Of a different sort, but scarcely less intense, was the pain endured by Lord Mansfield whenever a barrister pronounced a Latin word with a false quantity. "My lords," said the Scotch advocate, Crosby, at the bar of the House of Lords, "I have the honor to appear before your lordships as counsel for the Curators." "Ugh!" groaned the Westminster Oxford law-lord, softening his reproof by an allusion to his Scotch nationality, "Curators, Mr. Crosby, Curators: I wish our countrymen would pay a little more attention to prosody." "My Lord," replied Mr. Crosby, with delightful readiness and composure, "I can assure you that our countrymen are very proud of your lordship as the greatest senator and orator of the present age." The barrister who made Baron Alderson shudder under his robes by applying for a 'nolle prosequi,' was not equally quick at self-defence, when that judge interposed, "Stop, sir—consider that this is the last day of term, and don't make things unnecessarily long." It was Baron Alderson who, in reply to the juryman's confession that he was deaf in one ear, observed, "Then leave the box before the trial begins; for it is necessary that jurymen should hear both sides."

Amongst legal wits, Lord Ellenborough enjoys a high place; and though in dealing out satire upon barristers and witnesses, and even on his judicial coadjutors, he was often needlessly severe, he seldom perpetrated a jest the force of which lay solely in its cruelty. Perhaps the most harsh and reprehensible outburst of satiric humor recorded of him is the crushing speech by which he ruined a young man for life. "The unfortunate client for whom it is my privilege to appear," said a young barrister, making his first essay in Westminster Hall—"the unfortunate client, my lord, for whom I appear—hem! hem!—I say, my lord, my unfortunate client——" Leaning forwards, and speaking in a soft, cooing voice, that was all the more derisive, because it was so gentle, Lord Ellenborough said, "you may go on, sir—so far the court is with you." One would have liked his lordship better had he sacrificed his jest to humanity, and acted as long afterwards that true gentleman, Mr. Justice Talfourd, acted, who, seeing a young barrister overpowered with nervousness, gave him time to recover himself by saying, in the kindest possible manner, "Excuse me for interrupting you—but for a minute I am not at liberty to pay you attention." Whereupon the Judge took up his pen and wrote a short note to a friend. Before the note was finished, the young barrister had completely recovered his self-possession, and by an admirable speech secured a verdict for his client. A highly nervous man, he might on that day have been broken for life, like Ellenborough's victim, by mockery; but fortunate in appearing before a judge whose witty tongue knew not how to fashion unkind words, he triumphed over his temporary weakness, and has since achieved well deserved success in his profession. Talfourd might have made a jest for the thoughtless to laugh at; but he preferred to do an act, on which those who loved him like to think.

When Preston, the great conveyancer, gravely informed the judges of the King's Bench that "an estate in fee simple was the highest estate known to the law of England," Lord Ellenborough checked the great Chancery lawyer, and said with politest irony, "Stay, stay, Mr. Preston, let me take that down. An estate" (the judge writing as he spoke) "in fee simple is—the highest estate—known to—the law of England. Thank you, Mr. Preston! The court, sir, is much indebted to you for the information." Having inflicted on the court an unspeakably dreary oration, Preston, towards the close of the day, asked when it would be their lordship's pleasure to hear the remainder of his argument; whereupon Lord Ellenborough uttered a sigh of resignation, and answered, 'We are bound to hear you, and we will endeavor to give you our undivided attention on Friday next; but as for pleasure, that, sir, has been long out of the question.'

Probably mistelling an old story, and taking to himself the merit of Lord Ellenborough's reply to Preston, Sir Vicary Gibbs (Chief of the Common Pleas) used to tell his friends that Sergeant Vaughan—the sergeant who, on being subsequently raised to the bench through the influence of his elder brother, Sir Henry Halford, the court physician, was humorously described by the wits of Westminster Hall as a judge by prescription—once observed in a grandiose address to the Judges of the Common Pleas, "For though our law takes cognizance of divers different estates, I may be permitted to say, without reserve or qualification of any kind, that the highest estate known to the law of England is an estate in fee simple." Whereupon Sir Vicary, according to his own account, interrupted the sergeant with an air of incredulity and astonishment. "What is your proposition, brother Vaughan? Perhaps I did not hear you rightly!" Flustered by the interruption, which completely effected its object, the sergeant explained, "My lord, I mean to contend that an estate in fee simple is one of the highest estates known to the law of England, that is, my lord, that it may be under certain circumstances—and sometimes is so."

Notwithstanding his high reputation for wit, Lord Ellenborough would deign to use the oldest jests. Thus of Mr. Caldecott, who over and over again, with dull verbosity, had said that certain limestone quarries, like lead and copper mines, "were not rateable, because the limestone could only be reached by boring, which was matter of science," he gravely inquired, "Would you, Mr. Caldecott, have us believe that every kind of boring is matter of science?" With finer humor he nipped in the bud one of Randle Jackson's flowery harangues. "My lords," said the orator, with nervous intonation, "in the book of nature it is written——" "Be kind enough, Mr. Jackson," interposed Lord Ellenborough, "to mention the page from which you are about to quote." This calls to mind the ridicule which, at an earlier period of his career, he cast on Sheridan for saying at the trial of Warren Hastings, "The treasures in the Zenana of the Begum are offerings laid by the hand of piety on the altar of a saint." To this not too rhetorical statement, Edward Law, as leading counsel for Warren Hastings, replied by asking, "how the lady was to be considered a saint, and how the camels were to be laid upon the altar?" With greater pungency, Sheridan defended himself by saying, "This is the first time in my life that I ever heard of special pleading on a metaphor, or a bill of indictment against a trope; but such is the turn of the learned gentleman's mind, that when he attempts to be humorous no jest can be found, and when serious no fact is visible."[31] To the last Law delighted to point the absurdities of orators who in aiming at the sublime only achieved the ridiculous. "My lords," said Mr. Gaselee, arguing that mourning coaches at a funeral were not liable to post-horse duty, "it never could have been the intention of a Christian legislature to aggravate the grief which mourners endure whilst following to the grave the remains of their dearest relatives, by compelling them at the same time to pay the horse-duty." Had Mr. Gaselee been a humorist, Lord Ellenborough would have laughed; but as the advocate was well known to have no turn for raillery, the Chief Justice gravely observed, "Mr. Gaselee, you incur danger by sailing in high sentimental latitudes."

To the surgeon in the witness-box who said, "I employ myself as a surgeon," Lord Ellenborough retorted, "But does anybody else employ you as a surgeon?"

The demand to be examined on affirmation being preferred by a Quaker witness, whose dress was so much like the costume of an ordinary conformist that the officer of the court had begun to administer the usual oath, Lord Ellenborough inquired of the 'friend,' "Do you really mean to impose upon the court by appearing here in the disguise of a reasonable being?" Very pungent was his ejaculation at a cabinet dinner when he heard that Lord Kenyon was about to close his penurious old age by dying. "Die!—why should he die?—what would he get by that?" interposed Lord Ellenborough, adding to the pile of jests by which men have endeavored to keep a grim, unpleasant subject out of sight—a pile to which the latest mot was added the other day by Lord Palmerston, who during his last attack of gout exclaimed playfully. "Die, my dear doctor! That's the last thing I think of doing." Having jested about Kenyon's parsimony, as the old man lay in extremis, Ellenborough placed another joke of the same kind upon his coffin. Hearing that through the blunder of an illiterate undertaker the motto on Kenyon's hatchment in Lincoln's Inn Fields had been painted 'Mors Janua Vita,' instead of 'Mors Janua Vitae,' he exclaimed, "Bless you, there's no mistake; Kenyon's will directed that it should be 'Vita,' so that his estate might be saved the expense of a diphthong." Capital also was his reply when Erskine urged him to accept the Great Seal. "How can you," he asked, in a tone of solemn entreaty, "wish me to accept the office of Chancellor, when you know, Erskine, that I am as ignorant of its duties as you are yourself?" At the time of uttering these words, Ellenborough was well aware that if he declined them Erskine would take the seals. Some of his puns were very poor. For instance, his exclamation, "Cite to me the decisions of the judges of the land: not the judgments of the Chief Justice of Ely, who is fit only to rule a copybook."

One of the best 'legal' puns on record is unanimously attributed by the gossipers of Westminster Hall to Lord Chelmsford. As Sir Frederick Thesiger he was engaged in the conduct of a cause, and objected to the irregularity of a learned sergeant who in examining his witnesses repeatedly put leading questions. "I have a right," maintained the sergeant, doggedly, "to deal with my witnesses as I please." "To that I offer no objection," retorted Sir Frederick; "you may deal as you like, but you shan't lead." Of the same brilliant conversationalist Mr. Grantley Berkeley has recorded a good story in 'My Life and Recollections.' Walking down St. James's Street, Lord Chelmsford was accosted by a stranger, who exclaimed "Mr. Birch I believe?" "If you believe that, sir, you'll believe anything," replied the ex-Chancellor, as he passed on.

When Thelwall, instead of regarding his advocate with grateful silence, insisted on interrupting him with vexatious remarks and impertinent criticisms, Erskine neither threw up his brief nor lost his temper, but retorted with an innocent flash of merriment. To a slip of paper on which the prisoner had written, "I'll be hanged if I don't plead my own cause," he contented himself with returning answer, "You'll be hanged if you do." His mots were often excellent, but it was the tone and joyous animation of the speaker that gave them their charm. It is said that in his later years, when his habitual loquaciousness occasionally sank into garrulity, he used to repeat his jests with imprudent frequency, shamelessly giving his companions the same pun with each course of a long dinner. There is a story that after his retirement from public life he used morning after morning to waylay visitors on their road through the garden to his house, and, pointing to his horticultural attire and the spade in his hand assure them that he was 'enjoying his otium cum digging a tatie.' Indeed the tradition lives that before his fall from the woolsack, pert juniors used to lay bets as to the number of times he could fire off a favorite old pun in the course of a sitting in the Court of Chancery, and that wily leaders habitually strove to catch his favor by giving him opportunities for facetious interruptions during their arguments. If such traditions be truthful, it is no matter for surprise that Erskine's court-jokes have come down to us with so many variations. For instance, it is recorded with much circumstantiality that on circuit, accosting a junior who had lost his portmanteau from the back of a post-chaise, he said, with mock gravity, "Young gentlemen, henceforth imitate the elephant, the wisest of animals, who always carries his trunk before him;" and on equally good authority it is stated that when Polito, the keeper of the Exeter 'Change Menagerie, met with a similar accident and brought an action for damages against the proprietor of the coach from the hind-boot of which his property had disappeared, Erskine, speaking for the defence, told the jury that they would not be justified in giving a verdict favorable to the man, who, though he actually possessed an elephant, had neglected to imitate its prudent example and carry his trunk before him.

As a litterateur Erskine met with meagre success; but some of his squibs and epigrams are greatly above the ordinary level of 'vers de societe.' For instance this is his:—

"DE QUODAM REGE.

"I may not do right, though I ne'er can do wrong; I never can die, though I can not live long; My jowl it is purple, my hand it is fat— Come, riddle my riddle. What is it? What? What?"

The liveliest illustrations of Erskine's proverbial egotism are the squibs of political caricaturists; and from their humorous exaggerations it is difficult to make a correct estimate of the lengths of absurdity to which his intellectual vanity and self-consciousness sometimes carried him. From what is known of his disposition it seems probable that the sarcasms aimed by public writers at his infirmity inclined him to justify their attacks rather than to disprove them by his subsequent demeanor, and that some of his most extravagant outbursts of self-assertion were designed in a spirit of bravado and reckless good-nature to increase the laughter which satirists had raised against him. However this may be, his conduct drew upon him blows that would have ruffled the composure of any less self-complacent or less amiable man. The Tory prints habitually spoke of him as Counsellor Ego whilst he was at the bar; and when it was known that he had accepted the seals, the opposition journals announced that he would enter the house as "Baron Ego, of Eye, in the county of Suffolk." Another of his nicknames was Lord Clackmannan; and Cobbett published the following notice of an harangue made by the fluent advocate in the House of Commons:—"Mr. Erskine delivered a most animated speech in the House of Commons on the causes and consequences of the late war, which lasted thirteen hours, eighteen minutes, and a second, by Mr. John Nichol's stop-watch. Mr. Erskine closed his speech with a dignified climax: 'I was born free, and, by G-d, I'll remain so!'—[A loud cry of 'Hear! hear' in the gallery, in which were citizens Tallien and Barrere.] On Monday three weeks we shall have the extreme satisfaction of laying before the public a brief analysis of the above speech, our letter-founder having entered into an engagement to furnish a fresh font of I's."[32]

From the days of Wriothesley, who may be regarded as the most conspicuous and unquestionable instance of judicial incompetency in the annals of English lawyers, the multitudes have always delighted in stories that illustrate the ignorance and incapacity of men who are presumed to possess, by right of their office, an extraordinary share of knowledge and wisdom. What law-student does not rub his hands as he reads of Lord St. John's trouble during term whilst he held the seals, and of the impatience with which he looked forward to the long vacation, when he would not be required to look wise and speak authoritatively about matters concerning which he was totally ignorant. Delicious are the stories of Francis Bacon's clerical successor, who endeavored to get up a quantum suff. of Chancery law by falling on his knees and asking enlightenment of Heaven. Gloomily comical are the anecdotes of Chief Justice Fleming, whose most famous and disastrous blunder was his judgment in Bates's case. Great fun may be gathered from the tales that exemplify the ignorance of law which characterized the military, and also the non-military laymen, who helped to take care of the seals during the civil troubles of the seventeenth century. Capital is Roger North's picture of Bob Wright's ludicrous shiftlessness whenever the influence of his powerful relations brought the loquacious, handsome, plausible fellow a piece of business. "He was a comely fellow," says Roger North, speaking of the Chief Justice Wright's earlier days, "airy and flourishing both in his habits and way of living; and his relation Wren (being a powerful man in those parts) set him in credit with the country; but withal, he was so poor a lawyer that he used to bring such cases as came to him to his friend Mr. North, and he wrote the opinion on the paper, and the lawyer copied it, and signed under the case as if it had been his own. It ran so low with him that when Mr. North was at London he sent up his cases to him, and had opinions returned by the post; and, in the meantime he put off his clients on pretence of taking the matter into serious consideration." Perhaps some readers of this page can point to juniors of the present date whose professional incapacity closely resembles the incompetence of this gay young barrister of Charles II.'s time. Laughter again rises at the thought of Lord Chancellor Bathurst and the judicial perplexities and blunders which caused Sir Charles Williams to class him with those who

"Were cursed and stigmatized by power, And rais'd to be expos'd."

Much more than an average or altogether desirable amount of amiability has fallen to the reader who can refrain from a malicious smile, when he is informed by reliable history that Lord Loughborough (no mean lawyer or inefficient judge), gave utterance to so much bad law, as Chairman of Quarter Sessions in canny Yorkshire, that when on appeal his decisions were reversed with many polite expressions of sincere regret by the King's Bench, all Westminster Hall laughed in concert at the mistakes of the sagacious Chief of the Common Pleas.

But no lawyer, brilliant or dull, has been more widely ridiculed for incompetence than Erskine. Sir Causticus Witherett, being asked some years since why a certain Chancellor, unjustly accused of intellectual dimness by his political adversaries and by the uninformed public, preferred his seat amongst the barons to his official place on the woolsack, is said to have replied: "The Lord Chancellor usually takes his seat amongst the peers whenever he can do so with propriety, because he is a highly nervous man, and when he is on the woolsack, he is apt to be frightened at finding himself all alone—in the dark." As soon as Erskine was mentioned as a likely person to be Lord Chancellor, rumors began to circulate concerning his total unfitness for the office; and no sooner had he mounted the woolsack than the wits declared him to be alone and in the dark. Lord Ellenborough's sarcasm was widely repeated, and gave the cue to the advocate's detractors, who had little difficulty in persuading the public that any intelligent law-clerk would make as good a Chancellor as Thomas Erskine. With less discretion than good-humor, Erskine gave countenance to the representations of his enemies by ridiculing his own unfitness for the office. During the interval between his appointment and his first appearance as judge in the Court of Chancery, he made a jocose pretence of 'reading up' for his new duties: and whimsically exaggerating his deficiencies, he represented himself as studying books with which raw students have some degree of familiarity. Caught with 'Cruise's Digest' of the laws relating to real property, open in his hand, he observed to the visitor who had interrupted his studies, "You see, I am taking a little from my cruise daily, without any prospect of coming to the end of it."

In the autumn of 1819 two gentlemen of the United States having differed in opinion concerning his incompetence in the Court of Chancery—the one of them maintaining that the greater number of his decrees had been reversed, and the other maintaining that so many of his decisions had not endured reversal—the dispute gave rise to a bet of three dozen of port. With comical bad taste one of the parties to the bet—the one who believed that the Chancellor's judgments had been thus frequently upset—wrote to Erskine for information on the point. Instead of giving the answer which his correspondent desired, Erskine informed him in the following terms that he had lost his wine:—

"Upper Berkley Street, Nov. 13, 1819.

"SIR:—I certainly was appointed Chancellor under the administration in which Mr. Fox was Secretary of State, in 1806, and could have been Chancellor under no administration in which he had not a post; nor would have accepted without him any office whatsoever. I believe the administration was said, by all the Blockheads, to be made up of all the Talents in the country.

"But you have certainly lost your bet on the subject of my decrees. None of them were appealed against, except one, upon a branch of Mr. Thellusson's will—but it was affirmed without a dissentient voice, on the motion of Lord Eldon, then and now Lord Chancellor. If you think I was no lawyer, you may continue to think so. It is plain you are no lawyer yourself; but I wish every man to retain his opinion, though at the cost of three dozen of port.

"Your humble servant,

"ERSKINE.

"To save you from spending your money on bets which you are sure to lose, remember that no man can be a great advocate who is no lawyer. The thing is impossible."

Of the many good stories current about chiefs of the law who are still alive, the present writer, for obvious reasons, abstains from taking notice; but one humorous anecdote concerning a lively judge may with propriety be inserted in these pages, since it fell from his own lips when he was making a speech from the chair at a public dinner. Between sixty-five and seventy years from the present time, when Sir Frederick Pollock was a boy at St. Paul's school, he drew upon himself the displeasure of Dr. Roberts, the somewhat irascible head-master of the school, who frankly told Sir Frederick's father, "Sir, you'll live to see that boy of yours hanged." Years afterwards, when the boy of whom this dismal prophecy was made had distinguished himself at Cambridge and the bar, Dr. Roberts, meeting Sir Frederick's mother in society, overwhelmed her with congratulations upon her son's success, and fortunately oblivious of his former misunderstanding with his pupil, concluded his polite speeches by saying—"Ah! madam, I always said he'd fill an elevated situation." Told by the venerable judge at a recent dinner of 'Old Paulines,' this story was not less effective than the best of those post-prandial sallies with which William St. Julien Arabin—the Assistant Judge of Old Bailey notoriety—used to convulse his auditors something more than thirty years since. In the 'Arabiniana' it is recorded how this judge, in sentencing an unfortunate woman to a long term of transportation, concluded his address with—"You must go out of the country. You have disgraced even your own sex."

Let this chapter close with a lawyer's testimony to the moral qualities of his brethren. In the garden of Clement's Inn may still be seen the statue of a negro, supporting a sun-dial, upon which a legal wit inscribed the following lines:—

"In vain, poor sable son of woe, Thou seek'st the tender tear; From thee in vain with pangs they flow, For mercy dwells not here. From cannibals thou fled'st in vain; Lawyers less quarter give; The first won't eat you till you're slain, The last will do't alive."

Unfortunately these lines have been obliterated.

[31] Robert Dallas—one of Edward Law's coadjutors in the defence of Hastings—gave another 'manager' a more telling blow. Indignant with Burke for his implacable animosity to Hastings, Dallas (subsequently Chief Justice of the Common Pleas) wrote the stinging lines—

"Oft have we wondered that on Irish ground No poisonous reptile has e'er yet been found; Reveal'd the secret stands of nature's work—She saved her venom to produce her Burke."

[32] In the 'Anti-Jacobin,' Canning, in the mock report of an imaginary speech, represented Erskine as addressing the 'Whig Club' thus:—"For his part he should only say that, having been, as he had been, both a soldier and a sailor, if it had been his fortune to have stood in either of these relations to the Directory—as a man and a major-general he should not have scrupled to direct his artillery against the national representatives:—as a naval officer he would undoubtedly have undertaken for the removal of the exiled deputies; admitting the exigency, under all its relations, as it appeared to him to exist, and the then circumstances of the times with all their bearings and dependencies, branching out into an infinity of collateral considerations and involving in each a variety of objects, political, physical, and moral; and these, again, under their distinct and separate heads, ramifying into endless subdivisions, which it was foreign to his purpose to consider, Mr. Erskine concluded by recapitulating, in a strain of agonizing and impressive eloquence, the several more prominent heads of his speech; he had been a soldier and a sailor, and had a son at Winchester school—he had been called by special retainers, during the summer, into many different and distant parts of the country—traveling chiefly in post-chaises. He felt himself called upon to declare that his poor faculties were at the service of his country—of the free and enlightened part of it at least. He stood there as a man—he stood in the eye, indeed, in the hand of God—to whom (in the presence of the company and the waiters), he solemnly appealed. He was of noble, perhaps royal, blood—he had a house at Hampsted—was convinced of the necessity of a thorough and radical reform. His pamphlets had gone through thirty editions, skipping alternately the odd and even numbers. He loved the Constitution, to which he would cling and grapple—and he was clothed with the infirmities of man's nature."



CHAPTER XLII.

WITNESSES.

In the days when Mr. Davenport Hill, the Recorder of Birmingham, made a professional reputation for himself in the committee-rooms of the Houses of Parliament, he had many a sharp tussle with one of those venal witnesses who, during the period of excitement that terminated in the disastrous railway panic, were ready to give scientific evidence on engineering questions, with less regard to truth than to the interests of the persons who paid for their evidence. Having by mendacious evidence gravely injured a cause in which Mr. Hill was interested as counsel, and Mr. Tite, the eminent architect, and present member for Bath, was concerned as a projector, this witness was struck with apoplexy and died—before he could complete the mischief which he had so adroitly begun. Under the circumstances, his sudden withdrawal from the world was not an occasion for universal regret. "Well, Hill, have you heard the news?" inquired Mr. Tite of the barrister, whom he encountered in Middle Temple Lane on the morning after the engineer's death. "Have you heard that —— died yesterday of apoplexy?" "I can't say," was the rejoinder, "that I shall shed many tears for his loss. He was an arrant scoundrel." "Come, come," replied the architect, charitably, "you have always been too hard on that man. He was by no means so bad a fellow as you would make him out. I do verily believe that in the whole course of his life that man never told a lie—out of the witness-box." Strange to say, this comical testimony to character was quite justified by the fact. This man, who lied in public as a matter of business, was punctiliously honorable in private life.

Of the simplest method of tampering with witnesses an instance is found in a case which occurred while Sir Edward Coke was Chief Justice of the King's Bench. Loitering about Westminster Hall, one of the parties in an action stumbled upon the witness whose temporary withdrawal from the ways of men he was most anxious to effect. With a perfect perception of the proper use of hospitality, he accosted this witness (a staring, open-mouthed countryman), with suitable professions of friendliness, and carrying him into an adjacent tavern, set him down before a bottle of wine. As soon as the sack had begun to quicken his guest's circulation, the crafty fellow hastened into court with the intelligence that the witness, whom he had left drinking in a room not two hundred yards distant, was in a fit and lying at death's door. The court being asked to wait, the impudent rascal protested that to wait would be useless; and the Chief Justice, taking his view of the case, proceeded to give judgment without hearing the most important evidence in the cause.

In badgering a witness with noisy derision, no barrister of Charles II.'s time could surpass George Jeffreys; but on more than one occasion that gentleman, in his most overbearing moments, met with his master in the witness whom he meant to brow-beat. "You fellow in the leathern doublet," he is said to have exclaimed to a countryman whom he was about to cross-examine, "Pray, what are you paid for swearing?" "God bless you, sir, and make you an honest man," answered the farmer, looking the barrister full in the face, and speaking with a voice of hearty good-humor; "if you had no more for lying than I have for swearing, you would wear a leather doublet as well as I."

Sometimes Erskine's treatment of witnesses was very jocular, and sometimes very unfair; but his jocoseness was usually so distinct from mere flippant derisiveness, and his unfairness was redeemed by such delicacy of wit and courtesy of manner, that his most malicious jeux d'esprit seldom raised the anger of the witnesses at whom they were aimed. A religious enthusiast objecting to be sworn in the usual manner, but stating that though he would not "kiss the book," he would "hold up his hand" and swear, Erskine asked him to give his reason for preferring so eccentric a way to the ordinary mode of giving testimony. "It is written in the book of Revelations," answered the man, "that the angel standing on the sea held up his hand." "But that does not apply to your case," urged the advocate; "for in the first place, you are no angel; secondly, you cannot tell how the angel would have sworn if he had stood on dry ground, as you do." Not shaken by this reply, which cannot be called unfair, and which, notwithstanding its jocoseness, was exactly the answer which the gravest divine would have made to such scruples, the witness persisted in his position; and on being permitted to give evidence in his own peculiar way, he had enough influence with the jury to induce them to give a verdict adverse to Erskine's wishes.

Less fair but more successful was Erskine's treatment of the commercial traveller, who appeared in the witness box dressed in the height of fashion, and wearing a starched white necktie folded with the 'Brummel fold.' In an instant reading the character of the man, on whom he had never before set eyes, and knowing how necessary it was to put him in a state of extreme agitation and confusion, before touching on the facts concerning which he had come to give evidence, Erskine rose, surveyed the coxcomb, and said, with an air of careless amusement, "You were born and bred in Manchester, I perceive." Greatly astonished at this opening remark, the man answered, nervously, that he was "a Manchester man—born and bred in Manchester." "Exactly," observed Erskine, in a conversational tone, and as though he were imparting information to a personal friend—"exactly so; I knew it from the absurd tie of your neckcloth." The roars of laughter which followed this rejoinder so completely effected the speaker's purpose that the confounded bagman could not tell his right hand from his left. Equally effective was Erskine's sharp question, put quickly to the witness, who, in an action for payment of a tailor's bill, swore that a certain dress-coat was badly made—one of the sleeves being longer than the other. "You will," said Erskine, slowly, having risen to cross-examine, "swear—that one of the sleeves was—longer—than the other?" Witness. "I do swear it." Erskine, quickly, and with a flash of indignation, "Then, sir, I am to understand that you positively deny that one of the sleeves was shorter than the other?" Startled into a self-contradiction by the suddenness and impetuosity of this thrust, the witness said, "I do deny it." Erskine, raising his voice as the tumultuous laughter died away, "Thank you, sir; I don't want to trouble you with another question." One of Erskine's smartest puns referred to a question of evidence. "A case," he observed, in a speech made during his latter years, "being laid before me by my veteran friend, the Duke of Queensbury—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.'" It is worthy of notice that this witticism was but a revival (with a modification) of a pun attributed to Lord Chancellor Hatton in Bacon's 'Apophthegmes.'

In this country many years have elapsed since duels have taken place betwixt gentlemen of the long robe, or between barristers and witnesses in consequence of words uttered in the heat of forensic strife; but in the last century, and in the opening years of the present, it was no very rare occurrence for a barrister to be called upon for 'satisfaction' by a person whom he had insulted in the course of his professional duty. During George II.'s reign, young Robert Henley so mercilessly badgered one Zephaniah Reeve, whom he had occasion to cross-examine in a trial at Bristol, that the infuriated witness—Quaker and peace-loving merchant though he was—sent his persecutor a challenge immediately upon leaving court. Rather than incur the ridicule of 'going out with a Quaker,' and the sin of shooting at a man whom he had actually treated with unjustifiable freedom, Henley retreated from an embarrassing position by making a handsome apology; and years afterwards, when he had risen to the woolsack, he entertained his old acquaintance, Zephaniah Reeve, at a fashionable dinner-party, when he assembled guests were greatly amused by the Lord Chancellor's account of the commencement of his acquaintance with his Quaker friend.

Between thirty and forty years later Thurlow was 'called out' by the Duke of Hamilton's agent, Mr. Andrew Stewart, whom he had grievously offended by his conduct of the Great Douglas Case. On Jan. 14, 1769-1770, Thurlow and his adversary met in Hyde Park. On his way to the appointed place, the barrister stopped at a tavern near Hyde Park Corner, and "ate an enormous breakfast," after which preparation for business, he hastened to the field of action. Accounts agree in saying that he behaved well upon the ground. Long after the bloodless rencontre, the Scotch agent, not a little proud of his 'affair' with a future Lord Chancellor, said, "Mr. Thurlow advanced and stood up to me like an elephant." But the elephant and the mouse parted without hurting each other; the encounter being thus faithfully described in the 'Scots' Magazine:' "On Sunday morning, January 14, the parties met with swords and pistols, in Hyde Park, one of them having for his second his brother, Colonel S——, and the other having for his Mr. L——, member for a city in Kent. Having discharged pistols, at ten yards' distance, without effect, they drew their swords, but the seconds interposed, and put an end to the affair."

One of the best 'Northern Circuit stories' pinned upon Lord Eldon relates to a challenge which an indignant suitor is said to have sent to Law and John Scott. In a trial at York that arose from a horse-race, it was stated in evidence that one of the conditions of the race required that "each horse should be ridden by a gentleman." The race having been run, the holders refused to pay the stakes to the winner on the ground that he was not a gentleman; whereupon the equestrian whose gentility was thus called in question brought an action for the money. After a very humorous inquiry, which terminated in a verdict for the defendants, the plaintiff was said to have challenged the defendants' counsel. Messrs. Scott and Law, for maintaining that he was no gentleman; to which invitation, it also averred, reply was made that the challengees "could not think of fighting one who had been found no gentleman by the solemn verdict of twelve of his countrymen." Inquiry, however, has deprived this delicious story of much of its piquancy. Eldon had no part in the offence; and Law, who was the sole utterer of the obnoxious words, received no invitation to fight. "No message was sent," says a writer, supposed to be Lord Brougham, in the 'Law Magazine,' "and no attempt was made to provoke a breach of the peace. It is very possible Lord Eldon may have said, and Lord Ellenborough too, that they were not bound to treat one in such a predicament as a gentleman, and hence the story has arisen in the lady's mind. The fact was as well known on the Northern Circuit as the answer of a witness to a question, whether the party had a right by his circumstances to keep a pack of fox-hounds; 'No more right than I to keep a pack of archbishops.'"

Curran is said to have received a call, before he left his bed one morning, from a gentleman whom he had cross-examined with needless cruelty and unjustifiable insolence on the previous day. "Sir!" said this irate man, presenting himself in Curran's bedroom, and rousing the barrister from slumber to a consciousness that he was in a very awkward position, "I am the gintleman whom you insulted yesterday in His Majesty's court of justice, in the presence of the whole county, and I am here to thrash you soundly!" Thus speaking, the Herculean intruder waved a horsewhip over the recumbent lawyer. "You don't mean to strike a man when he is lying down?" inquired Curran. "No, bedad; I'll just wait till you've got out of bed and then I'll give it to you sharp and fast." Curran's eye twinkled mischievously as he rejoined: "If that's the case, by —— I'll lie here all day." So tickled was the visitor with this humorous announcement, that he dropped his horsewhip, and dismissing anger with a hearty roar of laughter, asked the counsellor to shake hands with him.

In the December of 1663, Pepys was present at a trial in Guildhall concerning the fraud of a merchant-adventurer, who having insured his vessel for L2400 when, together with her cargo, she was worth no more than L500, had endeavored to wreck her off the French coast. From Pepys's record it appears that this was a novel piece of rascality at that time, and consequently created lively sensation in general society, as well as in legal and commercial coteries. "All the great counsel in the kingdom" were employed in the cause; and though maritime causes then, as now, usually involved much hard swearing, the case was notable for the prodigious amount of perjury which it elicited. For the most part the witnesses were sailors, who, besides swearing with stolid indifference to truth, caused much amusement by the incoherence of their statements and by their free use of nautical expressions, which were quite unintelligible to Chief Justice (Sir Robert) Hyde. "It was," says Pepys, "pleasant to see what mad sort of testimonys the seamen did give, and could not be got to speak in order; and then their terms such as the judge could not understand, and to hear how sillily the counsel and judge would speak as to the terms necessary in the matter, would make one laugh; and above all a Frenchman, that was forced to speak in French, and took an English oath he did not understand, and had an interpreter sworn to tell us what he said, which was the best testimony of all." A century later Lord Mansfield was presiding at a trial consequent upon a collision of two ships at sea, when a common sailor, whilst giving testimony, said, "At the time I was standing abaft the binnacle;" whereupon his lordship, with a proper desire to master the facts of the case, observed, "Stay, stay a minute, witness: you say that at the time in question you were standing abaft the binnacle; now tell me, where is abaft the binnacle?" This was too much for the gravity of 'the salt,' who immediately before climbing into the witness-box had taken a copious draught of neat rum. Removing his eyes from the bench, and turning round upon the crowded court with an expression of intense amusement, he exclaimed at the top of his voice, "He's a pretty fellow for a judge! Bless my jolly old eyes!—[the reader may substitute a familiar form of 'imprecation on eye-sight']—you have got a pretty sort of a land-lubber for a judge! He wants me to tell him where abaft the binnacle is!" Not less amused than the witness, Lord Mansfield rejoined, "Well, my friend, you must fit me for my office by telling me where abaft the binnacle is; you've already shown me the meaning of half seas over."

With less good-humor the same Chief Justice revenged himself on Dr. Brocklesby, who, whilst standing in the witness-box of the Court of King's Bench, incurred the Chief Justice's displeasure by referring to their private intercourse. Some accounts say that the medical witness merely nodded to the Chief Justice, as he might have done with propriety had they been taking seats at a convivial table; other accounts, with less appearance of probability, maintain that in a voice audible to the bar, he reminded the Chief Justice of certain jolly hours which they had spent together during the previous evening. Anyhow, Lord Mansfield was hurt, and showed his resentment in his 'summing-up' by thus addressing the Jury: "The next witness is one Rocklesby, or Brocklesby—Brocklesby or Rocklesby, I am not sure which; and first, he swears that he is a physician."

On one occasion Lord Mansfield covered his retreat from an untenable position with a sparkling pleasantry. An old witness named Elm having given his evidence with remarkable clearness, although he was more than eighty years of age, Lord Mansfield examined him as to his habitual mode of living, and found that he had throughout life been an early riser and a singularly temperate man. "Ay," observed the Chief Justice, in a tone of approval, "I have always found that without temperance and early habits, longevity is never attained." The next witness, the elder brother of this model of temperance, was then called, and he almost surpassed his brother as an intelligent and clear-headed utterer of evidence. "I suppose," observed Lord Mansfield, "that you also are an early riser." "No, my lord," answered the veteran, stoutly; "I like my bed at all hours, and special-lie I like it of a morning." "Ah; but, like your brother, you are a very temperate man?" quickly asked the judge, looking out anxiously for the safety of the more important part of his theory. "My lord," responded this ancient Elm, disdaining to plead guilty to a charge of habitual sobriety, "I am a very old man, and my memory is as clear as a bell, but I can't remember the night when I've gone to bed without being more or less drunk." Lord Mansfield was silent. "Ah, my lord," Mr. Dunning exclaimed, "this old man's case supports a theory upheld by many persons, that habitual intemperance is favorable to longevity." "No, no," replied the Chief Justice, with a smile, "this old man and his brother merely teach us what every carpenter knows—that Elm, whether it be wet or dry, is a very tough wood." Another version of this excellent story makes Lord Mansfield inquire of the elder Elm, "Then how do you account for your prolonged tenure of existence?" to which question Elm is made to respond, more like a lawyer than a simple witness, "I account for it by the terms of the original lease."

Few stories relating to witnesses are more laughable than that which describes the arithmetical process by which Mr. Baron Perrot arrived at the value of certain conflicting evidence. "Gentlemen of the jury," this judge is reported to have said, in summing up the evidence in a trial where the witnesses had sworn with noble tenacity of purpose, "there are fifteen witnesses who swear that the watercourse used to flow in a ditch on the north side of the hedge. On the other hand, gentlemen, there are nine witnesses who swear that the watercourse used to flow on the south side of the hedge. Now, gentlemen, if you subtract nine from fifteen, there remain six witnesses wholly uncontradicted; and I recommend you to give your verdict for the party who called those six witnesses."

Whichever of the half-dozen ways in which it is told be accepted as the right one, the following story exemplifies the difficulty which occasionally arises in courts of justice, when witnesses use provincial terms with which the judge is not familiar. Mr. William Russell, in past days deputy-surveyor of 'canny Newcastle,' and a genuine Northumbrian in dialect, brogue, and shrewdness, was giving his evidence at an important trial in the Newcastle court-house, when he said—"As I was going along the quay, I saw a hubbleshew coming out of a chare-foot." Not aware that on Tyne-side the word 'hubbleshew' meant 'a concourse of riotous persons;' that the narrow alleys or lanes of Newcastle 'old town' were called by their inhabitants 'chares;' and that the lower end of each alley, where it opened upon quay-side, was termed a 'chare-foot;' the judge, seeing only one part of the puzzle, inquired the meaning of the word 'hubbleshew.' "A crowd of disorderly persons," answered the deputy-surveyor. "And you mean to say," inquired the judge of assize, with a voice and look of surprise, "that you saw a crowd of people come out of a chair-foot?" "I do, my lord," responded the witness. "Gentlemen of the jury," said his lordship, turning to the 'twelve good men' in the box, "it must be needless for me to inform you—that this witness is insane!"

The report of a trial which occurred at Newcastle Assizes towards the close of the last century gives the following succession of questions and answers:—Barrister.—"What is your name?" Witness.—"Adam, sir—Adam Thompson." Barrister.—"Where do you live?" Witness.—"In Paradise." Barrister (with facetious tone).—"And pray, Mr. Adam, how long have you dwelt in Paradise?" Witness.—"Ever since the flood." Paradise is the name of a village in the immediate vicinity of Newcastle; and 'the flood' referred to by the witness was the inundation (memorable in local annals) of the Tyne, which in the year 1771 swept away the old Tyne Bridge.



CHAPTER XLIII.

CIRCUITEERS.

Exposed to some of the discomforts, if not all the dangers,[33] of travel; required to ride over black and cheerless tracts of moor and heath: now belated in marshy districts, and now exchanging shots with gentlemen of the road; sleeping, as luck favored them, in way-side taverns, country mansions, or the superior hotels of provincial towns—the circuiteers of olden time found their advantage in cultivating social hilarity and establishing an etiquette that encouraged good-fellowship in their itinerant societies. At an early date they are found varying the monotony of cross-country rides with racing-matches and drinking bouts, cock-fights and fox-hunting; and enlivening assize towns and country houses with balls and plays, frolic and song. A prodigious amount of feasting was perpetrated on an ordinary circuit-round of the seventeenth century; and at circuit-messes, judges' dinners, and sheriffs' banquets, saucy juniors were allowed a license of speech to staid leaders and grave dignitaries that was altogether exceptional to the prevailing tone of manners.

In the days when Chief Justice Hyde, Clarendon's cousin, used to ride the Norfolk Circuit, old Sergeant Earl was the leader, or, to use the slang of the period, 'cock of the round'. A keen, close-fisted, tough practitioner, this sergeant used to ride from town to town, chuckling over the knowledge that he was earning more and spending less than any other member of the circuit. One biscuit was all the refreshment which he permitted himself on the road from Cambridge to Norwich; although he consented to dismount at the end of every ten miles to stretch his limbs. Sidling up to Sergeant Earl, as there was no greater man for him to toady, Francis North offered himself as the old man's travelling companion from the university to the manufacturing town; and when Earl with a grim smile accepted the courteous suggestion, the young man congratulated himself. On the following morning, however, he had reason to question his good fortune when the sergeant's clerk brought him a cake, and remarked, significantly, "Put it in your pocket, sir; you'll want it; for my master won't draw bit till he comes to Norwich." It was a hard day's work; but young Frank North was rewarded for his civility to the sergeant, who condescended to instruct his apt pupil in the tricks and chicaneries of their profession. "Sir," inquired North at the close of the excursion, emboldened by the rich man's affability, "by what system do you keep your accounts, which must be very complex, as you have lands, securities, and great comings-in of all kinds?" "Accounts! boy," answered the grey-headed curmudgeon; "I get as much as I can, and I spend as little as I can; that's how I keep my accounts."

When North had raised himself to the Chiefship of the Common Pleas he chose the Western Circuit, "not for the common cause, it being a long circuit, and beneficial for the officers and servants, but because he knew the gentlemen to be loyal and conformable, and that he should have fair quarter amongst them;" and so much favor did he win amongst the loyal and conformable gentry that old Bishop Mew—the prelate of Winchester, popularly known as Bishop Patch, because he always wore a patch of black court-plaster over the scar of a wound which he received on one of his cheeks, whilst fighting as a trooper for Charles I.—used to term him the "Deliciae occidentis, or Darling of the West." On one occasion this Darling of the West was placed in a ludicrous position by the alacrity with which he accepted an invitation from "a busy fanatic," a Devonshire gentleman, of good family, and estate, named Duke. This "busy fanatic" invited the judges on circuit and their officers to dine and sleep at his mansion on their way to Exeter, and subsequently scandalized his guests—all of them of course zealous defenders of the Established Church—by reading family-prayers before supper. "The gentleman," says the historian, "had not the manners to engage the parish minister to come and officiate with any part of the evening service before supper: but he himself got behind the table in his hall, and read a chapter, and then a long-winded prayer, after the Presbyterian way." Very displeased were the Chief Justice and the other Judge of Assize; and their dissatisfaction was not diminished on the following day when on entering Exeter a rumor met them, that "the judges had been at a conventicle, and the grand jury intended to present them and all their retinue for it."

Not many years elapsed before this Darling of the West was replaced, by another Chief Justice who asserted the power of constituted authorities with an energy that roused more fear than gratitude in the breasts of local magistrates. That grim, ghastly, hideous progress, which Jeffreys made in the plenitude of civil and military power through the Western Counties, was not without its comic interludes; and of its less repulsive scenes none was more laughable than that which occurred in Bristol Courthouse when the terrible Chief Justice upbraided the Bristol magistrates for taking part in a slave-trade of the most odious sort. The mode in which the authorities of the western port carried on their iniquitous traffic deserves commemoration, for no student can understand the history of any period until he has acquainted himself with its prevailing morality. At a time when by the wealth of her merchants and the political influence of her inhabitants Bristol was the second city of England, her mayor and aldermen used daily to sit in judgment on young men and growing boys, who were brought before them and charged with trivial offences. Some of the prisoners had actually broken the law: but in a large proportion of the cases the accusations were totally fictitious—the arrests having been made in accordance with the directions of the magistrates, on charges which the magistrates themselves knew to be utterly without foundation. Every morning the Bristol tolsey or court-house saw a crowd of those wretched captives—clerks out of employment, unruly apprentices, street boys without parents, and occasionally children of honest birth, ay, of patrician lineage, whose prompt removal from their native land was desired by brutal fathers or vindictive guardians; and every morning a mockery of judicial investigation was perpetrated in the name of justice. Standing in a crowd the prisoners were informed of the offences charged against them; huddled together in the dock, like cattle in a pen, they caught stray sentences from the lips of the perjured rascals who had seized them in the public ways; and whilst they thus in a frenzy of surprise and fear listened to the statements of counsel for the prosecution, and to the fabrications of lying witnesses, agents of the court whispered to them that if they wished to save their lives they must instantly confess their guilt, and implore the justices to transport them to the plantations. Ignorant, alarmed, and powerless, the miserable victims invariably acted on this perfidious counsel; and forthwith the magistrates ordered their shipment to the West Indies, where they were sold as slaves—the money paid for them by West India planters in due course finding its way into the pockets of the Bristol justices. It is asserted that the wealthier aldermen, through caution, or those few grains of conscience which are often found in the breasts of consummate rogues, forbore to share in the gains of this abominable traffic; but it cannot be gainsaid that the least guilty magistrates winked at the atrocious conduct of their brother-justices.

Vowing vengeance on the Bristol kidnappers Jeffreys entered their court-house, and opened proceedings by crying aloud that "he had brought a broom to sweep them with." The Mayor of Bristol was in those days no common mayor; in Assize Commissions his name was placed before the names of Judges of Assize; and even beyond the limits of his jurisdiction he was a man of mark and influence. Great therefore was this dignitary's astonishment when Jeffreys ordered him—clothed as he was in official scarlet and furs—to stand in the dock. For a few seconds the local potentate demurred; but when the Chief Justice poured upon him a cataract of blasphemy, and vowed to hang him instantly over the entrance to the tolsey unless he complied immediately, the humiliated chief magistrate of the ancient borough took his place at the felon's bar, and received such a rating as no thief, murderer or rebel had ever heard from George Jeffrey's abusive mouth. Unfortunately the affair ended with the storm. Until the arrival of William of Orange the guilty magistrates were kept in fear of criminal prosecution; but the matter was hushed up and covered with amnesty by the new government; so that "the fright only, which was no small one, was all the punishment which these judicial kidnappers underwent; and the gains," says Roger North, "acquired by so wicked a trade, rested peacefully in their pockets." It should be remembered that the kidnapping justices whom the odious Jeffreys so indignantly denounced were tolerated and courted by their respectable and prosperous neighbors; and some of the worst charges, by which the judge's fame has been rendered odious to posterity, depend upon the evidence of men who, if they were not kidnappers themselves, saw nothing peculiarly atrocious in the conduct of magistrates who systematically sold their fellow-countrymen into a most barbarous slavery.

Amongst old circuit stories of questionable truthfulness there is a singular anecdote recorded by the biographers of Chief Justice Hale, who, whilst riding the Western Circuit, tried a half-starved lad on a charges of burglary. The prisoner had been shipwrecked upon the Cornish coast, and on his way through an inhospitable district had endured the pangs of extreme hunger. In his distress, the famished wanderer broke the window of a baker's shop and stole a loaf of bread. Under the circumstances, Hale directed the jury to acquit the prisoner: but, less merciful than the judge, the gentlemen of the box returned a verdict of 'Guilty'—a verdict which the Chief Justice stoutly refused to act upon. After much resistance, the jurymen were starved into submission; and the youth was set at liberty. Several years elapsed; and Chief Justice Hale was riding the Northern Circuit, when he was received with such costly and excessive pomp by the sheriff of a northern county, that he expostulated with his entertainer on the lavish profuseness of his conduct. "My lord," answered the sheriff, with emotion, "don't blame me for showing my gratitude to the judge who saved my life when I was an outcast. Had it not been for you, I should have been hanged in Cornwall for stealing a loaf, instead of living to be the richest landowner of my native county."

A sketch of circuit-life in the middle of the last century may be found in 'A Northern Circuit, Described in a Letter to a Friend: a Poetical Essay. By a Gentleman of the Middle Temple. 1751.'—a piece of doggrel that will meet with greater mercy from the antiquary than the poetical critic.

In seeking to avoid the customary exactions of their office, the sheriffs of the present generation were only following in the steps of sheriffs who, more than a century past, exerted themselves to reduce the expenses of shrievalties, and whose economical reforms were defended by reference to the conduct of sheriffs under the last of the Tudors.—In the days of Elizabeth, the sheriffs demanded and obtained relief from an obligation to supply judges on circuit, with food and lodging; under Victoria they have recently exclaimed against the custom which required them to furnish guards of javelin-bearers for the protection of Her Majesty's representatives; when George II. was king, they grumbled against lighter burdens—for instance, the cost of white kid-gloves and payments to bell-ringers. The sheriff is still required by custom to present the judges with white gloves whenever an assize has been held without a single capital conviction; but in past times, on every maiden assize, he was expected to give gloves not only to the judges, but to the entire body of circuiteers—barristers as well as officers of court.[34] Wishing to keep his official expenditure down to the lowest possible sum, a certain sheriff for Cumberland—called in 'A Northern Circuit,' Sir Frigid Gripus Knapper—directed his under-sheriff not to give white gloves on the occasion of a maiden assize at Carlisle, and also through the mouth of his subordinate, declined to pay the officers of the circuit certain customary fees. To put the innovator to shame, Sir William Gascoigne, the judge before whom the case was laid, observed in open court, "Though I can compel an immediate payment, it being a demand of right, and not a mere gift, yet I will set him an example by gifts which I might refuse, but will not, because they are customary," and forthwith addressing the steward, added—"Call the sheriff's coachman, his pages, and musicians, singing-boys, and vergers, and give them the accustomed gifts as soon as the sheriff comes." From this direction, readers may see that under the old system of presents a judge was compelled to give away with his left hand much of that which he accepted with his right. It appears that Sir William Gascoigne's conduct had the desired effect; for as soon as the sheriff made his appearance, he repudiated the parsimonious conduct of the under-sheriff—though it is not credible that the subordinate acted without the direction or concurrence of his superior. "I think it," observed the sheriff, in reference to the sum of the customary payments, "as much for the honor of my office, and the country in general, as it is justice to those to whom it is payable; and if any sheriff has been of a different opinion it shall never bias me."

From the days when Alexander Wedderburn, in his new silk gown, to the scandal of all sticklers for professional etiquette, made a daring but futile attempt to seize the lead of the circuit which seventeen years later he rode as judge, 'The Northern' had maintained the prestige of being the most important of the English circuits. Its palmiest and most famous days belong to the times of Norton and Wallace, Jack Lee and John Scott, Edward Law and Robert Graham; but still amongst the wise white heads of the upper house may be seen at times the mobile features of an aged peer who, as Mr. Henry Brougham, surpassed in eloquence and intellectual brilliance the brightest and most celebrated of his precursors on the great northern round. But of all the great men whose names illustrate the annals of the circuit, Lord Eldon is the person most frequently remembered in connexion with the jovial ways of circuiteers in the old time. In his later years the port-loving earl delighted to recall the times when as Attorney General of the Circuit Grand Court he used to prosecute offenders 'against the peace of our Lord the Junior,' devise practical jokes for the diversion of the bar, and over bowls of punch at York, Lancaster, or Kirkby Lonsdale, argue perplexing questions about the morals of advocacy. Just as John Campbell, thirty years later, used to recount with glee how in the mock courts of the Oxford Circuit he used to officiate as crier, "holding a fire-shovel in his hand as the emblem of his office;" so did old Lord Eldon warm with mirth over recollections of his circuit revelries and escapades. Many of his stories were apocryphal, some of them unquestionably spurious; but the least truthful of them contained an element of pleasant reality. Of course Jemmy Boswell, a decent lawyer, though better biographer, was neither duped by the sham brief, nor induced to apply in court for the writ of 'quare adhaesit pavimento;' but it is quite credible that on the morning after his removal in a condition of vinous prostration from the Lancaster flagstones, his jocose friends concocted the brief, sent it to him with a bad guinea, and proclaimed the success of their device. When the chimney-sweeper's boy met his death by falling from a high gallery to the floor of the court-house at the York Assizes, whilst Sir Thomas Davenport was speaking, it was John Scott who—arguing that the orator's dullness had sent the boy to sleep, and so caused his fatal fall—prosecuted Sir Thomas for murder in the High Court, alleging in the indictment that the death was produced by a "certain blunt instrument of no value, called a long speech." The records of the Northern Circuit abound with testimony to the hearty zeal with which the future Chancellor took part in the proceedings of the Grand Court—paying fines and imposing them with equal readiness, now upholding with mock gravity the high and majestic character of the presiding judge, and at another time inveighing against the levity and indecorum of a learned brother who had maintained in conversation that "no man would be such a——fool as to go to a lawyer for advice who knew how to get on without it." The monstrous offender against religion and propriety who gave utterance to this execrable sentiment was Pepper Arden (subsequently Master of the Rolls and Lord Alvanley), and his punishment is thus recorded in the archives of the circuit:—"In this he was considered as doubly culpable, in the first place as having offended, against the laws of Almighty God by his profane cursing; for which, however, he made a very sufficient atonement by paying a bottle of claret; and secondly, as having made use of an expression which, if it should become a prevailing opinion, might have the most alarming consequences to the profession, and was therefore deservedly considered in a far more hideous light. For the last offence he was fin'd 3 bottles. Pd."

One of the most ridiculous circumstances over which the Northern Circuit men of the last generation delighted to laugh occurred at Newcastle, when Baron Graham—the poor lawyer, but a singularly amiable and placid man, of whom Jeckyll observed, "no one but his sempstress could ruffle him"—rode the circuit, and was immortalized as 'My Lord 'Size,' in Mr. John Shield's capital song—

"The jailor, for trial had brought up a thief, Whose looks seemed a passport for Botany Bay; The lawyers, some with and some wanting a brief, Around the green table were seated so gay; Grave jurors and witnesses waiting a call; Attorneys and clients, more angry than wise; With strangers and town-people, throng'd the Guildhall, All watching and gaping to see my Lord 'Size.

"Oft stretch'd were their necks, oft erected their ears, Still fancying they heard of the trumpets the sound, When tidings arriv'd, which dissolv'd them in tears, That my lord at the dead-house was then lying drown'd. Straight left tete-a-tete were the jailor and thief; The horror-struck crowd to the dead-house quick hies; Ev'n the lawyers, forgetful of fee and of brief, Set off helter-skelter to view my Lord 'Size.

"And now the Sandhill with the sad tidings rings, And the tubs of the taties are left to take care; Fishwomen desert their crabs, lobsters, and lings, And each to the dead-house now runs like a hare; The glassmen, some naked, some clad, heard the news, And off they ran, smoking like hot mutton pies; Whilst Castle Garth tailors, like wild kangaroos, Came tail-on-end jumping to see my Lord 'Size.

"The dead-house they reach'd, where his lordship they found, Pale, stretch'd on a plank, like themselves out of breath, The coroner and jury were seated around, Most gravely enquiring the cause of his death. No haste did they seem in, their task to complete, Aware that from hurry mistakes often rise; Or wishful, perhaps, of prolonging the treat Of thus sitting in judgment upon my Lord 'Size.

"Now the Mansion House butler, thus gravely deposed:— 'My lord on the terrace seem'd studying his charge And when (as I thought) he had got it compos'd, He went down the stairs and examined the barge; First the stem he surveyed, then inspected the stern, Then handled the tiller, and looked mighty wise; But he made a false step when about to return, And souse in the river straight tumbled Lord 'Size.'

"'Now his narrative ended, the butler retir'd, Whilst Betty Watt, muttering half drunk through her teeth, Declar'd 'in her breast great consarn it inspir'd, That my lord should sae cullishly come by his death;' Next a keelman was called on, Bold Airchy by name, Who the book as he kissed showed the whites of his eyes, Then he cut an odd caper attention to claim, And this evidence gave them respecting Lord 'Size;—

"Aw was settin' the keel, wi' Dick Slavers an' Matt, An' the Mansion House stairs we were just alongside, When we a' three see'd somethin', but didn't ken what, That was splashin' and labberin', aboot i' the tide. 'It's a fluiker,' ki Dick; 'No,' ki Matt, 'its owre big, It luik'd mair like a skyet when aw furst seed it rise;' Kiv aw—for aw'd getten a gliff o' the wig— 'Ods marcy! wey, marrows, becrike, it's Lord 'Size.

"'Sae aw huik'd him, an' haul'd him suin into the keel, An' o' top o' the huddock aw rowl'd him aboot; An' his belly aw rubb'd, an' aw skelp'd his back weel, But the water he'd druck'n it wadn't run oot; So aw brought him ashore here, an' doctor's, in vain, Furst this way, then that, to recover him tries; For ye see there he's lyin' as deed as a stane, An' that's a' aw can tell ye aboot my Lord 'Size.'

"Now the jury for close consultation retir'd: Some 'Death Accidental' were willing to find; 'God's Visitation' most eager requir'd; And some were for 'Fell in the River' inclin'd; But ere on their verdict they all were agreed, My Lord gave a groan, and wide opened his eyes; Then the coach and the trumpeters came with great speed, And back to the Mansion House carried Lord 'Size."

Amongst memorable Northern Circuit worthies was George Wood, the celebrated Special Pleader, in whose chambers Law, Erskine, Abbott and a mob of eminent lawyers acquired a knowledge of their profession. It is on record that whilst he and Mr. Holroyde were posting the Northern round, they were accosted on a lonely heath by a well-mounted horseman, who reining in his steed asked the barrister "What o'clock it was?" Favorably impressed by the stranger's appearance and tone of voice, Wood pulled out his valuable gold repeater, when the highwayman presenting a pistol, and putting it on the cock, said coolly, "As you have a watch, be kind enough to give it me, so that I may not have occasion to trouble you again about the time." To demur was impossible; the lawyer, therefore, who had met his disaster by going to the country, meekly submitted to circumstances and surrendered the watch. For the loss of an excellent gold repeater he cared little, but he winced under the banter of his professional brethren, who long after the occurrence used to smile with malicious significance as they accosted him with—"What's the time, Wood?"

Another of the memorable Northern circuiteers was John Hullock, who, like George Wood, became a baron of the Exchequer, and of whom the following story is told on good authority. In an important cause tried upon the Northern Circuit, he was instructed by the attorney who retained him as leader on one side not to produce a certain deed unless circumstances made him think that without its production his client would lose the suit. On perusing the deed entrusted to him with this remarkable injunction, Hullock saw that it established his client's case, and wishing to dispatch the business with all possible promptitude, he produced the parchment before its exhibition was demanded by necessity. Examination instantly detected the spurious character of the deed, which had been fabricated by the attorney. Of course the presiding judge (Sir John Bayley) ordered the deed to be impounded; but before the order was carried out, Mr. Hullock obtained permission to inspect it again. Restored to his hands, the deed was forthwith replaced in his bag. "You must surrender that deed instantly," exclaimed the judge, seeing Hullock's intention to keep it. "My lord," returned the barrister, warmly, "no power on earth shall induce me to surrender it. I have incautiously put the life of a fellow-creature in peril; and though I acted to the best of my discretion, I should never be happy again were a fatal result to ensue." At a loss to decide on the proper course of action, Mr. Justice Bayley retired from court to consult with his learned brother. On his lordship's reappearance in court, Mr. Hullock—who had also left the court for a brief period—told him that during his absence the forged deed had been destroyed. The attorney escaped; the barrister became a judge.

[33] Lord Eldon, when he was handsome Jack Scott of the Northern Circuit, was about to make a short cut over the sands from Ulverstone to Lancaster at the of the tide, when he was restrained from acting on his rash resolve by the representations of an hotel keeper. "Danger, danger," asked Scott, impatiently—"have you ever lost anybody there?" Mine host answered slowly, "Nae, sir, nae body has been lost on the sands, the puir bodies have been found at low water."

[34] With regard to the customary gifts of white gloves Mr. Foss says:—"Gloves were presented to the judges on some occasions: viz., when a man, convicted for murder, or manslaughter, came and pleaded the king's pardon; and, till the Act of 4 & 5 William and Mary c. 18, which rendered personal appearance unnecessary, an outlawry could not be reversed, unless the defendant came into court, and with a present of gloves to the judges implored their favor to reverse it. The custom of giving the judge a pair of white gloves upon a maiden assize has continued till the present time." An interesting chapter might be written on the ancient ceremonies and usages obsolete and extant, of our courts of law. Here are a few of the practices which such a chapter would properly notice:—The custom, still maintained, which forbids the Lord Chancellor to utter any word or make any sign, when on Lord Mayor's Day the Lord Mayor of London enters the Court of Chancery, and by the mouth of the Recorder prays his lordship to honor the Guildhall banquet with his presence; the custom—extant so late as Lord Brougham's Chancellorship—which required the Holder of the Seals, at the installation of a new Master of Chancery, to install the new master by placing a cap or hat on his head; the custom which in Charles II.'s time, on motion days at the Chancellor's, compelled all barristers making motions to contribute to his lordship's 'Poor's Box'—barristers within the bar paying two shillings, and outer barristers one shilling—the contents of which box were periodically given to magistrates, for distribution amongst the deserving poor of London; the custom which required a newly-created judge to present his colleagues with biscuits and wine; the barbarous custom which compelled prisoners to plead their defence, standing in fetters, a custom enforced by Chief Justice Pratt at the trial of the Jacobite against Christopher Layer, although at the of trial of Cranburne for complicity in the 'Assassination Plot,' Holt had enunciated the merciful maxim, "When the prisoners are tried they should stand at ease;" the custom which—in days when forty persons died of gaol fever caught at the memorable Black Sessions (May, 1759) at the Old Bailey, when Captain Clark was tried for killing Captain Innes in a duel—strewed rue, fennel, and other herbs on the ledge of the dock, in the faith that the odor of the herbage would act as a barrier to the poisonous exhalations from prisoners sick of gaol distemper, and would protect the assembly in the body of the court from the contagion of the disease.



CHAPTER XLIV.

LAWYERS AND SAINTS.

Notwithstanding the close connexion which in old times existed between the Church and the Law, popular sentiment holds to the opinion that the ways of lawyers are far removed from the ways of holiness, and that the difficulties encountered by wealthy travellers on the road to heaven are far greater with rich lawyers than with any other class of rich men. An old proverb teaches that wearers of the long robe never reach paradise per saltum, but 'by slow degrees;' and an irreverent ballad supports the vulgar belief that the only attorney to be found on the celestial rolls gained admittance to the blissful abode more by artifice than desert. The ribald broadside runs in the following style:—-

"Professions will abuse each other; The priests won't call the lawyer brother; While Salkeld still beknaves the parson, And says he cants to keep the farce on. Yet will I readily suppose They are not truly bitter foes, But only have their pleasant jokes, And banter, just like other folks. And thus, for so they quiz the law, Once on a time th' Attorney Flaw, A man to tell you, as the fact is, Of vast chicane, of course of practice; (But what profession can we trace Where none will not the corps disgrace? Seduced, perhaps, by roguish client, Who tempt him to become more pliant), A notice had to quit the world, And from his desk at once was hurled. Observe, I pray, the plain narration: 'Twas in a hot and long vacation, When time he had but no assistance. Tho' great from courts of law the distance, To reach the court of truth and justice (Where I confess my only trust is); Though here below the special pleader Shows talents worthy of a leader, Yet his own fame he must support, Be sometimes witty with the court Or word the passion of a jury By tender strains, or full of fury; Misleads them all, tho' twelve apostles, While with the new law the judge he jostles, And makes them all give up their powers To speeches of at least three hours— But we have left our little man, And wandered from our purpos'd plan: 'Tis said (without ill-natured leaven) "If ever lawyers get to heaven, It surely is by slow degrees" (Perhaps 'tis slow they take their fees). The case, then, now I fairly state: Flaw reached at last to heaven's high gate; Quite short he rapped, none did it neater; The gate was opened by St. Peter, Who looked astonished when he saw, All black, the little man of law; But charity was Peter's guide. For having once himself denied His master, he would not o'erpass The penitent of any class; Yet never having heard there entered A lawyer, nay, nor ever ventured Within the realms of peace and love, He told him mildly to remove, And would have closed the gate of day, Had not old Flaw, in suppliant way, Demurring to so hard a fate, Begg'd but a look, tho' through the gate. St. Peter, rather off his guard, Unwilling to be thought too hard, Opens the gate to let him peep in. What did the lawyer? Did he creep in? Or dash at once to take possession? Oh no, he knew his own profession: He took his hat off with respect, And would no gentle means neglect; But finding it was all in vain For him admittance to obtain, Thought it were best, let come what will, To gain an entry by his skill. So while St. Peter stood aside, To let the door be opened wide, He skimmed his hat with all his strength Within the gate to no small length. St. Peter stared; the lawyer asked him "Only to fetch his hat," and passed him; But when he reached the jack he'd thrown, Oh, then was all the lawyer shown; He clapt it on, and arms akembo (As if he had been the gallant Bembo), Cry'd out—'What think you of my plan? Eject me, Peter, if you can.'"

The celestial courts having devised no process of ejectment that could be employed in this unlooked-for emergency, St. Peter hastily withdrew to take counsel's opinion; and during his absence Mr. Flaw firmly established himself in the realms of bliss, where he remains to this day the black sheep of the saintly family.

But though a flippant humorist in these later times could deride the lawyer as a character who had better not force his way into heaven, since he would not find a single personal acquaintance amongst its inhabitants, in more remote days lawyers achieved the honors of canonization, and our forefathers sought their saintly intercession with devout fervor. Our calendars still regard the 15th of July as a sacred day, in memory of the holy Swithin, who was tutor to King Ethelwulf and King Alfred, and Chancellor of England, and who certainly deserved his elevation to the fellowship of saints, even had his title to the honor rested solely on a remarkable act which he performed in the exercise of his judicial functions. A familiar set of nursery rhymes sets forth the utter inability of all the King's horses and men to reform the shattered Humpty-Dumpty, when his rotund highness had fallen from a wall; but when a wretched market-woman, whose entire basketful of new-laid eggs had been wilfully smashed by an enemy, sought in her trouble the aid of Chancery, the holy Chancellor Swithin miraculously restored each broken shell to perfect shape, each yolk to soundness. Saith William of Malmesbury, recounting this marvellous achievement—"statimque porrecto crucis signo, fracturam omnium ovorum consolidat."

Like Chancellor Swithin before him, and like Chancellor Wolsey in a later time, Chancellor Becket was a royal tutor;[35] and like Swithin, who still remains the pluvious saint of humid England, and unlike Wolsey, who just missed the glory of canonization, Becket became a widely venerated saint. But less kind to St. Thomas of Canterbury than to St. Swithin, the Reformation degraded Becket from the saintly rank by the decision which terminated the ridiculous legal proceedings instituted by Henry VIII. against the holy reputation of St. Thomas. After the saint's counsel had replied to the Attorney-General, who, of course, conducted the cause for the crown, the court declared that "Thomas, sometime Archbishop of Canterbury, had been guilty of contumacy, treason and rebellion; that his bones should be publicly burnt, to admonish the living of their duty by the punishment of the dead; and that the offerings made at his shrine should be forfeited to the crown."

After the conclusion of the suit for the saint's degradation—a suit which was an extravagant parody of the process for establishing at Rome a holy man's title to the honors of canonization—proclamation was made that "forasmuch as it now clearly appeared that Thomas Becket had been killed in a riot excited by his own obstinacy and intemperate language, and had been afterwards canonized by the Bishop of Rome as the champion of his usurped authority, the king's majesty thought it expedient to declare to his loving subjects that he was no saint, but rather a rebel and traitor to his prince, and therefore strictly charged and commanded that he should not be esteemed or called a saint; that all images and pictures of him should be destroyed, the festivals in his honor be abolished, and his name and remembrance be erased out of all books, under pain of his majesty's indignation and imprisonment at his grace's pleasure."