Law and Laughter Part 2

presence of mind was gone, and he was made to unsay the greatest part of his evidence in chief. Another witness confounding 'thick' whalebone with 'long' whalebone, and unable to distinguish the difference after counsel's explanation, Erskine exclaimed, "Why, man, you do not seem to know the difference between what is _thick_ or what is _long_! Now I tell you the difference. You are _thick_-headed, and you are not _long_-headed."

Lord Erskine's addiction to punning is well known, and many examples might be cited. An action was brought against a stable-keeper for not taking proper care of a horse. "The horse," said counsel for the plaintiff, "was turned into the stable, with nothing to eat but musty hay. To such the horse 'demurred.'"--"He should have 'gone to the country,'" at once retorted Lord Erskine. For the general reader it should be explained that "demurring" and "going to the country" are technical terms for requiring a cause to be decided on a question of law by the judge, or on a question of fact by the jury. Here is another. A low-cla.s.s attorney who was much employed in bail-business and moving attachments against the sheriff for not "bringing in the body"--that is, not arresting and imprisoning a debtor, when such was the law--sold his house in Lincoln's Inn Fields to the Corporation, of Surgeons to be used as their Hall. "I suppose it was recommended to them," said Erskine, "from the attorney being so well acquainted 'with the practice of bringing in the body!'"

Perhaps one of his smartest puns he relates himself. "A case being laid before me by my veteran friend, the Duke of Queensberry--better known as 'old Q'--as to whether he could sue a tradesman for breach of contract about the painting of his house; and the evidence being totally insufficient to support the case, I wrote thus: 'I am of opinion that this action will not lie unless the witnesses do.'"

He was also fond of a practical joke. In answer to a circular letter from Sir John Sinclair, proposing that a testimonial should be presented to himself for his eminent public services, Lord Erskine replied:

"MY DEAR SIR JOHN,--I am certain there are few in this kingdom who set a higher value on your public services than myself; and I have the honour to subscribe"--then, on turning over the leaf, was to be found--"myself, your most obedient faithful servant,

"ERSKINE."

"Gentlemen of the jury," were his closing words after an impa.s.sioned address, "the reputation of a cheesemonger in the City of London is like the bloom upon a peach. Breathe upon it, and it is gone for ever."

Among many apocryphal stories told of expedients by which smart counsel have gained verdicts, this one respecting a case in which Mr. Justice Gould was the judge and Erskine counsel for the defendant is least likely of credit. The judge entertained a most unfavourable opinion of the defendant's case, but being very old was scarcely audible, and certainly unintelligible, to the jury. While he was summing up the case, Erskine, sitting on the King's Counsel Bench, and full in the view of the jury, nodded a.s.sent to the various remarks which fell from the judge; and the jury, imagining that they had been directed to find for the defendant, immediately did so.

When at the Bar, Erskine was always encouraged by the appreciation of his brother barristers. On one occasion, when making an unusual exertion on behalf of a client, he turned to Mr. Garrow, who was his colleague, and not perceiving any sign of approbation on his countenance, he whispered to him, "Who do you think can get on with that d--d wet blanket face of yours before him."

Nor did he always exhibit graciousness to older members. One nervous old barrister named Lamb, who usually prefaced his pleadings with an apology, said to Erskine one day that he felt more timid as he grew older. "No wonder," replied Erskine, "the older the lamb the more sheepish he grows."

When he was Lord Chancellor he was invited to attend the ministerial fish dinner at Greenwich--known in later years as the Whitebait Dinner--he replied: "To be sure I will attend. What would your fish dinner be without the Great Seal?"

When a stupid jury returns an obviously wrong verdict the judge must feel himself in an awkward position; but in such cases--if they ever occur now--a good precedent has been set by Mr. Justice Maule who, when in that predicament, addressed the prisoner in these terms:

"Prisoner, your counsel thinks you innocent, the prosecution thinks you innocent, and I think you innocent. But a jury of your own fellow-countrymen, in the exercise of such common sense as they possess, have found you guilty, and it remains that I should pa.s.s sentence upon you. You will be imprisoned for one day, and as that day was yesterday, you are free to go about your business."

"May G.o.d strike me dead! my lord, if I did it," excitedly exclaimed a prisoner who had been tried before the same justice for a serious offence, and a verdict of "guilty" returned by the jury. The judge looked grave, and paused an unusually long time before saying a word. At last, amid breathless silence, he began: "As Providence has not seen fit to interpose in your case, it now becomes my duty to p.r.o.nounce upon you the sentence of the law," &c. When somewhat excited over a very bad case tried before him he would delay sentence until he felt calmer, lest his impulse or his temper should lead him astray. On one such occasion he exclaimed, "I can't pa.s.s sentence now. I might be too severe. I feel as if I could give the man five-and-twenty years' penal servitude. Bring him up to-morrow when I feel calmer."--"Thank you, my lord," said the prisoner, "I know you will think better of it in the morning." Next day the man appeared in the dock for sentence. "Prisoner," said the judge, "I was angry yesterday, but I am calm to-day. I have spent a night thinking of your awful deeds, and I find on inquiry I can sentence you to penal servitude for life. I therefore pa.s.s upon you that sentence. I have thought better of what I was inclined to do yesterday."

There are instances of brief summing up of a case by judges, but few in the terms expressed by this worthy judge. "If you believe the witnesses for the plaintiff, you will find for the defendant; if you believe the witnesses for the defendant, you will find for the plaintiff. If, like myself, you don't believe any of them, Heaven knows which way you will find. Consider your verdict."

To Mr. Justice Maule a witness said: "You may believe me or not, but I have stated not a word that is false, for I have been wedded to truth from my infancy."--"Yes, sir," said the judge dryly; "but the question is, _how long have you been a widower?_"

In the good old days a learned counsel of ferocious mien and loud voice, practising before him, received a fine rebuke from the justice. No reply could be got from an elderly lady in the box, and the counsel appealed to the judge. "I really cannot answer," said the trembling lady. "Why not, ma'am?" asked the judge. "Because, my lord, he frightens me so."--"So he does me, ma'am," replied the judge.

He was as a rule patient and forbearing, and seldom interfered with counsel in their mode of laying cases before a jury or the Bench, but once he was fairly provoked to do so, by the confused blundering way in which one of them was trying to instil a notion of what he meant into the minds of the jury. "I am sorry to interfere, Mr. ----," said the judge, "but do you not think that, by introducing a little order into your narrative, you might possibly render yourself a trifle more intelligible? It may be my fault that I cannot follow you--I know that my brain is getting old and dilapidated; but I should like to stipulate for some sort of order. There are plenty of them. There is the chronological, the botanical, the metaphysical, the geographical--even the alphabetical order would be better than no order at all."

Baron Thomson, of the Court of Exchequer, was asked how he got on in his Court with the business, when he sat between Chief Baron Macdonald and Baron Graham. He replied, "What between snuff-box on one side, and chatterbox on the other, we get on pretty well!"

Sir Richard Bethel, Lord Westbury, and Lord Campbell were on very friendly terms. An amusing story is told of a meeting of the two in Westminster Hall, when the first rumour of Lord Campbell's appointment as Lord Chancellor was current. The day being cold for the time of the year, Lord Campbell had gone down to the House of Lords in a fur coat, and Bethel, observing this, pretended not to recognise him. Thereupon Campbell came up to him and said: "Mr. Attorney, don't you know me?"--"I beg your pardon, my lord," was the reply. "I mistook you for the _Great Seal_."

[Ill.u.s.tration: RICHARD BETHEL, BARON WESTBURY, LORD CHANCELLOR.]

Lord Cranworth, Vice-Chancellor, after hearing Sir Richard Bethel's argument in an appeal, said he "would turn the matter over in his mind."

Sir Richard turning to his junior with his usual bland calm utterance said: "Take a note of that; his honour says he will turn it over in what he is pleased to call his mind."

Sir James Scarlett, Lord Abinger, had to examine a witness whose evidence would be somewhat dangerous unless he was thrown off his guard and "rattled." The witness in question--an influential man, whose vulnerable point was said to be his self-esteem--was ushered into the box, a portly overdressed person, beaming with self-a.s.surance. Looking him over for a few minutes without saying a word Sir James opened fire: "Mr. Tompkins, I believe?"--"Yes."--"You are a stockbroker, I believe, are you not?"--"I ham." Pausing for a few seconds and making an attentive survey of him, Sir James remarked sententiously, "And a very fine and well-dressed ham you are, sir."

In a breach of promise case Scarlett appeared for the defendant, who was supposed to have been cajoled into the engagement by the plaintiff's mother, a t.i.tled lady. The mother, as a witness, completely baffled the defendant's clever counsel when under his cross-examination; but by one of his happiest strokes of advocacy, Scarlett turned his failure into success. "You saw, gentlemen of the jury, that I was but a child in her hands. _What must my client have been?_"

Sir James was a noted cross-examiner and verdict-getter, but on one occasion he was beaten. Tom Cooke, a well-known actor and musician in his day, was a witness in a case in which Sir James had him under cross-examination.

Scarlett: "Sir, you say that the two melodies are the same, but different; now what do you mean by that, sir?"

Cooke: "I said that the notes in the two copies are alike, but with a different accent."

Scarlett: "What is a musical accent?"

Cooke: "My terms are nine guineas a quarter, sir."

Scarlett (ruffled): "Never mind your terms here. I ask you what is a musical accent? Can you see it?"

Cooke: "No."

Scarlett: "Can you feel it?"

Cooke: "A musician can."

Scarlett (angrily): "Now, sir, don't beat about the bush, but explain to his lordship and the jury, who are expected to know nothing about music, the meaning of what you call accent."

Cooke: "Accent in music is a certain stress laid upon a particular note, in the same manner as you would lay stress upon a given word, for the purpose of being better understood. For instance, if I were to say, 'You are an _a.s.s_,' it rests on a.s.s, but if I were to say, '_You_ are an a.s.s,' it rests on you, Sir James." The judge, with as much gravity as he could a.s.sume, then asked the crestfallen counsel, "Are you satisfied, Sir James."--"The witness may go down," was the counsel's reply.

Lord Justice Holt, when a young man, was very dissipated, and belonged to a club, most of whose members took an infamous course of life. When his lordship was engaged at the Old Baily a man was convicted of highway robbery, whom the judge remembered to have been one of his early companions. Moved by curiosity, Holt, thinking the man did not recognise him, asked what had become of his old a.s.sociates. The culprit making a low bow, and giving a deep sigh, replied, "Oh, my lord, they are all hanged but your lordship and I."

We have already given examples of personalities in the retorts of counsel upon members of the Bench, and if the same derogatory reflection can be traced in the two following anecdotes of judges' retorts on counsel, it is at least veiled in finer sarcasm. A nervous young barrister was conducting a first case before Vice-Chancellor Bacon, and on rising to make his opening remarks began in a faint voice: "My lord, I must apologise--er--I must apologise, my lord"--"Go on, sir," said his lordship blandly; "so far the Court is with you." The other comes from an Australian Court. Counsel was addressing Chief Justice Holroyd when a portion of the plaster of the Court ceiling fell, and he stopping his speech for the moment, incautiously advanced the suggestion, "Dry rot has probably been the cause of that, my lord."--"I am quite of your opinion, Mr. ----," observed his lordship.

On the other hand, judges can be severely personal at times, and Lord Justice Chitty was almost brutal in a case where counsel had been arguing to distraction on a bill of sale. "I will now proceed to address myself to the furniture--an item covered by the bill," counsel continued. "You have been doing nothing else for the last hour,"

lamented the weary judge.

And Mr. Justice Wills once made a rather cutting remark to a barrister.

The barrister was, in the judge's private opinion, simply wasting the time of the Court, and, in the course of a long-winded speech, he dwelt at quite unnecessary length on the appearance of certain bags connected with the case. "They might," he went on pompously, "they might have been full bags, or they might have been half-filled bags, or they might even have been empty bags, or--."--"Or perhaps," dryly interpolated the judge, "they might have been wind-bags!"

[Ill.u.s.tration: HENRY BROUGHAM, BARON BROUGHAM AND VAUX, LORD CHANCELLOR.]

When Lord Brougham attained the position of Lord Chancellor he was greatly addicted to the habit of writing during the course of counsel's argument of the case being heard before him. On one occasion this practice so annoyed Sir Edward Sugden, whenever he noticed it, that he paused in the course of his argument, expecting his lordship to stop writing; but the Chancellor, without even looking up, remarked, "Go on, Sir Edward; I am listening to you."--"I observe that your lordship is engaged in writing, and not favouring me with your attention," replied Sir Edward. "I am signing papers of mere form," warmly retorted the Chancellor. "You may as well say that I am not to blow my nose or take snuff while you speak."

When counsel at the Bar, a witness named John Labron was thus cross-examined by Brougham at York a.s.sizes:

"What are you?"

"I am a farmer, and malt a little."

"Do you know d.i.c.k Strother?"