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silent and laborious progress. We speak rather of the business of Criminal Courts and of Sessions, in which young men generally make first trial of their powers, and of the more trivial and showy order of causes which it may sometimes be their good or ill fortune to lead.
In this description of business, it must be obvious to every one that there is no scope for the higher powers and more elegant accomplishments of the mind. But it is not so obvious, though not less true, that these are often encumbrances in the way of the advocate. This will appear, if we glance at the kind of work he has to perform, the jury whom he is to influence, or the audience by whom he is surrounded. Even if the successful performance of his duty, without regard to appearances, be his only aim, he will often find it
sion depends. It can scarcely be matter of | be obtained; as, from want of attention to this surprise that they do not always perceive, as point much disappointment frequently springs. by intuition, the accurate thinking, the delicate We will first refer to the lower order of busisatire, the playful fancy, or the lucid eloquence, ness-that by which a young man usually bewhich have charmed a domestic circle, and comes known-and then take a glance at the obtained the applause of a college, even if Court of Nisi Prius, as it affords scope to the these were exactly the qualities adapted to powers of leaders. We pass over at present their purposes. They will never, indeed, con- that class of men who begin to practice as spetinue to retain men who are obviously unequal cial pleaders, and after acquiring reputation, to their duty; but they have a large portion of are called late in life with a number of clients business to scatter, which numbers, greatly who have learned to value them as they dediffering in real power, can do equally well; serve. These have chosen a safe and honourand some junior business, which hardly re-able course; but the general reader would find quires any talent at all. In some cases, there-little to excite his interest in a view of their fore, they are virtually not only judges but patrons, who, by employing young men early, give them not merely fees, but courage, practice, and the means of becoming known to others. From this extraordinary position arises the necessity of the strictest etiquette in form, and the nicest honour, in conduct, which strangers are apt to ridicule, but which alone can prevent the bar from being prostrated at the feet of an inferior class. But for that barrier of rule and personal behaviour, solicitors would be enabled to assume the language and manner of dictators; and no barrister could retain at once prosperity and self-respect, except the few, whose reputations for peculiar skill are so well established, as to render it indispensable to obtain their services. It is no small proof of the spirit and intelligence of the profession, as a body, that these qualities are able to preserve them in a station of ap-necessary to do something more painful than parent superiority to those on whom they vir- merely to lay aside his most refined tastes. To tually depend. They frequent the places of succeed with the jury, he must rectify his unbusiness; they follow the judges from town to derstanding to the level of theirs; to succeed town, and appear ready to undertake any side with the audience, he must necessarily go still of any cause; they sit to be looked at, and lower; because, although there are great comchosen, day after day, and year after year; and mon themes on which an advocate may raise yet by force of professional honour and gentle- almost any assembly to his own level, and manly accomplishments, and by these alone, there are occasions in which he may touch on they continue to be respected by the men who universal sympathies, these rarely, if ever, are to decide their destiny. But no rule of eti- arise in the beginning of his professional life. quette, however strict, and no feelings of de-On those whom he has to impress, the fine allicacy, however nice and generous, can pre-lusion, the happy conceit, the graceful sophisvent a man, who has connections among try, which will naturally occur to his mind, attorneys, from possessing a great advantage over his equals who have none. It is natural that his friends should think highly of him, and desire to assist him, and it would be absurd to expect that he should disappoint them by refusing their briefs, when conscious of ability to do them justice. Hence a youth, born and educated in the middle ranks of life, who is able to struggle to the bar, has often a far better chance of speedy success than a gentleman of rank and family. This consideration may lesson the wonder, so often expressed, at the number of men who have risen to eminence in the law from comparatively humble stations. Without industry and talent, they could have done little; but, perhaps, with both these they might have done less, if their early fame had not been nurtured by those to whom their success was a favourite object, and whose zeal afforded them at once opportunity and stimulus which to more elevated adventurers are wanting.
Let us now examine a little the kind of talent by which success at the bar will most probably
would be worse than lost. But though he may abstain from these, how is he to find, on the inspiration of the instant, the matter which ought to supply their place? Can he, accustomed to enjoy the most felicitous turns of expression, the airiest wit, the keenest satire, think in a moment of a joke sufficiently broad and stale to set the jury box and the galleries in a roar? Has he an instinctive sense of what they will admire? If not, he is wrong to wonder that he makes less impression than others, who may be better able to sacrifice the refinements which he prizes, and ought not to grudge them the success which fairly and naturally follows their exertions.
The chief duties of a junior are to examine witnesses; to raise legal objections; and, in smaller cases, to address juries. We will show in each of these instances how much a man of accurate perceptions and fastidious tastes must overcome before he can hope for prosperity.
The examination of witnesses, in chief, gene rally requires little more than a clear voice, a
will raise objections where the last would be silent; or will defend them with the warmth of honest conviction, where the lawyer would introduce them with hesitation and abandon them without a struggle. When a man has nothing really to say, he is assisted greatly by confusion of language, and a total want of arrangement and grammar. Mere stupidity, ac
tolerable degree of self-possession, a superficial knowledge of the law of evidence, and an acquaintance with the matter to which the witnesses are expected to speak. There are critical cases, it is true, in which it is one of the most important duties which an advocate can perform, and requires all the dexterity and address of which he is master. But the more popular work, and that which most dazzles by-companied by a certain degree of fluency, is standers, is cross-examination, to which some men no inconsiderable power. It enables its posattribute the talismanic property of bringing sessor to protract the contest long after he is falsehood out of truth. In most cases, before beaten, because he neither understands his own an intelligent jury it is mere show. When it case, nor the arguments by which he has been is not founded on materials of contradiction, or answered. It is a weapon of defence, behind directed to obtain some information which the which he obtains protection, not only from his witness will probably give, it proceeds on the adversaries, but from the judge. If the learned assumption that the party interrogated has person who presides, wearied out with endless sworn an untruth, which he may be induced irrelevancies, should attempt to stop him, he to vary. But, in the great majority of cases, will insist on his privilege to be dull, and obthe contrary is the fact, and therefore the usual tain the admiration of the audience by his consequence of speculative cross-examining is firmness in supporting the rights of the bar. the production of a more minute and distinct In these points, a sensitive and acute advocate story than was originally told. Still a jury may has no chance of rivalling him in the estimabe puzzled; an effect may be produced; and as, tion of the by-standers. A young man may, in cases of felony, an advocate is not permitted indeed, display correctness of thought, depth to make a speech, he must either cross-examine of research, and elegant perspicuity in an aror do nothing. Here then, taste, feeling, and gument on a special case, in the Court of judgment, are sometimes no trifling hindrances. King's Bench; but few will hear and fewer A man who has a vivid perception of the true listen to him; and he will see the proceedings relation of things cannot, without difficulty, of the day shortly characterized in the newsforce himself to occupy the attention of the paper of the morrow as "totally destitate of pubcourt for an hour with questions which helic interest," while the opposite column will be feels have no bearing on the matter substantially in issue. Even when he might confound the transaction, the clearness of his own head will scarcely permit him to do the business well. He finds it hard to apply his mind to the elaborate scrutiny of a labourer's dinner or dress, the soundness of his sleep or the slowness of his cottage time-piece; and he hesitates to place himself exactly on a level with the witness who comes to detail them. His discretion may sometimes restrain him from imitating the popular cross-examiners of the day, but his incapacity will prevent him still oftener, until, like them, he has become thoroughly habituated to the intellectual atmosphere of the court in which he practises.
filled with an elaborate report of a case of assault at Clerkenwell, or a picturesque account of a squabble between a pawnbroker and an alderman!
To address a jury, even in cases of minor importance, seems at first to require talents and requirements of a superior kind. It really requires a certain degree of nerve, a readiness of utterance, and a sufficient acquaintance with the ordinary line of illustration used and approved on similar occasions. A power of stating facts, indeed, distinctly and concisely is often important to the real issue of the cause; but it is not one which the audience are likely to appreciate. The man who would please them best should omit all the facts of his case, In starting and arguing points of law, a and luxuriate in the commonplaces which he deep knowledge of law, and a faculty of clear can connect with it, unless he is able to emand cogent reasoning, might seem qualities of bellish his statement, and invest the circumthe highest value. At Nisi Prius, before a stances he relates with adventitious importance Judge, they are so, or rather would be if the and dignity. An advocate of accurate percepmodern course of transacting business left a tions, accustomed to rate things according to junior any opportunity to use them. But they their true value, will find great difficulty in are very far from producing unmingled advan-doing either. Most of the subject matter of tage before inferior tribunals. As the bench is not often filled with magistrates profoundly learned, futile objections are almost as likely to succeed as good ones, and sometimes more so, because those to whom they are addressed have a vague notion of law as something full of mere arbitrary quiddities, and therefore likely to be found in direct opposition to common sense. Now, a man who is himself ignorant of a science is obviously better fitted to hit the fancies of the respectable gentlemen who entertain such a notion, than one who thoroughly understands its rules. The first This has been happily altered since the publication
of this copy.
flourish, which is quite as real to the superficial orator as any thing in the world, is thrown far back from his habitual thoughts, and hardly retains a place among the lumber of his memory. Grant him time for preparation, and a disposition to do violence to his own tastes, in order to acquire popularity, and he may approach a genuine artist in the factitious; but, after all, he will run great risk of being detected as a pretender. A single touch of real feeling, a single piece of concise logical reasoning, will ruin the effect of the whole, and disturb the well-attuned minds of an enlightened jury. Even the topics which must be dilated on are often such as would
not weigh a feather with an intelligent man, out of court, and still oftener give occasion to watery amplifications of ideas, which may be fairly and fully expressed in a few words. It is obvious, therefore, that the more an advocate's mind is furnished with topics rather than with opinions or thoughts, the more easy will he find the task of addressing a jury. A sense of truth is ever in his way. It breaks the fine, flimsy, gossamer tissue of his eloquence, which, but for this sturdy obstacle, might hang suspended on slender props to glitter in the view of fascinated juries. If he has been accustomed to recognise a proportion between words and things, he will, with difficulty, screw himself up to describe a petty affray in the style of Gibbon, though to his client the battle of Holywell-lane may seem more important than the fall of the Roman Empire. If he would enrapture the audience when intrusted to open a criminal case of importance, he should begin with the first murder; pass a well-rounded eulogy on the social system; quote Blackstone, and the Precepts of Noah ; and dilate on crime, conscience, and the trial by jury; before he begins to state the particular facts which he expects to prove. He disdains to do this-or the favourite topics never occur to his mind even to be rejected; and, instead of winning the admiration of a county, he only obtains a conviction! In addition to an inward repugnance to solemn fooling, men of sterling sense have also to overcome the dread of the criticism of others whose opinion they value, before they can descend to the blandishments of popular eloquence. It is seldom, therefore, that a young barrister can employ the most efficacious mode of delighting his audience, unless he is nearly on a par with them, and thinks, in honest stupidity, that he is pouring forth pathos and wisdom. There is, indeed, an excessive proneness to adopt the tone of the moment, an easiness of temperament, which sometimes may enable him to make a display in a trifling maiter without conscious degradation; but he is ashamed of his own success when he grows cool, and was reduced by excessive sympathy to the level of his hearers only for the hour. Let no one, therefore, hastily conclude that the failure of a youth, to whom early opportunities are given, is a proof of essential inferiority to successful rivals. It may be, indeed, that he is below his business; for want of words does not necessarily imply plenitude of ideas, nor is abstinence from lofty prosings and stale jests conclusive evidence of wit and knowledge; but he is more probably superior to his vocation-too clear in his own perceptions to perplex others; too much accustomed to think to make a show without thought; and too deeply impressed with admiration of the venerable and the affecting readily to apply their attributes to the miserable facts he is retained to embellish.
Let us now take a glance at that higher sphere in which a barrister moves when he has overcome the difficulties of his profession, and has obtained a share of leading business in the superior courts. Here it must at once be conceded that considerable powers are necessary, and that the deficiencies which aided the
aspiring junior will no longer prevail. The learning and authority of the judge, and the acuteness of established rivals, not only prevent the success of those experiments, which ignorance only can hazard, but generally stifle them in the birth. The number and variety of causes, and the business-like manner in which they are conducted, restrain the use of fine spun rhetoric to a few special occasions. A man who would keep any large portion of general practice must have industry and retentive memory; clearness of mind enough to state facts with distinctness, and to arrange them in lucid order; a knowledge of law sufficient for the discovery of any point in his own favour, and for the supply of a ready evasion of any suggested by his opponent; quickness and comprehension of intellect to see the whole case on both sides at one view; and complete self-possession and coolness, without which all other capacities will be useless. These are essentials for Nisi Prius practice; but does it give scope to no higher faculties? Is there nothing in human intellect which may be allowed to adorn, to lighten, and to inspire the dull mass of facts and reasonings? Was Erskine no more than a distinct narrator, a tolerable lawyer, and a powerful reasoner on opposing facts? Can no higher praise be given to Scarlett, who sways the Court of King's Bench like a monarch, and to Brougham, whose eloquence sheds terror into the enemies of freedom throughout the world? We will answer these questions as well as we are able.
For the highest powers of the mind which can be developed in eloquence even a superior court rarely affords room. Some have ascribed their absence to a chilling spirit of criticism in the legal auditors; but it is really attributable to the want of fitness in the subjects, and in the occasions. The noble faculty of imagination may, indeed, sometimes be excited to produce sublime creations, in the fervour of a speech, as justly as in the rage or sorrow of a tragedy; but in both the passion must enkindle the imagination, not the imagination create the passion. The distinction of eloquence from other modes of prose composition is, that it is primarily inspired by passion, and that it is either solely addressed to the feelings, or sways the understanding through the medium of the affections. It is only true when it is proportioned to the subject out of which it arises, because otherwise the passion is but fantastical and belongs to the mock heroic. In its course, it may edge the most subtle reasonings, point the keenest satire, and excite the imagination to imbody truth in living images of grandeur and beauty; but its spring and instinct must be passion. Nor is this all; it must not only be proportioned to the feeling in its author's mind, but to the feeling and intellect of those to whom it is addressed. A man of ardent temperament may work himself into a state of excitation by contemplating things which are remote and visionary; he may learn to take an enthusiastic interest in the objects of his own solitary musings; but if he brings into
* Now Lord Brougham.
wife's crime and of his own disgrace? In the other cases, where the party has been injured, not only in feeling, but in property or property's value, it is right that redress should be given; and that redress, even when sought in the form of damages, may be demanded in a tone of eloquent reprobation of villany; but the moment the advocate recounts the miseries of his client, in order to show how much money ought to be awarded, his task is degrading and irksome. He speaks of modesty destroyed, of love turned to bitterness, of youth blasted in its prime, and of age brought down by sorrow to the grave; and he asks for money! He hawks the wrongs of the inmost spirit, "as beggars do their sores," and unveils the sacred agonies of the heart, that the jury may estimate the value of their palpitations! It is in vain that he urges the specious plea, that no money can compensate the sufferer, to sustain the inference that the jury must give the whole sum laid in the declaration; for the inference does not follow. Money will not compensate, not because it is insufficient in degree but in kind; and, therefore, the consequence is not that great damages should be given, but that none should be claimed. When once money is connected with the idea of mental grief, by the advocate who represents the sufferer, all respect for both is gone. Subjects, therefore, of this kind are never susceptible in a court of law of the truest pathetic; and the topics to which they give occasion are somewhat musty.
court the passionate dreams of his study, he will invite scorn and make failure certain. Not only is there rarely a subject which can worthily enkindle such passion as may excite imagination, but still more rarely an audience who can justify it by receiving it into their hearts. On some few occasions, as of great political trials, a burning indignation can be felt and reflected; the thoughts which the jury themselves swell with may be imaged in shapes of fire; and the orator may, while clothing mighty principles in noble yet familiar shapes, by a felicitous compromise, bring grandeur and beauty half way to the audience, and raise the audience to a station where they can feel their influence. But he must take care that he does not deceive himself by his own emotions; and mistake the inspiration of the study for that of the court. He is safe only while he is impelled by the feeling of those whom he addresses, and while he keeps fully within their view. In ordinary causes, imagination would not only be out of place, but it cannot enter; because its own essence is truth, and because it never has part in genuine eloquence unless inspired by adequate emotion. The flowers of oratory which are withheld by fear of contempt, or regarded as mere ornaments if produced, are not those which grow out of the subject, and are streaked and coloured by the feeling of the time; but gaudy exotics, leisurely gathered and stuck in out of season, and destitute of root. These fantastical decorations do not prove the existence of fervour or of imagination, but the want of both; and it is well if they are kept back by the good sense of the speaker, or his reasonable fears. But while a man, endowed with high faculties, cautiously abstains from displaying them on inadequate occasions, he will find them too often an impediment and a burden. He is in danger of timidity from a consciousness of power yet unascertained even by himself, and from an apprehension lest he should profane his long-cherished thoughts by a needless ex-dangers; replies on the instant, dexterously posure. He is liable to be posed by the recurrence of some delicate association which he feels will not be understood, and modestly hesitates on the verge of the profound. He is, therefore, less fitted for ordinary business than another who can survey his own mental resources at a glance, as a well-ordered armoury, and select, without hesitation, the weapon best adapted for the struggle.
If, however, the highest powers of the mind are rarely brought into action in a Court of Nisi Prius, its more ordinary faculties are required in full perfection, and readiness for use. To an uninitiated spectator, the course of a leader in considerable business seems little less than a miracle. He opens his brief with apparent unconcern; states complicated facts and dates with marvellous accuracy; conducts his cause with zeal and caution through all its
placing the adverse features of each side in the most favourable position for his client; and, having won or lost the verdict for which he has struggled, as if his fortune depended on the issue, dismisses it from his mind like one of the spectators. The next cause is called on; the jury are sworn; he unfolds another brief and another tale, and is instantly inspired with a new zeal, and possessed by a Pathos, much oftener than imagination, falls new set of feelings; and so he goes on till the within the province of the advocate. But the court rises, finding time in the intervals of art of exciting pity holds no elevated rank in actual exertion to read the newspaper, and the scale of intellectual power. As employed talk over all the scandal of the day! This is at the bar in actions for adultery, seduction, and curious work; it obviously requires all the breach of promise of marriage, ostensibly as a powers to which we have referred as essenmeans of effecting a transfer of money from tial, and the complete absorption of the mind the purse of the culprit to that of the sufferer, in each successive case. Besides these, there it sinks yet lower than its natural place, and are two qualities essential to splendid success robs the sorrows on which it expatiates of all-a pliable temperament, and that compound their dignity. The first of these actions is a disgrace to the English character; for the plaintiff, who asks for money, has sustained no pecuniary loss; and what money does he deserve who seeks it as a compensation for domestic comfort, at the price of exposing to the greedy public all the shameful particulars of his
quality, or result of several qualities, called tact, in the management of a cause.
To the first of these we have already alluded, in its excessive degree, as supplying a young barrister with the capability of making a dis play on trivial occasions; but, when chastened by time, it is a most important means of suc
cess in the higher departments of the profession. An advocate should not only throw his mind into the cause, but his heart also. It is not enough that the ingenuity is engaged to elicit strength, or conceal weakness, unless the sympathies are fairly enlisted on the same side. To men of lofty habits of thinking, or of cold constitution, this is impossible, unless the case is of intrinsic magnitude, or the client has been wise enough to supply an artificial stimulus in the endorsement on the brief. Such men, therefore, are only excellent in peculiar cases, where their sluggish natures are quickened, and their pride gratified or disarmed by a high issue, or a splendid fee. Persons, on the other hand, who are prevented from saying "no," not by cowardice, but by sympathy; whose hearts open to all who happen to be their companions; whose prejudices vanish with a cordial grasp of the hand, or melt before a word of judicious flattery; who have a spare fund of warmth and kindness to bestow on whoever seeks it; and who, energetic in action, are wavering in opinion, and infirm of purpose-will be delighted advocates, if they happen also to possess industry and nerve. The statement in their brief is enough to convert them into partisans, ready to triumph in the cause, if it is good, and to cling to it, if it is hopeless, as to a friend in misfortune. By this instinct of sociality, they are enabled not only to throw life into its details, and energy into its struggles, but to create for themselves a personal interest with the jury, which they turn to the advantage of their clients. It has often been alleged that the practice of the law prepares men to abandon their principles in the hour of temptation; but it will often appear, on an attentive survey of their character, that the extent of their practice was the effect rather than the cause of their inconstancy. They are not unstable because they were successful barristers, but became successful barristers by virtue of the very qualities which render them unstable. They do not yield on a base calculation of honour or gain, but because they cannot resist a decisive compliment paid to their talents by the advisers of the crown. They are undone by the very trick of sympathy which has often moulded them to the purposes of their clients, and swayed juries to their pleasure.
But the great power of a Nisi Prius advocate consists of act in the management of a cause. Of this a by-stander sees but little; if the art be consummate, nothing; and he is, with difficulty, made to comprehend its full value. He hears the cause tried fairly out; observes perhaps witnesses on both sides examined; and thinking the whole merits have been necessarily disclosed, he sees no room for peculiar skill, except in the choice of topics to address to the jury. But a trial is not a hearing of all the matters capable of discovery which are relevant to the issue, or which would assist an impartial mind in forming a just decision. It is an artificial mode of determination, bounded by narrow limits, governed by artificial rules, and allowing each party to present to the court as much or as little of his own case as he pleases. A leader,
then, has often, on the instant, to select out of a variety of matters, precisely those which will make the best show, and be least exposed to observation and answer; to estimate the probable case which lies hid in his adversary's brief, and prepare his own to elude its force; to decide between the advantage of producing a witness and the danger of exposing him; or, if he represents the defendant, to apply evidence to a case new in many of its aspects, or take the grave responsibility of offering none. Besides the opportunity which the forms and mode of trial give to the exercise of skill, the laws of evidence afford still greater play for ingenuity, and ground for caution. Some of these are founded on principle; some on mere precedent; some caprice; some on a desire to swell the revenue; and all serve to perplex the game of Nisi Prius, and give advantages to its masters. The power which they exhibit among its intricacies is really admirable, and may almost be considered as a lower order of genius. Its efforts must be immediate; for the exigency presses, and the lawyer, like the woman, who deliberates is lost." He cannot stop to recollect a precedent, or to estimate all the consequences of a single step; yet he decides boldly and justly. His tect is, in truth, the result of a great number of impressions, of which he is now unconscious, which gives him a kind of intuitive power to arrive at once at the right conclusion. Its effects do not make a show in the newspapers: but they are very eloquent in the sheriff's office, and in the rolls of the court.
Besides exerting these qualities, a leader may render his statements not only perspicuous but elegant; relieve the dulness of a cause by wit not too subtle; and sometimes enliven the court by a momentary play of fancy. To describe Mr. Erskine, when at the bar, is to ascertain the highest intellectual eminence to which a barrister, under the most favourable circumstances, may safely aspire. He had no imaginative power, no originality of thought, no great comprehension of intellect, to encumber his progress. Inimitable as pleadings, his corrected speeches supply nothing which, taken apart from its context and the occasion, is worthy of a place in the memory. Their most brilliant passages are but commonplaces exquisitely wrought, and curiously adapted to his design. Had his mind been pregnant with greater things, teeming with beautiful images, or endued with deep wisdom, he would have been less fitted to shed lustre on the ordinary feelings and transactions of life. If he had been able to answer Pitt without fainting, or to support Fox without sinking into insignificance, he would not have been the delight of special juries, and the glory of the Court of King's Bench. For that sphere, his powers, his acquisitions, and his temperament were exactly framed. He brought into it, indeed, accomplishments never displayed there before in equal perfection--glancing wit, rich humour, infinite grace of action, singular felicity of language, and a memory elegantly stored, yet not crowded with subjects of classical and fanciful illustration. Above his audience, he was not beyond their sight, and he possessed rare