Page images

bench, but the footpace1 and precincts, and purprise* thereof ought to be preserved without scandal and corruption; for, certainly, grapes (as the Scripture saith) * will not be gathered of thorns or thistles;'s neither can justice yield her fruit with, sweetness amongst the briars and brambles of catching and polling* clerks and ministers. The attendance of courts is subject to four bad instruments: first, certain persons that are sowers of suits, which make the court swell, and the country pine: the second sort is of those that engage courts in quarrels of jurisdiction, and are not truly 'amici curiae,' but 'parasiti curiae,'5 in puffing a court up beyond her bounds for their own scraps and advantages: the third sort is of those that may be accounted the left hands of courts: persons that are full of nimble and sinister tricks and shifts, whereby they pervert the plain and direct courses of courts, and bring justice into oblique lines and labyrinths: and the fourth is the poller * and exacter of fees, which justifies the common resemblance of the courts of justice to the bush, whereunto while the sheep flies for defence in weather, he is sure to lose part of the fleece. On the other side, an ancient7 clerk, skilful in precedents, wary in proceedings, and understanding in the business of the court, is an excellent figure of a court, and doth many times point the way to the judge himself.

Fourthly, for that which may concern the sovereign and estate. Judges ought, above all to remember the conclusion of the Roman twelve tables, 'Salus populi suprema lex ;'8 and to know that laws, except they be in order to that end, are but things captious, and oracles not well inspired: therefore it is a happy thing in a State, when kings and states do often consult with judges: and again, when'judges do often consult with the king and State: the one, where there is matter of law intervenient' in business of state; the other when there is some consideration of State intervenient in matter of law; for many times the things deduced to judgment may be * meum' and 'tuum,' * when the reason and consequence thereof may trench to point of estate: I call matter of estate, npt only the parts of sovereignty, but whatsoever introduceth any great alteration or dangerous precedent: or concerneth manifestly any great portion of people; and let no man weakly conceive that just laws, and true policy, have any antipathy; for they are like the spirits and sinews, that one moves with the other. Let judges also remember, that Solomon's throne was supported by lions on both sides: * let them be lions, but yet lions under the throne; being circumspect, that they do not check or oppose any points of sovereignty. Let not judges also be so ignorant of their own right as to think there is not left them, as a principal part of their office, a wise use and application of laws; for they may remember what the Apostle saith of a greater law than theirs,'Nos scimus quia lex bona est, modo quis ea utatur legitime.' *

1 Footpace. A lobby.

'Purprise. Enclosure. 'But their wives and children were to assemble together in a certain place in Phocis, and they filled the purprises and precincts thereof with a huge quantity of food.'—Holland.

3 Matt. vii. 16.

* Polling. Plundering. 'Peeling and potting were voyded, and in place thereof succeeded liberality.'—Erasmus.

s 'Friends of the court,' but'parasites of the court.'

• Poller. Plunderer. 'With Sallust, he may rail downright at a spoiler of countries, and yet in office to be a most grievous poller himself.'—Burton,

7 Ancient. Senior. 'Junius and Andronicus were in Christianity his ancients'Hooter.

8 'The safety of the people is the supreme law.'

Pro. Contra..

'Non est interpretatio, sod divinatio, 'Ex omnibus verbis eliciendns est

quse rccedit a litem. sonsus, qui interpreter singula.

'7/ we depart from the letter, we are 'The sense of the whole should be

not interpreting the law, but guessing at taken as the interpreter of each single

the law.' word.'

* Cum receditur a litem, judex transit 'Pessima tyrannis lex in equuleo.

in legislotorem. 'Law put to tlie rack is Uie worst of

'When we depart from the letter, the tyrannies.' judge is changed into a legislator.'

1 Intervonieut. Intervening. 'I omit things intervenient.'Wotton,

- 'Mine ' and ' thine.'

3 1 Kings x. 20.

* 'We know that the law is good, if a man use it lawfully.'—1 Tim.


'There is due to the public a civil reprehension of advocates,

where there appeareth cunning counsel, indisereet

pressing, or an over-bold defence.'

The temptation to an * over-bold defence'—to a wilful misleading of a judge or jury by specious sophistry, or seeking to embarrass an honest witness, and bring his testimony into discredit—is one to which the advocate is, undeniably, greatly exposed. Nay, it has even been maintained by no mean authority,1 'that it is part of a pleader's duty to have no scruples about any act whatever that may benefit his client.' 'There are many whom it may be needful to remind,' says an eminent lawyer, * that an advocate, by the sacred duty of his connexion with his client, knows, in the discharge of that office, but one person in the world—that client, and none other. To serve that client, by all expedient means, to protect that client at all hazards and costs to all others (even the party already injured) and amongst others, to himself, is the highest and most unquestioned of his duties. And he must not regard the alarm, the suffering, the torment, the destruction, which it may bring upon any others. Nay, separating even the duties of a patriot from those of an advocate, he must go on, reckless of the consequences, if his fate should unhappily be to involve his country in confusion, for his client.'—[Licence of Counsel, p. 3.]

On the other hand, it is recorded that 'Sir Matthew Hale, whenever he was convinced of the injustice of any cause, would engage no more in it than to explain to his client the grounds of that conviction; he abhorred the practice of misreciting evidence, quoting precedents in books falsely or unfairly, so as to deceive ignorant juries or inattentive judges; and he adhered to the same scrupulous sincerity in his pleadings which he observed in the other transactions of life. It was as great a dishonour as a man was capable of, that for a little money he was hired to say otherwise than he thought.'—[Licence of Counsel, p. 4.]

1 'Lecture on the Intellectual and Moral Influences of the Professions,' reprinted in the Elements of Rhetoric.

'The advocate,' says another eminent legal writer, 'observing in an honest witness a deponent whose testimony promises to bo adverse, assumes terrific tones and deportment, and pretending to find dishonesty on the part of the witness, strives to give his testimony the appearance of it. I say a bond fide witness; for in the case of a witness who, by an adverse interrogator, is really looked upon as dishonest, this is not the proper course, nor is it taken with him. For bringing to light the falsehood of a witness really believed to be mendacious, the more suitable, or rather the only suitable course is to forbear to express the impression he has inspired. Supposing his tale clear of suspicion, the witness runs on his course with fluency till he is entangled in some irretrievable contradiction, at variance with other parts of his own story, or with facts notorious in themselves, or established by proofs from other sources.' —[Licence of Counsel, p. 5.]

'We happen to be aware, from the practice of persons of the highest experience in the examinations of witnesses, that this description is almost without exception correct, and that, as a general rule, it is only the honest and timid witness who is confounded by imperious deportment. The practice gives preeminence to the unscrupulous witness who can withstand such assaults. Roger North, in his life of Sir Dudley North, relates that the law of Turkey, like our absurd law of evidence in some cases, required the testimony of two witnesses in proof of each fact; and that a practice had in consequence arisen, and had obtained the sanction of general opinion, of using a false witness in proof of those facts which admitted of only one witness. Sir Dudley North, while in Turkey, had numerous disputes which it became necessary to settle by litigation,— < and,' says his biographer, 'our merchant found by experience, that in a direct fact a false witness was a surer card than a true one; for if the judge has a mind to baffle a testimony, an honest, harmless witness, that doth not know his play, cannot so well stand his many captious questions, as a false witness, used to the trade, will do; for he hath been exercised, and is prepared for such handling, and can clear himself, when the other will be confounded: therefore circumstances may be such as to make the false one more eligible.'

According to one, then, of the writers I have cited, an advocate is justified, and is fulfilling a duty, not only in protesting with solemnity his own full conviction of the justice of his client's cause, though he may feel no such conviction,—not only in feigning various emotions (like an actor; except that the actor's credit consists in its being known that he is only feigning), such as pity, indignation, moral approbation, or disgust, or contempt, when he neither feels anything of the kind, nor believes the case to be one that justly calls for such feelings; but he is also occasionally to entrap or mislead, to revile, insult, and calumniate persons whom he may in his heart believe to be respectable persons and honest witnesses. Another on the contrary observes: 'We might ask our learned friend and fellow-Christian, as well as the learned and noble editor of Paley's Natural Theology, and his other fellow professors of the religion which says 'that lying lips are an abomination to the Lord,' to explain to us how they reconcile the practice under their rule, with the christian precepts, or avoid the solemn scriptural denunciation—'Woe unto them that call evil good, and good evil; that put darkness for light, and light for darkness; that put bitter for sweet, and sweet for bitter; . . which justify the wicked for reward, and take away the righteousness of the righteous from him.''—[Licence of Counsel, p. 10.]

Of the necessity and allowableness of the practices upon which these opposite legal opinions have been given, I leave every one to judge for himself. For my own part, I think that the kind of skill by which a cross-examiner succeeds in alarming, misleading, or bewildering an honest witness, may be characterized as the most, or one of the most, base and depraved of all possible employments of intellectual power. Nor is it by any means the most effectual way of eliciting truth. The mode best adapted for attaining this object is, I am convinced, quite different from that by which an honest, simple-minded witness is most easily baffled and confused. I have seen the experiment tried, of subjecting a witness to such a kind of crossexamination by a practical lawyer as would have been, I am convinced, the most likely to alarm and perplex many an honest witness; and all, without any effect in shaking the testimony; and afterwards by a totally opposite mode of examination, such as would not have at all perplexed one who was honestly telling the truth, that same witness was drawn on, step by step, to acknow

« PreviousContinue »