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A CHANCE MEDLEY 
 
A 
 CHANCE MEDLEY 
 
 OF LEGAL POINTS AND 
 LEGAL STORIES 
 
 BOSTON 
 
 LITTLE BROWN AND COMPANY 
 
 I 9 I 2 
 
,^ •S'O > tj. 
 
PREFACE 
 
 These pages axe substantially a reprint of extracts 
 from " Silk and Stuff " in the Pall Mall Gazette (1893- 
 1909), and the writer gratefully acknowledges the 
 ready consent given by the 'authorities of that journal 
 to the republication. 
 
 Here and there passages have been slightly edited, 
 and where it has been thought that any paragraph 
 might contain a germ of practical value — lateat scin- 
 tillula forsan — ^which a student of law or of contem- 
 porary history might like to examine further, a date 
 has been added as a.guide to the occasion of the note. 
 
 April, 1911. 
 
CONTENTS 
 
 CHAPTER I 
 
 PAGE 
 
 Historical 3 
 
 CHAPTER II 
 The Inns of Court 75 
 
 CHAPTER III 
 Judges and Lawyers Generally 97 
 
 CHAPTER IV 
 Trials and Appeals, Civil and Criminal . . .147 
 
 CHAPTER V 
 Legal and Constitutional Points 195 
 
 CHAPTER VI 
 Legal Stories 275 
 
 CHAPTER VII 
 Odds and Ends 319 
 
 Index 357 
 
 Vll 
 
Historical 
 
CHAPTER I 
 
 HISTORICAL 
 
 The ancient and rare ceremony of impanelling and 
 charging a Middlesex Grand Jury in the Court of 
 Queen's Bench, which took place before Lord Chief 
 Justice Coleridge in June, 1893, is of considerable 
 interest. " The old court," say Messrs. Short and 
 Mellor, in their well-known book, " used, regularly in 
 every term, to have two grand juries in attendance, 
 before whom any criminal matter might be presented, 
 but, owing to legislation and other reasons, all criminal 
 prosecutions were sent either to the Central Criminal 
 Court or Sessions ; it was only at long intervals that 
 any matter was brought before them." One of these 
 juries was taken from the Hundred of Ossulton, the 
 other from the out Hundreds of the county, but owing 
 to their small amount of business, Mr. Justice Wight- 
 man, the senior puisne judge of the court in 1862, 
 ordered that for the future only one jury should be 
 sworn. In 1872, the necessity for summoning the jury 
 was removed by Act of Parliament, and between that 
 year and 1890 it actually met only twice. It would 
 not be wise to abolish it altogether, because in times 
 of poUtical excitement, a Government might find it 
 very useful. On this occasion, when a highway in- 
 dictment was preferred, twenty-three gentlemen were 
 summoned. 
 
4 A CHANCE MEDLEY 
 
 It is notable that the antiquated procedure " by 
 English Information " is stiU alive. The process origin- 
 ated in the proceedings of the Star Chamber, and in 
 its method still savours somewhat of its birthplace. 
 Under the Stuarts it was a favourite instrument of 
 extortion and oppression, and it is said that fear of 
 the delays and enormous costs incident to it still in- 
 duces many persons to compound their rights rather 
 than attempt to fight the Crown. Some day, perhaps 
 the Rules Committee will turn their attention to sim- 
 phfying and cheapening this antiquated process. 
 
 (Oct.. 1893.) 
 
 Counsel were seldom seen in the local courts which 
 were left to the " attorneys " who, as a class, how- 
 ever, were by no means the same as the soUcitors. 
 Thus, in 1691, Blount, in his Law Dictionary, 
 while he speaks with respect of " attorneys," says that 
 " SoUcitor " "signifies a man employ'd to follow and 
 take care of sutes depending in courts of law or equity, 
 formerly allowed only to nobiUty, whose maenial 
 servants they were; but now too commonly used 
 by others to the great increase of champerty and 
 maintenance and damage of the people." 
 
 The portraits of the judges formerly in the Hall 
 of Clement's Inn, which were recently sold, were 
 bought by the Inner Temple. They include fine 
 pictures of Sir Edward Coke, Lord Keeper Coventry, 
 Sir Randolph Crewe, who was some time Speaker of 
 the House of Commons in the time of James I, Sir 
 Matthew Hale, and an oval portrait of Sir John PoweU, 
 one of the judges at the trial of the Seven Bishops. 
 
HISTORICAL 5 
 
 As Clement's Inn was formerly affiliated to the Inner 
 Temple, the acquisition of these works of art by that 
 society is appropriate. 
 
 (Maxch, 1894.) 
 
 The grand jury of the County of London made a 
 significant presentment at the sessions just concluded, 
 to the effect that such a body as theirs is practically 
 superfluous in criminal matters. This is true : grand 
 juries do little now but serve a social function. In 
 the few cases in which they , ignore bills the judge 
 would hardly ever allow the charge to go to the jury, 
 and the preliminary investigation adds to the trouble 
 and expense of a trial. 
 
 (March, 1894.) 
 
 A change which before long must be effected is the 
 promotion of successful county court judges to the 
 bench of the High Court. Indeed, considering the 
 fact that, if this system were in operation, every 
 vacancy might give the party in power two pieces of 
 patronage instead of one, it is surprising that no Lord 
 Chancellor has had the originality to take this daring 
 step. Moreover, it is a practical step, for it would at 
 once provide the judge with a specific training in being 
 a judge, and the profession with an opportunity of 
 estimating him : " office shows the man." 
 
 Probably the largest court which has ever sat was 
 that which tried the Queen against Ashwell, in 1885, 
 when there were fourteen judges. There a man in- 
 tending to lend another a shilling gave him a sovereign ; 
 the latter did not return either the coin or the change, 
 but appropriated it to his own use. He was con- 
 
6 A CHANCE MEDLEY 
 
 victed of larceny, and as the court was equally divided 
 his conviction stood. In the Queen against Keyn, in 
 1876, the court originally consisted of fourteen judges, 
 but Archibald, J., died before judgment was dehvered. 
 
 It is mentioned in Heard's Curiosities of the Law 
 Reporters that a prisoner was convicted of a capital 
 felony, and was sentenced to be punished by trans- 
 portation. On error the judgment was reversed, 
 because he was not sentenced to be hanged, and he 
 was discharged. The same authority tells us that 
 in the reign of Charles II one Walcot was executed 
 for the Rye House Plot, and twelve years after his exe- 
 cution a writ of error was brought, and his attainder 
 reversed, because in the record of his sentence it had 
 not been stated that his entraUs should be burnt while 
 he was alive. 
 
 The judgment of Smith, L. J., delivered in May, 1894, 
 in the case of Musurus Bey (the son of the late Turkish 
 Ambassador to this country) v. Gadban, was extremely 
 interesting, as it reviewed the legal position of diplomatic 
 agents in this country and reasserted their almost total 
 immunity from the law. The great statute on the 
 subject is 7 Anne c. 12, which " brought the Enghsh 
 law into harmony with the law of nations." This 
 had a remarkable origin. In 1708 the Ambassador of 
 Peter the Great was arrested in London for a debt of 
 £50. He did not claim privilege, but gave bail and 
 complained to the Queen. Those who were responsible 
 for the arrest were examined before the Privy CouncU, 
 committed to prison, and prosecuted by the Attorney- 
 General. Meanwhile, to appease the angry Tsar, the 
 
HISTORICAL 7 
 
 Government passed this Act to prevent such process in 
 future, and since then it would seem that short of a 
 state of emergency or actual danger to the State, the 
 person and goods of a Foreign Minister are inviolable. 
 It is said that at common law Ambassadors were origin- 
 ally liable for offences against the Sovereign to whom 
 they were accredited, and Queen Elizabeth actually 
 arrested the Spanish Ambassador for conspiring against 
 her, but Albericus Gentilis and other jurists solemnly 
 decided that he must be remanded to his own master 
 for punishment, and this was done. Expulsion, in 
 fact, is the severest measure permitted against an 
 Ambassador. 
 
 " A solicitor," says Mr. Merrifield (in 1830), " is 
 the legal denomination of an attorney in courts of 
 equity, and is the term usually applied to an attorney 
 in proceedings before Parliament, the Court of Privy 
 Council, etc., and generally in proceedings unconnected 
 with the courts of common law. The term does not 
 appear in the ancient statutes. It is first used in Stat. 
 3 Jac. I, c. 7, since which it has been used in most, 
 if not all, of the subsequent statutes relative to 
 attorneys." His definition of an attorney is " an 
 officer of a court of record legally qualified to prosecute 
 and defend actions in courts of law on the retainer of 
 clients." 
 
 The word attorney means simply substitute, and was 
 formerly in much more common use than at present. 
 (Thus, in the Winter's Tale, Act I, Scene i, Camillo 
 says : " Their encounters, though not personal, have 
 been royally attornied, with interchange of gifts, 
 letters, loving embassies, that they seemed to be to- 
 gether, though absent.") The vocation of attorneys 
 
8 A CHANCE MEDLEY 
 
 has, says Mr. Pulling, existed from the earliest times, 
 in conformity with the maxim of law that whatever a 
 person may lawfully do on his own behalf he may law- 
 fully do by substitute. The common law, however, 
 in all actions and suits required the actual presence of 
 the parties, and admitted only of the substitution of an 
 attorney by grace and favour. This authority or dis- 
 pensation was in ancient times given sometimes by 
 letters patent, sometimes by Parliament ; by it power 
 was given to appoint an Attorney-General to appear 
 and act for his principal in all legal proceedings. 
 
 Various statutes, commencing with the Statute of 
 Merton, 20 Henry IH, dispensed with the necessity 
 of this special authority, and conferred the general 
 right to substitute an attorney in lieu of any personal 
 attendance in civil actions ; and gradually the indul- 
 gence was conceded in other cases, as in proceedings 
 on penal statutes, etc., untU the law came to be as it 
 now stands, that in all actions and suits and judicial 
 proceedings it is competent for both parties to sue 
 or defend by attorney. Long after the general right 
 to appear by attorney had been recognised by law, 
 common attorneys and solicitors were without any sys- 
 tem of legal regulation, the discretionary power being 
 vested in the presiding officers of every court of ad- 
 mitting proper persons to act in the capacity of attor- 
 neys. By the Solicitors Act, 1877, it was laid down 
 that all enactments referring to attorneys shall be con- 
 strued as if the words " Solicitor of the Supreme Court " 
 were substituted for attorney. The same Act conferred 
 most of its very extensive powers on the Incorporated 
 Law Society, which came into existence as a club in 
 1827. The profession is now practically regulated by 
 a series of Solicitors Acts. 
 
 The early regulations did not extend to solicitors. 
 
HISTORICAL 9 
 
 Indeed, the vocation of common solicitors engaged 
 in matters in litigation seems formerly to have been 
 by no means a very respectable one (Pulling). Here 
 current prejudices are tracked to their antiquated lair ; 
 the class here mentioned are just those practitioners 
 who would have most contact with the commonalty 
 and from whom popular and persistent impressions 
 would be formed. 
 
 It is interesting to notice that it was only in the last 
 century that the practice was gradually introduced of 
 attorneys acting as middlemen between counsel and 
 client. Literature before that time shows that barristers 
 were ordinarily resorted to in the first instance for 
 counsel and general legal assistance. The legal right 
 of barristers, adds Mr. Pulling, to dispense with such 
 intervention is unquestionable. 
 
 The original institution of the grand jiu-y is lost in 
 antiquity. The process of electing it in the time of 
 Richard I was, according to Blackstone (after Hove- 
 den), as follows : — Four knights were to be taken from 
 the county at large, who chose two more out of every 
 hundred, which two associated to themselves ten other 
 principal freemen, and those twelve were to answer con- 
 cerning aU particulars relating to their own district (that 
 is, hundreds or wapentakes). " It has been shown," 
 says Mr. Fors5d;h (in his History of Trial by Jury), 
 "that these jurors were the representatives of and sub- 
 stitutes for the fama patricB or public rumour by which 
 in aU times when a man was assailed he was said to 
 be male creditus. . . . For some tittie there appears 
 to have been no difference between this accusing jury 
 and the tr3ang jury, nor can the exact period be deter- 
 mined when they became separate and distinct. Most 
 
10 A CHANCE MEDLEY 
 
 probably, however, this happened when the ordeal fell 
 into desuetude and was no longer resorted to as a means 
 of testing the truth of the accusation." With this 
 account of the origin of the grand jury Sir James Fitz- 
 james Stephen {History of the Criminal Law, c. viii.) 
 agrees. 
 
 Probably no grand jury ever ignores a bill in a case 
 where the petty jury would convict, but, after all, 
 its chief merit is that it can only act in favorem 
 libertatis ; it gives the accused an extra chance. 
 
 The Autumn Quarter Sessions must be held in the 
 first week after October ii. " The common law," 
 says Blackstone, " hath ever had a special care and 
 regard for the conservation of the peace, for peace is 
 the very end and foundation of civil society. And, 
 therefore, before the present constitution of justices 
 was invented, there were peculiar officers appointed by 
 the common law for the maintenance of the public 
 peace. Of these some had and stOl have this power 
 annexed to other offices which they hold ; others had it 
 merely by itself, and were thence named custodes or 
 conservatores pads. Those that were so virtute officii 
 still continue ; but the latter sort are superseded by the 
 modern justices." 
 
 The judges of the High Comrt are conservators of 
 the peace for the whole country, and for centuries 
 the judges acted as justices of the peace, and sometimes 
 do so now, but perhaps not as judges. In 1327 it was 
 enacted that " in every county good men and lawful 
 which be no maintainers of evil or barretors in the 
 country should be assigned to keep the peace." This, 
 according to Sir J. F. Stephen, put an end to the election 
 of conservators and was the beginning of legislation 
 
HISTORICAL II 
 
 with regard to justices of the peace. " At first their 
 authority was simply executive, being limited probably 
 to suppressing disturbances and apprehending offenders, 
 so that they were little more than constables on a 
 large scale." The foundation of the jurisdiction of 
 Quarter Sessions is the Statute 34 Edward III., c. 1, 
 1360, by which the court could try all manner of felonies 
 and trespasses done in the same county. Earlier 
 there had been a commission for several counties ; 
 this statute secured one to each, and, it is conjec- 
 tured, led to the title of Justice of the Peace. The 
 constitution of the court has never been materially 
 altered. 
 
 The Commission was settled in 1590 by Wray, 
 L.C.J., and other judges, and was substantially in use 
 down to 1878. The justices are to " hear and deter- 
 mine all felonies, poisonings, enchantments, sorceries, 
 arts magic, trespasses, forestaUings, regratings, ingross- 
 ings, and extortions, and all other crimes and offences 
 of which such justices may, or ought, lawfully to 
 inquire ; " but, "if a case of difficulty shall arise, 
 they shall not proceed to give judgment except in the 
 presence of some justice of one of the benches or of 
 assize." There is abundant evidence that quarter- 
 sessions originally had power of life and death. 
 
 " The function " of nominating the sheriffs is often 
 confused with the " pricking," a totally different per- 
 formance. Before the Judicature Act of 1873, " on 
 the morrow of St. Martin, they assembled in the Ex- 
 chequer Division, the great officers of State arranging 
 themselves on the bench, with the Lord Chief Baron 
 presiding, and the judges who went the previous sum- 
 mer circuit sitting below" (Serjeant Atkinson on 
 
12 A CHANCE MEDLEY 
 
 "Sheriffs"). Now the Chancellor of the Exchequer 
 presides in gorgeous robes. Since the Promissory 
 Oaths Act of 1871 no oath has been administered, but 
 formerly the Queen's Remembrancer caused the 
 whole bench to swear that they would nominate 
 no one from an improper motive. It is that 
 official's business to keep a roll of the names 
 of three gentlemen eligible for each county, except 
 Lancashire and Cornwall. One is serving at the 
 moment, so that as a rule he only has to supply two 
 names each year. If there are two over from the year 
 before, he gets only one name from the judge who, 
 so to say, appears for that county. This his lordship 
 supplies from a list of extra names of gentlemen 
 eligible, with which he has been supplied by the out- 
 going sheriff. In case of any objection being made to 
 or excuse accepted from any nominee — matters on 
 which counsel may be heard, and which are settled there 
 and then — the judge may be called upon for more than 
 one name. When the required three names are on the 
 roU, the list is forwarded to the Privy Council office 
 and gazetted. Some time in January her Majesty 
 in Council, attended by the Lord President and 
 other councillors, " passes the point of a bodkin " 
 through one of the names, usually the first of the 
 three. 
 
 The office of sheriff is one whose origin is lost in 
 obscurity. " We are able to trace its comse with pre- 
 cision for a thousand years or thereabouts, but after 
 that we begin to lose sight of it, and it gradually 
 disappears amid the haze that overspread the land 
 upon the decline and fall of the Roman Empire." His 
 intimate and enduring connexion with the counties, 
 as we know them, is generally supposed to date from 
 the great rearrangement by Alfred in 872. 
 
HISTORICAL 13 
 
 In the Christmas vacation there is no drearier spot 
 in deserted London than the Temple. Yet it was not 
 ever thus, and those who regret the old college life of 
 the four Inns must feel, at Christmastide especially, 
 that the glory is departed, for it was a merry time. 
 Indeed, in the seventh year of Charles I the Parlia- 
 ment of the Inner Temple found it necessary to make 
 certain orders for keeping " good rule " thereat. These 
 have been preserved by Dugdale, Garter King of 
 Arms, in his Origines, a book published in 1666, nearly 
 every copy of which perished in the Great Fire. The 
 first was : That Christmas Commons should continue 
 by the space of three weeks only, and no longer, 
 according to the antient usage and custome of this 
 House. There was to be no allowance of wine, " but 
 only one Pottle to the Stewards Mess." There was to 
 be no drinking of healths ; " nor any wine or tobacco 
 uttered or sold within the House." " There shall not 
 be any knocking with boxes or calling aloud for 
 gamesters." " That no play be continued within the 
 house upon any Saturday night or upon Christmas 
 Eve at night, after xii. of the clock." The next 
 regulations throw a flood of light upon the manners of 
 the time. " That there be not any going abroad out 
 of the Circuit of this House, or without any of the 
 gates, by any Lord or other Gentleman to break open 
 any House or Chamber, or to take anything in the 
 name of Rent or a distress." " That, for preventing 
 of Quarrels within the House, and that general scandal 
 and obloquie which the House had heretofore in- 
 curred in time of Christmas, there shall no gentleman 
 of this House side with any person whatsoever, that 
 shall offer to disturb the peace and quiet of the House ; 
 but shall indeavour to punish them according to the 
 old Custome of the House ; and that no Strangers 
 
14 A CHANCE MEDLEY 
 
 be sufeed to come within the Hall but such as shall 
 appear and seem to be of good sort and fashion." 
 
 The New Year (1895) will mark an epoch in the history 
 of commerce in this country. The attempt to galvanize 
 into life the Guildhall sittings, designed for the peculiar 
 convenience of the merchants of the greatest emporium 
 in the world, has been definitely abandoned, and 
 simultaneously the experiment is announced of a 
 Special Commercial Court, consisting of the Lord 
 Chief Justice, Mr. Justice Mathew, and Mr. Justice 
 Henn Collins. 
 
 Lord Campbell narrates that on one occasion, about 
 1820, some one pressing into Lord Tenterden's court, 
 the judge asked him what he was. " My lord," he 
 said, " I am the plaintiff's solicitor." To which Lord 
 Tenterden rejoined, " We know nothing of solicitors 
 here, sir. Had you been in the respectable rank of 
 an attorney I should have ordered room to be made 
 for you." 
 
 It may not be out of place to quote what an American 
 jurist, who was Minister of the United States at Berlin 
 in 1836, says of " the Monroe doctrine." Wheaton 
 (Elements of International Law) states that this policy 
 acquired its name from its having received its most 
 explicit enunciation in President Monroe's seventh 
 annual Message to Congress in 1823, in the course of 
 which the following passage occurs : " We owe it to 
 candour and to the amicable relations existing between 
 the United States and those [the European] Powers to 
 
HISTORICAL 13 
 
 declare that we should consider any attempt on their 
 part to extend their system to any portion of this 
 hemisphere as dangerous to our peace and safety." 
 Wheaton's comment is : " This political formula has 
 been, to a great extent, acted upon by the United 
 States, especially with regard to their taking no part 
 in European politics. Nevertheless it stiU exists only 
 as a ' doctrine ' and has not been incorporated into 
 any legislative enactment or into any convention." 
 
 (Dec, 1895.) 
 
 The jurisdiction of the Judicial Committee of the 
 Privy Council arose, according to Sir William Anson, out 
 of the very ancient institution of the king in council, 
 who " was stiU the resort of the suitor who could not 
 obtain justice in one of the dependencies, and the Act 
 [of the Long Parliament] which took away the original 
 jurisdiction of the king in council at home did not 
 touch petitions from the adjacent islands or the plan- 
 tations." The Channel Islands were the first to appeal 
 to this tribunal ; Jersey, for instance, in the time of 
 Henry VIII ; the " plantations " were next, and in 
 1716 the Isle of Man followed. Thus down to 1833 
 eQI petitions from places not strictly part of Great 
 Britain were dealt with by an " open " committee, 
 that is, the whole Council. By this time, too, the 
 Council had charge of matters relating to the custody 
 of the person and property of lunatics. " For the 
 House of Lords had declined to deal with such cases, 
 holding that the matter was one of Royal prero- 
 gative entrusted by the King to the Chancellor." In 
 1832 the ecclesiastical and admiralty appeals of the 
 Court of Delegates were transferred to the Council. 
 
 In 1833 the Judicial Committee was constituted, 
 
i6 A CHANCE MEDLEY 
 
 with the result that it is now practically the final Court 
 of Appeal from the sentence of every court of justice 
 throughout the colonies and other dependencies of the 
 realm, and at the same time has special jurisdictions in 
 certain ecclesiastical and maritime appeals, and in 
 certain applications under the Patent Acts and the 
 Copyright Acts. Moreover, it still enjoys the historical 
 privilege of inquiring into offences against the Govern- 
 ment, and committing the offenders to safe custody in 
 order that they may be tried according to law. 
 
 Early in the fourteenth century we find the two 
 branches of the legal profession well established, but 
 even then it appears that in only about 5 per cent, 
 of the cases reported in the Year Books was one side 
 or the other represented by counsel. It was stiU usual 
 for parties to appear in person, and though it is now 
 happily rather the exception, the right to do so is un- 
 disputed. The exclusive audience of the bar only 
 amounts to this, that if a party choose to employ an 
 agent to appear for him in the High Court, that agent 
 must be a barrister. But in appljdng for a mandamus 
 a party is really appearing for the Crown, not on his 
 own behalf, and this can only be done by counsel. 
 The proceedings are, like a criminal prosecution, pro- 
 ceedings by the Crown instituted by a private person. 
 It is on this principle that at a criminal trial counsel 
 must be briefed for the prosecution, though a few 
 years ago a prosecutor appeared in person at the Old 
 Bailey and conducted his own case, without objection 
 being taken. Curiously enough, though counsel are 
 necessary for the prosecution, prisoners in cases of 
 felony could not defend by counsel until permitted to 
 do so by an Act of 1836. In treason, counsel for the 
 
HISTORICAL 17 
 
 defence had been allowed since 7 & 8 William III, 
 and in misdemeanour defendants had long had that 
 advantage at common law. 
 
 It is not often we enjoy the antiquarian luxury of 
 seeing a court that has not sat for fourteen years, but 
 it happened in the City in July, 1896, when the Court 
 of Hustings was held. " The Hustings," says Ser- 
 jeant PuUing, " is the County Court [in the ancient 
 sense] of London, and as such has all the powers inci- 
 dent thereto, and retains a great deal of the now obso- 
 lete jurisdiction of the ancient sciremofe. It is con- 
 sidered the highest court of judicature in the City." 
 It was the only court of appeal from the sheriffs' 
 court ; but in 1842 there was " no instance of such a 
 proceeding " as reversing a judgment " within the 
 memory of the present officers," and practically the 
 only jurisdiction left is that of enrolling deeds and 
 wiUs, which attaches to it as an old county court. 
 It was for the former purpose that it met in 1896. 
 
 County quarter sessions are among our most venerable 
 institutions. They were established by statute in 1344, 
 and soon had conferred on them a most extensive 
 jurisdiction, which they retained from 1360 till 1842. 
 During the whole of that time they were empowered 
 " to hear and determine at the King's suit all manner 
 of felonies and trespasses done in the same county." 
 Throughout the sixteenth century they in fact sentenced 
 to death large numbers of people, who were executed 
 upon their sentence. But as time went on it became 
 the practice to leave all important cases for the assizes, 
 and Blackstone says that in his time " they seldom, if 
 ever, try any greater offence than small felonies within 
 
 c 
 
I 8 A CHANCE MEDLEY 
 
 the benefit of clergy." That is, those felonies for 
 which capital punishments could be escaped on a first 
 conviction by pleading benefit of clergy. Forgery and 
 perjury, though misdemeanours, were also excluded 
 from their jurisdiction, and the sessions tried but few 
 cases except simple larcenies. 
 
 In 1842 the powers of quarter sessions both in bor- 
 oughs and in counties were exactly defined by an Act, 
 which excluded from their cognizance prisoners accused 
 of treason, murder, or of any capital felony, or of any 
 felony for which on a first conviction an offender may 
 get penal servitude for life, or of a number of spe- 
 cified crimes, the commonest of which are perjury, 
 forgery, bigamy, and concealment of birth. As a 
 burglar may have penal servitude for life he could not 
 be tried at sessions before the passing of the Act of 
 1896. The Act, however, provides that a person 
 accused of burglary is to be committed to the assizes, 
 unless the committing justices think that the case 
 is one which may be tried at quarter sessions. 
 
 Borough quarter sessions, though now closely assimi- 
 lated to those of counties, have a different origin. 
 They owe their inception to the ancient courts granted 
 by charter to most boroughs at the time of their incor- 
 poration. These courts had usually civil and criminal 
 jurisdiction over all wrongs and crimes committed in 
 the town. The judges were the mayor, aldermen, and 
 recorder. The civU jurisdiction has survived in a 
 few places, such as the Mayor's Co\u:t, London, the 
 Liverpool Court of Passage, and the Tolzey Court at 
 Bristol. The ancient criminal courts were abolished 
 by the Municipal Corporations Act, 1836, which sub- 
 stituted borough courts of quarter sessions, presided 
 over by a recorder, who has in criminal matters pre- 
 cisely the same jurisdiction in his borough that the 
 
HISTORICAL 19 
 
 justices have in the county. A few small incorporated 
 villages were not affected by the Act, and they stiU 
 have in theory local courts with power to inflict capital 
 punishment. But, it need hardly be said, their power 
 is never exercised, and is for all practical purposes 
 obsolete. In the county of London, though the court 
 is a court of quarter sessions, the sessions are held 
 fortnightly. Besides their original jurisdiction county 
 sessions hear appeals from justices and rating, licensing, 
 and pauper removal appeals, and are the authority for 
 stopping up and diverting highways. 
 
 The judges were summoned to advise the House of 
 Lords — that is, the Law lords — on the issue in Flood v. 
 Jackson. The judges have not been thus summoned 
 since 1881 (Angus v. Dalton, a case on the right of 
 lateral support from adjoining land). Formerly they 
 were called in much more often — owing, perhaps, to the 
 fewness of peers available for the appellate jurisdiction. 
 The origin of the summons goes back to the days before 
 the King's ancient council passed into the House of 
 Lords. To that assembly, as a judicial body, they have 
 always been summoned, not to sit as peers of Parliament, 
 but to advise ; and whenever a new Parliament is called 
 they get their writs in due course. These writs, how- 
 ever, hke those to the Attorney- and Solicitor -General 
 and the Queen's " Ancient Serjeant," are " of attend- 
 ance," not " of summons." Before the Judicature Act 
 only the Common Law judges received the writ ; 
 now all the High Court judges get it, except the Lords 
 Justices of Appeal, whose " higher rank is thought to 
 exempt them." This attendance, according to Sir 
 WOliam Anson, " is regarded rather as an obligation 
 than as a dignity." 
 The custom led to an extraordinary scene in 1694. 
 
20 A CHANCE MEDLEY 
 
 The Lords ordered that all the judges should attend 
 the House " immediately upon the rising of the respec- 
 tive Courts in Westminster Hall, and do not go away 
 until the rising of the House." When they arrived 
 Lord Keeper Somers addressed them very sternly- 
 " I am commanded to tell you that you have the 
 honour to be the assistants here, and the House takes 
 notice of your great negligence in your attendance. 
 ... If this fault be not amended for the future the 
 House will proceed with great severity against you." 
 But later in the year the reprimand had to be repeated. 
 At that time the judges were expected to attend daily, 
 and carried messages from the Lords to the Commons. 
 
 (Jan., 1897.) 
 
 Thanks to the energy and public spirit of Sir Harry 
 Poland, Q.C., there has been added to the library of the 
 Inner Temple an intensely interesting little collection 
 inscribed " Serjeants' Rings." It contains four gold 
 rings which once belonged to Serjeants ChanneU (1840), 
 Crompton (1852), Ballantine (1856), and Field (1875) 
 respectively. The dates are those of their being made 
 Serjeants. All these gentlemen, except Ballantine, be- 
 came judges. On each ring is engraved the motto the 
 Serjeant took. Channell's is Quid quandoque deceat ; 
 Crompton's Quaerere verum ; Ballantine's facta est 
 aha ; and Field's Vais ce que doit avienne que ■pourra. 
 
 These rings were distributed by the new members of 
 Serjeants' Innto the old ones before that Inn was broken 
 up. Previous to that event all common law judges 
 had to be Serjeants before they were raised to the Bench, 
 and some judges stUl wear the coif, the privilege of that 
 order. Serjeant Bellasis has left an account of his being 
 swprn in in 18/^4. After the oath his " colt " (an 
 
HISTORICAL 21 
 
 attendant barrister) " presented the Chancellor with 
 the royal ring, requesting him to present it to her 
 Majesty, and also with a ring for himself," and then 
 " deUvered rings for me " to several judges. " The 
 Queen's ring was very large , . . the rest were of 
 various sizes, according to the dignity of the person 
 they were presented to." These rings have now become 
 very scarce, and Sir Harry Poland has had the greatest 
 difficulty in recovering these few comparatively modern 
 ones. Any one coming across gold rings with an 
 inscription — it was nearly always in Latin — would do 
 well to see if it could not be identified possibly with 
 some historic name. In some of the older reports the 
 creation of the Serjeants is recorded, with their 
 mottoes. There is a story that when a very long-winded 
 Serjeant took as his motto Carpe diem, Baron Alderson 
 exclaimed, " Ah ! yes, take a whole day." 
 
 (Feb.. 1897.) 
 
 An ancient court now nearly, if not quite, obsolete 
 was the court of pie powders, or pieds poudres, the court 
 of dusty feet. This was a court attached to every 
 market, at which the steward of the market did sum- 
 mary justice in disputes arising in the market. Such 
 a court is said to have been held in Bristol until quite 
 recent years. Some of the first germs of our mercantile 
 law may be traced to the courts of pie-powder. 
 
 Baron Pollock, the " last of the Barons," died 
 characteristically, it has been said, " in harness." 
 Baron Pollock was, of course, the chief representative, 
 if not the head, of one of our great legal families 
 (though we have not yet had in this country, as Scot- 
 land has, father, son, and grandson in lineal succession 
 
22 A CHANCE MEDLEY 
 
 on the bench). He was one of the few men — all, 
 probably, judges — who have been twice benchers 
 of their Inn. For centuries a judge, on his appoint- 
 ment, migrated from his particular society to Ser- 
 jeants' Inn. On the dissolution of that body the 
 judges, now without an Inn, were readmitted to 
 their former benches, and thus Pollock and a few of his 
 contemporaries were the only persons twice benchers. 
 
 He was not, as a rule, given to saying smart things, 
 but a " neat score " by him is stiU remembered. On 
 one occasion counsel for the parties before him were 
 wrangling on some point (which he deemed irrelevant) 
 as to the number of children or the childlessness of 
 certain persons. " Don't you think," he said, quietly, 
 " we had better confine ourselves to the issue in the 
 case ? " 
 
 The " Exchequer," of which Baron Pollock was 
 the last surviving Baron, was a court, the Hst of judges 
 of which goes back to about 1212. It originally had 
 jurisdiction only in matters concerning the revenue 
 of the Crown, and was, therefore, sometimes adminis- 
 tered by laymen ; but by degrees the fiction sprang up 
 that suitors could not pay their debts to the Crown 
 because other people did not pay them, and so the Ex- 
 chequer Court took cognizance of the cause between 
 these parties and thus greatly enlarged its jurisdiction. 
 It continued to exist till 1875, when by the Judicature 
 Acts it was ultimately merged in the Queen's Bench 
 Division of the High Court, and along with PoUock, 
 Fitzroy Kelly, BramweU, Cleasby, Amphlett, and 
 Huddleston were transferred (first, to the Exchequer 
 Division). 
 
 (Nov., 1897.) 
 
 Judicial hours a hundred years ago are well iUus- 
 
HISTORICAL 23 
 
 trated in the Private Papers of Wilberforce, which 
 have recently appeared, by a letter from Lord EUen- 
 borough, Chief Justice of the King's Bench, to Mr. 
 Wilberforce, in which he speaks of " my necessary 
 attendance during the sittings at Westminster and 
 Guildhall, and which occupy me from half-past eight 
 to four or later every day, and on some days I am after- 
 wards obliged to attend the House of Lords till be- 
 tween five and six." He is, he says, in the " King's 
 Bench Treasury Chamber " at Westminster, by half- 
 past eight, and his sittings begin at nine. One of Lord 
 Bowen's wittiest shafts was aimed at a judge of whom 
 he said that he obeyed the precept of the hjmin, 
 " Shake off dull sloth and early rise ! " 
 
 (March, 1898.) 
 
 Some queer things have got into Bills and Acts. A 
 clause in a Metropolitan Watch Bill once came before 
 the Committee of the House in the form that " the 
 (night) watchmen should be compelled to sleep during 
 the day." A member hoped that the enactment would 
 be extended to the House. Another statute actually 
 provided that for a certain offence the punishment 
 should be fourteen years' transportation, " and that 
 upon conviction one-half thereof should go to the king 
 and one-half to the informer " ! Obviously, the 
 original draft had imposed a fine, and when this had 
 been altered the consequential verbal changes had 
 been neglected. 
 
 Nov. 14, 1898, was a red-letter day at the Inner 
 Temple. After a lapse of some two centuries the 
 " Lector " (Mr. Bayhs, Q.C.) revived the ancient 
 
24 A CHANCE MEDLEY 
 
 custom of " prselecting." It appears from his address 
 that his office is a very ancient one ; formerly every 
 barrister of a certain standing had the duty of pubhcly 
 instructing the juniors and students in law. But this 
 was not their only duty, for they also had to provide 
 a feast at the conclusion of their lectures ; one course 
 made many. " But," says an old steward of the 
 Middle Temple, whose curious history of that Inn has 
 lately been unearthed, " the Readings were made 
 occasion of emulation, each striving to outvie another 
 in grandeur, notwithstanding many orders of the 
 Bench in Parliament were made from time to time to 
 restrain those exorbitant expenses which rendered 
 the Readings so extremely chargeable that many de- 
 clined them . . . therefore by an order 25 June, 1680, 
 the publick Readings were suppressed." The feast 
 was commuted for two hundred pounds to the Inn, so 
 it must have cost a pretty penny. The coats of arms 
 of the Lectors — there were once two a year — from a 
 very early date have surrounded the two halls. 
 
 By the death of Dr. Spinks, Q.C., disappears from 
 the Bar one of the last, if not the last, of the race of 
 men against whose name " D.C." (Doctors Commons) 
 appears in the Law List. The institution to which 
 they belonged, familiar to aU readers of David Copper- 
 field, and commonly called the CoUege of Advocates, 
 was more properly the College of " Doctors of Law 
 exercent in the Admiralty and Ecclesiastical Courts," 
 where they had an exclusive practice ; the president 
 was the Dean of Arches. The reforms of 1857 (to 
 1859), which brought into existence the modern 
 Probate, Divorce, and Admiralty Courts, swept the 
 
HISTORICAL 25 
 
 old college away, but threw open the new ground to 
 all advocates and barristers alike, the former of whom 
 were then generally called to the Bar. Thus Dr. 
 Spinks was admitted to the Inner Temple in 1858, 
 ultimately becoming a bencher, and took silk in 1866. 
 The Ecclesiastical Courts are now also open to 
 barristers. 
 
 (Jan., 1899.) 
 
 The privilege of exemption from attendance on 
 Committees of the House of Commons, which barrister 
 members have just lost, rested on no authority what- 
 ever. Sir Erskine May does not even mention it. It 
 is a great compliment to the profession that it was a 
 solicitor's motion which restored them to this service. 
 
 (March, 1899.) 
 
 The appointment of the Rev. A. W. Foster to be 
 High Sheriff of the county of Hereford has been gener- 
 ally noticed owing to the comparative rarity of a clergy- 
 man filling this office. It is periodically pointed out 
 that a woman may be a sheriff, and that Anne Clifford, 
 Countess of Dorset, Pembroke and Montgomery, 
 actually was so about 1650, and sat on the bench at 
 Appleby Assizes with the judge. 
 
 (June, 1899.) 
 
 Wigs only came in after the Restoration — ^from 
 France, by no means as a special forensic fashion. 
 Indeed, at first, according to Campbell — and the fact 
 illustrates the authority of the bench on these matters 
 ^-" the judges thought them so coxcombical that they 
 
26 A CHANCE MEDLEY 
 
 would not suffer young aspirants to plead before them 
 so attired. Who would have supposed that this gro- 
 tesque ornament, fit only for an African chief, would be 
 considered indispensably necessary for the adminis- 
 tration of justice in the middle of the nineteenth 
 century ? " Once introduced, they stuck fast, and 
 became a signal instance of the conservatism of the 
 Bar, for when, about 1838, an invention appeared 
 which, without the use of powder, made wigs look as 
 if they were powdered and no longer dirty. Judge 
 Alan Park actually refused to recognise his own son at 
 the Bar in one of them. The bands, by the way, are 
 (very attenuated) sutvivals of the broad flat coUar once 
 common to all classes, and, in their present form, 
 do not go further back than the Restoration. In re- 
 cent years, judicial cognisance has been taken of the 
 (hot) weather by many judges, including Baron Martin, 
 Lord Blackburn, Lord Hannen, Lord Feild, Baron 
 Pollock, and Lord Chief Justice Russell, who have 
 taken off their own wigs and invited counsel to do the 
 same. 
 
 The statement that has been made that no English 
 counsel had ever been attacked as Me. Labori was at 
 Rennes is partially incorrect, for no less a person than 
 the present Lord Chancellor was shot at on September 
 18, 1854, in open court at the Old Bailey. Mr. Gifiard 
 had at that date been called four years. His assailant, 
 who was at once arrested and was tried at the next 
 sittings, was a Gloucestershire parson of good family, 
 who was undoubtedly out of his mind. This was 
 abundantly proved, and was indicated by his persis- 
 tent rejection of Mr. Clarkson's services for his defence 
 and by his address to the jury, which was nothing but 
 
HISTORICAL 27 
 
 a demonstration of his insane delusion that at a recent 
 trial at Cardiff, at which he had been a mere spectator, 
 but in which Mr. Giffard was engaged, the latter had 
 said something offensive to him. The jury, by the 
 direction of Lord Chief Baron Pollock, found him not 
 guilty on the ground of insanity, and he was sent to 
 Broadmoor "during her Majesty's pleasure." 
 
 (Aug., 1899.) 
 
 In 1756 the French overran Minorca, and besieged 
 Fort St. Philip. Byng's specific instructions were to 
 reheve it. In the attempt to do so, he fought an 
 action, and was beaten ; thereupon he left Minorca 
 to its fate. When the news reached home, he was 
 ordered to be superseded, and sent home under arrest. 
 He was tried by court-martial at Portsmouth on 
 December 28. 
 
 " After continuous sitting," says his biographer, 
 Professor Laughton, " till January 27, 1757, this court 
 pronounced that Admiral B5Tig had not done his 
 utmost to relieve St. Philip's Castle, which it was his 
 duty to relieve ; had not done his utmost to take, 
 seize, and destroy the enemy's ships which it was his 
 duty to engage, or to assist those of his Majesty's ships 
 which it was his duty to assist. For this neglect of 
 duty the court adjudged him to fall under part of the 
 12th article of war and, according to the stress of that 
 article, sentenced him to death. To this sentence 
 they added an earnest recommendation to mercy 
 on the grounds that they did not believe the admiral's 
 misconduct arose either from cowardice or from dis- 
 affection, and that they had passed the sentence only 
 because the law in prescribing death left no alternative 
 to the discretion of the court." 
 
28 A CHANCE MEDLEY 
 
 That a court-martial is an unfit tribunal to try any 
 but technically military or naval cases is now, perhaps, 
 the view of the civilised world ; but that Byng was 
 " judicially murdered " the authority just cited will 
 not allow. He points out that the terms of the article 
 under which he was convicted explicitly include " negli- 
 gence " as a ground of condemnation, and that the 
 court had no option in their sentence. The law had 
 only been recently and purposely altered in order to 
 take away the court's discretion, and Byng was the 
 first to suffer by it, and the novelty of the sentence 
 procured him much sympathy. Parliament refused to 
 interfere, and the King would show no mercy. It is 
 of this severity — and not of the trial — ^that such bitter 
 complaint has since been made. In the paper he left 
 with the provost-marshal Byng described himself as 
 " a victim destined to divert the indignation and 
 resentment of an injured and deluded people " ; and 
 herein lies the true analogy with the trial at 
 Rennes. 
 
 In this country the ordinary law loudly proclaims its 
 supremacy over all courts-martial as inferior courts. 
 Thus, the High Court not only restrains these tribunals 
 when they act without or in excess of their jurisdiction 
 and holds the members of them so acting personally 
 liable for any injury to person, property, or character, 
 but it is the special business of the Judge Advocate- 
 General's department to review the sentences of all 
 general and district courts-martial in the United King- 
 dom (and of many out of it), that is to say, of every such 
 Court which does not deal with trifling offences, and 
 it is only upon his advice that the confirming officer, 
 which may be the Crown, confirms the sentence. The 
 Judge Advocate-General is assisted by two salaried 
 Deputies, one legal and one miUtary. The office, it 
 
HISTORICAL 29 
 
 may be noted, was founded for the protection of the 
 private soldier. 
 
 (Sep., 1899.) 
 
 What is Martial Law ? In the proper sense of the 
 term, according to Mr. Dicey, " it means the suspension 
 of ordinary law and the temporary government of a 
 country or parts of it by military tribunals " — a state 
 of things " unknown to the law of England. We have 
 nothing equivalent to what is caUed in France " and 
 many other foreign countries " the ' Declaration of the 
 State of Siege,' under which the authority ordinarily 
 vested in the civil power for the maintenance of order 
 and police passes entirely to the army." Military 
 tribunals, in fact, administer all law. " We shall hardly 
 go far wrong if we assume that during this suspension 
 of ordinary law any man whatever is liable to arrest, 
 imprisonment, or execution at the wiU of a military 
 tribunal consisting of a few officers who are excited by 
 the passions natural to civil war. . . . Now, this kind 
 of martial law is in England utterly unknown to the 
 Constitution. Soldiers may suppress a riot as they 
 may resist an invasion. They may fight rebels just 
 as they may fight foreign enemies, but they have no 
 right under the law to inflict punishment for riot or 
 rebellion. During the effort to restore peace, rebels 
 may be lawfully killed . . . but any execution (inde- 
 pendently of military law) inflicted by a court-martial, 
 is illegal and technically murder." 
 
 Martial law has, however, been at times established 
 in Ireland, as in 1799, 1803, and 1833, but only for a 
 limited time and under temporary statutes. Military 
 law, though the terms were originally interchangeable, 
 is now a very different matter, " Military law," says 
 
30 A CHANCE MEDLEY 
 
 Lord Thring in the manual published by the War 
 Office, " is the law which governs the soldier in peace 
 and in war, at home and abroad." 
 
 Its great foundation is now the Army Act of 1881, 
 supplemented by the Queen's Regulations and the 
 Commander-in-Chief's orders. It now takes the place 
 of the Mutiny Act and of the Articles of War, and its 
 annual re-enactment by a separate statute to preserve 
 the rights of Parliament over the standing army, is a 
 fundamental principle of the Constitution. The only 
 persons who can be tried by courts-martial are those 
 under this Act subject to military law. 
 
 There is one exception to this rule. In the case of 
 an invasion, offenders against the rules established by 
 military occupation are tried by military courts, prac- 
 tically (but not technically) courts-martial. Nominally, 
 they are tribunals set up and regulated by the wiU 
 of the general in command ; in effect, they administer 
 martial law. 
 
 As a curiosity may be mentioned the obsolete Court 
 of Chivalry, which, says the well-known work founded 
 on Blackstone's, " was anciently a court-mihtary, held 
 before the Lord High Constable and the Earl Marshal 
 of England, and which court was of an eccentrical 
 character, foreign to the general or common law of the 
 realm. And although this court was not a court of 
 record, yet it had a jurisdiction, criminal as weU as 
 civil, relating to deeds of arms and of war, and to the 
 redressing of injuries of honours and encroachments in 
 matters of coat armour, precedency, and other distinc- 
 tions of families. As a court of honour, the court 
 gave satisfaction where no other remedy was available 
 by ordering reparation in point of honour ; and for 
 that purpose it would, for example, compel the defend- 
 ant to take the lie upon himself or to make such other 
 
HISTORICAL 31 
 
 submission as the law of honour required, but the court 
 did not award pecuniary satisfaction or damages." 
 
 (Oct. 19, iSgg.) 
 
 As at a University election the proceedings are not 
 
 governed by the Ballot Act, the return is accompanied 
 
 by an indenture to which the returning ofi&cer and some 
 
 of the electors are parties. This incident is a survival 
 
 from ancient times when it was necessary to ensure 
 
 the identity of the person elected with the person who 
 
 presented himself at Westminster by means much 
 
 more formal than are now employed, and is regulated 
 
 by statutes as old as the days of Henry IV and 
 
 Henry VI. 
 
 (Feb. 1900.) 
 
 If the hon. member who suggested the abolition of 
 Norman-French in the process of legislation had glanced 
 at Sir Erskine May's great work he would have seen 
 how 'Superfluous a piece of vandalism this would be. 
 Hardly half a dozen phrases of this dialect now survive. 
 Of these are weU known, " la reyne le veult," " soit 
 fait comme il est desire," and when the Royal assent 
 is refused " la reyne s'avisera " — a formula, by the 
 way, not heard since 1707. When a bill is sent to the 
 Lords, the Clerk writes on it " soit bdlle aux seigneurs ; ' ' 
 the endorsement " a ceste biUe avesque des amen- 
 demens les seigneurs sont assentus " speaks for itself. 
 CromweU gave his assent to bills in English, but at 
 the Restoration the old monarchical custom was re- 
 vived. In 1706 the Lords passed a bill' to abohsh 
 French in Parhament and the courts of law, but the 
 bill was dropped in the Commons. Parliament has 
 
32 A CHANCE MEDLEY 
 
 only spoken English since the reign of Henry VI. 
 The use of Norman-French is so closely intertwined 
 with the early foundations of our Constitution that 
 purposeless destruction of its few relics wotild be mere 
 iconoclasm. " It would be hardly too much to say," 
 according to Messrs. Pollock and Maitland, " that at 
 the present day almost all our words that have a definite 
 legal import are, in a certain sense, French words," 
 and they point out that nearly all the technical terms 
 of the common law are French. " The Middle Ages," 
 these authorities add, " are just at an end before the 
 records of the Enghsh Legislature are written mainly 
 in English, and to this day, as we all know, what a 
 lawyer must regard as the most solenrn of all our formu- 
 las, is French : ' Lare5niele veult.' " The law reports 
 of the sixteenth century, they tell us, are not Norman- 
 French, but " dog-French." 
 
 (March, 1900.) 
 
 Carter's, the barber's shop in Fleet Street, opposite 
 Chancery Lane, is almost a legal institution, and has 
 a becoming antiquity. The County Council has re- 
 solved by one vote to preserve it. It wiU, therefore, 
 be doubly associated with a close shave. 
 
 (April, 1900.) 
 
 1 he office of the Master of the Rolls dates back, it is 
 said, to 1286. He was originally the chief clerk or 
 master to the Chancellor, but soon became a very im- 
 portant independent judge. In 1875 he was made a 
 judge of the Chancery Division of the High Court of 
 Justice, and an ex officio judge of the Court of Appeal ; 
 in 1881 he became exclusively a judge of the Court of 
 
HISTORICAL 33 
 
 Appeal. In 1838 he was made by statute keeper of the 
 archives in the Public Record Office. It may be men- 
 tioned that, for the first time for many years, the 
 presiding judges of both Courts of Appeal are common 
 lawyers. 
 
 (May, igoo.) 
 
 The Great Seal, it is announced, has been worn out 
 — a tribute to the industry of the Chancellor, whose 
 perquisite it will become when the new one is ready. 
 One holder of j it, Campbell, traces its origin to the 
 " Norman fashions " of which Edward the Confessor 
 (A.D. 1043) was fond, and asserts that this was the 
 model which has been followed ever since. After the 
 execution of his father. Prince Charles had a Great 
 Seal made in Holland, but this was lost after the battle 
 of Worcester in 1651, " probably thrown into the 
 Severn. ' ' He had another made in Paris, and this Hyde, 
 afterwards Lord Clarendon, brought back with him 
 to England in 1660, and used as Chancellor, it having 
 been delivered to him at Bruges. There was a great 
 scene in the House of Commons two hundred and forty 
 years ago, when the Republican Great Seal, under 
 which writs had been issued in the name of the 
 " Keepers of the Liberties of England," but which 
 was an exact copy of the late King's, captured 
 at Oxford in 1646, was brought in and defaced. 
 We are more certain that the Great Seal was thrown 
 into the Thames by Charles's brother, James II, 
 when he crossed in his flight by the horse ferry at 
 Westminster, " and thought he had sunk with it for 
 ever the fortunes of the Prince of Orange," for it was 
 fished up and actually used tiU 1689. 
 
 When William IV came to the throne Lyndhurst 
 
34 A CHANCE MEDLEY 
 
 was Chancellor, but by the time a new Great Seal was 
 ready Brougham was to hold it. Hence there arose 
 a friendly dispute between these two eminent men 
 whose perquisite the old one was. The King, " like 
 another Solomon, ordered the subject in controversy 
 to be cut in twain and divided between them." Each 
 half was fitted into a handsome silver salver, engraved 
 with the arms of the recipient, and presented to each 
 by the Sovereign. An exactly similar state of things 
 having arisen between Lord Chelmsford (1858-9) and 
 Lord Campbell in i860, the latter made an iimocent 
 plot with Lyndhurst in order to get her Majesty to 
 follow the last precedait. Lyndhurst wrote Campbell 
 a letter telling the story of William IV — who tossed 
 up which Chancellor should have which side, the 
 designs being different — not forgetting his hberality in 
 the matter of the silver. This letter was sent in to the 
 Queen, who followed her uncle's example, though "for 
 the present " she wished to keep the two halves. The 
 old one is disqualified, so to say, by " damasking " — 
 that is, the Sovereign in Council strikes it with a 
 mallet. 
 
 (May, 1900.) 
 
 It may seem strange that a daughter of the Duke of 
 Cumberland should apply to her Majesty for leave to 
 marry a foreign Prince, and that the Queen should 
 solemnly signify her consent ; but otherwise the mar- 
 riage would not be legal in this country. The 
 present Duke of Cumberland and Teviotdale is a great- 
 grandson of George III, and his children, consequently, 
 come within the Royal Marriages Act of 1772, which 
 provides that ho descendant of George II "other 
 th^i} th§ i9sue of Princesses married or who may 
 
HISTORICAL 35 
 
 marry into foreign families " shall be capable of con- 
 tracting matrimony without the previous consent of 
 the Crown signified under the Great Seal and declared 
 in Council. The romantic will be pleased to learn that 
 there is a loophole for any lover over twenty-five who 
 " shall persist in his or her resolution to contract a 
 marriage disapproved of." It is not clear why this 
 couple should care about the legality of their union in 
 England, but, at any rate, they are on the safe side. 
 
 (June, 1900.) 
 
 It has been too generally assumed that the Attorney- 
 General, as such, has a traditional claim to the head- 
 ship of the common law bench. This is not quite so. 
 In the old days before the fusion of the common law 
 courts the Chief Justiceship of the Common Pleas 
 was undoubtedly the " pillow " of the Attorney- 
 General, but since the Judicature Act, while Cockbium, 
 Coleridge, and Russell had each been Attorney-General, 
 no one of them passed from that post to the Lord 
 Chief Justiceship per saltum. Cockburn and Coleridge 
 went first to the Common Pleas, then to the Queen's 
 Bench, and Russell was first a Lord of Appeal in Ordin- 
 ary. 
 
 The transfer of trials of election petitions to the 
 judges in 1868 is memorable in legal annals as one of 
 the few occasions on which the judges have united in 
 objection to a proposed measure — in this case the 
 Election Petitions and Corrupt Practices at Elections 
 Act, and, it maybeadded, as an instance of forebodings 
 by distinguished thinkers not borne out by results. 
 Something like a sensation was caused by a published 
 
36 A CHANCE MEDLEY 
 
 letterfrom the Lord Chief Justice (Cockbum) to the Lord 
 Chancellor(Cairns) protesting against the proposal. " In 
 conformity with your lordship's wishes, I have consulted 
 the judges, and I am charged by them, one and all, to 
 convey to you their strong and unanimous feeling of 
 insuperable repugnance to having these new and ob- 
 jectionable duties thrust upon them. We are unani- 
 mously of opinion that the inevitable consequence of 
 putting judges to try election petitions wiU be to lower 
 and degrade the judicial office, and to destroy, or at aU 
 events materially impair, the confidence of the public 
 in the thorough impartiality and inflexible integrity 
 of the judges, when in the course of their ordinary 
 duties political matters come incidentally before them. 
 . . . We are thoroughly satisfied that the proposed 
 scheme is impracticable and that the performance by 
 the judges of the onerous duties which this biU pro- 
 poses to cast on them is neither more nor less than a 
 sheer impossibility. The time of the judges is known 
 to be more than fully occupied. We would venture 
 to ask which court is to be suspended, in order to fur- 
 nish judges even for occasional petitions, to say nothing 
 of the trial of petitions after a General Election, when, 
 if any material portion of the work of trying petitions 
 is to be done by the judges, Westminster Hall would 
 have to be shut up altogether. Is a judge to set aside 
 her Majesty's commissions and leave the gaols unde- 
 livered and causes untried, while he is occupied in 
 investigating the unclean doings in a corrupt 
 borough ? " 
 
 There is no appeal from the decision of the two elec- 
 tion judges. In 1874 a member claimed to be heard 
 at the bar before the judge's certificate unseating him 
 was read, but the Speaker ruled that he could not be 
 heard. 
 
HISTORICAL 37 
 
 It may be as well to correct the impression that the 
 trial of Earl Russell by the House of Lords might 
 more conveniently have taken place elsewhere and 
 before another tribunal. As the law is at present, 
 that is not so ; the defendant, it he would, coxild 
 not be tried by any other court. That at any rate, 
 is by far the " better opinion," the only hint of a 
 contrary view coming from the late Lord Chief Justice 
 Coleridge, who, in 1887, was called to account 
 in the House of Lords for having allowed an Irish 
 peer — not a member of the House — to waive his 
 peerage and plead not guUty to a felony and to a 
 misdemeanour before a jury in the Queen's Bench. 
 He then said that " it struck him that there was much 
 to be said for the view that this privilege of the peerage 
 was a privilege which a noble lord might waive if he 
 thought fit. . . Whether the privilege was one which, 
 in the present day, it was advisable to maintain was a 
 question on which he did not presume to offer an 
 opinion," and he pointed out that the alleged reason for 
 this unwaivabUity — namely, the necessity of trying a 
 man by his peers — would not hold, as, in cases of mis- 
 demeanour, the law never had been that the House 
 should try its members and many had been tried by 
 the ordinary courts. However, no lord lay or learned 
 agreed with him. In 1631, on the trial of Lord Audley, 
 the judges were expressly consulted on this point, and 
 the whole eight agreed that a peer might not " wave " 
 his right, for it was " no privilege, but the law declared 
 by Magna Charta ; which if he would not plead to by a 
 trial of his peers, it was standing mute." 
 
 But if it is clear what the law is, it is equally clear 
 what the law ought to be. The present proceedings 
 are, no doubt, picturesque, and afford entertainment 
 to numbers of worthy people. But beyond these ad- 
 
38 A CHANCE MEDLEY 
 
 vantages there is not one solitary reason, founded on 
 good sense, why this trial should not take place at the 
 Old Bailey, where bigamy, so to say, is quite in their 
 line ; in fact, there is always a large business done in it. 
 The House of Lords, as a whole, would have been 
 spared a good deal of trouble past and to come, and 
 the individual members who will have to stick closely 
 to the case day by day would have been spared duties 
 which must be unwelcome. Then the judges who are 
 present would be much more useful in their own courts, 
 where some of them are sadly needed. Lastly, the 
 country would be saved a certain amount of expense 
 in providing a special place of trial. No sane person 
 doubts that justice is adminstered as well at the Old 
 Bailey as in the House of Lords and it is certainly 
 cheaper for the accused. The only question is about the 
 jury. T&ereis not the smallest difficulty about providing 
 a jury of peers at the Central Criminal Coiurt, and 'i 
 twelve are not enough for a nobleman, he could easily 
 get twenty-four. They might be chosen by lot ; 
 the rest would be very glad to escape. At any rate, it 
 is time that some hundreds of individuals, who have 
 no special interest in the matter, should cease to be 
 put to inconvenience, and that a considerable amount 
 of the nation's business should stop when a peer is 
 to be tried. It is true that such an event happens 
 seldom, but there is nowadays absolutely no advantage 
 in going through all these forms, when it does. 
 
 (July, 1901.) 
 
 The House of Lords, in the Cowley case, did not 
 settle the only question of general interest raised by it 
 — namely. What is the legal title of a woman who has 
 ceased to be a wife ? They have decided that, at any 
 
HISTORICAL 39 
 
 rate, where it is not done for a fraudulent or malicious 
 purpose, a dignity, that is, a title, acquired by the 
 marriage, may be retained after it is dissolved (and, 
 this by the way, without the sHghtest reference to the 
 question which of the spouses is guilty). As to Lady 
 Cowley's privileges (if any), the Lords say that their 
 Committee for Privileges is the proper body to decide, 
 but obviously that Committee cannot make law. It 
 seems, then, that the question is insoluble by law. In 
 any other country such a little social point would be 
 settled by legislation. Failing that, what is wanted 
 is an expression 'of opinion by some body of sufficient 
 public importance, which, without having the effect of 
 law, would stereotype or give a lead to common usage, 
 say, a resolution of the House of Commons. This 
 would certainly be convenient to a large number of 
 people. Perhaps the logical practice would be that an 
 ex-wife should keep her title (whether it was a dignity 
 or not) but should revert to her maiden or pre-nuptial 
 cognomen. Thus Mrs. Mary A. nee Smith would 
 become Mrs. Mary Smith ; in cases of dignity the Lady 
 So-and-so might sufi&ce — ^thus, in both classes, getting 
 rid of all traces of the husband's name. It is interesting 
 to note that, in granting the injunction, the Divorce 
 Court entirely mistook its jurisdiction. 
 
 (Aug., 1901.) 
 
 When William IV was crowned in 1831 there 
 was at least one member of the Court of Claims 
 who was not amused by its proceedings. Greville 
 writes : " Another Coronation Committee yesterday, 
 and I am happy to say, the last, for this business is the 
 greatest of all bores." About the same time he tells 
 the following story : " The King did a droll thing the 
 
40 A CHANCE MEDLEY 
 
 other day. The ceremonial of the Coronation was 
 taken down to him for approval. The homage is first 
 done by the Spiritual Peers, with the Archbishop at 
 their head. The first of each class . . . say the words, 
 and then they all kiss his cheek in succession. He 
 said he would not be kissed by the bishops, and ordered 
 that part to be struck out. As I expected, the prelates 
 would not stand it ; the Archbishop remonstrated, 
 the King knocked under, and so he must undergo the 
 salute of the spiritual as well as of the temporal lords." 
 And he did. 
 
 A case of a very rare sort was heard on Dec. 17, 1901, 
 " before the Right Worshipful Arthur Cohen, K.C., Judge 
 of the Court of Admiralty of the Cinque Ports." As far 
 back as 1684 it was held that the jurisdiction of this 
 tribunal extends from Shore Beacon in Essex to Red 
 Cliff, near Seaford, and in matters of salvage it com- 
 prises the sea between Seaford and a point within five 
 miles of Cape Grisnez, and the coast of Essex. The 
 court generally sits in the church of St. James at Dover. 
 The Cinque Ports are, of course, among the most 
 remarkable antiquities of the kingdom ; they are espe- 
 cially conspicuous at a Coronation, on which point 
 Shakespeare's Henry VIII, Act IV., Scene i, may 
 be " overhauled." 
 
 For centuries the law enjoined no other public holi- 
 days but Christmas Day and Good Friday besides the 
 weekly Sunday— all, of course, holy days and religious 
 or sabbatical, and not secular commemorations. In 
 all, ancient, very ancient, custom had preceded statu- 
 tory enactment. Thus, it was not till the reign of 
 
HISTORICAL 41 
 
 Edward VI (about 1552) that Sunday was protected, 
 not so much as a day of rest from business, but as an 
 occasion when attendance at church was compulsory. 
 " Other days ordained and used to be kept as holy 
 days " were included in this provision, but the authori- 
 ties never showed much fight about these days, whereas 
 as late as 1830 there were ten persons in prison in this 
 country for " recusancy " in not attending their parish 
 churches. As to Christmas Day and Good Friday, 
 there was very little legislation (if any) as to exemption 
 from commercial or other liability till last century. 
 Still, the law always regarded them for the payment 
 of debts or the fulfilment of contracts as being in the 
 same position as Sunday. The governing classes seem 
 to have thought that the weekly rest with these two 
 extra dies non in the course of the year were enough 
 for the common people, and it may be that they did 
 not work so hard or under such straining conditions 
 as their modem representatives. In any case they 
 made popular holidays for theihselves, such as May 
 Day, not recognised by the law. Then national holi- 
 days were sometimes appointed by Act of Parliament, 
 and fast or thanksgiving days, as has happened in our 
 own time, by Royal proclamation. Thus Pepys on 
 January 30, 1668 : " Lay long in bed, it being a fast- 
 day for the murder of the late King ; and so up and 
 to church." 
 
 By 1870 the idea had grown that certain classes of the 
 population had not enough holidays secured to them by 
 law. The need was especially felt in the case of the 
 large class of bank clerks and other bank officials, 
 because their absence from their posts in any number 
 would entirely dislocate the financial operations of 
 commerce strictly regulated by legal obligations; 
 Accordingly the Bank Holiday Act of 1871 was passed, 
 
42 A CHANCE MEDLEY 
 
 making necessary arrangements for suspending a num- 
 ber of financial transactions on four days in the year, 
 and thus releasing the whole of the banking population 
 from their desks. The relief meant for them was in- 
 stinctively seized on by all classes, and the four days 
 have become national holidays. In Scotland they are 
 five — ^namely. New Year's Day, Christmas Day (or 
 if either falls on Sunday, then the next day in each 
 case), Good Friday, the first Monday of May, and the 
 first Monday of August. The necessity of legislating 
 for the first four of these days illustrates national differ- 
 ences in the two countries. By other provisions, the 
 Sovereign may proclaim other special days as Bank 
 hoHdays, and there is power by an Order in Council to 
 substitute another day for any particular Bank holiday. 
 With the advance of the science of meteorology this 
 power ought to be valuable, as a wet day, if foretold 
 in time, could be desanctified, so to say, in favour of a 
 fine one. 
 
 Mr. Arthur Balfour is not a member of the English or 
 Scotch Bar ; hoc solum fdicitati negatum, as Tacitus said 
 of Sulla. The last Prime Minister who was a barrister 
 was the Hon. William Lamb, afterwards Lord Mel- 
 bourne, who was called by Lincoln's Inn in 1804, had 
 chambers at 8, New Square, and practised for a few 
 months. Both Gladstone and Disraeli kept terms at 
 Lincoln's Inn, but neither was called. 
 
 (July, 1902.) 
 
 At the Central Criminal Court in September, 1902, 
 was witnessed an incident probably unique in the legal 
 annals of this country — a prisoner of colour was de- 
 
HISTORICAL 43 
 
 fended by a gentleman of the same race (Mr. H. 
 Sylvester Williams) as junior counsel. Naevidence 
 was offered, and the prisoner was acquitted. 
 
 A criminal lawyer of great experience thinks that 
 the disapproval by public opinion of sentences was 
 avoided under the old system, by which three judges 
 always sat together at the Old Bailey, and could confer 
 on any conviction, and points out that even now occa- 
 sional outcries might be avoided if the judge were to 
 consult the attendant aldermen. He tdls a tale of a 
 judge, an Irishman, who was once well known, thus 
 addressing a convicted prisoner : " You are a gentle- 
 man, a man of education, and a man of means. The 
 law knows no distinction of persons. I shall, therefore, 
 give you six months extra." 
 
 Aforetime incarceration for contempt of Court was 
 by no means as mild as it is now. According to Mr. 
 Ashburner (Principles of Equity), " In the sixteenth 
 and seventeenth centuries the Court did not shrink 
 from the strongest medicines to relieve a corrupt con- 
 science. It confined the defendant to his cell, boarded 
 up the windows of his cell, or put him in irons," and he 
 cites a case in 1598 where " his lordship mindeth . . . 
 to lay as many irons on him as he may bear," and 
 another in 161 1, where the officers of the Court say, 
 " The house is not to be won without ordnance to 
 batter it and shedding of much blood." His remark 
 " It was found that compulsion of the property was 
 more successful than compulsion of the person " sug- 
 gests that a substantial fine is as good a way as any of 
 bringing the contumacious to their senses. 
 
44 A CHANCE MEDLEY 
 
 Every judge is now a bencher of some Inn, but for 
 centuries before 1877 a judge not only could not enjoy 
 that dignity, but, if he enjoyed it at the time of his 
 appointment, he had to vacate it. For he could only 
 be raised to the Bench if he was a serjeant-at-law, and 
 the Serjeants had an Inn of their own. But when, as a 
 result of the Judicature Act of 1873, it was no longer — 
 to the disgust of many eminent lawyers — imperative in 
 order to be a judge, to be a member of the " Order 
 of the Coif," all reason for the existence of the Inn 
 disappeared, and, says Serjeant Pulling, about 1877 
 " the judges and Serjeants took the only course open to 
 them, sold their property, paid off all charges, and 
 wound up their corporate affairs in due course," that is, 
 divided the proceeds — a settlement vigorously attacked 
 at the time. No more Serjeants have been created, 
 and the four Inns had to receive their homeless alumni, 
 and thus for the first time in their history judges and 
 mere barristers sat on the same bench. 
 
 Apart from Roman law, our law is indebted to that 
 of Italy in an especial particular, that of commerce, 
 and, notably, banking. To the Italians of the twelfth 
 century we are indebted for bills of exchange, and not, 
 as Mr. Micawber thought, to the Jews. " Documents," 
 say Messrs. Pollock and Maitland, " of a purely obliga- 
 tory character were still rare. They seem to come 
 hither with the Italian bankers." They seem to have 
 introduced interest into this country, and " the cautious 
 Lombard means to have an instrument that will be 
 available in every court, English or foreign," and they 
 have this interesting note : " Not one of the commen- 
 tators, so far as we know, has rightly understood this 
 term " — bond — " in the place where Shakspeare has 
 
HISTORICAL 45 
 
 made it classical {Merchant of Venice, Act I, So. 3). 
 Shylock first offers to take a bond without a penalty, 
 and then adds the fantastic penalty of the pound of 
 flesh, ostensibly as a jesting afterthought." Cobden in 
 1847 delighted an audience in Milan by telling them 
 that the accounts in a London merchant's ofl&ce were 
 still kept on a system taken from their country, and 
 that the chief centre of bankers in the City was still 
 called after the Lombards. 
 
 Another survival of the early influence of the Italians 
 on our banking system is to be found in the words 
 in Bank of England notes," For the Gov'- and Comp*- 
 of the Bank, etc." The a in " Comp"-" has often 
 puzzled people. The word is really an abbreviation 
 of the Italian " compagnia." 
 
 Dec. 17 is the anniversary of the death of the famous 
 Lord Chief Justice Sir William Gascoigne, who died in 
 1419 (or 1412). The latest inquirer into the story of 
 his having committed Prince Henry to prison is Mr. 
 J. M. Rigg, in the Dictionary of National Biography, 
 and his verdict is that " for the committal there is no 
 evidence,"andasto the Prince's magnanimous behaviour 
 to him when he came to the throne, " it is demonstrably 
 untrue. The committal to gaol for contempt of the 
 Heir-Apparent to the Crown would have been an event 
 of such dramatic interest as could not fail, if it occurred, 
 to have been recorded by some contemporary writer 
 and duly noted as a precedent by the lawyers. In fact, 
 however, no contemporary authority, lay or legal, knows 
 an3^hing of such an occurrence," Thus Shakspeare's 
 famous scene {Henry IV., Part II, Act V, sc. 2) "is 
 not only unfounded in, but is inconsistent with, 
 historical fact." 
 
46 A CHANCE MEDLEY 
 
 If Sir Matthew Hale wrote sermons he is, in one 
 conspicuous matter at least, a text or subject for one — 
 namely, his behef in witchcraft. Of a notorious trial 
 only the few lines of the Dictionary of National Bio- 
 graphy can be cited :— " At the Bury St. Edmunds 
 Assizes on lo March, 1661-2, two old women . . . 
 widows, were indicted before him of witchcraft. They 
 had, it was alleged, caused certain children to be taken 
 with fainting fits, to vomit nails and pins, and to see 
 mysterious mice, ducks, and flies invisible to others. 
 A toad ran out of their bed, and on being thrown into 
 the fire had exploded with a noise like the crack of a 
 pistol." He said in summing up, " That there were 
 such creatures as witches he made no doubt at aU ; 
 for first, the Scriptures had affirmed so much ; secondly, 
 the wisdom of all nations had provided laws against 
 such persons, which is an argument of their confidence 
 of such a crime." The old women were found guilty ; 
 the judge and all the court were fully satisfied with the 
 verdict, and they were hanged without confessing, 
 says the old report. Could there be a more striking 
 proof that piety is no guarantee against the grossest 
 superstition ? 
 
 The last execution for this " crime " took place at 
 Exeter, in 1682 ; then acquittals became the rule, and 
 the last conviction in England seems to have been 
 that of Jane Wenham, at Hertford, in 1712. She was 
 sentenced to death, but pardoned. But, in regular 
 EngUsh style, it took another twenty-four years to 
 sweep the rubbish from the Statute-book, for it only 
 disappeared in 1736. If we want a measure of what 
 Mr. Lecky called " the spirit of the age " we may com- 
 pare the summing-up of Hale in 1662, already quoted, 
 with these lines by another English judge, not less able, 
 in 1883— namely, Fitzjames Stephen : " The readiness 
 
HISTORICAL 47 
 
 \dth which religious people in the seventeenth century 
 gave way to cruel superstitions and the fierce fanaticism 
 with which they insisted on the reaUty of witchcraft are 
 a stain upon them and on their reUgion. Those who 
 laughed at the ridiculous nonsense which the witch- 
 finders believed in were wiser and, as far as that matter 
 went, better than those who prayed and groaned over 
 it." Law, learning and piety may all take warning 
 from the great mistake of one of whom the great Baxter 
 said he was " the pillar of justice, the refuge of the 
 subject who feared oppression, and one of the greatest 
 honours of his Majesty's Government," 
 
 In any other country it would be extraordinary that 
 precedence as between the High Sheriff and the Lord 
 Lieutenant of a county should not have been settled 
 ages ago, considering their great antiquity. The for- 
 mer's name takes his origin back to Saxon times, but 
 he got into a statute as early as 1300. The Lord Lieu- 
 tenant seems to have been created during the reign 
 of Henry VIII for the military organization of the 
 counties, thus superseding the Sheriff to some extent ; 
 but his duties have long ceased to be much more than 
 formal. However, he is the chief magistrate, and 
 recommends the rest for appointment. He has won 
 the pas of the Sheriff, by the King's decree. 
 
 (Feb.. 1904.) 
 
 On March the 3rd, 1904, there were so many judges 
 sitting in the King's Bench — fourteen — that they did 
 not know what to do for room, so one (Mr. Justice 
 Swiilfen Eady) had to go away. What an advertise- 
 ment ! Money turned away at the door ! But could 
 
48 A CHANCE MEDLEY 
 
 it happen in any other civilized country that there 
 should be a constant outcry at the law's delaj^, 
 and not a roof for the law's ministers ? 
 
 It is, perhaps, an anomaly in our Constitution that 
 there is no sort of restriction on the Sovereign's leaving 
 the realm or the length of his stay abroad. But it was 
 not always so, The Act of Settlement (1700) expressly 
 provided that the Sovereign should not be out of the 
 Three Kingdoms without the consent of Parliament, 
 but this was repealed in 1715. Queen Anne never left 
 the country, but the first two Georges availed them- 
 selves largely of the Act of 1715. George III was never 
 more than one hundred miles from London, the place 
 of his birth (Campbell). George IV only went abroad 
 in 1821, and William IV not at aU. Between 1700 
 and 1843 the Crown always appointed Lords Justices 
 (or a Guardian) during such absence. " The powers," 
 says Todd, " granted to such persons have usually 
 included every possible exercise of the Royal authority 
 except that of assenting to bills in Parliament, and of 
 granting peerages. But it has been customary to 
 accompany the Commission by instructions, requiring 
 the Commissioners not to exercise certain of the 
 powers granted (particularly those for the pardon of 
 offenders and the dissolution of Parliament) without 
 special signification of the Royal pleasure." The 
 question came up in 1843, when her late Majesty 
 visited the King of the French, and in 1845, when she 
 went to Germany. The opinion of the law-officers 
 was taken on both occasions, and they were clear that 
 the law did not require any appointment of Lords 
 Justices, and since 1821 there has been no such Com- 
 mission, and the practice is now considered as obsolete. 
 
HISTORICAL 49 
 
 In the debate in 1845 it was pointed out that the 
 great (!) facilities for travel had removed even the 
 expediency of such a course. This, of course, is even 
 truer to-day. 
 
 On Sept. 15, 1904, five Courts sat at the Old Bailey. 
 This has not happened for a time " whereof the memory 
 of man runneth not to the contrary." 
 
 The Secondary of the City of London is practically 
 an Under Sheriff, the name implpng subordination to 
 a chief. He was, in fact, the Second Clerk of the 
 Sheriffs. Thus one of his chief functions still is to sit 
 with a jury to assess damages on writs of inquiry issuing 
 out of the High Court to the City. The officer goes 
 back to 1309, and perhaps further. There is still 
 extant among the City Archives of about that date 
 the oath in Norman-French of the " Secondeiry and 
 Keeper of the Paper." They had to swear, among 
 other things, " Ye will not fail for gift nor for favour, 
 for promise nor for hate, but that equal law and right 
 ye will do to all manner of people, as well to the poor 
 as to the rich, denizens as well as strangers, who 
 approach before you, without making maintenance of 
 any quarrel " — which is something Uke the present 
 judicial oath. Till 1832 there were two officials with this 
 title, one for each Compter, but in 1871 the Common 
 Council decided to appoint one only. In the famous 
 " Statement " by the City in 1893 it is remarked of 
 the compensation cases tried by the Secondary and a 
 special jury : " By reason of the enormous value of 
 City property, the cases tried are mostlyimportant ones, 
 and occupy several days. ... it is no uncommon 
 thing to record verdicts of from £15,000 to £30,000." 
 
50 A CHANCE MEDLEY 
 
 This ofiScer is also High Bailiff of Southwark, but this 
 dignity is nowadays rather historically picturesque 
 than practically important. 
 
 The death of Mr. J. F. X. O'Brien, M.P., is a 
 reminder that as late as 1867 Parliament actually 
 recognised the sentence of drawing (i.e. dragging on a 
 hurdle to the place of execution), hanging and quarter- 
 ing (i.e. dividing the body into four and placing it at 
 the disposal of the Crown) for high treason. It was 
 not abolished till 1870 — so slow is the progress of 
 humanitarianism. (June, 1905.) 
 
 A writer to the Times, on June 14, 1905, mentions 
 the fact that " a few years ago the High Court 
 judges received an augmentation of their salaries 
 , . , by an allowance of £7 los. per day while on 
 circuit." The history of ttiis stipend is curious. As 
 a result of the great Judicature Act of 1873. the Chan- 
 cery judges began to go circuit (and many a good 
 story dates from this era, as, of course, they were 
 quite unfamiliar with criminal work). Their lordships 
 thus disturbed after centuries' serene immunity from 
 such vulgar things as juries or crimes, naturally put 
 in a claim for travelling allowances. This was ad- 
 mitted, and, as the common law judges were put to 
 exactly the same expense, they, too, were held entitled 
 to the same augmentation — though circuit had, so to 
 say, been part of their contract from time immemorial. 
 
 In the Further Memoirs of the Whig Party, 1807-1821, 
 by (the third) Lord Holland, there are some curious 
 
HISTORICAL 51 
 
 little bits of especial interest to lawyers. Notably, 
 there is an estimate of Lord Erskine, the ex-Chancellor 
 (who, however, did not die till 1823), Apparently the 
 only one by a lajmian, and the only critical one written 
 by a contemporary, for Campbell's — ^from which, 
 however. Lord Holland's does not much differ — was 
 composed much later. One striking passage records 
 the influence of the lawyer on politics : " His wonder- 
 ful exertions in the trials of 1794 stemmed the torrent 
 of political violence, which was rapidly rising. In my 
 conscience I believe that had Home Tooke and his 
 associates fallen victims to a charge of constructive 
 treason it would not have been long ere the first men 
 in the country, and among them, perhaps, the very 
 individuals who instituted the proceedings, would 
 have followed their fate ; for a system of political 
 vengeance and persecution as merciless, though in an 
 opposite direction from Robespierre's, would have 
 been inevitably established. From such scenes I 
 believe we were protected chiefly by the successful 
 genius of Erskine." 
 
 As from time to time a point is made of what may 
 be called the " dual control " of the Chancellor in 
 politics and law, it may be worth citing what 
 Professor Freeman says on the subject : " The 
 Chancellor is, and always has been, a member of the 
 IMvy Council and of the Cabinet, not as of right, but 
 because his duties as holder of the Great Seal make 
 him a necessary party to the innermost Councils of 
 the Crown. His political and judicial duties do not 
 come into conflict, because he is not concerned with the 
 administration of the criminal law, and so is not liable 
 to preside in court over prosecutions which he has 
 
52 A CHANCE MEDLEY 
 
 advised in the Cabinet." ' But this was written before 
 the appeals to the Council a few years ago by Boers 
 from the courts of South Africa. 
 
 The late G. J. Holyoake made two legal records, 
 the first being that he was the last person convicted 
 for blasphemy in a public lecture. There is a short 
 report of the trial in Appendix A to 4 State Trials 
 (New Series), 1831. He was tried at Gloucester 
 Assizes in 1842, before Mr. Justice Ersldne, for words 
 spoken at Cheltenham in the course of a lecture on 
 Home-Colonisation, Emigration, and the Poor Laws, 
 and, moreover, they were spoken incidentally in answer 
 to a " heckler." The judge cited Paley : " Whilst 
 we would have freedom of inquiry restrained by no 
 laws but those of decency, we are entitled to demand, 
 on behalf of a religion that holds forth to mankind 
 assurances of immortality, that its credit be assailed 
 by no other weapons than those of sober discussion 
 and legitimate reasoning," and gave Holyoake six 
 months, which (it is stated) he afterward admitted he 
 deserved. Though such a prosecution would not be 
 instituted to-day, it is by no means certain that the 
 words actually used are not still indictable. A young 
 barrister, afterwards Serjeant Parry, prepared the 
 legal argument which he used in his defence, making 
 a speech from the dock for nine hours and a quarter ; 
 Alexander prosecuted. 
 
 He was also the last man to be prosecuted for pub- 
 lishing an unstamped newspaper. His own account 
 is comical: "The best subscriber to 'his journal' 
 was the Inland Revenue Board themselves, whose 
 agent came regularly every Saturday morning and 
 purchased the first half a dozen copies, so that I 
 
HISTORICAL 53 
 
 was in for £120 of fine " — i.e., at £20 apiece, the then 
 tariff — " before breakfast. In nineteen weeks my 
 liability from official custom alone amounted to £2,280," 
 and the story is well known that in the Court of the 
 Exchequer he told Mr. Gladstone he had not the total 
 penalties, some £600,000, about him at the moment. 
 The duty was repealed in 1855, and he heard nothing 
 more of the matter. While he was awaiting trial in 
 1842 an Act (5-6 Vict., c. 38) was passed to make 
 certain charges (including blasphemy) only triable at 
 Assizes expressly to prevent his being sent to Quarter 
 Sessions, where magistrates, like those who committed 
 him, would have tried him, and he was the first to get 
 the benefit of this statute, which is still law. 
 
 There seems to be no exact precedent for the re- 
 quisition to the Prime Misister to grant a day for Mr. 
 Swift MacNeill's motion, alleging partisanship on 
 the part of Mr. Justice Grantham during the hear- 
 ing of the recent Yarmouth election petition. 
 Broadly, the rule of each House of ParUament seems 
 to be that it will not entertain any motion for inquiry 
 into the judicial conduct of a judge unless Ministers 
 have first satisfied themselves that there is a prima facie 
 case, which, if properly made out, would justify the 
 constitutional Address from the House to the Crown 
 for the removal of the judge. Ministers, in fact, 
 become a sort of grand jury, and it seems that no 
 penalty short of removal, [such as censure, can 
 be contemplated. However, it is not unconstitu- 
 tional to put down a motion condemnatory of a 
 judge. The nearest approach to the present case 
 took place in 1843, when Mr. Thomas Puncombe 
 " called attention to certain objectionable expressions " 
 
54 A CHANCE MEDLEY 
 
 by Lord Abinger, Chief Baron, and alleged that his 
 conduct on the bench had been " partial, unconstitu- 
 tional, and oppressive ; also that he had made use of 
 M^^m-political and party language on the bench ; " 
 and he moved that (petitions complaining having 
 been presented) witnesses should be summoned to 
 the bar to speak to the language impugned. Thq 
 Attorney-General (Sir F. Pollock) resisted the motion,- 
 but " he did not deny the proper vocation of the House 
 of. Commons for such inquiries in general," but con- 
 sidered the present complaint to be wholly unsub- 
 stantiated. It is, in fact, an admitted principle that 
 " no Government should support a motion for an 
 inquiry into the conduct of a judge, unless they have 
 first made an investigation and are prepared to say that 
 they think it a fit case to be followed up by an Address 
 for his dismissal." 
 
 (May, 1906.) 
 
 The more matutinal sitting of the Court of Appeal by 
 half an hour has caused comment.- But the old race 
 of practitioners had done hours' work by 10 a.m. 
 Thus, in 1696, " a cause came on at seven in the 
 morning, and an old witness could not rise to be there 
 time enough." 
 
 ; (July, 1906.) 
 
 The momentous question whether barristers are 
 legally bound to put a receipt stamp on the acknow- 
 ledgment of their fees, commonly a mere signature.' 
 across the figure on the brief, has been decided. - 
 They must. The argument for exemption was, that as 
 barristers cannot sue for their fees, conversely they 
 
HISTORICAL 35 
 
 ought not to be subject to commercial liabilities — 
 any more than any other person who receives a present. 
 As early as 1630 a " Counsellor at Law " sued a 
 " Sollicitor " in Chancery for his fees, but the Court 
 dismissed the suit, apparently without argument. 
 (Moor V. Row, i Rep. in Chanc. 26). Blackstone clearly 
 traces the helplessness of counsel in this respect to the 
 old Roman relation of orator andclient. Sir John Davys, 
 who was Irish Attorney-General, puts it well, in 1628 : 
 " The fees or rewards which they receave are not of the 
 nature of wages or pay, or that which wee call salerie 
 or hire, which are indeed duties certain and grow due 
 by contract for labour or service, but that which is 
 given to a learned Councellor is called honorarium and 
 not merces being indeed a gift which giveth honour 
 as well to the Taker as to the Giver : neither is it 
 certaine or contracted for, no price or rate can be set 
 upon Councel which is unvaluable and inestimable, so as 
 it is more or lesse, according to circumstances, namely, 
 the ability of the client, the worthinesse of the Councel- 
 lor, the weightines of the Cause, and the custome of 
 the countrie. Briefly, it is a gift of such a nature 
 and given and taken upon such terms, as albeit the 
 able Client may not neglect to give it without note of 
 ingratitude (for it is but a gratuitie or token of thank- 
 fulnesse) yet the worthie Councellor may not demand 
 it without doing wrong to his reputation ; according 
 to' that morall rule, ' Multa honeste accipi possunt 
 quae tamen honeste peti non possunt.' " 
 
 (Dec, 1906.) 
 
 One of the consequences of this tradition is the well- 
 known rule that any prisoner in the dock can command 
 the services of any counsel in court on tendering the 
 
56 A CHANCE MEDLEY 
 
 minimum fee ot one guinea. Not long ago an old 
 hand, who had often been " there " before, summarily 
 claimed the services of one of the best known defenders 
 at the bar for that modest amount of cash down. The 
 learned gentleman loyally accepted the situation, 
 lost two days' briefs elsewhere, but justified his client's 
 choice — and character — by securing an acquittal. 
 
 It is interesting to note that in Ireland the Order of 
 the Coif is not only not extinct as it is in England, 
 but in full flower. There is no reason why it shotjld 
 not be revived here. 
 
 As the Colonies are engrossing public attention it 
 may be worth inquiring what in law is a British Colony. 
 " Colony," says Sir William Anson, " means any part 
 of the Queen's dominions except the United Kingdom, 
 the Channel Islands, the Isle of Man, and British India. 
 It is a geographical and not a pohtical term, and does 
 not imply any form, still less any special form of govern- 
 ment, nor is it precisely co-extensive with the functions 
 of the Colonial Secretary. Cyprus is not a British 
 possession, but is ^.dministered through the Colonial 
 Office. Ascension falls under the definition of a colony, 
 but is governed by the Admiralty." 
 
 This definition obviously differs from the original 
 meaning of a settlement sent out from any given State 
 (or " metropoUs " — the only correct use of the word 
 as Freeman used to insist) to form a permanent com- 
 munity beyond its own borders. Thus the American 
 or Australian colonies were always of this tjrpe, while 
 no one would describe India or its States as colonies, 
 though, in law, the Transvaal is a colony within the 
 
HISTORICAL 57 
 
 above definition. But however a given territory 
 becEime originEilly a colony, once constituted it has 
 definite legal relations to " the old country," until they 
 are terminated by consent (cession, etc.) or by war, 
 as in the case of the United States. 
 
 The fundamental relation, according to the same 
 authority, is " the legislative subordination of the 
 colonies to the Imperial Parliament. The Crown 
 in Parliament can make laws which are binding on 
 any part of the King's dominions. If a colonial 
 legislature make a law which is repugnant to any Act 
 of Parliament intended to bind the colony, the Act of 
 the colonial legislature is, to the extent of such repug- 
 nancy, absolutely inoperative." In the colonies them- 
 selves the Governor is practically the Crown — i.e., he 
 can veto legislation. But he may " hang it up " and 
 send it home for approval, and even if it receives his 
 imprimatur, he must report it to the Secretary for the 
 Colonies, who may still advise the Crown to disallow 
 it. Before a colony gets a legislature the Crown in 
 Council may make laws for it, but once the Crown has 
 granted it a Parliament this power is gone. Lord 
 Mansfield decided this in a famous case in 1774. 
 
 Just as in this country it is the undoubted right of 
 every Subject to petition the Crown, the subject in a 
 colony (or, indeed, in a foreign country) had the same 
 privilege. These prayers were long naturally considered 
 by the Sovereign in Council ; hence the Privy Council 
 used to advise the Sovereign (through a committee) as 
 to the proper exercise of its prerogative in the case of 
 appeals that came, by way of petition, from the colonial 
 courts. In 1833 this body was constituted, at the 
 instance of Lord Brougham, as the Judicial Committee, 
 which now has a large and growing jurisdiction. When 
 Australia became a Commonwealth a few years ago it 
 
58 A CHANGE MEDLEY 
 
 clung tenaciously to this right of appeal from its own 
 courts to the Crown in Council. Distinguished colonial 
 judges who are Privy Councillors sit from time to 
 time on this Committee, and often deliver its judg- 
 ment. 
 
 Besides this link expressly forged, there is an even 
 mightier legal boiid, the common law, which, at any rate, 
 the settlers in a new country are supposed to take 
 with them as part of their " inheritance." This is a 
 harmony of the history, customs, and morals of all 
 Britons, and springing directly from their national 
 character, reinforces it, and creates an inherent 
 sympathy between all its homes. 
 - (April, 1907.) 
 
 To-day inaugurates a new era in the history of the 
 Bar — the commencement of the Long Vacation on 
 August I. It is too early yet to judge whether the 
 advantages hoped from the change will be secured, but 
 that expected from the weather being milder in the 
 first twelve days of August than in those from October 
 12 to 24 seems likely to fail. Still, it is perhaps not 
 imaginative to suggest that this year the last twelve 
 days of term have been more businesslike than hitherto, 
 after the bar of August was crossed — there has beea, 
 perhaps, a greater air of reality about the fag end. 
 The innovation, too, is a good instance of the extent to 
 which the professioiis, and, indeed; all bodies in this 
 country, are self-governing. In a few years, despite 
 powerful opposition,' the Bar has been able to alter time- 
 honoured landmarks. As Sir Edward Clarke said at 
 the outset, "■ We ought to be ashamed of ourselves, if we 
 could not." 
 
 (Aug. I, 1907.) 
 
HISTORICAL 59 
 
 A J. P. writes to the Law Journal suggesting that 
 the numbers of a jury in criminal, apparently, as well 
 as in civil, cases should be reduced from twelve to 
 seven. This, no doubt, as he says, would greatly 
 minimize the chances of disagreement, and release 
 more than 20 per cent, of the jurors now summoned. 
 But, then, why draw the line at seven ? Why not 
 five or three ? This leads, on the other hand, to the 
 often asked question, why twelve ? The fact seems 
 to be that twelve has become a sort of legal superstition. 
 Blackstone seems incapable of contemplating any other 
 number, and even Pollock and Maitland assume it : 
 Fors5d;h alone {History of Trial by Jury) mentions that 
 there is some slight evidence that in early times " the 
 number seems to have fluctuated according as conven- 
 ience or local custom required." The only positive 
 reason he can suggest is that twelve was the favourite 
 number for constituting a court amongst the Scandi- 
 navian nations, but he records a tradition (by some 
 supposed to be due to Lord Somers !) that the number 
 is on the analogy of the twelve prophets " to foretell the 
 truth," twelve Apostles " to preach the truth," twelve 
 discoverers of Canaan " to see and report the truth," 
 and the twelve stones " that the heavenly Hierusalem 
 is built on." Mr. Christian is more to the point in 
 showing that many (not petty) juries contained more 
 than twelve, but that no verdict was good unless 
 twelve concurred in it — a rule that is observed to-day 
 in grand juries and the House of Lords- (when sitting 
 was a criminal tribunal), where, though a majority 
 may decide, that majority must consist of at least 
 twelve; this, at any rate, accounts for the rule of 
 unanimity where there are only twelve. It comes to 
 this, that the origin of the twelve is lost. 
 
 (March, 1908.) 
 
6o A CHANCE MEDLEY 
 
 The Lord Chief Justice recently made an announce- 
 ment in the course of a case, interesting to lawyers and 
 legal historians. Mr. Justice Joyce, having bought 
 six MS, volumes of Mr. Justice Buller's Reports, 
 mostly of Crown Cases, had presented them as an heir- 
 loom to go with the office of Lord Chief Justice. Buller, 
 who belonged to the well-known Cornish family, was 
 made a judge of the King's Bench in 1778, at the age 
 of thirty-two, which is said to be the lowest ever known 
 in this country for such promotion. He died in 1800. 
 His work on nisi prius practice is still an authority, 
 and it is to be hoped that some day these Reports will 
 be printed. Meanwhile, access to them is presimiably 
 by the permission of Lord Alverstone. 
 
 (March, 1908.) 
 
 April 4, 1908, saw the last sitting of the Court 
 for Crown Cases Reserved. Instituted in 1848, it 
 ceased to exist on April 18, 1908, by being merged 
 in the Court of Criminal Appeal, so that it had a 
 life of sixty years, or, roughly, the Victorian era. 
 Its origin was typically English. For centiuries the 
 common law could not contemplate an appeal from 
 the verdict of a jury, but when there was a possibility 
 of a mistake having been made in the law {not in the 
 facts) some way had to be found out of the dif&culty. 
 The expedient gradually grew up of submitting the 
 point to all the twelve judges, not qua judges, but in- 
 formally, in fact, after dinner at Serjeants' Inn, to 
 which they all belonged till its dissolution in modem 
 times. If the judges thought that there had been no 
 mistake in law, they left the matter where it was, that 
 is, the sentence already passed was not disturbed or 
 the judge proceeded to pass sentence. But, if they 
 
HISTORICAL 6i 
 
 thought, as they often'did, that a mistake had been 
 made, they recommended, entirely of their own 
 motion, that a pardon should be granted, and 
 many lives were thus spared in the bad old days. 
 In 1848, it was felt that the time had come to 
 give this valuable series of informalities the stamp 
 of a Court, and, indeed, of one of high authority. 
 Accordingly, the Court for Crown Cases Reserved 
 never consisted of less than five judges, over whom 
 the Lord Chief Justice was bound to preside, if he was 
 not ill, and might consist, moreover, of all the judges : 
 indeed, in the Franconia case in 1876 fourteen sat to 
 dispose of a point of paramount importance. Thus 
 it came into existence just as the stately French 
 Academy grew out of the casual causeries of the Hotel 
 de Rambouillet. This Court of Appeal was a success as 
 far as it went, but its accessibility was greatly limited 
 by the fact that no case could reach it except with the 
 consent of the judge at the trial. Counsel who asked 
 for a case to be stated, naturally did not always agree 
 with the judge's refusal, and the Beck Committee 
 roundly recommended that, if the judge refused, 
 he should, in effect, be compelled to do so. This, 
 practically, is what the new Court is empowered to do 
 when it thinks fit, and as the judge may still, if he 
 will, send up a case to that Court as heretofore, the 
 old Court is rather suspended and renamed than 
 abolished. 
 
 A good many honest lay folk must have been startled 
 by reading that the Lord Chancellor said in a speech 
 in the House of Lords on June 22, 1908, that " where 
 he sat was not a part of the House ; and he might sit 
 there although he was not a member of the House. 
 Several hdders of the Lord Chancellorship had done 
 
62 A CHANCE MEDLEY 
 
 so ' ' (Times) . Both these points are illustrated authori- 
 tatively by. Sir William Anson, who says : " The Wool- 
 sack on which the Speaker sits is outside the limits of 
 the House, so that the office may be discharged by a 
 commoner, and has been so discharged when a commoner 
 has been Lord Keeper of the Great Seal, or when the 
 Great Seal has been in commission." Sir Thomas 
 More, who was Chancellor, never was a peer. The last 
 Lord Keeper, who only differs very subtly from " the 
 real thing," was Sir Robert Henley, who presided over 
 the House of Lords as a commoner for nearly three 
 years (1757-60), was made a peer in 1760, and Lord 
 Chancellor in 1761. There have indeed been Commis- 
 sioners to execute the office of the Lord Chancellor as 
 late as 1850, but otherwise it seems correct to say that 
 since the Restoration no commoner has desecrated the 
 Upper Chamber as Chancellor. The fact is that the 
 Chancellor did not begin life, so to say, as a " swell " 
 at all. " As compared with the Justiciar," says Mr. 
 Carter (History of English Legal Institutions, c. 15), 
 " the Chancellor was, at first, a humble personage. . . . 
 He apparently resided in the palace and we know that 
 he had a daily allowance of five shillings, a simnel, 
 two seasoned simnels, one sextary of clear wine, one 
 sextary of household wine, one large wax candle, and 
 forty pieces of candle. In the time of Henry II this 
 allowance was made only " if he dined out ; "if 
 he dined at home he only got three-and-sixpence, with 
 a slight variation in the other commodities. ... He 
 kept the King's soul and the King's seal." The 
 modern British constitution, at any rate, does not 
 take account of what Lord Loreburn has for dinner. 
 
 The career of the modern barrister was practically 
 
HISTORICAL 63 
 
 created by the Revolution of 1688, Till then the Bar 
 was hardly an integral element of the State — it was not 
 comparable, for instance, with the Church. Since then 
 it has gradually organized itself, and to-day it might be 
 described (without offence) as a close corporation ; 
 at any rate, as Disraeli once called it, a " powerful 
 interest." Again, its reputation in public opinion has 
 varied very much — what may be roughly called its 
 " social position." Mr. Kelly, in his Shori History 
 of the English Bar, justly observes " that in those 
 days (the eighteenth century) few men went to 
 the Bar for the sake of the social distinction it con- 
 fers." Naturally the Bar accepts this view and thanks 
 Mr. Kelly. " By far the greater majority who ' took 
 to the law ' did so with the intention of practising it, 
 and therefore studied accordingly." It was no part 
 of Mr. Kelly's plan to follow out this line of thought, 
 but the serious historian would have to do so, and he 
 wiU, we think, find, when he consults his earliest 
 Law Lists (about 1780), a far larger proportion of 
 aristocratic names than at the present day. He will 
 probably find, too, that the numbers of the Bar have 
 depended very much on the economic state of the 
 country, which is one reason why the composition of 
 the Bar to-day would be an interesting study. But 
 light is especially wanted on the condition of the Bar 
 between, say, 1690 and 1790, 
 
 Mr. Campbell, K.C., is said to be the first Roman 
 Catholic who has been made a judge in Scotland in 
 modern times. (Oct., 1908.) 
 
 " Guy Fawkes' Day " has not much occupied the 
 
64 A CHANCE MEDLEY 
 
 attention of the law, but it is, perhaps, forgotten 
 that her late Majesty the day after her accession ordered 
 by warrant that certain forms of prayer and service 
 made for the Fifth of November and other days should 
 be printed and added to the Book of Common Prayer, 
 that in 1858 both Houses addressed the Crown with 
 a view to the discontinuance of that order, and that 
 on January 17, 1859, ^Y Order in Council, those forms 
 ceased to be part of the ritual. Nov. 5 is, however, 
 abundantly famous as a legal anniversary, as on this 
 date in 1688 the Prince of Orange landed at Torbay, 
 and in 1800 the Privy Council dropped from the 
 Royal title " King of France." 
 
 There has lately been appearing in certain newspapers 
 an advertisement of a Commission of Escheat — a rare 
 thing, nowadays. It can only exist when an owner 
 of real property dies without any known relatives 
 and has left no will. The estate then, by law, reverts 
 to the lord of the fee — generally — in the case of free- 
 hold land — the Crown, "the lord paramount of 
 all the lands in the Kingdom." But it is open to 
 any person to show that the land was held of him, and, 
 in that case, he would get it. Accordingly, under an 
 Act of 1887, the Crown issues a Commission to settle 
 the question. The preamble to that Act says that 
 " most of the enactments relating to escheat ors and 
 the process of finding the title of the Crown in cases of 
 escheat are now practically inoperative." We still 
 live in partly feudal times. (March, 1909.) 
 
 The long report of the Lord Chancellor's Committee 
 on County Court Procedure (April, 1909) is a document 
 
HISTORICAL 65 
 
 of prime importance, and, probably, for years will be 
 cited by legal reformers. The Committee declare against 
 the scheme of amalgamating the County Court with the 
 High^Court, but this, after all, is very much a matter 
 of terminology, and the same end may be gained by 
 their formal recommendation " that the circuit system 
 should be remodelled so as to concentrate the civil 
 work in centres, and that more time should be 
 allowed and more convenient arrangements made 
 for the disposal of business " ; but this is subject 
 to a modification of the present circuit system 
 and an increase in the number of High Court 
 judges — an indispensable condition which meets the 
 legal reformer at every point. It is quite certain 
 that if more work is to be assigned to the County Courts 
 — and this Committee recommends that they should 
 have jurisdiction in divorce (within certain limits) — 
 more judges of that grade must be appointed. Whether 
 they are linked up or not with the High Court judges, 
 the sooner promotion is made from the lower to the 
 higher Bench the better it wiU be for the country. 
 As to the general principle of concentrating the civil 
 work — and, indeed, the criminal — " in centres," it 
 has long been supposed that this is the solution of the 
 difficulty : the County Court judge for nearly all 
 classes of cases where the amount of damages claimed 
 is below a certain sum ; and the judges of Assize — 
 conMug much more frequently than now — for the 
 rest. 
 
 In these days of fierce competition, when not more 
 than one man in twenty at the Bar can hope to earn 
 any livelihood, however bare, by the exercise of his 
 profession in the home country, the junior of some 
 
66 A CHANCE MEDLEY 
 
 five or ten years* standing who sees no prospect of 
 " arriving " begins to turn his eyes to the Colonies. 
 There was a time when Australia was the happy hunt- 
 ing ground for the briefless wooer of that coy goddess, 
 Themis ; and in the Early Victorian Age it was almost 
 a matter of course for the penniless initiate to the 
 mysteries of the long robe to take the long voyage to 
 the Southern Pacific. In the days of the gold fever 
 huge fortunes were often piled up at the Austrahan Bar 
 in a very few years, and their fortunate owner hurried 
 home to try his luck at the EngUsh Bar, or to find a 
 seat in Parliament. Perhaps the most famous of 
 these ex-Colonial aspirants to political success was 
 Robert Lowe, afterwards Viscount Sherbrooke, whose 
 career, however, was in many ways only a larger 
 instance of the fortune which Austraha gave to many 
 others who had resolution enough to forsake the Temple 
 for her coral-bound shores. 
 
 Alas ! the Australian Bar has long ceased to offer a 
 harbour of refuge to the distressed stuff-gownsman. 
 With the growth of Australian Universities and the rise 
 of a strong and numerous local profession, the colonies 
 of what was once Van Diemen's Land have become 
 closed one by one to the hopes of the legal immigrant 
 from the Temple, and for quite a generation he has 
 been forced to try other shores. For a long time 
 Canada, especially British Columbia, was a favourite 
 hunting-ground, but it, too, has long been a mere for- 
 lorn hope, and the same remark applies to those hapless 
 islands, the West Indies, which have been the shuttle- 
 cock of political finance, battledored from one industry 
 to another at the will of the economic pohcy of coun- 
 tries whose tariffs they cannot control. Then in the 
 days of Cecil Rhodes South Africa became the charmed 
 land ; Johannesburg and Cape Town, and even every 
 
HISTORICAL 67 
 
 little circuit village in the backlands of Natal or the 
 Cape, heard the gay young voices, and saw the youthful 
 faces of the enterprising tyro called some few months 
 before at one of the Four Inns, and still ftdl of the ven- 
 turesome spirit of the undergraduate. But the inevit- 
 able has happened in South Africa, as it must happen 
 in every white man's colony with a progressive and 
 educated population. No one from England without 
 some local connexion at the Cape can hope to make his 
 way against the legions of provincial lawyers. 
 
 One of the four corners of the globe, and one only, 
 still opens its arms with a welcoming smile to the Eng- 
 lish Bar. The East, with its vast populations of dusky- 
 skinned natives, has many centres where the white 
 man meets with no local rivals and where every one 
 who comes from the homeland has an equal chance 
 with his competitors. We do not refer to India or 
 Ceylon, which have numerous native pleaders, but to 
 colonies further East, where the Englishman is still 
 looked on as a demi-god — not boycotted as one of the 
 hated ruling race. Hong Kong, Singapore, and the 
 Straits Settlements, and the Federated Malay States 
 seem still to offer a fair field and no favour to the 
 adventurer. AH three are rapidly developing coun- 
 tries ; all three are dominated by the commercial 
 enterprise of the ubiquitous Chinaman ; in all three 
 the legal profession is practically a preserve of the 
 English-speaking white man, and he too must have 
 received his legal training in England or Scotland or 
 Ireland. In particular, we are informed that the 
 Federated Malay States — a rapidly-growing protector- 
 ate whose mineral resources and rubber-producing 
 capacities are just beginning to be exploited by keen 
 men of business — are a peculiarly good jumping-oft 
 plank for the barrister or solicitor who sees no future 
 
68 A CHANCE MEDLEY 
 
 before him at home. Any member of either branch of 
 the profession can be admitted to the local Bar after 
 six months' residence in the colony upon payment of 
 a fee of £6, and is sure to get clients at once, 
 
 (Aug., 1909.) 
 
 The history of the growth and improvement of 
 English roads is one of the most interesting and instruc- 
 tive chapters in the annals of our legal institutions. 
 Like most offshoots of our British Constitution, the 
 road authorities have had a somewhat chaotic and 
 anomalous story. At Common Law every landholder 
 was liable to pay three dues towards the county 
 or borough authority — in addition to the feudal 
 aids he owed his lord. These dues were for the con- 
 struction of main roads in the shire, the maintenance 
 of county bridges, and the support of the local militia. 
 There seems, however, to have been no simple method 
 of enforcing the collection of these dues ; indeed, in the 
 eighteenth century it was discovered that the only 
 legal way of getting a road repaired was to indict 
 two inhabitants of the parish for the misdemeanour 
 of letting it become a public nuisance. Usually the 
 two inhabitants so indicted were prominent landowners 
 and justices of the peace — so that a committal and a 
 conviction were far from easy to secure. Such a cum- 
 brous method of dragging in the, majesty of the criminal 
 law and the machinery of quarter sessions to secure 
 the performance of a civic duty was rather like using a 
 Nasmyth steam-hammer to crush a fly. Naturally 
 it was not often resorted to, and gradually during Tudor 
 and Stuart times of unrest fell into complete disuse. 
 
 As long as England remained a vast area of heath and 
 common, with only an occasional park and cultivated 
 
HISTORICAL 69 
 
 farm ^^marked off by enclosures, little heed was paid 
 to the repair of roads. Indeed, in the blithe days of the 
 Stuart Kings a weU-built highway was merely a temp- 
 tation to the highwaymen who infested every main 
 route and proved so impossible to suppress. But with 
 the coming of the Hanoverian kings there set in an 
 immense improvement of agriculture aU through the 
 country. High farming replaced the old primitive 
 system of open fields. Acts of Parliament were passed 
 without number to f acihtate the enclosure of the land. 
 Crops had to be carried miles and miles for disposal at 
 market and fair, instead of being consumed in the 
 neighbourhood. Roads became a necessity, and so 
 the system of turnpike roads sprang up. 
 
 The subsequent history of road authorities in this 
 country is well known to the Local Government 
 practitioner. He will recollect how the Highway 
 Act of 1835 created a new office, that of the Parish Sur- 
 veyor of Highways, whose duty it became to see to the 
 repair of roads and the prevention of obstructions or 
 other nuisances upon them. He will remember, too, 
 how new highway boards, partly elective and partly 
 consisting of justices, were formed for groups of 
 parishes ; and how, finally, in 1894, these boards were 
 amalgamated with the sanitary authority in each dis- 
 trict to form a District Council. The old method of 
 indictment of two prominent inhabitants for non-repair 
 is now replaced by the levy of a district rate. The turn- 
 pikes have gone ; toUs are collected no more : the 
 young generation can scarcely credit that scarce 
 forty years ago tolls were levied even on London 
 bridges across the Thames. 
 
 It was peculiarly appropriate that the Conference of 
 
70 A CHANCE MEDLEY 
 
 the International Associations of the Press should meet 
 in Lincoln's Inn Hall, for that Inn was the legal home 
 of Lord Chancellor Erskine, the great champion of 
 the freedom of the Press. " Government," he said in 
 Tom Paine's case, " has at all times been in its own 
 estimation a system of perfection ; but a free Press has 
 examined and detected its errors, and the people have 
 from time to time reformed it." By the way, the 
 famous phrase, the " palladium " of our liberties is 
 disputed between Junius, who applied it to the Press, 
 and Blackstone, who applied it to trial by jury, about 
 the same time. In 1794 Curran, in a speech for Hamil- 
 ton Rowan, said : " The liberty of the Press — that 
 sacred palladium which no influence, no power, no 
 Minister, no Government, which nothing but the de- 
 pravity or folly or corruption of a jury can ever destroy. 
 
 (Sep., 1909.) 
 
 When Mr. Justice Jelf recommended at Birmingham 
 that there should be special seats in the courts for law 
 students, perhaps he forgot that, on a famous forensic 
 occasion, Mr. Perker had Mr. Pickwick's friends shown 
 to the " students' box " at the GuUdhaU. Within living 
 memory " For Students " was a legend on a bench 
 there. 
 
 (Dec, 1909.) 
 
 In the Report of the Bar Council for the first time 
 (it seems) there is a definition of " a local Bar " ; 
 though the Council accept no responsibility for it, 
 it may be of practical value. They " consider that, 
 in order to constitute a ' local bar ' ... it is 
 reasonable to require that not less than four 
 
HISTORICAL 71 
 
 practising members of the Bar willing to accept 
 briefs in the county court should occupy chambers 
 in the locality." This episode marks the growth 
 of local Bars as a featmre of modern English legal 
 life. Indeed, it appears from another correspondence 
 that the local group has sometimes so much vitality 
 that it asserts itself against newcomers. Thus one 
 local Bar thinks that " only a man who is ' localised ' 
 in the sense of having taken up his residence in the 
 neighbourhood is entitled to take chambers or even to 
 have his name up in the town." The decree of the 
 Council is that no professional rule prevents a barrister 
 living and practising in London from opening chambers 
 in a provincial town, but that it is not customary to 
 do so, and that any circuit may prohibit its members 
 doing so. 
 
 (Dec, 1909.) 
 
Inns of Court 
 
CHAPTER II 
 
 INNS OF COURT 
 
 A rare disciplinary jurisdiction of the judges is about 
 to be invoked by a student of Gray's Inn, who is 
 aggrieved because that body will not call him to the bar. 
 It is said that the Lord Chancellor, the Lord Chief 
 Justice, Sir Francis Jeune, and Mathew, Romer, Wright, 
 CoUins, and Kennedy, JJ., will constitute the tribunal 
 to hear his appeal, which lies, in such cases as this, and 
 in that where a man has been disbarred, to all her 
 Majesty's judges. In the old days of Serjeants' Inn, a 
 judge on taking his seat on the bench ended his con- 
 nection with his Inn of Court, and consequently could 
 with propriety form part of the court trying such 
 issues. But now as aU the judges are benchers of their 
 respective Inns, nothing but a sense of equity prevents 
 their sitting when their society is a party in the cause. 
 This, of course, invariably operates, and hence there is 
 sometimes a difficulty in forming a court, and the 
 Chancery judges (who formerly had no jurisdiction) 
 are pressed into the service. Both sides may appear 
 by counsel, and evidence is taken, but not on oath. 
 
 (Dec, 1893-) 
 
 The appeal succeeded. 
 
 In February, 1877, Serjeants' Inn was sold to one of 
 its members, Mr. Serjeant Cox, for £57,100— a trans- 
 action which was the subject of much outcry at the time. 
 
 76 
 
76 A CHANCE MEDLEY 
 
 The great Judicature Act declared that it should no 
 longer be necessary for a judge on the Common Law 
 side to become a Serjeant, as it had been from time 
 immemorial, and it was assumed accordingly that no 
 future judge or barrister would ever seek admission 
 to the Inn. It became clear, therefore, that the Order 
 would die out, and unless the last survivor was to 
 succeed to the corporate property there was nothing 
 for it but to realize and divide. This was done, and the 
 average share of each member was computed at the 
 time to be worth about £1,464. 
 
 Mr. Serjeant Pulling, who was admitted to the Inn 
 in 1864, refuses to admit in his Order of the Coif that 
 the Order has been abolished, and advocated its re- 
 vival. He remarks that it came into existence before 
 the oldest title in the English peerage (that of a mar- 
 quis, in 1385), and centuries before any Order con- 
 ferring a title of honour was in ejcistence in England 
 (for example, the Garter, in 1330). " In answer to a 
 question put to the Lord Chancellor in 1877, he an- 
 swered that there was nothing to prevent the Crown 
 from creating new Serjeants if it were thought expedient 
 to confer the honour, and there are members of the Bar 
 who desire that rank." In his preface he remarks : — 
 " The Serjeants-at-Law have been the victims of 
 endless devices to their prejudice, and in the scramble 
 for privilege the Serjeants' place in Westminster Hall 
 was made to give way without any public advantage 
 being gained. The suggestions here made for reviving 
 the ancient Order would in days gone by have been wel- 
 comed by all Westminster Hall, and would now prob- 
 ably meet with the approbation of no insignificant part 
 of the present Bench and Bar of England, and of all 
 who respect time-honoured institutions. The vener- 
 able Order of the Coif came with the common law of 
 
INNS OF COURT ^^ 
 
 England, and ought not to be entirely sacrificed with- 
 out some effort being made to preserve it." 
 
 (June, 1894.) 
 
 The Middle Temple, whose arms are a lamb and flag, 
 built a stone gateway to their Treasury, adorned with 
 their emblem. An (envious) Inner Templar thus gave 
 vent to his jealousy : — 
 
 Middle had a little lamb 
 With fleece as white as snow : 
 However little Middle built 
 That lamb was sure to show ! 
 
 As the Inner Temple has just challenged public criti- 
 cism in the same way in two places, perhaps some mem- 
 ber of the rival society will retort on the aggressive 
 parodist. 
 
 (Nov., 1896.) 
 
 A rival wit of the Middle Temple replied as follows : — 
 
 Hey diddle diddle, the Inner and Middle 
 
 Each had a design for its spoon. 
 
 But the lamb with the flag lived to laugh at the nag 
 
 Whom the motor consigned to the moon. 
 
 Ichabod ! 1| At no season of the year is the contrast 
 between the ancient and modern Inn so marked as 
 at Christmas. Now Christmas festivities in the Temple 
 are as dead as the Eleusinian Mysteries. Yet the 
 superb volume of Inner Temple Records just published 
 by Mr. Inderwick, Q.C., teems with references to al- 
 most Saturnalian merry-makings in days of yore. 
 They lasted, too, continuously from Christmas Eve 
 
78 A CHANCE MEDLEY 
 
 to Twelfth Day. Thus, even in 1523, when " it was 
 agreed not to keep Christmas this year as of old, . . . 
 it is agreed that the society shall have for Christmas 
 one boar, besides " a sheld ' and two ' roundes,' and the 
 conjmons be accounted weekly. And that those who 
 are commoners shall be charged all expenses except for 
 the players, who shall have 20s,, and except the boar 
 abovesaid." In 1561 " there was a grand and solemn 
 Christmas in the Inner Temple, at which were these 
 officers : Lord Robert Duddeley," Elizabeth's favour- 
 ite, " was lord governor ; Master Onslowe, lord 
 chancellor ; Master Bashe, steward ; Master Coppeley, 
 marshal; and Master Patten, butler." In 1580 we read 
 " allowance of 4 li. to the company who kept Christ- 
 mas commons, and a warning be given for the refor- 
 mation next Christmas of certain abuses of which 
 there was complaint at this time. Order that the 
 officers who were in town and not allowed their com- 
 mons at Christmas shall have board wages, as in time 
 past — ^namely, 3s. 4d." 
 
 As Mr. Inderwick says, " there must have been much 
 wealth and good fellowship among the members of the 
 Inn, together with sound constitutions, and the vigour, 
 elasticity, and light-heartedness of youth. But the 
 charges upon the readers and others beyond their allow- 
 ance from the Inn for drinkings, dinners, and other 
 entertainments were felt to be " intolerable " by reason 
 of the great resort of the Queen's Councillors and other 
 very many honourable persons, and the multitude of 
 fellows and commoners within the society." 
 
 pec, 1896.) 
 
 The demand for tickets for the performances of 
 Twelfth Night in the Middle Temple Hall was over- 
 
INNS OF COURT 79 
 
 whelming. In a sense Middle Temple Hall belongs to 
 all members of the Bar, who justly take great pride in 
 it, and it would be a gracious compliment on the part 
 of the Elizabethan Stage Society to give an extra 
 representation to members of the Bar who were crowded 
 out. The Hall itself is probably the most beautiful 
 college hall in the country, and is the favourite show 
 place for visitors to the precincts of the law. It was 
 begun, according to Mr. Inderwick, in 1562, and took 
 ten years to build. There is no more persistent tra- 
 dition whereon strangers are regaled — and which has, 
 of course, been sedulously revived in connection 
 with these plays — ^than that Shakespeare himself here 
 read or played in Twelfth Night before Queen Elizabeth. 
 Yet there seems to be no authority for this brilliant 
 combination. Mr. Inderwick has been invoked to sup- 
 port this tale, at any rate, as to the Queen's presence. 
 But he says nothing of the sort. What he does say is : 
 " In February, 1601-2, Shakespeare's Twelfth Night, 
 or What you Will, was played in the recently erected 
 hall of the Middle Temple. . . . The account of this 
 performance is gained from a MS. diary of John Man- 
 ningham, a member of the Middle Temple, who was 
 present at the representation." (p. Ixxiii.) 
 
 That diary is pubhshed by the Camden Society. 
 Under date February 2, 1601, Manningham says : 
 " At our feast wee had a play called Twelue Night, or 
 What you Will, much hke the Commedy of Errores, 
 or Menechmi in Plautus, but most like and neere to that 
 in Italian called Inganni." Now, if Shakespeare or 
 the Queen had been present, Manningham must have 
 known it, and had there been any record of either of 
 those visitors Mr. Inderwick must have known it. 
 
 Possibly the confusion has arisen from another 
 fact which Mr. Inderwick mentions. On Twelfth 
 
8o A CHANCE MEDLEY 
 
 Night of 1560 or 1561 the first dramatic performance 
 of one of our earliest dramas, Gorboduc, took place in 
 the Inner Temple Hall. Its fame reached the Court, 
 and soon after it was given before the Queen at White- 
 hall by the same company. Still, any one who could 
 save the old tradition would deserve well of his country, 
 
 (Feb., 1897.) 
 
 On Sunday Dr. Hopkins bade a musical farewell to 
 his beloved Temple Church'; There was a large con- 
 gregation, and the Master delivered a kind and sym- 
 pathetic sermon. Fifty-five years have passed since 
 Dr. Hopkins was appointed organist, and it is in a large 
 measure due to his great abilities as a musician that the 
 services in the venerable old church have become so 
 popular. 
 
 (May 12, 1898.) 
 
 The repair pf the gatehouse of Lincoln's Inn in 
 Chancery Lane (which bears the date of 1518) has re- 
 vived the legend that Ben Jonson worked on it. FuUer 
 says : "He helped in the building of the new struc- 
 ture of Lincoln's Inn, when, having a trowel in one 
 hand, he had a book in his pocket." The reference 
 is probably to some of the (then) new chambers of the 
 Inn. 
 
 (Aug., 1899.) 
 
 Campbell is very funny about the 300,000 Volunteers 
 enrolled in London in 1803, when Bonaparte was pre- 
 paring to invade this country. The lawyers raised two 
 regiments, the B.I.C.A. — that is, the Bloomsbury and 
 
INNS OF COURT 8i 
 
 Inns of Court Association, known as the Devil's In- 
 vincibles, and the Temple Corps, or the Devil's Own. 
 Erskine commanded the latter, and Campbell, who 
 belonged to the rival corps, saw him give the word of 
 command from a paper which he calls a brief ! Law, 
 afterwards Lord EUenborough, was always " in the 
 awkward squad." " We consisted," he says, " chiefly 
 of lean students and briefless barristers, so that we were 
 in great hopes that if we did go into the field before the 
 end of the campaign, the fatigue alone would make great 
 openings for us in Westminster Hall and on all the 
 circuits . . . but there was no casualty to cause any 
 promotion in the profession. . . . There were like- 
 wise a good many attorneys belonging to us," and the 
 joke was that at the word " Prepare to charge " they 
 all puUed out pen, ink, and paper, and wrote down 
 6s. 8d. or 13s. 4d. . . . Two of the most noted volunteer 
 conamandants in London were one Miller, who " went 
 by the name of Marshal Sacks," and the other " actu- 
 ally was a pastrycook in the City, famous for selling 
 good turtle soup, and he was dubbed Marshal Tureen." 
 
 There can hardly be a spot in London with more 
 memories than the Temple, the old home of the Knights 
 Templars. Much of it has been rebuilt, but there yet 
 remain many of the buildings which are associated with 
 the makers of the law, to say nothing of the poets and 
 literary geniuses who lived within its precincts. Brick 
 Court, Crown Of&ce Row, Pump Court, and King's 
 Bench Walk teem with memories of the past, and scarce 
 a house in them but has a history as the home of some 
 great name in literature or law. A story is told of how 
 Blackstone wrote his Commentaries on the Laws of 
 England at a time when Dr. Johnson and Oliver Gold- 
 
82 A CHANCE MEDLEY 
 
 smith were wont to foregather and discuss the affairs 
 of the nation to the accompaniment of milk punch and 
 tobacco. Blackstone's rooms were at 2, Brick Court ; 
 Goldsmith's were on the floor above, and the noise of 
 the revellers or disputants was so distracting to the 
 learned Knight that he complained to the Benchers of 
 the Inn. The complaint perhaps was justified, but 
 Blackstone himself was not averse from the inspiring 
 influence of old port, as it is said he composed his Com- 
 meiitaries with a bottle of wine before him, and found 
 his mind invigorated and supported in the fatigue of his 
 great work by a temperate use of it. 
 
 By the death of the Hon. A. H. Webster Pump Court 
 ceases to be the traditional legal home of the Lord 
 Chief Justice's family. Three generations of Websters 
 have occupied the same set of chambers : Thomas 
 Webster, Q.C., Lord Alverstone, and his lamented son. 
 The long, narrow court is one of the prettiest bits of 
 the Temple, with its trees, cloisters, and sundial. 
 On the latter are inscribed the words, " Shadows we 
 are, and like shadows we depart." The gentle author 
 of Elia lived in Crown Office Row, and it wiU be re- 
 called that in the Inner Temple Gardens Shakespeare 
 laid the scene of the plucking of the white and red 
 roses in Henry VI : — 
 
 Plantagenet. — Let him that is a true-bom gentleman, 
 
 And stands upon the honour of his birth, 
 If he suppose that I have pleaded truth. 
 From ofi this briar pluck a white rose with me. 
 
 (Aug., 1902.) 
 
 On September 4, 1666, the Great Fire had 
 extended westward as far as the Inner Temple. The 
 greater part of the Inn was destroyed, the flames 
 
INNS OF COURT 83 
 
 stopping within a few yards of the famous church. 
 Clarendon has recorded that on the occasion of this 
 stupendous calamity, which occurred when a large 
 proportion of the Templars were out of town, the law- 
 yers in residence declined to break open the chambers 
 and rescue the property of absent members of their 
 society, through fear of prosecution for burglary. On a 
 subsequent occasion when a fire broke out in the Temple 
 the supply of water ran short, and the members of the 
 Inn in their desperation resorted to beer as a means of 
 extinguishing the flames. 
 
 The Flower Shows in the Temple are responsible 
 for the following epigram : — 
 
 Flora and Law a common Temple share ; 
 And rival Roses still contest it there. 
 
 The sumptuous viands for the delectation of the dis- 
 tinguished guests and hosts at the Grand Day Banquet 
 of the Inner Temple last night were recommended by 
 an even choicer jeu d'esprit, unique, probably, in the 
 annals of the society. The menu was thus introduced : 
 " Your Royal Highness, Most Noble Lords and Masters. 
 The following are the diverse meats we offer for your 
 acceptance. We call them by their names in English 
 that you may know they are no oddments, endments, 
 or kickshaws disguised under some foreign or unknown 
 name. They are what they are." The devilled white- 
 bait " came from the Thames and not from the river 
 Styx," and there were " snipe long preserved for this 
 night." The diners certainly took with notice. The 
 concluding plea that " our labours wiU meet with your 
 satisfaction " is signed by the steward and the master 
 
84 A CHANCE MEDLEY 
 
 cook. The influence of the legal mind may be de- 
 tected in" the eggs of the green-crested lapwing from 
 St. Patrick's Isle " — ^the plover apparently not being 
 protected by an Irish Wild Birds' Protection Act. 
 The only lawyer's name on this appetising document is 
 that of the Treasurer, Mr. Justice Grantham. 
 
 (May, 5, 1904.) 
 
 For the first time in legal history, probably, the 
 Lord Chancellor and both law officers are members of 
 the same Inn, Lord Loreburn {ne Robert Reid), Sir J. 
 Lawson Walton, and Sir W. Robson aU being Benchers 
 of the Inner Temple. Not only so, but the Speaker of 
 the House of Commons, Mr. J. W. Lowther, M.P,, is 
 a barrister of the same society, having been called to 
 the Bar in 1879. 
 
 {Feb., 1906) 
 
 It would be an interesting question whether the lay- 
 men or the lawyers who have lived in the Temple 
 were the more distinguished, but none is more famous 
 than Oliver Goldsmith, who died on April 4, 1774, at 
 2, Brick Court. The exact position of his grave outside 
 the Temple Church is not known. 
 
 As it is fashionable nowadays to steal manuscripts, 
 the Inner Temple authorities were startled recently 
 to learn from the newspapers that one of their valuable 
 MSS. was missing. So it was, but it had not been other- 
 wise within the memory of man. The MS. in question, 
 one of a Year-Book of Edward II, was apparently 
 last seen by John Selden in the Inner Temple Library, 
 and a competent authority thinks it was lost nearer his 
 
INNS OF COURT 85 
 
 time than ours. It was to this the Master of the Rolls 
 was referring at the recent annual meeting of the Selden 
 Society, a gathering which not every reporter is com- 
 petent to report. The secretary of that society writes 
 to the Times : " There is no reason to despair of finding 
 it. A few years ago a happy accident led me to the 
 discovery of several manuscripts which had been 
 missing from the Record Office for at least two cen- 
 turies and a half." 
 
 (April, 1906.) 
 
 Mr. G. J. Turner, of Lincoln's Inn, has made a dis- 
 covery about the origin of that society which he has 
 communicated to the Athenceum. The books generally 
 trace the name to the Earls of Lincoln, whose pro- 
 perty the land once was, and the last of whom, Henri 
 de Lacy, who died in 1312, had in some way or another 
 parted with it to a body of lawyers. Now Mr. Turner 
 finds in the Chartulary of the Abbey of Malmesbury 
 at the British Museum that the abbot's mansion in 
 Holborn is described as Lincoln's Inn in 1380, and he 
 infers from the same MS. that it took that name from 
 one Thomas of Lincoln, a former owner. " This 
 Thomas was a counter {narrator) or serjeant practising 
 in the Court of Common Pleas, whose name appears 
 in the Year-Books of Edward III." This leads to a sug- 
 gestion. " Thomas of Lincoln, the serjeant, was a likely 
 person to have gathered round him a body of appren- 
 tices-at-law, such as those who formerly inhabited, 
 and whose successors stiU occupy, the present 
 Lincoln's Inn. Perhaps we may see here the begin- 
 ning of that famous Inn of Court. Thomas of Lincoln 
 may, on selling his Inn to the abbot, have taken up 
 his residence at the Lincoln's Inn of to-day . , . bring- 
 
86 A CHANCE MEDLEY 
 
 ing there a body of apprentices who had lived with 
 him in his old Inn. We may easily conceive the 
 younger apprentices of a few generations later re- 
 ceiving instruction from their seniors, instead of from a 
 resident serjeant ; while those Serjeants who had once 
 been members of the Inn exercised a general super- 
 vision over the whole learned society. This, in fact, 
 was the state of things at Lincoln's Inn not long after 
 the sale by Thomas." Still, Mr. Turner is inclined to 
 think that the old view that the Inn was once the 
 residence of the Earls of Lincoln, whose arms it used, 
 is " entitled to respect.' 
 
 (Sept., 1906.) 
 
 How is the glory departed ! "It seems to have 
 been/' says the Book of Days, " in the Inns of Court in 
 London, that the Lord of Misrule reigned [at Christmas] 
 with the greatest splendour, being surrounded with aU 
 the parade and ceremony of Royalty, having his lord- 
 keeper and treasurer, his guard of honoiur, and even 
 his two chaplains, who preached before him on Sunday 
 in the Temple Church. On Twelfth Day he abdicated 
 his sovereignty, and we are informed that in 1635 this 
 mock representative of Royalty expended in the exer- 
 cise of his office about £2,000 from his own purse, and 
 at the conclusion of his reign was knighted by Charles I 
 at. Whitehall. The office, indeed, seems to have been 
 regarded among the Templars as a highly honourable 
 one, and to have been generally conferred on young 
 gentlemen of good family." 
 
 (Dec. 20, 1906.) 
 
 Legal visitors from across ' ' the herring-pond" some- 
 
INNS OF COURT 87 
 
 times ask for Benjamin's chambers. The legal abode 
 of a great man like Benjamin, who had a great career 
 before coming to the English Bar, has a particular 
 attraction for American lawyers. Not only is it in 
 the Temple, that literary shrine to which come pilgrims 
 from all over the English-speaking world, but Ben- 
 jamin was a link between England and America, and a 
 reminder of the notable fact that the two foremost 
 civilized States in the world rejoice in a common system 
 of law. Hard by Lamb Building is Crown Office Row, 
 where lived Charles Lamb, and opposite is Pump 
 Court, where, at No. 6, according to Thackeray, George 
 Warrington once penned his articles for the Pall Mall 
 Gazette, and discoursed on politics, philosophy, and 
 literature with his friend Arthur Pendennis. In 
 scenes like these, the student may, if he be so minded, 
 say, as he passes through the historic Courts : " Yonder 
 Eldon lived — ^upon this site Coke mused upon Lyttelton 
 — ^here Chitty toiled — ^here Barnwell and Alderson 
 joined in their famous labburs — ^here Byles composed 
 his great work upon biUs and Smith compiled his im- 
 mortal leading cases — ^here Gustavus still toUs with 
 Solomon to aid him." 
 
 The quotation is from Pendennis in the chapter on 
 the Knights of the Temple, and the " learned " author 
 — ^Thackeray was an Inner Templar — ^probably drew 
 on his imagination for "Gustavus" and "Solomon," 
 whose identity is apparently a mystery. Pendennis 
 was written in the early fifties of the last century, but 
 the legal chroniclers of that period make no mention of 
 either Gustavus or Solomon, hence it is pretty safe to 
 assume that " Gustavus," if he had a reality, continued 
 to toil, and that not even the wisdom of " Solomon " 
 enabled him to rise above the obscurity of a briefless 
 member of the profession. Perhaps some member of 
 
88 . A CHANCE MEDLEY 
 
 the Bar who is versed in legal literature can throw 
 some light upon the characters ; if not, the shade of 
 the great author must himself be invoked to settle 
 the matter, as not even an inspection of the escut- 
 cheons of all those knights and baronets, lords and 
 gentlemen, bearing arms, painted upon the walls of 
 either Inn, reveals their identity. 
 
 (Sept. 5, 1907.) 
 
 There has just been placed in the Inner Temple 
 Library an interesting object, which has a history 
 which reads like that of a Homeric belt. It is the 
 wooden bowl used by Samuel Martin, afterwards a 
 judge, for the reception of fees, during his career at the 
 bar (1830—50). Baron Martin was a son-in-law of Sir 
 Frederick Pollock, Lord Chief Baron of the Exchequer, 
 and himself became a Baron of the Exchequer in 1850. 
 From him this " till " passed to his brother-in-law, 
 Charles Edward Pollock, who also became a Baron of 
 the Exchequer, and who, in his turn, gave it to the 
 Hon. Malcolm Martin Macnaghten, whose mother 
 was Martin's only child, and who has now given it to 
 the Inner Temple. Only very senior lawyers can re- 
 member the use of Fee Bowls, which were wanted when 
 fees were paid in cash, i.e., before the era of cheques, 
 and usually on the delivery of the brief. 
 
 (June, 1908.) 
 
 August 13, 1908, was a very interesting anniversary in 
 the history of the English Bar. It was the Tercen- 
 tenary of the grant of a patent for ever to the Inner 
 and Middle Temples as colleges of law by James I. 
 These Inns of Court, it is hardly necessary to say, came 
 
INNS OF COURT 89 
 
 into being many centuries before that date ; their 
 origin is at least as ancient as the great legislative 
 reign of King Edward III. But for this patent of 
 King James it is highly probable that new Inns of 
 Court would have sprung up, just as new colleges 
 have come into existence from time to time at Oxford 
 and Cambridge, and that a legal university, consisting 
 of many colleges, would have displaced the system of 
 two common law and two chancery inns. 
 
 (Aug. 20, 1908.) 
 
 Of aU Lords Chancellors Francis Bacon was un- 
 doubtedly the greatest. The announcement, there- 
 fore, that Gray's Inn would celebrate a tercentenary 
 commemoration of him on the 17th inst. was of inter- 
 est to many classes besides mere lawyers. Students, 
 however, found it by no means easy to discover 
 exactly what the anniversary was, as the ordinary 
 authorities — Spedding, Campbell, Douthwaite, the Dic- 
 tionary of National Biography, etc. — do not mention 
 the date in question. The only (but sufificient) authority 
 seems to be the Pension Book of Gray's Inn, published 
 by the Inn and edited in 1901 by the Rev. R. J. Fletcher, 
 the chaplain, and containing as a frontispiece a mag- 
 nificent photogravure of the " wisest, brightest . . . 
 of manlrind." The entry runs : " Pension 17th Oct. : 6 
 James I. Present : Wilbraham, Bacon, Brograve, 
 Hitcham, Fuller, Gerrard, Brakin, Goldsmith, Cha- 
 worth. Finch, Brantingham, Tildesley, Hughes, Yel- 
 verton, Chamberline, Athowe, and Ireland. Sir Frauncis 
 Bacon Knight SoUicitor to ye King is elected Tresorer 
 of this house off Graies Inn nowe after ye decease of 
 Sir Cuthbert Pepper Knight ..." Londoners owe 
 a debt to Bacon as " the creator of Gray's Inn Gardens," 
 
90 A CHANCE MEDLEY 
 
 as the editor calls him, adding that when he was Trea- 
 surer he spent liberally " on his hobby." 
 
 (Oct., 1908.) 
 
 Christmas in the territories of the law is nowadays 
 always quiet. In nothing is the modern Inn of Court 
 less like itself in the " good old days " than in the matter 
 of Yuletide festivities. Indeed, the legal societies led 
 the way — sometimes far afield. It was quite difficult 
 enough for the authorities at any time to preserve order 
 among the young " bloods " who frequented the Temple, 
 and at times of licensed saturnalia quite special 
 restrictions had to be imposed. Thus in 1629 Gray's 
 Inn issued an order that " all plajdng at dice, cards, 
 or otherwise in the hall, buttry, or butler's chamber 
 should be thenceforth barred and forbidden at all times 
 of the year, the twenty days in Christmas onely ex- 
 cepted." Naturally, where Christmas flourished, the 
 Christmas Box flourished, and apparently the lawyers 
 were famous for their largesses. Thus in Cotgrave's 
 English Treasury of Wit and Language (1655) we read : — 
 
 " fair gamesters use 
 To pay the Box well, especially at In ajid In, 
 Innes of Court Butlers would have but a 
 Bad Christmass of it else." 
 
 It is said that King Alfred made it a positive law that 
 the twelve days after Christmas should be festivals, 
 and that hence is the origin of Twelfth Day. Some 
 day, perhaps, the ancient corporate festivities of the 
 Inns at this season wiU be restored. 
 
 There is reason to believe that the sale of Serjeants' 
 Inn (that in Chancery Lane, not that in Fleet Street) 
 
INNS OF COURT 91 
 
 will lead to the demolition of the present buildings, and 
 hence to the severance of another physical link with the 
 legal past. Its history (as gathered from various 
 authorities) begins in 1394 as a private house, part of 
 the Bishop of Ely's estatfe. A few years later it is known 
 as Faryndon's Inn, and, perhaps, even as early as that 
 it was occupied by judges and Serjeants. At any rate, 
 it is agreed that in 1416 it was let to those learned per- 
 sons, and got the name of Serjeants' Inn " unto this 
 day." The tenure being by lease, from time to time 
 complaints were made of the heavy fines imposed 
 on renewal, but it was not till 1834 that the members 
 bought the freehold from the See of Ely, raising by way 
 of mortgage a very large sum of money. In 1758 
 the members of the other Serjeants' Inn in Fleet Street 
 gave up that hostelry, and amalgamated with their 
 brethren in Chancery Lane. When, in 1834, the cor- 
 poration, as it was then created, became burdened by 
 debt, this had to be met by fixed contributions from 
 the new and the old members. Lord Campbell, in 
 1850, mentions that his admission cost him seven hun- 
 dred pounds. The Judicature Act of 1873 was a death 
 blow to the Inn, for it dispensed with the necessity of 
 a Common Law judge being a Serjeant, as hitherto he 
 had had to be, and Serjeants were no longer appointed. 
 Since then lawyers had no object in joining the Inn. 
 " In this change of the law," says Serjeant Pulling 
 (in The Order of the Coif), " the old Inn of the Serjeants 
 was at once consigned to destruction. The judges and 
 Serjeants took the only course open to them, sold their 
 property, paid off all charges, and wound up their cor- 
 porate affairs in due course." Inter alia, they divided 
 the surplus funds amongst themselves — a proceeding 
 which a few years later led to adverse comment in the 
 Times, and other publications, and to a characteristic- 
 
92 A CHANCE MEDLEY 
 
 ally vigorous defence by Lord Brarawell. " I received 
 my share," he remarked, " which did not more than re- 
 turn me principal and interest, for the cost of which I 
 had received no return except four dinners annually — 
 dinners in a large hall with our clerks, and intolerably 
 long, noisy, and wearisome. Is this ' spoliation ' ? 
 Who has been spoiled ? . . . For my own part, my 
 only regret is that my share of the ' spoil ' was not 
 greater." The only remaining possessions of the society, 
 its old pictures, were presented to the National Portrait 
 Gallery ; they include portraits of the Lords Chan- 
 cellors — King, Camden, Eldon, Truro, Lyndhurst, and 
 Campbell ; and of Sir Edward Coke, Sir Matthew Hale, 
 the Earl of Mansfield, and Lord Denman. Serjeant 
 Pulling suggests that " the corporate existence " of the 
 Order of Serjeants-at-law still exists, inasmuch as it 
 has not been formally brought to an end. If so, the 
 society consists of Lord Lindley, who was admitted to 
 the Inn in 1875, and is the sole surviving serjeant. 
 
 (May, 1909.) 
 
 Fer contfa, in the current Spectator, a correspond- 
 ent writes that the late Mr. Justice Denman disap- 
 proved of the transactioft so thoroughly that he asked 
 the writer to dispose of his share in charity (without 
 disclosing his name, presumably to avoid the appear- 
 ance of censuring his colleagues). 
 
 (May, 1909.) 
 
 In view of the discussion which has arisen about a 
 proposed memorial to Charles Lamb in the Inner Tem-. 
 pie, it may be mentioned that Lamb (or Lamb's) 
 Building in that precinct " has nothing to do with 
 
INNS OF COURT 93 
 
 Charles Lamb. It belongs to an earlier time, and its 
 name is derived from the Agnus (lamb) of the Middle 
 Temple over its doorway." So the learned Master of 
 the Temple, the Rev. Dr. H. G: Woods, in Memo- 
 rials of Old London. 
 
 (Nov., 1909.) 
 
Judges and Lawyers Generally 
 
CHAPTER III 
 JUDGES AND LAWYERS GENERALLY 
 
 Mr. Willis, Q.C., has published his lecture on Sir 
 George Jessel (London : E. Marlborough & Co., 
 51, Old Bailey) at a moment (June, 1893) when the 
 Lord Chancellor is seeking to still fm-ther de-Eldonise 
 the courts. Especially interesting is his sketch of 
 English law, " When I began to study the Law," and 
 his sarcastic accounts of some of the absurdities then 
 prevailing are veiy amusing. But best of all is the 
 biographical part, which is written with the most 
 searching sympathy throughout. ' ' J essel's First Morn- 
 ing at Westminster " is, perhaps, the gem of the book ; 
 it is admirably told : " There came a morning when 
 he entered one of the Courts of Westminster Hall with 
 a power and energy and learning which left their mark 
 upon its decisions. ... I was present the first morn- 
 ing when he moved in the Court of Queen's Bench. 
 . . . The Lord Chief Justice, finding the Solicitor- 
 General present, said, ' Mr. Solicitor-General, do you 
 move ? ' ' Yes,' he said, ' I do.' He was on that 
 occasion, some little creatures say, reproved for his 
 vehemence and vigour. Was he rude ? 
 
 " He conducted himself as counsel should, treating 
 
 the court with respect, yet uttering his opinions with 
 
 firmness and courage, not forgetting that it is the right 
 
 of counsel to be heard and the duty of judges to listen. 
 
 97 H 
 
98 A CHANCE MEDLEY 
 
 Sir George Jessel was beginning to read the Act of 
 Parliament which related to the holding of a second 
 inquiry if necessary, when Lord Justice Cockbum called 
 out, ' Has not this case been tried already and the 
 matter determined, and is it not like the case of a 
 prisoner who has been tried and acquitted of the 
 offence with which he is charged ? ' I shall not forget 
 the answer — ' Will your lordship hear the words of 
 the statute before you rush to hasty analogies ? ' 
 With all his faults Cockbum was a generous chief, 
 and the blood ran to his face, to the very roots of his 
 hair. ' Mr. Solicitor,' he said, in clear and striking 
 tones, ' we are not accustomed to be addressed in this 
 way.' 
 
 " Now was the moment of trial. Unmoved, imdis- 
 turbed, standing four-square, the most self-possessed 
 and accomplished barrister I have seen in my day, 
 he took no notice of what the Lord Chief Justice said, 
 but simply resumed ; ' My lords, when I was interrupted 
 I was reading the words of the statute. I propose to 
 read them to the end.' I assure you he was allowed to 
 read to the end. At length the Chief Justice said : 
 ' Take a rule, Mr. Solicitor ' — a. rule which was subse- 
 quently made absolute." 
 
 (June, 1893.) 
 
 It is said that on one occasion Mr. Jessel was 
 appearing before a judge who was not very friendly 
 towards him, and who suddenly stopped with the 
 remark, " Mr. Jessel, I think I see your point, and I be- 
 lieve the jury appreciate it, so you may go to the next." 
 " If your lordship only thinks you see it," was the 
 prompt reply, " and only believes the jury does, I had 
 better |o over it a^ain " — ^which he did, 
 
JUDGES AND LAWYERS GENERALLY 99 
 
 " Jessel," says an old friend, " was a man who knew 
 everything, and had done everything. One day in the 
 Rolls, Chitty (now Mr. Justice Chitty) was arguing, and 
 the difficulty of milking a cow somehow came up. 
 Says Chitty, ' There can be no difficulty in so simple 
 an operation ; no special skiU is needed.' ' Mr. Chitty,' 
 said the Master of the RoUs, ' did you ever try to milk a 
 cow ? ' ' No, my lord, I can't say I ever did.' ' Well, 
 I have, and can tell you that it's a very difficult thing 
 indeed to do the first time, and milking a cow requires 
 considerable special skill.' " 
 
 In the covurse of an action for slander, before Law- 
 rance, J., Mr. Kemp, Q.C., for the defendant, took 
 occasion to deliver a most vigorous, amusing (and 
 successful) attack on the " speculative solicitor," 
 who in this instance had prevented his client, the 
 plaintiff, from accepting any explanation or apology, 
 so that a " trumpery " action might proceed in the 
 High Court. Mr. Kemp remarked incidentally that he 
 believed that a certain class of solicitors, when they 
 went " to not a better world, will be set to write out 
 bills of costs which are never to be paid." At the end 
 of the case the learned judge asked for the plaintiff's 
 solicitor, with what object may be guessed ; but he was 
 not forthcoming. 
 
 (Nov., 1893.) 
 
 So sure as there is an accident with a vehicle of one 
 of the substantial carrying companies, or, indeed, of 
 any good firm, an emissary of one of some half-dozen 
 soUciting agencies swoops down like'a vulture on carrion 
 and murmurs " compensation." These persons walk 
 
100 A CHANCE MEDLEY 
 
 the accident wards with more assiduity than the medical 
 students themselves, and in one case a hospital porter 
 was known to present the card of one of these gentry 
 to a crippled patient. Manifestly the system is to 
 foment litigation with a view to getting costs out of the 
 other side, and with the certainty of not getting a 
 farthing if they do not. They trade largely on the 
 natural sjmipathy of a jury for a poor man who has 
 been hurt, and hence they dearly love a rich company 
 as a defendant. If they succeed once in five times, they 
 are well paid. 
 
 No doubt there must be some provision for poor and 
 bond fide plaintiffs in such cases. Counsel ought to, 
 and universally would, accept a small fee just as a 
 doctor does, and if the plaintiff really can afford no- 
 thing (which can be easily tested) the court will assign 
 him both solicitor and counsel. A barrister who lends 
 himself to these actions in any other way is a traitor to 
 his class. 
 
 (Nov., 1893.) 
 
 ' A Liverpool magistrate fined himself in his own court 
 for allowing his chimney to catch fire. The penalty he 
 inflicted on himself was double that which he imposed 
 on other offenders of the same incendiary class. Lucius 
 Junius Brutus apart, we must go for a parallel to the 
 Lord Chancellor in lolanthe, or to Sir John Trevor, 
 Speaker of the House of Commons, who in 1695 " was 
 condemned to sit for six hours hearing himself abused, 
 and at last was obliged to put the question and to 
 declare himself guilty of a high crime and misdemean- 
 our." (Foss.) 
 
 (Feb., 1894.) 
 
JUDGES AND LAWYERS GENERALLY lot 
 
 If' 
 
 By the death of the author of Tom Brown's School- 
 days the very small number of practising or working, 
 l&wyers distinguished in literature, or belles lettres,''is 
 diminished. Lord Bowen was a great loss from this 
 point of view, and now only Mr. Augustine Birrell, Q.C., 
 and Mr. W. Willis, Q.C., remain. " Tom " Hughes, by 
 the way, though he was admitted by Lincoln's Inn, 
 migrated to the Inner Temple, of which he became a 
 Bencher. 
 
 (March, 1896.) 
 
 Chancery lawyers are very apt, faute de tnieux, to bid 
 the Court of Appeal " search for the equity." In reply 
 to such an invitation Bowen once said, '' Are you not 
 
 asking us, Mr. , to perform an operation similar 
 
 to that of a blind man looking in a dark room for a 
 black hat which is not there ? " 
 
 The fact that a public monument was erected to the 
 memory of the late Mr. MiUer Corbet, solicitor, of 
 Kidderminster, breaks a record. Mr. Christian in his 
 recent History of Solicitors remarked that the 
 late Mr. E. W. Field (whose effigy stands in the Law 
 Courts) was probably the only solicitor whose career 
 has been commemorated by a statue and recorded in a 
 biography. 
 
 (Sept., 1896.) 
 
 The rights of counsel in court have long been estab- 
 lished. In Brooke v. Montague, in the time of James I, 
 it was held that " a counsellor in law hath a privilege 
 to enforce an5rthing which is informed him by his client. 
 
102 A CHANCE MEDLEY 
 
 and to give it in evidence, it being pertinent to the 
 matter in question, and not to examine whether it be 
 true or false, but it is at the peril of him who informs it." 
 In 1825, a judge said, " The speech of a counsel is 
 privileged by the occasion on which it is spoken ; he 
 is at liberty to make strong, even calumnious, observa- 
 tions against the party, the witnesses, and the attorney 
 in the cause. The law presumes that he acts in dis- 
 charge of his duty, and in pursuance of his instructions, 
 and allows him this privilege, because it is for the 
 advantage of the administration of justice that he 
 should have free liberty of speech." 
 
 In 1883 the Court of Appeal went even further. In 
 Munster v. Lamb a solicitor defending before the magis- 
 trates against the prosecutor (a barrister) imputed 
 immorality to the latter, who brought an action for 
 defamation. But it was decided that no action lies 
 against an advocate for defamatory words spoken 
 with reference to and in the course of a trial, although 
 they are uttered by him maliciously and not with the 
 object of supporting the case of his client, and are 
 uttered without any justification or even excuse, and 
 from peisonal ill-will or anger towards the person 
 defamed, arising out of a previously existing cause, 
 and are irrelevant to every issue of fact which is in dis- 
 pute before the court. Counsel, said Lord Esher, 
 " more than a judge, infinitely more than a witness, 
 wants protection on the ground of benefit to the public." 
 
 (April, 1897.) 
 
 Serjeant Simon, who has just died, was one of the 
 few remaining serjeants-at-law. He was the first 
 Jewish member of the Middle Temple, having been 
 called in 1842, and the second Jew to be called to the 
 
JUDGES AND LAWYERS GENERALLY 103 
 
 English Bar, the first having been the late Sir Francis 
 Goldsmid. It has also been stated that he was the 
 first graduate of the University of London who was 
 called within the Bar, Sir George Jessel, by a curious 
 coincidence, being the next. He certainly was the first 
 Jew who ever exercised judicial functions in this coun- 
 try, as in 1852 he acted as deputy judge in the Liver- 
 pool County Court, and later as a Commissioner of 
 Assize. In 1858 he was one of the counsel for the 
 defence of Dr. Bernard, who was charged with compli- 
 city in Orsini's attempt on the life of Napoleon III, but 
 acquitted. In 1864 he received the honour of the coif, 
 the sight of which in our courts is now rare. In 1868 
 Lord Chelmsford gave him a patent of precedence — a 
 convenient way of taking rank with Queen's Counsel 
 without any of their disabilities. 
 
 (July. 1897-) 
 
 The late Judah P. Benjamin, Q.C., replying in a 
 heavy GuUdhaU case to a long speech made against him, 
 simply said, " Gentlemen of the jury, give us our money 
 and be quick about it " — ^and they were. 
 
 By far the most amusing reminiscences of the great 
 " Tichbome " trials are to be found in the Memoir 
 of Lord Bowen, by Sir H. Cunningham. Bowen was one 
 of Coleridge's juniors in the Common Pleas (against 
 Orton), and was with Hawkins, Q.C., and J. C. Mathew 
 for the Crown in the trial at bar. His labours therein 
 helped to undermine his health ; but at the time {1871-4) 
 he relieved the monotony of the bar by composi- 
 tions such as " Old Mathew." [A (now) learned judge 
 is supposed meanwhile to lose all his practice.] One 
 
104 A CHANCE MEDLEY 
 
 stanza runs : " ' My friend,' said Mathew, ' all is done; 
 A withered leaf am I ; Last Guildhall sittings there 
 were none Left so completely dry.' " Another is : 
 " ' And, Mathew, on yon Bench,' I cried, ' Thou yet 
 Shalt sit as Chief.' To this he gloomily replied, ' I 
 am a withered leaf.' " 
 
 The " Claimant " had described himself as "a 
 B. of B. K." (supposed to mean a Baronet of British 
 Kingdom) ; whereupon some verses appeared ad- 
 dressed to Mr. Hawkins, Q.C., by " A. B. of B. K." 
 For instance : — 
 
 I lick the way you sets to work ; 
 You're highly paid, but does not shirk. 
 O 'Awkins, had i had but you I 
 You knows what's what — and does it too. 
 
 Onslow and Whalley both may be ■ 
 
 'Awkins you come and dine with me. 
 
 (April, 1898.) 
 
 In legal circles the fame of the late Mr. Alfred Cock, 
 Q.C., will chiefly rest on the stand he once made for the 
 rights and independence of the Bar, practically the 
 only check on the enormous power of the judges. In 
 1886, just before he took silk, he represented the defend- 
 ant in a case (Goosey v. Jardine), which was last in the 
 day's hst, and which he had reason to beUeve would not 
 be reached that day. Nevertheless, he took the pre- 
 caution of sending a " devil," now a distinguished 
 Q.C. The judge took his seat twenty minutes late, 
 but his list " cracked up " so rapidly that the " devil " 
 had not had time to get up a heavy case, and the hour 
 being early, begged for an adjournment, on the ground 
 that Mr. Cock was actually speaking in another court 
 (it turned out that his leader was absent). The judge 
 refused, and the junior declined the responsibility of 
 
Judges and lawyers generally io^ 
 
 cross-examining. Just then Mr. Cock came in, and 
 the judge also refused to let him cross-examine, but at 
 last consented "as an extreme favour," and " under 
 protest." Ultimately Mr. Cock, dissatisfied with the 
 conduct of the case, declined to proceed further, and 
 the verdict being Adverse, appealed. 
 
 The appeal (then) to the Divisional Court was on the 
 merits, but the procedure of the learned judge was the 
 subject of much discussion. Mr. Cock said fearlessly 
 that the latter had taken a course " not to be tolerated 
 in the administration of EngUsh justice." The judg- 
 ments are illustrative of our methods. Grove, J., 
 said that in his opinion, Mr. Cock was not to blame ; 
 with seven, eight, or nine courts sitting at once that 
 sort of inconvenience must happen. They " had no 
 right 01 power to comment on the conduct of a member 
 of their own body, they had no power of fining or im- 
 prisoning one of their brethren." Stephen, J., with 
 characteristic boldness, took another line. " In a case 
 of this kind he thought it was a duty, though a painful 
 duty, to state his reasons. He agreed that it was gener- 
 ally undesirable that one judge should comment on the 
 conduct of another, but, at the same time, a judge sat 
 in his seat to do justice, and whenever conduct came 
 before him, even the conduct of one of his brother 
 judges, on which he had to form an opinion, he thought 
 it to be the judge's duty to express that opinion, so far 
 as it was necessary. . . . Mr. Cock had done nothing 
 which he need be ashamed of . . . and when he 
 declined to go on with the case he only showed a proper 
 regard for his own dignity." The matter made a great 
 stir at the time, and the late counsel was thought to 
 have " scored " heavily for the Bar. 
 
 (April, 1898.) 
 
io6 A CHANCE MEDLEY 
 
 Mr, Birrell, Q.C, in his charming monograph on the 
 late Sir Frank Lockwood has preserved one of his best 
 mots, naturally (alas I) not so well known as some of the 
 earlier ones. The Chancellor's visit gave the dying 
 man great pleasure. Ruefully glancing at his own 
 shrunken frame, he said : " He must have felt I should 
 make an excellent puisne [pronoxmced puny] judge." 
 By the way, the witty sUk scores neatly off his own bat. 
 " Mr. Labouchere — a bold but judicious UbeUer, who 
 certainly deserves weU of the Common Law Bar. 
 For purely equitable proceedings he seems to have no 
 turn." 
 
 (Oct., 1898.) 
 
 In the old days when a prisoner said, " I call God to 
 witness that I am innocent," that eccentric person Mr. 
 Justice Maule waited ten minutes, and having informed 
 the accused that he had done so to give time for his 
 witness to appear, proceeded with the case. 
 
 The most popular judge among schoolboys is Mr. 
 Justice Romer, since he has declared a school a nuisance. 
 
 (Nov., 1898.) 
 
 In Mr. Fairfield's Memoir of Lord Bramwell occurs 
 the following story : " One spring day in 1889 the 
 local constable at Edenbridge noticed Lord Bramwell 
 intently watching a noisy group of vUlage boys, appar- 
 ently much excited about something. It was the first 
 day of the cricket season, and they were, in fact, 
 drawing up rules for their cricket club. Fancying 
 that they might have annoyed the old lord in some 
 
JUDGES AND LAWYERS GENERALLY 107 
 
 way the constable approached and asked whether such 
 was the case. ' No, no,' said Lord Bramwell ; ' those 
 lads have been teaching me something — ^how the com- 
 mon law was invented.' The constable considered this 
 a remarkable proof of juvenile precocity, and observed, 
 ' It's wonderful what they do learn at school nowadays, 
 my lord ; over-education, / call it.' " 
 
 (Dec, 1898.) 
 
 In the last volume of the Memorials of the late Earl 
 of Selborne Lord Davey gives the true version of a 
 story (often told wrongly) of the Earl when he was 
 Lord Chancellor, and Mr. Benjamin, Q.C. : — " The 
 Lord Chancellor, in the course of Mr. Benjamin's open- 
 ing (of an appeal to the House of Lords), had said to 
 himself, but unfortunately too audibly, ' What non- 
 sense ! ' Thereupon Mr. Benjamin, who had a quick 
 temper, shut up his book and left the House. On my 
 rising to reply . . . the L. C. said in his poUte way 
 that he supposed they were indebted for the pleasure 
 of seeing me to what had taken place on the previous 
 day. On my Eissenting, the Lord Chancellor expressed 
 his regret at having given unintentional offence to Mr. 
 Benjamin in terms which were in my opinion amply 
 sufficient. I obtained his leave to mention what he 
 had said to Mr. Benjamin, and under the circumstances 
 he permitted me most irregularly to reply in his place." 
 [The House of Lords only hears two counsel on one 
 side, but Mr. Davey thus became the third.] " I 
 must own that I had some difficulty in inducing Mr. 
 Benjamin to write a letter to the Lord Chancellor 
 accepting his expression of regret, but I did so, and 
 handed the letter to the L.C., and there the matter 
 
 ended." 
 
 (Dec, 1898.) 
 
io8 A CHANCE MEDLEY 
 
 No man was the mainspring of more stories than 
 Mr. Justice Hawkins. There is, apparently, only one 
 recorded in which he does not score. Many years 
 ago Serjeant Robinson, who tells the tale, was rowing 
 up the river at Guildford when he came upon, " stand- 
 ing erect on the middle of the lock-gates, two strange 
 forms that somewhat startled us." They turned out to 
 be Mr. Hawkins and Edwin James. " The only clothing 
 we could detect about them was a h^ on the head of 
 one and a pair of boots in the hand of the other. As 
 for James ... he looked the colour of a recently 
 boiled lobster, while the other, thin and spare, gave 
 one the idea that he had been painted a pale blue." 
 The mystery was cleared up when hard by was dis- 
 covered " a raging buU, digging his horns into the 
 habiliments of our friends, tossing them in the air." 
 He had caught them just as they were preparing to 
 swim, and " they had only just time to seize the first art- 
 icle of raiment that came to hand and run upon the lock 
 with all speed." The members of the Bar who were 
 attired ultimately drove off the spoiler (from their boat), 
 and the future judge, resuming what was left of his 
 garments, " returned in a rather dilapidated condition " 
 to his lodgings. 
 
 There is a story of a gentleman who, after being well 
 known in legal circles here for many virtues and some 
 " side," is now a judge in a great dependency. He was 
 walking about on the platform of a railway station with 
 considerable dignity {more suo), when a timid native 
 approaching asked him what time the next train started. 
 " I am not the station-master," he replied with great 
 emphasis. " Then, why do you walk about with so 
 much pride ? " was the prompt rejoinder. 
 
 (Feb.. 1899.) 
 
JUDGES AND LAWYERS GENERALLY 109 
 
 In " The Ethics of Advocacy " {Law Quartet ly 
 Review, July, 1899) Dr. ShoWell Rogers quotes by 
 permission from a private letter of the Loid Chancellor 
 to the effect that the theory that an advocate must be 
 convinced of his client's innocence before he acts for 
 him is " ridiculous, impossible of performance, and 
 calculated to lead to great injustice." Lord Selborne 
 holds the same view in his Memorials. He writes : — 
 
 " How can a lawyer argue for a client whom he 
 thinks wrong ? This was never to me a practical 
 difficidty. ... It is the right, even of those who are 
 most in the wrong, to have the benefit of a fair and 
 public trial according to law, and to have their evidence 
 properly laid before judge or jury, and the arguments 
 which can honestly be advanced on their side skilfully 
 and fairly stated. It is the advocate's part to do this. 
 ... It has happened to me, not very seldom, that 
 the end of a case has been contrary to my first 
 impression of it, and that I have, nevertheless, been 
 satisfied that justice was done." 
 
 (July 20, 1899.) 
 
 Dr. Showell Rogers's essay on the Ethics of Advocacy 
 contains one of the best legal mots of modern times, 
 viz. : " Obiter dicta, though made per curiam, are, 
 as often as not, made per incuriam." The said o.d, 
 it rpay be explained to the lay mind, are often the 
 legal dead flies which spoil the forensic apothecary's 
 compound of judgments wholly favourably to his 
 patient. 
 
 It is surprising by what enhghtened minds the 
 fallacy Dr. Rogers refutes has been entertained. For 
 instance, the great Dr. Arnold writes to Mr. Justice 
 Coleridge in 1837 : " In proportion to my reverence 
 
no A CHANCE MEDLEY 
 
 for the office of a judge, is, to speak plainly, my abhor- 
 rence of the -business of an advocate. ... I have been 
 thinking, in much ignorance, whether there is any 
 path to the Bench except by the Bar ; that is, whether 
 in conveyancing or in any other branch of the pro- 
 fession a man may make his real knowledge available, 
 like the juris consulti of ancient Rome, without that 
 painful necessity of being retained by an attorney to 
 maintain a certain cause and of knowingly suppressing 
 truth, for so it must sometimes happen, in order to 
 advance your own argument. I am well aware of the 
 common arguments in defence of the practice ; still, 
 it is not what I can myself like." 
 
 (Aug., 1899.) 
 
 The appointment of Lord Robertson to a legal seat 
 in the House of Lords has naturally given great satis- 
 faction in Scottish legal circles. Perhaps the profes- 
 sion in this country does not always realise the differ- 
 ence in the position of the Bar there. In many ways 
 the English Bar is unlike the Scottish Bar or Faculty 
 of Advocates, who are comparatively small in nmnbers. 
 Not only is the Enghsh Bar a most cosmopohtan pro- 
 fession ; it is very numerous and has members who 
 come from all ranks of life ; it has colonials and for- 
 eigners from all parts of the globe. It has, therefore, a 
 certain breadth of mind and absence of exclusiveness. 
 But in Scotland it is otherwise. Beside the barristers 
 or advocates there are two societies of soUcitors, 
 Writers to the Signet and Solicitors of the Supreme 
 Court, who possess most of the exclusive privileges 
 possessed by counsel in England, and who do most of 
 the lesser work of the Bar. Further, every brief 
 in the Court of Session (except in criminal cases) must 
 
JUDGES AND LAWYERS GENERALLY iii 
 
 pass through the hands of a member of one of these two 
 privileged societies as well as those of an ordinary law- 
 agent ; hence it is more diffictilt for a man without in- 
 fluence to get a start in Scotland than in England. 
 
 (Nov., 1899.) 
 
 From a popular point of view, the most interesting 
 episode in Lord Penzance's life was his famous con- 
 troversy with Lord Chief Justice Cockbum. The 
 latter's court had taken upon itself (practically) to 
 overrule a decision of the former in his Ecclesiastical 
 Court. In 1878 in another case (Combe v. Edwards, 
 3 P.D., 103) Lord Penzance took the opportunity of 
 disputing the jurisdiction of the Queen's Bench, and 
 spoke of " the paralyzing influence over this court 
 which has been usurped by the Queen's Bench Division 
 . . . and I propose to show," he went on, " that the 
 judgment of the Lord Chief Justice is based upon serious 
 misconceptions of fact and equally grave misinter- 
 pretations of the law," and he proceeded at great 
 length to refute his reasoning, but concluded with great 
 dignity that he would obey and respect the Queen's 
 writ, " however unadvisedly issued." One striking 
 passage deserves to be cited. " The picture of law 
 triumphant and justice prostrate is not, I am aware, 
 without admirers. To me it is a sorry spectacle. 
 The spirit of justice does not reside in formalities 
 or words, nor is the triumph of its administration to 
 be found in successfully picking a way between the pit- 
 falls of technicality. After all, the law is, or ought to 
 be, the handmaid of justice ; and inflexibility, which 
 is the most becoming robe of the latter, often serves 
 to render the former grotesque." 
 
 In an open letter to Lord Penzance, Sir Alexander 
 
112 A CHANCE MEDLEY 
 
 Cockburn dealt with his arguments, and impressed 
 the controversy with the character of a personal quarrel. 
 He complained of an " offensive and unprovoked 
 attack on myself, of the systematic perversion and 
 misrepresentation of my arguments, for the ungenerous 
 purpose of holding me up to contempt and ridicule ; " 
 and he entered his protest " against the unprecedented 
 departure from aU judicial usage which this judgment 
 exhibits. This, I wiU undertake to say, is the first 
 instance in our judicial armals in which a judge whose 
 decision has been overruled on appeal, or arrested by 
 prohibition, instead of abiding the decision of a superior 
 appellate tribunal, has, on a similar case presenting 
 itself, availed himself of 4he opportunity to raU at the 
 judgment which has superseded his own. This is 
 the first instance of a difference of judicial opinion being 
 made the occasion of a personal and hostile attack." 
 Sir Alexander did not scruple to denoimce Penzance's 
 conduct as an " escapade," and to impute it " to the 
 wound inflicted on a too sensitive vanity " through 
 the Overriding of his decree. In the end, however. 
 Lord Penzance was held to have been right. 
 
 At the time something Hke consternation at the 
 Lord Chief Justice's tone prevailed amongst lawyers, 
 and such a duel was supposed to be unique. That, 
 however, is not quite so. In i860 Lord Chancellor 
 Campbell, in affirming a decree of Vice-Chancellor 
 Page-Wood (afterwards Lord Chancellor Hatherley) 
 took upon himself to comment severely on the " pro- 
 digious length " of the judgment and on its being un- 
 written. The judge maintained absolute silence, on 
 account, he says in his Autobiography, of the tone of 
 these remarks ; but Romilly, M.R., and Vice-Chancellors 
 Kindersley and Stuart, entirely " on their own," ad- 
 dressed a remonstrance to Campbell which is a monu- 
 
JUDGES AND LAWYERS GENERALLY 113 
 
 ment of dignified rebuke. Campbell replied somewhat 
 lamely, and remarked, more suo, " I should not like to 
 repeat the observations which I have heard from Lord 
 Eldon upon some of the judgments of the Court of 
 Session in Scotland." This correspondence, however, 
 though now published, was at the time private. So, 
 perhaps, Cockburn's outburst holds the field for judicial 
 intemperance. 
 
 (Dec, 1899.) 
 
 The recent passage between the Dean of Durham 
 and Mr. Justice Grantham recalls another famous duel 
 between an ecclesiastic and a lawyer. In the agita- 
 tion about Essays and Reviews, Wilberforce, Bishop 
 of Oxford, had been very prominent in Convocation, 
 and Lord Chancellor Westbury said in the House of 
 Lords, " I am happy to teU your lordships that what 
 is called a synodical judgment is a weU-lubricated set 
 of words — a sentence so oily and saponaceous that no 
 one can grasp it. Like an eel, it sUps through your 
 fingers. It is simply nothing." (Hansard, July|i5, 
 1864.) The Bishop retorted by referring to " ribaldry 
 in which he knows that he can safely indulge, because 
 those to whom he addresses it will have too much 
 respect for their character to answer him in like sort." 
 The Bishop was generally supposed to have the_best 
 of it. 
 
 (Jan., 1900.) 
 
 Mr. Justice Byrne's obituary notice of Chitty, L.J. 
 contains one mot which will appeal peculiarly to law- 
 yers : " He knew law ; many of us have, as it were, 
 a banker's balance of knowledge in our libraries, if we 
 
114 A CHANCE MEDLEY 
 
 are given time to go and draw upon it ; but Chitty's 
 knowledge was ready money." 
 
 (May, 1900.) 
 
 An attorney died so poor — ^perhaps it was he of whom 
 it was said he had so few effects because he had so few 
 causes — that his friends had to make a shilling sub- 
 scription to bury him. One of them asked Curran for 
 that contribution. " Here's a sovereign," was the 
 answer, " bury twenty ! " 
 
 Of Serjeant Vaughan there was a witty mot. It was 
 supposed that his advancement was greatly due to the 
 influence of his brother, who was the Royal physician, 
 and when in 1827 he was made a Baron of the Ex- 
 chequer, it was said that no one had a better title to 
 the post, as he was a judge by prescription. 
 
 Sir Harry Poland, Q.C., has just delivered a lecture 
 on the Criminal Law. Some of his humorous touches 
 may be reproduced. In 1836 a biUwas introduced to 
 allow counsel to persons accused of a felony. Twelve 
 out of the fifteen judges sti'ongly condemned the bill, 
 and one, Mr. James Alan Park, wrote a letter to the 
 Attorney-General stating that if the bill passed he 
 would resign his office. " Well, the bill did pass, but 
 the learned judge did not resign." " I have seen at 
 the end of the first day's trial for embezzlement the 
 jury locked up for the night and the prisoner let out on 
 bail." " Mr. Justice Maule on one occasion, when 
 the bailiff asked if he might give a jur5mian a glass of 
 water — ' Well,' said the judge, ' it is not " meat " 
 
JUDGES AND LAWYERS GENERALLY 115 
 
 and I should not call it " drink." Yes, you may.' " 
 " Notwithstanding my enthusiastic reverence for 
 trial by jury in criminal cases, I should not regret 
 to see the abolition of the jury of matrons ; but who 
 dares to propose such an interference with the rights of 
 women ? " " Wager of trial by battle was abolished 
 in 1819, and, strange to relate. Lord Eldon actually 
 concurred in this reform." Sir Harry also dealt with 
 the absurdities of technicality, which were never 
 more clearly illustrated than by the escape of Lord 
 Cardigan, who was tried by the House of Lords in 1841 
 for wounding a man in a duel — owing to the inability 
 of the prosecution to prove the latter's full name. 
 
 (Nov., 1900.) 
 
 When Ion was a success, Serjeant Murphy, meet- 
 ing the author, said, " Well, Talfourd, have you 
 any more Ions in the fire ? " Another story pre- 
 served by one who knew the family is that Frank 
 Talfourd, going circuit with his father, was asked 
 by Baron Martin, the other judge (who was supposed 
 to have read nothing but law, and to know nothing 
 but that and the science of trainers, jockeys, and 
 horses), what his father's favourite play was. The 
 answer was Romeo and Juliet. The Baron under- 
 took to read it, and the next morning annoimced that 
 he had done so. " What do you think of it ? " 
 said young Talfourd. " Think of it ? " was the 
 answer. " Why, it's a tissue of improbabilities from 
 beginning to end." 
 
 (Dec, 1900.) 
 
 When the past century is reviewed by the philosophical 
 
ii6 A CHANCE MEDLEY 
 
 historian, the Bar will be found to be not its least im- 
 portant institution. Just a hundred years ago there 
 was about to go to the Bar a keen and observant young 
 man, who was not only writing down his experience 
 and impressions day by day, but who later in life, 
 and in the full tide of fame, put them into shape. 
 This was John Campbell, afterwards Lord Chancellor, 
 He not only had the wit to notice at the moment, but 
 the matured judgment later to know what was worth 
 preserving, and authority in confirming his youthful 
 views. His life, which consists of a selection from 
 his autobiography, diary, and letters, is an amusing 
 picture of the times generally. 
 
 Like so many others, Campbell, who was very poor, 
 drifted into the law from sheer want of anything else 
 to do. " Those," he writes in December, 1799, " who 
 struggle with the greatest difficulties at first are finally 
 the most successful. You know how poorly ofi Tom 
 Erskine was while a student. Mr. Pitt was obliged 
 to pawn his chambers in Lincoln's Inn before he was 
 cajled to the Bar. You did not perhaps know that 
 Billy was a lawyer. Burke and half the statesmen 
 who have flourished in England had previously studied 
 at an Inn of Court. The great advantage of a know- 
 ledge of the law is that, besides enabling you to enter 
 a most lucrative and honourable profession, it fits you 
 for a thousand other situations, to fiU which without it 
 you would have been incapable." 
 
 (Dec, 27, 1900.) 
 
 A contemporary calls attention to the fact that the 
 late Baron Fitzgerald, an Irish judge, who was on 
 the bench for twenty years, never once pronounced a 
 capital sentence, and that Lord Morris, who sat for 
 
JUDGES AND LAWYERS GENERALLY 117 
 
 twenty-two years, never hanged a criminal. In this 
 country Sir Edward Clarke, despite his extraordinary 
 practice, was never instrumental in securing the death 
 penalty, unless an argument against a prisoner before 
 the Privy Council on a colonial appeal on a point 
 of law be so considered. A barrister once came home 
 from circviit, and boasted that he had saved a man's 
 life. " Of course," said his friends, " you defended 
 him on a charge of murder." " No," was the answer, 
 " I prosecuted him." 
 
 (May, 1901.) 
 
 The poet Savage used to relate that when in 1727 
 he was indicted before Sir Francis Page, known as 
 " the hanging judge " (for the murder of a companion 
 in a midnight brawl), his lordship summed up thus : 
 " You are to consider that Mr. Savage is a very great 
 man, a much greater man than you or I, gentlemen ; 
 that he wears very fine clothes, much finer clothes 
 than you or I, gentlemen ; that he has abundance of 
 money in his pocket, much more money than you or I, 
 gentlemen ; but, gentlemen, is it not a very hard case 
 that Mr. Savage should therefore kUl you. or me ? " 
 He was convicted, sentenced to death, but pardoned. 
 
 (Dec, 1902.) 
 
 The last instance of a judge taking an active part in 
 poUtics in this coxmtry was that of Lord Chief Justice 
 EUenborough, who had a seat in the Cabinet in 1806. 
 In 1805 he had strongly opposed, in the House of Lords, 
 the removal of the political disabilities of Roman Cath- 
 olics, and his appointment to the Cabinet provoked 
 a vote of censure in both Houses, which, however, was 
 
ii8 A CHANCE MEDLEY 
 
 defeated. Campbell tells a story which illustrates the 
 tendency to distrust political judges. In 1810, when 
 Ellenborough's party was in opposition, Perry, the 
 well-known proprietor of the Morning Chronicle, was 
 tried before him for a hbel on George III and (very 
 properly) acquitted by his direction. The Attorney- 
 General, Sir Vicary Gibbs, turned round to the bar 
 and in "a loud whisper " said : " We shall never 
 again get a verdict for the Crown while the Chief 
 Justice is in opposition." 
 
 (March, 1903.) 
 
 Solicitors who complain of the failure of the pubhc 
 properly to appreciate the dignity of their office may 
 find some satisfaction in the knowledge that things are 
 not quite so bad as they were at one time. In the 
 reprint from the Times of August 26, 1803, a petition 
 to ParUament is quoted showing that the number of 
 attorneys had increased in two counties from eight 
 to twenty-four, whereby the peace of those counties 
 had been greatly interrupted by suits. The petitioners 
 therefore prayed that the number be reduced, so that 
 there should be no more than six each in Norfolk and 
 Suffolk, and two for the City of Norwich. The petition 
 was granted provided the judge thought it reasonable. 
 Times have changed since the days when attomejra 
 multiplied quarrels and suits, and with the increase in 
 the number of solicitors their position has enormously 
 improved both to their own advantage as well as that 
 of the public. 
 
 (Sept., 1903.) 
 
 In Mr. Sichel's Biography of Mr. Disraeli he is repotted 
 to have said of a certain Lord Chancellor : — " Everybody 
 
JUDGES AND LAWYERS GENERALLY 119 
 
 knows the stages of a lawyer's career — ^he tries in turn 
 to get on, to get honours, to get honest. This one 
 edits hymns instead of briefs, and beginning by cozening 
 juries, he compounds with heaven by cramming children 
 in a Simday school." Whether the sentiment is gen- 
 uine critics must judge ; but the expression is almost 
 certainly not, for Lord Selbome probably never ad- 
 dressed a jury in his hfe — certainly not after his earliest 
 years at the Bar, and this Mr. Disraeli must have known 
 well. 
 
 (Oct., 1903.) 
 
 A newspaper has the following advertisement : — 
 " Legal advice. — Experienced barrister answers queries 
 by post. Short answers, 2s. bd. ; four-page opinions, 
 5s." This veteran, no doubt, has a perfect right to 
 appraise his opinions at his own value, but he seems to 
 have forgotten that he is a member of a trade union 
 which prohibits its members from taking a less fee 
 than a guinea. The editor of the periodical has, no 
 doubt unwittingly, been a party to a gross breach of 
 etiquette. The theory implied by the terms offered, 
 that the price of an opinion should depend on its length, 
 is novel. Some connsel have even gone so far as to 
 decline extra remuneration when the work was ex- 
 ceptionally heavy. Thus Lord Brougham praised the 
 " highly honourable " conduct of Serjeant Topping, 
 once well known, who had a general retainer of a thou- 
 sand guineas offered to him in the Baltic cases. He 
 declined it on the ground that this sum indicated a 
 doubt of his doing his duty on " the ordinary terms 
 known to the profession " (namely, one guinea for a 
 special, five for a general, retainer) " or an expectation 
 that he should, on being thus retained, do something 
 
120 A CHANCE MEDLEY 
 
 beyond the line of his duty," and he only took five 
 
 guineas. 
 
 (Oct., 1903.) 
 
 The sensational criticism on a County Court judge 
 by the Lord Chief Justice is a general topic of pro- 
 fessional discussion. 
 
 There seems to be no precedent for the public 
 denunciation of a judge's manner in court, but there was 
 something very much like it in the case of Sir John 
 Leach, Master of the Rolls (1827). Mr. Nash, the bio- 
 grapher of Lord Westbury, speaks of Sir John's " intem- 
 perate deportment towards the counsel of his Court," 
 and says, " Probably no other judge than Leach ever 
 had occasion to receive a deputation of the leaders 
 of his Court, who waited upon him to offer their 
 remonstrances against his discourteous treatment of 
 the Bar." 
 
 (Jan., 1904.) 
 
 The episode of the premature report of a judge's 
 death has naturally recalled the stir which the reported 
 death of Lord Brougham made in 1839. It is almost 
 incredible, but there seems to be no doubt that the 
 ex-Lord Chancellor set the rumour afloat himself out 
 of curiosity to see what people would say of him I 
 Greville says : "It was well known eventually that the 
 hoax was entirely his own, and the letter [annoimcing 
 the death] dictated by himself." His vanity, at any 
 rate, was not gratified by the result. 
 
 (June, 1904.) 
 
 The Times remarks of the late Mr. C. H. Robarts : 
 
JUDGES AND LAWYERS GENERALLY 121 
 
 "A naval officer and a don at Oxford, a City banker 
 and one of the chief officers of the City Corporation, a 
 barrister and a judge in one of our Crown Colonies, is a 
 combination not often to be met with." 
 
 (Aug., 1904.) 
 
 Sir William Grantham is the latest addition, at the 
 instance of the Chailey Rural District Council, to the 
 distinguished line of judges who have been defendants, 
 or even prisoners. In 1693 an action was brought in 
 Sir John Holt's own Court, the King's Bench, against 
 his brother and others (including, apparently, him) 
 (see p. 127). In 1699, Spencer Cowper, afterwards 
 (1727) a judge, a brother of a Lord Chancellor, and 
 grandfather of the poet, was tried at Hertford for 
 mxirder and acquitted — a decision just beyond all 
 doubt. In 1886 was tried Adams v. Coleridge, when 
 the defendant, the Lord Chief Justice, went into the 
 box ; the verdict was in his favour. 
 
 (Dec, 1904.) 
 
 The facts of a recent case reveal a state of things 
 with regard to the deliberate inflation of biUs of costs 
 which was generally believed to have passed away, and 
 which, indeed, legislation has done much to extin- 
 guish. A hundred and fifty years ago Smollett satir- 
 ised the attorneys — a very different class then arid now 
 — ^in his Count Fathom. That hero goes to law, and 
 " he found he had incurred the penalty of three shil- 
 lings and fourpence for every time he chanced to meet 
 the conscientious attorney either in the park, the 
 coffee-house, or the street, provided they had exchanged 
 the common salutation, and he had great reason to 
 
122 A CHANCE MEDLEY 
 
 believe the solicitor had often thrown himself in his 
 way with a view to swell this item of his account." 
 Our progress in this form of commercial morality 
 may happily be gathered from the fact that to-day 
 the criminal law can be invoked to deal with the coun- 
 sellor who betrays his cUent. 
 
 (Jan., 1905.) 
 
 Lord Grimthorpe's vigorous personality half a 
 century or so ago led to an incident, now forgotten, but 
 which very much amused the public at the time. It 
 was well known that Mr. Denison, as he then was, had 
 a passion for the study of clocks, bells, etc., and, indeed, 
 he was known as " Bell " Denison. This brought him 
 into intimate connection with Mr. Dent, the well- 
 known watchmaker and horologist, with whom and 
 Mr. G. B. Airy he designed " Big Ben." For some of 
 Mr. Dent's inventions and patents he not only afforded 
 scientific, but financial, assistance. Mr. Dent, natur- 
 ally anxious to repay his colleague the money due 
 to him, consulted him how this could best be done. 
 The barrister thought that the most convenient means 
 was by provision in Mr. Dent's will, and, with his 
 characteristic exuberant energy, promptly proceeded 
 to draw it himself. This, of course, was a technical 
 irregularity, and when Mr. Dent died, in 1853, some 
 representative of his estate called the matter in question, 
 and it thus became public. Of course, no morsil 
 blame whatever attached to Mr. Denison, and the 
 affair, it seems, was amicably settled, but as he was not 
 the meekest of men, for years he was twitted with the 
 story by people who wished to " score off " him. 
 One wit christened him Will Denison. On another 
 occasion, when he was cross-examining a well-known 
 
JUDGES AND LAWYERS GENERALLY 1Z3 
 
 engineer somewhat severely, he inquired sarcastically : 
 " I suppose, sir, you could do or make anything ? " 
 " No," replied the witness ; " there are two things 
 I can't make — one is a clock and the other is a will." 
 
 (May 6, 1905.) 
 
 As to-day is the aimiversary of the death of Sir 
 Thomas More in 1535, it is perhaps not inopportune, 
 in view of a practical problem of the moment, to 
 recall the rhjrnie current when he was head of the 
 judiciary : — 
 
 When More some time had Chancellor been. 
 
 No more suits did remain ; 
 The like wiU never more be seen 
 
 Till More be there again. 
 
 (July 6, 1905.) 
 
 There has been a very pretty passage between the 
 solicitors generally and the Solicitor-General. The 
 latter said in the House of Commons that it was the 
 " discrimination " of solicitors which helped members 
 of the Bar along (the Times) — ^he may have referred 
 to himself, or he may not. Upon that, Mr. Rawle, the 
 president of the Law Society, observes that it is " per- 
 fectly true that but for the assistance of the solicitor 
 branch very few barristers would get anywhere near 
 the top of the ladder " ; he is probably referring {inter 
 alios) to Sir Edward Carson. Thereupon, Sir John 
 Gray Hill (ex-president of the Law Society) joins issue 
 with his colleague, and says there can clearly be no 
 discrimination in a profession which discriminates the 
 Solicitor-General ; there can be no doubt to whom he 
 refers. Altogether, it is very much as if heads should 
 
124 A CHANCE MEDLEY 
 
 quarrel with tails, though which is which must be left 
 to the reader. Solicitors undoubtedly do discrimi- 
 nate — ^mostly between their own relatives and friends. 
 In no body of men are the domestic affections more 
 marked. 
 
 (July. 1905.) 
 
 The election of Dr. C. Lancelot Shadwell, who is a 
 barrister of Lincoln's Inn, to be Provost of Oriel, 
 recalls the name of his grandfather, Sir Lancelot Shad- 
 well, a most interesting legal personality. He was 
 the last " Vice-ChanceEor of England " (as equity 
 judges were once called), and was the first to check 
 the practice of taking briefs in more than one Chan- 
 cery court, a practice which at length the attomes^ 
 had to combine to put down. He could not, he said, 
 according to D.N.B., " induce himself to think that 
 it is consistent with justice, much less honour, to under- 
 take to lead a cause and either forsake it altogether 
 or give it an imperfect, hasty, and divided attention." 
 The same authority tells us that he was president of 
 the Society of Psychrolutes, who daUy bathed out of 
 doors from November to March. In one of these 
 dips in a creek near Barn Elms he "is said to have 
 granted an injunction in the Long Vacation." Thus a 
 famous tale is traced to its source. 
 
 (Oct.. 1905.) 
 
 To-day is the anniversary of the death, in 1654, of a 
 lawyer who held a unique position in the history of 
 the Bar, John Selden. There does not seem to be any 
 other case of a mere barrister, without any official 
 standing whatever, or, indeed, almost without any 
 
JUDGES AND LAWYERS GENERALLY 125 
 
 practice, obtaining such paramount political influence 
 in the country. But then the profession, and, perhaps, 
 any profession, has never seen a man of vaster learning 
 — rprobably none of such vast learning. He was, in- 
 deed, a bencher of the Inner Temple and a member of 
 Parliament (Lancaster, Great Bedwin, Ludgershall, 
 the University of Oxford), and yet he only "appeared 
 ... in a few great cases involving special learning ; 
 it is probable, also, that he gave opinions and prac- 
 tised as a conveyancer." So Sir Edward Fry tells us 
 in his excellent account in the Dictionary of National 
 Biography. 
 
 (Nov. 30, 1905,) 
 
 " A well-known leading member of the Bar, who, it is 
 anticipated, will have a prominent position in the 
 new Liberal Administration, has just been compelled 
 to refuse a brief marked . . . 10,000 guineas, in con- 
 sequence of the late change of Government." — Law 
 Times. 
 
 It is stated that the member of the new Liberal 
 Government who refused a ten thousand guinea 
 brief owing to acceptance of office was Mr. Asquith, 
 K.C. 
 
 (Dec, 1905.) 
 
 The new Cabinet may be known as the Lawyers' 
 Cabinet. The Chancellor apart, there are no less than 
 three working K.C.'s (Mr. Asquith, Mr. Birrell, and 
 Mr. Haldane), two practising solicitors (Sir Henry 
 Fowler and Mr. Lloyd-George), while Mr. Bryce, who 
 is a well-known jurist, and Mr. Morley are members of 
 the Bar — eight in all. It is certainly a " record " 
 
126 A CHANCE MEDLEY 
 
 both for silks and solicitors. It may be worth recall- 
 ing what Lord John Russell said (about 1820) in his 
 Essay on the Constitution : " Among other cavillings 
 at the practice of our Constitution there has been 
 raised a cry against the influence of lawyers. From 
 the earliest times, however, that influence has been 
 beneficial to the country. ... In the House of 
 Commons, the members who have taken a chief part 
 in the debates have generally been lawyers. This is 
 the natural result of their habits of speaking, and we 
 see them on one side of the House as well as on the 
 other. On the side of freedom we may reckon a series 
 of bright names, that began with the beginning of our 
 Constitution. . . . Unfortunately, however, there are 
 instances ... of men who, attracted by the brilliant 
 rewards in the profession of the law which the Crown 
 has to give, have made themselves the tools of t5n:anny 
 and corruption. But this is by no means an exclusive 
 attribute of lawyers." 
 
 (Dec, 1905.) 
 
 As the Court of Appeal may any day consist of Lords 
 Justices Stirling, Romer, and Fletcher Moulton, we may 
 look forward to a tribunal wholly composed of Senior 
 Wranglers — ^a combination that has not existed before. 
 Vaughan Williams, L.J., is the sole representative of 
 Oxford on the ordinary Appeal bench ; among the 
 " supernumeraries," too, the Chancellor has that title. 
 Lord Alverstone and Sir J. Gorell Barnes belong to 
 " the other shop," as Rawdon Crawley put it. 
 
 (Jan., 1906.) 
 
 We often hear about " the old race of judges." The 
 anniversary of the death of one of them, in 1793, name- 
 
JUDGES AND LAWYERS GENERALLY 127 
 
 ly, the Earl of Mansfield, has just passed. This peer- 
 age is, perhaps, the most interesting of legal peerages 
 at the present day, because it stiU exists, and the owner 
 it still " of Caen Wood," Highgate (though he is not 
 a lineal descendant of the founder of the earldom) ; 
 moreover, Mansfield is the only Lord Chief Justice 
 of Englajid who has been created an earl in that office. 
 " As a judge," says the Dictionary of National Bio- 
 graphy, "by his perfect impartiality, inexhaustible 
 patience, and the strength and acumen of his under- 
 standing, he ranks among the greatest who have ever 
 administered justice." si sic omnes I The same 
 authority adds : " Mansfield was a sincere Christian, 
 but so careless of times and seasons that he once pro- 
 posed to try a case on Good Friday, and only aban- 
 doned the idea in deference to the protest of one of the 
 leading counsel against following a precedent set by 
 Pontius Pilate." 
 
 (March, 1906.) 
 
 For a parallel to a judge being a party to a suit in 
 his own court — as in Lord Justice Fletcher Moulton's 
 case — ^we must, apparently, go back to Lord Chief 
 Justice Holt's case in 1693. He had granted a chief 
 clerk's place in the King's Bench to his brother. It 
 was claimed by some one else under letters patent from 
 Charles II, and the action was tried by three judges 
 and a jury in the King's Bench, Holt, who seems also 
 to have been a defendant, sitting next to his brother, 
 " uncovered," on the floor of the court. It was shown 
 that the place had been in the gift of the Chief Justice 
 for centuries, and that the other grant was quite 
 irregular. The jury found for the defendants. 
 
 (March, 1906.) 
 
128 A CHANCE MEDLEY 
 
 The classic instance of wrongful interference by the 
 police is narrated by Serjeant Ballantine. He says 
 that very late one night in Piccadilly he noticed a 
 constable struggling with a drunken woman ; the 
 spectators objected to the way he handled her, " and 
 a row seemed imminent. I touched the officer lightly 
 upon the shoulder, saying, ' Why do you not spring 
 your rattle ? You wUl hurt the woman.' He jumped 
 up, and, seizing me by the collar, said, ' I take you into 
 custody for obstructing me in the execution of my 
 duty.' I remained perfectly passive. ... At this 
 moment Sir Alexander Cockbum, then Attorney- 
 General (i.e., between 1851 and 1856), who was re- 
 turning from the House of Commons, appeared upon 
 the scene, and seeing a woman, as he thought, iU-used, 
 remonstrated in indignant language with the officer ; 
 upon which the constable who had hold of me stretched 
 out his othet arm . . . and said, ' I arrest you also.' 
 ' Arrest me 1 ' exclaimed the astonished Attorney- 
 General ; ' what for ? ' ' Oh, ' said my captor, * for 
 many things. You are well known to the poMce.' . . . 
 Possibly we should have spent the night in company 
 with the Very objectionable female on whose behalf 
 we had interfered. Some people, however, fortimately 
 recognised us, and we were released." The learned 
 Serjeant hints not obscurely that, after this, the woman 
 in question waf allowed to, escape, 
 
 (Mayj 1906.) 
 
 A very learned correspondent writes to supply the 
 Omission of the best part (never, semble, before 
 printed) of a very good story told in Mr. Atlay's 
 excellent Victorian Chancellors in the Life of Lord 
 Lyndhurst. Mr. Atlay relates how Lyndhurst on one 
 
JUDGES AND LAWYERS GENERALLY 129 
 
 occasion in the House of Lords (July i, 1859 : 154 
 Hansard, 508) applied to Campbell, then Chancellor, 
 between whom and him it is well known no love was lost, 
 the words from Macbeth : 
 
 " Thou hast it now, King, Cawdor, Glamis, all, 
 As the weird women promis'd ; " 
 
 Message, so to say, ends. But the correspondent, who 
 is old enough to remember the incident, adds that 
 when Campbell, who was beaming with pleasure, 
 half rose from the Woolsack and made a profound 
 bow to his predecessor, the latter " laughed con- 
 sumedly, " and, turning to the peers near him, quietly 
 remarked that the Chancellor did not seem to know 
 the context, for it went on : 
 
 -and, I fear, 
 
 Thou play'dst most foully for't." 
 
 (Aug., 1906.) 
 
 The Eastern Daily Press has the following story of 
 Judge Willis, apropos of his migration from Norfolk 
 to Southwark. He was riding in an omnibus, in which 
 were a small boy and his mother, from Chancery Lane 
 to a well-known stopping-point of the route, the Green 
 Man. The judge talked to the boy the whole way, 
 and was talking when the conductor put his head in 
 at the door and said, " Green Man, Green Man ! " 
 " Ah ! " said the judge, " I must get out here ; I always 
 get out at the Green Man." " Don't you think," said 
 the boy's mother, " don't you think you have had 
 enough already ? " The learned judge, it appears, 
 denies the story — ^more's the pity. 
 
 (Nov., 1906.) 
 
130 A CHANCE MEDLEY 
 
 In the new Recollections of a Humourist is the remark 
 (p. 277) that Lord James of Hereford " will be better 
 known for ever in the Law Courts as Sir Edwin James, 
 the name to which he gave undying fame." We devoutly 
 hope not. 
 
 The recent Mansion House meeting of " Poor Men's 
 Lawyers " is to promote a system of which the gratuit- 
 ous defence of poor prisoners is but one point. So far 
 from promoting litigation, good, disinterested advice is 
 the surest means of ^stopping a mass of pettifogging pro- 
 ceedings. Every practising barrister has had experi- 
 ence of the poor suitor who wants him to certify in 
 formd pauperis ; oVer and over again a word or a letter 
 unofficially from counsel to the other party has settled 
 the matter in issue. Many people will explain to, or 
 come to terms with, a gratuitous adviser anxious to 
 avoid strife, who will take no notice of their opponent's 
 grievance. 
 
 (May, 1907.) 
 
 The frequent references in the great cause against 
 the Duke of Richmond now pending to the ample 
 authority of Preston, the conveyancer, are a reminder 
 of a good story told of the inexhaustible Sir George 
 Rose. The great lawyer's only fault was a love of 
 " shop," which he talked even at dinner. One day, 
 when everybody [was reading My Aunt Pontypool, 
 by G. P. R. James, Rose met him at that festivity, and 
 Very gravely, and with much introduction, begged for 
 his opinion, for " your vast knowledge, reading, and 
 judgment are such that your opinion on any title is 
 
JUDGES AND LAWYERS GENERALLY 131 
 
 quite decisive." Preston bowed. " Now, do you think 
 ' My Aunt Pontypool ' a good title ? " 
 
 (July, 1907.) 
 
 Lord Coleridge is the third member of his family 
 to reach the Bench in three successive generations. 
 When the late Lord Coleridge died the new judge be- 
 came a peer, and it was urged in some quarters that it 
 would be improper to practise, as by virtue of his peer- 
 age he was a member of the highest court of appeal. It 
 was Sir J. Rigby, K.C., Attorney-General, who gave a 
 contrary opinion, and the new peer continued his prac- 
 tice without further question. The same objection was 
 raised when the present Chancellor of the Exchequer, 
 then Home Secretary, went out of office ; but Mr. 
 Asquith refused to recognise the very thin objection 
 that a man who has been Home Secretary, and might 
 be so again, must be debarred from earning his living 
 when out of office. 
 
 The achievement of the Coleridge family in this 
 country has been anticipated by that of the Smiths in 
 Ireland — Sir Michael Smith, Sir William Cusack-Smith, 
 and Thomas Smith (who died Master of the Rolls in 
 1866) all having been in a direct unbroken line and 
 High Court judges. But Mr. W. A. Lindsay, of the 
 College of Arms, in the Times, goes even " two better " 
 than these records, as he states that for five successive 
 generations the Dundases, Lairds of Arniston, sat on 
 the Scotch Bench, the first dying in 1679 and the last 
 in 1819. 
 
 It has been duly noted that Scotland had anticipated 
 England in what may be called the judicial " hat-trick " ; 
 further, three lineal Moncreiffs have sat one after 
 
132 A CHANCE MEDLEY 
 
 another on the High Court bench there, as now three 
 Coleridges have done here. But it has been overlooked 
 that if we have not hitherto had three judges in the 
 direct line, we have long at least had two and a half, 
 if we may say so without disrespect. The late Mr. 
 Justice Denman was the twelfth child of the great 
 Lord Chief Justice Denman, and Mr. G. L. Denman, 
 the present popular metropolitan police magistrate, is 
 the son of the judge and grandson of the Lord Chief 
 Justice. The PoUocks, of course, have always run 
 the Denmans close, but have not {semble) actually 
 attained to three generations of official rank. 
 
 (Oct., 1907.) 
 
 The great public interest in the late Lord Brampton 
 has led to a proportionate crop of errors, some by 
 authorities who ought to know better. Thus one 
 learned journal, to connect him with Serjeant May- 
 nard, states that he was an unsuccessful candidate 
 for Beeralston ! — a borough which was got rid of in 
 1832 — ^while Hawkins did not stand (for Barnstaple) 
 tiU 1865. Another writer attributes " the famous 
 catch-phrase in his cross-examination of Jean Luie, 
 which smashed up the Tichborne case," viz., " Would 
 
 you be surprised to hear ? " to the late judge, and 
 
 even thinks it " curious " that no one else has referred 
 to this hit. It is not at all curious, as the inventor was 
 not Hawkins, but Coleridge (and the witness was the 
 " Claimant " himself). What has not been mentioned 
 in many obituaries is that he tried the Penge murder 
 case in 1877, when he sentenced the whole of the four 
 prisoners to death, all of whom, however, were respited, 
 one of the women being pardoned altogether. His 
 summing-up on that occasion lasted from 10.40 a.m. 
 till 9.45 p.m., and the jury returned their verdict at 
 
JUDGES AND LAWYERS GENERALLY 133 
 
 11.5 p.m. One story must be borrowed from a con- 
 temporary. To a counsel who was, he thought, taking 
 time out of all measure, he handed down a piece of paper 
 with the words on it : " Examination in patience : Gold 
 medal, Hawkins ; honourable mention. Job." 
 
 (Oct., 1907.) 
 
 Mr. George Edalji is to be congratulated on having 
 been restored to the roll of solicitors. It seems that 
 there has been no case of a solicitor struck off the roU 
 for a conviction being restored since the case of Mr. 
 Barber more than half a century ago. He was 
 actually transported to Australia, and it was some years 
 after his release before he was completely rehabilitated. 
 When the occasional interference of the Press with con- 
 victions is injudicious, the Edalji case ought to be 
 remembered to its credit. 
 
 (Dec.,. 1907.) 
 
 By the death of " Dick " Adams, Ireland, the Irish 
 Bar and English society lose a favourite. A mot 
 which even he hardly beat was his reply to an English- 
 man who asked him where he was educated. " Sir," 
 he said, " I was educated at the Queen's University, 
 Cork — ^the only institution in Ireland that was thor- 
 oughly successful — and so it was abolished by the 
 consent of all parties ! " 
 
 (April, 1908.) 
 
 Till Mr. Asquith, no K.C. has been Prime' Minister 
 since 1809, when Spencer Perceval, who had taken 
 silk in 1796, and became Attorney-General in 1802, 
 formed a Cabinet. Indeed, no full-grown lawyer has 
 
134 A CHANCE MEDLEY 
 
 been Prime Minister since Perceval, for though Can- 
 ning, Disraeli, and Gladstone were admitted as stu- 
 dents — all, too, like Mr. Asquith, at Lincoln's Inn, 
 an^extraordinary coincidence — none of them was called. 
 Except his ending, Mr. Asquith, K.C., may be wished 
 as successful a reign as his brother silk. He is cer- 
 tainly the only Prime Minister who has (practically, 
 though not technically) defended a member of his own 
 Cabinet in the dock, the distinguished prisoner being 
 Mr. John Burns, who was indicted in January, 1888, at 
 the Old Bailey, with Mr. Cunninghame Graham, M.P., 
 "for a riot and unlawful assembly " in Trafalgar 
 Square on the preceding November 13. " Asquith," 
 then a junior, nominally appeared for Mr. Graham 
 only, but as the two defendants " hung together," 
 he was, in fact, advocate, for the future President of the 
 Local Government Board. He was to some extent 
 successful, as they only " got " six weeks " without 
 hard." By the way, some accounts of Mr. Asquith's 
 rise at the Bar have hardly done justice to his first 
 patron and fautor, who was Henry (now Lord) James, 
 Solicitor-General in 1873 and Attorney-General in the 
 same year, and again in 1880. Mr Asquith was called 
 in 1876. 
 
 (April, 1908.) 
 
 There is said to be a popular prejudice against law- 
 yer-politicians. Whether it be that they are supposed 
 to be insincere, or exceptionally self-seeking, or in- 
 humanly cold and unsympathetic, or whatever be the 
 cause, it is always thought to be a valuable disparage- 
 ment of an opposing candidate to point out that he is a 
 member of The Profession. Nevertheless, when there 
 are feats of dialectical ingenuity to be performed, awk- 
 
JUDGES AND LAWYERS GENERALLY 135 
 
 ward corners to be rounded, and unpleasant facts to be 
 explained away, the lawyer always comes to the front. 
 Never was a Cabinet so full of lawyers as this new one 
 of Mr. Asquith's. The Prime Minister himself, Mr. 
 Haldane, Mr. Birrell, and Mr. McKenna have all been 
 practising barristers, not to mention the inevitable 
 Lord Chancellor ; while the other branch of the pro- 
 fession is represented by Sir Henry Fowler and the 
 new Chancellor of the Exchequer. 
 
 (April, 1908.) 
 
 The following advertisement appeared a few days 
 ago in a London newspaper : " League of Criminal 
 Appeal. Cases fully considered. Apply .... Tem- 
 ple, London." No name is published. There can be 
 no doubt that the applications solicited are to be 
 addressed to a barrister's chambers, and it need hardly 
 be stated that such an advertisement is a serious viola- 
 tion of professional discipline. The proper authorities 
 have had their attention officially drawn to the matter, 
 and, no doubt, justice will be speedily done. 
 
 (May, 1908.) 
 
 The date of the dinner given by the Bar to Mr. 
 Asquith, K.C., is to be July 10, " Only once 
 before has the Bar played the part of host to one 
 of its own members. M. Berryer and Mr. Choate, 
 two distinguished advocates belonging to other 
 countries, have been entertained by the Bar ; Sir 
 John Hollams, the doyen of the other Branch of the 
 profession, has been feted in the hall of one of the 
 Inns ; Lord Bramwell received a similar tribute from 
 the Bar when he retired from the Bench ; but Mr. 
 
136 A CHANCE MEDLEY 
 
 Benjamin is, so far, the only member of the Bar itself 
 who has been so honoured." — Law Journal. 
 
 (May 28, 1908.) 
 
 The analogy which the Attorney-General drew at 
 the recent dinner to Mr. Asquith between his and Pitt's 
 caireer may be carried a little farther, for Tomline says 
 that in 1783, after the latter had ceased to be Chan- 
 cellor of the Exchequer, he intended to resume " his 
 profession of the law, if there should appear a fair 
 probability of the administration being permanent." 
 
 (July, 1908.) 
 
 The eccentricities — and invalidities — of great lawyers' 
 wills would fill a book. Perhaps the most character- 
 istic was that of the great Serjeant Maynard, in William 
 Ill's reign, who is said to have left it purposely worded 
 obscurely so that the litigation on it might settle 
 several hard points which had puzzled him in his 
 practice ! 
 
 (Sept., 1908.) 
 
 The lasting monument of the late Lord Justice 
 Mathew will be the Commercial Court, whose ready 
 despatch of business has become a model for other 
 tribunals. If it be true, as has been stated, that he 
 had to wait some years for work, this was another point 
 of resemblance between him and other great judges, 
 such as Blackstone, Blackburn, etc. Perhaps suffi- 
 cient justice has not been done to Mathew's distinction 
 as a judge in criminal cases. He always kept an eye 
 on the prisoner's future. On one occasion, when it 
 
JUDGES AND LAWYERS GENERALLY 137 
 
 came out that there were several other charges hanging 
 over the prisoner besides that on which he was being 
 tried, he insisted that they should all be dealt with to- 
 gether, so that " his moral bankruptcy might be finally 
 wound up on his discharge." Many of his sayings have 
 become current legal bons mots. The most famous of 
 all — " the truth occasionally leaks out, even in an 
 affidavit " — ^has been generally misunderstood. He 
 was not disparaging the veracity of affidavits, though 
 cjmics have naturally seized on this interpretation, 
 but contrasting unfavourably the Value of written 
 documents for getting at the whole truth with that of 
 cross-examination. 
 
 (Nov., 1908.) 
 
 An American lawyer, hearing a clergyman preach, 
 remarked, " The Court was with him, there was no 
 reply, yet what a remarkably bad case he made ! " 
 
 Mr. Horace Smith, the well-known Metropolitan 
 magistrate, has put some of his sentences into Verse 
 in Collected Poems, and very good reading they are. 
 Indeed, one critical reviewer has likened the author to 
 the other Horace (though he did not proceed to com- 
 pare Mr. Plowden to Plautus). There does not seem 
 to be any exact precedent for a stipendiary magistrate 
 " dropping into poetry." However, it does not seem 
 that there is any power to remove the learned gentle- 
 man for the innovation. Perhaps it may be said (with 
 slight apologies to Byron) — 
 
 " Beaks, too, can write ; such things at times befall, 
 And 'tis some praise in beaks to write at all." 
 
 (Jan., 1909.) 
 
138 A CHANCE MEDLEY 
 
 The late Mr. Shee, K.C., was a son of Mr. Serjeant 
 Shee, who became the first Roman Catholic Judge in 
 this country since the Revolution. In 1900, when the 
 failure of a bank in the Isle of Man caused widespread 
 distress there, it was resolved to put certain directors 
 on their trial for various frauds, and as almost all the 
 local judges had, like a great many of their neighbours, 
 been " hit " by the disaster, Mr. Shee was made Deem- 
 ster for the occasion and presided at the trial of those 
 officials. His appointment gave rise to the following 
 Unes : — 
 
 'Tis only natural and human 
 Each sex should score, if it can ; 
 And as man is the judge of woman 
 Shee should be judge of Man, 
 
 (Feb., 1909.) 
 
 Mr. Taft's Cabinet has been described as a " Cabinet 
 of lawyers," seven of its nine members having had a 
 legal training. The similarity in this respect of the two 
 great English-speaking nations is significant. There 
 seems to be a tendency in the same direction on the 
 Continent, where, however, journaUsts more than any 
 other class of men seem to dispute the supremacy of 
 the Bar. In our Colonies, too, the work of government 
 is largely done by lawyers ; but in new countries this is 
 natural. In older States the increasing poHtical ac- 
 tivities of lawyers seem to point to the gradual dis- 
 appearance from professional politics of the mere man 
 of leisure, or the aristocrat — such as the men who domin- 
 ated the House of Commons before 1832 — or in this 
 country, at any rate, to his serving an apprenticeship 
 among legal institutions. Practically the law is the 
 only profession (except that of a Labour member) 
 which can conveniently be " worked " with adequate 
 
JUDGES AND LAWYERS GENERALLY 139 
 
 service in the House of Commons, and its practitioners 
 share with substantial men of business alone the oppor- 
 tunity of being peculiarly useful in the work of legis- 
 lation. There can be little doubt that the marked 
 " coming on " of the lawyer, at the expense of the mere 
 " society " man, is due, first, to the inception of a 
 system of legal education, and then to its enormous 
 improvement within the last half-century — certainly, 
 in this country, and probably in the United States, 
 where, if the Harvard Law School be not absolutely 
 the best educational institution in the country, it is 
 perhaps the best legal academy in the world. That it is 
 good legal education which has made lawyers paramount 
 in the political world may be seen at a glance from the 
 position of solicitors — unheard of in politics before the 
 great Reform Bill, now in Cabinets, both Houses of 
 Parliament, and every municipal body in the country. 
 After aU, the derided examination system may not be 
 so ineffective. 
 
 (March, 1909.) 
 
 Apropos of a recent application by counsel to a judge 
 not to fix the hearing of a certain case for Derby Day, 
 there is a story that about 1782 Lord Mansfield insisted 
 on sitting on a Whit Monday. Counsel in his court, 
 to mark their displeasure, made holiday as usual, where- 
 upon the learned Chief Justice allowed the " attorneys " 
 to conduct the cases, and " most extraordinary figures 
 some of them cut," was the comment of one of the 
 most distinguished of them. The situation is not likely 
 to recur nowadays. 
 
 (May, 1909.) 
 
 As there is a widespread belief that two additional 
 
140 A CHANCE MEDLEY 
 
 judges of the High Court are to be appointed, it would 
 be a great advance if the Government were to seize the 
 opportunity to take one of them from the County Court 
 Bench, llie pohcy — ^by no means now suggested 
 for the first time — of promoting to the superior from 
 the inferior judiciary is recommended by obvious 
 common sense, and is the rule among aU civilised people : 
 the opposition may, without disrespect, be put down 
 to prejudice. The differences between the actual 
 work of the two jurisdictions sink into insignificance 
 beside their broad similarity. Notably, the same 
 law is administered, and no one would venture to sug- 
 gest that an inferior lawyer is good enough for a County 
 Court. Indeed, the County Court Bench has learnt 
 its law in exactly the same school as the other Bench — 
 the High Court. It is notorious that some of the pro- 
 vincial judges have missed the High Court " by an 
 accident." Such accidents ought not to happen, be- 
 cause they can easily be prevented. To feed the higher 
 grade from the lower must improve both breeds, if the 
 expression may be allowed. A training school for judges 
 is surely not an unreasonable institution. The Appeal 
 judges have one in the courts below, and why should 
 not they, in their turn, enjoy this Very real advantage ? 
 
 (June, 1909.) 
 
 Some amusing suggestions for an epitaph on a solicitor 
 are made in the course of a competition in the columns 
 of a contemporary. One is : — 
 
 Much of earth I have conveyed. 
 Now to earth I am conveyed. 
 
 Another simply runs : " Habeas Corpus." Why not 
 " No attorneys allowed here, so I appear in person " ? 
 
JUDGES AND LAWYERS GENERALLY 141 
 
 Mr. Asquith, K.C.'s Latin speech at Winchester 
 seems to be the only oration in that tongue recorded 
 of any Prime Minister, with the exception of the Earl 
 of Derby's noble utterances as Chancellor of the 
 University of Oxford. Probably the only other 
 predecessor who could have rivalled these achieve- 
 ments was Gladstone. Apropos, one may (especially 
 in view of pending controversies) recall a remark by 
 Campbell on Lord Kenyon ; " There were several 
 Latin quotations which this distinguished lawyer had 
 picked up, and which he generally misapplied — ^inso- 
 much that George III gave him the friendly advice, 
 ■ Stick to your good law and leave off your bad Latin.' 
 ... It was rather humiliating that the successor of 
 such an accomplished scholar as Lord Mansfield should 
 hardly have had the rudiments of a classical education. 
 The salutary regulation of the Inner Temple [1847] 
 requiring a previous examination in classics before 
 being admitted a student of law caimot be com- 
 plained of as aristocratic, or tending to exclude men of 
 humble origin from our profession. Had it existed in 
 Kenyon's time, it would only have induced him by 
 labour and perseverance to have learned to construe 
 Homer and Virgil — ^which would have made him a 
 happier man and a stiU better Chief Justice." 
 
 (July, 1909.) 
 
 It is interesting to note — on a subject as to which it 
 is very difficult to get data — that Lord James recently 
 stated in the House of Lords that there were about 
 21,000 Justices of the Peace in England and Wales, and 
 about 3,000 Commissions of the Peace. 
 
 July, 1909.) 
 
142 A CHANCE MEDLEY 
 
 Alas ! the old days and the old ways are doomed ! 
 Two things are fated surely, if slowly, to kiU the old 
 order of life in the Four Inns. First of these is the ever- 
 increasing number of persons who get called to the 
 Bar. In the Mid- Victorian Age the number was only 
 fifteen hundred ; now it is upwards of twelve thou- 
 sand ! And if we exclude from this total the Indian 
 and the Colonial, who do not require chambers in the 
 Temple, we have still some ten thousand, whose names 
 must appear upon some door either in the two Temples 
 or in Lincoln's Inn. Gray's Inn, nowadays, is no longer 
 available for the practising barristers. Now, the pre- 
 mises which accommodated fifteen hundred are not 
 enough for ten thousand. It is inevitable that sooner 
 or later the old buildings wiU come down, and will be 
 replaced as in the City by huge sky-scraping flats, 
 with steam Hfts and self-important commissionaires. 
 The telephone is now everywhere installed in the 
 Temple, though to the last generation of advocates it 
 would have seemed a sacrilege. Let us hope that the 
 evil day will not come in the lifetime of the present 
 generation of their successors ! Sunt lacrynue rerum, 
 et mentem mortalia iangunt. 
 
 The second invader of the ancient Uberties and privi- 
 leges of the Bar is the public demand for efficiency in 
 every department of the national Government — even 
 in the judiciary ! The system under which the Courts 
 rise at the end of July, and all the judges except one, 
 who does vacation business for two hours or so each 
 Wednesday morning, leave the precincts of the Law 
 Courts until the middle of October, is beginning to call 
 down the anathemas of the man of business. He 
 wishes to know why the Courts should not be open to 
 him all the year round, and why judges and lawyers 
 should not take their holidays in rotation Mke the 
 
JUDGES AND LAWYERS GENERALLY 143 
 
 clerks and partners in some City firm. The result is 
 more or less inevitable ; the demands of that modem 
 Juggernaut called efficiency must sooner or later tri- 
 umph ; and our Long Vacation, so dear to the ro- 
 mantic instincts of a leisured and dignified profession, 
 must vanish into the limboes of forgotten things. 
 
 (Aug., 1909.) 
 
 In the memorable division in the House of Lords 
 on November 30, 1909, the Lord Chancellor and 
 Lord Coleridge, J., voted against the Marquis of 
 Lansdowne's amendment to the second reading of the 
 Finance Bill, and the Earl of Halsbury, the Lord 
 Chief Justice, Lord Ashbourne, Lord Atkinson, Lord 
 Collins, Lord Macnaghten, and Lord Dunboyne, an 
 ex-Master of the High Court, for it. Lord O'Brien, 
 Lord Dunedin, Lord Lindley, and Lord James of Here- 
 ford did not vote, but the latter was paired. A glance 
 through a long division list of the House, such as the 
 last, shows the very large number of families in it 
 founded by lawyers, a far larger number than from 
 any other profession. 
 
 It is exactly a hundred years ago since the " O.P." 
 riots at Covent Garden Theatre. Under December 16, 
 the Annual Register for 1809 says : " These disgraceful 
 tumults at length began to subside, and the peaceful 
 admirers of the drama were congratulated on a pros- 
 pect of returning tranquillity, when an incident occurred 
 which rekindled those flames which were about to be 
 extinguished. Mr. Clifford, a barrister of distinction, 
 appeared in the pit with the letters O.P. in his hat, and 
 
144 A CHANCE MEDLEY 
 
 was saluted by the familiar and commendatory address, 
 ' Here comes the honest counsellor ! ' and way was made 
 for him to the centre of the pit. Thus encouraged, and, 
 as it was thought, authorised, the people again gave 
 free scope to their clamour ; and ' Old prices ! ' and 
 ' Clifford for ever ! ' became the rallying words of the 
 night. Brandon, the box-keeper, got Mr. Clifford 
 apprehended as a rioter, and carried before a magis- 
 trate at Bow Street, by whom, however, he was imme- 
 diately discharged. Mr. Clifford now indicted Brandon 
 for an assault and false imprisonment, in which indict- 
 ment Brandon was cast. When the jury came in with 
 their verdict for the plaintiff a burst of applause and 
 uproar broke forth in such a manner as entirely to 
 disregard the decorum of a court of justice." (It wiU 
 be noticed that a century ago the valuable work cited 
 did not distinguish between a civil and a criminal 
 trial : the proceedings were, in fact, civil, and Mr. 
 Clifford got a verdict for five pounds.) Henry Clifford 
 belonged to the noble family of that name, and was 
 one of the first to take advantage of the Catholic 
 Act of 1792 by being called to the Bar at Lincoln's Inn. 
 " He was," says the D.N.B., " very learned in the law, 
 and a warm advocate of the liberties of the people." 
 He seems to have been the last instance of a barrister 
 being the idol of the populace in this comitry. 
 
 (Dec., 1909.) 
 
Trials and Appeals, Civil and Criminal 
 
CHAPTER IV 
 
 TRIALS AND APPEALS, CIVIL AND CRIMINAL 
 
 The greatest fetch of the art of cross-examination 
 consists in not asking questions. Many years ago the 
 newspapers announced that Mr. Edward Clarke would 
 defend a woman charged with a notorious murder in 
 Kent. A well-known Q.C., now an eminent judge, 
 meeting Mr. Clarke before the trial, and hearing that 
 he would not take the brief, urged him strongly to take 
 it, " If you don't," he said, " some inexperienced 
 junior will put a wrong question, and the woman will 
 be hanged." Accordingly he went down to Maidstone 
 and, to the universal astonishment, the prisoner was 
 acquitted. 
 
 (July, 1893-) 
 
 Lord Esher, the Master of the Rolls, expressed himself 
 characteristically on the litigant-in-person nuisance, and 
 even went so far as to turn the suitor out of court. His 
 ground for this strong action was the scandalous waste 
 of time and general vexatiousness in the appellant's 
 proceedings, and the Bar has many other reasons for 
 regarding a lay plaintiff or defendant with peculiar 
 disfavour. Such persons are nearly always irregular at 
 some point in their case, and while they claim (and 
 generally obtain) indulgence from judge or counsel 
 by reason of their " simplicity " they never fail to 
 
 147 
 
148 A CHANCE MEDLEY 
 
 make the very most of any technicality they can turn 
 to account. They do not know how to save time, and 
 naturally entangle themselves in their own mass of 
 irrelevant details; they are nearly always hopelessly 
 wrong. 
 
 (July, 1893.) 
 
 A correspondent writes : — " We hear much, and 
 with only too just a cause, of the law's delay ; 
 let me give an instance of its expedition. In the 
 action of A. v. H., the statement of claim was deU- 
 Vered in May, 1893, and the cause was tried and a ver- 
 dict given at the Worcester assizes on June 30. On 
 July 28 the Court of Appeal ordered a new trial, and 
 directed that it should take place at Birmingham, where 
 it did, in fact, take place on the 7th and 8th of August. 
 This is, I beUeve, the first instance on record of two 
 complete triads of the same cause being had on the same 
 assize." 
 
 A special juryman has been recording his impres- 
 sions, which, he admits, have varied with the different 
 stages of hi^ case. It looks at first, he says, as if counsel 
 do all they can to fog the jury, but it gets better as it 
 goes on ; it is quite clear that it is a wrong thing for a 
 juryman to form an opinion too soon. Then counsel 
 do not carry cross-examination as far as they can, and 
 this makes individual jurors put questions — ^in the cause 
 of justice they couldn't go too far — ^these omissions 
 show too much tactics ; without them the jury would 
 not be so uncertain on many points, and they do not 
 like to be perpetually asking questions. He does not 
 feel inclined to condemn on the evidence of one witness, 
 
TRIALS AND APPEALS 149 
 
 owing to a possible bias, especially when that evidence 
 is contained in depositions ; it is impossible to know 
 how far he or she is disinterested. The opening 
 speeches seem unnecessary waste of time. One Very 
 vivid impression is that concerning a " special's " fee ; 
 he ought to get a guinea a day, and not a case, as one 
 jury may get several small cases in a day, and another 
 one which lasts for weeks. 
 
 '(Aug., 1893.) 
 
 The great cross-examination of " The Claimant " began 
 on June 2, 1871, and ended on July 6, having lasted 
 twenty-four days and having been entirely conducted 
 by the Solicitor-General [Coleridge]. The following cate- 
 chism must have been carried on con amore : " What lec- 
 tures did you attend ? " — " Some in Hebrew and Latin 
 and Greek." "I'm afraid I can't .test you in Hebrew. 
 Can you read Hebrew now ? " — " Not a word." " Is 
 there any difference between the reading of Hebrew and 
 other languages ? " — " Yes, a great difference." " In 
 what respect ? " — " In the phrases." " You haven't 
 ascertained that it is read from right to left, instead of 
 from left to right ? " — " No." " Have you studied 
 Greek ? " — " Yes." " Did you go as far as the alpha- 
 bet ? "— " I don't know." " Could you give us the 
 Greek for ' and ' ? " — " No ; I am not going to do any- 
 thing of the kind." " Did you get on better with 
 Latin ? "— " I beheve I got further in Latin." " Did 
 you learn the Latin alphabet ? " — " Of course I did." 
 " Could you read a line of Latin now ? " — " I'm cer- 
 tain I could not." " Did you learn Virgil ? "— " I 
 don't know." " Did you do a bit of Caesar ? " — " I 
 don't know." " Was Caesar in verse or prose ? " — " I 
 don't recoUect." " Was Caesar a Latin writer or a 
 
150 A CHANCE MEDLEY 
 
 Greek writer ? " — " I can't say ; I suppose it was 
 Greek." " That was the Stonyhurst edition, I sup- 
 pose. Do you know who Virgil is ? Latin or Greek ? " — 
 " No, I have no recollection." " Have you ever heard 
 of him ? "— " Of course, I have." " Who is he ? "— 
 " I don't know." " Look at that [copy produced]. 
 What is it ? Is it Greek or Latin ? " — " It appears 
 to me to be Greek ; I can't say." " It is Greek to you, 
 anyhow. . . . Have you heard of the Asses' Bridge ? " 
 — " I don't recollect." " Did you ever try to get over 
 it ? " — No answer. " Do you know what it is ? " 
 — " No, I don't." " Where would you look to find it ? " 
 — No answer. " Did you ever try to cross it ? " — No 
 answer. " Did anybody try his best to help you over 
 the Asses' Bridge ? " — No answer. " Do you know 
 where it is, how far from Stonyhurst ? " — " I can put up 
 with all your insulting ..." " What is chemistry 
 about?" — "Different herbs and poisons and the 
 substance of medicines." " Do you mean what is in a 
 chemist's shop ? " — " I think a dose of it would do you 
 good." 
 
 In the Court of Appeal the system of raking the speeches 
 of counsel with cross-questions has by no means fallen 
 into desuetude. It is much objected to, and is especially 
 hard upon young men. It is related that on one occasion 
 Sir George Jessel hurried counsel through a number of 
 points in this way, and then called upon his opponent, 
 whom he treated in much the same manner until he state d 
 an argument which made him turn to the first barrister 
 
 with the remark " Well, Mr. , what do you say to 
 
 that? " " My lord," was /the answer, "it is some- 
 what difficult to open ip a reply." 
 
 (Aug. 1894.) 
 
TRIALS AND APPEALS 151 
 
 The Vacation Court is a practical institution. It 
 is obvious that if the ordinary administration of 
 justice is suspended for ten weeks in every year, during 
 that interval innumerable legal points requiring to be 
 dealt with on the instant may crop up, otherwise 
 great and irretrievable hardship might ensue, because 
 when the action ultimately came to be tried, the 
 person or the property might have disappeared, and 
 the suitor be left with his barren cause of action. 
 Accordingly, there is a judge always within call, so 
 to say, of the Royal Courts ; he may even be invaded 
 in his own house to deal with these urgent matters — 
 but these only ; for their lordships very properly 
 resent strongly any attempt to put upon them what 
 is properly term business. The rule is that the case 
 is not to be placed in the judge's paper unless leave has 
 been previously obtained or a certificate of counsel 
 that the case requires to be immediately or promptly 
 heard, and stating concisely the reasons, is left with 
 the papers which have to be sent for the judge's use 
 a day or two before the application is made. 
 
 In the case of Martindale (1894) Mr. Justice North was 
 asked to conunit certain joulrnalists for reporting pro- 
 ceedings in camerd. The most interesting part of the 
 judgment is the constitutional point. " It was with 
 great energy contended before me that the proceedings 
 in a court of justice ought to be public. . . . The 
 general rule is an excellent one, that legal proceedings 
 should be in pubhc ; and if it were departed from the 
 great weight which legal decisions carry with them in 
 this country would be deservedly diminished. But 
 with this rule certain exceptions are proper and neces- 
 sary." In Malan v. Young (1889), an action by an assis- 
 tant against the headmaster of Sherborne School for libel. 
 
15? A CHANCE MEDLEY 
 
 Denman, J., after copsulting some of his brethren, said 
 that he would try the case in camerd without a jury by 
 consent (Sir Charles Russell had made this apphcation 
 " in the interest of third persons "). " He had come to 
 the conclusion that he could have ordered such a trial 
 with a jury if it had been desirable." On that occasion 
 a barrister in robes objected to leave the court "as a 
 member of the public and the father of sons at school," 
 but retired under protest on the judge's threaten- 
 ing to have him turned out by force. He drew 
 up a case for counsel's opinion, and submitted it to 
 Sir Richard Webster, then Attorney-General, Mr. 
 K,enelm Digby, and Mr. Cyril Dodd (now Q.C.) Their 
 joint opinion is the latest and best authority on the 
 matter. It was to the effect that " the learned judge 
 was not legally justified in excluding the general public " 
 on the occasion in question. They added : " We 
 desire to point out that the exclusion of a particular 
 portion of the public such as women and children, from 
 trials in which evidence of an indecent character diffi- 
 cult to bring out in detail before them is to be given, 
 rests upon long usage . . . and that we entertain no 
 doubt of the legality of that practice, or of the power of 
 a judge to decide for himself as to its apphcation." 
 Sir Richard Webster added a striking note : "I desire 
 to add to the above opinion that if in any case the pre- 
 siding judge should be satisfied that the bringing out of 
 the facts of a case would be so detrimental to public 
 morality as to niake it a matter of serious difficulty 
 for the truth to be ascertained, and thereby prevent 
 justice being done, in my opinion in such a special 
 . case he might be justified in excluding the public." 
 
 In another case a barrister, remarkable for his 
 methods, who resented similar exclusion, forced his 
 way into court from the bench, and was actually 
 removed. 
 
TRIALS AND APPEALS 153 
 
 In fhe Divorce Court the practice is common, as it is 
 in lunacy. In the Aniline Case (1883), Pearson, J., 
 being of opinion that a patent was valid, gave a defend- 
 ant leave to state his secret process in camerd, the 
 shorthand writer's notes, which would disclose it, 
 being impounded. In 1885 A. L. Smith, J., granted an 
 injunction to restrain the defendant from disclosing 
 matters communicated to him as solicitor. He heard 
 the case in private. The defendant appealed, where- 
 upon Charles, Q.C., asked that the appeal might be 
 heard in private, as a public hearing would defeat the 
 object of the action. The other side did not consent, 
 but Lord Halsbury and Bowen and Fry, L.JJ., con- 
 sidered that they had jurisdiction to hear the case in 
 private without the consent of the defendant. 
 
 An innocent man who is quick-witted enough to 
 argue with a practised President has probably nothing 
 to fear in the French system of trial, and a guilty 
 man is more certain of detection than in ours. But the 
 former presses most hardly on the man whose antece- 
 dents will not bear investigation or whose associations 
 are suspicious. Prejudice and the difficulty of clearing 
 himself may well result in a conviction where there is no 
 evidence which presented d I'Anglaise would convince 
 a jury. Ours is the more seemly, but in the French 
 method no one can complain that his mouth is closed. 
 Counsel for the defence, too, is allowed abroad Very 
 much greater latitude in his speech ; he is almost un- 
 controlled by the President. It is, for instance, a 
 common practice to argue against capital punishment 
 in a trial for murder. 
 
 British criticism is sometimes lavished on French 
 trials. Here is a French view of an English cause 
 
154 A CHANCE MEDLEY 
 
 ceUhre by M. GaVard, some time French Minister here, 
 whose letters appeared early in 1895 (" Un Diplomate 
 k Londres"). Speaking of the prods Tichborne, he 
 says : "In the present state of English jiirisprudence 
 anything may be tried, even the proof that a hippopo- 
 tamus is a gazelle ; all that is wanted is sufficient funds, 
 that is to say a good syndicate, to play with legal 
 proof. Legal undertakings against estates are taken 
 up in shares, just like diamond robberies." 
 
 Kitson V. Playfair will always be memorable not only 
 in connection with the question of privilege in hbel 
 and slander, but with that of " excessive " damages. 
 Twelve thousand pounds for this offence is certainly 
 the " record " sum : only five were claimed. Perhaps 
 the most interesting case on the latter subject is one 
 in 1778, reported by Blackstone, who was one of the 
 judges. 
 
 In Leith and Pope " a young Scotch baronet being 
 distressed for ready money," and not over deUcate in 
 the means of obtaining it, borrowed ^£3,600 of Pope, 
 and gave the latter as security, among other things, a 
 bill of sale of all his goods ; but Leith was to " retain 
 some to furnish his country house at Shiplake." Ac- 
 cordingly " he sent openly in a wagon drawn by his 
 coach-horses a large quantity of goods to Shiplake, but 
 Pope, who stood by and saw the inventory made by 
 Lady Leith, without giving any obstruction, com- 
 plained that Sir. A. had deceived him." In the mean- 
 time Leith brought two actions for usury against 
 Pope, who thereupon " made an information upon oath 
 against Sir Alexander for horse-steaUng, broke open 
 his house and stables at Shiplake by a search warrant, 
 and carried him before Sir John Fielding as a felon." 
 Pope then " indicted Sir A. capitally at the Old Bailey 
 
TRIALS AND APPEALS 155 
 
 for stealing all the goods before mentioned, and also 
 three coach geldings. On the trial of which Pope, being 
 cross-examined, confessed that the true reason of this 
 prosecution was to get rid of the actions for usury. 
 Upon which Sir A. was acquitted, and had a copy of his 
 indictment granted." Leith then brought an action 
 for maUcious prosecution against Pope, and recovered 
 ten thousand pounds damages, which represented a 
 much larger sum a hundred and twenty years ago than 
 it does now. 
 
 (Apr, 1896.) 
 
 Once again attention has been called to the absurd 
 and antiquated law by which jurymen in cases of felony 
 are frequently locked up all night if they haVe not given 
 their verdict. Consequently the court sits late — till 
 all hours — ^in order that they may be spared this 
 infliction. Thus in a very recent case at the Old Bailey 
 a woman was sentenced to death at nine o'clock. The 
 Law Times mentions a trial in Dublin, in 1798, when a 
 trial lasted all night, and the two prisoners were sen- 
 tenced to death at eight o'clock in the morning. In the 
 last Parliament Sir Frank Lockwood brought in a short 
 bill to make the locking-up of the jury depend entirely 
 upon the discretion of the judge, and it was regarded 
 with universal approval — and dropped. Sir Henry 
 Hawkins once put it that in a trial for obtaining 
 ^10,000 by false pretences the jury were free to go to their 
 own homes, but on a charge of stealing a piece of rope 
 worth eighteenpence they must be detained. In one 
 case the jury were locked up ail night and the prisoner 
 was let out on bail. Lord Coleridge once said at the 
 Old Bailey, " A great judge once said to me, ' Candle- 
 light justice is very apt to be injustice.' " 
 
 (June, 1896.) 
 
156 A CHANCE MEDLEY 
 
 It was a remark of the late Lord Bramwell that " If 
 juries had to give the reasons for their verdicts, trial by 
 jury would not last five years," 
 
 A very rare, perhaps a unique, point of procedure 
 was raised before Mr. Justice Mathew. Ever57thing 
 turned on what took place at an interview between the 
 parties in 1896. The defendants, a company, were 
 represented by a gentleman who is a shareholder in 
 the company and took an active interest in its business 
 and was present at several interviews, including the 
 one in question. As to what then took place there was 
 a conflict of evidence, and counsel announced his inten- 
 tion of going into the witness-box in support of his 
 clients' case ! 
 
 But this was a course that by no means commended 
 itself to the learned judge, who pointedly asked counsel 
 " whether he considered he was Well advised in adopting 
 such a course." That gentleman stated that he had 
 Very carefully considered his position and had decided 
 to tender himself as a witness. Thereupon Mr. Justice 
 Mathew emphatically expressed his opinion that " the 
 course proposed was open to the gravest objection ; he 
 had tried to persuade the learned counsel against it, 
 and he thought that if, notwithstanding that advice, 
 he insisted upon going into the box, he would be estab- 
 lishing a most dangerous precedent," adding that it 
 was scarcely reasonable that he (the judge) should be 
 expected to act on the evidence of a gentleman who 
 was appearing as counsel in the case. After a hurried 
 consultation with another member of the Bar, counsel 
 replied that his lordship's remarks had placed him in a 
 most painful position (to which his lordship promptly 
 rejoined, " They were intended to do so "), and in the 
 
TRIALS AND APPEALS 157 
 
 circumstances he would desist from his intention of 
 going into the box. 
 
 There will be but one opinion in the profession as to 
 the soundness of the learned judge's views. There 
 seems to be no precedent for the course here proposed to 
 be taken. If there is a likelihood of a member of the 
 Bar being called as a witness, clearly his proper course 
 is to decline to take a brief in the case, and, conversely, 
 if he does accept a brief he forgoes his right to give 
 evidence. 
 
 (March, 1898.) 
 
 In July, 1898, there was heard before Mr. Justice 
 Romer a Chancery action (Montagu v. Gater) of the goo^ 
 old traditioneil sort, with a plenteous array of counsel, 
 large funds, and no hurry. It dealt with nothing so 
 new-fangled as patents or syndicates, but with that 
 fine old legal institution (a rarity in these days) an 
 action for a " several fishery " (in this case, for salmon 
 only, and in the riVer Itchen from nine miles above 
 Winchester to Southampton). Many a musty docu- 
 ment was produced, and there came from the custody 
 of Winchester College the seal of the Prince of Wales 
 who was murdered in the Tower (Edward V), of ele- 
 gant workmanship. The early deeds are in very 
 doggy Latin, which few people can read, and were 
 translated by Mr. Hewlett ; the oldest goes back to 
 between 1181-1205, and comes from " the Cartulary of 
 the church of St. Swithun, Winchester." 
 
 One of them, dated 1538 — quite modern by compari- 
 son — ^illustrates quaintly the inveterate love of sport 
 which our coimnon folk have always showed. The 
 Bishop of Bangor writes to Cromwell, Henry VIH's 
 Minster : " For so yt is, that ye countrye perceyV- 
 
158 A CHANCE MEDLEY 
 
 5Tig ye abundance of salmons yt be now in this ryver 
 . . . there escapeth nother daye nor nyght but they 
 lye upon ye rjrv'er and every man ys a fyssher, levyng 
 their husbandrye and handy craftes onely attendying 
 to fyshing and theis be not only suche men as hathe 
 landes or hyreth landes of eny syde of the ryver but 
 suche other as hathe nothing or litle to take to besyde 
 their dayly labour ; ye and not suche all only as be 
 neyghbotirs eny thyng nere, but allso suche as dwell 
 sdi xvi or xxti myles of, hither, they resorte to f5^sh- 
 ing." What a great luxury salmon was in early days 
 may be seen from an entry in 1307 : three men are 
 hired to carry " one Hve salmon " to the king, and 
 their pay is 8d, A whole fish seems to have cost about 
 6s. 8d. 
 
 A judge once summed up " dead " for the plaintiff, 
 and plainly told the jury they could only find for him. 
 They disagreed — eleven to one. The judge addressed 
 that one, coaxed him, and tried to induce him to give 
 in, but he stood out, and they were discharged without 
 a verdict. It then turned out that the obstinate one 
 was the only one for the plaintiff ! A true story. 
 
 Sir Edward Fry, an ex-Lord Justice, recently re- 
 marked that an English judge and jury would probably 
 have decided the Dreyfus case in a day. 
 
 (May, 1899.) 
 
 Queer bits of ancient biography and law turn up from 
 time to time in the Probate Court. Recently there was 
 an application about the estate of a man who died in 1859, 
 
TRIALS AND APPEALS 159 
 
 being the son of a man who was born in 1789. This 
 latter was tried at Bedford Quarter Sessions in 1818 ! 
 convicted of having shot a pigeon ! and sentenced to 
 seven years' transportation ! He was transported ; 
 and all record of him was lost. On his conviction his 
 property went to the Crown, but the Treasury has just 
 restored it, to the tune of ^158 odd. The court ordered 
 the death to be presumed in 1819. 
 
 (July, 1899.) 
 
 During a recent trial for murder at Bury St. Ed- 
 munds coimsel for the defence closed his speech with a 
 reference to the Day of Judgment. This, said Mr. 
 Justice Wills, he did not Uke, " for it had a great ten- 
 dency to disturb that equanimity that ought to be main- 
 tained in a court of justice, and threw people off their 
 balance upon a subject which had nothing to do with 
 the question in hand." Yet such adjurations are 
 almost a tradition of the Bar. An instance by Greorge 
 Evans, an American advocate, has been preserved 
 for its great eloquence, and Brougham's peroration for 
 Queen Caroline, which he rewrote seventeen times, is in 
 much the same strain. 
 
 (Nov., 1899.) 
 
 Mr. T. R. Bridgwater's essay on the Defence of 
 Prisoners has been republished by the RomUly Society, 
 It is probably the only, and certainly the best, collec- 
 tion in English of the usages of other coimtries in 
 respect of undefended prisoners, and, without being in 
 the least controversial, forms a strong plea for giving 
 any prisoner the right to counsel gratis. This, it may 
 not be generally known, has been the practice for 
 
i6o A CHANCE MEDLEY 
 
 centuries in Scotland, even in the lowest courts. Sooner 
 or later, the rule will obtain here, but not probably for 
 a long time. Judges are often chary of asking counsel 
 to defend from fear that the bar would suffer if the 
 usage became frequent. One of the best-known judges 
 of the century, now dead, expressly took this line in 
 the interest of the bar, and once when he invited two 
 barristers to defend prisoners, sent them a substantial 
 fee out of his own pocket. The gift was, of course, 
 returned, but his lordship insisted. It may well be, 
 however, that the interest of the bar Hes in another 
 direction. There are always numbers of men with 
 nothing to do in the criminal courts, especially at 
 assizes ; surely it would be well for all of them in their 
 turn to get a chance, not only of practice, but of reputa- 
 tion. In Scotland it is to this very means that young 
 barristers look to get on. It is said, by the way, that 
 Brougham spent part of his earlier years in going about 
 defending graUs, and Mr. Bridgwater tells us that Sir 
 Walter Scott " was regularly nominated to that duty." 
 
 In 1781 Captain Sutton, of her Majesty's ship Isis, 
 which was part of a squadron under Captain Johnstone, 
 off St. Jago, during war with France, was ordered to 
 slip his cable and pursue the French fleet. This he 
 failed to do, and Johnstone court-martiaUed him for 
 disobedience, keeping him nearly three years under 
 arrest or in prison before trial. He was honourably 
 acquitted on the ground that the physical condition 
 of his ship made it impossible for him to slip his cable. 
 Sutton brought an action at the Guildhall against John- 
 stone for malicious prosecution ; it was tried twice, the 
 first time he got £5,000 damages and the second £6,000. 
 This was reversed by another-court, and ultimately by 
 
TRIALS AND APPEALS i6i 
 
 the House of Lords. " Nothing less," said Lords Mans- 
 field and Loughborough, " than a physical impossi- 
 bility to obey could be a justification. A subordinate 
 ofiicer must not judge of the danger, propriety, expedi- 
 ency, or consequence of the order he receives ; he must 
 obey. ... A forlorn hope is devoted, many gallant 
 officers have been devoted, fleets have been saved and 
 victories obtained by ordering particular ships upon 
 desperate services with almost a certainty of death or 
 capture." This judgment has generally been taken to 
 mean that generally an action for malicious prosecution 
 will not lie against a superior officer for ordering a 
 court-martial. " What condition will a commander be 
 in if upon the exercising of his authority he is hable to 
 be tried by a common law judicature ? If this action 
 is admitted, every acquittal before a court-martial 
 wfll produce one." But if it can be proved that he had 
 no reasonable or probable cause to send his subordinate 
 before a court-martial there is good authority that an 
 action will lie. 
 
 (Feb., 1900.) 
 
 Mr. Justice Darling, no doubt, did well in somewhat 
 sensationally ordering a solicitor to pay the costs of a 
 speculative action of the worst sort which " ought 
 never to have been brought," but at the same time 
 it is very easy to go too far in denouncing " speculative " 
 actions. If a poor person with a good case on the face 
 of it goes to a solicitor, would it be humane of him to 
 refuse to take it because he coilld get no ready money ? 
 Occasionally the most scrupulous counsel knows that, 
 unless he wins, he must forgo his fees, and it would not 
 be decent or possible to insist on the attorney paying 
 them out of his own pocket. The true test is. Does the 
 
 u 
 
i62 A CHANCE MEDLEY 
 
 lawyer practically do this kind of business and no other ? 
 There are a few in each branch of the profession who 
 do, and these men are perfectly well known ; there is 
 reputation, as in any other profession. But each case 
 must be examined on its merits, and it must be remem- 
 bered that the speculating solicitor has to pay all the 
 preUminary costs in cash, which is some guaranty of 
 good faith. 
 
 (Feb., 1900.) 
 
 The story of Sir George Jessel which Lord James of 
 Hereford told in the debate on Lord Russell's Preven- 
 tion of Corruption BiU is too good to be hidden away in 
 Hansard. " Some years ago a suit was instituted be- 
 fore the late Master of the RoUs by a large firm of mer- 
 chants at Bombay, who complained that their shipping 
 agent in Lancashire had systematically charged them 
 with a Very large amount of commission which he had no 
 right to charge. Investigation showed that there 
 were two invoices used, and that the transactions 
 were so conducted as to make a difference of 70 per cent, 
 in favour of the commission agent. In the course of the 
 hearing Sir George Jessel inquired of the eminent coim- 
 sel for the defendant what was the answer to the 
 complaint, and the reply was that the practice was uni- 
 versal in the particular trade throughout Lancashire, and 
 was prevalent elsewhere. Counsel said he had a large 
 number of respectable people in court to give evidence 
 in proof that the practice was universal. The judge 
 said : " You can send those respectable people home ; 
 the sooner they leave the court the better.' " 
 
 (April, 1900.) 
 
 There was recently a rather rare exercise of counsel's 
 
TRIALS AND APPEALS 163 
 
 privilege in the course of a trial when Sir Edward 
 Clarke made a statement from his place within 
 the bar instead of going into the box and giving evi- 
 dence on oath like any other witness. Mr. Justice 
 Bruce was anxious that that occasion should not be 
 drawn into a precedent ; but, surely, this practice 
 has long since been settled by abundant precedents. 
 The last instance of importance occurred in 1895 ^n 
 Kempshall v. Holland), when the Court of Appeal 
 invited Mr. Witt, Q.C., to take a similar course, Lord 
 Esher remarking : " The Court places implicit confi- 
 dence in the statement of a counsel, and when the 
 Court requires information as to anj^thing that has 
 taken place in a case in which he appeared, our practice 
 is to ask him to attend and state to the Covirt what 
 occurred." And Sir Edward mentioned that many 
 years ago KeUy, C.B., had declined to allow him, in a 
 similar position, to go into the box. Of course, the 
 privilege only extends to matters of which counsel has 
 official, i.e., professional, cognisance, where, so to say, 
 he was part of the Court, and could not be supposed to 
 deceive or make a mistake. As Pollock, C.B., said in 
 1857, " If a question had arisen as to whether the magis- 
 trate wore a particular dress, might not the counsel or 
 attorney be called to prove the fact ? " (Brown v. 
 Foster, i H. & N.) and in that case it was held, on 
 appeal, that the evidence of counsel (duly sworn) as 
 to what took place in a police-court where he had 
 appeared for one of the parties was properly admitted 
 at a later trial. In that case counsel was sworn, prob- 
 ably as a matter of a convenience, because though he 
 had cognisance of a fact, it was only the same as that 
 of every one else in court, and partly because the 
 issue arose out of a criminal proceeding. In criminal 
 proceedings no such privilege would be admitted. 
 
i64 A CHANCE MEDLEY 
 
 Judges, by the way, do not enjoy this privilege, and the 
 late Lord Coleridge was actually subpoenaed and gave 
 evidence on oath (and in robes) about a case he had 
 tried. 
 
 (July, 1900.) 
 
 A curious attempt to revive ancient technicality in 
 a criminal case took place at the Monmouth Assizes. 
 Counsel actually moved to quash an indictment on 
 the ground that in every one of its counts " the number 
 of the day of the month and the number of the year 
 of our Lord were expressed by numbers " instead 
 of by means of words fully spelled, and some learning 
 was displayed in support of the contention. For- 
 tunately, the judge had power to amend this glaring 
 " defect " there and then. The strict old rule dates 
 from the dark ages when indictments were drawn in 
 Latin, and it was quite part of the game for the Crown, 
 or any other spiteful prosecutor, to entangle and catch 
 their man by any technical trick they could devise. 
 It was, therefore, essential, especially for illiterate 
 prisoners — the vast majority — that everything in the 
 indictment should be as plain as plain could be. 
 Macaulay mentions a solemn argument in the King's 
 Bench just after the Revolution whether an indictment 
 should be quashed because a Latin word in it was 
 spelled wrong. But to-day it would be fair-play run 
 mad to excuse a guilty man, as it turned out in this 
 case, on any such ground. 
 
 (Nov., 1900.) 
 
 Illustration is, perhaps, the most powerful form of 
 argument, but counsel rarely receives such assistance 
 from the elements as did Lord Chief Justice Coleridge, 
 It was a famous murder trial, in which Coleridge as a 
 
TRIALS AND APPEALS 165 
 
 young man was engaged for the defence. While he 
 was closing to the jury, the lights went out, and when 
 relighted he added the forcible words," The life of the 
 prisoner is in your hands, gentlemen. You can extin- 
 guish it as easily as that candle was extinguished 
 but a moment since ; but it is not in your power to 
 restore that life, once taken, as that light has been 
 restored." The argument won. 
 
 A case tried recently at the Old Bailey by Mr. 
 Justice Jelf again illustrates the value of the verdict 
 " Not proven." This was the defendant's third tfid 
 for an offence against a woman, and after an aU-day 
 hearing, lasting till seven o'clock, he was acquitted, as 
 every one knew he would be, as soon as the jury heard 
 that the accused had already been in perU twice. It 
 would probably be too much to say that no jury has 
 ever convicted after two disagreements, but it is diffi- 
 cult to find a recorded case ; and their practice shows 
 common sense, for surely, if two juries — many people 
 would say, if one — ^have disagreed, there must be 
 enough doubt in the case to make it dangerous to 
 convict. It was, perhaps, a mistake, therefore, to put 
 this man on his trial a third time. 
 
 At the second trial there were eleven against one, but 
 in which way is not stated. Exactly the same thing 
 occurred lately in a civil case before Mr. Justice Darling. 
 His lordship bade the dissentient stand up and 
 addressed him on the issues. The jury made three 
 or four journeys in and out of court, in the course of 
 which this gentleman came to agree to the answer to 
 one of the three questions put by the judge, while his 
 written answer to another was handed up to the bench 
 —a course we do not remember to have been taken 
 before by an individual juror — and ultimately a unani- 
 
i66 A CHANCE MEDLEY 
 
 mous verdict was given. Now, with all respect to the 
 learned judge, this practice is to be deprecated. A 
 great many gentlemen will take care to vote with the 
 majority, if they are liable to be singled out in open 
 court to argue with the judge ; their modesty may 
 not be equal to the effort. Moreover, the law having 
 fixed on the unanimity of twelve men — at haphazard, 
 perhaps — as the essence of a decision, what is practi- 
 cally the agreement of only eleven ought not to be 
 accepted merely because it is convenient, as it clearly is, 
 to have a verdict. Otherwise that laxity would gradu- 
 ally extend to ten, and soon down to seven, of one mind. 
 And unanimity ought to be secured by the evidence 
 and arguments before the jury quit the box, according 
 to the true spirit of trial by jury. 
 
 (Jan., 1902.) 
 
 Lord Lyndhurst used to teU a story of a jury which 
 remained " out " from one evening tiU one the next 
 day, being eleven to one, the latter being Mr. Berkeley, 
 M.P. for Bristol. The case, a civil one, was retried, 
 and the second jury found for Mr. Berkeley's view, 
 " which was, in fact, right." 
 
 At a recent trial it came out that the jury were 
 divided in the ratio of eleven to one ; in vain did the 
 judge send for them and make observations in view 
 of, if not to, the recalcitrant. There had to be a new 
 trial. The second jury, without difficulty, found as 
 that determined individual had found. 
 
 (Feb., 1902.) 
 
 The recent amusing incident of a High Court jury 
 consisting entirely of Clarkes obviously suggests that 
 when the various lists of jurors' names are returned to 
 
TRIALS AND APPEALS 167 
 
 the central office the individual names should all, so to 
 say, be shuffled together, and then drawn from for dis- 
 tribution to the respective courts. The inconvenience 
 of having a dozen Joneses or Smiths on the same jury, 
 and perhaps two dozen waiting in the same court, is 
 no doubt small, but it can be avoided. 
 
 Apropos of juries, the late Mr. Joseph Brown, K.C., 
 C.B., who has just died, the " grand old man " of the Bar, 
 at the age of ninety-three, was probably their most 
 vigorous assailant in recent times. In 1859, he pub- 
 hshed The Dark Side of Trial by Jury, in which he 
 poured scorn on " the palladium of British hberty." 
 At the present day, when opinion is perhaps slowly 
 tending towards his view, his pamphlet is an armoury 
 of arguments for attack ; his chief objection seems to 
 be based on the liability of juries to be influenced by 
 their prejudices or their feelings, and their anxiety 
 to go about their business. He tells the story of Lord 
 Kenyon trjdng an action for a penalty for shooting 
 game without a licence. The case was clear, but, said 
 defendant's counsel : " Gentlemen, it is true they have 
 sworn my client fired at the bird, that it fell dead, and 
 that he bagged it. It is of no use to deny that. But 
 how does it appear that the bird was killed by 
 the shot ? What proof is there that it did not 
 die of fright ? " And the jury thought there was 
 none. 
 
 (June, 1902.) 
 
 A divorce suit was heard the facts of which in 
 a novel or on the stage would be declared to be in- 
 credible. The petitioner was serving in the recent 
 
i68 A CHANCE MEDLEY 
 
 South African campaign, when he overheard a con- 
 versation between two Volunteers on sentry duty at 
 Thabanchu, who came from the place where his wife 
 was living, which convinced him of her infidelity. 
 He duly obtained his decree. The odds against his 
 getting information in this way were enormous. 
 
 Till 1866 there was no legal decision that when a jury 
 disagreed in a criminal case they could be discharged, 
 and a new trial take place. The old usage was for the 
 judge to keep them locked up and very nearly starved 
 till they did agree, and there is a legend, probably apo- 
 cryphal, that if they did not agree before the judge left 
 the assize town, he might carry them round the circuit 
 from town to town " in a cart." 
 
 It is stated that in the Ipswich trial ten jurymen were 
 for acquitting. If so, it is the one case in which the 
 late Sir James Fitzjames Stephen thought that if the 
 rule as to unanimity is to be relaxed at all a large 
 majority might be allowed to acquit " after a certain 
 time." Some writers think that originally the verdict 
 of a majority was taken provided that majority con- 
 sisted of at least twelve, and that, therefore, when 
 there were only twelve they had to be unanimous. 
 Others think there was a time when twelve witnesses 
 had to swear to the prisoner's guilt before he could be 
 convicted, and as the witnesses in early times formed 
 the jury the rule grew up. To the suggestion that as 
 time went on the verdict of a smaller majority — ^namely, 
 of eleven after one hour and of nine after three hours — 
 should be taken Mr. Justice Stephen objected. " If 
 a case is easy, you require unanimity. If it is difficult, 
 you accept a small majority. If very difficult, a still 
 
TRIALS AND APPEALS 169 
 
 smaller one." The Scotch verdict of Not Proven does 
 not permit a man being put on his trial again. 
 
 (Jan., 1903.) 
 
 Judge Emden made a Very sensible suggestion when 
 he said it would be a good thing " if there was a tribunal 
 of matrons to try cases between mistresses and servants 
 and dressmaking disputes." After all, this would 
 only be imitating the jury of matrons sometimes em- 
 pannelled now for purposes purely feminine. And as 
 some women enjoy some votes, it is only fair that they 
 should serve on some juries. But does his Honour sug- 
 gest that domestic servants and dressmakers should 
 serve on these juries ? 
 
 Apropos of the Divorce Court, Mr. Justice BuckniU 
 said in a case of unpleasant details : — " It is with the 
 greatest pain that I have noticed that, except at the 
 present moment, the public gallery has never been free 
 from the presence of women, I wiU not say ladies. 
 Such a state of things ought not to exist in a British 
 court of justice " {Times). Why does not some public 
 benefactor M.P. bring in this bill : — " The Divorce 
 Court is hereby empowered to sit in camerd at its discre- 
 tion " ? 
 
 (Nov., 1903.) 
 
 A man was indicted and convicted at Hertford on 
 November 19 for the manslaughter of his wife. The 
 injury was inflicted on October 14, and she was removed 
 to the hospital on October 21, where she died on Novem- 
 
170 A CHANCE MEDLEY 
 
 ber i6. " The post-mortem, coroner's inquest, and 
 magisterial inquiry were all on November i6, and on 
 the following day the grand jury at the assizes returned 
 a true bill against the prisoner. This case is probably 
 a ' record,' both for Hertfordshire or any other county 
 in England" (The Times). A correspondent, however, 
 to that journal caps this with a case in which he was the 
 committing magistrate. " A woman was arrested by 
 the Bristol police in the afternoon of a certain Monday 
 upon a charge of embezzlement in Devon. She was 
 conveyed to Exeter by an evening train, brought up the 
 next morning before the county justices at their weekly 
 sitting, and committed for trial. It happened to be 
 the first day of business at the assizes, the grand jury 
 were sitting, the case came before them, and a true bill 
 was returned. The prisoner was brought into court, 
 pleaded guilty, and received a sentence of imprison- 
 ment from Mr. Justice Hawkins (Lord Brampton) 
 within twenty-four hours of her arrest." In 1812 
 Bellingham shot Mr. Spencer Perceval, the Prime 
 Minister, in the lobby of the House of Commons, about 
 five o'clock on Monday afternoon of May 11, the trial 
 took place on Friday the 15th, and the execution on the 
 following Monday morning. Even in civil matters it 
 is sometimes possible to secure despatch. In 1895, 
 soon after the Commercial Court was founded, a writ 
 in an insurance action was issued on November 22, an 
 application was made for an early trial, on the groimd 
 that several actions were pending, and that it was of 
 great importance that the rights of the parties should 
 be speedily ascertained. The points in dispute were 
 exchanged between the parties, it was set down for 
 hearing on November 29, it was heard on December 
 3, and judgment was given on December 5. 
 
 (Dec, 1903.) 
 
TRIALS AND APPEALS 171 
 
 The history of false confessions, which have by no 
 means ceased, is one of the most curious in legal annals. 
 Perhaps that of the two Boorns (told by Mr. Taylor in 
 his great work on Evidence) is the most remarkable, 
 These two brothers were convicted in 1819 in Vermont 
 of the murder of their brother-in-law, one Colvin, in 
 1812. The latter was a person of weak mind, and the 
 Booms had to contribute to his support. One day a 
 quarrel broke out between him and them in a field 
 where they were at work, and one of them felled him 
 with a club. That day he disappeared, and a few 
 months later his hat was discovered in the field. The 
 brothers were suspected at the time, and at last, in 
 1819, as the result of a persistent dream, a search was 
 again made, when Colvin's pocket-knife and a button 
 off his clothes were found in an old open cellar in the same 
 field, and in a hoUow stump not far off two nails and 
 some bones were discovered. Thereupon, the prisoners 
 confessed and were sentenced to death, and both peti- 
 tioned for a commutation, but it was only granted to 
 one. Thereupon they withdrew their confession, and a 
 reward was offered for the discovery of Colvin, who was 
 found in New Jersey, " and returned home in time to 
 prevent the execution. He had fled for fear they 
 would kill him. The bones were those of some animal." 
 The brothers had confessed because they were advised 
 that, in the face of the evidence against them, a pre- 
 tended penitence was the best chance of saving their lives. 
 
 Perhaps the oddest verdict is that mentioned some- 
 where by Sir Francis Palgrave, who records that a 
 Merionethshire jury once said, " My lord, we do not 
 know who is plaintiff or who is defendant, but we find 
 for whoever is Mr. Jones's man," Mr. Jones being a 
 popular local M.P. and counsel. 
 
172 A CHANCE MEDLEY 
 
 The throwing open of Richmond Park to the public 
 recalls a famous lawsuit in 1758. Lord John RusseU 
 (in his English Constitution) mentions it as a case " in 
 which the poor man, with the law on his side, triumphed 
 over the pretensions of the highest persons in the king- 
 dom. ... It was a prosecution," by one John Lewis, 
 " against the Princess Amelia," a daughter of George 
 II, " for stopping up a footpath in Richmond Park" ; 
 and he quotes a letter from Lord Thurlow, in which 
 that learned person, by his extravagant praise of the 
 judge (Foster) who tried the indictment, certainly sug- 
 gests that there were others on the Bench at the time 
 who had not been independent where one of the Royal 
 family was concerned. As a matter of fact, there were 
 not enough special jurors ; they stayed away, as they 
 did not wish to find against the Princess, and the judge 
 fined them all. 
 
 (April, 1904.) 
 
 After the Winans case it caimot be said that Enghsh 
 law regards quantity and not quality. Two judges in 
 the Divisional Court, three in the Court of Appeal, and 
 one in the House of Lords are in favour of the Crown, 
 but two in the last tribunal haVe finally decided the 
 other way — i.e., six to two judges and two Courts to one. 
 
 (May, 1904.) 
 
 Many queer stories are told about juries, but none can 
 beat for strangeness an incident which happened at 
 the recent Lewes Assizes. A prisoner was charged 
 with an offence against a woman, and after the trial 
 had proceeded some time, it was discovered that the 
 woman's husband was on the jury. 
 
 (July, 1904.) 
 
TRIALS AND APPEALS 173 
 
 It is perhaps worth recording that at last a judge has 
 not only threatened to turn, but has actually, turned the 
 public out of his court. Mr. Justice Barnes did so on 
 June 27, 1904, on account of loud laughter, which, in this 
 case, not only spoke the vacant, but the nasty mind. 
 
 Mr. Adolph Beck, the latest victim of mistaken iden- 
 tity, wUl, of course, be compensated, as the sa5dng is, 
 by a gift of money. There are plenty of precedents. 
 In 1844 Mr. Barber, a solicitor, was transported for 
 forgery, but pardoned in 1848 ; in 1859 the House of 
 Commons voted him ^^5,000. This, by the way, was 
 our nearest approach to a Dreyfus case. In 1876 
 Habron was convicted of murder at Manchester, 
 but on the confession of another man in 1879 was 
 released, and got a thousand pounds. In 1901 a man 
 was brought from New Zealand to Colchester on a 
 charge of murder, which the magistrates dismissed ; 
 the Treasury gave him £600. But compensation does 
 not always foUow pardon. In 1836, one Galley was 
 sentenced to death at Exeter for murder. He was 
 transported, but there is little doubt that he was inno- 
 cent, and in 1879, on an address from the House of Com- 
 mons to the Crown, he was pardoned, but it does not 
 appear that he was compensated. 
 
 (Aug., 1904.) 
 
 " The Court of Tennessee has decided that an advo- 
 cate has a perfect right to shed tears before a jury." — 
 Daily Express. This grave judgment was delivered on 
 appeal against a lachrymose winner. 
 
 (Oct., 1904.) 
 
174 A CHANCE MEDLEY 
 
 Mr. Justice Channell said at Birmin^am Assizes 
 that he had not been satisfied with a single verdict 
 given by juries in the civil cases he had tried there. 
 {Times, December 21, 1904.) This is a record. 
 
 Judicial enterprise never went further than the 
 obtaining by Lord Justice Cozens-Hardy, in the recent 
 " marriage brokage " case, the original bill in King v. 
 Burr from the Record Office. This case was heard in 
 August, 1810, when it appeared "that the defendant, be- 
 ing desirous of marrying some pei'son of fortune, appUed 
 to the plaintiff to introduce him to a woman of that 
 description. The latter gave many sumptuous enter- 
 tainments, to which he invited the defendant, together 
 with various women of respectability and fortune." 
 Defendant undertook to pay the expense of those func- 
 tions — ^but he didn't, though he " had it in his power to 
 marry either " of the selected brides. The Lord Chan- 
 cellor curtly declined " to give any assistance " to such 
 an action (3 Merivale). 
 
 (March, 1905.) 
 
 The appearance of Mr. Justice Bargrave Deane as a 
 witness seems to be the first instance of a Judge giving 
 evidence of what took place when he was acting as 
 counsel ; it is comparatively common for counsel to 
 state to the court the part they took as advisers in a 
 case — ^generally in negotiations for a settlement — ^and 
 there is, of course, no reason why the same course 
 should not be followed if, in the interval, a learned gen- 
 tleman has been raised to the bench. This is not the 
 case of a Judge giving evidence as to what he did or 
 what passed before judicially. The last instance of 
 
TRIALS AND APPEALS 175 
 
 that sort seems to have happened in 1882, when, 
 according to the Times of February 24, a lady plain- 
 tiff called both Lord Coleridge, the Chief Justice, and Sir 
 Robert PhiUimore, Judge of the Admiralty, etc., into 
 Court ; apparently they were subpoenaed, and it is 
 recorded that the former wore his robes, probably 
 because he was sitting in another part of Westminster 
 Hall ; both were sworn. The editor of Taylor on 
 Evidence remarks that he once saw Pollock, B., when 
 called as a witness, exercise his privilege of refusing 
 to give evidence of matters which passed before him 
 judicially. A Judge who is a litigant or a witness in the 
 ordinary way, of course, enjoys no immunity. 
 
 (May, 1905.) 
 
 To-day is the hundredth anniversary of a most singu- 
 lar legal episode. In 1804 Cobbett was convicted for 
 having libelled the Lord Lieutenant, the Lord Chancel- 
 lor, etc., of Ireland, in some letters signed " Juvema " 
 in his Political Register. After his conviction he 
 gave up the manuscripts to Government, " who soon 
 obtained evidence of the startling facts that they were 
 in the handwriting of Mr. Justice Johnson, one of the 
 puisne judges of the Court of Common Pleas in Ireland. 
 Great excitement had been produced both in England 
 and Ireland by the publication of Juverna's letters. 
 They were universally believed to have been composed 
 by the judge, and his official character doubled the point 
 and energy with which they were written " (Townsend). 
 A grand jury at Westminster found a true bill against 
 the judge, and a warrant was signed for his apprehen- 
 sion by Lord EUenborough, C.J. In virtue of an Act 
 passed eighteen months after the libel for the arrest of 
 felons and other malefactors in Ireland, he was " kid- 
 
176 A CHANCE MEDLEY 
 
 napped," as Sir Jonah Barrington puts it, at his house, 
 A writ of habeas corpus was sued out the same evening, 
 and the next morning the legality of the arrest was 
 argued ; three Irish courts upheld the warrant, and the 
 judge was taken to England. On November 23, 1805, 
 he was brought to trial in the King's Bench at West- 
 minster, before Lord Ellenborough and three other 
 judges and a special jury. The Crown was represented 
 by Spencer Perceval, A.G., the Solicitor-General, 
 Erskine (1), Garrow, Wood, and Abbott, the defendant 
 by counsel then undistinguished. The trial lasted from 
 10 a.m. to 9 p.m., when, after a quarter of an hour's 
 deliberation, the jury found him guilty. The sequel 
 is significant of the times. " For the honour of the judg- 
 ment-seat, and that a judge might not be brought on the 
 floor of the King's Bench to receive sentence as a 
 criminal. Government permitted a compromise almost 
 too favourable to the delinquent." The truth was, he 
 had, as a member of Parliament, voted for the Union, 
 and " the Government could not abandon him alto- 
 gether." He was allowed to resign, and judgment 
 was never asked for. A pension of twelve hundred 
 pounds a year for life was granted him, and his brother 
 was made judge in his place. Naturally, " Robert 
 lived many years, not a bit the worse for Westminster." 
 
 (Nov., 23, 1905.) 
 
 It is just a hundred years since the last impeachment 
 took place. Henry Dundas, a member of the great 
 Scotch legal family, who had been Solicitor-General 
 for Scotland, was First Lord of the Admiralty in 1804. 
 He had been Treastu-er of the Navy, and was created 
 Viscount Melville. Owing to the report of a Commis- 
 sion on irregularities in naval administration, Samuel 
 
TRIALS AND APPEALS 177 
 
 Whitbread moved a series of resolutions in the House of 
 Commons against Melville ; these were carried by the 
 casting vote of the Speaker in a House of 432 members ; 
 but after hearing the accused at the bar, the House 
 resolved not to impeach, but to prosecute. But it was 
 subsequently thought by MelvUle's friends that an im- 
 peachment would be less dangerous than a trial before 
 Lord EUenborough and a jury {Diet. Nat. Biog.), and 
 an impeachment was carried. It began in West- 
 minster Hall on April 29, 1806. Whitbread was the 
 first manager for the Commons, Piggott and RomUly 
 appeared as counsel for the House, and Melville was 
 defended by Plumer, Adam, and Hobhouse. The 
 trial lasted fifteen days ; Melville was acquitted on 
 every charge — unanimously on one, on another by a 
 majority of twenty-seven. It seems clear that he had 
 not been guilty of embezzlement, but that he had shown 
 great negligence in not preventing defalcations that had 
 undoubtedly taken place. 
 
 (April, 1906.) 
 
 It is very seldom that a particular judgment leads 
 directly to legislation. Perhaps the best known in- 
 stance is that of Mr. Justice Maule's famous address to 
 a bigamist (some time before 1855). The President of 
 the Divorce Division, in a recent decision on Dodd v. 
 Dodd, which will long be remembered for its specific 
 legal value, made a pronouncement which deals with 
 the same subject, and uses the same sarcasm as that 
 allocution. The national interest in Sir J. Gorell 
 Barnes's manifesto is that, put shortly, permanent 
 separation of husband and wife, as distinguished from 
 divorce, leads to frequent immorality ; in other words, 
 our law of separation, in punishing one kind of im- 
 
 N 
 
178 A CHANCE MEDLEY 
 
 morality, produces more of the same or another kind. 
 The President's essay, for such its careful preparation 
 shows it was intended to be, may be regarded as a 
 supplement to that of his predecessor (Sir Francis 
 Jeune) who, in the article " Divorce," in the Encyclope- 
 dia Britannica (1902), which deserves to be much 
 better known than it is, covered the rest of the field. 
 He, too, attributes the " final impetus " to the innovat- 
 ing legislation of 1857 to Maule's oration to a prisoner 
 convicted of bigamy : his wife had run away with 
 another man, and he (prisoner) had " married " again 
 in her Ufetime. " You should have gone," he gravely 
 informed the workman in the dock at Warwick — one 
 can imagine how the junior bar enjoyed the situation — 
 " to the Ecclesiastical Court, and there obtained against 
 your wife a decree a mensa et thoro. You should then 
 have brought an action in the courts of common law 
 and recovered, as no doubt you would have, damages 
 against your wife's paramour. Armed with these 
 decrees, you should have approached the legislature 
 and obtained an Act of Parliament which would have 
 rendered you free and legally competent to marry the 
 person whom you have taken on yourself to marry with 
 no such sanction. It is quite true that these proceed- 
 ings would have cost you many himdreds of poimds, 
 whereas you probably have not as many pence. But 
 the law knows no distinction between rich and poor." 
 In much the same vein, the President, in dismissing 
 the lady's petition, remarked. " It will not be any satis- 
 faction to her to know that if her case had arisen and 
 her suit could have been brought in Scotland, or most 
 other civilised countries, she would have succeeded." 
 — [The Times.) As Sir Francis Jeune says, " The 
 grave irony of the learned Judge (Maule) was felt to 
 represent truly a state of things well nigh intolerable, 
 
TRIALS AND APPEALS 179 
 
 and a reform in the law of divorce was felt to be inevit- 
 able." So, perhaps, Sir J. GoreU Barnes's most remark- 
 able utterance may make an era in our matrimonial law. 
 He himself distinctly suggests that the time is ripe for 
 certain points ^in that code to be reconsidered or con- 
 sidered. That the whole legal problem of marriage is 
 to-day being canvassed in the popular mind is attested 
 by literature and the stage — ^not a surprising matter 
 after half a century's experience of quite novel legisla- 
 tion. 
 
 (May, 1906.) 
 
 It is to be hoped that the woman who has been tried 
 twice at Norwich for the murder of her husband will 
 not be tried again. Such was the course adopted in the 
 Ipswich case (p. 168). After two trials it is reasonable to 
 assimae that where two juries have doubted, it would 
 not be safe to convict. In 1827, in a murder trial, when 
 the proceedings were stopped merely because a juror 
 was taken ill. Sir Walter Scott thought that if con- 
 victed the prisoner, " having been half tried," ought 
 not to be hung — " it looks something Uke hanging up a 
 man who has been recovered by the surgeons, which 
 has always been accounted harsh justice." In the end, 
 the jury gave " that bastard verdict. Not Proven. I 
 hate that Caledonian medium quii," says Sir Walter, 
 
 (June, 1906.) 
 
 [She was not tried again.] 
 
 The newspapers of July 19 reported the award by 
 an Under-Sheriff's jury, at Red Lion Square, of the 
 amount of £129,563 : this, surely, must be the record 
 
i8o A CHANCE MEDLEY 
 
 of damages in this sort of tribunal. We hope the 
 plaintiff may get them. 
 
 (July, 1906.) 
 
 The course which the Recorder of London took a few 
 days ago in trying a disorderly prisoner in her absence 
 is, naturally, so rare as to deserve a word of comment. 
 The last instance was in the case of a prisoner tried 
 before Mr. Justice Wills on circuit. " I have never," 
 says Sir James F. Stephen in his Digest of Criminal 
 Procedure, " known or heard of this being done, but 
 Lord Cranworth (then Rolfe, B.) threatened to have 
 Rush removed from court, at his trial for murder at 
 Norwich in 1849, if he persisted in a singularly indecent 
 and outrageous course of cross-examination. I have 
 heard from eye-witnesses an account of a trial before 
 Shee, J. (then acting as Commissioner), at Dorchester, 
 where the prisoner (a convict at Portland, tried for the 
 murder of a warder) behaved with such desperate violence 
 that it was necessary to fasten him down with chains 
 and straps. He was not, however, removed from the 
 court, and it is obvious that in capital cases, or, indeed, 
 in any trial involving severe punishment, almost any 
 measures short of removing the prisoner should be 
 resorted to." 
 
 (Sept. 20, 1906.) 
 
 The hunt for a Judge of the High Court who is not 
 pecuniarily interested in the London and North West- 
 ern Railway Company to try a case in which that com- 
 pany is plaintiff is both amusing and typical of English 
 law. The leading case on the subject. Dimes v. the 
 Proprietors of the Grand Junction Canal, took place 
 
TRIALS AND APPEALS i8i 
 
 in 1852, and is reported in 8 State Trials, New 
 Series. There a Vice-Chancellor made orders in favour 
 of the company in 1846, which were affirmed on a re- 
 hearing by the Lord Chancellor (Cottenham) in 1848. 
 It was then discovered that Lord Cottenham was a 
 shareholder in the company, and the House of Lords 
 (that is, Lord St. Leonards, Chancellor, Lord Brougham, 
 and Lord Campbell, Chief Justice), having consulted 
 the judges, held that the proceedings before the Lord 
 Chancellor must be set aside, but that those before the 
 Vice-ChanceUor need not, because he was not a mere 
 deputy, though he exercised a subordinate jurisdiction. 
 In 1858, in another case in which the London and North 
 Western — almost equally distinguished as a litigant 
 and as a railway — ^was a party. Lord Chancellor Cran- 
 worth made the sensible remark that " in the present 
 state of our social relations, when almost every- 
 body has shares in some or other of these companies, 
 to suppose that that disquahfies them from discharging 
 judicial functions in cases in which those companies 
 are concerned is a very dangerous doctrine," and the 
 Attorney-General (BetheU) added that Lord Eldon was 
 a holder of Bank stock, but he never for a moment con- 
 sidered that he was disqualified from adjudicating in a 
 case in which the Bank was concerned ; but the strict 
 rule surely maintains a higher standard, and as it is 
 seldom necessary to enforce it little inconvenience is 
 caused. It is, of course, possible to carry scruples of 
 this sort too far, as in the story Campbell tells of Sir 
 Matthew Hale, who (about 1670), when on circuit, 
 received the present of a buck from a gentleman who 
 was in the habit of sending one to every judge of assize. 
 On this, occasion he happened to be a plaintiff before 
 Hale, who, hearing this, offered to pay for the buck. 
 The gentleman haughtily repUed that neither he nor his 
 
i82 A CHANCE MEDLEY 
 
 forefathers sold venison, and promptly withdrew his 
 case, smartly telling the judge : " From the needless 
 dread of selling justice, your lordship delays it." It 
 would sometimes be as well if gentlemen with smaller 
 jurisdictions approximated to the Quixotic practice 
 of the High Court. For instance, some time ago the 
 driver of an electric tramcar, summoned for illegal 
 speed, was discharged by a bench over which the chair- 
 man of the tramway company presided. This was 
 clearly improper. 
 
 (Nov., 1906.) 
 
 It seems that the recent motion for a rule nisi to 
 commit Mr. John Burns for contempt of court was the 
 first of the sort against a Cabinet Minister. However, 
 as every schoolboy knows, about five hundred years 
 ago Gascoigne, C.J., committed the Prince of Wales 
 (afterwards Henry V.) with the words, " And nowe, for 
 your contempte and disobedience, go you to the prysone 
 of the Kynges Benche, whereinto I commytte you, 
 and remayne ye there prysoner untyll the pleasure 
 of the Kynge, your father, be further knowen," and go 
 he had to. 
 
 Apropos, there is a story that Curran once persist- 
 ed in continuing certain remarks which the judge 
 thought improper. "A further repetition of such 
 remarks will amount to a contempt," he said. "If 
 you commit me," retorted the witty advocate, "I 
 shall be the best thing you've committed for many a 
 yean" 
 
 (Jan., 1907.) 
 
 Once when Baron Parke was trying a cause at Glou- 
 
TRIALS AND APPEALS 183 
 
 cester, Maule, afterwards a judge, appeared to the court 
 to be wasting time. At last the judge interposed, and 
 said, " Coine, come, Mr. Maule, can't you get on a little 
 faster, as I must be at Stafford to-night ? " To which 
 Maule replied (" with dignity," the report states) : " My 
 lord, I should be most happy to oblige your lordship ; but 
 you see I am not just at present Mr. Maule, but John 
 Robinson, who has not the least wish that your lordship 
 should get to Stafford to-nighl — ^in point of fact, he 
 does not care a straw whether your lordship ever gets to 
 Stafford at all." The judge could only submit with a 
 bad grace — always the best course. 
 
 Surely the damages in the case of De Beistegui v. 
 Gardner, in which the defendant recently submitted to 
 judgment, must be a " record " in the annals of 
 English law ? According to Sir E. Carson, the defend- 
 ant had made out of the plaintiff £983,758, but he 
 consented to judgment for the- comparatively modest 
 amount of £827,000 and costs ! 
 
 (June, 1907.) 
 
 A point of some legal-historical interest has been 
 cleared up. The trial of Mr. DisraeU for libel by the 
 Queen's bench in 1838 (on Mr. Charles Austin, not 
 on his brother John Austin, the great Jurist) is well 
 known, and it is often said that he was " convicted." 
 For instance, even Mr. Kebbel, in the Dictionary of 
 National Biography, says : " The future Prime Minister 
 of England was dismissed with a fine of one shilling." 
 This is not so. Sir Harry f'oland, in the Westminster 
 Gazette of July 8, 1907, states that he has the authority of 
 the Crown Office for saying that no judgment was ever 
 
i84 A CHANCE MEDLEY 
 
 pronounced. After Mr. Disraeli's apology the Attorney- 
 General, Sir John Campbell, did not move for judg- 
 ment. {The Queen v. D'Israeli. By J. Stammers 
 Barrister-at-Law. London : Pheney, 1839.) 
 
 (July, 1907.) 
 
 Sir Henry Hawkins, as he will be known to posterity, 
 had once to cross-examine an expert in handwriting. 
 In those days judges and juries regarded these experts 
 with more respect than is the case now. When Sir 
 Henry arose he handed to the expert six slips of paper, 
 each of which was written in a different kind of hand- 
 writing. Mr. Netherclift, the expert, took his magni- 
 fiers and remarked, " I see, Mr. Hawkins, what you are 
 going to try to do. You want to put me in a hole." 
 " I do, Mr. Netherclift, and, if you are ready for the 
 hole, tell me, were those six pieces of paper written 
 by one hand and about the same time ? " The ex- 
 pert examined the paper caref uUy, and after a consider- 
 able time answered, " No, they were written at different 
 times and by different hands." " By different persons, 
 do you say ? " " Yes, certainly." " Now, Mr. Nether- 
 clift, you are in the hole. I wrote them myself this 
 morning at this desk." Collapse of the case. 
 
 (Sept. 19, 1907.) 
 
 The learned judge who compared plaintiff and defend- 
 ant, both usurers, to the highwaymen who were once 
 parties to a suit, only paid the former a well-deserved 
 compliment. The pleasing analogy cited was Everet 
 V. Williams, about 1725. The plaintiff alleged that 
 he was " skilled in dealing " with plate, rings, watches. 
 
TRIALS AND APPEALS 185 
 
 etc., thai he had entered into partnership with defend- 
 ant, " and it was agreed that they should equally 
 provide all sorts of necessaries, such as horses, etc. . . . 
 and equally bear all expenses on the roads " : " they 
 proceeded jointly in the said business with good success 
 on Hounslow Heath, where they dealt with a gentle- 
 man for a gold watch," etc., etc. Plaintiff actually 
 sued defendant for "a partnership account " of the 
 highway robberies. They were both afterwards hanged 
 and the soHcitor to one of them transported. 
 
 (Jan., 1908.) 
 
 Severe intellectual problems have often to be solved 
 by our courts. It is seldom, however, if any approach 
 that which recently the Probate Court had to 
 grapple with — ^indeed, it is probably a record. A suit 
 had come to an end in 1799 and been revived 
 in 1899, and the President was asked to presume the 
 death of a man last seen in 1780. Only a judge of 
 great mental rapidity could have disentangled so com- 
 plicated a puzzle on the spot by a lucid judgment that 
 the man is now dead, 
 
 (Feb., 1908.) 
 
 Sir Gorell Barnes (and the Pall Mall Gazette) have 
 prevailed, and the juror in waiting of the future need 
 pronounce no oath in the courts except that in the box. 
 He is to have a comfortable room to sit in and write 
 letters, etc. But the President (like Phoebus) 
 
 Audiit et voti . . . succedere paxtem 
 . . . dedit 
 
 — ^but he cannot grant free lunches. Perhaps this 
 will come. The cost of a modest refection would be 
 
i86 A CHANCE MEDLEY 
 
 slight, and, aftei all, the principle is the same as that of 
 boarding and lodging a jury which is not allowed to 
 separate for some length of time : to enjoy the hospi- 
 tality of the State in this country you must be locked up. 
 
 (March, 1908.) 
 
 The spectacle of a solicitor presiding over the Judicial 
 Committee of the Privy Cotincil has naturally excited 
 attention, as it is, of course, imprecedented. But 
 Lord Wolverhampton presides in his capacity of Lord 
 President of the Council, and not by virtue of his legal 
 training. Even a layman might preside. It must be 
 remembered that the President of the Committee by no 
 means necessarily gives judgment. 
 
 (Nov., 1908.) 
 
 There seems to be no doubt that there is no appeal 
 from the decision of the High Court refusing Mr. 
 Bottomley's request for an order to compel the City 
 Alderman trying him and his co-defendants to adopt 
 a particular procedure. The simple reason is that an 
 appeal " in a criminal cause or matter " is expressly 
 disallowed by statute. It is, perhaps, to be regretted 
 that this decision cannot be reviewed, as, if the law is 
 that which the Divisional Court has laid down, there 
 are not wanting grounds for altering it. Shortly, the 
 issue is — ^if a police magistrate discontinues the hearing 
 of a case, ought you to begin all over again before his 
 successor or not ? In this case, it has been decided 
 that you need not. You must, of course, give suffi- 
 cient evidence to satisfy the new magistrate that 
 there is a primd facie case, but to that end, it seems, 
 you may put some of the old witnesses in the box, 
 
TRIALS AND APPEALS 187 
 
 read over their depositions to them en bloc, ask 
 them if they will again swear to the truth of them, and 
 then leave them to the tender mercies of cross-examina- 
 tion. It is this procedure which is strongly objected 
 to on the ground that the new judge cannot possibly 
 have the unique advantage of the element of " demean- 
 our " in a witness's testimony — an aspect of his contri- 
 bution which, no doubt, is so impalpable as to baffle 
 description, but the practical importance of which is 
 insisted upon by every writer on the subject and known 
 to every practitioner. The same answer, for instance, 
 on the same point by two persons respectively may 
 have a totally different evidentiary value : the one may 
 inspire certainty, the other disbeUef. The written de- 
 positions are hke the answer of a sum in arithmetic : 
 they show no trace of the processes through which they 
 have passed, and may be the result of the simplest or 
 the most perplexing calculation. 
 
 " A consideration of the demeanour of the witness 
 upon the trial," says Starkie (on Evidence), " and of 
 the manner of giving his evidence, both in chief and 
 upon cross-examination, is oftentimes not less material 
 than the testimony itself. An oVer-forward and hasty 
 zeal on the part of the witness in giving testimony 
 which will benefit the party whose witness he is, his 
 exaggeration of circumstances, his reluctance in giving 
 adverse evidence, his slowness in answering, his evasive 
 replies, his affectation of not hearing or not under- 
 standing the question, for the purpose of gaining time 
 to consider the effect of his answer ; precipitancy in 
 answering, without waiting to hear or to understand the 
 natiure of the question ; his inabiUty to detail any cir- 
 cumstances wherein, if his testimony were untrue, he 
 would be open to contradiction, or his forwardness in 
 minutely detaiUng those where he knows contradiction 
 
i88 A CHANCE MEDLEY 
 
 to be impossible ; or affectation of indifference — ^are all 
 to a greater or less extent obvious marks of insincerity. 
 On the other hand," there are many incidents which 
 are " strong, internal indications of his sincerity." 
 It must be remembered that a witness's bias or even 
 condition is often so obvious that a cross-examiner 
 decUnes to ask any or any more questions — ^he is con- 
 tent to leave the situation to the judge or jury : but 
 how is this tactical advantage to be reproduced on the 
 depositions (which are not, by the way, shorthand 
 notes) ? The mere paper suggests the very reverse 
 of the truth — ^that he had no material on which to cross- 
 examine, and, though he is at liberty to try again at the 
 new hearing, he cannot expect the second edition to 
 have the same "go." 
 
 (March, 1909.) 
 
 In one of Erskine's many — ^though it is difficult to 
 identify which — ^vindications of pohtical hberty against 
 the Crown lawyers, a good story is told of his " scoring 
 off " Buller. He had quoted some extracts from a 
 book — ^not that imputed to his chent for hbel. The 
 judge interrupted to say that it was no defence of one 
 libel to cite another, and a worse, in support of it. 
 Erskine at once turned to the jury : " You hear, gen- 
 tlemen, the observation of his lordship, and from that 
 observation I maintain that you must acquit my 
 client. His lordship says that the work under prosecu- 
 tion is not so hbeUous as the quotation I have just read. 
 Now, gentlemen, that quotation is from a work univer- 
 sally allowed to be classical authority on the character 
 of the British Government. It is from the pen of the 
 immortal Locke. Shall we condemn a writer who is 
 
TRIALS AND APPEALS 189 
 
 declared not to go the length of that great and good 
 man ? " 
 
 (June, 1909.) 
 
 The sensational trial of Mme. Steinheil for murder 
 now proceeding in Paris naturally provokes compari- 
 sons with our judicial methods. No one would deny 
 that the French are as anxious to do justice as we are, 
 but it is equally true that their procedure to that end 
 fills an English lawyer with horror. To take one con- 
 crete instance. Witness after witness has come for- 
 ward for or against Mme. Steinheil, and informed the 
 Court that he thought she was not guilty or guilty ! — 
 an expression of opinion, on the very point at issue, in- 
 conceivable in a British court. We justly pride our- 
 selves on our fundamentar principle that every accused 
 person, even in the dock, is to be held innocent mitil 
 he has been duly adjudged guilty, but perhaps many 
 will be surprised to learn that the inveterate legend that 
 the French hold the converse is not true. Mr. O. E. 
 Bodington, who speaks on this subject with authority, 
 as he is an English and United States barrister, and a 
 Licencie en Droit of the University of Paris, says in his 
 French Law of Evidence : The " depositions are 
 read over by the presiding judge before the trial of the 
 case. [So they are in England, but the French judge 
 only has the case for the prosecution : the English judge 
 has the defence, too, when there is one, which does not 
 always happen.] It is reasonably obvious that such a 
 system tends to bias the mind of the judge against the 
 prisoner by the time the case comes into court. This 
 affords some explanation of the hostile attitude 
 assumed^by the President of a French Criminal Court 
 towards__the prisoner, which has so often been imfa- 
 
igo A CHANCE MEDLEY 
 
 Vourably commented upon by those acquainted only 
 with Anglo-Saxon criminal jurisprudence. It is unfair 
 to say that in France a •prisoner is guilty until he has 
 been proved to be innocent ; but it is true to say that the 
 French system fosters prejudice against the prisoner." 
 Sir J. F. Stephen, almost an ideal critic on this subject, 
 put it thus : " The accused is cross-examined with the 
 utmost severity and with continual rebukes, sarcasms, 
 and exhortations, which no counsel in an English court 
 would be permitted by any judge, who knew and did 
 his duty, to address to any witness. This appears to 
 me to be the weakest and most objectionable part of the 
 whole system of French criminal procedure, except 
 parts of the law as to the functions of the jury." It 
 may, however, be pointed out that a judge who overdoes 
 this part, and shows undue bias against a prisoner, 
 would inevitably provoke the jury's sympathy for the 
 latter : that tendency is not unknown here, and would 
 be much more powerful in France, where, partly owing 
 to the much greater number of the judges, there is 
 nothing hke the respect for the Bench which there is 
 here. 
 
 Stephen anticipated Mr. Bodington on the French 
 judge : " He is, and of necessity must be, powerfully 
 biased against the prisoner. That in the opinion of 
 the French in general this has been the case with French 
 judges appears to be indicated by the fact that . . . 
 they have been deprived of the right of dosing the trial 
 by a r6sum6 which in some respects resembled our 
 English summing-up." This is still the law. 
 
 Finally, in a most judicial passage, the Enghsh judge 
 asks point blank — ^which of the two, the Enghsh and 
 French systems, is the better ? " To a person accus- 
 tomed to the Enghsh system and to Enghsh ways of 
 thinking and feeling there can be no comparison at all 
 
TRIALS AND APPEALS 191 
 
 between them. However well fitted it may be for 
 France, the French system would be utterly intolerable 
 in England." But, he concludes, " The whole temper 
 and spirit of the French and English differs so widely 
 that it would be rash for an Englishman to speak of 
 trials in France as they actually are. ... It may well 
 be that the system not only looks, but is, a very differ- 
 ent thing in France." Stephen quite recognised that 
 the French system would be justified by " superior 
 efficiency," and it is quite conceivable that French 
 jurists may claim this superiority : indeed, it is probable 
 that their procedure does not let so many guilty persons 
 escape as ours. On the whole, perhaps, each nation 
 will prefer its own. On one small point (cited by 
 Stephen) we shall not imitate Gallic barbarity. A 
 prisoner is expressly prohibited from putting his defence 
 into verse. 
 
 (Nov., 1909,) 
 
 In a recent case it appeared that the pension granted 
 by Charles II in 1660 " for ever " to the Penderels, 
 who had hidden him in Boscobel Wood after Worcester, 
 and to their heirs, was still paid, and the application was 
 made on behalf of a descendant of Richard Penderel. 
 AH history is sooner or later reviewed in the Law Courts. 
 
 (Dec, 1909.) 
 
 An intelligent juror at Leeds asked a question which 
 settled the case. Mr. Justice BucknUl, writing to 
 congratulate him, very properly observed that a man 
 who has served his country on a jury becomes a 
 more useful citizen. The episode is a reminder that 
 
192 A CHANCE MEDLEY 
 
 Lord Mansfield used to try and educate the citizens of 
 London in commercial law at the Guildhall, and for 
 some time there were a body of gentlemen in the City 
 known as " Lord Mansfield's Jurymen." 
 
 (Dec, 1909.) 
 
Legal and Constitutional Points 
 
CHAPTER V 
 
 LEGAL AND CONSTITUTIONAL POINTS 
 
 The case of Makin and wife v. the Attorney-General 
 of New South Wales, which has recently been decided 
 by the Judicial Committee of the Privy Council, is of 
 the first importance with regard to the admissibility of 
 evidence of collateral facts in a criminal trial. Sir 
 Edward Clarke, for the respondent, has succeeded in 
 establishing the principle that " evidence is admissible 
 of the acts or doings of the accused when they are so 
 connected with the transactions under charge or are so 
 similar in character to the acts alleged as to found a 
 reasonable inference that the accused committed the 
 act charged, or that such act was criminal and not acci- 
 dental." It may be mentioned that in his twenty-nine 
 years' experience at the Bar, this is the first occasion 
 on which the late Solicitor-General has ever appeared 
 on behalf of the prosecution in a case of murder, and, 
 consequently, the first time that he has been instrumen- 
 tal in obtaining a sentence of death. 
 
 Quly, 1893.) 
 
 In a deed of separation produced in some divorce 
 proceedings, the lady undertook to allow the gentleman 
 thirty shillings a week, subject to a dum castus clause. 
 Sir Francis Jeune remarked, amid considerable amuse- 
 
 19S 
 
196 A CHANCE MEDLEY 
 
 ment, that that was the first time he had ever heard of 
 such a clause, but the deed was quite clear. 
 
 MigheU'w.The Sultan of Johore, decided by aDivisional 
 Court, is an interesting addition to the cases in which 
 independent Sovereigns are parties. This case went 
 very near the line of principle laid down by the authori- 
 ties, for if it had not been proved that the plaintiff knew 
 who her suitor actually was, it might have been brought 
 within the exception to the rule that a foreign Sovereign 
 cannot be sued in the municipal courts, laid down by 
 Mr. Pitt Cobbett in his book on International Law, 
 namely, " Where he has carried on, made, or entered 
 into contracts in the apparent character of and subject 
 to the same conditions as a private individual." This 
 is by no means the most embarrassing case of the sort 
 which has arisen. In 1657 Queen Christina of Sweden, 
 who had abdicated, actually put her chamberlain to 
 death in France, and the French jurists decided that 
 their coxffts had no jiu'isdiction to try her. There, 
 however, she had been recognised by the French Gov- 
 ernment as independent. Nowadays, it is said, the 
 infliction of capital punishment in such circumstances 
 would not be warranted, but it is difficult to see what 
 could be done post factum, except to expel the offend- 
 ing monarch. Of course a protest would be made 
 before it was too late, and it is said that this was actu- 
 ally done when the Shah of Persia was staying at Buck- 
 ingham Palace. There is no doubt that the private 
 property of a foreign Sovereign is liable to attachment, 
 sequestration, and, generally, to be dealt with accord- 
 ing to law. 
 
 Perhaps the most interesting legal episode in the 
 
LEGAL AND CONSTITUTIONAL POINTS 197 
 
 career of the late Mr. West, Q.C., was his attempt in 
 1881 — ampliare jurisdictionem. The late Duke of 
 Devonshire had a lease of the Peak from the Duchy of 
 Lancaster, and had covenanted to pay royalties on all 
 minerals extracted. A dispute arose, and an " Equity 
 information," a rare process, was filed on behalf of the 
 Crown by Mr. West as Attorney-General (of the Duchess 
 of Lancaster, i.e., the Queen) in the office of the Queen's 
 Remembrancer in tlxe Exchequer Division — a pro- 
 cedure which has not been affected by the Judicature 
 Act. By the advice of Mr. Stuart Moore, a motion was 
 made in the Queen's Bench Division that the informa- 
 tion be taken off the file, on the ground that the Attor- 
 ney-General of the Duchy had no right to lay informa- 
 tions in the Exchequer. The motion, which was argued 
 before Mathew and Day, J J. (L. R. 14 Q. B. D. 195), 
 was successful, and it was not appealed. The Court 
 held that the information ought to have been brought 
 by the Attorney-General of the realm. Day, J., doubt- 
 ing whether a prerogative process of a very oppressive 
 nature can be brought by any one but the constitutional 
 officer appointed for the purpose. 
 
 (Nov., 1893.) 
 
 One of the novelties introduced by the new rules is 
 the originating summons in the Queen's Bench Divi- 
 sion. Any person claiming to be interested under a 
 deed, will, or other written instrument may apply for a 
 determination of any question of construction and a 
 declaration of the rights of the persons interested. 
 This procedure is very popular on the Chancery side, 
 and wiU probably be largely used. It affords a cheap 
 and expeditious mode of settling questions which has 
 been much needed. For example, a doubt arises as to 
 
igS A CHANCE MEDLEY 
 
 the extent of a tenanf s obligation to repairs under a 
 lease. Now all he can do is either to execute the dis- 
 puted repairs or to leave them, and take the chance of 
 an action by his landlord. In future he will be able 
 to take out a summons and have it finally, quickly 
 and cheaply determined what is the extent of his 
 obligation. 
 
 (Dec, 1893.) 
 
 The point really at issue in the motion made by Mr. 
 Coleridge, Q.C., on behalf of Monson, tried for murder 
 in Edinburgh, is very characteristic of the age, as it 
 comes to this : Is a person who desires to remain in 
 absolute privacy entitled to do so ? As Mr. Coleridge 
 put it, was not George Eliot, who had a horror of having 
 her likeness taken, entitled to restrain the exhibition of 
 any picture of herself that might get about ? Could 
 anybody " kodak " a dwarf or deformed person and 
 sell the portrait ? (Sitters, of course, are protected by 
 statute.) Some of the old cases which he cited in sup- 
 port were entertaining. In the Mayor of Northamp- 
 ton's case that worthy had sent Lord Halifax a license 
 to keep a public-house ; this was held to be a hbel in 
 the case of " a person of his quality." To burn a man 
 in efhgy has also been held to be libellous. Where a 
 man drew a pillory and subscribed " For Sir John 
 Austin and his forsworn witnesses by him suborned," 
 the pillory was held to be an innuendo. " Carrying a 
 fellow about with horns and bowing at his door " was 
 held to be an actionable wrong. " Setting up a lamp 
 in the day-time adjoining plaintiff's house," an action 
 on the case, was held good as it implied that the house 
 was disorderly. Holt, C.J., once decided that to 
 depict a man as " riding Sk'mmington " was actionable. 
 
 (Jan., 1894.) 
 
LEGAL AND CONSTITUTIONAL POINTS 199 
 
 Harrison and Another v. Powell, tried before Mr. 
 Justice Charles, was an action of a kind now becoming 
 very rare. This was a case of " heriot custom," where 
 the lord must seize, a survival from the time when the 
 stock of the tenant, who was regarded as a mere bonds- 
 man, was practically the property of the lord, who, 
 on his death, took Ms best beast. Sometimes the heriot 
 is of considerable value. In one case a Derby winner 
 was taken (Lord Zouche v. Dalbiac, lo Exch., 172). A 
 shorthorn breeder, who owned a heriotable tenement 
 and did not enfranchise, would be unwise. Often the 
 only object of the action is to establish the lord's right, 
 and make the tenant enfranchise. Frequently tenants 
 in extremis sell aU their cattle, leaving nothing for the 
 lord but a " dead heriot," valued at about 3s. ^d. 
 
 (Feb., 1894.) 
 
 When Mr. Justice Wills was at the Bar, he remarked 
 in the course of an argument (in Stahlschmidt v. 
 Walford, published separately), " The origin of heriots 
 is lost in obscurity .... It seems, however, to be 
 generally considered that the custom is of Danish 
 origin and arose from the necessity of maintaining the 
 military status of the realm. The horses, arms, and 
 mihtary apparatus of the tenant were, by Canute's 
 law, ordered to be delivered up to the King on the 
 tenant's death as heriots — a provision of great import- 
 ance in those early days to enable the King to keep up 
 his army." He " thus may be said to have had the 
 control of every weapon in his kingdom." 
 
 A singular application was made to the poUce- 
 
200 A CHANCE MEDLEY 
 
 magistrate sitting at Marlborough Street. A widow 
 invoked his assistance to get possession of the dead 
 body of her husband, which was detained by the person 
 in whose house he died. It seems unnatural that the 
 widow, as such, should have no rights in such a case, 
 but such is the law, as the magistrate pointed out. 
 There is no property in a dead body, but the executors 
 of the deceased have a right to the custody of the corpse 
 and the duty to bury it. Hence, if the appUcant had 
 been the executrix, her claim would have been sustained. 
 If there is no will it would seem that any one may bury 
 who can get possession of the corpse ; if no one does, 
 the householder in whose house it lies, if it be that of a 
 poor person, is bound by common law to inter it 
 decently (unless any ecclesiastical prohibition attaches). 
 But by 7 and 8 Vict., c. loi, the guardians or overseers 
 of a parish or union are now empowered to bury the 
 body of any poor person dying within the parish or 
 union. 
 
 (April, 1894). 
 
 The case of Anderson v. Cook, tried before Lord 
 Coleridge and a special jury (which was a model for 
 fairness and common sense), illustrates the extreme 
 difficulty of bringing home misconduct to a judge on 
 the bench. The verdict implied that the judge had 
 been guilty of moral wrong, and made a very shrewd 
 guess at the proximate cause ; yet judgment was 
 entered for the defendant, because in the view of the 
 Lord Chief Justice the weight of judicial authority 
 was against such an action. Justice could not be ad- 
 ministered if judges were not protected for all " judicial 
 acts," and, short of flagrant iniquity, all acts performed 
 in the execution of a judge's duty must be " judicial." 
 
LEGAL AND CONSTITUTIONAL POINTS 201 
 
 The word, in fact, practically means " done by a judge." 
 Still, in Houlden and Smith (14 Q.B., 841), it was held 
 in 1850 — ^where the defendant, a county court judge, 
 had ordered the plaintiff, over whom he had, to his 
 knowledge, no jurisdiction, to be committed for con- 
 tempt in not appearing before him on a siunmons 
 — ^that the commitment being in excess of jurisdiction 
 and made under a mistake in the law and not of the 
 facts, the judge was liable in trespass. 
 
 Since the Act of Settlement in 1701 judges of the 
 superior courts who are guilty of misconduct can only 
 be got rid of by impeachment or on an address to the 
 Crown from both Houses of Parliament. Thus in 
 1725 Lord Chancellor Macclesfield was impeached and 
 unanimously found guilty of corruption in his of&ce. It 
 was a common saying that Staffordshire had produced 
 the three greatest rogues ever known in England — 
 Jack Sheppard, Jonathan Wild, and Tom Parker. 
 He was fined £30,000. An address was proposed in 
 the case of Mr. Justice Fox (an Irish judge), in 1805, 
 and Sir Jonah Barrington was actually removed by 
 this method from the office of Admiralty Judge in Ire- 
 land in 1828. The House of Commons considered the 
 cases of Lord Abinger in 1843, and Sir Fitzroy (after- 
 wards Baron) Kelly in 1867. The judges of inferior 
 courts, who are subject to the Court of Queen's Bench, 
 are much easier to get rid of, for good cause. 
 
 (May, 1894.) 
 
 The Justices of the Kingston bench have had to 
 decide on a very rare kind of prosecution, namely, 
 for profane and common swearing and cursing " by 
 the last statute against which, ig Geo. II, c. 21" 
 (says Blackstone, and his remark holds good now), 
 
202 A CHANCE MEDLEY 
 
 "which repeals all former ones : every labourer, sailor, 
 or soldier profanely cursing or swearing shall forfeit is., 
 every other person under the degree of a gentleman 
 2s., and every gentleman or person of superior rank 5s. 
 to the poor of the parish. . . . Any Justice of the 
 peace may convict upon his own hearing or the testimony 
 of one witness, and any constable upon his own hearing 
 may secure any offender and carry him before a Justice." 
 In 1863 in the Queen against Scott (4 Best and Smith, 
 368) it was discussed whether the penalty was cumula- 
 tive for a number of such offences committed at the same 
 time, and it being held that it was, a meal-man was 
 fined £2, being at the rate of 2s. per oath and I2s. 6rf. 
 for costs. 
 
 The question whether Lord Coleridge will practise 
 has become epidemic at the Bar. So far it has been 
 quite overlooked that one Peer has been called to the 
 Bar in recent times, and has his name up in the Temple 
 like the ordinary practising barrister. Lord Clifford, 
 who became ninth baron in 1880, was called to the 
 Bar in 1882 by the Inner Temple. Unless there was an 
 express (and secret) stipulation that he should not prac- 
 tise, this instance disposes of the question, for if a call 
 means anything, it means permission to plead. No 
 doubt a Peer could not practise before the House of 
 Lords any more than a Privy Councillor could before 
 the Privy Council. 
 
 (June, 1894.) 
 
 The parish meetings have met, but so far there has 
 been no perceptible increase of litigation. One hamlet 
 has secured immortality through a paragraph which has 
 
LEGAL AND CONSTITUTIONAL POINTS 203 
 
 gone the round to the effect that its one elector " having 
 duly caUed the meeting at his own fireside, nominated 
 himself chairman of the parish meeting, and also dis- 
 trict rural councillor for the parish." Unfortunately 
 this display of pubHc spirit was wasted, as the nomina- 
 tions were void under the Act for want of a seconder. 
 The old law apparently avoided this impasse, for in the 
 case of a parish with only one ratepayer Judge Chal- 
 mers says {Local Government) : " He must rate himself. 
 Presumably he is the overseer, the vestry, the chairman 
 of the vestry, and the guardian. When he meets himself 
 in vestry we may surmise that he takes the opinion of 
 the meeting by show of hands. It may be an open 
 question whether he might not constitute himself the 
 burial board and bury himself." 
 
 (Dec, 1894.) 
 
 . On the hearing of a case counsel has no right to refer 
 to speeches made in Parliament on the Act while it was 
 still a biU. There has been some difference of opinion 
 on this point between very eminent judges. In Reg. 
 V. Bishop of Oxford (1879) Bramwell and Baggallay, 
 L.JJ., allowed a speech of Cairns L.C. in the House of 
 Lords to be cited as authority as to the construction 
 of a statute (but this was not the biU on which the dis- 
 cussion took place). But even as to this Thesiger, L.J., 
 observed, " I cannot but think the extension of " the 
 principle of treating text books as authorities " to 
 speeches in a House of Parliament sitting in its legisla- 
 tive capacity, however eminent may be the speakers, 
 however solemn the occasion on which they speak, inex- 
 pedient in a very high degree." In 1880, Cockburn, 
 C.J. — ^the very speaker whose words Mr. Walton, Q.C., 
 proposed to quote — said, " Where the meaning of an 
 
204 A CHANCE MEDLEY 
 
 Act is doubtful we are, I think, at liberty to recur to 
 the circumstances under which it passed into law, as a 
 means of solving the difhculty." And he proceeded to 
 quote a speech made by Mr. Cardwell on the introduc- 
 tion of the bill in question into Parliament, and one 
 made by the Lord Chancellor on the corresponding occa- 
 sion in the Lords. Pollock, C.B., once said, " This is 
 not one of the modes of discovering the meaning of an 
 Act of Parliament recommended by Plowden, or sanc- 
 tioned by Lord Coke or Blackstone." Still, " the 
 court is not to be oblivious of the history of law or legis- 
 lation, although it is not at hberty to construe an Act 
 of Parhament by the motives which influenced the 
 Legislature" (Jessel, M.R.). 
 
 It is an interesting question whether a person, by our 
 Constitution, has the right of presenting a petition to 
 Parliament. According to Sir WUliam Anson, there 
 seems to be very little doubt about it. He points out 
 that the right to petition [the Crown ?] was said by a 
 judge in the Seven Bishops' case to be " the birthright 
 of the subject," and " whosoever in the thirteenth or 
 fourteenth century wanted by peaceable means to get 
 an37thing which was not recoverable in the courts of 
 law, addressed a petition to the King in that great 
 Council of which Parliament was first regarded as a 
 session. Legislation itself was ... for a long time 
 initiated by petition of the Commons or clergy to the 
 King in Council." Edward I appointed receivers and 
 triers of petitions, and the offices survived until 1886 
 in the House of Lords. In 1669 the House of Com- 
 mons resolved : (i) " That it is an inherent right of 
 every commoner in England to prepare and present 
 petitions to the House of Comraon| in case of grievance. 
 
LEGAL AND CONSTITUTIONAL POINTS 205 
 
 and the House of Commons to receive the same." (2) 
 " That it is an undoubted right and privilege of the 
 Commons to judge and determine concerning the nature 
 and matter of such petitions, how far they are fit or 
 unfit to be received." 
 
 Since 1833, a Select Committee has taken charge of 
 all petitions except those referring to private bills. 
 This Committee reports twice a week during the ses- 
 sion. A member on presenting a petition may state 
 the names of the subscribing parties, their numbers, 
 its material allegations, and its prayer. No debate is 
 allowed unless the case is urgent, when the grievance is 
 at once discussed. In the House of Lords, procedure 
 on petitions is of less importance, as they can be made 
 by way of legal appeal to the well-known jurisdiction 
 of the House, but it would seem that in general prayers 
 the procedure is much the same as in the Lower House. 
 There it is a rule that every petition must be presented 
 to the House by a member, and thus the question arises, 
 if every subject has the right of petitioning either 
 House, how is that right to be enforced ? Apparently 
 by action, provided the petition comphes with the 
 requirements of the House, one of which is that " it must 
 be respectful of the privilege of the House, and free 
 from disloyalty or expression of intention to resist the 
 law." It might be a nice point whether any member 
 of the House of Commons could be compelled to present 
 a petition, or only the petitioner's member (if any) ; 
 but in the case of the House of Lords this difficulty 
 could not arise. 
 
 Of all the frivolous objections which have ever been 
 taken to a nomination for election, that which Day 
 and Wright (JJ.) disposed of (in April, 1895) was perhaps 
 
206 A CHANCE MEDLEY 
 
 the most futile. A gentleman named Miller was nom- 
 inated for a town council as Millar, and, objection being 
 taken, the returning officer would not allow him to go 
 to the poU. The court promptly declared the election 
 void. The reports contain some microscopical objec- 
 tions, but this is the record. 
 
 The Act of Union with Scotland conferred upon all 
 Scotch peers the same privileges as were enjoyed by 
 the peers of Great Britain except the right to sit in the 
 House of Lords otherwise than as representative peers. 
 For a long time the lords maintained that this excep- 
 tion prevented the Crown conferring upon a Scotch 
 peer a peerage of Great Britain which would entitle 
 him to a writ of Summons. In 1711 they prevented 
 the Duke of Hamilton, who had been created Duke 
 of Brandon, from taking his seat. There was another 
 similar casein 1719. But in 1782 the House consulted 
 the judges, who were unanimously of opinion that the 
 Duke's claim was good, and the point has been settled 
 since then. As to the House of Commons, Sir Reginald 
 Palgrave told the Committee on Vacating Seats in 1894 
 that there was no law or statute " which defines that a 
 Scotch peer cannot sit in the House of Commons 
 because he is represented in the House of Lords ; it 
 is merely a deduction." When Sir John Mowbray asked 
 him : " But the Scotch peers who sit in the House of 
 Lords sit as representative peers of the whole body 
 of the Scotch Peerage, and are elected ? " he replied : 
 " Yes, but stiU the exclusion of a Scotch peer from 
 the House of Commons rests only on a deduction from 
 that circumstance ; there is no express provision to 
 that effect." Clearly it is the turn of a Scotoii peer to 
 make an experiment. 
 
LEGAL AND CONSTITUTIONAL POINTS 207 
 
 " The return of the late Home Secretary [Mr. Asquith] 
 to active practice at the Bar is spoken of by some 
 writers as a possible violation of some unwritten rule of 
 conduct affecting Cabinet Ministers. We have already 
 said that it is desirable that the practising Bar should 
 have in its ranks men distinguished in other walks of 
 life, and see no objection to the resumption of practice 
 by ex-Cabinet Ministers other than Home Secretaries. 
 A Home Secretary acts as a court of appeal from judges 
 and juries in criminal cases. He acts towards judges 
 as an official chief. He has much legal patronage to 
 bestow. All this makes it highly undesirable that he 
 should resume a position at the Bar from which a turn 
 of the political wheel may again place him over those 
 before whom he pleads and give him the patronage by 
 which he may benefit his brethren in the profession. 
 We see no other objections." — Law Times. 
 
 (August, 1895.) 
 
 There are no exact precedents for a Minister returning 
 to active practice at the Bar. Macaulay says that 
 Pemberton, who was one of the counsel for the Seven 
 Bishops, had in the time of Charles II been Chief Justice of 
 the King's Bench, had been removed from his high place 
 on accoimt of his humanity and moderation and had 
 resumed his practice at the Bar, and that Sir Cresswell 
 Levinz, who was on the same side, " had been removed 
 from the bench some years before because he was afraid 
 to serve the purposes of the Government." Lord Rose- 
 bery tells us of Pitt in 1788, when he was Prime Minis- 
 ter, " He now made unostentatious preparations to 
 resume his practice as a Junior at the Bar. . . . One 
 may be permitted to regret that he was not allowed 
 to pass for a month or two from his seat of power to 
 
2o8 A CHANCE MEDLEY 
 
 a cell in Lincoln's Inn. History, however, was denied 
 so picturesque an episode." {Pitt, p. 92.) 
 
 There is a case directly bearing on the question of 
 overcrowding on railways ; it is one well worth noting 
 (Dale V. Midland Railway Company, Law Times 
 newspaper vol. 93 p. 36, May 14, 1892). The 
 plaintiff claimed five guineas damages for breach of 
 the conditions under which he had a season ticket. 
 He started on his journey in a first-class compartment 
 constructed to hold six, and there were four other pas- 
 sengers in it. Notwithstanding his protest, the officials 
 insisted on putting in five more passengers who had 
 third-class tickets, smd at another station two more 
 got in. Judge Chalmers remarking that in a similar 
 case Judge Stonor gave substantial damages where the 
 passenger had suffered real inconvenience, fixed them 
 in this case at forty shilhngs, allowuig costs on the 
 higher scale as it was of considerable public importance. 
 He laid it down distinctly that " a passenger who has 
 paid his fare and secured his seat is entitled to have 
 the proportion of room he has paid for, and the com- 
 pany have no right to put in extra passengers without 
 his consent." But this was not all. He further 
 thought that " a first-class passenger who has taken his 
 seat is entitled to object to a third-class passenger being 
 put into the carriage without his consent. No doubt 
 the majority of third-class passengers are quite as well- 
 behaved and are as agreeable travelling companions as 
 first-class passengers : but there is a certain residuimi 
 of persons who usually travel third class who are not 
 agreeable travelling companions, and it is often to avoid 
 the chance of travelling with such persons that passen- 
 gers pay the additional fare." 
 
LEGAL AND CONSTITUTIONAL POINTS 209 
 
 A suggestion was made when the illness of a juryman 
 delayed the hearing of the Hansard case [1892-3] for 
 months, that, in long cases, there should be a spare 
 juryman who would only give his verdict in the event 
 of the contemplated emergency. This is the method 
 of football or cricket teams which keep a " reserve 
 man," and the importance of a criminal trial may 
 warrant the borrowing of their methods. 
 
 It came out at country quarter sessions that a man, 
 having bought some prussic acid from the local chemist, 
 announced his intention to his wife of using it to com- 
 mit suicide. She managed to secure the poison and 
 gave notice to the chemist not to supply him with any 
 more and to the poEce to keep their eyes on him. 
 Accordingly on his next application the chemist dtily 
 labelled the bottle poison, but put into it nothing but 
 water. The accused was seen by a policeman, who 
 followed, to go straight from the shop to a yard and, 
 take a puU. at the vial ; he was promptly arrested, and 
 in due course indicted for attempted suicide, " by means 
 of a certain noxious drug — to wit, water " ! 
 
 (Jan. 1896) 
 
 The question has been raised whether Sir Frederick 
 Leighton, the late President of the Royal Academy, 
 had been created a peer at the moment of his death. 
 According to Sir WiUiam Anson, " in the creation of 
 a Peer the Prime Minister informs the Home Secre- 
 tary of the intention of the Crown ; the Home Office 
 thereupon instructs the Crown Office in Chancery to 
 prepare a warrant for the sign manual ; this warrant, 
 when prepared, is submitted by the Home Secre- 
 
210 A CHANCE MEDLEY 
 
 tary to the Queen, and having been countersigned 
 by him, is returned to the Crown Office as authority 
 for the preparation of the letters patent by which the 
 peerage is conferred, and the affixing to them of the 
 Great Seal. These are then sent through the Home 
 Office to the newly-created peer." The patent of 
 peerage is not completed till this has been done. 
 According to the Law Journal (Feb. 8, 1896), in the 
 present instance, the patent had not been sealed at 
 the time of death. 
 
 " A very simple expedient " has been suggested by 
 which servants may preserve their property in a 
 " character." " When C needs a character she (or he) 
 should not ask A (former employer) to write to B (pro- 
 posed employer), but to write directly to C." But the 
 suggester is not altogether right in supposing that the 
 property in the letter is wholly C's. This is not quite 
 so ; "at most," it has been said, " the receiver has 
 only a joint property with the writer." The principle 
 was thoroughly discussed in the Earl of Lytton v. 
 Devey in 1884 where the plaintiff sought, as executor 
 to his father, to restrain Lady Lytton's executrix from 
 parting with the letters of the deceased lord to his 
 wife, and to prevent their pubhcation in a book. The 
 question has generally been fought in connection with 
 letters of literary value, and the case of Pope (the poet) 
 V. Curl is still cited. In the 1884 case Bacon, V.C, said : 
 " The property in the letters remains in the person to 
 whom they are sent . . . but the sender of the letters 
 has stiU that kind of interest, if not property, in the 
 letters that he has a right to restrain any use being 
 made of the communication which he has made in the 
 letters so sent by him." 
 
 The^question has been raised whether a person under 
 
LEGAL AND CONSTITUTIONAL POINTS 211 
 
 sentence of death is a competent witness. In 1867 
 Mr. Justice Lush refused to receive the evidence of 
 such a person, with some doubt, in a case at the Old 
 Bailey ; but in 1883 an Irish judge, who was aware of 
 that case, admitted the evidence of one of the men who 
 had been sentenced to death for taking part in the 
 Phoenix Park murders and reprieved, and stated that 
 the form of the pardon or reprieve made no difference, 
 as he should have received such evidence even if the 
 witness stiU lay imder the sentence. 
 
 (May, 1896.) 
 
 The appeal from the City of London Court by a 
 season-ticket holder, who sued the London, Chatham, 
 and Dover Railway Company for damages on account of 
 the frequent impunctuality of their trains between the 
 Crystal Palace and Holborn, was unsuccessful in the 
 superior court, on the same grounds as those on which 
 the plaintiff failed below. Season-ticket holders sign 
 a special agreement with the company, and, in effect, 
 contract themselves out of their rights at common law. 
 But it by no means follows that the ordinary retail 
 customer cannot recover from a railway company if 
 he can bring home negligence to them in the matter 
 of keeping time ; as a matter of fact, he can. 
 
 (May, 1896.) 
 
 To be off with the old love before you are on with the 
 new is a measure of ordinary prudence ; to be off with 
 the old wife before you are on with the new may involve 
 a knowledge of the law which not all people apparently 
 possess. A petitioner before Sir Francis Jeune obtained 
 a decree nisi against his wife, and after a lapse of eight 
 months married again. But he had forgotten, or had 
 
212 A CHANCE MEDLEY 
 
 never heard of, the necessity of getting his decree made 
 absolute ; and his second marriage, being a matri- 
 monial offence, had disentitled him in law to the disso- 
 lution of the first. However, as the court was satisfied 
 that it was a boni-fide case of ignorance, in its discretion 
 it made the decree absolute. But for a precedent it 
 had to go back to 1869. 
 
 (July, 1896.) 
 
 The literal application of old statutes to modern 
 society is apt to lead to amusing results. Thus the 
 Corporation of Sheffield prosecuted a milkman under 
 an Act of Charles II (1676) " for the better obser- 
 vation of the Lord's Day." One section provides 
 that " nothing in tiiis Act contained shall extend to 
 the prohibiting of dressing of meat in families, or dress- 
 ing or selling of meat in inns, cooks shops (sic), or 
 victualling-houses, for such as otherwise cannot be 
 provided, nor to the crying or selling of milk before nine 
 of the clock in the morning or after four of the clock in 
 the afternoon." The penalty is the forfeiture of the 
 goods " so cried or shewed forth " ; the goods are to 
 be sold and " converted to the use of the poor of the 
 parish," saving only that the justices may award the 
 informers — ^in this case the pohce — a third of the penal- 
 ties. When they came to divide the plunder in this 
 instance it was found that the cried milk was sour ! 
 
 (July, 1896.) 
 
 There could be no doubt that the boy of fifteen 
 who was sentenced to death by Mr. Justice Cave at 
 Lancaster would be reprieved, as he has been. Yet 
 the sentence was the only one possible in law. Four- 
 
LEGAL AND CONSTITUTIONAL POINTS 213 
 
 teen is the earliest age liable to capital punishment 
 by the common law, the presumption being that chil- 
 dren below that age are incapable of felony or of 
 discerning between good and evil. Where there is 
 evidence to the contrary, no immunity is allowed. Sir 
 Matthew Hale mentions a case where a girl of thirteen 
 was burnt " by judgment " for kilUng her mistress, 
 but this must have been a very early case. He also 
 remembered a case /here a lad of sixteen was " convicted 
 for successive w'j;u1 burning of three dwelling-houses, 
 and in the last of them burning a chUd to death, and 
 yet had carried the matter so subtiUy that by a false 
 accusation of another person for burning the first house 
 an innocent person was brought in danger, if it had not 
 been strangely discovered ; he had judgment to die and 
 was accordingly executed." 
 
 There is an authenticated case at Abingdon assizes 
 in 1629, where " an infant between eight and nine years 
 was indicted, arraigned, and found guilty of burning 
 two barns in the town of Windsor, and it appearing upon 
 examination that he had malice, revenge, craft, and 
 cuiming he had judgment to be hanged, and was hanged 
 accordingly." As late as 1748, in a shocking case of 
 murder by a boy aged ten, " as the sparing of this boy 
 merely on account of his tender years might have been 
 of dangerous consequence to the public, by propagating 
 a notion that children might commit such atrocious 
 crimes with impunity, it was unanimously agreed by 
 all the judges that he was a proper subject of capital 
 punishment," but he was not put to death. 
 
 (July, 1896.) 
 
 The long argument of Sir Edward Clarke on the 
 motion to quash the indictment against Dr. Jameson 
 
214 A CHANCE MEDLEY 
 
 and his co-defendants recalls a most interesting chapter 
 in the history of English law. In this instance the 
 judges, by adjourning the court to consider the pre- 
 liminary objections of the defence, showed that they 
 appreciated the weight of Sir Edward's argument, 
 and that some technical rules of criminal pleading 
 still survive. But the time has long passed when, as 
 the Lord Chief Justice put it " right and justice were 
 sacrificed to the science of artificial statement." Of 
 that long period, however, some curious incidents are 
 recorded. At Crone's trial at the Old Bailey for high 
 treason in 1690, after he had been found guilty, " a 
 motion in arrest of judgment," says Macaulay, " was 
 instantly made, on the ground that a Latin word 
 endorsed on the back of the indictment was incorrectly 
 spelt. The objection was undoubtedly frivolous. . . . 
 But Holt and his brethren remembered that they were 
 now for the first time since the Revolution trying a cul- 
 prit on a charge of high treason. It was therefore desir- 
 able to show that a new era had conmienced, and that 
 the tribunals would in future rather err on the side of 
 humanity." A day was appointed, and counsel was 
 assigned to the prisoner to argue the point, but the 
 error was pronounced to be immaterial. 
 
 " I do not think," says the late Mr. Justice Stephen, 
 " that anything has tended more strongly to bring the 
 law into discredit than the importance attached to such 
 technicalities as these. As far as they went their 
 tendency was to make the administration of justice a 
 solemn farce. Such scandals do not seem, however, 
 to have been unpopular. Indeed, I have some doubt 
 whether they were not popular, as they did mitigate, 
 though in an irrational, capricious manner, the exces- 
 sive severity of the old criminal law. ... It is scarcely 
 a parody to say that from the earliest times to our own 
 
LEGAL AND CONSTITUTIONAL POINTS 215 
 
 days, the law relating to indictments was much as if 
 some small proportion of the prisoners convicted had 
 been allowed to toss up for their liberty." To-day, 
 practically no indictment can be set aside except for 
 some material error which would cause the defence real 
 prejudice. 
 
 (July, 1896.) 
 
 Perhaps the most sensational instance of a man being 
 saved by the formalities of legislation is that of the 
 Duke of Norfolk, who lay in the Tower, and was 
 to be executed on January 28, 1546. On the 27th 
 Henry VIII died. As the Duke was spared there may 
 have been some informality about the death warrant, 
 as there certainly was about the Act of attainder. On 
 the 27th the Lord Chancellor brought down a commis- 
 sion under the sign manual, and sealed with the Great 
 Seal, addressed to himself and other lords, for giving 
 the Royal assent to the bill of attainder, " passed with 
 indecent haste through both Houses." In the next 
 session the Act was declared void by statute because 
 no record existed showing that the Commissioners did 
 give the Royal consent to it. Again, O'ConneU pleaded 
 guilty to an offence against a temporary Act of 1829 
 (suppressing the Catholic Association), but the Act 
 expired before he had been sentenced, and consequently 
 no further proceedings could be taken against him. In 
 this connection Bailey's case, tried by Lord Eldon in 
 1799, is interesting. He was charged with shooting a 
 man on the high seas : the offence was within a few 
 weeks after the 39 Geo. Ill c. 37 passed, and before 
 notice could have reached the prisoner. " On case," 
 all the judges met in 1800 at Lord Kenyon's chambers 
 thought that he could not have been tried if that Act 
 
2i6 A CHANCE MEDLEY 
 
 had not passed, and as he could not have known of 
 that Act, they thought it right he should have a pardon. 
 
 " Kast's Case " has suggested to some ingenious 
 minds the following legal puzzle : If the dying deposi- 
 tions of a prisoner-witness have been taken, and he 
 afterwards recovers, co\ild his statement be used against 
 him at the trial, if, for instance, it contained a confes- 
 sion ? The Act undoubtedly only contemplates such 
 depositions being read in the absence of the deponent, 
 and it might be argued that when he can be actually 
 called they cease to have any vahdity whatever. On 
 the other hand, the law permits any voluntary state- 
 ment by the prisoner, properly obtained, to be put in 
 against him, and it is difficult to see how a dying deposi- 
 tion is to be taken out of the category. 
 
 (Dec, 1896.) 
 
 The " Great Bug Case " must, so to say, look to its 
 laurels. In that famous precedent, in 1842, Lady 
 Marrable informed a Brighton landlady that she left 
 the latter's house, which she had taken for five weeks, 
 " as all the bedrooms occupied but one are so infested 
 with bugs that it is impossible to remain." The land- 
 lady sued, but in vain, as it was held that it is implied 
 in the letting of a furnished house that it is reasonably 
 fit for habitation, and, if it is not, the tenant may quit 
 without notice. But the mere presence of bugs, even 
 in overwhelming numbers, is not enough, as a tenant of 
 a flat found the other day in Bloomsbury County Court. 
 He took his flat unfurnished, and when he found that 
 the place was infested with these animals he declined 
 to pay his rent, but his landlord was successful because 
 
LEGAL AND CONSTITUTIONAL POINTS 217 
 
 the judge held that there was no proof of any implied 
 warranty that the house was free from insect life. Thus 
 the furniture makes all the difference, for some one 
 has hved in furnished lodgings, and the letter must 
 know whether they are infested or not, but an empty 
 house or flat the tenant can see for himself, and is as 
 well able to judge as the landlord. 
 
 Even in the case of furnished lodgings the tendency 
 of late years has been to diminish the liability of the 
 landlord. Thus, when scarlet fever broke out in fur- 
 nished apartments in 1894 and the lodger was put to 
 medical and other expenses, the Court of Appeal would 
 not allow him any damages against the landlord, on 
 the ground that when the rooms were let they were in 
 a habitable condition ; but there is no implied agree- 
 ment that they shall continue in that state during 
 the whole of the tenancy. 
 
 (Jan., 1897.) 
 
 The right of the House of Commons to compel the 
 attendance of a member is a subject which rarely comes 
 up, as it did on a recent day, but there can be no doubt 
 that the House has that right. There is a " constitu- 
 tional obUgation," according to Sir Erskine May, on 
 the members of each House to attend. Indeed, by 
 strict Act of Parliament no member may absent himself 
 without the leave of the House, and formerly, if he did, 
 he lost his wages. The House often summoned truants 
 by order, but May gives no instance later than 1785. 
 Generally, however, the attendance of individuals is 
 not enforced ; on extraordinary occasions there may 
 be a " call " of the whole House, when absentees are 
 punished by being committed to the custody of the 
 
2i8 A CHANCE MEDLEY 
 
 Serjeant-at-Arms. There has been no " call " since 
 1836, though one was moved in 1882. 
 
 (May, 1897.) 
 
 A new reason has been discovered for the interval 
 between decree nisi and decree absolute. A petitioner 
 who recently obtained the former has asked to have it 
 rescinded, having forgiven the (presumably) guilty 
 spouse. Such an application is probably unique in the 
 annals of the Divorce Court, which naturally granted 
 the prayer. 
 
 {June, 1897.) 
 
 It is stated that a new trial has been granted " in 
 America " in the case of a prisoner who had been found 
 guilty by a jury, on the ground of the incompetency of 
 his counsel ! Without a more authentic report the 
 story seems incredible. Moreover, it may be doubted 
 whether any counsel in any country could be so incom- 
 petent as to make an innocent man appear guilty. No 
 doubt guilty persons often escape through the clever 
 handling of their case, but, outside of Gilbertian fiction, 
 the spectacle of a criminal gravely pleading that he has 
 a grievance against his advocate for not being clever 
 enough, and that, therefore, he ought to be tried again 
 and acquitted, is hardly likely to be realised. 
 
 (June, 1897.) 
 
 From time to time the suggestion is humorously 
 made that marriages should be terminable contracts. 
 When some one proposed to Lady Mary Wortley Mon- 
 tagu that they should be like leases, renewable every 
 seven years, she reminded him of the usual clause as to 
 repairs of dilapidations. 
 
LEGAL AND CONSTITUTIONAL POINTS 219 
 
 Yesterday was the centenary of the death of one of 
 the greatest benefactors of the Bar who ever lived, 
 Peter Thellusson, whose name is immortalised in the 
 TheUusson Act (40 Geo. Ill, c. 78), passed in 1800, to 
 prevent the making of such extraordinary wiUs as his. 
 " No will," says Mr. Nash in his Life of Lord Westbury, 
 " according to Lord St. Leonards, ever came before the 
 courts upon which so much learning and thought had 
 been bestowed for the purpose of endeavouring to tear 
 it to pieces, and to counteract, and properly, the ambi- 
 tious views of the testator. The skill of the drafts- 
 man, with his perfect knowledge of real property law, 
 frustrated every such attempt." As late as 1856 it 
 was the object of much litigation. Bethell, Rolt, 
 Roundell PaJmer and Cairns were among those who 
 appeared. Cairns argued even then that now the accu- 
 mulation was at an end the will was void for uncer- 
 tainty. Since 1797 all the costs of all the parties had 
 come out of the estate, so it may be true that " the 
 estate was not much larger at its division than at the 
 testator's death," when it was computed that when the 
 corpus was distributed it would be worth between 
 twenty and thirty millions sterling ; originally £600,000 
 was tied up. 
 
 Mr. Nash, who says that in duration and magnitude 
 this litigation has probably never been equalled, tells a 
 good story of Bethell in this case. Some one proposed 
 to defer some minor point till " the day of judgment." 
 " Won't that be a very busy day ? " said Sir Richard. 
 
 (July 22, 1897.) 
 
 The value of legal fiction as an expedient to harmonize 
 laws breathing the spirit of one age with that of another 
 and more advanced time was strikingly demonstrated in 
 
220 A CHANCE MEDLEY 
 
 Mr. Justice Collins'srecent decision under the Sabbatarian 
 Act in the Queen's Hall case. In 1781 it was enacted 
 that places of public entertainment open on Sunday 
 " to which persons shall be admitted by the payment 
 of money " are to be deemed disorderly houses ! This, 
 the plain language of the Act, his lordship with happy 
 avdacity says means " to which no one is admitted 
 except by payment," and there may have been free 
 seats at Queen's Hall. So, when it was death to steal 
 to the value of forty shillings, juries used solemnly to 
 find that the most precious possessions were not worth 
 that sum. In the United States they have gone further. 
 A statute declared that there should be no drinking 
 bar within a mile of the public school. This was con- 
 strued that several such seminaries must be pulled 
 down. 
 
 (Aug., 1897,) 
 
 Mr. Justice Cave remarked, in holding a driver 
 liable for damage to a lamp-post, though that beacon 
 was too near the roadway, and not safe for traffic, 
 that when people knew that they must pay for any 
 injury they did they would find means to avoid it 
 for the future. This is an expansion of a dictum of 
 Westbury C. (distinctly obiter). When his horse bolted, 
 he put his head out of the window, and said to his 
 coachman, " Run into something cheap." 
 
 (Aug., 1897.) 
 
 Coincidently with the last stage in the delivery of the 
 Log of the Mayflower to the Governor of Massachusetts 
 — ^the handing of the receipt for the same to the Con- 
 sistory Court of London — appeeirs the official report of 
 the proceedings before that tribunal. It appears that 
 
LEGAL AND CONSTITUTIONAL POINTS 221 
 
 those proceedings were unique in their nature, and, 
 therefore, may form a valuable precedent. Dr. Tris- 
 tram, Q.C., the Chancellor of the Diocese of London, 
 said in his judgment that the only reported case " perti- 
 nent to the present application is in the matter of an 
 appHcation on the motion of her Majesty's Goverrraient 
 to the Prerogative Covirt of Canterbury in 1853 for 
 the delivery of the original will and codicils of the 
 Emperor Napoleon I which had been proved in that 
 Court on August 5, 1824, to Lord John Russell, her 
 Majesty's Principal Secretary of State for Foreign 
 Affairs, for the purpose of being made over to the 
 French Govenmient, upon a notarial copy thereof being 
 left in the registry of the Court." The Government 
 based their application on the ground of " public 
 policy." 
 
 Sir John Dodson, in delivering judgment, declined 
 to hold this ground conclusive, adding, " Undoubtedly 
 this Court, as all other Courts, is desirous to carry 
 into effect the views of her Majesty's Government ; 
 nevertheless, it must not venture to go beyond the 
 limits of legal authority." He followed, however, the 
 case of Sir Herbert Taylor in 1839, who made a codicil 
 at Rome to his wiU ; the papers were proved here, and 
 that codicil was afterwards delivered out for the pur- 
 pose of being sent to France, there to be placed in 
 proper custody. " Sir Herbert was beyond doubt a 
 domiciled Englishman, but Napoleon Bonaparte, 
 though a prisoner at St. Helena, did not, I conceive, 
 from that circumstance, lose his French domicile ; 
 moreover, his property in this country was very small " 
 (within the province of Canterbury it did not exceed 
 £600). Accordingly, the papers were decreed to the 
 legal authorities in France. 
 
 But in the present case the Court thought that the 
 
222 A CHANCE MEDLEY 
 
 entries in the famous register might involve " the 
 pecuniary interest of descendants of families named 
 in it in tracing and establishing their rights to succes- 
 sion to property," and, therefore, made stringent con- 
 ditions in handing the Log over. Thus a photographic 
 facsimile reproduction of the manuscript, verified by 
 affidavit, has had to be deposited with the Court before 
 delivery ; Mr. Bayard had to deliver it in person to the 
 Governor ; and all persons, for all time, are to have 
 access to it under reasonable conditions. 
 
 There was a curious sequel to the formal proceedings, 
 owing to the fact that between their beginning and end 
 Mr. Bayard had ceased to be the Ambassador from the 
 United States to this country, and the new Envoy 
 applied to have the Log delivered to him as the repre- 
 sentative of his Government. But Dr. Tristram came 
 to the conclusion that it would not be in accordance 
 with the practice of the Court or just to the parties in- 
 terested in the manuscript to vary his original decree. 
 Accordingly Mr. Bayard undertook, " not as Ambassa- 
 dor, but as an individual, to'act as the delegate of the 
 court." A curious and probably unique incident in this 
 case was the concurrence of the bishop in the original 
 petition to the court of his own diocese. He wrote at 
 the foot, " I concur in this petition. — M. Londin." 
 
 (Aug., 1897.) 
 
 An obscure subject is the authority of Parliament 
 over judicial appointments. " The Lord Chancellor," 
 says Todd in his Parliamentary Government, " is 
 privileged to take the Royal pleasure upon the appoint- 
 ment of puisne judges, and himself swears in the new 
 judge. He always informs the First Lord of the Trea- 
 sury and the Home Secretary who it is that he has 
 selected, but rather by way of information and friendly 
 
LEGAL AND CONSTITUTIONAL POINTS 223 
 
 concert, and the First Lord would not think of inter- 
 fering with the proposed appointment, unless, indeed, 
 it were very objectionable." It is said that Lord 
 Selborne once threatened to resign sooner than make 
 a judicial nomination proposed by Mr. Gladstone, and 
 that the Premier yielded. 
 
 " The judges' salaries are now made payable out of 
 the Consohdated Fund, which removes them still more 
 effectually from the uncertainty attendant upon an 
 annual vote in Committee of Supply" (Todd). But 
 while this expedient secures the judges' independence, 
 it deprives the House of Commons of the opportunity 
 of debating their appointment which would be afforded 
 by a vote on a yearly estimate. Nor could the Lord 
 Chancellor's distribution "of his patronage be attacked 
 in a motion to diminish his salary, for that, too, is 
 secured by permanent statute, and does not require 
 to be annually voted. But it does not appear that his 
 salary as Speaker of the House of Lords is in like case, 
 and his official conduct could be reviewed when it comes 
 up on the Estimates. 
 
 But probably the most convenient way for either 
 House to challenge a judicial appointment would be 
 by a direct resolution condemning it. There seems 
 to be no precedent for such a motion in the case of a 
 judge, but in the case of an Irish stipendiary magistrate 
 such a motion was actually made by the Marquis of 
 Clanricarde, and debated in the House of Lords on 
 May 6, 1844. It " was regarded as a censure upon the 
 Lord-Lieutenant for having made this appointment, 
 and upon the Imperial Government for having acqui- 
 esced therein," but was negatived without a division. 
 
 There is trouble ahead for the members of clubs 
 
224 A CHANCE MEDLEY 
 
 which are wont to have a " sweep " upon each import- 
 ant event of the year. In a recent case the Lord Chief 
 Justice expressed the opinion that every sweepstakes 
 got up in a club is a lottery, and as such is an offence 
 against the law. Any one, therefore, who took part in 
 the " sweep " would be liable to conviction should the 
 authorities see fit to set the law in motion. 
 
 (Aug, 1898.) 
 
 A very ancient jurisdiction has just been en evidence 
 — ^namely, that of the Vice-ChanceUor of the University 
 ■of Oxford. An undergraduate there was charged with 
 larceny before the city magistrates, and the University, 
 quite in the mediaeval style, demanded his body with a 
 view to trying him. Their claim was rested on an 
 ancient charter, perhaps that of 1244 or that of 1400-1, 
 a copy of which was produced in Latin. Now, the 
 fathers of the city, agreeably to the proverb, have 
 not apparently imbibed the learning of the place in 
 which (and on which) they hve, and they demanded 
 an English version of the old document ; but this was 
 not forthcoming, and they declined to part with their 
 quarry. If Blackstone, however, is right, they are 
 wrong, for he distinctly lays it down (with one of the 
 few autobiographical touches in his great work) that 
 " the Chancellor's Court of Oxford (with which Uni- 
 versity the author has been chiefly conversant, though 
 probably that of Cambridge hath also a similar juris- 
 diction) hath authority to determine . . . wherein 
 a privileged person is one of the parties ... all crim- 
 inal offences or misdemeanours under the degree of 
 treason, felony or mayhem." These greater offences 
 were to be tried in the Court of the Lord High Steward 
 
LEGAL AND CONSTITUTIONAL POINTS 225 
 
 of the University, and the prisoner was remitted even 
 from assizes to that tribunal. 
 
 {April, 1899,) 
 
 There has been a good deal of comment on the remark 
 of the American Ambassador in a speech that the 
 " extraordinary " English system of the loser paying 
 the winner's costs is imknown in the United States. 
 In the first place this is by no means always the case, 
 though it is the general rule. There is an infinite 
 variety of orders on this matter, and some costs the 
 loser may get " in any event." Then even in the most 
 favourable circumstances there are certain costs which 
 the winner cannot recover — ^the more is the pity ; 
 for when a litigant is clearly in the right, and not to 
 blame, he is entitled to an absolute indemnity from 
 expense ; even then he gets nothing for his trouble and 
 anxiety. And if the loser does not pay costs, who is 
 to pay — ^the State ? Is this the Transatlantic system ? 
 No doubt law is much cheaper in the United States, 
 perhaps because solicitor and counsel there are " both 
 one and the same," but except in the article of cheap- 
 ness we do not want to borrow this or any other feature 
 from American jurisprudence. But, undoubtedly, costs 
 ought to be lighter generally. 
 
 (May, 1899.) 
 
 One of the happiest mots in the Dre5rfus trial is the 
 following, which appeared in the Times : " It is abun- 
 dantly clear by this time that French jurisprudence, of 
 the military type at any rate, knows nothing of the 
 immortal dictum of Mr. Justice Stareleigh that ' What 
 the soldier said is not evidence.' " 
 
 (Aug., 1899.) 
 
226 A CHANCE MEDLEY 
 
 Most people will be surprised to learn that it was 
 decided in 1821 that the public have no common law 
 right of bathing in the sea. Perhaps, however, this 
 only means that they have no right of walking or driv- 
 ing on the beach to get there ; if once they can get into 
 the sea it seems they are within the law. " Bathing 
 in the sea," said one judge, ..." is not only lawful 
 but proper, and often necessary for many of the inhabi- 
 tants of this country." 
 
 (Sept. 1899) 
 
 Shopkeepers often seem to be unaware that if they 
 bend coin to test it they do so at their own risk. A 
 metropolitan magistrate made one refund a half- 
 sovereign to a customer. The former, doubting the 
 genuineness of a coin, had bent it, and insisted on 
 the latter giving him another. This he did, but proved 
 that the original was a good one. Hence he got his 
 second coin back, and costs, too. 
 
 Judges have often commented on the chronic reluc- 
 tance of justices to grant bail. Mr. Justice Mathew, 
 who has always been conspicuous in deprecating this 
 tendency, was moved, by some instances of long de- 
 tention of untried prisoners, to make a novel 
 suggestion. It is that, where bail has been refused, 
 application should be made to a judge in town by 
 post, a copy of the evidence being forwarded at the 
 same time, with such remarks as the magistrates 
 thought fit to make on their objection to accept bail. 
 
 (July, 1900.) 
 
 It occasionally happens that eminent counsel, by 
 
LEGAL AND CONSTITUTIONAL POINTS 227 
 
 arrangement among the parties, are allowed to go from 
 one side to the other, but the circumstances are excep- 
 tional. Lord Eldon told a story that he was once junior 
 to Mr. Dunning, who, forgetting for which side he was 
 retained, got up and argued against his own client ! 
 When his junior called his attention to the discrepancy, 
 he told the court he had now put the case against 
 himself as high as he could and would proceed to 
 answer it ! 
 
 Unless a contemporary is misinformed it has been 
 reserved for the ancient town of Stonehouse to revive 
 an extinct industry — ^namely, that of marriage broker- 
 age, for it is stated that at the local county court some 
 one has just recovered £3 as " commission " for pro- 
 curing a man a wife. It had, indeed, been generally 
 supposed that such contracts were illegal in the sense 
 of not being enforceable by law. Perhaps the only 
 ground for the story is that the judge thought the com- 
 mission agent was entitled to a sum as a solatium for 
 the extreme delicacy with which he presented his bill, 
 it having taken the form of a letter of congratulation 
 to the bride and bridegroom. But " the fool of a 
 law," being intent on the public impolicy of such proceed- 
 ings, has overlooked this redeeming feature. 
 
 (Feb., 1901.) 
 
 A really beautiful piece of htigation comes from 
 Southport. A passenger left his kid gloves, value a 
 few shillings, in the train ; when he demanded them 
 back the company asked for sixpence rent or demur- 
 rage. This he declined to pay, and sued the company 
 for the value, but the judge held that the company 
 
228 A CHANCE MEDLEY 
 
 had a lien on the gloves and gave them judgment and 
 costs. If there is a legal tariff of fines for things left 
 negligently in a cab, why not in a railway coach ? 
 
 (Feb., 1901.) 
 
 It is rather shocking to read that a coroner's jury at 
 Edingthorpe (Norfolk) has found a verdict of " wilful 
 murder " against a boy of twelve, who shot a girl of 
 nine. The old Saxon law, according to Blackstone, re- 
 garded twelve years as "the age of possible discretion," 
 and, after fourteen, innocence was not to be presumed 
 merely on the ground of youth. Now, the positive 
 law is that an infant under seven cannot be guilty of 
 an indictable offence ; after that limit, each case is to 
 be judged on its merits. 
 
 A little passage in an election petition case reads 
 oddly. Mr. Justice A. (to a witness) : " Do you mind 
 saying for whom you voted ? " Mr. Justice B. : "I 
 think you must not ask him that." Judicial sittings 
 are clearly not included in the Psalmist's apostrophe 
 to the pleasantness of brethren dweUing in unity. 
 
 The damages of £10,000 in a recent divorce suit 
 are, probably, the highest ever given by consent, but 
 not otherwise the record. In the Annual Register 
 for 1800 (December 2), a case in the King's Bench at 
 Dublin is mentioned where a country gentleman recov- 
 ered that sum for crim. con. ; and the same amount 
 has been given for arresting and indicting a man for 
 
LEGAL AND CONSTITUTIONAL POINTS 229 
 
 felony, out of revenge. Once a jury gave £500 for 
 knocking a man's hat off, and a new trial was refused. 
 
 (May, 1901.) 
 
 Every one who is not a waiter must applaud the 
 courage of a visitor who, staying at a hotel, ordered 
 a bottle of wine for lunch, but only consumed a third of 
 it at that festivity. When he asked for the remainder 
 at dinner he was informed that aU wine left at table 
 was waiter's perquisites. This view was supported 
 by the authorities of the hostelry ; but a summons 
 being issued for the value of the missing wine, they 
 paid the claim and costs, too. Both parties were 
 rightly advised. 
 
 (May, 1901.) 
 
 American ingenuity has invented a new cause of 
 action. A shipowner, relying on the weather forecast 
 of the United States Meteorological Ofl&ce, unloaded his 
 rice on a wharf. It got soaked, and he sued the Gov- 
 ernment for damages. But he found that though the 
 department might lie the action would not. 
 
 (July, 1900.) 
 
 The intelligent la5nTian may well be surprised to read 
 that Mr. Justice Ridley stopped the progress of a trial 
 at the Old Bailey because no alderman was " in the 
 building." Yet such is, perhaps, the law. The diffi- 
 culty is by no means a new one. When Lord Brougham 
 instituted the court in 1834 he provided that of those 
 in the commission to sit as judges, among whom the 
 aldermen of the City have been from time immemorial, 
 any two or more may" hear and determine " any case, 
 « 
 
230 A CHANCE MEDLEY 
 
 Common sense would suggest that this means that any 
 alderman who sits with the judge should hear the case 
 out from beginning to end as the latter must do. But 
 in the course of time the alderman has become a mere 
 lay figure, taking no part in the proceedings whatever, 
 and hence it was thought sufficient to make the quorum 
 of two if he or any other commissioner was " in the 
 building," even if he was at lunch, and, consequently, 
 it did not matter for any practical purpose if one alder- 
 man was " in the building " part of the time and another 
 the rest. This was solemnly held in 1869, when it 
 was attempted to upset a conviction of the notorious 
 Mme. Rachel, on the ground of the change of aldermen, 
 but Chief Justice Cockburn ridiculed the absurdity of 
 the situation, pointing out that in the case of the ordi- 
 nary judge siich a thing would be " an outrage on all 
 judicial propriety," and probably the House of Lords 
 would make short work of the " in the building " 
 theory. On one occasion, when the judge stopped 
 work for this reason, counsel suggested that they 
 should send to the Guildhall for Gog and Magog. 
 
 (May, 1902.) 
 
 A curious point of law has arisen in California owing 
 to a motor accident resulting in the death of a husband 
 and wife. Both were killed outright, and as there were 
 mutual wills in each other's favour the question of sur- 
 vivorship is the one element of importance. If the 
 husband survived his wife by a second, he would take 
 the property bequeathed to him in her wiU. If he 
 died before his wife the property bequeathed to him 
 in the event of his survivorship went to other persons. 
 The contest between these other persons and the heirs 
 of the husband turns on a question of fact upon which 
 
LEGAL AND CONSTITUTIONAL POINTS 231 
 
 there is no proof. The case is one which is similar to Wing 
 V. Angrave in our own courts in i860, where a husband 
 and wife were swept off the deck of a vessel by one wave, 
 the husband being a strong man who could swim well, 
 and the wife a weak woman who could not swim at all. 
 The House of Lords held that there was no presumption 
 of survivorship from age, sex, or circumstances, and 
 thus upheld the rule of English law, that in the absence 
 of proof there is no presumption of survivorship, and 
 the question must be treated as a thing unascertainable. 
 
 (Sept., 1902.) 
 
 In discussing in the Times, " What is a conviction ? " 
 Sir Herbert Stephen's allusion to the question whether 
 the late Lord Beaconsfield was for the greater part of 
 his pubhc life either a convict or an incomplete convict, 
 or not a convict at aU, has rather puzzled the faithful. 
 In 1838, a criminal information was filed against him 
 in the Queen's Bench for a libel on Charles Austin. He 
 let judgment go by default, and on November 22 
 appeared in court to hear his sentence. He was allowed 
 to speak, and having made a proper apology, the prose- 
 cution was withdrawn by consent of the court. The 
 Dictionary of National Biography says that he was 
 fined a shilling, but there is no mention of this in the 
 full report in the Times of November 23, 1838, of " The 
 Queen v. Disraeli, M.P." 
 
 (Dec, 1902.) 
 
 The rule that ignorance of the law is no excuse is 
 obviously a necessity of social life, otherwise every 
 guilty person would plead such ignorance. There are 
 some things, however, which it might be supposed even 
 
232 A CHANCE MEDLEY 
 
 the most ignorant layman could not fail to know, and 
 one of them occupied the Divorce Court. A man who 
 got a divorce married another woman the next day, 
 Down came the King's Proctor with a formal motion 
 to rescind the divorce on this ground ; but the gentle- 
 man — ^in whom, surely, " the triumph of hope over 
 experience " was more emphatically illustrated than it 
 ever has been before — successfully urged that he had 
 never heard of the difference between a decree nisi and 
 a decree absolute, and the bride-elect was equally 
 ignorant. Sir Francis Jeune incidentally remarked 
 (the gentleman having described himself as " a wid- 
 ower," on the second marriage) that strictly a divorced 
 man was only " a widower in law " — ^namely, not really 
 free to marry again for six months. The phrase may 
 help to solve the difficult question how to describe a 
 divorced woman. " A widow-in-law " is a pleasing 
 euphemism which confers distinct legal status and 
 respectability on an anomaly. 
 
 (Feb., 1903.) 
 
 A legal question has often been raised of late years 
 as to the right or privilege of a witness to defame 
 any one in his testimony. The leading case of Seaman 
 V. Netherclift in 1876 is of great general interest. Mr. 
 NethercUft was an expert in handwriting, and, as 
 such, had given evidence, as other experts had, in 
 a probate action that a will was " a rank for- 
 gery." There was strong evidence to the contrary. 
 The jury found for the will, and the judge (Sir James 
 Hannen) made some severe remarks upon the experts. 
 Soon afterwards Mr. Netherclift was again an expert 
 witness in a case of forgery at the GuHdhaU. When he 
 was cross-examined he was naturally taxed with the 
 
LEGAL AND CONSTITUTIONAL POINTS 233 
 
 judge's remarks in the previous case. He was about 
 to make a statement when the alderman stopped him, 
 as the matter was irrelevant, but he persisted in saying 
 that he stiU beUeved the signature to the will in that 
 case was a rank forgery, and that he should so beheve 
 to his dying day. Thereupon Mr. Seaman, a sohcitor, 
 who had drawn the will and attested it as a witness, 
 brought his action. Lord Coleridge, who tried it, left 
 three questions to the jury : Were the words spoken in 
 good faith as a witness ? Did he speak them as a 
 volunteer or otherwise than as a witness ? Did he 
 speak theni with malice ? They said No to the first 
 question and Yes to the other two, and awarded £50 
 dapiages. 
 
 But in the Court of Appeal Sir Alexander Cockburn, 
 L.C.J., laid it down in the broadest way that a witness 
 is absolutely privileged in his statements, even though 
 they be malicious. (This is because the pubhc interest 
 requires that a deponent should not be in the slightest 
 degree deterred from telling the whole truth.) But 
 he added that if the speaker was " altogether out of 
 the character of a witness," or maliciously said some- 
 thing having no reference to the inquiry, he might not 
 be protected, though he did not think that Mr. Nether- 
 chft's words fell within either of these categories. 
 This ruling has been accepted ever since. Anything, 
 said Amphlett, L.J., tending to disparage a witness 
 is relevant to the inquiry, and he suggested that for 
 wanton slander by a witness, punishment by the judge 
 for contempt of court might be the proper remedy, 
 or in an inferior court a prosecution for the obstruction 
 of the course of justice. 
 
 Equity is, of course, a term borrowed from morality. 
 
234 A CHANCE MEDLEY 
 
 but the legal relation between the two is seldom seen 
 so neatly as in a case where one partner gave notice to 
 another to leave the firm because the latter had been 
 fined for travelling without a railway ticket. That, no 
 doubt, is a wicked offence, but one would hardly think 
 antecedently that a conviction therefore would be seri- 
 ously detrimental to a drapery business, though, no 
 doubt, the customers peculiarly object to " shortage." 
 Nevertheless, the judge upheld the moral colleague, 
 who thus gets a dissolution, at any rate till the trial 
 of the action. 
 
 (Feb., 1904.) 
 
 The appearance of the King of the Belgians as a 
 defendant, in a personal capacity, in his own courts 
 gives English lawyers a mild shock. They are familiar, 
 of course, with the Crown as plaintiff or defendant, but 
 there is no legal provision for suing the Sovereign as 
 an individual for a debt or other breach of contract or 
 for damages. Indeed, as the tribimals are his courts 
 of justice, the anomaly of haling him before himself is 
 inconceivable, as, in effect, Charles I pointed out on his 
 trial — a bad precedent, by the way, not Ukely to be 
 followed. Perhaps, there is no pressing hurry in this 
 country for legislation to devise process against the 
 wearer of the Crown. But this immunity is by no 
 means shared by the Royal family, and Earl Russell, 
 in his English Government, proudly produces two in- 
 stances in which the law was successfully invoked against 
 the children of the Sovereign — one, an action against 
 Frederick, Prince of Wales, by Home Tooke's father 
 (about 1740) for trespass to his house, which adjoined 
 the Prince's, Leicester House ; and the other, a prose- 
 
LEGAL AND CONSTITUTIONAL POINTS 235 
 
 cution in 1758, against the Princess Amelia for stopping 
 up a footpath in Richmond Park. 
 
 (March, 1904.) 
 
 What is a " morganatic " marriage ? Professor 
 Skeat sajTS that the origin of the word is the common 
 German morgen ( = to-morrow), or morgengabe ( = a 
 morning gift), " a term used to denote the present 
 which, according to the old usage, a husband used to 
 make to his wife " on the morrow of the marriage. 
 Mediaeval Latin invented the form morganatica. As 
 for the institution, this authority cites Haydn {Dic- 
 tionary of Dates) as saying : " When the left hand is 
 given instead of the right, between a man of superior 
 rank and a woman of inferior rank, in which it is stipu- 
 lated that the latter and her children shall not inherit 
 the rank or inherit the possessions of the former. The 
 children are legitimate. Such marriages are frequently 
 contracted in Germany by Royalty and the higher 
 nobihty. Our George I was thus married." In Eng- 
 land, of course, there is no such marriage. By the 
 Royal Marriage Act of 1772, a descendant of George II 
 (other than the descendants of Princesses who have 
 married into foreign families) cannot marry without 
 the consent of the Sovereign unless he is over twenty- 
 five years of age, and waits a twelvemonth after giving 
 notice to the Privy Council of his intention to wed, and 
 during that period both Houses of Parliament do not 
 expressly declare their disapprobation of the proposed 
 miion. 
 
 There is a case of 1588 recorded where the jury were 
 so long out that the officials suspected that their stay- 
 
236 A CHANCE MEDLEY 
 
 ing power was not altogether constitutional, so they 
 searched them and found figs on some and pippins on 
 others. Whereupon there was an inquiry upon oath, 
 and two admitted the consumption of figs and three 
 the possession of pippins. The " whole hoggers " were 
 fined five pounds each, but their verdict was not set 
 aside, because the festivity was at their own expense 
 and not at that of a party. 
 
 It is rare that so little is known of a prisoner that not 
 even his name and address can be ascertained, but this 
 has happened in the case of the man who invited himself 
 to dinner at a restaurant as un unpaying guest. The 
 earliest instance of this reticence seems to have oc- 
 curred at the Old Bailey in 1822, and to have puzzled 
 much the authorities there, who were startled at the 
 idea of an indictment or a plea without a name, and 
 kept remanding the uncommunicative prisoner from 
 time to time. At last, when the judges were consulted, 
 they invented the formula, ' A person whose name is 
 to the jurors unknown, but who is personally brought 
 before them by the keeper of the prison," and this 
 description has been in use ever since, and cost the 
 prisoner in question, at the County of London Sessions, 
 six months' hard labour. 
 
 (Nov., 1904.) 
 
 There has been some discussion about the theory 
 that (British) persons born at sea belong to — i.e., are 
 settled in — ^the parish of Stepney. It has not a vestige 
 of legal validity ; there does not seem even to be a 
 case on the point. In 1814 The Gentleman's Magazine 
 mentions (p. 403) " a false saying in the Navy, ' Born at 
 
LEGAL AND CONSTITUTIONAL POINTS 237 
 
 sea, Stepney your parish.' " No doubt the mistake 
 arose from the fact that many seamen resided (as 
 no doubt they do stiU), and so had their settlement, 
 there. 
 
 At length we have a Prime Minister known to the 
 law, not that Sir Henry Campbell-Bannerman (or Mr. 
 Arthur Balfour, in whose reign the point actually arose) 
 has come into collision with the criminal or civil juris- 
 diction, but because his Majesty has expressly used 
 the title in a Royal Warrant defining the precedence of 
 the office. It can no longer be said that the Premier, 
 as such, has no legal status, and he may now even 
 hope for promotion, not to say apotheosis, into a 
 statute. It is a moment in our constitutional history, 
 for " we are told by Clarendon that nothing was so 
 hateful to EngUshmen, in his day, as a Prime Minister. 
 They would rather, he said, be subject to a usurper like 
 Oliver CromweU, who was first magistrate in fact as 
 well as in name, than a legitimate king who referred 
 them to a Grand Vizier. ... So recently as 1741 
 we find Sir Robert Walpole resenting the title of Prime 
 Minister as an imputation." (Todd.) It has been 
 as much a popular name as " Whip." Sir William 
 Anson tells us that it was Swift who actually invented 
 the title in an " Inquiry into the behaviour of the 
 Queen's last Ministry " (xvi. 19), say, just about two 
 hundred years ago, and distinctly recognised its novelty 
 then. Another point of interest at the moment is that 
 " no complete lists of existing Administrations have 
 ever been pubhshed by authority, nor is there any legal 
 record of the names of persons of whom any Cabinet 
 has been composed." (Todd.) 
 
 (Dec, 1905) 
 
238 A CHANCE MEDLEY 
 
 A woman who charged her husband with kicking her 
 said that though she could not stand hob-naUed boots 
 she didn't mind fists. The httle incident seems to 
 show that, in spite of our boasted progress and our 
 fiercely discussed education, we have not yet advanced 
 very far since the days of Blackstone. Writing of the 
 husband's Common Law right to chastise his wife, then 
 very nearly extinct, the learned commentator adds : 
 " Yet the lower rank of people, who are always fond 
 of the old Common Law, stiU claim and exert their 
 antient privilege." 
 
 It is rather startling to read the assertion that " the 
 air is free " as the solemn resolution of a conclave of 
 lawyers. The sentence, however, marks an interesting 
 moment in the history of international law. The 
 Institut de Droit International has just completed a 
 conference at Ghent, and one of their conclusions was : 
 " The air is free. The only rights that States have in it, 
 in peace or war time, are such as are necessary to their 
 preservation." The general rule here formulated 
 exactly corresponds to the ancient doctrine of an abso- 
 lutely free sea, the theory in each case being that 
 " effective control over large spaces of sea " being un- 
 maintainable by States, "it is in general insusceptible 
 of appropriation as property." (Hall.) This, of course, 
 in essence is the view of the old woman who, beholding 
 the ocean for the first time, in a day's trip, remarked 
 that she was glad to find something at last of which 
 there was enough for everybody. Just as in time the 
 principle as to the sea was limited by the exigencies of 
 territorial waters, so, no doubt, it will become necessary 
 to recognise a territorial atmosphere in respect of bal- 
 loons and wireless telegraphy. Indeed, in the Franco- 
 
LEGAL AND CONSTITUTIONAL POINTS 239 
 
 German war, the Germans shot at the French balloons. 
 In view of such contingencies, the second part of the 
 Ghent rule was, no doubt, framed. 
 
 (Oct., 1906.) 
 
 Peeresses have the right of being tried (for treason or 
 felony) by their peers — ^that is, the House of Lords. 
 " There was," says Blackstone, " no precedent for their 
 trial . . . till after Eleanor, Duchess of Gloucester, 
 wife to the Lord Protector, was accused of treason and 
 found guilty of witchcraft in an ecclesiastical synod, 
 through the intrigues of Cardinal Beaufort. This 
 very extraordinary trial gave occasion to a special 
 Statute, 20 Hen. VI c. 9 " (1442), which regulates the 
 present law. And they have — or had — ^the same privi- 
 leges from arrest for debt and trespass, as an uillucky 
 creditor and his " serjeants-at-mace " found in 1606, 
 when, by a ruse, they stopped Isabel, Countess of Rut- 
 land, " late the wife of Edward, Earl of Rutland," in 
 her coach, and carried her to the Compter in Wood 
 Street. Women could, of course, execute any of&ce 
 of inheritance, for example, a shrievalty, when, as 
 sometimes happened, it was hereditary. " So, in Eng- 
 land, the celebrated Ann, Countess of Pembroke, 
 Dorset, and Montgomery, had the office of hereditary 
 sheriff of Westmorland, and exercised it in person. 
 At the assizes at Appleby she sat with the judges on the 
 bench " [about 1650] (Co. Litt. Hargrave, 326). 
 
 The Prevention of Corruption Act has fluttered a 
 good many dovecotes unnecessarily. A firm of butchers 
 issued the following circular to its customers : 
 " Madam, — ^Under this Act it is illegal for us to give 
 
240 A CHANCE MEDLEY 
 
 your servants Christmas Boxes without your consent. 
 We shall esteem it a favour if you will hand your cook 
 enclosed check, signed, or instruct her otherwise as to 
 your wishes, etc., etc." On the "enclosed check" 
 are the words, " You have my permission to give my 
 cook a Christmas Box, on presentation of this check. 
 . . . Please present at ." 
 
 Any one who wishes to get a glimpse of the way bills 
 are drafted — statutes while you wait — should look at 
 Lord Thring's amusing introduction in his Practical 
 Legislation, where, by the way, there is an interesting 
 contrast between Mr. Gladstone's and Mr. Disraeli's 
 methods. " Here," he says, " is an amendment pro- 
 posed by a Queen's Counsel in 1865 : ' Every dog found 
 trespassing on inclosed land unaccompanied by the 
 registered owner of such dog or other person who shall 
 on being asked give his true name and address, may be 
 then and there destroyed by such occupier or by his 
 orders.' " 
 
 A judge rebuked counsel who had volunteered 
 his opinion of the innocence of his client. This is 
 an old story, and it cannot be denied that great 
 advocates have offended against what may be called 
 the impersonality of counsel, but never without protest 
 from bench or bar. The philosophy of the matter was 
 admirably put by the late Dr. Showell Rogers in his 
 Ethics of Advocacy: "It is precisely because the 
 character or eminence of a counsel is to be wholly dis- 
 regarded in determining the justice or otherwise of his 
 client's cause that it is an inflexible rule of forensic 
 pleading that an advocate shall not, as such, express 
 
LEGAL AND CONSTITUTIONAL POINTS 241 
 
 his personal opinion of, or his belief in, his client's case." 
 Paley, he points out, went so far as to say that this was 
 an instance of " falsehoods which are not lies," and he 
 adds, " This doctrine is the more astounding in a moral 
 philosopher, assuming as it does that an advocate is 
 justified in asserting his belief in his client's case, not 
 only when he has such belief, but when he has it not ! 
 The only true rule is that, as advocate, he must not 
 express his personal opinion in any case. ... If an 
 advocate were to be permitted to express his personal 
 opinion of the justice of his case, the interests of clients 
 would often suffer. For it would foUow that in cases 
 where such an opinion was not, and could not, honestly 
 be expressed, the inference that his opinion was 
 adverse would, and with good reason, be irresistibly 
 drawn ; just as a prisoner, who now has the opportunity 
 of going into the witness-box to give his version of the 
 case and refrains from doing so, runs a considerable 
 risk of having his innocence suspected." 
 
 It is a long time since there has been a judgment so 
 interesting to both branches of the profession, as such, 
 as a recent one of Mr. Justice Parker's releasing a client 
 from the obligation of paying a counsel's fee of a hun- 
 dred guineas, which had, in fact, been paid by the solici- 
 tors. The learned gentleman in question had given 
 an opinion adverse to the client's case, but the latter, 
 as often happens, had insisted on going on. The solici- 
 tors, naturally, desired to brief the gentleman who had 
 advised, but to this the client positively objected. The 
 solicitors pointed to the " etiquette " of the profession 
 (as they thought), and the client acquiesced. Ultim- 
 ately the latter objected, and his view has been upheld 
 by the judge This, surely, is the commonsense view. 
 
242 A CHANCE MEDLEY 
 
 The rough-and-ready rule " once in a case always in a 
 case " is a very proper principle for its purpose — ^i.e., 
 in normal cases, but, at any rate, cannot bind any one 
 not in the profession. It is quite true that, for practical 
 purposes, a counsel who is in doubt about his law will 
 (except in extreme cases) conduct his case as well as 
 one who is " cocksure " ; but the lay client naturally 
 does not prefer an advocate who (as he would put it) 
 does not " believe " in his case, so long as he can get 
 another who does. Did not Mr. Pickwick teU Serjeant 
 Snubbin himself that, much as he appreciated his ser- 
 vices, if he did not believe in his (Mr. P.'s) case he 
 would rather not have him ? Moreover, it is in the 
 interest of the profession that the client should feel 
 himself as free as in any other business transaction, 
 and one cannot help feeling that the legal gentlemen 
 who allowed this case to come into court have not done 
 any good to either branch. 
 
 (Nov., 1907.) 
 
 Englishmen are justly proud of having supplied the 
 bulk of their law to all the English-speaking peoples 
 of the world, but the application of some of the prin- 
 ciples so supplied certainly improves on methods at 
 home— at any rate, in point of rapidity. Thus, in the 
 accounts of the " graft " trials in San Francisco, it is 
 stated that — quite incidentally — a gentleman of Los 
 Angeles, feeling himself aggrieved by a libel in a San 
 Francisco journal, kidnapped the editor in the streets 
 of that city, put him into a motor-car, drove him thirty 
 miles and then bundled him into a reserved compart- 
 ment in an express train bound for Los Angeles. So 
 far from this raid having been lawless, it was expressly 
 designed in the interest of justice, for the gentleman 
 
LEGAL AND CONSTITUTIONAL POINTS 243 
 
 from Los Angeles had more faith in — ^perhaps more 
 knowledge of — ^his local Bench than that of the capital, 
 and merely proposed to transfer the venue thither ; 
 but this by the way. The flattering 9.doption of our 
 legal institutions is exemplified by what happened next. 
 A friend of the rapt editor got scent of the abduction 
 and, with a celerity which eVen the ravishing motorist 
 might have envied, proceeded to make a legal record. 
 He telephoned to some one at a place where the train 
 was due to stop, to get a writ of habeas corf us and serve 
 it on the captors at the railway station ! This was 
 done, copies of the writ were served ind:^scriminately 
 on the train officials, guards, driver, conductors, etc. ; 
 the captive was " dug out," taken there and then to the 
 Superior Court — ^no doubt an august tribunal — " a 
 special session " was held, and he was promptly 
 " bailed." Exeunt omnes. Really Mr. WeUer Senior's 
 admiration of the " have-his-carcass " as a legal engine 
 has been justified and the lav/ for ever vindicated from 
 delay in California. 
 
 {Jan., 1908.) 
 
 It is to be hoped that the judgment of the Court of 
 Appeal in Wilson v. Carnley will finally dispose of the 
 theory that the promise to marry by a married person 
 will in any circumstances be held good in law. Such a 
 theory can lead to nothing but harm. The cases where 
 a dying wife has indicated the successor to her " vacant 
 place " — as in David Copperfield — belong to a very 
 different order of ideas to that which has supplied the 
 recent cases. Could it be reasonably suggested that a 
 man or woman who was engaged to be married would 
 be justified in engaging him or her self if the first con- 
 
244 A CHANCE MEDLEY 
 
 tract fell through ? And if not in the case of a single 
 person, why in the case of a married one ? 
 
 (Feb., 1908.) 
 
 It is stated that the prisoner in the Bournemouth 
 murder case in which a jury at Winchester have just 
 disagreed will not be tried again tiU November at the 
 Winter Assizes. Even for our circuit system this is 
 pretty bad. It cannot be said that no man about 
 whom a jury disagree should be tried again nor that 
 some interval should not elapse between the two hear- 
 ings, but it is certainly a scandal that this man should 
 remain five months longer imtried in prison, for nothing 
 but organization is wanted to make the interval as short 
 as is thought necessary. It is true that other charges 
 not on bail have occasionally to be delayed in this way, 
 but the suspense in the case of a trial for life is so pecu- 
 liarly shocking that no one would complain if reform 
 was begun in second trials for murder by some special 
 arrangement. For example, the judge might return at 
 an early date to re-try the case. Or, possibly, " Pal- 
 mer's " Act might be utilised, and the case tried at the 
 Central Criminal Court. It is true that that statute 
 has only been put in force when there was reason to 
 believe that, owing to local excitement or prejudice — 
 such as existed in the case to which it owes its origin — 
 a fair trial could not be had in the country. But the 
 words are when " it is expedient to the ends of justice." 
 Surely it is so expedient that prisoners under the shadow 
 of the gallows should be put out of their misery. Why 
 should the Court of Criminal Appeal not have the power 
 of saying when and where this man shall be re-tried ? 
 
 , (June, 1908.) 
 
 [He was released without a second trial]. 
 
LEGAL AND CONSTITUTIONAL POINTS 245 
 
 More people will probably be interested in the follow- 
 ing sentence in the Report of the Metropolitan Police 
 Commission than in the whole of the rest of it : " The 
 D'Angely Case. — ^The arrest of Eva D'Angely by P.C. 
 Page was justified, and the conduct of P.C. Page 
 and the other police officers and constables concerned 
 was discreet and correct." This cold official summary 
 of a " sensation " contrasted with the heat of contro- 
 versy it raised at the moment is a reminder that popular 
 feeling at boiling point ought not to be allowed to influ- 
 ence a Minister, as, happily, it did not in this instance 
 of imposture. 
 
 That Report will, no doubt, be minutely dissected. 
 At the moment one important passage may be singled 
 out : " According to our system, from the moment a 
 man is arrested down to the time he is brought before 
 a magistrate he is in the hands of the police. According 
 to the Scottish system, the deputy of a public officer, 
 who has no connection with the police, deals with the 
 case as soon as the prisoner is brought to the police- 
 station. There is, therefore, an earlier check upon 
 the action of the police. We think it right to caU 
 attention to the system prevailing in Scotland in order 
 that the authorities may consider whether it would be 
 expedient, in view of the difficulties under which the 
 Metropolitan Police labour, to create in the Metropolis 
 an officer with rights and duties corresponding to those 
 of the Procurator Fiscal." The Commissioners are 
 quite aware of the obstacles to such a proposal. 
 
 (July, 1908.) 
 
 The development of what will be known as Sir Timo- 
 thy O'Brien's case will be watched with as keen interest 
 by lawyers on this side of St. George's Channel from 
 
246 A CHANCE MEDLEY 
 
 their point of view, as by the general pubhc from theirs. 
 No assumption whatever as to the actual facts can be 
 made until the allegations are threshed out in open 
 court, but the general law may be stated. There seems 
 to be no precedent of a charge being brought of attempt- 
 ing to communicate with a juryman in a civil case, 
 though there are plenty of instances of illegal attempts 
 on jurors in criminal trials. " Embracery," however, 
 as it is called, is a crime which clearly does not depend 
 on the sort of trial proceeding : it is defined by Haw- 
 kins, about 200 years ago, thus : " It seems clear that 
 any attempt whatsoever to corrupt or influence or 
 instruct a jury, or anyway to incline them to be more 
 favourable to the one side than to the other, by money, 
 promises, letters, threats, or persuasions, except only 
 by the strength of the evidence in the argrunents of 
 the counsel in open court at the trial of the cause " is 
 embracery, whatever be the verdict. The law, he goes 
 on, so abhors anything of the sort that " it wiU not 
 suffer a mere stranger so much as to labour a juror to 
 appear and act according to his conscience." 
 
 (July, i9o8>) 
 
 If it be true, as has been publicly stated, that Sir 
 Ralph Littler, K.C., Chairman of the Middlesex magis- 
 trates, has brought actions for libel against newspapers 
 in respect of criticism of his judgments at Quarter 
 Sessions, we must go back a very long way for this 
 course of procedure on the part of a judge of a jury 
 court. It is common knowledge that a whole panoply 
 of criminal sanctions — contempt of court, informations, 
 indictments, etc. — ^protects the Bench from insult, and 
 even disrespect. But (it seems) in modem times pun- 
 ishment of the offender by civil action claiming dam- 
 
LEGAL AND CONSTITUTIONAL POINTS 247 
 
 ages is unknown, except at the instance of justices of 
 the peace, whose summary jurisdiction has been 
 attacked, and they, of course, do not possess the more 
 powerful weapons of redress used by the superior courts. 
 Almost the latest instance was in 1593 when Dr. Julius 
 Caesar, Judge of the Admiralty, sued one Curseny in 
 the Queen's Bench (at St. Albans) for saying that a 
 sentence which he had pronounced as judge against 
 the defendant " was corruptly given," and he got 
 two hundred pounds damages, which would represent 
 a much larger sum to-day. Another, perhaps the only 
 other, reported case was in 1639, and happens to have 
 great historic interest. Mr. Justice Hutton was one 
 of the judges who were for John Hampden against the 
 Crown in the Ship-Money Case. Soon after one Hari- 
 son, a " Batchelor of Divinity and Parson," came into 
 the Court of Common Bench, where the judge was sit- 
 ting, and said, " I accuse Mr. Justice Hutton of High 
 Treason." He was duly indicted in the King's Bench, 
 and fined five thousand pounds to the King, " and 
 Justice Hutton preferred his bill against him there and 
 recovered ten thousand pounds damages." Hutton 
 reports the case himself. 
 
 There cannot be the smallest doubt that such an 
 action lies to-day. Indeed, sometimes it may be the 
 most appropriate course. Thus, in 1899, the late Lord 
 Morris, dehvering the opinion of the Privy Council, 
 said : " The power summarily to commit for contempt 
 of court is considered necessary, for the proper adminis- 
 tration of justice. It is not to be used for the vindica- 
 tion of the judge as a person. He must resort to action 
 for libel or criminal information . . . when a trial 
 has taken place and the case is over the judge or the 
 jury are given over to criticism." Of the nature of 
 that criticism, Mr. Justice Fitzgerald said, in an Irish 
 
248 A CHANCE MEDLEY 
 
 case, in 1868, in which the late A. M. Sullivan and 
 Richard Pigott were defendants, " a writer may freely 
 criticise the proceedings of courts of justice and of 
 individual judges — ^nay, he is invited to do so, and to 
 do so in a free and fair and liberal spirit," provided 
 that he does it " without malignity, and not imputing 
 corrupt or malicious motives." 
 
 (Oct, 1908). 
 
 There does not seem to be any precedent for a 
 Cabinet Minister moving to set aside a subpoena until 
 yesterday, when the Prime Minister and the Home 
 Secretary, summoned by this process to the Leeds 
 Assizes, successfully did so. The older course has been 
 to disobey it, where it was clearly vexatious, as, per- 
 haps, may be said in the present instance. Thus, in 
 1835, 3-11 attachment against Lord Brougham, ex-Lord 
 Chancellor, who had not answered on subpoena, was 
 refused, when the judge at the trial stated that his 
 evidence would not have been material. In 1839, 
 when similar process was sought against Lord John 
 Russell, Home Secretary, and Mr. Fox Maule, his 
 Under-Secretary, for not producing documents, the 
 Court excused them because the document would not 
 have been admissible in evidence. Bentham said in 
 1790, " were the Prince of Wales, the Archbishop of 
 Canterbury, and the Lord High Chancellor to be pass- 
 ing in the same coach while a chimney-sweeper and a 
 barrow-woman were in dispute about a halfpenny- 
 worth of apples, and the chimney-sweeper and the 
 barrow-woman were to think proper to caU upon them 
 for their evidence, could they refuse it ? No, most 
 certainly not." " We remember," says a writer in 
 the Law Magazine (1841), " one case, a prosecution for 
 
LEGAL AND CONSTITUTIONAL POINTS 249 
 
 blasphemy, in which the defendant, by way of showing 
 the divided state of opinion on theological subjects, 
 actually subpoenaed the heads of all the religious per- 
 suasions he could hear of, and when the day of trial 
 arrived these found themselves all shuffled up together 
 in the waiting-room — ^the Archbishop of Canterbury 
 and the High Priest of the Jews being of the party." 
 In Scott's Life of Napoleon it is mentioned that when 
 Napoleon was on the Bellerophon in British waters 
 an attempt was made to subpoena him for a trial, but 
 the document could not be served. 
 
 (Nov. 19, 1908.) 
 
 The City Justices have held a session of a rare 
 sort to determine whether certain persons are entitled 
 to be deemed " merchants." The importance of the 
 question is due, as the Secondary — an official, by the 
 way, who only survives in the City — ^pointed out in a 
 learned argument to the fact that " merchants " 
 are entitled to be put on the "special" jury list, 
 and so, in fact, get exemption from common juries. 
 As Mr. Hayes said, this, though the practice, 
 is not the law. Special jurors are not exempt from 
 serving on any juries, but they are not, as a rule, 
 summoned to any but special juries, and as there are 
 comparatively few of these relatively to the commoner 
 variety, they escape, 
 
 (Dec. 10, 1908.) 
 
 Guiscard's case is not only most interesting historic- 
 ally and legally, but has the advantage of being 
 checked by no less a writer than Swift. Guiscard was 
 a treasonable French nobleman who, being under 
 
250 A CHANCE MEDLEY 
 
 examination by the Privy Council on March 8, 1710-11, 
 suddenly with a penknife stabbed Harley, the Prime 
 Minister (as we should now call him), probably inr end- 
 ing to assassinate him. St. John (Bolingbroke) " gave 
 him a wound, as did the Duke of Ormond and the Duke 
 of Newcastle " (Swift, Narrative), probably with swords. 
 Then " the messengers laid hold of him, and tore his 
 coat," and at last secured him. On the 9th Swift 
 writes to Stella {Journal) : " They say Guiscard wiU 
 die with the wounds Mr. St. John and the rest gave 
 him." The end is told in the " Narrative " : " Not- 
 withstanding the surgeons' and physicians' art and care, 
 M. de Guiscard died in Newgate. His woimds, of 
 which he received four in the forepart of his body, were 
 cured ; the fifth was in his back, which, the surgeons 
 deposed, was not mortal. The jiuy gave in their ver- 
 dict ' That his bruises were the cause of his death.' 
 It appeared, upon the examination of Mr. Wilcox, the 
 Queen's messenger, that it was he that wounded the 
 marquis in the back and gave him those bruises of 
 which he died." Writing again to Stella, he says : " The 
 coroner's inquest have found that he was killed by 
 bruises received from a messenger, so to clear the 
 Cabinet Counsellors from whom he received his wounds." 
 {Journal, March 17.) The sequel is remarkable, and 
 creditable to the EngUsh love of legality. Despite 
 the universal detestation of the crime, a coroner's jury 
 having found an inculpating verdict, Wilcocks and his 
 assistants, if not the Privy Councillors, would un- 
 doubtedly have been put on their trial for the murder 
 or manslaughter of Guiscard if Parliament had not 
 interfered. By 9 Ann, c. 16, after a recital that Guis- 
 card " was necessarily and unavoidably bruised and 
 wounded and is since dead," it is enacted that " Nathan 
 Wilcocks, who ... is found to have given him . . . 
 
LEGAL AND CONSTITUTIONAL POINTS 251 
 
 Guiscard several mortal bruises of which he died ; and 
 aU and every other person and persons, who were assist- 
 ing in the defence of Robert Harley and in the appre- 
 hending and securing the said Guiscard, and did, in 
 so doing, assault, bruise or wound him, shall be and are 
 hereby indemnified and saved harmless therefore ; arid 
 such their actings and doings are hereby declared to 
 have been necessary and lawful." 
 
 (Jan. 28, 1909.) 
 
 Seldom has a judgment interested directly so many 
 people as that of the Colne (Lanes) County Court Judge 
 on February 9, giving damages (five shillings) and costs 
 to a railway passenger against the company for the 
 discomfort he had suffered by having a first-class com- 
 partment in which he was (lawfully) travelling invaded 
 by a number of third-class passengers in excess of 
 the number of seats. It is to be wished that more, 
 many more, mere individual passengers of any class 
 would bring such actions, for probably the judgment 
 did not proceed on the ground that the surplus riders 
 were not of the first class (though this may conceivably 
 be the law), but on that that a passenger contracts for so 
 many co-traveUers at the most, and no more. It is 
 high time that the great canon of travel was asserted 
 — one man one seat — and this is independent of fiscal 
 differentiation between riders. 
 
 (Feb., 1909.) 
 
 Mr. Asquith, in reply to a question in the House of 
 Commons, admitted that the modern practice was that 
 at an interview with a foreign Sovereign the King 
 should be accompanied by the Secretary of State for 
 
252 A CHANCE MEDLEY 
 
 Foreign Affairs, but explained the fact that that official 
 had been replaced by the Secretary of State for the 
 Colonies during the recent visit to Germany by the prin- 
 ciple that, constitutionally, one Secretary of State is 
 as good as another. This is theoretically correct, as 
 Sir William Anson, M.P., points out, by reason of the 
 Interpretation of Terms Act, 1889, whereby " we are 
 reminded that there is no duty of any one Secretary of 
 State which, unless Parliament enacts otherwise, may 
 not be discharged by any other Secretary of State." 
 But, he continues, " nevertheless, the functions of the 
 departments are practically quite distinct, nor would 
 any one suppose that the Home Secretary was the 
 Secretary of State referred to in a MiUtary Lands Act, 
 or that the Secretary of State for India was the officer 
 on whom powers were conferred by a Factory Act." 
 
 (Feb., 1909.) 
 
 i What is to be done with the persons who make false 
 confessions ? A judge once wittily suggested that they 
 could be charged with getting board and lodging in 
 prison by false pretences. But, even if they are not 
 convicted, or are on bail — so that no such indictment 
 would lie — ^they give a lot of trouble to the not under- 
 worked poUce. A new misdemeanour might be created 
 for their benefit. 
 
 There is an element of amusement in the discovery 
 that a church in which, since its opening in 1850, there 
 have been nearly a thousand marriages never has been 
 licensed for this useful purpose. Prima facie, such 
 marriages are invalid, and it is odd that no play writer, 
 in search of a plot, has availed himself of this motif — 
 
LEGAL AND CONSTITUTIONAL POINTS 253 
 
 as has been done with signal success in respect of the 
 question whether a marriage ceremony took place 
 just on one side or just on the other of the border line 
 between England and Scotland. What is, perhaps, 
 odder is that no husband or wife seems to have taken 
 advantage of any such informality. No doubt the time 
 is short, for a validating Act is passed as quickly as 
 possible, as happened in 1901, when marriages cele- 
 brated as far back as 1828 were vahdated, and in 1903. 
 Moreover, in all these cases the httle accident hap- 
 pened in out-of-the-way villages, so that, perhaps, the 
 unconscious spouses do not know the legal potentiaH- 
 ties. Since 1905, too, the Home Secretary has power 
 to make a provisional order " removing the invahdity 
 or doubt," which has to be confirmed by Parliament. 
 StiU, suppose an inappreciative spouse seized on the 
 technicality and was married again before the invalidity 
 was cured. What would be his or her or their position ? 
 
 (April, 1909.) 
 
 In some quarters there has been a " scare " about a 
 rise in the price of bread in the immediate future. 
 It may therefore be worth while to quote a summary 
 of the law as it affects poor people (from the Encyclo- 
 paedia of the Laws of England) : The sale of bread must 
 be by weight. The weight of the quantity of bread 
 sold for a particular price must be ascertained, either 
 before it is sold or exposed for sale, or else, if necessary, 
 in the presence of the purchaser. But bread sold from 
 a cart need not be weighed, unless the buyer expressly 
 demands it. The weighing must show the weight of 
 each particular loaf (not of the whole " order "). All 
 this does not apply to "French or fancy bread or rolls " 
 in the words of the Act of 1836, but in 1869 a Court 
 
254 A CHANCE MEDLEY 
 
 said that what was " fancy bread " and a luxury in 
 1836 had become quite common articles of consumption 
 by 1869 — e.g., " cottage " and " tin " loaves — ^and 
 that such bread must be sold by weight. The test of 
 " fancy ^' depends on the times. It is stated that 
 magistrates have often decided that in the absence of 
 any statement as to weight by the baker the loaf shall 
 be taken to be intended to weigh either two or four 
 pounds. What may be used in making bread is pre- 
 scribed by statute : alum may not. All bread not 
 made of wheat must be marked " M." The fine for 
 putting a forbidden ingredient in bread is ten pounds, 
 and millers incur a penalty of twenty poimds for adul- 
 terating corn meal or flour. In London the bread 
 laws are vigilantly enforced by the officers of the County 
 Council. 
 
 (April, 1909.) 
 
 One of the most curious " constitutional " anomalies 
 even in this country is to be found annually in con- 
 nection with the Budget. It is that any resolution 
 which the Committee of Ways and Means may pass 
 when the Chancellor of the Exchequer makes his motion 
 or motions at once has the effect of law. As such mo- 
 tions, imposing new taxation, are generally made and 
 carried in the sitting in which the annual statement 
 is made, merchants a:nd others who want to escape 
 imposts which they apprehend, have to make their 
 arrangements before Budget day, as the next day may 
 be too late. Hence the feverish activity in taking 
 certain commodities out of bond of which at this season 
 of the year we sometimes hear. A note in the last 
 edition of Sir Erskine May's Parliamentary Practice puts 
 the position clearly. " An anticipatory authority is 
 
LEGAL AND CONSTITUTIONAL POINTS 255 
 
 imparted by usage to the resolutions of the Committee 
 of Ways and Means which impose or alter taxation. 
 Under orders from the Treasury, although statutory 
 legal' effect may not for some time be given to these 
 resolutions, the reduced or the increased duties are 
 collected from the date prescribed by the resolutions, 
 as soon as they are agreed to by the Committee, and 
 from the day following that upon which they are agreed 
 to by the Committee when no date is specified in the 
 resolution. These proceedings are, at the time, without 
 legal authority ; but they are subsequently legalised 
 by the statute under which those altered duties are 
 levied. Thus, in 1890, for example, the resolution in- 
 creasing the duty on spirits was moved and passed 
 by the Committee of Ways and Means on April 17 " 
 (Budget day), " and the increased duty began to be 
 charged on the following day. The resolution of 
 the duty on tea, as from May i, was agreed to by the 
 Conmiittee on April 22, and took effect from the day 
 specified in the resolution. The Customs and Inland 
 Revenue Act, 1890, accordingly enacted that the 
 altered duties should be charged and paid on and after 
 April 18 and May i respectively." 
 
 (April, 1909.) 
 
 It is curious that in recent controversies it has always 
 been assumed that the common law absolutely required 
 a witness " to kiss the book." It has been reserved for 
 Judge Willis to point out in his court that this is not 
 so : whatever the custom was, about two hundred and 
 fifty years ago the law was laid down differently. In 
 1657 (according to 2 Siderfin 6), in the case of Button 
 v. Colt, Dr. Owen, Vice-Chancellor of Oxford, and a 
 very learned man, being a witness for the plaintiff, 
 
256 A CHANCE MEDLEY 
 
 refused to swear in the usual manner by laying his 
 right hand on the Book and afterwards kissing the 
 latter. But he had the Book opened before him, and 
 raised his right hand. Whereupon the jury prayed 
 " the discretion " of the Court whether they were to 
 regard his testimony like that of any other witness. 
 And Glin, Chief Justice, told them that in his opinion 
 he had taken as good an oath as any other witness, but 
 said that if he [apparently, the Chief Justice] was to 
 be sworn, he would put his right hand on the Book. 
 As Owen was an eminent Puritan divine, it may be 
 assumed that his objection to kissing the Book was 
 theological rather than sanitary, but there seems to 
 be no reason to doubt the Chief Justice's law. 
 
 (April, 1909.) 
 
 The coroner at Barrow-in-Furness, who bound over 
 a recalcitrant jury to appear at the next assizes of 
 the county, followed an ancient practice naturally 
 not often wanted. The earliest instance seems to 
 have been in Herts in 1617. The coroner had shown 
 great patience, and " adjourned them from time to 
 time and from place to place," and at last he sent 
 them to the assizes, where they were fined, and " the 
 Court commended the coroner for his care in this busi- 
 ness." 
 
 (May, 1909.) 
 
 The ready actor who pleaded as an excuse for not 
 serving on a jury at the County of London Sessions 
 that he was in law " a rogue and a vagabond " showed 
 himself a better advocate than lawyer, for the law has 
 long ceased to attach any stigma to his profession. It 
 
LEGAL AND CONSTITUTIONAL POINTS 257 
 
 is true that as far back as 1572 an Act of Parliament 
 declared that " all fencers, bearwards, common players 
 in interludes, and minstrels (not belonging to any 
 baron of this realm or to any other honourable person- 
 age of greater degree)," wandering about without the 
 license of two justices of the peace, was to be deemed a 
 rogue and a vagabond, and as such was liable "to be 
 grievously whipped and burned through the gristle 
 of the right ear with a hot iron of the compass of an 
 inch about." By 1774 the class under the ban is much 
 larger. " All fencers and bearwards, all common 
 players of interludes and all persons who shall for hire, 
 gain, or reward, act, represent, or perform, or cause 
 to be acted, represented, or performed any interlude, 
 tragedy, comedy, opera, play, farce, or other entertain- 
 ment of the stage, or any part or parts therein, not being 
 authorised bylaw, all minstrels, jugglers, etc.," are to 
 be deemed rogues and vagabonds (Vagrant Act). 
 But by 1824, when the existing Vagrant^ Act was passed, 
 the priests and priestesses of the theatre had escaped 
 from, at any rate, this sort of legal attention, and (we 
 believe we are correct in stating) no statute in force still 
 recalls the nomadic stage of the actor. 
 
 Horce-racing seems first to have engaged the atten- 
 tion of the Legislature in 1740, when the preamble of 
 an Act " to restrain and prevent the excessive increase 
 of horse races " (c. 19) states that " the great number 
 of horse races for small plates, prizes, or sums of money 
 have contributed Very much to the encouragement of 
 idleness^ to the impoverishment of many of the meaner 
 sort of the subjects of this kingdom, and the breed 
 of strong and useful horses hath been much prejudiced 
 thereby." So a motherly Parliament decreed that 
 
258 A CHANCE MEDLEY 
 
 horses must be entered by their owners, and no owner 
 was to enter more than one at a time : no plate under 
 the value of £50 was to be run for on penalty of two 
 hundred pounds. Five-year-olds were to carry ten 
 stone, six years eleven stone, and seven years twelve ; 
 horses carrying less weight were to be forfeited, and 
 the persons entering such were to be fined £200. j^ Every 
 race was to be begun and ended on the same day. 
 Matches were only to be run at Newmarket Heath or 
 Black Hambleton in Yorks, etc., etc. At the same time, 
 opportunity was taken to amend the Act " for the 
 more effectual preventing of excessive and deceitful 
 gaming." The enactment as to the weight to be 
 carried was repealed a few years later, and the rest of 
 the Act long ago. Now the only legal restriction is 
 contained in an Act of 1879, whereby horse-races are 
 illegal within ten miles of Charing Cross unless a Mcence 
 has been obtained (now, from the County Council). 
 Since 1874 there has been no tax on racehorses. 
 
 Attention has been called to the creation of a " Law 
 of the Air " as a result of the conquest of or attack on 
 that element by inventors all over the world. It 
 appears that the German lawyers have already dis- 
 counted the subject, and no doubt a code is in contem- 
 plation. Clearly, before long the subject will be ripe 
 for international agreement, just as when growing 
 civiUsation discovered, so to say, the closed, or, indeed, 
 the open seas, an international law sprang up, which 
 is still developing. There is, however, no hurry, for 
 municipal purposes : it is not yet the duty of the police 
 to " clear the air." But, it seems, some difficult prob- 
 lems have already been suggested ; according to a 
 
LEGAL AND CONSTITUTIONAL POINTS 259 
 
 learned correspondent, the question has been broached 
 ' as to the nationality of a child born in an airship 
 landing on foreign territory, or born in the air on a 
 foreign ship." But if it is a "ship " is not the point 
 already settled ? 
 
 It is clear that in some way and for some things any 
 subject may petition the King. The only question is 
 how and for what. The answer may be gathered from 
 what Sir WiUiam Anson says of the Home Secretary : 
 " He receives addresses and petitions which are ad- 
 dressed to the King in person, as distinct from the King 
 in Council ; he arranges for their reception, their 
 answer or their reference by the King's command to 
 the department to which they relate ; but whether it be 
 a private individual that addresses the Sovereign or 
 a great corporation such as the City of London or the 
 University of Oxford, or whether it be one or both of 
 the Houses of Parliament, the matter passes through 
 the hands of the Home Secretary." The distinction 
 here made between the King in person and the King 
 in Council corresponds practically to a difference in 
 the favour asked for or grievance complained of. If 
 the matter is one the course of business as to which 
 is settled by statute or custom, it goes to the proper 
 Committee of the Privy Council, as, for instance, the 
 incorporation of a borough, the proclamation of a Bank 
 Holiday, and a myriad other administrative details. 
 But where a supphant asks a personal favour, as, for 
 example, a pardon or a release from prison, or, to sup- 
 pose an extreme case, begs for a peerage or a decoration, 
 these form the subject of petitions " addressed to the 
 King in person." So that, on any reckoning, it is 
 difficult to see what the ladies have to do in the ParUa- 
 
26o A CHANCE MEDLEY 
 
 ment House, and why they prefer Mr, Asquith to Mr. 
 Gladstone. 
 
 (July, 1909.) 
 
 A good many worthy people, writing about the recent 
 murders at the Imperial Institute, have unwittingly 
 brought themselves within the law by refetences to 
 an accused person as " the murderer." The sensa- 
 tional murder of Mr. Weare in 1823 by Thurtell, who 
 was hanged for it, is a reminder that the Courts have 
 sometimes punished for this sort of offence. In that 
 instance, the proprietor of the Surrey Theatre, who 
 " represented the supposed facts of the case in such a 
 manner that, when a murderer was seized, the audience 
 expressed themselves as understanding that he repre- 
 sented John Thurtell," was brought before the King's 
 Bench and punished. " Any attempt whatever," said 
 the Court, " to prejudge a criminal case, whether by a 
 detail of the evidence, or by a comment, or by a theatri- 
 cal exhibition, is an offence against public justice — 
 a serious misdemeanour." 
 
 (July, 1909.) 
 
 The Court of Criminal Appeal, though it used Very 
 guarded language in a recent case, evidently did not 
 like the passage in a summing up of a learned judge, in 
 which he told the jury trying a woman for the murder 
 of her infant, that the effect of a verdict of guilty would 
 certainly not be that she would be hanged, as nowadays 
 the Home Office always commuted the sentence. This 
 of course, is strong encouragement to a jury to find 
 " guilty," when they might otherwise decide that the 
 accused was " insane " at the moment the crime was 
 
LEGAL AND CONSTITUTIONAL POINTS 261 
 
 committed. The same learned judge is apt, as he did 
 in this instance, to parry this possibility by pointing 
 out that it may be worse for the woman to be sent to 
 Broadmoor as " a criminal lunatic." But ought the 
 jury to be invited by the Bench to consider the conse- 
 quences at all ? May not such a system lead to great 
 miscarriages of justice ? When a jury says a woman 
 in such circumstances is " insane," they do not mean 
 that she is hopelessly mad, but that for a short time 
 she did not know what she was doing. Because she 
 must then be treated as a " criminal lunatic " it does 
 not foUow that she is worse off than if she is sentenced 
 to death and reprieved ; if she has, in fact, recovered 
 from her temporary derangement, the Home Office 
 must deal with her as sane, and is, of course, anxious 
 to do so. In any case, the Home Of&ce has to decide 
 on her future fate, so that there is nothing gained by 
 frightening juries into unquaUfied Verdicts of guilty. 
 No doubt " criminal lunatic " is an ugly title, but so 
 it is to have been under sentence of death — ^which is 
 what counsel strive to avert, and, perhaps, the learned 
 judge does not realise. 
 
 (July, 1909.) 
 
 It would be comic to ask to what State does the 
 North Pole belong had not the legal question already 
 been formally raised in the United States. Books on 
 International Law are fuU of disputes and decisions or 
 treaties on the occupation of hitherto unknown lands 
 and watersheds, but each case has arisen because it 
 was worth some nation's while to claim. When that 
 happens to the North — or South — Pole, the question 
 may be discussed among lawyers. Meanwhile, the 
 general principle laid down by Hall may be noted_^: 
 
263 A CHANCE MEDLEY 
 
 ' ' It has now been long settled that the bare fact of 
 discovery is an insufficient ground of proprietary right. 
 It is only so far useful that it gives additional value 
 to acts in themselves doubtful or inadequate." 
 
 (Sept., 1909.) 
 
 The report of a case heard in camera and published 
 by permission of the judge would be an interesting 
 document, quite apart from any intrinsic " plot " 
 interest and a legal importance sufficient to support a 
 discussion in the newspapers. Such a case may be found 
 embedded in a recent Law Report. To put it shortly, 
 a troublesome boy of seventeen is made a ward in 
 Chancery by the simple process of his mother settling 
 a hundred pounds on him. Immediately after, " in 
 consequence of his disobedient and irregular conduct," 
 the lady, as his " next friend," issues a writ in his name 
 against the trustee " for the administration of the 
 trusts of the settlement," i.e., the infant plaintiff sues 
 the trustee to make him (the infant plaintiff) behave 
 himself ! Accordingly, in January of this year, a 
 learned judge makes Various orders, including one 
 that the infant should continue his studies. These 
 he interrupts on May 25 to marry another infant, 
 without being polite enough to invite the Court or any 
 of his relatives to the wedding, or, indeed, to inform 
 them of it. He took the opportunity of committing 
 the criminal offence of registering his age as twenty- 
 two. After about a fortnight's honejmioon, another 
 Chancery judge ordered him to be arrested " and kept 
 in custody at his own flat " — a Roman form of deten- 
 tion not generally known to be English — " until the 
 following day." When that day arrived, " a motion 
 was made on behalf of the infant plaintiff, by his mother, 
 
LEGAL AND CONSXrTUTIONAL POINTS 263 
 
 as next friend, to commit the wife to prison " — ^how 
 truly feminine ! — " for her contempt in procuring the 
 ceremony of marriage . . . without the consent of the 
 Court." The matter stood over till June 14, the infant 
 being " kept in similar custody " ; on that day the 
 judge heard evidence and adjudged the young husband 
 guilty of contempt of Court, and sent him to Brixton 
 Prison — ^the first time a ward has been so committed 
 — till June 18, when the case was again heard. The 
 wife, " having filed an affidavit, was cross-examined 
 upon it by counsel for the infant plaintiff (her husband)." 
 She apologized by counsel, admitted that she knew her 
 bridegroom was under age, but pleaded that she did not 
 know that he was a ward of Court. This the judge 
 beHeVed ; he also exonerated her from any sordid 
 motive in marrying. In the end the judge ordered 
 the husband to remain in prison (he was, in fact, hber- 
 ated on June 21) to teach him a lesson, for " in a case 
 such as this, where there are for practical purposes no 
 fimds being administered by the Court, the sole means 
 which the Coml: has of enforcing its authority is by 
 committal " — ^which seems to mean that if there are 
 funds there is no prison. However, every one will agree 
 with the learned judge : " If eVer there was a case in 
 which it is right to resort to the ultimate sanction, this 
 is . . . such a case." But why not lock him up in his 
 own flat again ? The reader will be relieved to hear 
 that the judge declined to punish the infant wife. 
 
 (Sept., 1909,) 
 
 The very recent publication of a book of memoirs 
 has made many people ask whether the law does not 
 protect the dead from libel. The answer is, practically 
 not. Or, to put it more accurately, in the authorita- 
 
264 A CHANCE MEDLEY 
 
 tive words of a judge, " The publication of a libel on 
 the character of a dead person is not a misdemeanour 
 unless it is intended to injure or provoke living per- 
 sons." This must mean " provoke " to a breach of the 
 peace, for it is obvious that defamation of a deceased 
 man must hurt his kin and friends in some way. There 
 seems to be only one clear case of some one being 
 punished for a libel on the dead, and that is of no Value 
 as a precedent. 
 
 In 1692, Anthony Wood, the writer, was prosecuted 
 in the Court of the Vice-Chancellor of the University 
 of Oxford by the second Earl of Clarendon for having 
 libelled his father, the first, the great, Earl, and he was 
 condemned in costs and expelled the University. But 
 the parties, the jurisdiction, and the occasion combine 
 to take this case out of the common law. In 1884 a 
 Duke of Vallombrosa tried to get a criminal informa- 
 tion against Mr. Labouchere for a statement in Truth 
 about his (the Duke's) deceased father, but he 
 failed. Lord Coleridge and a very strong court saying, 
 " There is no instance of an action for libel by the repre- 
 sentative of a deceased person ; it must be, I think, 
 some Very unusual publication to justify an indictment 
 or information for aspersing the character of the dead. 
 If such a case should ever arise, it must stand upon its 
 own foot." In 1887 Mr. Justice Stephen tried a case of 
 "newspaper libel on a political opponent who had 
 been dead for three years. It led to an assault by 
 the dead man's sons upon the supposed libeller. I 
 directed an acquittal on the ground that no evidence 
 was offered to show that the Kbel in any way referred 
 to any living person . . . there was no evidence that 
 the defendant wished to provoke the sons of the de- 
 ceased." The learned judge was clearly of opinion 
 that to hurt the feelings of the surviving relatives was 
 
LEGAL AND CONSTITUTIONAL POINTS 265 
 
 not sufficient ground for a prosecution, and he formu- 
 lated the rule cited above. But would it be too harsh 
 to empower the judges to restrain by injunction the 
 publication of mere private scandals, without the least 
 historical purpose, for a limited time after the death 
 of the actors ? 
 
 In the second volume of the State Trials (New 
 Series) there is recorded the trial of John Hvmt, 
 in 1824, for a seditious libel. He had published, 
 in 1822, Bjnron's poem, " The Vision of Judg- 
 ment," and was indicted in the King's Bench for 
 publishing " a Ubel concerning the late King George 
 III, with intent to defame him, and to disturb and 
 disquiet his descendants and to bring them into public 
 scandal, disgrace, and contempt." Abbott, C.J., told 
 a special jury that " he had no hesitation in saying 
 that a pubUcation tending to disturb the mind of living 
 individuals and to bring them into contempt and 
 disgrace by reflecting upon persons who were dead 
 was an offence against the law," and this ruling was 
 upheld by the Court, consisting of the Chief Justice 
 himself and one puisne. Hunt was fined a hundred 
 pounds, and ordered to enter into sureties for five years, 
 himself in a thousand pounds and two others in five 
 hundred each, and he satisfied the sentence. It must 
 be noted that the proceedings were criminal. 
 
 (Oct., 1909.) 
 
 The survival of legal antiquities diversifies from 
 time to time the duU routine of the courts, but in the 
 revival of obsolete procedure this country has just 
 been hopelessly beaten by Scotland, according to the 
 newspapers of the last few days, which state that a 
 private prosecution just concluded at Edinburgh was 
 
266 A CHANCE MEDLEY 
 
 the first for about 300 years, A mere Southron imagi- 
 nation cannot conceive a weapon from the legal armoury 
 of the time of James I being refurbished to-day. 
 Apparently, the public authority who has to decide 
 whether there shall be an official charge or not had 
 refused to sanction a prosecution ; but the aggrieved 
 parties went on, and secured a conviction. In this 
 country, of course, the same thing happens ; private 
 prosecutions, i.e., almost entirely at the expense of the 
 prosecutor and not of a public fund, are tolerably 
 common, and are sometimes instituted when the Direc- 
 tor of Public Prosecutions has refused to interfere. 
 The greatly increased activity of that official in recent 
 years is a sign that we are tending towards the Scotch 
 S3rstem, practically one exclusively of official accusation. 
 Indeed, some jurists expressly propose that no criminal 
 proceeding should be taken except by a public official. 
 
 (Oct., 1909.) 
 
 We are Very apt to think of a common jury as the 
 bulwark (and to talk of it as " the palladium ") of our 
 liberties, but it must be admitted that the machine 
 sometimes breaks down. Recently the Recorder of 
 Leicester (Mr. Buszard, K.C.) directed a jury at the 
 end of the case for the prosecution in a trial for demand- 
 ing money with menaces that there was no evidence 
 against the defendant for them to consider, and that, 
 therefore, they must acquit the prisoner. This they 
 flatly declined to do, and purported to find a verdict 
 of guilty. The judge, of course, pointed out that 
 though they might acquit at that stage they could not 
 convict without hearing the defence ; but as they had 
 announced an intention of convicting it was manifestly 
 
LEGAL AND CONSTITUTIONAL POINTS 267 
 
 unfair to the prisoner that liis trial should be continued 
 before that jury, and he discharged them. 
 
 There seems no precedent of this state of things, and 
 Very few precedents for the discharge of a jury in a trial 
 for felony, as this was, without giving a Verdict. How- 
 ever, the law is clear that in a case of strong " neces- 
 sity," of which the bench alone is judge, a jury tr5dng 
 an indictment may be discharged, and the learned 
 Recorder may well think that the certainty of a mis- 
 carriage of justice — ^for the judge has the right of 
 directing an acquittal on a point of law — created a 
 strong " necessity." There are plenty of instances of 
 juries acquitting, despite the judge's direction to con- 
 vict, but, apparently, none hitherto of the converse 
 result. The fact is that when feehng, whether political 
 or local, runs high — and presumably it did in this in- 
 stance — a jury is not always to be trusted, and it is 
 exactly at such times that the vigilance of the judge is 
 especially needed — at any rate, to secure an acquittal. 
 
 (Oct. 28, 1909.) 
 
 In the field of International Law the Portuguese 
 were once important. It is exactly three hundred 
 years ago since Grotius issued his famous little book, 
 Mare Liberum, to oppose the pretensions of Portugal to 
 dominion oVer the Indian Ocean and the Atlantic 
 south of Morocco. " The claims of Portugal . . . ," 
 says HaU, " received a practical answer in the predatory 
 voyages of Drake and Cavendish, and the commerce 
 of Holland with the East, and in the region of argu- 
 ment they were met by the aflfirmation of the freedom 
 of the seas." Since that time international lawyers 
 have asserted the theory that, as property must rest 
 upon occupation, the sea, as it cannot be enclosed, 
 
268 A CHANCE MEDLEY 
 
 cannot be appropriated. We, too, have had a dispute 
 with Portugal as to " title by occupation," but of land. 
 We set up a claim to certain territory at Delagoa Bay 
 as having been ceded by native chiefs in 1823 : the 
 Portuguese set up the title of continuous occupation. 
 For three centuries nearly the latter had had some 
 kind of settlement, civil or military, on the spot, and 
 had kept up some kind of control, though intermit- 
 tently, over the natives. The French Government, 
 acting as arbitrator in 1875, decided that this title 
 was not defeated by any temporary lapse of occupation 
 in 1823. 
 
 (Nov., 1909.) 
 
 What is the Constitution ? is a question which can- 
 not be escaped at the present moment. That it can- 
 not be answered by a definition of the word is not only 
 expressly asserted by our great writers on the subject, 
 but is proved by the fact that those who use it — ^for 
 example, Blackstone, Dicey, Anson, the " Constitu- 
 tion " of the United States itself — do not define it. 
 Apart from a definition by Paley, in his Moral Philo- 
 sophy (cited by Dicey), there seems to be only one 
 technical scientific definition in an Enghsh text-book 
 — ^and that is in French. " A Constitution," says Pro- 
 fessor Holland, in his weU-known work on Juris- 
 prudence, " has been well defined as ' I'ensemble des 
 institutions et des lois fondamentales, destinees a 
 regler Taction de 1' administration et de tous les cito- 
 yens,' " cited from Ahrens, Cours iii. The New Eng- 
 lish Dictionary defines the word : " The system or 
 body of fundamental principles according to which a 
 nation, State, or body politic is constituted or gov- 
 erned," and adds in a note : "... it is assumed or 
 
LEGAL AND CONSTITUTIONAL POINTS 269 
 
 specifically provided that the Constitution is more 
 fundamental than any particular law, and contains the 
 principles with which all legislation must be in har- 
 mony." The net result to the intelligent layman is 
 that " the Constitution " of his State is something 
 fundamental. What practice is or is not " funda- 
 mental" must, presumably, be determined by the 
 higgling of politics. 
 
 This view is brought out by Professor Dicey's con- 
 trast of our " Constitution " with that of the United 
 States. Their " Articles . . . contain, in a clear and 
 intelligible form, the fundamental law of the Union. 
 This law ... is made, and can only be altered or 
 repealed in a way different from the method by which 
 other enactments are made or altered ... it deals 
 with the Legislature, the Executive, and the judiciary, 
 and, by its provisions for its own amendment, indi- 
 rectly defines the body in which resides the legislative 
 sovereignty of the United States." Therefore, " the 
 American lawyer has to ascertain the meaning of the 
 Articles of the Constitution in the same way in which 
 he tries to elicit the meaning of any other enactment " 
 — ^i.e., quite an ordinary legal job. But the position 
 of the British lawyer as to his Constitution is Very 
 different. 
 
 ' " He may search the Statute-book from beginning 
 to end, but he will find no enactment which purports 
 to contain the articles of the Constitution. He will 
 not possess any test by which to discriminate laws 
 which are constitutional or fundamental from or- 
 dinary enactments ; he will discover that the very 
 term ' constitutional law ' ... is of comparatively 
 modern origin." When he asks " Can it be that a 
 
270 A CHANCE MEDLEY 
 
 dark saying of De Tocqueville's : ' The English Con- 
 stitution has no real existence ' (elle n'existe point) 
 contains the truth of the whole matter ? " one is in- 
 clined to answer that the French thinker's epigram is 
 true if it means that ' Constitution " in English has no 
 precise meaning, and that its use, therefore, in discus- 
 sion proves nothing. 
 
 One practical distinction Professor Dicey makes 
 which may conduce to clear thinking. " Constitu- 
 tional law " includes " aU rules which directly or 
 indirectly affect the distribution or the exercise 
 of the Sovereign power in the State." These rules 
 " include two sets of principles or maxims of a 
 totally distinct character " : (i) Laws proper en- 
 forced by the Courts ; these collectively are " the law 
 of the Constitution." For example, " The King can 
 do no wrong" ; " Some person is legally responsible 
 for every act done by the Crown," etc., etc. ; (ii) 
 " The King must assent to, or (as it is inaccurately 
 expressed) cannot ' veto ' any bill passed by the two_ 
 Houses " ; " The House of Lords does not originate 
 any Money Bill " ; "A bill must be read a certain 
 number of times before passing through the House of 
 Commons/' etc., etc. These maxims " tmder the 
 English Constitution have one point in common : they 
 are none of them ' laws ' in the true sense of that word, 
 for if any, or all of them, were broken, no court would 
 take notice of their violation." 
 
 ... : (Nov., 1909.) 
 
 The prorogation of Parliament is by no means the 
 same thing as a mere adjournment. The latter takes 
 place at the will of either House so fai' as it affects 
 itself, but prorogation is a matter of Royal prerogative, 
 
LEGAL AND CONSTITUTIONAL POINTS 271 
 
 and ends the Session — i.e., both Houses must stop all 
 business simultaneously (except appeals before the 
 Lords and impeachments by the Commons). It is 
 well known — and sometimes vigorously objected to 
 — ^that bUls cannot be taken up in a new Session, and 
 still less in a new Parliament, at the stage at which 
 they were in at the prorogation : they must be rein- 
 troduced " from the start." This technicality has 
 occasionally proved highly convenient, for when a bill 
 has been lost and the difference has been adjusted or 
 it has been desired to bring it in again without fresh 
 debate while the subject was recent, as the same biU 
 cannot be moved a second time in the same Session, 
 ParHament has been prorogued for a few days only. 
 Thus, " in 1707 Parliament was prorogued for a week 
 in order to admit the revival of a bill which had been 
 rejected by the Lords, and in 1831 Parliament was 
 prorogued from October 20 to December 6, in order to 
 bring in the third Reform Bill " (Erskine May). Thus 
 the Crown has the power to suspend the sitting of 
 ParHament as well as to dissolve it. 
 
 At this season of the year — since the Prevention of 
 Corruption Act — ^we always hear doubts as to the 
 legality of Christmas boxes. Ex-Lord Justice Sir 
 Edward Fry has, according to the Secretary of the 
 Secret Commissions and Bribery Prevention League, 
 given an opinion thalt " the only safe course for those 
 [tradesmen ?] who wish to make Christmas gifts to 
 servants is to do so with the express consent of the 
 master, if such consent can be obtained ; and if it be 
 not obtained then to abstain from making the gift. 
 It is also suggested " that those masters who are willing 
 to allow their servants to receive Christmas boxes 
 
372 A CHANCE MEDLEY 
 
 should confine their consent to gifts of a fixed and 
 limited amount, and that they should consent not 
 generally, but only from year to year." A valuable 
 opinion, and not fatal to good old-fashioned " cakes 
 and ale." 
 
 (Dec, 1909.) 
 
Legal Stories 
 
CHAPTER VI 
 
 LEGAL STORIES 
 
 On the night (May 5, 1893) when the Prince of 
 Wales dined with his fellow Benchers, Lord Young, a 
 distinguished Scotch judge, found himself at the Middle 
 Temple by the side of a legal peer, who shall be 
 nameless. The latter remarked that he envied the 
 former the famous Advocates' Library at Edinburgh 
 (one of the best, if not the best law library in the 
 kingdom), adding, " We have no books in the 
 House of Lords." " That accounts for some of your 
 decisions," was the prompt reply. 
 
 An amusing incident, in which two judges sitting 
 together and a very weU-known silk were the 
 actors, was reported. One of the former made some 
 remark with which the latter did not agree. " Since 
 I learned law," he began. " But, Mr. ," inter- 
 rupted his lordship. " Since I learned law," went on 
 
 the Q.C. " But, Mr. ," reiterated his lordship. 
 
 This dialogue was repeated three times, when the other 
 member of the bench quietly remarked, " You learn 
 
 law, Mr. , every time my brother — opens_his 
 
 mouth." 
 
276 A CHANCE MEDLEY 
 
 Two well-known silks being engaged against one 
 ano-ther, one of them was constantly interrupted in his 
 speech by the rather noisy remarks of his friend. Sud- 
 denly he stopped in his discourse and told the jury 
 that a friend of his was asked whether so-and-so was 
 a sound lawyer. " That depends," was the answer, 
 " whether roaring constitutes unsoundness." 
 
 The touch of nature which baffles all external eti- 
 quette was uproariously illustrated by as spontaneous 
 an outburst of merriment as was ever heard in a court 
 of law during a trial. Counsel, in cross-examining a 
 lady witness about some horses which had been in- 
 spected by a committee, asked her whether she thought 
 they were " old crocks." " Do you mean the com- 
 mittee or the horses ? " said the lady. This was too 
 much even for the judge. 
 
 Of all papers delivered by solicitors to counsel, none, 
 perhaps, has ever been so pecuUarly welcome as that 
 in a case marked " Brief to attend the Derby." 
 The lord of the manor in which the historic course is 
 situate was interested in determining how far the rights 
 of the commoners were disturbed by the encroachments 
 of spectators and others. Counsel's instructions were 
 conscientiously fulfilled, and the incident opens up a 
 vista of new hopes and possibiUties for the Bar. A 
 brief to attend Henley Regatta or the University 
 match is not likely to be devilled. 
 
 On one occasion Mr. Oswald, Q.C., was appealing 
 to the late Master of the Rolls for a new trial, on the 
 
LEGAL STORIES 277 
 
 ground that the Vice-Chancellor in the Court below 
 had stopped him. " How did he manage that ? " said 
 Sir George Jessel. "By a pious fraud, my lord," 
 was the answer ; "by appearing to be with me ! " 
 
 The deaf juror who recurs with every assize 
 appeared in an acute (and obtuse) form at a town 
 on the South-Eastern Circuit. He rose in the box 
 and asked leave to be excused on the ground of his 
 infirmity. " Are you very deaf ? " said Lord Coleridge 
 in silvery tones, almost inaudible. " Yes, my lord, 
 I am," was the prompt reply. " Then, I think, you 
 may be sworn," was the equally prompt rejoinder. 
 
 (Nov., 1893.) 
 
 A litigant in person, who was continually baffled 
 in his attempts to get in inadmissible matter, at last 
 exclaimed, " Thank Heaven ! at the Day of Judg- 
 ment there will be no rules of evidence, and then there 
 will be some chance of the whole truth coming out at 
 last ! " 
 
 Some of Mr. Justice Mathew's obiter dicta will be 
 long remembered, such as the remark, " The truth 
 will occasionally leak out, even in an affidavit." 
 Here is one of the latest. In a dispute as to what 
 took place before a judge at Chambers, counsel, who, 
 hke his opponent, was not present there, remarked, 
 " Experience shows it is very unprofitable to refer to 
 what took place there when neither counsel were 
 present." " Often stiU more so," said his lordship, 
 " when both were." 
 
278 A CHANCE MEDLEY 
 
 The mot, by the way, as to an affidavit is some- 
 times attributed to Lord Bowen. In "The Cloister 
 and the Hearth" occur the words, "He had spoken 
 the truth and in an affidavit " (C. 27). 
 
 There was a good story current about a learned judge 
 who was famous for his pointed sarcasm, especially on 
 his own profession. Finding himself belated on the 
 way to the Strand one morning he called a cab 
 and bade the driver make for the Royal Courts of 
 Justice quickly. " Where are they ? " said the man. 
 " Do you mean to say," said the judge, " you don't 
 know where the Law Courts are ? In the Strand, of 
 course." " Oh, that's quite another matter," was the 
 reply ; " you said the Courts of Justice ! " " Well," 
 said his lordship, grimly, " perhaps we do dispense 
 more of the one than of the other there." The cab- 
 man's point is clear, but what could the learned gentle- 
 man have meant ? 
 
 Lord Justice A. L. Smith occasionally sat with his 
 brother magistrates at Chichester. Some new J.P.'s 
 were sworn and took their seats on the bench for 
 the first time. One of them was noticed to be coach- 
 ing the Lord Justice throughout the whole of the pro- 
 ceedings. 
 
 It may be doubted whether a more vigorous outburst 
 of Homeric laughter ever went up from a court of 
 law than was heard in the "lady barber's" case. 
 The defendant in cross-examination admitted one 
 offence after the other in what may be emphatically 
 
legal: stories 279 
 
 called a career of deceit. " Did you represent yovir- 
 self as a barrister ? " he was asked. " I did not," was 
 the reply. " Then what made the lady think you 
 were one ? " " She assumed it from my general 
 behaviour," was the prompt answer. 
 
 (March, 1894.) 
 
 Among the many stories told of Lord Bowen's wit 
 or humour two perhaps stand out. " I often hear," 
 he said once, " eminent counsel talk of an equity in the 
 case. It always reminds me of the story that Con- 
 fucius once called his followers together and asked 
 them what was the greatest impossibility conceivable ? 
 None could answer. Then he said that it was when a 
 blind man is searching in a dark room for a black hat 
 which is not there." On another occasion, when he 
 was about to sit in Admiralty, he remarked that he 
 was very diffident of his ability to do the work, and con- 
 cluded by saying, " And may there be no moaning at 
 the Bar when I put out to sea." 
 
 Apropos of " sporting " judges, there is an old story 
 of one of the keenest. He particularly wanted to 
 be present at one of the great " events " of the year, 
 and he suggested to a silk, whose interests were of 
 quite another sort, that when the court rose he should 
 ask that the case in which he was engaged should be 
 adjourned tOl the day after the morrow. Accordingly, 
 to oblige his lordship, Mr. Q. C. duly made his applica- 
 tion. " I am afraid, Mr. ," was the reply, " that 
 
 except for some good reason, I cannot interfere with 
 the ordinary course of business." " Well, m'lud, 
 the fact is, it is a matter of my personal convenience." 
 
28o A CHANCE MEDLEY 
 
 " Oh, well," said the judge, " of course, in that case, 
 I have nothing further to say, and the case is adjourned. 
 
 But I strongly suspect, Mr. , you want to go to a 
 
 certain meeting. Oh, you wicked old man ! " 
 
 The first case Lord Russell tried recalled a dictum 
 of Lord Morris's apropos of Sir Charles's elevation to 
 a Lordship of Appeal in 1894. " You English," he 
 is reported to have said, " are a tolerant people : 
 your highest Court of Appeal consists of a Scotch- 
 man, two Irishmen, and a Jew." There has been no 
 Roman Catholic Chief Justice since the Reformation 
 tUl the present one. 
 
 Lord Esher showed himself in his kindliest aspect 
 when a junior whom he had " heckled " a good deal 
 suddenly remarked that the Master of the RoUs was 
 against him. " How do you know that ? " he was 
 asked. " Because," was the reply, " he has ceased to 
 ask me questions." Lord Esher joined heartily in the 
 general laugh. There was judgment for that junior. 
 
 They may manage some things better in France, 
 but dealing with witnesses at a trial is not one of them. 
 A story comes from Paris that a judge, desiring to 
 remove all temptation from a lady witness, directly she 
 entered the box asked her what her age was. When 
 she had answered he ordered the oath to be adminis- 
 tered in the ordinary way. No doubt this was very 
 spirituel, but if the question was irrelevant to the issue 
 it does not appear why it should be put at all, and if it 
 
LEGAL STORIES 281 
 
 was relevant there seems to be no reason why it should 
 not be proved in the ordinary way. 
 
 At a dinner of the Hardwicke Society the neatest 
 of points was made by Mr. Augustin BirreU, Q.C. Lord 
 RusseU had spoken of the familiar way in which, in the 
 early days, Sir James Mathew — " now one of the greatest 
 of our common lawyers " — had dealt, in debate, with 
 the rule in Shelley's case, and the statute De Donis. The 
 learned author of Obiter Dicta alluded to this remark 
 and then suddenly ejaculated " Try him now ! " amid 
 roars of laughter, in which Sir James joined heartily. 
 
 It is related that on one occasion when Sir Henry 
 Hawkins was judge of assize, some of the Nottingham 
 " lambs " assembled at the railway station to see the 
 arrival of the terror of the criminal classes. To their 
 astonishment he alighted leading a Uttle dog by a string. 
 " Why," exclaimed one of the spectators, " the old 
 gentleman's blind ! " Of course there was nothing the 
 matter with the learned judge, " but the dog it was 
 that died," some time after to his great regret. 
 
 At a dinner given to Mr. Speaker Gully by the 
 Northern Circuit, Lord HerscheU remarked incident- 
 ally that he was invited to be Speaker in 1884 ; and it 
 came out — for the consolation of juniors " in waiting " 
 — ^that on one occasion Lord RusseU, Mr. Gully, and 
 Lord HerscheU, who aU joined the circuit about the 
 same time in this order of seniority, happened to dine 
 together at a moment when their respective fortunes 
 were not so flourishing as they are now. The present 
 
283 A CHANCE MEDLEY 
 
 Speaker announced that he was off to Hong Kong, 
 where he had heard of an opening, and Mr. Herschell 
 thought of accepting a " call " to Bombay. Mr. 
 Russell was not asked to go an5rwhere, but under the 
 genial influence of the bottle— the exact price of which 
 was stated — ^they aU resolved to stop in this country — 
 and there they were. 
 
 (July, 1895-) 
 
 Mr. Oswald, well known at the Bar as a " character," 
 wrote a book on Contempt of Court, an offence 
 for which, it is said, that Fry, J., once threatened 
 to " commit " him when he was a junior. The story 
 goes that, after an overlong and pertinacious argument, 
 the judge peremptorily ordered him to sit down, but 
 Mr. Oswald stiU went on. " Sit down, Mr. Oswald," 
 again said the judge, and on his again disobeying, 
 finally said, " If you don't sit down, I wiU commit you." 
 " That, my lord," said the undaunted junior, " raises 
 another point as to your lordship's power to commit 
 counsel for contempt." His exuberant good spirits 
 sometimes led to small collisions of this sort with the 
 bench, and on one occasion, when a judge remarked 
 that he could teach the learned gentleman law, but 
 could not teach him manners, he merely replied, with 
 imperttabable good-humour, " That is so, my lord, 
 you cannot." 
 
 There have been bitter complaints of overcrowding 
 on suburban and metropolitan lines. There is no 
 direct case on the subject, but thpre is the authority of 
 one Dowler {ex relatione Dickens Pickw. cap. 35), 
 who remarks, obiter (of a stage coach) : " I've taken 
 
LEGAL STORIES 283 
 
 two places. If they try to squeeze six people into 
 an infernal box that only holds four, I'U take a post- 
 chaise and bring an action." Such an action on the part 
 of a traveller who lawfully has a seat would almost 
 certainly succeed. 
 
 The following is an exact copy of a note handed to 
 a gentleman at quarter sessions on behalf of a lad 
 charged with housebreaking : — 
 
 Counsellor 
 
 Will you plese derfen Bil Smith we as ten shillin and a 
 nice hare. 
 
 Mr. Smith. 
 
 Kin and " kind " are here mixed in unproverbial 
 proportions. 
 
 Scene — ^The Old Bailey. " Prisoner, are you guilty 
 or not guilty?" Prisoner, pointing to his counsel^ 
 " He says I am guilty." Solvuntur tabtdce, &c. 
 
 The late Mr. Justice Denman used to tell many 
 stories of his professional experience. Once when he was 
 on circuit at Maidstone he defended a prisoner who 
 was charged with stealing and receiving. At that 
 time both the counts for these two offences could not 
 be included in the same indictment, and the accused 
 was tried separately on each. In the first case Den- 
 man argued that the facts against his client, if they 
 pointed to anything, pointed to receiving, and the 
 man was acquitted ; whereupon, in the second, he 
 argued that if it was anything it was a case of stealing, 
 with the same result. 
 
284 A CHANCE MEDLEY 
 
 At Hertford assizes two men were once indicted for 
 stealing ducks. The owner, a farmer, had seen them 
 take the quarry from a pond, had followed them, kept 
 them in sight till they had entered their home, where 
 a few minutes later they were discovered in bed 
 clothed and booted, while the ducks were hanging 
 dead but warm on the wall. The bucolic prosecutor 
 was slightly confused by Denman in cross-examina- 
 tion as to the identity of the birds. The men were 
 acquitted. The farmer got up and said, " Beg pardon, 
 my lord, how about they ducks ? " Whereupon one 
 of the accused remarked audibly, " Oh ! let 'un have 
 his ducks." Denman at once rose and said, " My 
 lord, my clients instruct me to say that in the event 
 of the prosecutor taking possession of the ducks, they 
 wiU not maintain an action for trover against him." 
 
 Of all the muddles which ever took place in a court of 
 justice surely that of a man sitting on his own jury, 
 i.e., one trying a cause to which he was a party, is the 
 most topsy-turvy. Yet an American judge vouches 
 that this once took place with a client of his in a New 
 York court. Of course, he stopped the case at once. 
 After all, the same coincidence of a man being summoned 
 in a panel before which he was a suitor might happen 
 an5rwhere, but only a genius would actually take his 
 seat. The learned gentleman adds that when he 
 remonstrated with his client he retorted, " After all, 
 who knows more of this case than I do ? " 
 
 The first remark of Lord Justice Chitty when raised 
 to the Court of Appeal was characteristically pleasant. 
 Counsel was recommended to go to Mr. Justice Cave, 
 
LEGAL STORIES 283 
 
 who, it turned out, was to be on his circuit at Cam- 
 bridge. " Why don't you go to Cambridge ? " said 
 Lord Esher ; " it's the nicest place in the country." 
 " Except Oxford," added Chitty, L.J. 
 
 Sir Frank Lockwood, dealing with the costs to which 
 even a successful Utigant is put, cited the remark, 
 " Even the winning cock loses a few feathers." He 
 forgot that the Cockpit is no longer the arena of legal 
 contests. 
 
 Mr. Justice Henn Collins had a very pretty wit, and 
 quiet withal. In a case before him an important 
 witness was missing, and counsel, making a slip in his 
 law of evidence, proposed to put in a written state- 
 ment which the absentee had made. Now, it is a well- 
 known rule that in the absence of a document through 
 loss or some other cause, " secondary "-—that is, verbal 
 or other evidence — ^may be given of its contents. 
 " So," said the learned judge, " you've lost your witness, 
 and want to give secondary evidence of his contents." 
 
 Mr. BirreU, Q.C., in his new book, teUs a good story. 
 " An eminent Chancery practitioner, afterwards a 
 Vice-Chancellor, on being informed on one occasion 
 that the actual suitor in a litigation wished to attend 
 consultation, roughly forbade his doing so, saying, 
 ' I wUl have no flesh and blood in my chambers.' " 
 
 (July, 1897.) 
 
 A good many jokes were made apropos of Mr. 
 
286 A CHANCE MEDLEY 
 
 Justice Darling's little book, Scintillce Juris. Re 
 himself has been called no longer Scintilla but Stella 
 Juris. It has also been suggested that in accordance 
 with an obsolete legal practice he should adopt the 
 motto, " Lateat scintillula forsan " ("perhaps some little 
 spark may remain " — ^the motto, by the way, of the 
 Humane Society). A good story of the learned judge's 
 wit has recently been revived. He was once, when 
 "very junior," engaged in a case at Sessions which 
 lasted long after the court usually adjourned for the 
 day. At 5 p.m. Mr. Darling was still proceeding 
 with his oration. " Do you notice the hands of the 
 clock, Mr. Darling ? " said the chairman blandly. 
 " They seem to me, sir," counsel replied, " to be in 
 their normal position at this time of the day." 
 
 (Nov., 1897.) 
 
 Campbell in his early days had an amusing experi- 
 ence. In 1 812 he and two other barristers resolved to 
 practise at Monmouth county sessions, " which have 
 hitherto been attended only by attorneys." So they 
 got the justices to make an order that they were to 
 have " exclusive audience." Similarly in borough 
 sessions the Recorder decides generally who has the 
 right of audience. The action of the future Lord 
 Chancellor and his friends caused a great deal of local 
 excitement. The attorneys of Monmouthshire pre- 
 sented a counter petition, " and from so petty a cause 
 the county seems to be quite in an uproar." The 
 " raid," as Campbell calls it, duly took place. " Early 
 next morning the attorneys began to arrive, but instead 
 of applying to us they scowled upon "us^most dread- 
 fully, and seemed much disposed to throw us into the 
 river. They stationed themselves outside the inn door, 
 
LEGAL STORIES 287 
 
 and the moment a magistrate appeared they can- 
 vassed him for his vote and interest in their favour." 
 At eleven o'clock " the general appearance of things 
 was exceedingly hostile. The court then sat. We 
 marched in robed and wigged, to the no small amuse- 
 ment of many Welshmen, who never saw human beings 
 so disguised before. I, as senior, headed our httle 
 band, carrying a blue bag filled with books. We took 
 post under the bench, displacing our opponents from 
 the ground they had occupied." After long debate the 
 bar won by ten to seven. " I most seriously thought 
 for some time," says Campbell, " that ... we 
 should be obHged to make our bow and withdraw. 
 You may see how ticklish it was, as we had a majority 
 of only three. Had the decision been the other way, 
 I should have incurred infinite ridicule. What were 
 the poor attorneys now to do, being gagged for ever- 
 more ? They retired, and compromised privately 
 as many things as they could, but some could not be 
 smothered." 
 
 An amusing instance of Sir Frank Lockwood's 
 readiness was afforded some time ago in the Court of 
 Appeal. He had not been present during the argu- 
 ment, which had been conducted by his junior, but 
 directly he arrived the presiding judge — it may have 
 been Lord Esher — put to him a point of law just arising 
 at that moment. Naturally he turned to his junior, 
 with the remark, " What do you say to that ? " " Oh, 
 Sir Frank," said his lordship deprecatingly, " we 
 heard that." " That," promptly rejoined the leader, 
 " makes it the more remarkable that my learned 
 junior has not replied to my question." One of his 
 latest mots is now invested with a sad significance. 
 
288 A CHANCE MEDLEY 
 
 After the Long Vacation, some one remarked to him 
 that he looked as if he was losing flesh. It was at the 
 time when the appointment of some judges, not re- 
 markable for size or embonpoint, was fresh in men's 
 minds. " Yes," he said, " I am in training for the 
 bench." 
 
 In one respect Sir Frank Lockwood's record was 
 probably unique — namely, his acting as Sohcitor- 
 General, even for a short time, to a Tory as well as a 
 Liberal Government. 
 
 (Dec, 1897.) 
 
 There is a good story apropos of AUen v. Flood, the 
 famous Trade Union case, in the House of Lords. 
 During the course of the arguments, a noble and learned 
 lord, who is, perhaps, too much given to interrupt- 
 ing counsel, was indulging that habit rather freely, 
 when {on dit) Lord Morris was heard to observe, " The 
 proceedings in your lordships' House are a good ex- 
 ample of the molestation of a man in his business." 
 The hit is peculiarly neat because the fundamental 
 issue in the case was the extent of the right to interfere 
 with another's trade. 
 
 Very good indeed is the story of Mr. Justice Hawkins 
 and the oranges. The judge had to test whether a boy 
 witness understood the nature of an oath. In the 
 course of his questions he said to the boy, " If I were 
 to say that you had an orange in your mouth, would 
 that be the truth ? " " No ; it would be a lie." " And 
 if I said you had one in your hand ? " " That would be 
 another lie." " And if I promised you a bag of oranges 
 and then didn't give them to you, what would that be ? " 
 
LEGAL STORIES 289 
 
 " That would be a lie." " And if I did give them to 
 you? " " That would be the truth." " Very well; 
 I will," and he did. 
 
 Mr. Justice Lawrance, who, it is said, is an ardent 
 golfer, tells the following story against himself. A 
 boy appeared before him as a witness, and on the 
 learned judge asking him if he was acquainted with 
 the natiire of an oath, the youth promptly rephed, 
 " Of course I am ; ain't I your caddie ? " 
 
 In describing an outrage on Vice-Chancellor Malins, 
 at whom an egg was thrown by a disappointed suitor, 
 Mr. Oswald says, " It is said that the learned judge had 
 the presence of mind to remark, pleasantly, at the time, 
 that the egg must have been intended for his brother 
 Bacon, referring to the Vice-Chancellor of that name then 
 sitting in an adjoining court." Possibly this story — 
 hke the egg — should be taken cum grano sails. 
 
 The following " combination " is roundly attributed 
 to a genial Q.C., whose nationality is obviously doubt- 
 ful : " Gentlemen, the charges against my clients are 
 only mares' nests, which have been traced to their 
 birth, and are found to have had neither origin nor 
 existence." This is nothing to the remark of a country- 
 man of his : " Gentlemen, it will be for you to say 
 whether this defendant shall be allowed to come into 
 Court with unblushing footsteps, with the cloak of 
 hypocrisy in his mouth, and draw three bullocks out of 
 my chant's pocket with impunity." 
 
 u 
 
290 A CHANCE MEDLEY 
 
 Of one of the most popular judges of the Court of 
 Appeal a wit remarked, " He generally dissents for 
 the same reasons, and occasionally agrees for different 
 ones." 
 
 There is a good story about the Lord Chief Justice. 
 It was before his judicial days, and while he was yet a 
 stuff gownsman, that he was asked in court one day 
 by a brother barrister what was the extreme penalty 
 for bigamy. " Two mothers-in-law," instantly replied 
 Russell. 
 
 A story has been printed about the Lord Chan- 
 cellor " gravely losing his temper at an Irish railway 
 station because he had lost his train." If it is true, 
 there is an illustrious precedent. One of our most dis- 
 tinguished judges, who was also one of the most refined 
 and cultivated Englishmen of his day, arrived with one 
 of his learned brethren — neither is with us now — ^at a 
 railway junction on circuit, to find that they had just 
 missed their train, and must needs wait some hours. 
 The puisne roundly used a big, big letter. " Brother 
 
 ," said the senior, " I don't swear myself, but 
 
 would you mind saying that again ? " 
 
 (Sept., 1898.) 
 
 There is a story told of a Virginian lawyer who, in 
 the midst of a speech of great eloquence, suddenly 
 bethought him of a point he could make, but he could 
 not remember the name he wanted. So he whispered 
 to the next man, " What's the name of the man in 
 the Bible who would always have his pound of flesh ? " 
 
LEGAL STORIES 291 
 
 and the reply came promptly, " Absalom." The 
 orator adopted the word, and his fine passage was re- 
 ceived with shouts of laughter. Even the Bench is 
 not always exempt from a little historical confusion. 
 Thus Lord Kenyon, according to Coleridge in his 
 Table Talk, told a jury that the Emperor Julian was so 
 celebrated for every Christian virtue that he was called 
 " Juhan the Apostle ! " 
 
 A prisoner was defending himself well to the jury, 
 but the judge, not being able to hear him well, said 
 " What was your last sentence ? " " Six months," 
 was the answer. 
 
 A suitor in the Whitechapel County Court was very 
 eloquent colloquially, on the necessity of having coun- 
 sel " if you want to win ; " a very just conclusion con- 
 firmed, as he later remarked, when he, being unrepre- 
 sented, lost. Of course, he merely echoed in original 
 terms the old observation that he who acts as his own 
 counsel has a fool for his client. Mr. Cleeve, once a 
 well-known barrister, apologetically quoted this re- 
 mark, when he was being tried in the Exchequer before 
 Lord Lyndhurst. " Oh ! " said the judge, " don't 
 mind the adage ; it was framed by the lawyers." 
 Happily it flourishes among laymen. 
 
 Punch's immortalisation of Mr. Justice Hawkins as 
 " Baron Hawkins of Tryham Fairleigh and Sentensham " 
 recalls a. remark of Lord Bowen's when some one was 
 persuading him to accept a law lordship : " You 
 need do nothing but-say, ' I concur in the opinion of 
 
292 A CHANCE MEDLEY 
 
 So-and-so.'" "Then," said Bowen, "I had better 
 take the title of Lord Concurry." 
 
 Apropos of Lord Russell being stopped by a sentry, 
 it is said that Sir Frank Lockwood once, riding late to 
 the courts, found himself in the same predicament at 
 the same spot. Rising in his stirrups, he thundered out, 
 " Man, do you not know me ? I am one of her Majesty's 
 counsel learned in the law ! " The effect was the same 
 as Marius's famous apostrophe on the slave sent to 
 kill him. 
 
 In a criminal court, which is one of the busiest 
 in the kingdom, a juryman in waiting appealed to 
 his lordship to release him on the ground that " he 
 had to attend a funeral." He was an undertaker. 
 He scored for the moment, but his laugh was short-lived, 
 for the officers of the court were as smart as he was, and 
 duly summoned him to return a day or two later. 
 
 According to the Critic, it is possible to effect an 
 insurance at Lloyd's against an adverse judgment in the 
 law courts, whether it be a court of first instance or on 
 appeal. Clearly the Court of Appeal has a new and 
 invaluable guide in cases of doubt ; it has only to 
 ascertain what the rates are at the moment in the City. 
 " This sort of thing," we are told, " is done everyday, 
 and the premiums vary from 90 per cent, in the case of 
 one judge down to 10 per cent, in the case of the Lord 
 Chief Justice." We wonder who the one judge can be. 
 Perhaps some day an action against underwriters on 
 one of these policies may come before the courts. 
 
LEGAL STORIES 293 
 
 It seems that insurances at Lloyd's against adverse 
 judgments are not a mere joke. Some one has been, 
 according to the Solicitors' Journal, at pains to inquire, 
 and it appears that such poUcies are granted if " the 
 risk " is very small, and all the facts of the case are 
 known. But as the Solicitors' Journal says : " Who 
 advises the underwriters as to the chances of success ? 
 And how can ' all the facts of the case be known ' before 
 trial ? " 
 
 A good deal of amusement was caused by the defence 
 of a prisoner at the Old Bailey charged with cheating by 
 the " confidence trick." He argued that no one can be 
 robbed by that trick unless he was a rogue himself ; he 
 played to get money, and the " confidence " man only 
 taught him a lesson — not to covet other people's 
 money. In fact, said the prisoner, he was a public 
 benefactor — an " ingenious paradox " which did not 
 save him from three years' penal servitude. For 
 impudence, however, even this plea is outdone by the 
 defence of an innkeeper tried at Warwick before Lord 
 Chief Justice Wilmot on an indictment for poisoning 
 customers by his port wine ; they had narrowly 
 escaped with their lives. The indictment was actually 
 quashed by his proving that there had never been a 
 drop of real port wine in the hogshead. 
 
 Sir Francis Jeune (in the North American Review, May, 
 1899) teUs an excellent story of a distinguished Q.C. 
 adjuring a Chancery Court thus : "In these times when 
 commercial fraud has become rampant, is the arm of 
 this court to be shortened because of a mere want of 
 strict proof ? " This is as good as the answer of the 
 
294 A CHANCE MEDLEY 
 
 old judge who was asked on his return from his circuit 
 how things had gone there. " There were some ver- 
 dicts," he said," for the pla;in tiff which ought to have 
 been for the defendant, and vice versd, so that on the 
 whole justice was done." 
 
 The distinction drawn in a case between an order to 
 pull buildings down and one to restrain a man from 
 allowing them to remain up, irresistibly reminds one of 
 the immortal cross-examination of the spy at the Old 
 Bailey in the Tale of Two Cities. " Ever kicked down- 
 stairs ? Decidedly not ; once received a kick on the 
 top of a staircase and fell downstairs of his own accord." 
 
 There are many ways of winning cases, as the follow- 
 ing story goes to show. It was on the South-Eastern 
 Circuit, and counsel engaged for the defence in a very 
 bad case was hard pressed for some method of getting 
 an acquittal. The chief witness for the prosecution, 
 an old farmer of eminent respectability, had told his 
 story and could not be shaken. Noticing that the 
 witness wore a somewhat extraordinary waistcoat, 
 coimsel suddenly asked him where he got it, and the 
 witness, taken aback by the question and somewhat 
 disconcerted, stammered and declined to answer. 
 When it came to his turn to address the jury, the 
 prisoner's counsel said : " Gentlemen, the case for 
 the prosecution rests on the evidence of one man. You, 
 no doubt, noticed his extraordinary waistcoat, and also 
 that he declined to tell the court where he got it. 
 Now, there are only four honest ways by which a man 
 can come by a waistcoat ; he may have bought it, he 
 may have hired it, he may have found it, or he may 
 
LEGAL STORIES 295 
 
 have had it given to him. If the witness had obtained 
 his waistcoat in any of these ways he would have told us. 
 I ask you what reliance can be placed on the evidence 
 of such a man ? " The prisoner was acquitted. 
 
 A distinguished American sat by Lord Esher in 
 the Court of Appeal and heard a Q.C. argue a 
 point. When he had finished Lord Esher said to his 
 friend, " What do you think of that gentleman ? " 
 The American said, " Who is he ? " " One of her 
 Majesty's counsel." " Oh," said the other, " now I 
 understand why you use the expression I have heard 
 so much since I came to this country, ' God save the 
 Queen.' " 
 
 There is a story of Baron Martin many years ago 
 taking off his wig at the Lewes assizes^ and inviting the 
 Bar to do the same. Whereupon a juror, a fat and 
 rubicund old farmer, remarking, " A werry good sug- 
 gestion, my lord," promptly took off his coat and sat 
 in his shirt-sleeves. 
 
 The following stories, which have appeared in print, 
 if not true, are too good to be missed. ' ' In former days 
 it was a common thing for the vacation judge to be 
 called upon to grant an injunction under conditions 
 not quite consistent with the dignity of the Bench. 
 Vice-Chancellor Wickens was once dragged at midnight 
 from his bed at his vacation retreat near Chichester, 
 and, arrayed in dressing-gown and slippers, granted 
 an injunction, which was enforced the following day at 
 Brighton." Another judge was watched by counsel 
 
296 A CHANCE MEDLEY 
 
 into a train, followed, and persuaded to hear an appli- 
 cation en route ; the required order was signed with a 
 pen borrowed at a station on the way. Another coun- 
 sel " in hot haste " came up with his judge as he was 
 bathing in the sea. He hired a machine, swam into 
 judge's chambers, so to say, made his application, and 
 got his order. 
 
 Two good stories have been told of Lord Watson. 
 As became a Scotchman he was fond of " heckling " 
 counsel before him. Once Lord Bramwell was over- 
 heard whispering to him, " Watson, Watson, why 
 can't you leave the man alone and let him say what he 
 has to say ? " When someone remonstrated with him 
 out of court on this habit he replied, " Eh, man, you 
 should not complain of that, for I never interrupt a 
 fool ! " — a new version of the proverb, " It's not the 
 worst fruit the birds peck at." 
 
 A witness at Blackburn astonished the court by 
 the clearness with which he remembered events 
 of seventy years ago ; he attributed his lucidity 
 to his determined celibacy. Lord Holt once asked 
 a like witness of ninety-six what he lived on, and was 
 told, " Just on bread, butter, milk, and eggs. I've 
 scarcely tasted meat, and never drunk any liquor in 
 my born days." The judge promptly expatiated to the 
 bar on temperance. The next witness was 116, and 
 also vigorous, and my lord presumed that he had led 
 much the same life as his predecessor. But this sug- 
 gestion was vehemently repudiated. The other old 
 man, he said, was a milksop. For his part, he had 
 loved good ale from his cradle, Eind " I've never gone 
 
LEGAL STORIES 297 
 
 to bed many and many a year without being happy. 
 It's strong ale, my lord, that's given me my strong old 
 age." The judge at once withdrew his remarks to the 
 bar. 
 
 In Mr. Punch's amusing letter to the Lord Chief 
 Justice (in November, 1899) he might have illustrated 
 one of Lord Russell's amiable qualities by a good story. 
 When Sir Charles Russell's labours at the Parnell Com- 
 mission were concluded he paid a great compliment 
 to his juniors. " I suppose," said Mr. Asquith, who 
 was one of them, " that is what is called giving the 
 devil his diie." 
 
 Professional delicacy in regard of fees may some- 
 times work injustice. A solicitor, on leaving the 
 chambers of a well-known Chancery barrister, asked 
 the jimior clerk, as usual a mere boy, who was doing 
 duty in the absence of his senior, what his master's 
 fee for a conference was. " Seven-and-six," the lad 
 promptly replied, with the air of doing a smart stroke 
 of business ; but, noticing the surprise on the client's 
 face, he added : "If you think that too much " 
 
 Montagu Williams tells the following story : — 
 
 Mr. C , a popular leader of quarter sessions, 
 
 had just taken silk, and, appearing there for the last 
 time, was defending a prisoner against whom there 
 was a clear case. " Gentlemen," said counsel to the 
 jury, " I have been among you for a great many years," 
 etc. After continuing in this strain for some time, he 
 added, " A change has now come over my life. Her 
 
298 A CHANCE MEDLEY 
 
 Majesty has sent for me to make me one of her own 
 counsel. ... I shall never address you again. Let 
 us part as we have always been — ^the best of friends." 
 Soon the foreman remarked, " We find for Muster 
 
 C " — a verdict ultimately amended to " Not 
 
 GuUty." 
 
 In a case before the courts during the Boer War leave 
 was asked to send out a commission to examine a witness 
 locked up in Johannesburg. It was suggested that 
 General Joubert or Mr. Kruger was the proper person to 
 apply to. 
 
 (March, 1900.) 
 
 The record for originality in a plea of defence has 
 hitherto been held by the prisoner who, convicted of 
 murdering his father, urged in mitigation of sentence 
 that he was a poor orphan. The distinction is in a 
 fair way of passing to a solicitor, who was pro- 
 secuted and fined for practising without a certificate. 
 He was defended by counsel (who told the story 
 in a newspaper), and when in due course the brief 
 fee was asked for, the reply was that the soHcitor was 
 not liable, because it had been held that he was not 
 authorised to practise as such. 
 
 The great heat prevailing has not disturbed our 
 legal system beyond the discarding of a few wigs in 
 court. There was, however, once a learned judge who, 
 " in the hottest part of one of the hottest summers ever 
 known," is said to ha^ve charged a grand jury thus : — 
 " Gentlemen, the weather is extremely hot. I am 
 very old, and you are very well acquainted with 
 
LEGAL STORIES 299 
 
 what is your duty ; I have no doubt that you will 
 practise it." Some one recently observed that the 
 weather is hot enough to dissolve eVen the most 
 stringent injunctions. 
 
 (July, 1900.) 
 
 The Hon. Mr. James Beck, who carried off the 
 oratorical honours at the dinner to American lawyers, 
 in the Middle Temple Hall on July 27th, 1900, told two 
 new amusing stories. Apropos of prisoners giving 
 evidence, he said that a friend of his was once defend- 
 ing a " nigger " in a " dead case " ; after certain 
 evidence had been given, the advocate turned to his 
 cUent and said, " WeU, after that, do you think it's 
 any good your going on to the witness-stand ? " " Well, 
 coimseUor," was the answer, " I guess I'll remain 
 neutral." On another occasion, a friend was labouring 
 an elementary point of law very hard before a Court 
 of Appeal, citing authority after authority. At last 
 
 the President said, " Mr. , don't you think you 
 
 might give us credit for knowing such a simple point ? " 
 " Ah ! " was the rejoinder, " that was the mistake I 
 made in the court below ! " 
 
 The following is from the Philadelphia Press : — 
 " Gentlemen of the jury," said the judge, " the pri- 
 soner's plea is insanity. That is the question to be 
 settled : Is he insane or not ? On that point he is 
 to be judged by a jury of his peers." 
 
 During dinner in haU, a member of the Senior Bar 
 mess at the Inner Temple suddenly discovered that it 
 
300 A CHANCE MEDLEY 
 
 was the last night this century that the society would 
 dine in the Hall. Now, the Senior Bar mess is a some- 
 what privileged body ; so it promptly despatched its 
 compUments to the Bench and suggested that in honour 
 of the occasion some champagne might be sent down 
 to their table. The Senior Bencher was equal to the 
 occasion. He ordered the wine to be sent, with a poUte 
 message that the occasion was not to be made a pre- 
 cedent. 
 
 (Dec, 1900.) 
 
 A Scotsman, who spoke broad Doric, swore that, 
 being a stranger in London, he had asked some one he 
 met the way, and the latter, after accompanying him 
 some distance, suddenly turned upon him, beat him, 
 and robbed him — which was undoubtedly the fact. 
 After he had given his evidence he calmly remarked : 
 " I may as well state that this case reminds me of a 
 parable in the Bible, ' I was a stranger, and ye took 
 me m. 
 
 The (grand) juryman who secured his discharge by 
 frankly telling Judge McConneU that he wanted to go 
 to the Derby got the reward of virtue ; but he hardly 
 displayed the ingenuity of a gentleman in a similar 
 plight, who excused himself on the ground that he had 
 arranged to go to California, which is a little place near 
 Epsom not to be found in the gazetteer. 
 
 Once when the Athanasian Creed was being recited 
 at the Temple Church, a distinguished lawyer, celebrated 
 fot the leniency with which he administers criminal 
 
LEGAL STORIES 301 
 
 justice, was observed to sit down while the rest of the 
 congregation, as usual, remained standing. A lady 
 inquired the reason after the service, and was told that 
 it was because he was protesting against long sen- 
 tences. 
 
 " I am here, gentlemen," explained the pickpocket 
 to his feUow-prisoners, " as the result of a moment of 
 abstraction." " And I," said the incendiary, " because 
 of an unfortunate habit of making light of things." 
 " And I," chimed in the forger, " on account of a simple 
 desire to make a name for myself." " And I," added 
 the burglar, " through nothing but taking advantage 
 of an opening which offered in a large mercantile 
 establishment in town." — Law Times. 
 
 There used to be a story current in Colonial Office 
 circles that there were always three actual or potential 
 judges nominally attached to the Gold Coast. There 
 was one coming home in his coffin, another performing 
 the duties of the office, and a third going out ready to 
 relieve him. 
 
 A firm of solicitors had some difficulty in getting 
 their costs from a co-respondent whom they had suc- 
 cessfully represented. He objected to their bill on 
 the grounds that the items were not set out with suffi- 
 cient clearness, and that the charges were excessive, 
 and he announced his intenton of having the bill taxed. 
 The first objection was promptly met by the solicitors, 
 who inserted one item thus : " To attending you when 
 you admitted so and so." Obviously this item with 
 
302 A CHANCE MEDLEY 
 
 the rest would have to be submitted to the taxing- 
 master. But the bill was paid without going to 
 taxation. 
 
 Perhaps the best story of the late Lord Morris has 
 not yet appeared. Counsel for plaintiff had been 
 " buttering " the jury for their great moral and in- 
 tellectual virtues which were reflected in their coun- 
 tenances, and counsel for defendant had even " gone 
 one better." When it came to the judge's turn, he 
 repeated what the learned gentlemen had said, adding : 
 " All this may be true, gentlemen, but you don't 
 look it." 
 
 The friends of a prisoner in Jamaica charged with 
 murder " got at " a coloured gentleman on the jury 
 and impressed upon him that in no circumstances 
 should he consent to any other verdict than one of 
 manslaughter. They made it clear that there would be 
 opposition, but he was to stick to manslaughter and 
 not to argue. In due course the jury retired, as is 
 usual in those parts, to an upper verandah, and the 
 spectators soon saw eleven men surrounding and argu- 
 ing with one " dark " juror. The prisoner's friends 
 felt sure that their ally had not deceived them, and 
 were delighted when the unanimous verdict of man- 
 slaughter was given. Soon they met the obstinate 
 juryman. " I did as you told me," quoth he ; " they 
 all wanted to acquit him, but I would have nothing but 
 manslaughter ! " 
 
 The following story is told by a correspondent to 
 
LEGAL STORIES 303 
 
 the Times : " When the late Lord Iddesleigh, as Mr. 
 Stafford Northcote, left Oxford, he was appointed a 
 magistrate for Devon. He attended at the Castle of 
 Exeter to be sworn in, and was handed a book which 
 had been of what the late Mr. Dickens called the ' under- 
 done piecrust ' colour. It was tied round with what 
 had been, many years before, red tape. Mr. North- 
 cote did not quite like the look of it, so he took out his 
 knife and cut the tape, and on opening the book dis- 
 covered that for about thirty years the magistrates 
 had been sworn on a ready reckoner." No doubt at 
 the moment the local wag defended this volume as 
 being the Book of Numbers. 
 
 Mr. Inderwick, K.C., was elected Mayor of 
 Winchelsea. 
 
 Mayors of the time-honoured boroughs of the 
 Cinque Ports have not always been remarkable for 
 learning. Thus, at Folkestone, a " limb " or " mem- 
 ber " of this local confederation, " old Steady Baker, 
 the Mayor, had a boy as a prisoner brought before him 
 for stealing gooseberries. His worship turned over the 
 leaves of Burn's Justice, which was then the repository 
 of aU knowledge of justices' justice, but was surprised 
 and annoyed at not being able to find the article he 
 wanted in the alphabetical heads under which the 
 book is arranged. He at length lifted his spectacles, 
 and thus addressed the trembling miscreant before him : 
 ' My lad, it is very lucky for you that instead of stealing 
 gooseberries, you were not brought before me for 
 stealing a goose. There is a statute against stealing 
 geese, but I can't find anything about gooseberries in all 
 ' Bum.' So let the prisoner be discharged, for I sup- 
 pose it is no offence.' " 
 
304 A CHANCE MEDLEY 
 
 A well-known K.C., in the course of argument before 
 a judge, was reading from the report of a case in the 
 Court of Appeal. " Surely," said his lordship of one 
 point, " no authority is needed for so simple a pro- 
 position," or words to that effect. Counsel did not 
 inform his lordship that that proposition was one as to 
 which the court above had reversed his lordship's 
 own judgment. 
 
 Counsel, in the course of argument before a judge, 
 said that there was a state of mind known to medical 
 men as incidental dementia. His lordship, comment- 
 ing on this, remarked that doctors might call it by 
 that name, but lawyers preferred the good old Anglo- 
 Saxon term " temporary insanity." 
 
 The son of an eminent lawyer, who was being 
 examined vivd voce for the Bar or something legal, was 
 asked by his interrogator, who desired " to let him 
 down gently," whether he was not the son of Mr. So- 
 and-So. The youth replied that he was, and he hoped 
 he would receive full marks for his answer. Was this 
 simplicity or wit ? 
 
 The story of a-drinking judge is worth telling. O'Con- 
 nell used to relate that a certain Irish judge was so 
 fond of brandy that he kept some in court in an ink- 
 stand, and used to suck it through a quill pen. One day 
 he had to ask a witness to say truly whether he was 
 drunk or sober on a given day. " Quite sober, my 
 lord." " As sober as a judge," put in counsel, with a 
 significant look at the inkstand. 
 
LEGAL STORIES 305 
 
 In a trial a model of some complication was ex- 
 hibited, and the judges left the bench to inspect it. 
 Later on an ancient usher was heard to observe, " I 
 don't know what things are coming to here. I shall 
 have to resign my place. Their lordships this morning 
 came down into the well of the court just as if they were 
 petty solicitors." 
 
 An amusing and somewhat remarkable thing hap- 
 pened in a case where a prisoner was dissatisfied with 
 the efforts of his counsel. ' Why,' he complained, 
 ' 'e don't know nothink abaht it ! ' Whereupon the 
 judge informed him that he might conduct his own 
 defence, if he so wished. He elected to do so, and, 
 strangely enough, was acquitted. ' Had counsel con- 
 ducted your defence,' remarked his lordship, ' you 
 would certainly have been convicted.' " 
 
 A young man was taking an oath in a county court. 
 " What," said the judge, " was the last thing the 
 usher said to you ? " " Kiss the Book," said the 
 witness. " Then why didn't you ? " "I did." " No, 
 sir, you did not ; I saw you kiss your thumb." " I 
 
 beg pardon, my 1 sir, it was an accident." " Young 
 
 man, if you go about kissing things by accident, you'll 
 get into trouble." 
 
 Counsel, in arguing, cited a case A v. B. 
 " Ah," said the judge, " but in C v. D the House of 
 Lords said it was not rightly decided." " But," 
 said counsel, " in E i;. F they adopted part of it." 
 " What ! " said his lordship, " do you mean to say they 
 
3o6 A CHANCE MEDLEY 
 
 overruled themselves ? " " No, my lord, they didn't 
 overrule themselves ; they distinguished themselves," 
 
 Mr. James Beck, late a high legal officer of the 
 United States, js reported to have said at a Hardwicke 
 Society banquet (in July, 1903) : " The Secretary of the 
 Treasury had given binding instructions to admit free 
 of duty the decisions of all English judges, but to 
 rigorously keep out all of Mr. Justice Darling's 
 jokes ; " but he did not state by what test the 
 Custom House officers were to discriminate between 
 the two. 
 
 At Leeds, once two sUks, one specially retained, and a 
 junior appeared against a defendant, a solicitor, in 
 person. The latter's cross-examination of the plain- 
 tiff was so effective that the jury stopped the case before 
 it was over. 
 
 A solor. to beat 
 
 Is a very great feat. 
 
 Two silks and a stufE 
 
 Are by no means enough. 
 
 (Aug., 1903.) 
 
 A famous mot of Lord Young, a Scotch judge. A 
 testimonial was proposed to a brother judge who was 
 retiring from the bench, and who was a man of small 
 dimensions, and the question was what form it should 
 take. " Oh," said his lordship, " give him a life-sized 
 statuette." 
 
 A man convicted at the Old Bailey of stealing money 
 at one time said that he had done it to buy the 
 
LEGAL STORIES 307 
 
 Encyclopcedia Britannica (then the property of the 
 Times), whereupon the following lines were promptly 
 put in his mouth : — 
 
 What is my fault ? What are my crimes ? 
 I'm doing time for yielding to the Times. 
 
 The nolle prosequi has been immortalised in a good 
 story. About 1690 a sect of fanatics was prosecuted, 
 and one of them committed to prison. Another called 
 upon Chief Justice Holt and addressed him thus : 
 " I come to you, a prophet from God, who hath sent me 
 to thee, and would have thee grant a nolle prosequi 
 for John Atkins, His servant, whom thou hast cast 
 into prison." To whom the judge : " Thou art a 
 false prophet and a lying knave ! If God had sent thee, 
 it would have been to the Attorney-General, for He 
 knoweth that it belongeth not to the Chief Justice to 
 grant a nolle prosequi ; but I, as Chief Justice, can 
 grant a warrant to commit thee to bear him company." 
 And he did. 
 
 In an Irish case, interest on a promissory note was 
 claimed " from the issue of the writ until the Day of 
 Judgment." It was argued that nothing was due 
 until that event happened ; but the court held that 
 what was meant was the day or date of judgment, 
 which was weU within their control, and had, indeed, 
 arrived. 
 
 A judge at chambers had been toiling all day through 
 a long list — some are quicker than others. Towards 
 the end of the day counsel, evidently beaten and " at 
 
3o8 A CHANCE MEDLEY 
 
 his last gasp," observed that the judge would be slow 
 to interfere with the discretion of the master. " I am 
 slow," said his lordship. 
 
 Mr. Justice BuckniU's fall from his horse — ^happily 
 not serious — ^recalls a mot about Wbod, the famous 
 special pleader, whose horse refused to budge an inch 
 when wanted to go circuit. (" Why," said Lord Mans- 
 field, in the technical language of Wood'sxraft, " should 
 his horse have demurred when he ought to have gone 
 to the country ? " 
 
 (Jan., 1905.) 
 
 The name of Sir Francis Jeune has produced at 
 least one good pun. It was asked why marriages 
 in May are unpopular ; it was replied, " Because 
 they come before Jeune." 
 
 One famous mot of Mr. Francis Jeune^K.C, may be 
 repeated. Being engaged in some ecclesiastical liti- 
 gation in a Bishop's or Archbishop's Court (the juris- 
 diction of which it was his duty to dispute), he was 
 taxed with assisting at the prayers with which those 
 tribunals begin business. His defence was, " But I 
 prayed without prejudice." 
 
 Some one told Lord Young, a Scotch judge, that 
 the House of Lords had, on appeal, affirmed a decision 
 of his. " It may be right, for all that," said his lord- 
 ship. 
 
LEGAL STORIES 309 
 
 Apropos of the amicable litigation about Lord St. 
 Helier's will, it may be mentioned that Lord Eldon says 
 that when he went the Northern Circuit the first toast 
 at the circuit mess-table, after the King, was " The 
 Schoolmasters." " In those days," says the narrator, 
 " they made wills, etc., which furnished frequent em- 
 ployment to the lawyers." On that principle the 
 modem toast ought to be " Our Legislators." 
 
 A well-known barrister spent an " off " afternoon 
 with the judge on circuit in a motor. The situation 
 naturally led his lordship to dogmatise on a cognate 
 subject more or less topical. " There are," quoth he, 
 " four speeds to a motor, viz., (i) the rate according to 
 the police, (a) that calculated by the chauffeur in the 
 witness-box, (3) that revealed by the latter in confi- 
 dence to his own friends, (4) the true speed." Next day 
 judge and counsel appeared in court, in their respective 
 capacities, in a motor case, and counsel gave the jury 
 the benefit of the judicial analysis. 
 
 A Boston journal relates that a judge requested a 
 clerg5anan to make the customary opening prayer on 
 the sitting of his court as brief as possible. The parson 
 was equal to the occasion. He simply said : " Oh, 
 Lord ! bless this court and bless these lawyers ; make 
 them feel that life is short and time is precious, not to 
 be wasted in empty declamation. Amen ! " The 
 judge thought this might be adopted as a model. 
 
 There are two excellent legal stories in the Life of 
 Lord Granville. " Mr. Merewether," said the rude 
 
310 A CHANCE MEDLEY 
 
 Chancellor Westbury to a distinguished silk, more or 
 less publicly, " you are getting fat, disgustingly fat : 
 you are as fat as a porpoise." " In that case," re- 
 torted the Q.C., with a profound obeisance, " I 
 am evidently the fit companion of the Great Seal." 
 An admirer said of Westbury, " A Daniel come to 
 judgment." " No," said Lord Chelmsford, " not a Dan, 
 only a Bethell." 
 
 Of all forensic arts that of cross-examination is the 
 most difficult : the mot of the judge is weU known that 
 it consists in not examining crossly. In his Jottings 
 of an Old Solicitor Sir John HoUams teUs how two 
 women " posing as ladies . . . fashionably dressed 
 and very intelligent " had concocted a bogus story to 
 get a large sum. Bovill, who " had not the reputation 
 of being a severe cross-examiner," made nothing of one 
 of them, but " Ballantine, for the plaintiffs, proceeded 
 to cross-examine the other claimant with great severity, 
 transfixing with an almost fierce gaze the witness. . . . 
 The effect of the cross-examination was marvellous, 
 for in less than a quarter of an hour she fell down flat 
 in the witness-box and could not be further questioned. 
 ... In the result the plaintiffs had the verdict, but it 
 was jeopardised by the extreme severity of the cross- 
 examination." 
 
 A newspaper " reminiscing " of the old Worship 
 Street Police-court, which has been abandoned, 
 relates that on one occasion a " drunk and disorderly " 
 woman in charge of a constable escaped before she 
 could be presented in court, whereupon he went off, 
 fetched his own wife, dressed her up for the part, put 
 her in the dock in answer to the defaulter's name, and 
 paid her fine ! 
 
LEGAL STORIES 311 
 
 Judicial humour. First learned judge delivers judg- 
 ment. Second learned judge : I cannot usefully add 
 anything to what first learned judge has said. Third 
 learned judge : I agree. 
 
 Counsel, though not professionally engaged, some- 
 times-assist the court by offering a suggestion. When 
 a gentleman did this, some one, doubtless counsel 
 against whom the intervention told, remarked : 
 " When So-and-So is not in a case he is always amicus 
 curice, and when he is, he is always inimicus curice." 
 
 It is related of a witty judge that when he heard 
 that one of his brethren who was somewhat frequently 
 set right by the Court of Appeal had undergone an 
 operation, he remarked : " Poor fellow ; reversed 
 again ! " 
 
 Mr. Justice Bray was robbed of his watch. 
 It is not the first time that a judge has been 
 made the victim of crime in this manner. Mon- 
 tagu Williams, in his Leaves of a Life, tells how Sir 
 James Ingham, chief magistrate at Bow Street, lost 
 his watch. Sir James had been giving in court a 
 personal experience of human forgetfulness. He said, 
 " We are all liable to mistakes. The prosecutor thought 
 he had been robbed of his watch when it was at home all 
 the time, and I myself have been guilty of the same 
 oversight as the one in question. I was under the im- 
 pression when I left my house that I put my watch 
 in my pocket, but on arriving at this court I found 
 I must have left it at home by mistake." There 
 was an old thief at the back of the court while Sir 
 James Ingham had been relating this experience. 
 The thief, quick to seize an opportunity, whipped into 
 
3ia A CHANCE MEDLEY 
 
 a hansom cab, drove to Sir James's residence, and, 
 by representing himself to be a bona-fide messenger, 
 obtained possession of the watch. 
 
 (Sept., 1907.) 
 
 In the Lawyers' Revised Dictionary (by a Layman) 
 " adverse decision " is described as an exhibition of the 
 ignorance of the court to be explained to the client. 
 
 The Lord Chief Justice was the subject of a good story 
 at a club dinner. A man of his year went up to their old 
 college and chatted with their old servant. The latter 
 ran through " the good men " — ^i.e., the sportsmen, of 
 that day — and remarked inter alia : " Then there was 
 Mr. Webster, a good man when he was up here. I 
 haven't heard what's become of him." 
 
 (Dec, 1907.) 
 
 To Sir Fletcher Norton (probably because his offen- 
 sive manner suggested it) is attributed a famous story. 
 Counsel of that type pleading remarked that he 
 could illustrate a point on real property from his own 
 experience : " I myself have two little manors." " We 
 all know that," said the judge. 
 
 A witness in theDruce case said, " I knew the diary 
 because it looked so very old — as if it had come out of 
 the Ark." " Oh ! " said Mr. Plowden, " I suppose you 
 knew that by the watermark." But would that not 
 rather prove that it had never been in the Ark ? 
 
 (Feb., 1908.) 
 
 A young barrister had commenced his forensic 
 career in a novel and rather dangerous manner by 
 
LEGAL STORIES 313 
 
 kicking an attorney who was opposed to him on an 
 arbitration. The attorney insulted him, and, receiving 
 a kick on the breech, brought his action of assault and 
 battery, which was tried at the Lancaster Assizes. It 
 was the sporting cause of the assize. John Williams 
 (afterwards a judge), who was for the defence, ex- 
 tracted by a dexterous cross-examination the cause of 
 offence — an insulting speech — and concluded a very 
 effective address for his client with these words — 
 " An insult, a kick, a farthing, all the world over." 
 The plaintiff obtained his farthing. The counsel for 
 the plaintiff, gathering up his papers, gravely ex- 
 claimed, as he left the court, " My client has got more 
 kicks than halfpence." 
 
 Mr. Winston Churchill's good-humoured " chaff " 
 of Mr. Lloyd-George for having introduced him in Welsh 
 (which he does not understand) to a Welsh audience 
 recalls the story told by Sir H. Drummond Wolff in 
 his Reminiscences of the late Morgan Lloyd, who once 
 obtained permission from Baron BramweU to address 
 a Welsh jury, who did not understand English, in Welsh. 
 The judge had the speech translated to him, and the 
 peroration ran, " What I tell you is truth and justice. 
 And," pointing to the Baron, " when that old man in a 
 wig tells you anjrthing to the contrary, you must believe 
 me and not believe him." 
 
 (Sept., 1908.) 
 
 Innumerable stories are told of the late Mr. Sheil. 
 One, sometimes given at the expense of his gallantry, 
 may be corrected. He did not say to a number of 
 women who had been quarrelling that he could not 
 believe any of them, but " Was no man present who 
 could be called ? " He was a bachelor, and a very 
 
314 A CHANCE MEDLEY 
 
 good judge of a horse, and on one occasion his col- 
 league, Mr. Partridge, had sent a horse case over till 
 a day on which he was to sit. To be equal with his 
 colleague, who was married, when a matrimonial squab- 
 ble came on, he said, " Let it stand over tUl to-mor- 
 row," when Mr. Partridge would be sitting. 
 
 (Dec, 1908.) 
 
 In a sensational murder trial at Paris, the President 
 at a certain stage suggested that all respectable 
 women should leave the court, and no one budged. 
 Whereupon he remarked, " Now the others must go." 
 A witty contributor to the Figaro remarked that 
 the best way for the President to achieve his object 
 would have been to say, " We have now reached a 
 point at which it is very desirable that women of a cer- 
 tain age should be present " — ^then there would have 
 been a feminine stampede for the door. 
 
 Apropos of the Stoddart case, there seems to be no 
 doubt that the jury, grateful for short orations, asked 
 all the counsel in the case to dinner — ^and that the 
 latter unanimously refused the invitation. At any 
 time such a gathering must be deprecated, but in view 
 of an appeal — of which, no doubt, the hospitable in- 
 viters were forgetful — ^it would be unseemly. Indeed, 
 if the practice grew, we should have to alter a famous 
 line and read, " And wretches hang that barristers 
 may dine." By the way, it was of a very long speech 
 by a Scots counsel that a Scots judge made the famous 
 mot : " He has long since exhaustit time, and has 
 encrotch'd upon eternity ! " 
 
 (March, 1909.) 
 
LEGAL STORIES 315 
 
 The following colloquy took place between judge and 
 counsel : " Counsel : We are all under the reign 
 of law, and ought not, if we can help it, to resort to 
 self-help. Mr. Justice Darling : Why, some one wrote 
 a book about it. (Laughter.) " (The Times.) A 
 witty correspondent writes to that journal that for 
 " Laughter " we should read " Smiles." If so, ought 
 we not to insert after " the reign of law " (the Duke of 
 Argyle) ? 
 
 Collectors of coquilles may like one which recently 
 appeared in a newspaper. The " Chief Justice " of a 
 certain Court was misprinted the " Chief Usher." 
 
 The Law Times has the following good story. The 
 learned Chairman of the Middlesex Quarter Sessions 
 (Mr. Sharpe) recently sentenced an old vagrant to be 
 flogged, but the Home Secretary remitted that punish- 
 ment. Thereupon the Justice, who is also Chairman 
 of the Royal Society for the Protection of Birds, 
 received the following epistle : " Whippingham. . . . 
 Sir, — ^Having been much annoyed, in common with 
 other respectable residents, by the persistent begging 
 of a tame raven, who, though only sixty-five years 
 of age, has long been a nuisance to the district, I lately 
 decided to give this incorrigible bird a dozen strokes 
 with the birch-rod, thinking that this was a kinder 
 course than to turn him over to the cat. To my 
 surprise, I am told that your society is likely to inter- 
 vene . While I am aware of your great personal humane- 
 ness, I must say that if I may not sentence a middle- 
 aged raven to a well-deserved whipping without ques- 
 tions being asked, the country must be going (as the 
 Greeks used to say) ' to the crows.' You wUl, I am sure, 
 understand that I should not dream of inflicting corporal 
 
3i6 A CHANCE MEDLEY 
 
 punishment on any well-bred bird in rich plumage and 
 able to feather his own nest ; but in dealing with this 
 fowl old fellow, a mere vagrant and gaol-bird, Sharp 
 treatment seems best. — Yours faithfully, John Blunt." 
 
 (June, 1909.) 
 
 Apropos of the Lord Chancellor approving the Lord 
 Mayor, a good story is told of an occasion when the 
 Mayor (WUkes) happened to be a man of special 
 ability, and Lord Apsley, the Chancellor, did not. In 
 1774 the Chancellor " threatened, in the exercise of the 
 Royal prerogative, when the profligate patriot was pre- 
 sented for confirmation, to disallow the choice of the 
 citizens, till told that this would be Wilkes's reply : 
 ' I am fitter for my office than you are for yours, and 
 I must call upon the King to choose another Lord 
 Chancellor.' " 
 
 One of the reconraiendations of the Joint Select 
 Committee on the King's Bench Division, viz., that 
 the present state of things cannot be satisfactorily 
 dealt with by the appointment of Commissioners, is a 
 reminder of a good story. Buller, J., on one occasion 
 arriving at an Assize town in the Oxford Circuit, was 
 met by an " unsophisticated " Sheriff, who, moved, 
 apparently by his lordship's want of stature — ^for he 
 was under the middle height — asked him outright 
 whether he was a bon^-fide judge (it is said he pro- 
 nounced the Latin as if it rhymed with " side ") — 
 " as they had so often been fobbed off with Serjeants 
 in those parts." 
 , (Dec., 1909.) 
 
Odds and Ends 
 
CHAPTER VII 
 
 ODDS AND ENDS 
 
 An American court found that a petitioner was 
 guilty of matrimonial misconduct, while a British jury 
 found that he was not . The different States have differ- 
 ent laws on divorce, varying especially in their strin- 
 gency, and it is said that there is a house situated at the 
 meeting-point of three States in one room of which a 
 man may be by law a bachelor, in another a husband, 
 and in a third a divorcee. Query : Could he, merely by 
 going up or down stairs, commit bigamy ? 
 
 (Jan., 1897.) 
 
 Sir Frederick Pollock remarks in the introduction to 
 the Encyclopaedia of the Laws of England : People 
 seem to think it scandalous whenever the law fails to 
 do perfect justice ; yet they constantly renounce the 
 attempt in their own affairs, as when a travelling party 
 makes a rough division of expenses rather than be at the 
 pains of stating an exact account. 
 
 In Lanchbury v. Bode, perhaps the most important 
 case yet initiated by a parish council, Mr. Justice Keke- 
 wich had to consider a very ancient custom, that of pro- 
 viding a common bull and a common boar for the use of 
 
320 A CHANCE MEDLEY 
 
 the parishioners of Haddenham, Bucks. The records 
 relevant to the issue went back as far as 1312. It was 
 stated that the custom in question was mentioned by 
 Shakspeare and Sterne. That is not quite accurate ; 
 a similar custom, not that of Haddenham, is alluded to. 
 Prince Henry says oi Mistress Quickly and DoU Tear- 
 sheet, " Even such kin as the parish heifers are to the 
 town bull." {Henry IV, Part II, Act II, Sc. 2.) " My 
 father," says Tristram Shandy, " whether by ancient 
 custom of the manor or as impropriator of the great 
 t5rthes, was obliged to keep a bull for the service of the 
 parish " (c. 92), and the chapter ends with Yorick's 
 immortal invention of a " cock-and-bull " story. 
 
 (Jan., 1898.) 
 
 Mr. Gladstone's connection with the Bar is recorded 
 in the following entry on the roU of Lincoln's Inn : 
 " William Ewart Gladstone, of Christ Church, Oxford, 
 B.A., aged twenty-three years, fourth son of John 
 Gladstone, of Fasque, in the county of Kindcardineshire, 
 Esquire. Sureties : D. Robertson, 22, Bedford Square ; 
 and Thomas Gladstone, Albany. Admitted 25 January, 
 1833." His name remained on the list of students 
 till 1839 {Law Journal), but he was never called. His 
 opinion of law was expressed in his Rectorial address 
 to the University of Glasgow in 1879. " As the god 
 Terminus was an early symbol of the first form of pro- 
 perty, so the word law is the venerable emblem of the 
 union of mankind in society. Its personal agents are 
 hardly less important to the general welfare than its 
 prescriptions, for neither statute nor Parliament nor 
 Press is more essential to liberty than an absolutely 
 free-spoken Bar. Considered as a mental training the 
 profession of the Bar is probably in its kind the most 
 
ODDS AND ENDS 321 
 
 perfect and thorough of all professions. For this very 
 reason, perhaps, it has something like an intellectual 
 mannerism of its own andadmits of being tempered with 
 advantage by other pursuits lying beyond its own pre- 
 cincts as well as by large intercourse with the world, 
 by studies not only such as those of art and poetry 
 which have beauty for their objects but such as history." 
 
 An announcement such as the one which has just 
 been issued from the Crown Office must be rare and 
 unique in om: history. It is to the effect that her 
 Majesty has ordered that " the children of the eldest son 
 of any Prince of Wales " are to have the title Royal 
 Highness. The law has for centuries carefully pro- 
 vided for the dignity of the " king's children," under 
 which term grandsons have anciently been included, 
 but it has seldom, if ever, taken thought of reigning 
 sovereigns' great-grandsons, for the obvious reason 
 that they have seldom or never existed. And if it 
 were not for the power which her Majesty (as " the 
 fountain of honour ") has just exercised, her lineal 
 descendants would actually, in her lifetime, in the lan- 
 guage of Blackstone, " fall into the rank of ordinary 
 subjects " (so far as title is concerned). It is worth 
 noticing that in this case the distinction is conferred 
 by letters patent under the Great Seal exactly as in 
 the ordinary creation of peers or baronets, and that it 
 is confined to the children of the Prince of Wales's 
 eldest son. 
 
 (June, 1898.) 
 
 Novelists' law nowadays very often is wrong. But 
 there are some remarkable exceptions among the best 
 
322 A CHANCE MEDLEY 
 
 writers of fiction. Shakspeare's law has been attacked, 
 but was vindicated by Lord Chancellor Campbell in 
 a little book which sought to show that the poet had had 
 a legal training. The trial in Pickwick is, of course, a 
 caricature, but that at the Old Bailey in the Tale oi 
 Two Cities is accurate. George Eliot made Felix Holt 
 turn on a rare but good point of law, and a few years 
 ago, when Perlycross appeared, Mr. Blackmore was 
 specially praised for his legal accuracy. On the other 
 hand, in Wuthering Heights there is a deal of bad law. 
 
 In the Map of Life Mr. Lecky thinks it worth while 
 once more to parade the stale, purblind old views on the 
 immorahty of the advocate who beUeves that his cHent 
 is guilty, etc. " But necessary and honourable," he 
 says, " as the profession may be, there are sides of it 
 which are far from being in accordance with elu austere 
 code of ideal morals." This is not so ; the principles of 
 honour are identically the same for the lawyer as for 
 every other honourable man. The confusion in the 
 popular mind — ^which Mr. Lecky ought not to in- 
 crease — ^is due to failure to distinguish between knowing 
 that a client is guilty and believing it. .With his mere 
 belief, it cannot be too widely known, that his dient 
 is guilty an advocate has, so to say, nothing to do, 
 because it is no part of his duty to form any belief on 
 the subject. If, as a matter of fact, he does, sind it is 
 adverse to the accused, in nine hundred and ninety- 
 nine cases out of a thousand he is not practically 
 compelled to undertake the defence, and in the thou- 
 sandth he is, despite his own opinion, abundantly justi- 
 fied morally in doing so. But where he has actual 
 knowledge of guilt — ^that is, practically, only in the case 
 of a confession — ^the case is quite different. Now, 
 
ODDS AND ENDS 323 
 
 first, this happens in fact so rarely as to make discussion 
 of it unprofitable. Then, of confessions, many are of 
 moral, not of legal guilt ; the prisoner, conscious of 
 having done wrong, would often plead guilty when 
 there is no offence against the law. Would the most 
 austere moralist say that in such a case it was immoral 
 to advise a plea of not guilty ? There remains the case 
 of actual legal guilt and explicit confession. It cannot 
 be doubted that here the advocate's duty, as a man of 
 honour, is to say to the defendant : " Then you must 
 teU the truth and plead guilty." Courvoisier's case in 
 1840 is quite exceptional and a bad precedent. There 
 the murderer confessed to Phillips, his counsel, in the 
 course of the trial. The judge who " declared that Phil- 
 hps was bound to continue to defend the prisoner " 
 can only have meant that he was entitled to see that 
 the Crown made out its case against the prisoner ; of 
 course Phillips was not at liberty to, and did not, assert 
 his innocence, and had the trial not begun could hav6 
 withdrawn from the case without hurting the chent. 
 As it was, the most he could do was to give effect to the 
 view of the law itself that a plea of not guilty only 
 means " I admit nothing, you must prove your case." 
 But, if he had chosen, he was perfectly free after the 
 confession to throw the case up ; the prisoner could not 
 (as Mr. Lecky thinks) have " directed Phillips to defend 
 him to the last extremity.'' No advocate, no man, is 
 bound to promote in any way a cause he knows to be 
 wrong. 
 
 The subject of the " ethics of advocacy" has just 
 been admirably illustrated by a case at the Worcester 
 Assizes. Papers and a fee were handed successively 
 to at least two counsel by a man in the dock who 
 
324 A CHANCE MEDLEY 
 
 wanted to be defended. Each declined on the ground 
 that they thought that he must be convicted ; in effect, 
 they advised him to plead guilty. This he would not 
 do, but he mentioned to Mr. Justice Mathew the bare 
 fact that counsel had refused to defend him. This 
 made the judge angry, and he exclaimed, " How is 
 that ? Counsel are obliged to undertake dock defences 
 if they are present in court. They are here for the 
 purpose of inviting retainers, and I am surprised that 
 the prisoner has had difficulty in obtaining the assist- 
 ance of counsel. It used not to be so." It is clear that 
 Mr. Justice Mathew, at any rate, does not think that 
 counsel's belief as to the client's iimocence or guUt 
 has anything to do with the matter, and this case 
 demonstrates that if it had there might be an end of 
 legal justice, the only variety that can possibly be ad- 
 ministered by tribunals. For, in the end, the prisoner 
 was actually acquitted, having been ultimately defended 
 by one of the gentlemen who had refused to act. Clearly, 
 here counsel, in thinking too scrupulously of their 
 own honour, had all but jeopardized the prisoner's. 
 This incident alone ought to put an end to the rubbish 
 about the " immorality " of the advocate. 
 
 (Dec, 1899.) 
 
 The French ladies who recently petitioned her 
 Majesty to reprieve the French murderess would, per- 
 haps, hardly believe that the Queen herself really has 
 not the power. She can only exert her prerogative 
 of mercy on the advice of the proper Minister. In the 
 recent Life of Sir Robert Peel it appears that more 
 than ^once George IV got into serious trouble with his 
 Ministers in England and Ireland for taking such 
 matters into his own hands, alwaj^ with a merciful 
 
ODDS AND ENDS 325 
 
 end, — ^proving incidentally, that he had some good 
 qualities. 
 
 (Jan., 1900.) 
 
 The late Mr. Blackmore is, perhaps, the solitary 
 instance in recent times of a successful practising bar- 
 rister giving up his profession for literature and fiction. 
 In his novels he turned his knowledge of the law to 
 such good account that when his Perlycross appeared, 
 the late Dr. Showell Rogers, a most competent critic, 
 wrote, " Would that all novelists were as well equipped 
 and as accurate and fair in matters appertaining to 
 the law and the lawyers as is the author of Perlycross." 
 To find a parallel to such a combination we must go 
 back to Mr. Samuel Warren, Q.C., or " Tom " Hughes, 
 who, however, succeeded in law and literature simul- 
 taneously. Robert Louis Stevenson was a member of 
 the Scotch Bar, and Mr. Stanley Weyman, Mr. H. D. 
 Traill, Mr. Anthony Hope, and Mr. F. C. Philips are 
 members of the EngUsh Bar. 
 
 The distribution of shamrock by Lord RusseU to his 
 colleagues in the Court of Crown Cases Reserved on 
 St. Patrick's Day was peculiarly apt and timely. He 
 made it (with apologies to another great Irishman for 
 altering a letter or two) : — 
 
 Chosen leaf 
 
 Of Bench and chief. 
 
 Old Erin's native shamrock ! 
 
 It may safely be assumed that General Sir Alfred 
 Gaselee, the commander of the Indian force about to 
 
326 A CHANCE MEDLEY 
 
 proceed to China, comes of a well-known legal family, 
 as does General BuUer, now engaged in our other war. 
 Sir Stephen Gaselee was judge of the Common Pleas 
 from 1824 to 1837, his son was a Serjeant-at-Law, who 
 died in 1883. Other members of the family — if so rare 
 a name is a mark of affinity — ^have been at the bar. 
 The judge, as is well known, is the original of Dickens's 
 Mr. Justice Stareleigh (Gase = Gaze = Stare), who pre- 
 sided at the trial of BardeU v. Pickwick. Apropos of this 
 cause cSlebre, Dickens students may like to know that 
 there is a reported case, in 1827, namely, Brooke v. Pick- 
 wick (4 Bingham, 218), where the defendant was the 
 well-known coach proprietor of Bath, Mr. Pickwick, from 
 whom Dickens avowedly took the name of his immortal 
 papers. The action was to recover damages for the 
 loss of a trunk, and one of the judges was Gaselee, J. 
 Here we have two of the chief figures in the great scene 
 meeting in actual life in the same capacities as in the 
 better known book. 
 
 (June, 1900.) 
 
 It is said that " in some parts of America, it seems, 
 marriage is little more than a farce." Thus, a woman 
 in Des Moines obtained a divorce because her husband 
 became a Freemason against her wishes,' and another 
 because her husband grumbled at his food. In Kansas 
 City a wife was granted a divorce on the ground that her 
 husband only washed his face once a week ; and two 
 other wives, one in Napoleon, Ohio, and another in 
 Cleveland, were allowed to divorce their husbands 
 because they were jealous. 
 
 At a recent pubUc function Mr. Birrell, Q.C., was 
 hailed as a " modern Macaulay." A seat in Parha- 
 
ODDS AND ENDS 327 
 
 ment, a speech on copyright, and some essays are, 
 indeed, common to these eminent persons, but, after 
 aJl, the earlier writer did turn out some other trifles 
 besides essays, and he would have been surprised to 
 hear his volumes full of weighty judgments dismissed 
 as obiter dicta. " I wish," said Sydney Smith, " I was 
 as cocksure of anything as Tom Macaulay is of every- 
 thing." Nor, despite his versatility, have we yet heard 
 that Mr. BirreU has dropped into poetry. 
 
 (July, 1900.) 
 
 The tide of Feminism has at length invaded the law. 
 A Scots lady has petitioned the Court of Session to be 
 admitted to the sohcitors' examination, and, as appar- 
 ently she " means business," that tribunal will have 
 solemnly to decide the question of woman's rights in 
 this form. In this country there have not been wanting 
 champions of this cause on the bench. Campbell 
 says of Chief Justice Lee in 1737 that " his fame may 
 have increased from his having had the good word of 
 the fair sex. He certainly stood up for the rights 
 of woman more strenuously than any English judge 
 before or since his time." It appears that there were 
 two candidates for the office of parish sexton of St. 
 Botolph's, in the City — ^namely, John Olive and Sarah 
 Ely. For Sarah 169 men voted and forty women, while 
 John got the suffrages of 174 men and twenty-two 
 women — and the place. The question was whether he 
 was properly sworn in, and Lee thought he was not, 
 holding that a woman might be sexton of a parish, and 
 adding " it would be strange if a woman may herself 
 fill the office and yet should be disqualified to vote for 
 it." So he further decided that the women's votes 
 were good. " Women," he remarked, " have held 
 
328 A CHANCE MEDLEY 
 
 much higher offices and, indeed, almost all the offices 
 of the kingdom, as Queen, Marshal, Great Chamberlain, 
 Great Constable, Clxampion of England, Commissioner 
 of Sewers, keeper of a prison,* and returning officer for 
 members of Parliament." If this particular lady's 
 attempt is successful it wiU be a significant mark of the 
 new century, the end of which may be familiar with the 
 sight of lady barristers — a new race of " bar-maids," 
 as Punch cajls them. A hundred years hence the toast 
 of " Our Mothers in Law " may be quite popular. 
 
 (Dec, 1900.) 
 
 In the Maidstone Gazette of January, 1815, occurs 
 an authentic instance of the sale of a wife, — ^appa- 
 rently illustrative of the local manners of the time. 
 There is an even more remarkable instance in Mr. 
 Mackay's work on the Poor Law. In 1814 a " con- 
 tractor for the maintenance of the parish paupers," 
 according to the system then in vogue, in order to 
 lessen his liabilities, prevailed on a pauper husband to 
 sell his wife, who was in the Effingham workhouse. 
 Accordingly the overseers directed the contractor to 
 take her to Croydon on the next market day in a halter, 
 and she was then sold by her husband to one E^l for 
 a shilling, which sum was provided by the contractor. 
 The receipt, " in order to bind the bargain," which is 
 stUl in existence, bore a five-shilling stamp, and ran : 
 " Received of John Earl the sum of one shilling, in full; 
 for my lawful wife, by me, Henry Cook." It is incredi- 
 ble, but it is true, that aU the parochial officials regarded 
 these proceedings as quite regular. The governor of the 
 workhouse took back the (new) happy pair to that 
 retreat, and the rest of the honeymoon was spent in 
 the bridegroom's parish, where, after the publication 
 
ODDS AND ENDS 329 
 
 of the banns on three Sundays, the couple went through 
 the ceremony of marriage, the parish ofificers providing 
 the wedding feast. After they had lived together 
 many years, Earl discovered that the marriage was not 
 valid , and deserted ! Thereupon the wife became charge- 
 able to the first husband's parish. " All the expenses 
 incurred in these transactions were duly entered in the 
 parish books and were passed by the parish vestry." 
 Incidents of this sort seem to have impressed the French 
 mind deeply and to have entered into their traditional 
 view of our domestic habits. So perhaps it may be 
 mentioned that the contract of sale had absolutely no 
 validity. The stamp was clearly not ad valorem. 
 
 A Chicago judge granted a new trial, because the 
 verdict largely depended on women's evidence, 
 " Though women," quoth he, " are upon a higher moral 
 plane than are men, they are not as trustworthy as wit- 
 nesses. . . . they come to believe as true what they at 
 first only imagined, and maintain their beUef in spite of 
 aU evidence against it." 
 
 Hatsell repeats the following story of the House of 
 Commons in 1675 : — " Some ladies were in the gallery, 
 peeping over the gentlemen's shoulders. The Speaker, 
 spjTing them, called out, ' What borough do those 
 ladies serve for ? ' To which Sir WiUiam Coventry 
 replied, ' They serve for the Speaker's Chamber.' 
 Sir Thomas Littleton said, ' Perhaps the Speaker may 
 mistake them for gentlemen with fine sleeves, dressed 
 like ladies.' Says the Speaker, ' I am sure I saw petti- 
 coats.' " 
 
330 A CHANCE MEDLEY 
 
 Apropos of the trial of peers by the House of Lords, 
 the story has been revived — ^by writers who ought to 
 know better — ^that a peer who is condemned to be 
 hanged is entitled to the privilege of a silken rope. 
 There is not the slightest foundation for this theory. It 
 is probably to be traced to an incident in the execution 
 of Earl Ferrers in 1760, when a contemporary account 
 in the Gentleman's Magazine speaks of "his arms 
 secured by a black sash and the cord put round his neck." 
 As this was the last occasion, the hanging of a peer is 
 obviously a rare event. Were it more frequent, this 
 absurd illusictti would be dispelled. 
 
 (June, 1901.) 
 
 An application for bail on the ground that the place 
 of detention (Holloway Ptison) was infested with 
 vermin is probably unique. The application was made 
 on Tuesday at the Mansion House, and it was stated 
 that the Deputy-Governor, whose attention had been 
 called to the verminous state of the prison, while 
 admitting the truth of the charge, had said that he 
 " could not help it." 
 
 (Aug., 1907.) 
 
 The announcement that Sir Edward Clarke has been 
 appointed Keeper of the Black Books at Lincoln's Iim 
 does not imply any special magisterial authority on 
 his part over naughty juniors of that society. His new 
 charge consists of five manuscript volumes, which are 
 mentioned as early as 1422, and which, in fact, are part 
 of the Inn's archives. It does not appear whether they 
 are black from age, or bound in that sober hue. They 
 must not be coiiounded with the Black Book of the 
 
ODDS AND ENDS 331 
 
 Admiralty. The office of Keeper is generally followed 
 in due course by that of Treasurer. 
 
 In 1861 there was a historic suit about the late Mar- 
 quis of Bute, " Lothair." He was a ward in Chancery, 
 and, to cut a long story short, his two guardians quar- 
 relled about him, and the lady guardian suddenly 
 carried him off to Scotland. The Court of Chancery 
 directed that he should be brought back ; but the 
 Scotch court, holding that he was a domiciled Scotch 
 subject, refused to let him be taken out of their juris- 
 diction. The House of Lords, however, administered 
 a rebuke to the Scotch judges, the most severe being 
 that by the Lord Chancellor, Campbell, himself a 
 Scotsman. It was then laid down that in the case of 
 infants there ought to be perfect reciprocity of action 
 between the courts of the two countries, and that both, 
 representing the Sovereign as parens fatricB, ought to 
 think of nothing but the benefit of the infant. 
 
 A proposal for the improvement of the drafting of 
 Acts comes from Mr. Bryce, a jurist and ex-Cabinet 
 Minister, in his new work : " The remedy for the present 
 defects of British statutes which seems least inconsis- 
 tent with our Parliamentary methods would be to refer 
 each Act, after it had passed both Houses, but before 
 it received the Royal assent, to a small Committee of 
 skilled draftsmen and of skilled members of both 
 Houses, who should revise the form and language of the 
 Act in such wise as, without in the least affecting its 
 substance, to improve its arrangement and its phrase- 
 ology, the Act being formally submitted once more to 
 both Houses before the Royal assent was given, so as 
 
332 A CHANCE MEDLEY 
 
 to prevent any suspicion that a change of substance had 
 been made." {Studies, Essay 14.) 
 
 When the coronation of George IV was impending, 
 Elliston, then manager of Drury Lane Theatre, claimed 
 that " His Majesty's servants," the actors there, 
 should take some part in the ceremony. The claim 
 was refused, and Elliston resolved to outshine the real 
 pageant on the stage. He himself took the part of the 
 King, and two hundred of the East India Company's 
 men were engaged to make the mimic Court. So 
 gorgeous a spectacle had never been seen on English 
 boards, and the venture was a huge success. Even a 
 coronation medal was struck and presented to the first 
 three hundred spectators to arrive. Audience and 
 actors were quite carried away by the tinsel glories, 
 arid the latter for long retained the names of the great 
 officers they had represented. Thus, " King " Elliston 
 once got a note : " The Lord Chancellor presents, etc., 
 and regrets that a sudden attack of the bowels prevents 
 his fiulfilling his duties this evening." The " King," 
 too, on one occasion, intoxicated by the applause of his 
 " people," suddenly exclaimed," Bless you, my people ! " 
 
 People who descant on the enormity of counsel 
 defending prisoners whom they " know "to be guilty 
 should attend to a case which happened at the 
 Old Bailey. A man pleaded guilty before the Recorder 
 to a serious offence against a woman. Something the 
 girl let fall when questioned by the judge induced him 
 to order a plea of not guilty to be entered, and the 
 prisoner to be tried before another judge and jury, at 
 the same time asking Mr. Burnie to defend him. This 
 
ODDS AND ENDS 333 
 
 was done, with the result that the man was acquitted, 
 the jury believing that the prisoner thought the girl 
 was over age. Here was a case where an ignorant man, 
 knowing that he was morally guilty, assumed that he 
 was charged with immorality, and so confessed it. 
 Will the sternest " precisian " contend that this man 
 was not entitled to his legal defence ? 
 
 (June, 1902.) 
 
 Judge Willis's trial of the issue. Who was the author 
 of Shakspeare's plays ? (in a lecture at the Inner 
 Temple on May 29, 1902) was, hke the cat's tail in 
 Alice in Wonderland, " very, very long, but very, 
 very beautiful." It lasted two hours and a half, but 
 maintained its interest throughout. Short of proof 
 by eye-witnesses who saw Shakspeare put pen to paper 
 — ^which, after all, would decide nothing as to his origin- 
 ality, for he- might have learned what he wrote by 
 heart — Mr. Willis carried the matter as far as it could 
 possibly be carried by evidence. The point of this 
 new contribution to the subject is that the theory of 
 the Baconians is submitted to the severest logical 
 test — ^namely, that of the rules of legal evidence, and 
 the whole of the inquiry was conducted in strict foren- 
 sic form, the depositions of the witnesses, for instance, 
 being taken word for word from their published writings. 
 To save time some witnesses were not called, but when 
 the whole report was printed their " proofs," i.e., what 
 they might have said, were included. The case is so 
 clear that perhaps it was unnecessary for the judge or 
 counsel to point out that during all the years the plays 
 were appearing not a scintilla of connection or com- 
 munication, direct or indirect, was alleged between 
 Bacon and Shakspeare. The form in which the lecturer 
 
334 A CHANCE MEDLEY 
 
 threw his apologue — ^that of a report of Hall v. Russell, 
 in 1627, which had come into his hands — ^led to an 
 amusing sequel. A member of the Inn begged per- 
 mission to see the manuscript he read. Another very 
 learned lawyer said he didn't seem to have heard of the 
 case before. Another mot on the main controversy is 
 attributed to a well-known satirist, who said, " Ex-- 
 hume the bodies of Bacon and Shakspeare, and let 
 
 [a great living actor] recite Hamlet over the 
 
 coffins. The real author is sure to turn in his," 
 
 Two notable books by lawyers appeal to a far 
 larger circle than that of the profession. Mr. H. H. 
 Bellot's Inner and. Middle Temple (Methuen and Co.) is 
 a history of one of the most national spots, if the 
 phrase may be used, and, as it is profusely illustrated, 
 an intellectual guide-book by a native who thorough- 
 ly knows his country. The other, issued by the 
 Inner Temple, is Judge Willis's handsome volume on 
 the Shakspeare-Bacon Controversy. Only a few words 
 need be cited from the author's vindication of the 
 lawyer's claim to pronounce on the great literary 
 issue : — " The Shakespeare-Bacon controversy involves 
 to-day questions of character, and if it had arisen soon 
 after the publication of the Folio volume might 
 have involved questions of property. There is no 
 better method [for determining questions of reputa- 
 tion and of property than the method of judicial 
 investigation." And in the following the jt4dge 
 speaks : — " By retailing gossip of the worst kind some 
 have endeavoured to make Shakespeare an adul- 
 terer and a drunkard ; some have also endeavoured to 
 establish his youthful ignorance by retailing an anec- 
 dote which never saw the light until 137 years after 
 Shakespeare's death. . . . The story came in the fol- 
 
ODDS AND ENDS 335 
 
 lowing way : D'Avenant heard it from some one. 
 D'Avenant told it to Betterton, Betterton told it to 
 Rowe, Rowe told it to Pope, Pope told it to Newton, 
 Newton told it to Johnson, Johnson told it to Shiels, 
 who told it to the world." 
 
 (Sept., 1902.) 
 
 Sir Robert Anderson tells an amusing story from his 
 own experiences. Twenty years ago a noted criminal, 
 anxious to return to " business " on release, set himself 
 to get a friend out who still had some years to " do." 
 " For a few shillings a week he rented a wayside cottage 
 in a Midland county, christened it something or other 
 HaU, and from this address wrote a ' Dear Sir,' to the 
 Secretary of State." The writer had known the con- 
 vict's family long, was sincerely grieved at his fall, but 
 felt sure, now that the latter had succeeded to a large 
 fortune, that he would give the authorities no further 
 trouble, etc., etc. The convict was promptly released 
 on licence. 
 
 The police have lately been posting contingents of men 
 aU over London near spots where the unemployed 
 congregate. These contingents are now frequently 
 posted in the Temple. 
 
 (Feb., 1903.) 
 
 Mr. Justice Kekewich's eye is like the Rontgen rays 
 — ^it penetrates beneath the surface, and a few days ago 
 it perceived a grey costume beneath counsel's robes. 
 For centuries judges have been unable to " see " coun- 
 sel who were not in forensic habit, but the learned 
 
336 A CHANCE MEDLEY 
 
 senior judge of the Chancery Division has gone " one 
 better," and dedined to see a barrister, not because he 
 had some garments off, but because he had them on. 
 Surely, in the absence of anything sartoriaUy loud or 
 offensive, if counsel wear the professional uniform, that 
 is a sufficient compliance with etiquette ; if not, will Mr. 
 Justice Kekewich kindly say at what precise hue he 
 draws the line ? How far does he carry his spectrum 
 analysis ? Perhaps, too, it is a little hard on the client. 
 Did the learned judge reason thus ? — 
 
 Your law is right, the case is clear — 
 The record me assures ; 
 Your client's suit I cannot hear 
 Because I can see yours. 
 
 (July, 1903.) 
 
 Mr. John Morley's Gladstone discloses very little of 
 the latter's views on law and lawyers, but there is at 
 least one interesting passage in a letter of 1865 about 
 the famous dinner in honour of M. Berryer in Middle 
 Temple Hall, at which Mr. Gladstone was present. " I 
 was the only layman among five hundred lawyers ; 
 and it made me, wickedly, think of my position when 
 locked alone in the Naples gaol " (vol. ii p. 140). 
 
 Mr. Justice Darling rather missed a point in his 
 amusing summing up in a music-hall-song cop5Tight 
 case. Everybody will agree with him that it is " rather 
 melancholy that there should be any legal copyright in 
 such rubbish as the song in question ; but it was quite 
 possible to have a copyright in arrant nonsense." 
 Did the learned judge forget that there is a good deal 
 of avowed nonsense with more literary value than. 
 
ODDS AND ENDS 337 
 
 say, most of the fiction which appears ? How about 
 Lear's book, which goes by the very name ? Or 
 Alice in Wonderland ? The fact is that there is an 
 art of writing and talking nonsense, as well as a mere 
 factilty. 
 
 (May, 1904.) 
 
 Judicial denunciations of the draughtsmanship of 
 statutes are too common to attract attention nowadays, 
 but a contemporary apropos de rien has just referred to 
 a similar muddle which turns out to have been perpe- 
 trated in 1809. An act for building a chapel of ease in 
 the pleasant town of Worthing is entitled an Act for 
 paving and improving that place, and one for effecting 
 that good end is entitled " for building a chapel of ease " 
 there (49 G. Ill c-cxiv. and c. cxv.). Lord Thring, in 
 his amusing introductions to his book on drafting, men- 
 tions the following definition in the Darlington Im- 
 provement Act of 1872. " The term new building 
 means any bxiilding puUed or burnt down to or within 
 10 ft. from the surface of the adjoining ground." These 
 instances, however, cannot compete with the following 
 headnote popularly attributed to a learned gentleman, 
 afterwards a county court judge : " The plaintiff was 
 bitten by a stray dog at a railway station while waiting 
 for a train. It was proved that at 9 p.m., the dog flew 
 at and tore the dress of another female ; that at 10.30 he 
 attacked a cat in the signal-box near the station, when 
 the porter there kicked him out, etc., etc." (Smith v. 
 Great Eastern Ry. Co., L. R. 2 C. P. 4, in 1866). It 
 is only fair to add that the plaintiff was a woman. 
 
 The idea of making law an experimental science is 
 
 z 
 
338 A CHANCE MEDLEY 
 
 characteristically American. Thus the Harvard Law 
 Club endeavoured to sift the value of ocular testimony. 
 The experiment apparently is unique. A, B, C, and D 
 — ^four members of the club — ^were told to watch at a 
 given time and spot what happened between two other 
 members — ^E and F — and to report. A was a friend 
 of E, and B of F ; C and D did not know E and F, 
 who had carefully rehearsed their effects. E and F, 
 met and quarrelled and struck by appointment ; a 
 bystander intervened. It is impossible to go into the 
 d«taUs of this sordid and internecine squabble, but 
 ultimately E sued F for slander in the use of the words 
 " You hit me in the back." F denied this, but said the 
 fact was true. The evidence of each witness was taken 
 down the same afternoon, and the trial was a fortnight 
 later. Thus the conditions were very favourable to 
 accuracy. Yet in the end, " after listening to all of 
 the testimony, the jury were in hopeless confusion." 
 Here, the assault and the attending circvunstances 
 were extremely simple, not lasting more than eight or 
 ten minutes. The witnesses were above the average in 
 mental ability. . . . They knew at the time that they 
 would have to testify to the occurrence. They were 
 honest. . The fact that two were friends of the parties 
 did not seem to make any difference." Yet they con- 
 tradicted each other, and some saw one thing and some 
 another. The doings of the bystander, especially, 
 were differently interpreted. 
 
 We have recently been reminded that the wearer of 
 the first silk hat in London, one Hetherington, a haber- 
 dasher of the Strand, brought himself into contact with 
 the law " f or a breach of the peace and inciting to riot " 
 in that his public appearance in " a tall structure, 
 
ODDS AND ENDS 339 
 
 having a shiny lustre, and calculated to frighten timid 
 people " led to a street tumult. The Lord Mayor, 
 in 1797, bound him over in five hundred pounds — 
 apparently, not to wear it again. (So the Times, it is 
 said,, of January 16, 1797.) But the law may claim it 
 earlier than this, for in the Memoirs of the famous 
 John Adolphus his daughter tells the following tale : 
 " He (before 1784, when he was sixteen) went to call 
 on a lady of high fashion and great beauty, residing in 
 Albemarle Street. When she saw him, she exclaimed, 
 ' Bless me, Jacky, you have a man's hat ! ' It was the 
 first he had ever had. . . . The lovely lady put it on, 
 and looking at herself in the glass, exclaimed, ' I shall 
 ride in the park in your hat.' The horses came to the 
 door, and she did go in his hat. From that day to this 
 the man's hat has been the fashion." It is possible 
 that the Adolphian garment differed from the Hether- 
 ingtonian of thirteen years later in shape, but, at any 
 rate. Fashion still lies under a debt to Law, which has 
 often since declared that the masculine is to be taken 
 as the feminine. 
 
 (Feb., 1905.) 
 
 There has been some criticism of Lord Robertson for 
 making a purely political speech during a debate in 
 the House of Lords. But surely, if Chancellors andex- 
 ChanceUors (e.g., Eldon, Lyndhurst, Brougham, Lord 
 Halsbury) and Chief Justices (e.g.. Lord Denman) may 
 support their respective parties from their places, a 
 Lord of Appeal in Ordinary may. Still there is a grow- 
 ing feeling that the divorce between the Bench and 
 politics should be complete, in which case the Chancel- 
 lor would cease to be a member of the Government. 
 
 (Aug., 1905.) 
 
340 A CHANCE MEDLEY 
 
 Since the historic conflict, in 1854, between the 
 Bishop of Oxford and Lord Chancellor Westbury in the 
 House of Lords, no such challenge has been hurled at 
 the Church by the Law as that of Judge Rentoul, K.C., 
 a few days ago at a temperance (or semi-temperance) 
 meeting at the Mansion House. " If," he is reported, 
 " the Archbishop would ask the Lord Mayor to give a 
 teetotal banquet to the Church next year more good 
 would be done than by aU the talking that afternoon. 
 He threw that out as a challenge to his Grace." In the 
 previous case Wilberforce scored by remarking on 
 Frith's portrait of Westbury : " Like him ? Yes, but 
 not wicked enough." Will the Archbishop retort ? 
 It is a great opportunity for dry humour. 
 
 (Oct., 1905.) 
 
 Two hundred years ago, on February 27, John Evelyn 
 died — a man who, in these days of Pepys-worship, 
 ought not to be forgotten. On February 13, 1636, 
 when he was sixteen, he says : "I was admitted into 
 the Middle Temple, London, though absent, and as yet 
 at schoole." Was juvenile precocity more marked 
 two centuries ago, or was the standard at the M.T. 
 lower ? Again, April 27, 1640 : " I went to London to 
 be resident in the Middle Temple. My being at the 
 University, in regard of these avocations, was of very 
 small benefit to me." Could any one say this now? 
 He seems to have lived in Essex-court, " four pair up," 
 which " did not much contribute to the love of that im- 
 polish'd study " — ^the law ! At any rate, he was never 
 called. 
 
 (March i, 1906.) 
 
 There has been no Regent appointed in the absence 
 
ODDS AND ENDS 341 
 
 of the Sovereign from this country since 1732, when 
 Queen Caroline acted in that capacity. Even Lords 
 Justices with defined powers have not been appointed 
 since 1821, and that practice may be considered to 
 have fallen into desuetude. The fact, says Sir William 
 Anson, that the Sovereign " is absent from the realm 
 does not impair the validity of any executive act done 
 during such absence ; and modern facilities of com- 
 munication have enabled the " Sovereign " to give 
 the Royal assent to bills, by Commission, and to trans- 
 act other business without inconvenience to the con- 
 duct of government during visits abroad." Indeed, if 
 the Sovereign takes a Secretary of State with him, as 
 her late Majesty sometimes did, " he could perform any 
 Royal act required with as much validity and effect 
 on the Continent of Europe as if it were done " in his 
 own dominions (Todd). The absence of the Sovereign 
 and the Prince of Wales at the same time has been rare. 
 
 (March, 1906.) 
 
 There was a most amusing " symposium," in the Grand 
 Magazine for July, 1906 on " The Secret of Success^n 
 the Law." The judgment of the contributors may be 
 summed up, perhaps, in the words. Interest and 
 Principle. Thus, a " judge with a large experience of 
 the administration of justice, both on the civil and the 
 criminal side, who desires to be anonymous," says : 
 " I knew two students who were friends — competitors 
 at the examinations. The one was the victor easily at 
 the examinations, and was much the better speaker. 
 They have been at the Bar many years now. The less 
 gifted one has a great practice ; the other has always 
 been barely able to live. I heard the one say that he 
 knew one hundred and twenty solicitors the day he was 
 
342 A CHANCE MEDLEY 
 
 called. I heard the other say he knew only one. Those 
 one hundred and twenty solicitors made the success. 
 So influence is the whole thing, and will make any man 
 at the Bar not utterly incapable." Among other 
 specifics recommended by members of the faculty are 
 " a little starvation " (Eldon) ; " parts and poverty " 
 (Lord Talbot) ; " industry, impudence, interest " (Mr. 
 Plowden) ; being " very much in love," inter alia 
 (Sir Edward Clarke) ; " frugality, industry, and a good 
 digestion," flus " good common sense " (Sir Harry 
 Poland). 
 
 On July 19, 1877, Lord Beaconsfield said in the 
 House of Lords, during the debate on Mr. T. D. Pigott's 
 appointment : " To appoint a person who has technical 
 knowledge of stationery and printing — ^that is to say, 
 to appoint a stationer or a printer — I should have had 
 to appoint some person who had retired from business 
 or some person from whom business had retired " (235 
 Hansard, 1,480). In giving judgment in 1805 Lord 
 Ellenborough said : " There is a great difference be- 
 tween a man leaving trade and trade leaving him" 
 (Wharam v. Routledge, 5 Esp., 235). When Disraeli 
 went to Lincoln's Inn in 1824, he may very well have 
 read or heard this epigram. 
 
 In the year 1806 was passed a Turnpike Act which 
 provided that trustees should meet on a certain Mon- 
 day for the purposes of the Act. Should none of them 
 turn up the meeting was to be adjourned to the next 
 day, unless that day should be a Sunday, Good Friday, 
 Christmas Day, etc. In 1812 was passed an Act for 
 the better preservation of parish registers. By Section 
 18 one-half of the fines or penalties under the Act 
 
ODDS AND ENDS 343 
 
 were to go to the informer and the remainder to the 
 poor of the parish. The only penalty under the Act 
 was fourteen years' transportation 1 Other times, 
 other manners ! 
 
 The controversy waged on the proper style and title of 
 the new Central Criminal Court is amusing. Some would 
 have it called the New Bailey and some the Old Bailey, 
 while the man in the street, greatly daring, says roundly 
 the New Old Bailey. Of course, none of these names 
 is correct. The name of the street is and has been for 
 centuries the Old Bailey, and it is not changed because 
 an institution in it has moved up a door higher. The 
 name of the tribunal is and has been since 1834 the 
 Central Criminal Court. The name of the building 
 has been for centuries the Justice Hall. To change 
 the name of the Court because its seat has been re- 
 moved a few yards would be much as if the Royal 
 Courts iti the Strand were to be called Westminster 
 HaU because they migrated thence. The Old Bailey 
 gets its name from the ancient hallium, or bulwark, 
 which ran from New Gate to Lud Gate. 
 
 (Oct., 1906.) 
 
 Are we a practical people ? At any rate, the borough 
 justices at Ipswich are. They wrote to the Home 
 Secretary to know whether they might legally take 
 down depositions in shorthand. The saving in time is 
 obvious, but the Home Secretary said no, not because 
 Mr. Gladstone has any superstitions about these sacro- 
 sanct cacographies, but because, as Mr. Troup puts it, 
 " his predecessor in office recently consulted H.M. 
 judges on this matter and found that they were of 
 opinion that the use of shorthand in the taking of 
 depositions is not permissible " (" Justice of the Peace," 
 
344 A CHANCE MEDLEY 
 
 September 29, 1906). Then the sooner it is made 
 permissible the better. We trust interpreters for all 
 sorts of outlandish tongues, which no one can check ; 
 and why should we not trust transcribers, sworn if you 
 like, especially as depositions are always read over to 
 witnesses for them to correct before they sign ? More- 
 over, every word said could, if necessary, be taken 
 down, which is not always done now. The spectacle 
 of the magistrate toiling painfully with pen after the 
 very words of each witness always amuses American 
 lawyers. 
 
 (Oct., 1906.) 
 
 In Mr. Stanley Weyman's novel, Chippinge, which 
 turns upon the great Reform BiU of 1832, Sir Charles 
 Wetherell, Attorney-General, plays a great part. In 
 the great riots in 1831 at Bristol, of which he was 
 Recorder, he barely escaped with his life by night. He 
 was not remarkable for personal proprete, and when 
 some one asked how he escaped, the answer was, " dis- 
 guised in a clean shirt." 
 
 In the bicentenary commemoration of Fielding's 
 birth on the 22nd inst., it has been lost sight of that his 
 works teem with allusions and situations drawn from his 
 experiences as a barrister — ^he was thirty-three when he 
 was called by the Middle Temple, a fact consoling for 
 the belated — and a London magistrate (almost unpaid). 
 He naturally has the advantage over the modem novel- 
 ist of always being correct in his law, and his prettiest 
 wit and his keenest sarcasm are exhausted on the ex- 
 posure of the maladministration of justice. Why, 
 by the way, does the powerful Western Circuit do no- 
 
ODDS AND ENDS 345 
 
 thing to keep alive the memory of, perhaps, its greatest 
 member ? The Bar of to-day has a Uving hnk between 
 him and a great hterary descendant in Mr. Henry 
 Fielding Dickens, K.C. — ^which is a reminder that a 
 recent identification of "Eatanswill" with Sudbury in 
 a contemporary, by Judge Willis, is one of the happiest 
 things in the whole of Dickens hterature. 
 
 (April, 1907.) 
 
 To-day is a centenary which Law and Literature may 
 celebrate in common — ^that of the birthday of Samuel 
 Warren (1807-77). Like so many men who have suc- 
 ceeded in professions, he began by studying something 
 else — in this instance, medicine at Edinburgh. In 
 1828 he joined the Inner Temple, and he wrote his 
 literary and his legal books side by side, so to say. 
 Ten Thousand a Year (1839) was obviously written by a 
 lawyer, the references to the law being numerous and all 
 correct. " In the meantime," saysD.N.B., " Warren's 
 progress at the Bar was not rapid, and he consoled 
 himself with the flattering belief that the attorneys 
 were revenging themselves on him for the severe pic- 
 ture which he had drawn of their practices in his 
 account ... of the firm of Quirk, Gammon, and 
 Snap." He became a Q.C., a bencher, F.R.S., Recorder 
 of Hull, and M.P. for Midhurst. In 1859 he became a 
 Master in Lunacy, though it appears he had some hesi- 
 tation in accepting this well-paid post, whereupon, 
 accordmg to the D.N.B., Sir George Rose wrote : — 
 
 Though envy may sneer at you, Warren, and Say, 
 " Why, yes, he has talent, but throws it away," 
 Take a hint, change the venue, and still persevere, 
 And you'll end as you start with ten thousand a year. 
 
 (May 23, 1907.) 
 
346 A CHANCE MEDLEY 
 
 The Law Times of Oct. 20th, 1877, gives the 
 following version of the lines on Sam Warren by Sir 
 George Rose : — 
 
 " If Warren, though clever, the vainest of men, 
 Could use with discretion his tongue and his pen,. 
 His way might be clear to " 10,000 a Year," 
 Instead of a brief " Now and Then." 
 
 Mrs. Brownlow Maitland, a daughter of the late 
 Samuel Warren, Q.C., states that " the original verses 
 sent to her father, Samuel Warren, by Sir George 
 Rose," run : — 
 
 Tho' envy may sneer at you, Warren, and Say, 
 "Why, yes, he has talent, but throws it away," 
 Take the hint, change the venue, and still persevere. 
 And end as you start with 10,000 a year. 
 
 Here is another specimen of Sir George's wit. A 
 friend met him one day with his left eye greatly inflamed, 
 and expressed surprise that Lady Rose should have 
 let him leave home in such a state. " But," said he, 
 " I am out jure mariU," which he pronounced " my 
 right eye." 
 
 Apropos of the Dickens Exhibition, it is possible that 
 the original of the immortal jurjonan at the trial of 
 Bardell v. Pickwick has been discovered. He, it will 
 be remembered, was a chemist, and had left nobody 
 in the shop but an errand boy — " a very nice boy, my 
 lord, but he is not acquainted with drugs ; and I 
 know that the prevailing impression on his mind is that 
 Epsom salts means oxaHc acid and S5mip of senna 
 laudanum." Now, in 1828, at Lancaster, a chemist's 
 apprentice was indicted for the manslaughter of an 
 
ODDS AND ENDS 347 
 
 infant by negligently delivering laudanum for paregoric. 
 A mother sent a ten-year-old boy to buy a pennsrworth 
 of paregoric for her baby ; the boy in the shop gave a 
 little bottle with " paregoric " labelled on it, but lau- 
 danum in it, the bottles of each standing side by side 
 in the shop ; he added that ten drops should be given 
 to the infant. The dose killed the baby. The appren- 
 tice was convicted and fined five pounds. The case 
 made some little stir at the time as illustrating the law 
 of manslaughter, and is reported as R. v. Tessymond 
 I Lewin's Crown Cases 169. As Dickens at that time 
 was a solicitor's clerk in Gray's Inn, he probably heard 
 of the case and used it a few years later in Pickwick, 
 
 (July, 1907.) 
 
 By the death of Sir Lewis Morris the bar loses the best 
 known of its poets. According to one authority he 
 practised as a conveyancer from 1861 to 1881, and no 
 doubt his biographer will be able to trace the influence 
 of Lincoln's Inn in the Songs of Two Worlds, or The Epic 
 of Hades, as Gibbon acknowledged the militiaman in the 
 historian. The present Poet Lamreate is four years the 
 late Sir Lewis's senior at the bar, and Mr. Henry New- 
 bolt is another who has deserted the bar for poetry. 
 For eminence in both pursuits we must go back to Mr. 
 Justice Talfourd. 
 
 (Nov., 1907.) 
 
 The hundredth anniversary of the death of Abraham 
 Newland, the famous cashier of the Bank of England, 
 may be quoted here for his involuntary connexion with 
 the criminal law. The forgery of his signature, which 
 appeared on the notes of the Bank, gave so much occu- 
 
348 A CHANCE MEDLEY 
 
 pation to the criminal courts that his name became 
 a proverb, and is immortalised in a famous song of 
 Dibdin's, of which the refrain is " You must not sham 
 Abraham Newland." One case in which he was a 
 witness is said to have hastened his end. A cashier of 
 the Bank, one Astlett, whom he had befriended, had 
 defrauded the Bank of over three hundred thousand 
 pounds by purloining Exchequer biUs. He was de- 
 tected, tried in 1803, and after two long legal arguments 
 (reported at length in 2 Leach), he was sentenced to 
 death. It does not appear whether he was executed. 
 
 (Nov. 21, 1907.) 
 
 Mr. Harvey Clifton, a solicitor, who is always the 
 learned champion of his order against the Bar, writes a 
 very interesting note in the Law Journal (Aug. i, 1908) on 
 legal uniform. Wigs, he says, went out of general fashion 
 about the accession of George III, and were retained 
 only by " clergymen, barristers, and coachmen. Now 
 practically barristers alone continue their general, and 
 coachmen their occasional, use. Wigs, in fact, possess 
 no real historical association with advocates, and 
 there is nothing whatever to prevent solicitors resum- 
 ing the wig as a professional headdress, just as barris- 
 ters adopted it, if they so desire. . . . Even non-legal 
 town clerks frequently don wigs to-day. It was not, 
 in fact, until the death of Queen Anne that the present 
 forensic dress came into general use. Up to the end 
 of the seventeenth century Judges and Serjeants-at- 
 Law alone had any distinctive dress. The Queen's 
 Counsel at the time were in want of a professional cos- 
 tume which would enable them to rival the bravery of 
 the Serjeants-at-Law, and they unanimously adopted 
 the Court dress and silk gown which made up the mourn- 
 
ODDS AND ENDS 349 
 
 ing of the time, together with the full-bottomed wig, 
 which was then usually worn by aU persons of position. 
 The Judges apparently wore the larger wigs ; the Law 
 Officers, King's Coimsel, and Serjeants-at-Law wore 
 wigs of lesser degree ; while the then outer Bar ven- 
 tured upon a modest short wig, with strings of horse- 
 hair, tied up at the end with bobtails, in imitation of 
 the then fashion of tying up into a pigtail the back hair. 
 As a fact, nothing worn professionally by a barrister 
 has any real professional significance except the bands. 
 which are emblematic of the two tables of law." 
 
 Of the great Victorian novelists probably George 
 Meredith was the only one whose prominent characters 
 did not include a lawyer, though, or perhaps because, he 
 himself was originally intended for the profession. 
 
 May 27th is the anniversary of the death of 
 Samuel Pepys in 1703, and as he is not only common 
 property, but of special interest to the historian of the 
 law, no apology is needed for referring to him. He 
 ought (to use the language of a common fallacy) to 
 have been at the Bar. Indeed, he thought so himself, 
 for after his great speech on March 5, 1667-8, in defence 
 of the Admiralty at the bar of the House of Commons, 
 he tells us (March 6) that Sir D. Gawden's first word 
 to him was, " Good morrow, Mr. Pepys, that must 
 be Speaker of the Parliament House. . . . Another 
 gentleman said that I could not get less than £1,000 a 
 year if I would put on a gown and plead at the Chancery 
 Bar, but what pleases me most, he tells me that 
 the Sollicitor-GeneraU [Sir Heneage Finch] did 
 protest that he thought I spoke the best of any man 
 
350 A CHANCE MEDLEY 
 
 in England," and some one told the King " that he 
 thought I might teach the SoUicitor-Generall." As 
 an instance of how even well-to-do people conducted 
 their litigation two centuries and a half ago, a note 
 on December 9, 1661, may serve : " From thence Mr. 
 Moore and I to the Temple about my law businsss, with 
 my cozen Turner, and there we read over T. Trice's 
 answer to my bill and advised thereupon what to do, in 
 his absence. . . . Thence he and I to Mr. Walpole, 
 my attorney, whom I never saw before, and we all to 
 an alehouse hard by, and there we talked of our busi- 
 ness, and he put me into great hopes, but he is but a 
 young man, and so I do not depend so much upon his 
 encouragement ." 
 
 Apropos of Mr. Justice Darling's volume of poems, 
 some one was bound to enumerate the Ust of poet- 
 lawyers or legal poets, and thanks are due to the Law 
 Journal for having done it so well. Their register (in 
 the order of mention, not merit, which far be from any 
 man !) is Blackstone, Ridley, J., Bowen, J., George 
 Denman, Talfourd (and Sir Franklin Lushington and 
 Mr. Horace Smith among lesser legal Hghts). But have 
 they not forgotten Hale ? And Bacon, too, is among 
 the poets, even if we deprive him of Shakspeare's 
 plays. Selborne wrote verse, and rh5niaes of Eldon's, 
 not without feeling, survive. 
 
 The controversy as to the Dramatic Censorship has 
 " thrown up " (perhaps not inappropriately) a funny 
 " situation " with a strong legal flavour. To the 
 House of Commons Committee of 1866 which sat upon 
 this very vexed question, Mr. W. B. Doime, the then 
 
ODDS AND ENDS 351 
 
 Examiner of Plays, produced his warrant of appoint- 
 ment, and of this Sir Harry Poland, K.C., who has 
 unearthed it, makes great sport in Times (Aug. 3, 1909). 
 "A most amazing and amusing document," he calls it. 
 It recites an Act of Parliament of the tenth year of 
 George II (1737), and requires somebody " to swear and 
 admit " Mr. Donne, speaks of his " ofhce," and is signed 
 by the Lord Chamberlain (in 1857). Then follows the 
 extraordinary legend : " W. B. Donne, Esq., has been 
 sworn and admitted in conformity with the above war- 
 rant. — ^WiUiam Martin, Gentleman Usher to the Queen 
 in Daily Waiting." The best comment is the dis- 
 coverer's : " The Act of George II which is recited had 
 been repealed by the Theatres Act of 1843 — ^that is 
 fourteen years before the warrant is dated — ^but if the 
 Act of George II had not been repealed it gives no 
 power to the Lord Chamberlain to appoint an Examiner 
 of Plays. No such ' office ' is referred to in either of the 
 Acts of Parliament. However, the most astounding 
 thing of all is as to the ' Gentleman Usher to the 
 Queen. , . .' One would Hke to know what power the 
 Gentleman Usher to the Queen had to administer an 
 oath, and one would also like to know the form of it. 
 ... It is very remarkable that when Mr. Donne pro- 
 duced his warrant of appointment to the Committee 
 in 1866 and suggested that he held an ' office ' for life 
 under the warrant no one seems to have noticed how 
 grotesque the whole thing was." And the Committee 
 included eminent lawyers ! Happily, such a muddle 
 woidd hardly escape the lawyers of to-day. 
 
 The Bicentenary Commemoration of Dr. Johnson 
 naturally recalls some of his famous sayings on Law. 
 Perhaps the best known, reported by BosweU imder 
 
352 A CHANCE MEDLEY 
 
 1767, will bear repetition. " I asked him whether, as 
 a moralist, he did not think that the practice of the 
 law in some degree hurt the nice feehng of honesty. 
 Johnson : ' Why, no, sir, if you act properly. You are 
 not to deceive yoiu: clients with false representations of 
 your opinion. You are not to teU lies to a judge.' 
 B. : ' But what do you think of supporting a cause 
 which you know to be bad ? ' J. : ' Sir, you do not 
 know it to be good or bad till the judge determines it. 
 I have said that you are to state facts fairly ; so that 
 your thinking, or what you call knowing, a cause to be 
 bad, must be from reasoning, must be from your sup- 
 posing your arguments to be weak and inconclusive. 
 But, sir, that is not enough. An argument which does 
 not convince yourself may convince the judge to whom 
 you urge it ; and if it does convince him, why, then, sir, 
 you are wrong, and he is right. It is his business to 
 judge ; and you are not to be confident in your own 
 opinion that a cause is bad, but to say all you can for 
 your cUent, and then hear the judge's opinion.' B. : 
 ' But, sir, does not affecting a warmth when you have 
 no warmth, and appearing to be clearly of one opinion 
 when you are in reality of another opinion, does not 
 such dissimulation impair one's honesty ? Is there not 
 some danger that a lawyer may put on the same mask 
 in common Uf e in the intercourse with his friends ? ' 
 J. : ' Why, no, sir. Everybody knows you are paid 
 for affecting warmth for your client ; and it is, there- 
 fore, properly no dissimulation ; the moment you move 
 from the bar you resume your usual behaviour. Sir, 
 a man wiU no more carry the artifice of the bar into 
 the common intercourse of society than a man who is 
 paid for tumbling upon his hands will continue to tum- 
 ble upon his hands when he should walk on his feet.' " 
 A curious legal mistake of the great Doctor may be 
 
ODDS AND ENDS 353 
 
 noted, not " spotted " by the lawyer Boswell. Speak- 
 ing in 1775 ol Lord Bute, he is thus reported : "He 
 advised the King to agree that the judges should hold 
 their places for life, instead of losing them at the acces- 
 sion of a new King ... it was a most impolitic mea- 
 sure. There is no reason why a judge should hold his 
 office for Ufe more than any other person in public 
 trust. A judge may be partial otherwise than to the 
 Crown : we have seen judges partial to the populace. 
 A judge may become corrupt, and yet there may not 
 be legal evidence against him. A judge may become 
 froward from age. A judge may grow unfit for his 
 of&ce in many ways. It was desirable that there 
 should be a possibility of being delivered from him by a 
 new King. That is now gone by an Act of Parliament 
 ex gratia of the Crown." Now, in the first place, the 
 judges' commissions never did run for their lives : they 
 ran and run " during good behaviour," and as Hallam 
 says: " We owe this important provision to the Act of 
 Settlement [1701], not, as ignorance and adulation 
 have perpetually asserted, to his late Majesty George 
 III." William III refused his assent in 1692 to a biU 
 that had passed both Houses for making the judges 
 independent of the Court, though, in fact, the com- 
 missions of his judges were made out " during good 
 behaviour." Johnson also held the peculiar opinion 
 that judges " might with propriety engage in trade," 
 as Boswell records in 1776, apropos of the judges in 
 
 India. 
 
 (Sept., 1909.) 
 
 Even mere lawyers may take an interest in the jubilee 
 of the Cornhill Magazine, if only because it is the only 
 periodical edited by a " silk "—to wit, Mr. Reginald J. 
 
 A A 
 
354 A CHANCE MEDLEY 
 
 Smith, K.C. But there are many other links between 
 that journal and the law. Thackeray, the first editor, 
 was a student of the Middle Temple (though he was never 
 called to the Bar), and Fitzjames Stephen, afterwards a 
 judge, was one of the chief contributors. But at this 
 season there is a pathetic association with one of the 
 greatest members of the Bar, viz., Lord Macaulay, 
 for, according to the Dictionary of National Biography, 
 on December 28, 1859, he " died quietly sitting in Ms 
 library in an easy chair, with the first number of the 
 Cornhill Magazine lying open before him." 
 
 By a curious coincidence, too, that magazine supplied 
 a precedent for a legal decision precisely on a point 
 which has only just been settled by the House of 
 Lords. A learned contemporary has gone to Scotland 
 for a legal parallel to Jones v. Hulton, a very recent 
 case, in which, it will be remembered, a newspaper was 
 heavily mulcted for a libel on a gentleman whose 
 name they had used as a fictitious one in ignorance of 
 his existence. But there is a parallel nearer home. In 
 1869, a General Plantagenet Harrison sued Messrs. 
 Smith, Elder and Co. for a libel in the Cornhill Magazine 
 imputing that he was a swindler. In an article " of a 
 light and lively character," entitled " Don Ricardo," 
 a person with that name and title was undoubtedly 
 held up as a swindler and adventurer in Spain, but the 
 writer, an Englishman, explained, when he was called, 
 that being in Madrid in 1851, he had heard from an 
 English gentleman there, whom he called Don Ricardo, 
 that a person whom the latter called General Plantage- 
 net Harrison was travelling about Spain committing 
 frauds, but that he (the writer) then, and when he wrote 
 in 1868, believed the name to be fictitious. The 
 " General " deposed that the name in question was his 
 real name, that he had fought as a soldier in Yucatan 
 
ODDS AND ENDS 355 
 
 and Guatemala between 1843 and 1848, and " had 
 acquired the rank of General." After 1848 he had 
 travelled in Spain, but had been " escorted " thereout ; 
 he had been in prison at Gibraltar for ten months 
 for not meeting a bill which a bank had cashed for him. 
 He claimed to be " the heir-General of Henry VI " 
 of England, and " rightful Duke of Lancaster, Nor- 
 mandy, and Aquitaine." He seems to have been no- 
 thing worse than a " crank." Mr. Justice Lush told the 
 (common) jury that ' even although the writer of the 
 article was net aware at the time of the existence of 
 the plaintiff, yet as he had, in fact, named him and had, 
 in fact, attached these imputations to his name and 
 character, he was legally liable. Actual malice . . . 
 was not necessary to sustain an action for libel when 
 there was defamation calculated to inflict injury." 
 The jury gave him fifty pounds. The curious can read 
 the report in The Times of June 21, 1869. 
 
 (Dec, 1909.) 
 
INDEX 
 
 Abinger, Lord, C.B., 53-4, 201 
 
 Abbott, C. J., 265 
 
 Accused persons not to be pre- 
 judged, 260 
 
 Actors, rogues and vagabonds, 
 256-7 
 
 Acts of Padiament, -curiosities 
 
 of, 23 
 drafting of, 240, 337, 342 
 informal, 215 
 
 interpretation of, 203-4, 220 
 I temporary, 215 
 
 wrong tides of, 337 
 Adams v. Coleridge, 121 
 Adams, Judge, 133 
 Adolphus, John, 339 
 Admiralty, Bowen, J. sitting in, 
 
 279 
 " Adverse decision," 312 
 Advertisement by barrister, 119, 
 
 13s 
 Advocacy, ethics of, see Ethics 
 Advocates, College of, 24 
 
 library of, 275 
 Affidavits, value of, 137, 277-8 
 Africa, South, Bar of, 66-7 
 Age, limits capacity for crime, 
 212—3, 228 
 of lady witness, 280 
 old, and temperance, 296 
 Agriculture, improvement of, 6g 
 Air, freedom of, 238, 258 
 Aldermen at Central Criminal 
 
 Court, 43, 229 
 Alderson, Baron, 21 
 Alexander, Baron, 52 
 Allen V. Flood, 288. See Flood 
 
 v. Jaekson 
 Alverstone, Lord, C.J., 60, 82, 
 152, 312 
 
 Ambassad6rs, immunity of, 6 
 Amelia, Princess, prosecuted, 
 
 172, 234-5 
 Amicus cuHtB, 311 
 Ancient documents, 157, 320, 
 
 330 
 Anderson, Sir Robert, 335 
 Anderson v. Cook, 200 
 " Anglo-Saxon " terms, 304 
 Angus V. Dalton, 19 
 Aniline case, 152 
 Apsley, Lord, 316 
 Archives, public, 33 
 Argument helped by accident, 
 
 164 
 Army Act, 1881, 30 
 Arnold, Dr., 109 
 Arson, described, 301 
 Articles of War, 30 
 Ascension, 56 
 Asquith, Mx., K.C., 125, 131, 
 
 133. 135. 136, 141,207,251, 
 
 297 
 "Asses' Bridge, The," 150 
 Assizes, see Circuit 
 Athanasian Creed, The, 300 
 Attorney-General, grants «oHs 
 
 prosequi, 307 
 right of, to be Chief Justice, 35 
 Attorneys, see Solicitors 
 Audience of Counsel, exclusive, 
 
 286 
 Audley, Lord, trial of, 37 
 Austin, Mr. Alfred, 347 
 Australian Bar, competition at, 
 
 66 
 Australian Commonwealth, 57 
 
 Bachelor magistrate and matri- 
 monial cases, 313-4 
 
358 
 
 INDEX 
 
 Bacon, Francis, 89 
 
 or Shakespeare ?, 333-4, 350 
 
 V.C, 210, 289 
 Bail, ground for, 330 
 
 refused, 226 
 Balfour, Mr. Arthur, 42, 237 
 BaUantine, Serjt., 20, 128, 310 
 Bands of counsel, significance 
 
 of, 349 
 Bank Holiday Act, 41 
 Bank of England Note, 45, 347-8 
 Banking Law, 44 
 Bar, calls to, numbers of, 142 
 
 competition at, 65 
 
 Council, 70 
 
 entertaining lawyers, 135 
 
 free speech of, 320 
 
 History of, 63 
 
 in Eastern countries, oppor- 
 tunities of, 67 
 
 influence at, 342 
 
 local, 70 
 
 remonstrating with judge, 120 
 
 self-governing, 58 
 Barber's case, 133, 173 
 Bardell w. Pickwick, 326, 346 
 " Bar-maids," 328 
 Barnes, Gorell, J., 173, 177, 185 
 Barrington, Sir Jonah, J., 201 
 Barrister, see Bar, and Counsel 
 
 cannot sue for fees, 54—5 
 
 excluded from court, 151 
 
 exemption of, from Commit- 
 tees of House of Commons, 
 
 25 
 
 political influence of, 124 
 
 popular leader, 144 
 
 Premiers, 42 
 
 social position of, 63 
 
 witness assumed to be, 279 
 Bayard, Mr., 222 
 Baylis, Mr., Q.C., 23 
 Beck, Committee, 61 
 
 Hon. Mr. James, 299, 306 
 
 Mr. A., 173 
 Belgians, King of, 234 
 Bellot, Mr. H. H., on the Tem- 
 ple, 334 
 Benchers, appeal from, 75 
 
 Judges as, 22, 44, 75 
 
 sending champa^e to Bar 
 Mess, 299-300 
 
 Benjamin, Mr. J., Q.C., 87, 103, 
 
 107, 135 
 Berryer, Monsieur, 135, 336 
 Bethell, Sir R., see Westbury, 
 
 Lord 
 Bias of bench possible, 180-2 
 Bills, brought in a second time, 
 
 271 
 drafting of, 240 
 BUls of Exchange, 44 
 Birrell, Mr. Aug., Q.C., loi, 106, 
 
 125, 135, 281, 285, 326 
 Black Books of Lincoln's Irm, 330 
 Blackburn, J., 136 
 Blackmore, Mr., 325 
 
 law of, 322 
 Blackstone, Sir W., J., 70, 81-2, 
 
 136, 154, 224, 238, 350 
 Blasphemy, trial for, 52, 53 
 Bodington on French Law, 189 
 " Bond," 44 
 
 Book of Common Prayer, 64 
 Borough Courts, 18 
 BosweU quoted, 351—2 
 Bottomley, Mr. H., case of, 186. 
 Bovill, Sir W., 310 
 Bowen, Ix)rd, 23, loi, 103, 278, 
 
 279, 291, 350 
 Memoir of, 103 
 Brampton, Lord, see Hawkins, J. 
 Bramwell, Lord, 92, 135, 156, 
 
 296, 313 
 Memoir of, 106 
 Bray, J., 311 
 Bread, sale of, 253 
 Brief " to attend the Derby," 276 
 Bridges, maintenance of, 68, 69 
 Bridgwater, Mr. T. R., on 
 
 Defence of Prisoners, 159 
 Briefless barristers becoming 
 
 judges, 136 
 Brontfe, Emily, 322 
 Brooke v. Montague, loi 
 Brooke v. Pickwick, 326 
 Brougham, Lord, 34, 57, 119, 
 
 120, 159, 160, 248 
 Brown, Mr. Joseph, K.C., 167 
 Brown v. Foster, 163 
 Bryce, the Rt. Hon. Mr. J., 
 
 125, 331 
 Bucknill, J., 169, 191, 308 
 Budget anomaly, 254 
 
INDEX 
 
 359 
 
 '■ Bug Case," 216 
 
 BuUer, Greneral, 326 
 
 J., 60, 188, 316, 326 
 
 Burglary described, 301 
 
 Burke, Edmund, ii6 
 
 Burn's Justice, 303 
 
 Bums, the Rt. Hon. Mr. J., 
 134, 182 
 
 " Business retiring from " a per- 
 son, 342 
 
 Buszard, Mr., K.C., 266 
 
 Bute, Marquis of, 331 
 
 Byng, Admiral, 26 
 
 Byrne, J., 113 
 
 Byron's " Vision of Judgment," 
 265 
 
 Cabinet Ministers, late, return- 
 ing to practice, 131, 136, 207 
 no legal record of, 237 
 Caesar, Dr. Julius, 247 
 CaUiomia, going to, 300 
 Calif omian legal methods, 242—3 
 " Call " of House of Commons, 
 
 217 
 Campbell, Mr., K.C., 63 
 
 Lord, 34, 80-1, 112, 116, 129, 
 286, 322, 331 
 Campbell-Bannerman, SirH., 237 
 Canute, law of, 199 
 Capital punishment, 11, 17, 18, 
 
 19, 213 
 Cardigaji, Lord, trial of, 115 
 Carson, Sir Edward, K.C., 123 
 Carter's shop, 32 
 " Carting " a jury, 168 
 Cave, J., 220 
 
 Central Criminal Court, aldermen 
 at, '43, 229 
 five courts at, 49 
 new, 343 
 
 three judges sitting together 
 at, 43, 229 
 Chalmers, Judge, 203, 208 
 Chancellor, the Lord, approving 
 Lord Mayor, 316 
 nominates puisne judges, 222 
 position of, 51, 61, 223 
 Clumcery, barristers 
 
 not seeing clients, 285 
 on "strict" proof, 293 
 judges on circuit, 50 
 
 Channel Islands, 15, 56 
 Channell, J., 174 
 Charles I, trial of, 234 
 Chelmsford, Lord, 34, 310 
 Chief Justice does not grant 
 
 nolle prosequi, 307 
 Chief Justiceship, Attorney- 
 General's right to, 35 
 Children, and the oath, 288, 289 
 found guilty of murder, 228 
 sentenced to death, 212-3 
 Chippinge, 344 
 Chitty, J., 99, 113, 284 
 Chivalry, Court of, 30 
 Choate, Mr., 135, 225 
 Christmas, in the Temple, 13, y^, 
 86, 90 
 boxes, 240, 271 
 Churchill, Mr. W., 313 
 Church, marriages in unlicensed, 
 
 252 
 Cinque ports, antiquity of, 40 
 
 mayors of, 303 
 Circuit, judges on, 50 
 
 system, report on, 65 
 " Claimant, the," see Orton, 
 
 Arthur 
 Claims, Court of, 39 
 Clarendon, Lord, 33, 364 
 
 V. Wood, 264 
 Clarke, the Rt. Hon. Sir Edward, 
 K.C., s8, 117, 147, I9S. 213. 
 330. 342 
 Clarkson, Mr., 26 
 Classics and law, 141, 321 
 Clement's Inn, 4 
 Clergyman as sheriff, 25 
 
 praying for lawyers, 309 
 Client, advocate's belief in cause 
 of, 109, 240, 322, 332, 352 
 counsel his own, 291 
 objecting to counsel, 241 
 Clifford, Ajune, 25, 239 
 Lord, 202 
 Mr. Henry, 143 
 Cleeve, Mr., 291 
 Clifton, Mr. Harvey, 348 
 Cobbett, William, 175 
 Cock, Mr. A., Q.C., 104 
 " Cock and bull " story, 320 
 Cockbum, Sir A., 35, 36, 98, III, 
 128, 203, 230,233 
 
36o 
 
 INDEX 
 
 Cockpit, the, 285 
 Cohen, A., the Rt. Hon., K.C., 40 
 Coif, Order of, 20,44, 56, 76, 91 
 Coin, testing, 226 
 Coke, Sir Edward, 4 
 Coleridge, family, judges in, 131 
 Lord, C.J., 35, 37, 121, 132, 
 
 149, 155, 164, 175. 200. 
 264, 277 
 J., 131, 198, 202 
 
 Coloured gentleman defending, 42 
 
 Collins, J., 220, 285 
 
 Colonial Bars, competition at, 
 66-7 
 
 Colonial judges, 58 
 legislature, 57 
 
 Colony, what is a ?, 56 
 
 " Colt," 20 
 
 Combe v. Edwards, iii 
 
 Commercial Court, 14, 136, 170 
 
 Commission to examine wit- 
 ness, 298 
 
 Commissioners of Assize, 310 
 
 Commissions of the Peace, 141 
 
 Committee of Ways and Means, 
 resolutions of, 254—5 
 
 Common boar, 319—20 
 bull, 319—20 
 
 Common Law, 58, 60 
 
 Commoner, Chancellor, 62 
 
 Compensation for wrongful con- 
 viction, 173 
 
 Competition at the Bar, 65 
 
 Confessions, false, 171, 252 
 and advocacy, ^23 
 
 " Confidence " trick, defence of, 
 
 293 
 Consistory Court of London, 220 
 Constable producing sham pris- 
 oner, 310 
 Constitution, the, what is ?, 
 
 268-9, 270 
 " Constitutional Law," 270 
 Contempt of courts 43, 182, 247, 
 
 282 
 Convict, forfeited property of, 
 159 
 released by a trick, 335 
 Conviction, what is a ?, 231 
 Convictions of innocent per- 
 sons, 173 
 Copyright in nonsense, 336 
 
 Corbet, Mr. Miller, loi 
 Co-respondent objecting to Soli- 
 citors' bill, 301 
 Coronation, at Drury Lane, 332 
 
 Committee, 39 
 Cornhill Magazine, The, 353-4 
 Costs, excessive, 121 
 of winner, 285 
 
 in England and United States, 
 225 
 Costume of the Bar, 25 
 Cottenham, Lord, 181 
 Counsel, see Banister and Ethics 
 of Advocacy 
 acting for himself, 291 
 advertising, 119, 135 
 and client, 9, 16, 55 
 as witness, 156, 163, 174 
 but not in the box, 163 
 asked to dinner by jury, 314 
 assuming knowledge of bench, 
 
 299 
 audience of, exclusive, 286 
 changing sides, 226-7 
 defences by, inconsistent, 283 
 defending gratis, 159-60 
 
 solicitor, 298 
 described by counsel, 310-1 
 disagreeing on facts, 278 
 dress of, 335-6, 348 
 expressing opinion of bis case, 
 
 240-1, 352 
 flattering jury, 302 
 giving up Bar for literature, 
 
 325 
 in Fr^ce, 153 
 
 local courts, 4 
 incompetency of, ground of 
 
 new trial, 218 
 interrupted by the Court, 150, 
 
 275, 280, 288, 296 
 
 counsel, 276 
 judge's joke at expense of, 
 
 279-80, 314 
 jury finding for, 171, 298 
 King's, stopped by sentry, 292 
 leading, and junior, 287 
 leaving House of Lords, 107 
 mistake of, 290 
 mixing metaphors, 289 
 must defend " docker," 55 
 objected to by client, 241 
 
INDEX 
 
 361 
 
 Counsel 
 
 objecting to see -witnesses, 285 
 perorations of, 159, 313 
 Prime Ministers, 133—4 
 prisoner giving up, 305 
 privilege of, 16, 101-2 
 Queen's, American's comment 
 
 on, 295 
 refusing to defend, 323, 324 
 retort of, on judge, 282, 286 
 shot at, 26 
 slow, 182—3 
 speech of, 133, 159, 164, 173, 
 
 286, 289, 290-1, 293, 297-8, 
 
 314 
 stopped by Court, 277 
 talang elementary point, 299, 
 
 303-4 
 too lengthy, 133, 286 
 vicissitudes of, 281—2, 345 
 weeping, 173 
 Welsh, 313 
 County Court, and High Court, 
 65, 140 
 procedure, 64—5 
 County Court, ancient, 1 7 
 judges, promotion of, 5, 65, 
 
 140 
 local bar at, 71 "^ 
 County Court Judge, censured, 
 120 
 held liable, 201 
 removable, 201 
 Court, hours of, formerly, 23, 
 
 54 
 of Probate, Divorce and Ad- 
 miralty, 24 
 public turned out of, 173 
 
 Court for Crown Cases Reserved, 
 60 
 
 Court of Claims, 39 
 
 Court of Criminal Appeal, 60, 
 260 
 
 Court-martial, 27-9 
 
 Coventry, Lord Keeper, 4 
 
 Cowley V. Cowley, 38 
 
 Cowper, Spencer, 121 
 
 Cozens-Hardy, M.R., 174 
 
 Crewe, Sir Randolph, 4 
 
 Criminal, law and the Lord 
 Chancellor, 51 
 " lunatic," 261 
 
 Cross-examination, 137, 147. 
 148, 149, 180, 184, 188, 2761 
 278, 284, 294, 306, 310 
 Crown, in Council, 57 
 
 litigation against, 4 
 
 titie of, to lands, 64 
 Cumberland, Duke of, 34 
 Cunningham, Sir H., 103 
 Curran, J. P., 70, 114, 182 
 Custody in private house, 262 
 Custom, ancient, 319-20 
 Cyprus, 56 
 
 Dale V. Midland Railway Com- 
 pany, 208 
 Damages, 154, 160, 179. 183, 
 228, 247 
 a farthing, 313 
 " Damasking," 34 
 D'Angely case, 245 
 Dark Side of Trial by fury, 167 
 Darling, J., 161, 165, 286, 306, 
 
 315. 336. 350 
 Davey, Lord, 107 
 Da vies or Davjrs, Sir John, 55 
 " Day of Judgment," 219, 307 
 Dead, libel on, 263-5 
 Dead body, right to, 200 
 De Beislegui v. Gardner, 183 
 De TocqueviUe cited, 270 
 Deane, Bargrave, J., 174 
 Dean of Arches, 24 
 Death presumed, 185 
 Death sentence, on chUdren, 
 212-3 
 on female infanticides, 260-1 
 Debates in Parliament, not 
 
 citable in court, 203 
 Decree nisi, not a divorce, 211, 
 
 232 
 , rescinded by request of peti- 
 tioner, 218 
 Deemster, Mr. Shee, K.C., 138 
 Defence, absurd, successful, 167, 
 
 293 
 by admitting another crime, 
 
 283 
 by counsel, 16 
 extraordinary, 293, 294, 297- 
 
 8, 298 
 of Prisoners, Bridgwater on, 
 
 159 
 
362 
 
 INDEX 
 
 Defendant, royal, i^'z 
 Delegates, Court of, 15 
 Delagoa Bay Arbitration, 268 
 Denison, Mr., see Grimthorpe, 
 
 Lord 
 Denman, family, judges in, 131, 
 J. 92, 131, 283-4, 5S0 
 Lord, 131, 339 
 Dent, Mr., 122 
 
 Depositions, in shorthand, 343 
 of dying person, 216 
 reading to witness, 186-7, 188 
 Derby, brief to attend the, 276 
 day, application as to, 139, 
 
 300 
 Earl of, 141 
 winner, a heriot, 199 
 " Devil, The " and " his due," 
 
 297 
 Devil's Own, the, 81 
 Dicey, Prof., on the " Constitu- 
 tion," 268, 269-70 
 Dickens, Exhibition, 346 
 law of, 322 
 Mr. H. F., K.C., 345 
 Dimes v. Proprietors of Grand 
 
 Junction Canal, 180 
 Dinner, last, in century, 299—300 
 Dinners to distinguished per- 
 sons, 135, 136, 299, 336 
 Diplomatic agents, immunity of, 
 
 6 
 Director of Public Prosecutions, 
 
 266 
 Disagreement of jury, 158, 165, 
 
 168, 244 
 Disbarred counsel, appeal of, 75 
 Discovery of territory not ground 
 
 of ownership, 262 
 Disraeli, B., 42, 118, 134, 183, 
 
 231. 342 
 
 " Distinguishing," 305-6 
 
 Divorce, Court women in, 169 
 effect of, on woman's title, in 
 United States, 38, 232, 319, 326 
 jurisdiction in, of County 
 
 Court, 65 
 Maule, J., on, 178 
 Sir F. Jeune on, 178 
 women in, 169 
 
 " Docker," 55, 283, 323-4 
 
 Doctors Commons, 24 
 
 Document, absence of, 285 
 
 ancient, 320 
 Dodd, Mr. Cyril, Q.C., 152 
 Dodd V. Dodd, 177 
 Dodson, Sir John, 221 
 Donne, Mr. W. B., 350 
 Dorset, Countess of, 25 
 Drafting of Bills, 23, 240, 331, 
 
 342 
 Dramatic Censorship, the, 350-1 
 Drawing and quartering, 58 
 Dreyfus, trial of, 26, 28, 158, 
 
 173. 22s 
 Druce case, 312 
 Dum castus clause, 195 
 DundEises of Amiston, 131 
 Dunning, Mr., 227 
 Durham, Dean of, 113 
 Dution V. Colt, 255 
 
 " Eatanswill," 345 
 Ecdesiasticcd Courts, 24, 25 
 EdaJiji, Mr. George, 133 
 Edward VII, 275 
 Eldon, Lord, 113, 115, 181, 227, 
 
 309, 342, 350 
 Election, at an university, 31 
 objection to nomination for, 
 
 205-6 
 petitions, trial of, 35 
 Elementary points of law, 299, 
 
 303-4 
 EUot, George, law of, 322 
 Ellenborough, Lord, 23, 117, 
 
 176, 177. 342 
 Elliston, the actor, 332 
 Embracery, 246 
 Emden, Judge, 169 
 EngHsh, information, 4 
 
 in Parliament, 31-2 
 Equity and morality, 233—4 
 information, 197 
 " search for the," loi, 279 
 Error, writs of, 6 
 Erskine, Lord Chancellor, 51, 70, 
 
 81, 116, 163, 176, 188, 280, 
 
 285, 295 
 J, 52 
 Escheat, Commission of, 64 
 Esher, Lord, 102, 147 
 " Ethics of Advocacy," 109, 240, 
 
 322, 323, 332, 352 
 
INDEX 
 
 363 
 
 " Etiquette " of the profession, 
 
 241 
 Evans, Mr. G., 159 
 Evelyn, John, 340 
 Everet v. Williams, 184 
 Evidence, as to Shakespeare's 
 character, 334 
 
 experiment in, 338 
 
 laws of, 277 
 
 obtained by accident, 167—8 
 
 of counsel, 163 
 
 of similar ofiences admissible, 
 
 195 
 
 of speed of motor, 309 
 
 secondary, 285 
 Examination, answer at an, 304 
 Examiner of Plays, the, 350—1 
 Excessive damages, 154 
 Exchequer Court, 22 
 Exclusion from Court, 151— 2 
 Experiment in law, 337—8 
 Experts, 184, 232 
 
 Family, judges in a, 131— 2 
 
 Farthing, a, damages, 313 
 
 Faryndon's Inn, 91 
 
 Fee Bowls, 88 
 
 Fee, of counsel, 54,'ioo, 119, 125, 
 
 161, 241, 283, 297 
 of special juror, 149 
 Felix Holt, 322 
 Ferrers, Earl, trial of, 330 
 Field, Mr. E. W., loi 
 Fielding, 344 
 Finance Bill, 1909, 143 
 Finch, Sir Heneage, 349 
 Fines, utility of, 43 
 Fire, the Great, in the Temple, 
 
 82-3 
 First class passengers, rights of, 
 
 208, 251 
 Fitzgerald, Baron, 116, 247 
 Fletcher, the Rev. R. J., 89 
 Flogging, remitted, 315 
 Flood V. Jackson (later Allen v. 
 
 Flood), 19 
 Flower Shows in the Temple, 83 
 Folkestone, Mayor of, 303 
 Forensic dress, 335-6, 348 
 Forgery, described, 301 
 of bank notes, 347-8 
 
 Foster, J., 172 
 
 the Rev. A. W., 25 
 Fowler, Sir Henry (Lord Wol- 
 verhampton), 125, 135, 186 
 Fox, J., 201 
 
 French, in Parliament, 31—2 
 judge and women in court, 
 
 314 
 legal methods, 189-91, 225 
 prisoners, 153 
 Fry, Sir Edward, L.J., 125, 158, 
 
 271, 282 
 Furnished lodgings, law of, 216- 
 7 
 
 Game laws ignored by jury, 167 
 Gascoigne, Sir W., C.J., 45, 182 
 Gaselee, General, 325 
 
 J-, 326 
 George IV and pardons, 324 
 Ghent Conference, 238 
 Gibbs, Sir Vicary, 118 
 Gifiord, Mr. H., see Halsbury, 
 
 the Earl of 
 Gladstone, Mr. H., 343 
 
 W.E., on law as a profession, 
 42,134,141, 223, 320, 336 
 Glin, C. J., 256 
 Gold Coast, judges of, 301 
 Goldsmid, Sir F., 103 
 Goldsmith, Oliver, 81—2, 84 
 Good Friday, no sitting on, 127 
 Goosey v. Jardine, 104 
 Gorboduc in the Temple, 80 
 Governor of a colony, 57 
 Grand Jury, of Middlesex, 3 
 
 origin of, 9 
 
 use of, 5, 10 
 Grantham, J., 53, 84, 113, 121 
 Gray's Inn, Christmas in, 90 
 e Francis Bacon at, 89 
 Great Seal, 33, 62, 310 
 GreviUe quoted, 39 
 Grimthorpe, Lord, 122 
 Grotius, 267 
 Grove, J., 105 
 Guildhall sittings, 14 
 Guilty, plea of, not accepted by 
 
 judge, 332 
 Guiscard's case, 249 
 Gully, Mr., Q.C., 281 
 " Guy Fawkes" Day, 63 
 
364 
 
 INDEX 
 
 Habeas Corpus in California, 
 
 242-3 
 Haldane, Mr., K.C., 125, 135 
 Hale, Sir Matthew, 4, 46, 181, 
 
 213. 350 
 Hall V. Russell, imaginary trial, 
 
 334 
 Hallam quoted, 353 
 Halsbury, the Earl of, 26, 106, 
 
 290 
 Hamilton, Duke of, case of, 206 
 Hamlet, suggested recitation of, 
 
 334 
 
 Hampden, John, 247 
 
 Handwriting, experts in, 184, 232 
 
 Hatjnen, J., 232 
 
 Hansard case, 209 
 
 Harley, Robert, attempted as- 
 sassination of, 249-50 
 
 Harrison, General Plantagenet, 
 
 354 
 Harrison v. Powell, 199 
 Harvard Law Club, 338 
 
 School, 139 ' 
 Hatherley, Lord Chancellor, 112 
 Hawkins, J., 103, 104, 108, 132, 
 
 155, 184, 281, 288, 291 
 Henley, Sir Robert, 162 
 Henry, Prince of Wales, 45, 182 
 
 Heriots, 199 
 
 Herschel!, Lord, 281 
 
 High Court and County Court, 
 
 65 
 Highway law, 68—9 
 Highwaymen at law, 185 
 Hill, Sir J. Grayi 123 
 History {Short) of the English 
 
 Bar, 63 
 Hollams, Sir J., 135, 3:0 
 Holland, Lord, quoted, 50 
 
 Prof., on " Constitution," 268 
 HoUoway Prison,' 330 
 Holt, Sir J., I2ii 127, 214, 296, 
 
 307 
 Holy days, 40 
 Holyoake, G. J., 53 
 Home Secretary, and petitions, 
 
 2S9» 324, 335 
 late, returning to practice, 
 
 207 
 
 Homicide declared justifiable by 
 
 statute, 250 
 Honour, Court of, 30 
 Hopkins, Dr., 80 
 Horse-racing in law, 257—8'' 
 Hot weather in court, 295, 298 
 Hotel visitor's action, 229 
 Houlden v. Smith, 201 
 Hours of sitting, 23, 54, 286 
 House of Lords, see Peers, legal, 
 advised by the Judges, 19, 38 
 afi&rming a decision, 308 
 library of, 275 , 
 not over-ruling itself, 305-6 
 rebuking Scottish judges, 331 
 trial by, 37-8, 59 
 Hughes, " Tom," loi, 325 
 Hustings, Court of, 17 
 Hutton, J., 247 
 
 Ignorance of law, an excuse, 
 
 215-6 
 no excuse, 231 
 niness of juror, 209 
 Impeachment, last, 176 
 In Camerd, hearing, 1 5 1, 169, 262 
 " Incidental dementia," 304 
 Inderwick, Mr., Q.C., 77, 78, 79, 
 
 303 
 India, 56 
 Indictments, technicalities in, 
 
 164, 213-5, 236, 283, 293 
 Infant, Scottish, jurisdiction 
 
 over, 331 
 Infanticide, punishment of, 260 
 In forma pauperis, 130 
 Information, 4 
 Ingham, Sir James, 311 
 InimicHS curiis, 311 
 Injunctions, distinction between, 
 
 294 
 
 obtained out of court, 124, 
 295-6 
 In person, party, see Party 
 " Insane," plea of, 229 
 
 verdict of, 260—1 
 Inner v. Middle Temple, 334 
 Inner Temple, 4, 5, 13, 77 
 
 banquet, 83 
 
 gardens, 82, 83 
 
 hall, 80 
 
INDEX 
 
 365 
 
 Inner Temple library, 88 
 patent to, 88 
 records, jj 
 Inns of Court, origin of, 88-9 
 accommodation in, 142 , 
 Insurance against adverse judg- 
 ment, 292, 293 
 Interest, 44 
 
 till " Day of Judgtaent," 307 
 International Associations of the 
 
 Press, 70 
 Interrupting counsel, 150, 275, 
 
 276, 280, 288, 296 
 Interpreters, 344 
 Ion, 115 
 Ireland, martial law in, 29 
 
 Order of Coif in, 56 
 Italian law, 44 
 
 James, Edwin, 108, 130 
 Lord, of Hereford, 130, 134, 
 141, 162 
 Jelf, J., 70 
 Jessel, Sir Geo., 97-9, 103, 150, 
 
 162, 204, 277 
 Jeune, Sir Francis, P., 178, 
 
 I9S, 293, 30S, 309 
 Jews at the bar, 102—3 
 Johnson, Dr., 81, 351-3 
 Johnson, J., 175 
 Jone$ V. Hulton, 354 
 Jonson, Ben, 80 
 " Jottings tof an Old Solicitor," 
 
 310 
 Joyce, J., 60 
 Judge, agreeing, 290 
 
 and dissentient juror, 165, 166 
 false prophet, 307 
 jury, 174, 267, 299 
 Welsh jury, 313 
 arrested, 175 
 as Feminist, 327 
 as witness, 164, 174 
 at age of 32, 60 
 at chambers, 307—8 
 bringing libel action, 246 
 by prescription, 114 
 charge of, to jury, 298 
 conduct of case by, criticised, 
 
 los 
 convicted, 176 
 
 Judge, Advocats - General, 
 dissenting, 290 
 drinking, 304 
 hearing cases out of court, 
 
 124, 295 ^ 
 
 ignorance of, 291, 299 
 interrupting counsel, 280, 288 
 (Irishman) addressing prisoner, 
 
 43 
 not accepting plea of guilty, 
 
 332 
 not " seeing " counsel, 335-6 
 on " Anglo-Saxon " terms, 304 
 
 his own judgment reversed, 
 304 
 
 length of speech, 314 
 
 temperance, 340 
 questioning coimsel, 280, 288, 
 
 296 
 reasons of, 290 
 remonstrance, to, by bar, 120 
 retort of, on counsel, 275, 312 
 retort on, by counsel, 282 
 " reversed," 311 
 sherifE on, 316 
 slow, 308 
 
 small, testimonial to, 306 
 "sober as a," 304 
 sporting, 279 
 suggestion of, to counsel, 229- 
 
 80 
 swearing, 290 
 violence to, 289 
 with pompous manner, 108 
 Judge Advocate-General, 28 
 Judges (High Court) — 
 advising House of Lords, 19 
 agreeing, 310 
 and politics, 339 
 
 trade, 353 
 , appeal to, from benchers, 75 
 appointed " during good be- 
 haviour," 3S3 
 as defendants, 121, 127 
 as justices of peace, 10 
 briefless, in early life, 136, 281 
 " concurring," 291 
 conduct of, inquiry into by 
 
 Parliament, 53 
 controversy between, iii 
 costume of, 348-9 
 directing acquitted, 267 
 
366 
 
 INDEX 
 
 Judges (High Court) — 
 
 discharging jury, 267 
 
 divided, 172 
 
 French and English, 189-90 
 
 from County Courts, 5, 65 
 
 going down from bench, 
 30s 
 
 how appointed, 222—3 
 
 immunity of, from actions, 
 200-1 
 
 interested in litigant com- 
 panies, 1 80-1 
 
 irremovable, 353 
 
 number of, in court, 5, 61 
 
 object to try election peti- 
 tions, 36 
 
 on circuit, 50, 6; 
 
 political, 117, 339 
 
 portraits of, 4 
 
 presents to, 181 
 
 removable, 201 
 
 returning to practice, 207 
 
 Scottish,[rebuked by House of 
 Lords, 331 
 
 without courts, 47 
 Judgment, adverse, insurance 
 against, 292, 293 ; see ad- 
 verse decision 
 Judicial Committee of Privy 
 
 Council, IS, 57, 186, 19s 
 Junius, 70 
 Jury, see Grand Jury 
 
 all of same name, 166 
 
 asking counsel to dinner, 314 
 
 determined to convict, 266, 
 
 disagreeing, 158, 165, i66, 
 168, 302 
 
 discharged without verdict, 
 267 
 
 eating, 235-6 
 
 flattered by counsel, 302 
 
 influencing, 246, 302 
 
 locked up, 155, 168, 186, 23s 
 
 looks of, 302 
 
 number of, 59, 168 
 
 of matrons, 115 
 " his peers," 299 
 peers, 38 
 
 sent to assizes, 256 
 
 trial by, 70, 156, 167, 174 
 Juryman, asking question, 191 
 
 communicating with, 246 
 
 Juryman, impressions of, 148 
 
 deaf, 277 
 
 excuse of, 292, 300 
 
 husband of prosecutrix, 172 
 
 in Bardell v. Pickwick, 346 
 
 " in reserve," 209 
 
 in waiting, 185 
 
 party in the case, 284 
 
 special, 249 
 
 taking ofi his coat, 295 
 Jurymen, " Lord IV^nsfield's," 
 
 192 
 Justice and law, iii, 214, 278, 
 319 
 
 done " on the whole," 294 
 Justices of the Peace, 10, 11, 302 
 
 bringing libel actions, 247 
 
 number of, 141 
 Justiciar, the, 62 
 " Juverna," 175 
 
 " Keepers of the liberties of 
 England," 33 
 
 Kekewich, J., 319, 335 
 
 Kelly, Fitzroy B., 201 
 
 Kelly's Short History of the 
 English Bar, 63 
 
 Kemp, Mr., Q.C., 99 
 
 Kempshall v. Holland, 163 
 
 Kenyon, Lord, 141, 291 
 
 Kindersley, Vice-Chancellor, 112 
 
 King, the, see Sovereign 
 
 King, the, in person or in coun- 
 cU, 259 
 
 King v. Burr, 174 
 
 " King of France," 64 
 
 King's Bench Division, Joint 
 - Select Committee on, 316 
 
 Kissing the book, 255, 303, 305 
 
 Kitson v. Play fair, 154 
 
 Kruger, Mr., suggested applica- 
 tion to, 298 
 
 Labouchere, Mr. H., 106, 264 
 Lamb Building, 92 
 Lamb, Charles, 82, 87, 92 
 Lancaster, Attomey-Cfeneral of 
 
 Duchy of, 197 
 Lanchbury v. Bode, 319 
 Landholder, obligations ol, 68 
 Larceny, desciibai, 301 
 Late sittings, 15 s, 286 
 
INDEX 
 
 367 
 
 Latin, charter in, 224 
 
 misspelt in indictment, 164,214 
 
 speeches, 141 
 Law, an experimental science, 
 337-8 
 
 and justice, iii, 214, 278, 319 
 morality, 322, 332-3 
 
 as a profession, 320, 322 
 
 Dr. Johnson on, 352 
 
 judge forgetting, 281 
 
 knowledge of, advantages of, 
 116 
 
 mistake in, 60 
 
 success in, 341 
 
 true sense of, 270 
 Lawrance, J., 289 
 Lawyers, and politics, 126, 134-S, 
 138 
 
 gratitude of, 309 
 
 missing a point, 351 
 
 prayer for, 309 
 Lawyers' cabinet, the, 125, 135, 
 138 
 
 ^»iUs, 136, 309 
 Leach, Sir J., M.R., 120 
 Leader and Junior, 287 
 Lecky, on the Ethics of Advo- 
 cacy, 322-3 
 " Lector," 23 
 Lee, C. J., 327 
 
 Legal, education, 24, 139, 141, 
 320-1, 340 
 
 peers, votes of, 143 
 Leighton, Sir F., P.R.A., 209 
 Leith V. Pope, 154 
 Letters, property in, 210 
 Levinz, Sir CresweU, 207 
 Libel, by criticising judge, 246-7 
 
 by using name of living per- 
 son, 354 
 
 forms of, 198 
 
 on murderer, punished, 260 
 dead, 263—5 
 Lincoln's Inn, 134, 330 
 
 Gatehouse, 80 
 
 hall, 70 
 
 origin of, 85 
 Lindley, Lord, 92 
 Literary lawyers, loi, 325, 333- 
 
 4, 344, 345. 347. 35° 
 Litigant in person, 147, 277 
 Litigation, longest, 219 
 
 Littler, Sir R., K.C., 246 
 
 Lloyd-George, Mr., 125, 135, 313 
 
 Uoyd, Mr. Morgan, Q.C., 313 
 
 Lloyd's, see Insurance 
 
 Local courts, 4, 18, 21 
 
 Locke, John, cited by Erskine, 
 188 
 
 Lockwood, Sir F., 106, 285, 287- 
 8, 292 
 
 Lombards, the,' 44 
 
 Long sentences, 300— I 
 
 Long vacation, 142 
 first day of, 58 
 
 Lord Chancellor, see Chancellor 
 
 Lord Chief Justice, an earl, 
 127 
 
 Lord Chief Justiceship, heir- 
 loom of, 60 
 
 Lord Keeper, 62 
 
 Lord-Lieutenant, precedence of, 
 
 47 
 
 Lord Mayor and Lord Chancel- 
 lor, 316 
 
 Lord of Appeal and politics, 339 
 
 Lord of Misrule, 86 
 
 Lords Justices, in absence of. 
 Sovereign, 48 
 
 Lorebum, Lord, 61, 62 
 
 Lost property on railway, 227 
 
 "Lothair," 331 
 
 Lowe, Robert, 66 
 
 Lush, J., 211, 355 
 
 Lushington, Sir F., 350 
 
 Lyndhurst, Lord, 33-4, 128-9, 
 291 
 
 Lytton, Earl of, v. Devey, 210 
 
 Macaulay, Lord, 326-7, 354 
 Macclesfield, Lord Chancellor, 
 
 201 
 Mackay, Mr., on Poor Law, 328 
 Macnaghten, the Hon. M. M., 88 
 Magistrate, appointment of, de- 
 bated in Parliament, 223 
 fining himself, 100 
 giving thief an opportunity, 
 
 3" 
 London, 344 
 sending case to colleague, 
 
 313-4 
 Maitland, Mrs. Brownlow, 346 
 
368 
 
 INDEX 
 
 Majority of jury, verdict of, 59, 
 
 i68 
 Mahin v. Attorney-General of 
 
 New South Wales, 195 
 Malan v. Young, 151 
 Malay States,) British barristers 
 
 in, 67 
 Malicious prosecution, action for, 
 
 against superior officer, 160 
 Malins, Vice-Chancellor, 289 
 Man, Isle of, 15, 56 
 Mandamus, 16 
 Manningham, John, 79 
 Mansfield, Lord, 57, 127, 139, 
 
 192, 308 
 Manuscripts, loss of, 84 
 Map of Life, 322 
 Marriage, "a farce," 326 
 before decree absolute, 211- 
 
 2 
 in May, 308 
 
 in unlicensed church, 252 
 
 of ward in chancery, 262 
 
 terminable contract, -218 
 
 " Marriage brokage," 174, 227 
 
 Marriage, Royal, Act, 34 
 
 Marry, promise to, by married 
 
 person, 243 
 Martial Law, 29 
 Martin, Baron, 88, 115, 295 
 Martindale'.s case, 151 
 Master of the Rolls, 32 
 Mathew, J., 103, 136, 156, 226, 
 
 277, 286, 324 
 Matrons, jury of, 115, 169 
 Maule, J., 106, 114, 177, 183 
 Mayflower, Log of, case of, 220 
 Maynard, Serjt., 136 
 Mayor's law, 303 
 McKenna, Mr., 135 
 Melbourne, Lord, 42I 
 Melville, Viscount, impeached, 
 
 176 
 Member of House of Commons 
 
 compelled to attend, 217 
 Memorials of Old London, 93 
 Menu on Grand Day, 83 
 " Merchants," who are ?, 249 
 Mercy, prerogative of, 324 ; see 
 
 Pardon 
 Merewether, Mr., Q.C., 309 
 Meredith, Geo., 349 
 
 Metaphor in argument, 164 
 Metaphors, mixture of, 289 
 Metropolitan Police Commis- 
 sion, 245 
 Middle Temple, 77 
 
 hall, 78-9 
 
 " lamb " of, 77, 93 
 
 patent to, 88 
 
 youthful student at, 340 
 Middlesex Grand Jury, 3 
 Mighell v. Sultan of Johore, 196 
 Military law, 29, 30 
 Militia, local, 68 
 Ministers, see Cabinet Minis- 
 ters 
 Misprint, 315 
 Misrule, Lord of, 86 
 Mistake in law, see Law 
 Mistakes of lawyers, 290-1 
 " Molesting a man in his busi- 
 ness," 288 
 Moncrieff family, judges in, in 
 
 Scotland, 131 
 Monmouth Sessions, 286 
 Monroe doctrine, 14 
 Monson v. Tussaud, 198 
 Montagu v. Gater, 157 
 Montagu, Lady M. W., 218 
 Moor V. Row, 55 
 More, Sir Thomas, Chancellor, 
 
 62, 123 
 " Morganatic " marriage, 235 
 Morris, Lord, 116, 247, 280, z88, 
 
 302 
 Morris, Sir Lewis, 347 
 Motor, four rates of speed of, 309 
 Mottoes of Serjeants, 20, 21 
 Moulton, Fletcher, L.J., 126, 127 
 Municipal Corporations Act, 
 
 1836, 18 
 Munster v. Lamb, 102 
 Murphy, Serjt., 115 
 Musurus Bey v. Gadban, 6 
 Mutiny Act, 30 
 
 "Name to the jurors un- 
 known," 236 
 
 Napoleon I, attempt to sub- 
 poena, 249 
 will of, 221 
 
 'Nash's Life of Lord Westbury, 
 219 
 
INDEX 
 
 369 
 
 Negro juror, 303 
 
 Netherclift, Mr., 184 
 
 Newbolt, Mr. H., 347 
 
 Newland, Abraham, 347 
 
 Newmarket Heath, 258 
 
 Newspapers, stamp duty on, 52 
 
 Nineteenth century, last dinner 
 in hall, of, 299—300 
 
 Nolle prosequi, 307 
 
 Nonsense, copjrright in, 336 
 
 Norfolk, Puke of, escaping exe- 
 cution (1546), 215 
 
 NormeUi-French, 31-2 
 
 North Pole, belongs to whom ?, 
 261 
 
 Northcote, Sir Stafford, 303 
 
 Norton, Sir Fletcher, 312 
 
 Not guilty, plea of, 323, 332 
 
 " Not proven," 165, 169, 179 
 
 Novelists' law, 321—2 
 
 November 5, 63—4 
 
 Numbers of the Bar, 142 
 
 Oath, mode of taking, 255-6 
 
 extraordinary, 351 
 
 nature of, understanding of, 
 288, 289 
 
 not administered, 280 
 
 taken not on the Bible, 303 
 O'Brien, Mr. J. F. X., M.P., 50 
 
 Sir T., case of, 245-6 
 Obiter dicta, 109 
 Obsolete procedure, 265 
 Occupation, ground of property, 
 
 267 
 O'ConneU, not sentenced, 215 ' 
 
 story by, 304 
 Old Bailey, 322, 343 ; and see 
 
 Central Criminal Court 
 One elector, 203 
 " O.P." riots, 143 
 Originating summons, 197 
 Orton, Arthur, 103, 104, 132, 149 
 Ossulton, Hundred of, 3 
 Oswald, Mr., Q.C., 276, 283, 
 
 289 
 Owen, Dr., 255-6 
 Oxford, Bishop of, 340 
 
 University of, Vice-Chaacel- 
 lor's court in, 224, 364 
 
 Page, J., 117 
 
 " Palladium of our liberties," 
 
 70, 167, 266 
 " Palmer's Act," 244 
 Pardon, petition for, 259, 324 
 
 recommended by the twelve 
 judges, 6i 
 Parish, buU, 320 
 
 Council, actions by, 319 
 
 meetings, 202 
 Park, Alan J., 26, 114 
 Parke, B., 182 
 Parker, J., 241 
 
 Parliament and the judges, 53, 
 222-3 
 
 can legislate for aU Crown's 
 dominions, 57 
 
 debates of, not citable in 
 court, 203 
 
 prorogation of, 270—1 
 
 right to petition, 204 
 PameU Commission, the, 297 
 Parry, Serjeant, 52 
 Partnership, account, action for, 
 185 
 
 grounds of dissolution of, 234 
 Partridge, Mr., 313 
 Party in person, 16, 277 
 Patent of precedence, 103 
 Peer, creation of, procedure on, 
 209 
 
 may practise, 131, 203 
 
 trial of, 37-8, 330 
 Peeress, privileges of, 239 
 Peers, legal, votes of, 143, 275, 
 280 
 
 of Scotland, 206 
 Pemberton, C.J., 207 
 Penalty according to rank, 202 
 Pendennis, 87 
 Penderels, pension to, 191 
 Penge murder trial, 132 
 Pension Book of Gray's Inn, 89 
 Penzance, Ixird, 1 11 
 Pepys, Samuel, 349 
 Perceval, Spencer, 133, 176 
 Perlycrpss, 322, 325 
 Perorations of counsel, 159 
 Petition to. Crown, 57, 259 
 
 Parliament, 204 
 Phillips, Charles, 323 
 Pickwick quoted, 70, 282, 322, 
 326 
 
 B B 
 
370 
 
 INDEX 
 
 Ke powder courts, 21 
 Hgott, Mr. T. D., 342 
 Ktt, William, 116, 136, 207 
 Howden, Mr., 312, 342 
 Poland, Sir Harry, Q.C., 20, 1 14, 
 
 183, 342, 35 1 
 Police, systems in England and 
 
 Scotiand, 245 
 wrongful arrest by, 128 
 Political trials, 51 
 Politics and law, 51, 125-6, 134- 
 
 5. 138, 339 
 Pollock, Baron, 21, 88, 175 
 family of, judges in, 132 
 Sir F., A.G. (C.B.), 54, 88 ,204 
 Sir Frederick, 319 
 Poor litigants, 100, 130 
 Pope V. Curl, 210 
 Portraits at Serjeant's Inn, 92 
 Portuguese, the, and Inter- 
 national Law, 267 
 Powell, Sir John, 4 
 " Praelecting," 24 
 Prayer," without prejudice," 308 
 
 for lawyers, 309 
 Prejudice of juries, 167 
 Press, International Associations 
 
 of, 70 
 liberty of, 70 
 Preston, Mr., 130 
 Prevention of Corruption Act, 
 
 239, 271 
 Previous conviction admitted, 
 
 291 
 " Pricking " sheriffs, 12 
 " Prime Minister," titie of, 237 
 Prime Ministers, King's counsel, 
 
 133 
 Prince of Wales, see Wales 
 Prison, verminous, 330 
 Prisoner, absent, 180 
 defending himself better than 
 
 counsel would have done, 
 
 30s 
 dissatisfied with his counsel, 
 
 30s 
 escaped, counterfeited, 310 
 guilty, acquitted, 284 
 in France, position of, 190 
 mistake of, 291 
 more than one charge against, 
 
 137 
 
 Prisoner, " neutral," 299 
 
 pleading guilty, 283 
 
 unknown, 236 
 
 witness, 216 
 Privacy, right to, 198 
 Private prosecution in Scotland, 
 
 265 
 Privilege of Counsel, see Counsel 
 Privy Coundl, criminal appeals 
 to, 51-2 
 
 Judicial Committee of, 15, 57 
 Procurator Fiscal, the, 245 
 Proof, " strict," 293 
 Property resting on occupation, 
 
 267 
 Prorogation of Parliament, 270- 
 
 I 
 Provincial bar, 71 
 Psychrolutes, Society of, 124 
 Public holidays, 40-2 
 Public Record Office, 33 
 Public turned out of court, 173 
 Publicity of legal proceedings, 
 
 151 
 Pulling, Serjeant, see Coif, Or- 
 der of 
 
 Quarter Sessions, lo-ii, 17-19, 
 
 S3, 68, 286 
 "Queen, God save the," 295 
 Queen, the, see Sovereign 
 Queen's Counsel, comment on, 
 
 295 
 Queen's Hall case, 220 
 
 R. ». 
 Ashwdl, 5 
 Astiett, 348 
 Bailey, 215 
 Beck, 173 
 
 Bums and Graham, 134 
 Courvoisier, 323 
 Crone, 214 
 
 Disraeli, M.P., 183, 231 
 Gardiner, 168 
 Hunt, John, 265^ 
 Jameson, Dr., 213 
 Kast, 216 
 Keyn, 6 
 Kowen, 179 
 McGuire, 244 
 Oxford, Bishop of, 203 
 
INDEX 
 
 371 
 
 R. w. 
 
 Faine (Tom), 70 
 
 Perry, 118 
 
 Scott, 202 
 
 Staunton, 132 
 
 Tessymond, 340 
 Rachel, "Mme.," trial of, 230 
 Railway, lost property on, 227 
 
 overcrowding on, 208, 251, 282 
 
 unpunctuali^ on, 211 
 Rawle, Mr., 123 
 
 " Readers " and their feasts, 24 
 Receiver setting up defence of 
 
 theft, 283 
 Recorder, office of, 18 
 " Recusancy," 41 
 Regent, appointment of, 340-1 
 Rennes, trial of Dre3rfus at, 26, 
 
 28 
 Rentoul, Judge, 340 
 Resolutions of Committee of 
 
 Ways and Means, 254-5 
 " Respectable people," 162 
 Richmond Park, 172 
 Ridley, J., 229, 350 
 Rigby, Sir J., 132 
 Rings, Serjeants', 20 
 Riot, 29 
 
 Roads, law as to, 68-9 
 Robarts, Mr. C. H., 120 
 Robertson, Lord, no, 339 
 Robinson, Serjeant, 108 
 Rogers, Dr. Showell, 109, 240, 
 
 325 
 " Rogues and Vagabonds, ' 256- 
 
 7 
 Roman Catholic Judge, in Eng- 
 land, 138, 280 
 Scotlauid, 63 
 Romer, J., 106, 126- 
 Romilly, M.R., 112 
 Rose, Sir George, 130, 345-6 
 Rosebery, Lord, on Htt, 207 
 " Royal Highness," title of, 321 
 Royal Marriage Act, 34, 235 
 Russell, Earl, trial of, 37 
 Lord, C.J., 35, 224, 280, 281, 
 
 292, 297, 325 
 Lord John, 126, 172 
 
 Sabbath Day's Observance, 212, 
 220 
 
 Savage, Richard, 117 
 Schoolmaster, the, toast of, 309 
 ScintiUcB juris, 286 
 Scott, Sir Walter, 160, 179 
 Scottish, Court at variance with 
 English, 133 
 
 judge on counsel, 314 
 
 legal system, no, 159-60, 
 24s, 253, 265 
 
 peers, 206 
 Sea, bathing in, right of, 226 
 
 free, 238, 267 
 
 parish of those born at, 238 
 Seaman v. Netherclift, 232—3 
 Season-ticket holders, rights of, 
 
 211 
 Secondary of City of London, 
 
 49, 249 
 Secretaries of State, co-equal,252 
 Secretary of State going abroad 
 
 with Sovereign, 251, 341 
 Selbome, the Earl of, 109, 119, 
 223, 350 
 
 Memorials of, 107, 109 
 Selden, John, 124 
 Senior wranglers, tribimal of, 
 
 126 
 Sentences, after consultation, 43 
 
 long, 300 
 
 wrong, in law, 6 
 Separation, law of, 177-8 
 Serjeants as Commissioners, 316 
 Serjeants Bellasis, etc., 20 
 Serjeants', costume, 348 
 
 Iim, 20, 22, 44, 60, 75-6, 90 
 
 rings, 20 
 Sermon, lawyer on a, 137 
 Servants' " characters," 210 
 " Several fishery," a, 157 
 Shadwell, Sir Lancelot, 124 
 Shakespeare, law of, 44-5, 322 
 
 or Bacon ?, 333-4 
 Shamrock, Judges wearing, 325 
 Sharpe, Mr. Montagu, 315 
 Shee, Mr., K.C., 138 
 
 Serjt., 138 
 Shell, Mr., 313 
 SheriJGE, a woman, 25 
 
 address of, to judge, 316 
 
 appointment of, 11— 12 
 
 precedence of, 47 
 
 second clerk of, in City, 49 
 
372 
 
 INDEX 
 
 Shorthand depositions, 343 
 Silk hat, first in Ix>ndon, 338 
 Similar offences, evidence of, 
 
 admissible, 195 
 Simon, Sir J., Serjt., 102 
 Smiles on Self-Help, 315 
 Smith, A. L., L.J., 278 
 family, judges in,inlreland, 132 
 Mr. Horace, 137, 350 
 Mr. R. J., K.C., 353-4 
 " Sober as a judge," 304 
 Solicitor, beating three barristers, 
 306 
 dinner to, by the Bar, 135 
 presiding over Judicial Com- 
 mittee, 186 
 Solicitor-(7eneral in Liberal and 
 
 Tory Governments, 288 
 Solicitors, 4, 7, 14, 16, 99-100, 
 loi, 110, 114, 118, 121, 123, 
 139, 140. 161, 342 
 and counsel, 241—2, 298 
 appearing in the absence of 
 
 counsel, 139 
 audience of, 139, 286—7 
 bill of, items in, 301 
 in the Cabinet, 125, 139 
 restored to the roll, 133 
 Somers, Lord, 20, 59 
 " Sound " lawyer, a, 276 
 Southwark, High Bailiff ofj 49 
 Sovereign, British, absence of, 
 48, 251-2, 340-1 
 descendants of, title of, 321 
 Sovereigns as litigants, 196, 234 
 Special jurors, 249 
 Special pleader, joke on, 308 
 " Speculative " solicitors, 99, 
 
 100, 161 
 Speech, short, of counsel, 103, 
 
 314 
 Speedy trial, 148 
 Spinks, Dr., Q.C., 24 
 St. Leonard's, Lord, 219 
 St. Patrick's Day, in court, 
 Stahlschmidt v. Walford, 199 
 Stamp duty, on newspapers, 52 
 
 on brief, 54 
 Star Chamber, 4 
 Stareleigh, Mr. Justice, 326 
 State of Siege, 29 
 Stating a case, 61 
 
 Steady Baker, 303 
 
 Steinheil, Mme., trial of, 189 
 
 Stephen, J., 46, 105, 168, 190, 
 
 214, 264, 354 
 Stephen, Sir H., 231 
 Stepney, parish of, 237 
 Sterne quoted, 320 
 Stirling, L.J., 126 
 Sloddart's case, 314 
 Stuart, Vice-Chancellor, H2 
 Student, answer of, 304 
 
 appeaJ of, 75 
 Students' box, 70 
 Subpcsna, setting aside, 248 
 Success in the Law, 341 
 " Suicide, attempted," by drink- 
 ing water, 209 - 
 Summing up, abolishedin French 
 criminal trials, 190 
 long, 132 
 Summons, new, 197 
 Sunday, observance of, 40-1 
 Superior officer, action against, 
 
 see Malicious Prosecution 
 Survivorship, right of, 230—1 
 Sutton V. Johnstone, 160 
 Swearing, penalties for, 202 
 Sweepstakes in clubs, 224 
 Swift, Dean, 237, 249-50 
 
 Taft, President, 138 
 
 Talbot, Lord, 342 
 
 Tale of Two Cities, the, 322 
 
 quoted, 294 
 Talfourd, J., 115, 347. 35° 
 Technicalities, absurdity of, 115, 
 
 164, 205-6, 293 
 Temple, the, associations of, 81 
 
 at Christmas, 13, yy, 86, 90 
 
 in the Great Fire, 82-3 
 Ten Thousand a Year, 345-6 
 Thackeray, W. M., 87, 354 
 Thellusson, Peter, 219 
 Thesiger, L.J., 203 
 Thief, setting up defence of 
 receiving, 283 
 
 smart, 311 
 Thring, Lord, on Practical Legis- 
 lation, 240, 337 
 Thurlow, Lord, 172 
 Thurtell, murderer, libel on, 260 
 
INDEX 
 
 373 
 
 "Tichborne" trials, 103, 132, 
 
 154 
 Todd on Parliamentary Govern- 
 ment, 222—3, 237 
 Tooke, Home, trial of, 51 
 Topping, Serjt, 119 
 Transvaal, 56 
 Treason, constructive, 51 
 
 sentence for, 50 
 Trevor, Sir John, 100 
 Trial, in absence of prisoner, 180 
 imaginary, 333-4 
 more than, one on same 
 
 charge, 165, 168, 179, 244 
 new, on ground of counsel's 
 
 incompetency, 218 
 speedy, 148, 170 
 Tristram, Dr., Q.C., 221 
 Troup, Mr., 343 
 Turner, Mr. G.J., on Lincoln's 
 
 Inn, 8 s 
 Twelfth Day, origin of, 90 
 Twelfth Night in the Temple, 
 78-9 
 
 United States, and Europe, 14 
 
 " constitution " of, 268, 269 
 
 costs in, 225 
 
 diverse laws of divorce in, 319 
 Universities, judges at different, 
 
 285 
 University, Courts, 224, 264 
 
 education and law, 340 
 
 election, 31 
 Usher on judges going down 
 into well of court, 305 
 
 Vacation Court, 151 
 
 Vagrant Act, 257 
 
 Vallombrosa, Duke of, v. La- 
 
 bouehere, 264 
 Vaughan, Serjt., 114 
 Verdicts, extraordinary, 171, 220, 
 
 302 
 judge disagreeing with, 174, 
 
 294 
 Vice-Chancellor, of England, 124 
 
 University of Oxford, 224 
 Volunteers in the Inns of Court, 
 
 80 
 Voter not to be asked for whom 
 
 he voted, 228 
 
 Wales, Prince of, action against, 
 
 234 
 grandchildren of, title of, 321 
 Walpole, Sir R., 237 
 Walton, Mr., Q.C., 203 
 Ward in Chancery, control over, 
 
 262-3, 331 
 Waxren, Samuel, Q.C., 325, 
 
 345-6 
 Watson, Lord, 296 
 Weather forecast, action on, 229 
 Webster famUy, 82 
 Welsh, counsel speaking in, 313 
 Wenham, Jane, 46 
 West, Mr., Q.C., 197 
 Westbury, Lord Chancellor, 113, 
 
 219, 220, 310, 340 
 Wetherell, Sir Chas., 344 
 Weyman, Mr. Stanley, 344 
 Wharam v. Routledge, 342 
 Whit Monday, Court sitting on, 
 
 139 
 Wickens, V.-C, 295 
 Wife, right to chastise, 238 
 
 sale of, 328 
 Wightman, J., 3 
 Wigs, origin of, 25, 348 
 
 taking off, in court, 295, 298 
 WUberforce, Bishop, 113, 340 
 Wilkes, John, 316 
 Will, Thellusson's, 219 
 Williams, John, J., 313 
 
 Mr. H. Sylvester, 43 
 
 Montagu, 297, 311 
 Willis, Mr. W., Q.C., 97, loi, 
 
 129, 25s, 333-4, 345 
 Wills, J., 159, 199 
 Wills, lawyers', 136, 309 
 Wilson V. Carnley, 243 
 Winans case, 172 
 Wing V. Angrave, 231 
 Witches, trial of, 46, 239 
 " Without prejudice," 308 
 Witness, absent, 285 
 
 absurd attack on, 294 
 
 aged, 296 
 
 answer of, 276 
 
 counsel ought not to be, in 
 the box, 156, 163 
 
 demeanour of, 187 
 
 evidence of, at rehearing, 
 186-7 
 
374 
 
 INDEX 
 
 Witness, experimental, 338 
 female, 313, 329 
 
 age of, 280 
 imaginary, 334 
 in belligerent country, 298 
 memory of, 296 
 prisoner, 216 
 quoting Bible, 300 
 right of, to defame, 232 
 subpcena of, vexatious, 248-9 
 under sentence of death, 210-1 
 understanding of, as to nature 
 of oath, 288, 289 
 
 Witt, Mr., Q.C., 163 
 
 Woman, after dissolution 
 marriage, title of, 38 
 as sherifi, 25, 239 
 candidate for solicitors' 
 amination, 327 
 
 Women as witnesses, 313, 329 
 
 of 
 
 ex- 
 
 Women at House of Commons 
 
 259 
 Women, candidates for o£&ces, 
 
 327-8 
 in the House of Commons, 329 
 on juries, 169 
 Wolfi, Sir H. D., Reminiscences 
 
 of, 313 
 Wood, Anthony, 264 
 
 Mr. George, 308 
 Woods, the Rev. Dr. H. G., 93, 
 
 169, 314 
 Woolsack, 6i-2 
 
 Worship Street Police Court, 310 
 Writers to the Signet, no 
 Wuthering Heights, 322 
 
 Young, Lord, 275, 306, 308 
 
 Zouche, Lord, v. Dalbiac, 190 
 
 Butler & Tann«r The Sdwood Frinlinc Worki Frame and London 
 
KF 213 C^3 
 
 Author 
 
 Vol. 
 
 A chance medlfey of legal points and 
 legal stories copy 
 
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