The next witness, the elder brother of this model of temperance, was then called, and he almost surpassed his brother as an intelligent and clear-headed utterer of evidence. "I suppose," observed Lord Mansfield, "that you are an early riser?"—"No, my lord," answered the veteran stoutly; "I like my bed at all hours, and special-lie I like it of a morning."—"Ah, but like your brother, you are a very temperate man?" quickly asked the judge, looking out anxiously for the safety of the more important part of his theory. "My lord," responded this ancient Elm, disdaining to plead guilty to a charge of habitual sobriety, "I am a very old man, and my memory is as clear as a bell, but I can't remember the night when I've gone to bed without being more or less drunk."—"Ah, my lord," Mr. Dunning exclaimed, "this old man's case supports a theory unheld by many persons—that habitual intemperance is favourable to longevity."—"No, no," replied the Chief Justice with a smile; "this old man and his brother merely teach us what every carpenter knows—that Elm, whether it be wet or dry, is a very tough wood."
* * * * *
Lord Eldon's good humour gained him the affection of all counsel who practised before him, but there is one story—apocryphal it may be, coming from Lord Campbell—of a prejudice he had against Lord Brougham, who, in Scottish cases, frequently appeared before him in the House of Lords. Lord Eldon persisted in addressing the advocate as Mr. Bruffam. This was too much for Brougham, who was rather proud of the form and antiquity of his name, and who at last, in exasperation, sent a note to the Chancellor, intimating that his name was pronounced "Broom." At the conclusion of the argument the Chancellor stated, "Every authority upon the question has been brought before us: new Brooms sweep clean."
As Lord Chancellor, Lord Eldon's great foible was an apparent inability to arrive at an early decision on any question: it was really a desire to weigh carefully all sides of a question before expressing his opinion. This hesitancy was expressed in the formula "I doubt," which became the subject of frequent jests among the members of the Bar.
Sir George Rose, in absence of the regular reporter of Lord Eldon's decisions, was requested to take a note of any decision which should be given. As a full record of all that was material, which had occurred during the day, Sir George made the following entry in the reporter's notebook:
"Mr. Leach made a speech, Angry, neat, but wrong; Mr. Hart, on the other part, Was heavy, dull, and long; Mr. Parker made the case darker, Which was dark enough without; Mr. Cooke cited his book; And the Chancellor said—I doubt."
This jeu d'esprit, flying about Westminster Hall, reached the Chancellor, who was very much amused with it, notwithstanding the allusion to his doubting propensity. Soon after, Sir George Rose having to argue before him a very untenable proposition, he gave his opinion very gravely, and with infinite grace and felicity thus concluded: "For these reasons the judgment must be against your clients; and here, Sir George, the Chancellor does not doubt."
The following was Lord Eldon's answer to an application for a piece of preferment from his old friend Dr. Fisher, of the Charter House:
"DEAR FISHER,—I cannot, to-day, give you the preferment for which you ask.—I remain, your sincere friend, ELDON." Then, on the other side, "I gave it to you yesterday."
According to his biographer, Lord Eldon caused a loud laugh while the old Duke of Norfolk was fast asleep in the House of Lords, and amusing their lordships with "that tuneful nightingale, his nose," by announcing from the woolsack, with solemn emphasis, that the Commons had sent up a bill for "enclosing and dividing Great Snoring in the county of Norfolk!"
Like Lord Thurlow, Lord Eldon was in close intimacy with George III in the days when his Majesty's mind was supposed to be not very strong. "I took down to Kew," relates his lordship, "some Bills for his assent, and I placed on a paper the titles and the effect of them. The king, being perhaps suspicious that my coming down might be to judge of his competence for public business, as I was reading over the titles of the different Acts of Parliament he interrupted me and said: 'You are not acting correctly, you should do one of two things; either bring me down the Acts for my perusal, or say, as Thurlow once said to me on a like occasion, having read several he stopped and said, "It is all d—d nonsense trying to make you understand them, and you had better consent to them at once."'"
* * * * *
It is not often, but it sometimes happens that a judge finds himself in conflict with members of the public who are under no restraint of professional privilege or etiquette. Some maintain the dignity of the Court by fining and committing for contempt. Occasionally this may be necessary, but it has been found that delicate ridicule is often more effective. An attorney, pleading his cause before Lord Ellenborough, became exasperated because the untenable points he continually raised were invariably overruled, and exclaimed, "My lord, my lord, although your lordship is so great a man now, I remember the time when I could have got your opinion for five shillings." With an amused smile his lordship quietly observed, "Sir, I say it was not worth the money."
The same judge used to be greatly annoyed during the season of colds with the noise of coughing in Court. On one occasion, when disturbances of this kind recurred with more than usual frequency, he was seen fidgeting about in his seat, and availing himself of a slight cessation observed in his usual emphatic manner: "Some slight interruption one might tolerate, but there seems to be an industry of coughing."
As an illustration of figurative oratory a good story is told of a barrister pleading before Lord Ellenborough: "My lord, I appear before you in the character of an advocate for the City of London; my lord, the City of London herself appears before you as a suppliant for justice. My lord, it is written in the book of nature."—"What book?" said Lord Ellenborough. "The book of nature."—"Name the page," said his lordship, holding his pen uplifted, as if to note the page down.
Moore relates the story of a noble lord in the course of one of his speeches saying, "I ask myself so and so," and repeating the words "I ask myself." "Yes," quietly remarked Lord Ellenborough, "and a d—d foolish answer you'll get."
* * * * *
The comparison of a father and son who have both ascended the Bench has afforded a good story of a famous Scottish advocate which is told later, and the following is an equally cutting retort from the Bench to any assumed superiority through such a connection. A son of Lord Chief Justice Willes (who rose to the rank of a Puisne Judge) was checked one day for wandering from the subject. "I wish that you would remember," he exclaimed, "that I am the son of a Chief Justice." To which Justice Gould replied with great simplicity, "Oh, we remember your father, but he was a sensible man."
* * * * *
When hanging was the sentence, on conviction, for crimes—in these days termed offences—which are now punished by imprisonment, some judges from meting out the sentence of death almost indiscriminately came to be known as "hanging judges." Justice Page was one of them. When he was decrepit he perpetrated a joke against himself. Coming out of the Court one day and shuffling along the street a friend stopped him to inquire after his health. "My dear sir," the judge replied, "you see I keep just hanging on—hanging on."
A Chief Justice of the "hanging" period, whose integrity was not above suspicion, was sitting in Court one day at his ease and lolling on his elbow, when a convict from the dock hurled a stone at him which fortunately passed over his head. "You see," said the learned man as he smilingly received the congratulations of those present—"you see now, if I had been an upright judge I had been slain."
* * * * *
Some of the stories respecting Lord Kenyon's historical allusions and quotations are surely greatly exaggerated, or are pure inventions. In addressing a jury in a blasphemy case, he is reported to have said that the Emperor Julian "was so celebrated for the practice of every Christian virtue that he was called 'Julian the Apostle'"; and to have concluded an elaborate address in dismissing a grand jury with the following valediction: "Having thus discharged your consciences, gentlemen, you may return to your homes in peace, with the delightful consciousness of having performed your duties well, and may lay your heads on your pillows, saying to yourselves 'Aut Caesar, aut nullus.'" And this was his remark on detecting the trick of an attorney to delay a trial: "This is the last hair in the tail of procrastination, and it must be plucked out."
Among other failings attributed to this Lord Chief Justice was the extreme penuriousness he practised in his domestic arrangements and his dress. His shoes were patched to such an extent that little of their original material could be seen, and once when trying a case he was sitting on the bench in a way to expose them to all in Court. It was an action for breach of contract to deliver shoes soundly made, and to clinch a witness for the pursuer he suddenly asked, "Were the shoes anything like these?" pointing to his own. "No, my lord," replied the witness, "they were a good deal better and more genteeler."
As an example of his (Lord Kenyon's) style of addressing a condemned prisoner we have the following. A butler had been charged and convicted of stealing his master's wine.
"Prisoner at the bar, you stand convicted on the most conclusive evidence of a crime of inexpressible atrocity—a crime that defiles the sacred springs of domestic confidence, and is calculated to strike alarm into the breast of every Englishman who invests largely in the choicer vintages of Southern Europe. Like the serpent of old, you have stung the hand of your protector. Fortunate in having a generous employer, you might without discovery have continued to supply your wretched wife and children with the comforts of sufficient prosperity, and even with some of the luxuries of affluence; but, dead to every claim of natural affection, and blind to your own real interest, you burst through all the restraints of religion and morality, and have for many years been feathering your nest with your master's bottles."
Lord Kenyon was warmly attached to George III, who had a high opinion of him; but like many of his lordship's contemporaries, his Majesty strongly deprecated the frequent outbursts of temper on the part of his Chief Justice. "At a levee, soon after an extraordinary explosion of ill-humour in the Court of King's Bench, his Majesty said to him: 'My Lord Chief Justice, I hear that you have lost your temper, and from my great regard for you, I am very glad to hear it, for I hope you will find a better one.'"
* * * * *
Of Lord Chief Justice Tenterden, Lord Campbell asserts that he once, and only once, uttered a pun. A learned gentleman, who had lectured on the law and was too much addicted to oratory came to argue a special demurrer before him. "My client's opponent," said the figurative advocate, "worked like a mole under ground, clam et secrete." His figures only elicited a grunt from the Chief Justice. "It is asserted in Aristotle's Rhetoric—."—"I don't want to hear what is asserted in Aristotle's Rhetoric," interposed Lord Tenterden. The advocate shifted his ground and took up, as he thought, a safe position. "It is laid down in the Pandects of Justinian—." "Where are you got now?" "It is a principle of the civil law—." "Oh sir," exclaimed the judge, with a tone and voice which abundantly justified his assertion, "we have nothing to do with the civil law in this Court."
* * * * *
Judges sometimes stray into humour without intending it. At an election petition trial one allegation was, that a number of rosettes, or "marks of distinction," had been kept in a table drawer in the central committee-room. To meet this charge it was thought desirable to call witnesses to swear that the only table in the room consisted of planks laid on trestles. "So that the table had no proper legs," said counsel cheerfully. "Never mind whether it had proper legs," said one of the learned judges. "The more important question is: Had it drawers?"
And in The Story of Crime the author recalls an instance of a judge unconsciously furnishing material for laughter in Court. "At the beginning of the session at the Old Baily a good deal of work is got through by the judge who takes the small cases, and it may be this fact that accounted for the confusion of thought which he describes. One of the prisoners was charged with stealing a camera, and after all the evidence had been taken his lordship proceeded to sum up to the jury. He began by correctly describing the stolen article as a camera, but had not gone very far before the camera had become a concertina, and by the time he had finished the concertina had become an accordion. And he never once saw his mistake. The usher noticed it at the first trip, and kept repeating in a kind of hoarse stage-whisper, 'Camera! Camera!' but his voice did not reach the Bench, and so the complicated article remained on record."
Mr. Andrews in his book, The Lawyer in History, Literature, and Humour, relates that a leader of the Bar on rising to address the drowsy jury after a ponderous oration by Sir Samuel Prime, said: "Gentlemen, after the long speech of the learned serjeant—" "Sir, I beg your pardon," interrupted Mr. Justice Nares, "you might say—you might say—after the long soliloquy, for my brother Prime has been talking an hour to himself."
* * * * *
Thomas, Lord Erskine was the youngest of three brothers, who were all distinguished men. The eldest was the well-known Earl of Buchan, one of the founders of the Society of Antiquaries of Scotland, whose eccentricities formed the subject of much gossip in the Scottish capital. To an English nobleman he declared: "My brothers Harry and Tom are certainly remarkable men, but they owe everything to me." Seeing a look of surprise upon his friend's face he added: "Yes, it is true; they owe everything to me. On my father's death they pressed me for an annual allowance. I knew this would have been their ruin, by relaxing their industry. So making a sacrifice of my inclinations to gratify them I refused to give them a farthing, and they have thriven ever since—owing everything to me."
Henry, the second brother, was universally beloved and respected, and one of the most popular advocates at the Scottish Bar. He was twice Lord-Advocate for Scotland—on the second occasion under the Ministry of "All the Talents," when his younger brother was Lord Chancellor. He was famous in the Parliament House and outside of it for his witticisms, a selection of which will be given later.
Thomas, who became Lord Chancellor, obtained an unique influence while practising at the Bar, and, like his older brother, he was a universal favourite. "Juries have declared," said Lord Brougham, "that they have felt it impossible to remove their looks from him when he had riveted, and as it were fascinated, them by his first glance. Then hear his voice, of surpassing sweetness, clear, flexible, strong, exquisitely fitted to strains of serious earnestness." Yet although he did not rely on wit, or humour, or sarcasm in addressing a jury, he could use them to effect in cross-examination. "You were born and bred in Manchester, I perceive," he said to a witness. "Yes."—"I knew it," said Erskine carelessly, "from the absurd tie of your neckcloth." The witness' presence of mind was gone, and he was made to unsay the greatest part of his evidence in chief. Another witness confounding 'thick' whalebone with 'long' whalebone, and unable to distinguish the difference after counsel's explanation, Erskine exclaimed, "Why, man, you do not seem to know the difference between what is thick or what is long! Now I tell you the difference. You are thick-headed, and you are not long-headed."
Lord Erskine's addiction to punning is well known, and many examples might be cited. An action was brought against a stable-keeper for not taking proper care of a horse. "The horse," said counsel for the plaintiff, "was turned into the stable, with nothing to eat but musty hay. To such the horse 'demurred.'"—"He should have 'gone to the country,'" at once retorted Lord Erskine. For the general reader it should be explained that "demurring" and "going to the country" are technical terms for requiring a cause to be decided on a question of law by the judge, or on a question of fact by the jury. Here is another. A low-class attorney who was much employed in bail-business and moving attachments against the sheriff for not "bringing in the body"—that is, not arresting and imprisoning a debtor, when such was the law—sold his house in Lincoln's Inn Fields to the Corporation, of Surgeons to be used as their Hall. "I suppose it was recommended to them," said Erskine, "from the attorney being so well acquainted 'with the practice of bringing in the body!'"
Perhaps one of his smartest puns he relates himself. "A case being laid before me by my veteran friend, the Duke of Queensberry—better known as 'old Q'—as to whether he could sue a tradesman for breach of contract about the painting of his house; and the evidence being totally insufficient to support the case, I wrote thus: 'I am of opinion that this action will not lie unless the witnesses do.'"
He was also fond of a practical joke. In answer to a circular letter from Sir John Sinclair, proposing that a testimonial should be presented to himself for his eminent public services, Lord Erskine replied:
"MY DEAR SIR JOHN,—I am certain there are few in this kingdom who set a higher value on your public services than myself; and I have the honour to subscribe"—then, on turning over the leaf, was to be found—"myself, your most obedient faithful servant,
"Gentlemen of the jury," were his closing words after an impassioned address, "the reputation of a cheesemonger in the City of London is like the bloom upon a peach. Breathe upon it, and it is gone for ever."
Among many apocryphal stories told of expedients by which smart counsel have gained verdicts, this one respecting a case in which Mr. Justice Gould was the judge and Erskine counsel for the defendant is least likely of credit. The judge entertained a most unfavourable opinion of the defendant's case, but being very old was scarcely audible, and certainly unintelligible, to the jury. While he was summing up the case, Erskine, sitting on the King's Counsel Bench, and full in the view of the jury, nodded assent to the various remarks which fell from the judge; and the jury, imagining that they had been directed to find for the defendant, immediately did so.
When at the Bar, Erskine was always encouraged by the appreciation of his brother barristers. On one occasion, when making an unusual exertion on behalf of a client, he turned to Mr. Garrow, who was his colleague, and not perceiving any sign of approbation on his countenance, he whispered to him, "Who do you think can get on with that d—d wet blanket face of yours before him."
Nor did he always exhibit graciousness to older members. One nervous old barrister named Lamb, who usually prefaced his pleadings with an apology, said to Erskine one day that he felt more timid as he grew older. "No wonder," replied Erskine, "the older the lamb the more sheepish he grows."
When he was Lord Chancellor he was invited to attend the ministerial fish dinner at Greenwich—known in later years as the Whitebait Dinner—he replied: "To be sure I will attend. What would your fish dinner be without the Great Seal?"
* * * * *
When a stupid jury returns an obviously wrong verdict the judge must feel himself in an awkward position; but in such cases—if they ever occur now—a good precedent has been set by Mr. Justice Maule who, when in that predicament, addressed the prisoner in these terms:
"Prisoner, your counsel thinks you innocent, the prosecution thinks you innocent, and I think you innocent. But a jury of your own fellow-countrymen, in the exercise of such common sense as they possess, have found you guilty, and it remains that I should pass sentence upon you. You will be imprisoned for one day, and as that day was yesterday, you are free to go about your business."
"May God strike me dead! my lord, if I did it," excitedly exclaimed a prisoner who had been tried before the same justice for a serious offence, and a verdict of "guilty" returned by the jury. The judge looked grave, and paused an unusually long time before saying a word. At last, amid breathless silence, he began: "As Providence has not seen fit to interpose in your case, it now becomes my duty to pronounce upon you the sentence of the law," &c. When somewhat excited over a very bad case tried before him he would delay sentence until he felt calmer, lest his impulse or his temper should lead him astray. On one such occasion he exclaimed, "I can't pass sentence now. I might be too severe. I feel as if I could give the man five-and-twenty years' penal servitude. Bring him up to-morrow when I feel calmer."—"Thank you, my lord," said the prisoner, "I know you will think better of it in the morning." Next day the man appeared in the dock for sentence. "Prisoner," said the judge, "I was angry yesterday, but I am calm to-day. I have spent a night thinking of your awful deeds, and I find on inquiry I can sentence you to penal servitude for life. I therefore pass upon you that sentence. I have thought better of what I was inclined to do yesterday."
There are instances of brief summing up of a case by judges, but few in the terms expressed by this worthy judge. "If you believe the witnesses for the plaintiff, you will find for the defendant; if you believe the witnesses for the defendant, you will find for the plaintiff. If, like myself, you don't believe any of them, Heaven knows which way you will find. Consider your verdict."
To Mr. Justice Maule a witness said: "You may believe me or not, but I have stated not a word that is false, for I have been wedded to truth from my infancy."—"Yes, sir," said the judge dryly; "but the question is, how long have you been a widower?"
In the good old days a learned counsel of ferocious mien and loud voice, practising before him, received a fine rebuke from the justice. No reply could be got from an elderly lady in the box, and the counsel appealed to the judge. "I really cannot answer," said the trembling lady. "Why not, ma'am?" asked the judge. "Because, my lord, he frightens me so."—"So he does me, ma'am," replied the judge.
He was as a rule patient and forbearing, and seldom interfered with counsel in their mode of laying cases before a jury or the Bench, but once he was fairly provoked to do so, by the confused blundering way in which one of them was trying to instil a notion of what he meant into the minds of the jury. "I am sorry to interfere, Mr. ——," said the judge, "but do you not think that, by introducing a little order into your narrative, you might possibly render yourself a trifle more intelligible? It may be my fault that I cannot follow you—I know that my brain is getting old and dilapidated; but I should like to stipulate for some sort of order. There are plenty of them. There is the chronological, the botanical, the metaphysical, the geographical—even the alphabetical order would be better than no order at all."
* * * * *
Baron Thomson, of the Court of Exchequer, was asked how he got on in his Court with the business, when he sat between Chief Baron Macdonald and Baron Graham. He replied, "What between snuff-box on one side, and chatterbox on the other, we get on pretty well!"
Sir Richard Bethel, Lord Westbury, and Lord Campbell were on very friendly terms. An amusing story is told of a meeting of the two in Westminster Hall, when the first rumour of Lord Campbell's appointment as Lord Chancellor was current. The day being cold for the time of the year, Lord Campbell had gone down to the House of Lords in a fur coat, and Bethel, observing this, pretended not to recognise him. Thereupon Campbell came up to him and said: "Mr. Attorney, don't you know me?"—"I beg your pardon, my lord," was the reply. "I mistook you for the Great Seal."
Lord Cranworth, Vice-Chancellor, after hearing Sir Richard Bethel's argument in an appeal, said he "would turn the matter over in his mind." Sir Richard turning to his junior with his usual bland calm utterance said: "Take a note of that; his honour says he will turn it over in what he is pleased to call his mind."
Sir James Scarlett, Lord Abinger, had to examine a witness whose evidence would be somewhat dangerous unless he was thrown off his guard and "rattled." The witness in question—an influential man, whose vulnerable point was said to be his self-esteem—was ushered into the box, a portly overdressed person, beaming with self-assurance. Looking him over for a few minutes without saying a word Sir James opened fire: "Mr. Tompkins, I believe?"—"Yes."—"You are a stockbroker, I believe, are you not?"—"I ham." Pausing for a few seconds and making an attentive survey of him, Sir James remarked sententiously, "And a very fine and well-dressed ham you are, sir."
In a breach of promise case Scarlett appeared for the defendant, who was supposed to have been cajoled into the engagement by the plaintiff's mother, a titled lady. The mother, as a witness, completely baffled the defendant's clever counsel when under his cross-examination; but by one of his happiest strokes of advocacy, Scarlett turned his failure into success. "You saw, gentlemen of the jury, that I was but a child in her hands. What must my client have been?"
Sir James was a noted cross-examiner and verdict-getter, but on one occasion he was beaten. Tom Cooke, a well-known actor and musician in his day, was a witness in a case in which Sir James had him under cross-examination.
Scarlett: "Sir, you say that the two melodies are the same, but different; now what do you mean by that, sir?"
Cooke: "I said that the notes in the two copies are alike, but with a different accent."
Scarlett: "What is a musical accent?"
Cooke: "My terms are nine guineas a quarter, sir."
Scarlett (ruffled): "Never mind your terms here. I ask you what is a musical accent? Can you see it?"
Scarlett: "Can you feel it?"
Cooke: "A musician can."
Scarlett (angrily): "Now, sir, don't beat about the bush, but explain to his lordship and the jury, who are expected to know nothing about music, the meaning of what you call accent."
Cooke: "Accent in music is a certain stress laid upon a particular note, in the same manner as you would lay stress upon a given word, for the purpose of being better understood. For instance, if I were to say, 'You are an ass,' it rests on ass, but if I were to say, 'You are an ass,' it rests on you, Sir James." The judge, with as much gravity as he could assume, then asked the crestfallen counsel, "Are you satisfied, Sir James."—"The witness may go down," was the counsel's reply.
* * * * *
Lord Justice Holt, when a young man, was very dissipated, and belonged to a club, most of whose members took an infamous course of life. When his lordship was engaged at the Old Baily a man was convicted of highway robbery, whom the judge remembered to have been one of his early companions. Moved by curiosity, Holt, thinking the man did not recognise him, asked what had become of his old associates. The culprit making a low bow, and giving a deep sigh, replied, "Oh, my lord, they are all hanged but your lordship and I."
We have already given examples of personalities in the retorts of counsel upon members of the Bench, and if the same derogatory reflection can be traced in the two following anecdotes of judges' retorts on counsel, it is at least veiled in finer sarcasm. A nervous young barrister was conducting a first case before Vice-Chancellor Bacon, and on rising to make his opening remarks began in a faint voice: "My lord, I must apologise—er—I must apologise, my lord"—"Go on, sir," said his lordship blandly; "so far the Court is with you." The other comes from an Australian Court. Counsel was addressing Chief Justice Holroyd when a portion of the plaster of the Court ceiling fell, and he stopping his speech for the moment, incautiously advanced the suggestion, "Dry rot has probably been the cause of that, my lord."—"I am quite of your opinion, Mr. ——," observed his lordship.
On the other hand, judges can be severely personal at times, and Lord Justice Chitty was almost brutal in a case where counsel had been arguing to distraction on a bill of sale. "I will now proceed to address myself to the furniture—an item covered by the bill," counsel continued. "You have been doing nothing else for the last hour," lamented the weary judge.
And Mr. Justice Wills once made a rather cutting remark to a barrister. The barrister was, in the judge's private opinion, simply wasting the time of the Court, and, in the course of a long-winded speech, he dwelt at quite unnecessary length on the appearance of certain bags connected with the case. "They might," he went on pompously, "they might have been full bags, or they might have been half-filled bags, or they might even have been empty bags, or—."—"Or perhaps," dryly interpolated the judge, "they might have been wind-bags!"
* * * * *
When Lord Brougham attained the position of Lord Chancellor he was greatly addicted to the habit of writing during the course of counsel's argument of the case being heard before him. On one occasion this practice so annoyed Sir Edward Sugden, whenever he noticed it, that he paused in the course of his argument, expecting his lordship to stop writing; but the Chancellor, without even looking up, remarked, "Go on, Sir Edward; I am listening to you."—"I observe that your lordship is engaged in writing, and not favouring me with your attention," replied Sir Edward. "I am signing papers of mere form," warmly retorted the Chancellor. "You may as well say that I am not to blow my nose or take snuff while you speak."
When counsel at the Bar, a witness named John Labron was thus cross-examined by Brougham at York Assizes:
"What are you?"
"I am a farmer, and malt a little."
"Do you know Dick Strother?"
"Upon your oath, sir, are you not generally known by the name of Dick Strother?"
"That has nothing to do with this business."
"I insist upon hearing an answer. Have you not obtained that name?"
"I am sometimes called so."
"Now, Dick, as you admit you are so called, do you know the story of the hare and the ball of wax?"
"I have heard it."
"Then pray have the goodness to relate it to the judge and the jury."
"I do not exactly remember it."
"Then I will refresh your memory by relating it myself. Dick Strother was a cobbler, and being in want of a hare for a friend, he put in his pocket a ball of wax and took a walk into the fields, where he soon espied one. Dick then very dexterously threw the ball of wax at her head, where it stuck, which so alarmed poor puss that in the violence of her haste she ran in contact with the head of another; both stuck fast together, and Dick, lucky Dick! caught both. Dick obtained great celebrity by telling this wondrous feat, which he always affirmed as a truth, and from that every notorious liar in Thorner bears the title of Dick Strother. Now, Dick—I mean John—is not that the reason why you are called Dick Strother?"
"It may be so."
"Then you may go."
The same turbulent spirit (Lord Brougham) fell foul of many other law lords. It is well known that in a speech made at the Temple he accused Lord Campbell, who had just published his Lives of the Chancellors, of adding a new terror to death. Lord Campbell tells an amusing story which shows that he could retort with effect upon his noble and learned friend. He says that he called one morning upon Brougham at his house in Grafton Street, who "soon rushed in very eagerly, but suddenly stopped short, exclaiming, 'Lord bless me, is it you? They told me it was Stanley'; and notwithstanding his accustomed frank and courteous manner, I had some difficulty in fixing his attention. In the evening I stepped across the House to the Opposition Bench, where Brougham and Stanley were sitting next each other, and, addressing the latter in the hearing of the former, I said, 'Has our noble and learned friend told you the disappointment he suffered this morning? He thought he had a visit from the Leader of the Protectionists to offer him the Great Seal, and it turned out to be only Campbell come to bore him about a point of Scotch law.' Brougham: 'Don't mind what Jack Campbell says; he has a prescriptive privilege to tell lies of all Chancellors, dead and living.'"
According to the same authority, Brougham was at one time very anxious to be made an earl, but his desire was entirely quenched when Lord John Russell gave an earldom to Lord Chancellor Cottenham. He is said to have been so indignant that he either wrote or dictated a pamphlet in which the new creation was ridiculed, and to which was appended the significant motto, "The offence is rank."
The common feeling with regard to Sir James Scarlett's (Lord Abinger) success in gaining verdicts led to the composition of the following pleasantry, attributed to Lord Campbell. "Whereas Scarlett had contrived a machine, by using which, while he argued, he could make the judges' heads nod with pleasure, Brougham in course of time got hold of it; but not knowing how to manage it when he argued, the judges, instead of nodding, shook their heads."
And it is Lord Campbell who has preserved the following specimen of a judge's concluding remarks to a prisoner convicted of uttering a forged one-pound note. After having pointed out to him the enormity of the offence, and exhorted him to prepare for another world, added: "And I trust that through the merits and the mediation of our Blessed Redeemer, you may there experience that mercy which a due regard to the credit of the paper currency of the country forbids you to hope for here."
Campbell married Miss Scarlett, a daughter of Lord Abinger, and was absent from Court when a case in which he was to appear was called before Mr. Justice Abbot. "I thought, Mr. Brougham," said his lordship, "that Mr. Campbell was in this case?"—"Yes, my lord," replied Mr. Brougham, with that sarcastic look peculiarly his own. "He was, my lord, but I understand he is ill."—"I am sorry to hear that, Mr. Brougham," said the judge. "My lord," replied Mr. Brougham, "it is whispered here that the cause of my learned friend's absence is scarlet fever."
* * * * *
In his native town of Cupar, Fife, Lord Chancellor Campbell's abilities and position were not so much appreciated as they were elsewhere. This was a sore point with his father, who was parish minister, and when the son was not selected by the town authorities to conduct their legal business in London the future Lord Chancellor also felt affronted. On the publication of the Lives of the Chancellors some of his townsmen wrote asking him to present a copy to the local library of his native town, which gave Campbell an opportunity to square accounts with them for their past neglect of him, for he curtly replied to their request that "they could purchase the book from any bookseller." An old lady of the town relating some gossip about the Campbell family said, "They meant John for the Church, but he went to London and got on very well." Such was the good lady's idea of the relative positions of minister of a Scottish parish and Lord Chancellor of England.
The difference in the pronunciation of a word led to an amiable contest between Lord Campbell and a learned Q.C. In an action to recover damages to a carriage the counsel called the vehicle a "brougham," pronouncing both syllables of the word. Lord Campbell pompously observed, "Broom is the usual pronunciation—a carriage of the kind you mean is not incorrectly called a 'Broom'—that pronunciation is open to no grave objection, and it has the advantage of saving the time consumed by uttering an extra syllable." Later in the trial Lord Campbell alluding to a similar case referred to the carriage which had been injured as an "Omnibus."—"Pardon me, my lord," interposed the Q.C., "a carriage of the kind to which you draw attention is usually termed a 'bus'; that pronunciation is open to no grave objection, and it has the great advantage of saving the time consumed by uttering two extra syllables."
* * * * *
Mr. Martin (afterwards Baron Martin), when at the Bar, was addressing the Court in an insurance case, when he was interrupted by Baron Alderson, who said, "Mr. Martin, do you think any office would insure your life?"—"Certainly, my lord," replied Mr. Martin, "mine is a very good life."—"You should remember, Mr. Martin, that yours is brief existence."
This judge's reason for releasing a juryman from duty was equally smart. The juryman in question confessed that he was deaf in one ear. "Then leave the box before the trial begins," observed his lordship; "it is necessary that the jurymen should hear both sides."
Baron Martin was one of the good-natured judges who from the following story seem to stretch that amiable quality to its fullest extent. In sentencing a man convicted of a petty theft he said: "Look, I hardly know what to do with you, but you can take six months."—"I can't take that, my lord," said the prisoner; "it's too much. I can't take it; your lordship sees I did not steal very much after all." The Baron indulged in one of his characteristic chuckling laughs, and said: "Well that's vera true; ye didn't steal much. Well then, ye can tak' four. Will that do—four months?"—"No, my lord, but I can't take that neither."—"Then take three."—"That's nearer the mark, my lord," replied the prisoner, "but I'd rather you'd make it two, if you'll be so kind."—"Very well then, tak' two," said the judge; "and don't come again. If you do, I'll give you—well, it'll all depend."
* * * * *
Lord Erskine's punning upon legal terms has already been noticed, but no better quip is recorded than that of Lord Chelmsford, when as Sir Frederick Thesiger, and a leader at the Bar, he took exception to the irregular examination of a witness by a learned serjeant. "I have a right," maintained the serjeant, "to deal with my witness as I please."—"To that I offer no objection," retorted Sir Frederick. "You may deal as you like, but you shan't lead."
On all occasions Samuel Warren, the author of Ten Thousand a Year, was given to boasting, at the Bar mess, of his intimacy with members of the peerage. One day he was saying that, while dining lately at the Duke of Leeds, he was surprised at finding no fish of any kind was served. "That is easily accounted for," said Thesiger; "they had probably eaten it all upstairs."
Walking down St. James's Street one day, Lord Chelmsford was accosted by a stranger, who exclaimed, "Mr. Birch, I believe."—"If you believe that, sir, you'll believe anything," replied his lordship as he passed on.
* * * * *
In the recently published Cockburn Family Records the following is told of the Chief Justice's ready wit:
"At a certain trial an extremely pretty girl was called as a witness. The Lord Chief Justice was very particular about her giving her full name and address. Of course he took note. So did the sheriff's officer! That evening they both arrived at the young lady's door simultaneously, whereupon Sir Alexander tapped the officer on the shoulder, remarking, 'No, no, no, Mr. Sheriff's Officer, judgment first, execution afterwards!'"
There never was a barrister whose rise at the Bar was more rapid or remarkable than that of Sir Alexander Cockburn, and along with him was his friend and close associate as a brother lawyer of the Crown and Bencher of the same Inn, Sir Richard Bethel, who became Lord Chancellor a few years after Sir Alexander was made Chief Justice. Sir Richard once said to his colleague, "My dear fellow, equity will swallow up your common law."—"I don't know about that," said Sir Alexander, "but you'll find it rather hard of digestion."
* * * * *
Although the wit of Lord Justice Knight Bruce was somewhat sarcastic it was rarely so severe as that of Lord Westbury. There was always a tone of good humour about it. He had indeed a kind of grave judicial waggery, which is well exemplified in the following judgment in a separation suit between an attorney and his wife. "The Court has been now for several days occupied in the matrimonial quarrels of a solicitor and his wife. He was a man not unaccustomed to the ways of the softer sex, for he already had nine children by three successive wives. She, however—herself a widow—was well informed of these antecedents; and it appears did not consider them any objection to their union; and they were married. No sooner were they united, however, than they were unhappily disunited by unhappy disputes as to her property. These disputes disturbed even the period usually dedicated to the softer delights of matrimony, and the honeymoon was occupied by endeavours to induce her to exercise a testamentary power of appointment in his favour. She, however, refused, and so we find that in due course, at the end of the month, he brought home with some disgust his still intestate bride. The disputes continued, until at last they exchanged the irregular quarrels of domestic strife for the more disciplined warfare of Lincoln's Inn and Doctors Commons."
Of this judge the story is told that a Chancery counsel in a long and dry argument quoted the legal maxim—expressio unius est exclusio alterius—pronouncing the "i" in unius as short as possible. This roused his lordship from the drowsiness into which he had been lulled. "Unyus! Mr. ——? We always pronounced that unius at school."—"Oh yes, my lord," replied the counsel; "but some of the poets use it short for the sake of the metre."—"You forget, Mr. ——," rejoined the judge, "that we are prosing here."
* * * * *
Mr. Justice Willes was a judge of kindly disposition, and when he had to convey a rebuke he did so in some delicate and refined way like this. A young barrister feeling in a hobble, wished to get out of it by saying, "I throw myself on your lordship's hands."—"Mr. ——, I decline the burden," replied the learned judge.
One day in judge's chambers, after being pressed by counsel very strongly against his own views, he said with quaint humour: "I'm one of the most obstinate men in the world."—"God forbid that I should be so rude as to contradict your lordship," replied the counsel.
Mr. Montague Williams in his Leaves of a Life relates the following story of Mr. Justice Byles. He was once hearing a case in which a woman was charged with causing the death of her child by not giving it proper food, or treating it with the necessary care. Mr. F——, of the Western Circuit, conducted the defence, and while addressing the jury said:
"Gentlemen, it appears to be impossible that the prisoner can have committed this crime. A mother guilty of such conduct to her own child? Why, it is repugnant to our better feelings"; and then being carried away by his own eloquence, he proceeded: "Gentlemen, the beasts of the field, the birds of the air, suckle their young, and——"
But at this point the learned judge interrupted him, and said:
"Mr. F——, if you establish the latter part of your proposition, your client will be acquitted to a certainty."
And to the same authority we are indebted for a judge's gentle but sarcastic reproof of a prosing counsel. In an action for false imprisonment, heard before Mr. Justice Wightman, Ribton was addressing the jury at great length, repeating himself constantly, and never giving the slightest sign of winding up. When he had been pounding away for several hours, the good old judge interposed, and said: "Mr. Ribton, you've said that before."—"Have I, my lord?" said Ribton; "I'm very sorry. I quite forgot it."—"Don't apologise, Mr. Ribton," was the answer. "I forgive you; for it was a very long time ago."
A very old story is told of a highwayman who sent for a solicitor and inquired what steps were necessary to be taken to have his trial deferred. The solicitor answered that he would require to get a doctor's affidavit of his illness. This was accordingly done in the following manner: "The deponent verily believes that if the said —— is obliged to take his trial at the ensuing sessions, he will be in imminent danger of his life."—"I verily believe so too," replied the judge, and the trial proceeded immediately.
* * * * *
Some judges profess ignorance of slang terms used in evidence, and seek explanation from counsel. Lord Coleridge in the following story had his inquiry not only answered but illustrated. A witness was describing an animated conversation between the pursuer and defendant in a case and said: "Then the defendant turned and said, 'If 'e didn't 'owld 'is noise 'ed knock 'im off 'is peark.'"—"Peark? Mr. Shee, what is meant by peark?" asked the Lord Chief Justice. "Oh, peark, my lord, is any position when a man elevates himself above his fellows—for instance, a bench, my lord."
Another story illustrating this alleged ignorance of every-day terms used by the masses comes from the Scottish Court of Session. In this instance the explanation was volunteered by the witness who used the term. One of the counsel in the case was Mr. (now Lord) Dewar, who was cross-examining the witness on a certain incident, and drew from him the statement that he (the witness) had just had a "nip." "A nip," said the judge; "what is a nip?"—"Only a small Dewar, my lord," explained the witness.
Lord Russell of Killowen, himself a Lord Chief Justice, tells some amusing stories of Lord Coleridge in his interesting reminiscences of that great judge in the North American Review. When at the Bar he was counsel in a remarkable case—Saurin against Starr. The pursuer, an Irish lady, sued the Superior of a religious order at Hull for expulsion without reasonable cause. Mr. Coleridge cross-examined a Mrs. Kennedy, one of the superintendents of the convent, who had mentioned in her evidence, among other peccadilloes of the pursuer, that she had been found in the pantry eating strawberries, when she should have been attending some class duties.
Mr. Coleridge: "Eating strawberries, really!"
Mrs. Kennedy: "Yes, sir, she was eating strawberries."
Mr. Coleridge: "How shocking!"
Mrs. Kennedy: "It was forbidden, sir."
Mr. Coleridge: "And did you, Mrs. Kennedy, really consider there was any great harm in that?"
Mrs. Kennedy: "No, sir, not in itself, any more than there was harm in eating an apple; but you know, sir, the mischief that came from that."
When as Lord Chief Justice, Lord Coleridge visited the United States, he was continually pestered by interviewers, and one of them failing to draw him, began to disparage the old country in its physical features and its men. Lord Coleridge bore it all in good part; finally the interviewer said, "I am told, my lord, you think a great deal of your great fire of London. Well, I guess, that the conflagration we had in the little village of Chicago made your great fire look very small." To which his lordship blandly responded: "Sir, I have every reason to believe that the great fire of London was quite as great as the people of that time desired."
There are few of Lord Bowen's witticisms from the Bench in circulation, but his after-dinner stories are worth recording, and perhaps one of the best is that given in Anecdotes of the Bench and Bar, as told by himself in the following words: "One of the ancient rabbinical writers was engaged in compiling a history of the minor prophets, and in due course it became his duty to record the history of the prophet Daniel. In speaking of the most striking incident in the great man's career—I refer to his critical position in the den of lions—he made a remark which has always seemed to me replete with judgment and observation. He said that the prophet, notwithstanding the trying circumstances in which he was placed, had one consolation which has sometimes been forgotten. He had the consolation of knowing that when the dreadful banquet was over, at any rate it was not he who would be called upon to return thanks."
* * * * *
The following story cannot be classed a witticism from the Bench, but the judge clearly gave the opening for the lady's smart retort.
Mrs. Weldon, a well-known lady litigant in the Courts a generation ago, was on one occasion endeavouring in the Court of Appeal to upset a judgment of Vice-Chancellor Bacon, and one ground of complaint was that the judge was too old to understand her case. Thereupon Lord Esher said: "The last time you were here you complained that your case had been tried by my brother Bowen, and you said he was only a bit of a boy, and could not do you justice. Now you come here and say that my brother Bacon was too old. What age do you want the judge to be?"—"Your age," promptly replied Mrs. Weldon, fixing her bright eyes on the handsome countenance of the Master of the Rolls.
On Charles Phillips, who became a judge of the Insolvent Court, noticing a witness kiss his thumb instead of the Testament, after rebuking him said, "You may think to desave God, sir, but you won't desave me."
* * * * *
That racy and turf-attending judge, Lord Brampton, better known as Sir Henry Hawkins, tells many good stories of himself in his Reminiscences, but it is the unconscious humorist of Marylebone Police Court who records this bon mot of Sir Henry.
An old woman in the witness-box had been rattling on in the most voluble manner, until it was impossible to make head or tail of her evidence. Mr. Justice Hawkins, thinking he would try his hand, began with a soothing question, but the old woman would not have it at any price. She replied testily, "It's no use you bothering me. I have told you all I know."—"That may be," replied his lordship, "but the question rather is, do you know all you have told us?"
When Sir Henry (then Mr.) Hawkins was prosecuting counsel in the Tichborne trial, over which Lord Chief Justice Cockburn presided, an amusing incident is recorded by Mr. Plowden. The antecedents of a man who had given sensational evidence for the claimant were being inquired into, and in answer to Sir Henry the witness under examination said he knew the man to be married, but his wife passed under another name. "What name?" asked Mr. Hawkins. "Mrs. Hawkins," replied the witness. "What was her maiden name?" added Mr. Hawkins. "Cockburn." Such a coincident of names naturally caused hearty and prolonged laughter.
In the course of this celebrated trial another amusing incident occurred which Sir Henry used to tell against himself. One morning as the claimant came into Court, a lady dressed in deep mourning presented Orton with a tract. After a few minutes he wrote something on it, and had it passed on to the prosecuting counsel. The tract was boldly headed in black type, "Sinner—Repent," and the claimant had written upon it, "Surely this must have been meant for Hawkins."
Not long after he had ascended the Bench Mr. Justice Hawkins was hearing a case in which a man was being tried for murder. The counsel for the prosecution observed the prisoner say something earnestly to the policeman seated by his side in the dock, and asked that the constable should be made to disclose what had passed. "Yes," said his lordship, "I think you may demand that. Constable, inform the Court what passed between you and the prisoner."—"I—I would rather not, your lordship. I was—."—"Never mind what you would rather not do. Inform the Court what the prisoner said."—"He asked me, your lordship, who that hoary heathen with the sheepskin was, as he had often seen him at the race-course."—"That will do," said his lordship. "Proceed with the case."
An action for damages against a fire insurance company, brought by some Jews, was heard before Chief Justice Cockburn, which clearly was a fraudulent claim. The plaintiffs claimed for loss of ready-made clothes in the fire. Hawkins, who appeared for the defendant company, elicited the fact that ready-made clothes in this firm had all brass buttons as a rule; and, further, that after sifting the debris of the fire no buttons had been found. The trial was not concluded on that day, but on the following morning hundreds of buttons partially burnt were brought into Court by the Jew plaintiffs. Cockburn was not long in appreciating this mode of furnishing evidence after its necessity had been pointed out, and he asked: "How do you account for these buttons, Mr. Hawkins? You said none were found."—"Up to last night none had been found," replied Hawkins. "But," said the Chief Justice—"but these buttons have evidently been burnt in the fire. How do they come here?"—"On their own shanks," was Hawkins' smart and ready reply. Verdict for defendants.
The alibi has come in for its fair share of jests. Sir Henry Hawkins relates in his Reminiscences how he once found the following in his brief: "If the case is called on before 3.15, the defence is left to the ingenuity of the counsel; if after that hour, the defence is an alibi, as by then the usual alibi witnesses will have returned from Norwich, where they are at present professionally engaged."
Sitting as a vacation judge, Sir Walter Phillimore, whose views on the law of divorce are well known, protested against being called on to make absolute a number of decrees nisi granted in the Divorce Division. This fact is said to have called forth a witty pronouncement by a late president of that Division of the Courts. "Here is my brother Phillimore, who objects to making decrees nisi absolute because he believes in the sanctity of the marriage tie. By and by we may be having a Unitarian appointed to the Bench, and he will refuse to try Admiralty suits, as he would have to sit with Trinity Masters."
In sentencing a burglar recently, the judge referred to him as a "professional," to which the prisoner strongly protested from the dock. "Here," he exclaimed, "I dunno wot you mean by callin' me a professional burglar. I've only done it once before, an' I've been nabbed both times." The judge, in the most suave manner, replied, "Oh, I did not mean to say that you had been very successful in your profession."
* * * * *
Mr. Justice Grantham had a keen sense of humour. On one occasion, when he was judge at the Newcastle Assizes, he left the mansion-house where he was staying, at night, to post his letters. As he was wearing a cap he was not recognised by the police officer who was on duty outside, and the constable inquired of his lordship if "the old —— had gone to bed yet." The judge replied that he thought not, and a short while after he had returned to the house he raised his bedroom window, and putting out his head called to the constable below: "Officer, the old —— is just going to bed now."
Hardly a case of any importance comes into Mr. Justice Darling's Court without attracting a large attendance of the public, as much from expectation of being entertained by the repartees between Bench and Bar as from interest in the proceedings before the Court. In a recent turf libel case his lordship gave a free rein to his proclivity to give an amusing turn to statements of both counsel and witnesses. At one point he intervened by remarking that other witnesses than the one under examination had said that a horse is made fit by running on the course before he is expected to win a position, and added, "That is so, not only on the race-course. You can never make a good lawyer by putting him to read in the library." To which the defendant, who conducted his own case, replied, "But I take it a barrister does try."—"You have no notion how he tries the judge," responded Mr. Justice Darling. In the same case a question arose as to whether the stewards of the Jockey Club had the power to check riding "short," as it is termed, and the Justice inquired if the stewards could say, "You must ride with a leather of a prescribed length," and got the answer, "Yes; they could say if you don't ride longer we won't give you a license."—"Which means," said the judge, "if you don't ride longer you won't ride long."
"Who made the translation from the German?" asked the same judge, regarding a document to which counsel had referred. "God knows; I don't," was the reply of Mr. Danckwerts. "Are you sure," responded the Justice, "that what is not known to you is known at all?"
Perhaps Mr. Justice Darling never raised heartier laughter than in an action some years ago where the issue was whether the plaintiff, who had been engaged by the defendant to sing in "potted opera" at a music-hall, was competent to fulfil his contract.
"Well, he could not sing like the archangel Gabriel," a witness had said, in reply to Mr. Duke, K. C.
"I have never heard the archangel Gabriel," commented the eminent counsel.
"That, Mr. Duke, is a pleasure to come," was his lordship's swift, if gently sarcastic, rejoinder.
* * * * *
If witnesses occasionally undergo severe handling in cross-examination by counsel, there are also occasions when their ready reply has rather nonplussed the judge.
A case was being tried at York before Mr. Justice Gould. When it had proceeded for upwards of two hours the judge observed that there were only eleven jurymen in the box, and inquired where the twelfth man was. "Please you, my lord," said one of them, "he has gone away about some business, but he has left his verdict with me."
"How old are you?" asked the judge of a lady witness. "Thirty."—"Thirty!" said the judge; "I have heard you give the same age in this Court for the last three years."—"Yes," responded the lady; "I am not one of those persons who say one thing to-day and another to-morrow."
Mr. Justice Keating one day had occasion to examine a witness who stuttered very much in giving his evidence. "I believe," said his lordship, "you are a very great rogue."—"Not so great a rogue as you, my lord—t—t—t—t—take me to be," was the reply.
Judge: "Is this your signature?"
Witness: "I don't know."
Judge: "Look at it carefully."
Witness: "I can't say for certain."
Judge: "Is it anything like your writing?"
Witness: "I don't think it is."
Judge: "Can't you identify it?"
Witness: "Not quite."
Judge: "Well, let me see, just write your name here and I will examine the two signatures."
Witness: "I can't write, sir."
Medical men are not as a rule the best witnesses, being too fond of using technical words peculiar to them in their own profession. In an action for assault tried by a Derbyshire common jury before Mr. Justice Patteson, a surgical witness was asked to describe the injuries the plaintiff had received; he stated he had "ecchymosis" of the left eye. Upon the judge inquiring whether that did not mean what was commonly understood by a black eye, the witness answered: "Yes."—"Then why did you not say so, sir? What do the jury know of 'ecchymosis'? They might think, as the farmer did of the word 'felicity,' used by a clergyman in his sermon, that it meant something in the inside of a pig."
A notorious thief, being tried for his life, confessed the robbery he was charged with. The judge thereupon directed the jury to find him guilty upon his own confession. The jury having consulted together brought him in "Not guilty." The judge bade them consider their verdict again, but still they brought in a verdict of "Not guilty." The judge asking the reason, the foreman replied: "There is reason enough, for we all know him to be one of the greatest liars in the country."
"Have you committed all these crimes?" asked the judge of a hoary old sinner. "Yes, my lord, and worse." "Worse, I should have thought it impossible. What have you done then?"—"My lord, I allowed myself to be caught."
"I knows yer," said a prisoner to the present Lord Chief Justice, "and many's the time I've given yer a hand when ye've been stepping it round the track like a greyhound. So let's down lightly, like a good cove as yer are."
* * * * *
The retort of a witness to Lord Avory was too good to be soon forgotten, and is still circulating among the juniors of the law-courts. "Let me see," said his lordship, "you have been convicted before, haven't you?"—"Yes, sir," answered the man; "but it was due to the incapacity of my counsel rather than to any fault on my part."—"It always is," said Lord Avory, with a grim smile, "and you have my sincere sympathy."—"And I deserve it," retorted the man, "seeing that you were my counsel on that occasion!"
THE BARRISTERS OF ENGLAND
"Hark the hour of ten is sounding! Hearts with anxious fears are bounding; Hall of Justice crowds surrounding, Breathing hope and fear. For to-day in this arena Summoned by a stern subpoena, Edwin sued by Angelina Shortly will appear."
Sir W. S. GILBERT: Trial by Jury.
"As your Solicitor, I should have no hesitation in saying: Chance it——"
Sir W. S. GILBERT: The Mikado.
THE BARRISTERS OF ENGLAND
From the middle of the thirteenth century the senior rank to which a barrister could attain at the Bar was that of serjeant-at-law, and from that body, which existed until 1875, the judges were selected. If a barrister below the rank of serjeant was invited to take a seat on the Bench he invariably conformed to the recognised custom and "took the coif"—became a serjeant-at-law—before he was sworn as one of his (or her) Majesty's judges. This explains the term "brother" applied by judges when addressing serjeants pleading before them in Court. "Taking the coif" had a curious origin. It was customary in very early times for the clergy to add to their clerical duties that of a legal practitioner, by which considerable fees were obtained, and when the Canon law forbade them engaging in all secular occupations the remuneration they had obtained from the law-courts proved too strong a temptation to evade the new law. They continued therefore to practise in the Courts, and to hide their clerical identity they concealed the tonsure by covering the upper part of their heads with a black cap or coif. When ultimately clerical barristers were driven from the law-courts, the "coif" or black patch on the crown of a barrister's wig became the symbol of the rank of serjeant-at-law. That this distinguishing mark has been, in later years, occasionally misunderstood is illustrated in the story of Serjeant Allen and Sir Henry Keating, Q.C., who were opposed to one another in a case before the Assize Court at Stafford. During the hearing of the case a violent altercation had taken place between them, but when the Court rose they left the building together, walking amicably to their lodgings. Two men who had been in Court and had heard their wrangle were following behind them, when one said to the other: "If you was in trouble, Bill, which o' them two tip-top 'uns would you have to defend you?"—"Well, Jim," was the reply, "I should pitch upon this 'un," pointing to the Q.C. "Then you'd be a fool," said his companion; "the fellow with the sore head is worth six of t'other 'un."
There used to be a student joke against the serjeants. "Why is a serjeant's speech like a tailor's goose?"—"Because it is hot and heavy."
* * * * *
"Taking silk," or becoming a K.C. and a senior at the Bar, originated at a much later date than that of serjeant-at-law. Lord Bacon was the first to be recognised as Queen's Counsel, but this distinction arose from his position as legal adviser to Queen Elizabeth, and did not indicate the existence of a senior body (as K.C. does now) among the barristers of that period. The institution of the rank dates from the days of Charles II, when Sir Francis North, Lord Guildford, was created King's Counsel by a writ issued under the Great Seal. As was customary in the case of a barrister proposing to "take the coif," so in that of one proposing to "take silk"; he intimates to the seniors already holding the rank that he intends to apply for admission to the body. A story is current in the Temple that when Mr. Justice Eve "took silk" the usual notification of his intention was sent to the seniors, and from one of them he received the following reply: "My dear Eve, whether you wear silk or a fig-leaf, I do not care.—A Dam."
* * * * *
Our selection of facetiae of the English Bar, therefore, naturally opens with stories of the serjeants-at-law, and one of the best-known members of that body in early days was Serjeant Hill, a celebrated lawyer, who was also somewhat remarkable for absence of mind, which was attributed to the earnestness with which he devoted himself to his professional duties.
On the very day when he was married, he had an intricate case on hand, and forgot his engagement, until reminded of his waiting bride, and that the legal time for performing the ceremony had nearly elapsed. He then quitted law for the church; after the ceremony, the serjeant returned to his books and his papers, having forgotten the cause he had been engaged in during the morning, until again reminded by his clerk that the assembled company impatiently awaited his presence at dinner.
Being once on Circuit, and having occasion to refer to a law authority, he had recourse, as usual, to his bag; but, to the astonishment of the Court, instead of a volume of Viner's abridgment, he took out a specimen candlestick, the property of a Birmingham traveller, whose bag Serjeant Hill had brought into Court by mistake.
A learned serjeant kept the Court waiting one morning for a few minutes. The business of the Court commenced at nine. "Brother," said the judge, "you are behind your time this morning. The Court has been waiting for you."—"I beg your lordship's pardon," replied the serjeant; "I am afraid I was longer than usual in dressing."—"Oh," returned the judge, "I can dress in five minutes at any time."—"Indeed!" said the learned brother, a little surprised for the moment; "but in that my dog Shock beats your lordship hollow, for he has nothing to do but to shake his coat, and thinks himself fit for any company."
Serjeant Davy, when at the height of his professional career, once received a large brief on which a fee of two guineas only was marked on the back. His client asked him if he had read the brief. Pointing with his finger to the fee, Davy replied: "As far as that I have read, and for the life of me I can read no further." Of the same eminent serjeant in his earlier years an Old Baily story is told. Judge Gould, who presided, asked: "Who is concerned for the prisoner?"—"I am concerned for him, my lord," said Davy, "and very much concerned after what I have just heard."
If Serjeant Davy was concerned about his client, Serjeant Miller had no such scruple about the man charged with horse stealing whom he successfully defended, although the evidence convinced the judge and everybody in the Court that there ought to have been a conviction. When the trial was over and the prisoner had been acquitted, the judge said to him: "Prisoner, luckily for you, you have been found Not Guilty by the jury, but you know perfectly well you stole that horse. You may as well tell the truth, as no harm can happen to you now by a confession, for you cannot be tried again. Now tell me, did you not steal that horse?" "Well, my lord," replied the man, "I always thought I did, until I heard my counsel's speech, but now I begin to think I didn't."
* * * * *
In the days of "riding" and "driving circuit," and even later, the Circuit mess was a very popular institution with circuiteers, and was made the occasion of much merriment. After the table had been cleared a fictitious charge would be made against one of the barristers present, and a mock tribunal was immediately constituted before which he was arraigned and his case duly set forth with all solemnity. The victim was invariably fined—generally in wine, which had to be paid at once, and consumed before the company retired to bed. On one such occasion Serjeant Prime, who is represented as a good-natured but rather dull man, and as a barrister wearisome beyond comparison, was engaged in an important case in an over-crowded courtroom. He had been speaking for three hours, when a boy, seated on a beam above the heads of the audience, overcome by the heat and the serjeant's monotonous tones, fell asleep, and, losing his balance, tumbled down on the people below. The incident was made the subject of a charge against the serjeant at the mess, and he was duly sentenced to pay a fine of two dozen of wine, which he did with the greatest good humour.