"Tis the divine's to convert by faith, the soldier's to overcome by force, the politician's to circumvent by art; but to the Bar it especially belongs to prevail with men through means which their reason can comprehend, which their courage need not disdain, and which their honesty must revere." - ANON.
Coke and Bacon
Slandering a Lawyer
Preparing for Trial
Golden Pippins and Pig
The Sword for the Gown
Hardship of Arrest
Going to Law
Being Covered in Court
Privilege of King's Advocate in Scotland
Right of Appeal
Sir George Mackenzie
Trial of Lord Lovat
Ancient Highland Oath
A Nice Objection
Returning a Fee
Escape of a Wizard
Sheridan in the Witness Box
A Last Interview
Rise of Curran
Hon. Henry Erskine|
Pleading v. Auctioneering
Freedom of Speech
Lenity to Female Culprits
Being in the Stocks
A Good Apology
Downfall of Curran
Sir Vicary Gibbs
The Tables Turned
Challenging a Jury
Garrick at Law
Swift and Bettesworth
The Gunpowder Plot
The Law and the Fact
Old Irish Practice
A Prototype for Informers
Contrast between English and French Judicial Proceedings
A High Authority
Murder of Sir Thomas Overbury
Right of By-Standers
Right to Speak before Pleading
The Star Chamber
Trial of Charles I
The Church and the Bar
John Doe and Richard Roe
Breach of Promise of Marriage
Sir Thomas More
The Coventry Act
'Leicester's Mad Recorder.'
Independence of the Bar
Common Sense v. Black Letter
Wigs and Gowns
Few reigns, it has been remarked, have produced so many eminent lawyers as that of Queen Elizabeth. The graces of oratory, however, formed no part of the character of an able lawyer in those days. Sir Edward Coke, the most distinguished among the number for talents and attainments, was at the same time one of the coarsest pleaders that perhaps ever practised at the English bar; in putting on his wig and gown, he seemed as it were to throw away for the time, every share of gentlemanly, nay, even of manly feeling, which his nature possessed.
In the prosecution of the Earl of Essex for high treason, 'Coke,' says Hume, 'opened the cause against him, and treated him with the cruelty and insolence which that great lawyer usually exercised against the unfortunate.' At the conclusion of his speech he said, that 'by the just judgment of God, he of his earldom should be Robert the Last, that of a kingdom thought to be Robert the First.'
Coke made a still more outrageous exhibition in the prosecution which he also managed against Sir Walter Ralegh, a name which can never be mentioned without exciting a blush of shame and indignation for his cruel fate. His trial was a mere mockery, and conducted in a manner which, at the present day, would not be tolerated for a single moment.
The Attorney-General, Coke, feeling too sensibly the unequal grounds on which he stood, to endeavour to succeed by argument, began by loading Sir Walter with abuse and insult, calling him the most 'notorious traitor that ever came to that bar. His schemes,' he said, 'were directed equally against the religion of his country as against its king; and when he had taken off the one he would have altered the other, and established Popery in its place.' 'Sir Walter,' he added, 'was a viper and a monster with an English face; but with a Spanish heart, against whom there was no occasion to confront the witnesses; his criminality was evident, and he was a reptile, and the dregs of the earth.'
The Attorney-General proceeded still farther, and said, 'That the king would be dethroned in less than a year, if a traitor could not be condemned upon circumstances; that it would be very dangerous for his majesty to acquit the prisoner; protesting in a solemn manner before his Maker, that he never knew a crime of treason more clearly made out than that against Sir Walter, who was 'the most vile and execrable traitor that ever existed in the world.'
Here the prisoner interrupted the Attorney-General, whose irascible zeal and scurrility exceeded all bounds.
Sir Walter. 'You speak indiscreetly, and barbarously.'
Attorney-General. 'I cannot find words to express such viperous treasons.'
Sir Walter. 'I think you want words indeed, for you have repeated one thing half a-dozen times.'
Attorney-General. 'Thou art an odious fellow; thy name is hateful to all England for thy pride.'
Sir Walter. 'It will then go near to prove a measuring cast between you and me, Mr. Attorney.'
Nor was Coke less blameable with respect to the high court before which he stood. His arrogance was so offensive, that Lord Cecil demanded 'If he came hither to direct them?' Coke chose to be so indignant at this rebuke, that he sat down and refused to utter another word till he was solicited by all the commissioners, when he rose, and summed up the case for the prosecution.
After a brief charge from the Lord Chief justice, in which he said, that 'he presumed Sir Walter was not so clear a man as he had protested,' the jury withdrew for a quarter of an hour, and then brought in a verdict of guilty against the most injured man of his age or country.
Coke and Bacon.
Sir Edward Coke had a strong dislike to Lord Bacon, and did everything in his power to elbow him out of place; to such excess did he carry it, that he could not refrain from attacking him even in the Courts of Justice. The following instance of this is related by Bacon, in a letter from him to Secretary Cecil. For pointedness of remark, and retort, it has seldom been surpassed in any of the uncourteous controversies which not unfrequently happen at the bar. Bacon, it may be necessary to remark, had been appointed Queen's Attorney-General in the time of Elizabeth, but had not at this time taken the oaths of office. Coke was Attorney-General. Bacon styles his narrative 'a true remembrance of the abuse I received from Mr. Attorney-General, publicly in the Exchequer, the first day of term.'
'I moved', says Bacon, 'to have a reseizure of the lands of George Moore, a relapsed recusant and fugitive, and a practising traitor, and showed better matter for the queen against the discharge by plea, which is ever with a salvo jure, and this I did in as gentle and reasonable terms as might be.
Mr. Attorney kindled at it, and said,
"Mr. Bacon, if you have any tooth against me, pluck it out, for it will do you more hurt than all the teeth in your head will do you good."
'I answered coolly in these words:- "Mr. Attorney, I respect you; I fear you not; and the less you speak of your own greatness, the more I shall think of it."
'He replied, "I think scorn to stand upon terms of greatness towards you; who are less than I little, less than the least" and other such strange light terms, he gave me with that insulting air which cannot be expressed.
'Herewith stirred, I said no more than this:- "Mr. Attorney, do not depress me so far, for I have been your better, and may be again, when it pleases the queen."
'With this he spoke, neither I nor himself could tell what, as - if he had been born Attorney-General, and in the end bid me meddle not with the queen's business, but my own; and that I was unsworn, &C.
'I told him, sworn or unsworn, was all one to an honest man, and that I ever set my service first, and myself second, and wished to God that he would do the like.
'Then he said, it were good to clap a caput le gatum upon my back. To which I only said, he could not; and that he was at a halt, for he hunted me upon an old scent.
'He gave me a number of disgraceful words besides, which I answered with silence, and showed that I was not moved with them.'
Slandering a Lawyer.
In the reign of Queen Elizabeth, one Peter Palmer, of Lincoln's Inn, brought an action against a barrister of the name of Boyer, for having, with the intention to injure him in his name and practice, said, 'Peter Palmer is a paltry lawyer, and hath as much law as a jackanapes.' It was moved in arrest, that the words would not maintain an action, because they were not slanderous. Had Mr. Boyer said, 'Mr. Palmer had no more law than a jackanapes,' it had been actionable, for then he had lessened the opinion of his learning; but the words were, 'he hath as much law as a jackanapes,' which was no impeachment of his learning, for every man that hath more law than a jackanapes, hath as much. Sed non, allocatur, for the comparison is to be taken in the worse sense.
Judge Berkeley says it has been adjudged, where a person said of a lawyer, 'that he had as much law as a monkey,' that the words were not actionable, because he had as much law, and more also; but if he had said 'he hath no more law than a monkey,' these words would have been actionable.
Preparing for Trial.
When Sir Nicholas Throgmorton was tried for high treason, in the reign of Queen Mary, he wished to address the court before he pleaded to the indictment; but this was refused. He then prayed their lordships not to make too much haste with him. nor to think it long before their dinner time came, for his case required deliberation, and they would not dine well without they truly administered justice, since our Saviour said, 'Blessed are they that hunger and thirst after righteousness.'
The court took offence at the expressions, and the Lord Chief Justice Bromley said, 'I can forbear my dinner as well as you, Sir Nicholas, and perhaps care as little for it as yourself.'
The Earl of Shrewsbury. 'Do you come hither, Throgmorton, to check the court? We will not be used so. No, no: for my own part, I have gone without my breakfast, dinner, and supper, to serve the queen.
Sir Nicholas replied, 'I know it very well, my lord I had no design to offend your lordship your pains and services are evidently known to everybody.
Sir Richard Southwell said, 'Sir Nicholas, there is no occasion for this discourse; we know what we have to do; you pretend to teach us our duty, you do yourself an injury; come to the matter in hand.' 'Sir, you mistake me,' said Sir Nicholas 'I have no thoughts of instructing you, or any of you; but to put you in mind, I hope, of all you are well informed of; and therefore I shall say nothing upon a supposition, that you know what you have to do, and ought to know; and so I answer to the indictment, and do plead not guilty of the whole, nor of any part of it.'
Mr. Sendal. 'How will you be tried.'
Sir Nicholas. 'Shall I be tried as I would, or as I should?'
Chief Justice Bromley. 'You shall be tried as the law requires, and therefore you must be tried by God and your country.
'Is that your law for me?' said Sir Nicholas. 'It is not as I would; but finding you will have it so, I am content, tried by just and honest men, that fear God more than man.'
On the names of the jury being called over, the Attorney-General went to Sir Roger Cholmley, one of the judges, and showed him the pannel, telling him, that being acquainted with the citizens, he knew their corruptions and dexterities in affairs of this nature, and named some who ought to be challenged on the queen's behalf. Two persons who were known to be honest and substantial citizens, were then challenged without assigning any reason, and two others with as little reason substituted in their stead.
The prisoner observing this hitherto unexampled perversion of justice told the court, he 'hoped that they had not dealt with him that day, as formerly he had known a gentle man used, who stood in the same place and circumstances as himself.' One of the judges being suspicious that a prisoner, by reason of the justice of his cause was likely to be acquitted, said to one of his brethren, when the Jury appeared, 'I do not like this jury, they are not for our purpose, they seem to have too much compassion and charity to condemn the prisoner.' 'No, no,' said the other Judge, Cholmley by name, "I'll warrant you they are fellows picked on purpose, but he shall drink of the same cup with his associates." I was then a spectator of the pageantry, as other's are now; but now, the more is my misfortune, am an actor in the woeful tragedy.'
In the meantime, Cholmley consulted with the Attorney-General about the jury, which being observed by the prisoner at the bar, he said. 'Ah, Sir Roger Cholmley, will you never leave off this foul play?' 'Why, what hurt do I do, pray, Sir Nicholas?' he replied. 'I am sure I did not hurt; why do you pick quarrels with me?' Throgmorton only replied 'Sir Roger, if you do well, it will be better for you. 'God help you.'
On the trial proceeding, Sir Nicholas Throgmorton made so admirable a defence, that the jury brought in a verdict of not guilty. [See Anecdotes of Eloquence.]
Golden Pippins and Pig.
A person having voted against Serjeant Maynard rar, at a Borough Election in the West of England, the serjeant brought an action against him for scandalous words he had used. He first laid his action in the County of Middlesex, by virtue of a privilege, which supposes a serjeant to be attendant on the Court Of Common Pleas, and not to be drawn from the County where the court sits. In the next place, he charged the words in Latin, in order that if he proved the effect it would be sufficient, whereas, if they were in English, he must prove the actual words that had been used. The action was tried before the Lord Keeper Guilford. The witness related the story as he said he had heard it from the defendant:- 'A client came to the serjeant, and gave him a basket of pippins, and every pippin had a piece of gold in it.' The Judge. 'Those were golden pippins, I presume ?' The serjeant did not relish the jest, but said nothing, and the witness went on, to 'The party on the other side came also the serjeant, and gave him a roasting pig in the belly of which were fifty gold pieces.' The Judge. 'Excellent sauce indeed to a pig.'
This additional sarcasm put the serjeant out of all patience, and he remarked to those near him, that it was said in order to make him appear ridiculous.
The story being sworn to, the judge directed the jury to find a verdict for the serjeant, which was done; but the judgment was arrested, in consequence of the words being the burden of an old story, which had been applied to the serjeant in jest, and without any intention to slander.
Mr. Chute, a Lawyer who lived in the reign of Charles II, "would sometimes quit the fatigues of business, and pass his time in pleasure for many months. He would say to his clerk, 'tell the people I will not practise this term.' He was as good as his word, and would not see any person on business. But when his clerk intimated that his master was ready to resume practice, briefs would flow in upon him, in as great abundance as ever. It is rare to see a genius thus superior to the slavery of a lucrative profession.
In the reign of Charles II., seventeen sergeants-at-law were made in one day, and as was customary, each presented rings to the judges. A few days afterwards, on Sergeant Powis coming to the King's Bench Bar, the Chief justice Keeling told him that the rings which he and his brethren had given, weighed but eighteen shillings a piece; whereas Fortesque, in his book 'De laudibus Legum Angliae,' says, that the rings given to the chief justices and to the chief baron ought to weigh twenty shillings each. He added, that he did not mention this from any expectation of recompense, but that it might not be drawn into a precedent, and that the Young gentlemen at the bar might take notice of it.
The Sword for the Gown.
A Young student of law, was obliged by lot to inscribe his name among certain new levies of the Austrian Imperial army. He sent a Petition to the emperor, stating, that as he was on the point of being called to the bar, he flattered himself he could be of more service to his country as a lawyer than as a soldier.'My good friend,' said the emperor, 'you are not ignorant that I am engaged in a very intricate suit against the French Convention, and that I want the assistance of men of talent as you appear to be. Have the goodliess to accept these twelve ducats. Do your duty, and I promise you promotion.'
Hardship of Arrest.
In an action of debt, tried before Lord Mansfield at sittings at Guildhall, the defendant, a merchant of London, complained with great warmth to his lordship of the indignity which had been put on him by the plaintiff, in causing him to be arrested, not only in the face of day, but in the Royal Exchange, in the face of the whole assembled credit of the metropolis. The chief justice stopped him with great composure, saying, 'Friend, you forget yourself; You were the defaulter in refusing to pay a just debt; and let me give you a piece of advice worth more to you than the debt and costs. Be careful in future not to put it in any man's power to arrest you for a just debt in public or in private.'
Going to Law.
An action was brought at Lincoln assizes for the recovery of a horse. Justice Bailey at the close of the cause, in which £25 damages were given, strongly discouraged going to law in cases of that nature. 'Take my advice, gentlemen,' said he, 'and accommodate matters of this kind, if possible; for men, in general, lose more than £25 in bringing an action on the warranty of a horse, even if they win; and such is the danger from the evidence common in cases like this, that justice is no security to a man, of success. I perceive that the gentlemen below me do not approve of my doctrine; but the truth must be told sometimes.'
Being Covered in Court.
On the arraignment of Ann Turner, a physician's widow, who was indicted for being an accessary before the fact, to the murder of Sir Thomas Overbury, she kept on her hat. Sir Edward Coke observing this, bade her put it off, saying, 'that a woman might be covered in church, but not when arraigned in a court of justice;' the prisoner said she thought it singular that she might be covered in the house of God, and not in the judicature of man. Sir Edward replied, 'that from God no secrets were hid, but it was not so with man, whose intellects were weak; therefore in the investigation of truth, and especially when the lives of our fellow creatures are in jeopardy, on the charge of having deprived another thereof, the court should see all the obstacles removed; and because the countenance is often an index to the mind, all covering should be removed from the face.' The Chief Justice then ordered her hat to be taken off, and she covered her head with her handkerchief.
Privilege of King's Advocate in Scotland.
Sir Thomas Hope, King's Advocate in Scotland, during part of the reign of Charles I., though he was never himself elevated to the bench, had the singular pleasure of seeing three of his sons advanced to be senators of the College of Justice, one of whom, of the same name with himself, was afterwards raised to the high office of Justice General. It being thought indecorous to allow a man of his reverend age to stand uncovered when in his pleadings he addressed a court in which so many of his own children sat as judges, he was permitted to be covered whenever he pleased. This was the origin of a privilege which the king's advocates are said still to enjoy, of pleading before the Court of Session with their hats on; a privilege, however, of which we need hardly say they have uniformly too much politeness to avail themselves.
Right of Appeal.
About the middle of the seventeenth century, the Lords of Session in Scotland, reverting to the origin of their institution, when they consisted of a select number of members of Parliament, and were, in-fact, a Committee of Parliament, took it into their heads to revive their pretensions to the supremacy of a court of last resort, although they could no longer lay claim in any respect to a parliamentary character, and although statutes had intervened, establishing a right of appeal from their decisions to Parliament. In this unconstitutional attempt to stretch their power, they met with a spirited and manly resistance from the faculty of advocates, who contended for the right of the subject on all occasions to appeal to Parliament, from the decrees of the Session. The judges finding both law and reason to fail them in the contest, had recourse to another and a worse stretch of power, to sustain them in their usurpation. An order was procured from the king and council discharging all appeals, and commanding the advocates to submit to the Lords of Session. The faculty, indignant at such an arbitrary assumption of dispensing power, immediately withdrew in a body from court; and refusing to act in any proceeding before their lordships, brought the legal business of the country to a complete stand. The Judges, incensed at this resolute proceeding, procured a second order from the king and council, banishing the whole of the refractory barristers to a distance of twelve miles from Edinburgh.
Sir George Mackenzie, afterwards so distinguished as Lord Advocate, during a very troubled period of Scottish history, was among the number of the exiled; and to this gentleman the judges were, after a short time, pleased to give permission to appear before them, and vindicate, if he could, the conduct of himself and brethren. Sir George appears to have acquitted himself well; he spoke with much warmth; and produced such an impression on their lordships, that they were content to enter into a compromise, which 'whatever might have been the saving clauses attached to it, put an end for ever to their pretensions to supremacy, and restored to the bar a body of gentlemen whose patriotism and spirit would have done honour to the brightest periods of its history.
Sir George Mackenzie.
In 1674, Sir George Mackenzie, to whom his country was so much indebted in the question of appeal, was appointed his Majesty's Advocate for Scotland. Being called to the office in troublesome and rebellious times, when the minds of contending parties were inflamed with political, as well as religious zeal, he could scarcely be expected to fulfil the duties of it without incurring the hatred of those whose friends or relatives suffered under the severity of the law, and provoking a torrent of calumny and abuse on his character. It is quite true that his political principles accorded singularly well with the sort of work which was required of him, being a zealous advocate for the doctrines of passive obedience and conformity; yet with all this furniture for persecution, there is certainly nothing in his conduct to warrant the application of such epithets as 'bloodthirsty advocate', 'persecutor of the Saints of God,' and others equally coarse, by which we find him sometimes designated. The great care which he took in regulating the forms used in trials for treason, was far from savouring of any desire for a rigour far beyond the law; so much indeed was the contrary the fact, that there never was a period when so many thousands were pardoned, and so many indemnities granted, as during his administration. He says himself, that he 'never informed against any man, nor suggested any prosecution; and that when a prosecution was advised by others, he pleaded as much in private for the defendant, as if the case had been dubious, or he had been advocate for him.
The memory of Sir George Mackenzie ought, on a separate account, to be for ever dear to the members of the Scottish bar. He was the founder of the Advocates' Library at Edinburgh, one of the most extensive and valuable repositories of ancient and modern learning of which this island can boast.
In Scotland, though general verdicts appear to have been authorized by the most ancient practice of the criminal courts, it was long customary to consider jurymen as tied down to determine simply whether the series of facts stated in the libel or indictment were true, the judges reserving to themselves the power of determining the ultimate conclusion of guilty or not guilty of the crime charged. The accused person was indeed tried by his peers, but his guilt or innocence was rarely within their cognizance; and many a fellow citizen became thus the victim of the arbitrary discretion of the bench. Such was the case till the trial of Carnegie, of Finhaven, before the Court of justiciary, for the murder of Charles Earl of Strathmore, in 1728. At a meeting in the country, where the company had drank to intoxication, Carnegie having received very abusive language, and sustained a personal outrage from Lyon, of Bridgeton, drew his sword and staggering forward to make a thrust at Lyon, chanced to kill the Earl of Strathmore, a nobleman for whom he entertained the highest regard and esteem, and who had at that moment unfortunately stepped between the parties with a view to separate them. The facts of the case were perfectly clear, and the court had by a preliminary award, declared that if found to be proved, they were relevant to infer the pains of law for the crime of murder. There remained therefore no hope for the prisoner, unless the jury could be roused to assert a right which juries in Scotland had long relinquished, and to vindicate their privilege of deciding generally on the guilt or innocence of the accused. This important point was gained by the powerful eloquence of the prisoner's counsel, Mr. Dundas (afterwards Lord President Dundas): the jury found the prisoner not guilty; and since that time the right of a Scottish jury to return a general verdict has never been disputed.
Trial of Lord Lovat.
In March, 1747, Mr. Murray, afterwards Lord Mansfield, was one of the managers for the impeachment of Lord Lovat by the House of Commons, and when commenting on the evidence, displayed so much candour and moderation, that the celebrated Lord Talbot, on the conclusion of his speech, felt called upon to pay him the following enthusiastic compliment:- 'The abilities of the learned manager who has just now spoke never appeared with greater splendour than at this very hour, when his candour and humanity have been joined to those great abilities which have already made him so conspicuous, that I hope to see him one day add lustre to the dignity of the first civil employment in this nation.' Lord Lovat himself bore remarkable testimony to the abilities and fairness of his adversary. Alluding to one of the witnesses on the trial, he said, 'I thought myself very much loaded by one Murray, who your lordships knew was the bitterest evidence there was against me. I have since suffered by another Mr. Murray, who I must say is an honour to his country, and whose eloquence and learning is much beyond what is to be expressed by an ignorant man like me. I heard him with pleasure, though it was against me; I have the honour to be his relation, though perhaps he neither knows it nor values it. I wish that his being born in the North may not hinder him from the preferment that his merit and learning deserve.'
Ancient Highland Oath.
The oath used among the Highlanders in judicial proceedings under the feudal system contained a most solemn denunciation of vengeance in case of perjury, and involved the wife and children, with the arable and the meadow land of the party who took it all together in one abyss of destruction. When it was administered there was no book to be kissed, but the right hand was held up while the oath was repeated. The superior idea of sanctity which this imprecation conveyed to those accustomed to it, may be judged from the expression of a Highlander, who at a trial at Carlisle had sworn positively in the English mode to a fact of consequence. His indifference during that solemnity having been observed by the opposite counsel, he was required to confirm his testimony by taking the oath of his own country to the same. 'Na, na,' said the mountaineer, 'ken ye not thar is a hantle o' difference 'twixt blawing on a buke, and domming ane's ain saul?'
Mr. Serjeant Prime, one of the ablest lawyers of his day, was driven from the Bar by Lord Thurlow, without intending it. His lordship was walking in Westminster Hall with him, while Dr. Florence Henzey was on his trial in the Court of King's Bench for high treason. Serjeant Prime was at that time the King's Prime Serjeant, and as such had precedence of all lawyers in the king's service. But the ministers of that day, wishing to pay court to Sir Fletcher Norton, although he had no other rank than that of king's counsel, entrusted the management of the trial to him. Lord Thurlow said to the serjeant, 'It is a little singular, sir, that I should be walking up and down Westminster Hall with the King's Prime Serjeant, while a trial at bar for high treason is going on in that court.' The expression struck the serjeant; he felt the affront which had been put upon him, and the next morning resigned his office, and retired from the profession.
A Nice Objection.
A lawyer, who some years ago was distinguished by the epithet of the extraordinary special pleader, and was afterwards raised to the peerage, is said to have received the sum Of 420,000 in one single cause, the defence of a young lady of rank, who was indicted for child murder. The principal evidence was a female accoucheur, who had been forcibly carried to the lady's house blindfolded. She swore that her guide forded a river twice in going to the house where her assistance was wanted; when, said the lawyer, it was known that there was but one straight river between the houses: and supposing the guide, in order to deceive the midwife, should have made a wheel round to pass it again, she must then have forded it a third time. The ingenuity of this remark so completely puzzled the jury, that they acquitted the prisoner without going out of court.
Returning a Fee.
Some years ago an unsuccessful candidate for the borough of Berwick-upon-Tweed, preferred a petition to the House of Commons, and retained an eminent counsel with a fee of fifty guineas, just before the business was about to come before the House. The barrister, who had in the interval changed his political sentiments, declined to plead. The candidate immediately waited on his advocate, mildly expostulated and remonstrated, but all in vain; he would riot by any means consent either to plead or return the money, adding, with a sneer of professional insolence, that the law was open, and he might have recourse to it if he felt himself injured. 'No, no, sir,' replied the spirited client, 'I was weak enough to give you a fee, but I am not quite fool enough to go to law with you, as I perceive my whole fortune may be wasted in retaining fees alone, before I find one honest barrister to plead for me. I have therefore brought my advocate in my pocket!' Then taking out a brace of pistols, he offered one to the astonished counsellor, and protested that before he quitted the room he would either have his money or satisfaction. The money was accordingly returned, but for want of so able an advocate, the justice of his cause did not prevent his losing it.
A counsellor famed for his eloquence and covetousness, and who seldom considered the goodness of the cause that he undertook, provided that his client could pay him, was consulted by a notorious robber, who promised him a large reward, provided that he brought him off. The pleader managed the defence with so much ingenuity, that he saved the rogue from the gallows; and the client, to show his gratitude to his good friend, as soon as liberated, hastened to his house, and presented him with a thousand crowns. The counsellor, in return for such generosity, solicited his client to sup with him, and afterwards invited him to take a bed, both of which he accepted. In the middle of the night the robber rose, found the way to the room of his host, and without ceremony bound and gagged him. He then re-pocketed his thousand crowns, and broke open a chest, in which he found plenty of silver and gold, with which he marched off in triumph.
Escape of a Wizard.
A man was tried before the Lord Keeper Guilford, at Taunton, for being a wizard. The evidence against him was, that he had bewitched a girl of about thirteen years of age, for that she had strange and unaccountable fits whenever she was near the man, and that she used to discharge straight pins from her mouth. His lordship wondered at the straight pins, which could not be so well concealed in the mouth as crooked ones, and these only used to be found in persons bewitched. He examined the witnesses very tenderly and carefully, fearing the jurymen's precipitancy. When the poor man was called upon for his defence, he clearly and sensibly declared that the charge originated in malice, and that the girl was an impostor; and he called witnesses in support of it. The judge suspecting the imposture, and being unwilling to charge the jury until it was proved, cross-examined all the witnesses very closely. At length he called the magistrate who had committed the man and taken his first examinations, and said to him, 'Sir, pray will you ingenuously declare your thoughts, if you have any, touching these straight pins, for you saw the girl in the fit?' 'My lord.' said the Justice, 'I did not know that I might concern myself in the evidence, having taken the examination and committed the man; but since your lordship demands, I must say I think that the girl, doubling herself in the fit as if she were convulsed, bent her head down close to her stomacher, and with her mouth took pins out of it, which she afterwards put into the hands of the persons near her.' This declaration gave great satisfaction to the court, and the man was acquitted. As the judge went out of the court, a hideous old woman exclaimed. 'God bless your lordship!' 'What's the matter, good woman?' said the judge. 'My lord' said she, 'forty years ago they would have hanged me for a witch, and they could not; and now they would have hanged my poor son.'
Sheridan in the Witness Box.
In the trial of the Earl of Thanet, Mr. Fergusson, and others, for an attempt to rescue O'Connor, at Maidstone Assizes in 1799, the celebrated Richard Brinsley Sheridan appeared as a witness for the defendants. The following are extracts from the examination of this distinguished individual:
Erskine. Do you know Mr. Fergusson?
Q. If he had been upon the table flourishing and waving a stick in the manner that has been described, in his bar dress, must you not have seen it?
A. 'Yes; it must have been a remarkable thing indeed for a counsel in his bar dress to have a Stick flourishing in his hand. He had paper in his hand.
Q. Does that enable you to swear that Mr. Fergusson was not in that situation?
Q. Do you think if he had taken such a part in the riot, in the presence of the judges, that you must have observed it?
A. I must have observed it.
Cross-examined by Mr. Law (afterwards Lord Ellenborough).
Q. You have said you saw Lord Thanet going towards the judges as if he was going to complain; did you hear him make any complaint to the judges?
A. I did not hear him, certainly.
Q. I will ask you whether you do or do not believe that Lord Thanet and Mr. Fergusson meant to favour O'Connor's escape, upon your oath?
A. Am I to give an answer to a question which amounts merely to an opinion?
Q. I ask, as an inference from their conduct, as it fell under your observation, whether you think Lord Thanet or Mr. Fergusson, or either of them, meant to favour Mr. O'Connor's escape, upon your solemn oath?
A. Upon my solemn oath, I saw them do nothing that could be at all auxiliary to an escape.
Q. That is not an answer to my question?
A. I do not wish to be understood to blink any question; and if I had been standing there, and been asked whether I should have pushed or stood aside, I should have had no objection to answer that question.
Q. My question is, whether from what you saw of the conduct of Lord Thanet and Mr. Fergusson, they did not mean to favour the escape of O'Conner, upon your solemn oath?
A. The learned counsel need not remind me that I am upon my oath: I know as well as the learned counsel does, that I am upon my oath; and I will say that I saw nothing that could be auxiliary to an escape.
Q. After what has passed, I am warranted in reminding the honourable gentleman that he is upon his oath. My question is, whether from the conduct of Lord Thanet or Mr. Fergusson, or either of them, as it fell under your observation, you believe that either of them meant to favour O'Connor's escape?
A. I desire to know how far I am obliged to answer that question? I certainly will answer it in this way, that from what they did being a mere observer of what passed, I should not think myself justified in saying that either of them did. Am I to say whether I think they would have been glad if he had escaped? That is what you are pressing me for.
Q. No man can misunderstand me. I ask whether, from the conduct of Lord Thanet or Mr. Fergusson, or either of them, as it fell under your observation, you believe, upon your oath that they meant to favour the escape of O'Connor?
A. I repeat it again that from what either of them did, I should have no right to conclude that they were persons assisting the escape of O'Connor.
Q. I ask you again, whether you believe, from the conduct of Lord Thanet or Mr. Fergusson, or either of them, upon your oath, that they did not mean to favour the escape of O'Connor?
A. I have answered it already.
Lord Kenyon. If you do not answer it, to be sure we must draw the natural inference.
Mr. Sheridan. I have no doubt that they wished he might escape; but from anything I saw them do, I have no right to conclude that they did.
Mr. Law. I will have an answer; I ask you again, whether from their conduct, as it fell under your observation, you do not believe they meant to favour the escape of O'Connor?
A. If the learned gentleman thinks he can entrap me, he will find himself mistaken.
Mr. Erskine. It is hardly a legal question.
Lord Kenyon. I think it is not an illegal question.
Mr. Law. I will repeat the question whether from their conduct, as it fell under your observation, you do not believe they meant to favour the escape of O'Connor?
A. My belief is, that they wished him to escape; but, from anything I saw of their conduct upon that occasion, I am not justified in saying so.
Q. I will ask you, whether it was not previously intended that he should escape, if possible?
A. Certainly the contrary.
Q. Nor had you any intimation that it was intended to be attempted?
A. Certainly the contrary. There was a loose rumour of another warrant, and that it was meant that he should be arrested again, which was afterwards contradicted. Then the question was mooted, whether the writ could be issued before he was dismissed from custody. Certainly there was no idea of a rescue. There was no friend of Mr. O'Connor's, I believe, but saw with regret any attempt on his part to leave the court.
Re-examined by Mr. Erskine. You were asked by Mr. Law, whether you believed that the defendants wished or meant to favour the escape of Mr. O'Connor. I ask you, after what you have sworn, whether you believe these gentlemen did any act to rescue Mr. O'Connor?
A. Certainly not; and I have stated upon my oath, that every man in the narrow gateway endeavoured to stop him; I remarked it particularly; because, there being a common feeling among Englishmen, and he being acquitted, I thought they might form a plan to let him escape.
Q. You have stated that you saw no one act done or committed by any one of the defendants, indicative of an intention to aid Mr. O'Connor's escape?
Q. I ask you, whether you believe they did take any part in rescuing Mr. O'Connor?
A. Certainly not.
A Last Interview.
Mr. Wallace, and Dunning, Lord Ashburton, both very eminent lawyers, were by accident in the same inn at Bagshot, a short time before Ashburton's decease. The one was on his way to Devonshire, and the other returning to London. Both of them were conscious that their recovery from the disorders under which they laboured was desperate; they expressed a mutual wish to enjoy a last interview with each other. For that purpose they were carried into the same apartment, laid down on two sofas nearly opposite, and remained together for a long time in conversation. They then parted, as men who could not hope to meet again in this world, and died within a few months of each other.
One of the contemporaries of Mr. Wedderburn (afterwards Lord Loughborough) at the Scottish Bar, was Mr. Lockhart, a very celebrated pleader, who bore away all the laurels and all the emoluments of the profession. He appears to have excelled chiefly in the pathetic, and it was jocularly remarked of him, that the amount of his honorarium, or fee, could be easily discovered in his countenance; for if handsome, he appeared deeply affected at the justice of his client's case; but if unexpectedly great, he regularly melted into tears. It was owing to a sarcasm by Mr. Wedderburn on this weeping propensity of Mr. L., that Mr. W. was driven from the Scottish Bar, to reap that harvest of renown which awaited him in England. - [See Anecdotes of Eloquence.]
Rise of Curran.
When Curran was called to the bar, he was without friends, without connexions, without fortune, conscious of talents far above the mob by which he was elbowed, and endued with a sensibility which rendered him painfully alive to the mortifications he was fated to experience. After toiling for a very inadequate recompense at the sessions of Cork, and wearing, as he said himself, his teeth almost to their stumps, he proceeded to the metropolis, taking for his wife and young children, a miserable lodging on Hog-hill. Term after Term, without either profit or professional reputation, he paced the hall of the Four Courts. Yet even thus he was not altogether undistinguished. If his pocket was not heavy, his heart was light: he was young and ardent, buoyed up not less by the consciousness of what he felt within, than by the encouraging comparison with those who were successful around him; and he took his station among the crowd of idlers, whom he amused with his wit, or amazed by his eloquence. Many even who had emerged from that crowd, did not disdain occasionally to glean from his conversation the rich and varied treasures which he did not fail to squander with the most unsparing prodigality; and some there were who observed the brightness of the infant luminary struggling through the obscurity that clouded its commencement. Amongst those who had the discrimination to appreciate, and the heart to feel for him, luckily for Curran, was Mr. Arthur Wolfe, afterwards the unfortunate but respected Lord Kilwarden. The first fee of any consequence which he received, was through his recommendation; and his recital of the incident cannot be without its interest to the young professional aspirant, whom a temporary neglect may have sunk into dejection. 'I then lived,' said he, 'upon Hoghill; my wife and children were the chief furniture of my apartments; and as to my rent, it stood pretty much the same chance of liquidation with the national debt. Mrs. Curran, however, was a barrister's lady, and what was wanted in wealth, she was well determined should be supplied by dignity. The landlady, on the other hand, had no idea of any gradation except that of pounds, shillings, and pence. I walked out one morning to avoid the perpetual altercations on the subject, with my mind, you may imagine, in no very enviable temperament. I fell into the gloom in which from my infancy I had been occasionally subject. I had a family for whom I had no dinner, and a landlady for whom I had no rent. I had gone abroad in despondence: I returned home almost in desperation. When I opened the door of my study, where Lavater alone could have found a library, the first object which presented itself was an immense folio of a brief, 20 golden guineas wrapped up beside it, and the name of Old Bob Lyons, marked upon the back of it. I paid my landlady; bought a good dinner; gave Bob Lyons a share of it; and that dinner was the date of my prosperity!' Such was his own exact account of his professional advancement.
Mr. Bethel, an Irish counsellor, as celebrated for his wit as his practice, was once robbed of a suit of clothes in rather an extraordinary manner. Meeting a brother barrister in the hall of the Four Courts, on the day after, the latter began to condole with him on his misfortune, mingling some expressions of surprise at the singularity of the thing; 'It is extraordinary indeed, my dear friend,' replied Bethel, 'for without vanity, I may say it as the first suit I ever lost.'
At a late assize in Limerick, a boy was brought forward as a witness for the prosecution, in a case of murder. He appeared so young and so ignorant, that the judge (Solicitor-General Bushe) thought it necessary to examine him as to his qualifications for a witness, when the following dialogue took place;
Do you know, my lad, the nature of an oath?
A. An oath! no.
Q. Do you mean to say that you do not how what an oath is?
Q. Do you know anything of the consequence of telling a lie?
Q. No! What religion are you of?
A. A Catholic.
Q. Do you never go to mass?
Q. Do you never see your priest?
Q. Did he never speak to you?
A. O yes.
Q. What did he say to you?
A. I met him on the mountain one day, and he bid me hold his horse, and be - to me.
Judge. Go down: you are not fit to be sworn.
It is only proper to add, that the boy appeared to be more knave than fool, and that his ignorance was in all probability paid for by the defendant.
Mademoiselle Bourgoin, one of the most elegant actresses in Paris, appeared some time ago in a new character, and on a new stage; where, before severer judges than she usually addressed, she not only obtained the applause which she generally commanded, but a solid verdict in her favour. She had ordered a shawl from a shopkeeper, on condition that if it did not suit on trial, it was to be returned. In this shawl she attempted the character of Monimia, but it did not produce the expected effect. She therefore sent it back to the shopkeeper, who refused to receive it, and cited her before the Tribunal of First Instance for the price, alleging that the sale of the article was complete; that the shawl had been hemmed in her possession; and by that act of ownership, she had precluded herself from taking benefit of the original condition. The actress pleaded her own cause: and having proved that the sale was conditional, and that the shopkeeper had hemmed the shawl himself, obtained a verdict against him. The fair pleader left the court in triumph, amid the shouts of a numerous crowd, who accompanied her to her carriage, and extolled her forensic eloquence as much as they had formerly applauded her dramatic acting.
The versatility of talent for which Patrick Henry, the American orator and patriot, was distinguished, was happily illustrated in a trial which took place soon after the war of independence. During the distress of the republican army, consequent on the invasion of Cornwallis and Phillips in 1781, Mr. Venable, an Army Commissary, took two steers for the use of the troops from Mr. Hook, a Scotchman, and a man of wealth, who was suspected of being unfriendly to the American cause. The act had not been strictly legal; and on the establishment of peace, Hook, under the advice of Cowan, a gentleman of some distinction in the law, thought proper to bring an action of trespass against Mr. Venable, in the district court of New London. Mr. Henry appeared for the defendant, and is said to have conducted himself in a manner much to the enjoyment of his hearers, the unfortunate Hook always excepted. After Mr. Henry became animated in the cause, he appeared to have complete control over the passions of his audience: at one time he excited their indignation against Hook; vengeance was visible in every countenance: again, when he chose to relax and ridicule him, the whole audience was in a roar of laughter. He painted the distress of the American army, exposed almost naked to the rigour of a winter's sky; and marking the frozen ground over which they matched, with the blood of their unshod feet. 'Where was the man,' he said, 'who had an American heart in his bosom, who would not have thrown open his fields, his barns, his cellars, the doors of his house, the portals of his breast, to have received with open arms the meanest soldier in that little band of famished patriots? Where is the man? There he stands; but whether the heart of an American beats in his bosom, you, gentlemen, are to judge.' He then carried the jury, by the power of his imagination, to the plains around York, the surrender of which had followed shortly after the act complained of. He depicted the surrender in the most glowing and noble colours of his eloquence: the audience saw before their eyes the humiliation and dejection of the British, as they marched out of their trenches; they saw the triumph which lighted up every patriotic face; they heard the shouts of victory, the cry of Washington and liberty, as it rung and echoed through the American ranks, and was reverberated from the hills and shores of the neighbouring river. 'But hark!' continued Henry, 'what notes of discord are these which disturb the general joy, and silence the acclamations of victory? They are the notes of John Hook, hoarsely bawling through the American camp, 'Beef! beef! beef!'
The court was convulsed with laughter, when Hook, turning to the clerk, said, 'Never mind you, mon; wait till Billy Cowan gets up, and he'll show him the la.' But Mr. Cowan was so completely overwhelmed by the torrent which bore upon his client, that when he rose to reply to Mr. Henry, he was scarcely able to make an intelligible or audible remark. The cause was decided almost by acclamation. The jury retired for form sake, and instantly returned with a verdict for the defendant.
A striking example of the witchery of Henry's eloquence, even on common subjects, is related by the late Major Joseph Scott.
This gentleman had been summoned, at great inconvenience to his private affairs, to attend, as witness, a distant court, in which Mr. Henry practised. The cause which had carried him thither having been disposed of, he was setting out in great haste to return, when the sheriff summoned him to serve on a jury. This cause was represented as a complicated and important one; so important, as to have enlisted in it all the most eminent members of the bar. He was therefore alarmed at the prospect of a long detention, and made an unavailing effort with the court, to get himself discharged from the jury. He was compelled to take his seat. When his patience had been nearly exhausted by the previous speakers, Mr. Henry rose to conclude the cause; and having much matter to answer, the major stated that he considered himself a prisoner for the evening, if not for the night. But, to his surprise, Mr. Henry appeared to have consumed not more than fifteen minutes in the reply: and he would scarcely believe his own watch, or those of the other jurymen, when they informed him that Mr. H. had, in reality, been speaking upwards of two hours! So powerful was the charm by which he would bind the senses of his hearers, and make even the most impatient unconscious of the lapse of time.
Judge R., who presided in the County Court of an American state, was fond of indulging himself occasionally in a joke at the expense of Counsellor B., a practising attorney in the same, court, with whom he was very intimate, and for whom he had a high regard. On a certain occasion, when pleading a cause at the bar, Mr. B. observed that he would conclude his remarks on the following day, unless the court would consent to set late enough for him to finish them that evening. 'Sit, sir,' said the judge, 'not set, hens set.' 'I stand corrected, sir,' said the counsellor, bowing, Not long after, while giving an opinion, the judge remarked, that under such and such circumstances, an action would not lay. 'Lie, may it please your honour,' says the counsellor, 'not lay; hens lay.'
A debate once took place among the members of the court of another American state, as to how long they should set to dispose of the business before them. Three weeks at last were determined on. 'Why, in the name of wonder,' inquired a wag at the bar, 'do they not set four weeks, like other geese!"
Some workmen in Italy being on the point of hurling a stone from the roof of a house, called out to the persons passing to take care. A man going by, and neglecting the caution, was wounded by the fall of a stone; and summoning the workmen into a court of law, demanded damages. Pylaeus, a lawyer of much eminence in the twelfth century, was employed as counsel for the workmen; and finding that there was no possibility of procuring evidence that his clients had called out to the passers by, he advised them how to act accordingly. When the trial came on, and they were interrogated by the judge, and asked why they had hurled down the stone so carelessly? they made no answer. The judge repeated his question, but still they were silent. The judge astonished at this, Pylaeus informed him that his clients were unhappily deaf and dumb. 'Nay,' exclaimed the plaintiff, 'that' never can be, for I heard these very men cry out to everybody to take care.' 'If so,' said Pylaeus, 'I have proved what was necessary; no damages can be awarded, and they must be acquitted.'
A Dutch farmer, who had more honesty than wit, sold a milch cow to a swindler, who gave it a promissory note for the purchase money, him payable on St. Yetemos Day, a cant phrase in Holland, answering to the Latter Lammas-day in England, or as the schoolboys say, the Christmas that never comes. Some time after, a friend of the farmer, who possessed more shrewdness, on seeing this, explained to him how he was overreached, and advised him to bring an action for the debt, and entrust the management of the business to a celebrated lawyer, Mynheer Ploos Van Amstel, who was never known to lose a cause, however intricate. This advice was followed, and the cause was brought into court. M. Van Amstel enforced his client's claim with his usual eloquence, but in vain; the day of payment was indefinite; there was no such saint in the calendar. 'Nay, then,' replied the lawyer, 'justice will surely prompt the court to order the payment on All Saints Day, when St. Yetemos must be included among the rest.' This ingenious defence also failed. The Amsterdam judges were by some fatality on that day equally deaf to Van Amstel's arguments and his humour, and for the first time in his life he lost his cause.
When old Serjeant Maynard waited upon William the Third with an address and congratulation from the gentlemen of the bar, the king complimented the old man on his looking so well at his advanced age, adding, that he had outlived all his brother lawyers. 'Yes, sire,' replied the serjeant; 'and had it not been for your majesty's arrival, I should have outlived the law itself.'
Hon. Henry Erskine.
An attorney in a distant part of Scotland, or as he is called there, a writer, representing to an oppressed and needy tacksman, who had applied to him for advice, the futility of entering into a lawsuit with a wealthy neighbour, having himself no means of defending his Cause, received for answer, 'Ye dinna ken what you say, maister; there's nae a puir man in Scotland need to want a friend, or fear an enemy, while Harry Erskine lives!'
How much honour did that simple sentence convey to the generous and benevolent object of it! He had indeed a claim to the affection avid respect of all who were in the knowledge of his extraordinary talents, and more uncommon virtues. To professional knowledge, and powers of eloquence of the highest order, he possessed a liberality of spirit which scrupled at no sacrifice or exertion, where private right was to be vindicated, or the public welfare promoted.
It is said that Swift, after having written that celebrated satire on mankind, 'Gulliver's Travels,' exclaimed, whilst meditating on the rare virtues of his friend Arbuthnot, 'Oh! were there ten Arbuthnots in the world, I would burn my book.' It is difficult to contemplate such a character as Henry Erskine's without a similar sentiment, without feeling that were there many Erskines, one should learn to think better of mankind.
The character of Mr. Erskine's eloquence bore a strong resemblance to that of his noble brother (Lord Erskine), but being much less diffusive, it was better calculated to leave a forcible impression. 'He was distinguished,' says Mr. Jeffrey, in an animated sketch which he has written of his departed friend, 'not only by the peculiar brilliancy of his wit, and the gracefulness, ease, and vivacity of his eloquence, but by the still rarer power of keeping those seducing qualities in perfect subordination to his judgment. By their assistance, he could not only make the most repulsive subjects agreeable, but the most abstruse easy and intelligible. In his profession, indeed, all his wit was argument, and each of his delightful illustrations a material step in his reasoning. To himself it seemed always as if they were recommended rather for their use than their beauty; and unquestionably they often enabled him to state argument, or a nice distinction, not only in a more striking and pleasing way, but actually with greater precision than could have been attained by the severer forms of reasoning. In this extraordinary talent, as well as the charming facility of his eloquence, and the constant radiance of good humour and gaiety which encircled his manner in debate, he had no rival in his own times, and as yet has had no successor.'
Like most men who have a high reputation in society for that wit and hilarity which render social converse so delightful, Mr. Erskine had for a long time the imputed property of almost all the bon mots and jeux d'espirits circulated in the northern metropolis. An abundant collection of happy thoughts and expressions, the genuine effusions of Henry Erskine, might certainly be formed, without pressing one of doubtful origin into the service; and it becomes therefore the more hazardous to offer anything in the light of specimens of so fertile an excellence. The following we give not as by any means characteristic of a mind which was once the delight and admiration of (perhaps) the most enlightened capital in Europe, but as the only specimens relating to our immediate subject which happen at the present moment to lie in our way.
Soon after being called to the bar, Mr. Erskine went a circuit in the train of the celebrated Lord Kaimes. His lordship, though a man of very enlarged mind, fell sometimes into the sin of being pitifully parsimonious; and on no occasion was he more apt to be so, than when he travelled and feasted at the public expense, and there was a possibility of saving something to himself out of the sum regularly allotted (in Scotland) to judges in their official county excursions. On the rising of the court one day, Lord K. invited Mr. E., with some other young barristers, to dine with him. When the cloth was drawn, the company found that hort alone was to be the order of the day; hint after hint was given to his lordship, that since the public were to pay, something better might be afforded; his lordship passed over every allusion of the kind unnoticed; and when at last the war oblique seemed verging towards a more direct order of hostilities, he turned towards Mr. Erskine, and with a view of shifting the subject, asked him very gravely, 'What could have become of the Dutch?' who had a short time before been drubbed off the Doggerbank by Admiral Parker. No shift could have been more unfortunate for his lordship. Mr. Erskine, with a smile replied, 'I suppose, my lord, they are like us, confined to Port.' Lord K., who with all his niggardliness had a mind sensibly alive to the sallies of genius, immediately ordered a supply of the best claret in the house to be placed on the table.
Some parts of the north-east coast of Scotland, are famous for a peculiar sort of small dried haddocks, called speldings, which are sent in large quantities to the southern counties, and form a prominent article of luxury at all the country fairs. The best idea that an English reader can form of this luxury is, to suppose himself chewing a strap of leather. The late eccentric Hugo Arnot, author of the 'History of Edinburgh,' who was in his person remarkably meagre, happening one day to come into the Parliament House exercising his jaws on one of these delicacies. Mr. Erskine stepping up to him, said, 'I wish you much joy, Mr. Arnot; I never saw you look so like your meat before.'
The same gentleman, Mr. Arnot, was remarkable for the looseness of his opinions with respect to futurity; while Mr. Erskine was as much distinguished on the contrary, for a deep sense of revealed religion, and an attention to every Christian ordinance. One Sunday afternoon Mr. A. happened to be on horseback, when he met Mr. Erskine returning from divine service. 'Where have you been, Harry?' said the historian. 'What has a man of your sense and education to do among a parcel of old women? What did you expect to hear? Where was your text?' 'Our text,' said Mr. Erskine, 'was in the sixth chapter of the Revelations: "And I looked and beheld a pale horse, and his name that sat on him was DEATH, and Hell followed with him.'
Mr. Arnot. who was actually mounted on a pale-coloured horse, felt the sarcasm in all its force; and muttering a hasty execration, rode off.
On the formation of what was called the Coalition Ministry, Mr. Erskine was appointed to succeed Mr. Henry Dundas (afterwards Lord Melville), in the important situation of Lord Advocate for Scotland. On the morning of receiving his appointment, he had an interview with Mr. Dundas in the Outer Parliament House; when observing that the ex-Premier had already resumed the ordinary stuff gown which all practitioners at the Scottish bar, except the Lord Advocate and Solicitor-General for the time being, are in the custom of wearing, gaily said, that 'he must leave off talking, and go and order his silk gown to be made.' 'It is hardly worth while,' said Mr. Dundas, dryly, 'for the time you will want it. You had better borrow mine.' Mr. Erskine, with admirable promptness, replied: 'From the readiness, Mr. Dundas, with which you make the offer, I have no doubt, that yours is a gown made to fit any party; but however short my time in office may be, it shall never be said of Harry Erskine, that he put on the abandoned habits of his predecessor.'
Mr. Dundas, though foiled in wit, had the advantage in prescience. Mr. Erskine held the office for little more than half a year; when the downfall of the Coalition Ministry carried his along with it.
The name of Andrew Crosbie, is well known to all those who are in the slightest degree acquainted with the modern forensic eloquence of Scotland. The imprudences that tarnished the splendour of his great talents, the vicissitudes that shed a malignant gloom over the evening of his days, it is painful to recollect and tedious to record. His latter indigence was extreme. While in this situation, Mr. Dundas, (afterwards Lord Melville) who had been Crosbie's rival at the bar, and his enemy in politics, gave him to understand, that a vacant seat in the Court of Session was ready for his acceptance.
'No,' said Crosbie, 'judges ought to be blameless, superior to corruption, as well in situation as in principle. I never will sacrifice the reputation of my country's tribunals to my necessities.'
The praise of good men will be divided between the generosity of the offer, and the magnanimity of the refusal.
Pleading v. Auctioneering.
On the 20th of July, 1789, an action was tried before the Court of King's Bench, brought by Mr. Spurrier, auctioneer, against a Mr. Beard, to recover a sum of about £230, being a charge of one per cent. commission for selling an estate.
Mr. Christie, the auctioneer of 'hanging wood' memory, was called as a witness for the plaintiff. He said, 'he had been an auctioneer upwards of twenty-five years. The business of an auctioneer, consisted in something more than in making bows, and in knocking down the hammer. It required a knowledge, grounded on experience; a proper acquaintance with all the circumstances belonging to the estate, and the mode of preparing proper advertisements to enlarge the ideas of the public.'
Mr. Erskine, who was counsel for the defendant, addressed the jury in a speech replete with wit and ingenuity. He said he found the profession of an auctioneer, was infinitely preferable, in point of pleasure and profit, to that of a barrister, for the difference between the charge of the present plaintiff and his, was as follows.
Auctioneer's charge. To a pleasant journey into Sussex, where I was hospitably entertained, (out two days) £230.
Mr. Erskine's charge. To pleading from nine in the morning till four in the afternoon, by which I was melted down by fatigue, to the size of a silver penny, £10 10s.
Mr. Erskine said. if auctioneers were paid the demand in question on every adventure, they would be the richest subjects in the nation. By enlarging the ideas of the public, which he found was the business of the gentlemen of the hammer, he supposed was meant, representing an estate to be worth £20,000, when it would only sell for £10,000.
The plaintiff was non-suited.
Freedom of Speech.
At the Lancaster assizes, September, 1817, an action was tried at the instance of Mr. Peter Hodgson, an attorney, against Mr. Scarlett, the counsel, for words spoken at the preceding Spring assizes for that county.
Mr. Raine, who opened the case for the prosecution, observed, that Mr. Hodgson had long been an eminent attorney in White-hog in the county of Cumberland, and applied now to a jury of his countrymen, in consequence of the wound given to his professional reputation, by Mr. Scarlett's language at the bar. 'The freedom of speech at the bar,' said Mr. R., 'is of the utmost importance, not only to the dignity of the bar, but to the interests of the public, whose high and delicate interests are entrusted to it. Of this freedom none can be a more strenuous and tenacious friend than I am. In importance and utility, I hold it to be of the same rank as freedom of discussion in the Commons House of Parliament. I have thus made the highest admission in favour of Mr. Scarlett; but bounds must be set to this freedom of speech; otherwise, from the greatest blessing, it becomes the bitterest curse that can infest and annoy society. These bounds were overleaped in this case. Mr. Scarlett, while addressing the jury for the defendant in an action in this court, went out of his way to traduce and vilify the character of the attorney for the plaintiff, and to wound his reputation. The words charged, and which we shall prove to have been spoken, are these.
"Some actions are founded in folly, some in knavery."'
Mr. B. Wood. That is surely true.
Mr. Raine. Yes, my lord, these are certainly truisms, but they are thus connected.
'Some in both; some actions in the folly and knavery of the attornies, and some in the folly and knavery of the parties.' My friend is not apt to deal in metaphysical abstraction; you know very well that he does not use words without application. We shall not attempt to prove his whole speech. You know with how little credit a long story is received from witnesses; but we shall prove the words here entered upon the record: 'Mr. Peter Hodgson was the attorney for the plaintiff; he drew the promissory note; he fraudulently got Beaumont to pay £150 to the plaintiff. This was the most profligate thing I ever knew done by a professional man.' Then follows the particular expression which we have charged in the second count on the record: it concludes the remarks already stated to you. The sting is always in the tail. 'Mr. Hodgson is a fraudulent and wicked attorney.' Now, gentlemen, I ask you, if you were wrong in any action brought into this court, how would you like such abuse of the freedom of speech, by a gentleman holding a high reputation at the bar? A humble individual, if he had not the spirit and the honour to vindicate his fame from such an attack, would be ruined. My client has the spirit and honour to repel it. He only wants the vindication of his injured character. You will take care, that he sustain no loss by the vindication. I do not ask for angry and vindictive damages. I ask no more than justice to my client; less than justice you will not give.
Mr. Baron Wood. Can you mention any action of the same kind, or upon what principle it can be maintained?
Mr. Raine. I do not know that any action of the kind has ever been brought.
Mr. Baron Wood. It appears to me that an action cannot be maintained for words spoken in judicial proceedings. If a counsel misbehaves, or goes too far, the judge who presides corrects his misconduct; but if an action is once maintained, there is no end of it. Actions of this kind would perpetually occupy the court. If a counsel were to pause in his pleading, and to say such a man is a great rogue, that would be actionable.
Mr. Raine. That is precisely our case. We say the libellous expressions were voluntarily and gratuitously used.
Mr. Baron Wood. No; whether a note was fraudulent or not, as I understand the record, for I know nothing of the nature of the first action.
Mr. Richardson. The privileges of Parliament have been alluded to. I apprehend that the question has not any resemblance to them.
Baron Wood. Why not?
Mr. Richardson. Well be it that the utmost freedom of speech is allowed; but to go out of the way to attack character!
Baron Wood. No, it was not out of the way; the words might be too severe, but they were connected with the note. It would be a dangerous precedent to receive an action on such a ground.
Mr. Topping, for the defendant. If such an action can be maintained, very different will be the situation of every client in a court of justice, when deprived of the free and vigorous exercise of his counsel, at full liberty, to apply his talents, learning, and industry, to the cause in which he is engaged. The words in the record are only the opinion, the inference, the comment, which my honourable and learned friend felt at the time to be merited. The facts of the case warranted the comment. The words were severe, because my honourable and learned friend felt severity to be warranted. They were the comments which the learning and ability of my friend suggested on the facts proved. 'Some actions are founded in folly.' That action was so, for it ended in a nonsuit. The whole passage was not respecting the character of Mr. Hodgson in general, but in this case. If the counsel are not allowed to comment on the facts proved, there is an end of the British Bar's utility; its energies are paralyzed for ever: without those fair and honourable exertions which are thus attempted to be suppressed, it will be neither creditable nor useful. The expressions used by my friend were called for and merited in my opinion. But it was necessary not only to prove that they were false, but malicious. Good God! will it be said that we feel any malice against a party, against whom we exert ourselves at this bar? Will your lordship be the first judge to fetter the bar; and, if I may use a coarse and vulgar expression, to oblige every counsel to address a jury with a halter about his neck? The danger is palpable and plain. Your lordship will not allow, in 1817, a principle to be established hitherto unknown to English law.
Mr. Raine (in reply). The words are false. The comment was unmerited. That they were malicious, I may say, appears on the face of the expressions. I have been twitted twice; one sneer would be enough for not citing a case. I distinctly admitted that I knew no case. The question is, whether there are no bounds, and counsel may go any length? If there are, to call my client fraudulent and wicked, was going beyond the bounds and limits which must be fixed.
Mr. Baron Wood was not for giving sanction to this action, brought for the first time, because it would be most mischievous, not merely to the bar, but to the public. The words might overstep the bounds of propriety, and be too severe, but they were not to be corrected by such an action. If they had been said elsewhere, if they had been published, they could have been punished. In the privileges of parliament it was the same. The principle was this: whatever is said in judicial or legislative proceedings, is not actionable. It had been said, some limits must be set. His objection to this action was the difficulty of fixing limits. During one assize they might have nothing to do but try actions brought for words used by counsel at the previous assize. The htaintijlr was non,suited.
A motion was afterwards made in the Court of King's Bench, for setting aside the nonsuit; when, after a long argument, the judges thus delivered their opinions.
Lord Ellenborough said, the law privileges many communications which otherwise might be considered calumnious, and the subject of actions: in those, for instance regarding the characters of servants, it is necessary, for the convenience of mankind, that there should be a free disclosure; and if it be made bona fide, and without express malice, without a design to state what is untrue and unprovoked, the law protects it from being the subject of an action. So in the case of counsel, who are appointed by the parties as better able to conduct their causes, the client consigns his interests to a counsel, who only speaks from information; and he is privileged, when commenting upon the evidence or instruments produced in the course of the trial. I should say, that in the present case the language is strongly charged; for it accuses Mr. Hodgson of a fraud between man and man, and with wickedness in foro divino. This was perhaps not displaying that forbearance which it might be prudent to adopt; but yet I cannot say the accusation did not arise out of the subject matter of the case. If the attorney knowingly placed the parties in a situation where they must undoubtedly be sufferers without any benefit, it does seem to give a colour to the charge of being fraudulent and wicked: I cannot say that there is no reasonable or probable cause for a counsel so to state, in the exercise of his duty of commenting. It appears to me that the words spoken were uttered in the cause, and relevant to the cause; and consequently that the action is not maintainable.
Mr. Justice Bayley thought that the expressions were harsh, but that they came within the privilege.
Mr. Justice Abbot concurred: words used in the course of a judicial enquiry, relevant and pertinent to the matter in issue, are not actionable, unless it appear that the counsel availed himself of his situation to gratify personal malice previously entertained against the person slandered. Justice could not be properly administered, if on every occasion, counsel were to be questioned for the strength of an expression employed in the fair conduct of a cause. Here the words were relevant and pertinent; and if a new trial were granted, the result would, and ought to be, the same as it had been.
Mr. Justice Holroyd observed, that the slanderous words only expressed the opinion of an individual to the jury, who were subsequently to decide upon the merits, and whether the counsel had spoken truly or untruly. A less latitude ought to be allowed to counsel than to parties, on account of their superior knowledge and cooler temperament; but they were not liable to actions, unless it clearly appeared that the slander had no relation to the cause. He referred to four cases in Hawkins, Saunders, and Coke, in order to show that parties were not liable for words in the course of a judicial proceeding, unless express malice were established. He thought the present action not maintainable, for the reasons stated by the rest of the court.- The Rule for setting aside the nonsuit was discharged.
Lenity to Female Culprits.
The late Counsellor, E---, Chairman of the Quarter Sessions for Dublin, was so remarkable for his lenity to female culprits, that a woman was seldom convicted when he presided. On one occasion when this humane barrister was in the chair, a prim-looking woman was put to the bar of the Commission Court, at which presided the equally humane, though perhaps not so, gallant, Baron S---. She was indicted for uttering forged Bank Notes. According to usual form of law, the Clerk of the Crown asked the prisoner if she was ready to take her trail? With becoming disdain, she answered, 'No!' She was told by, the Clerk, she must give her reasons why. As if scorning to hold conversation with the fellow, she thus addressed his lordship. 'My Lord, I wont be tried here at all. Ill be tried by my Lord E---.' The simplicity of the woman, coupled with the well-known character of E---, caused a roar of laughter in the Court, which even the Bench could not resist. Baron, S---, with his usual mildness was about to explain the impossibility of her being tried by the popular judge, and said, 'He can't try you-' when the woman stopped him short, and with an inimitable sneer, exclaimed, 'Can't try me! I beg your pardon, my lord; he tried me twice before.' She was tried, however; and, for the third, time, acquitted!
Being in the Stocks.
Lord Camden once presided at a trial, in which a charge was brought against a magistrait for false imprisonment, and for setting the plaintiff in the stocks. The counsel for the magistrate, in his reply, said, the charges were trifling, particularly that of setting in the stocks, which everybody knew was no punishment at all. The Chief justice rose, leaning over the bench, said in a half whisper, 'Brother, were you ever in the stocks?' 'In the stocks, my lord! no, never.' 'Then I have,' said his lordship, 'and I assure you brother, it is no such trifle as you represent.' His lordship's knowledge of the stocks, arose from the following circumstance. When he was on a visit to Lord Dacre, his brother-in-law, at Alveley in Essex, he walked out one day with a gentleman remarkable for his absence of mind. When they had reached a hill, at some distance from the house, his lordship sat down on the parish stocks, which stood by the road side; and afters some time asked his companion to open them, as he wished to know what the punishment was; the absent gentleman took a book from his pocket, and sauntered about, until he forgot both the judge and his situation, and returned to Lord Dacre's house. When the judge was tired of the experiment he had so rashly made, he found himself unable to open the stocks; and asked a countryman who passed by to assist him. 'No, no, old gentleman,' replied Hodge, 'you was not set there for nothing.' Lord C- protested his innocence, but in vain; the countryman walked on, and left his lordship to meditate for some time longer on his foolish situation, until some of Lord D's. servants chancing to pass that way, released him.
A Good Apology.
In the Court of Session in Scotland, the judges who do not attend, or give a proper excuse for their absence, are, by law, liable to a fine. This law, however is never enforced; but it is common on the first day of the Session, for the absentee to send an excuse to the Lord President. Lord Stonefield having sent such an excuse, on the President mentioning it, the late Lord justice, Clerk Braxfield said, in his broad dialect, 'What excuse can a stout fellow like him hae?' 'My lord,' said the President, 'he has lost his wife.' The justice, who was fitted with a Xantippe, replied, 'Has he? that is a gude excuse indeed; I wish we had a' the same'
Curran's notions of industry were somewhat ludicrous. An hour to him, was a day to another man; and in his natural capabilities his idleness found a powerful auxiliary. A single glance made him master of the subject; and though imagination could not supply him facts, still it very often became a successful substitute for authorities. He once said, in serious refutation of what he called the professional calumnies on this subject, that he was quite as laborious as was necessary for any Nisi Prius advocate to be: 'For,' said he, with the utmost simplicity, 'I always perused my briefs carefully when I was concerned for the plaintiff; and it was not necessary to do it for the defendant, because, you know, I could pick up the facts from the opposite counsel's statement.' This was what Curran considered being laborious; and, to say the truth, it was at best but an industrious idleness.
Judges and Witnesses.
At a Nisi Prius Court at York, in a cause of damages for an assault, a countryman, a friend of the plaintiff, gave a most clear and circumstantial evidence to all the main facts. Just before he was quitting the box, the Learned Judge, Baron Richards, asked him how old he thought the person assaulted might be? The witness pertinaciously avoided giving any information on this head. 'Is he twenty, thirty, or forty?' said the judge. The witness still persisted that he could not tell.
At length the judge said, 'Now in all probability you have never before seen me, nor I you, yet I think I could form a pretty correct guess at your age.' 'Very likely,' replied the honest countryman, 'but you are a better Judge than I am.' This reply produced a general laugh, while the witness stood amazed at being the unconscious cause of all the mirth. At length the Judge resumed; and having no further questions to put, said, 'Good morning, my friend.' The witness withdrew from the box; but to the amazement of the Court, thinking he had not quite properly behaved, quickly resumed his place, and significantly said, 'Good morning, sir!'
A litigious fellow of an attorney brought an action against a farmer for having called him a rascally lawer. An old husbandman being a witness, was asked if he heard the man call him a lawyer? 'I did,'was the reply. 'Pray,' says the Judge, 'what is your opinion of the import of the word?' ' There can be no doubt of that,' replied the fellow. 'Why, good man,' said the judge, 'there is no dishonour in the name, is there?' 'I know nothing about that,' answered he, 'but this I do know, if any man called me a lawer, I'd knock him down.' 'Why, sir,' said the judge, pointing to one of the counsel, 'that gentleman is a lawyer, and that, and that, and I too am a lawyer.' 'No, no,' replied the fellow; 'no, my lord: you are a Judge, I know; but you are not a lawer, I'm sure.'
Counsel and Witnesses.
A gentleman who was severely cross-examined by Mr. Dunning, was repeatedly asked if he did not lodge in the verge of the court; at length he answered. that he did. 'And pray, sir,' said the counsel, 'for what reason did you take up your residence in that place?' 'To avoid the rascally impertinence of dunning,' answered the witness.
When Serjeant Cockle was on the Northern Circuit, he once told a witness that he was very saucy, and followed up the remark by asking, 'Pray what sauce do you like best?' 'Any sauce, but Cockle sauce,' was the reply.
At an Old Bailey Sessions in 1788, a learned counsel thus examined a witness: 'What are you?' 'A Jew.' 'Well, what is your Christian name?' ' I never vas christened, my lord, but my name is Moses Levi.'
A witness at the Assizes at Kilkenny, being asked if when he was examined before a magistrate, he did not give a very different account of the transaction from what he now delivered, he admitted the fact, but said, that he was humbugged in the business. 'Humbugged, fellow!' exclaimed the opposite counsel, who was not very famous for his talents, 'I don't know what you mean.' 'Don't you, sir?' said the man; 'why then, upon my conscience, I must try to explain it in your own way, by putting a case. Suppose now I should tell his lordship and the gentlemen of the jury, that you were an able counsel, and they were to believe me, every mother's son of them would be humbugged, my dear, that's all.'
Mr. Curran cross-examining a horse jockey's servant, asked his master's age. 'I never put my hand in his mouth to try,' answered the witness. The laugh was against the counsel, until he retorted. 'You did perfectly right, friend, for your master, is said to be a great bite.'
On another occasion., Mr. Curran was examining Lundy Foot, the celebrated tobacconist; he put a question, at which Lundy hesitated a good deal. 'Lundy,' said Curran, 'that's a poser, a deuce of a pinch, Lundy.'
At a trial in Westminster Hall, an Irishman, who was a witness in a cause respecting some occurrence at a table where he dined frequently, being asked on his cross-examination, how he could possibly recollect the circumstances of that day in particular, when he had dined constantly at the same table for months; 'Recollect it,' replied Pat, 'how could I forget it? the dinner was a roast shoulder of mutton, in July, without potatoes.'
Downfall of Curran.
Mr. Curran distinguished himself not more as a barrister, than as a Member of Parliament; and in the latter character, it was his misfortune to provoke the enmity of a man whose thirst of revenge was only to be satiated by the utter ruin of his adversary. On the discussion of a Bill of a penal nature, Mr. Curran inveighed in warm terms against the Attorney General, Mr. Fitzgibbon, for sleeping on the bench, when statutes of the most cruel kind were enacting; and he ironically lamented that the slumber of guilt, should so nearly resemble the repose of innocence! A message from Mr. Fitzgibbon, was the consequence of this sally; and the parties having met, were left to fire when they chose. 'I never,' said Mr. Curran, relating the circumstances of the duel, 'I never saw anyone whose determination seemed more malignant than Fitzgibbon's; after I had fired, he took aim at me for at least half a minute; and on its proving ineffectual, I could not help exclaiming to him, 'It was not your fault, Mr. Attorney; you were deliberate enough.' The Attorney General declared his honour satisfied; and here, at least for the present, the dispute appeared to terminate.
Not here, however, terminated Fitzgibbon's animosity. Soon after, he became Lord and a Peer of Ireland; and in the former capacity, found an opportunity, by means of his judicial authority, ungenerously to crush the rising powers of his late antagonist. Mr. Curran, who was at this time a leader, and one of the senior practitioners at the Chancery bar, soon felt all the force of his rival's vengeance. The Chancellor is said to have yielded a reluctant attention to every motion he made; he frequently stopped him in the midst of a speech; questioned his knowledge of law; recommended to him more attention to facts; in short, he succeeded :hot only in crippling all his professional efforts, but actually to leave him without a client. Mr. Curran. indeed, appeared as usual in the three other courts; but he had been already stripped of his most profitable practice; and as his expenses nearly kept pace with his gains, he was almost left a beggar; for all hopes of the wealth and honours of the long robe were now denied him. The memory of this persecution embittered the last moments of Curran's existence; and he could never even allude to it without evincing a just and excusable indignation. In a letter which he addressed to a friend, twenty years after, he says, 'I made no compromise with power; I had the merit of provoking and despising the personal malice of every man in Ireland who was the known enemy of the country. Without the walls of the court of justice, my character was pursued with the most persevering slander; and within those walls. though I was too strong to be beaten down by any judicial malignity, it was not so with my clients; and my consequent losses in professional income have never been estimated at less, as you must have often heard, than £30,000.'
The incidents attendant upon this disagreement, were at times ludicrous in the extreme. One day, when it was known that Curran was to make an elaborate argument in Chancery, Lord Clare (the title of Fitzgibbon) brought a large Newfoundland dog upon the bench with during the progress of the argument, his ear much more to the dog than to the barrister. At last the Chancellor seemed to lose all regard to decency; he turned himself quite aside, in the most material part of the case and began in full court to fondle the animal. Curran stopped short: 'Go on, go on, Mr. Curran,' said Lord Clare. 'Oh!' replied Mr. Curran, 'I beg a thousand pardons, lord; I really took it for granted that your lordship was employed in consultation.'
A Scottish advocate (we believe the present Lord H---), who had drank rather too freely, was called on unexpectedly to plead in a Cause in which he had been retained. The lawyer mistook the party for whom he was engaged, and, to the great amazement of the agent who had feed him, and the absolute horror of the poor client who was in court, he delivered a long and fervent speech, directly opposite to the interests he had been called upon to defend. Such was his zeal, that no whispered remonstrance, no justling of the elbow, could stop him, in medio gurgile dicendi. But just as he was about to sit down, the trembling solicitor in a brief note informed him, that he had been pleading for the wrong party. This intimation, which would have disconcerted most men, had a very different effect on the advocate, who, with an air of infinite composure, resumed his oration. 'Such, my lords,' said he, 'is the statement which you will probably hear from my learned brother on the opposite side in this cause. I shall now therefore beg leave, in a few words, to show your lordship how utterly untenable are the principles, and how distorted are the facts, upon which this very specious statement has proceeded.' The learned gentleman then went over the whole ground, and did not take his seat until he had completely and energetically refuted the whole of his former pleading.
A similar circumstance happened in the Rolls Court, on the 11th of July, 1788.
Mr. A., an eminent counsel, received a brief in court a short time before the case was called on, for the purpose of opposing the prayer of a petition. Mr. A. conceiving himself to be the petitioner, spoke very ably in support of the petition, and was followed by a counsel on the same side. The Master of the Rolls then enquired who opposed the petition? Mr. A. having by this time discovered his mistake, rose in much confusion., and said, that he felt really much ashamed for a blunder into which he had fallen, but that instead of supporting the petition, it was his business to have opposed it. The Master of the Rolls, with great good humour, desired him to proceed now on the other side, observing, he knew no counsel who could answer his arguments as well as himself.
Sir Vicary Gibbs.
In the trial of Hardy for high treason, Mr. (afterwards Sir Vicary) Gibbs, in rising to address the jury on behalf of the prisoner, fainted away. After he had somewhat recovered himself, he turned about suddenly, and bursting into tears, assured the jury that it was his anxiety for the miserable man at the bar, his own consciousness of his inability to do him that justice in his defence that he wished, that had overpowered him.
The Tables Turned.
A very respectable gentleman once appeared at Westminster Hall, to justify bail. The counsel determining to be very witty upon him, opened upon him in the following extraordinary manner:
'Pray' sir is there not a certain lady who lives with you ?'
'Yes, sir, there is.'
'Oh. there is: and I suppose, if the truth were known, that lady has been very expensive to you?'
'Yes, sir, that lady has been very expensive to me.'
'And I suppose now you have had children by that lady, and they too have cost you a good deal of money?'
'Yes, they have.'
'And yet you come here to justify bail to a large amount!'
The counsel thought he had now done enough to prevent the confidence of the court being placed in the gentleman; when the latter raising his voice, indignantly said, 'It is true, Mr. Counsellor, that there is a lady with me, but that lady is my wife; we have been married these fifteen years, and have children; and whoever has a wife and children, will find them expensive.`
The counsellor looked a little foolish at this unexpected retort, which the gentleman followed up by asking him (with permission of the bench) 'whether in his brief, or otherwise, he had instructions to insult a respectable citizen, and a man of honour, by impertinent questions?' To this, as may be expected, no answer was made.
Challenging a Jury.
An Irish colonel of dragoons, previous to a trial in which he was the defendant, was informed by his counsel that if there were any of the jury to whom he had any personal objections, he might legally challenge them. 'Faith, and so I will.' replied the son of Mars; 'if they do not bring me off handsomely, I will challenge every man of them.'
The following anecdotes belong more properly perhaps to the bench than the bar; but the learned judge to whom they relate would say that ought not to be a bar to their insertion. Lord Norbury, whose love of punning is proverbial, and not always very consistent with the dignity of the bench, gave the following characteristic specimen of this foible in a civil action respecting the validity of an alleged marriage between a Mr. Watson and a Margaret Lee. His lordship began by congratulating Mr. Clarke (who closed the case for the plaintiff) on the great powers of his Stentorian lungs, which he had used so effectually, as to have made himself heard, not only by every person in the court, but by the very passengers in the mail-coaches that went by the window: he was highly pleased to see Mr. Clarke exert himself so ably for his client; he wished at all times to hear free and independent advocates, and did not think that now and then a dash at the judge and jury was at all amiss. But really Mr. Clarke had raised his voice to such a Hunting pitch, he had almost imagined himself in Spafields, or Smithfield at least. With respect to Mr. Meara's deposition about selling tubs, he did not think his 'Tale of a Tub' could have much weight. He begged to call the attention of the jury to the evidence of Mrs. Salter, and notwithstanding that she had been well salted in her cross-examination, he would request them to contrast it with that of Margaret Lee, and 'Look on this picture, and on that.' The jury would recollect the evidence of Gunman, who proved that both before and after the marriage was alleged to have taken place, Margaret Lee used to dine with Mr. Watson's servants, called him master, and, in short, instead of his having respected her as Mrs. Watson, he treated her as one of the very 'Lees' of society. His lordship summed up the remainder of the evidence, and concluded by congratulating the court and the jury that this trial was so nearly closed, for, from its great length, he feared it would have become a 'Watson's Sheet Almanack,' and detain them the whole year.
Giving judgment in another case in the Court of Common Pleas in Dublin, his lordship observed that it was quite insufficient for the demandant in a writ of right to say 'he claimed by descent.' 'That,' continued his lordship,' would be a shrewd answer for a sweep who had got into your house by coming down the chimney: "Pray, sir. how did you get into my house?" "I got in by descent." Facilis descensus averni; and this would be an easy and a sweeping way of getting in.'
During a trial at the Carlow Assizes in 1819, on an indictment against Dennis Nowlan and Edward Furlong for stealing thirty pounds of tobacco, the following confessions were extracted from James Ferris, an accomplice in the robbery, who was admitted king's evidence. He was cross-examined by Mr. Green:
Q. Witness, how many gaols have you been in?
A. Only two, and not more than once in each.
Q. How many robberies have you been at altogether?
A. Together! (laughing) why, sure I could not be at more than one at a time.
Q. You certainly have knocked me down by that answer. (Loud laughing in court.) Come, now, tell us how many you have been at?
A. I never put them down; for I never thought it would come to my turn to give an account of them.
Q. By virtue of your oath, sir, will you swear that you
have not been at fifteen?
A. I would not (witness laughing).
Q. Would you swear that you have not been at twenty?
A. I would not (still laughing).
Q. Do you recollect robbing the Widow Byrne, in the county of Wicklow?
A. The Widow Byrne, who is she? May be it is big Nell you mean. Oh! I only took a trifle of whisky from her, that's all.
Q. Was it day or night?
A. (laughing) Why it was night, to be sure.
Q. Did you not rob the poor woman of every article in the house; even her bedclothes, and the clothes off her back?
A. I took clothes, but they were not on her back.
Q. Do you recollect stealing two flitches of bacon from Doran, the Wexford carman?
A. Faith I do, and a pig's head beside.
(Loud laughing in court.)
Q. Do you recollect robbing John Keogh, in the county of Wicklow, and taking every article in his house?
A. You're wrong there; I did not take everything; I only took his money and a few other things! (Witness and the auditory laughing immoderately.)
Q. Why, you're a mighty good-humoured fellow!
A. There is not a better-humoured fellow in the county - there may be honester!
The prisoners were acquitted, to the evident satisfaction of a very crowded court.
James Ferris, the approver, was then indicted for the robbery. He pleaded guilty; and while the Clerk of the Crown put the usual question to the prisoner, 'What have you to say why sentence of death and execution shall not be pronounced against you?' the fellow pleaded the benefit of the statute, and laughed in his face.
Garrick at Law.
The following jeu d'esprit, from the pen of David Garrick, was sent by him to Mr. Counsellor Hotchkin, at a time when Garrick was involved in a law suit, respecting the possession of a house at Hampton:-
David Garrick to Mr. Hotchkin, his counsellor and friend.
On your care must depend the success of my suit,
The possession I mean of the house in dispute;
Remember, my friend, an attorney's my foe,
And the worst of his tribe, though the best are so-so;
In law, as in life, I well know 'tis a rule,
That the knave should be ever too hard for the fool;
To this rule one exception your client implores,
That the fool may for once kick the knave out of doors.
Swift and Bettesworth.
Dean Swift having taken a strong dislike to Serjeant Bettesworth, revenged himself by the following lines in one of his poems:-
So at the bar the booby Bettesworth,
Tho' half-a-crown out-pays his sweat's worth,
Who knows in law, nor text, nor margent,
Calls Singleton his brother Serjeant.
The poem was sent to Bettesworth when he was in company with some of his friends. He read it aloud till he had finished the lines relating to himself. He then flung it down with great violence, trembled, and turned pale. After some pause, his rage for a while depriving him of utterance, he took out his penknife, and swore he would cut off the dean's ears with it. Soon after he went to seek the dean at his house, and not finding him at home followed him to a friend's, where he had an interview with him. Upon entering the room, Swift desired to know his commands. 'Sir,' says he, 'I am Serjeant Bettes-worth,' in his usual pompous way of pronouncing his name in three distinct syllables. 'Of what regiment, pray?' says Swift. 'O, Mr. Dean, we know your powers of raillery; you know me well enough, that I am one of his majesty's serjeants at law.' 'What then, sir?' 'Why then, sir, I am come to demand of you whether you are the author of this poem (producing it) and the villainous lines on me?' at the same time reading them aloud with great vehemence of emphasis and much gesticulation. 'Sir,' said Swift, 'it was a piece of advice given me in my early days by Lord Somers, never to own or disown any writing laid to my charge, because if I did this in some cases, whatever I did not disown afterwards would infallibly be imputed to me as mine. Now, sir, I take this to have been a very wise maxim, and as such have followed it ever since; and I believe it will hardly be in the power of all your rhetoric, as great a master as you are of it, to make me swerve from that rule.' Bettesworth replied, 'Well since you will give me no satisfaction in this affair, let me tell you that your gown is alone your protection,' and then left the room.
The serjeant continuing to utter violent threats against the dean, there was an association formed and signed by all the principal inhabitants in the neighbourhood, to stand by and support their general benefactor, against anyone who should attempt to offer the least injury to his person or fortune. Besides, the public indignation became so strong against the serjeant, that although he had made a considerable figure at the bar, he now lost his business, and was seldom employed in any suit afterwards.
The Gunpowder Plot.
On the trial of Guy Fawkes and his associates for the Gunpowder Plot, Sir Edward Phillips, his Majesty's Serjeant-at-Law, opened the pleadings in the following singular manner: 'The matter that is now to be offered to you, my Lords Commissioners, and to the trial of you, the Knights and Gentlemen of the jury, is matter of treason; but of such horror and monstrous nature, that before now,
The tongue of man never delivered,
The ear of man never heard,
The heart of man never conceived,
Nor the malice of hellish or earthly devil ever practised.
For if it be abominable to murder the least;
If to touch God's anointed be to oppose themselves against God;
'If (by blood) to subvert Princes, States, and Kingdoms, be hateful to God and man, as all true Christians must acknowledge; then how much more than too monstrous shall all Christian hearts judge the horror of this treason; to murder and subvert
Such a king,
Such a queen,
Such a prince,
Such a progeny,
Such a State,
Such a Government,
So complete and absolute,
That God approves,
The world admires,
All true English hearts honour and reverence,
The Pope and his disciples only envy and malign.`
The proceeding wherein is properly divided into three general heads:
First, matter of declaration.
Second, matter of aggravation.
Thirdly, matter of probation.
Myself am limited to deal only with the matter of declaration, and that is contained within the compass of the Indictment only.
For the other two, I am to leave to him to whose place it belongeth.'
This was to Sir Edward Coke, then Attorney-General, who was as quaint, and more verbose, than the learned serjeant.
When Henry Garnet, the Jesuit, was tried for being concerned in the same plot, Sir Edward Coke took an extensive review of the various conspiracies against Queen Elizabeth, as well as his Majesty, James the First, whose descent he described with great minuteness. After he had traced him down to the union of the Houses of York and Lancaster, he said, 'But a more famous union is, by the goodness of the Almighty, perfected in his majesty's person of divers lions, two famous ancient and renowned kingdoms, not only without blood or any opposition, but with such an universal acclamation and applause of all sorts and degrees (as it were with one voice) as was never before seen or read of. And therefore, most excellent king, for to him I will now speak:
'Cum triplici fulvum conjunge bone leonem,
Ut varias Atavus Junxerat ante Rosas:
Majus opus varios sine pugna unire leones,
Sanguine quam varias consociasse Rosas.'
'These four noble and magnanimous lions, so firmly and individually united, are able without any difficulty or great labour, to subdue and overthrow all the letters and bulls (and their calves also) that have been or can be sent into England.
The rise of Noy, the Attorney-General in the reign of Charles I., is not perhaps generally known to have originated in a case which is very well known, that of the three graziers. At a country fair, the three graziers had left their money with their hostess, while they went to transact their business. A short time after, one of them returned, and under pretence that they had occasion for the whole money, received it from the hostess, and made his escape with it. The other two sued the woman for delivering that which she had received from the three, before the three came and demanded it. The cause was tried, and a verdict found against the defendant.
Mr. Noy, who was then making his first appearance at the bar, requested to be feed by the woman, saying that he thought he could still bring her off. He then moved an arrest of judgment, stated that he was retained by the defendant, and that the case was this: The defendant had received the money from the three together, and was certainly not to deliver it until the same three demanded it. She asks for no other condition; let the three men come, and it shall be paid. This motion altered the whole course of proceeding; and, according to Lloyd, in his 'State Worthies', first brought Mr. Noy into notice.
Noy was unquestionably a man of great abilities, but flattered so much upon that account, that Clarendon says, he thought 'he could not give a clear testimony, that his knowledge in the law was greater than all other men's, than by making that law which all men believed not to be so. So he moulded, framed, and pursued the odious and crying project of soap, and with his own hand drew and prepared the writ for ship money; both which will be the lasting monuments of his fame.'
The Law and the Fact.
On the trial of the celebrated Colonel Lilburne for high treason, during the Protectorship, he addressed the following demand to the court: 'I desire to know whether, after I have pleaded to matter of fact, you will permit me to speak to the jury, on whose integrity my life depends; and who are judges of law as well as fact, and you only the pronouncers of their will; you, who call yourselves judges of the law, are only Norman intruders, cyphers to pronounce their sentence, who are judges of law as well as fact.'
Judge Jermyn. 'Was ever such blasphemous heresy, to call the judges cyphers? The judges have been judges of law, from the first settlement of the law of England, and the jury only judges of fact.'
Lilburne. 'If you will permit me to read, I will disprove this from your own law: here is the first part of 'Coke's Institutes' (holding the book in his hand), which all lawyers allow to be good law; and here Coke says, that a special verdict, or at large, may be given upon an issue; but if they will take upon them the knowledge of the law, they may give their verdict general.'
The prisoner then objected, 'that some of the books laid in the indictment were published before the act on which he was indicted took place; and urged that where there was no law there could be no transgression. He observed further, that it was the intention, and not the act, which made a thing criminal; and he had always consulted the prosperity of the nation, though it was true he had been proclaimed a traitor in all the great towns in and imprisoned for crimes with had never been since charged; and now, for complaining of hard usage, acts were made on purpose to bring him within a charge of high treason.'
The court observed that this was nothing to the purpose; they should not suffer him to go on at this rate.
Lilburne. 'Well, if you will not let me proceed, my blood be upon your heads: I desire the jury will take notice of your unjust and cruel usage.' He then resigned himself to the care and consciences of his fellow Citizens, the honest jury; who (he again observed) were judges of the law, as well as fact; and prayed God to direct them to act according to justice.
'Whereupon,' says the old record. 'the audience cried "Amen!" and gave a great hum; and the judges, apprehensive of a tumult, directed Major-General Skippon to send for three companies of soldiers more for their protection.'
Prideaux, the Attorney-General, summed up the evidence, and told the jury that if they hid any remembrance of the great and wonderful things their renowned army had done, and with what confidence and despite to all and authority Lilburne had published those books, they would take care he should smart for it; concluding, that the court were Judges of the law, as the jury were of the fact.
Judge Keble, in his directions to the jury, told them that this was the greatest treason that ever was attempted by one man; that it struck at the subversion of the Commonwealth, and to have laid them all in blood; and left it to their consciences, if Lilburne had not been guilty of the most transcendent treason that ever was hatched in England.
The jury, before they went out, desired they might nave a quart of sack to refresh themselves, but were told no jury were ever allowed to drink in capital cases, and it was thought a great indulgence to permit them to have a candle.
The jury returning into court about an hour afterwards, gave in their verdict that the prisoner was NOT GUILTY; at which the people, when told, shouted for half an hour, without ceasing.
Notwithstanding Mr. Lilburne was acquit, he was remanded to the Tower; and Major-General Skippon ordered to guard him thither, with a good body of troops. The multitude followed him with loud acclamation to the Tower gates; and the nation in general appeared afterwards so exasperated at Lilburne's being continued a prisoner, that the Council of State, on the 8th of November, thought fit to direct their warrant to the Lieutenant of the Tower to discharge him.
Cromwell appears to have been under great apprehensions from the daring spirit of this man, and could not rest till he got an Act of Parliament passed for his banishment, whereby it was declared that he should be adjudged guilty of felony if ever he appeared in England after a certain limited time. Lilburne, however, paid but little regard to this stretch of power; he was afterwards found in England, and brought to trial at the Old Bailey, on that Act of Banishment, but again acquitted by the jury. The Parliament were so incensed at this result that they ordered the jurors to be apprehended, and brought before the Council of State, to show cause why they acquitted the prisoner of felony, against the plainest evidence; but though all the jury were separately examined and threatened, they would give no other answer but that they looked upon themselves to be judges of the law as well as the fact, and gave the verdict according to their consciences. Cromwell had at last no other way to defend his usurpation against the attacks of this brave and popular man but by imprisoning him arbitrarily in Dover Castle, where he died a martyr to liberty.
A medallion was struck, to commemorate the triumph of Lilburne on his original acqittal from the charge of high treason. It had on one side these words:
John Lilburne, saved by the power of the Lord, and the integrity of his jury, who are judges of the law as well as of fact, Oct. 26, 1649.'
The reverse presented the names of the jurymen, in several circles, one within the other, with a rose in the centre:
'Miles Petty, Ste. Iles, Abr. Smith, John King, Mic. Murin, Tho. Dainty, Edm. Keysar, Eder. Parkins, Rob. Packman, Wil. Comins, Ly. Widon, Hus. Towlin, Oct. 26, 1649.'
The opinion delivered in this trial by judge Jermyn, that the doctrine of juries being judges of the law as well as the fact, was a blasphemous heresy; an opinion so favourable to tyranny, and tending, as Sir John Hawles well observed 'to defeat the principal end of the institution of juries, and so subtilly to undermine that which was too strong to be battered down' was afterwards supported by the infamous Jefferies, and was again revived under the powerful auspices of Lord Chief Justice Mansfield. 'Upon the reason of the thing,' said he, 'and the eternal principles of justice, the jury ought not to assume the jurisdiction of the law.'
At length, however, it was thought necessary to bring in a bill declaratory of the law of libel, which completely settles the disputed or disputable points; and in cases of indictments, or informations for libels, leaves not a loophole for corrupt or ambitious judges. Lord Kenyon called this bill 'a race for popularity,' and repeatedly declared that he should 'have acted exactly the same before as after the Libel Bill, so very clear was he respecting the doctrine.'
Old Irish Practice.
In the year 1689, several persons were indicted in Ireland for stealing cows, but the witnesses against most of them durst not appear to prosecute. Witnesses being brought against three of them, Michael Cavenagh, Edmund Poor, and William Bowland, Justice Keating, who appears to have acted in a manner very derogatory to the dignity and impartiality of a judge, said to the witnesses:
'I charge you, as you will answer it before God, that you neither, for favour nor affection, be inclined to spare any of these villains.'
Two Protestant witnesses against Cavenagh, hearing judge Keating speak against skeans (a sort of long dirk) one of them said :
'My lord, when we seized him, we took a skean away from him.'
Justice Keating. Sir, how durst you carry such an unlawful weapon?
Cavenagh. My lord, I am a butcher; it was a butcher's knife.
Justice Keating. Aye, I do not question but thou canst butcher upon occasion.
One Hick said, 'My lord, he is no butcher, but one of the greatest rogues in the country round us. I have been in pursuit of him several times.'
Cavenagh. He is a murderer, my lord, do not believe him.
A Witness. My lord it was near ten inches long, thick at the back, and sharp point, every way a skean.
Justice Keating. Is that your butcher's knife? You are a great villain for carrying such a weapon.
Cavenagh. I was ordered to have a skean, my lord.
Justice Keating. Pray, sir, who ordered you?
Cavenagh. The priest of the parish.
Justice Keating. A priest, Sir! (turning to his brother judge) Do you hear that, brother?
Baron Lynch. What priest, sir? what priest? what is your priest's name?
Justice Keating. Hold, brother. Come, I shall not ask your priest's name, I believe you will have occasion to see your priest soon, to do you a better office than to advise you to carry skeans. It is not for priests to arm or animate such villains as you are for mischief. I shall not ask your priest's name.
Clancy, an Irish gentleman. My lord, he belies the priest; he is a rogue.
Cavenagh. I do not. The priests of every parish did give orders to get half-pikes and skeans; and they were getting together in companies in every parish.
Justice Keating. Who were they that were getting together; such fellows as you?
Cavenagh. No, my lord, better men than I; a great many that are here in court.
The jury retiring, found a verdict of Guilty against Poor and Bowland, but found Cavenagh not guilty.
Justice Keating. Gentlemen, you have acquitted the greater villain: at your door let it lie.'
In that great constitutional question, the levying of ship money, which the patriot John Hampden so nobly resisted, the judges were all in favour of the absolute power of the king, although their reasoning was not a little singular. Sir Robert Berkley, one of the Judges of the Court of King's Bench, gave his opinion at great length, and thus concluded:
'In cases of necessity, pro salute reip, every subject must (even by rules of law) bestir himself; must contribute his best abilities; must set to both his helping hands.
Rich men must expose their treasures.
Able men of body must put on arms.
Great counsellers must give their best advice.
Women must not be idle.
Old men and clergymen (if they have no other powers) must attend their prayers.
And judges must press and enforce the laws upon the subjects to compel them to contribute.'
On these grounds the learned judge decided, that the charge of twenty shillings imposed on Mr. Hampden, was consonant to law, and consequently that judgment ought to be given against him.
On the trial of Hugh Peters, one of the Regicides, a Dr. Mortimer was called on the part of the crown; when being sworn, he said,
'Me Lar, me ha serd the king.'
Court. We cannot understand a word.
Counsel. He is a Frenchman, my lord.
Court. Pray let there be an interpreter.
A Mr. Young was then sworn to interpret the evidence truly; but this was found so difficult and troublesome, that the counsel for the prosecution waived his evidence, and prayed that another witness might be called.
Dr. Mortimer. 'Me Lar, me can peak Englis.'
Counsel. No, no, pray sit down.
A Prototype for Informers.
Among the slight charges on which the lives of subjects have sometimes been endangered, there was none more frivolous than those on which Elizabeth Cellier was indicted for high treason in the year 1680. It appeared that this woman had gone to a conjuror of the name of Gadbury, to know if the king would live or die, expressing her fears that he would die, as he was then very ill. An infamous wretch of the name of Dangerfield, was brought as a witness against her; but evidence being produced in court, that he had been whipped, transported, burnt in the hand, and pilloried, his testimony was not taken. Dangerfield produced a pardon, which extended only to one crime, and was proved to be defective. The Lord Chief justice, Sir William Scroggs, acted with great spirit and unusual integrity on the occasion, declaring that he would shake all such fellows before he had done with them.
Dangerfield. My lord, this is enough to discourage a man from ever entering into an honest principle.
Lord Chief Justice. What! Do you with all the mischief that hell hath in you, think to brave it in a Court of Justice? I wonder at your impudence, that you dare look a Court of Justice in the face, after having been made appear so notorious a villain.
Mr. Justice Jones. Indeed, if he be the same man, he is not fit for a witness.
Lord Chief Justice. And that he is the same man, is very notorious. Come Mrs. Cellier, what have you more to say?
Mrs Cellier. Enough, my lord.
Lord Chief Justice. You have said enough already. Come, gentlemen of the jury, this is a plain case; here is but one witness in a case of treason, and that not direct; therefore lay your heads together.
The jury immediately pronounced a verdict of Not Guilty; and the court committed Dangerfield to prison, until he should find security for his good behaviour.
Nothing can afford greater security to the due administration of justice, than the independance of juries; and so watchful are the laws in this respect, that a jury is not suffered to separate without giving a verdict, nor to hold the least conversation with any individual. They are even, although kept up all night, not suffered to have either fire or candle, unless by the special permission of the court. It was, however, far different in former times; and it shocks our ideas of propriety, to see how juries were then treated and feasted. Sir Thomas Smith mentions, that in his time it was usual for the party who obtained the verdict to give the jury a dinner; 'and this,' says he, 'is all they have for their labour, notwithstanding that they come some twenty, some thirty, or forty miles, or more, to the place where they give their verdicts; all the rest is at their own charge. In criminal matters, not capital, the jury were formerly paid, if they acquitted the prisoner; but not if they found him guilty; but in the prosecution for the Popish Plot, in Charles the Second's reign, the jury had more, and were treated higher, if they convicted a prisoner, than if they acquitted him. In capital matters, it was never allowed to pay the jury, be their verdict which way it would.'
On the trial of the seven bishops, the jury were locked up all night, without either fire or candle; they could not agree on a verdict, owing to the obstinacy of one Arnold, the king's brewer. In Tanner's collection, in the Bodleian Library, vol. xxviii., there is the following curious letter on the treatment of this jury:
'John Ince, to the Archbishop of Canterbury, June, 30, 1688.
MAY IT PLEASE YOUR GRACE,
'We have watched the jury carefully all night, attending without the door on the stair head. They have, by order, been kept all night without fire or candle, save only some basins of water and towels this morning about four. The officers and our servants, and others hired by us to watch the officers, have and shall constantly attend, but must be supplied with fresh men to relieve our guard, if need be.
'I am informed by my servant and Mr. Granges, that about midnight, they were very loud one among another; and that the like happened about three this morning, which makes me collect they have not yet agreed. They beg for a candle to light their pipes; but are denied.
'In case a verdict pass for us, which God grant in his our best time, the present consideration will be how the jury shall be treated. The course is usually, each man so many guineas, and a common dinner for them all. The quantum is at your Grace's and my lord's desire. But it seems to my poor understanding, that the dinner might be spared, lest our watchful enemies should interpret it against us. It maybe ordered thus: to each man -- guineas for his trouble, and each man a guinea over for his own desire. My Lord, your Grace's most humble servant.
N. B. There must be 150 or 200 guineas provided.'
Contrast between English and French Judicial Proceedings.
It is to the credit of public morality in England, that the functions of the ministers of justice, are assisted by the solemn abhorrence of the public mind, directed against instances of enormous crime, and lending its affecting gravity to the discussions of transgressions against the just principles of nature, as well as against the laws of all human institutions. Perhaps the principal security of a country, is to be found in the stern and angry regards which society fixes on great delinquents, the frown of which nothing can divert or soften. If the mockery of justice, the impudence of depravity, the indecency of licentious manners, are permitted to constitute an agreeable. relief from the contemplation of the sanguinary villainy to which they form a sort of farcical accompaniment; national manners may possess a certain glossiness of surface, but the most direful calamities may be expected to result from the absence of fixed rallying points for the virtuous, and of immoveable lines of separation and defence from the vicious.
The difference between England and France in this respect, is very striking; and there is not a piece of more curious history than that relating to Madame Manson, who was a spectator of the assassination of M. Fualdes, a gentleman of Rhodez, and a very reluctant witness against his murderers. After a variety of contradictory statements which this woman had made, she was at length introduced into court as a witness. The President made her a speech, in the course of which he told her, she was an angel destined by Providence to clear up a horrible mystery. She was invited to tell all she knew of the assassination, on which she darted a terrible look at the accused, and fainted away. A marechal-de-camp flew to her help. Recovering, she cried out, 'Remove from my sight these assassins.' The next moment she deposed she knew no assassins, and that she had never been at Bancal's house, where the murder was committed. She added, that she believed Bastide and Jausion, two of the accused, were there.
The President. Why do you believe so?
Madame Manson. In consequence of anonymous notes I have received.
President. Since you say you know nothing yourself against these men, why did you call them assassins?
M. Manson. By conjecture besides (turning to Jausion), when one kills one's children, one may kill another's friend.
The Chief judge enters with much eager curiosity into this story about killing children; and a good deal of irrelevant talk takes place on this subject, between him and this lady; and all this in the hearing of the jury. Being still further pressed, Madame Manson again fainted away; but this time she kept her seat. On her recovery, she put her hand on the sword of an officer who was administering the remedies proper in such cases, and exclaimed, 'You have got a knife!' The officer removed his sword, that she might not be alarmed by its sight.
M. Fualdes, the son of the murdered person, is busy in court during the whole proceedings; he is indulged with permission to make speeches as often and as long as he pleases, and on any subject that may occur at the moment. The public prosecutor and another lawyer are employed against the prisoners, but that appears to be no reason why M. Fualdes should not also take possession of the court at his pleasure. The best possible understanding seems to have existed between him and the judges; he abused Bastide's advocate in outrageous terms, often interrupted the prisoners in their defence, and favoured the audience with long accounts of his mode of living at Paris, what company he kept, and what were his motives and feelings in pursuing the assassins of his father. Nothing could equal the nobleness of his conduct, say the reporters; and the audience never failed to dissolve in tears whenever he opened his mouth. When the accused persons take the undue liberty of cross-questioning him, the court murmurs disapprobation! The display of grief made by M. Fualdes, is scarcely less theatrical than Madame Manson's horrors; but what is most offensively ridiculous, is his intolerance and impatience, which perpetually goad him to interrupt the debates. The advocate for Jausion having objected to the testimony of a domestic belonging to the family of the murdered man, that his statement before the court went much further than his deposition before the judge of Instruction, M. Fualdes gets up without ceremony, and informs the court, that his servant ought to be easily excused for the omission, inasmuch as he himself could scarcely at first bring himself to believe in the guilt of Jausion (then on his trial). 'I was in my bed,' said M. Fualdes, 'when at the approach of that person I felt an indescribable horror. So much so, that I shrunk beneath the clothes to avoid his sight. It was then, as if by inspiration, I felt convinced he had been the principal instigator of the murder of my father!' All this goes without a word of caution from anybody to the jury. M. Fualdes, as attentive to the inspirations of others as to his own, requested the court to order a file of armed men to be placed between the prisoners and Madame Manson, that she might feel assured; this arrangement of the scenery took place, and had a striking effect. Madame Manson played her part still more interestingly; she assured M. Fualdes, with whom she carried on the dialogue, that to discover the assassins of his father, she would give all she had, 'all,' she added with a sigh, 'but my son.'
This is but a small part of the miserable mummery of a French Court of Justice, in which melodramatic scenes of mock sensibility are acted before a jury assembled to try men on life or death. What are we to think when we find the Chief judge exclaiming in the middle of the trial to the two prisoners, Bastide and Jausion, 'You certainly were in Bancal's house; TELL us which of you saved the life of a female?' To the woman Bancal, he said, 'You know you are guilty;' and then exhorted her to look at the figure of Christ, suspended over his head, and no longer to conceal the truth.
The President having again affirmed, by way of address to Bastide, that he was in the house of Bancal the night of the murder, Madame Manson suddenly exclaimed, 'A vow, wretch !' This indecent interruption would have been severely rebuked in England: but in France ' all hearts trembled,' says the reporter. She had just declared, be it remembered, that she knew nothing of the affair; yet there appears to have been no one in court, not even the counsel for the prisoners, to charge the jury, as they valued their consciences, to dismiss entirely from their attention the mountebank tricks of this infamous woman. A M. Amans Rodat is then invited by the Judge to state in court a sort of metaphysical lecture, which he delivered one day to Madame Manson, on the propriety of Speaking the truth when examined in a case affecting men's lives and the punishment of murder. After several modest excuses, he commenced the repetition of his discourse, in which he told her, that 'If a wicked world should judge of her by appearances, it would at the same time say, as has been said of our first mother, Oh, happy fault!' 'Go on! speak, sir!' said the President, 'your words may serve for our Public instruction.'
Two hundred and forty witnesses were examined for the prosecution; and in several cases the ridicule thrown upon the name of judicial investigation, was as great as the insult offered to justice. Will our readers believe, that in France, in the year 1817, a witness was permitted to make the following statement as regular evidence against a man on trial for his life? J. Vignes, who described himself Professor, being sworn and questioned, deposed as follows :
'I met Bastide on the 19th of March, about two o'clock in the day, on the Boulevard d'Estourmel, below the garden of Mr. Seguret. I said to my companion, "That man looks like a rogue." "He belongs to a respectable family, however," said my friend. "No matter." replied I, "he carries a bad look with him." More late in the day, I was in the shop of M. Fontana, the jeweller, with the same person; Bastide again passed; I was seized with horror, and hastily retired into the shop. " You will get yourself into a quarrel," said my companion. "I cannot help it; I am not master of myself" I replied. When I heard of the affair in which he was involved, I felt no surprise, and I observed to my friend, that I was not deceived.'
This is the whole of the witness's deposition; and although it proves nothing but his consummate folly, yet Bastide is questioned by the President what he has to say to this testimony! Five or six witnesses are brought in, merely to say that they had heard from others that these others had heard it reported that M. Fualdes had been watched for a considerable time before his death. A Justice of Peace is examined, who commences his testimony by declaring, that he has nothing at all to say in regard to the murder, but that he has been told, that eighteen years ago Bastide opened a cabinet at his brothers, and look out some papers! For the first and only time, one of the counsel here rose, and said that the jury ought to distrust the reasonings and surmises of witnesses, who should confine themselves to plain and applicable facts. The court, who had listened with interest to the physiognomist, stopped the advocate in this proper discharge of his duty, and begged that its time might not be occupied by such unnecessary remarks! In the act of accusation, it is said that Colard, one of the prisoners, had been heard to declare, that he would take any one's life away for twenty-five louis; that he good things of the world were not well divided; that the rich had more than their share; and that if everyone were of his mind, those who had nothing would take what they could. The jury were so struck by this passage, that they desired it might be read to them twice, though it had no earthly connexion with the case they had to try: and the Judge, in his charge, particularly alluded to this atrocious speech, as he called it.
The jury found the prisoners guilty; but the whole proceedings were quashed by the Court of Cassation.
On a second trial, in which Madame Manson spoke out more plainly, they were again convicted. 'Never,' says the French report of this second trial. 'has a scene so eminently dramatic terrified the audience of a tribunal' Never did the Champmeles, the Clarions, the Raucourts, of tragic memory, produce on their spectators an effect so prompt, so terrible. The voice, the countenance, the attitude of Madame Manson, in making the terrible reproach to Bastide, cannot be described! judges, lawyers, guards, spectators, and criminals, all turned pale; a general cry was raised; then a doleful silence took place, which was soon interrupted by a peal of applause.'
How different, then, is the administration of justice and the proceedings of a court in France, from what it is in England! justice in England would have found a way to extract the truth from Madame Manson without theatrical parade, or would quietly but severely have chastised her falsehoods, and examined and settled the case on such valid evidence as could be procured. The proceedings would have borne a firm, clear, distinct, and precise character; nothing but substantial and applicable facts would have influenced the fate of the accused, who would have been treated with humanity, judged impartially, and if found guilty, punished with rigour.
A High Authority.
Mr. Curran was once engaged in a legal argument; behind him stood his colleague, a gentleman whose person was remarkably tall and slender, and who had originally intended to take orders. The judge observing that the case under discussion involved a question of ecclesiastical law; 'Then,' said Curran, 'I can refer your lordship to a high authority behind me, who was once intended for the church ' though in my opinion, he was fitter for the steeple.'
Murder of Sir Thomas Overbury.
Among the persons tried for this dreadful murder, was one Simon, a servant of Sir Thomas Monson, who is said to have saved himself by a 'pleasant answer.' The charge against him was for carrying the poisoned dishes to Sir Thomas Overbury in the Tower. On his trial, the Lord Chief Justice Coke said, 'Simon, you have had a hand in this poisoning business.' 'No, my good lord,' said Simon, 'I had but one finger in it, which almost cost me my life. and at the best, cost me all my hair and nails.'
It is said that Simon being rather curious, and finding the syrup swim on the top of the tart, skimmed it off with his finger and tasted it, which led to the injury he stated on his trial.
A Mrs. Turner was less fortunate than Simon: she was convicted and condemned. When the Lord Chief justice pronounced the sentence of death upon her, he said, 'That as she was the first inventress and wearer of yellow starched ruffs and cuffs, so he hoped she would be the last that wore them; and for that purpose strictly charged she should be hanged in that garb, that the fashion might end in shame and detestation.' His hope was fully accomplished, as from the day she was executed, neither yellow ruff nor cuff was ever seen to be worn.
Mr. (now Lord) Erskine, in his defence of Mr. Horne Tooke, made the following remarkable declaration:
'Gentlemen, Mr. Tooke had an additional motive for appearing to be the supporter of Mr. Paine. The constitution was wounded through his side. I blush as a Briton to recollect that a conspiracy was formed among the higher orders to deprive this man of a British trial. This is the clue to Mr. Tooke's conduct; and to which, if there should be no other witness, I will step forward to be examined. I assert that there was a conspiracy to shut out Mr. Paine from the privilege of being defended; he was to be deprived of counsel; and I, who now speak to you, was threatened with the loss of office if I appeared as his advocate. I was told in plain terms that I must not defend Mr. Paine. I did defend him, and I did lose my office.' Mr. E. was the Attorney-General of the Duchy of Cornwall.
Horne Tooke devoted many years of his life to the study of the law, but did not seek to be called to the bar until he had become so active a political partisan that he was refused to be admitted. If we may judge from the eloquence, skill, and acuteness which he displayed on his trials, he would have greatly distinguished himself in his profession, had he been called to the bar in early life. On his trial during six days for high treason, in 1794, he exhibited a philosophic calmness and selfpossession which excited much admiration. As he had confided his defence to those able advocates, Mr. Erskine and Mr. Gibbs. he did little more than cross-examine the witnesses; but on a former trial for a libel, in 1776, in charging the king's troops with murder in the affair at Lexington, he was his own advocate, and defended himself with great ability, although he failed in obtaining a verdict in his favour. This trial took place before he had assumed the surname of Tooke; the proceedings were therefore in the name of Horne only. The first point he urged was, that if a defendant in a case of libel did not call witnesses, his defence would determine the proceedings, and that the Attorney-General had not the right to reply.
Lord Mansfield was of a different opinion, and said, if the suffering the Attorney-General to reply was against law, it was an irregularity in the trial for which the verdict would be set aside. Thus the defendant would have his remedy.
Mr. Horne. O! my lord, I have already suffered under your lordship's directing me to remedies. The most cruel of all poisoners are those who poison our remedies. Has your lordship forgotten? I am sure you have not forgotten that I have once before in my life had the honour to be tried before your lordsnip for a pretended libel. My lord, this matter of reply I know so well to be the practice, not only from the intelligence I have had upon that subject, but from that very trial at Guildford, on the action brought against me by the present Lord Onslow. My lord, I could then have contradicted his evidence. I will just mention two or three particulars in this case. It was the most scandalous one that ever came before a court. Your lordship cannot forget the particulars. I was prosecuted by him for a libel. On the first action that he brought, I obtained a nonsuit. Upon that a fresh action was brought. To that fresh action, in order to try it in Surrey, where the plaintiff had his influence. words spoken a year or two before were added, words of a different nature, and upon a different subject. We came to trial before your lordship, and 1 do remember some very strong cases (which, indeed, 1 intended to have published) of your lordship's practice in that trial. But, my lord, however impatient I may be thought to be, I am very patient under personal injuries. I have never complained of the practices used against me at that trial, nor of the mistakes (to speak gently) which your lordship made. Your lordship then told me, as now, that I should have a remedy.
Lord Mansfield. If I remember right, you had a remedy there, for it was determined not to be actionable.
Mr. Horne. True, my lord, but it cost me £200. The remedy was almost as bad as the verdict would have been.
Lord Mansfield. There must be an end.
Mr. Horne. Not of this objection.
Lord Mansfield. No; an end of going out of the cause. You must behave decently and properly.
Mr. Horne. I will surely behave properly.
Mr. Horne proceeded to make some powerful observations on the rights and advantages of a grand jury, and contended strongly against ex-officio informations, and the justice of special juries.
'In the striking of a special jury,' he said, 'the Sheriff's officer stands by the Solicitor of the Treasury, his clerk, and so forth; and while the names are taken, if a name (for they know their distinction) - if a name which they do not like occurs and turns up, the Sheriff's officer says, "O, sir, he is dead." The defendant, who does not know all the world, and cannot know all the names in that book, does not desire a dead man for his juryman. "Sir, that man has retired." "That man does not live any longer where he did." "Sir, that man is too old." "Sir, that man has failed, and become a bankrupt." "Sir this man will not attend." "O," it is then said very reasonably, "let us have men that will attend, otherwise the purpose of a special jury is defeated." This seemed very extraordinary to me. And two of those whom the officer objected to I saved. I begged him not to kill men thus without remorse, as they have done in, America, merely because he understood them to be friends of liberty; that it was very true we should see them alive next week and happy, but I said, let them be alive to this cause. The first name I took notice of was Mr. Sainsbury, a tobacconist on Ludgate Hill. The Sheriff's officer said he had been dead seven months. Now, as I happen to be a snuff-taker, and buy my snuff at his shop, I knew Mr. Sainsbury was not so long dead. I asked him strictly if he knew Mr. Sainsbury was dead, and how long he had been dead? "Six or seven months." I said, "Why, I read his name today; he must then be dead within a day or two, for I saw in the newspapers that Mr. Sainsbury was appointed by the City of London one of the committee to receive the toll of the Thames navigation; and as the City of London does not often appoint dead men for these purposes, I concluded that the Sheriff's officer was mistaken; so Mr. Sainsbury was permitted to be put down among you, gentlemen, appointed for this special jury. Another gentleman was a Mr. Territ. The book said he lived, I think, in Puddledock. The Sheriff's officer said, "That gentleman was retired; he was gone into the country; he did not live in town." It is true. he does frequently go into the country; but his fixed residence is in town. His name was likewise admitted with some struggle. Now what followed? This dead man and this retired man were both struck out by the Solicitor of the Treasury; the very men whom the Sheriff's officer had killed and sent into the country, were struck out and not admitted to he of the jury.'
The Attorney-General, Sir Edward (afterwards Lord) Thurlow, next came under the severe notice of the defendant.
'Gentlemen,' said Mr. Horne, 'the language of the Attorney-General forces me to say a few words upon a subject which is the most disagreeable for a man to speak of, unless, indeed, it is when he appears as I do, a defendant. He has charged this libel as it is called, with being full of "ribaldry, Billingsgate, scurrility, balderdash, and impudence." I have not used a word that he did not use and yet he pays me a compliment, and says, he never knew so much of my talents and learning as at this time. The gentleman's memory is short; I would have forgot it if he had not. He represents me to you in the light of a scurrilous, ribald, balderdash, Billingsgate, impudent fellow. That boldness with which I defend the right of the subject, will not with any man, who has a regard for the right of the subject, pass for impudence; those who know anything of me, must judge whether I am impudent on other occasions.
'Gentlemen, he has followed in this description of me which he has given, and in that character with which he has been pleased to clothe me; he has followed the old practice of some ingenious tyrants, who used to dress up men in the skins of beasts, in order to encourage the dogs to worry them; just so this gentleman dresses up his victims, in the characters of beasts, in order to expose them to your indignation. He had no pretence whatever, for representing me in that light. I do the more wonder at this language from him, because he knew me better.'
Mr. Horne then proceeded to relate how the Attorney- General had formerly sought to be acquainted with him, and had, in fact, been in his company for some hours; but whether out of curiosity, as people go to see a raree show, or not, he would not determine.
Mr. Wilkes happened to be on the bench during the trial, and laughed much at some observations in Mr. Horne's defence, which occasioned him thus to notice the circumstance. He said, 'I have the pleasure to see, that there sits a gentleman by the judge who is now trying me, who has, as well as myself, charged the king's troops with murder; a charge which at that time excited great abhorrence and detestation against him. The judge and that gentleman have been laughing all the time of this trial; they have enjoyed each other's company exceedingly. Well, gentlemen (turning toward Lord Mansfield, and Mr.Wilkes), I have caused another laugh it appears; but it gives me pleasure. to think, that if ever I come out of prison again (if you are so kind as to put me there), I too may have the honour, if it be one, of sitting cheek by cheek with the judge. and laughing at some other libeller. But, gentlemen, I have wandered; though if I am to be shut up so soon, a few excursions before it may be excused.'
Mr. Horne was found guilty of the libel.
When he was brought up to receive the sentence of the court, he moved an arrest of judgment on various grounds; but particularly 'that the information on which he was tried, did not specifically charge him with any crime, and that the whole of the charge was of a constructive nature.'
The Attorney-General said, he had expected a very different kind of argument from the defendant. To say that not anything like a criminal charge had been averred in the information. was surely to be attributed to a perversion of the understanding, for the charge was too obvious to be mistaken.
Mr. Horne, in reply, 'However the expectations of the Attorney-General may have been excited. I will answer for it that his wishes have not kept pace with them. Mr. Attorney-General might expect it to be proved, that the advertisement was neither false. scandalous. nor seditious, but he could not wish for such proof. It would entirely defeat the designs of the prosecution. The learned gentleman has therefore spared me the trouble of advancing such arguments with effect, by not choosing to combat them on the trial. The crown officer has also been excessively obliging in another respect; he has not perplexed the business with cases and precedents, nor has he enlivened the dulness of the argument by either his oratory or his wit. Both these the learned Attorney-General may possess, but he has not chosen to make a display of either.'
Mr. Horne then quoted the case of Lord Russel, who was charged with a design 'to seize the king's guards,' an expression which, judge Atkins said, was too vague and indeterminate 'And who,' said he,'are the king's troops alluded to in the information against me? They have not been defined. But admitting that they had, was it physically impossible that any of the king's troops should commit murder? As to the epithet of "libel," so frequently adopted by the Attorney-General? what is a libel? Is the word so technically descriptive? By the Court of King's Bench, the act of sending a "wooden gun" to a man, has been deemed a libel, as in the case of Thicknesse, who was sentenced for the libel of sending a wooden gun to Lord Orwell. The language about libels is only the jargon of uncertainty.
'The words "of" and "concerning," as they stand in the information, I strongly object to, on account of their legal informality. The word "concerning," means seeing together, and is applicable to persons who participate, at the same time, in the sight of a thing. In this, which is the only sense of the word, it is not applied in the information. If the meaning of one word may be tortured, that of many may be misapplied. A charge can only be specified by the most rigid attention to the meaning of words.'
Mr. Horne then prayed, that on these grounds judgment might not be passed upon him.
Lord Mansfield, after a few observations, proposed that Mr. Horne should be committed, and brought up on the following Monday.
Mr. Horne. Will your lordship commit me before I am legally convicted?
The commitment was dropped. On the Monday the Attorney-General again prayed the judgment of the court on Mr. Horne, who had been convicted of an 'audacious, false, and wicked libel.'
Mr. Horne, with great spirit and good temper, replied. 'I am,' said he, 'as little given to audacity, as the Attorney-General, or any other gentleman in this court. He says my language and style is low, and that I look only for the praise of a mob. This is his language, not mine. It has been my misfortune to have a liberal education; and that mob has paid him as much tribute as it has done me. It is likewise my misfortune not to be poor; I never said I was. If I had, I should here have joined with the Attorney-General and craved the lenity of the court; but I never did ask a favour of them, and I hope I never shall. It is unfortunate, but my notions of humanity differ widely from those of the Attorney-General, and it cannot be flying in the face of justice not to shrink from her presence. I believe I did say formerly, that I even dared anything your lordships should do against me; and I now do, for I am confident that your lordships dare not do wrong.'
The sentence was, that he should be 'imprisoned twelve months, be fined £2oo, and find sureties for his good behaviour for three years.
Mr. Horne. My lord, I am not at all aware of what is meant by finding sureties for good behaviour for three years. It is that part of the sentence which perhaps I shall find most difficulty in complying with.
Lord Mansfield. It is a common addition.
Mr. Horne. And it may be a common hardship.
Mr. Justice Aston. Not to repeat offences of this sort.
Mr. Horne. Of this sort?
Lord Mansfield. Any misdemeanour.
Mr. Justice Aston. Whatever shall be construed bad behaviour.
Mr. Horne. If your lordships would imprison me for these three years, I should be safer, because I cannot foresee but that the most meritorious action of my life may be construed to be of the same nature.
Lord Mansfield. You must be tried by a jury, by your country, and be convicted. You know it is a common addition. You know it yourself very well.
An action in the Court of Common Pleas in 1794, between two Billingsgate fishwomen, afforded two junior barristers an opportunity of displaying much small wit.
The counsel for the plaintiff stated that his client, Mrs. lsaacs, laboured in the humble, but honest vocation of a fishwoman, and that while she was at Billingsgate market, making those purchases which were afterwards to furnish dainty meals to her customers, the defendant Davis grossly insulted her, and in the presence of the whole market people, called her a thief, and another if possible, still more opprobrious epithet. 'The learned counsel expatiated at considerale length on the value and importance of character, and the contempt, misery, and ruin consequent upon the loss of it. 'Character, my lord,' continued he, 'is as dear to a fishwoman, as it is to a duchess. If the little worm we tread on feels a pain as great as a giant when he dies; if the vital faculties of a sprat are equal to those of a whale; why may not the feelings of a humble retailer of "live cod," and "dainty fresh salmon," be as acute as those of the highest rank in society?' Another aggravation in this case, the learned counsel said, was, that his client was an Old Maid; with what indignation, then, must she hear that foul word applied to her used by the Moor of Venice to his wife? His client was not vindictive, and only sought to rescue her character, and to be restored to that place in society she had so long maintained.
The judge inquired if that was the sole object of the plaintiff, or was it baiting with a sprat to catch a herring?
Two witnesses proved the words used by the defendant.
The counsel for the defendant said his learned brother on the opposite side had been floundering for some time, and he could not but think that Mrs. Isaacs was a flat fish to come into court with such an action. This was the first time he had ever heard of a fish woman complaining of abuse. The action originated at Billingsgate, and the words spoken (for he would not deny that they had been used) were nothing more than the customary language, the lex non scripta, by which all disputes were settled at that place. If the court were to sit for the purpose of reforming the language at Billingsgate, the sittings would be interminable, actions would be as plentiful as mackerel at Midsummer 'and the Billingsgate fishwomen would oftener have a new suit in Guildhall than on their backs. Under these circumstances, the learned counsel called on the jury to reduce the damages to a shrimp.
Verdict. Damages, One Penny.
However justly the severity of the English laws may be complained of, there is one branch of them which has been much narrowed, that respecting the crime of high treason which no longer includes the printing publishing of malicious or slanderous libels. The last person who suffered for high treason of this kind, was William Anderton, a printer who was tried in the fifth year of William and Mary. Poor Anderton, it was afterwards proved, was innocent; and the person who actually printed and published the book for which he had been cast and executed, was soon after tried, and also condemned. The principal witness against Anderton was an infamous fellow of the name of Stephens, whose evidence would not, at the present day, have been received.
The Chief justice, Treby, in summing up, 'did everything to convict the prisoner, whom he, accused of being an ill-minded and disaffected person; and then he quoted, as precedents, the cases of Sir John Oldcastle and Lord Cobham, who lived almost a century before printing was introduced.
The jury having retired to consider of a .verdict. were, after two hours' debate, most of them inclined to acquit the prisoner; but there was 'one among them who loved mischief, and was for hanging men for being Jacobites, not for being guilty. This man afterwards acknowledged that the evidence did not amount to proof of the fact; but, said be, "What of that?" I believed he was guilty; And I will hang a hundred of them on half so much evidence.'
When the jury returned, and were asked whether they were agreed in their verdict, one of them answered, No; on which the court frowned, and appeared much displeased. The foreman of the jury then put this question to the bench: 'Whether the having these libels in his possession, without making any further use of them, did affect the prisoner as to life?' This question, though very pertinent, was not very pleasing; and after some frowning and pouting, the court answered 'No;' but added, that was not the business of the jury, who were to find the printing, which was a sufficient overt act.
A Juryman. My lord, our foreman is of opinion this fact is not proved.
Court. Whether it be proved or not, you ought not to determine; the bare finding the books in his custody would not be treason; but the case is, gentlemen, here is a man that has a printing press, to which no man has admission but himself; and this man is found with an errata, so that he must needs print the treason.
A Juryman. 'Tis a very strong presumption, my lord.
Baron Powell. A violent resumption is as much as if a man had been there, and done it himself.
The jury were then sent back, and after three hours' deliberation, brought in a verdict of Guilty, to the satisfaction of the court, who told them that they were good and honest men.
Right of By-Standers.
On Colonel Lilburne's trial for returning from the banishment to which an Act of Parliament had consigned him, the proceedings occupied seven days, during which Lilburne, as on every preceding occasion 'boldly defended himself. He demanded the oyer of the Act of Parliament on which the indictment was grounded. It was refused, and (says the report of the trial) 'furious hurley burleys' happened between the Lord Mayor, the Recorder, the prisoner, and several persons in court; when a Mr. Thomas Prince pressed to be heard, and told the Lord Mayor 'that it was the known law of England, that any by-stander whatever might speak for the prisoner's benefit at the bar, especially when they apprehended the prisoner was like to be wronged, and denied his birth-right, the benefit of the law; and this privilege, my lord, by order of the court, you have granted me, and other of Mr. Lilburne's friends, as our right by law to speak in his behalf, when we see things urged against him, against reason and right; and therefore, my lord, the thing that Mr. Lilburne demands about his oyer, or hearing read the Act of Parliament upon which the indictment is founded, and the judgment upon which the act is grounded, and the crimes that ought to be the original of all, is so essentially his right, that it is an amazement to me to see it disputed; and also it is a wonder to me, that any man that pretends so much as to know the very first rudiments, or the very first footsteps of the law, as Mr. Recorder doth, should endeavour to deny such a thing, so commonly practised in every ordinary court of justice, in the case of every ordinary bond and bill that a suit is commenced upon.'
The court with violence and fury interrupted Mr. Prince; the Recorder commanded the prisoner at his peril to deliver in his exceptions; the counsel called for his condemnation; and the clerk of the court pressed forward to gag his mouth, when Lilburne, perceiving the violence and of the court, with an earnest, ardent, and loud voice, cried out, 'My lord, will you er me without right of law, by robbing me of my birth-right, and denying me my oyer, which is as much my right by law, as the blood that runs in my veins? My lord, are you afraid and ashamed to produce that Act of Parliament upon which you pretend to ground your indictment, upon which you would take away my life? My lord, if you thus proceed, you will give me and the people cause to believe, that there never was such an Act of Parliament as you pretend, nor such a judgment as it pretends to be the execution of; nor no such crime ever committed or acted, as any judgment of felony can be imagined to be grounded upon; but that rather all your proceedings against me, from first to last, are a malicious and packed conspiracy against me to murder me, and without ground or cause to take away my life. For whose life have I feloniously taken away or endangered? And if none of all these things in the least can be laid unto my charge, or never were, where is the act of felony that I have committed, upon which I am endeavoured to be hanged?'
Lilburne was then called upon for his exceptions; but these were in the hands of his counsel, who were in the country, and who had advised him first to demand oyer of the Act of Parliament. Several of his friends who stood near him, cried out there was a snare laid for him; and bid him rather die, than stir an inch from his counsel's honest, just, and safe instructions. Lilburne then said, to let the world know that he was no baffler, nor procrastinator of time; nor had anything of guilt, fear, or dread within him, although it was never so much to his wrong, he would tender the rough draught of his exceptions, a fair copy not having been engrossed. The court were pleased to receive it.
The jury, on the seventh day of the trial, brought in a verdict of Not Guilty. The proceedings of the last three days have never been published, but Lilburne is said to have made an admirable defence.
A Recorder of modern times, in passing sentence at the Old Bailey on a prisoner of the name of Nott, who was convicted of obtaining money on false pretences, for telling fortunes, said, 'Prisoner, you are much too clever a man to remain in this country.' This remark, so inconsistent with the solemnity and dignity of a judge, was well reproved in the following
The R---r resolved, after grave consultation,
That Nott was too clever to stay in the nation;
No talents in leaving the realm would complain,
If his own were the standard of who should remain.
A fellow in Dublin had once committed some trifling offence, for which the judge pronounced the following sentence:
Judge. 'The sentence of the court is, that you shall be flogged from the Bank to the Quay.'
Prisoner (hastily interrupting the judge). 'Thank you, my lord, you have done your worst.'
Judge. 'No - and back again.'
A circumstance of a similar nature took place at the Leeds Borough Sessions in April, 1818. As soon as the court had pronounced the sentence of transportation for seven years upon a man of the name of Uttley, the prisoner, with hardened assurance, exclaimed, 'I wish you may all sit there till I come back again!' On this, the court directed that he should, in addition to his other sentence, be flogged.
In these cases the exercise of judicial discretion seems to have been far enough; but what shall we say to the following?
A prisoner of the name of Hopwood was convicted at the Salisbury Assizes for stealing a sack of oats, and sentenced by Mr. Justice Parke to eighteen months' imprisonment and hard labour; but immediately on the sentence being pronounced, he had the effrontery (as the report says) to direct an impertinent question to his lordship respecting the wages for his hard labour, which he wished to know how he was to recover. The learned judge instantly ordered his sentence not to be recorded, and altered it to seven years' transportation.
It appears by this statement, that although eighteen months' imprisonment was considered an adequate punishment for that transgression of the public law upon which the man was arraigned, yet for the offence of making an impertinent remark to a judge, the criminality of which is neither declared by statute, nor otherwise recognised among indictable delinquencies, the offender was sentenced to seven years transportation. The crime of impertinence, if it be a crime, for which this very severe punishment was awarded, is surely not of so very dangerous a nature to society, as to require the hasty and heavy judgment with which it was visited on this occasion.
Right to Speak before Pleading.
When Mr. Christopher Love was tried for high treason, he addressed the court previous to his pleading to the indictment, but was interrupted by the Attorney-General. Mr. Love insisted upon the same liberty that had been granted to Mr. Lilburne.
Lord President. He did plead first.
Mr. Love. No, my lord, he did not plead first, and I have much to move before I plead.
Lord President. You can say nothing till you plead.
Mr. Love. My lord, I desire not much.
Attorney-General (Prideaux). My lord, let the time now insisted on be what time it will, Mr. Love will have time to speak for himself; and it is so far from being to the point, that it is trifling. And this rather makes him seem guilty, than it gives him any acquittance.
Mr. Love. Prove me guilty first, sir; do not prejudge me.
The indictment was then read; but Mr. Love still refused to plead, until the court was proceeding to pass judgment upon him, when he pleaded Not Guilty. Mr. Love made a long and able defence, concluding with the words of Jeremiah to the Ruler of Israel: 'As for me, behold I am in your hands; do with me as seemeth good and meet unto you; but know ye for certain, that if ye put me to death, ye shall surely bring innocent blood upon yourselves;' but I will say as the apostle did, 'I hope better things of you, though I thus speak.' Mr. Love was found guilty, and suffered on Tower Hill.
Love was quite right in stating that Lilburne did not plead first.
'The prisoner,' says the 'State Trials,' speaking of Lilburne, 'being brought to the bar before he was arraigned, desired to be heard: Which being granted him, he objected to his being tried by a special commission of oyer and terminer: he complained of his being apprehended by a detachment of soldiers, and not by the civil magistrate; that his chamber and pockets had been searched, and his estate, to the value of three thousand pounds, seized without legal process; and of his being committed to the Tower, and no allowance made him, as other prisoners used to have who were confined there. He demanded also to hear the commission read, by which the court was held; which he thought not agreeable to the petition of rights, and the rest of the good old laws of England.
'To this Mr. Prideaux, the Attorney-General, answered: that this was not a special, but a general commission of oyer and terminer, in the usual form; that it had been read before he came, and that the bill had been found against him by the Grand Inquest.
'Judge Jermyn also informed him that the Court was constituted by the supreme authority of England: that their commission was founded on the statute of 1 West. 2. which the barons obtained in their wars, and purchased by the sword, for the liberties and privileges of the subject; that he was to answer the charge of opposing the supreme power, now settled in the House of Commons, not newly erected, but revived; for it was so in the Saxon and in the Roman times; requiring the prisoner to put himself upon his trial, and hold up his hand at the bar.
'Lilburne replied, he had good reasons to believe their commission to be illegal, and desired all the good people present to take notice that they refused the reading the commission, by which they went about to take away his life; nor did he know the meaning of holding up his hand: he looked upon it to be a ticklish point; he might throw away his life if he held it up before he knew what it meant.
To which Judge Keble answered, it was to signify he was the person they inquired for; and if he did but own himself to be John Lilburne, it should be sufficient.
'Then Lilburne said, his name was John Lilburne, son to Mr. Richard Lilburne, of Durham, a freeman of London, and late Lieutenant-Colonel in the Parliament's army; but desired they would not surprise him with punctilios.
'The court told him, if he talked of punctilios, they would put a stop to that language. Lilburne replied, "Give me leave to speak, or knock me on the head where I stand. Mr. Bradshaw, President of the High Court of justice, as it was called, gave Dike Hamilton leave to speak to the punctilios of law, and I hope you will grant me, that have been in arms for you, as much favour as was granted to Duke Hamilton, who was against you."
'Then, the clerk arraigning him, and demanding if he was guilty or not guilty, Lilburne said he was not to answer questions for or against himself; he did not know what benefits he might lose by answering, and therefore desired a copy of his indictment, counsel, and time to consult them; and that he might not be entrapped with niceties, and forms of law, that could not be found in English books. However, he was at length prevailed on to plead not guilty of the treasons in manner and form, as laid in the indictment, &c.'
Counsellor Grady, on a late trial in Ireland, said he recollected to have heard of a relentless judge; he was known by the name of the Hanging judge, and was never seen to shed a tear but once, and that was during the representation of The Beggar's Opera, when Macheath got a reprieve!
It was the same judge, we believe, between whom and Mr. Curran the following pass of wit once took place at table. 'Pray, Mr. Curran,' said the judge, 'is that hung beef beside you? If it is, I will try it.' 'If you try it, my lord,' replied Mr. Curran, 'it is sure to be hung.'
Ex parte Judkin, a lunatic, August, 1817. The question debated was, whether the lunatic was to be examined by the physicians at home, or be carried to Chester for their opinion?
The Lord Chancellor (Eldon) reprobated such scandalous litigious motions, and hoped the counsel would see the propriety of not troubling him again, in this way. 'If you do;' said his lordship (who has the care of all fools ex officio), 'I shall be obliged, I am afraid, to send for a number of physicians to examine you, and see whether you be sound in mind, for I believe none but lunatics would think of mentioning such a case.'
Patent Hair Brushes. Injunction, Metcalfe v. Thomson. Plaintiff, Metcalfe, has a patent for hair brushes, the grand secret of which is, that some of the hairs are long and others short, so that one way or another they search the head. The defendant was, without licence, selling brushes of the same sort.
No counsel at first appearing for the plaintiff, the Lord Chancellor said, 'This injunction must be brushed off, unless some counsel be here in a few minutes to support it.'
Counsel did appear - Mr. Leach for the plaintiff, and Sir Samuel Romilly for the defendant, with Mr. Heald as junior on one side, and Mr. Tresslove as junior on the other.
In opposition to the patent right, Sir Samuel Romilly produced an old brush which had been used by a perfumer, wig-maker, wig-dresser, &c., for the space of thirty years, and which was exactly the same in principle as the patent brush.
Lord Chancellor. It is a Fox's brush.
[N.B. There is an old wig-maker of the name of Fox, well known about the Inns of Court, and who was in fact the owner of the brush produced.]
Sir Samuel Romilly. 'It is, my lord.'
Lord Chancellor. Shew me the plaintiff's brushes. Really it is curious to see me called on to judge of brush-making.
Here four head-brushes, one long broom, one knee buckle brush, and three clothes brushes, were handed to his lordship, who particularly examined the head-brushes. Nothing was now heard but peals of laughter. The only grave persons in court were the two clients, Messrs. Metcalfe and Thomson.
Sir Samuel Romilly. 'Now, my lord, ingenious as the construction of these patent brushes may be, your lordship will find that it is exactly the same as this old brush of my friend Fox's, which has been used for twenty or thirty years in brushing up wigs.'
Lord Chancellor. Hand me the brush of this old gentleman. It must be a curiosity, after being so long worn by him in his useful employment of a wig-maker. (Mr. Foxs brush was handed up.) Really this antique looks uncommonly well.
Mr. Heald. Your lordship will see by looking at it, that it is the same to a hair as the patentee's brushes; only they look a little better.
Lord Chancellor. That is, Mr. Heald, because they are younger. I have examined this old brush, Mr. Tresslove, and I see it is rather an odd kind of thing; but when you and I get as old, and our tresses have been as well worn as these have been, we shall perhaps look quite as antique.
Mr. Tresslove said, he had advised his client not to show his brush.
The Lord Chancellor. Then I must say, that you being a pursuer there you were at fault; for if an injunction is granted by this court, or by any of the other branches connected with the article on which such an in junction is granted, must be, and in future I do peremptorily order, that it shall be lodged with the Master. I remember in a case of waste, that a person in this court who had made an affidavit, actually affixed his oaktrees to his affidavit, to show the court of what nature the trees were.
Metcalfe was non-suited.
An eminent barrister observing a witness he was about to cross examine, particularly thoughtful, addressed him thus: 'Come, Mr. Boniface, what are you thinking about?'
The countryman pausing a little, scratched his hat, and coolly replied, 'I have been just a thinking, your honour, what a charming dish my bacon face, and your calf's head, would make.'
In a cause, Howard v. Mason, tried at the Carlisle Assizes in August, 1818, Mr. Raine in cross-examining Jonah Bird, a very large and corpulent man, asked him if he knew James Ridley? No I never heard of him.' 'George Ridley?' 'No. Perhaps I still mistake his Christian name, some Ridley?' 'You will never riddle from me but the truth.' (A laugh.)
Mr. Raine. That is vastly clever. But I am not angry, for I see you are a well-fed bird.
Thomas Graham, another witness examined, was a most lively and pert old man of seventy six.
Mr. Raine. Now speak up in your answers that my lord and the jury may hear you.
The Graham. Aye, but speak ye oop, that I may hear you.
Mr. Scarlett cross-examined him; and finding him rather slippery, he angrily said, 'Don't fence with me so, sir.'
The Graham. Why don't you speak oop than, that I can hear ye?
Mr. Scarlett then entered into an examination as to a conviction of this man two years before for fishing without licence.
The Graham. Oo, I know, when a scoon drall swore what he never saw, that I fished with a lister.
Mr. Scarlett. When was that?
The Graham. Why, sir, it was at the time of that conviction that ye're hammering about.
The laughter was here so great, that Mr. Scarlett was obliged to call for the interference of his lordship.
The Graham, however, could not be tamed, but displayed the same spirit to the end of his story.
At the Staffordshire Assizes in March 1818, an indictment was tried, THE KING on the prosecution of Thomas Deakin, against Thomas Potts and others; the gravamen of which was, that the defendants had assaulted Thomas Deakin, by pumping a quantity of water upon him with an engine, while he was engaged obtaining signatures to a Petition for parliamentary Reform.
Deakitt cross-examined by Mr. Dauncey.
From whom were you to receive three shillings a day? From a Mr. Parkinson, at Handley, a schoolmaster; I went to school to him a bit.
What! to qualify yourself for the petitioning line! No, not exactly so; but he promised me three shillings a day.
Ah! when you were going to set all the world to rights? I think, it would be a good job if it were set a little to rights. (Laughter).
Mr. Dauncey. Ah, Mr. Deakin, but there is an old adage that says, it is better to begin at home.
Prosecutor. Yes. sir, likely you find it so.
A man was brought before Lord Mansfield, when on the home circuit, charged with stealing a silver ladle; and in the course of the evidence, the counsel for the Crown was rather severe upon the prisoner for being an attorney. 'Come, come,' said his lordship, in a whisper to the counsel, 'don't exagerate matters; if the fellow had been an attorney, you may depend on it he would have stolen the bowl, as well as the ladle.'
Lord Norbury, while on circuit, being attacked with a fit of the gout, sent to the Solicitor-General, to request the loan of a pair of large slippers. 'Take them,' said the Solicitor, to his servant, 'with my respects, as I hope soon to be in his lordship's shoes.'
'Look at that juryman in the blue coat,' said one of the Old Bailey judges to Justice Wares, 'do you see him?' 'Yes.' 'Well, we shall not have a single conviction today for any capital offence.' The observation was verified. This fact was related by Mr. Justice Nares himself, to a magistrate of London.
The celebrated French Chancellor D'Aguesseau, became Advocate General of the Parliament of Paris, at the age of only twenty two years. The king, in appointing one so young to an office of very great consequence, was guided solely by the recommendation of his father Henry D'Aguesseau, Counsellor of State. 'I know the counsellor,' said his Majesty, 'to be incapable of deceiving me, even in the case of his own son.' The young Advocate completely justified the trust reposed in him. The celebrated Denis Talon, who had obtained great reputation in the same office, declared that he should have been willing to conclude his career, as the young man had begun his. From the situation of Advocate General, he was promoted to be Procurator General; and the nature of his new office, furnished him with occasion to display new talents in the public service.
Towards the end of the reign of Louis XIV. D'Aguesseau was threatened with disgrace, for having refused to register the famous bull Unigenitus. When he was about to set out for Versailles on this occasion, his wife thus spiritedly took leave of him. 'Go, and before the king, forget your wife and children, and lose everything but your honour.' D'Aguesseau thought he perceived in the regulations of this bull, something that threatened the rights of monarchy, which he had therefore the courage to defend against the monarch himself. It was this sense of the matter, which produced the excellent answer which he gave to Quirini, the Pope's nuncio. 'Is it thus,' asked Quirini, 'that you manufacture arms against Rome?' 'No, monsieur,' replied D'Aguesseau, 'these are not arms, but shields.'
The French are fond of comparing D'Aguesseau to the illustrious Lord Bacon; but the comparison is none of the most happy. In uprightness and independence, he was far above him; but in extent and universality of genius, he must take his rank among a much inferior order of minds.
'When he first began,' says Burnet, 'to grow eminent in his profession of the law, he went down to visit his father in Wiltshire; who one day, as they were walking in the fields together, observed to him, that "men of his profession were apt to stretch the prerogative (of the crown) too far, and injure liberty; but charged him, if he ever came to any eminence in his profession, never to sacrifice the laws and liberty of his country, to his own interests or the will of his prince." He repeated this twice, and immediately fell into a fit of apoplexy, of which he died in a few hours; and this advice had so lasting an influence upon the son, that he ever after observed and pursued it.'
The Star Chamber.
When Burton, Bastwick, and Prynne, representatives of the three professions of divinity, physic, and law, were jointly proceeded against in the Star Chamber, for 'writing and publishing seditious, schismatic, and libellous books, against the hierarchy of the church, and to the scandal of the government; they prepared an answer to the information; but such was the subserviency of the bar at that period, that their counsel declined signing it, for fear of offending the court. The defendants therefore petitioned the court, that according to ancient precedents, they might sign their answer with their own hands; declaring that they would abide by the censure of the court, if they did not make good everything that was contained therein. The court, however, refused their request. The defendants at length prevailed on Holt, a bencher of Gray's Inn, to sign their answer; but he afterwards erased his signature, because no other counsel could be found of courage enough to add their names. The defendants then tendered their answer to the court, desiring it might be accepted as it was, or Holt commanded to sign it anew. The court ordered that it might be received under the hand of Holt alone; who was accordingly induced to restore his name, and the answer was lodged in due form.
After the answer had lain in court nearly three weeks, on the Attorney-General's suggestion to the court, that the matter of it was scandalous, it was referred to the Chief Justices, Sir John Branston, and Sir John Finch, to consider of and expunge whatever they should think unfit to be brought into court, or otherwise impertinent. They expunged sixty-four whole sheets; that is, the whole answer, except six lines at the begining, and about twenty-four at the end.
The defendants, on being informed that the greater part of their answer had been expunged, refused to recognise what remained, as containing the substance of their defence to the information; and when brought to the bar, 14th June, 1636, as there appeared no answer on the record, the court proceeded, as in case of contempt, to pronounce sentence.
The defendants cried out for justice, demanded that their answer should be read, and protested against being condemned unheard.
The chamber were deaf to all their remonstrances, and went on to deliver judgment, in a style so vindicatory of the national vengeance which ultimately followed the intolerable proceedings of this court, that it may not be without its patriotic ends, to extract a few specimens. We select those which refer particularly to the case of Prynne, whose offence was, the publication of his 'Histriomastix, or a Scourge for Stage Players.'
Lord Cottington, Chancellor of the Exchequer, declared, that Prynne, in writing the book, was surely assisted immediately by the devil himself, or rather assisted the devil. He thought that it was the height of mercy in the king, that Mr. Prynne was not destroyed.
Lord Chief Justice Richardson. For the book, I do hold it a most scandalous infamous libel against the king's majesty, and against the queen's majesty, a most excellent and gracious queen, such an one as the kingdom never enjoyed the like, and I think the earth never had a better. If I were in my proper place, and Mr. Prynne brought before me, I should go another way to work. I protest unto your lordships, it maketh my heart to to boil, so swell, and the blood in my veins cold as I am, to see this or anything attempted which may endanger my gracious Sovereign; it is to me the greatest comfort in this world to behold his prosperity.
The Earl of Dorset, who was by no means in general so violent a man as some of the other members of the court, after tracing the book like the rest, to the direct inspiration of the devil, and perverting various passages of Scripture to the purpose of the abuse of Prynne, whom he compared to 'the mutineers against Moses and Aaron,' burst out into the following rhapsody.
'I may say of you, (addressing the prisoner) you are all purple within, all pride, malice, and all disloyalty. You are like a tumbler, who is commonly squint-eyed; you look one way and run another way. Though you seemed, by the title of your book, to scourge stage-plays, yet it was to make people believe there was an apostasy in the magistrates. But, my lords, admit all this to be venial and pardonable, this pigmy groweth a giant, and invades the gods themselves; where we enjoy this felicity under a gracious prince with so much advantage as to have the light of the gospel, whilst others are kept in darkness, the happiness of the recreations to the health of the body, the blessed government we now have. When did ever church so flourish, and state better prosper? And, since the plagues happened, none have been sent among us such as this caterpillar is. What hath opened his anger? or who hath let out his fury? When did ever man see such a quietus est as in these days? Yet, in this golden age, is there not a Shemei amongst us that curseth the anointed of the Lord? So puffed with pride, nor can the beams of the sun thaw his frozen heart, and this man appeareth yet. And now, my lords, pardon me, as he hath wounded his majesty in his head, power, and government, and her majesty, his majesty's dear consort, our royal queen, and my gracious mistress. I can spare him no longer; I AM AT HIS HEART.
The earl then proceeded on the same merciful strain to express his doubts, whether the prisoner should be burnt in the forehead, or slit in the nose; and at last voted for both punishments, with the addition of cutting off his ears, in order, as he said, that Prynne, being a Puritan, might be obliged to let his hair grow on each side of his head, or wear a wig; either of which comfortable practices was held to be a fearful abomination in the eyes of his sect.
A sentence very little inferior in point of severity to that recommended by the Earl of Dorset, was actually inflicted upon the defendants. They were fined £5000 each; and condemned to be set on the pillory, and there to have their ears cut off!
Mr. Hume, who appears to have undertaken 'the splendid enterprise,' as he terms it, of vindicating the fame of Charles, is pleased to characterize the barbarous sentence against Prynne and his fellow sufferers, as 'perhaps in itself somewhat blameable;' and endeavours to account for the feelings that it excites in our minds, as altogether the effect of our more enlarged notions of freedom and personal security. That much of our surprise, and perhaps of our indignation, is to be traced to this cause, must be allowed. The greater, and more habitual and fixed, our securities against oppression, the more acute must be our sensibility in the perusal of the sufferings its victims. But the voice of the Parliament, which afterwards rescinded the sentence against Prynne, Bastwick, and Burton, as arbitrary, unconstitutional, and unjust, and decreed them reparation from their Judges, we undoubted and unequivocal proofs, that our ancestors viewed these proceedings of the Star Chamber as illegal and cruel, though their notions on such subjects may have been more unsettled, and their feelings less acute, than ours.
The sufferings of these resolute men did not terminate with the barbarities ordained in their sentence. They went even far beyond it; for not only were they by warrant of the and counsel. separately confined in Ens in the Isles of Scilly, Guernsey, and Jersey, instead of other prisons which were named in their sentence; but it was ordered, that none should approach them without permission, that they should be denied the use of ink, or paper, or any books, but such as were consonant to the doctrine and discipline of the Church of England; that all letters sent to them, should be opened; and that the wives of Burton and Bastwick, should not so much as land in the islands where they were confined, under pain of imprisonment: Nay, so great were the rage and terror of the government, from their influence on the public mind, and the commiseration excited by their fate, that some of Prynne's friends, who found means to get access to him on his way to Carnarvon Castle, the first place of his concealment, were, for that offence, fined to their utter ruin.
We cannot forbear adding to the rather lengthened notice which we have given of these proceedings, the following pleasing account of the return of these victims of tyranny, when the voice of an indignant people, roused to the redress of such intolerable cruelty, could no longer be suppressed. The picture by the masterly hands of Clarendon, a painter by no means disposed to represent any of these persons in very flattering colours.
'Prynne and Burton, being neighbours (though in distant islands), landed at the same time at Southampton, where they were received and entertained with extraordinary demonstrations of affection and esteem, attended by a marvellous conflux of company; their charges, not only borne with great magnificence, but liberal presents given to them. And this method and ceremony kept them company all their journey, great herds of people meeting them at their entrance into all towns, and waiting upon them out with wonderful acclamations of joy. When they came near to London, multitudes of people of several conditions, some on horseback, others on foot, met them some miles from the town, very many having been a day's journey; and they were brought about two of the clock in the afternoon in at Charing Cross, and carried into the city by above ten thousand persons, with boughs and flowers in their hands, the common people strewing flowers and herbs in the way as they passed, making great noise and expressions of joy for their deliverance and return; and in those acclamations, mingling loud and virulent exclamations against the bishops, "who had so cruelly persecuted such godly men." In the same manner, within five or six days after, and in like triumph, Dr. Bastwick returned from Scilly, landing at Dover; and from thence bringing the same testimonies of the affections and zeal of Kent, as the others had done from Hampshire and Surrey, was met, before he came to Southwark, by the good people of London, and so conducted to his lodgings likewise in the city.'
The mutual assistance which the king and the hierarchy gave to each other, previous to the establishment of the commonwealth, in promoting their several schemes against the civil and religious liberties of the people, was not more remarkable, than the consequences were natural and inevitable. Nothing but a steady determination to carry the authority of the bishops the full length of their most extravagant pretensions, could have occasioned the proceeding against Sherfield, the Recorder of Salisbury, who was committed to the Fleet, fined £5oo, and ordered to make a public apology to the Bishop of Sarum, for the 'great crime,' as it was termed in the information, of breaking a painted glass-window of a church, against the positive injunctions of the said bishop, and in opposition to the church government established by the laws.' The court of Star Chamber sat several days in grave deliberation on this weighty cause; and Laud, ever at his post when the hierarchy was in danger, was loud, and long, and vehement, for punishment; and he and Wentworth, who afterwards paid so dearly for deserting the cause of the people, voted for the severest sentence that was proposed. The Attorney-General, the celebrated Noy, made a great appearance on this occasion. We present our readers (from his speech) with the following exquisite piece of reasoning on the dangers of reform, in order to prove that wise men have, in other ages, argued exactly as our most approved statesmen of the present day on this alarming subject, and that even the proceedings of a vestry are not below the attention of a vigilant government.
'My lords, there is a great deal of difference between repairing and reforming - reformation ought to be made always by the supreme power, not by private men; but, when private persons or a vestry will take upon them reformation, I make bold to say, it is the high way to pull all out of order with their reformation. Something was said, as if the reason why the window should be taken down was, because the painting darkened the church; but, if this had been all, I should not have spoken much against it. But it was done for reformation - his conscience could not bear it. If it should be lawful for private men to do thus much, what will they do next?'
Trial of Charles I.
Whitelocke and Clarendon relate, that at the trial of King Charles, on the name of Lord Fairfax, which stood foremost in the list of his Majesty's judges, being called, no answer was made; his lordship having chosen to absent himself. The Crier having called him a second time, a bold voice was heard to exclaim, 'He has more wit than to be here.' The circumstance threw the court into some disorder; and some person asking who it was that thus presumed to disturb the court, there was no answer but a little murmuring. But presently, when the impeachment was read, and that expression used, of 'All the good people of England,' the same voice in a louder tone exclaimed, 'No, nor the hundredth part of them.' On this, one of the officers desired the soldiers 'to give fire into that box whence the presumptuous words were uttered.' But it was quickly discovered that it was the General (Lord Fairfax's) wife, who had uttered both these sharp sayings, who was presently persuaded or forced to leave the place, to prevent any new disorder. 'Lady Fairfax,' says Clarendon, 'having been educated in Holland, had little reverence for the Church of England, and so had unhappily concurred in her husband's entering into the rebellion, never imagining what misery it would bring on the kingdom; and now abhorred the work in hand as much as anybody could do, and did all she could to hinder her husband from acting any part in it.'
Frank Leeson was the only son of a country gentleman in Ireland, who possessed a small estate Of £3oo a year, but who was not remarkable for the proper management of it. Old Mr. Leeson was, in consequence, involved in perpetual difficulties, and was upon the eve of being thrown into prison, when he was saved from that disgrace by the affectionate conduct of his son. Frank, to an excellent understanding, joined a very handsome person, which attracted the regards of a young lady, with an independent fortune of £8ooo. But Frank being attached to another whose beauty and merit were her only recommendation, had hitherto declined to profit by the lady's partiality. When he saw, however, that there was no method of saving an infirm father and mother from poverty and bondage, the force of his filial affection got the better of his love; he tore himself away from the woman he adored, and married the lady of fortune. With this money he paid all the old gentleman's debts, and entered the world with a degree of reputation, considerably superior to the generality of his acquaintance.
As nothing could separate Frank and his parents, the whole family lived together for some time in the most perfect harmony under the same roof; and the severity of their former situation producing a necessary regulation in their expenses, they were every day rising no less in opulence than in felicity; when an unexpected misfortune left them, in the moment of their utmost security, without shelter and without bread. Old Mr. Leeson finding his health very much impaired, and moreover conceiving a disgust from the ingratitude of his former associates, he resolved, with the concurrence of his son, to dispose of his estate, and make an adequate purchase in the neighbourhood of Dublin, where he might have an opportunity of consulting the best physicians, and establishing a more agreeable circle of acquaintance. Pursuant to this plan, he sold every acre he possessed, received the money in bills, and was preparing to set off for another part of the kingdom, when an accidental fire reduced his habitation to a heap of ashes, destroyed all his effects, and gave him scarcely a moment for the preservation of his family.
Frank, whose property was also in bills, and packed up ready for the intended departure, lost all in the general calamity, and was obliged, together with his father, his mother, and his wife, to take refuge at a neighbouring gentleman's for a few days, till they were in a capacity for reaching the metropolis, where Frank expected from some letters which he obtained to the Lord Lieutenant, to procure a little establishment either in the army, or in the public offices.
On the arrival of the unfortunate family in Dublin, young Leeson applied himself industriously to profit by his recommendations; but, though he met with civility, he could obtain no relief; every fresh application gave him nothing but reason to lament the miserable prospect before him; and while he was continually cheering every bosom at home with the speedy expectation of halcyon days, he had nothing but despair in his. At length destruction became too evident to be concealed. His father, who was now confined to his bed, had been a whole day without sustenance, and young Mrs. Leeson was every hour trembling lest the pains of parturiency should oblige her to solicit the charitable assistance of the public. Thus situated, torn with a thousand pangs for a wife who possessed his highest esteem, for a father whom he almost worshipped, and for a mother whom he tenderly loved, Frank sallied out one evening into the streets, and stopped a gentleman whose appearance indicated opulence; he demanded his money with such a wildness of accent, that the gentleman was so terrified, as to give him without resistance a purse containing fifty guineas, with which Franck retreated to his lodgings, where he deposited the money with his father, telling him he had received it on the Lord Lieutenant's order, as an earnest only of future services. The family, not doubting the truth of this relation, poured out their unfeigned acknowledgments of the Viceroy's goodness, and once more refreshed themselves with a comfortable repast.
Next morning, the robbery became noised abroad, and to the greatest surprise of everybody, a merchant of the fairest character and fortune was apprehended for the fact, and lodged in prison. On the earliest knowledge of this circumstance, Frank immediately wrote to the innocent gentleman, desiring him to be under no apprehension, for if he was not honourably acquitted, the person actually guilty, would, on the day of trial, appear in court, acknowledge his crime, and surrender himself to the violated laws of his country. The gentleman naturally read this letter to everybody that came to see him; but though such as were his friends talked of it as a most extraordinary affair, the generality of people considered it as a despicable artifice, to impose on the credulity of the public.
The day of trial at last came; and notwithstanding the merchant's character appeared irreproachable, before this unfortunate occurrence; notwithstanding several persons off the highest rank proved him to be a man of remarkably nice principles, and very opulent, the prosecutor was so positive in his charge, and a number of circumstances so surprisingly concurred to give it weight, that he was actually convicted. It only remained for the judge to pronounce sentence of death upon him. At this awful moment, a loud noise of 'make way! make way!' ran through the court, and young Leeson, with a manly, yet modest countenance, rushing forward and demanding to be heard, delivered himself to the following effect:
'You see before you, my lord, an unhappy young man, who once little thought of violating the laws of his country, and who wished rather to be the friend than the enemy of Society; but who knows to what he may be urged in the hour of piercing calamity - to what he may be brought when destitute of friends and destitute of bread? I, my lord, was born a gentleman. and bred one; six months ago I was possessed of an easy fortune, but an accidental fire has reduced me in a moment to beggary, and, what is still more distressing, reduced also an infirm and aged father, an aged and tender mother, together with the best of women, to the same lamentable situation. Encouraged by some recommendations to the great, we came up to town, and expected a decent means of procuring a subsistence; but, alas! my lord; those who want compassion most are those who are most disregarded. Instead of assistance, we received compliments, and met with the bows of frigid politeness where we looked for the bounteous hand of relief; so that in a little time our all was exhausted, and my wretched father, and the venerable partner of his youth, were above a day without any sustenance whatever; when, unable to see them expiring for food, I rushed forward, and committed the robbery for which this gentleman, now a prisoner at the bar, has been convicted.
This was not the whole of my affliction. A fond, deserving wife, who had brought me a plentiful fortune, lay also perishing with hunger, and that too in a situation which demanded the tenderest attention, and the most immediate regard. Such, my lord, were my motives for the unjustifiable action. Had the gentleman condemned been happily acquitted, I had not made this public acknowledgment of my guilt. Heaven only knows what I have suffered during his confinement! but the Empire of the Universe would not bribe me to injure him further, nor tempt me, by an infamous sacrifice of his life, to consult the safety of my own. Here then, my lord, I claim his sentence, and demand his bonds. Providence will, I doubt not, now take care of my innocent family, who are equally ignorant of my crime and of my self-accusation. For my own part, I am resigned; and I feel nothing in consequence of my approaching fate, but from what I am sensible they must feel on my account.'
Here young Leeson ended, and the whole court was lost in approbation and in tears. He was, however, condemned and pardoned the same day; and his character suffered so little on the occasion, that the Lord Lieutenant gave him with his life a place Of £700 sterling a year; while the merchant who had been accused, from resembling him strongly, dying some time after without heirs, left Frank his whole fortune, as a reward for so exemplary an act of justice and generosity.
The orator Domitius was once in great danger from an inscription which he had put upon a statue erected by him in honour of Caligula, wherein he had declared that that prince was a second time Consul at the age of twenty-seven. This he intended as an encomium; but Caligula taking it as a sarcasm upon his youth, and his infringement of the laws, raised a process against him, and pleaded himself in person. Domitius, instead of making a defence, repeated part of the emperor's speech with the highest marks of admiration, after which he fell upon his knees, and begging pardon, declared that he dreaded more the eloquence of Caligula than his imperial power. This piece of flattery succeeded so well, that the emperor not only pardoned, but also raised him to the Consulship.
The Church and the Bar.
Sir Eardley Wilmot having requested the assistance and advice of Bishop Warburton, on the occasion of one of his sons (the late benevolent J. E. Wilmot, Esq., distributor of relief to the French refugees) preparing himself for the church, the bishop complied, and sent him the first part of some 'Directions for the Study of Theology,' which have since been published in Warburton's Works. Circumstances afterwards induced his son to go into the profession of the law; on which Sir Eardley, in 1771, made the following endorsement on the bishop's paper:- 'These directions were given me by Dr. Warburton, Bishop of Gloucester, for the use of my son, when he proposed to go into orders; but in the year 1771 he unfortunately preferred the bar to the pulpit; and instead of lying on a bed of roses, ambitioned a crown of thorns. Digne puer meliore flamma.
John Doe and Richard Roe.
In the year 1724, a Frenchman of the name of Louissart Houssart was tried at the Old Bailey for the murder of his wife, and acquitted, but detained in custody on a charge of bigamy. An appeal was brought against him by the brother of the deceased, and he was brought to a second trial, when some new evidence being produced, he was found guilty, and afterwards executed. It is remarkable that in this case the prisoner made some objections to the plea, which were referred to the jury, who decided against him on them all. One of the prisoner's objections was, that 'there were no such persons as John Doe and Richard Doe, who are mentioned as pledges in the appeal;' but a witness deposed that there were two such persons then living in Middlesex, one being a weaver, and the other a soldier.
In a trial for murder in Hertfordshire, in the reign of Charles I., among other evidence that the person had not committed suicide, but was murdered, a witness stated that there was the print of a thumb and four fingers of a left hand, in blood, upon the body.
Sir Nicholas Hyde, Chief Justice. How can you know the print of a left hand, from the print of a right hand, in such a case?
Witness. My lord, it is hard to describe but if it please that honourable judge to put his left hand upon your left hand, you cannot possibly place your right hand in the same posture. The judges did so accordingly, and the fact was found to be as stated by the witness.
Three of the persons indicted for the murder were found guilty and executed.
In all the principal trials for high treason that took place in Ireland during the professional life of Mr. Curran, he was generally engaged for the prisoners, and was always successful, where success was attainable by talents or by circumstances. In the defence of the deluded insurgents of 1803, when the respected Lord Kilwarden was assassinated, he exerted the utmost power of skill and eloquence; but the facts were too strong to be overturned by either talents or ingenuity. Though never deficient in ardour for the cause of his client, it is probable that in this cause Mr. Curran felt a more than usual interest. Mr. Robert Emmet, the projector of the insurrection, had been bred to the bar, and was a friend of Mr. Curran's family. He had formed an attachment to his youngest daughter unknown to her father; nor was he aware of it until some letters found on Emmet led to a search of Mr. Curran's house, where some of Emmet's letters were found. This gave Mr. C. the first intimation of the melancholy attachment, in which one of his children had been involved.
Mr. Emmet conducted himself during the trial with the utmost firmness, denying no other part of the crime with which he was charged, than that of being an emissary of France, which he repelled with much feeling. When he was called upon to say, why sentence of death should not be passed upon him? he addressed the court and jury in nearly the following terms:
'I am asked,' said he, 'if I have anything to say, why sentence of death should not be pronounced upon me? Was I to suffer only death after being adjudged guilty, I should bow in silence; but a man in my situation, has not only to combat with the difficulties of fortune, but also the difficulties of prejudice; the sentence of the law, which delivers over his body to the executioner, consigns his character to obloquy. The man dies, but his memory lives; and that mine may not forfeit all claim to the respect of my countrymen, I use this occasion to vindicate myself from some of the charges advanced against me. I am charged with being an emissary of France: 'tis false! I am no emissary. I did not wish to deliver up my country to a foreign power, and least of all France. No! never did I entertain the idea of establishing French power in Ireland. God forbid! Small would be our claims to patriotism and to sense, and palpable our affectation of the love of liberty, if we were to encourage the profanation of our shores by a people who are slaves themselves, and the unprincipled and abandoned instruments of imposing slavery on others. How could we assume such an exalted motive, and meditate the introduction of a power which has been the enemy of freedom in every part of the globe? Reviewing the conduct of France to other countries; could we expect better towards us? No! let not then any man attaint my memory, by believing that I could have hoped freedom through the aid of France, and betrayed the sacred cause of liberty, by committing it to the power of her most determined foe. Had I done so, I had not deserved to live; and dying with such a weight upon my character, I had merited the honest execration of the country that gave me birth. Had I been in Switzerland, I would have fought against the French in the dignity of freedom; I would have expired on the threshold of that country, and they should have entered it only by passing over my lifeless corpse. Is it then to be supposed, that I would be slow to make the same sacrifice to my native land? Am I then to be loaded with the foul and grievous calumny of being an emissary of France? My lords, it may be part of the system of angry justice to bow a man's mind by humiliation, to meet the ignominy of the scaffold, but worse to me than the scaffold's shame, or the scaffold's terrors, would be the imputation of having been the agent of French despotism and ambition; and while I have breath, I will call upon my countrymen, not to believe me guilty of so foul a crime against their liberties and their happiness. Though you, my lord, sit there a judge, and I stand here a culprit, yet you are but a man, and I am another; I have a right, therefore, to vindicate my character and motives, from the aspersions of calumny; and as a man, to whom fame is dearer than life. I will make the last use of that life in rescuing my name and memory from the afflicting imputation of having been an emissary of France. Did I live to see a French army approach this country, I would meet it on the shore with a torch in one hand, and a sword in the other. I would receive them with all the destruction of war! I would animate my countrymen to immolate them in their very boats; and before our native soil should be polluted by a foreign foe, if they succeeded in landing, I would burn every blade of grass before them, raze every house, contend to the last for every inch of ground, and the last spot on which the hope of freedom should desert me, that spot would I make my grave!' After some further observations, he thus pathetically concluded: 'My lamp of life is nearly expired; my race is finished: the grave opens to receive me, and I sink into its bosom. All I request, then, at parting from the world, is the charity of its silence. Let no man write my epitaph, for as no man who knows my motives dare vindicate them, let not prejudice or ignorance asperse them; let them and me repose in obscurity and peace, and my tomb remain undescribed, till other times and other men can do justice to my character.'
Breach of Promise of Marriage.
The case of Blake against Wilkins, tried at the Galway Spring Assizes for 1817, merits recollection, as perhaps one of the best calculated on record, to cover with deserved ridicule the abuse of a species of action which ought to be very seldom brought, and very sparingly encouraged. The plaintiff was a lieutenant in the navy, not above thirty years of age; the defendant was at least sixty-five, and was the well-jointured widow of the staff physician, in whose arms General Wolfe expired at the siege of Quebec. The plaintiff's case having been gone through, Mr. Phillips addressed the jury on the part of Mrs. Wilkins, in a speech of great felicity, both for its eloquence and wit.
'It has been left to me,' said Mr. Phillips, 'to defend my unfortunate old client from the double battery of love and of law, which, at the age of sixty-five, has so unexpectedly opened on her. Oh, gentlemen! how vainglorious is the boast of beauty! How misapprehended have been the charms of youth if years and wrinkles can thus despoil their conquests, and depopulate the navy of its prowess, and beguile the bar of its eloquence! How mistaken were all the amatory poets, from Anacreon downwards, who preferred the bloom of the rose and the thrill of the nightingale, to the saffron hide and dulcet treble of sixty-five!
'Almighty love eclipsed the glories of ambition. Trafalgar and St. Vincent flitted from the defendant's memory; he gave up all for woman, as Mark Antony did before him; and like Cupid in "Hudibras," he
' --- took his stand
Upon a widow's jointure land -
His tender sigh, and trickling tear,
Long'd for five hundred pounds a year;
And languishing desires were fond
Of statute, mortgage, bill, and bond!!'
Oh, gentlemen! only imagine him on the lakes of North America - alike to him the varieties of season, or the vicissitudes of warfare. One sovereign image monopolises his sensibilities. Does the storm rage? The Widow Wilkins outsighs the whirlwind. Is the ocean calm? Its mirror shows him the lovely Widow Wilkins. Is the battle won? He thins his laurel, that the Widow Wilkins may interweave her myrtles. Does the broadside thunder? He invokes the Widow Wilkins.
'A sweet little Cherub she sits up aloft,
To keep watch for the life of poor Peter!'
Alas, how much is he to be pitied! How amply he should be recompensed! Who but must mourn his sublime, disinterested, sweet-souled patriotism! Who but must sympathise with his pure, ardent, generous affection!
'Like the maniac in the farce,' continued the orator, 'he fell in love with the picture of his grandmother. Like a prince of the blood, he was willing to woo and to be wedded by proxy. For the gratification of his avarice, he was contented to embrace old age, disease, infirmity, and widowhood; to bind his useful passions to the carcase for which the grave was opening; to feed by anticipation on the uncold corpse, and cheat the worm of its reversionary corruption. Educated in a profession proverbially generous, he offered to barter every joy for money! Born in a country ardent to a fault, he advertised his happiness to the highest bidder! and he now solicits an honourable jury to become the panders to this heartless cupidity! Thus beset, harassed, conspired against, their miserable victim entered into the contract you have heard; a contract conceived in meanness, extorted by fraud, and sought to be enforced by the most profligate conspiracy.
'Is this the example which, as parents, you would sanction? Is this the principle you would adopt yourselves? Have you never witnessed the misery of an unmatched marriage? Have you never worshipped the bliss by which it has been hallowed, when its torch kindled at affection's alter, gives the noon of life its warmth and its lustre, and blesses its evening with a more chastened, but not less lovely illumination? Are you prepared to say, that this rite of heaven, revered by each country, cherished by each sex; the solemnity of every church, and the SACRAMENT Of One, shall be profaned into the ceremonial of a souldegrading avarice?
'In the case before you, is there the slightest ground for supposing any affection? Do you believe that, if any accident bereft defendant of her fortune, the prosecutor would be likely to retain his constancy? Do you believe that the marriage thus sought to be enforced, was one likely to promote morality and virtue? Do you believe that those delicious fruits by which the struggles of social life are sweetened, and the anxieties of parental care alleviated, were ever once anticipated? Do you think that such an union could exhibit those reciprocities of love and endearments, by which this tender rite should be consecrated and recommended? Do you not rather believe that it originated in avarice; that it was promoted by conspiracy; and that it would perhaps have lingered through some months of crime, and then terminated in an heartless and disgusting abandonment?
'Gentlemen, these are the questions which you will discuss in your jury-room. I am not afraid of your decision. Remember, I ask you for no mitigation of damages. Nothing less than your verdict will satisfy me. By that verdict you will sustain the dignity of your sex; by that verdict you will uphold the honour of the national character; by that verdict you will assure not only the immense multitude of both sexes that thus so unusually crowds around you, but the whole rising generation of your country, that MARRIAGE CAN NEVER BE ATTENDED WITH HONOUR, OR BLESSED WITH HAPPINESS, IF IT HAS NOT ITS ORIGIN IN MUTUAL AFFECTION. I surrender with confidence my case to your decision.'
A burst of applause, which continued for some minutes, followed the delivery of this speech; every individual in court, even those opposed to Mr. Phillips, bore this strong testimony to the delight and admiration he excited.
The damages were laid at £5000; and the plaintiff's counsel were, in the end, contented to withdraw a juror, and let him pay his own costs.
In an Act of Parliament made in 1815, entitled 'An Act for the better regulating the practice of Apothecaries,' there is a very salutary clause, which enacts, 'that from and after the first day of August, 1815, it shall not be lawful for any person (except. persons already in practice as such) to practise as an apothecary in any part of England or Wales, unless he or they shall have been examined by the Court of Examiners of the Apothecaries' Company, and shall have received a certificate as such.'
The first conviction under this Act took place at the Staffordshire Lent Assizes of 1819, before Sir William Garrow, when the Apothecaries' Company brought an action against a man of the name of Warburton, for having practised as an apothecary without being duly qualified. The defendant it appeared was the son of a man, who in the early part of his life had been a gardener, but afterwards set up as a cow leech. The facts were stated by Mr. Dauncey for the prosecution, and supported by evidence.
Mr. Jervis, for the defence, called the father of the defendant, Arnold Warburton, to prove that he had practised as an apothecary before the passing of the Act.
Cross-examined by Hr. Dauncey.
Mr. Dauncey. Mr. Warburton, have you always been a surgeon?
Witness appealed to the judge whether this was a proper answer.
The Judge. I have not heard any answer; Mr. Dauncey has put a question.
Witness. Must I answer it?
Judge. Yes: why do you object?
Witness. I don't think it a proper answer.
Judge. I presume you mean question, and I differ from you in opinion.
The witness not answering, Mr. Dauncey repeated - Have you always been a surgeon?
Witness. I am a surjent.
Dauncey. Can you spell the word you have mentioned?
Witness. My lord, is that a fair answer?
Judge. I think it a fair question.
Witness. 'S y u r g u n t.'
Mr. Dauncey. I am unfortunately hard of hearing; have the goodness to repeat what you have said, sir.
Witness. ' S u r g e n d.'
Mr. Dauncey. S-, what did you say next to S, sir?
Witness. 'S y u r g u n d.'
Mr. Dauncey. Very well, sir, I am perfectly satisfied.
Judge. As I take down the word sur-, please to favour me with it once more.
Witness. ' S u r g u n t.'
Judge. How, sir?
Witness. 'S e r g u n d.'
Judge. Very well.
Mr. Dauncey. Sir, have you always been what you say? that word, I mean, which you have just spelt? (A long pause.)
Mr. Dauncey. I am afraid, sir, you do not often take so much time to study the cases which come before you, as you do to answer my question. - 'I do not, sir.' 'Well, sir, will you please to answer it?' (A long pause, but no reply.) - Well, what were you originally, Doctor Warburton?'
Witness. 'Syurgend.' 'When you first took to business, what was that business? Were you a gardener, Doctor Warburton?' - 'Surgent.' 'I do not ask you to spell that word again; but before you were of, that profession, what were you?' - 'S e r g u n t.'
Mr. Dauncey. My lord, I fear I have thrown a shell over this poor man, which he cannot get rid of.
Judge. Attend, witness; you are now to answer the questions put to you. You need not spell that word any more.
Mr. Dauncey. When was you a gardener?
Witness. I never was. The witness then stated, that he never employed himself in gardening; he first was a farmer, his father was a farmer. He (witness) ceased to be a farmer fifteen or sixteen years ago; he ceased because he had then learnt that business which he now is. 'Who did you learn it of?' 'Is that a proper question, my lord?' 'I see no objection to it.' - 'Then I will answer it; I learnt of Dr. Hulme, my brother-in law; he practised the same as the Whitworth Doctors, and they were regular physicians.
Mr. Dauncey. Where did they take their degrees?
Witness. I don't believe they ever took a degree.
'Then were they regular physicians?'
No! I believe they were not, they were only doctors.' - 'Only doctors! were they doctors in law, physic, or divinity?' - 'They doctored cows, and other things, and humans as well.' 'Doubtless, as well: and you, I doubt not have doctored brute animals as well as human creatures ?' - 'I have.'
Judge to Witness. 'Did you ever make up any medicine by the prescription of a physician?' - 'I never did.' 'Do you understand the characters they use for ounces, scruples, and drachms?' - 'I do not.' 'Then you cannot make up their prescriptions from reading them?' - 'I cannot, but I can make up as good medicines in my way, as they can in theirs.' 'What proportion does an ounce bear to a pound?' - [A pause] - 'There are 16 ounces to the pound, but we do not go by any regular weight, we mix ours by the hand.' 'Do you bleed?' - 'Yes.' 'With a fleam or with a lancet?' - 'With a lancet.' 'Do you bleed from the vein or from the artery?' - 'From the vein.' 'There is an artery somewhere about the temples; what is the name of that artery?' - 'I do not pretend to have so much learning as some have.' 'Can you tell me the name of that artery?' - 'I do not know which you mean.' 'Suppose, then, I was to direct you to bleed my servant: or my horse (which God forbid) in a vein, say for instance in the jugular vein, where should you bleed him?' - 'In the neck, to be sure.'
I would take everything as favourably, for the young man as I properly can, but here we have ignorance greater perhaps than ever appeared in a court before, as the only medium of education which this defendant can possibly have received in his profession.
Several other witnesses were examined for the defence.
Baron Garrow, in summing up, observed, that this was a question of considerable importance to the defendant in the cause, on whose future prospects it must necessarily have great influence; and it was of the last importance to the public. The learned judge commented strongly on the ignorance of the defendant's father, a man more ignorant than the most ignorant that they had ever before heard examined in any court. Was this man qualified for professing any science, particularly one in which the health and even the lives of the public were involved? Yet through such an impure medium alone had the defendant received his knowledge of this profession. There was not the least proof of the defendant having for a single minute been in a situation to receive instruction from any one really acting as an apothecary. If the jury thought that the defendant had acted as an apothecary before the time mentioned in the Act, they would find a verdict for him; but otherwise. they would find for the plaintiffs in one penalty. The jury almost instantly returned a verdict for the plaintiffs.
Sir Thomas More.
Sir Thomas More, Chancellor of England in the reign of Henry VIII., and one of the most illustrious characters of that period, when called to the bar, became so eminent in the practice of the law, that there was scarcely a cause of importance tried in which he was not concerned. He was so scrupulous withal in the suits he undertook, that it was his constant method, before he took any cause in hand, to investigate the merits of it. If he thought it unjust, he refused it; and was thus wont to make it his boast, that he never earned a fee but with a good conscience. He would at the same time endeavour to reconcile the parties, and persuade them not to litigate the matter in dispute. When he was not successful in this advice, he would direct the parties how to proceed in the least expensive and least troublesome course.
From his 'Utopia,' indeed, it may be seen, that he deemed it nothing short of deliberate wickedness to act otherwise; yet to judge candidly of his merit in this respect, it is but fair to recollect that every case must have its right side, and that a barrister who has risen to such eminence as to have his choice of sides, can have little to boast of in preferring the best. Had all the contemporaries of More been as scrupulous as he was, to what would his gains, 'with a good conscience,' have amounted? It might be no difficult task indeed to shew, that the merit to which this Utopian lawyer laid such special claim, is without any solid foundation. Who does not see, that to make it a system that lawyers shall only advocate such causes as they conscientiously believe to be just, would, in other words, be to supersede courts of justice altogether? And who is prepared to say, that it is right or proper, that any such mode of granting licences to go to law should be interposed between the subject and that most valuable of all his privileges, the privilege of appealing to the decision of a jury of his countrymen?
About 1516, Sir Thomas went to Flanders with Tonstal, Bishop of Durham, and Dr. Knight, Commissioners for renewing the treaty of alliance between Henry VIII. and Charles V., then Archduke of Austria. While at Bruges, a conceited scholar issued a challenge, that he would answer any question which could be proposed to him in any art whatsoever. Sir Thomas immediately caused the following to be put up: 'An averia capta in withernamia sint irreplegiabilia?' An intimation was added, that there was one of the English ambassador's retinue who was ready to dispute with the challenger upon the question. The challenger however not understanding these terms of our common law, knew not what to answer, and became thus a laughingstock to the whole city.
It is probable enough, however, that this challenger might have been a very general disputant and a good logician, as logic was then understood, without understanding the barbarous jargon of More's question. The English, or at least the meaning of it, is, 'Whether cattle taken in withernam (a writ to make reprisals on one who has wrongfully distrained another man's cattle, and drove them out of the country) be irrepleviable?'
When Sir Thomas was promoted to be Lord Chancellor, he considered the poor as especially entitled to his protection. He always spoke kindly to them, and heard them patiently. It was his general custom to sit every afternoon in his open hall, and if any person had a suit to prefer, he might state the case to him without the aid of bills, solicitors, or petitions. And such was his impartiality, that he gave a decree against one of his sons-in-law, Mr. Heron, whom he in vain urged to refer the matter to arbitration, and who presumed upon his relationship. He was also so indefatigable, that although he found the office filled with causes, some of which had been pending for twenty years, he despatched the whole within two years; and calling for the rest, was told that there was not one left; a circumstance which he ordered to be entered on record, and which has been thus wittily versified :
'When More some years had Chancellor been,
No more suits did remain;
The same shall never more be seen
Till More be there again.'
When the tyrant Henry assumed the title of the Head of the Church, he sealed it with the blood of numerous victims to the jealousy of his power, among whom were those illustrious men, Fisher, Bishop of Rochester, and the Chancellor, Sir Thomas More. This great and good man was placed a prisoner at the bar of that court, in which he had formerly presided as judge with so much credit. To make the greater impression, he was conducted on foot through the most frequented streets, from the Tower to Westminster Hall. He appeared in a coarse woollen gown; his hair, which had lately become grey; his face, which though, cheerful, was pale and emaciated; and the staff with which he supported his feeble steps, announced the length and rigour of his confinement; and a general feeling of horror and sympathy ran through the spectators. Henry dreaded the effect of his eloquence and authority; and therefore, to distract his attention and overpower his memory, the indictment had been framed of enormous length and unexampled exaggeration, multiplying the charges without measure, and clothing each charge with a load of words, beneath which it was difficult to discover its real meaning. As soon as it had been read, the Chancellor, who was assisted by the Duke of Norfolk; Fitzjames, the Chief Justice; and six other commissioners, informed the prisoner that it was still in his power to close the proceedings, and to recover the royal favour, by abjuring his former opinion. With expressions of gratitude he declined the favour, and commenced a long and eloquent defence. But neither innocence nor eloquence could avert his fate. Rich, the Solicitor-General, and afterwards Lord Rich, deposed, that in a private conversation in the Tower, More had said, 'the Parliament cannot make the king head of the church, because it is a civil tribunal without any special authority.' It was in vain that the prisoner denied this statement, showing that such a declaration was inconsistent with the caution which he had always observed, and maintaining that no one acquainted with the former character of Rich would believe him, even upon his oath. It was in vain that the two witnesses who were brought to support the charge, eluded the expectation of the accuser, by declaring that, though they were in the room, they did not attend to the conversation; the judges maintained, that the silence of the prisoner was a sufficient proof of malicious intention; and the jury, without reading over the copy of the indictment which had been given to them, returned a verdict of Guilty. As soon as the sentence had been pronounced, More attempted, and, after two interruptions, was suffered to address the court. He would now, he said, openly avow what he had hitherto concealed from every human being, his conviction that the oath of supremacy was unlawful. It was, indeed, painful to him to differ from the noble lords whom he saw on the bench; but his conscience compelled him to bear testimony to the truth. This world, however, had always been a scene of dissension; and he still cherished a hope that the day would come when both he and they, like Stephen and Saul, would be of the same sentiment in heaven. As he turned from the bar, his son threw himself on his knees, and begged his father's blessing; and, as he walked back to the Tower, his daughter Margaret twice rushed through the guards, folded him in her arms, and unable to speak, bathed him with her tears.
He met his fate with constancy, even with cheerfulness. When he was told that the king, as a special favour, had commuted his punishment to decapitation, 'God,' he replied, 'preserve all my friends from such favours.'
On the scaffold, the executioner asked his forgiveness. He kissed him, saying, 'thou wilt render me to-day the greatest service in the power of any mortal; but (putting an angel into his hand) my neck is so short that I fear thou wilt gain little credit in the way of thy profession.' As he was not permitted to address the spectators, he contented himself with declaring that he died a faithful subject of the king.
The Coventry Act.
The first person who suffered under what is called the Coventry Act, was Arundel Cooke, gentleman of good fortune, who was bred to the law, and practised some time at the bar. This Act, which has since been superseded by the cutting and maiming Act of Lord Ellenborough, took its rise from the following circumstance. Sir John Coventry, who was a member of the House of Commons in the reign of Charles the Second, having opposed the measures of the court, was in revenge attacked one night in Covent Garden by some armed villains, who slit his nose and cut off his lips. Shocked by so barbarous an outrage, the two Houses of Parliament passed an Act a few days afterwards, by which it was ordained, that 'Unlawfully cutting out, or disabling the tongue, of malice aforethought, or by lying in wait, putting out an eye, slitting the nose and lip, or cutting off or disabling any limb or member of any person, with intent to maim or disfigure, shall be felony, without benefit of clergy.'
Cooke, with an accomplice of the name of Woodburne, was convicted of an attack on a Mr. Crisp, his brother-in-law, which came under the meaning of this Act. When they were called up to receive sentence of death, Cooke desired to be heard; and the court complying with his request, he urged that judgment could not pass on the verdict, because the Act of Parliament simply mentions to maim or deface, whereas he was firmly resolved to have committed murder. He quoted several law cases in favour of the arguments he had advanced, and hoped that the judgment might be respited, till the opinion of the twelve judges could be taken on the case.
The counsel for the crown opposed the argument of Cooke; and insisting that the crime came within the meaning of the law, prayed that judgment might pass on the prisoners.
Lord Chief justice King, who presided on this occasion, declared that he could not admit the force of Mr. Cooke's plea, consistent with his own oath as a judge. 'For,' said he, 'it would establish a principle in the law, inconsistent with the first dictates of natural reason, as the greatest villain might, when convicted of a smaller offence, plead that the judgement of the court must be arrested, because he intended to committ a greater. In the present instance (said he), judgment cannot be arrested, as the intention is naturally implied, when the crime is actually committed. Crisp was attacked in the manner laid in the indictment; it is therefore to be taken for granted, that the intention was to maim and deface, wherefore the court will proceed to judgment.'
Sentence of death was then passed on Cooke and his accomplice, and they were both executed in the year 1722.
The emoluments of the profession of the law, have rapidly advanced during the last three centuries. What would a modem lawyer say to the following entry in the Churchwardens' accounts of St. Margaret, Westminster, for the year 1476? 'Also paid to Roger Fylpott, learned in the law, for his counsel giving, 3s. 8d., with fourpence for his dinner.' Though fifteen times the fee might not seem inadequate at present, yet five shillings would hardly furnish the table of a barrister, even if the fastidiousness of our manners would admit of his accepting such a dole.
Roper, in his 'Life of Sir Thomas More,' informs us, that though he was an advocate of the greatest eminence and of the most extensive practice, yet he did not by his profession make more than £400, a year. There is, however, a common tradition on the other hand, that Sir Edward Coke's gains at the latter end of the same century, equalled those of a modern Attorney-General; and it appears from Lord Bacons works, that he made £6000 per annum, while in the office. Brownlow, one of the Prothonotaries during the reign of Queen Elizabeth, made £6000 per annum. He used to close the profits of the year with laus deo; and when they happened to be extraordinary, with a maxima laus deo.
We now frequently hear of barristers, eminent in their profession, making from ten to fifteen thousand pounds a year; and Sir Samuel Romilly is said to have exceeded even this, in the latter years of his practice. Mr. Erskine, and Mr. Garrow, were once engaged to attend a trial at a country assizes, the one with a fee of five hundred, and the other of three hundred guineas. Indeed, there is a regulation among the gentlemen of the long robe, that no one shall go out of his own circuit on a retaining fee of less than three hundred guineas.
On the trial of the notorious Colonel Charteris, his son-in-law, Lord Wemyss, engaged the Lord President, Forbes, to come from Scotland to plead the cause before the privy council; and an estate Of £300 for life, was assigned to the President for this service.
Fearne, so well known for his work on Contingent Remainders, was so little ambitious of the favours of fortune, that when he could have commanded from £3000 to £4000 a year, by practice as a Chamber Counsel, he contracted his business within such a compass, that it might just yield him as much as might be sufficient for his wants, and no more. Amidst his professional pursuits, he had always a strong attachment to experimental philosophy; and to this he devoted the time which he denied to increase of business. He made some optical glasses upon a new construction, which have been reckoned improvements; he likewise constructed a machine for transposing the keys in music; and gave many useful hints in the dyeing of cottons and other stuffs. These he called his dissipations, and with some degree of truth; for they too often broke in upon his professional pursuits, and tempted him to give up more hours to laborious employment, than his more beneficial prospects demanded, or was consistent with the natural strength of his constitution.
A very pleasing story is related of Fearne's youth: it may be looked upon as the blossom of that independence and generosity which distinguished him through life. His father, besides being at great expense for his education, presented him on his entrance into the Temple with a few hundred pounds, to purchase chambers and books; yet generously overlooking these circumstances, left his fortune, which was inconsiderable, to be equally partitioned between Fearne and a younger brother and sister. Fearne, sensible how much the family property had been wasted on his account, nobly refused to take advantage of the will, and gave up the whole residue to the other children. 'My father,' said he, 'by taking such uncommon pains with my education, no doubt meant it should be my whole dependance; and if that wont bring me through, a few hundred pounds will be a matter of no consequence.'
'Leicester's Mad Recorder.'
The lawyer celebrated under this title, was William Fleetwood, appointed Recorder of London in 1569. He was certainly much devoted to that nobleman's service; and is supposed to have been placed in the office of Recorder, in order to afford him an opportunity of supporting the faction which that ambitious courtier had formed in the city. He showed great zeal against the Papists and having once, with some followers, forced his way into the Portuguese Ambassador's house while mass was performing, he was, for this breach of privilege, committed prisoner to the fleet; though soon released. Wood says, that he was 'a learned man, and a great antiquary; but of a marvellous merry and pleasant conceit.'
Mr. Madan, who about the year 1756 exchanged his bar gown for a clerical one, wrote a pamphlet, in which he arraigned the mistaken lenity of judges, in too frequently reprieving capital offenders. Some time after he was present at an assizes at East Grinstead, in Sussex, where there happened not to be a single capital conviction. On the Sheriff expressing his happiness in presenting the white gloves to the judge, as is customary on such occasions, his lordship pleasantly observed, Mr. Madan, too, will have a singular pleasure on this occasion, because there is no condemned prisoner to be reprieved.'
In a trial at the Old Bailey, in September, 1796, for burglary, the two witnesses called for the prosecution, completely failed to establish the charge; on which Mr. justice Rooke told the jury, that where two witnesses for the prosecution materially contradicted each other, and the whole case rested upon one of them identifying a prisoner, it was in general the practice in such a case not to put the prisoner on his defence.
The jury, however, desired the trial might go on; and although the succeeding evidence was equally contradictory, they were not satisfied until the prisoner had been put on his defence, and completely rebutted the charge by a host of witnesses.
Mr. Justice Rooke, in addressing the jury, said, this was the first instance he had met with in the course of his practice, where in a cause, to say no more, of extreme doubt, a jury evinced so strong an inclination to strictness. The humanity of the English law required, that in cases of doubt, where a man's life was at stake, the balance should preponderate on the side of mercy. The law was made not so much for the punishment of the guilty, as for the protection of the innocent; and it would be better that fifty men should escape, than one innocent man suffer. It appeared to him, that in this case much ingenuity would be required, to discover upon what grounds an inclination to find the prisoner guilty, could be founded.
The jury, after some minutes conversation, found the prisoner Not Guilty.
When a poor Irishman of the name of Traynor, was found guilty of high treason in 1796, one of the Grand jury stepped forward and addressed the judge, Lord Carleton, stating the wish of himself and his brother jurors that the prisoner should be ordered for immediate execution.
Lord Carleton reproved the Juryman for his unmerciful interference, and immediately respited the prisoner for three weeks, in order that he might apply to the king, the fountain of mercy, for mitigation of his sentence.
At the Stafford Summer Assizes, in 1796, one of the prisoners, William Cotterell, was indicted for a burglary and robbery; and in spite of the remonstrances of counsel, pleaded guilty, nor could he be persuaded to offer any other plea until the judge threatened, in case he persisted, that he would order him for speedy execution. He then pleaded Not guilty, and his trial proceeded; but owing to defective evidence, he was very unexpectedly acquitted.
Independence of the Bar.
Lord Erskine, when at the bar, was always remarkable for the fearlessness with which he contended against the bench. His spirited reply to Justice Buller, in the trial of the Dean of Asaph, is well known, and it is only one out of many instances which might be adduced of similar independence. In the suit brought by Mr. Jeffreys against the commissioners for jewels furnished to the Prince of Wales, Mr. Erskine was counsel for the plaintiff, and evinced considerable warmth the cause.
Lord Kenyon, in his charge to the jury, said he felt much hurt at something that had fallen from the learned counsel for the plaintiff, who had stated that the defence was shameful, illiberal, and unjust.
Mr. Erskine. My lord, I did not use those words.
Lord Kenyon. Mr. Erskine, I took them down as you uttered them.
Mr. Erskine. Then, my lord, you took them down incorrectly.
Lord Kenyon. Sir, I desire I may not be interrupted.
Mr. Erskine explained that his observations were not applied to the defendants, but to the Witnesses; and that not to their general characters, but to their evidence in this cause.
It was in one of these contests with the bench that Mr. Erskine explained the rule of his conduct at the bar in the following terms: - 'It was,' said he, 'the first command and counsel of my youth always to do what my conscience told me to be my duty, and to leave the consequences to God. I shall carry with me the memory, and, I trust, the practice of this paternal lesson to the grave. I have hitherto followed it, and have no reason to complain that my obedience to it has been even a temporal sacrifice. I have found it, on the contrary, the road to prosperity and wealth, and I shall point it out as such to my children.'
In a case at common law, which was tried before Lord Chief-justice Coke, a witness who knew and should have related the truth, was prevailed on to absent himself on condition that some person would undertake to excuse his non-appearance. A person undertook this in rather a whimsical manner. He took the witness with him to a tavern, called for a gallon of sack, and bade him drink; then leaving him in the act of drinking, he went immediately into court, and on the name of the secreted witness being called, stepped forward and declared on oath 'that he had left him in such a condition, that if he continued in it but for a quarter of an hour, he was a dead man.' This evidence of the witness's incapacity to appear in court lost the plaintiffs their cause.
The plaintiffs removed it into Chancery, but the defendants having already had judgment at common law, refused to obey the orders of the court, and in this refusal were openly and strongly supported by Sir Edward Coke, then Lord Chief-justice. The seals were at this time held by a man of great spirit and firmness, Lord Ellesmere, who being determined to vindicate the jurisdiction of his court, committed the defendants for contempt. With the sanction of Coke, the defendants preferred two indictments against the Chancellor for this alleged stretch of power, which being brought to a hearing before the king, as supreme judge of the jurisdiction of courts, his majesty referred the matter to Sir Francis Bacon and four other eminent lawyers, on whose report he afterwards gave judgment in favour of the Chancellor.
The great point in controversy between Lord Chancellor Ellesmere and Lord Chief-justice Coke was, whether the Court of Chancery can relieve by subpoena, after a judgment at law in the same manner. Coke on various occasions resisted the interpositions of equity; and during the seventeenth century the bounds of equitable jurisdiction were often a matter of dispute; but since 1695, when Sir Robert Atkyns published an elaborate treatise against the equitable jurisdiction of the Court of Chancery, which nobody paid any attention to, that jurisdiction, as well after as before judgment, has been uniformly exercised without controversy or interruption.
An action having been tried at Taunton Assizes, in 1819, to recover forty-five shillings for goods sold and delivered, Mr. Justice Best expressed his regret that such a cause should have found its way into court. Here, said his lordship, is a man so foolish as to bring an action for forty-five shillings, and another man so foolish as to defend it! Few lines had more of truth in them than two which he would quote to the jury:
Causes are traversed and so little won, That he who gains them is at last undone.
Sir Henry Yelverton, a distinguished lawyer in the reign of James the First, was advanced to the office of Attorney-General, but having given offence to the favourite Buckingham, he was accused in the Star Chamber of illegal proceedings in his office, and by a sentence of that court deprived of his place, imprisoned in the Tower, and heavily fined. Being afterwards brought before the lords, he made a speech which was so offensive to the king and his favourite, that he was fined 10,000 marks for the reflections which he had cast on his majesty, and 5000 for the insult offered to Buckingham. But by one of those unaccountable changes which occur among politicians of all ages, he became soon afterwards in great favour with the very man whose enmity had cost him so dear; and was, through his interest, made one of the Justices of the King's Bench, and afterwards of the Common Pleas, which last place he retained until his death.
This most excellent lawyer and judge originally intended to follow the profession of arms, but was diverted from this design by being engaged in a law-suit with Sir William Whitmore, who laid claim to part of his estate. Serjeant Glanville, who happened to be his counsel in the cause, being struck with the legal capacity which he displayed in their private consultations, persuaded him to turn lawyer, and he accordingly entered himself of Lincoln's Inn. In order to compensate for the time past, which he had lost in frivolous pursuits, he now studied at the rate of sixteen hours a day, and fell into habits of great inattention to his personal appearance. He is said, indeed, to have neglected his dress so much that, being a strong and well-built man, he was once taken by a press-gang as a person very fit for sea service - a pleasant sort of mistake, 'Which made him afterwards more attentive to the becomingness of his apparel.'
He was called to the bar some time before the civil wars broke out, and soon rose into distinction; but observing how difficult it was to preserve his integrity, and yet live securely, he resolved, after the example of Pomponius Atticus, who lived in similar times, neither to engage in faction, nor to meddle at all in public business, but constantly to favour and relieve those who were lowest. He acquired thus such a character for independence and spirit, that he became equally acceptable to both the great parties into which the nation was then unhappily divided. He was one of the counsel to the Earl of Strafford, Archbishop Laud, and King Charles himself, on the one hand; and to the Duke of Hamilton, the Earl of Holland, Lord Capel, and Lord Craven, on the other.
Cromwell, who was deeply sensible of the advantage it would be to have the countenance of such a man as Hale to his courts, never ceased importuning him, till he accepted the place of one of the justices of the common bench, as it was then called. In this station he acted with great integrity and courage; so much so, indeed, that the Protector had soon occasion to regret the very earnest part he had taken in his promotion. In a case in the country, in which Cromwell himself was deeply concerned, Hale displayed a signal example of his uprightness. The Protector had ordered that certain persons, on whose subserviency he could trust, should be returned as a jury for the trial. On being informed of this, Hale examined the sheriff, and having ascertained the fact, referred to the statute, which ordered all juries to be returned by the sheriff, or by his lawful officer; and as this had not been done, he dismissed the jury, and would not try the cause. Cromwell was highly displeased with him; and on his return from the circuit, told him in great anger, that he was not fit to be a judge. Hale replied, with great aptness of expression, 'that it was very true.'
Common Sense v. Black Letter.
In the early period of Lord Mansfield's chief-justiceship, a diligent book-read advocate took up a considerable portion of the time of the court in producing several black-letter cases to prove the genuine construction of an old woman's will. His lordship heard him with great patience for some time; at last he interrupted him, and quite broke the string of his learning by asking him 'whether he thought the old woman had ever heard of these cases? and if not, what common sense and justice must say to the matter?' The advocate was silent, and his lordship immediately gave judgment in favour of common sense, against the black-letter law, to the full satisfaction of the whole court.
In the trial of a man at the Old Bailey, for stealing some shoes, in 1796, one of the witnesses for the prosecution, when asked what he was, answered, 'A translator.' 'What?' says the judge, who perceived that, like some other learned men, the witness did not appear very rich, 'a translator of languages?' ' No, my lord.' 'What, then?' 'Of soles, my lord.' 'Of souls? I do not understand you. Do you mean a clergyman?' 'I don't, my lord.' 'What do you mean, then? what business are you?' 'I am, my lord, a translator; I mend boots and shoes.' 'You mend boots and shoes! you are a cobbler, then.' 'Yes, my lord.'
The natural and acquired advantages which characterized the eloquence of Mr. Murray (afterwards Lord Mansfield) were so conspicuous, even on the spur of the occasion, and his perception was so quick, as to enable him to shine upon any emergency. A circumstance of this kind occurred in the year 1737, in the celebrated cause between Theophilus Cibber and Mr. Sloper, in which Mr. Murray was the junior counsel for the defendants. The leading counsel being suddenly seized with fit in the court, the duty of the senior devolved on the junior counsel, who at first modestly declined it, for want of time to study the case. The court, to indulge him, postponed the cause for an hour; and with this preparation only, Mr. Murray made so able and eloquent a defence as not only to reduce the defendant's damages to a mere trifle, but to gain for himself the reputation which he highly deserved, of a most prompt, perspituous, and eloquent pleader.
Among other things, Mr. Murray observed, that the plaintiff, by his counsel, showed himself related to Williaim of Wickham, but would have been better entitled to have claimed that alliance if he had observed William of Wickham's motto, that "Morals make the man." The words are, manners make the man; but manners are there intended to signify morals. Again, the plaintiff tells his servants that Mr. Sloper is a good-natured boy; he indeed makes a boy of him; he takes his money, lets him maintain his family, resigns his wife to him, and then comes to a court of justice and to a jury of gentlemen for a reparation in damages.
'It devolves on you, gentlemen, to consider the consequences of giving damages in a case of this nature. It is of very serious consequence and would be pregnant with infinite mischief, if it should once come to be understood in the world that two artful people, being husband and wife, might lay a snare for the affections of an unwary young gentleman, take a sum of money from him, and when he could part with no more, come to a court of Justice for a second sum.
'I desire,' continued Mr. M., 'to be understood as being by no means an advocate for the immorality of the action, for this is not a prosecution for the public, or to punish immomorality. The only question is, whether the defendant has injured the plaintiff; and how can the plaintiff be injured if he has not only consented but has even taken a price? However, gentlemen of the jury, if it should be thought requisite to find a verdict for the plaintiff, we have not a denomination of coin small enough to be given in damages.'
The jury adopted the hint, and did not give the smallest piece of coin as damages, but a verdict of ten pounds, which was a bank-note of the smallest value at that time in circulation.
The familiar friends of Lord Mansfield have frequently heard him recur with singular relish to his success in this cause, and the consequences which flowed from it. From the incident, he was accustomed to say, 'business poured in upon me from all sides; and from a few hundred pounds a year, I fortunately found myself in every subsequent year in possession of thousands.'
On Lord Mansfield being appointed Lord Chief-justice of the Court of King's Bench, he immediately set himself to introduce regularity, punctuality, and despatch of business. On the fourth day after his appointment he laid it down, that where the court had no doubt, they ought not to put the parties in a suit, to the delay and expense of a further argument. Such was the general satisfaction, during the time he presided there, that the business of the court increased in a way never before known, and yet was got through with greater despatch. 'At the sitting for London and Middlesex,' says Sir James Burrow in the preface to his 'Reports,' 'there are not so few as eight hundred cases set down in a year, and all disposed of; and notwithstanding the immensity of the business, it is notorious that in consequence of method, and a very few rules which have been laid down to prevent delay (even when the parties themselves would willingly consent to it), nothing now hangs in court. Upon the last day of the very last term, if we exclude such motions of the term, as by the desire of the parties went over, of course, as peremptories, there was not a single matter of any kind that remained undetermined, excepting one case relating to the proprietary lordship of Maryland, which was professedly postponed on account of the present situation of America. One might speak to the same effect concerning the last day of any former term, for some years backward. The same reporter says that, except in the case of Perrin and Blake, and the case of Literary Property, there had not been from 1756 to 1776, a final difference of opinion in the court, in any case, or upon any point whatever; and it is equally remarkable, that excepting these two cases, no judgment given during the same period had been reversed, either in the Exchequer Chamber or in Parliament; and even these two reversals were with great difference of opinion among the judges.
When the infirmities of age compelled Lord Mansfield to resign his office, in 1788, the gentlemen who practised at the bar of the court in which he presided for upwards of thirty years, addressed to his lordship a letter, in which they lamented their loss; but remembered with peculiar satisfaction, that his lordship was not cut off from them by the sudden stroke of painful distemper, or the more distressing ebb of those faculties which had so long distinguished him; but that it had pleased God to allow to the evening of an useful and fairest illustrious life, the fairest enjoyment that Nature had ever allotted to it - the unclouded reflections of a superior and unfading mind over its varied events, and the happy consciousness that it had been faithfully and eminently devoted to the highest duties of human society, in the most distinguished nation upon earth. They expressed a wish that the season of this high satisfaction, might bear its proportion to the lengthened days of his activity and strength.
This letter, which was numerously signed, was, at the desire of Mr. Bearcroft, the senior counsel in that court, transmitted by Mr. (now Lord) Erskine, to the venerable peer. Lord Mansfield instantly returned an answer, in which he said that if he had given any satisfaction, it was owing to the learning and candour of the gentlemen at the bar; the liberality and integrity of their practice, freed the judicial investigation of truth and justice from difficulties. The memory of the assistance he had received from them, and the deep impression which the extraordinary mark they had now given him of their approbation and affection had made upon his mind, would be a source of perpetual consolation in his decline of life, under the pressure of those bodily infirmities which made it his duty to retire.
Wigs and Gowns.
At the Summer Assizes at Lancaster, in 1819, Mr. Scarlett having hurried into court without his wig and gown, apologized to the judge, and expressed a hope that the time would shortly come when these mummeries would be entirely discarded. In accordance with this wish all the counsel appeared the next day in court without the usual professional badges of wisdom. This change of fashion lasted but for a day; and the wigmaker has still as important a share as ever in making foolish faces wise, and wise faces foolish.
When Mr. Wilkes was arrested and imprisoned by virtue of a warrant from the Secretary of State, for a seditious libel, the publication of the North Briton, NO. 45, he claimed the right of being brought up by Habeas Corpus, and admitted to bail. The case was argued in the Court of Common Pleas, before the Lord Chief-justice Pratt. When the case had been gone through for the king, Mr. Wilkes rose to defend himself, and thus addressed the court.
'My lord, I am happy to appear before your lordship, and this court, where liberty is so sure of protection and support; and where the law (the principle and end of which is the preservation of liberty) is so perfectly understood. Liberty, my lord, hath been the governing principle of every action of my life; and actuated by it, I have always endeavoured to serve my gracious sovereign and his family, knowing his government to be founded upon it; but as it has been his misfortune to employ ministers, who have endeavoured to cast the odium and contempt, arising from their own terrible and corrupt measures, on the sacred person of their sovereign and benefactor, so mine has been the daring task to rescue the royal person from ill-placed imputations, and to fix them on the ministers, who alone ought to bear the blame and punishment due to their unconstitutional proceedings. For these proofs of my zeal and affection to my sovereign, I have been imprisoned, sent to the Tower, and treated with a rigour yet unpractised even on Scottish rebels. But, however these may strive to destroy me, whatever persecution they are now meditating against me, yet to the world I shall proclaim, that offers of the most advantageous and lucrative kind have been made to seduce me to their party, and no means left untried to win me to their connexions. Now, as their attempts to corrupt me have failed, they aim at intimidating me by persecution. But as it has pleased God to give me virtue to resist their bribes, so I doubt not but he will give me spirit to surmount their threats in a manner becoming an Englishman, who would suffer the severest trials, rather than associate with men who are enemies to the liberty of his country. Their bribes I rejected, their menaces I defy; and I think this the most fortunate event of my life, when I appear before your lordship and this court, where innocence is sure of protection, and liberty can never want friends and guardians.'
The Lord Chief-Justice, as our readers need scarcely be told, decided in favour of Mr. Wilkes; and he was discharged accordingly.
On the trial before the Scottish High Court of justiciary, of Mr. Gerrald, for sedition, he objected to the Lord justice Clerk presiding on the trial, on the ground of his having declared, that 'the members of the British Convention deserved transportation for fourteen years, and even public whipping;' and 'that the mob would be better for spilling a little blood.' Although these words were not denied, and Mr. Gerrald avowed himself a member of the British Convention, yet the court overruled the objection, and the Lord Justice Clerk actually presided on the trial. Similar objections to some of the jurors were also overruled.
Under such disadvantages, which Mr. Gerrald sensibly felt, he defended himself with great eloquence, and some passages of his speech might be selected as models of oratory. His conclusion was very fine.
'Surely,' said he, 'the experience of all ages should have taught our rulers, that persecutions never can efface principles; and that the thunders of the State will prove impotent when wielded against patriotism, innocence, and firmness. Whether, therefore, I shall be permitted to glide gently down the current of life in the bosom of my native country, among those kindred spirits whose approbation constitutes the greatest comfort of my living; or whether I be doomed to drag out the remainder of my existence amidst thieves and murderers, a wandering exile on the bleak and melancholy shores of New Holland; my mind, equal to either fortune, is prepared to meet the destiny that awaits it. Seu nie tranquilla senectus.
"Expectat, sed mors atris circumvolat atris
Dives, inops, Romae, seu forsita jussit exul."
'To be torn a bleeding member from that country which we love, is indeed upon the first view painful in the extreme; but all things cease to be painful, when we are supported by the consciousness that we have done our duty to our fellow creatures; and a wise man rising superior to all local prejudices, if asked for his country, will turn his eyes from this dim spot which men call earth, and will point like Anaxagoras to the heavens."
'Gentlemen my cause is in your hands. You are Britons - you are freemen. Nothing more is therefore necessary to be said.' You have heard the charge; you have heard the evidence; and you know the punishment which follows upon conviction. Weigh well, then, whether the charge itself involves any guilt; whether the evidence produced affixes that guilt; and, above all, whether in case of conviction, the punishment which I am to suffer is not more than proportionate to the offence.
'Before I take my leave of you this night, perhaps for ever, let me remind you that justice is, in every situation - and in none more than in that of a jury - to be administered in mercy. Upon your strict attention to this grand moral maxim depends your own final doom and unalterable allotment; and to those who refuse to practise it, "the throne of mercy will be inaccessible, and the Saviour of the world will have been born in vain."'
Mr. Gerrald was found guilty. Indeed, his very eloquence seems to have done him an injury, and to have been urged in aggravation of his alleged crime. The Lord Justice Clerk, in his charge to the jury, said, 'When you see Mr. Gerrald taking a very active part, and making speeches such as you have heard to-day, I look upon him as a very dangerous member of society, for I daresay he has eloquence enough to persuade the people to rise in arms.'
Mr. Gerrald. 'My lord, this is a very improper way of addressing a jury; it is descending to personal abuse. God forbid that my eloquence should ever be made use of for such a purpose.'