• mm 
 
 TACT 
 
 IN 
 
 COURT 
 
 DONOVAN 
 
 
I M 
 
 Cornell University 
 Library 
 
 The original of this book is in 
 the Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924017714522 
 
KF8915.2 C 9D n 6Ml9 e i r 5 ,yLibrary 
 T miii" ,!?■ "S^?.?.!?.!,™^ sketches of ca 
 
 3 1924 017 714 522 
 
 Nathan W. Eglit 
 
TACT IN COURT 
 
 SIXTH ENLARGED EDITION 
 
 CONTAINING 
 
 SKETCHES OF CASES WON BY ART, 
 
 SKILL, COURAGE, AND 
 
 ELOQUENCE 
 
 WITH 
 
 EXAMPLES OF TRIAL WORK BY THE BEST 
 ADVOCATES, AND HINTS ON LAW SPEECHES 
 
 By JUDGE J. W. DONOVAN 
 
 AUTHOR OF 
 
 "Skill in Trials," "Modern Jury Trials," "Speeches 
 and Speechmaking," etc. 
 
 1915 
 
 London : 
 SWEET & MAXWELL, Ltd., 3 Chancery Lane 
 
 Toronto : 
 
 The Carswkll Co., Ltd. 
 
 19 Duncan Street. 
 
 Svdney, N.S.W.: 
 
 Law Book Co. of Australasia, Ltp 
 
 80 Elizabeth Street. 
 
THH HASTEBN PRESS, LIMITED, 
 LONDON AND READING 
 
NOTE TO SIXTH EDITION. 
 
 The continued demand for "Tact," beyond the double 
 editions just closed out, calls for the issue, which is con- 
 siderably enlarged, to contain some hints gained by four 
 years' work on the bench, in a large City Circuit, where 
 ingenious counsel contend with each other for success and 
 victory — a school of practice more instructive than a law 
 course ; many hints being given as side-lights to trial 
 lawyers, to which are added some lecture hints that come in 
 the line of up-to-date lawyers. 
 
 J. W. D. 
 Dbteoit, 1898. 
 
PREFACE 
 
 Addison says, the safest way to give advice is in the 
 form of fables, and cites the case of Nathan to David 
 as his authority. In this he shows that where instruc- 
 tion comes through story, incident, or illustration, it is 
 better understood and more convincing. The writer 
 aims to follow this line of advice where it is given. 
 The advice given is mainly from others. 
 
 In "Modern Jury Trials," the first series of this 
 kind of law books, issued in 1881, is given some forty 
 condensed trials, with ninety pages of descriptive 
 matter, forming a book of 700 pages. The size 
 required a price beyond the reach of many, and yet it 
 has sold by thousands, even going into Europe, and 
 reaching the Third Revised Edition. The demand for 
 it came from the older class of advocates, who pre- 
 ferred to read the great trials of the past and present 
 in extended form. 
 
 " Trial Practice and Trial Lawyers " followed in 
 1883, and met with equal success in this country. It 
 was confined mainly to descriptions of American 
 Advocates, Preparing Cases for Trial, and the Con- 
 duct of Court Cases. Being about half the size of 
 " Modern Jury " it was still found beyond the reach 
 of very many young lawyers. The Bar demanded 
 brevity. 
 
 Judging by the numerous letters received from 
 advocates of national fame, like Matthews, Beach, 
 Graham, Curtis, Dexter, Gordon, Davis, and their 
 class, relating to these volumes, and a lack of similar 
 mention by young men, it appears that something even 
 more condensed and less expensive is still needed for 
 
VI PREFACE 
 
 the great mass of young lawyers, to meet which this 
 smaller volume is issued. 
 
 Some of the articles and rules have already been 
 quoted in several law journals and " Modern Jury," 
 but are deemed worth repeating in this form by con- 
 sent of publishers. Most of the Trial Rules are new, 
 and have been gathered by personal visits to, and by 
 letters from, able lawyers in nearly every city of the 
 Union. This part of the book is especially instructive, 
 as it contains the experience of hundreds. 
 
 , The success of both previous volumes is due to the 
 variety of talent that they naturally comprise in includ- 
 ing so much of the art and skill of able advocates of 
 their best, inspired by great events. Many of them 
 have passed away, and the writer can speak with more 
 freedom of their genius and greatness. From the 
 greatest has come the warmest welcome and encour- 
 agement. Especially cheering were the generous 
 words of the lamented Beach, who said in 1882, " How 
 eagerly I would have read such books when I started 
 in practice." 
 
 J. W. D. 
 
 Detroit : January, 1885. 
 
 Note. — This Fourth Revised Edition is larger by 
 many pages than the three previous editions of this 
 book, and embraces a part of Mr. " Lincoln's First 
 Murder Trial," with a case of " Self-Defence," and 
 "A Teacher's Defence," "Nerve in Law," "Tact in 
 Trials," &c, together with some additional Trial Rules 
 and turning-points and part of a law lecture, believed 
 to be of interest and importance to young lawyers. 
 
 J. W. D. 
 
 Dbteoit : January, 1889. 
 
INDEX 
 
 SUBJECT ADVOCATES t>AO». 
 
 To be a Lawyer Introductory 1 
 
 Lawyers In General 3 
 
 Trial Practice 4 
 
 In the Court Room 7 
 
 Boy Debaters 11 
 
 Good Lawyers 12 
 
 Character as Capital 14 
 
 Habit and Character 16 
 
 A Story op Two Dogs 18 
 
 Beach's Start in Law Wm. A. Beach 31 
 
 Power of Illustration C. Shaffer, New York 83 
 
 Tact in Trials A. B. Maynard 35 
 
 Too Many Counsel Seward's Views 37 
 
 A Common-sense Bule On Consequences 38 
 
 The Jury 41 
 
 The Juror's Oath I. Holmes, Chicago 44 
 
 Convincing a Jury No Counsel named 45 
 
 The White Paper Bulb Van Arman, Chicago 48 
 
 Winning by Skill Several Counsel 48 
 
 Winning Cases Different Counsel 49 
 
 Won by Fairness Lincoln, et al. 54 
 
 Won by Tact Chauncey Shaffer 57 
 
 Won by Wit Toombs and Stephens 61 
 
 Courage in Court Gen. Rousseau 63 
 
 Ten Trial Bules From Trial Practice 67 
 
 Selecting Counsel A. McReynolds 69 
 
 An Eloquent Appeal A. McReynolds 72 
 
 The Luck of Lawyers The Chinese Rule 72 
 
 Starting in Law New York 74 
 
 Incidents in Argument ". Coleridge 76 
 
 Incidents in Argument Moody's Style 76 
 
 Friends and Money Illustrated 78 
 
 To Cross-examine Well Five Rules 80 
 
 The Get-ready Bole Justice Curtice 82 
 
Vlll INDEX 
 
 SUBJECT ADVOCATES PAOl 
 
 Outside Pressure George M. Curtis 83 
 
 Conduct in Court Wm. A. Beach 85 
 
 Eloquence in Coubt Wm. A. Beach 85 
 
 Brevity as an Art D. Darwin Hughes 87 
 
 Sharp Points of Evidence Moore and Norris 89 
 
 The Strongest Eeason Judge Ryan 91 
 
 What is Victory? No Name 92 
 
 Trial Eloquencb Van Arman 94 
 
 The Effect of a Verdict No Name 95 
 
 Skill in Trials Cheever and Lothrop 98 
 
 Trying Hard Cases O'Conor, Carpenter 100 
 
 Cross-examination Gov. Davis 102 
 
 Able Advice ' C. I. Walker 102 
 
 Eeady Lawyebs 106 
 
 Five Facts fob Trials 108 
 
 Twenty-one Bules of Practice Modem Jury 109 
 
 Kill the Squirrel 114 
 
 Of an Accident Lincoln 118 
 
 A Eailroad Case Gen. Butler 118 
 
 As to Evidence 120 
 
 When to Stop 122 
 
 Extra Work Comstock 127 
 
 Be Thorough Many Counsel 128 
 
 Selecting a Jury 129 
 
 Eobbeey Case Won 130 
 
 The Luck of Law 131 
 
 In the Supreme Court Judge Graves 134 
 
 To Begin Law Practice 135 
 
 Lawsuits Lost and Won 136 
 
 To Young Lawyers 137 
 
 Habit in Court 140 
 
 The Eeward of Victory 141 
 
 Lawyers' Fees 143 
 
 A Vest-Pocket Brief 144 
 
 The Best Lawyers 146 
 
 I Will 148 
 
 The Art of an Advocate 150 
 
 Tact in Trials 153 
 
 The Law of Self-Defence 158 
 
 Lincoln's First Murder Case 166 
 
 Nebve in Law 169 
 
 A Modest Lawyer 170 
 
 The Teacher's Defence J. W. Donovan 172 
 
 Conclusion 181 
 
TACT IN COURT 
 
 TO BE A LAWYER. 
 
 The luxury of pleasing others, enjoyed alike by 
 actors, singers, and lecturers, is shared by lawyers. 
 They show it in looks, express it in words, and tell 
 it in tones of speech that thrill and captivate hearers 
 and inspire the young with an early desire to be like 
 such leaders. With this longing after greatness few 
 believe in the hindrance to success, and most young 
 men allow a free fancy to picture the future in gilded 
 colouring. As thought crosses leagues and spans 
 oceans in space as soon and as easily as across the 
 street, so the ambition leaps from youth to greatness 
 without the steps that lead upward on the rounds of 
 fame's steep ladder. 
 
 Very few people consider the step-by-step process 
 required in reaching success in law practice. It will 
 not come by accident. It may not come by years of 
 earnest labour. It will more likely come by tact 
 and art, honesty and eloquence. Actors reach their 
 distinction by finding their forte and following it 
 artfully, but they have a stage and play to enforce 
 attention. Lawyers must wait like doctors for a first 
 case, and, may be, for the first half hundred. To get 
 
2 TACT IN COURT 
 
 in the procession is a great advance for a young 
 lawyer. Once in the line, the rest depends upon 
 mettle, gift, accident, or industry. 
 
 To be a lawyer requires the skill of a stair- 
 builder, the art of an engineer, the eye of an artist, the 
 voice of an actor, and the genius of an experienced 
 machinist; it is more — it is to be all these in one. 
 
 The machinist has no more intricate work than 
 the master of a great trial. The engineer needs no 
 more care nor the artist more shading to bring out 
 characters in the light of nature, nor does the actor 
 need more power to compel conviction than every 
 good lawyer should command. 
 
 In the light of this combination of quality is it a 
 marvel that men succeed only seldom in the legal 
 profession? Is it not rather a high and noble calling 
 that demands such diversity of talents and such tire- 
 less energy in fitting the mind and body for so great 
 a part in life's business? 
 
 The lawyer of all men should know much of life, 
 and much of human nature. He should be a novice 
 in nothing, and wide-minded in all things. Not a 
 genius in everything, but ripe in broad knowledge and 
 general experience. When he is this, if he fails, it 
 will be no fault of his own; and as Clay said of 
 the Presidency, that he had " rather be right than 
 President," one had better be fitted for a lawyer, and 
 never have the golden fame he desires, than have 
 ever so many trials and do his duty indifferently. 
 
 If I should give one rule of fitness, it would be 
 that innate feeling that you are born for the law; 
 and if after reading the record of other men's 
 struggles and triumphs you still feel undaunted and 
 courageous, and possess a voice and body and con- 
 
LAWYERS 6 
 
 stitution for such a life of study and perplexity, 
 then adhere to your convictions like the old martyrs 
 did to their religion, giving their whole life to the 
 contest. 
 
 LAWYERS. 
 
 Lawyers, the most trusted and distrusted : the 
 men who make contracts and unmake them; who 
 give advice and sell counsel ; who make money out 
 of trouble and make trouble out of money; who 
 create estates and distribute them — legally; who live 
 by loaning money, and often subsist on borrowed 
 capital; who hear and conceal marriage secrets, and 
 drag out faded letters in bitter divorces; who please 
 and persuade when they are lucky, but often go out 
 of Court branded and dispraised by the side defeated 
 — and with one side always the loser : what wonder 
 that the slurs of character fall to the common lot of 
 the lawyer! 
 
 Without the smiles of the merchant's customer, 
 he meets the frowns of business men in trouble. No 
 time is to be lost, no delay for fees. He must win 
 a victory or bear the blame for ever. Unlike the 
 builder, who knows that, be it ever so perfect, the 
 elaborate house he has finished can never suit the 
 proprietor; unlike the machinist, he controls not his 
 own enginery; carrying the double burden of care 
 for self and client; invited to win what others have 
 failed in; urged to mend the broken pieces of an ill- 
 made contract; bound to account for unreasonable 
 confessions, blunders, and letters; asked to replevin 
 goods already secreted, to attach the effects of a 
 malicious merchant, to unearth fraudulent elections, 
 
4 TACT IN COURT 
 
 to reclaim vast estates from costly tax titles, to 
 keep one for years in plenty by restored possession 
 and broken wills, often on doubtful evidence, by a 
 lawyer's art and eloquence — what a happy condition! 
 
 Fated from the start by uncertainty, where clients 
 exact no less than absolute victory, they long to call 
 reasonable what they know is only probable. By 
 logic and argument on the theory of their client, 
 with the facts only partially slated, and that part 
 deeply shaded, they are often surprised by the other 
 side and called to explain away their defeat in the 
 end by a tirade on the perjury of witnesses and the 
 depravity of human nature. 
 
 The happy lawyers ! The men who live so easily, 
 flourish so long on the bounty of a grateful people, 
 make the laws and settle the titles, defend the weak 
 and protect the wealthy, enjoy the rich fruit of the 
 world's praises and abuses, mingled and commingled 
 in such rare harmony that none can define where 
 censure ends and approval commences! Who would 
 not be a lawyer? 
 
 TRIAL PRACTICE: NOTE TO YOUNG 
 LAWYERS. 
 
 "It is the mind that makes the body rich," 
 — and the lawyer rich. 
 
 A man's training for the Bar should include, 
 besides a liberal education, six stories, seven legends, 
 nine illustrations, and ten points of practice, with 
 a voice to attract and convince hearers, as a starting 
 outfit or capital for an advocate. With these at com- 
 mand, covered with poverty and its struggles to 
 
TRIAL PRACTICE 5 
 
 contend with, the prospects of a young lawyer are 
 to-day very promising. It is observed, to begin with, 
 that influence and riches are ignored as elements of 
 success to a lawyer. These are no part of his training 
 and a hindrance to his self-reliance, which is essential 
 to a fitness for the high office of a good lawyer. He 
 must stand alone and lean on nobody. 
 
 His office is opened. His case is on trial. He is 
 the master and actor of the occasion. A rich father 
 cannot help him win standing or character at the Bar 
 — character is won alone. 
 
 What to say and how to say it has puzzled 
 thousands and will puzzle more thousands to the end 
 of time. The plain matter-of-fact speakers will rely 
 on something to occur at the hearing. The more 
 careful and experienced will save up a store of useful 
 matter either of history, terse romance, pointed story, 
 or touching incident, to fit in, finish, and embellish 
 his reasons — forming thereby the drapery and finish 
 or painting of the subject he has to describe. But 
 over all he must know menl Our greater men are 
 greater far than books; this book is made of men. 
 
 While Beecher was never able to quote either 
 from hymns or poems, song or Scripture, he was 
 never lacking in incident and apt illustrations. 
 Webster, the heavy, and often prosy, was never at 
 a loss for a climax to " raise mortals to the skies 
 and drag the angels down " — a beautiful paraphrase 
 of Dryden's saying: 
 
 " He raised a mortal to the skies, 
 She drew an angel down." 
 
 Crittenden was equally fetching with his legends 
 of Man's Creation, where Truth, Justice, and Mercy 
 
6 TACT IN COURT 
 
 are consulted. Truth and Justice say, Create him not; 
 and Mercy prevails with her plea — " Oh, create him, 
 Father, and I will follow him, and by his errors shall 
 he learn wisdom, and at last I will bring him to 
 Thee." It is said that the effect of this legend in 
 the Ward murder case was the most, thrilling of all 
 incidents at the trial. 
 
 The description by General Harrison of the first 
 trial by jury in an open field, where the jury sur- 
 rounds the coffin and the accused touches the wound 
 of the victim, was the work of a master advocate 
 in closing of Cold-Spring case ; as was also the 
 turning-point of General Brown's closing in the Het- 
 field trial, where the defence had dwelt on the broken 
 family of the accused in case of conviction, and the 
 ingenious counsel turned it by the apt words, that 
 " mercy has another side to its picture ; and before 
 you go one way too far, go with me to yonder 
 kirkyard, and, standing by the new-made grave of 
 Calvin Hetfield, there witness the widow and three 
 orphan children — made so by the hand of this defen- 
 dant — and there between the living and the dead — 
 there in the presence of the ruin he has wrought — 
 there write your verdict." 
 
 Can anyone doubt the power and influence of 
 such sentences? — their fitness and controlling force? 
 They are like apples of gold in pictures of silver to 
 all hearers; and this leads to the gist of the topics 
 in this volume, which are added as light on a lawyer's 
 acquirements, with observations noted from the Bench 
 during several years and over twenty years of trial 
 practice, together with considerable reading on this 
 subject, which has been and is the ambition of the 
 writer's life. 
 
IN THE- COURT BOOM 7 
 
 The conclusion reached from observation and 
 reading is — to be able to say a thing well one must 
 learn it; to say it rightly he must have practice. He 
 will only gain information by intense reading and 
 keen observation every day of every year, and will 
 only show proficiency in presenting facts and reasons 
 strongly after a thorough preparation. Life being 
 short, at longest, it is urged as essential to success 
 that one be diligent in business, and see to it that 
 he has a storehouse filled with the rarest legends, 
 most pointed stories, and most apt sayings of Bible, 
 Shakespeare, and good authors, and plenty of touch- 
 ing illustrations to weave in. These, with a voice 
 at command and wellspring of fitness, backed by 
 character, will fill the exalted duties of an advocate. 
 To make this beginning this book will help you, with 
 its five hundred examples and illustrations culled from 
 the best lawyers the world has ever known. 
 
 IN THE COURT ROOM. 
 
 Four years on Circuit Bench, with a single term 
 in Probate and Recorder's Courts, confirms every rule 
 laid down in " Tact " and emphasises many new facts 
 in practice that may become useful. 
 
 1. Into the Court room sooner or later will 
 come all phases and conditions of life and busi- 
 ness — growing out of some lack of clearness of 
 contracts, domestic quarrels, disputes over buildings 
 and boundary lines, slander or libel, with the crimes 
 that belong to the criminal cases. 
 
 2. No college or law school on earth can compare 
 with the debates over these various cases as the facts 
 
8 TACT IN COURT 
 
 and law are directly seen in each instance and become 
 impressed on the memory like a painting — the things 
 we come in daily contact with and take part in are a 
 part of our existence. This leads to the following 
 observations or rules — namely : 
 
 (a) Lawyers waste too much time in talking; rely 
 too much on it; tire a Court too often by it; repeat 
 a story until it is threadbare and loses snap, pitch, 
 or meaning. 
 
 (b) Lawyers in asking special verdicts of a jury 
 by five questions — should so frame them that some 
 at least will be rightly answered. The wrong reply 
 is a double-edged sword. 
 
 (c) Requests to charge are nine times out of ten 
 too numerous, and six times too long to be remem- 
 bered. They are thus confusing and misleading to a 
 jury. They create a hatred more than a liking for the 
 counsel who framed them. 
 
 (d) As is repeatedly shown, to cross-examine a 
 smart woman, boy, girl, or man is suicidal. It lets 
 them get the laugh on counsel or the cry on the 
 witness, and either is killing to the purpose. Why 
 will young lawyers forget this? Why will they fool 
 with edge-tools in darkness? 
 
 (e) A trained lawyer with Tact in Court will not 
 be in on faulty pleadings. He will not be in on a 
 breach of promise unable to prove a promise. 
 
 (/) He will not be in on negligence, unable to show 
 his client looked and listened, or that he could have 
 seen and avoided all that happened. He will show- 
 right of possession in Replevin and Trover, demand in 
 both, and offer to turn back property in fraud cases. 
 , (g) A good lawyer will not bluster. No boxer, 
 rider, racer, or ball-player even would start with a 
 
IN THE COURT ROOM 9 
 
 flourish; coolness proves ability, strength, and reserve, 
 power; it begets confidence; it is wisdom in Courl 
 practice. 
 
 (h) That your witnesses are candid is a strong 
 lever. A silly, half-witted, half-caplious " smart 
 Aleck " is worse than no witness. Look out about 
 being ridiculed. It is a powerful weapon. 
 
 (£) More cases — ten to one — are lost than gained 
 by trying to dig from the enemy what you should 
 leave alone (" never wake a sleeping dog "), and rely 
 on your own law and testimony. 
 
 (/) Disputing with the Court after adverse ruling 
 is a weakness. It's idle and fruitless. It decides 
 cases for the jury that they might decide otherwise, 
 and yet fear to go contrary to the Court's ruling — once 
 emphasised. 
 
 (k) Good lawyers know what they want and stop 
 with it. Ask no questions that may be answered for 
 the enemy. Leave what is done where a layman can 
 notice it. Argue discrepancies with jury, and never 
 with witnesses. 
 
 (I) Learn to rely on substantial, not trivial matters. 
 Do the Lincoln act — catch the middle of cases and 
 hold that part up like a painting to the Court or 
 jury. 
 
 (m) Make the brief less wordy — more meaty and 
 direct. Three good citations are worth ten poorer 
 ones. Single-page briefs are always of interest. 
 
 (n) Know your law and facts before starting. 
 Both sides ready? Yes, your Honour. But how often 
 otherwise ! 
 
 (o) Open clearly, tersely, candidly. Don't declare 
 you will annihilate the enemy. You may not be so 
 fortunate. Press a few points home with emphasis. 
 
 2 
 
10 TACT IN COURT 
 
 (p) Persuade and please by good methods. Anger 
 rarely wins anything but applause from spectators. 
 That is rebuked, and leaves you weak from the rebuke 
 it invites. 
 
 (q) Question your parties carefully. A recent suit 
 went to judgment when defendant was actually dead 
 before it was started. An old firm-sign had misled 
 the plaintiff. By all means, get the right parties. 
 
 (r) Rely on the right of matters. If you win and 
 go wrong, of what use is it? If you deceive a Court 
 on the law, a new trial will follow. If you get an 
 unjust verdict, will it avail anything? 
 
 (s) Stand by your client, but take a fair position. 
 He cannot ask you to clear him in all cases, if 
 actually guilty. He will be pleased with a moderate 
 sentence, — with a moderate verdict, with a fair 
 adjustment. 
 
 (t) Think for yourself. Try every case as if it 
 never should be tried again. Try it clearly, fairly, 
 wisely, thoroughly — with your heart in your hand. 
 " The hand is no stronger than the heart " in trial 
 work. 
 
 (u) Rely on yourself in the Court room. The 
 counsel will pick up but a part of the facts that 
 took you days to learn from the witnesses. There is 
 no counsel like the first one, with whom all facts are 
 centred. 
 
 (v) Verify your pleadings by comparison. Study 
 them after cooling time — an amendment may be given, 
 if asked for. Be not too certain, or too hasty. Law 
 is a science. Trial work is a science. Victory is a 
 science. Wisdom is a science. 
 
BOY DEBATERS 11 
 
 BOY DEBATERS. 
 
 As all trial lawyers must learn to argue and 
 reason off-hand, in many cases, it is important that 
 they learn to speak readily from habit — to think and 
 compose while standing. Law life is not a railroad 
 with resting stations; it is a quick line with few stops 
 to take on baggage. 
 
 Young lawyers should join some debating-school 
 quite early, and study the reason of things — should 
 attend all good speaking, read books of human 
 nature, study men, and, above all, have something 
 to say. Save happy quotations, stories, and incidents, 
 and be able to illustrate thoughts, so as to beget 
 clearness, alertness, and convincing force in argu- 
 ment. Chauncey Depew invariably starts with a 
 happy hit to gain attention, so does Colonel Irish, 
 whose story is a crusher to an enemy. Desiring 
 to show what could be done by a " scare," he told 
 Joel Chandler Harris's story in the Century, like 
 this : " It was at a coloured dance in South Carolina, 
 under a pavilion, when a merry party was surprised 
 by an animal better known than described. Seeing 
 his approach, the ladies screamed and jumped on 
 the benches; the men ran out, leaving the old fiddler 
 alone with his visitor" — when the animal spoke thus 
 in fable : ' I ain't done nothin'. What do they run 
 for?' The old fiddler leaned low and spoke : ' 'Tain't 
 what you'se gone and done, Massa Skunk, cause yo' 
 ain't done nothin' yet. It's what you'se goin' to do. 
 they run fur.' " 
 
 By apt stories Lincoln won many cases. By their 
 use Depew pleases people, and the art of pleasing 
 is a wonderful acquirement for a Court room. No 
 
12 TACT IN COURT 
 
 one will hunt stories for you; you must think for 
 yourself. No one will look out for your oppor- 
 tunities; you must find them yourself. No one can 
 help you half so much as yourself. You must be alert 
 in training, up-to-date, and ready to do belter than 
 others. The difference between failure and success is 
 industry and fitness. 
 
 The Golden Rule of all in practice, is to be ready 
 with law and evidence. Make your own case by 
 your own side's testimony. Stop when you get a 
 ruling, make a point, or reach a climax. Let the 
 other side kill their case by cross-examination if they 
 care to, but leave such weapons to the unwary. 
 Act with firmness; hate no one; learn to please in 
 persuading; rely upon fair jurors, clear testimony, 
 and intense energy — with a thorough preparation. 
 
 GOOD LAWYERS. 
 
 A good lawyer will have character, and by forecast 
 reach results, if possible, before suit is brought, and 
 if claim is sued will — 
 
 1. Select a jury with extreme care, rejecting jurors 
 with a bias, interest, or of doubtful characters — one 
 bad juror may hang up a panel. 
 
 2. He will not quarrel with a Court, but be so 
 armed with ready proof and law as to convince 
 the Court and jury of his claims. He wins who 
 convinces. 
 
 3. He will open up his case with care and great 
 clearness before evidence, and know that his facts 
 may not be as clear to Court and jurors as to himself, 
 as "All men are eloquent in what they know." 
 
GOOD LAWYERS 13 
 
 4. He will be frank, just, fair, and reasonable, 
 and win by these methods and his clear proof and 
 presentation of facts and circumstances. How many 
 lawsuits are comprehended? 
 
 5. A good lawyer will be a gentleman, and not 
 a loud-spoken boaster of what he can do. He will 
 rather prove what he can do by doing it. Grant's 
 victories, and not his reports of them, made him 
 famous. 
 
 6. He will wire and 'phone freely, go to the scene 
 of a failure, gather his facts at first hand, and be 
 first, if possible, on the premises in replevins and 
 attachments. Men pay best for superior skill in law 
 matters. 
 
 7. He will possess the power to please and return 
 pleasure, as success depends " upon the number he 
 can make himself agreeable to." But nothing so 
 pleases in business as a fitness and skill in one's 
 chosen profession. These are his storehouses of 
 fortune as a lawyer. 
 
 8. He will be alert, well-informed, friendly and 
 convincing in manner, and withal a sincere man in 
 business, by such means attracting clients and insuring 
 confidence. This is the method of Choate, Edmunds, 
 Carter, Harrison, and used by most excellent lawyers. 
 
 9. A good lawyer will of course be honest, keeping 
 clients' money apart from his own, remitting promptly, 
 and will be able by using his genius to serve his 
 clients in emergencies; by counsel and Court work, 
 will preserve their rights and estates as a sacred 
 trust, as did Lincoln, Waile, Matthews, Porter, 
 Seward, and Hendricks. Such lawyers and all leaders 
 of the Bar have exemplified integrity in their lives 
 as well as their practice. 
 
14 TACT IN COUET 
 
 CHARACTER AS CAPITAL. 
 
 In direct contact with banks, merchants, and 
 money men, where integrity is credit and skill is at 
 a premium, the lawyer's rise in his profession depends 
 upon his character. 
 
 Men who fail, as did Claflin, and even President 
 McKinley, and later pay up their indebtedness, gain 
 new character by the payments. 
 
 A lawyer whose personal standing is a fixture 
 is like a golden eagle, and will win business through 
 his integrity. 
 
 Commercial reports are based not alone upon 
 property, but upon skill and success in the busi- 
 ness that one follows. As life is short, says Goethe, 
 one must choose early to do what he is best fitted 
 for, in order to reap its rewards in season for enjoy- 
 ment. 
 
 Character will place a lawyer with the company 
 of good men. " To keep with the good, we soon 
 become one of them," says the Spanish. 
 
 Relying on the acquaintance, skill, and integrity 
 for his start in life, and using these as the tools of 
 his profession, the tools must be kept in order and 
 not rusty. It is for this reason that fresh books 
 and new literature is an element to consider as 
 a means of polishing up a rusty armour and enlarg- 
 ing one's line of acquaintance; by books we touch 
 elbows and learn personally of each other; on 
 wisdom we build character, with it we found 
 friendship. 
 
 To-day it is the duty to bring back the child of 
 a runaway wife whose partner in crime has aban- 
 doned the offspring. To-morrow it is the handling 
 
CHARACTER AS CAPITAL 15 
 
 of a fortune left one who heard of the lawyer's 
 good deed just mentioned. Next day, it will be 
 the trial of a suit before a Judge or jury who will 
 in many ways give credit to character — so that every 
 step up the ladder of fame depends in a large 
 measure upon character. It is not enough to win 
 lawsuits — some cunning counsel do that. It is not 
 enough to be eloquent — some pettifoggers are con- 
 vincing. It is not enough that one is a master 
 of invective — very many can be sarcastic. The 
 foundation of a lawyer's fortune is character — out 
 of sight, yet never out of mind, and never out of 
 hearing. 
 
 It carries Dillon to a New York City practice, 
 it calls Curtis to San Francisco; it makes Edmunds 
 a giant in higher counsels of law, and leaves the 
 fame of Lincoln immortal as an honest lawyer. 
 
 Character grows from every transaction, little and 
 large. To-day it is a small collection; next it is 
 an intricate replevin or attachment; next it is a yearly 
 salary for a half-dozen houses. It is built up from 
 large and small cases. It is in attention to details; 
 it is in integrity of remittance; it is in open and 
 frank dealing; it is in the quality of the services 
 and the fairness of your dealing. 
 
16 TACT IN COURT 
 
 HABIT AND CHARACTER. 
 Lecture to Lawyers. 
 
 Alexander the Great, on seeing the games that 
 were attended by everybody, instead of looking on 
 one day, became jealous of the players and said, 
 " If princes only were my competitors I would 
 enter the arena and run myself, for I have noticed " 
 (rather gravely) " that all of the prizes and cheers 
 are given to those who enter the arena and run, and 
 none are given to those who stand looking on from 
 the outer side." 
 
 So, whatever you do in life, you will be required 
 sooner or late, in any position, to enter the arena 
 and run; and the prizes of life, whatever they are, 
 will not be given to those who stand looking on 
 from the outer side, but to actual contestants in 
 the arena. Let me make that still clearer by a 
 figure : 
 
 Fernanz, in the way-back days, when things were 
 told, not by writers and historians, but by legends — 
 which, by the way are stories, and the fringes and 
 the drapery and the finish and cornice of literature, 
 because they are so old and so dainty that they 
 bring before us a painting and a likeness of what 
 they represent, — away back in the past, Fernanz was 
 the genius of pleasure, and was believed to control 
 the woods and groves, the streams and fountains, 
 the sun, the moon, the stars, and even the destinies 
 of young people. Having such power by the legend, 
 he conceived the notion that training would have 
 everything to do with the people — that in proportion 
 as they were trained they would be elevated; so 
 
HABIT AND CHARACTER 17 
 
 he selected a young girl, still in her mother's arms, 
 too young yet to speak, and placed her in the 
 charge of twelve maidens to be taught all the accom- 
 plishments of womanhood, and he directed her to 
 be kept in parks and gardens, and entirely apart 
 from the other sex, until she reached sixteen. He 
 then selected a little boy, and placed him in charge 
 of twelve philosophers and teachers, and bade them 
 keep him separate from the other sex. 
 
 At the age of sixteen the young girl had grown 
 up fair and beautiful, and in the park one day, 
 passing by a fountain, she looked in and saw 
 something in the water. She waved her hand and 
 the hand waved in the fountain; she bowed and it 
 bowed; she smiled and it returned the smile; and 
 she said: "What is this I see? Ah, it is myself; 
 it is the likeness of myself. Why am I so strangely 
 formed? The woods, and the parks, and the flowers, 
 all are beautiful that I may admire them and rest 
 beneath their shade. But why, and for what purpose, 
 am I so strangely made? Why am I so unlike 
 the rest? " And growing sad and dreamy, she sat 
 down by the side of a tree on the moss and dreamed. 
 And in the dream she saw a being never seen before, 
 and she sought to touch it, and reached out her 
 hand to it to catch it, yet it eluded her grasp, till 
 at last she awoke and saw right before her the 
 young man trained by the twelve philosophers — a 
 being she had never seen before. She shaded her 
 eyes with her hand, and said : " Oh, this is a dream. 
 This is my dream. Why did I not dream on? Why 
 should I awake? Oh, what a beautiful dream!" 
 
 The young man approached her as though he 
 were about to console her and talk to her, but he 
 
18 TACT IN COURT 
 
 had no words for such a person. He reached out 
 his hand as if to touch her hair. As he was about 
 to lay his hand upon her head, suddenly Fernanz 
 came forth and said : " Stay ; withhold your hand. 
 Touch her not, but first learn this great lesson. It 
 is not her beauty that you see all at once." And to 
 the young woman he said, " It is not his manhood 
 you see all at once : it is the training of your life ; 
 it is the training of his life; it is the training of your 
 lives all the way up that has made you able to compre- 
 hend each other. Now join hands and go through 
 the journey of life together, and so live that all the 
 world may know the use and strength and purity of 
 womanhood, and the power and wisdom of manhood." 
 Let it be made clearer by 
 
 A Story of Two Dogs. 
 
 Lycurgus said: "I would show thee, O king, 
 that a cultivated people must be a happy people." 
 But the king, thinking only of his dogs, paid little 
 attention to what the lawyer said; so the lawyer 
 tried him, as lawyers do, with a side-thrust, and said, 
 "I would show thee, king, by the example of 
 my little dogs, that as the training is and as the 
 habit is, so one will be all through life." 
 
 On hearing the word " dogs," the king said, 
 " Bring in your dogs." Lycurgus brought in a pair 
 of little dogs, and he said : " I have here, king, 
 my two little dogs — both the same age, having the 
 same mother. Now, this little dog on my left has 
 been trained in the house, and petted and fondled, 
 and fed on bread and milk; and this little dog on 
 my right has been taught to hunt the hare in the 
 
HABIT AND CHARACTER 19 
 
 woods for his master. Now, king, I would have 
 thee send for a platter of bread and milk and place 
 it in the corner of the room, away from this little 
 house-dog yonder, and I would have thee bring in 
 a live hare and conceal it at the farther corner of 
 the room yonder," — which was done. " Now let 
 go the dogs." And the little bread-and-milk dog 
 made a leap across the room for the bread and milk 
 and licked it up to the last drop, while the hunting 
 dog started for the corner and ran round and round, 
 and caught the hare and brought it to the feet of 
 his master. And Lycurgus said : " You see, king — 
 you see by the example of these little dogs, that as 
 the habit is and as the training is, so will one be 
 all through life. So, king, it is with men — so it 
 is with men." 
 
 These are all bearing on the subject of habit. 
 That will come right into your own life — right into 
 your own calling. Take the German definition of 
 success in life, " Mit dem Hut in der Hand, geht 
 Man durch das ganza Land " : that is, with the hat 
 in the hand — with politeness — man succeeds in any 
 country. Or take another sentence, which is just 
 as deep, just as forceful : " Keep with the good, and 
 you will be one of them; go with the bad, and you 
 will soon be one of them." Or this, from Carlyle, just 
 as good as either : " Success in life, in anything " — 
 think of it, success in life, in anything—" depends 
 upon the number of persons that one can make 
 himself or herself agreeable to." If he is an agree- 
 able teacher, he will have a large number of scholars. 
 If he is an agreeable minister, he will have a large 
 congregation. If he is an agreeable and capable 
 
20 TACT IN COURT 
 
 lawyer, he will have a large number of clients. 
 If he is an agreeable and capable doctor, he will 
 have a large number of patients. If he is an agreeable 
 and capable merchant, he will have a large number 
 of customers. 
 
 I will bring the matter very directly to you by 
 the instance of a young man who helped me in my 
 business — make it personal, for he is now so far 
 away that he will not know about it. He is living 
 in Chicago, and very successful. He came into my 
 office one day, and said, " I hear that a young man 
 lately in your office has gone away." — " Yes." " I 
 would like to have the chance to come in and take 
 care of your office, and serve your papers." — " But 
 you are a little too large, young man, for my price." 
 "How much is your price?" — "Well, I have only 
 been giving Martin three dollars a week." And 
 he answered, " I will help you for three dollars a 
 week, or you can fix any price." " Well, come in, 
 then, to-morrow. Is there anybody that you have 
 worked for here?" — "Yes, I have worked for 
 
 Colonel A , General T , and some others." 
 
 "How did you happen to leave the other places? " — 
 " Well, I wanted to go where there is a smaller 
 business, where there is a kind of business I can 
 learn. They have all large cases, and I want to go 
 where I can learn the whole business better." — " Very 
 well, come in." He came in, and behaved himself 
 very nicely, and stayed seven years, and then found 
 that he took to railroad law. He wanted to go to 
 a large city and do railroad and commercial work, 
 and auditor's work. It seemed to be the special 
 work that he was inclined to. 
 
HABIT AND CHARACTER 21 
 
 He took a letter which he presented to the Illinois 
 Steel Company. The letter said, " I feel like giving 
 him a good name, which is worth more than a 
 thousand dollars." He presented the letter to the 
 manager, who read it, and seeing that part about the 
 good name worth more than a thousand dollars, said, 
 " I like that — a good name is worth more than a 
 thousand dollars." How long have you been with 
 him? " — " Seven years." 
 
 The Illinois Steel Company was a fourteen- 
 million dollar company, and he was made second 
 auditor. He settled claims all the way from 
 Springfield to Wisconsin, and did a large busi- 
 ness. A few years ago, he started on his own 
 account, and has settled a great many cases since 
 then. 
 
 Did he deserve the position? Let me read a 
 letter that they gave him, after being there a year. 
 The letter read like this : 
 
 " Mr. J. B. M. City. 
 
 " Dear Sir, — Find enclosed our cheque for Five Hundred 
 Dollars, apart from your regular Two Hundred Dollars per 
 month salary, which we trust you will accept as a slight 
 reminder of our good wishes in your behalf. 
 
 " Signed, 
 
 Sec'y, Steel Co." 
 
 What an elegant letter! Especially the cheque. 
 Do you know what I mean when I say that I have, 
 for each of you, a fortune on conditions? And 
 what are the conditions? The conditions are that 
 you will be ready to accept the fortune, and there will 
 be no mistake about it, and so that the fortune will 
 not be misspent. I will make that a little clearer. 
 
22 TACT IN COURT 
 
 I took a young man over recently to one of the 
 largest concerns here in the city, to the Majestic 
 Building, and introduced him to the head of the 
 house, and directly the head of the house commenced 
 to cross-examine him in this way : " Have you ever 
 had any experience in the clothing business? " — " No, 
 sir." "Where have you been? What have you 
 been doing?" — "I have been with Glenn & Hunter." 
 "What did you do there?"— "I worked on the 
 elevator." " How long were you on the elevator? " — 
 "Not long." "Then what did you do?"— "I sold 
 books and other goods about the house." " How 
 did you happen to leave there? " (note the cross- 
 examination). "Why do you want to come in 
 here? " — "Why, I want to learn the clothing business." 
 " Well, what kind of a position do you expect to get 
 in the clothing business, and how much do you 
 expect to get? " — And the answer was : " I want to 
 learn the business. I want to find out if I can 
 come in here and learn the business. I did not 
 come to fix a price, I came to learn the business." 
 " Well, young man," patting him on the shoulder, 
 " I like that ; I like the way you talk about it. 
 Come in on Monday. Come in at eight o'clock. 
 Leave your name at the third floor at the desk. 
 We will see how you get along." 
 
 Very recently I walked up Michigan Avenue 
 with the man that had cross-examined him, and I 
 asked him how the young man was getting on. 
 " Splendidly. He wore out a good many vests for 
 us in piling up stock, but he is getting along all 
 right, and is now a salesman. He is getting along 
 splendidly. I like him, and I am very glad you 
 brought him in; he is a good boy." 
 
HABIT AND CHARACTER 23 
 
 This is one of the fortunes, and this is one of the 
 conditions that I have brought to you that you 
 must fulfil, in order to gain the fortune. You 
 must be ready. Are you ready? I doubt it. You 
 may think you are ready, but let us see. What 
 can you do now? Can you add a column in a 
 bank ledger so that you will know that there is 
 no mistake? I doubt it. Can you add it up so 
 that you are willing to say that if there is any 
 mistake you would be willing to make it up out of 
 your own pocket; that in adding up that whole 
 column of figures of that ledger you would be 
 ready to say, when you put down the figures, that 
 they are just the same as dollars to you, and if 
 there is a mistake made in any of them it would 
 be dollars to you, or dollars out of your pocket? 
 Are you ready to do that? Are you ready to go 
 into a store and meet people? Can you do it? The 
 power to please, the power to return pleasure in 
 life, depends upon the number of people you can 
 please. Are you ready to do that? You are being 
 trained here; you are going step by step like the 
 girl in the park, like the boy in the park — you are 
 being trained. Are you ready? Not quite yet. 
 Lincoln said, after he had studied surveying eight 
 months, that he had so mastered it that he was 
 willing to fix the line of a farm and abide by it, if 
 it were his own farm. He was willing to fix the 
 corner of land and abide by it, even if it were his 
 own land. Accuracy, complete accuracy, mixed with 
 politeness and the power to please, is something you 
 must learn and remember. 
 
 These fortunes that I have brought to you, and 
 that I give to you, will not apply to each one 
 
24 TACT IN COURT 
 
 exactly the same : to the young boy it will be one 
 thing, and to the young man it will be another; but 
 " the hat in hand," the success in life, the power to 
 please men, applies to all. 
 
 Matthew Arnold said that most of us are what 
 we must be, not what we should be, not even what 
 we know we ought to be. Most of us are what we 
 must be by circumstance and by habit, not what 
 we should be, and not even what we know we ought 
 to be. I promised to say something in this connection 
 about habit and about character, because they have 
 all to do — habit and character have all to do — 
 with each other. Let me bring in one figure here 
 and illustrate this. 
 
 You remember three or four Sundays ago, on 
 Woodward Avenue, a great line of march went 
 down, headed by a brass band, followed by the 
 military companies of the city; they followed by 
 the G. A. R., and the G. A. R. followed by the 
 Union Lodge, and the Union Lodge followed by 
 the Damascus Commandery, and the Detroit Com- 
 mandery followed by a hearse, and in that hearse 
 a body, and back of the hearse a riderless horse, 
 draped in black; and all this vast procession coming 
 down Woodward Avenue one Sunday afternoon, a 
 mile long, in honour of General Robinson. And 
 why did so many lodges and men turn out, and so 
 many bands, and so many soldiers, and so many 
 people turn out for him who would not turn out for 
 another person? 
 
 This is why : General Robinson had a character 
 in the community; he had a character in the State; 
 he had a character in the nation. How? Simple 
 enough. He had a local character in the community 
 
HABIT AND CHARACTER *25 
 
 in which he lived; he was a surveyor, a good 
 business man and upright citizen. But his great 
 national character was gained by one single act. 
 The Sir Knights were down in Baltimore. The 
 Detroit Commandery, headed by Eugene Bobinson, 
 were on march. The Knights of the whole country 
 were there in competition at Baltimore. This was 
 about the early seventies, and across the streets 
 were old-fashioned stepping-stones, where the water 
 could run between, and a person could walk over 
 the crossings. 
 
 On the day of the march a tremendous rain- 
 storm came up, and the word went out : " It rains, 
 and we will not go out to march." But Eugene 
 Bobinson looked over his company and said, "We 
 go out, sure enough!" and the word came to the 
 hotels, and the street windows were all crowded 
 with people to see the march. The rain poured 
 down on the white feathers of their hats, and 
 every step their feet sank in the mud over their 
 blackened shoes. Yet on they marched, while the 
 rain came down in torrents as the turn of the 
 Detroit Commandery came to make its manoeuvres 
 in the main street. Like clockwork, like an architect's 
 scale, was the plan laid out — twenty-seven inches for 
 every step, so many steps for a square, and every 
 star and cross, so many companies front, and so 
 many battalions front. They went through the long 
 manoeuvre in the rain, and passed the Carelton 
 House. All eyes were looking on the Detroit Com- 
 mandery. Every company in the line had swung 
 out from the main line and walked on the stepping- 
 stones, but Eugene Bobinson had a better command 
 than that, and, marching step by step, his knights 
 
 3 
 
26 TACT IN COURT 
 
 went splash, splash, straight through the mud, never 
 turning to the right or to the left, and General 
 Robinson touched his feathered hat as they went 
 through and said, " That is right, boys : on duty 
 turn neither to the right nor to the left, but go 
 forward." 
 
 And the word went all over the nation, and the 
 Detroit Commandery secured the banner. On duty, 
 young man and young woman — on duty, turn neither 
 to the right nor to the left, but forward, always 
 forward. That is the fortune that makes fame; that 
 is the habit, that is the training, and that was the 
 training of Eugene Robinson. 
 
 I have asked you what you could do, and there 
 is one thing I wish you to remember. Habit will 
 have everything to do with your life when you enter 
 into business. Take, for instance, the case of a 
 young man I had with me, whose name I will not 
 call. We were together a good many years, and 
 there was a habit in the office, when anybody would 
 come in, to say, " Well, John, what can we do to 
 make you happy? " Now that is a very simple 
 and careless sort of an expression — " What can I 
 do to make you happy? " Frequently this young 
 boy would say the same thing : " Well, Mr. Clee, 
 what can we do to make you happy? " Now, as I 
 say, that is a very simple thing, but it has a great 
 deal to do with happiness after all. Happiness is 
 something that you can hand over to somebody else 
 just as readily as you can misery. It is just a 
 matter of habit. For instance, we have a few 
 lawyers here in the city that hate everybody — and 
 nearly everybody hates them. And we have a few 
 lawyers in the city — your own lawyer here is one — 
 
HABIT AND CHARACTER 27 
 
 that have a habit of liking people, and they make 
 everybody else like them. 
 
 Let's see; I wish to give you the fortune of 
 happiness, and I wish to fix it in your minds and 
 write it on your brain, so that you will have it. 
 The whole secret of it is this — and if I have not 
 said another thing here to-day that you can carry 
 away with you, let me ask you to remember this 
 one little thing, and it will be a fortune worth 
 having. What is happiness? What is this happiness 
 that you are seeking? The Greeks sent out their 
 Seven Wise Men to find the secret of happiness, 
 and when they came back and said : " We have to 
 report, a healthy body first, a moderate income 
 next, and a well-stored mind last : these are the 
 elements of happiness," — the people, a little wiser 
 than anyone, said, "What about friendship?" The 
 old wise Greeks went back again to their study, and 
 came out and, bowing very low, said, " We have 
 to report, a healthy body first, a moderate income 
 next, a well-stored mind third, and a suitable 
 number of well-selected friends last : these are 
 the elements of happiness, and all the elements of 
 happiness." 
 
 This is one of the fortunes that I have brought 
 to you. You must see to it in every position in 
 life that you have healthy bodies; see to it that 
 you stand erect, that you stand like men, that you 
 build yourselves; that you have heels, that you have 
 feet, that you have arms, that you have eyes, that 
 you have bodies, and that you can use them. They 
 are yours, and they are wonderful gifts. Think of 
 it. Think of the blessing and the power and the 
 fortune that you have, and think of it so that you 
 
28 TACT IN COURT 
 
 can use it; and see that you have the stored mind 
 and good habits that will bring you friendship and 
 will bring you success. Let me make that a little 
 plainer. 
 
 A real good man went over the plains with me 
 to Mexico — a man that I have eaten many a good 
 dinner with in New York and Chicago, and we 
 have spent many a day happily together — a man 
 from whom I have drawn large fees; and this man 
 lost his position, and he told me afterwards how 
 he lost it. I went to New Mexico with him, for a 
 house in New York, to close out a post-trader's 
 store. I came back and he gave me eighteen 
 hundred dollars to put in the People's Savings Bank, 
 and he remained in New Mexico. In a little while 
 he commenced to write letters to the house — long 
 fault-finding letters, and quarrelsome letters; and 
 the house one day sent him a letter back (they had 
 been paying him $2,500 before) : they said, " Seeing 
 we are unable to agree together, we will discontinue 
 our store in Fort Stanton, and your services will 
 not be needed after the 1st of May." Services will 
 not be needed after the 1st of May! Oh, what a 
 crusher! Poor man! Many a day since then he 
 has been working at a stipend of fifteen dollars per 
 month. Why? He offended the house by saying 
 too many contrary things to them. Instead of 
 pleasing them, he displeased them, and they had no 
 use for him. 
 
 Take an instance here in the State of Ohio, where 
 I was born. A farmer had a very large farm, and 
 the railroad tried to cross it, and he fought the 
 railroad to prevent it from taking his farm. He 
 did not like to have his farm crossed by the road 
 
HABIT AND CHARACTER 29 
 
 in that manner. He thought it would spoil his 
 land. He fought it year after year in Court, and 
 at last the railroad won, condemned his land, and 
 built the road. His anger, that he had nursed for 
 years, got the better of him. He took rails and 
 threw them on the track, and along came a train 
 and jumped the track and killed two persons. 
 The man was arrested, tried, convicted,^ and im- 
 prisoned, and has been for thirty-seven years in the 
 penitentiary in the State of Ohio! While he has 
 been in the penitentiary all these years the land has 
 been improving, and a city has grown up on the land, 
 and the railroad which had run on his farm runs 
 on, and the man is a millionaire. His family has 
 made a million dollars by the city growing up in 
 the place where it would not have grown but for 
 the crossing of the railroad, and he is walking up 
 and down a narrow cell mourning for his liberty — 
 lost by hatred. 
 
 I bring this out to show the background and the 
 darkness — to show something that would hinder you 
 from the fortune, as it hindered him. It would hinder 
 you from happiness, as it has hindered him, and as 
 it hinders him to-day. That is. anger. Instead of 
 the power to please and to return pleasure, he had the 
 habit of hatred and anger. 
 
 But I find my time is almost up. I wish I had 
 another hour, but I must come to the end as soon 
 as possible. 
 
 There was in 1852 born in Russia a little child, 
 so strangely deformed, so awfully deformed, that 
 the mother wished it would die. Where the head 
 of the child should be was the twisted form of a 
 hand, cramped up on the forehead as if to deform 
 
30 TACT IN COURT 
 
 it unmercifully; and where the right hand of the 
 child should have been was the rounded, bulky head 
 of a child. Of course the thinking part was in the 
 right place, but here was the right hand, in the 
 forehead. The parents wished that the little fellow 
 might die. It would be a mercy, so they said. But 
 he did not die : he lived, and grew, and with his 
 little bright twinkling eyes in the deformed head. 
 The child became a man — an author, a writer, a poet, 
 a leader of men — Prince Trapolkine. 
 
 But think of the difficulty that he overcame 
 with his twisted head — the hand of the child where 
 the head should be — and yet overcoming it all and 
 becoming great. You can overcome anything. You 
 have a fortune ; but there are conditions : you must 
 think for yourself, you must plan for yourself, you 
 must be upright for yourself, you must use that body 
 for yourself, you must train yourself, you must be 
 ready to enter the arena for yourself and run ; no one 
 else can do it for you. 
 
 Let me say one word more in closing (for I have 
 just a little more time) on this subject, and that 
 is this: Write it on your heart that of all things, 
 if you would succeed in life, the one thing that you 
 must have is integrity — manhood. You must have 
 integrity of character. I find the best example in 
 the Bible. You will find it in the book of Job. Job 
 was the man who had lost everything — lost his 
 flocks and herds and his fortune, lost his relatives 
 and lost his health; and as he was out in the yard 
 with ashes on his head and sores on his body (for he 
 had endured privations, pain, and sorrow) even his 
 own wife came to him and said, " Job, isn't it about 
 time now to curse your God and die?" And then 
 
beach's start in law 31 
 
 he seemed to rise up like a new man, and you can 
 almost hear him as he stood up and said : " You 
 talk like a foolish woman. Shall we receive good 
 and not evil at the hands of the Lord? "„_ No, no; 
 and here is the wise saying : " So long as the breath 
 remains in my body, mine integrity shall not depart 
 from me." 
 
 BEACH'S START IN LAW. 
 
 The death of Wm. A. Beach, " the noblest Roman 
 of them all" in advocacy for the last decade, recalls 
 his start in law practice. 
 
 His father was a well-to-do tradesman in Saratoga, 
 New York, and gave William a good education in 
 the academy near home, and his admission to the Bar 
 was considerably later; for the old gentleman had 
 peculiar notions of how " Gus " — that was his boy's 
 name — should pursue his studies. 
 
 After spending something over a thousand dollars 
 on the young man's education, he questioned him 
 of his future plans and prospects — of what he 
 wanted to do for a living. The young graduate 
 had not the faintest notion of law at that age, and 
 replied that he did not know. " I want you to 
 be a lawyer," said the father decidedly. The young 
 man hung his head, and replied, " How can I get a 
 library? " 
 
 He was an early lover of books and fishing, and 
 kept up both for a lifetime. " I'll hire you," said the 
 father, " if you'll work faithfully and obey orders for 
 the first year or so, and you will have a stated salary 
 and enough to buy books when the time comes." 
 
32 TACT IN COURT 
 
 "I'll do it," said William; and accordingly he was 
 furnished with a Bible, a copy of Shakespeare, and 
 Bunyan's " Pilgrim's Progress," and sent to live with 
 a farmer uncle in the mountains, some twenty miles 
 away. It was some days and weeks before he 
 became interested in the Bible (each book was 
 to be read three times thoroughly and notes made 
 of it); but the young man became interested, fas- 
 cinated, and charmed by each volume. He mastered 
 them, and received with this victory a splendid 
 vocabulary. 
 
 He was still diffident, and when he commenced 
 practice he was timid and ungraceful. Still he 
 had ideas in his language, quaint illustration, strong 
 sentences, little words and clearness of putting 
 things. The boys would say, " Let's go down and 
 hear Gus Beach plead a case," and would go out of 
 curiosity; but they would turn away, charmed 
 by the little things he had said, and later they 
 would change the saying to, " Let's go and hear 
 Young Beach speak." And so, by degrees, he 
 grew to be a fine reasoner, an attractive speaker, 
 ' and late in life had a charm about all his speeches 
 that was almost irresistible. Socially he was genial 
 and affectionate. About five feet ten, and one 
 hundred and sixty pounds weight, with a face and 
 voice and manner not unlike Beecher's, an erect 
 carriage, acquired in the military academy, I saw 
 him personally in 1882, and liked him at sight. 
 I heard him at his best in '73, when he could 
 thrill me as no man before had ever done. Every- 
 thing about his tone, manner, words, and expression 
 said: "Come nearer; throw off all surface dignity. 
 / am a man, as well as an advocate." 
 
POWER OP ILLUSTRATION 33 
 
 POWER OF ILLUSTRATION. 
 
 Illustration is using one familiar fact to show 
 another newer fact in question. The familiar one is 
 presumed to be beyond question. 
 
 The ancients were ever alert to enforce a point by 
 illustration. A father, to shew his son the evil effect 
 of excessive drink, would have an intoxicated slave 
 brought in, and ridiculed in the presence of his 
 children. Fables and short sayings, facts drawn from 
 example, were favourite means of making strong 
 reasons impressive. 
 
 It is perhaps the more usual method of argument 
 employed by the great mass of people, and hence 
 the more taking before juries and audiences, and 
 for this reason matters are still reasoned out by 
 comparison. There is a certainty of conviction to 
 all such arguments. They come like the sound of 
 a triangle in a band. They please many senses at 
 once. They capture the ear, interest the mind, 
 and hold the attention, while all along the judg- 
 ment is active to detect the slightest lack of analogy. 
 
 He who reasons by story or incident must reason 
 accurately, or he plans certain defeat. It will only 
 be effective if made lucid and applicable, never 
 when abstruse and uncertain. A rare fable, a short 
 pithy story, or a forcible Bible quotation will take 
 with a crowd, or jury, and create sentiment. 
 
 Daniel S. Dickerson and Chauncey Shaffer, both 
 in their days able New York lawyers — the last still 
 in active practice, the first long gone to his last 
 reward — were each great rivals in the use of apt 
 Scripture. Mr. Shaffer had the faculty in a rare 
 
34 TACT IN COURT 
 
 degree of aptly using terse comparisons. " Evidently," 
 he would say, " this is like the old fable of the 
 lion and the fox, where the fox is shewn in the 
 picture to be leading the lion, and a stranger 
 remarks : ' Surely that picture was made by a friend 
 of the fox! Had the lion's friend made it, it 
 would show the lion as leading ! ' " So he applied 
 the fable to the shading of the testimony by interested 
 witnesses. 
 
 But of all men who convinced others by story 
 none exceeded the lamented Lincoln, who was 
 complete master of the science. Born in humble life, 
 and gaining his wisdom largely by experience, he 
 relied on the homely expressions of daily intercourse 
 with the people. He was an adept in frankness of 
 expressions. His stories used in reasoning seemed 
 so plain that they were heard as in italics. They 
 were perfect climaxes of logic. 
 
 There is one other reason why illustrations 
 convince men. They take everyone off guard; they 
 come to the senses like a song; and songs are 
 often convincing. They are delivered in a pleasing 
 natural tone, and that is convincing. No one tells 
 a story in any but a conversational key, and if 
 that tone once catches the ear at all it is attractive. 
 Senator Morton employed this method, and could 
 hold a ten thousand audience two hours and 
 over, speaking in a low tone while sitting in a wheel 
 chair. 
 
 I think that it is safe to conclude with Governor 
 Wisner's reason in an arson case. In shewing why 
 the straw-stack was not burned by combustion in 
 mid-winter, he said: "It may be, gentlemen; I 
 believe in the Almighty's power to do it; but I 
 
t 
 
 TACT IN TRIALS 35 
 
 never knew of His walking twice Ground a straw- 
 stack to find a dry place to fire it, with double-nailed 
 boots on, so exactly fitting the ones worn by this 
 defendant." 
 
 TACT IN TRIALS. 
 
 An advocate of eminence who was long noted 
 for his many trial victories in criminal and fraud 
 cases, very lately gave me two rules of practice 
 that he considered important to remember. For 
 clearness before a jury and courtesy to a Court they 
 are models worth saving. 
 
 " I have observed," he began, " that lawyers 
 almost invariably talk over the jury, and reason, 
 like Senators and Congressmen, with big long sen- 
 tence's; while juries reason like women, with one or 
 two simple examples like this : ' If one man failed to 
 meet his note when due and cheated some one, they 
 knew another of the same class of business would 
 certainly be likely to be just as dishonest.' 
 
 " I found farmers had one language, carpenters 
 had another, country merchants had another, and 
 labourers another — these are the average jurymen. 
 I adopted and used their catchwords and phrases, 
 not as a ' clap-trap,' or a ' trick,* but ' to talk in 
 their own language.' I found it took better; they 
 understood me and knew my meaning better. I 
 never lost my suit by a jury's ignorance of what I 
 contended for. 
 
 " Another rule was this : Juries respect with 
 unbounded confidence the leanings of a Judge. There 
 is a reverence, that is often too exalted, but it is 
 real. This was my experience, and I fell in with it. 
 
36 TACT IN COURT 
 
 I found it useless to argue after a ruling. I fell in 
 with the views of the Court all I could. I will give 
 this instance : 
 
 "At a trial of importance before Judge L., just 
 before adjournment one evening, he said, 'I may as 
 well announce to counsel that I will rule so-and-so 
 as to the law of this case.' This was fatal to my 
 position, but I bowed to the Court pleasantly and 
 said, ' That relieves us of dwelling upon that part, 
 your Honour,' and we went home. 
 
 " Opposing counsel argued very tamely on his 
 facts, and relied upon his victory in the ruling, 
 and I followed, prefacing with the remark that 
 our duty was much lessened, and I felt pleased at 
 it and at the candour with which the learned 
 Judge had shortened the controversy, to which 
 ruling I made no objection. But the leading issue, 
 I urged — the great vital, pivotal point, and the 
 merit of the issue, the' Court must leave to the 
 solid sense of the twelve men before me — men not 
 so learned in the law, but far broader and more 
 experienced in affairs and dealings of man with 
 man, than either lawyers or Courts could ever be 
 expected to become, for a jury of lawyers could 
 never agree. The Courts of the several States were 
 often in conflict, but common sense and the jury 
 were one! In this manner I separated the jury's 
 duty from that of the Court and won a splendid 
 verdict, over an adverse charge, by not appearing to 
 be hurt by it — a verdict that was quickly followed by 
 a just settlement." 
 
 If these instances are not clear and instructive, I 
 will not render them less so by any attempt at pointing 
 out their moral. 
 
TOO MANY COUNSEL 37 
 
 TOO MANY COUNSEL. 
 
 William H.. Seward believed in the power of one 
 counsel over many. He relied more on his own 
 resources than any American advocate. " If you 
 employ counsel, they will match you," was his advice 
 to clients. 
 
 It is a common boast of many litigants that they 
 have employed " General Bradley," " Colonel Carlisle," 
 or some high-sounding titled orator, as if that alone 
 were a fore-ordained victory. Trusting to this 
 method is like leaning on a broken reed. Great 
 counsel may give wisdom and dignity to a defence 
 or prosecution, but they do not create evidence. 
 Besides, if they are numerous, neither one will burn 
 the oil in looking up law or search the town for 
 evidence to sustain a theory. Indeed, there will be 
 often a lack of harmony in theories with too many 
 counsel. 
 
 Divided responsibility is one way to unsettle 
 the true way of winning a verdict. The Union 
 army never won so many victories as it did after 
 Lincoln passed the sole command under Grant, 
 and told him to go ahead and put down the Rebel- 
 lion. I remember a recent instance where on one 
 theory certain victory must have followed. It was 
 a plan of the attorney of record. He had dreamed 
 it out and mastered its details. But the senior 
 counsel distrusted its efficiency, took a different 
 course, failed to do with the law what his associate 
 had planned to accomplish with evidence, and lost. 
 " That Judge has ruled squarely against the law," 
 said the senior. But this was no great encourage- 
 
38 TACT IN COURT 
 
 ment. The junior knew the Judge was over- 
 prejudiced. To match this he had prepared a flank 
 movement, which was abandoned in deference to 
 wiser counsel. 
 
 The responsibility of a direct plan, and evidence 
 to match — an early theory consistent with reason and 
 common-sense — should belong to a limited number, 
 if more than one. The counsel that first surveys the 
 ground, converses with witnesses, takes in the early 
 situation, should control the trial. Absolute certainty 
 in evidence is the best means of success. The 
 law portion need never be ignored, but the case will 
 turn on other than law questions fifteen times out of 
 twenty. 
 
 A COMMON-SENSE RULE. 
 
 Common-sense is a taking quality in reason and 
 argument. There is no better definition to trial 
 logic than the truth so clearly told as to convince 
 hearers. If it is over-told, argued too much, it may 
 shew anxiety, while a clear statement is taking and 
 attractive. 
 
 Many witnesses testify under a strained belief that 
 they must make a strong shewing, and counsel take 
 the same course by over-argument. If thirty men 
 should swear they saw a man leap over a tall building, 
 and only one should deny it, by shewing how he 
 jumped from an upper window, the one would win 
 over the thirty. 
 
 We may as well take it for granted that Court and 
 jury have common-sense, and believe that facts must 
 have a foundation. The very moment one reasons 
 from a longing to say something, he is losing, and 
 
A COMMON-SENSE RULE 39 
 
 truth from a witness will be of double force if told 
 without shading. 
 
 The first step in reasoning is to secure attention. 
 This is to be done by calling to mind some few points 
 on which no one can possibly question your position. 
 Garfield captured a convention by telling of a storm 
 at sea. 
 
 Having this goodwill of the jury, you are in 
 the same position as one who has paid several 
 notes in bank at maturity; it creates confidence, 
 and, more than that, if tersely told it raises 
 expectations and meets them. It is like telling a 
 good story — the next story will be heard with new 
 interest. 
 
 Stories are good to use as second kindling-wood, 
 but dangerous to start with. The jury will not be 
 ready to laugh or cry too early in the contest : save 
 them for the supreme moment. Let the best argument 
 come in unaware. You need not ring a bell or blow 
 a horn to announce it; let it reach the better judgment 
 of the jury at the right moment, when feelings are 
 warm and receptive. 
 
 Appeals to sympathy are used effectively when 
 they come by surprise, and grow, as it were, out of 
 the characters in the controversy — anything that 
 happened in the hearing of the jury, if apt, is 
 excellent. There are topics that carry a jury and 
 Court in a climax of victory by their simple recital: 
 the jury will take credit for discovery. It may be the 
 very argument they would make, and they will be 
 proud of its application. 
 
 It is not often that a jury can be reached from 
 the front in battle, and a flank movement may be 
 better. A Western counsel made an appeal for the 
 
40 - TACT IN COURT 
 
 release of a young boy, charged with arson — a 
 terrible offence, not clearly proven — by this side 
 illustration : "To a boy like this, life is little thought 
 of, and punishment is hardly realised. He sits here 
 as cold as marble. Brought in unironed and on 
 bail, surrounded by some friends who love him, he 
 has not yet learned to realise the consequences of 
 an adverse verdict. The chief anxiety is to the older 
 members of his family. To them his conviction would 
 be worse than the grave. When the little Farrington 
 boy was crushed to death the other day between 
 two huge trucks, and Dr. Eddy folded his broken 
 body in his fatherly arms and carried it home, the 
 scene was one long to be remembered. But the 
 parting of a mother with a convict son — to know 
 that he is to linger in his youth ten or a dozen 
 years in anguish — is a far deeper sorrow. Sooner 
 or later all home relations will be severed. Death, 
 with noiseless footfall, comes in, 'seals up the 
 doors of breath, puts out the light of the eye, 
 freezes the purple current of the veins, and we lay 
 them to rest for ever, and go away in sadness, for 
 a time,' but even death is not dishonour! It is not 
 like consigning one to a living tomb — not so dread- 
 ful, not so terrible in its consequences; and of all 
 things to a jury, the first and middle and last 
 consideration is the consequences of their verdict." 
 
THE JURY 41 
 
 THE JURY. 
 
 A good jury, a good theory, and a sensible 
 conduct in trials is a golden Court rule. 
 
 In addressing any large body of men, only a few 
 faces will attract the speaker's attention, and these 
 will be generally the middle-aged or the younger 
 classes. Their keen eyes and expressive faces will 
 show an early interest in every apt illustration or 
 happy turn in the argument. They see a point 
 readily and comprehend its meaning. If they have 
 not been bored by tedious discourses, or soured 
 by disappointments themselves, they are ready to 
 reason with the speaker and come to his conclusion 
 when sensible. 
 
 But suppose they are withered up, crusty, con- 
 ceited, or biased men, like ex-officers, who have 
 been led to believe in the total depravity of mankind 
 generally, and men engaged in lawsuits in particular, 
 then you are on the losing side before your case 
 is even started. What could have been gained by 
 strict attention is lost in prejudice. What should 
 have come to your rescue in the form of candid 
 willingness to listen is transformed into a lot of 
 blocks and stones to hear your urgent appeals 
 for justice or convincing logic on questions of 
 evidence. 
 
 The young men who hear readily and appreciate 
 the fact that generous natures may be misled, and 
 even err unintentionally, should not be set aside for 
 colder natures who harden their hearts habitually 
 and are destitute of all charity. Reasoning men well 
 know that 76 per cent, of real criminals are born 
 
42 TACT IN OOUET 
 
 into crime, and only 24 per cent, are accidental and 
 occasional law-breakers. Accident, anger, insult, or 
 bad company may lead to arrest when the defendant 
 is either innocent, or never likely to become a criminal. 
 And as Governor Seymour once well said, " They may 
 be the stronger for it than some who have never been 
 tempted." This reasoning will only apply to fair- 
 minded, warm-blooded, noble-hearted men. So that 
 the audience — or jury — is of vital consequences in 
 all cases. 
 
 To have an intelligent theory, and one founded on 
 reasonable circumstances, is next in importance to 
 a well-selected jury. It is too late after the witnesses 
 are sworn and the jury is selected to form theories' 
 to match them; theories should be matured and 
 managed like the artful turn in the great Barnard 
 burning case, where a dying declaration of how a 
 murder was committed became utterly worthless when 
 the defence proved the one making it was in the 
 habit of waking suddenly from vivid dreams, and 
 relating most minutely every fact and circumstance 
 of the dream like a living reality. 
 
 To conceal these theories from the enemy, and 
 impress witnesses to do likewise, is excellent general- 
 ship. This is never accomplished without the greatest 
 caution. It is the natural bent of clients to boast 
 of expected victories, and by it they only double 
 their enemy's energy. Could they but surrender 
 cases candidly to their counsel, as a patient places 
 his life in the hands of his physician, many a case 
 lost would be easily won, while the management 
 would be freer from errors and blunders. 
 
 The anxious suitor is a thorn in the side of his 
 counsel, and, like the spur of the race-rider, makes 
 
THE JUBT 43 
 
 a break in places where evenness is of all things 
 desirable. " Ask him this question." " Ask him that 
 question." And to each a bad answer comes back, 
 and the case grows worse by the left-handed manner 
 of interference. The client is actuated by anger, and 
 forgets that when a witness starts to tell a falsehood 
 he will increase its clearness at every round. 
 
 There is little to be gained, and much to be lost, 
 by meddling. About all that can be gained before- 
 hand is the full strength, and not the weakness, of 
 the enemy; while clients constantly underrate their 
 opponent's evidence, they would be wiser to magnify 
 it, and be ready to explain or answer it with consistent 
 honesty. Instead of placing stress upon character 
 evidence, which of all things is dangerous — unless 
 the character is beyond question, and the quality of 
 witnesses to sustain it is equally reliable — one had 
 better make the case without it; for any juryman will 
 naturally reason that a doubtful associate would alone 
 create a suspicion on a good character, while virtue 
 need not boast too much of virtue. 
 
 The character of witnesses may often destroy the 
 case they are sworn to sustain. I remember a breach 
 of promise case where all went on swimmingly for 
 the defence until a vile creature, called a man, swore 
 to such a preposterous story of the plaintiff's acts 
 with himself that not even a cross-examination was 
 offered to deny it. It was considered its own denial, 
 as it stood so revolting to reason that the common- 
 sense of the jury rejected it and gave the plaintiff 
 $10,000 damages. 
 
 If anyone believes that a foolish jury, or a stubborn 
 jury, or a biased jury, or any but a fair-minded and 
 intelligent warm-hearted jury, is the right one to try 
 
44 TACT IN COURT 
 
 a civil or criminal case before, he lacks experience. 
 If lie believes in deceitful practices he is unworthy 
 the name of lawyer. 
 
 THE JUROR'S OATH. 
 
 The following opening period by Israel Holmes 
 was originally intended to appear in " Trial Practice," 
 but reached the author too late for insertion. It is a 
 gem, and is given a place here : 
 
 " Very beautiful and impressive is the juror's oath : 
 / do solemnly swear, that I will a true verdict render, 
 according to the law and evidence, so help me God! 
 In the thousands and millions of times that this oath 
 has been taken it has lost none of its beauty and 
 none of its impressiveness. To him that rightfully 
 takes it, whether believer or unbeliever, Christian or 
 infidel, it has a sacred sanction and controlling force 
 that raises him above all passion, prejudice, or per- 
 sonal bias ; lifting him up, so far as nalure will allow, 
 into the region of absolute duty and absolute truth — 
 justifying, awing, and ennobling him; binding his 
 conscience and his hopes and fears to the Eternal 
 Conscience and Eternal Power. In the spirit of this 
 majestic oath resting upon your conscience, you are 
 to deliver a true verdict, and no other, and therefore 
 do we ask so much attention to the circumstances 
 about to be presented in your hearing." 
 
CONVINCING A JUHY 45 
 
 CONVINCING A JURY. 
 
 To gain a jury's confidence one need not coax and 
 flatter them, or beg a verdict, or try to gain favour 
 by boasting that he knows them by name, or that 
 they are great business men or plain farmers, and 
 the like. A better way is to earn their confidence 
 by a full clear statement, and adhering to the merits 
 unobscured by rubbish and little trifles that clog and 
 hinder and never produce any real result in arriving 
 at a verdict. 
 
 Men are convinced by fairness, repelled by under- 
 hand tricks, and led with the sense of justice that 
 they will expect for themselves. To illustrate : A 
 carpenter sued for extra work and made out his bill 
 in items. Defendant pleaded payment, but showed 
 some uncertainty in dates and accounts. The builder 
 brought his dusty old memorandum-book in pencil, 
 with day and date of every item. He was very con- 
 fident it could not deceive him. " Figures don't lie," 
 he said to the jury. Counsel followed with his 
 references to the entry : " If two men weigh grain 
 and one of the two tallies each hopper full as they 
 fill it, while the other trusts to his memory, no one 
 would doubt but the man who kept tally would be 
 the more reliable. If two men travelled to Europe 
 and one kept a mile-book, in which he marked each 
 day's miles made on the journey, eleven days out, 
 no one would question but he was safer authority 
 than the one who attempted to remember eleven days 
 with eleven odd numbers. If I have a diary of the 
 weather for six years every day in every year, I am 
 safer to speak of the fine days and rainy days of each 
 
46 TACT IN COURT 
 
 season than one who guesses at it. So, in honesty 
 and justice, tally-sheets tell the whole story better 
 than many witnesses. Men forget; books remember 
 all that is committed to their keeping. Memory is 
 uneven, treacherous, uncertain; marks remain change- 
 less. They are made without motive to falsify; they 
 must be truthful." This is simple; yet to laymen 
 is clear common-sense, and they act upon it. The 
 jury feel a sympathy with the right side. They prefer 
 to end a controversy according to duty and equity. 
 They often do better than the Court's instructions. 
 They strain a point to help out a feeble case for a 
 deserving client. 
 
 What would you have done? is one of the 
 grandest of reasons in civil and criminal cases. In 
 Tom Marshall's defence of Matt Ward for shooting 
 Professor Butler in Louisville before the war, in one 
 brilliant passage he said : " What would you have 
 done? What would you have him do under the 
 circumstances? Stand like a coward, or defend him- 
 self?" And Governor Crittenden, following in the 
 same strain, added (for Ward was not defending 
 himself, but his brother) : " The law of self-defence 
 is not so narrow. I am not to defend myself and be 
 forced to stand by and see my wife, my child, my 
 helpless ones destroyed. No, gentlemen, if I had no 
 greater liberty than that, I would raise my own wild 
 hand and take this life and hurl it back in the face 
 of my Maker as a thankless gift." 
 
 Here was the touch of nature that made all 
 Kentuckians kin, and won a verdict of acquittal. The 
 jury will do right if they can. So that in criminal 
 cases, hotly contested, where, for example, the defence 
 is a home destroyed, all that counsel has to do is 
 
CONVINCING A JURY 47 
 
 to produce that innate sense of justice, rouse the 
 manhood, and say, What would you do under the 
 circumstances? to produce the result and secure 
 acquittal. I remember two more instances, one 
 small, one large, in importance. The first was the 
 shooting of a Newfoundland dog in his master's 
 doorway by an excited father who had just rescued 
 his son's bleeding arm from the monster's jaws, and 
 in the heat of passion shot the animal dead, without 
 reflection of when or where. In his evidence, on the 
 (rial, he said : " I could not help it. I would do it a 
 thousand times, gentlemen. You could not help it. 
 The cry of my boy was like a dagger in my heart. 
 / had to do it! " 
 
 The other instance was of a newly married man 
 who returned home partly intoxicated and saw through 
 the window a young man act very familiarly with 
 his wife. He hurried in, and was met with a laugh 
 that he did not relish. He ordered the intruder out, 
 and both he and the wife laughed all the louder. He 
 seized the strange man by the arm, but he was much 
 too strong to be handled. This was all done quickly. 
 Turning, he took a piece of stove-wood and felled 
 the man dead at one blow. It was his wife's own 
 brother! But he said: "I could not help it, gentle- 
 men. It was a dreadful trial. I was goaded to 
 the heart. It was my impulse. I was defending 
 my home! Nothing gets nearer to a jury than such 
 reasoning. 
 
48 TACT IN COURT 
 
 THE "WHITE PAPER RULE." 
 
 Three years ago, having occasion to go from New 
 York to New Mexico, stopping three days in each 
 leading city, and making such observations as a 
 hungry student of human nature will gather of various 
 men in jury trial practice, I found the following 
 " white paper rule." It easily became apparent that 
 trial lawyers were not reluctant to relate their rarest 
 experiences, which, to me, were dense with valuable 
 information. 
 
 It has been a standard rule with many, and should 
 be written on every lawyer's heart, that the " good 
 anywhere should be copied F.VERYwhere." Acting on 
 this rule, I often invited strong advocates to name 
 their best rule of winning cases. The following 
 came from a Chicago lawyer of national reputation. 
 " Would you be willing to name your best rule of 
 practice?" I inquired. "Yes," said the veteran, 
 " most cheerfully." Taking up two blotters, one full 
 as it would hold of black ink, and the other clear 
 white, he commenced : 
 
 " You see that blotter is about as full as it will 
 hold, don't you? " I nodded assent, and he went on : 
 
 " Now, this one (the new one) is free to take ink 
 readily, and I compare them to every jury. The 
 average juryman is over forty, and often a super- 
 visor, always likely to be a man of strong will, whose 
 mind, once fixed on a subject, is not so easily changed 
 as before he forms a settled opinion. 
 
 " Then the first consideration is, who will get the 
 most ink on the blotter? When it is once full very 
 little will stay on. Therefore, when the jury is sworn, 
 
WINNING CASES 49 
 
 the very first thing for the defence is not to allow all 
 of the surface of the blotter to be saturated with the 
 plaintiff's side without something from the other side. 
 I attach greajt importance to an early and impressive 
 opening and a clear manner of presenting all facts 
 from end to end, the secret of all being — men will 
 believe what they want 1o believe and forget what they 
 had rather not remember." 
 
 To me this was a complete and impressive law 
 lecture, for ink on the blotter is not easily removed. 
 
 WINNING CASES (No. I.). 
 
 The subject most vital to a trial lawyer's practice 
 is the art of winning cases before juries. His record 
 will be early made, and he can govern his fortune for 
 many years by a single victory in a single line of 
 practice. With all this responsibility before him, 
 with life and death at his fingers' ends, how few will 
 profit by any other than a series of blunders to attain 
 a reasonable degree of skill in the winning way 
 resorted to by our shrewdest advocates? Some are 
 so selfish that they think they have learned all there 
 is to be known, and need only wait their golden 
 opportunity. As well say one man has seen and owns 
 all the rare paintings in Christendom. The novelty 
 of argument is often the charm that holds a waiting 
 audience. If one expects to win lawsuits before juries 
 — a majority must be won or lost this way — he will 
 early learn the advantage of striking statements and 
 original illustrations. 
 
 Mr. Beecher's great popularity grew from his 
 quaint expressions and apt figures of speech ; Talmage 
 
50 TACT IN COURT 
 
 came to fame by a similar road; Gough and Collier 
 each follow the style of speaking that appeals to the 
 eye and heart and senses, with a unique art that is 
 captivating. 
 
 Lincoln, through his stories, turned many a verdict 
 that Brady would have won by pathos, Voorhees 
 by rhetoric, and Webster by a commanding logic. 
 The history of Corwin's career, with his jokes 
 excluded, would be mostly unprofitable; Mark Twain, 
 Bret Harte, and Artemus Ward each establish their 
 view of the value of saying something in speeches. 
 If we come a little nearer and take a few actual cases, 
 we will be more firmly grounded in the belief that 
 saying things with tact, spirit, and energy is the key 
 to conviction or clearance in very many trials. Here 
 are three reported instances : 
 
 F. was charged with an assault on E.'s wife with 
 a stove griddle. He was taken far from his home 
 and tried by a jury. Deep feeling existed. Both 
 families lived in one house, and all knew the unhappy 
 consequences. For the people, were five witnesses; 
 for the defence, his own statement. Counsel was 
 called from a distance, and much expected of his 
 address to the jury — simply because he had a name 
 for making peculiar arguments. I shall never forget 
 how serenely he first separated all witnesses, how 
 clearly he drew the contrast of each story by itself, 
 how poorly the people's case really matched itself. I 
 began to think it was time for fine work — when, 
 without a sign of any notes, counsel began his defence 
 by the Bible story of " Susanna and the Elders." It 
 was not over half-told when he was called on to name 
 the page, and insisted his Bible was not paged, as 
 every intelligent lawyer should know before his 
 
WINNING CASES 51 
 
 election as prosecutor! The jury's eyes said, Go on. 
 They were evidently interested in Susanna's fate, and 
 we could now see that the spirit of the play was in 
 the story — when " Daniel come to judgment," and by 
 his art of separating witnesses released her, counsel 
 could see that it discharged the defendant, and 
 abruptly closed his speech with a verdict of acquittal, 
 and this in the face of five witnesses ! 
 
 The next was an action for trimming shade-trees, 
 not large in amount, but pointed in practice. M. 
 owned a house and lot in D., on a corner, near a 
 planing mill. It was surrounded by tall bushy 
 shade-trees, forming almost a solid wall of protection 
 from sparks and fires, quite common at the mill. In 
 M.'s absence the street shade-trees were closely 
 trimmed, and a distant relative took the responsibility 
 of including M.'s corner with the rest, just for the 
 looks of the street. 
 
 The bill was rather unexpected, and accordingly 
 resisted. A young lawyer defended in this singular 
 argument, making a full and excellent picture of the 
 trees and beautiful dwelling, as they originally looked 
 with limbs and leaves in full size and completeness; 
 he then sketched the premises, m all their barrenness, 
 after trimming, and actually made the trees look so 
 like telegraph-poles, and the house seem so liable to 
 take fire from exposure to the mill-sparks, that the 
 point was convincing and complete in the boyish 
 picture, which he would point to with great con- 
 fidence, as showing not only no benefit (the only 
 ground, if recovery was had), but a positive damage 
 to his client's property. He wound .up a terse and 
 taking speech by citing the statute on disfiguring 
 streets by destroying live trees, and won a signal 
 
52 TACT IN COURT 
 
 victory. I have always thought there was more argu- 
 ment in that picture than a two hours' speech would 
 have been to the jury, one of whom remarked: "I 
 have served fifteen years on juries, and never saw a 
 case before so clearly put and illustrated." 
 
 The last instance of novelty in argument was in 
 a replevin case to recover to the owner a large black 
 stallion, known as " Black Jack." Simons, the owner, 
 imported him from England. He was very strong, 
 and few could manage him. Being short of money, 
 he was mortgaged for two hundred and fifty dollars, 
 which, when due, was unpaid, but to save suit one 
 hundred dollars more was advanced by the mortgagee 
 for a bill of sale of the animal, granting the vendor 
 possession, use, and income during the current 
 season ; it being also agreed that sale should be made 
 at eight hundred dollars, in case of an offer. A 
 lawyer, having a claim in judgment against original 
 owner, levied on the horse, after first securing a 
 written statement as follows; 
 
 " I hereby warrant my horse, ' Black Jack,' to be seven- 
 teen hands high ; sound, English blood, seven years old, and 
 that there is no claim against him, except a mortgage to 
 one Wright, for three hundred and fifty dollars. 
 
 " Witness, J. Weight. Signed, J. Simons." 
 
 Seeing his horse taken from him, as it were, 
 Wright brought replevin — showed chattel mortgage, 
 bill of sale, identiGed horse, and rested. The above 
 warranty was then read in evidence, and something 
 proved as to the value of the horse and its inadequate 
 price in the three hundred and fifty dollars, compared 
 with the real value of the property. Plaintiffs case 
 began to look hopeless, as in that state, if the parties 
 
WINNING CASES 53 
 
 intended what they said in the writing, it was a chattel 
 mortgage and no more, even if called a bill of sale. 
 But Wright was recalled, and said he witnessed the 
 paper in a mere formal manner; that the lawyer who 
 asked him to, pretended to be a granger, and did 
 not give him time enough to comprehend the wording 
 he had signed. The trial Judge was inclined to call 
 it a mortgage lien, and instructed the jury to find 
 accordingly, before the closing words were said to 
 the jury. The ingenious position of plaintiff's counsel 
 was something like this : We agree that Simons 
 imported, owned, mortgaged, and finally sold a large 
 valuable horse to Wright. Here is the horse (a 
 splendid large show picture was exhibited). It was 
 both mortgaged and sold to Wright. It is folly to 
 deny such a statement. Now, if Wright never sold 
 it bach, then it is unlawful to take Wright's horse to 
 pay Simons' debt. The bill of sale and mortgage are 
 honestly made and honestly recorded. Could not 
 Wright go, at any time, sell his horse to any man? 
 Certainly! Did he sell him to anyone? Never. 
 (Here counsel read sentence by sentence of the 
 " warranty," and said " that is not a bill of sale, 
 but a descriptive lie, and does not pass the title to 
 anyone.") " But," continued counsel, " what of the 
 difference in money advanced and value of the horse 
 — the equity side? Why, this about it: replevin suits 
 are not in equity; they are suits of law to settle legal 
 titles. Men must make their own contracts; Courts 
 and juries simply interpret them by common-sense 
 principles. Here was a powerful horse, a man in 
 debt, cramped by a mortgage, allowed, in addition 
 to three hundred and fifty dollars cash, the value of 
 a year's service worth nine hundred dollars more; 
 
54 TACT IN COUET 
 
 think of the certainty of something down — something 
 to accrue to original owner; and the great risk to 
 Wright in advancing large sums on such a ' white 
 elephant ' (or black one), that might cast himself, 
 and die or be disabled any day! Who of the jury 
 would advance three hundred and fifty dollars even, 
 and board the horse a year, to get it back? Then, 
 the price is fair. The horse belongs to Wright, who 
 never sold it, and is entitled to its possession," — 
 which he obtained. 
 
 It is this simple style of stating facts that convinces 
 laymen. In all his arguments, Abraham Lincoln's 
 art was in his illustrations. I remember speaking 
 with his old neighbours at Springfield, about the year 
 1870, while his many virtues were fresh in the minds 
 of all Americans, and all comments on his legal 
 success pointed to his happy faculty of utilising 
 incidents. One said : " Mr. Lincoln was so quaint 
 that we always expected something; we went to see 
 him get the jury; he did it handsomely. He never 
 made any long, dry arguments. His speeches were 
 crisp, meaty, and full of something to carry home." 
 Another said : " He had a knack of illustrating 
 his points by some comparison which was always 
 effective. Everything he said had meaning in it, and 
 was expressed so that it would bring its full meaning 
 home to the most ignorant person. He was — if I can 
 use such an expression — the most illustrative man I 
 ever met in my life. He could illustrate by a jest 
 or a little anecdote, which would have a volume of 
 significance." 
 
WINNING CASES 55 
 
 Winning Cases (No. II.). 
 
 " Once well done is twice done," makes a good 
 molto in all legal victories. So many cases are poorly 
 tried in the lower Courts that the work is repeated 
 a great many times before it is completed. 
 
 The dread of litigation is due to its endlessness 
 and costliness. Lawyers suffer much censure where 
 Courts are to blame, but very often deserve some 
 rebuke for delay growing out of poorly tried cases. 
 The difference in skill is like the finish of a painting 
 — the fine art that is paid for most liberally. 
 
 Nothing brings business like success. Wealthy 
 clients are the men most willing and able to promote 
 an attorney in practice, and to these he will always 
 appear in one character — either reliable or unreliable. 
 They have no time for needless litigation. What 
 they most want is certainty of results and an end' of 
 controversy. This is the merchant's practice in his 
 own business, and he prefers promptness and dispatch 
 with others. 
 
 In view of what has already been stated, and with 
 an eye single to securing business, no point in prac- 
 tice can be more important than one which secures 
 the right result the earliest. I can better illustrate 
 by an actual case lately tried in a Western city, known 
 as " the Reaper Case." 
 
 Lockwood was agent for a reaper company, and 
 called on Griffin to sell a high-priced machine early 
 in the harvesting of 18S3. Terms being agreed upon, 
 the machine was delivered and set in motion, but 
 the note which was to be given in payment remained 
 not signed — to be sent on after Griffin's son should 
 try the reaper. 
 
56 TACT IN COURT 
 
 On a thorough trial, at the end of harvest, Lock- 
 wood called for the note and learned that the machine 
 failed to satisfy the son, and would not be accepted. 
 Delay past the selling season, and disappointment 
 generally, created much feeling between the parties, 
 and either stood ready to fight the other through 
 the highest Court to the last ditch, if need be, for 
 justice. At such a time trial lawyers too often partake 
 of the spirit and bad blood of the contestants. .In 
 this case great bitterness was shown, up to the 
 drawing of the jury, when, by adroitness of counsel, 
 it suddenly changed to a more friendly contest. The 
 evidence pointed to a sale and delivery with a slight 
 condition of reserve to suit, or should satisfy the 
 buyer's son. This condition being made mainly on 
 defendant's testimony and the sale by plaintiff's agent, 
 the case turned on a wire, as we say, either way, 
 plaintiff or defendant. The jury gave defendant the 
 benefit of the doubt : Whether the minds ever fully 
 met on one thing at one time and constituted an 
 absolute contract. 
 
 Defendant's counsel confined his evidence and 
 "argument to this simple inquiry, and with the best 
 of temper praised the truthfulness of all witnesses, 
 eulogised reapers, extolled their agents, and enlarged 
 upon the growth of improvements ; insisted the reaper 
 was one of the best, but the sale had a condition, 
 and the buyer sought to enforce it. The jury, 
 thinking their turn might come some time, found 
 for the defendant. But the effect of good humour 
 or the high compliment paid the reaper induced the 
 agent to take it back, pay the costs, and end all 
 trouble. "That is the kind of litigation," said 
 a listener, "that would make lawyers more re- 
 
WINNING CASES 57 
 
 spected." How differently would a little abuse have 
 resulted ! 
 
 Chauncey Schaffer, now of New York, tells of his 
 early experience when lawyers were paid in boots 
 and shoes, or produce; before large fees were dreamed 
 of. He lived in Western Michigan, and John Van 
 Arman, his senior, practised law at Marshall, in 
 the same county. One day an excited shoemaker 
 retained Schaffer — or agreed to — in an insult case, 
 then adjourned for a week, to come off before a jury. 
 Schaffer was to travel twelve miles and be ready 
 early, and do his best, and not let up on his opponent, 
 but " everlastingly pummel him before the jury." He 
 was to receive two pairs of boots in payment for 
 his services. He had not heard the case nor seen 
 the witnesses, but was to call early enough to learn 
 the circumstances. 
 
 On the trial day young Schaffer was early on the 
 ground and ready for action, when to his chagrin 
 the defendant had hired Van Arman, now of Chicago, 
 and decided he needed no more counsel. Schaffer 
 was indignant. It was his first case. He had studied 
 a week and dreamed of it nights till it seemed a part 
 of his being. No one appreciates this better than one 
 who has been talked out of a 'case on the ground of 
 being too young and inexperienced. 
 
 He finally asked for one pair of boots, and he 
 would go home. This was refused, and Schaffer said, 
 " You are unreasonable — you deserve to be defeated," 
 and said it with such emphasis that the prosecutor 
 invited him to take a retainer on the other side, and by 
 consent Schaffer remained in case for the people. 
 
 The trial came on after dinner. Van Arman 
 opened rather strongly, followed by others, with 
 
 5 
 
58 TACT IN COURT 
 
 Schaffer to close. He was large, boyish, and timid, 
 but powerful in his personal convictions. He 
 eulogised Van Arman's effort, and said only two 
 reasons prevented it from carrying the jury and 
 securing an acquittal : one was the clear guilt of the 
 defendant, and the other his treatment of his chosen 
 counsel! (Sensation.) He went on and graphically 
 related the story of the defendant's guilt, and turned 
 to his. " secondly " with all the fervour of a Methodist 
 bishop, and with the naturalness of an actor told 
 how he had been retained and " studied the case day 
 and night, and finally was discarded and about to 
 be defrauded of his boots for the winter, and have 
 his maiden effort burn in his brain, unknown and 
 unheard by his schoolmates and neighbours!" The 
 jury were now fairly electrified. " And such is the 
 character of the man who provoked this quarrel — 
 provoked me — provoked us all — and attempted to 
 swindle this community out of the ablest effort of 
 my life!" 
 
 With much more of this line, young Schaffer 
 played upon the minds of his delighted hearers for 
 an hour, amid cheers for his wit and sarcasm, till 
 the whole Court room gave assent to this theory and 
 the jury said " Guilty." The Court fined defendant 
 $100. 
 
 Schaffer never won a finer victory. He is now 
 nearly seventy, vigorous and hearty, but this was his 
 start in practice. The suit broke up in a row where 
 some forty quarrelled in the bar-room, and it is said 
 that defendant really got an extra beating in the last 
 scuffle. The lesson is a clear one. Win your cases 
 honourably and treat your opposing counsel fairly. 
 It makes business. 
 
WINNING CASES 59 
 
 Winning Cases (No. III.). 
 
 When Dr. Agnew made his skilful opening .in 
 General Garfield's side, relieved the pain, and let 
 the world breathe freer by a single act, thousands 
 applauded science. That science was experience. 
 When Graham cleared McFarland for shooting 
 Richardson in the Tribune office in '72, people said 
 " So much for sham insanity." Graham's act was 
 experience. When Ford was acquitted recently in 
 Missouri, men murmured at the ignorance of juries. 
 
 Time has demonstrated that General Garfield's 
 doctors were skilful, but science was most decidedly 
 wanting. All of the instruments were deceptive on 
 the location of the bullet, on its direction, and the 
 extent of the injury. 
 
 The public were behind the age in the McFarland 
 case, as every important murder trial since has clearly 
 shown. And to-day it is a noted fact that no jury can 
 be found to convict a man or woman well defended, 
 who has taken life in defence of their home and fire- 
 side — especially where one has punished the destroyer 
 of his wife's virtue, and the family were shown to live 
 happy before the victim meddled with forbidden fruit. 
 Laws are not strong enougn, statutes not binding 
 enough, to stay a husband's hand in this species of 
 self-defence. Juries know it, and lawyers realise it 
 everywhere. 
 
 As to the acquittal of Ford, something of prejudice 
 may have crept into the jury box, but the real cause 
 of the verdict was a lack of belief in the people's 
 evidence There was a general over-confidence that 
 is the means of losing many cases. 
 
60 TACT IN COURT 
 
 People were too sanguine of skill in Garfield's case 
 and over-confident in the Ford case. 
 
 There is a common disposition to underrate our 
 enemies. Lawyers too often, on the statement of 
 clients, assume that there is no defence, or that 
 there is no other side to the question. Defeat lurks 
 along this line always; success lies in a different 
 direction. 
 
 It is well to assume that the jury will hear the 
 other side, that they will see any weakness in your 
 witnesses, and balance the evidence. That which is 
 fairest produces most justice; facts given with the 
 most candour, enforced by the clearest circumstances, 
 will capture the common-sense of a jury. 
 
 To be convinced of this fact, spend a half-hour 
 with some good juryman fresh from a well-contested 
 suit in which you were defeated. He will teach you 
 more than a law lecture. He will show you that you 
 have much to learn on the subject of clearness, much 
 to prove that you took for granted. 
 
 If counsel will note down and preserve for a 
 dozen years the rare points of practice, and the daily 
 little victories in Courts under his immediate notice, 
 he will profit very greatly by the habit. If law 
 journals, like medical monthlies, would tally and 
 preserve for reference the strange incidents, and their 
 application to daily trials in every State, it would 
 form a fund of information invaluable in practice. 
 This must be the end and object of more in the 
 profession before we shall profit by the wisdom of 
 experience. There is no patent on such knowledge. 
 It is no injury to a lawyer in Ohio that one in 
 Kentucky has found his best rule in practice. There 
 is very little danger of rivalry between counsel, and 
 
WINNING CASES 61 
 
 all that is done in an open Court room is public 
 property, for the public benefit. 
 
 I have often observed how carefully all special 
 cases in medicine or surgery are kept and reported 
 in the interest of science, and I predict that within 
 a score of years the science of law will copy this 
 valuable practice ; and more than this — the power and 
 influence of well-managed evidence in trials of fact 
 before juries will become a branch of study next in 
 importance to elementary principles. . . . 
 
 Robert Toombs and Alexander Stephens once 
 contested a suit growing out of a doctor's bill that is 
 very instructive, as well as amusing. After proving 
 the number and value of the visits, Toombs rested, and 
 Stephens told his client the case was clearly made out 
 for plaintiff and left no room for defence. 
 
 Defendant was greatly displeased, and followed by 
 saying, " I hired you to speak, and I want you to 
 speak." " But," rejoined Stephens, " there is nothing 
 to be said." " Then," said the stubborn client, " if 
 Bobby Toombs won't be too hard on me, I'll speak." 
 Toombs said he would not, and Peter proceeded (I 
 abbreviate slightly from original report) : 
 
 " Gentlemen of the jury, you and I is plain 
 farmers, and if we don't stick together these lawyers 
 and doctors will get the advantage of us. I ain't 
 no lawyer or doctor, and I ain't no objection to them 
 in their proper place, but they ain't farmers, gentle- 
 men of the jury. Now, this man Royston was no 
 doctor, and I went for him to doctor my wife's sore 
 leg, and he put some salve on it and some rags, but 
 never done it a bit of good. I don't believe he is a 
 doctor anyway. There are doctors, sure enough, but 
 this man don't earn his money; and if you send for, 
 
62 TACT IN COURT 
 
 him, as Mrs. Sarah Atkinson did for a negro boy 
 worth $1,000, he just kills him and wants you to 
 pay it." 
 
 " I don't," thundered the doctor. 
 
 "Did you cure him?" asked Peter, with the slow 
 accents of a Judge with a black cap on. The doctor 
 was silent, and Peter proceeded : " As I was saying, 
 gentlemen of the jury, we farmers, when we sell our 
 cotton, go to give value for the money we ask, and 
 doctors ain't none too good to be put to the same 
 rule. And I don't believe this Sam Royston is a 
 doctor nohow." 
 
 " Look at my diploma, if you think I am no 
 doctor." 
 
 "His diploma!" exclaimed the orator, with great 
 contempt. "His diploma! Gentlemen, that is a big 
 word for printed sheepskin, and it don't make no 
 doctor of the sheep as first wore it, nor does it of the 
 man as now carries it; a good newspaper has more 
 in it, and I show you that he ain't no doctor at all." 
 
 The doctor was now in a fury, and screamed out : 
 " Ask my patients if I am not a doctor." 
 
 " I asked my wife," retorted Peter. " She said she 
 thought he was not." 
 
 " Ask my other patients," said the doctor. 
 
 This seemed to be the straw that broke the camel's 
 back; for Peter replied with a look and tone of 
 unutterable sadness : " That is a hard saying, gentle- 
 men of the jury, and one that requires me to die, or 
 to have powers ceased to be exercised since the 
 Apostles. Does' he expect me to bring the Angel 
 Gabriel down before his time and cry aloud, ' Awake, 
 ye dead, and tell this Court and jury your opinion 
 of Sam Royston's practice?' Am I to go to the lonely 
 
WINNING CASES 63 
 
 churchyard and rap on the silent tomb and say to 
 them at rest from physic and doctors' bills, ' Rise up 
 here, you, and s-tate if you died a natural death, or 
 was hurried on by the doctors?' He says, Ask his 
 patients; and, gentlemen ®f the jury, they are alt 
 dead! Where is Mrs. Beasley's man, Sam? Go ask 
 the worms in the graveyard, where he lies. Mr. Peak's 
 woman, Sarah, was attended by him, and her funeral 
 was appointed, and he, the doctor, had the corpse 
 ready. Where is the likely Bill that belonged to 
 Mr. Mitchell? Gone in glory expressing his opinion 
 of Royston's doctoring. Where is that baby of 
 Harry Stevens'? She is where doctors cease to 
 trouble and the infants are at rest. Gentlemen, he 
 has eaten chickens enough at my house to pay for 
 this salve. I found the rags, and I don't suppose he 
 charges for making her worse; and even he don't 
 pretend to charge for curing her, and I am humbly 
 thankful that he never gave her nothing, as he did 
 his other patients, for something made 'um all die 
 mighty sudden." 
 
 The applause was great. The doctor lost, and 
 Peter won. 
 
 Winning Cases (No. IV.). 
 
 Courage in Court. — A very brilliant defence was 
 made by General Rousseau, in Louisville, in 1857, 
 where a remarkable trial was conducted with a spirit 
 and energy seldom witnessed. It appears, as reported 
 by Harper Brothers, that a family of six person? 
 named Joyce were murdered, and their bodies burned 
 near the city. 
 
 Suspicion fell on some negroes of an adjoining 
 
64 TACT IN COURT 
 
 plantation, who were seized, threatened, and hung up 
 until half dead and a confession sought to be gained, 
 but was refused. One was tied to a stake and a 
 fire kindled near him, when he, to avoid burning, 
 confessed that himself and the others committed the 
 murder. They were arrested and placed in gaol to 
 await their trial. The master believed them innocent, 
 and retained Rousseau; no other counsel could be 
 retained. 
 
 The excitement was tremendous. The undertaking 
 of such a defence single-handed was brave and 
 courageous. Many of the general's friends urged 
 him not to sacrifice his popularity by siding with 
 such debased criminals. Rousseau replied, " The 
 greater the guilt the greater the need of a good 
 lawyer to defend them," and said- he did not believe 
 in confessions extorted in that manner. Then many 
 cursed him openly as an " Abolitionist." The trial 
 brought a crowded Court room. The sole survivor 
 of the Joyce family sat inside the railing, with a 
 crowd of his friends just outside the bar. The feeling 
 of an outbreak was only restrained by a certainty of 
 conviction. But the excitement was painful, and fears 
 of a momentary outbreak prevailed. 
 
 Rousseau's conduct was prompt and daring. The 
 confession of the tortured negro was the people's 
 sole evidence. He told in a hesitating way how the 
 murder had been committed and the house fired in 
 several places. That after it was encircled in flames, 
 the youngest child, a girl of two years, had been 
 overlooked : now aroused by the light, called to her 
 mother to know if she was cooking breakfast. A 
 death-like stillness followed, when one of the jurymen, 
 shading his face with his hands, muttered " Tut, 
 
WINNING CASES 65 
 
 tut, tut! " in a half-hissing sound heard over the 
 Court room. A cold shudder ran through the 
 crowd, and in the excitement young Joyce sprang 
 to his feet and said excitedly, " / want my friends 
 who think these negroes guilty to help me to hang 
 them." A wild shout and clear clicking of pistols 
 was his answer. Joyce drew his knife from a sheath 
 and sprang towards the prisoners. Rousseau caught 
 him by the throat with one hand and clasped the 
 wrist with the other, thrust him back to his seat, and 
 confronted the crowd with the aid of two police- 
 men. The crowd made a rush in the direction, and 
 Rousseau said, " Tell your friends, Mr. Joyce, while 
 they attend to the negroes I'll attend to you." Joyce 
 waved his friends back, and the Judge ordered 
 policemen to aid the sheriff to protect the Court and 
 keep order. " Don't do that, your Honour," said 
 counsel, " we can protect the law and its officers. 
 There are enough true men to protect the prisoners 
 from mob violence." "Who are your friends?" 
 cried the furious crowd. " You are," said Rousseau. 
 Then he turned, and in burning words told them to 
 protect the young man from committing a crime 
 which would forever disgrace them as a law-abiding 
 community. The crowd calmed down and said, 
 "He's right! He's right! " 
 
 The trial proceeded quietly to the close, when the 
 verdict of " Not guilty " was given amidst terrible 
 excitement. The prisoners had been removed in 
 time to secure protection. But the people would 
 have blood, and the same night a mass of men sur- 
 rounded the gaol, removed the prisoners, and hung 
 them to trees in the grounds of the city hall. Mayor 
 Pelcher was hit by a missile and died from the injury. 
 
66 TACT IN COURT 
 
 In several trials Rousseau defended negroes from 
 aiding guilty parties in escaping from slavery — then 
 a high crime in Kentucky. But few men could bear 
 such a character. He later became a senator, and 
 famous as a general; and later was employed to 
 assist in a famous case — the trial of Jeff. Davis for 
 treason. 
 
 This is the same kind of bravery that Seward 
 showed in the Freeman case. Denounced as he was 
 for defending a negro who had killed the Van Ness 
 family, he believed in the prisoner's innocence, or 
 insanity, and followed his case, after defeat, to the 
 Court of Appeals, where a reversal was secured, and 
 pending a new trial Freeman died in gaol. His 
 brain was examined and found to be actually rotten. 
 
 Cases of courage in the Court room would fill a 
 volume of rare reading. They are known in almost 
 every State. But I have seldom known of greater 
 courage than that shown by the late Senator Jacob 
 M. Howard, who, while prosecuting in the great 
 conspiracy case^ became convinced of the innocence 
 of the accused (forty men for attempting to burn 
 the Michigan Central Railroad bridge at Niles), 
 said, " It is enough for counsel to deprive one of 
 his property or rob him of character in a contest 
 for his client, but when it comes to taking away his 
 liberty for years (which is in effect his life) and 
 depriving his kindred of his protection, while his 
 memory is branded with the stigma of a felon's 
 name, it is far more creditable and honourable to 
 lose a case, and go to one's judgment hereafter 
 without the tarnish of human blood on his garments 
 for committing a higher crime than the accused was 
 charged with." 
 
TEN TRIAL RULES 67 
 
 TEN TRIAL RULES. 
 
 The selection and proper treatment of a jury 
 should be classed as one of the fine arts. It is a thing 
 very difficult to do properly: a life of close observa- 
 tion and active practice, with a natural adaptability, 
 are required for its mastery. The writer, in his recent 
 work on " Trial Practice," gives " Ten Trial Rules " 
 which are here quoted : 
 
 1. Select young jurymen, with warm intelligent 
 faces; exclude officers of every kind. Become early 
 familiar with the winning facts of both sides. Con- 
 ceal them, and instruct parties and witnesses to 
 keep silent and let the counsel do the planning of 
 theories. 
 
 2. Find what opponents are likely to prove and 
 how probable will be the showing, and, if false, how 
 it can be denied or met by fair explanation. 
 
 3. Nothing takes so well as common-sense. Be 
 reasonable. Never weary a Court with technicalities, 
 nor a jury with quibbles, nor offend a witness by 
 browbeating, but know what you need to make a 
 case and stop when it is established, so that the jury 
 may see the sharp end of your evidence. 
 
 4. Cross-examine only with an object — bring out 
 the point and don't cover it. Avoid all abuse of 
 counsel or parties; such quarrels draw attention from 
 the issue and cause disagreements, while kindness 
 and fair play win a lasting victory. 
 
 5. Explain the reason of the law to the jury, or 
 in their hearing. The average mind is wiser than 
 many suppose. But be sure the jury know the 
 consequences of the verdict. 
 
68 TACT IN COUET 
 
 6. Counsel, and not clients, should control cases 
 and trials. 
 
 7. In opening an argument, select first the points 
 on which there is least dispute, and, if possible, 
 those nearest with your position. Pass to the others 
 with confidence, and carry the jury with you by 
 reason, not by threats, not by bombast. Leave 
 appeals until after the convincing is accomplished. 
 But feel what you say, and believe what you say, 
 always. 
 
 8. Treat a jury with unbounded confidence; like 
 begets like, under all circumstances. Men are not 
 driven by threats, but persuaded and convinced by 
 reason and common-sense when it is clearly illus- 
 trated. Jurymen prefer to do right. Shew them the 
 right road in a plain and clear manner. 
 
 9. The strongest reason is : What would you 
 have done under like circumstances? Human nature 
 finds excuses for wrongs that lead to good results 
 and are justifiable. Men generally do on a jury 
 what seems most reasonable, if it is shewn to them 
 in a sensible and convincing manner. 
 
 10. There is no opportunity better than the 
 earliest. Let the jury know from the beginning 
 that you believe in your rights and will fairly enforce 
 them, while their minds are as clear as white paper. 
 " Write it on their hearts and engrave it on their 
 bones " that your client has the rights you contend 
 for and will ask for none other. But insist upon 
 justice. On this be so full, so determined, so fortified 
 with law and reasonable evidence, that it will stand 
 like a mountain, unshaken either by quibbles or 
 appeals. 
 
SELECTING COUNSEL 69 
 
 SELECTING COUNSEL. 
 
 The wisdom of a Chancery lawyer may be lost 
 with a jury. It is a very common fault with speakers 
 to reason over the heads of their hearers. For this 
 reason the country pettifogger outwits the wiser 
 counsel from a large city. This is mainly done by 
 ridicule. Very few juries have the stamina to with- 
 stand ridicule when woven into a closing argument, 
 and the only way to meet it is by an open analysis 
 in advance of the final speaker. If adroitly done, 
 this method is effective. 
 
 In a case of a couple of orphans against an 
 insurance company the selection of counsel was left 
 to the executor, who did it with rare discretion. The 
 closing of the trial seemed to indicate a decided 
 defeat of the claim, which was one of a series, 
 amounting to $20,000, and counsel's services in such 
 cases are not easily over-estimated. 
 
 The case lawyer was extremely rasping and 
 unpleasant in opening, and dwelt upon the technical 
 grounds almost tediously. He was followed by two 
 pleasing speakers on plausible theories, and the 
 homely speaker permitted to sum up the plaintiffs 
 case in two hours after dinner. Nothing in his 
 appearance spoke for him. Nothing of his voice had 
 been heard in side-discussions. He was reserved, 
 like the racehorse at the county fair, to make a 
 superior heat to the spectators. 
 
 I can see him as he stood up timidly, age over 
 seventy, tall, uncouth, awkward; clear Scotch accent, 
 with a ring to it like a triangle in a band. He began 
 low and full, and grew deeper. Men that had 
 
70 TACT IN COURT 
 
 turned down the stairway as they saw him rise to 
 speak, turned back to catch the soft rhythmical 
 sentences, measured and low and charged with 
 meaning, and one by one crept back on the benches 
 and listened. The room was hushed as at a funeral. 
 I had decided to go with the rest, but was spellbound 
 at the opening sentenoe that soon followed, which 
 was pronounced by the late William A. Beach to be 
 the most touching period he ever read of any 
 American argument. I let the words tell their own 
 story. Raising his eyes to the ceiling, he stood like 
 one transfixed in awe and majesty, and said : " Oh ! 
 I can see her now; it is early twilight; it is winter; 
 the snow is falling fast and slippery, whitening the 
 liltle plank-walk to the cistern. She has company; 
 she hurries down the walk;- catching up a pail, 
 leaving the hook hanging over the curbing, bending 
 low, she slips, she falls, the water covers her; no ono 
 hears, she is drowned! It is an accident; and I 
 almost hear her say, as she looks down to you, to this 
 upright Judge, this honest jury : ' Gentlemen, you 
 may cheat my children, if you will, but spare them 
 the burden of dishonour : the money will be a poor 
 pittance at the most to that priceless character that 
 my innocent children should inherit.' We plead for 
 the money that they deserve, we plead for the 
 character that they own, we plead for the justice 
 that their evidence demands; make their lives happy 
 and their mother's memory sweet — sweet as the day 
 she bade them good-night — the night before the 
 night of death — little dreaming of the sudden end, 
 little dreaming of the scandal they should meet, 
 little dreaming she should be held up in horror to 
 frighten a jury from duty — held up in shame, and 
 
SELECTING COUNSEL 71 
 
 deceased to blot out the fair name she had earned 
 for her children ! You will not stain these little ones, 
 gentlemen — you will not pay a claim that way, you 
 will not cancel a just debt by a mean insinuation 
 of wrong? Why, gentlemen, they would have you 
 think that this woman loved her little ones so much 
 that she dared the pains of hell and drowned herself 
 that they might be made rich, though orphaned! 
 No crown of glory she held in prospect, no garland 
 of the blessed to be wreathed upon her brow! — only 
 a sordid fraud, a leap in the dark oblivion of the 
 great hereafter, to get gain! 
 
 " Gentlemen, my work is almost done, poor as it 
 is. I must trust to you to do a better work. And 
 my little clients " (here the speaker laid one hand on 
 each client's shoulder, and amid the hushed silence 
 of rapt attention, said) — "my little clients, may God 
 bless you! I have done my best to make your 
 name an honour to our Stale. But oh, how poor and 
 weak my words have been! And you, gentlemen, 
 even now, by your silence and interest in this case, 
 methinks I hear you say : Stop ! Delay no longer ! 
 Let us begin this work of justice! Slop! that we 
 may restore these orphans to their own — to that 
 pure character that they will love to honour — a 
 character as pure as they knew her on that last and 
 long good-night. Stop! that you may wipe away 
 all tears from these orphan eyes and plant the sweet 
 rose of a mother's love in their bright young lives, 
 to grow, bloom, and bless the world for their living 
 in it. Stop ! that we may right this wrong at once. 
 God! put it into the hearts of this jury to see 
 
72 TACT IN COURT 
 
 the truth — to vindicate a mother's name and a mother's 
 love to her helpless children. 
 
 " God ! remove the mist of this case, reveal the 
 truth to these jurors, let them see their duty and 
 give them strength to do right, and do it, remembering 
 that some day — yes, an early day to most of them — 
 when they shall be called home to leave, it may be, 
 dependent children and a sacred memory of a good 
 name, that of future juries they may expect the same 
 just finding that they have found for us — a verdict 
 and a vindication." 
 
 Jury found $5,300, and the other three cases were 
 duly paid. The case was an ideal jury trial. I have 
 reported it from memory. 
 
 THE LUCK OF LAWYERS. 
 
 Confucius says, " The archer who misses the 
 centre of the target turns to himself to find the cause 
 of his failure." He was a wise teacher. 
 
 A lawsuit is such a costly luxury to either party 
 that failure becomes an important matter. One would 
 often pay the expenses of both sides to be sure of 
 being a winner in the contest. 
 
 It is so humiliating to be defeated that great 
 anxiety follows a litigation from beginning to end. 
 But to fail on a trifling lack of evidence — a thing 
 that can seldom ever be supplied after the failure — 
 is a bitter disappointment, and must lead one to look 
 to himself ! 
 
 It is not possible to win all cases, and hardly 
 probable that over half, taken as they come, will 
 stand the test of a higher Court's review. But of 
 
THE LUCK OF LAWYERS 73 
 
 the sorted cases a large majority should be reason- 
 ably certain in results. For this reason, wise and 
 expensive counsel are engaged to watch every turn 
 and insure a victory. These are often no more 
 certain than alert and artful young lawyers. 
 
 As Court victories generally lead to an increase of 
 business and wider reputation, while losing cases will 
 often ruin a good law practice, to win is highly 
 essential to success. 
 
 Reputation for tact or eloquence usually begins in 
 the Bar and extends throughout the county, then the 
 State, and possibly the nation, or even becomes world- 
 wide by the importance of the controversy. 
 
 But no matter what one's talents are or what his 
 ability to try cases may be, if he has an inland city 
 practice and no cases of public interest he may remain 
 for a lifetime in a narrow range of practice. So 
 the luck of a lawyer is his class of cases, success 
 in Court, and location of business. A New Yorker 
 has twenty to one chances over a man in a Kansas 
 Court room to be known as successful. This is a 
 large element of greatness — the notice that is taken 
 of his trials and triumphs, and the attention that such 
 victories deserve. 
 
 This is not intended to make everyone start on 
 the keen run for New York to begin practice — not 
 by any means. You may be a thousand times better 
 off Where you are. The metropolis is already over- 
 crowded with advocates. Governors of States, 
 generals of armies, senators, and wealthy men of 
 national renown and brilliant talents are there before 
 you. They are established and, like the great daily 
 papers, have their patronage that newly made ventures 
 will hardly disturb. As well might all editors start 
 
 6 
 
74 TACT IN COURT 
 
 for a large city who now enjoy a fine income at home, 
 and there would be likely to starve. 
 
 But it may be noted that lawyers and newspapers 
 of real merit and originality will command attention 
 wherever located, and in like proportion to their 
 tact, skill, and eloquence will attain to eminence. All 
 things come to those who work and wait. 
 
 STARTING IN LAW. 
 
 The study of law to a beginner is like entering a 
 dark tunnel — the start is always the darkest. Gradu- 
 ally light breaks in, and soon it seems like daylight. 
 This is due to the fact that it seems a large under- 
 taking. It is large. It is dark. 
 
 To one who has been across the continent several 
 times the journey appears much shorter, and to one 
 who sees far enough to know the reason of rules, 
 maxims, and definitions, and the object of knowing 
 them, and their use and application to principles 
 involved in trials, and how verdicts are controlled, 
 a greater relish is given to the different branches of 
 study used in explaining these principles. 
 
 It is not right to try a short cut through law 
 studies, for there is none. But sometimes, like a 
 surveyor's measure of a lake, we may be guided by 
 two angles to find the other, and tell much that is 
 essential and useful from one outside point to 
 another. 
 
 All mystery should be omitted at the beginning. 
 The plainest facts should be stated with their illus- 
 trations, and simple principles gathered in little 
 groups like familiar stories should be dwelt upon to 
 
STAETING IN LAW 75 
 
 feed the mind, interest the reader, and open little 
 doors first to that part of the law which leads directly 
 into the office and Court room. This should be done 
 to incite a lively interest in the theme and its 
 requirements. 
 
 Instead of this method, we find nearly every 
 student first put at copying, or reading Blackstone — 
 one of the heaviest law works of all history, and 
 especially so to a very young student. All admit 
 that Blackstone is the basement-storey of law practice. 
 But all are not sure that one in beginning will find 
 interest in Blackstone. As well place a student of ten 
 years to the study of Shakespeare. 
 
 The start in law is always an experim'ent. Early 
 enough, if interested and gifted, will the young man 
 be led to know that he must build on such authors, 
 but the start in law should be made more gradual 
 by becoming familiar with the range of study, and 
 to this end some clever counsel should talk over the 
 books in half-day lectures, and thoroughly and early 
 impress the beginner with their use and reason, as 
 the object of his undertaking. It will be well to say 
 something encouraging of the wide Gelds surrounding 
 so dense and dismal a forest through which one 
 must go long and fatiguingly to find the high prizes 
 of promotion. 
 
76 TACT IN CODET 
 
 INCIDENTS IN ARGUMENT. 
 
 It is said of Chief Justice Coleridge, of England, 
 that he was first heard of through a famous murder 
 trial, in which, while he was closing to the jury, the 
 lights went out, and when re-lighted he added the 
 forcible words : " The life of the prisoner is in your 
 hands, gentlemen. You can extinguish 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. 
 
 So an obscure writer first attracted the attention of 
 a London editor by the graphic description of " A 
 Night in the Thames Tunnel," and, being sent for, 
 admitted that, lacking lodging money, he paid his 
 penny fare and stayed out the long hours with other 
 like destitutes. He was placed in an Edinburgh 
 printing-place — .£200 a year — and a few years later 
 created a sensation by his " Life in London," that 
 had a marvellous sale. The incidents in these argu- 
 ments called attention to their brilliancy, his genius 
 and capacity. 
 
 Mr. Moody's description of the millionaire prisoner 
 in Ohio penitentiary, after thirty-three years of con- 
 finement; of his long persistent quarrel with a 
 railroad company in the Courts (for crossing his farm) 
 and anger at defeat, and his placing an obstruction 
 on the track one dark night that threw off the train 
 and killed several persons, and his final conviction 
 and life sentence; and a few years later of his 
 finding a thriving city grown up on his farm, divided 
 by his supposed enemy, the railway track ; of his 
 
INCIDENTS IN ARGUMENT 77 
 
 being made a very wealthy man by it, yet left a 
 miserable captive within prison walls, — was inten- 
 sified by the fact that Moody had personally known 
 the prisoner and learned the story from his heart- 
 broken language. 
 
 The same speaker, who is a model in making 
 arguments of incidents, tells of a Chicago defaulter in 
 a county office, who a few years ago concealed 
 himself from the law officers and remained day after 
 day secreted in his own city. Night after night he 
 would steal into his family room, walk silently past 
 the sleeping children, fearing to wake them lest they 
 should tell their schoolmates and reveal his hiding- 
 place; and at last he woke them with his farewell 
 kisses, surrendered, pleaded guilty, and was sentenced 
 to nineteen years' imprisonment. Moody tells it, 
 directly from the prisoner, with graphic power and 
 marvellous effectiveness. 
 
 It is not so much the story told, as the fitness and 
 timely application, that convinces. The little touching 
 references to the surroundings of a story, like the 
 kissing of his children in the dark and his creeping 
 as by stealth to take a last look, are touches of nature 
 to awaken emotions in all hearers. 
 
 I remember talking to a Texas lawyer who 
 enforced this lesson most keenly by a point in his 
 personal experience, which I once related with effect 
 in a different kind of case, and this is the pith of it 
 (for in all articles I write with a narrow column 
 and limited space ever before me). " I was thinking," 
 he said, " how I could bring home to the jury the fact 
 that long imprisonment means death, when I thought 
 of the long trial we were engaged in and their own 
 anxiety for release, and I said, ' You that have been 
 
•78 TACT IN COUET 
 
 from home but a month on this jury, how the days 
 have dragged on, how the nights have seemed long 
 and weary; how you have longed for a sight of the 
 old farmhouse, of your cattle, of your wife, of your 
 little girls and boys, who are even now wondering 
 what keeps father so long away on the jury! But 
 how short it is compared to fourteen years of twelve 
 long months each — five thousand days and five 
 thousand nights : alone in prison, without hope, 
 without comfort, without pure air, without family, 
 without freedom! Such endurance is worse than 
 death. It is a million deaths! " 
 He won by it. 
 
 FRIENDS AND MONEY. 
 
 A good bank account is a means of creating 
 eourage, confidence, and business. It is kept good 
 by careful investments and not drawing out quite 
 all that is deposited. One had better charge less and 
 collect cash and bank it than keep open client 
 accounts — they go elsewhere while in your debt and 
 care very little about past services. 
 
 It is a great loss to lawyers if suits are brought 
 without foundation. Far more cases come to office 
 than deserve to be placed in Court, and a very sure 
 test in sorting out the good from bad ones is by 
 asking a large retainer on doubtful cases, stating it i3 
 for the very reason that they are doubtful, and require 
 more attention. 
 
 The client who says he has a good case is too 
 much interested to decide on a matter of that nature. 
 About half that he says is not capable of proof under 
 
FRIENDS AND MONEY 79 
 
 the strict rules of evidence, and one-quarter of that 
 may be denied by the other side, and leave the case 
 rather slender. He will weaken if the advance cash 
 is considerable. 
 
 To avoid offending the other side uselessly will 
 double one's business in the long run, while offence 
 given to please one client will react in many instances. 
 The client you appear for may not always be such, 
 and the adversary may be in position to judge of 
 your unfairness if attempted. But never try to please 
 both sides except by doing right. 
 
 Claim about as much for your side as can be 
 shown by circumstances — neither too little nor too 
 much. Else by overreaching you create distrust, and 
 by under-estimate you weaken confidence. Men are 
 so human that they will not over-credit poor humanity. 
 Still you must win. Your fees depend on victory well 
 earned and fairly won. 
 
 Fairness is such a jewel in practice that every trial 
 increases its brightness. The man that juries take 
 to is one who soon makes business through popularity. 
 If a hundred men all say something good of a 
 lawyer — and one new one each week — he will not 
 long remain poor or lacking in cases. 
 
 The man that carries his heart into cases is the one 
 who convinces others by sincerity, and once in the 
 possession of public confidence he may look for his 
 share of its patronage. Estates and financial interests 
 fall to the lot of the worthy, and affections cling to 
 the successful and diligent. 
 
 To use others as we would be used by them may 
 sound odd and simple, but no better motto has ever 
 been invented on earth or from heaven. It is a rule 
 
80 TACT IN COURT 
 
 of business that makes character; and what is great 
 riches with a soiled reputation? 
 
 The boys that grow up around us are the men of 
 the future. They start from college with a longing 
 to be either wealthy like Bliss, eloquent like Beach, 
 or great like Webster. A passing word will help 
 them. They will return it many times in giving you 
 a good name and deserved honour. 
 
 In the long run of trade, business, and professional 
 life, the one great rule will govern most people, and 
 that is seldom ever considered; it is this: "Success 
 in life, in anything, depends upon the number to whom 
 one can make oneself agreeable." 
 
 TO CROSS-EXAMINE WELL. 
 
 Think first what an icy pavement you tread upon; 
 think how a willing witness may say too much that 
 had been unproved without him; think how the rivet 
 may be clinched and the strength redoubled by facts 
 too often repeated and committed to memory; think 
 how you may develop new theories for your adver- 
 sary, and act with quiet discretion. 
 
 The art of cross-examination is to shew a conflict 
 of testimony. It may not be successful, yet, if 
 skilfully worded, it will convince some on the panel 
 that you have at least moral evidence of the facts aimed 
 to be established. It is not the place to exhibit smart- 
 ness ; that will be better if concealed. To entrap a false 
 witness, to confuse a timid one, to encourage one who 
 will aid your theory, are good uses of this high art. 
 
 Most young lawyers think they appear dull if they 
 pass a witness without " tearing him to pieces " under 
 
TO CROSS-EXAMINE WELL 81 
 
 rigid questioning, and find that they have fed their 
 enemy at every question. Older advocates use this 
 weapon with tact and caution. They have tried the 
 sabre exercise foo often, and remember the deep scars 
 it produced on their clients. 
 
 Three kinds of witnesses may be shaken by cross- 
 questions : (1) Those who swear recklessly ; (2) those 
 who swear defiantly; and (3) those who swear falsely. 
 The last named may be impeached, if he fails to 
 impeach himself, by his own story. Only a few 
 persons can continue long in telling falsehoods without 
 detection. 
 
 The fine art of cross-examining is in making your 
 case but of an opponent's witness. This is almost 
 always done by a gentle and delicate leading process, 
 coupled with a concealed kindness that fascinates and 
 encourages, while it creates the reasonable doubt or 
 supplies the broken thread of a story that you are 
 seeking to establish. 
 
 Of all men puzzled by cross-questions doctors are 
 the most pliable. They deal in strange phrases and 
 queer theories, and out of twenty or thirty ten will 
 admit that all men are at times a little unanchored in 
 intellect. They will swear through a series of vivid 
 dreams, temporary insanity caused by jealousy, or 
 prolonged litigation, by a quiet and well-followed 
 invitation. 
 
 There are no better rules of cross-examination 
 than five : (1) Know what you need, and stop when 
 you get it. (2) Risk no case on the hazard of an 
 answer that may destroy it. (3) Hold your temper 
 while you lead the witness, if convenient, to lose his. 
 (4) Ask as if wanting one answer when you desire 
 the opposite, if the witness is against you ; and 
 
82 ' TACT IN COURT 
 
 reverse the tactics if he is more tractable. (5) Treat a 
 witness like a runaway colt; and see that he does 
 not get too much the start of his master; and if he 
 does, let go of the reins at the first safe turn in the 
 testimony; but if you see any object to break his 
 running, call the turn quickly. 
 
 THE GET-READY RULE. 
 
 The late Judge Curtis, of Boston, gave hints as a 
 basis for the following trial rules that are not so 
 generally known as they should be, and yet they very 
 forcibly apply to criminal defences : 
 
 1. Pay little attention to the good side of the case 
 at first — that side will take care of itself; but be sure 
 you look well to the bad side, not forgetting to explore 
 the strongest form of the proof, and knowing that 
 an opportunity to prove even what is false may be 
 used by your adversary unless you have certain means 
 to refute it. 
 
 2. Never try to disprove what has not been proven, 
 and supply thereby the missing link in the enemies' 
 chain of evidence. 
 
 3. Never forget that an innocent person with 
 enemies may be in a more dangerous condition than 
 a guilty one with friends and influence. 
 
 4. The pulse of the people beat nearest together 
 through the columns of the Press, and a few wicked 
 papers may tell a jury much in half-hour accounts of 
 an occurrence that will shade the whole story by it 
 unawares. 
 
 5. Persistent energy in the face of genius and 
 eloquence will bear its fruit in due season if properly 
 
OUTSIDE PRESSURE 83 
 
 directed, but endless travel in the wrong direction 
 will never reach the place of destination; therefore, 
 of all things, be safe in your theory and start out 
 equipped for a trial of hardship. 
 
 Chas. S. May, of Kalamazoo, Mich., says: "The 
 best trial rule I can think of is for the advocate first 
 to possess himself thoroughly of the facts of his case, 
 and to believe in its justice; and then to keep in mind 
 in every step of its progress that the jury is composed 
 of men representing the average common-sense and 
 moral sense of the people, actuated by an honest desire 
 to do impartial justice between the parties, and so, in 
 the light of this fact, to be able to see how every 
 proposition or objection, piece of testimony, remark 
 at the Bar or observation from the Bench, would be 
 likely to affect such a body; in other words, for the 
 trial lawyer to imagine himself in the jury-box, with 
 their purposes and intelligence, and think how these 
 things would be apt to influence him." 
 
 OUTSIDE PRESSURE. 
 
 While the earliest reasoners used fables and 
 allegories, the latest employ all the arts of argument 
 in the one method of claiming to be in the majority. 
 Public popularity is invoked to win with. 
 
 That the greatest body of men ever called to decide 
 a given question should be governed by this reason 
 is shown in -the verdict of the famous electoral com- 
 mission, and the recent Ohio Scott liquor-law 
 discussion; for what other reason could govern such 
 eminent and learned tribunals than a desire to be 
 with their party and sustain its arguments? 
 
84 TACT IN COUKT 
 
 It is not so certain to-day that important questions 
 are even so elaborately argued as they were in the 
 primitive stages of our country's history; but it is a 
 solemn fact that, with a community set for or against 
 a case, the result will either be like the verdict of 
 that community or a spiteful disagreement. 
 
 It is not a time when men are aroused like the 
 listeners to Mark Antony's funeral oration, or Cicero's 
 appeal for Gavius, where a few well-chosen words 
 created a radical change of sentiment. Men were 
 then moved by simple reasons ; now they are their own 
 judges of the results of verdicts. 
 
 Following in this modern line of argument were 
 the great trials of McFarland-Richardson, the Sickles- 
 Key, Newland-Evans, and the Buford-Elliot cases, that 
 were all decided in accord with public opinion and 
 outside pressure. 
 
 But a few exceptions, like the Webster-Parkman 
 and Beecher-Tilton trials, varied a little from this 
 general rule ; with the ablest efforts the great advocate, 
 Wm. H. Seward, failed to bend the custom in the 
 case of the demented negro whom he defended. 
 Public opinion insisted upon his conviction, and the 
 opinion was enforced — even with a brain so diseased 
 that it parted like earth at the touch of the post-mortem 
 examiner's knife. 
 
 That public opinion will yield to persistent argu- 
 ment was shown in the Buford case named, where the 
 feeling that would once have lynched him became a 
 sentiment of sympathy and compassion later on in 
 the contest. A more radical change of feeling has 
 seldom been recorded than the release of this slayer 
 of " the Mountain King." 
 
CONDUCT IN COURT 85 
 
 From these brief references it will appear quite 
 vital to success in argument that every person charged 
 with an offence at law should be tried by an impartial 
 jury, in an unbiased community, and by counsel who 
 can comprehend the use of weapons that secure fair 
 play and even-handed justice; for without these 
 advantages no honest victory is probable. It is not on 
 the rumour of the populace, nor on the evidence of 
 enemies, nor where truth is perverted, that a jury 
 should weigh testimony and arrive at a just verdict, 
 but by an unbiased and independent judgment. 
 
 CONDUCT IN COURT. 
 
 I nevl:r knew but one man in Court who quite 
 filled all expectations as to what a lawyer should do 
 before a jury, and that man is no longer with the 
 minority : full of honour, and the idol of many 
 admirers, he has passed to his reward, which 1 hope 
 is as beautiful as his career was brilliant. 
 
 It was in June, 1873, that I chanced to hear <ind 
 see him, and I shall not soon forget the lasting 
 impression. He was of medium size — five feel nine in 
 height, weighing, say, one hundred and sixty-five 
 pounds; very erect, warm face smoothly shaven, a 
 small beard on the chin; large head nearly bald, with 
 long, thin, silver-grey hair worn much like an 
 Englishman. His tone was deep and thrilling. His 
 arms and hands moved gracefully, yet with an earnest 
 rugged grace all unstudied. His whole manner was 
 respectful, eloquent, sublime. 
 
 He was an ideal advocate. Voice better than 
 Carpenter's, sentences more thrilling, bearing more 
 
86 TACT IN COURT 
 
 dignified. Not so learned as Evarts, not so strong 
 as Webster, not so brilliant as Brady, but a strong 
 combination of all their general qualities woven into 
 one great lawyer. 
 
 I see him now as he sat near a young beardless 
 junior, taking notes rapidly, when an opposing 
 counsel objected too often, and the Court rebuked it. 
 Rising in a respectful way, he said, " I thank your 
 Honour." The melody of his voice was beautiful. 
 Once more I hear a point made by counsel : " What 
 we insist is, that there is no evidence of marriage." 
 Instantly he is alert! Commencing slowly, while 
 rising to his feet, he said : " Evidence of marriage ! 
 What is evidence of marriage? Why, living together, 
 may it please your Honour! Cohabiting together, 
 may it please your Honour! Introducing each other 
 as husband and wife, raising up children together, 
 may it please your Honour! For all these relations 
 they were married ! Ay, that going down into the very 
 valley and shadow of death that a woman assumes in 
 such relations — they were married! They were mar- 
 ried when he enjoyed the bloom of her youth and 
 her heart's loving tenderness — married when it flat- 
 tered his vanity to enjoy her beauty; but when we 
 come to that other time, when of all times marriage 
 is most sacred, when they should be leading each 
 other down the western slope of life's steep hillside, 
 to rest together at the foot, in long repose, then il is 
 that this demon of humanity seeks to cast her off, 
 and jeopardise her womanhood! — bastardise her 
 
 children ! " 
 
 « * * 
 
 He had been growing taller every sentence. He 
 had walked close up to the Judge's bench. His eyes 
 
BREVITY AS AN ART 87 
 
 flashed fire. His voice, and hands, and arms, and 
 tones, and gestures all grew eloquent. Few actors 
 ever equalled, none could excel it. It was grand! 
 
 This was William A. Beach in the Brinkly case, 
 where he won a verdict and a vindication for his 
 client, by $15,000 damages. 
 
 BREVITY AS AN ART. 
 
 Billings says, " When you strike ile, stop boring : 
 many a man has bored klean thru and let the ile run 
 out at the bottom." This alone would be a law 
 lecture; but follow it a moment. What is gained by 
 explaining when the truth is made evident? The 
 ancient king who offered a prisoner his life for 
 answering seven questions was delighted with the 
 beauty and brevity of each answer : " What kind of 
 fish have their eyes nearest together? " was the first, 
 when instantly came the answer, " The smallest " ; and 
 so on with the seven. Everything is clearer by brevity 
 if it is clear at all. 
 
 Brevity is a fine art in Court. It is a jewel in 
 practice. The interest of a tersely told story is 
 continuous. The late Darwin Hughes was a master of 
 clearness. He had a faculty of making one see his 
 opponent's theory in its weakest light by showing how 
 poorly his positions were matched by the evidence, 
 and how contrary to reason would be an answer to 
 his argument. Some would mistake his earnestness 
 for severity. No one could find him joking during 
 trial hours. Law to him was serious business, an 
 exact science, with very little room for levity, and that 
 never indulged in on duty. He would begin with a 
 
88 TACT IN COURT 
 
 witness, if important, with his age, residence, and 
 business; and pass directly to knowledge of facts and 
 circumstances, and like husking an ear of corn, in 
 the presence of the jury, show the ear free from 
 silk or stalk, and group separate branches of testi- 
 mony into strong combinations. This is an instance : 
 A rich man had left a strange will, allowing his 
 children $200 a month, the widow a handsome sum, 
 and variously disposed of the balance. It was his 
 purpose to show the mental capacity of the decedent 
 and the righteousness of the will. He called the 
 decedent's sister, who detailed, step by step, how he 
 had acquired his vast fortune, how he managed it; 
 how the sons were spendthrifts, giving their queer 
 mental natures, ending with facts to question their 
 well-balanced judgment — when suddenly one of the 
 boys drew a revolver and made a pass to shoot the 
 senior counsel. He was taken in charge safely, and 
 Mr. Hughes remarked in closing, " Nothing could 
 be clearer that the father regarded his helpless sons 
 with great tenderness in extending this protection of 
 an annuity, instead of a fortune, in their evident con- 
 dition." He rested with this thought and won a 
 disagreement, amounting to a substantial victory, 
 for the widow took the lion's share of the rich man's 
 possessions. 
 
SHARP POINTS OP EVIDENCE 89 
 
 SHARP POINTS OF EVIDENCE. 
 
 Witnesses who argue testimony, and counsel who 
 go over their ground too often, are alike distrusted. 
 It is fair to assume that good evidence needs but 
 little argument even by counsel, and none by 
 witnesses. Men who have fine teams or fine wheat 
 or wool or apples to dispose of, usually let the articles 
 tell their own story. 
 
 Arguments are weakening when they are not 
 needed. The more you urge some facts the weaker 
 they seem, but, left alone, like a good joke they 
 would be. their own best explanation. Men will not 
 believe impossible or unreasonable things, even if 
 forty witnesses testify to their having happened. 
 
 The stopping-place is on the very summit of fact. 
 Let it rest there. Let it require just a little genius 
 to discover it. Do not assume that a jury are all 
 sleepers; some are keen-witted and will re-open the 
 case in their jury-room. But if you go over the 
 ground too often, how can they? Halt on the very 
 top of victory; rest with it as a climax. 
 
 The cheap wit of playing smart with witnesses 
 and trying to entrap them to please an audience is 
 all lost. Vulgar jokes are uiterly useless. The bar- 
 room trials are nearly all over, and one who attempts 
 the old-time practices is behind the age, and losing 
 in business. This is the era of evidence. 
 
 If you have any doubt on this topic, ask any of the 
 panel, after you are defeated, and you will learn that 
 the jury took sides against your client for some pique 
 at counsel or lack of clear evidence. You will do 
 well to consider that the other side may have many 
 
 7 
 
90 TACT IN COURT 
 
 friends on the jury, and they will be listened to in 
 the consulting-room. If you have right and justice, 
 and have made it clear, you will be duly credited 
 accordingly. » 
 
 Over-cross-examination is where very many fail in 
 practice; they want to show off. Of course, if one 
 swears that he saw green grass when the deep snow 
 must have covered it, you can cover him with 
 blushes without effort. If men swear from motive it 
 is well to show it, but the instant it appears let it 
 stand like a house plant in the parlour window — 
 don't meddle with it and kill it. 
 
 The average mind will cling to only one opinion 
 at a time, and to fill a jury with abuse of counsel or 
 abuse witnesses is to endanger the verdict. Cases 
 are often measured by counsel : if fair or unfair, good 
 or bad, it will show by abuses, or native kindness — 
 the last wins on a jury unawares. 
 
 " Other things being equal," says Judge J. B. 
 Moore, of Lapeer — a man of rare tact in a Court room 
 and whose skill won the great Barnard-Curtis murder 
 case at Charlotte, Michigan, by showing that an 
 ante-mortem statement of Mrs. Curtis was but a vivid 
 dream and not a real occurrence — " the man who is 
 clearest and kindest and most thoroughly prepared 
 will win oftenest." 
 
 Hon. L. D. Norris, of Grand Rapids, Michigan, of 
 State repute as an advocate, adds this terse and 
 striking trial rule, which is full of force and meaning : 
 " Never cross-examine at large ! Cases are lost rather 
 by too much than too little cross-examination." 
 
THE STRONGEST REASON 91 
 
 THE STRONGEST REASON. 
 
 Human nature responds best to human reason. 
 What you would have done is what a jury would 
 have done. " I may be amiss in my feeling," said 
 Judge Ryan once, in Milwaukee, " but had that 
 child been a child of mine, this trial would have 
 never happened. There might have been a trial 
 for murder! Had that man even so much as 
 looked his villainy at my child and — by heavens I 
 would brain him as soon as I would a mad dog! 
 And so would you, and you, and you, and all of 
 you " ; and instantly the jury took sides with the 
 speaker. 
 
 But this was an extreme case, and human nature 
 was roused at the recital. In all ordinary cases the 
 strongest reasons are given without passion. Even 
 in the Ryan matter his highly heated words led to a 
 disagreement and a final acquittal. Momentary fights 
 are not the surest in a great contest. Evarts and 
 O'Conor were always mindful of their effect on the 
 verdict. 
 
 Like begets like, but it must rest beyond removal 
 by counter-evidence. The counsel who shows his 
 claim to a jury like Joseph H. Choate does, by lucid 
 explanation, is surer of their judgment than even one 
 like his eminent predecessor would be were he living ; 
 not that one is greater than the other, but he is 
 abreast of the latest methods of dealing with doubtful 
 cases. 
 
 It is useless to expect a jury to share the full 
 prejudices of both litigants. They will divide the 
 difference. Too great personal appeal may make them 
 
92 TACT IN COURT 
 
 distrustful, too little will endanger your reaching 
 their best judgment, for men act best when their 
 interest is aroused. 
 
 One rule of all should govern an argument: Show 
 the jury your claim in candour, kindness, earnestness ; 
 show that you believe it; show that you have proven 
 it; show in statement that you deserve all you ask; 
 then mould by reason the clay of testimony into the 
 marble of belief, chisel it to the line of equity, 
 compare it with justice, and leave it like an undraped 
 statue. 
 
 I cannot better conclude this article than by 
 quoting rule ten of " Trial Rules " in " Trial Practice." 
 It cannot be too often repeated : " There is no oppor^ 
 tunity better than the earliest. Let the jury know from 
 the beginning that you believe in your rights and will 
 fairly enforce them while their minds are as clear as 
 white paper; write it on their hearts and engrave it 
 on their bones, that your client has the right you 
 contend for and will ask for none other, but insist 
 upon justice. On this be so full, so determined, so 
 fortified with law and reasonable evidence that it will 
 stand like a rock on a mountain, unshaken by either 
 quibbles or appeals." 
 
 WHAT IS VICTORY? 
 
 I remember hearing a plain man tell a clear truth 
 once that is impressive from its very simplicity : 
 " One had better be cheated while young, it don't 
 cost so much." He said it of his boy's poor trade in 
 pocket-knives, but it applies just as well in lawsuits. 
 One had better lose a case early enough to open his 
 
WHAT IS VICTORY? 93 
 
 eyes well and avoid such defeat when there is more 
 money in the contest. For this reason, self-reliance 
 will be an excellent exercise in Court practice; one 
 will learn more in a single trial that he wins or loses 
 alone than in many cases with counsel. For proof 
 of this, ask your own experience. 
 
 The emergency that brings out latent talent, if a 
 man has It at all, is a powerful means of. creating 
 confidence. It will lead him to stand alone, to over- 
 come trifles, to demand a verdict, to rely on human 
 nature and oral argument, with good evidence and 
 apt law to win many more victories. 
 
 The very best victories may be hidden by tem- 
 porary defeat. The longer litigation may increase 
 your chances and multiply your recovery. If the 
 case has been won on some trifle it will be overturned 
 in a higher Court and win itself, almost, when the 
 supreme Bench is through with it. It is no time to 
 flinch at a small failure. Fifty per cent, of contested 
 trials are tried more than once, and next time it 
 will be the recent loser's turn for victory. 
 
 Try the early cases alone ; try them with energy ; 
 try them with warm sympathies; try them with fair 
 means and good evidence; win them without snap 
 judgments; win them without begging a verdict — 
 demand it; be in the right and dare to sustain it; be 
 so reasonable that you can demand it; throw away 
 the trifles; weigh your proof beforehand; see that 
 you are satisfied with it; if not, how dare you hope 
 for victory? The finest law work ever done was the 
 clearest; the best argument is the simplest. The true 
 victory, after all, is the honest verdict of a fairly tried, 
 well-managed contest — one in which neither adversary 
 nor Court nor jury have been fooled, flattered, or 
 
94 TACT IN COUET 
 
 overreached, but, when all has been shown as in 
 midday sunlight and the core of the controversy 
 explained, has led to a just judgment. All this is 
 simple, is it? See how it is in actual experience! 
 
 TRIAL ELOQUENCE.* 
 Statement and Conclusion. 
 
 John Van Arman's opening and closing words 
 in the second trial of Vanderpool are intensely 
 impressive : 
 
 " None of us can understand this case but the one 
 in danger. We cannot rid ourselves of a coolness 
 in the concern of another. But one man has felt 
 already the chill and darkness of that dread place to 
 which your verdict, if unfavourable, will consign him. 
 
 " A year ago and his condition was as fair as 
 yours. He was not rich; but riches are not needed 
 to be happy. He had his home and the respect of 
 his neighbours; what more could he desire? On a 
 sudden, in the midst of fair prospects, his once quiet 
 town resounds with the wild cry — 'Vanderpool has 
 murdered Herbert Field!' 
 
 " He was tried, not by a jury, but by the populace. 
 He was hurried to prison. His wife turned from 
 home in the bitterness of desolation, in the depth of 
 despair. You have heard the question, Where is 
 Field? If I could, I would gladly call him beck from 
 his untimely grave and bid him, with his cold blue 
 lips, reveal this dreadful mystery." 
 
 * * * « * 
 
 * Condensed from Modern Jv,ry Trials. 
 
THE EFFECT OF A VERDICT 95 
 
 Conclusion. 
 
 " If he is convicted and that conviction is wrong, 
 and some time hence it should be found that, after all, 
 he is innocent, and in consequence of this terrible 
 doom, that you have inflicted upon him, reason should 
 have tottered on her throne, and from being a bright 
 young man in the flower of his usefulness he should 
 become a raving, drivelling idiot, and that wife whose 
 sorrowful face has looked to your eyes for the last 
 four weeks had gone down, heartbroken, to an early 
 grave, it will not be a twelfth part of this weight that 
 each of you shall bear, but to you, and to you, and 
 to each of you will come this crushing weight upon 
 your conscience, in your slumber and in your waking 
 hours, preserved to the day of your death, to upbraid 
 you with a sense of its dreadful wrong! But I 
 solemnly believe when you do your duty, and give 
 him the full benefit of the doubt which these strange 
 circumstanees of this mysterious case have left to us 
 all — and I beg of you to do it — you will acquit him! 
 and when you stand for judgment on your own 
 account, the deed will smile by your side, and, like 
 an angel, plead trumpet-tongued for your acquittal 
 and deliverance." 
 
 THE EFFECT OF A VERDICT. 
 
 It is too often taken for granted that the jury 
 know in advance the limit of. a sentence and the 
 degree of a crime. This is a wrong conclusion. 
 Nine-tenths of the average jurymen could not define 
 the meaning of either arson, larceny, robbery, man- 
 
96 TACT IN COURT 
 
 slaughter or homicide, in terms required by the 
 common law. To such men the best argument is a 
 clear explanation of the crime and its consequences, 
 or, if it be a civil case, the measure of damages. 
 
 I think I hear some one say, " Of course, we all 
 know that." But do you practise it? Many things 
 that we know are lost if not put in practice. We 
 could all leap over fences in boyhood, but how 
 many retain their springs through manhood? Men 
 educated late in life, like Lincoln, Schurz, and 
 Giddings, have all their learning at their finger-ends; 
 but jurymen have passed beyond middle age, and may 
 have forgotten first principles. 
 
 The habit of averaging a verdict is one of daily 
 occurrence. One juror will say, " Let's recommend 
 him to the mercy of the Court," and the rest, to be 
 relieved of a dull duty, will consent. The Judge 
 may not have any mercy, and the prisoner's rights 
 are sacrificed. Another says, " The Judge will be 
 light on him — it is a first offence," when the offence 
 is burglary and calls for almost murder's sentence. 
 
 In civil cases there may arise the question of " No 
 demand," as in trover and replevin, and this fact, 
 if kept back until after argument, leads the jury to 
 hesitate long on reaching a verdict. I know a case 
 where several hundred dollars in goods hung on a 
 single special question which the jury feared to 
 answer lest it should result adversely, and they 
 disagreed, resulting in a mis-trial and serious loss to 
 plaintiff. 
 
 The statement and argument of either civil or 
 criminal cases should begin with the plainest and 
 least-disputed matters. This will more readily secure 
 attention and flatter the judgment of an opponent. 
 
THE EFFECT OF A VERDICT 97 
 
 Certainly to concede something is to gain that much 
 of an adversary's confidence, for insomuch as our 
 enemy agrees with us we are not enemies. It is 
 like a heavy load started which moves more easily. 
 With attention and sanction, your reasoning is more 
 patiently followed. 
 
 You are sure you have a contest somewhere, but 
 approach it with such gradual firmness that with 
 earnestness and caution you can pass it in confidence. 
 A little hurry at this point may be fatal. Dwell upon 
 it by facts, by figures, by humour, by illustration, by 
 reason, by belief in the positions taken, until you 
 are convinced and feel that a majority are with you 
 in the sensible conclusions of your argument — till 
 you see it in their eyes and faces and every motion 
 of their muscles. 
 
 All of the appeals to their sympathy will be use- 
 less, if made without foundation. You will not need 
 to make an appeal unless it grows out of the circum- 
 stances that the jury have considered, something that 
 warrants sympathy. If such a time should come, 
 use it but once and then reluctantly; let it grow out 
 of something in sight of the jury or something directly 
 in point that will apply without explaining. Men 
 are always ready to reason through incidents, stories, 
 and illustrations that come in the nature of surprises. 
 See that they apply directly, that the jury see the 
 point clearly, then rest. 
 
93 TACT IN COURT 
 
 SKILL IN TRIALS. 
 The Story of Three Strange Trials. 
 
 In the year 1859 two young bankers started busi- 
 ness in a small lumber district in Northern Michigan, 
 and succeeded finely for nearly a year. One had 
 experience and $700, the other invested $7,000 and 
 a good social standing. But their qualities did not 
 harmonise, and they dissolved partnership one bright 
 September day and signed articles of settlement, 
 which were witnessed on Sunday at nearly noon. 
 
 This bank was a frame building, near the lake, on 
 Main Street. Both were seen to enter alone after 
 settlement, but only one was ever seen alive again. 
 The first thing that attracted suspicion was the absence 
 of the younger and richer partner, whose natural 
 disposition was to hunt and roam about, and but little 
 was at first noted. The older partner was early in the 
 bank on Monday burning some clothing and most of 
 the carpet, and scrubbed out a bloody substance at 
 the rear door. Blood was seen on the back steps 
 leading to the water. When questioned, the senior 
 partner gave a poor account of himself, and was 
 arrested. Excitement ran high; and once, men 
 wanted to lynch him for murder. 
 
 He was held in gaol, and while there made many 
 cross-statements. He pricked a pin-letter, detailing 
 how the murder was committed by two sailors; 
 forged names to it, and attempted to mail it by his 
 wife's aid, who remained in the gaol near him during 
 his detention. This was the most damaging evidence 
 against him — even more than the bloodstains and 
 burned carpet, which told suspicious stories of foul 
 
SKILL IN TRIALS 99 
 
 play and attempted concealment. The bloodstains 
 were explained as from nose-bleed. The carpet 
 burning was called a new start — a cleaning-out. The 
 forged entries in the books from $700 to $1,700 
 were not explained. The concealed coin found in 
 his home was said to be a guard during the delay 
 of trial; the pin-letter to ward off the mob and gain 
 time. All these defences appeared by adroit manage- 
 ment on trial, yet he was convicted and sentenced to 
 a life imprisonment. 
 
 By an old statute allowing five days in term time, 
 before sentence, to apply for a new trial, he was 
 granted that favour from the fact of his conviction 
 and sentence being on the last day of the term. 
 The fact of so much feeling added another to his 
 accidental victories. A change of venue was granted, 
 and able Chicago, Detroit, and Grand Rapids counsel 
 engaged in his defence. These men used the same 
 explanations, and two more. First, by an ingenious 
 time-table they showed how impossible it was to do 
 so many acts — sink the body, carry it to the water, 
 anchor it, have it get twelve miles down the river 
 where found — and be at home nearly every moment 
 of the afternoon and evening, as shown by two 
 witnesses. Powerful arguments followed, and the 
 jury divided nearly half and half. 
 
 On the third trial less interest was manifested. 
 The wife's devotion began to tell in favour of her 
 accused husband. A wealthy lumber-dealer furnished 
 counsel and created sentiment by announcing that 
 he had enlisted for life with all his money in the 
 contest. Counsel urged that it was a .question of 
 time merely when the real murderers should be 
 unearthed. The bearing of accused seemed harm- 
 
100 TACT IN COURT 
 
 less; two trials had miscarried; Court costs were 
 increasing; a captain was found who had seen a 
 half-starved tramp floating in a white boat, with a 
 large roll of bills, seeking his way to Canada; a white 
 boat had been seen going down stream on the night 
 of the murder towards the place where the body was 
 found with a hatchet-scar on the head corresponding 
 with a hatchet kept in the bank. The circumstances 
 grew more and more bewildering, and with superb 
 tact of counsel were made to tell in defendant's 
 favour, and, strange to say, he was acquitted! Is 
 there any greater Court victory of skill in manage- 
 ment? 
 
 This is the story of the three trials of Vanderpool, 
 as related by John Van Arman, senior counsel for 
 the prisoner, who regretted not having had the first 
 chance to frame the theory of the defence, but found 
 the old statute and gained the new trial. On what 
 a slender thread does human liberty often hang! 
 
 TRYING HARD CASES. 
 
 Old attorneys suffer very little from failure to win 
 bad cases. Young men can stand but few failures. 
 The public will find out soon enough whether you 
 win or lose lawsuits, and rank you accordingly. 
 
 Young men are naturally distrusted. A name 
 for losing cases will be fatal if long continued. 
 Chief Justice Ryan of Wisconsin — long the peer of 
 Matt Carpenter — sifted his cases with greatest care 
 and caution, and, although bold and daring in a Court 
 room, he was timid about starting a doubtful lawsuit 
 from his office. 
 
TRYING HARD CASES 101 
 
 To start well is a half-won victory. You cannot 
 afford to enter a race without feeling that your 
 harness and outfit are alike trusty and the bridges 
 you have to cross are reliable. Train conductors 
 and engineers are very mindful of such precautions. 
 Hear them trying the wheels at every station! Mark 
 how they tested and tried the iron cables in the 
 Brooklyn bridge to make sure of their quality! 
 
 No man ever laid more stress on this point than 
 Charles O'Conor. His researches were marvellous; 
 his prosecution of the Tweed ring, of the Forest 
 divorce case, were matters of life-and-death struggle 
 as it were; he won them when matched by prejudices 
 and by millions. He was so grounded in right as to 
 command and demand a victory. 
 
 General Porter's prosecution of Guitteau was a 
 giant undertaking. Tried by interruptions, beset by 
 every effort to break in on the harmony and connec- 
 tion of his theories, he bore himself like an athlete in 
 an arena with a mad hyena at his back, and a band 
 of wolves all around him. 
 
 Law practice is strangely varied from civil to 
 criminal. In the first there is no reason for settle- 
 ment; in the last there should be no room for 
 contention. The law is a serious method of reaching 
 a conclusion that men are unable, or think they are, 
 to reach without it, but a true lawyer should stand as 
 a wall of adamant between his client and fruitless 
 litigation. 
 
102 TACT IN COUET 
 
 CROSS-EXAMINATION. 
 
 Ex-Governor Davis, of St. Paul, sends the follow- 
 ing excellent rules : 
 
 1. Discount by at least 25 per cent, what your 
 client says he himself will swear to. 
 
 2. Do as little cross-examining as possible. Never 
 on cross-examination ask a question when you do 
 not know what the answer must be if the witness is 
 honest; and, if he is a liar, don't ask the question 
 unless you are ready to ruin him with a contradiction 
 by facts in evidence or by other witnesses. I have 
 seen more good cases ruined by cross-examination, 
 by the lawyer who ought to have suppressed his 
 curiosity or vanity, than by any other cause. 
 
 3. Never mis-state or overstate testimony to a 
 jury, in summing up. You will always be detected 
 by some juror, and he will resent your attempt to 
 " play him for a fool." 
 
 Able Advice.* 
 
 From Judge C. I. Walker, of Detroit, to Ann 
 Arbor law students : 
 
 " For myself, I am a firm believer and admirer of 
 the common-place. I like common-place things; I 
 revere common-place men ; I am instructed by 
 -common-place thought. I like common-place things 
 because they are most useful, the most needful to 
 our happiness — because they are the most beautiful. 
 
 * As an authority on these topics no man ranks higher 
 in Ann Arbor University than Judge Walker. 
 
CROSS-EXAMINATION 103 
 
 " I revere common-place men because they are 
 doing by far the most for the well-being of our 
 common race. In almost every department of human 
 effort the great work of the world is being done by 
 ordinary men, and this not merely in the department 
 of physical labour. In teaching, both in the home 
 and in the schools, in the learned professions, in 
 literature, in science, in art, in commerce, in govern- 
 ment, in morals, in religion, and wherever else there 
 is a call for earnest labour and noble effort — for the 
 active exercise of the intellectual and moral faculties 
 with which God has endowed us, ordinary men and 
 women are, to a great extent, doing the work upon 
 which the welfare and progress of society depend, 
 and are gaining the rewards of such work, solid and 
 otherwise." 
 
 Be Humble. 
 
 " It is a noble thing for a man to say to himself : 
 ' I am not at all what I vainly fancied myself ; my 
 mark is far, very far, lower than I had thought it had 
 been; I had fancied myself a great genius, but I find 
 myself only a man of decent ability; I had fancied 
 myself a man of great weight in the country, but I 
 find I have very little influence indeed; I had fancied 
 thai my stature was six feet four, but I find I am 
 only five feet two ; I had fancied that in such competi- 
 tion I never could be beaten, but in truth I have 
 been sadly beaten; I had fancied that my Master had 
 entrusted me with ten talents, but I find I have no- 
 more than one. But I will accept the humble level 
 which is mine by right, and not try to detract from 
 the standing of men who are cleverer, more eminent, 
 
104 TACT IN COURT 
 
 or taller than myself. I will heartily wish them 
 well. 
 
 " In your intercourse with clients act with great 
 caution upon the statements that they themselves 
 make. Sift those statements carefully; cross-examine 
 your clients as to the facts, and be careful to ascertain 
 not only what they deem the facts of their case to 
 be, but what they can prove them to be. Some clients 
 are stupid, and some are not disposed to be frank 
 with their own counsel. If opinions are rashly given 
 upon the partial and imperfect statements of clients, 
 it will often be found that, though the opinion upon the 
 facts stated was sound, yet that some fact not stated 
 changes the whole character of the case, and defeats 
 the action or the defence, and the lawyer often bears 
 the responsibility of an error that should rest with 
 the client. 
 
 " Let your intercourse with the members of the 
 Bar be marked by the most perfect good faith, 
 professional courtesy, and true self-respect. This is 
 easily said, but not always easily accomplished. You 
 will not always receive such treatment from members 
 of the Bar; and in the heat of the conflicts that 
 take place at the Bar it requires more than ordinary 
 self-control to abstain from that which we may there- 
 after regret. But it is of the utmost consequence to 
 every lawyer, and especially of every young lawyer, 
 that he obtain the respect, confidence, and goodwill 
 of the profession. The profession must ultimately 
 settle his position at the Bar. Their verdict will be 
 final. Few things so undermine a man's position at 
 the Bar as to be guilty of sharp practice with his 
 brethren of the profession. No high-minded man 
 will be guilty of it, and no man can ultimately sustain 
 
CROSS-EXAMINATION 105 
 
 himself in such a course. When associated with 
 others in the trial of a cause, show your readiness to 
 do your full share of the work. Some lawyers throw 
 the work to be done upon their associates, and seek 
 to share only the fees and the glory. 
 
 " The trial of a case of complicated facts in law, at 
 the circuit, is a much severer test of a man's power 
 than the arguing of a case in the Supreme Court. In 
 the latter case there is usually ample time for prepara- 
 tion, patient research, and careful thought, that will 
 enable a man of culture, discipline, and fair legal 
 reading to make a good argument, and do justice to 
 his subject. But at a Nisi Prius trial events follow 
 each other in rapid succession, and a lawyer should 
 have perfect command of every faculty of his mind. 
 He must, with an eagle eye, discover the weak points 
 of his own case and those of his adversary, and 
 skilfully cover the one and expose the other. He 
 must make and meet objections to testimony, entirely 
 unanticipated, and argue them — a trying test of his 
 knowledge of the principles of evidence. He must 
 be prepared for unexpected testimony attacking 
 the strongholds of his case, and his ingenuity is put 
 to the test to parry those attacks and avoid their 
 force, or boldly to meet and overcome them. As the 
 case progresses, and while upon the alert in putting 
 in and meeting the testimony, he must be deciding 
 in his own mind upon what principle of law he must 
 rest his cause, or his defence, and shape his requests 
 to charge. 
 
 " Previous preparation and study is of great conse- 
 quence here, but still the exigencies of the case often 
 compel the lawyer to change his ground. As the 
 testimony comes in piece by piece, in disorderly 
 
 8 
 
106 TACT IN COURT 
 
 confusion, he must be revolving in his mind how he 
 is to make the most of the important evidence in his 
 favour, and how adroitly and with what logical skill 
 he can make a fact apparently against him tell 
 directly in his favour; and during all this he should 
 be forming the order of his argument, arranging and 
 filling up its framework. And then immediately upon 
 the close of the evidence, while flushed with the hopes 
 of success or depressed with the expectations of 
 defeat, without time to arrange his thoughts, he is 
 called upon to argue the cause. The Court is to be 
 addressed upon the law, and a particular charge 
 requested. The jury are to be addressed upon the 
 facts. All this requires intellectual skill and training 
 as well as mere power. And the man who proposes 
 to succeed must give himself up with a hearty 
 enthusiasm to his profession. And he who does that, 
 if possessed of good sense, fair ability, and is content 
 to give his days and nights to toil, may gain 
 honourable distinction at the Bar." 
 
 READY LAWYERS. 
 
 Ready lawyers learn to express plain facts in plain 
 words. They will learn from carpenters about 
 buildings, farmers about farming, merchants about 
 business, and of each class about the facts in the line 
 of their own study. 
 
 Plain men have been the best teachers, inventors, 
 reformers, and leaders of great measures. They are 
 the best witnesses, the best jurors, the best lawyers, 
 and even the best Judges. 
 
READY LAWYERS 107 
 
 To be a ready lawyer one will need to have law 
 terms well committed — to know the clear names of 
 civil actions and criminal offences, with the gist of 
 evidence required to sustain each, and the best theory 
 of defence followed by able men in like cases. 
 
 The statutes of one's State and the higher Court 
 decisions should be familiar books easily reached 
 and readily referred to on any subject; convenient 
 at hand, forms and good material to make papers, 
 deeds, or contracts. 
 
 But office readiness is only half the battle. Five 
 more rules of conduct will prevent errors and sur- 
 prises : Before trial — 
 
 1. Find if the client has a case and see that he can 
 prove it; then start right, and, if already wrong, stop 
 and start again. 
 
 2. Note names and addresses, with facts each 
 witness can swear to, and see that his story is . 
 consistent and truthful. Brief his facts pointedly. Do 
 so with all testimony. 
 
 3. Make the same brief of law points with the gist 
 of cases and pages, so that on facts and law there 
 will be no confusion. 
 
 4. See that some one will bring in witnesses 
 without fail, and in a classified order. Check what is 
 proved as you go, and omit nothing. 
 
 5. Brief the statements and heads of argument in 
 such order as will prompt a ready address on your 
 chosen theory. By this precaution you go like a 
 trained general into battle, and will be ready for 
 your adversary. 
 
 During trial state facts with clearness, directness, 
 and interest, never with dullness. Present proof 
 with fairness, enforce it by grouping the similar facts 
 
108 TACT IN COURT 
 
 together, impress it by candid and earnest argument. 
 Consider that the smartest of smartness is to see 
 the right stopping-place and end on the summit. 
 
 Object as little as possible. Depend upon your 
 own evidence rather than expect to make the other 
 side prove your case. Think clear through the trial, 
 and keep up that line till the case is ended. Think 
 of it in advance, in the middle, and until the last 
 step has been taken. In the eyes of a just jury 
 every act has its influence. If you are confused they 
 may well be confounded. If you are clear, their 
 duty is lessened. 
 
 FIVE FACTS FOR TRIALS. 
 
 1. Brief facts and law in their order, in terse 
 pocket form, enough to sustain your case and in shape 
 to take in at a glance during the hurry of a trial. 
 
 2. Below your points place all the enemy must do to 
 make his case, and watch what he lacks to the very end. 
 
 3. Make brief of evidence with names, dates, and 
 facts; that greatly helps in questioning. Stop not 
 until each point is put in proof. Have it done in an 
 orderly manner. 
 
 4. See and drill witnesses to tell the truth in plain 
 words and not from a roundabout hearsay style. 
 Tell them why hearsay is not evidence, and when it 
 is proper. 
 
 5. Make points of your address to the jury in bold 
 hand — headnotes only, for ready work. Watch your 
 exceptions and make ready for the next higher 
 Court, where errors are corrected or legalised. Do this 
 with all the skill your srenius and tact can command. 
 
TWENTY-ONE RULES OP PRACTICE 109 
 
 TWENTY-ONE RULES OF PRACTICE.* 
 
 Book knowledge of law is like a chest of fine tools 
 in the hands of an unskilled artisan — useful, but 
 unpractical, without experience. Practice in law must 
 be largely learned from contests in Courts. It is the 
 lawyer's trade ; the more he has of good practice, the 
 better he will know how to apply his learning. 
 
 To have the keen tools and the well-learned trade 
 both at command may make him an accomplished 
 workman. No arbitrary rules of study can be laid 
 down, as few follow the whole field of law, and more 
 adopt some specialty, and read accordingly. From 
 observation, practice, reading, attendance at Courts 
 in different States, and counsel with able attorneys, 
 the following rules, with reasons, are given as aids 
 and suggestions in general practice. 
 
 The general rules of practice may be confined to 
 twenty-one; and by careful attention to each, great 
 advantage will be gained over a haphazard method 
 of trials, without any fixed purpose in examination 
 of witnesses or argument to a jury. They may lead 
 to winning five extra cases a year. 
 
 Rule I. 
 
 Study every case by itself, thoroughly, and make a 
 clear brief on both law and evidence. 
 
 No musician will undertake to execute new and 
 difficult music before a public audience without 
 knowing what it is, and how it sounds; he will drill 
 
 * From Modem Jury Trials. 
 
110 TACT IN COURT 
 
 on every note until he masters each inflection. 
 Actors rehearse before every play. Horses are 
 scored, trained, and practised before every race. 
 Boxers, wrestlers, racers, walkers, and boatmen never 
 start off-handed. It has been told again and again, 
 that the best-trained athletes were most likely to win; 
 why should lawyers be an exception? 
 
 A lawyer in Court without a brief is like a captain 
 at sea without his chart; a driver without a tried 
 horse; a marksman with an unknown gun. But one 
 with a well-mastered case is strong in every emer- 
 geifcy; indeed his victory is over half-accomplished. 
 
 Rule II. 
 
 Know what each witness will swear to, separately and 
 together. 
 
 It often happens that, in criminal cases and family 
 quarrels, witnesses are separated after the manner of 
 the well-known trial of Susannah and the Elders, 
 given in the Bible, where, on the first hearing, with 
 witnesses all present, it was shown that Susannah 
 was guilty, but when all the witnesses were excluded 
 except the person testifying, two material points 
 crossed each other; the one Elder swore to an offence 
 under the olive-tree, and the other one to the same 
 offence under the mulberry-tree — each on the opposite 
 side of the garden! Susannah went free, while her 
 accusers were executed. 
 
 Show each witness the importance of candour, of 
 holding to the truth, and talking in a reasonable 
 manner, with facts and circumstances so woven 
 together as to secure confidence. I remember an 
 assault case, where an eye was put out with a poker 
 
TWENTY-ONE RULES OP PRACTICE 111 
 
 made from a shovel-handle. In the doctor's state- 
 ment of why he knew it was that way (instead of a 
 fall on the zinc platform, as claimed by defendant), 
 he showed that the soot in the wound from the poker 
 appeared like butter cut with a rusty knife, which 
 convinced him, and it convinced the jury, who gave 
 heavy damages to the plaintiff. 
 
 Rule III. 
 Open the case futty before any evidence is in. 
 
 Whether the plaintiff or the defendant, the claim 
 should be known, and fastened in the minds of the 
 jury, from the start. If for the plaintiff a careless 
 half-heedless statement is made, little importance will 
 be attached to the suit until it opens itself, as it 
 were, and in such cases juries often take an early 
 prejudice that it requires a great amount of evidence 
 to remove. It is therefore very essential to success 
 that a terse, clear, and forcible opening be made, and 
 one that is comprehensive and interesting to a jury. 
 
 Especially is this true in criminal defences, where, 
 by an even start, the jury may carry a favourable 
 impression of facts in the prisoner's favour that will 
 come with double weight if opened early in the trial. 
 Experience shows that little is ever gained by a 
 smothered defence. The people's side is of course 
 well known. The defendant, if brought in fresh 
 from the gaol, comes under a cloud; suspicion is cast 
 upon him by the mere force of circumstances, and 
 many believe prisoners guilty simply because they 
 are under arrest. It is of the utmost importance 
 that not one word of evidence be. heard in such cases 
 before a full, earnest, and candid opening is made for 
 
112 TACT IN COURT 
 
 the defendant. Courts always permit it, and often 
 encourage it. This style of opening has a double 
 advantage of allowing counsel to tell the worst that is 
 likely to be established against the defendant, with 
 his answer thereto; creating an impression that, even 
 with such damaging circumstances, the prisoner is 
 not guilty. It is not the duty of defending lawyers, 
 however conscientious, to convict their clients; such 
 is the province of a jury, and, if ever so guilty, the 
 counsel for defence does his whole duty to present 
 his client's case in a clear, convincing way, that, with 
 the people's side equally well managed, the jury may 
 reach a decision based on the law and evidence, 
 fully, clearly, and evenly explained. An exception 
 to this general rule will be in cases where the defence 
 is made wholly from the weakness of the plaintiff's 
 evidence, or from cross-examination. 
 
 Rule IV. 
 Be forcible, firm, dignified, and clear. 
 
 A jury will not be long in reading between the 
 lines if counsel lacks force and earnestness of 
 manner and an interest in his client. For days and 
 months both parties to the suit may have carried 
 their legal trouble at home and at work, like a leaden 
 load, dreamed of it nights, and pondered over it 
 hours together, until their heads would ache with 
 anxiety. To such, a tame or wavering presentation 
 of their side of a suit is more than human nature can 
 endure, and is sure to lose a client, if not the case 
 on trial. 
 
 A firm and dignified bearing will be impressive 
 alike to Court and jury, and add respect for your 
 
TWENTY-ONE RULES OF PRACTICE 113 
 
 argument that never comes of "shilly-shally" and 
 frivolous statements. The business of lawsuits is to 
 adjust differences, protect the helpless, enforce rights, 
 and punish wrongdoers — it is serious business. But 
 above all, says an old attorney, be clear. Many jurors 
 are ignorant of big words; they do not comprehend 
 the real issue to be decided; some understand English 
 imperfectly, others reason in a slow roundabout 
 way, and reach conclusions after a long study and 
 much meditation. Witnesses may be confused by a 
 lack of clearness. It is a good plan to see some 
 experienced juryman, early after a trial, for a few 
 trials at least, and say, How was the case presented? 
 In nine out of ten cases he will say, You ought to 
 have made this or that point a little plainer. The 
 jury did not understand it fully. 
 
 Rule V. 
 
 Never be bluffed out of Court, but do not begin 
 the bluff. 
 
 Once in Court, stay in, and be an opponent, as 
 Shakespeare well describes through Polonius : 
 " Beware of entrance to a quarrel, but being in, bear 
 it that the opposer may beware of thee ! " 
 
 Some men will fight all the better by being thrown 
 down a pair of stairs; some take to the woods at the 
 first sight of the battle. Clients, suitors, juries, and 
 spectators like a man who can stand in an emergency. 
 A sudden turn in a suit — a new point sprung upon 
 the trial — an enemy from the flank, should draw out 
 the resources of an advocate; and happy the man 
 who is equal to such occasions. If equal, he is 
 marked and remembered long afterwards; but to 
 
114 TACT IN COURT 
 
 secure this victory one should be very guarded not 
 to begin the assault, for the vanquished assaulter is 
 always doubly defeated and humiliated. Great lawyers 
 seldom stoop to petty advantages. 
 
 Rule VI. 
 Brevity of fads, terseness of statements, tell best. 
 
 Only one lawyer, since Rufus Choate, has suc- 
 ceeded by lengthy sentences as an advocate before 
 juries — Mr. Evarts — and his happiest efforts are 
 given in less elaborate style than is his usual custom. 
 Men like Colonel Ingersoll, who cut up their state- 
 ments in little stars, are followed with greater interest. 
 
 In the jury room, after the Court charge, when 
 twelve men contend for a verdict, will be often 
 heard such little old sayings as, " The labourer is 
 worthy of his hire " ; " They don't make thieves out 
 of that kind of men " ; " It takes two to make a 
 bargain "; " Who began it? "; " It served him right "; 
 " Put yourself in his place " ; " Give him another 
 chance"; "How many men would do differently?"; 
 " No man becomes suddenly vile." These are not 
 forgotten. 
 
 Rule VII. 
 
 Never allow yourself to switch off — " Kill the 
 squirrel." 
 
 A trite old saying is, " Stick to your text." In a 
 lawsuit many things happen to try one's patience; 
 witty retorts, stingy replies, low personalities, may 
 so engage counsel and jury as to smother and obscure 
 the case. Jurors take sides, and lawyers that grow 
 
TWENTY-ONE RULES OF PRACTICE 115 
 
 personal, and enter into outside discussions, will lead 
 a jury in the same direction. The real winner, after 
 all, is one that with singleness of purpose holds to 
 his point, and hugs the issue to the end. Harper's 
 Weekly gave an excellent story of a lawyer selecting 
 a clerk, that applies to this point admirably. The 
 lawyer put a notice in an evening paper saying he 
 would pay a small stipend to an active office clerk. 
 The next morning his office Avas crowded with 
 applicants — all bright, and many suitable. He bade 
 them wait in a room till all should arrive, and then 
 ranged them in a row and said he would tell a story 
 and note the comments of the boys, and judge from 
 that whom he would engage. 
 
 " A certain farmer," began the lawyer, " was 
 troubled with a red squirrel that got in through a 
 hole in his barn, and stole his seed-corn; he resolved 
 to kill that squirrel at the first opportunity. Seeing 
 him go in at the hole one noon, he took his shot- 
 gun and fired away; the first shot set the barn on 
 fire." 
 
 " Did the barn burn? " said one of the boys. 
 
 The lawyer, without answer, continued : " And 
 seeing the barn on fire, the farmer seized a pail of 
 water, and ran in to put it out." 
 
 "Did he put it out? " said another. 
 
 " As he passed inside, the door shut-to, and the 
 barn was soon in full flames. When the hired girl 
 rushed out with more water " — 
 
 " Did they all burn up? " said another boy. 
 
 The lawyer went on, without answer : " Then the 
 old lady came out, and all was noise and confusion, 
 and everybody was trying to put out the fire." 
 
 "Did anyone burn up? " said another. 
 
116 TACT IN COURT 
 
 The lawyer, hardly able to restrain his laughter, 
 said, "There, there, that will do; you have all shown 
 great interest in the story " ; but observing one little 
 bright-eyed fellow in deep silence, he said, " Now, 
 my little man, what have you to say? " 
 
 The little fellow blushed, grew uneasy, and stam- 
 mered out, " / want to know what became of that 
 squirrel ! — that's what I want to know." 
 
 " You will do," said the lawyer ; " you are my man ; 
 you have not been switched off by a confusion and a 
 barn's burning, and hired girls and water-pails; you 
 have kept your eye on the squirrel." 
 
 A whole chapter is given in this story. It is packed 
 full of excellent advice to beginners, with a few good 
 hints to older counsel. In every suit there is, or 
 should be, one squirrel to kill, and no more. 
 
 Rule VIII. 
 Remember, juries do not know all the facts. 
 
 Lawyers appreciate the fact that cases come to 
 office in a vague, uncertain way. The half is not 
 told; and even with several calls and explanations, 
 it is difficult for a counsel to understand the facts of 
 a lawsuit. Think, then, how much more it is to show 
 these facts to twelve new listeners, under the narrow 
 rules of evidence, and to enable men unlearned in 
 the law to reach a correct decision. Is it a wonder 
 that juries blunder? Is it not a wonder that they do 
 so well? 
 
 An- old lawyer once said, after every defeat in 
 Court, " If you could ask the cause, the answer would 
 be, ' Your man had the wrong side, or they didn't 
 understand it.' " 
 
TWENTY-ONE RULES OP PRACTICE 117 
 
 It may be the witnesses are confused — that they do 
 not talk well in their statements. It is better always 
 to win a suit first in the office. Let each witness be 
 carefully examined and cross-examined and re- 
 examined, until they know the effect of a halting, 
 unreasonable, untruthful story, and know how much 
 stronger a fact is accompanied by a circumstance. 
 
 Here is a suit over a broken leg in a wrestle. Six 
 men swear it was a friendly wrestle, but the injured 
 man says : " I'll tell you just how it happened. The 
 most of the men were half-drunk; it was late in the 
 night; I had been sick; I didn't want to wrestle; he 
 had tried me before; he is too strong and big for 
 me ; I shied away from him. Then he came up to me 
 again with his thumbs in his vest, and told me he 
 never meant to hurt me. Just then, as he got in reach, 
 he grabbed me, so (illustrating), and jerked me, threw 
 me against the billiard-table, and broke my leg in 
 two places; I never even clinched with him. Then 
 he bent down and said, almost crying, ' I didn't mean 
 to hurt you Billy; I'll make it all right — I'll pay all 
 it costs you.'" He won, over the six witnesses; he 
 had a fact and an incident. A fact is always stronger 
 and clearer, coupled with a picture of how it 
 happened. 
 
 Rule IX. 
 
 Show no uneasiness in temporary defeat. 
 
 Sometimes a point fails — a branch of a suit falls 
 through. It may not be more than the regiment of 
 an army. It is no time to flinch or show colour; it is 
 a time to bring out mettle. At such times Mr. Lincoln 
 is said to have coolly remarked, "We will give 
 them that point; I reckon they were right there." 
 
118 TACT IN COURT 
 
 Proceed with as much coolness as though the value of 
 the loss were less than a shilling. But use the other 
 forces, and see that the whole bottom of the case 
 never falls through a small opening. Good lawyers 
 say that cases they were sure of winning are often 
 lost, and others that seemed lost in the middle of a 
 trial turn out splendidly in the end. It is well to 
 have a smooth unbroken line of evidence, but a 
 sharp stinging defeat on one point, and a pithy 
 incisive argument on the balance of a suit, may make 
 a lasting victory. New trials, frequent reversals, 
 and discouraging circumstances, may end in a signal 
 success. 
 
 A dry-goods runner was injured in a railroad 
 accident, and sued the company (Grand Trunk 
 Railway), and won a $15,000 verdict. A new trial 
 was granted, and he gained $26,000. A change of 
 venue and one more trial brought him $45,000 
 damages, which last judgment was affirmed. Nothing 
 could be clearer than that impediments to a trial, or 
 set-backs in enforcing a claim, are considered by juries 
 in the final balance arrived at. So it is true, when 
 one contends against odds, juries remember it; and 
 as sure as any mean little advantage is taken in trial, 
 so sure the advantage-taker is the loser in the long 
 run, for juries are human, and human nature likes 
 fair play in litigation. 
 
 Rule X. 
 
 Drop a bad witness; Cross-examine only to gain by it. 
 
 To cross-examine a sharp witness is to strengthen 
 his testimony. Frank Moulton, in the Beecher trial, 
 was always ahead of his examiner. To repeat and 
 
TWENTY-ONE RULES OF PRACTICE 119 
 
 repeat often is to weld and rivet with the jury what 
 has been said, as most witnesses would sooner vary 
 the truth than own to a falsehood. It is only on 
 cases of doubtful identity that cross-examination tells 
 so completely, and then it is dangerous ground. To 
 badger a bad witness that, • like a racehorse, gains 
 by every break, is no less risky than playing with hot 
 irons where some one will be burned. 
 
 It is better to seem not to need him, and allow it 
 to go half-noticed, than intensify a weak point on the 
 witness-stand. An exception to the rule is where, in 
 a murder on board a steamer, a positive witness knew 
 just how many officers were on board, who they 
 were, and where they were; but on placing each at 
 a certain point he was confronted by the question, 
 "Who was at the helm?" which so staggered him 
 that he broke down and admitted his blunder. 
 
 Another case of identification is where a man 
 called with a forged bill, and took in payment a 
 cheque for a large sum of money. On direct examina- 
 tion he was sure he knew the prisoner to be the 
 guilty party; but being wound up gradually by the 
 dark or light room, whether he had seen the prisoner 
 before, and finally, if he was as sure as though he 
 actually knew him, witness faltered, admitted he 
 possibly might be mistaken; that he had some doubt, 
 and at last lacked fully enough of certainty to make 
 a reasonable doubt and release the respondent. This 
 cross-examination should be used with caution, 
 discretion, and judgment. 
 
120 TACT IN COURT 
 
 Rule XI. 
 Make your evidence reach the heart of the case. 
 
 Before every trial witnesses should be examined, 
 and never sworn without cause, and held to a strict 
 rule of evidence, until, with truth and candour, they 
 can bring their story to the gist of the action. More 
 witnesses swear around a point, and omit vital and 
 essential elements, than come squarely up to the mark 
 and make their meaning fully known. 
 
 Sometimes a case turns on the intent, again on the 
 cause, and often on who was the offender. To know 
 what the core of the case is, and hold it in sight, by 
 the proof, is the part of a wise counsellor. 
 
 Rule XII. 
 
 The main point in law is good evidence 
 
 Is an old adage, and one not to be forgotten. "Impress 
 both client and witnesses with the fact that a lawyer 
 should know the good and bad side both, and be 
 prepared to meet either; as scouts are sent out 
 before a battle, so witnesses should be tested before 
 trials." Show them the real issue, and hold them 
 hard on the line of directness. For, after all, " Man 
 is a mystery that no other man can solve; we are 
 all spirits in prison, making signals that few can 
 understand." 
 
 Rule XIII. 
 
 Avoid frivolous objections ; save your forces for the 
 main chance. 
 
 Many a lawyer, to be witty or show off, will talk 
 over and work over his eround in small matters. 
 
TWENTY-ONE RULES OF PRACTICE 121 
 
 that weary the Court, and become stale when needed 
 in the final argument. 
 
 An old lawyer (we quote him often) once said, 
 " The worst thing that can happen to a young man 
 is to think he is smart." 
 
 Such men grow tricky, captious, and excessively 
 anxious to show off on trials. Juries are sure to count 
 the cases- weak that require such treatment. It is a 
 mark of vanity to trifle away time on matters lhat 
 reach only to the husk or chaff of a case, and obscure 
 the kernel by such tactics. 
 
 Mr. Lincoln was noted for giving away small 
 points. " We may be wrong on that, your Honour," 
 he would say ; " I think we were wrong there, but 
 it is not the gist of the matter, anyway." This fair 
 play and liberality always told with a jury; and when 
 he finally said, " Now, this much we may ask, and, 
 when I shall state it, it will be a reasonable demand." 
 Then, with all the husk trimmed off, he would state, 
 in a candid way, such a reasonable request that the 
 justice of his demand stood alone and relieved of 
 everything but a fair, just judgment. 
 
 Rule XIV. 
 
 Speak clearly, carefully, and candidly. 
 
 Judge Cochrane was one of the most patient and 
 charitable men that ever graced a Bench. He would 
 listen a full hour to a dry tedious plea without 
 turning in his chair. But he sometimes remarked 
 aside that he knew of lawyers who could talk a full 
 hour and not make one single point. He believed 
 many attorneys talked their cases to death. While a 
 careful explanation is a good argument, a long-drawn- 
 
 9 
 
122 TACT IN COURT 
 
 out talk without a definite purpose is likely to lead 
 to the belief that the lawyer is trying to persuade 
 men against their better judgment, and this is sure 
 to react on the speaker. 
 
 Jurors respect and admire candour, and oc- 
 casionally relish wit, as it serves to rest and relax their 
 minds for better efforts; but levity continued at any 
 length is, like a variety show, soon forgotten. The 
 speeches, plays, songs, and sayings that last, and ring 
 in the ears long after they are uttered, that move the 
 judgment and mould the actions of men, have a 
 sacred tinge, often reaching to the fireside, the home, 
 and the tender relations of life. Courts and juries 
 should be impressed with the single thought that you 
 are not inviting them to either a quarrel or a play, 
 but to determine some right and redress some wrong 
 that you failed to settle otherwise. Aaron Burr's 
 great rule was : Be terse. The art of selection, he 
 said, was the greatest human faculty. His arguments 
 were made in half-hours, never longer. 
 
 Rule XV. 
 
 Drop all examinations and arguments in the right 
 place. 
 
 When a witness has reached a clear point and a 
 smile follows, perforce, leave the point — let it stand 
 like a rock on the mountain-side, uncovered and 
 alone. To stop short will attract attention and rivet 
 the mind to its importance. 
 
 All men magnify discoveries, and to leave it as 
 though a keen-sighted man could just see it, and no 
 more, gives him credit for discernment and relieves his 
 mind of the burden and rubbish that he dislikes to carry. 
 
TWENTY-ONE RULES OP PRACTICE 123 
 
 It is only here and there, like mile-posts, thai 
 salient points are fixed in the minds of a jury, and 
 each should stand alone in its strength and clearness. 
 
 It is the pith of a story to end well. The cream 
 of a joke is in the little things suggested, half- 
 discovered, that leads to new-born pleasure. A 
 surprise in evidence should end where the story ends, 
 in a climax that rings like a whip-cracker. The same 
 may be said of argument. There is nothing like 
 knowing when to stop. I remember, in a trial where 
 a son and father were parties, at the close of a 
 pathetic paragraph counsel said : " This should not be. 
 Nearing, as we are, the great holidays when children 
 gather round the fireside and tell over the stories 
 of the past, eat and drink and be merry, in the sweet 
 memory of the long ago when they talk of the 
 absent and the loved and lost, this should not be — " 
 And suddenly the father rose up, and, with an emotion 
 that no one could mistake, pointed to the Judge and 
 said : " Tell the jury to give him all he asks. Stop ; 
 say no more! " and counsel, though only a quarter 
 through, was shrewd enough to stop at a winning 
 point. 
 
 Rule XVI. 
 
 Let Judge and jury know you mean what you say. 
 
 From the date of receiving a case it should grow 
 on the mind continually. By frequent reviews before 
 the trial, by making additions to briefs, and by 
 earnest study, it should be a case for a near friend, 
 which to lose will cause you pain. Let it be as 
 though you might never have another case, and on 
 this one hung all your reputation as an attorney for 
 life. So charge yourself with it that it will come 
 
124 TACT IN COURT 
 
 from every muscle, every gesture, every word, as 
 deeply in earnest. There is no power in persuasion 
 like where one believes what he says, where it breaks 
 down all opposition, and cuts to the hearts of the 
 hearers like the language of a Moody or a Luther. 
 Great men have been earnest men. Great orators 
 have been moved by their own words and arguments, 
 till they filled their hearers with the fire of enthusiasm. 
 The earnest words of an old Indian chief will better 
 express this thought. Before entering a battle he 
 would call his braves around him, and, smiting his 
 brawny hand upon his manly breast, would say, " I 
 know that I shall win this battle : I feel that I shall 
 win this battle; it is burning in my body thai I shall 
 win Ihis bailie ! " 
 
 Rule XVII. 
 
 Consider your adversary powerful, and be ready for 
 him. 
 
 It was a rule of Napoleon never to underrate an 
 enemy. In Court trial the enemy is usually, and 
 almost always, stronger than we expect. Hearing one 
 side, and that imperfectly, and generally well coloured, 
 the attorney is often surprised to find he has much 
 to contend with before unknown; and if he has gone 
 to trial weak in law or evidence, he may find too 
 late that his enemy is all-powerful and cunning, and 
 he may fight against odds when he looked for an 
 easy victory. An easy victory in law is not common ; 
 usually both sides have some rights. Each party is 
 fortified, or he would have surrendered at discretion. 
 He may come supported by able counsel, he may 
 have practised until, like David with his sling, 
 
TWENTY-ONE RULES OP PRACTICE 125 
 
 he can hit his adversary in an unarmed place. 
 There is only one way to be tolerably sure of winning, 
 and that is to be always ready, always prepared, 
 and always willing to provide the best weapons of 
 warfare. 
 
 Rule XVIII. 
 
 Suits turn on evidence of facts, with the application of 
 the law. 
 
 To make a legal defence, or a lawful demand, the 
 evidence must be within the rules of law and the 
 Statute of Limitations. 
 
 An oral agreement to sell real property or assume 
 the debt of another is of course void, and the first 
 consideration will be, Is the demand a legal one? — and 
 second, Can it be sustained by evidence? It is not 
 only humiliating, but a source of actual loss in busi- 
 ness, to bring a stale suit and find it barred by the 
 statute, or a good cause and lack evidence. So that, 
 before going to Court, every case should be tried in 
 the attorney's office — tried with the evidence and 
 law at hand, and tried with a full knowledge of the 
 facts; but more than all, in starting a suit, to use the 
 right parties, to bring the right action, is vital to the 
 life of litigation, and no rule of practice should be 
 more carefully heeded than this : Be sure you are 
 right ! If upon the wrong road, the further you go 
 the more time is lost, and the further you are from 
 the object to be attained. In a certain suit, brought 
 within a few days of " outlawing," the plaintiff 
 neglected an important point in joining the proper 
 defendants. He submitted to a nonsuit. This barred 
 the claim, as the adjourned day placed it over six 
 years past due, while the nonsuit was as though no 
 
126 TACT IN COURT 
 
 proceedings had been commenced. The true temper 
 of the steel depends alike on the degree of heat and 
 the correct time to cool the metal; the law and the 
 facts must be well united to make a judgment 
 possible. 
 
 Rule XIX. 
 
 Twenty questions of fact to one of law will arise in 
 Court trials. 
 
 • It is seldom that cases are lost on technicalities; 
 more frequently on defective proof of facts. There 
 are so many means of negligence, so many releases, 
 or receipts and discharges, that lawyers are often 
 defeated by some paper carelessly signed without con- 
 sulting counsel. In view of these facts suitors should 
 be cautioned early in the case to leave all settlements 
 entirely with their counsel and never settle without 
 advice. There is nothing more' annoying to an 
 attorney than an error that takes his case out of Court 
 at the wrong time, without securing the fruits of his 
 labour; and to prevent this he should instruct his 
 client to keep faith with him and reveal all matters 
 in confidence, good or bad, and conceal nothing in 
 the case essential to be known. The more thoroughly 
 the facts are prepared and studied, the more certain 
 will be the result. If a case fails by a law-point that 
 no one can see or prevent, counsel should never be 
 blamed for it. But a failure on a point of fact that 
 could be foreseen is an act not often forgiven. 
 
TWENTY-ONE RULES OP PRACTICE 127 
 
 Rule XX. 
 
 See that you do your work well. 
 
 It brings business. To give one rule for increasing 
 business, embodied in two words, I would say, Be 
 thorough. A well-made deed, abstract, or paper, will 
 bring other like work to an office. A well-tried 
 case, fully and forcibly put, will bring other suits. 
 " That is the way," said a listener, " that I would 
 like my suit tried if I had one." He is a worker, is 
 a recommend for a lawyer; he makes his client's case 
 his own, is better; he wins his cases, is still better! 
 But no one can win cases without work. Great efforts 
 are made after long study. Judge Comstock worked 
 seven weeks in the Tweed case, citing over five 
 hundred authorities, and, when he reached the end of 
 his brief, saying to the Court of Appeals, " And from 
 all these cases but one conclusion can be reached, 
 and that is, that every man charged with an offence 
 against the law is entitled by the Constitution to a 
 fair and impartial trial by jury for each offence, to 
 the right of challenge, the right of counsel, and to 
 be confronted by witnesses in every case; but in this 
 case it was sought to annul these rules, and by 
 conviction on one offence, multiply it by fifty-five, and 
 imprison the respondent beyond the term of his 
 natural life; and having suffered more than one 
 sentence already, we conclude he has paid the penalty, 
 he has suffered long and patiently, and should be 
 released and set free! " The Court sustained this 
 view, but other suits followed. 
 
128 TACT IN COURT 
 
 Rule XXI. 
 
 Hold on hard to the strong points of law and facts. 
 
 It is related of Lincoln that he seemed utterly 
 regardless of little points, holding to the core of his 
 case, and winning by his liberality and fairness. In 
 the trial of disputed bills he would waive interest or 
 forgo trifles, from time to time, until the close, when 
 he would bend to his work of winning the main 
 issue with a determination seldom witnessed, and, 
 having won the jury by good humour, he would fasten 
 their judgment on the sum he demanded. The higher 
 one rises at the Bar, the less is known of little 
 quibbling demands and defences. In the " upper 
 storeys " men battle for principles and property with 
 manly weapons, as will be seen by the efforts of 
 Stanley Matthews, Gen. Butler, Arnold, Hendricks, 
 Carpenter, and Judge Chipman, and many others 
 referred to throughout this volume. 
 
 If there is one maxim more to be remembered than 
 others, in practice, it is, " Be Thorough." Is it a 
 demand to collect? — Get it admitted; get it secured; 
 never higgle over trifles; watch the main chance. Is 
 it a compromise between neighbours? — Reach a 
 just settlement, and insist upon it. Is it a family 
 difference? — End the litigation. Is it the liberty 
 of a man in chains? — Show him to the jury in his 
 noblest manhood — surround him in Court with his 
 friends and neighbours; tell what is good of him; 
 assume not that he is wholly innocent, but that he may 
 not have been proven guilty. The sacred calling of a 
 lawyer imposes earnestness of manner, study and 
 ingenuity, tact and energy, and a heart full of love 
 and loyalty for right, and with them every promise 
 
SELECTING A JURY 129 
 
 should be kept as inviolate as made under a solemn 
 oath. Tis said, " The accusing spirit that flew up to 
 Heaven's Chancery with the first oath blushed as he 
 gave it in, and the recording angel, as he wrote it 
 down, dropped a tear upon the word, and blotted it 
 out forever." Why should a brother bind a brother 
 with an oath? 
 
 SELECTING A JURY. 
 
 To exclude two jurymen, without cause, in civil 
 suits, and thirty in murder cases and high crimes, is 
 a work of more importance than any one act of the 
 trial — not even excepting the argument. 
 
 Men are all human. They carry their prejudices 
 to church, to mill, and to Court, as much as they carry 
 their arms and hands with them. Some are hardened 
 by unbelief in human nature; some are crippled, 
 disordered, and impatient; some are lifeless, and with 
 all the milk of human kindness lacking in their nature ; 
 some are noble, generous, humane, and open-hearted; 
 some with reason, others are set and determined. 
 Lawyers should prefer reasonable, merciful, enjoyable, 
 liberal, intelligent jurymen, absolutely free from 
 bias or distrust. It is generally known that ex- 
 policemen, ex-sheriffs, and ex-Justices, with other 
 like ex-officials, have imbibed a deep-seated prejudice 
 for the plaintiffs whom they have served so long; 
 while labouring men prefer their kind, and each 
 nationality will in some degree stand together. So 
 in criminal defences and civil suits these points should 
 be always remembered. 
 
 But, presuming the Justices, policemen, sheriffs, 
 and deputies are excluded, and only the honest 
 
130 TACT IN COURT 
 
 twelve remain, who of them are to be chosen? Why, 
 look at them! Mark their candour, age, humour, 
 intelligence, social standing, occupation, and let your 
 eyes choose the most friendly, liberal, and noble faces 
 — young or old, but belter young than old; better 
 warm than cold faces; better builders than salesmen; 
 better farmers than inventors; belter good liberal 
 dealers than all. Avoid doctors, lawyers, pettifoggers. 
 There is a little man, deformed, narrow, selfish, 
 opinionated. Yonder is a captious, caustic, witty man, 
 of stale jokes and street-corner arguments; and further 
 on is a hard man, grim-faced and cold grey look, 
 white blood and glassy eyes. Rule them all off, if 
 possible. The world has used them ill. They will 
 spread their misery for company's sake. If you 
 have been wise, you have looked ahead, read your 
 directory, and known the occupation of each. All 
 this is easily done. Jurymen are usually well-known 
 men, distinguished for wit, humour, wealth, or 
 business dealings. Chronic hangers-on, unless clear- 
 headed, can easily be excluded. 
 
 I have known a sailor on a jury to acquit a sailor 
 charged with crime. He was clear on the case. A 
 wrestler once turned a suit for the plaintiff by showing 
 the jury how it was done; he was one of them. In 
 a robbery case, defendant gave evidence to show that 
 he won the money at draw poher. A keen juryman, 
 who understood the game, plied complainant with 
 questions, and drew out that he liked poker — went 
 to the defendant's room and played, and remarked, 
 " I am beaten at my own game " ; and although the 
 amount won was over eight hundred dollars in bills, 
 a gold watch, revolver, and a twenty-dollar gold piece, 
 the poker-playing juryman convinced the rest that the 
 
THE LUCK OP LAW 131 
 
 exciting game, and not the offence charged, was a 
 clear solution of the so-called robbery. 
 
 Many a builder or expert has changed the whole 
 twelve by knowing the case. Too much could not 
 be said about the wise selection of jurors. 
 
 THE LUCK OF LAW. 
 
 To the student at law, and to many men outside of 
 the profession, an ideal lawyer is a great orator. 
 
 In the days of Webster and Choate, or the earlier 
 ages of history, such a character was worshipped 
 almost as a hero. But learning and the Press, the 
 power of print and the greater development of man- 
 kind as a mass, have very much weakened the 
 influence of eloquence. 
 
 Within the last dozen years it has become more 
 clearly apparent that evidence, and not eloquence, 
 prevails; and he that has weighed most carefully the 
 history of cases for the last half-century will bear 
 witness that more than one case is decided by the 
 overpowering sentiment of communities outside of 
 either eloquence or evidence. 
 
 To be a little more explicit, the science of success 
 in the department of law is rapidly changing to busi- 
 ness principles. An active, energetic, thorough, and 
 determined lawyer will succeed in his business very 
 largely in proportion to the capital he employs and 
 the energy he expends in his calling. 
 
 The term " capital," in law practice, relates as 
 much to character and cultivated judgment of men and 
 things as to any other degree of legal attainment. 
 Indeed, it is the business lawyer with a common- 
 
132 TACT IN COURT 
 
 sense view of general subjects, and not the stickler 
 on trifles, that makes his mark in the Courts and in 
 the world. He who will trust cases to men should 
 study the character he confides in. 
 
 In the majority of cases twenty times as many 
 questions of fact as of law will arise, and he that is 
 most thorough in facts will be most likely- to win. 
 This, then, is the secret of the whole matter. Earnest 
 attention to details, thorough arrangement of evidence, 
 coolness and absence of anger and excitement, brevity 
 and clearness of argument, honesty and fairness of 
 statement, firmness and decision of judgment, a 
 reliance on reason rather than the biased opinion of 
 your over-zealous client, and deliberate determination 
 to do right. 
 
 Eloquence should never be forgotten; there are 
 subjects in themselves eloquent. It is not in words, 
 but in the man, and of the man and from the man, 
 and at the occasion, that eloquence is born. It is 
 never premeditated, but born of the theme and in the 
 counsel. But oratory is studied, mastered, and held 
 in readiness for rare occasions. 
 
 As nothing should be done to discourage an 
 eloquent appeal, so nothing need be said to imbue 
 attorneys with an over-value of or reliance upon it to 
 win in a lawsuit. The best advocates and orators are 
 well stocked with apt quotations in prose and verse, 
 and add force to their reasons by happy thoughts of 
 other men ingeniously interwoven in argument. On 
 great occasions and in great cases the subject itself 
 may furnish all the eloquence demanded. 
 
 In a celebrated case in Indiana a statesman was 
 pitted against a country attorney, whom all expected 
 to be beaten, if not annihilated. The case proceeded. 
 
THE LUCK OF LAW 133 
 
 The country boy was quiet, but clear and determined. 
 He made his modest opening, and waited for the 
 thunder of the orator; but it was like a lion tamed 
 by kind usage; the strength of the statesman lacked 
 a forum for display. He forced his plea upon the 
 jury and they shed tears. He urged his client's cause 
 in all general ways, and just enough to heat his little 
 opponent to a speaking-point. The country boy stood 
 up, stammered (purposely, I have since thought) and 
 stumbled a little ; but, clearing his boat from the shore, 
 he launched off and out smoothly, through the long 
 conflicting proof, picking up every point, commenting 
 on it in the keenest, closest style, building such a fire 
 of the little sticks and floodwood gathered by the way 
 that by the light of a blazing sun at midday none 
 could see the murderer and his victim plainer than by 
 the boy's description of the tragic scene. The tragedy 
 was re-cast, the fire and fervour of a boy's warm 
 heart was blazing in every character, speaking from 
 his eyes and hands and face. The jury forgot the 
 statesman, forgot the defence, forgot all but the 
 ghastly deed, held up in such an artful, unerring, 
 vivid manner, that a shudder ran round and round 
 the Court-room by every new discovery. He sank 
 exhausted, and conviction followed. 
 
 It was a flash of lightning from a cloudless sky; 
 but the boy had remembered his case — had dreamed 
 it out, thought it over, studied it, kept his proof like 
 a polished knife, and pushed it to the hearts of the 
 jury unawares. It was another David with his little 
 sling and five smooth stones, striking where no armour 
 had been made. 
 
 And this is the luck of law. The luck is work: 
 the luck is tact; the luck is ingenuity; the luck is in 
 
134 TACT IN COUET 
 
 bringing law to a Court with wisdom, discretion, 
 power and logic, tact and genius, well combined; 
 and bringing facts to a jury in the clearest, plainest, 
 simplest possible light, to convince and decide for 
 your client's cause. It will not do to guess ; he must 
 work — I repeat it, he must work to win ! 
 
 IN THE SUPREME COURT. 
 
 Ex-Chief Justice Graves, of Michigan, writes : 
 
 Let every person assuming to be a lawyer consider 
 it his duty to do his best to understand the law, and 
 as a minister of justice to make his office subservient 
 to its rightful administration. It is only through the 
 triumph of justice that the highest professional success 
 can be attained. To conquer in a bad cause may 
 procure temporary applause, but the final verdict of 
 the future will reject the glory of the hour and insist 
 upon truth and justice. 
 
 The precept of day by day prudence in the 
 Supreme Court may be comprehended by a few 
 general terms. 
 
 We may suppose counsel to have the requisite 
 learning. The next thing is to master the particular 
 case; see that the record is correct; anticipate the 
 arguments on the opposite side and prepare to make 
 the best answer admissible; be true and just to your 
 own intelligence and honour, but do not forget that 
 arguments and views which are not quite forcible to 
 you may appear cogent to the Court. 
 
 Avoid verbosity, and remember that the members 
 of the Court may be supposed to know many things 
 even among the ordinary doctrines of the law. 
 
TO BEGIN LAW PRACTICE 135 
 
 Use as much brevity as is compatible with clear- 
 ness, and stop when you get through. 
 
 The question of winning cases concerns both sides, 
 and even in the Supreme Court it is a rare thing for 
 both to succeed in the same case, although it is not 
 so very unusual for the event to disclose that both 
 have lost. The difference between attack and defence 
 prescribes a difference between attacking and defend- 
 ing, and one of the first things for counsel is to' 
 recognise this destination and apply its direct and 
 collateral suggestions to the particular case. He will 
 not be inclined by choice to help his adversary (a 
 thing oftener done, by the way, than is commonly 
 imagined), and will therefore see to it that he does 
 not entangle himself with incongruities, but confine 
 himself to the genuine requirements of his own side. 
 Except so far as needful to answer his antagonist's 
 arguments, he will rest his case on a few propositions, 
 generally not to exceed three, and on these he will 
 spend the weight of his fire. 
 
 If unable to succeed by such means, he would not 
 be likely to do so by expending the same force over 
 a larger ground. If a battery fire concentrated on a 
 single point cannot force a breach, it would not do 
 better certainly if scattered over a hundred yards. 
 
 TO BEGIN LAW PRACTICE. 
 
 Begin law in any State or city with a sense of 
 eternal rectitude : advise every client as you would 
 an own brother. Be in dead earnest about it. 
 
 Consider how completely you hold your client's 
 interest in your hands, and how much depends on 
 your honest judgment. Use wise discretion. 
 
136 TACT IN COURT 
 
 The law is not a mere scramble for bread- 
 money, for we are charged with the safety of pro- 
 perty and the progress of society. Live for some 
 object. 
 
 Life is a little journey, where we all hurry and 
 many are injured and impatient, while we are called 
 to set them right under trying conditions. Do so 
 bravely. 
 
 The world will measure us by the way we do our 
 duty, as it measures the reaper, the racer, the railway, 
 and the telephone. We must do something useful, 
 real, and of benefit, that shall better our race, and by 
 it we shall be known to have lived once and to have 
 made the world better by it. 
 
 LAWSUITS LOST AND WON. 
 
 A lawsuit is lost or won in many ways. It is 
 won by a clear statement to a fair jury, with enough 
 testimony to convince plain men of your theory, 
 which, with the evidence to match, should be known 
 to counsel in advance of the trial. It is lost by not 
 knowing the enemy's position in season. 
 
 Your own client begins the blunder by keeping 
 back part of the facts that will injure him and aid 
 the enemy — facts that wise counsel could easily 
 explain if advised of earlier. It is often lost by a 
 wrong theory — one taken to please a client, when he 
 has no right to dictate more than to suggest facts, and 
 let counsel prescribe remedies. 
 
 These over-wise clients, that come so near being 
 lawyers and always blunder in their plans, are 
 dangerous advisers! Suits are won very often by 
 
TO YOUNG LAWYERS 137 
 
 the skill of advocates, or tact in the use of evidence. 
 It is a sort of legal workmanship — a sending the shot 
 to the centre of the target, instead of out among the 
 leaves at random. 
 
 The science of good practice is that art which 
 teaches a builder to discard bad timber; to prepare 
 what he uses with precise care, and fitted with preci- 
 sion to the members of the building; that teaches a 
 mason to make joints before reaching the building he 
 is erecting. 
 
 The plan in the brain is the science of it all. The 
 skilled architect builds for eternity; the sham tenant- 
 house builder uses rubbish in his foundations. Suits 
 are lost by a lack of interest in details, a lack of 
 clearness in evidence, or some want of tact in the 
 conduct of counsel. 
 
 TO YOUNG LAWYERS. 
 
 A leading daily paper answers a young farmer-boy 
 who would be a lawyer, and gives him several points 
 by which he may succeed, condensed as follows : 
 "1. Be one who is selected counsel for a corporation. 
 2. Make a hit in some big criminal case. 3. No one 
 can dispute but unscrupulous lawyers make the most 
 money. 4. Let one once secure the reputation of 
 knowing how to handle a jury, or ' stand in ' with 
 the Judge, or break a witness all up, and he is certain 
 of a large income." 
 
 What a mess of pernicious nonsense ! No lawyer 
 ever wrote it! It lacks sense, judgment, and decency! 
 It is positively vile — a libel on Courts and lawyers, 
 and is basely unjust and unreasonable. Such has not 
 
 10 
 
138 TACT IN COURT 
 
 been even the lowest public estimate for years, to say 
 nothing of a fair opinion. To be a corporation law- 
 yer, says Col. Van Arman, is a dire misfortune to a 
 beginner, for it shelves him forever. He must be 
 the loser in very many cases. He will run in a rut, 
 and soon become a mere money-maker, which is a 
 trade by itself, and a side-consideration to men who 
 would rank very high in a profession early in life. 
 A lucky hit in a criminal case and the unscrupulous 
 lawyer come next in order. Lawyers of neither 
 class are to-day leaders of the Bar, and this is 
 especially true of the latter. The lucky hit does not 
 come by accident. It is a matter of keen insight, 
 correct theory, and careful preparation; the genius 
 of taking pains to go to the place of shooting, to 
 visit the scene of the tragedy, to fill one's self so full 
 of a case that it bubbles out at every pore, with the 
 law at hand and evidence to match the theory. Good 
 evidence is about the best luck any lawyer ever yet 
 heard of. There is no such thing as " handling a 
 jury " for many cases together, without the essentials 
 just mentioned. Juries are convinced by arguments 
 on evidence, and a lawyer who claims to " stand in " 
 with the Judge is a rascal that any Court will repel 
 as soon as he knows of such an impostor. The best 
 " standing in " is to get the case ready in the law and 
 facts, and be honest about it. And as for breaking 
 up witnesses, the hired girl's remark, "And what 
 would I be doing all that time?" applies aptly. From 
 fifteen years of reading and saving odd cases, most 
 of them read six times, to make books of, and quite 
 a large number of visits with men of rank in law, 
 like Matthews, Beach, Curtis, Porter, Van Arman, 
 
TO YOUNG LAWYERS 139 
 
 Dougherty, and their class, I have learned to distrust 
 in every sense unscrupulous methods. They bring 
 a bitter sting sooner or later; and of all dangers to 
 young lawyers the risk of trying to break up a wit- 
 ness is most hazardous, for what will he be doing all 
 that time ? Killing your case by inches ; saying hard 
 things; intensifying bad testimony. I could say more, 
 but you are lawyers and can see it easily. The 
 richest and best lawyers have a reputation for skill, 
 honesty, and integrity, and often for eloquence. The 
 greatest are upright, honest men ! 
 
 Country Lawyers. 
 
 A city physician has many advantages by his large 
 circle of acquaintance and social connection over one 
 born in the country, but a city lawyer can never 
 claim such preference. The former will meet a larger 
 practice as the wives and children of the rich in cities 
 more often call a doctor, while the poor make their 
 own medicine. With a lawyer the case is reversed. 
 The rich men of large cities have their counsel hired 
 by the year, and no matter how large their business, 
 no young man can expect to control it until he has 
 become established, not only as a graduate, but as a 
 faithful and skilful man in special cases. He must 
 either win or be counted a failure in Court cases. A 
 poor young lawyer in a city has but one dream of 
 preferment — he must win and win often. The city 
 friend will have his diversions — dances and parties, 
 with a thousand and one means of enjoyment. The 
 country lawyer in town will ignore most of them and 
 rely on his Court victories for distinction. From the 
 first case to the last he throws his soul into the 
 
110 TACT IN COURT 
 
 contest — dreams of it, thinks of it, reasons of it when 
 alone, goes to Court brim full of it, speaks of it so 
 earnestly that, like the tongues of dying men, it 
 compels attention by deep harmony. Country lawyers 
 have long been known as industrious. When they 
 move to the city, as did Gordon, Brown, Hendricks, 
 and McDonald of Indiana; Van Arman, Swett, and 
 Lincoln of Illinois; Beach, Shaffer, and Pryor of New 
 York; or Butler of Massachusetts — they carry their 
 courage into Court, imbedded and coined in their 
 very being, through a life of early hardship, with 
 one long line of contest; beyond the reach of easy 
 access to many books, they commit all the more 
 thoroughly the principles of common law and evidence, 
 and mass their forces in solid columns. Wealthy 
 lawyers are of all men the most hindered and 
 delayed in starting, by the very reason of their riches. 
 They will spurn the smaller Courts and wait for 
 respectable practice, which comes only to such as are 
 ready to do it successfully and never as an experi- 
 ment; and of all men best drilled in general practice 
 the village lawyers on the inland county seats are 
 the most ready, most apt, and most earnest, and win 
 their cases the oftenest. 
 
 HABIT IN COURT. 
 
 The force of habit is more powerful than law or 
 reason. Once fully formed, it controls the greatest 
 as fully as the humblest, undermining the strongest 
 mental and physical qualities, destroying the purest 
 characters, changing the noblest natures. 
 
THE REWARD OF VICTORY 141 
 
 I have in mind three instances : One a shrewd, 
 well-read, ingenious lawyer who gradually drifted into 
 a captious, tricky practice, secured some fame by it, 
 won a few nonsuits and demurrers, took in a few 
 ten-dollar notes, and failed to win on the merits, until 
 his present practice is but trifling. 
 
 Another is of one presumably witty, harsh and 
 sarcastic, abusive if he ever can be, overbearing if it 
 suits his purpose, caring only for self, and daily 
 losing the good will of his brother lawyers. He 
 assumes to be successful, but is a positive failure in 
 all that is noble, manly, and sincere to his equals or 
 superiors. I think it is clearly the force of habit that 
 is undermining his usefulness. 
 
 A third one began by modest charges and respect- 
 ful bearing toward others; gained in esteem by fair- 
 ness and kindness; acquired friends even among his 
 opponents; became trusted for his integrity; held 
 the good opinion of the Bar and of his clients ; was < 
 promoted so often that many honours have been 
 declined by him; and now, in ripe age, is turning his 
 eyes toward sunset with a face unmarked by harsh- 
 ness, and will ere long, go over to the majority, 
 mourned and remembered for his goodness as well as 
 greatness. Shall I draw any inference, or am I not 
 clearer without it? 
 
 THE REWARD OF VICTORY. 
 
 A young lawyer's beginning is like a racer without 
 a record, like a patent in its model state — he may 
 be useful and may prove a failure. Somebody must 
 experiment with him, for he lacks development. If 
 
142 TACT IN COURT 
 
 he runs without friction and does the work of experi- 
 enced counsel, his pay will be less than a tenth of 
 that allowed the senior, and the credit will still belong 
 to another. If he fails — a thing he dare not do, 
 and must consider impossible — it is charged to his 
 lack of tact or genius, when in fact he may even be 
 much brighter at his age than Webster would have 
 been with like experience and training. But fine lines 
 are not drawn in such cases. He must win, and that 
 settles it. Neither his rank in college or standing 
 at home will replace the one thing he is hired to do 
 — to win suits. Friends may gather him an audience, 
 smiles and kind faces may welcome his coming, 
 but cheers are out of order in Court rooms; and in 
 the supreme moment of a young lawyer's peril, the 
 simple question over all others will be : Is he ready 
 with his evidence? Is he ready in his mind? Is he 
 equal to his case? Has he learned it carefully? Does 
 he know his ground well? Can he win? The reaper 
 that binds best, the racer that runs best, the machinery 
 that works best, the actor that draws best, the 
 doctor that cures best, and the lawyer that wins 
 oftenest, will be paid most liberally. The test is a 
 severe one, an unfair one, and many a boy lawyer 
 has failed under it who should have succeeded, while 
 many a one wins, not by knowing how, but by an 
 Herculean exertion. The courage of victory is a 
 reward beyond all retainers. The merit of success 
 is the lawyer's best paymaster; like the Roman 
 soldiers who had been victors in battle, their eyes and 
 their arms proclaimed it. So the sequel to victory is 
 success in anything. 
 
lawyer's fees 143 
 
 LAWYERS' FEES. 
 
 It is said that several New York lawyers, like Cur- 
 tis, Conkling, Evarts, Pryor, and their class, could 
 very easily accept silent retainers by the month or 
 year, and remain away from Court contests entirely, 
 while they enjoyed a princely income, but prefer the 
 excitement of advocacy to the duller work of mere 
 money making. 
 
 It is well known in cities that the highest chargers 
 in law practice are not the best lawyers, but often 
 men whom others engage for some special gift or 
 influence — generally the knack of gaining an early 
 victory. The hardest workers and most conscientious 
 men in practice are more of the Edmunds, Thurman, 
 and McDonald stripe, who have no time to make 
 money, and satisfy their conscience with smaller 
 charges : either of these men could easily grow rich 
 by higher charging. 
 
 More than likely the average lawyer can recall 
 many men in practice whose gift in gaining cases 
 was far superior to that of saving silver. Webster 
 and Choate, Carpenter and Beach, Storrs and Lin- 
 coln were all poor, or not rich, advocates, and yet 
 with talent of the highest order, while hundreds of 
 others, inferior in genius, learning, or character, have 
 lived in luxury and died in splendour (if owning 
 money is splendour) from some strange gift of grasp- 
 ing riches. 
 
 To sum it up briefly, there is but one conclusion to 
 the whole matter, and that is : the little lawyer, within 
 the larger one, prompts the other into making low 
 
144 TACT IN COURT 
 
 or high charges, and in proportion as the little inside 
 man (sometimes called the soul) is large and influen- 
 tial with the outer counsel, will be the measure of the 
 fees demanded. The great and generous, the strong 
 and noble, can afford to be reasonable : to them vic- 
 tory is recompense, and an honourable victory is a 
 rich reward; while the narrow and selfish must have 
 money or they lose all enjoyment in law practice. 
 Lawyers like others weigh with strange balances. 
 
 A VEST POCKET BRIEF. 
 
 Monday. — The past year was one of progress, but 
 it might have been belter. Yes, there was a suit 
 nearly lost for lack of a little clearer evidence. We 
 will see that does not happen' this year. 
 
 Tuesday. — A juror mentioned it, and of all men to 
 learn practice of, a juryman is one of the best and 
 safest. We will keep a sharper eye on absolute clear- 
 ness of evidence — that which seemed clear to our 
 client was vague to the jury. It is not an easy task 
 to convince twelve men on either side of any 
 case. 
 
 Wednesday. — The brother that interrupted an argu- 
 ment and got a stinging reply will remember' it and 
 pay it back some day; even we will not forget it. 
 An injury resented leaves a sting to heal slowly; 
 it may take years in curing, while the satisfaction 
 lasted but a moment. It will be better to omit that 
 practice this year. 
 
 Thursday. — The man with a " genius for blunder- 
 ing," as one termed it. Well, what if he had? — he was 
 young and impulsive; it would have been nicer not 
 
A VEST POCKET BRIEF 145 
 
 to have noticed it; the poor fellow will carry that 
 sentence to the Court of memory, and hold it like 
 an appeal case in Chancery, and decide it against us 
 often when alone. Nothing of that sort shall happen 
 again ; the year must run with less friction. 
 
 Friday. — A half-dozen clients called at busy hours 
 and went away early. They made their cases very 
 plausible, for their side, and omitted all mention of 
 their adversaries' posilion; by ignoring this evidence 
 we were taken by surprise and nearly lost the con- 
 test. We will study the other side this year. The 
 other side is the one that is not so easy to win over. 
 
 Saturday. — What is this law business anyway, but 
 an endless quarrel for somebody? The more some 
 quarrel, the more they like it. The best way to hush 
 up a personal contest gracefully is to make the angry 
 one pay for it at the time — to fix the fees liberally 
 at the earliest beginning. They like lawyers best 
 then ; we will try it this year as an experiment. 
 
 Sunday. — The best rule for the year, in a nutshell, 
 is this: select cases with an eye to certainty; prepare 
 them with a view to clearness; end them at a point 
 of the least loss to client and the most margin to 
 counsel, always believing that a certain fifty is better 
 than a doubtful hundred, while the gain of money by 
 the loss of friendship is a poor investment. 
 
146 TACT IN COURT 
 
 THE BEST LAWYERS. 
 
 I have noticed various items of interest in recent 
 exchanges on this theme, but in none is the theory 
 carried out to a complete conclusion. It is a common 
 thing to speak of a lawyer as " a firsl-class lawyer," 
 or " a rising young lawyer," or " a third-rate lawyer " 
 — the last title is given by the fellow who has just 
 been defeated in Court by the " third-rate " advocate. 
 Some have the habit of thinking that only lawyers 
 in large cities like New York, Philadelphia, or 
 Chicago get their full growth and become great 
 lawyers ; some assume that advocates cannot of course 
 be learned in the law. 
 
 A close reading of history will kill off most of these 
 theories and change one's convictions materially. A 
 lawyer may be entirely first class of his age and 
 nature of his business, and age with experience 
 should always enter into the estimate; many a man 
 has never been tested — never been tried. But for 
 some singular cases Patrick Henry may have re- 
 mained without a record, and Abraham Lincoln have 
 died without a bright name as an advocate — neither 
 enjoyed a city practice; and men like Beach, Shaffer, 
 Porter, Vorhees, Waite, Carpenter, and Hendricks 
 all attained fame in reality while country lawyers. 
 They were not born in, but called to city life. 
 Some of the best lawyers never reached fame till after 
 death. Ryan was one of this class — an unknown man 
 of Wisconsin with a Websterian genius who knew 
 the law and how to handle it. 
 
 But as was recently said in the Daily Register, 
 " to know the law is not enough to make a great 
 
THE BEST LAWYERS 147 
 
 lawyer." He must apply it, win by it, bring out 
 results and enforce attention, as did Seward and 
 Webster, Choate and Tom Marshall. Great lawyers 
 are great in genius, and to underrate them when 
 merely advocates is the greatest blunder. What is an 
 advocate but one who can urge his position as did 
 Cicero in the defence of Gavins? — like Graham at the 
 trial of McFarland, Brady in the trial of Sickles, 
 McSweeney in the Gov. Scott case, Curtis in defence of 
 Buford, Crittenden in the Ward trial, and Vorhees 
 pleading for Mary Harris? These are a handful of the 
 advocates who have moved their States and moulded 
 public opinion in trials not by dry law alone — for 
 that is mechanical, that is book-keeping, that is ab- 
 stract of title work, that is something that money 
 will buy and pay for; but genius, sagacity, power, 
 influence, character, eloquence, and manhood are gifts 
 of greatness inherited from the Almighty, and de- 
 veloped by ripe sxperience. Great lawyers must be 
 good advocates. Good lawyers may be such and not 
 be advocates; but leaders of men and moulders of 
 minds must be more than title searchers, precedent 
 finders, or statute interpreters — they must be men like 
 Webster and Gladstone, who seek out the right and 
 lead other men to believe it and follow it, and create 
 laws and govern nations. Great lawyers are greater 
 than law itself. 
 
148 TACT IN COURT 
 
 I WILL. 
 
 A question that troubles young lawyers is where 
 to locate and what branch of practice to select. This 
 puzzle lasts even into middle life with many able 
 men, and some never solve it; life itself is an un- 
 solved riddle. 
 
 Letters from Dakota, Oregon, Iowa, Georgia, and 
 Arkansas indicate a fast-growing settlement in each 
 locality, and where growth is rapid young lawyers 
 secure more chances of promotion; while in Eastern 
 and Middle States habits are fixed, titles are estab- 
 lished, and older men do the leading business. 
 
 But there is a place for everyone of genius and 
 ability somewhere, and only let him say, " / will reach 
 it," and he is half to it already. Men live where their 
 hopes are, and prosper when they will prosper. Men 
 invent when they have courage to think out problems 
 alone and advance them. The man who surrenders 
 to a theory like this — " I'm only a little moth around 
 the candle of the earth, burning my wings with 
 each flutter, and doomed to fall unknown and early 
 into an unforgotten hereafter " — is very likely to do 
 so : he is half way on the journey. 
 
 Men who have within them the " / will be a lawyer, 
 and a good one," the " / will live happily, battle 
 bravely," the " I will succeed inwardly," must make 
 a bright mark some day, for such lives are never 
 failures; they are heard of, marked, remembered. 
 " Make lip your mind to have a front seat in life, and 
 you attract to you the powers that carry you to it." 
 
 Confidence in yourself, the " I will " is everything. 
 Look at the leaders of great enterprises! They seem 
 
I WILL 149 
 
 to care little for competition; most of them are 
 sharpened by it. They aspire to be first, and the first 
 is ever just ahead of them. They have already half 
 reached it when once fairly started. Think to the 
 front and you will get to the front; lag to the rear 
 and it is ever ready for your coming. 
 
 Get out of the notion that the man who cites the 
 most law and reads the most reports is the best 
 lawyer. No man carried fewer books to Court than 
 did Carpenter, but he carried his manhood there, 
 always; his clear insight was thought out by himself, 
 and his facts applied to principles and results de- 
 manded. It is not the most learning, but the best 
 wisdom, that wins. What a weak ambition one must 
 have to spend a lifetime in dreaming over the pro- 
 spects of personal failure! Why not anticipate suc- 
 cess and aim for it? The courage of the " I will " lawyer 
 secures him first standing-room, next an opening, and 
 early a front seat in the ranks of his profession. 
 
 If you never have set your heel down with em- 
 phasis, in an " I will " determination to win, the sooner 
 this resolution is reached the nearer you will be the 
 goal of your ambition. The hand is never stronger 
 than the heart, and the man is never greater than his 
 mind. His life is below or above his true condition, 
 very much as he wills it; and no one will cheer him 
 till he wins something worthy of applause. The 
 world is both stingy and liberal, reluctant to risk on 
 uncertainty and willing to advance thousands on 
 ventures when successful. The demonstration of 
 success is what men wait for and demand. 
 
150 TACT IN COURT 
 
 THE ART OF AN ADVOCATE. 
 
 Young lawyers often ask the leading question by 
 letters from Maine, Georgia, and even far-off Oregon 
 — " Who is the first living advocate of our day?" To 
 which must be the answer, " No one is first in every- 
 thing." Webster was, but he is dead. 
 
 Measured by the art of statement before evidence 
 and argument, Leonard Swett ranks very high; by the 
 test of winning cases, Judge Curtis of New York is 
 famous; by the power to plan, General Butler of 
 Boston; by the genius to convict, Major Gordon of 
 Indianapolis ; by the power of trial eloquence, Senator 
 Vorhees ; by poetic oratory, genius, and versatility, 
 Colonel Ingersoll; and yet a hundred others might be 
 named of splendid talents and superior ability. 
 
 The marvellous gift of Beach to make men cheer 
 or make women cry, to divide a jury and charm his 
 hearers, or of Carpenter to move men's fancy like a 
 singer's voice, or Lincoln's wit that won away an 
 audience by its force of truth, were separate arts of 
 separate men, and no one man ever had them all. It 
 is not natural that they should. 
 
 All men are not alike in size, or build, or voice, 
 or imagery. Some are taller — others grander. Some 
 are sharper — others braver. Some are quaint and 
 others deep. Some are touching — others brilliant. 
 Now and then an orator appears with many elements 
 combined. Seward was one; Douglas another; 
 Choate another; and Webster higher than the rest. 
 Webster was grand. 
 
 But the theme of advocacy is not as Webster knew 
 it. The rules are changed. Webster under shorthand 
 
THE ART OF AN ADVOCATE 151 
 
 work would never shine as brilliantly to-day as he did 
 in his day. His powerful diction was of a measured 
 kind. To-day the Press would tell it faster than he 
 could speak. Most sentiment is dead to-day before 
 the orator's part begins. We hear great plays night 
 after night; but trials are like novels — once the plot 
 well known, the deeper interest dies away. 
 
 Real advocates, just now, are men whom men 
 believe, for men do read of men. The well-read man, 
 the well-up man, the head to plan and nerve to execute, 
 will rank according to his gifts, even in the brightest 
 blaze of a printer's light. If you follow the leaders of 
 the Bar to-day, they are well-rounded men in general 
 knowledge, both in and out of books. They may have 
 travelled much, they must have practised much. 
 
 It is not a theory, but " a condition that confronts 
 us." That condition is the power to plan and win 
 cases. Every client believes in his case. He over- 
 states it. He may lie a little about it. He magnifies 
 his rights oftener than he understates them. If he be 
 a criminal, his soiled character is revealed midway at 
 trial — just when you have no means to meet it. If he 
 be a contractor, he hides the poorness of his work. 
 If a defendant he " sets off " too much ; and even if 
 a human being has been killed, the truthful story, 
 which may permit an honest motive to be shown in 
 self-defence, is often told too late. 
 
 It is clear, then, that to be an advocate to-day 
 requires one great gift, if all others fail — the gift of 
 getting at the cause of things. Solomon's wisdom in 
 detecting the real mother of the child, and the real 
 flower, Daniel's art in Susannah-and-the-Elders case, 
 Portia's ruling on the pound of flesh, like Evarts in 
 
152 TACT IN COURT 
 
 the Johnson impeachment trial, and Lincoln with his 
 Almanac, are but so many ways of getting at the cause 
 — or wisdom at the time that tend to make such 
 counsel great by being equal to the case in hand. 
 
 Even Depew's wit is but a quaint telling of the 
 things we already know. So the art of the advocate 
 is in* his way of cutting knots, and telling things so 
 a v s to be believed — convincing men of the theory he 
 urges — touching their nature — carrying their reason 
 — showing them the right and leading their conclu- 
 sions to his own. Success in law and anything is the 
 thing that succeeds. To plan well is to win often. 
 To plan ill is to lose always. Think what a gifted 
 man an advocate must be when liberty and millions 
 hang upon his power. 
 
 Great men are not always wise. But most men are 
 stronger than they know. The lion's jaws let go some- 
 times when taken by the hands of men. Seized by 
 the tongue with a grip of death, a little New Mexican 
 killed a monster cinnamon bear. He saw and knew 
 just where to place his hand. He took his enemy by 
 the tongue — a fine art in law. With any other grip, 
 the bear would quickly be outside the man. It is the 
 aim one takes — the vital part he touches — that brings 
 down the game. In law, in life, in business, and in 
 everything, it is the accurate plan, the well-directed 
 work, the genius to foresee, the striking where no 
 armour is, that wins. Look at the giants in our busi- 
 ness world — they all foresee. One may win with 
 sympathy in law — not often; one with eloquence — 
 rarely now; one with wit — an ancient art; one with 
 insight — the latest art of all; but to expect success 
 without keen forecast is unreasonable. 'The world 
 
TACT IN TRIALS 153 
 
 advances rapidly in science and inventions. It must 
 advance in law. The greatest study I can name to 
 men, is a thorough study of the works of men. Absorb 
 the plans and speeches, arts and works of men, and 
 emulate them with the best grade of your own in every 
 case. Think to the front and grow in that direction. 
 Use every element that you possess or can command — 
 and use them in right ranges. 
 
 TACT IN TRIALS. 
 
 1. Make a good bargain about your fee for ser- 
 vices. Believe only one-half that a client tells you. 
 Let him produce proof of the other half. His zeal and 
 self-interest will deceive him. Don't let it deceive you 
 beforehand. See the witnesses before you plan your 
 rase. It will help you to know what the proof is 
 like. 
 
 2. Look over the jury list' before term day with 
 care. Study their trades and select a young man for 
 the defence, an older one for conviction. It is a wise 
 selection to avoid very old men. 
 
 3. Light-haired men are rarely harsh judges. 
 Fleshy men are always good-natured. Exclude 
 cynical men — they are hard to convince. Warm- 
 blooded men with fair faces are the most humane. 
 
 4. Begin the trial in earnest, from the start. A 
 case well started is over half won. What you believe 
 clearly is a quarter-pole passed. Whenever you 
 doubt, jurors becoms doubtful. 
 
 5. Study the result, as it should be if decided 
 honeetly. Never forget the side you are on. Weigh 
 
 11 
 
154 TACT IN COURT 
 
 the other side long enough to be a judge of it. See 
 the final outcome before it is too late. 
 
 6. Ever be strong with your evidence. Twenty 
 counsel can't win without it. Don't' make too much 
 by counting. Three good witnesses are better than 
 ten poor ones. Two are enough on any fact but 
 character. Beware of the character of character 
 witnesses. 
 
 7. Be anxious to win, but never be anxious to 
 show it. A jury studies the method, as well as the 
 manner of counsel. Be neither sharp, tricky, nor too 
 confident — the more you are of either, the surer is 
 your failure. Good cases are won without tricks — 
 evidence wins better. 
 
 8. Abuse is not argument, no matter who gives it. 
 Assertion is no proof, even if a giant tells it. Loud 
 noise is not evidence. Earnest reasoning convinces 
 men when sent to the heart. The bullet has power 
 by the force that propels it. 
 
 9. The genius of selection is the rarest tact in 
 trials. Select your strong points and rightly urge 
 them ; select the right proof and give it orderly ; select 
 wise counsel and be frank with them; select cases 
 cited that apply to the issue ; select the right basis 
 of judgment. The gift of selection is the genius of 
 victory. To compare what men believe with what 
 you want believed is argument. 
 
 10. The best line of argument may not be known 
 in advance. The contest reveals it in the trial. It is 
 often made on opponent's errors or evidence. It may 
 be an exposure of tricks or bribery. It may be of 
 incident or eloquence — a tact in trial that changed 
 
TACT IN TRIALS 155 
 
 the verdict. Sense, reason, and equity; wise selection 
 of jury; kind and manner of witnesses and right 
 conduct of counsel' in urging his rights, will win a 
 lawsuit. What is wise with a jury and what is 
 unwise, men differ on — some urge too much; others 
 too little; others never put the right thing in the 
 right way. 
 
 Law is a science. A good trial is a fine art. 
 
 To win is the object — to lose is the dread. The 
 sting of defeat heals slowly. The flush of victory 
 brings business. The loss of a book account may be 
 the loss of thousands. The loss of a case may ruin a 
 home. The absence of a witness may mean a prison 
 for a lifetime! The power of a story may save a 
 father to his children. The turn of a case is like the 
 wind in winter — we know not its direction save as 
 we feel it. What a science — what an art — what test 
 of genius — what a forum for wisdom and eloquence, 
 is a trial for a life before a jury of twelve with a 
 nation for an audience! 
 
 Go in and Win. 
 
 A lawsuit is much like a duel : One or the other is 
 wrong to begin it, but which one is wrong takes a 
 long costly suit to find out; either could easily settle 
 it when it begins — either could settle a duel. Neither 
 is disposed to give a little. Both go in to win. 
 
 The cost of a suit is never noted in starting. That 
 is the best time to make a bargain about it. Both 
 sides are in earnest; each would win by all means; 
 but only one side will win — in fact both must lose 
 heavily. 
 
156 TACT IN COURT 
 
 The cost of attorneys, the expense of witnesses, 
 the worry of waiting, the anxiety over the result, the 
 loss of time, of rest and ease of conscience, are sure 
 to tell on the suitors before the end comes. Why 
 will they do it then? Why will men quarrel, or bet, 
 or fight a duel? 
 
 Assume they will fight and enjoy the luxury of a 
 lawsuit, let them pay for it and make the best of it. 
 The best use of a lawsuit is to convince men they 
 are in error. If they win they are in error. They 
 never dreamed it would be so costly, so lengthy, so 
 bitter, so curious. 
 
 Long before the trial ends they have caught each 
 other in as many lies as there are shingles on the 
 Court house — they think so, anyway. They never 
 told quite all of their own case to their counsel. They 
 shaded it slightly — kept back a little of it. There was 
 a confession or a term of imprisonment between them 
 and a good character — yes, and a bunch of letters to 
 give the case away. If the trial is a criminal one, 
 and the question of character is in issue, some such 
 thing often happens. They have signed a receipt in 
 full if the claim is important. They have admitted 
 too much of the debt, or broken off a half settlement, 
 or let out the truth in a letter. 
 
 But no one can guess these little things that hinder 
 and confuse a trial lawyer. " Did you not sell this 
 claim to your counsel?" — "No, sir." "What about 
 this paper?" (A bill of sale filed, assigning it.) " Did 
 you call upon complainant and urge him to settle for 
 $200, only last February?"— "Yes, sir." "Is this 
 your letter?" These are the statements that counsel 
 are surprised by. 
 
TACT IN TRIALS 157 
 
 By a . little more frankness all could have been 
 clearer. A general who met a concealed enemy might 
 expect it more, but would reprimand a picket guard 
 who knew of an enemy, and gave no notice of it. 
 Clients are too proud of their case to reveal all the 
 facts that may be proved against them. 
 
 They go in to win, and go in recklessly. Their 
 chief reliance is upon their lawyer. He is powerless 
 without proof. A medium lawyer with good evidence 
 can win over the finest counsel without witnesses. One 
 might as well undertake a race with a fine driver with- 
 out fast horses, or a fast horse and a rickety wagon. 
 
 The lawyer may win on a law point — but not one 
 time in twenty. The masses know too much of law 
 to be engaged in a contest that has no facts for a 
 foundation. The case must turn on a contract 
 requiring some act to be done that is left undone, or 
 on a duty to use care and caution, or on a lack of 
 some written agreement required by statute. 
 
 To go in and win you will need to prepare for it. 
 The first is with means; the next is with proof; the 
 last is with absolute candour. To get the last is the 
 more of all, and yet as much need as either. To this 
 end witnesses should be examined alone. Like an 
 independent singer, any good witness should stand 
 alone. He should be told that in telling the truth no 
 one is ever much puzzled — no one need hesitate. It 
 is always the same story. It must be to be truthful. 
 
 But one can tell it and believe it. He can tell it to 
 make men doubt or make them certain. To win, each 
 main fact should be certain. Who would risk a doubt- 
 ful gun in a duel? Who would load it with poor 
 powder? Who would fire it without some practice? 
 
158 TACT IN COURT 
 
 If the client does his part, the attorney will do his; 
 and a good retainer is an important prompter to duty 
 in a case of importance. Let the pay be made 
 certain, the proof be made adequate, the facts be 
 analysed, the witness examined, the vouchers in- 
 spected, and the guns are in order — even then you 
 may meet a dangerous jury. 
 
 The matter of a jury's selection is a gift of nature. 
 Lawyers must judge human nature carefully : ex- 
 criminals are harsh judges — ex-officers are bad for 
 the defence. Grizzly, hard-faced men, with willed, 
 miserly features, are as stupid to talk to as a straw- 
 stack. They don't even give back the sound to you. 
 Men under fifty-five — clear eyes, receptive faces, not 
 too great, or too much above an average — are the 
 right judges. Sense and reason will reach them, for 
 they want to do right. 
 
 THE LAW OF SELF-DEFENCE. 
 
 The lesson of this argument is in the quick turn of 
 little interruptions, and the making a defence out of 
 the people's case. The proof of a broken-up home 
 avenged was shut out, as it happened seven months 
 before the assault on the commons of Detroit in 1886. 
 After citing three cases in 38 Mich., counsel was about 
 to repeat some words of Blackstone and Cicero on the 
 meaning of self-defence and was thus interrupted: 
 The Judge : " Cicero is not authority." 
 Mr. D. : " True, not in a legal sense, but his words 
 are the words of wisdom, sanctioned by age, and, 
 like the citations of Shakespeare, are believed by 
 mankind for that reason." 
 
THE LAW OP SELF-DEFENCE 159 
 
 The Court : " But you cannot read to the jury from 
 a printed book?" 
 
 " No, your Honour," said counsel, " I have no such 
 intention; I can easily recite words from memory; 
 they are better words than my own, and I adopt 
 them. 
 
 '"This, then, is a law, judges; not written but 
 born with us, which we have not learnt, or received 
 by tradition, or read, but which we have sucked in and 
 imbibed from Nature herself; a law which we were 
 not trained in, but which is ingrained in us — namely, 
 that if our life is in danger by robbers or enemies from 
 violence, every means of securing safety is honour- 
 able! For laws are silent when arms are raised and 
 do not expect to be waited for when he who waits will 
 suffer an undeserved penalty. Reason has taught this 
 law to learned men, and necessity to barbarians, and 
 custom to all nations, and nature to wild beasts, that 
 they are at all times to repel violence by whatever 
 means they can without deciding that all men may 
 fall by the weapons of their enemies.' " 
 
 In the Scott case, Ohio, a father shot one for an 
 injury to his boy. In the Newland case, Indiana, a 
 father shot the seducer of his daughter. In the 
 McDonald case, California, and in the McFarland 
 case, New York, the husband avenged an outraged wife 
 and injured home, "and in every like case," said 
 counsel defiantly, " the punishment has been merited 
 
 BY THE SLAIN AND THE COMMUNITY HAS APPLAUDED THE 
 AVENGER'S COURSE, WHILE THE CRIME OF THE AGE HAS 
 
 been lessened." In the great Dilke case in England 
 a distinguished ex-member of Parliament has been 
 driven into exile and disgraced by the verdict of 
 
160 TACT IN COURT 
 
 a jury for a crime of this nature. In a dozen States 
 of our Union marriage laws will be more respected 
 when better executed. We want fewer divorces, we 
 want less outraged families. It needs a few examples 
 of extreme punishment to enforce attention and create 
 respect for family rights in America. If this be 
 balderdash, as stated by the learned prosecutor, give, 
 us more of it! 
 
 Self-defence is not a defence of one's person 
 merely; it is broader, greater, and has more meaning 
 in it. In the words of Governor Crittenden : " What 
 is self-defence? Am I to protect my person merely, 
 to stand by and see my child, my wife, my property, 
 my helpless ones destroyed or taken, and resent not 
 the injury? No, no! The law never was so narrow 
 as that. If I had no greater right than that I'd raise - 
 my own wild hand and take my life and hurl it back 
 in the face of my Maker as a thankless gift!" 
 
 This was said in the Matt Ward case, where Ward 
 merely defended his little brother from a teacher's 
 insult, and Ward was acquitted. 
 
 The Court interrupting — " You should not com- 
 ment on outside verdicts not reported from higher 
 Courts." "Not reported from higher Courts?" said 
 counsel warmly. " I'll tell your Honour why they are 
 not reported! The best ones are reported in circuit 
 Courts. I have searched the records for two hundred 
 years, and there is not a case — no, not one, where the 
 law of self-defence has been used — especially where 
 one has defended an outraged home — that a jury did 
 not promptly acquit the defendant. In the words of 
 the great and gifted Storrs in the Cochran-Hayden 
 case in Wisconsin in 1880, where Cochran shot Judge 
 
THE LAW OP SELF-DEFENCE 161 
 
 Harden for an injury to his wife, Storrs said — " You 
 must not tell what counsel said," repeated Judge 
 Swift. "Well, then, / say, laws are not strong 
 enough, statutes are not broad enough, and never will 
 be, to restrain a man's arm from redressing a wrong 
 where his household has been outraged! " 
 
 This is no more than Judge Ryan of Wisconsin 
 uttered in the Booth case, where a young girl was 
 seduced by an editor. Ryan said, " Had that child 
 been a child of mine, and had he even looked his 
 villainy at my child, I would have brained him as a 
 mad dog, and taken the consequences." The Court 
 and counsel kept up the cross-fire many minutes, till 
 counsel declared that he would stand and argue if it 
 took all summer, and the Court said, " So long as you 
 argue on self-defence, proceed." " You see, gentle- 
 men, how I have been narrowed; but I submit to it, 
 for he is the schoolmaster of the Court." (Laughter.) 
 
 You see how they have shut out the facts; but yet, 
 like daylight through the blinds, they come in at every 
 crevice. They say, " Don't go into this family quarrel 
 part, of this dangerous assault," and yet their second 
 witness tells you that while Beamer had Baker under 
 and pounded him with a loaded cane he kept on 
 repeating the words between the blows r " He has 
 stolen my wife!" "He has broken up my homel" 
 "He has destroyed my business!" "He has ruined 
 my family !" " He has made a prostitute of my wife I" 
 What else could he do to deserve punishment? Let 
 me illustrate : When the gentlemanly burglar called 
 on Oren Scotten at Springwells the other night, the 
 family were fast asleep. It was two o'clock in the 
 morning. The cold steel of a revolver was pressed to 
 
162 TACT IN COURT 
 
 Scotten's temple, and he looked up in the face of a 
 masked man with a dark lantern in one hand and said, 
 " I suppose you want something?" " Yes, get up," 
 said the burglar. He got up. " Fold your hands." 
 He folded his arms meekly. " Show me your money, 
 and no harm will come to you." He hesitated. 
 "Show it!" demanded the burglar. He showed it, 
 and when all was taken, $700 — a bright diamond ring 
 was seen on the wife's finger. " Take it off," 
 demanded the burglar. The wedding ring was taken 
 off by the husband, who went down and showed the 
 gentleman to the door, and remained so under his 
 control that he bade him call again! 
 
 Out in the night went the burglar; back to his 
 home went Scotten. His home was not broken up! 
 His wife and child, his family, were safe, only a little 
 after all was gone! And yet, could he have shot the 
 intruder half-way into the house or half-way out of it, 
 or even if he had met him on the commons and shot 
 him an hour later, the law would justify and excuse 
 the killing. And who will compare the injury of 
 Scotten to the wrongs of Beamer? A home in ruins 
 to a few hundred dollars ! Who would not say 
 "Amen" to the killing of a felon? — and yet here is 
 the felon of felons, the greatest felon of the age, a 
 destroyer of homes, who would go unpunished. • 
 
 Away off in Idaho, where my friend McCulloch, 
 the district attorney, is from — away out beyond the 
 mountains and lava-beds of the far West, they know 
 how to treat hard characters, and when a man becomes 
 too desperate, or when the horse-thieves become too 
 common, they hang up a few to dry in the forests and 
 leave them as a warning to offenders. 
 
THE LAW OP SELF-DEFENCE 163 
 
 Laws are better for it, society is safer; homes 
 are safer, and men sleep easier and more con- 
 tentedly. 
 
 And yet I have hardly reached more than a preface 
 to my argument. Our defence is self-defence. We 
 believe with Blackstone that the law respects human 
 passions. That it becomes lawful sometimes for an 
 injured man to do himself that immediate justice that 
 the case demands, and that he is to be judged by the 
 circumstances as they appeared to him. Laws are 
 not strong enough to prevent it— they never will be — 
 never can be strong enough. And in this case what 
 are the circumstances? A once happy home in ruins; 
 a business broken up ; a wife stolen from her husband ; 
 an armed adversary, face to face with one whom he 
 had ruined. There they are like two armies in battle. 
 There they are in open daylight. To Beamer he was 
 an enemy. To Beamer he was an armed adversary. 
 To Beamer he had committed a crime worse than 
 murder ("he made a prostitute of my wife"). To 
 Beamer he was a dangerous enemy; and as he faced 
 him in the sunlight he saw the fiend who had come 
 into his family. And what did Baker do? Picked up 
 a brick. (The Court : " He put his hand on his hip 
 pocket first." I thank your Honour! (Sensation.) 
 Yes, gentlemen, put his hand on his pocket as if 
 reaching for a revolver ! Beamer said, " Throw it, 
 you coward!" Baker threw it. They advanced each 
 with a raised cane. Baker struck at Beamer; the 
 blow reached his right wrist in being warded off. It 
 broke Baker's cane in two pieces. No doubt of that 
 — Bridge saw a broken cane. Baker says he burned 
 it in a stove. It must have been broken to be so 
 
164 TACT IN COURT 
 
 burned. Beamer strikes Baker over the head a half- 
 dozen blows, repeating his injuries in the ears of 
 his enemy. " He has ruined my business. He has 
 stolen my wife and broken up my home." And they 
 are separated by force, and Baker goes home for 
 six weeks to a sick bed, and Beamer goes to gaol 
 with a lame hand; and I ask you, gentlemen, in 
 the clear light of these facts, has not Baker brought 
 it on himself!" Did he not deserve all he got? 
 Would you have done less? Might you not have 
 done more? You are married men; so am I married, 
 and well married ; my house is my idol, so is yours ; 
 and had Beamer consulted me and told me of his 
 treatment, of his finding this man in his bedroom, I 
 would have said, "Go and load both barrels of a 
 shot-gun, fire one barrel into his body; if it don't 
 finish him, then another; and see that you aim at his 
 body while he is in the act, and don't plead insanity, 
 but say, ' I intended to do it ; to avenge the awful 
 wrong.' " And as heaven is my judge, had one-tenth 
 of this injury been done to me and my home I would 
 have followed such a course, and I would not have 
 pleaded any insanity but self-defence, for laws are not 
 made to punish such offences adequately in any other 
 way. Stolen his wife, broken up his business, ruined 
 his home ! Think of it. And the villain settled in the 
 same city, threatening to Beamer's brother that he 
 would shoot any man who even censured him for it. 
 Has it come to this? Must homes be so ruined while 
 honest men, who live up to the ripe old age of fifty-six 
 years in peace, in order, in industry, and never break 
 a law, shall be hurried off to prison and the real guilty 
 ones go free? Away with such laws. It is not 
 
THE LAW OP SELF-DEFENCE 165 
 
 reason, it is not sense, it is not humane, it is not as 
 you would be judged. 
 
 The time will come too soon when we shall stand 
 for judgment. The books will be opened. (We shall 
 know each other then.) The mists and clouds will be 
 all torn away and we will be judged by One who sees 
 the motives of us all. The books will be opened and 
 you will be asked, " Have you remembered mercy? " 
 If not, then with what judgment you judge you shall 
 be judged, and they that judge without mercy shall be 
 judged without mercy. 
 
 Take this defendant, hand him over if you will to a 
 felon's doom, to a prison ten years — no half-way ver- 
 dict — either Guilty or Not guilty. Let him end his life 
 in honour or dishonour. It will not be long, gentle- 
 men. If you convict him, go and tell it to your wives ; 
 tell over the causes and the result; tell it to the com- 
 munity ; tell it to the Press and the world, and let your 
 portraits adorn the illustrated papers as the first jury 
 in two hundred years that has punished the injured 
 one in a case of self-defence. But that you will not 
 do. You cannot find it in your hearts to convict him. 
 It is not in the evidence. He is not guilty. He has 
 acted all too slow, but yet in self-defence. 
 
 Jury acquitted Beamer in fifteen minutes — that 
 time was spent in wondering why he did not punish 
 the intruder sooner. 
 
166 TACT IN COURT 
 
 LINCOLN'S FIRST MURDER CASE. 
 
 The simplest story of a murder trial is always of 
 interest, and especially so where Ihe case is conducted, 
 on either side, by men with the ability and genius that 
 Abraham Lincoln possessed. 
 
 In the July Century appears the end of a story of a 
 long case, and includes what is vaguely known as 
 Lincoln's first defence in a murder trial. The details 
 need not be repeated. The pith of the story is 
 instructive to lawyers. 
 
 Grayson was charged with shooting Lockwood at a 
 camp meeting, on the evening of August 9, 18 — , and 
 with running away from the scene of the killing, which 
 was witnessed by Sovine. The proof was so strong 
 that, even with an excellent previous character, Gray- 
 son came very near being lynched on two occasions 
 soon after his indictment for murder. 
 
 The mother of the accused, after failing to secure 
 older counsel, finally engaged young Abraham Lincoln, 
 as he was then called, and the trial came on to an 
 early hearing. No objection was made to the jury, 
 and there was no cross-examination of witnesses, save 
 the last and only important one, who swore that he 
 knew the parties, saw the shot fired by Grayson, saw 
 him run away, and picked up the deceased, who died 
 instantly. 
 
 The evidence of guilt and identity was morally cer- 
 tain. The attendance was large, the interest intense. 
 Grayson's mother began to wonder why " Abraham 
 remained silent so long and why he didn't do some- 
 thingl" The people finally rested. The tall lawyer 
 (Lincoln) stood up and eyed the strong witness in 
 
LINCOLN'S FIRST MURDER CASE 167 
 
 silence, without books or notes, and slowly began his 
 defence by these questions : 
 
 " And you were with Lockwood just before and 
 saw the shooting? " 
 
 " Yes." 
 
 " And stood very near to them? " 
 
 " No, about twenty feet away." 
 
 " May it not have been ten feet? " 
 
 " No, -it was twenty feet or more." 
 
 " In the open field? " 
 
 " No ; in the timber." 
 
 "What kind of timber?" 
 
 " Beech timber." 
 
 "Leaves on it are rather thick in August? " 
 
 " Rather." 
 
 " And you think this pistol was the one used? " 
 
 " It looks like it." 
 
 " You could see defendant shoot — see how the 
 barrel hung, and all about it ! " 
 
 " Yes." 
 
 " How near was this to the meeting-place? " 
 
 " Three-quarters of a mile away? " 
 
 " Where were the lights? " 
 
 " Up by the minister's stand." 
 
 " Three-quarters of a mile away? " 
 
 " Yes ; I answered ye twiste." 
 
 " Did you not see a candle there, with Lockwood or 
 Grayson? " 
 
 " No; what would we want a candle for? " 
 
 " How, then, did you see the shooting? " 
 
 " By moonlight! " (defiantly). 
 ■'■*' "You saw this shooting at ten at night — in beech 
 timber, three-quarters of a mile from the lights; saw 
 
168 TACT IN COURT 
 
 the pistol barrel ; saw the man fire ; saw it twenty feet 
 away — saw it all by moonlight? Saw it nearly a mile 
 from the camp lights?" 
 
 " Yes ; I told you so before." 
 
 The interest was now so intense that men leaned 
 forward to catch the smallest syllable. Then the 
 lawyer drew out a blue-covered almanack from his side 
 coat pocket; opened it slowly; offered it in evidence; 
 showed it to the jury and the Court; read from a page 
 with careful deliberation that the moon on that night 
 was unseen, and only rose at one the next morning ! 
 
 Following this climax Mr. Lincoln moved the 
 arrest of the perjured witness as the real murderer, 
 saying, " Nothing but a motive to clear himself could 
 have induced him to swear away so falsely the life of 
 one who never did him harm! " With such deter- 
 mined emphasis did Lincoln present his showing, that 
 the Court ordered Sovine arrested, and under the 
 strain of excitement he broke down and confessed to 
 being the one who fired the fatal shot himself, but 
 denied it was intentional. 
 
 This lesson to lawyers, who may not read ihe 
 whole story, is a good law lecture. It may be added 
 that Lincoln first determined his client was not guilty; 
 and having settled that point, he knew the story was 
 one made up for a purpose, and that purpose he was 
 bound to discover, and did discover in his own 
 original manner. 
 
 As a reader of trials for years, this one presents as 
 keen interest and displays as much sagacity of counsel 
 as any I have found — even Choate or Webster could 
 have done no better; many other trials are more 
 elaborate in detail, many contain passages of wit and 
 
NERVE IN LAW 169 
 
 arguments of rare eloquence — they are lessons from 
 life and full of wisdom — some of masterful logic; yet 
 none are so great or were so ably conducted as to 
 overshadow this simple victory by a young country 
 lawyer, who lived to be the leader of a nation and 
 filled with honour the highest station in the world. 
 
 NERVE IN LAW. 
 
 If every lawyer should express his honest opinion 
 on the one thing lacking in the profession he would 
 answer, "Nerve." It will meet him at the office wilh 
 his ever-ready client who wants a lawsuit and may not 
 have a case, or the defaulter who would skip out and 
 defraud his creditors of their just claim, or one 
 about to let go his rights rather than contest them in 
 Court or office; in suits or settlements in the business 
 of law, whether trials or counsel, nerve is the fine art 
 needed. Within the year an able advocate has won a 
 will-contest reaching into millions, and just as he was 
 about to pick the fruits of his long and earnest effort 
 he was set upon by a couple of blackmailers, and, hud 
 he been less nervy than he was, would have been 
 forced to release a large share of his profits, when his 
 nerve stood by him and he became victorious. In 
 another city a transaction reaching nearly a quarter- 
 million was let go by the unnerving of counsel at a 
 point when the contracts were almost completed, and 
 many thousands of earnest-money were deposited. 
 What a test of nerve power was this ! * As if one 
 seeing a fractious horse .tied to a post and frightened 
 by a band should untie the animal and let him run 
 away, rather than hold him to the post till the band 
 
 12 
 
170 TACT IN COURT 
 
 passed by. We have all seen these cases during the 
 year — seen angry clients throwing away costs for spite, 
 and others throwing away rights that a little more 
 nerve and coolness would have saved. In this is a 
 wise counsel of greatest value. To-day it is a cattle 
 contract, to-morrow a stock company, next week a 
 business block, later on a street-railway project, or a 
 farm to cut up into city lots, or an option in real estate, 
 or criminal to defend, or a damage suit to settle ; nerve 
 is the mettle that a lawyer most should cultivate. As 
 business men are supposed to grow in trade by experi- 
 ence and learn by practice, so age adds new wisdom 
 to the oldest counsel. His books have left out the case 
 that last came to him. Lives, trades, and dealings and 
 conditions are changing. He needs new knowledge. 
 If he halts, the busy procession will file past his office 
 door to another counsel as if they saw the signal 
 written, " Behind the times." The competition is so 
 intense in law to-day, the attorneys are so very numer- 
 ous and their work so exacting, that the fittest and 
 strongest alone succeed. To make a bargain about it, 
 and stand by it, requires both nerve and courage. 
 
 A MODEST LAWYER. 
 
 There is a lesson in the life of Geo. F. Edmunds, 
 now deservedly the leading lawyer before the United 
 States Supreme Court, that should interest all members 
 of the profession. Mr. Edmunds is in the prime of life 
 (near sixty), of medium size, rather slim in build, a 
 plain grey-haired man with a mind at once acute, deep, 
 and penetrating, and a logic incomparable. A native 
 of Richmond, but a resident of Burlington, Vermont, he 
 
A MODEST LAWYER 171 
 
 has reached an exalted position in his profession. He 
 began life as a poor farmer boy, was educated in the 
 common schools with one half-year's course in an aca- 
 demy at Albany; entered the law office of A. B. May- 
 nard at an early age, and later completed his studies 
 with Phelps & Smally; was admitted to practice at 
 twenty-one and early earned distinction in the argu- 
 ment of a Supreme Court case, small in amount, but 
 important in principle. He appeared before the 
 Supreme Court in a homespun suit, with trousers 
 much too short for him, and yet with a skill that 
 attracted the attention of Judge Redfield, who sent for 
 the young man and complimented the effort. He was 
 twice elected to the Legislature and served as Speaker 
 of the House. He then practised law four years with 
 success and was elected to the State Senate, and from 
 there appointed to fill the vacancy caused by the death 
 of United States Senator Foote. To the last position 
 he has been re-elected ever since without opposition. 
 Besides being a senator, he has a large and lucrative 
 law practice. His methods are peculiar. With a 
 terse, clear brief, and few cases cited, he argues orally, 
 beginning with conceded propositions and reaching 
 logical ends. His views were adopted in the great 
 Maine election case, in which he said in effect that 
 where the Constitution contemplated that a voter had 
 a right to cast a ballot for his choice, if a mere mistake 
 occurred in initials of a name, which could not be a 
 mistake of the person, surely the voter should not be 
 defrauded of his rights by an error of the printer. 
 His arguments are largely oral; his citations few and 
 well selected; his conclusions irresistible. Not many 
 months ago he was retained by the House of Lords in 
 
172 TACT IN COUET 
 
 England and called before that august body to ex- 
 pound a principle of American law on heirship. His 
 views were brief and pointed and convincing. The 
 Lords adopted his theory and tendered him a hand- 
 some reception, which he modestly declined, and pro- 
 ceeded at once on his journey. Law is natural to him. 
 Fie is a born lawyer. His practice is high-priced, and 
 not less than $1,000 retainers, with a wide range to 
 charge for time and extent of victory. The lesson of 
 his life to lawyers is this : That one need not start 
 high to reach high; that genius with opportunity may 
 command success; that clearness and brevity are 
 taking in argument; that modesty has promoted 
 Edmunds from the farm-boy lawyer through the Legis- 
 lature to the high rank of a superior counsel of the 
 greatest Court in the world. His whole life has been 
 in a law school, the school of actual experience. 
 
 THE TEACHER'S DEFENCE. 
 
 It is a country school-teacher's trial for murder. 
 The Court-room is packed to witness a trial that 
 always excites a community. It comes into their 
 homes and interests everyone. The facts are best de- 
 veloped in the argument. The time is December, 18S7. 
 The place is Corunna. One hundred scholars are 
 witnesses. The case is strongly represented for the 
 people, who are determined to convict (they have con- 
 victed the defendant in their hearts already). Notice 
 the answer of the very first juror sworn, to the question, 
 " Have you formed or expressed an opinion in this 
 case?" "Yes, sir; I have — I have said I am op- 
 posed to the use of firearms in our public schools." 
 
THE TEACHER'S DEFENCE 173 
 
 (Sensation.) This reflects the average bias. A jury is 
 obtained and a separation of witnesses ordered — one 
 brought in at a time. Before any evidence is given, 
 both the people and defendant's counsel carefully state 
 their case. 
 
 The people opened their case by reading the 
 charge, that the defendant did, on December 8, 1886, 
 at Henderson, wilfully, intentionally, and feloniously 
 kill Thomas Morrison, &c, and promised to show that 
 Joscelyn had told the children, who wished to do so, to 
 go out at recess, as he was about to punish Calvin 
 Morrison, a thirteen-year-old son of deceased. He pic- 
 tured the whipping, the shooting, the vast array of 
 children to prove it, the pain and agony of Morrison, 
 the kneeling wife at his side, fanning him till his death ; 
 and closed by saying he presumed the broken words 
 of deceased in his agony would be used to excuse 
 defendant. 
 
 The proof was strong on both sides. A single inci- 
 dent reveals a discrepancy. A scholar who saw the 
 shooting swore that the teacher walked to his desk, 
 took out his revolver, put it in his coat-pocket on the 
 front right-hand side, from which he drew it when he 
 fired at Morrison. This looked premeditated. On 
 cross-examination it appeared defendant had no such 
 pocket in the coat wotn on that occasion. 
 
 Every available inch of space in the Court-room 
 was occupied, every window filled with faces of those 
 who stood twenty deep at each possible point of hear- 
 ing, while beyond surged crowds of those unable to 
 hear, but impatiently awaiting the result. Indeed, 
 before the defendant's counsel had half finished his 
 introductory address, whispers were heard on every 
 
174 TACT IN COUET 
 
 side, " He's going to win the case." It was certainly 
 one of the most intensely interesting and dramatic trials 
 that have taken place in many years. 
 
 The defence said : We are assembled, gentlemen, to 
 investigate an accident that caused a human life to go 
 out under circumstances that excite our interest and 
 compel our attention. It appeared early to you that 
 my friend told you but a portion of this strange story. 
 Let me tell more of it, as proven in evidence. Alfred 
 Joscelyn, the defendant, is twenty-nine years old, 
 born in New York State, educated, refined, of indus- 
 trious habits, never before accused of any offence — 
 indeed of such a mild and quiet disposition that he 
 couldn't, if he would, wilfully injure anyone. He was 
 a sash and door maker, and worked at his father's 
 trade until a year and a half ago, when his left thumb 
 was torn off in a machine, and he became a cripple in 
 that hand. The effect was a serious shock to his 
 system. He grew sleepless, nervous, lost flesh, and 
 suffered from blood-poisoning. The wound was a 
 half-year in healing, and when he was able to do 
 light work he engaged to teach the village school* at 
 Henderson, where he taught two terms. 
 
 Owing to some jealousy on account of his brother 
 being a director, who helped hire him, but mainly 
 because of its being a hard district, trouble com- 
 menced early in the fall of '86, and the children took 
 sides against the teacher. • 
 
 It is morning and at recess. Calvin Morrison, an 
 unruly boy, is about to be punished. He was a 
 fighter, and could swear in all the modern oaths of 
 the season. He would run away, and tell the teacher 
 he would be d d if he would come in. The big 
 
THE TEACHER'S DEFENCE 175 
 
 boys kughed. It was very funny to them. He 
 called the boy to punish him. The boy fought back, 
 and was conquered. In the tussle a whip was broken 
 over the boy's arm. Another was snatched from the 
 teacher's hand by the boy, and recoiled on his nose, 
 and it bled. The boy rubbed the blood over one side 
 of his face and smeared it. School was called again, 
 and suddenly in came Morrison, the boy's father, a 
 large man of one hundred and ninety pounds; 
 Joscelyn weighed one hundred and twenty-two. One 
 was a slender cripple ; one, a giant in strength ! 
 Morrison was angry. Throwing his hat on the desk, 
 he muttered : 
 
 " I want to know- what in hell you're whipping my 
 boy for!" starting toward the teacher, who said, " For 
 disobeying the rules and running away." 
 
 " Didn't you lick him for that yesterday? " 
 
 "No!" 
 
 " Well, if you ever lay your hand on him again, 
 damn you! I'll pound you into the ground!" 
 
 He turns to go. He sees his boy's face. He turns 
 to Joscelyn and says, " Damn you, I've a notion to 
 do it now!" 
 
 He rushes to the desk. Joscelyn draws his 
 revolver from his hip-pocket and says : " Hold on, 
 Mr. Morrison! You lay yourself liable for disturbing 
 a school." 
 
 On rushes Morrison to the roslrum. He clinches 
 the teacher with his right hand thrown over his neck, 
 and reaches with his left hand for the revolver now 
 held off to the right at arm's length. The struggle is 
 desperate. In the extreme moment of excitement and 
 peril, Nature or instinct prompts the thought to 
 
176 TACT IN COURT 
 
 Jnscelyn, " God! Must I shoot? Must I kill him!" 
 The light goes out in his eyes. The room whirls. 
 He loses his control. He knows not what has hap- 
 pened — whether an accident or a pull at the hammer 
 has let go the dangerous bullet! Morrison is hit in 
 the abdomen. The ball passes through the left lapel 
 of Joscelyn's coat; it is buried in Morrison's bowels; 
 but the strong man struggles, swearing, "Let go of 
 it! Let go of it!" In a moment he wilts and 
 weakens, and mutters : " There ! I can't hurt you 
 now! You've shot me!" still lying on the teacher. 
 
 Joscelyn says, " Get up, and maybe I can help 
 you." 
 
 He cannot get up. The small man rolls the large 
 one off; examines the wound; sees the pale deathly 
 look; sends for a doctor — none can be found; goes 
 for a team, hurries to Owosso, sends a doctor; gives 
 himself up, is bailed, is here on trial for something 
 you, or you, would have done in his place — for 
 something he could not help doing; for something 
 Morrison brought upon himself; for something that 
 laws cannot control, for the law of Nature prompts it 
 in all men and all animals. It is inbred and inborn. 
 The law of ages sanctions it. Our own State 
 sanctions it, and by three separate decisions has said : 
 " The man when hard pressed by one of superior 
 strength and violent temper is to act under the cir- 
 cumstances as they appear to him. He is not obliged 
 to even call upon bystanders for help, but may defend 
 himself even to the taking of life, and it will be excus- 
 able homicide. He may or may not be in actual 
 serious danger, but if he believes that he is, he may 
 act, and he is not expected to draw any very fine dis- 
 
THE TEACHER'S DEFENCE 177 
 
 Unctions when he believes his life is in peril, or his 
 body is in danger of serious harm." 
 
 Such is the law of our State beyond all question ; 
 and such is the law of reason, of instinct, and Nature. 
 
 But we have it in evidence. We have shown you 
 his father, who knew of this terrible accident by the 
 machine, of his peculiar dread and fear of danger; 
 we called his brother and proved the warning to the 
 young man as to Morrison's quarrelsome disposition — 
 a man who was hard to handle — who had five fights a 
 year on an average. We called in the neighbours 
 who have seen him break in the head of a sugar- 
 barrel with his fist; who have seen him kick an 
 old man till he was senseless; who knew him to be 
 violent and dangerous, — to deny this powerful army of 
 trained scholars, who ran away confused and excited; 
 who claim the teacher fired twice; who heard the 
 breaking desk as it was wrenched from the floor ; who 
 saw no smoke ; who found a hole an inch square in 
 the plaster, but no bullet; who admit the anger, the 
 swearing, and the clinching, but saw no need of using 
 a revolver. 
 
 In his schoolroom Joscelyn was in his home ! Who 
 but he should guard and control it? Who but he 
 should ward off invaders? Who but he should enforce 
 order? His home was invaded, and he acted under 
 the law of self-defence, that in our State makes him 
 the judge of his own danger and permits him when 
 so assaulted to repel the assault, even to the taking 
 of life, and defines such an act as excusable homicide. 
 It is clear, then, by the evidence of both sides, 
 that there was an occasion for self-defence, which 
 Cicero says is " A law that we are not trained in, but 
 
178 TACT IN COURT 
 
 which is implanted in us; that if our life is in danger 
 by robbers or enemies, every means of securing safety 
 is honourable. . . . Reason has taught this law to 
 learned men; necessity, to barbarians; custom, to all 
 nations; and Nature, to wild beasts." 
 
 Besides this, gentlemen, I assert that laws are not 
 strong enough, statutes are not broad enough, and 
 never can be created by man, to restrain his own arm 
 from warding off danger when his life is in peril! As 
 it appeared to him, you are to judge him! He was 
 almost alone at recess. The boys were out. He 
 was set upon and frightened. He must act, and act 
 instantly. He must contend with a giant — with an 
 intruder without warning. 
 
 He had been enforcing the lesson that the wav to 
 stop crime is to stop raising criminals ! 
 
 And think of the lesson you would teach, if you 
 convicted him for standing at his post in a time of 
 danger! You would strike a blow at our common- 
 school system that is a centre column of our 
 civilisation. 
 
 I have said, gentlemen, that bad boys make bad 
 men. Let me illustrate : At a reunion in the old 
 schoolhouse where I was trained as a boy, my first 
 teacher, Albert Kenyon, spoke like this : 
 
 " For nine years I taught this Union school — often 
 with few books and many scholars in an early day — 
 always with young men and women older and larger 
 than myself. Many were punished, for it was more 
 the custom then than now. Often have I been 
 threatened secretly that they would ' get even with the 
 teacher some day '—(meaning when big enough, I sup- 
 
THE TEACHER'S DEFENCE 179 
 
 pose) — but no one ever struck back. Scholars, I 
 have watched the progress of these boys and girls as 
 they grew to manhood and to womanhood ; many have 
 outgrown their teacher in size and ability to master 
 him ; I have seen the studious children of the poor — 
 little boys with patches on their trousers, and little 
 girls with blue dress of calico — grow up to men and 
 women, and far outstrip, and stand head and shoulders 
 over their more favoured fellows in eminence; and I 
 have concluded that good boys make good men, and 
 good girls make good women. And I tell you with 
 pain and with pride that one — only one — of my 
 scholars turned out badly; he was unruly, ran away, 
 went to the bad, and ended in prison — brought his 
 father's grey hairs with sorrow to the grave." 
 
 Ah, gentlemen, what a story this is, and how true 
 after all ! Have we not learned it by bitter experience 
 that bad boys make bad men? And do we not know 
 that good boys make good men? 
 
 Look about you! Look at this Court-house and 
 see this array of Henderson boys and girls, urged on 
 by their parents to fight a school-teacher — urged on 
 to sustain this Calvin Morrison, a boy of only thirteen 
 summers, whose curly brow wears the scowl of crime, 
 who swears and damns his teacher, and fights back 
 and brings his own father to the grave! Great 
 Heavens! has it come to this! Has the sense of 
 decency sunk so low that a community can take such 
 sides and set such an atrocious example? (Great 
 sensation in the Court room.) " And the king walked 
 out and bared his head weeping, saying, Absalom, 
 my son, Absalom, my son! 0, my son, would God 
 had I died for thee ! Absalom, my son, my son ! " 
 
180 TACT IN COURT 
 
 I must leave you, never to speak to you perhaps 
 till we shall all stand for judgment. We will know 
 each other then, our masks will all be torn away. I 
 ask you to deal fairly, humanely, mercifully with this 
 young man! I ask you to uphold the cause that he 
 upheld! I ask you to set an example to dangerous 
 men and check the raising of bad boys in our country ! 
 
 To him, imprisonment would be more than death. 
 Death in honour, at any age, is not to be so much 
 dreaded as a life of dishonour. "Whether a wall or a 
 door, death undoubtedly opens into a better life. The 
 heavens are full of worlds, by the side of which ours 
 is a speck." But to walk up and down a narrow cell 
 for years; to come out at last, if at all, broken in 
 body and mind, and say, as the man did after six 
 years of prison life at Auburn, "How sweet the air 
 smells outside to-day ! I never knew the sunshine was 
 so good before!" 
 
 But it will not happen! It cannot happen! 
 
 The last words of Morrison told, as he went to 
 meet his God, are said to you. It is the death scene. 
 I call him from the clouds to tell you now. Here is 
 Morrison — the dying man — in the presence of two 
 ministers and his family, aware of his approaching 
 death, after he had twice been prayed with, asking : 
 
 " Where is Joscelyn ! " 
 
 " He has gone for the doctor, to Owosso." 
 
 "What! — gone for a doctor for me?" 
 
 " Yes." 
 
 "Is there no hope for me?" 
 
 " Not in this world," said the minister. 
 
 " Then tell Joscelyn I ask his forgiveness. Ho 
 will forgive me. I had no business there!" And 
 
CONCLUSION 181 
 
 next to the name of the Saviour, the name of Joscelyn 
 and his forgiveness was the last thought of the dying 
 man Morrison. 
 
 Shall we say any more, gentlemen? "Where is 
 Joscelyn? I want to ask his forgiveness. I had no 
 business there!" — going to his home beyond the stars; 
 muttering the self-condemning words, in effect, " He 
 is innocent! " 
 
 He is innocent! May God help you to give him 
 a quick deliverance! 
 
 ***** 
 
 The jury said, "Not guilty!" 
 
 CONCLUSION. 
 
 1. Look at the profit side of the ledger; money is 
 handy in law business. 
 
 2. Rely on a personal study of cases; a few, well 
 sorted, are better than many of remote bearing. 
 
 3. Bring fewer suits and settle more, even by split- 
 ting differences; but charge for it. 
 
 4. Counsel less with clients and more with 
 witnesses : the bias of the one overreaches ; the 
 timidity of the other falls short of truth. 
 
 5. Cross-examine less with honest witnesses; they 
 tell too much and misplace it so recklessly. 
 
 6. Claim not too much perfection in clients; the 
 jury know human nature is ugly; they will be jealous 
 of half-angels in lawsuits. 
 
 7. Demand less and be believed, rather than claim 
 loo much and let the jury halve it; they may give 
 the big half to your adversary. 
 
182 TACT IN COURT 
 
 8. Use others as you hope to be used by them ; the 
 chances of gain and loss are in favour of the gain side 
 by this method, and a good name will be a fortune 
 made easy. 
 
 9. Carry your heart into Court — in everything; do 
 nothing heedlessly; juries are more and more in 
 sympathy with fair play every year, and no theory 
 will stand testing like honesty. 
 
 10. Don't forget the boy lawyers, struggling up 
 the steep hill from college to Webster's top storey. 
 It's a long way up now. It is better to cheer than 
 to discourage. Cheer them, and they will brighten 
 your name hereafter.