ILLUSTRATIONS 
 
 VOCACY. 
 
 HARRIS. 
 
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ILLUSTRATIONS IN ADVOCACY. 
 
 EXAMPLES OF CONDUCTING THE PROSE- 
 CUTION AND DEFENSE OF CIVIL 
 AND CRIMINAL CASES. 
 
 INCLUDING 
 
 METHODS OF CROSS-EXAMINATION. 
 
 ALSO 
 
 CICERO'S DEFENSE OF ROSCIUS FOR MUR- 
 DER, AND THE STORY OF THE TICH- 
 BORNE TRIAL RE-TOLD. 
 
 BY 
 
 BICHABD HARRIS, Esq., 
 
 Author of "Hints on Advocacy." 
 
 First American from the First London Edition. 
 
 REVISED AND ADAPTED TO THE AMERICAN PRACTICE 
 BY AN AMERICAN LAWYER. 
 
 ST. LOUIS, MO.: 
 WILLIAM H. STEVEI^SOI^, 
 
 la.W PUBLISHEB AND PUBLISHBB OF TUB 
 
 CENTBAL LAW JOUBN,\L. ' > 
 
 1885. 
 
COPYKIGHT, 1885, 
 < BY 
 
 William H. Stbvbnson. 
 
PREFACE. 
 
 As Experience is the severest school, so mistakes 
 are its hardest lessons. My business is not to teach, 
 but to give the result of my observations, and my 
 observations have been principally directed to the 
 leading men (nominally) in the profession. Were 
 I ever so great a teacher I could never hope to teach 
 my leaders, nor could I expect them to condescend 
 to be taught. But if I could not induce them to be 
 learners, it is no reason why I should not compel them 
 td be teachers. Many of them are so full of instruc- 
 tion, to say nothing of amusement, that it would be 
 a thousand pities to let it flow away, without so much 
 as sprinkling the thirsty inquirers for knowledge, who 
 sit watchful and gasping on the banks of this boun- 
 tiful stream 1 
 
 The world is full of teachers — do not let it be 
 supposed that I wish to add to their number — ^let me 
 rather be the entertaining companion of an idle hour. 
 By this means my book will not be confined to the 
 limited number of aspirants to Forensic honors, but 
 will extend its circulation to the world of readers, 
 who sometimes require a change from the tideless 
 deep of philosophy, or the gushing rivulets of 
 romance. 
 
 KICHARD HARKIS. 
 Lamb Building, Temple, 
 
 London, July 1st, 1884. 
 
TABLE OF CONTENTS. 
 
 CHAPTEE I.— Introduction. 
 
 CHAPTER n.— In Actions for Breach of Promise of 
 ■ Marriage, - - - 1 
 
 CHAPTER ni.— In Actions on Covenants in BiUs of 
 
 Sale, - - - 22 
 
 CHAPTER IV.— In Cases of Recovery of Stolen Goods 
 
 and How to Challenge Jurors, 40 
 
 CHAPTER "V. — In Actions against Railroad Companies 
 
 for Negligence, - 61 
 
 CHAPTER VI.— In Actions against Street Railway Com- 
 panies, - - 72 
 
 CHAPTER Vn.— In Actions against Directors of Cor- 
 porations, - - - 85 
 
 CHAPTER Vin. — In Actions against Insurance Com- 
 panies, - - 98 
 
 CHAPTER EX.— In Actions on Contracts, - 111 
 
 CHAPTER X.— In Murder Trials, - •■ 122 
 
 CHAPTER XI.— In cases of Robbery, - - 136 
 
 CHAPTER XII.— Illustrations of a Man Conducting His 
 
 Own Case, - 144 
 
 CHAPTER Xni.— Peeping into a Juryman's Mind, - 161 
 
 CHAPTER XIV.— Several Modes of Cross-Examinatiou, 163 
 
 CHAPTER XV.— Cicero's Defense of Roscius for Murder, 181 
 
 CHAPTER XVI.— The Story of the Tichborne Claimant, 196 
 
 CHAPTER XVH. — Mr. Hawkins' Oross-Bxamination 
 
 in the Tichborne Case, - - - 244 
 
ILLUSTRATIONS IN ADVOCACY. 
 
 CHAPTER I. 
 
 PRELIMINAEY. 
 
 In writing these illustrations I have endeavored 
 to effect three objects: — first, to give the young 
 advocate some warning of the dangers that lurls in 
 his path, without alarming him ; secondly, to indi- 
 cate the means of escape, without involving an 
 inglorious retreat; and, thirdly, to entertain him on 
 his journey, without frivolity. 
 
 In surveying a wide expanse of country we 
 obtain glimpses of beauties as well as blemishes; 
 but the beauties are not always to be courted, nor 
 the blemishes to be avoided. In advocacy, I 
 observe rather its.mistakes than its perfections. The 
 
ii PRELIMINAEY. 
 
 former you may fix as landmarks to guide your 
 course; the latter you can, scarcely hope to appro- 
 priate as possessions. Moreover, the blunders are 
 common property, which everyone has a right to deal 
 with as he pleases. Perfections are the inheritance 
 and birthright of the few. We may toil on 
 towards perfection, and even approach its enchanting 
 confines; but the way is rugged and wild, strewn 
 with the errors of those who have preceded us, and 
 dangerously near the treacherous quagmires, towards 
 which the spectral dasizle of cross-examination, 
 lures us to destruction. 
 
 If I presumed to set up an adviser of reck- 
 less youth, I should say seek only to avoid blun- 
 ders; take no thought for perfections, they will 
 take care of themselves ; they are not necessary to 
 your existence ; and even, if they should stimulate 
 your ambition, they should never divert your atten- 
 tion from its duty. Labor not to be rich in dis- 
 play, but to be competent in your homely 
 requirements. 
 
 Looking around, then, from our little hillock of 
 observation ; and, permitting . the eye to rove 
 unchecked over the vast field before us, we perceive 
 that many persons regard advocacy as a rough and 
 tumble Scramble, and not as a delightful and fas- 
 cinating Art; as a Game', boisterous and rude; in 
 which you are supposed to pick up what you can ; 
 as a Football match ; in which the Cause is kicked 
 about, amidst much unnecessary confusion, from 
 pillar to post, from hedge to ditch; where nobody's 
 
PRELIMINARY. HI 
 
 shins are spared and no one's susceptibilities 
 regarded. Advocacy is not this ; it is more a matter 
 of nice calculation and foresight, where one move 
 may affect many; where the object of the mover is 
 not always visible, till its success is assured; and 
 where your probable move is calculated upon the 
 possibilities of your opponent's. 
 
 No one can go through the Courts without seeing 
 that cross-examination often proceeds without 
 method, order or system ; as though it were a hap- 
 hazard kind of business that has to be done 
 mechanically, as the officer administers the oath to 
 the jury. You may see everyday advocates cross-ex- 
 amine as though their object were to, develop, not 
 their own case, but their opponent's. They ask 
 questions which the other side cannot, or dare not, 
 ask; and, instead of breaking down their oppo- 
 ijent's case, they build it up in the strongest possi- 
 ble manner, as though they had been retained on the 
 other side. Nor is this unskillful mode of proceed- 
 ing by any means confined to juniors. 
 
 I daresay everybody thinks he could "do a breach 
 of promise of marriage ; ' ' and wishes he only had 
 the opportunity of "bringing himself out" with 
 one. It looks s.o remarkably easy, and is so full of 
 excitement and fun ! Fancy reading the love letters ! 
 So, anybody could drive a locomotive, in the sense 
 of pulling the lever and setting the machine in 
 motion. But what if you don't understand the gra- 
 dients of the line, or the signals? What if you 
 don't know how to regulate pace and put on and 
 
iv PKELIMINAEY. 
 
 ' shut off the steam? and how to apply the brake 
 when necessary? Where, I wonder, will your pas- 
 sengers be, should a goods train or an excursion be 
 a trifle late? Why, you will come into collision 
 with the judge and jury before you can sound your 
 whistle. Advocacy is not quite pulling a handle 
 and going ahead. I make these observations, 
 because I intend to take, as my first illustration, an 
 action for Breach of Promise of Marriage; and, 
 without attributing blame to anyone except the 
 client, I intend to show how the defence in a breach 
 of promise may collapse from want of proper treat- 
 ment, even with the tender nurturing of an expe- 
 rienced nurse. The course of advocacy does not 
 always run smooth. For the sake of my illustration 
 the case must be one, where, albeit the lady was 
 23retty and the promise broken; no substantial dam- 
 ages, under the circumstances, could have been 
 secured without some untoward event. There might 
 have been a farthing or a withdrawal of a juror. I 
 have chosen a curate of High Church proclivities, as 
 the defendant, because it will make the case more 
 interesting, and lend an additional charm to the fas- 
 cinating scene. It is not often we, get a clergyman 
 to play the part of defendant in such a case; but, 
 when we do, the excitement becomes intense and 
 the action religiously picturesque. 
 
ILLUSTRATIONS IN iDYOOAOY. 
 
 CHAPTER II. 
 
 IN ACTIONS FOR BREACH OF PROMISE OF MARRIAGE. 
 
 From a somewhat careful obfBervation, I have 
 reluctantly come to the conclusion that in five cases 
 out of six I would back the advocate and not the 
 case. This may sound rather like sporting phrase- 
 ology, but it is not the less expressive or true on 
 that account. I would not compare the ordinary 
 advocate to the great jockey who, as a rule, gets the 
 best "mounts," for the ordinary advocate cannot 
 always choose his mounts, and often gets put on a 
 rank outsider. Nevertheless, it is the advocate 
 after all that I would put my money on. An utter- 
 
2 ILLUSTRATIONS IN ADVOCACY. 
 
 ly bad case is good for a young counsel, but a 
 great one will hardly ever entertain it. He picks 
 the cases he will conduct, and likes something that 
 "has a leg to stand on," something that will "go." 
 
 His chief power, when he is compelled to fight a 
 bad case, lies in attack, and if he can break down 
 the good cause of his opponent he is a long way on 
 the road to establishing his own. Suppose then we 
 start with an interesting action for breach of prom- 
 ise of marriage. A good advocate will almost win 
 a case of this kind before he begins, while an 
 indifferent one will sometimes lose it even if the jury 
 give him a verdict, for in aU probability the dam- 
 ages will be so small that his client will be left in 
 debt to his solicitor for costs. 
 
 There is no more popular action than that for 
 breach of promise of marriage ; none more distaste- 
 ful to a judge or interesting to a jury, and I trust it 
 will never be abolished, because it at least acts as a 
 check to artless and fickle prowlers after beauty, 
 who make a mock at the feelings of the too trustful 
 and confiding fair one, whose chief prospect in life 
 is a happy marriage. Abused this form of action 
 unquestionably is, and so is every other form ; but 
 it has mainly been brought into contempt by the 
 ridiculous handling which it has undergone by 
 unskillful advocates. In a business-like manner it is 
 seldom managed. Sometimes counsel think it an 
 occasion for humor ; but if it were, how many 
 advocates are there who possess this quality ? "What 
 humor is there in the ordinary speeches that too 
 
BREACH or PROMISE OF MARRIAGE. ^ 3 
 
 often transform the luckless plaintiff into a 
 laughing stock before ever she comes into the 
 witness box? What of such an observation as 
 this: — 
 
 "Gentlemen, it has been well said that the course 
 of true love never did run smooth." There is 
 nothing humorous in the saying, yet it provokes a 
 laugh ! And why ? Because everybody knows that 
 the learned gentleman is about to lay bare some of 
 the tenderest feelings of the human heart, and to 
 wound its most delicate susceptibilities — he is about 
 to dress up pure sentiment in the raiment of 
 unseemly language,and to present a tawdry picture of 
 a living passion. It is the forseen incongruity that 
 provokes ^ smile, and not the humor of the coun- 
 sel. The same laughter is produced when he 
 attempts the sentimental. He unconsciously, and in 
 a mild and shadowy form, imitates Sergeant Buzfuz. 
 He is Buzfuz without his power. He does not reach 
 the hearts of the jury, but unconsciously provokes 
 their sense of the ridiculous: — "Gentlemen, what 
 money can compensate for injured feelings, for 
 blighted hopes, for blasted prospects, for the loss of 
 all that happiness that she fondly believed was in 
 store for her ? You cannot place her in the position 
 she once occupied with her heart at her own dis- 
 posal, for that heart is already given away,although 
 given to one who is unworthy of it ; but you can do 
 this, gentleman, you can give her such compensation 
 as you think her entitled to, and you can punish this 
 man in the only way in which he can be punished. 
 
4 ILLUSTRATIONS IN ADVOCACY. 
 
 and that is by making him pay." It comes to this : 
 "How much for this heart, gentlemen?" 
 
 That is an eloquent speech, truly ; I have heard 
 it scores of times, but it begets no sympathy^t 
 brings no damages. If damages are obtained they 
 are obtained by the facts and not by the speech 
 which generally reduces them. Moreover, it is an 
 incorrect mode of putting the case, as' the judge will 
 by and by point out. Punishment is not the object 
 nor intention of the action for breach of promise of 
 marriage. Punishment is inflicted for a crime or mis- 
 demeanor. A breach of x promise is neither the one 
 nor the other. And although the advocate proba- 
 bly intended his remark to be figurative, the judge 
 will so strip it of. its figurativeness that it will ap- 
 pear as a naked untruth at last, or worse, as a legal 
 deformity. "The measure of damages," the judg* 
 will say, "is what the plaintiff has lost by the non-- 
 performance of the contract, and anything you may 
 award as compensation for injured feelings. N<^ 
 punishment to the defendant.' ' Cases are too fre- 
 quently opened as the boy opened the bellows to 
 see where the wind came from. 
 
 With these prefatory observations I will intro- 
 duce the reader to the court where this exciting 
 action is about to take place. 
 
 I observe that there has been a desire to settle, so 
 as to prevent the scandal which must arise from the 
 proceedings being gone into ; and no wonder, for the 
 whole country will read the report of this ecclesias- 
 
BREACH OP PEOMISE OF MAKEIAGE. 
 
 tical romance. The action is brought by a very 
 interesting and strong-minded lady against an inter- 
 esting High Church curate. Some talk there has 
 been of a settlement to this effect, that there shall 
 be no damages and each party pay his owji costs. 
 But a breach of promise is not repaired like that. 
 The case looks as neat and capable of winning as 
 beauty ever is ; so all overtures of this kind are 
 scornfully rejected. The parties might have 
 arranged matters before a penny had been spent in 
 litigation, if the fair promisee had been so minded. 
 But so minded she was not, and is not disposed to 
 haul down the flag when victory is waiting her. 
 High Church, therefore, looks contemptuously down 
 from its frowning height and waits result. 
 
 It is a great satisfaction to the eager public who 
 have come so far to see the conflict. People came 
 from all directions like the throngs who went to 
 witness the tournament at Ashby-de-la-Zouch in the 
 olden days. Every inch of court was filled up. 
 Rosy-cheeked country lasses beamed with excite- 
 ment and modesty. Fair country ladies pressed up 
 to his Lordship's chair. His Lordship peeped out 
 from the centre of a living radiant bouquet. It was 
 a pity that the young curate sat in court, for he was 
 the centre of at least four hundred yearning eyes. 
 He would hardly have been more attractive in his 
 vestments. The dear young things quite gloated on 
 him. What a sweet little suppressed titter and rus- 
 tle of expectation there is in the galleries ! You 
 can almost hear the beating of their tender hearts. 
 
6 ILLUSTRATIONS IN ADVOCACy. 
 
 as the well-dressed crowd is speculating upon the 
 interesting particulars that will be revealed of curate 
 life and curate love, and wondering whether any- 
 thing in the shape of scandal will be disclosed. We 
 may even find out, think the male portion of the 
 audience, what is that mystic religious influence 
 which makes the curate so attractive to female minds 
 and so penetrative to female hearts. 
 
 I can promise the eager crowd that they will find 
 out nothing of this from the opening of the case, or 
 from the examination-in-chief ; and the most that 
 will ever be learned from those sources of inform- 
 ation, unless I greatly mistake the advocates, is 
 that if you want to catch a curate you must warm 
 his feet, that is, begin with the slippers. I do not 
 predict that this is how the counsel will open the 
 case. He was far too shrewd an advocate to make 
 a clumsy jest of a serious contract. Contract or no 
 contract was the first point. The pleadings said the 
 promise was conditional, and the condition had not 
 been fulfilled. The condition set out was that the 
 curate would not marry until he was in a position 
 to do so. The position aimed at was a snug, com- 
 fortable living. So there was business to be done 
 in this opening ; and the business was to show fulfill- 
 ment of the condition, or waiver of it by the defend- 
 ant, or a subsequent unconditional contract. To the 
 latter part mainly the counsel's efforts were directed, 
 although, by means of an interesting correspond- 
 ence, they endeavored to establish not only this 
 point but the waiver. So you see there was some- 
 
BREACH OP PROMISE OF MARRIAGE. 7 
 
 thing of art here. The one point held in reserve as 
 the decisive trump card, not to be thrown away or 
 played too soon; and another card or two, likewise 
 held well in hand, capable of taking tricks. A good 
 hand it certainly is, and might be thrown away very 
 easily. But not by Mr. Longfellow, the plaintiff's 
 counsel. Bless you, he knew the value of his 
 opponent's cards by one or two inadvertent obser- 
 vations. 
 
 "Not necessary," says High Church Counsel, "to 
 read all the letters." 
 
 That immediately raises the suspicion that he is 
 afraid of them. They are certainly not in his 
 favor, and therefore it is best to-see every page of 
 this delightful correspondence. Every letter must 
 be read after this ; there may be a waiver in some 
 and a fresh promise in others. Very few sensible 
 men are afraid of ^^oste nowadays, so there is some- 
 thing more than a suspicion that in the mind of the 
 defendant there is substance in the letters objected 
 to. First point, reader, which "having found make 
 a note of." 
 
 It was not a sentimental opening. Sentiment is 
 generally out of place in the construction of a con- 
 tract, so the learned counsel postpones sentiment, 
 and deals at present with hard concrete facts. It 
 will be time enough to touch up the feelings of the 
 jury when he replies. You may sometimes advan- 
 tageously excite the compassion of a jury in your 
 opening ; but you will not be wise to do so if there 
 are to be many witnesses and a number of letters 
 
8 ILLUSTKATIONS IN ADVOCACY.. 
 
 submitted to their judgment. Let us have the 
 business first, and if that can be satisfactorily set- 
 tled, the time may come when sentiment may be 
 invoked as a powerful auxiliary to increase the 
 damages. 
 
 Let the facts speak. If they are ambiguous you 
 have argument; if they are clear you want none. 
 When proved you have your measure of damages 
 to consider, and then will be the time to estimate 
 the conduct of the defendant, the position of the 
 plaintiff, and the injury to her feelings, all which 
 topics must be handled without maudlin sentiment- 
 ality or exaggeration. Manhood must prevail. 
 
 So Mr. Longfellow, Q. C,, opened the case in a 
 very business-like, unromantic, and common-place 
 manner, much the same as he would open a case 
 for damages for non-delivery of goods. What mat- 
 tered that the goods were a curate ? There was the 
 promise and there was the non-delivery. It was 
 enough, as will be seen by the progress of the case, 
 and yet it was but a little, as was shown by the evi- 
 dence. If you promise you must perform, or — pay. 
 The defendant promised a curate, and did not 
 deliver him. That's the simple case. 
 
 I am not going to write the tittle- tattle of the 
 trial for the amusement of the lay reader. I leave 
 that to the newspapers, and content myself with 
 giving the real points of the case for the informa- 
 tion of the advocate, with such extras, or, as the 
 Americans would say, fixings, as may be necessary 
 
BEEACH OF PROMISE OF MAKEIAGB. 9 
 
 to enable the general reader to appreciate the cir- 
 cumstances. 
 
 There was an absence of all that flimsy jocularity 
 in the opening, which so often damages a plaintiff's 
 case, and there was no attempt at ridiculous pathos. 
 The injured feelings were left in the background 
 like an ambuscade, ready at the right moment to 
 spring out and deliver a deadly fire just when it was, 
 the least expected; no concealment of facts by 
 maudlin sentimentality, but the sentimentality left 
 to be discovered by the facts. If your facts can do 
 this you need not, if they cannot you cannot. 
 
 The plaintiff was as prepossessing in appearance 
 as any plaintiff need be ; but I should say she was a 
 lady of strong will and considerable mental capacity 
 — far to heavily freighted, one would think, for the 
 wife of a curate — more adapted, perhaps, for the 
 consort of a bishop. Her capacity for letter-writ- 
 ing was known by its fruits, of which there was an 
 abundant harvest. How the love-making began 
 need not be written. Everybody knows that with 
 the Church it must begin humbly with the slippers . 
 It is a malady, as young ladies are well aware by 
 unmistakeable diagnostics, which quickly develops, 
 and when it reaches the heart the patient is gone. 
 There was plenty of talk, you may be sure, in the 
 progress of this love-making, about cassocks, stales, 
 albs, altar-f rentals, chasubles, and the rest of the 
 gaudy ecclesiastical millinery so dear to the female 
 heart; and there was much interesting evidence of 
 endearments that sometimes spring from the sweet 
 
10 ILLUSTRATIONS IN ADTOCACT. 
 
 harmony of souls in a state of grace, through all of 
 which sweet Love threaded her silent course, all 
 unobserved and unobtrusive, gently spinning her 
 mystic toils in quiet strength around the heart of the 
 beautiful curate. 
 
 The story came out well in the examination-in- 
 chief — there was not a gap discoverable anywhere. 
 It was like a charming piece of ecclesiastical em- 
 broidery where the pattern ig graceful and complete 
 and you see the golden thread everywhere in its 
 simple and tasteful beauty. Still, there was an im- 
 pression throughout the Court that the superior 
 mind was in the witness-box, and the weaker under 
 the counsel for the defence, and that the mind and 
 passions were, in harmony. The plaintiff unques- 
 tionably was the possesser of strong feelings; in 
 fact, she was what you might call "clinging" in her 
 loveliness. The attitude she assumed in her devo- 
 tion reminded one of the position of thp confiding 
 female in the picture clinging with rapturous agony 
 to the rock, which is in the shape of a rough-hewn 
 cross, while the billows are breaking around and 
 above her. Now, I would observe that a strong- 
 minded lady in an action for breach of promise is 
 not always a good witness. She is generally too 
 emphatic and too certain — too absolutely there. 
 Juries glance at her and think what would be their 
 domestic freedom under such a government. No 
 witness makes less impression than a hardened 
 scientific female ; the next to her is the strong, con- 
 fiding, clinging, sentimental, religious, creature, 
 
BEEACH OP PROMISE OF MAEEIAGE. 11 
 
 who throws herself into every adventure as if she 
 were taking a header from a boat. Her case is too 
 absorbingly good, and- she is always too much in- 
 jured. 
 
 Not a great deal of damage was done by the story 
 of the love-making, the taking up by the defendant 
 of his abode in the house of mamma "for the sake 
 of companfonship and convenience," the having 
 some one to care for and to comfort him, the slip- 
 per-working and the slipper-warming; the getting- 
 up of evening classes, the discussion of abstruse 
 doctrines of divinity, the reading together in' the 
 Greek Testament, the discourses upon the Athan- 
 asian creed and the colors of the curate's vestments. 
 All these ^nd a hundred other pious incidents of 
 ecclesiastical life in a country town, were but com- 
 mon-places which might have been compatible with 
 platonic friendship. What ap artless, innocent 
 question was now put in faltering accents, and with 
 suppressed emotion. 
 
 "And after all this treatment are you — excuse my 
 asking you — ^but are you fond of him still ?' ' 
 
 The plaintiff looks at thd downcast, helpless curate 
 with longing, yearning eyes for a minute and-a-half , 
 and then, clasping her pretty, delicate hands on the 
 ledge of the witness-box, exclaims: — 
 
 "Oh, yes — ^very, ver-y fond of him !" and then 
 she puts her lace bordered handkerchief to her eyes, 
 and plainly visible in her whole form is the deep 
 emotion which stirs within her, as though some vol- 
 canic eruption were imminent. This touch of gen- 
 
12 rLLUSTEATIONS IN ADVOCACY. 
 
 uine sentiment does really make the jury look up 
 for a moment, and every bucolic eye beams with 
 sympathy. It was splendidly done, and you could 
 not for the life of you tell whether it was real or the 
 quintescence of acting. At this supreme moment 
 every female eye, moist with sympathy, was turned 
 upon the defendant. Evpry feminine heart palpi- 
 tated with an indefinable yearning ; and every gen- 
 tle bosom heaved with tender emotion. At this ec- 
 static moment what an interesting creature the high 
 Church curate was ! Never in any Court was pro- 
 duced such a delicate and delicious sensation ! What 
 a real living drama was being enacted ! Then once 
 more those lustrous, dangerous eyes of the plaintiff 
 beamed at the faithless clerical swain over the damp 
 handkerchief, and from their innermost depths 
 welled out the passion of those bygone days ; and, 
 oh ! what a depth it was I Very, very deep ! 
 
 As the learned counsel for the defendant artisti- 
 cally arranges his papers, and with ceremonious dig- 
 nity rises to cross-examine this heart-broken plaint- 
 iff, what breathless emotion there is in the galleries ! 
 Every lady readjusts herself, for the long anticipated 
 treat is coming. They all expect her to be cut up-, 
 and her innermost heart laid bare. The scene will 
 be nothing without this scientific anatomical dissec- 
 tion. All depends upon the cross-examination. 
 The Church can hardly go into the witness-box and 
 deny the promise or the breach. She may sit in 
 Court and suggest questions, expose secrets, and 
 otherwise assist the plaintiff; but there is no cer- 
 
BREACH OF PROMISE OF MARRIAGE. 13 
 
 tainty about her submitting herself to the ordeal of 
 cross-examination. The counsel needs to be subtle, 
 acute and skillful, for he has to deal with a clever, 
 self-possessed, albeit heart-broken, woman, who can 
 see right through him, as though he were made of 
 the most translucent glass. 
 
 "Now," he asks, with placid and gentle tones, 
 "did^you frequently converse with him about mar- 
 riage ?' ' 
 
 "Oh, yes," answers the plamtifE; "frequently — 
 frequently. It was his constant theme." 
 
 "You liked it I suppose? 
 
 "Oh, yes. It was agreeable." (A sigh.) 
 
 "You were desirous of marrying him?" 
 
 "•Certainly. Why should I not be? I loved 
 him." 
 
 No bashful reserve yoa see ; no insipid hesitation. 
 All was business-like and straightforward ; pure as 
 the stream and open as it course. So far so good. 
 And the jury think she was pretty well up to her 
 work. 
 
 "Did he tell you that his income would not permit 
 him to marry?" 
 
 "Oh, yes; many times." (How she helps the 
 learned counsel in his cross-examination. !) 
 
 "And said he would not marry until he had a liv- 
 ing of his own?" 
 
 "Hedid. Oh, yes; many, many times." 
 
 "What did you say to that?" 
 
 "That I would try and get him-one, of course?" 
 
 Here there was considerable laughter ; the learned 
 
14 ILLUSTRATIONS IN ADVOCACY. 
 
 judge himself moderately and judicially sharing the 
 merriment. The javelin men and ushers all laughed, 
 and all shouted "Silence!" and then gave way to 
 their feelings again, all placing their hands in front 
 of their mouths. 
 
 "Well," continues the counsel, "you never got 
 him one, did you?" 
 
 "Not actually got it, because he refused to accept 
 it." 
 
 "But did you get him one?" 
 
 This was a question too many , the answer was 
 "Yes,'-' and it necessarily led to further and better 
 particulars. Having been put in cross-examination, 
 it must be cross-examined upon, and that is one 
 danger of a question too many. You have to try and 
 get rid of it, to qualify or alter it, which you seldom 
 can. It is like the letting out of water — ^the stream 
 increases, and of its own force widens the breach. 
 
 "Where did you get him a living?" 
 
 "At St. Swithin's." 
 
 "Do you mean to say St. Swithin's was ever 
 ofPered?" 
 
 "Oh, yes; and I have the letter to prove itV 
 
 "We'll have that letter in," says Mr. Longfellow. 
 "Oh, yes, we'll have it in. I don't wish to conceal 
 anything," says the High Church counsel, with 
 charming innocence. 
 
 And then comes the letter, carefully preserved by 
 the plaintiff, who valued every scrap of paper that 
 bore the defendant's handwriting. It was a simple 
 letter enough ; one would have thought not worth 
 
BREACH OF PROMISE OF MARRIAGE. 15 
 
 preserving ; but it turned out to be valuable in this 
 way, that if the promise of marriage had ever been 
 conditional, the letter proved that the condition had 
 been faithfully performed. 
 
 The case, therefore, was well on its legs, such as 
 they were, but a tottering sort of creature it never- 
 theless appeared, quite incapable of bearing any ap- 
 preciable weight of damages. There had been too 
 abundant spiritual excitement; too much slipper 
 warming. The mystipal union of souls had been 
 too frequently insisted upon ; and it was somewhat 
 difficult to ascertain whether the attachment had 
 been the highly sublimated process of spiritual 
 attraction, or the more worldly and more generally 
 understood proceeding called "courtship." It will 
 be tested, perhaps ,-by-and-by. and its true nature 
 revealed. 
 
 As a rule, a defendant in a breach of promise should 
 not be in Court, unless his personal appearance is a 
 good defence to the action. In the present case, 
 the defendant unfortunately was present, the silent 
 and downcast spectator, as well as the object of in- 
 tense admiration to all the female portion of the 
 audience. He was at once a hero, a champion, a 
 conqueror and a martyr. Up to this moment I 
 envied him. It was curious to notice how, when any 
 interesting question was asked, all the beaming 
 female eyes were fixed on the pretty plaintiff ; and 
 how,whenthe answer was given (equally interesting) 
 all those eyes immediately turned and riveted them- 
 selves on the reverend defendant. It must have been 
 
16 ILLXTSTRATIONS IN ADVOCACY. 
 
 like sipping honey to the gushing fair ones in the 
 gallery ; and I believe the case was so exciting that 
 the young ladies would alternatively have liked to be 
 now the plaintiff and now the defendant. It was so 
 inexpressibly sensational. At present, however, 
 there seems but a remote chance of any damages 
 that could be termed substantial. But now a phe- 
 nomenal question shoots across the legal firmament, 
 arising, no doubt, from special instructions, which 
 gives importance to the case ; the whole atmosphere, 
 in fact, is ablaze. 
 
 "Is it not a fact," asks the counsel, "that the 
 defendant and you were three weeks in the house 
 without anyone else being there ?' ' 
 
 A pregnant question truly I What a flutter 
 there was in the gallery ! Now the scandal's com- 
 ing ! 
 
 "Oh, the clerical profligate !" and "Oh, — " well 
 let us wait. What, is she going to deny the "soft 
 impeachment," the mild imputation, the suggested 
 profligacy ? Shame ! Are there no dark pious 
 mysteries to be revealed ? no slumbering secrets to 
 be awakened for the delectation of this excited 
 audience? Surely, something has been whispered 
 by those consecrated lips into the learned ear of the 
 enterprising counsel ! He would not, could not, as 
 a Queen's Counsel, with a dignity and reputation to 
 support, have ,so alarmed the heavens with mere 
 fireworks. Oh, no, something must come of it, if 
 its only an earthquake. To change my simile, 
 this love in a cucumber-frame, (I mean this clerical 
 
BREACH OP PROMISE OP MARRIAGE. 17 
 
 forcing-house), is not going to evaporate into 
 sighs. "We ' shall reap the fruit of our patient 
 expectation in due time, because no question is put 
 in cross-examination without adequate motive, and 
 without the utmost certainty that the answer cannot 
 injure your client. 
 
 The dear girl was taken all aback ; up went her 
 liandkerchief to her eyes, and she made a succes- 
 sion of bubbling noises very like what you hear 
 when you pour water rapidly out of a narrow- 
 necked bottle. After the water was all out the fair 
 and broken-hearted promisee gave a little shriek, 
 and cried — "Oh, no — no — no, my lord ! Oh, no — - 
 never] Oh, how cruel!" and she refused to be 
 comforted. Every one pitied her, except the coun- 
 sel for the plaintiff, and they pitied the defend- 
 ant. 
 
 "Now," says Mr. Longfellow's junior, ^'you've 
 got him." 
 
 "Hold your row!" says Longfellow, with a 
 wicked expletive, in a small whisper. "I know! 
 Now he shall have it. We've got him nicely !" 
 
 It took some time for the addressed plaintiff to 
 recover her equanimity, and compose her nerves, 
 because after such a severe shock to the physical, 
 mental and moral systems several heart-rending 
 relapses were necessary, and water had to be 
 brought. You can't get over a big thing like that 
 in a moment, whatever your courage and virtue 
 may be. 
 
 I never knew why the question was asked, and if 
 
18 ILLUSTEATIONS IN ADVOCACY. 
 
 the reader thinks it over for a month, he will be no 
 nearer to a solution. At first I imagined it was to 
 lay the foundation for saying that the defendant 
 had seduced the plaintiff as well as deceived her ; 
 but even if so, one could not perceive how it could 
 go in mitigation of damages. Nor could I under-; 
 stand how it in any way went to the lady's credit. 
 Nor how it affected either the promise or the breach. 
 Truly it was one of those mysterious displays that, 
 like erratic play at whist, defies all calculation and 
 conjecture. But it finished the cross-examiijation, 
 you may well believe, and very nearly killed the 
 plaintiff. If it had killed her it would have been 
 the defendant's only way out of the difficulty; for 
 Lord Campbell's Act could not have helped her rel- 
 atives. ^ But, unfortunately for him, such is the 
 springiness or elasticity of the fair sex in actions of 
 this nature that she recovered sufficiently to be 
 re-examined — just sufficiently, and no more. And 
 in what a grave and business-like manner she was 
 re-examined ! All amusement had vanished. Things 
 had assumed a serious aspect, approaching almost to 
 indignation. The earthquake must come. The 
 defendant hung his head, as well he might, repent- 
 ant when too late, but bearing with Christian meek- 
 ness and resignation the pitiless storm as it bore 
 down upon him. From all sides the storm came; 
 even from the galleries, because, after exciting the 
 
 1 In other words an action for breach of promise of marriage 
 does not survive. Stebbens v. Palmer, 1 Pick. 71; Wade v. 
 Kalbfliesch, 58 ]Sr. Y. 282. 
 
BREACH or PROMISE OF MARRIAGE. 19 
 
 curiosity of the fair auditors with an appearance of 
 approaching scandal, it was a shame to leave it 
 ungratified. What, shall there be no stain upon the 
 plaintiff's character? What could be the meaning 
 of such a question unless it was to be followed up 
 by at least an insinuation that the plaintiff 
 was no better than she ought to be. It 
 was cruel (not to her, but to the fair sex in the gal- 
 lery), and the disappointment was unbearable. 
 They quite assented to the volley of indignation 
 which was indirectly poured upon the meek curate's 
 head. There ought to have been something piquant 
 after such a question; but not too much indignation, 
 if you please, because you don't want to do all the 
 punishment in re-examination, or even in your 
 speech to the jury. 
 
 After all, the defendant may go into the box and 
 deny the promise, or it may even be hoped he will 
 contradict the lady about the house business ? But 
 no: he's only a spectator in the scene; he has come 
 like the rest of the audience, simply to hear the 
 trial, and probably to learn some useful lesson in 
 human nature for the delectation of his congrega- 
 tion next Sunday. He contradicts nothing, and 
 does nothing but hold down his head as Longfellow 
 anoints it with a copious shower of delicate invec- 
 tives, and points to hint with a substantial and well 
 straightened .finger of scorn as he says, "That's the 
 man who dictates that foul insinuation against the 
 virtue of the woman he has wronged." It was a 
 good speech, was Longfellow's, You could tell 
 
20 ILLUSTRATIONS IN ADVOCACY. 
 
 from it that Longfellow was a father, and that the 
 jury were fathers, and the jury nodded their 
 fatherly heads as he glowingly recited the wrongs of 
 the lady, extending, as they did, over a series of 
 years, and culminating that day in the foiled attack 
 upon her character in the witness-box. 
 
 Longfellow's speech was like a good clap of 
 thunder ; not the least uncertainty in its meaning ; 
 no one could mistake it for the ill-natured growl of 
 an angry churl, and it did all the work which was 
 required of it. Declamation was its chief feature, 
 and aggravation of damages its main object. Now 
 there was only one way to aggravate damages in 
 this case, and that was by aggravating the feelings 
 of the jury. You couldn't go into pounds, shill- 
 ings and pence ; all that was beside the question 
 The jury had seen the injured feelings, and they 
 saw that no money within the probable means of 
 the defendant would be too much to make him paj 
 after the exhibition he had made of himself in 
 court. Mr. Longfellow's clap of thunder burst 
 with blessings on the plaintiff's head, and down 
 came a copious shower of golden damages. There 
 was no need to awaken sympathy ; no necessity to 
 go into figures ; and although the judge said they 
 must not punish him even for the phenomenon he 
 had insisted upon shooting into the heavens, the 
 jury gave the plaintiff a verdict for a good many 
 hundred pounds. 
 
 The fair sex drew in its breath and speculated on 
 its own chances of a verdict on some fine day. 
 
BREACH OF PROMISE OF MARRIAGE. 21 
 
 The plaintiff was being comforted and soothed with 
 sal volatile and eau de cologne when the verdict was 
 returned' and she just revived in time to be escorted 
 out of court by her sympathizing solicitor before 
 the fair sex could rush from the gallery, and 
 make her a gaping stock in the hall and the 
 street. 
 
 ' Everybody said it served him right, but no one said 
 it served the plaintiff right. Let the student draw 
 all necessary inferences. It is not for me to point 
 the moral more significantly than by saying the 
 action was for Breach of Promise to Marry but the 
 verdict was for Slander ! 
 
22 
 
 CHAPTER III. 
 
 IN ACTIONS ON COVENANTS IN BILLS OF SALE. 
 
 We find ourselves again in a Court of Justice. 
 As we enter, the case of HawTc v. ISparrow is called 
 on, and the learned counsel for the plaintiff opens 
 it— admirably opens it. Poor Sparrow, there is no 
 chance for him evidently ! What a wicked sparrow 
 he seems to have been 1 Years ago, it appears, he 
 was a market gardener, and had befriended a gro- 
 cer, by lending him, from time to time, sums of 
 money which at last amounted to £150, and for as 
 much as the grocer, whose name was Thriftless, had 
 nothing to pay, Mr. Sparrow asked him for a bill of 
 sale on bis household goods. Mr. Hawk, being 
 Thriftless' lawyer, drew up the bill of sale, and 
 Sparrow advanced a sum of £30, taking the bill of 
 sale for £180. Thus the money was secured, so far 
 as a legal document could accomplish that object. 
 Some time after, Thriftless, going from bad to 
 
COVENANTS IN BILLS OF SALE. 23 
 
 worse, gets into liquidation, and so wipes out his 
 debts ; but Sparrow has nothing to do with the liquid- 
 ation and after the proceedings were over, 
 Thriftless continues to pay the interest on the 
 bill of sale: an illegally immoral proceeding, no 
 doubt. Now, Sparrow was to pay Hawk for 
 drawing up the bill of sale, in the event of Thrift- 
 less failing to do so. Thriftless did fail to do 
 so, and then Hawk applies to Sparrow. Upon 
 this, Sparrow says in his little chirping way, "I 
 can't be bothered about this thing for ever; I 
 thought it was all settled ; but I will tell you what 
 I will do. If you like, Mr. Hawk, you shall have 
 the bill of sale in satisfaction of the costs incurred 
 in drawing it up, and some few pounds I owe you 
 for other matters" — all incurred through Thrift- 
 less. 
 
 Hawk flies at this proposal, with his talons wide 
 spread, and takes the bill of sale in satisfaction, 
 and there the matter seemed amicably ended. This 
 was twelve years ago. Time rolls on, and now 
 Hawk, having grown grey in the pursuit of his pro- 
 fession, sues Sparrow on a covenant in the assign- 
 ment of the bill of sale, which was to this effect: 
 — Sparrow covenants with Hawk that the said debt 
 was a good and subsisting debt. The counsel 
 opens that it was not a good, subsisting debt or a 
 subsisting bill of sale at that time, because all 
 liabilities had been washed away by the flood of 
 liquidation proceedings. 
 
 The judge nods his head at this, and evidently 
 
24 ILLUSTRATIONS IN ADVOCACY. 
 
 thinks it an undefended case. The judge is "against 
 the defendant:" expresses himself to that effect, 
 and counsel for the defendant seems in bad case. 
 It's an up-hill fight when the jud'ge is against you; 
 but if you believe your sparrow has a feather to fly 
 with, you ought at least to afford him the opportun- 
 ity of a little flutter. Perhaps the judge doesn't 
 know your case, and may alter his opinion when he 
 does! 
 
 "What answer to this have you got, Mr. Jones?" 
 asks his lordship. 
 
 Now Jones, be firm ! don't disclose your case even 
 upon this seductive invitation before even your op- 
 ponent has made out his own. Let us first of all see 
 what case the plaintiff has, not upon the opening but 
 on the evidence. , 
 
 It is as dangerous a proceeding to disclose your 
 hand prematurely as for a general to send to the 
 enemy a message informing him that at a particular 
 time he should take possession of a certain pass, 
 make a flank movement on his enemy's left, throw 
 out his right wing, and then, covered with artillery 
 on the north, totally envelope the opposing forces. 
 
 As the judge asks the question, just glance your 
 eye at your opponent and see with what an eager 
 glance he awaits your answer. But if you are wise 
 you will not satisfy that watchful glance. He is 
 turning over the sheets of his brief and looking you 
 hard in the face all the while. But you must answer 
 his lordship, and so you say you believe you will sat- 
 isfy his lordship when your turn comes : at least, if 
 
COVENANTS IN BILLS OF SALE. 25 
 
 your instructions are correct you have a complete 
 answer. You may be young, no doubt, and your 
 opponent may be old and wily, but you have lived 
 long enough in the world to know that he cannot 
 catch even a sparrow by putting judicial salt on his 
 tail like that. 
 
 "Very well," says his lordship; "only it seems 
 to me you are bound by the covenant." 
 
 "Not till after verdict, at all events," thinks the 
 imperturbable Jones; so he says respectfully: — 
 
 "I hope to alter your lordship's opinion when you 
 hear the case. At present my friend has called no 
 evidence." 
 
 "Oh, don't let me interfere, I pray!" says his 
 lordship. 
 
 So not a man of Jones' troops moves, and there is 
 no message sent to the enemy of his intended opera- 
 tions. Possibly, Jones may take him in the flank or 
 rear by a well-concerted line of action by-and-by. 
 We shall see. 
 
 But here is a very benevolent gentlemen stepping 
 into the witness-box, and he looks a saint indeed 
 with the precious Testament in his hand. This is 
 Mr. Hawk himself. How beautifully he gives his 
 evidence. You almost parody the touching line of 
 Watts: — "How neat he spreads his bird-lime!' 
 Never was evidence more fairly and temperately 
 given, and if ever there was a counsel who knew 
 how to examine a witness-in-chief it was Hawk's. 
 He never omitted the smallest material detail. He 
 reminded me of a sharp boy piecing together a puzzle 
 
26 ILLUSTRATIONS IN ADVOOAC3Y. 
 
 map of the world. One after another in went conti- 
 nents, rivers, rills, hills, dales, lakes, waterfalls, and 
 everything that goes to make a complete hemisphere. 
 The learned counsel left out nothing, not even so 
 small a county as Eutland ; but I have known boys 
 leave out not only a county, but a country as large 
 as Eussia, and then wonder why their world is not 
 complete, and abuse the maker of the map. Depend 
 upon it, no case is complete unless you have all its 
 parts ; and it was a knowledge of these parts, and of 
 their relative positions with regard to the whole, which 
 made the learned counsel for the plaintiff in this 
 case so formidable an antagonist. It seemed impos- 
 sible to get over this well-adjusted evidence. Not a 
 gap or a fissure was visible, every tree and ditch 
 were there. Nothing daunted, however, the placid 
 Jones commences his cross-examination after the 
 manner of a man who feels that there is a wrong 
 adjustment somewhere. He has to get rid of that 
 covenant which his lordship seems -to believe an 
 impossibility ; a covenant being a very hard and fast 
 sort of obstacle, and albeit twelve years old none 
 the worse for wear. Now, who ever heard of cross- 
 examining a covenant out of court? How can you 
 cross-examine a fly out of a spider's web? No 
 spider ever heard of such a thing since spiderdom 
 became an institution. Otherwise what's the use of 
 webs, and \yhat the necessity of flies? Webs as 
 you know are fastened by means of guy-ropes to 
 the sides of beams or walls, and if you wish to 
 bring down the web, you have to detach first one 
 
COVENANTS IN BILLS OF SALE. 27 
 
 guy-rope and then another till the centre portion, 
 being unsupported, comes down as it must. 
 
 The cross-examination has been evidently pre- 
 pared, and every question is carefully and skillfully 
 directed to a particular point — not always straight, 
 mind, but always towards the object. 
 
 "Did you know a Mr. Wobbler?" asks the 
 counsel. 
 
 The apostolic being reflects : did he know Wobbler ? 
 he mentally repeats. "What does he want to know 
 for? No, yes, no !" 
 
 "Which is it, Mr. Hawk, no or yes?" 
 
 "I really cannot say; I think I have heard the 
 name, but its many years ago." 
 
 "Let me refresh your memory. Was there a 
 man who used to take possession for you when you 
 put in executions under bills of sale ?' ' 
 
 "Dear me, that is an extremely awkward ques- 
 tion," thinks Hawk, "execution and bills of sale I 
 Bless me ! what will the jury think of me ?' ' 
 
 "You are a solicitor, Mr. Hawk, and ought to be 
 able to answer without hesitation." 
 
 "Let him answer," says his counsel. Question 
 repeated. Hawk pulls down his gold eye-glasses as 
 though they had been the cause of his hesitation, 
 and says: "Oh, yes, to be sure ! I do remember 
 now, there was such a person — to be sure." 
 
 But what has this to do with the case ? some judges 
 would ask. It seems utterly irrelevant to the ques- 
 tion of the covenant, as to whether years ago the 
 respectable plaintiff knew a particular person. 
 
28 ILLUSTEATIONS IN ADVOCACY. 
 
 Yes, your honors, so it does; but, your honors, 
 as I have often perceived, do not knovr everything, 
 and, as a rule, cannot be supposed to understand a 
 line of cross-examination, which does not go through 
 the exact issue like a thread through the eye of a 
 needle. But your honors must be aware, if you 
 have ever been riflemen, and had any practice at 
 the target at long range, you never aim at it but 
 just above or below, or at the left hand or the 
 right, according to circumstances. You have to 
 allow foj "pull and windage." 
 
 So the cross-examination proceeds on the usual 
 lines which, seemingly crooked, are as direct as 
 possible, and find the real issue as certainly as the 
 streamlet, intercepted never so many times in its 
 course, and twisted and turned in never so many 
 uncertain ways, finds at length the point of junction 
 with its river or lake. 
 
 "Did Wobbler ever take possession for you under 
 this bill of sale, Mr. Hawk?" 
 
 "Oh, dear, no!" says Mr, Hawk, quite shocked 
 at the preposterous wickedness of the suggestion. 
 
 "Stop," says the learned judge, who from this 
 moment perceives the line of march. 
 
 "You say, Mr. Hawk, he never did?" 
 
 "Oh, no ! my lord, certainly not." 
 
 "Just look at this letter," says the cross-exam- 
 iner. Mr. Hawk fusses with his glasses, and finally 
 adjusts them with an air of confidence, like one 
 about to look the truth in the face without being 
 ashamed of it — as an eagle would face the sun. 
 
COVENANTS IN BILLS OP SALE. 29 
 
 "Is that your writing?" 
 
 "I have no doubt it is — yes." 
 
 Letter read, giving instructions to the said Wob- 
 bler to take possession of the goods included in the 
 bill of sale the day after the assignment to Flawh was 
 executed by the defendant, 
 
 A startling revelation, truly ! quite takes the 
 learned counsel on the other side by surprise; 
 nevertheless, he makes a motion indicating that he 
 knows how to get over it. However, he can't leap 
 the ditch, and therefore knows he must wade 
 through it somehow, there being no plank long 
 enough to bridge it. 
 
 "But," says the plaintiff, quite gratuitously and 
 quite as foolishly, "Ae never did take possession." 
 
 Then the question, "Do you swear that?" acts 
 like a bearing-rein — his head is instantly jerked up. 
 He evidently doesn't know whether to swear it or 
 not, but at last thinks it better to swear it. 
 
 "Now, look at this letter," says the cross-exam- 
 iner; it is in the plaintiff's handwriting, as sure as 
 he is in the box, and bears clear reference to the 
 taking possession by Wobbler, and actually asks for 
 an account of the things he seized. 
 
 But now passes through the mind of the wary 
 Hawk a clear, good defence for the time being. He 
 remembers that he told Wobbler to take possession, 
 but he remembers also that Wobbler never did, and 
 remembers it for this excellent reason, that Wobbler 
 never gave him any account. 
 
30 ULUSTKATIONS IN ADVOCACT. 
 
 "Where is Wobbler?" 
 
 The plaintiff doesn't know ; hasn't seen him for 
 years ; may be dead for ought he knows. 
 
 Then he is asked whether Wobbler did not sell 
 every article of fui niture that poor Thriftless had, 
 even to his bed. 
 
 Hawk scornfully repudiates the insinuation. 
 "Certainly not; never a farthing's worth" — ^this 
 with great indignation. 
 
 It was straightforward swearing enough, and 
 unless the counsel really understands the business 
 of cross-examination as being something different 
 from the knack of putting impertinent questions, 
 this Hawk will fly away with his Sparrow after all 
 and make a meal of him. 
 
 So he asks: — 
 
 "Do you swear that positively of your own hnow- 
 ledge, or do you swear that you never heard of it?" 
 
 Now, then. Patriarchal Hawk, what say est thou? 
 It appears to me that that is a question which, 
 answer it as you will, you are caught as nicely as 
 any foolish bird that was ever lured into a net. And 
 this is a good point to remember in cross-examina- 
 tion, that, if by a series of questions you can arrive 
 at one, the answer to which mws^ damage your oppo- 
 nent, you have almost made a cripple of him. 
 
 The plaintiff being a shrewd man sees his posi- 
 tion. He is surrounded by the enemy. He looks, 
 not in front of but within himself, pauses, balances 
 his gold spectacles, and is evidently balancing some- 
 thing else, namely, the respective value of altema- 
 
COVENANTS IN BILLS OF SALE. 31 
 
 tive answers. They seem pretty equal so far as he 
 can judge. Any answer will be awkward, may be 
 fatal, yet answer he must. 
 
 But while this mental process is going on Jones' 
 mind is also at work. He reasons that if he is fair- 
 ly skillful he will not only get an answer to one 
 charge of his double-barrelled question but to both, 
 and both answers shall be dead against the witness. 
 In order to effect this object he does not rally the 
 witness and drive and goad him, so as to tempt the 
 jury to believe he is simply bullying the man out of 
 his wits, but proceeds quietly as though he were 
 assisting him, breaks the difficult question in two, 
 knowing well enough from the witness' reluctance 
 what answer he will at last squeeze out of him. 
 
 "Do you Jcnow, Mr. Hawk, that Wobbler did not 
 take any of poor Thriftless' goods?" 
 
 Suppose Hawk says yes? the next question would 
 probably have been How do you know it? and the 
 next why should you know it after the full instruc- 
 tions conveyed in the letter that has been read in 
 Hawk's own handwriting? You can see there is 
 something in Jones' hand which is kept well up, and 
 it must be a good card or he would not be so confident 
 in his play. Why should Hawk Jcnow that Wob- 
 bler, had not carried out his instructions? and how ? 
 
 The how must be that Wobbler must have told 
 him, and the vjhy would have led to the exact fact 
 which presently is proved. So the gentle student 
 perceives as clearly as though he were cross exam- 
 ining himself that Hawk is well bird-limed, that he 
 
32 ILLUSTRATIONS IN ADVOCACY 
 
 quivers on the bough, and oscillates between a yes 
 and a no, and casts about to see what intermediate 
 equivocation will answer to his purpose. Then is 
 he neatly pressed in the following manner: — 
 
 "Mr. Hawk, its a very simple question — did you 
 know it or not ?' ' 
 
 Hawk wants a little more time, so asks that the 
 question may be repeated ; and whenever this takes 
 place rest assured there is^at least one mark scored 
 against the witness in the jury-box. 
 
 Question repeated, "Do you know that Wobbler 
 did not seize the goods of Thriftless under the bill 
 of sale?" 
 
 "I know I never had one penny-piece for my bill 
 of sale." 
 
 Still no answer, but a clear indication of what is to 
 com e. 
 
 "Answer me, Mr. Hawk." 
 
 Mr. Hawk says there was no seizure. 
 
 ^^How do you know?" 
 
 That has fixed him. He cannot move. He dares 
 not answer. But here Jones, for a purpose, leaves 
 this part of the question and presses the second part 
 in a new form. Have you heard that Wobbler 
 never seized? 
 
 Hawk wishes he cpuld pulverize Jones, for this 
 question looks ten times worse than the other. 
 
 "I never got a farthing," exclaims Hawk in 
 despair. 
 
 "You must answer the question," says his own 
 counsel. 
 
COVENANTS IN BILLS OF SALE. 33 
 
 "1 did hear he never seized," says poor Hawk, 
 and now he is up to his very beak in difficulties. 
 
 "Who told you?" asks Jones, with irritating 
 perseverance. 
 
 Well, who could have told him but Wobbler him- 
 self; so he is obliged to admit that Wobbler him- 
 self told him. 
 
 Now, mark what this leads to, seeing that he has 
 never seen Wobbler since he gave instructions to 
 seize. It leads to the fact that Wobbler must have 
 written to Hawk about the matter, and, probably, 
 after Hawk had, as is proved, written to him foi 
 an account of the sale. 
 
 "Did he write to you?" 
 
 "I suppose he did." 
 
 "Have you got that letter?" 
 
 "Oh, dear, no!" 
 
 "You have had notice to produce it." 
 
 "I dare say." 
 Oop]/ letter from Wobbler to Hawk of ten years ago 
 produced. Objected to, of course; withdrawn: 
 Jones doesn't care a farthing, but asks Hawk what 
 it was that Wobbler told him in the letter. Press- 
 es him hard on this point, and. at last, when there 
 is no escape in the wide world for this sagacious 
 bird, he confesses that Wobbler told him the goods 
 were of no value and would not pay expenses. 
 
 Anybody would have thought, to see the placidity 
 of Jones' face as he sat down, that Hawk was his 
 dearest friend. 
 
 Now, then. Hawk's feathers have to be smoothed 
 
34 ILLUSTRATIONS IN ADVOCACY. 
 
 by re-examination, and a very pretty process it 
 was. 
 
 "Oh, dear no !" says, plaintively, this martyr- 
 like being; "not one farthing had he ever had. He 
 really did not know anything about a seizure by 
 Wobbler, only what Wobbler had said in his letter, 
 which, unfortunately ,he could not find. He shouldn't 
 have seized, and then brought this action years after. 
 Oh, dear, no I He did not ruin Thriftless, certainly 
 not ; thinks Thriftless must have been consumed by 
 spontaneous combustion; was for many years in 
 practice, and although, was Thriftless' solicitor, was 
 not aware at the time he took the biU of sale that 
 Thriftless had been in liquidation, and it was a shame 
 to suggest that the covenant about its being a sub- 
 sisting debt was artfully inserted by him because he 
 knew it was not a subsisting debt. Oh, dear, no ! 
 nothing of the sort. Couldn't take advantage of 
 Sparrow's ignorance in that way. Quite against his 
 principles. Then as to this Wobbler; he had not 
 heard of him for years — insinuating that Wobbler 
 was a rascal. 
 
 At all this the jury smile sardonically. Clever 
 re-examination, no doubt and they smile at the 
 wonderful cleverness of the counsel, and the artful- 
 ness of the patriarch. There was the bond, and al- 
 though the greater part of the amount for which 
 Hawk took the assignment of the bill of sale with 
 the covenant was incurred in the preparation of the 
 bill of sale by him, yet what could be clearer than 
 the bond? Nothing, except, the admirable manner 
 
CO"\TENANT8 IN BILLS OF SALE. 35 
 
 in which the case of the plaintiff was being con- 
 ducted. 
 
 "Oh, you lawyers 1" was written on the face of 
 every juryman. 
 
 The case is getting interesting. The judge has 
 long ago seen through it; but we must wait for the 
 evidence which has been foreshadowed by the cross- 
 examination. 
 
 Now, when the reader has well considered the 
 points of the cross-examination, let him remember 
 that at present all is suggestion, and if he had to go 
 to the jury upon the case as it stands, he would have 
 to insinuate three things. First, that Mr. Hawk 
 had knowledge of the liquidation before he got the 
 defendant to sign the covenant, that it was a subsis- 
 tent debt. If that point be established, the plaintiff 
 wiU not win. Secondly, that the defendant was not 
 aware of the nature of the covenant he was induced 
 to sign. I need say nothing further upon these 
 points, because the whole arguments and inferences 
 will flash like lightning before the mind of the in- 
 telligent reader. Thirdly, and of greater force than 
 the other two, there was the suggestion, amounting 
 almost to certainty, that Wobbler did seize the goods 
 of Thriftless and that he sold them. Whether he 
 gave over the proceeds of the sale to the plaintiff 
 or cheated him out of them, is of no consequence to 
 the jury and not relevant to the inquiry. Those are 
 the inferences if you do not call evidence, and even 
 upon those inferences the verdict would probably 
 be for the defendant. But having evidence of a 
 
36 ILLUSTRATIONS IN ADVOCACY. 
 
 conclusive character, Jones' able junior calls fii^t 
 the defendant, who deposes to this effect: — 
 
 "Knew nothing of the nature of the covenant. 
 The plaintiff knew as much as he did of the circum- 
 stances of Thriftless" (the jury think a great deal 
 more) . So, in spite of the original strong presump- 
 tion that Thriftless, signing the covenant with his 
 eyes open, knew what he was about, the jury be- 
 lieve he did not know the significance of the legal 
 jargon contained in the covenant. They do not 
 seem to think that a market-gardener is so well versed 
 in the technicalities of legal documents' as a shrewd 
 lawyer who had been half-a-century in practice. 
 The jury know that market-gardeners are not usually 
 great lawyers. Kaising cabbages does not require so 
 much pettifogging technicality as raising points or 
 sawing the minute seeds of a prolific lawsuit. Next, 
 and to the great surprise of the plaintiff, poor 
 Thriftless himself was called. 
 
 And now I ask the reader's attention to some 
 very important points in the conduct of a case, 
 namely, those of examination-in-chief, cross-exam- 
 ination and re-examination. 
 
 Says poor Thriftless: — "I was indebted to the 
 defendant, who had been very kind to me. He had 
 lent me money from time to time, and at last he 
 would lend me no more without security, so I gave 
 him a bill of sale. Afterwards I became bankrupt. ' ' 
 
 ' 'Did the plaintiff know of your bankruptcy pro- 
 ceedings?'" 
 
 "Of course he did." 
 
COVENANTS IN BILLS OF SALE. 37 
 
 '•Why, of course?" 
 
 "Becatise I consulted him about them." 
 
 Here the benevolent gentleman protests, by ges- 
 ture and facial distortions, that this is the largest 
 amount of perjury ever committed at one time. 
 
 The witness and plaintiff had been neighbors. 
 The plaintiff had been his legal adviser, and they 
 used to meet and talk occasionally about Thriftless' 
 affairs. Grimaces, therefore, are no answer to such 
 presumptions as arise from these facts. 
 
 "He told me," says the witness, "what solicitor 
 to go to about my bankrupty." 
 
 "Oh, did he?" 
 
 "Yes, certainly." 
 
 Poor old patriarch What a liar he thought this 
 witness. How a man could, &c., &c. 
 
 The next piece of evidence was that not long after, 
 when he had got nicely settled again, his liquidation 
 proceedings being over, and he had collected a few 
 sticks around him, in comes Wobbler with this very 
 bill of sale, says he has come from the plaintiff; and 
 produces a letter which was read to him, from the 
 plaintiff himself , and seizes every stick he had got. 
 There were carts worth £14, there was a consider- 
 able quantity of plant which had cost £80 to set up 
 and for which the money was borrowed of the de- 
 fendant. There were tables and chairs, an eight- 
 day clock, a mangle, a grindstone, and, above all, 
 a nice feather bed that he and his wife slept on. All 
 these with other things were taken under the bill of 
 
38 ILLUSTRATIONS IN ADVOCACY. 
 
 sale. Altogether, about £60 or £70 worth, even if 
 they had been sold by auction. 
 
 This was a surprising revelation to the benevo- 
 lent gentleman, because he had sworn he never had 
 a penny ; knew nothing about any seizure, and, in 
 fact, alleged that it was the defendant who had 
 seized the things. Mistakes of this kind will some- 
 times occur ; but the jury would have to judge of all 
 these facts and of the presumptions therefrom aris- 
 ing. They would surely think it strange for a man 
 to sue for a breach of covenant, which covenant was 
 that it was an existing debt, after the plaintiff had 
 so far made it an existing debt by selling a man out 
 of house and home upon it and taking his bed from 
 under him. But perhaps the cross-examination will 
 set matter.s right, as it sometimes does. 
 
 "Now, sir, will you swear that it was not the de- 
 fendant who seized the goods ?' ' ' 
 
 "I will." 
 
 "Did the defendant never seize?" 
 
 "No, he never did." 
 
 "Will you swear that?" 
 
 "I will." 
 
 "Did you not have an execution put in once. 
 
 "Yes, twice." 
 
 "And didn't the defendant produce the biUof sale 
 and turn out the execution creditors?" 
 
 "No; but that there man did — the plaintiff. He 
 produced 'un, and " 
 
 "Well, didn't the defendant take possession?" 
 
 "In that there way he did." 
 
COVENANTS IN BILLS OF SALE, 39 
 
 "Just answer me this. Did you ever see the 
 plaintiff after Wobbler, as you say, seized." 
 
 "I did." 
 
 "When?" 
 
 "Several years after," (The counsel sits down.) 
 
 "Well," says Jones, in re-examination, "he asked 
 me for more money and I says — I couldn't help 
 swearing, my lord — I says, why you've stripped me 
 naked. D'ye want to skin me as well?" 
 
 Has the reader any doubt as to how the verdict 
 would be after this ? 
 
 The benevolent gentleman was suing on his bond. 
 Come Portia, come Shylock ! It is not disallowable 
 to refer to plays or historic characters by way of 
 illustration. There is high authority for it. A 
 striking parallel is always well received and gener- 
 ally effective. What did it matter now that Wob- 
 bler had cheated his employer ? The bill was not 
 given to cover Wobbler's delinquencies; it was 
 only given to cover Thriftless' debt to the defend- 
 ant, and as the plaintiff's agent had already received 
 thrice its value, the jury returned a verdict against 
 him. ' 
 
 It is often difficult to form a correct opinion of 
 the merits of a case from seeing one side only. 
 Evea a bond may have no merits, and may be cross- 
 examined out of court. Who can tell the config- _ 
 uration of the invisible hemisphere of the moon? 
 
 Caution and patience were the cardinal virtues, 
 adjustment of facts the mechanical agent in this 
 case. 
 
40 
 
 CHAPTER IV. 
 
 IN CASES OP RECEIVING STOLEN GOODS AND OF HOW 
 TO CHALLENGE JURORS. 
 
 My next case seems- to contain instruction for a 
 young and intelligent advocate, but I do not war- 
 rant it. By the early morning post came a letter 
 from a country town to Alfred Jones, Esq. It con- 
 tained these touching words — "Reg. on prosecution 
 of Bowles versus Brown, Jones, Eobinson and 
 Smith. Please accept retainer in this ~ case on 
 
 behalf of Brown for the ensuing shire 
 
 Sessions." 
 
 "Humph!" said Alfred, "the worst case of the 
 bunch, I've no doubt." 
 
 Yes, Alfred, as a rule the hard-working man is 
 retained where there is most work and most money, 
 not otherwise. But the despondent counsel pock- 
 eted his grievance and the retaining fee. It is best 
 to take things, especially fees, as you find them. 
 
STOLEN GOODS, CHALLENGING JUEOR8. 41 
 
 The next scene is the conference at an hotel on 
 the morning of the trial. Alfred had not yet 
 received his brief, and was meditatively smoking 
 his morning cigar when the solicitor entered, appar- 
 ently full of hope and in the best of spirits. As a 
 rule, I have noticed that solicitors with the worst 
 cases are in the best spirits. 
 
 "Well," says Alfred, "What's all this about?" 
 
 "Oh," answers the solicitor, "a little matter, sir. 
 I don't think you'll have much trouble." 
 
 "Going to plead guilty, is he?" 
 
 "Well, we should hardly bring you down if he 
 were going to plead guilty. I think you'll get him 
 off. The facts are these." 
 
 "Never mind the facts. Tell me who's on the 
 other side; that's the most important matter." 
 
 "I hardly know," says the solicitor; "they are 
 very anxious to get a conviction, and talk of bring- 
 ing some one special." 
 
 "Well, what are the facts? We may as well 
 know something about them." 
 
 "I'll teU you in a few words. It's not a long 
 story, and I believe it's a trumped-up case." 
 
 "By the police?" 
 
 "Yes." 
 
 "They generally trump up their cases pretty well, 
 and upon a tolerably sure foundation of facts." 
 
 "Well, sir, our man. Brown, is alarge proprietor 
 of vehicles, which he lets out on hire to all com- 
 ers." 
 
 "To all comers," says Alfred, mentally; "there's 
 
42 ILLUSTRATIONS IN ADVOCACY. 
 
 the point at once, put in the most off-hand manner;" 
 but he says nothing audibly, only smiles. The 
 shrewd solicitor reads his thoughts and says: — 
 
 "No, there's nothing in that, sir." 
 
 "Very well; so on." 
 
 "Well, this Brown keeps a yard " 
 
 "And a good character, I presume?" 
 
 "Well, he has a good character, and he hasn't, if 
 you can make that out." 
 
 "Perfectly. He has a good character, but dares 
 not prove it." 
 
 "That's exactly how it stands. There's nothing 
 against him ; but the thing is this — ^if we call wit- 
 nesses to character, the other side may ask whether 
 they are aware that the man has been tried before 
 for a similar offence ?' ' 
 
 "And what might that offence be?" 
 
 "Burglary, and receiving goods knowing them to 
 have been stolen?" 
 
 "Is that all?" 
 
 "That's all. But he was aquitted of the previous 
 charge, and I'm afraid to call witnesses." 
 
 "I should think so," says Alfred, in a petulant 
 tone, and knocking off the ashes of his cigar as 
 though it were Brown's character. 
 
 "Very good, sir," says the solicitor, making a 
 note. "I thought you would advise that." 
 
 "Now the facts," says Jones. 
 
 "The facts are simply these. On the night of 
 the 10th March Brown lets a horse and cart to two 
 men, who go away with it, and in the morning 
 
STOLEN GOODS, CHALLENGING JUEOK8. 43 
 
 about six o'clock Brown goes into his yard, and 
 under the shed there stands the cart, with a dead 
 pig in it, two sides of beef, and a sheep, with a 
 ticket in his inside." 
 
 '•Sheep was dead, I suppose?" 
 
 "Oh, yes; he was dressed, and the ticket was 
 stuck into his kidneys. "Well, seeing this, and 
 not knowing where it came from. Brown thought it 
 had better be" sold, so he goes down to the market 
 and offers the whole lot for sale at 6d. a-pound." 
 
 "What was the market price?" 
 . "Well, I believe the market was rather full that 
 morning, and meat was a little down." 
 
 "What was it the day before?" 
 
 "Well, I believe the day before it was a little up; 
 eightpence halfpenny to ninepence." 
 
 "And the day after?" 
 
 "About the same as the day before." 
 
 "Yes?" says Alfred, making a mental note. 
 
 "Well, "continues the solicitor,whowasbeautifully 
 imposing on his counsel, "he was bid by the butcher 
 5fd, ; but Brown refused to take it. 'No,' said he, 
 'I'm commissioned to sell it for 6d., and no less." 
 
 Another mental note. 
 
 " 'The fact is,' says Brown the prisoner, 'the 
 meat has been taken away from the sheriff's officer 
 to avoid an execution.' " 
 
 "It would not have avoided an execution in the 
 old days, for the man would or tainly have been 
 hanged. When you say it was taken away to avoid 
 an execution " 
 
44 ILLUSTRATIONS IN ADVOCACT. 
 
 "I mean that an execution was expected, and — " 
 
 "Yes, yes ; that's a totally different thing. Pro- 
 ceed." 
 
 "Well, it appears that this Brown asked the 
 butcher to go and have something to drink at a 
 public-house." 
 
 "Just one moment," interposes Alfred; "did 
 Brown know this butcher?" 
 
 "Oh, yes; he had known him for years." 
 
 Another mental note. 
 
 "Well, they didn't have anything to drink, but 
 Brown tells him the meat is up at his place, mean- 
 ing his yard." 
 
 "Yes?" 
 
 "But before Brown gets home it turns out that a 
 burglary had been committed at a butcher's some six 
 miles off, and that this very meat was stolen ; and 
 the ticket that was in the sheep had got the name of 
 the man whose house had been broken into on it." 
 
 "What a very extraordinary thing!" exclaims 
 Alfred. 
 
 "Yes; but that is not all." 
 
 "I suppose not; but it's quite enough." 
 
 "It appears that the two men who hired the cart 
 the night before were well known to Brown, although 
 he couldn't swear that they were the men who had 
 hired it." 
 
 "Very curious ! Did he make an entry of letting 
 the cart in any book? 1 suppose he keeps books?" 
 
 "Oh, yes, there's an entry, fortunately." 
 
 "But no name?" 
 
STOLEN GOODS, CHALLENGING JTJKOES. 45 
 
 "No name, because he didn't know the men." 
 
 Another mental note. 
 
 "What's the next thing?" 
 
 "The next thing is that two of the prisoners, 
 Robinson and Smith, it appears, lodged in the same 
 house ; and in Smith's room was found another sheep 
 that had been stolen from the same man. That 
 being so, it would have looked suspicious against 
 them, only they don't appear to know anything 
 about it. It appears that an old woman lives in this 
 house, and is acquainted with this Robinson; in 
 fact, is his mother-in-law,and while she was sitting 
 up, with her back to the door, waiting for Robinson 
 to come home, for it was getting pretty late, some- 
 body, it appears — she can't say who — comes in 
 without her seeing him, and drops the sheep in the 
 middle of the floor !" 
 
 "Bless my soul !" exclaims Alfred. "Didn't she 
 see who it was?" 
 
 "No; it appears she didn't turn round. That's 
 all a mystery." 
 
 "Not usual, is it, in these parts for people to go 
 about dropping sheep in your rooms ?' ' 
 
 "No; but you see she was alone, and a little hard 
 of hearing." 
 
 "Did Robinson come home that night?" 
 
 "It appears he came in, and she never heard 
 him." 
 
 "It's an extraordinary story, certainly." 
 
 "It is an extraordinary story, sir, when you come 
 to hear the whole of it." 
 
46 ILLUSTRATIONS IN ADVOCACY. 
 
 "Well!" 
 
 "Well," says Jackson, "the next thing is this; 
 the man whose house had been broken into, hearing 
 where his meat was, goes up to Brown's house, and 
 just as he gets there up comes Brown. Bowles, the 
 prosecutor, says 'You've got some meat here belong- 
 ing to me.' " 
 
 " 'It's up in the yard,' says Brown, 'in a shed." 
 
 Another mental note. 
 
 "Bowles goes up the yard, and just as he gets 
 there he finds Smith and a man, who Bowles swears 
 was Robinson, and the other prisoner, Jones, har- 
 nessing the horse and putting him to." 
 
 "Who was Jones?" 
 
 "Jones was Brown's man, that's all." 
 
 "Oh, that's aWl" 
 
 "That's all he was, sir; and I believe he's inno- 
 cent as " 
 
 "As Brown himself . Yes?" 
 
 " 'Well,' says Bowles, 'that's my meat, and you 
 don't take it away.' " 
 
 " 'Don't we,' says Smith. 'We'll show you.' And 
 accordingly they jumped into the cart and away 
 they drove, Bowles running after them and hanging 
 on the tail-board. Now this is very important. 
 They drove to a place where the roads diverge, and 
 as they were going, they beat Bowles about the head 
 and face with a great stick, and, I understand, 
 wounded him severely. Well, they got away, and 
 at last it appears that the man they swear was 
 Eobinson got away too, but Smith was met by a 
 
STOLEN GOODS, CHALLENGING JTJROBS. 47 
 
 constable driving the cart, and was taken into cus- 
 tody. There's no defence for him." 
 
 "I hope he is not going to plead guilty." 
 
 "Why, sir?" 
 
 "They'll make him a witness for the Crown,that's 
 all." 
 
 "Oh, he won't plead guilty." 
 
 "What next happened?" 
 
 "What next happened is this. TDp come the 
 police and ask Brown what has become of the meat ; 
 and then Brown tells them that the owner of the 
 meat had come, and that the 'three men had gone 
 away together." 
 . "Which was not quite true," said Alfred. 
 
 "Well, Brown thought they had gone away 
 together." 
 
 "What ! when they were beating him over the 
 head with a stick ?' ' 
 
 ' Well, Brown couldn't see that. He thought he 
 was trying to get into the ca,rt behind, as some 
 people do at times ; but the police swear that Brown 
 pointed in the wrong direction, whereas he pointed 
 in the right direction with his thumb and finger, 
 like this. He pointed up the road they had gone, 
 although the road, as I said, branches off when you 
 get a little way up. The police also say that Brown 
 told them he hadn't let the cart, but he swears he 
 did, and produced his book to prove it." 
 
 4-nother mental note. 
 
 "And then I suppose they were all taken into 
 custody?" 
 
48 ILLUSTRATIONS IN ADVOCACY. . 
 
 ««Yes." 
 
 "Then it's a dead case. I never knew a more 
 hopeless one. How can I do anything for Brown? 
 It's impossible !" 
 
 "You've got off many a one that has been quite 
 as impossible as this?" 
 
 "Not quite so impossible." 
 
 "I haven't quite finished the brief," says Jackson, 
 "I want to make a few observations " 
 
 "Please don't — ^You need not trouble about obser- 
 vations; if a counsel wants observations he isn't 
 worth having." 
 
 This was a true remark; for nothing is more 
 irritating than to wade through a series of observa- 
 tions that are pertinent ; except, perhaps the task of 
 wading through a series that are not pertinent. If 
 they are pertinent, they must necessarily occur to 
 the most ordinary mind; if not pertinent, they are 
 worse than useless, for they tend to confuse. 
 
 Now the first thought that occurs to the young 
 advocate on reading these facts is, that no art could 
 obtain an acquittal. This was the view of the 
 learned Jones, but he made this remark: — "One 
 never knows what may happen." The witnesses 
 may waver in their evidence ; they may forget some- 
 thing important ; may try to make something that 
 is importantlook more important still, or may add to 
 their evidence. This should be carefully watched 
 for. They may contradict themselves. The prose- 
 cution may be too eager, and overshoot their mark. 
 They may be slovenly, and omit some important 
 
STOLEN GOODS, CHALLENGING JUEOE8. 49 
 
 particle of evidence.' They may call witnesses not 
 on the depositions, whose evidence has not therefore 
 been previously sifted,or rather sAaA;e»i together by an 
 unshillful cross-examination before the magistrate. 
 Look well for this ; and if a witness comes up who 
 has not been cross-examined, he will be altogether 
 unprepared for your questions, and probably play 
 into your hands, if you know how to examine him. 
 In this case, it will be abundantly manifest that to 
 call a witness without previous knowledge of all he 
 is about to say, or may be made to say in cross- 
 examination, is one of the most dangerous errors an 
 advocate can commit, and may lead not only to a 
 gross perversion of justice, but to some unpleasant 
 observations upon the party who calls him. 
 
 The case looks desperate enough for the defending 
 counsel; but to one with a moderately clear in- 
 sight into human nature it is not hopeless. Mr. 
 Alfred Jones had something of this insight, as was 
 manifest when he took his seat at the Bar and 
 glanced at the jury. He had a notion that juries if 
 they do not get packed, require at times a good deal 
 of unpacking. And, without desiring to cast the 
 faintest glimmer of a reflection on the oflSoials of 
 our Courts, who do their work in the most impartial 
 manner, I would just observe, that whenever there 
 is an important case to be tried, it's just as well to 
 look every juryman in the face, and see if you can 
 discover a prejudice either against the prisoner, his 
 trade or calling. You will ascertain also whether 
 
50 ILLUSTRATIONS IN ADVOCACY. 
 
 there is any appearance of parliiality for the prose- 
 cutor. 
 
 I know that a good many readerg will wondei 
 how you can tell this before the prosecutor puts in 
 an appearance. My dear sir, do look at that fore- 
 man: can you not see a gleam of triumph in his 
 face ? He knows what case he is going to try. 
 He has read all about it in the newspapers. He has 
 condemned the man before ever the case is opened. 
 Have him out of the box. I saw Jones look, and 
 he challenged him without a moment's hesitation 
 What a stir there was ! How the other jurymen 
 stared with amazement ! How they wondered 1 Tho 
 next man had a piece of blue ribbon in his coat. 
 Now, I very much admire the principles of blue 
 ribbonism, no matter of what nature soever; but it 
 sometimes bespeaks an excess of rigid virtue, not at 
 all conducive to the interests of Justice. The pris- 
 oner at the Bar is a man who drinks, and even 
 though only an occasional glass, he will be set down 
 in the opinion of some teetotallers (I don't say all) 
 as capable of committing any of that terrible cata 
 logue of crimes which one has been taught to believe 
 was the fearful failing of the man who "has no 
 music in his soul." The blue-ribbon man must 
 come out of the box in this case, and accordingly is 
 challenged. So much virtue is not suflSciently im- 
 partial for the administration of justice. 
 
 The jury again look wonderingly at one another. 
 Whose turn will come next ? Two jurors are duly 
 sworn, and then another challenge is given. A man 
 
o 
 
 STOLEN GOODS, CHALLEITGING JUEOK8. 51 
 
 with a very rigid face and long straight hair he is ; 
 looks as if a trial were merely a matter of form, 
 and not an enquiry. His mouth could never smile, 
 it is so extremely tight; and he has, as you per- 
 ceive, an eager desire to grasp the Testament and 
 be sworn. Just as he takes the book — 
 
 "Challenge!" says Jones, and the severe man 
 looks like a tiger disappointed of his prey. Cha- 
 grined and crest-fallen, he leaves the jury box. 
 The next is a smiling man; a ruddy farmer, who 
 means to protect property against all comers. His 
 smile informs you that he can see through a brick 
 wall, which means any learned counsel, and find a 
 "Werdick in spite o' these' ere counsellors, whose 
 gift o' the gab aint to take in sich as he." He'll 
 not see through this brick wall, with all his keen- 
 ness of vision, and doesn't understand why he's 
 challenged, any more than the tight-faced man, or 
 the triumphant-faced man. The blue-ribbon man 
 has an inkling as to why he was challenged, but puts 
 it on a teetotally wrong ground. He thinks it was 
 the blue-ribbon. So it was; but only as indicating 
 an excess of virtue not comme.nsurate with the 
 human understanding. 
 
 Three more were sworn, and then came a moment- 
 ary difficulty in the mind of the counsel. What was 
 the meaning of' those pleading eyes? They said, as 
 plainly as eyes can speak, "Surely, Mr. Jones, you 
 are not going to turn I out; I swear on my bible 
 oath, I will do Justice to the best of my ability." 
 And as his ability, judging from the view, seemed 
 
62 ILLUSTRATIONS IN ADVOCACY. 
 
 considerable, he was allowed to remain. But what 
 about the next, a sullen-looking man, who never 
 raised his eyes, but seemed waiting for condemna- 
 tion. You artful one, James Eodger, you want to 
 slip by the scrutinizing glance of the prisoner's 
 counsel. Your face blushes with conscious deter- 
 mination that no prisoner shall escape, if your "So 
 help me God" can help it; so you shall not "well 
 ,and truly try," nor shall you try this case at all, for 
 you are challenged. Out upon thee 1 
 
 The rest are sworn, and the prisoners given in 
 charge. 
 
 The case is opened clearly and well ; dry, damning 
 facts, without argument, as becomes counsel for the 
 prosecution, are laid before the jury. All that 
 mortal man can do for the defence in such a case is 
 to jvatch, to elicit some little point, if possible, in 
 cross-examination, "to go to the jury upon;" and 
 to take up such points as there are in the prisoner's 
 favor. And this is how it was done. 
 
 First witness proves the breaking in and stealing. 
 
 Time not certain, hence it was triable at Quarter 
 Sessions. If it had taken place at a minute before 
 nine it is triable at Sessions, if a minute after it 
 must be at the Assizes. I mention this to point out 
 the legal niceties and pettifogging wisdom of our 
 mode of legal procedure. 
 
 No cross-examination. 
 
 Why ? asks the reader. 
 
 My answer is, why? If the reader can think of a 
 reason beyond that of getting out something which 
 
STOLEN GOODS, CHALLENGUNG JUROES. 53 
 
 may damage the prisoners, I should be glad if he 
 wiU write to my publishers. If he cannot he has 
 his answer to the question. 
 
 The cross-examination, indeed, was the shortest 
 that could be administered, and was simply for the 
 purpose of establishing the following points, and 
 impressing them on the minds of the jury. 
 
 First — That the ticket in the sheep contained the 
 name and address of the owner. 
 
 Second — That the butcher in the market to whom 
 Brown offered the meat was well known to him and 
 was a respectable man. 
 
 Third — ^That the said respectable butcher had often 
 had dealings with Brown in his capacity of letting 
 out vehicles. 
 
 No question of character, you see, but indirect 
 suggestions leading to inferences. The prisoner 
 knew a respectable tradesman who was probably 
 known to some of the jury; a kind of reflected 
 moonshine character, no doubt, and very faint; 
 something like the dark orb in the arc of the new 
 moon, but still visible. I might say a twilight 
 character, indicative of a rising splendor which 
 never appeared. 
 
 Fourth — ^It was in consequence of Brown's going 
 to this respectable tradesman that the police discov- 
 ered where the stolen property had been deposited. 
 
 The question eliciting this fact, I observed,was put 
 to the detective in the following words: — 
 
 "It was from information communicated to you 
 by the respectable butcher, and which had been 
 
54 ILLUSTEATION8 IN ADVOCAOr. 
 
 given by Brown, that you discovered where the 
 meat was?" 
 
 "That is quite right, sir," says the very civil 
 detective, and he was not troubled with any further 
 questions. 
 
 It looked, therefore, as if there had been no con- 
 cealment, at all events, on the part of Brown, always 
 a good point to make in a charge of receiving. 
 
 There was, as before stated, no defence for Smith, 
 but Jones and Eobinson were admirably defended by 
 another learned counsel, whose assistance to Alfred 
 was by no means unimportant. lie knew that 
 Brown's defence would be endangered by any un- 
 skillful question, and that his own clients could not 
 possibly be benefited by it. So he put no unskillful 
 question, but played his cards as though he not 
 only knew his partner's hand but his play too. 
 
 I do not pause to summarize the case, or to en- 
 quire how it would have been presented to the jury 
 if the evidence had stopped at this point, and for 
 this reason, that from some strange cause or other, 
 after all the witnesses who had abundantly proved 
 the case before the magistrates had been heard, the 
 prosecution thought it advisable to call further evi- 
 dence, which was as follows: — 
 
 A detective sergeant swore that he was present 
 when Brown was apprehended. That he was ap- 
 prehended by a German detective named Von Bus- 
 ter. That he heard this Von Buster say, "Ha ! ha ! 
 Chemmy (meaning Jemmy), we are cooart you at 
 larst — I sed we shood 1" To which the prisoner re- 
 
STOLEN GOODS, CHALLENGING JUEOE8. 55 
 
 plied "Well Mr. Buster, it's all for money; you know 
 it's a paying game!" 
 
 Now this, if true, was an awkward circumstance, 
 and, coupled with the other awkward circumstances 
 of the case, would be about as complete a coil as 
 ever spider' wove around the body gf a struggling 
 
 fly- 
 
 But let the student mark for his amusement, not 
 for his instruction, the manner in which the counsel 
 deals with this; because, if this evidence should 
 break down Brown undoubtedly will be acquitted. 
 The reason is obvious, but had better be stated. 
 The prosecution show that they are doubtful of the 
 strength of their chain although every link of it 
 was strong enough to hold the prisoner. Not being 
 quite certain of their handiwork they supplement it 
 with doubtful evidence, and attaching that to the 
 chain in a clumsy and unscientific manner, if by any 
 chance it gives way the prisoner necessarily escapes. 
 Let us see how it holds. 
 
 Asks the counsel: "Were you before the magis- 
 trate?" 
 
 "No," says the detective with sweet detective 
 innocence. 
 
 "I suppose you think this evidence important?" 
 
 "Oh yes, sir, certainly." 
 
 "Was Von Buster before the magistrate?" 
 
 "He were not, sir." 
 
 "Is he here?" 
 
 "No sir." 
 
 "What brought you herer 
 
56 ILLUSTRATIONS IN ADVOCACY. 
 
 "A speener." 
 
 This was detective wit, but it was not clever, in- 
 asmuch as the police do not generally attend in 
 prosecutions on subpoenas. If their evidence is 
 material, it is their duty to give it without subpoena 
 or extra pay. -So the witty answer was in favor of 
 the prisoner's acquittal. Wit sometimes is more 
 than amusing, it may be useful. 
 
 "Did you make a note of the conversation which 
 you heard?" 
 
 "No sir." 
 
 "Why not?" 
 
 "I don't know." 
 
 "You thought it important?" 
 
 "Yes." 
 
 "Did you not think it so important that it 
 amounted to a confession of guilt?" 
 
 "I did." 
 
 The counsel does not apparently wish to argue the 
 matter with the constable, because, having obtained 
 all he wants as facts, he wants no policeman's rea- 
 sons for the mere purpose of weakening them. But 
 there are still one or two things he would like to 
 throw some light on, so that. the jury might view 
 this evidence from his point of view and not from 
 the policeman's. How came the detective to give 
 evidence at all ? That is the important point, and 
 the counsel knows it to be a safe one, after the 
 witty answer about the subpoena, so he asks: — 
 
 "When did you first make this statement to any- 
 one?" 
 
STOLEN GOODS, CHALLENGING JtrROES. 57 
 
 Most awkward, because it is clear he never gave 
 it to the inspector on duty, otherwise he would have 
 had to give it before the magistrates. Clear, he 
 never gave it to the solicitor for the prosecution, for 
 the counsel opened as much. Then when did he 
 first make the statement? 
 
 "It was as this," says the detective: "I were in 
 the 'all here in another case yesterday and meets 
 the clerk to the solicitor for the prosecution, and be 
 asked me if I knowed this 'ere Brown, and then I 
 up and told him the same as I've told you." 
 
 One more question. "Did Von Buster know that 
 you had heard this confession?" 
 
 "He did, sir." 
 
 "You may stand down." 
 
 There is nothing to be done by re-examining this 
 witness, because he is in so many pieces that he is 
 like Humpty-Dumpty after the catastrophe. So he 
 stands down. It is not attempted to set him up 
 again. 
 
 It is clear that Brown's counsel will commence his 
 speech with this detective and the absent Von Bus- 
 ter, because, in breaking down this man's evidence, 
 he will show the weakness of the other parts of the 
 case. So he gives the jury to understand that, 
 although Von Buster's mode of proceeding with a 
 prisoner might do for Germany or France, it was 
 not quite in accordance with an Englishman's notion 
 of fair play, to which proposition the patriotic jury 
 assented in the most unequivocal manner. They 
 clearly entertained strong prejudices against so 
 
58 ILLUSTRATIONS IN ADVOCACY. 
 
 un-English a mode of procedure. And, when it 
 was pointed out to them, the fact was as plain as 
 a hayrick, that if Brown had confessed his guilt to 
 Von Buster, nothing would have prevented Von 
 Buster from giving it in evidence before the 
 magistrate. How could this look otherwise than 
 suspicious against the prosecution? 
 
 Why was not Von Buster or the sergeant before 
 the magistrate? And why was not Von Buster 
 heref Why was no report of such a remarkable 
 circumstance made? And why was there not so 
 much as a memorandum of it in the detective's 
 pocket-book? All the other evidence was weak 
 compared to this, and weak it must have appeared 
 to the prosecution, to have been obliged to supple- 
 ment it at the last moment. 
 
 Well might the jury shake their patriotic heads 
 in token of disapproval of this foreign mode of 
 proceeding. It looked to them like a concocted 
 story altogether. 
 
 So Von Buster and the detectives are well belabored 
 with good sound invective and honest indignation, 
 until the jury's indignation is fairly excited and in 
 flames against the prosecution. This makes a good 
 clear opening for the arguments that must be used 
 to break down the rest of the evidence if that can 
 be accomplished. Now come the improbabilities. 
 First, the improbability that Brown knew the meat 
 had been stolen ; for, was there not the ticket on the 
 sheep with the name of the owner on it? That 
 would surely have been destroyed if the man had 
 
STOLEN GOODS, CHALLENGING JUEORS. 59 
 
 had any guilty knowledge. Next, it was unlikely 
 that Brown, if he had known the meat had been 
 stolen, would go to the open market to sell it, and 
 to a respectable man to whom he was well known. 
 So far as the price was concerned, it was disposed 
 of by the fact that the sale was forced. It had to 
 be sold because, as he supposed, it had been taken 
 away to avoid being pounced upon by the sheriff's 
 officer. 
 
 The next point was that, although the respect- 
 able .butcher had offered to take it at a farthing 
 under the price at which it was offered, Brown 
 would not let it go, but declared he was not to take 
 less than six-pence a-pound ; whereas, if he had 
 known it had been stolen he would have been glad 
 to take anything in order to get rid of it as soon as 
 possible and avoid discovery. 
 
 That was a good telling point ; it went straight to 
 the jury, and seemed to hit the foreman on the 
 nose, for he rubbed it with his forefinger and stared 
 with intelligent wonder. It never struck him so 
 before. Then he looked round at his fellow jury- 
 men and passed the blow on. 
 
 Next came the point that, in reality, it was Brown 
 who had given such information as actually led to 
 the discovery of the meat. I say "such," 
 advisedly, leaving the jury to take it for what 
 it was worth — ^they would put their own price upon 
 it. 
 
 Another point, not immaterial, was that Brown 
 had actually produced the book in which was a note 
 
60 ILLUSTRATIONS IN ABVOCACT. 
 
 of Che letting out of the trap to the two men who 
 committed the robbery. It is true there were no 
 names entered, but as the learned counsel could not 
 help that, he did not refer to it. The speech was 
 concluded with a good, vigorous attack on the mode 
 in which the prosecution had endeavored, at the last 
 moment, to bolster up their case; and, with a scath- 
 ing eulogy on the continental artfulness &nd cun- 
 ning of the absent Von Buster, the counsel resumed 
 his seat. 
 
 Then, with adroit and well-considered arguments, 
 the learned counsel for Jones followed. Wherever 
 Brown's counsel had delivered a blow, Jones gave a 
 well-directed kict and sent Von Buster d,nd his ser- 
 geant colleague reeling. He was a vigorous and 
 courageous ally, and no doubt Brown's acquittal was 
 due as much to his timely support as to his own 
 counsel's skill. He was Blucher at Waterloo. 
 
 Brown declared he left the court without a stain 
 on his character, which was true. Suspicion on 
 suspicion, I believe, is false heraldry. 
 
61 
 
 CHAPTER V. 
 
 IN ACTIONS AGAINST RAILWAY COMPANIES FOR NEGLI- 
 GENCE. 
 
 An important class of cases at Nisi Prius is the 
 action against railway, street railway and omnibus 
 companies for injuries caused by negligence. In 
 general, at starting, every presumption is against 
 the company and in favor of the plaintiff. The 
 sympathy of the jury is on the side of the injured ; 
 negligence is almost assumed, and the making com- 
 pensation appears to be a matter of simple justice 
 and calculation. Apart from negligence at all, 
 companies are looked upon as a kind of public 
 exchequer, into which juries may thrust their hands 
 and take out whatever they can lay hold of for the 
 benefit of any claimant who can lay anything like 
 a foundation for his demands : the foundation often 
 being the injury, apart from any negligence what- 
 ever, and as often the negligence apart from any 
 
62 ILLUSTRATIONS IN ADVOCACY. 
 
 proof that it occasioned the injury. As a rule, 
 companies well understand their position, and know 
 that the chances, if not the facts, are against them. 
 The best evidence they can adduce is generally the 
 testimony of interested persons, and more often 
 than not, of those persons who have the most 
 direct interest in shielding themselves from blame. 
 The principal aim which companies have in resist- 
 ing claims of this kind is a mitigation of damages, 
 and with this main object in view the majority of 
 defences are conducted. The advocate, therefore, 
 who is most skilled in cutting down damages is the 
 best suited to the purposes of the company. He is 
 a destructive agent rather than a builder up of unsub- 
 stantial theories. But let it not therefore, be sup- 
 posed that a real defence upon the merits is of lit- 
 tle moment. It is of the very highest importance, 
 anias it is generally looked upon with considerable 
 suspicion and prejudice, is one of the most difficulj; 
 to conduct. 
 
 I might give many examples from sensation cases 
 which would be more interesting than the common- 
 place one I am about to present, but I doubt if any 
 one of them would so thoroughly answer my pur- 
 pose. We do not want dazzling coruscations or 
 models of perfection. Startling surprises are not 
 the object of these illustrations. The simpler the 
 facts and the more common-place the line taken the 
 more telling the incidents are likely to be. 
 
 Two years before the present trial, the plaintiff, 
 a working man, was traveling by the railway from 
 
ACTIONS FOR NEGLIGENCE. 63 
 
 Wapping to Whitechapel. His case was simply 
 this, that, before he had time to alight, the train 
 started and jolted him off the step of the carriage 
 on to the platform and injured his kdee, for which 
 injury he brought his action in the following year. 
 The result of the trial was no result at all. The 
 jury could not make up their minds as to whether 
 the company was liable or not. Undecided as to 
 whether negligence on the part of the company or 
 negligence on the part of the plaintiff, or both ; but, 
 if both, as to whether the company could still have 
 avoided the accident by exercise of reasonable care. 
 The twelve special heads in mystified chaos accord- 
 ingly. Some months after the case was tried again 
 with the same result, namely, twelve special heads 
 in mystified chaos. 
 
 To illuminate this utter -darkness twelve more 
 special heads were brought together in the jury- 
 box, and the cause was once more tried. As I 
 never flatter mortal man I do not wish to be sup- 
 posed to say anything of a complimentary nature 
 to the learned judge ; but, in sober truth, I affirm 
 that the manner in which his lordship kept the 
 points of this case clearly to the front throughout 
 the long and conflicting series of witnesses speaks 
 well for the clearness and inflexible justice with 
 which the trial was conducted. 
 
 I wish to impress on the reader that in the open- 
 ing several microscopical points were made, which 
 turned out to be no points, even under the strong- 
 est forensic lens. It was through no fault of the 
 
64 ILLUSTEATIONS IN ADVOCACT. 
 
 learned counsel, but in consequence of the inad- 
 vertence of those who instructed his solicitors, 
 that these imaginary points -were beyond human 
 vision. 
 
 First of all, it was said the trains- were "always 
 an hour late.' ^ If this had been true, it would no 
 more have accounted for the accident than it would 
 for the motions of the heavenly bodies. If it was 
 untrue, it threw discredit on the alleged cause of it, 
 and so was in favor of the defendants. A false 
 point always counts one for the other side. It was 
 shown to be untrue. Having subsequently been 
 corrected by the opposing counsel, it was opened 
 that the train was /br^y jwi'nwfes late. This point, 
 therefore, twenty minutes smaller than the other. 
 
 Secondly — ^It was opened that the train made up 
 three minutes between Whitechapel and Liverpool 
 Street. This also turned out to be a false point, or 
 no point, for two reasons. First, the train only 
 travelled a mile and a quarter in Jive minutes, not a 
 pace to indicate any extra speed or eagerness to 
 make up time; and, secondly, a margin of some- 
 thing like four minutes was allowed in timing the 
 arrivals of trains in consequence of their being 
 obliged at times to wait outside the terminus before 
 they could enter. But there being no obstacle on 
 this occasion to the train running in instead of wait- 
 ing outside, the three minutes were accounted for, 
 not made up by accelerated speed, but by not being 
 delayed outside the station. Thus two false points 
 were made and disposed of, and the probability to 
 
ACTIONS FOR NEGLIGENCE. 65 
 
 which they gave a possible existence was crushed 
 before it had a breath of life. Thirdly — the plaint 
 iff would swear, said his counsel, that he went to 
 work seventeen weeks after the accident, but for 
 eight weeks could only earn twenty-two shillings a 
 week instead of thirty-five. A false point, truly, 
 because the man had sworn on two previous trials 
 that when he went to work, after the seventeen 
 weeks, he was as well as ever, and earned the same 
 money as before. This went very directly and for- 
 cibly to the man's credit in cross-examination, and 
 no doubt flashed one gleam into the utter darkness. 
 I will now take the points of the material evidence 
 in chief, and alongside of them show the cross-ex- 
 amination, leaving the reader to judge of their 
 value. 
 
 The plaintiff ceased work about half-past three 
 and waited for a man who left his work between 
 four and five. He lived near Shoreditch Station. 
 He was to meet his wife at Whitechapel, and- go 
 shopping with her. He then described the accident, 
 as opened by his counsel in accordance with his in- 
 structions. His cross-examination showed : 
 
 First — That he had been drinking that afternoon 
 with some companionSj and that, although he him- 
 self remained as sober as a judge, one of his com- 
 panions got drunk as a lord, but did not leave him. 
 From this fact, perhaps, the twelve special heads 
 can gather that the contradictory evidence of the 
 witnesses who will be called for the defendants, and 
 who had not been drunk, will be at least as trust- 
 
66 II.LUSTRATIONS IN ADVOCACY. 
 
 worthy as to clearness of observation of what took 
 place on that night as that of the plaintiff and his 
 drunken witness. 
 
 Secondly — the plaintiff, who was to meet his wife 
 at Whitechapel, took his ticket at increased cost of 
 fare for Shoreditch, the station beyond. This 
 showed either reckless waste of pence, or that he 
 forgot he was to alight at Whitechapel to meet his 
 wife ; or that the story of the appointment to meet 
 his wife was a concocted one, invented to account 
 for his alighting from Whitechapel when he ought 
 to have quietly remained in the carriage. 
 
 Thirdly — his wife did not go to Whitechapel to 
 keep her appointment. 
 
 Fourthly — His object, as he stated, in meeting his 
 wife at Whitechapel, . was to buy meat and carry it 
 to Shoreditch, whereas he could buy it close at home 
 for the same price and of the same quality. So 
 there was no accounting for his getting out at 
 Whitechapel at all, and the theory of the appoint- 
 ment with his wife was absurd when neither the 
 time nor the place of meeting was agreed upon, and 
 neither went to keep the appointment. The story 
 had nothing to do with the cause of the accident or 
 the merits of the plaintiff's case. But why was a tise- 
 less story told? It was told to account for a fact 
 which the plaintiff did not know how to account 
 for in any other way ; and you may always rely 
 upon it that when a plaintiff or defendant gives a 
 false reason for any line of conduct, he is afraid of 
 the true reason damaging his case. In this instance, 
 
ACTIONS FOB NEGLIGENCK. 67 
 
 it could only damage his case by indicating reck- 
 lessness of conduct in alighting, which recklessness 
 would seem to be the cause of the accident. 
 
 Fifthly — The plaintiff did not enquire for his wife 
 at Whitechapel, but forgot all about her. He 
 admitted also that he might have been under the 
 influence of drink on the night of the accident. 
 Before he answered the question which was put to 
 him at the solicitor's office as to whether he was 
 sober, he went to the "hospital, saw the nurse who 
 had attended him on the night of the accident and 
 ashed her if he was sober, to which she replied that 
 he was under the influence of drink. 
 
 Then asked the learned judge — 
 
 "Why did you not give that answer before?" 
 
 "I did, my lord," said the plaintiff. 
 
 "No answered his lordship; "you wanted to 
 attribute your condition to excitement, when it was 
 not excitement." 
 
 False points, therefore, made by counsel; false 
 testimony given by plaintiff, and false reasons 
 adduced for conduct which required no reasons to 
 be given at all. A true story is generally simple 
 enough ; a false one gives the lie to surrounding cir- 
 cumstances, and has to be accounted for by false 
 reasoning and imaginary causes, and usually gets 
 blocked by real facts which it cannot displace. 
 Then this false story is so awkward when it has to 
 be supported by more than one witness. The com- 
 panion who was drunk swore he wasn't, and yet he 
 was admitted to be drunk by the counsel for the 
 
68 ILLUSTRATIONS IN ADVOCACY. 
 
 plaintiff. Another witness also declared he was not 
 drunk. Plaintiff himself swore he was. Again, the 
 plaintiff said there was not time to get out, that the 
 train started as soon as it stopped, and yet that two 
 persons had alighted from the same compartment, 
 as well as an old woman, who took a long time to get 
 out, before he attempted to do so. 
 
 Another importaat circuihstance was, that he 
 had previously sworn he took his ticket for White- 
 chapel (this was to fit in with the theory of meet- 
 ing his wife), and now he had to swear he took it to 
 Shoreditch. Here there was a fact capable of 
 proof attempted to be displaced in order to fit in an 
 imaginary fact. How, then, does the matter stand 
 after cross-examination, according to the learned 
 counsel for the defendant Company? 
 
 Train not an hour late, as opened; time not made 
 up in consequence of being late ; no time made up 
 at all ; train not traveling at more reckless speed 
 than twelve miles an hour. There was time for 
 persons to get out. Plaintiff had not to meet hig 
 wife at Whitechapel, or he would not have booked 
 to a more distant station. Neither time nor place 
 mentioned where he was to meet her. He did not 
 inquire for her at Whitechapel. She did not go to 
 Whitechapel. (Upon this point I may also state the 
 wife gave false and absurd reasons for not going.) 
 He had been drinking. His companion was drunk. 
 
 He had given false statements as to his earnings, 
 and as to the time of his being incapacitated to do 
 work full time. 
 
ACTIONS FOR NEGLIGENCE. 69 
 
 But, notwithstanding all this, how did the acci- 
 dent happen? He might have been drunk, but 
 still the Company had no right to injure hini. He 
 might be a false witness, but yet he had met with 
 an accident, and if it arose from the Company's 
 negligence he was entitled to compensation. 
 
 In a defence of this kind you have not to show 
 how the accident happened. That is for the plaint- 
 tiff. You have only to prove there was no negli- 
 gence on the part of the Company. If you can 
 show negligence in the plaintiff, well; and in sug- 
 gesting this negligence as the probable cause of the 
 accident, all the points made were good, because 
 they gave rise to probabilities ; nevertheless these, 
 although good, were not conclusive. There was 
 the fact of the accident and the probable cause of it 
 given by the 'plaintiff, who, although untrustworthy 
 in many particulars, was not utterly unbelievable 
 as to this. Suggestions, therefore, on the part of 
 the Company will not wipe out this direct evidence ; 
 but a good suggestion as to the probable cause 'of 
 the accident was made, based upon an answer to a 
 question in cross-examination. The plaintiff stated 
 that he knew some trains did not proceed farther 
 than Whitechapel, and the suggestion was that he 
 hurriedly jumped out for the purpose of catching 
 another train, and, in so doing, fell. 
 
 I do not think there were any facts up to that 
 time on which the suggestion could be based, 
 beyond the plaintiff's knowledge that passengers 
 sometimes have to change; the suggestion, there- 
 
70 ILLUSTKATION8 IN ADVOCACY. 
 
 fore, was not evidence, and did not induce the jury 
 to stop the case, so witnesses were called, who 
 proved that the plaintiff and his companions were 
 not sober in their language and conduct while in the 
 carriage ; and that, after the accident, the plaintiff 
 had stated that he thought they had to change car- 
 riages. I need not say there was abundant evi- 
 dence to prove a total absence of negligence on the 
 part of the defendants ; but it took a great many 
 witnesses and a long time to do it, and it took the 
 jury a couple of hours to consider their verdict. At 
 last; however, the thrice-told tale was brought to a 
 conclusion by a finding in favor of the defendant 
 Company. 
 
 Juries, truly, are an incomprehensible body. I 
 do not think the direct evidence on the part of the 
 Company would have been sufficient to lead them to 
 the conclusion they arrived at, because it simply 
 went to show that the train stopped long enough to 
 allow passengers to alight ; that the doors were shut 
 properly, and that the guards did their duty. AU 
 this would have looked like mere evidence of course, 
 on the part of the Company, and was, as usual, of 
 such a character that, if accurate, there could have 
 been no accident at all. When a man has lost a 
 leg or an arm it is useless to attempt to prove that 
 it was th« result of a miracle. Miracles are so rare 
 now-a-days that they are never believed in a Court 
 of Justice. Over-swearing is worse than not swear- 
 ing up to the mark. What you have to look for in 
 the plaintiff's case are false points, false arguments. 
 
ACTIONS FOE :^GLIGENCE. 71 
 
 absurd reasons for reasonable conduct, exaggera- 
 tions, perversions of simple facts, unnatural theo- 
 ries, improbable motives and contradictions. All 
 these were found in abundance in this case, and the 
 wonder was that the jury should have taken any 
 time to consider their verdict. It only proves how 
 difficult it is for the most experienced counsel to 
 overcome the prejudice and benevolence that at 
 times find their way into the jury-box. , 
 
73 
 
 CHAPTER VI. 
 
 IN ACTIONS AGAINST STREET RAILWAY COMPANIES. 
 
 My next illustration is an action against a street 
 railway company for damages in consequence of the 
 defendants' negligence. It differs greatly in the 
 mode in which the defendants conducted their case 
 from the last, although the circumstances attending 
 the accident were similar, and the alleged negli- 
 gence precisely of the same character. 
 
 The reader will smile when I say that in conduct- 
 ing a defence much wUl depend upon the line you 
 take. 
 
 "Of course it will," he exclaims, contempt^ 
 uously v but I want to point out, my dear and impst- 
 uous friend, how the true and the false lines run 
 so nearly parallel that it requires careful study and 
 knowledge of human nature to distinguish them. 
 I am dealing in these cases for the most part with 
 leaders, not with inexperienced juniors; and, if 
 
AGAINST STREET RAILWAY COMPANIES. 73 
 
 leaders with all their practice, fail sometimes to 
 discern the left hand from the right, it shows how 
 carefully advocacy should be studied, and how use- 
 ful models may become, whether they are models of 
 beauty or deformity. Have patience with me, 
 therefore, when I say that much depends upon the 
 line you take. 
 
 In the present case a middle-aged lady, whose 
 husband was a builder, and carried on his business 
 at Scarborough, was on a visit in London. Going 
 out one morning to "do a little shopping" she hailed 
 a street-car, which was just in the act of starting. 
 The conductor stopped the car, and the lady, a 
 portly person, was just in the act of getting on to 
 the platform when on it started, and as the lady had 
 one foot on the step and the other on the ground, 
 her footing was somewhat unstable, and down she 
 went on her back with considerable violence. She 
 was picked up and taken to a doctor, where she 
 fainted, was taken to her lodgings, and remained 
 there several weeks under medical treatment. She 
 then returned to her home, and, after some time, 
 becoming worse, called in a local doctor. That 
 ge^ntleman at once perceived that a rib was fractured, 
 and immediately reported the fact to the manager of 
 the Company, who some time after communicated 
 the report to the medical adviser. That gentleman, 
 however, pooh-poohed the idea of a broken rib wilii- 
 out further examination, although the local doctor'' b 
 letter had stated that if the Company's doctor would 
 come down he could not only ascertain from the 
 
74 ILLUSTRATIONS IN ADVOCACY. 
 
 ordinary examination that the rib was fractured, but 
 could distinctly hear that it was broken when the 
 patient breathed. But the Company's doctor, satis- 
 fied with his previous examination, was prepared 
 without further enquiry, to swear that if a rib had 
 been broken he must have discovered it. One or two 
 other doctors would also give evidence that it was 
 impossible for a rib to be broken, and not discovered on 
 examination. The reader will bear this in mind, 
 for it wUl become important on the motion for a new 
 trial. 
 
 One further statement there was in the local medi- 
 cal gentleman's letter to this effect, that "he re- 
 ported the fact of the broken rib to the Company 
 in order that they might send some one at once, so 
 that it could not be alleged hereafter that it was a 
 hole and corner examination." 
 
 What a straw this was for counsel to catch at will 
 be seen in the course of the trial. That counsel 
 should clutch at it I am not surprised, because a 
 straw sometimes in a Court of Justice, if adroitly 
 exhibited, will look as substantial as a floating spar; 
 but how any human being could believe it to be a 
 lifeboat passes the comprehension of my unimagina- 
 tive mind. 
 
 The question in the case was simple enough=r-i?jd 
 the car start before the plaintiff had time to enter? 
 
 The CTossTexamination of the plaintiff and her 
 witnesses will be amusing. It was clever but un- 
 soruplous ; ingenious but unmerciful. It was clearly 
 not based on any profound knowledge of human 
 
AGAINST STREET RAILWAY COMPANIES. 75 
 
 nature, for the human nature in the jury-box resisted 
 and resented it. 
 
 "Did you not once keep a greengrocer's shop?" 
 the plaintiff is asked. 
 
 The question certainly seems a long way from the 
 issue; but, I suppose, being admissible, it went to 
 show that a greengrocer's rib is not quite so valu- 
 able as the rib of a builder's wife. It means some- 
 thing you may be sure. 
 
 The answer was "Never." 
 
 The foundation on which this question was based 
 was this ; There had at one time been a front-room 
 occupied as a greengrocer's shop on the premises 
 where the plaintiff resided. But even if the plaint- 
 iff did keep a greengrocer's shop, it had little to do 
 with the question as to whether there had been neg- 
 ligence on the part of the Company in starting the 
 car before the plaintiff, greengrocer or no green- 
 grocer, had time to get in it. Nor do I perceive 
 how keeping a greengrocer's shop went to the credit 
 of the witness. 
 
 The next question was whether her husband had 
 mortgaged his houses'^ 
 
 Answer: "I don't know." 
 
 "But you keep the books?" 
 
 "I keep the books." 
 
 "And your husband has claimed damages for the 
 loss of your services in keeping the books? 
 
 "T don't know." 
 
 "What c?o you do?" 
 
 "I let his houses and keep his rent-books." 
 
76 ILLUSTRATIONS IN ADVOCACY. 
 
 "Has he got any houses?" 
 
 "Yes." 
 
 "Has he not applied for donations to a friendly 
 society because he was hard up ? 
 
 "I don't know." 
 
 "Will you swear that?" 
 
 "Will I swear what?" 
 
 Counsel hardly knew how to answer — he was being 
 cross-examined now. 
 
 So, not making anything of the greengrocer's 
 shop, and nothing of the mortgages, the learned 
 counsel "tackled" her upon the accident, and strove 
 to make out that she ran a considerable distance 
 after the car, and endeavored to enter it while in 
 motion ; a futile endeavor, certainly, seeing that this 
 middle-aged lady had hailed the car while she was 
 about a hundred yards behind, and would have had 
 to travel at the rate of about twenty miles an hour 
 for an hour and-a-quarter before ever she could 
 overtake it. This was a glaring improbability set 
 up by the defendant Company. 
 
 The jury wagged their heads and smiled. 
 
 No doubt it is possible in a circus for a clever 
 equestrian to vault on to the back of a horse while 
 the animal is going at full speed ; but it is different 
 in the case of a street-car, and a lady cannot vault 
 into it while it is going at a velocity of eight or nine 
 miles an hour, especially if she is a couple of hundred 
 yards behind, and only progressing at the rate of 
 two miles an hour. 
 
 So the cross-examination, admirable as it was, 
 
AGAINST STREET RAILWAY COMPANIES. 77 
 
 failed. And let this be remembered by aspiring 
 students ; when you fail in cross-examination you 
 are in a worse condition than you were before you 
 began. There was a similar cross-examination ad- 
 ministered to the other witnesses, every question 
 irrevelant to the issue, but going directly to the 
 credit of the witnesses. 
 
 Next came the important witness in the case with 
 regard to the injuries, namely, the local medical 
 man. In private life you would scarcely venture 
 to express a doubt as to the veracity of a gentle- 
 man, and you might innocently imagine that even 
 upon his oath there would be some recognition of 
 his desire to tell the truth — at all events, some 
 respect for his professional reputation. 
 
 The doctor gives his evidence fairly enough; 
 states how he was called in, examined the woman, 
 and discovered the broken rib, evidenced by crepi- 
 dus ; how that he immediately wrote the report ; 
 that he continued to attend the patient, for which 
 attendance he had charged a moderate sum, not 
 enouofh one would have thought to bribe him to 
 commit wilful perjury, and so run the risk of penal 
 servitude. 
 
 One would also have thought that if the Company 
 had doubted this gentleman's word when he sent the 
 report, they would have taken some means to test 
 its truth. They could easily have sent down their 
 medical officer to ascertain whether there was a 
 broken rib and crepidus or not ; and if there had not 
 been, the resident medical gentleman , would have 
 
78 ILLUSTRATIONS IN ADVOCACY. 
 
 been nicely caught. But they preferred to meet his 
 statement by mud, a bad argument at all times, 
 unless you are lodging a complaint against the ves- 
 try as to the state of the roads. 
 
 Now let me ask the student to consider what 
 there was to cross-examine this witness about in the 
 absence of any evidence to contradict his statement. 
 There was really nothing, except as to the nature of 
 the inquiries with a view to minimise the damages. 
 A judicious question or two as to the nature of the 
 injury, and the mode of treatment to which the 
 lady had previously been subjected by the first doc- 
 tor she had called in, was all that true advocacy could 
 have warranted. Instead of this, the Company 
 instructed their counsel to ask these questions; — 
 
 "Will you swear the rib was broken?" As if 
 the doctor, having sworn that it was, would now 
 swear to the contrary because the learned counsel 
 invited him to do so. It is so like asking a witness, 
 "Will you swear you have not committed perjury in 
 your last answer?" — with a view to prosecute him 
 either for the first statement or the second. This is 
 an almost exploded style of cross-examination. I 
 do not say that an extremely effective question, 
 similar to this, may not sometimes be put, but it 
 can never be asked to contradict a hard fact which a 
 witness has made up his mind to swear to. Try as 
 you may, you cannot get him to put his foot upon 
 his own neck. The question may be usefully asked 
 when a witness has given a careless answer or an 
 inconsidered answer, damaging to the cross-examin- 
 
AGAINST STREET RAILWAY COMPANIES. 79 
 
 ing counsel, and the witness is reminded by the 
 form of the question that he is o^ his oath. This 
 goes to the certainty of the witness, and not to his 
 credit. You may rely upon it that when a witness 
 speaks from knowledge and with certainty, no 
 amount of "Will you swear to that, sir," will induce 
 him to contradict his former answer. 
 
 I come now to the next question which the learned 
 counsel was instructed to ask of this medical gen- 
 tleman, and it was this: — 
 
 " You have been in trouble, haven't you?" 
 
 "In trouble !" exclaims the astonished witness. 
 
 "Yes, in trouble. You know what I mean?" 
 
 "Indeed, I don't," says the witness. 
 
 "Oh, oh, do you swear that? weren't you charged 
 with assaulting a girl?" 
 
 The witness' hands fall upon the ledge of the 
 witness-box ; every eye is fixed upon him ; he turns 
 pale and red, and a strong emotion absolutely shakes 
 his frame as he answers : 
 
 "I was; most unjustly." 
 
 "Oh, of course," says the counsel resuming his 
 seat. 
 
 Not long, however, was the learned gentleman's 
 triumph; a question in re-examination elicits the 
 fact that, ten years ago, a girl, for the purpose of 
 obtaining money, had made a false charge, which 
 had been thoroughly investigated and disproved ; 
 th^at public sympathy had been on the side of the 
 accused; that he had retained, ever since, his posi- 
 tion, appointments, and practice, and was respected 
 
80 1LLUSTEATION8 IN ADVOCACY. 
 
 by all who had the best means of knowing his char- 
 acter. 
 
 Let me ask for what reason was this question put? 
 It had nothing to do with the merits of the case ; 
 the Company had never met his evidence, or 
 attempted to investigate the truth of his statement 
 made in writing months before. It could not go to 
 the credit of the plaintiff, who had been seriously 
 hurt, and whose injuries could not be disputed, 
 except the fracture of the rib, and that only by 
 attributing perjury to the doctor. 
 
 On what principle', then, was the question asked? 
 Was it to torture the witness ? What effect could 
 it have on the verdict? We will see by-and-by 
 what its effect on the verdict was. I say nothing of 
 its influence on the judge. Sometimes a breath of 
 suspicion will tarnish the fairest life. A falling 
 away from virtue is to some minds intolerable, but 
 advocates must take human nature as it is ; and as 
 it is, it will generally be found in the jury-box. 
 Look well then to your jury, and turn such an 
 onslaught as this in favor of your client ; and rely 
 upon it as a sure maxim in advocacy, that for every 
 unjust attack upon private character the jury wiU 
 give damages if damages are possible. 
 
 In this case damages were possible. There was 
 really no defence to the action. Every fact and 
 every probability were in favor of the plaintiff, and 
 the jury gave a verdict for £150; — ^injury, I pre- 
 sume, £50, £100 for the mud. 
 
 Of course, there was the usual application for a 
 
AGAINST STREET EAILWAT COMPANIES. Hi 
 
 new trial. You may sometimes worry a successful 
 plaintiff out of a verdict when you cannot reverse 
 it. Companies are seldom content with one trial 
 when they lose. So the modest application for a new 
 trial was made on the ground that the verdict was 
 against the weight of evidence. 
 
 "I suppose the case was properly placed before 
 the jury," said one of their lordships. 
 
 "Oh, yes, my lord," replied the counsel for the 
 plaintiff. 
 
 "And the witnesses cross-examined?" 
 
 "Oh yes, my lord; their whole lives laid bare with 
 the utmost fidelity. The doctor was even asked if 
 he had not been charged with rape — a most scathing 
 cross-examination, my lord; the witnesses were 
 fairly riddled." 
 
 "You mean puzzled?" said one of their lordships. 
 
 "You mean shot through and through?" said 
 another of their lordships. 
 
 "Yes, mj'' lords," answered the counsel. 
 
 "I thought so," said both the learned judges, 
 simultaneously. 
 
 "I am sure, my lords," continued the learned 
 counsel, who was "showing cause," "the defendants 
 cannot complain on the score of cross-examination 
 that everything was not done for them that was 
 possible. The poor doctor was completely heart- 
 broken. The false charge raked up against him was 
 at least ten or twelve years old." 
 
 "And did that fail to obtain a verdict for the 
 defendants ?' ' 
 
82 ILLUSTRATIONS tN ADVOCACr. 
 
 *«0h yes, my lord, the facts were so strong that I 
 believe murder itself would have been useless. The 
 defendants were bound to admit that the plaintiff 
 had been injured, but the question was whether the 
 doctor who subsequently attended her had been 
 guilty of some offense years before." 
 
 "How could that effect the case?" 
 
 The learned counsel did not see how, although he 
 and every one else knew in what way it affected the 
 verdict. But how could the learned counsel for the 
 defendants urge that in mitigation of damages. I 
 have, however, known even defendant's misconduct 
 urged as a plea in that behalf. So strange an art is 
 advocacy ; so unblushing in its pretensions, so art- 
 ful in its manoeuvres, so sublime in its contempt for 
 suffering. 
 
 Unhappy doctor thou hast no instrument which 
 can give a pang like thine ! 
 
 In dismissing the application for a new trial, one 
 of the learned judges uttered the following pithy 
 sentences, which deserve to be printed in letters of 
 gold and placed over the door of every Court of 
 Justice in the kingdom : — 
 
 "I have always set my face against turning the 
 witness-box into a pillory, and I always shall set 
 my face against it as long as I sit on the Bench. If 
 witnesses who come to give evidence, often against 
 their will, are to have their whole life laid bare by 
 cross-examination, and every unhappy failing or 
 misfortune of their early days raked up for the pur- 
 pose of throwing discredit, as it is called, upon their 
 
AGAINST STREET RAILWAY COMPANIES. 83 
 
 testimony, it is a form of torture that no one will 
 voluntarily submit to, and the cause of justice will 
 suffer. No one will come forward to give evidence, 
 for no one will be safe. Few persons could stand 
 an examination into the whole of the incidents and 
 errors of their past lives. Witnesses should be 
 protected in the performance of a public duty, and 
 matters which do not directly affect their credibility 
 should not be dragged forth to the public gaze. I 
 repeat it, you have no right to turn the witness-box 
 into a pillory." 
 
 So the verdict stood. It is never wise to cast 
 your ship away when, by throwing something over- 
 board, you may bring her into port. There is often 
 more art in losing a case than in winmng one. If 
 your horse runs away don't throw the reins on his 
 neck. You cannot meet a fact by theory. Not 
 long ago an expert in handwriting declared that a 
 certain writing was a forgery. He was asked what 
 he would say if the man who wrote it came into the 
 box and swore it. His answer was he would not 
 believe him. Asked, if witnesses came who saw 
 him write it, what he would say he answer- 
 ed, "If a hundred persons swore they saw him 
 write it I would not believe them, because there are 
 indications in the handwriting which clearly show 
 that it could not have been written by the man whose 
 toriting it jpurported to be. The expert was told to 
 stand down. Experts in art have given similar 
 evidence. 
 
 Counsel should always be on their guard against 
 
84 ILLUSTBATIONS IN ADVOCACY. 
 
 experts, the most dangerous class of witnesses you 
 can meet. They do not swear to facts, but to opin- 
 ions, and their opinions are to them what facts are 
 to ordinary men. 
 
 In this case the argument that a rib cannot be 
 broken without the fact being discovered by a med- 
 ical man was singularly unfortunate, since the tri- 
 bunal could contradict it /rom its own experience. 
 
85 
 
 CHAPTER Vn. 
 
 EST ACTIONS AGAINST DIRECTOES OF CORPORATIONS. 
 
 It has been suggested during the progress of this 
 book, that it might give instances of advocacy from 
 the State trials. I cannot, however, perceive that 
 any good would result from it. State trials are not 
 necessarily great trials, any more than great lawyers 
 are always great advocates. Neither is it to excep- 
 tional advocacy that I desire to direct the reader's 
 attention. Everyone has not to defend a royal per- 
 sonage or a covey of bishops, and I would much 
 rather show, if possible, how to defend a common 
 action or a thief. 
 
 Besides, it is easy enough to be heroic when the 
 great occasion comes ; the difficulty is to be common- 
 place. Everybody likes to do some great thing; 
 the "waters of Israel," however, are good enough 
 for me. The real test of capacity is in the perform- 
 ance of the minor and unapplauded duties of life. 
 
86 ILLUSTRATIONS IN ADVOCACY. 
 
 It is the everyday work of the profession that I am 
 illustrating. The great feats of advocacy illustrate 
 themselves, and after all are not different in kind, 
 but only in prominence and splendor from the sim- 
 plest work. Big cases are no bigger than little 
 ones. Let the cause or the charge be what it may, 
 you must follow on the same lines and employ the 
 same art. The point of sight is the same in a small 
 picture as in a large one, and the rules of perspec- 
 tive must be obeyed in the one .as in the other. 
 You would defend a master and his slave, a prince 
 and a beggar, by the same rules. Treason is not 
 dignified because a noble-man is charged with it, 
 nor advocacy consecrated because a bishop is the 
 subject of it. So that State trials are no better as 
 illustrations than sessions trials. What I chiefly 
 want Nto find are blunders ; beauties will discover 
 themselves without being sought. 
 
 Let me take a specimen from one of the modern*^ 
 masters. It is a simple, common-place case enough, 
 but requires skill in management; especially it 
 needs a clear and well-limned design in its opening. 
 I scarcely think it can be one if it be not well opened, 
 and I hardly think it can be lost if the opening 
 be clear. The speech, therefore, has art in its 
 construction and symmetry in its proportions. 
 Much needed here is the advocate's skUl in manage- 
 mept, for on the other side is an array of oounseL 
 by HO means to be treated lightly. They are at 
 least three to one against the plaintiff ; for, as it 
 appears, several gentleman of position are charged 
 
AGAINST DIRECTOES OF COEPOEATIONS . 87 
 
 with fraud. It is said they have issued a false pro- 
 spectus for the purpose of inducing the public(and 
 among them the plaintiff) to subscribe for shares in 
 a certain commercial company. The social position 
 of the defendants, therefore, is an important ele- 
 ment. 
 
 Now, several things have to be established before 
 a verdict for the plaintifp can be found, and in order 
 to understand the outline which I shall give of the 
 opening speech, it is proper to state what the points 
 are that will have to be found by the jury to entitle 
 the plaiptiff to a verdict. 
 
 First. It must be proved that the defendants were 
 responsible for the contents of the prospectus. 
 
 Second. That the statements contained in the 
 prospectus were false. 
 
 Third. That they were false to the hnowledrje of 
 the defendants, or, at all events, that they were made 
 in reckless ignorance of the facts. 
 
 Fourth. That the plaintiff took his shares, believ- 
 ing the statement to he true. 
 
 Now, simple as this case is, it is difficult; there is 
 much to be established. The facts must be clear, 
 and, if I mistake not, the opening speech must be 
 clear too ; it must be so arranged that there must 
 stand out before the juryv the position of the defend- 
 ants, their relation to each other, their connection 
 with the Company, the nature of the article which 
 "the Company was formed to deal in, the knowledge 
 of the several defendants as to the contents of the 
 prospectus, the position of the plaintiff , and the mqdq 
 
88 ILIiTTSTEATIONS IN ADVOCAOT. 
 
 in which he was induced to take the shares. If all this 
 be well done, there will appear before the jury 
 something with a well defined outline, and they will 
 be able to watch the details of the evidence as they 
 fit themselves into and complete the design. 
 
 Let us listen to the advocate. He makes a good 
 start, because he calls the attention of the jury to 
 "Awwiaw gullibility." That's the groundwork on 
 which all fraudulent companies work. So it is put 
 in the forepart of the opening, and it tells well, as 
 you can see by the pleasant smile that passes over 
 the faces of the jury. Their attention is at once 
 fixed. There will be something amusing in this 
 "human gullibility," and a new feature of it will, 
 in all probability, be brought to light. Human 
 gullibility is always interesting, from the gypsy for- 
 tune-teller's vulgar imposition to the spiritualis- 
 tic revelations of the other world, which captivate 
 the enthusiastic believers in the impossible. 
 
 We have now an extremely short statement, as to 
 who the plaintiff was, and are told that he brought 
 his action against the Aet&nAsmts for fraudulent mis- 
 representations, whereby he was induced to take 
 shares in a company called the " Chocolate /Sawdust 
 Company." 
 
 That's a good mode of- telling in a few words 
 what the jury have to try. So to speak, it was "the 
 plain English of it," and that is what the jury like. 
 It occupies the foreground in the speech, and 
 throughout the trial will be always present in their 
 fliinds. As we listen with intense interest we won- 
 
AGAINST DIEEGTOES OF CORPORATIONS. 89 
 
 der what will come next. We have a lirst-rate 
 advocate to tell us, and, therefore, had better listen. 
 He wUl be sure to give some important fact the 
 place of honor, and here it is: 
 
 The failure of the Company in which the plaintiff 
 was induced to take his shares. The Company, it 
 appears, had gone into liquidation after the plaintiff 
 had taken his shares, and he was then required to 
 pay calls upon a hundred one pound shares, he 
 having only paid the money upon allotment. 
 
 You can see the bird hopping into the trap as 
 plainly as possible if this statement be correct. 
 
 Next comes a description of every one of the 
 defendants. This was necessary in order to the 
 complete understanding by the jury of the persons 
 with whom the plaintiff had to deal. If they are 
 shown to be men used to the business of getting up 
 companies, to the inner workings of the board-room, 
 and to the intellectual business of prospectus draft- 
 ing; if they are shown to be sharp, shrewd, clever 
 men of the world, with a thorough knowledge of 
 human gullibility, you may depend upon it this case 
 will be more than half won by the opening. All 
 this, therefore, was shown most clearly by the 
 description of the defendants and their several occu- 
 pations as early as possible in the speech for the 
 plaintiff. The jury are making notes you see before 
 a word of evidence is given. They are noting human 
 gullibility. So far, then, all is clear and straight- 
 forward. The case is unfolding as nicely as possible, 
 without any exaggeration of language or facts. 
 
90 ILLUSTRATIONS IN ADVOCACY. 
 
 There are already some good strong inferences and 
 a fair amount of prejudice; the way, therefore, is 
 prepared for the history of the transaction, which 
 now in its natural order comes and unfolds itself as 
 follows: — 
 
 In 18 — , one of the defendants. Hookey, who was 
 an engineer, took out a patent for obtaining a par- 
 ticular product from the seeds and fruit of a certain 
 vegetable. Hookey in fact was a trustee for him- 
 self and the other defendants. 
 
 The next step was to seU the patent rights to a 
 gentleman named Albert Montague Strawman, the 
 the son of one of the defendants, in consideration 
 of one penny per pound royalty on articles of food 
 or beverage which might be sold under the afore- 
 said patent, and £20,000 in cash or shares fully paid- 
 up in a company which was to be started by the 
 said Albert Montague Strawman, to be called the 
 "Chocolate Sawdust Company, Limited." 
 
 The Company was to be started with a nominal 
 capital of £50,000 in £5 shares, and was to have 
 the option of purchasing the royalty for £30,000. 
 
 Now let us pause a moment and survey the road 
 we have travelled. At this point will not the jury 
 ask themselves how it came to pass that the son of 
 one of the defendants was to be so highly favored ? 
 why his father was to present him with so valuable 
 a gift? what he had done to deserve it? and why the 
 parent should not have kept it himself ? with various 
 other questions not unimportant at this stage of the 
 enquiry. 
 
AGAlNST DIEECTORS of CORPORATIONS. 91 
 
 Next comes the story of the prospectus. Straw- 
 man being chairman of the Company, and Romney 
 the solicitor, they drew out this important docu- 
 ment: "And it was part of their scheme"' the jury 
 were told "that the shares should not be put into the 
 market, but be chiefly held by these defendants." 
 Out of 6,800 shares which were allotted, 6,400 
 were appropriated by the defendants. Then we 
 are told that "flaming announcements were pub- 
 lished in the newspapers describing the merits of 
 ' this wonderful product. It was to possess seven 
 distinct advantages over ordinary chocolate, the 
 distinct advantages being conferred by the saw- 
 dust. 
 
 The next step was, that under the powers of this 
 Company, as set out in the prospectus, subsidiary 
 Companies were to be formed for the purpose of 
 buying at extravagant prices the right to use the 
 patent in foreign countries. Among them was the 
 French Chocolate Sawdust Company. 
 
 Then comes the inducement held out to the 
 plaintiff which caused him to embark in the mag- 
 nificent scheme, the inducement being contained 
 in the prospectus, which was now read the first time. 
 
 Great success it appeared from the document 
 had attended the Company in England, and that 
 being so, the directors felt themselves justified in 
 stating their confident belief that the profits would 
 pay dividends of at least 50 per cent, on the nomi- 
 nal capital, and would exceed those of the English 
 Company, which Company had entered into a con- 
 
92 tLLtrsTKAiioNS iN adVocAc*. 
 
 tract that would yield a return by way of annual 
 dividend of a sum equal to the whole paid-up cap- 
 ital of £34,000. 
 
 A truly magnificent project, proving the truth 
 of Solomon's words that "^ "mem findeth out the 
 knowledge of witty inventions." One had need to 
 understand the words of the wise and their dark 
 sayings "before embarking in so unprecedented an 
 enterprise." 
 
 The case being thus far simply stated would 
 appear to be almost proved,, and in reality the jury 
 think so if you can form any opinion from their 
 countenances. It will take some getting over, 
 that statement, because no one will believe that 
 three intelligent business men like the defendants 
 would really cast so much "bread upon the waters" 
 with the hope of finding it after any number of 
 days. 
 
 Now comes the learned counsel's bold assertion 
 that there was no justification for this statement; 
 and he says further, that the only means by which 
 the English Company made any profit at all was by 
 the sale of the patent rights to the French and 
 other Companies. That they obtained £50,000 by 
 these means, and a further sum of £30,000, which 
 was by capitalization of the royalty. These sums 
 the defendants it appeared put into their pockets, 
 although the wonder is that being such public ben- 
 efactors they did not put them into the pockets of 
 other people. 
 
 But the defendants did so far take the public into 
 
AGAINSt DIRECTORS 0*" COBPORAlIONS . 93 
 
 their confidence as to sell their own shares, which at 
 one time had been quoted as high as £50 premium, 
 when only £1 per share had been paid. 
 
 Then said the learned counsel, "after this great 
 success the parent Company went into liquidation" 
 the success it had reached was due to swindling, and 
 that the whole of the profits had found their way 
 into the pockets of the defendants. 
 
 There is in this opening, of which I only give the 
 form, a model for any advocate to study. Fifty 
 counsel might have opened the case in fifty differ- 
 ent ways, but not one would have been so effective. 
 
 First. The claim. 
 
 Secondly. The failure, of the Company after the 
 plaintiff had taken his shares. 
 
 Thirdly. The position of the defendants, and 
 their character as deduced therefrom, with all the 
 probabilities arising from their intimate knowledge 
 of the workings of companies, and their knowledge 
 of "human gullibility." 
 
 Fourthly. The history of the undertaking, with 
 all its paternal and filial reciprocities. 
 
 Fifthly. The magnificent prospectus with its 
 probabilities, that is to say, its absurdly exagger- 
 ated advantages calculated to deceive only rapacious 
 gullible fools. 
 
 Sixthly. The $80,000 in the pockets of the defend- 
 ants, which was not a bad egg for a dead goose to 
 lay. 
 
 Now, I would like to ask what powers of advo- 
 cacy could overcome such a set of f ac^s as these ? 
 
94 ILLUSTEATIONS IN ADVOCACT. 
 
 Turn them, twist them as you will, there they are, 
 and, like a glass prism, they present the same sur- 
 faces, but throw different colore!? rays at every 
 movement. 
 
 There is only one way for skilled advocacy to 
 to meet these facts, although the unskilled would 
 doubtless find many. The one way is not to dis- 
 pute the facts, but to attack the probabilities. If 
 you have carefully followed the incidents of the case 
 you will have seen that it is not the facts so much 
 that the learned advocate has made his case of, but 
 the probabilities arising therefrom. For instance j 
 it might be quite possible for one defendant to sell 
 to the son of another defendant a valuable right for 
 a trifling sum. But what is the probability? 
 
 So, if you take the prospectus, it might be a 
 wicked fiction from beginning to end, and yet the 
 defendants might have been themselves imposed 
 upon by some one more clever than themselves. 
 
 But what are the probabilities ? 
 
 So that, after all, probabilities are the very 
 strength or the weakness of facts ; sometimes they 
 will destroy the evidence of facts altogether. State 
 a fact with an improbability, and you will be liable 
 to disbelief. But, then, suppose a man, known to 
 be a man of high character, states an improbable 
 fact, what then? 
 
 I answer, the probability is that it is true. 
 
 But when a trustworthy witness has stated a fact, 
 although he has only stated it to the best of his be- 
 
AGAINST DtRECTOES OF CORPORATIONS. 95 
 
 lief, with a probability it will take a great deal of 
 swearing to get over it. 
 
 Say you prove that a house caught fire in three 
 different rooms at the same time, although you have 
 not a particle of evidence beyond that fact, yet the 
 probability of its being the work of an incendiary 
 will be so strong as to be irresistible ; and though fifty 
 witnesses were to swear to a series of facts with a 
 view to account for the origin of the fire in opposi- 
 tion to that probability, it would not have the least 
 effect even on " human gullibility." 
 
 Probabilities, therefore, are the mainstay, of evi- 
 dence , are, in fact, the evidence ; and I will endeavor 
 to show, by-and-by, how almost entirely Cicero 
 builds his defences upon them. In the present case 
 the advocates for the defendants knew well enough 
 what they were about, and so they opposed Evi- 
 dence to the probabilities. The descendants swore 
 they were not conscious of any mis-statement in the 
 prospectus. 
 
 One learned counsel said "It has been asserted 
 that in a contract which was entered into between 
 my client and one of the witnesses for the plaintiff, 
 he, the witness, had been befooled, and that my 
 client is a swindler. "But," said he, "there is not 
 a tittle of evidence to support such statements." 
 This pretty well I think proves my proposition as 
 to probabilities. 
 
 Another of the defendant's counsel said that to 
 establish fraud against his client, who was the solici- 
 
96 tLLUStEATIONS tN ADVOCACSf. 
 
 tor to the Company, it must be shown that he acted 
 not merely as a solicitor, but as an individual, and 
 he submitted it would be very difficult for tbe jury 
 to come to any such conclusion. Difficult no doubt 
 to make a solicitor out of nothing, or to make him 
 an abstraction; but not difficult surely to believe 
 that what the solicitor knew the individual knew also. 
 Even if a solicitor be two persons, you can scarcely 
 believe that one of them can act without the other's 
 knowledge. So that subtle reasoning fails, as fail 
 must all attempts to separate a man from himself, 
 or to make two men out of one. The defences failed, 
 not because they wanted ability and ingenuity, but 
 because they lacked that probability which was so 
 strong on the other side. Men have not even yet 
 succeeded in gathering "grapes of thorns, or figs of 
 thi'stles;" horticulture has not attained that pitch of 
 perfection at present. When it does you may pro- 
 bably make very good chocolate out of sawdust. 
 
 I will add, with reference to this case, that I am 
 expressing no opinion of the character of the defend- 
 ants, or the nature of their transactions. I have 
 simply dealt with the statements and the conduct of 
 the case from the advocate's point of view, and 
 made such reflections as have occurred to me, not 
 with the wish to enter into the merits of the case or 
 to express an opinion upon it, but how from its 
 management the jury were driven to the conclusion 
 they arrived at. It is not the merits of the case, 
 but those of the advocate that I am concerned in 
 
iGAilSTST JDIEECTOES OF COEtOEATIONS. 9t 
 
 pointing out, and I have done so without the remotest 
 intention of casting an imputation on any one con- 
 cerned in the cause. I know nothing of the parties, 
 the cause, or the chocolate. 
 
9H 
 
 CHAPTER VIII. 
 
 rS ACTIONS AGAINST INSURANCE COMPANIES. 
 
 This case will illustrate the fallibility of human 
 judgment, when formed before the facts are fully 
 known; the difficulty which sometimes arises in 
 advocating a righteous cause, as well as the effects 
 of prejudice upon the progress of a case. 
 
 The action was brought by a mechanic against a 
 Fire Insurance Company for £100, upon a policy of 
 insurance for tools and furniture which had been 
 destroyed by fire. 
 
 There was no policy of insurance and never had 
 been ; so the pleader'^s art was manifested in alleg- 
 ing first that there was a policy, and in the alterna- 
 tive of there bejng none, then that there was an 
 agreement to grant a policy. It also turned out there 
 was no agreement even, so the pleader's art was 
 rendered still more conspicuous. The learned coun- 
 sel for the plaintiff commenced his opening speech 
 
AGAINST INSUKANCE COMPANIES. 1^9 
 
 by alleging that the Company was a miserable 
 wretched Company, a family party who traded on 
 the poor, and who, after taking the premiums %r 
 insuring, failed to perform their contract. And this 
 statement, which was all untrue, caused the clever 
 jury to see through the case at once before ever a fact 
 in support of a single statement was deposed to, and 
 every juryman became a prejudiced and unscrupulous 
 advocate for the plaintiff. They were a special 
 jury, and wagged and shook their special heads, as 
 every epithet and insinuation were hurled at the de- 
 voted and maligned Company. I verily believe that 
 if they had been asked for a verdict before the 
 counsel for the plaintiff had sat down, they would 
 have given it. They did in fact propose to give it 
 before the counsel for the defendant Company had 
 been heard; and sent up to the judge what they con- 
 sidered a verdict for the plaintiff. His lordship, 
 however, told them that the Company was entitled 
 to be heard, or there would undoubtedly be a new 
 trial. 
 
 The special heads therefore wagged, and learned 
 one lesson, namely, that both sides in a cause must 
 be heard before verdict can be returned. The facts 
 of the case were as follows : — 
 
 An agent of the Company had asked the plaintiff 
 to insure. Plaintiff was already insured in another 
 office, but said he was not. A proposal form was 
 shown and read over to him, and a printed receipt 
 form was read over to him which stated in the 
 plainest language that the risk was not covered until 
 
100 ILLUSTRATIONS IN ADVOCACY. 
 
 the proposal was accepted by the Oompany and the 
 policy or notice of acceptance was sent to him. Five 
 shiriings was paid on account of deposit, to be re- 
 turned if the proposal were not accepted. This was 
 on the 4th February, The proposal was sent to the 
 manager of the Company on the 8th. Oh the 14th 
 of the same month two events occurred ; the premi- 
 ses were burned down, and the Board of Directors 
 refused to entertain the proposal. It was clearly 
 established that at the time they did so they had never 
 heard of the fire. But before this was proved the 
 learned judge observed that if the fire had not oc- 
 curred on that day, could anyone doubt that the pro- 
 posal would have been accepted"} 
 
 Here the special heads wagged with conscious wis- 
 dom and delightful expectation. Following my 
 lord's leading, the whole bands of fiddlers strucli 
 up with a vehemence that startled Justice from her 
 propriety, little dreaming that the plaintiff could 
 not by any possibility dance to such a tune, and not 
 perceiving that if the directors of the defendant Gom- 
 pany had known of the fire, and had refused to ac- 
 cept the proposal for insurance on that ground alone, 
 they would have ha I a perfect right to do so, all the 
 fiddlers in creation to the contrary notwithstanding. 
 Again, had the jury been less prejudicial and less 
 inclined to punish the Company for the untrue accu- 
 sations of the learned counsel, they would have re- 
 flected that as a matter of fairness his lordship would 
 never have made the observation if the verdict could 
 have been based upon it. Therefore the jury 
 
AGAINST INSUBANCB COMPANIES. 101 
 
 began by being unjust, and ended in being foolish. 
 They are sometimes so clever and absurd. When- 
 ever you get such a jury as this you had better let 
 them make themselves as ridiculous as possible, and 
 show that they are unfit for the post they occupy — 
 their verdict then must be abortive. After abusing 
 the defendants the counsel undertook to prove con- 
 clusively that the receipt of the five shillings covered 
 all risk from that date, a great and impossible task 
 truly, with all the documentary evidence dead to 
 the contrary. 
 
 A dry, hard fact needs no hammering. It resists 
 argument, and stares you in the face, notwithstand- 
 ing the most violent protestations that it has no 
 existence. But when a jury is determined to ignore 
 facts, as I am glad to say they very seldom are, you 
 may quietly ignore them, for facts will outlive the 
 jury. Again, an alleged fact which wants so much 
 "conclusive proving" is seldom conclusively proved 
 at all. It melts away generally like a snowflake 
 that you examine in the palm of your hand. And 
 in this case I thought the learned counsel did pro- 
 test too much. He alleged facts too big for proof; 
 he denounced the defendants and left his denuncia^ 
 tions as the only evidence against them ; he insin- 
 uate_d motives without showing a possible basis on 
 which they could rest. He said the five shillings 
 was to cover all risk, and the twelve special heads 
 nodded as though they had been present at the pay- 
 ment thereof, and as if witnesses could never lie. 
 So that point was established to their satisfaction. 
 
102 ILLUSTEATIONS IN ADVOCACY. 
 
 Next, said the learned counsel, the proposal was 
 actually accepted by the Board. That also was 
 taken as proved by the jury. Next it was affirmed 
 that the policy was actually made out. Here- the 
 fiddlers struck up again, as though some great good 
 fortune had befallen them. Next, it was said the 
 directors all heard of the fire after the acceptance 
 of the proposal, and then met and destroyed the 
 proposal. This looked something like infamous 
 conduct, but it lacked one essential element to make 
 it evidence, that is, proof Then it wa^ said the 
 man would be called who received the accepted pro- 
 posal from the Board and made out the policy mpon it. 
 
 So that altogether a marvelously good case was 
 opened. No link was missing, and nothing but the 
 evidence in support of it wanting. But unfortu- 
 nately, the only so-called proof of all this was the 
 oath of the plaintiff as .to the statement made by 
 the agent; a question on the proposal form asking 
 the agent whether he had covered the present risk or 
 not: the calling a, quondam servant of the Company 
 who had been dismissed for not handing over a pre- 
 mium paid to him, and another discharged servant 
 who had beea the victim of a similar accusation. 
 But neither of the discharged servants swore up to 
 the mark, or up to any mark whatever. Their evi- 
 dence only went to show their own malignancy 
 against their late employers. 
 
 The jury one after the other in rapid succession 
 put questions to , the witnesses and questions to the 
 judge, and. even addressed arguments to his lord- 
 
AGAINST INSUEANCE COMPANIES. 103 
 
 ship with a view of showing that the defendants 
 were liable. Never was there such a battle in a 
 Court of Justice. 
 
 The jury practiced file firing and volley firing 
 with the most untiring perseverance, evidently with 
 the object of establishing a claim which had neither 
 foundation in law or in fact. "Why did these twelve 
 heads wi^h the plaintiff to win? Not because he 
 had a ground of action, but because the Company 
 had been abused, the man had paid five shillings, 
 and his things bad been burned. 
 
 In cross-examination it was shown first that all 
 the vilification of the Company was groundless ; 
 there had never been but one resistance to claim 
 before this during the Company's exist^ce; tens 
 of thousands of policies had been granted and thou- 
 sands of claims paid. In fact the Company stood 
 about as high as any Company could stand, and the 
 learned counsel, who had opened with so much acri- 
 mony, had to publicly withdraw all he had said 
 against the Company. This was a good effective 
 starting point. If you once get a nice piece of high 
 level ground to stand upon, you can command a 
 pretty good view of the situation. 
 
 Judge sees at once it is not a "wretched, miser- 
 able Company" or a "family party," but a bona 
 fide respectable body of gentleman, and we hear no 
 more of attempts to win the case by abusing them. 
 Vituperation in fact turns out to be forensic elo- 
 quence, that is all. 
 
 Still, the jury are benevolent-hearted gentlemen, 
 
104 ELLUSTEATIONS IN ADVOCACY. 
 
 and, like a good many other persons outside the 
 jury-box, they feel disposed to act generously by 
 putting their hands into other people's pockets 
 instead of their own, a principle which honest men 
 who are not so benevolent set their faces against. 
 Charity may cover a multitude of sins, but I never 
 heard that dishonesty was one of them ; that, when 
 it obtains its deserts, is usually covered by a less 
 attractive garment. The next point established 
 was, that the opening speech was ever so much 
 larger than the evidence in every particular, one of 
 the greatest mistakes a counsel can make. The 
 plaintiff did not prove, as he undertook to do, that 
 the policy was issued^ but that it was not, and in 
 this he w£tS corroborated by the two discharged serv- 
 ants. The point remaining, therefore, was, as to 
 whether the agent had made the alleged verbal bar- 
 gain, and it was upon this point that the sagacious 
 jury made up their twelve several minds that he had. 
 
 But the judge was of opinion that even if that 
 were so, there was still left the question as to 
 whether the agent had authority to make it. 
 
 Then the jury became illumined by a ray of bright 
 intelligence, not their own, but the judge's, and 
 suggested that it was really altogether more a mat- 
 ter for the judge than for them. 
 
 To this the defendant's counsel cheerfully as- 
 sented, and the plaintiff's counsel being also agree- 
 able, the whole matter was left to be decided by the 
 learned judge, and the jury were dismissed. 
 
 Now, let it be observed th9.t this jury broke down 
 
AGAINST INSUKANCE COMPANIES. 105 
 
 through their wrongheadedness. The very surren- 
 der of the case was only in keeping with their pre- 
 vious conduct. If they could have returned their 
 verdict for the plaintiff without hearing the defend- 
 ant's counsel they would have done so. It was the 
 refusal of this generous offer that led to the final 
 rupture. Seeing that they would have to spend the 
 next day in the jury-box, they resigned their func- 
 tions to his lordship. Constantly baffled in their 
 desire to put something into the plaintiff's pocket, 
 they gave up in despair. 
 
 This is the greatest instance I have known of 
 prejudice' and wrongheadedness in the jury-box, 
 although I have seen many specimens in various 
 degrees. 
 
 Having got Benevolence and Stupidity out of the 
 jury-box, there does now seem a chance for Law 
 and Justice. His lordship's opinion has been 
 materially changed from what it was before he 
 heard the evidence, and his mind is open to be con- 
 vinced by arguments on the one side and the other. 
 It is clear, too, that whatever the result, his lord- 
 ship is glad to be rid of that special twelve-headed 
 prejudice which would not permit so much as a fair 
 trial, or, indfeed, a trial at all before verdict. 
 
 At the sitting of the court the learned judge 
 announces that his opinion is in favor of the defend- 
 ants upon the question as to whether the agent of 
 the Insurance C/ompany had authority to make the 
 verbal bargain which the plaintiff swore he did, 
 ^hicb verbal bargain the reader will remem^^ey ■w^^ 
 
106 ILLUSTRATIONS, DSr ADVOCACr. 
 
 that if the plaintiff paid five shillings, the insur- 
 ance was to commence from that day. The judge 
 thought he had no authority to make such a bargain. 
 But his lordship was of opinion that the agent did 
 in fact make that bargain, whether he had authority 
 to do so or not. Here, then, the reader will per- 
 ceive, was a case in which the evidence had all been 
 given, and the effect upon his lordship's experi- 
 enced mind was adverse to the defendants. If 
 argument can change the judge's opinion, it will 
 be something in favor of advocacy. If it cannot, 
 it will show either that the facts are too conclusive 
 for argument, or that the arguments have been too 
 weak to dispose of them. 
 
 Before the defendants' counsel begins; it may be 
 observed that the plaintiff's counsel argues on the 
 first point as to the agent's authority; and he argues 
 sufficiently to call upon the defendants to address 
 the court on both points. 
 
 Now, let me observe, that a roundabout way of 
 arguing upon facts will not do. Facts follow one 
 another in regular succession ; they vaay not flow in 
 a straight line, and seldom do ; but you must follow 
 their course if you would trace out the result. If 
 you dodge about for the purpose of making short 
 cuts you will miss some little rivulet, may be, that 
 has increased the volume and even had an effect 
 upon the direction of the current. 
 
 In this case the facts have first to be reduced to 
 their true proportions. It is apparent that many of 
 them have been exaggerated, many unnatural infer- 
 
AGAINSt INSUEANCE COMPANIES. 107 
 
 ences have been adduced, and several false conclusions 
 arrived at. The superfluous matter then is trimmed 
 away. It is seen to be superfluous, and the learned 
 judge notes it by sweeping it aside. 
 
 The subject being bare, its exact shape and form 
 are seen and the advocate asks, "What is the case?" 
 — not for the defendant, but for the plaintiff. No 
 matter what the defendants' case is at present, the 
 judge is satisfied with the plaintiff's, and unless you 
 can reduce that, you may as well sit down, because 
 you cannot displace the plaintiff's case by any argu- 
 ment about the defendants'. Therefore, the first 
 question is, "What is the plaintiff' s case? 
 
 Now, mark; all irrelevant evidence is examined 
 and eliminated; shown to be irrelevant, and then 
 taken away. Ambiguous phraseology employed on 
 behalf of the plaintiff, is also disposed of — demol- 
 ished, with all its inferences, while forensic vituper- 
 ation is collected like so much rubbish and thrust 
 aside. 
 
 The plaintiff says that the defendants' agent told 
 him that the receipt covered the risk from the date 
 when the five shillings was paid. That is the whole 
 of his case, and that question has to be argued upon 
 the probabilities. 
 
 The agent has sworn the contrary, and therefore 
 the conflict is conspicuous and direct. What is to 
 influence his lordship's mind so as to change it from 
 a present belief in the word of the plaintiff to a 
 future belief in that of the agent? 
 
 First, the conduct of the plaintiff and of the agent, 
 
108 iLLtfSTRATlONS IK ADVOCACf . 
 
 and the probabilities on the one side and the other. 
 
 The receipt in express terms contradicts the plaint- 
 iff. The strong probability was, as the learned 
 Judge himself acknowledged, that the agent would 
 not make a verbal statement in direct contradiction 
 of the receipt he gave. Second probability is, that 
 the plaintiff, who could read and write, would not 
 take the receipt without looking at it. 
 
 Aaothevfact was that, two or three days after, as 
 the plaintiff himself admitted, he did read the receipt, 
 and knew therefore that his goods were not covered. 
 
 Probability arising from this was that, if the 
 agent had told him a lie, he would, on discovering 
 it, have gone to the office and complained of the 
 fraud that had been practiced upon him. 
 
 Another yac^ admitted by the plaintiff was that 
 the agent had told him that if the proposal was not 
 accepted the fivp shillings would be returned. 
 Improbability arising therefrom was, that the agent 
 should have covered the risk for the intervening 
 time for nothing. 
 
 Then comes another fact. The plaintiff, after the 
 fire, went to another insurance office, obtained a 
 form, and applied for his money, but the place was 
 closed. Probability, therefore, was, that he would 
 then have gone to the defendants' office, and made 
 his claim, if he had really been told that the risk was 
 covered. The fact was that he did not go ; but having 
 set it about that he was insured in the defendants' 
 Company, a letter was sent to him from them, ask- 
 ing him to call 
 
AGAiifST iNStTRANCE COMPANIES. l09 
 
 The next fact was, that some considerable time 
 after he did call, and then produced his receipt.. He 
 was told that the receipt did not cover him. He 
 affirmed that it did and that he should stand or fall 
 upon that receipt. Probability arising from this 
 fact is very strong ; if he had been told by the agent 
 that the risk was covered, and he had been fraudu- 
 lently deceived, he would have said so when he was 
 told at the office that the receipt was useless. It was 
 clear he never said anything of the sort, because the 
 question was put to the witness with whom he had 
 had the interview, as to whether any such assertion 
 was made, and answered in the negative; the plaint- 
 iff, however, had not been ashed a question about it 
 in chief, nor was he recalled to contradict it. From 
 not having been asked the question in chief, another 
 probability, amounting as near as possible to a fact, 
 arose in overwhelming importance — namely, that he 
 had never told his solicitor he had been deceived, 
 and, therefore, no such complaint had got upon the 
 counsel's brief. 
 
 Here the learned judge said he was satisfied that 
 the agent's story was right, and the plaintiff's 
 account wrong, and accordingly gave a verdict for 
 the defendants. 
 
 The plaintiff's case had, in fact, been founded on 
 vituperation and insinuations of fraud ; the jury had 
 been too ready, as juries often are, to let their hearts 
 govern their heads, in which case justice is invari- 
 ably turned topsey-turvey. They little think, how- 
 ever, in their ignorance of legal procedure, that ver- 
 
110 tLLUSTRATIONS IN ADVOCACY. 
 
 diets given out of sympathy in the face of facts and 
 law, entail disappointment and loss on the un- 
 happy victims of their compassion. 
 
 When ignorance and Prejudice get into the jury- 
 box, as they sometimes do, counsel have indeed a 
 rough time of it. You cannot enlighten stolid 
 Stupidity. 
 
Ill 
 
 CHAPTER IX. 
 
 IN ACTIONS ON CONTRACTS. 
 
 A mistake in advocacy is always worth noting. It 
 is better than a maxim, and more useful than any 
 meteoric display. 
 
 The following case is one of the simplest, and its 
 moral one of the clearest. You wiU observe that I 
 am not selecting my lessons from inexperienced 
 advocates, but from the performances of those who 
 are apt to look down with commiseration on the 
 failings of the younger members of the profession. 
 
 In this case a Mr. Tent was sued by a Colliery 
 Company for £94. Mr. Tent said, "I admit the 
 debt, but I have a claim against you of a larger 
 amount, because you agreed to supply me with 
 10,000 tons of coal during the year ending Sep- 
 tember, and in May you broke your contract, and 
 refused to supply me. I claim the difference between 
 the contract price and the market price from May to 
 
112 ILLtSTRATiOirS Us ADVOCAC*. 
 
 September." The issue, therefore, was simple, 
 although it was necessary to read through a great 
 deal of correspondence and to consider many facts. 
 
 This is how the bean-stalk rose. 
 
 Mr. Kewsea was engaged for the Colliery Com- 
 pany, while Jack and Harry, two juniors, were 
 retained by Mr. Tent. 
 
 When the case was called on, in the ordinary 
 course of things, the Giant would have accepted the 
 admission of the juniors that their client owed the 
 money, and remained quiet in his colossal strength. 
 
 ^But Kewsea was eager to take every advantage 
 for the benefit of his clients, although this over- 
 reaching advantage often turns out not to be for 
 their benefit. 
 
 The pleadings did not admit the debt, so Kewsea 
 availed himself of that technicality. The plead- 
 ings evidently were of more authority than the 
 defendant or his counsel. "I don't care," says 
 Kewsea, "about your admitting the debt; the plead- 
 ings don't admit it, so I have the right to begin." 
 But it is not always, as the reader knows, the horse 
 that is most rampant at starting which is first to 
 pass the winning-post. I have seen him before now 
 in a very ignominious position at the finish of the 
 race. Get a good start if you- can, but remember 
 that a good ending is better. In advocacy it is not 
 always wise to stand upon your strict rights. Con- 
 cession sometimes wins. 
 
 The two juniors smiled together when they heard 
 their gigantic opponent, with a deep voice,claim the 
 
AfcTlONS ON CONTRACTS. 113 
 
 "right to begin;" but Ms voice did not frighten 
 them in the least, for although these giants are sup- 
 posed to eat juniors up, Jack and Harry were brave 
 little chaps,and they knew if they could only get the 
 chance they could slay Mr. Kewsea, so they sat 
 close up togetlier on their seat behind him, and 
 swung their legs and touched one another with their 
 elbows, and whispered, "We shall have him nicely 
 by-and-by." 
 
 "He's got no case to open," says Jack; "we admit 
 his claim." 
 
 "And he can't open ours," replied Harry, 
 "because he doesn't know what it is." 
 
 ♦•This is fun," said the juniors. "What is he 
 going to begin about? Nobody has hit him." 
 
 "Perhaps he is going to tell the judge a nursery- 
 story." 
 
 "I wonder if it's 'Jack and the Bean-stalk?' " 
 
 At this suggestion both the juniors were immensely 
 tickled, and declared they would call the case by that 
 title. 
 
 "He is to be the Giant," said Harry, "and we 
 are to be the two little dwarfs he is trjang to eat 
 up." 
 
 One need hardly to observe that it is as well before 
 you attempt to answer a claim to ascertain what the 
 claim is, and that you ought to keep your witnesses 
 out of the box until the necessity comes for calling 
 them. You have little use for them until there is 
 something to contradict, to prove, or disprove. 
 
 Again, you leave them to be cross-examined and 
 
114 ILLUSTEATIONS IN ADVOCACf. 
 
 to give evidence for the other side. No wise man 
 builds a ship on the top of a mountain. 
 
 How strange all these observations must seem to 
 the youngest student ! Yes, strange indeed, but 
 not unnecessary, since the temptation to begin is 
 strong, sometimes almost irresistible. There is 
 much in advocacy to learn that comes not of prac- 
 tice, and much to unlearn that comes of slovenly 
 and unobservant practice. Here was not an inex- 
 perienced junior making this mistake, but one of the 
 leaders, and, therefore, one likes to follow thought- 
 fully and observe attentively until the bourne is 
 reached. 
 
 Mr. Kewsea begins to open. You asked what? My 
 answer is Bradshaw. Not irreverently do I say it, 
 nor as if I would say "boshf I mean Bradshaw. 
 
 The railway map was produced, handed up to the 
 judge, who looked as if he had seen it before, but 
 said nothing. It was next handed back for the pur- 
 pose of separating the map from the time-table. It 
 was then re-delivered to the judge. 
 
 Now comes the solution of the mystery. It was 
 pointed out that certain places on that map were 
 west of a town called Cockermouth, and that there 
 were other places which were not exactly west of 
 Cockermouth. There was no disputing this, and if 
 that had been Mr. Kewsea's case, it would have been 
 a tolerably strong one. 
 
 The juniors smiled meekly, and quietly asked one 
 another what it all meant. As a lecture in geogra- 
 phy it was fairly well put. 
 
ACTIONS ON CONTBACT8. 115 
 
 Then the subject-matter of the opening changed, 
 and observations were made concerning a pit' a 
 mouth. This, doubtless, had some reference to the 
 coal trade. ■ 
 
 The court was next enlightened as to the mode of 
 filling coal trucks, an intA'esting subject, no doubt, 
 for a winter fireside, but why it should occupy his 
 lordship's time was a mystery unsolved and inex- 
 plicable. And thus, after enjoying this "right to 
 begin," the learned Giant claimed the right to finish, 
 which he exercised by observing that he could not 
 conceive what defence there was to the action. Then 
 the manager of the Coal Company was called and 
 was examined about a variety of things, chiefly to 
 prove the circumstances under which the admitted 
 debt was contracted. 
 
 But the bean-stalk is reared, and although it 
 belongs to the Giant, Jack proceeds to climb it, and 
 no doubt from the top he will be able to see a long 
 way; and that is what he desires, for when you once 
 get a good view of the situation you can make the 
 most accurate calculation, and determine your line 
 of operations with an almost mathematical certainty 
 of success. 
 
 "Now," says Jack, from the top of his bean-stalk, 
 "will you be kind enough to tell me, sir, whether 
 the price of coals went up soon after the 20th Sep- 
 tember?" 
 
 That is an innocent question enough, just such an 
 one as a child might put. And the witness answered 
 "yes," like a man. It was prospective evidence, 
 
116 ILLUSTRATIONS IN ADVOCACY. 
 
 for nobody but the two juniors could possibly tell 
 what it was going to lead to. The judge, however, 
 carefully notes it, because he knows well enough 
 that little Jack from his post of vantage can see a 
 long way all round. 
 
 So his lordship says, "Aop a minute, let me take 
 that down." 
 
 But the Giant didn't know what it meant, nor his 
 witnesses. It seemed such a far-off, out-of-the-way 
 sort of question. 
 
 "Did it continue to rise till the end of the year?" 
 asks Jack., 
 
 "Oh, yes," says the witness. 
 
 "You say you entered into this contract with the 
 defendants on the 20th of September?" 
 
 "That is right sir." 
 
 "And he was only to supply the district west of 
 Cockermouth ?" 
 
 "That was all." 
 
 "Did you send coals to his order to almost every 
 other part of England ?' ' 
 
 "I did; but did not know it till sometime after." 
 
 "I suppose the plaintiff must have known it?" 
 
 "Oh, yes; but I have found out that these coals 
 were not supplied under the contract. 
 
 This is one of the things Jack could see ever so 
 far off. It was a fatal answer, as will appear. The 
 question that follows is like pouring molten lead on 
 to the Giant's head. 
 
 " TJn^er vphq/t QQntrfiQt then were they supplied?" 
 
ACTIONS ON CONTRACTS. 117 
 
 "Under no contract," must be the ridiculous 
 answer. 
 
 "Were they not delivered at the contract price?" 
 
 "They were." 
 
 "Was that two shillings a ton less than the then 
 market price?" 
 
 "It was." 
 
 The counsel having got that fact leaves it. He 
 has no wish to argue with the witness, but reserves 
 his inferences for the judge. How delightfully the' 
 plaintiff's witness is proving the defendant's case 
 will be seen by his speech hereafter, in which all these 
 answers will reappear arranged in the most orderly 
 manner, like birds and beasts walking into Noah's 
 ark in the picture. 
 
 Both the juniors chuckled immensely, I thought 
 too immensely, because it made Mr Kewsea, angry. 
 Can the Giant prove -any more of the defendant's 
 case I wonder? The junior cross-examines still 
 further, and elicits answers which show that for 
 eight months coals were supplied to the defendant's 
 order for places outside the particular district, and 
 not only so, but that one order in the district is 
 actually objected to by the plaintiffs because it is one 
 of their customers. A good and fatal point ! 
 
 Then the Secretary is called by the plaintiff and 
 by that means all the letters to him and the Com- 
 pany are got in, in cross-examinaiion, a much better 
 way, under the circumstances,- than getting them in, 
 in chief, because of various damaging questions in- 
 terposed, and suggestive comments by way of c|ue§- 
 
118 ILLUSTRATIONS IN ADVOCACY. 
 
 tion. This was the very gentleman who supplied 
 the coals, saw that they were sent to places outside 
 the district, some to London, which was a long way 
 north of the particular district; proves that the 
 first list of customers sent to the defendant for the 
 purpose of the defendant's contract contained places 
 outside the district; proves that he knows all about 
 the contract, that the directors knew all about it, 
 and all about the places to which the coals were sent ; 
 knew all about the delay in supplying the coals, the 
 entry of them in the books at the contract price, 
 and a variety of other things more or less useful to, 
 the defendant. No one ever knew why these wit- 
 nesses were called when it was for the defendant to 
 make out his case. But one knows that very often, 
 when you get a considerable distance out of your 
 way, you are apt in your perplexity to try and make 
 a short cut to some place, if haply you may find 
 your track ; but it's awkward, sometimes dangerous, 
 especially when you are being watched or pursued 
 by an enemy. 
 
 Now here comes the molten lead again. 
 
 Do you agree with the last witness that the coals 
 supplied out of the district were not supplied under 
 the contract? 
 
 A truly awkward question, because if he does 
 agree it doubles the absurdity of the answer, which 
 was already too big by half, and if he does not agree 
 there is absolutely an end of that part of the case, 
 which part is very nearly the whole. 
 
ACTIONS ON CONTRACTS. 119 
 
 But the witness agreed, which lets him in nicely 
 for this series of questions. 
 
 "Were they supplied at contract price?" 
 
 "Certainly." 
 
 ••At two shillings a ton less than you could have 
 sold them for elsewhere?" 
 
 "Yes." 
 
 How many tons which were not supplied under 
 the contract? 
 
 Tries to make it 300, but is bound, on being gently 
 squeezed, to admit eight hundred, in the month of 
 November. 
 
 "Then you presented him with at least sixteen 
 hundred shillings in the month of November 
 alone?" 
 
 No answer. Could be no answer. What could a 
 man say who sacrifices property belonging to his 
 employers ? 
 
 Mr. Kew^ea writhed, but he didn't writhe a satis- 
 factory explanation out of his witness or check the 
 flow of molten lead. 
 
 "Did the directors know that you were selling 
 their coals by the thousand tons at two shillings less 
 than the market price?" 
 
 That again is an abominably awkward question and 
 one would think framed expressly for the purpose 
 of doubling the witness up in a heap. 
 
 The ^nswer will be as good as a stroke of light- 
 ning, answer as he will, and it will rive Mr. Kewsea's 
 case from top to toe. 
 
 "No," says the witness after careful hesitation. 
 
120 ILLUSTRATIONS IN ADVOCACY. 
 
 "Then how came you to do this?" 
 
 / hnew the defendant was a friend of the direct- 
 ors." 
 
 Oh, poor man ! when you are driven to such shifts 
 as that the judge gets his eye on 'you ; and in that 
 judical eye there is a merry, sceptical and half- 
 compassionate twinkle. 
 
 Now a little observation will tell. 
 
 "So without the knowledge of your employees, 
 you present the defendant with £75 of their money 
 out of pure friendship?" 
 
 "Pure friendship." 
 
 Ah! Mr. Kewsea, it is hopeless; re-examination 
 may be useful to set a broken leg, but when your 
 witness is blown to atoms, and scattered to the four 
 winds you cannot put him together again, He^ 
 is beyond the art of surgery. ' 
 
 The case is all over, but it is necessary, as a mat- 
 ter of form, to bury the remains decently; so the 
 defendant comes to the funeral with the liveliest 
 belief that he is going to get something handsome 
 out of it, one ever saw depicted on a mourner's 
 face. 
 
 What a splendid opportunity now presents itself 
 for proving his own case if necessity there were for 
 so doipg ! He has been corroborated by the other 
 side, before he opens his mouth. He fills up the little 
 gaps as nicely as possible ; contradicts when neces- 
 sary with such circumstantiality that you can see the 
 probabilities coming up all over the bed of facts like 
 
ACTIONS ON CONTEACT8. 121 
 
 asparagus on a fine sunny morning after a warm 
 shower. 
 
 Let this be noted by those who think the right to 
 begin at all times a very fine and safe thing, and 
 who are so vigorously agile that they must needs 
 jump before they come to any stile. There is aU 
 the difference between contradicting and being con- 
 tradicted. The former process is nearly always the 
 more weighty. 
 
 What you contradict is already weakened by lapse 
 of time and cross-examination. Besides which, the 
 contradictor has the better opportunity of surrounding 
 his statement with plausibility and circumstantiality 
 from which may spring irresistible probability. 
 ' The fragmentary evidence, elicited for the plaintiff 
 by way of anticipation instead of answer, was dis- 
 credited and almost dissipated by cross-examination 
 before the necessity of contradiction arrived ; it was 
 "torn in pieces or ever it came to the bottom of the 
 den." 
 
 So the bean-stalk fell 1 
 
122 
 
 CHAPTER X. 
 
 IN MURDER TRIALS. 
 
 It need scarcely be said that the most important 
 case that can engage an advocate's powers is that of 
 murder. In defending such a charge there is a sense 
 of responsibility oppressive and exacting ; a state of 
 nervous excitation which no resolution can allay. 
 You know that every qilestion will be watched with 
 almost painful apprehension, and silently criticised 
 with ruthless severity ; and you know also that a 
 single slip on your part may plunge your unhappy 
 client into the fearful abyss. What wonder, then, if 
 at the last moment before the trial you can scarcely 
 comprehend a line of your brief , 'or bring your mind 
 to analyse and collate the facts? 
 
 As the jury are being sworn your sensitiveness 
 and nervousness increase, and you feel almost as 
 miserable as the prisoner himself. 
 
 I cannot tell when you will "come to," but I know 
 
m MURDER TRIALS. 123 
 
 that as a rule advocates find themselves in a tolerably 
 composed condition by the time the first witness 
 presents himself to be sworn. This nervousness, 
 let me say, is no physical disparagement, nor is it in 
 any way to be regretted ; it is at most a temporary 
 discomfiture, and I hope for the sake of your clients 
 you will never wholly lose it. Nervousness is a 
 vivifying power rather than a weakness. It adds 
 fire to eloquence and quickens the most sluggish 
 faculty. A dull clod of stolid humanity might 
 make a good image for a tobacconist's shop, where 
 indifference to passing objects is highly necessary, 
 but he should never defend me or advocate my 
 cause. I like a nervous advocate ; an advocate who 
 feels and trembles with burning eloquence. 
 
 But it is necessary to be at home with yourself 
 when the first witness comes, because, knowing 
 what he is going to say, you can pretty well test its 
 value by an accurate measure of his capacity, and a 
 tolerable estimate of his character. Much will depend 
 upon this. After you have put a question or two 
 in cross-examination which have been well consid- 
 ered, so that by no possibility can they injure your 
 client, all will be well, so far as your mental condi- 
 tion is concerned. You may now proceed to the 
 end of the business (for business it has become) 
 fresh and strong, as if, after a long walk on a sultry 
 summer's day, you had taken an invigorating 
 plunge in a refreshing stream. And how alive the 
 faculties all are 1 How closely you can examine 
 the evidence. The smallest point is visible; the 
 
124 ILLUSTRATIONS IN ADVOCACY. 
 
 most insignificant flaw in that legal chain does not 
 escape your scrutinizing gaze. Nothing is too 
 minute or too -quick for observation. I believe you 
 could almost follow a particular fly as he dodged in 
 his devious flight among a crowd of his fellows. I 
 cannot in the least pretend to analyse this state of 
 feeling, and must leave it to medical philosophers ; 
 but I know that this state of intensified existence is 
 experienced by some advocates, and I mention it 
 because it has been so often asked "are you never 
 nervous?" Nervous beyond all capability of ex- 
 pression — beyond all power of comprehension. 
 Nevertheless, that state of intense emotional vivacity 
 must be as far as possible concealed. And the very 
 effort at concealment will be beneficial, for it will 
 call forth the power of your will to subdue and bring 
 your whole self into subjection. When once this is 
 accomplished you will be braced up for the coming 
 struggle, however severe and disheartening it may 
 seem. 
 
 Keep your mind upon the witness and you will 
 soon f orget yourself . It is self conciousness that you 
 chiefly have to guard against. Under no circum- 
 stances let your mind wander from the case. Think 
 no evidence and no word and no emphasis or accent 
 unimportant. Examine every point, however mi- 
 nute, with a microscopic eye. The Court is crowded, 
 but remember that to you there is no audience except 
 the judge and jury, and if you so much as think 
 there is, it will be at the expense of your client. 
 
 You have a judge, a jury, an opponent, and a 
 
IN MURDER TEIAL8. 125 
 
 witness ; that is your world, and you will find it large 
 enough to engage your whole powers. Your client, 
 even, is no part of it. 
 
 In a charge of murder as hopeless as a case could 
 be, counsel had to rely on argument and suggestion; 
 and even for these there was no place till he made 
 room for them. I will briefly give the outline, not 
 as an ftchibition of anj' powers of advocacy, for they 
 were common-place enough, but because it will show 
 that an ordinary exercise of common sense may 
 enable an advocate to make a tolerably respectable 
 appearance in a bad case. 
 
 The prisoner was charged with the murder of his 
 wife. The main evidence against him was the 
 deposition of the dying woman, although it was not 
 a "dying declaration." Without it there coald be 
 no conviction for the capital offence. In most 
 cases, let me remark, according to my experience, 
 depositions of witnesses who are absent or dead are 
 read without much analytical examination ; this is a 
 mistake in advocacy. It seems, as a rule, to be 
 assumed that as the witness cannot be cross-exam- 
 ined, the evidence must be accepted as almost 
 beyond the range of criticism, at least beyond the 
 power of cross-examination. 
 
 It was obvious in the present case that the dead 
 woman must he cross-examined, and cross-examined 
 she undoubtedly was upon every point of her depos- 
 itions. Her evidence was analyzed, her statements 
 compared, contrasted, and, in one or two material 
 particulars, turned in favor of the prisoner, although 
 
126 ILLUSTRATIONS IN ADVOCACY. 
 
 at first sight they appeared fatal to his chance of 
 escape. The unfortunate woman had deposed that 
 she was in bed, had been to sleep, was a little the 
 worse for drink, did not hear her husband come up 
 stairs or enter the room ; that he dragged her out of 
 bed and threatened to throw her out of the window ; 
 that he went to a drawer, where elae knew a knife 
 was kept, that he came towards her and threatened 
 to kill her ; that she stooped while he was assaulting 
 her, and afterwards found she was wounded; that 
 he then told her she had but a few hours to live, 
 sent for a doctor and a policeman, and gave himself 
 up. It is clear that if these facts could be handled 
 skillfully there was a defence to be made, although it 
 might not be successful. To acquit himself as an 
 intelligent advocate was all that could be expected 
 of counsel upon whom the unwelcome duty was cast 
 of defending. 
 
 In a case of murder, counsel called upon to 
 defend, however hopeless the case, cannot resign 
 his client to the gallows without a struggle. He 
 must contest every point, argue upon every fact, 
 and turn, if possible, the edge of the most fatal tes- 
 timony. If he cannot base his cross-examination 
 upon a reasonable hypothesis he must still cross- 
 examine with some appearance of reason. He must 
 lay some foundation for his speech, and he must 
 address the jury logically, even though he base his 
 speech on false or fallacious premises. From all 
 this there is no escape ; and, more than this, he 
 must cross-examine upon the most deadly and damn- 
 
IN MURDER TRIAT.S. 127 
 
 ing evidence. But this much he has for his com- 
 fort — he can do no harm in attacking facts that are 
 clearly and absolutely against him. He may kick 
 these about as he likes, with the hope that some- 
 thing may turn up in the scuffle. While he cannot 
 exaggerate a fact he may possibly modify it. A 
 skilfully asked question may produce an answer 
 which will change the color of a fact. 
 
 But there is another ground of consolation and 
 encouragement. The judge is invariably with you 
 in support of your weaknesses and to the aid of 
 your necessities. It is the greatest glory of the 
 English Bench, to my mind, that the judge, in a 
 case of murder, is ever "of counsel for the pris- 
 oner." He is not the Crown, but he is the crown- 
 ing glory of our administration of justice. No man 
 in this country can ever lose his life against the con- 
 science of the judge who tries him. Strictly impar- 
 tial and yet sympathetic; rigorously just and yet 
 tenderly protective. An English judge trying a 
 man for murder is the highest and noblest illustra- 
 tion of the human character. I say this, not to 
 compliment the Bench, but to encourage the youth- 
 ful advocate on whom the' task of defending in such 
 a charge may fall. 
 
 Let me now remind you that you must not cross- 
 examine to any fact which is in your favor. Whether 
 you should cross-examine to a fact which is neither 
 for nor against you depends upon your skill, your 
 knowledge of human nature, and your confidence in 
 yourself. If you know that you will not make a 
 
128 ILLUSTRATIONS IN ADVOCACY. 
 
 mistake, cross-examine by all means, because a neu- 
 tral fact may be turned to your advantage, and if it 
 be ever so slightly shifted or altered in appearance 
 it will form the foundation of an argument, while 
 every argument in the prisoner's favor is something 
 towards a verdict. Eemember, too, that in cases of 
 life and death arguments will sometimes neutralize 
 facts. I say this from experience, and therefore 
 the more boldly. 
 
 A Jury will generally, if possible, escape from 
 the painful necessity of condemning a fellow creat- 
 ure to death. Snst indicate the way; you need not 
 lead. Sometimes, it is true, they are too rigidly 
 conscientious, but it is not often the case, and their 
 conscience, as a rule, backs their inclination on the 
 side of mercy. 
 
 "I wish I could have cross-examined the wife," 
 said the defending counsel ; something might have 
 been elicited to show a quarrel, or otherwise to 
 reduce the crime to manslaughter. The wish con- 
 tained the germ of the defence. The deposition 
 could be cross-examined, and, above all, the lack of 
 opportunity of cross-examining the woman herself 
 afforded the opportunity of a creditable speech. 
 
 One argument, at all events, there was to start 
 with — namely, that although the poor ignorant man, 
 half-crazed by excitement, had had, as appeared on 
 the deposition, "the opportunity of cross-examining 
 the woman," there was, in fact, no opportunity at 
 
IN MURDER TRIALS. 129 
 
 all. This was a point to elicit tenderly in cross- 
 examination. As the law holds opportunity in its 
 strictness, there was opportunity indeed ; but what 
 if the jury should think differently? What if the 
 judge should even think this a point not to be lost 
 sight of in an appeal for the exercise of the royal 
 prerogative? Let it then for the dear life,be cross- 
 examined too. Thus it came out that the prisoner 
 had been hurried from his cell to the dying woman's 
 bedside a few hours after the fatal wound had been 
 inflicted. He was taken without notice, and with- 
 out the chance of being represented by counsel or 
 solicitor. It is a good point if the man is to be con- 
 demned upon the evidence of this deposition, and it 
 will surely stand the prisoner in good stead some- 
 where, either with the jury or the judge, in fact or 
 in law. In this dead case we want to extricate the 
 counsel with credit as an advocate. As he is bound 
 to do something, hopeless as the case may be, he 
 must do it well, if possible. So he starts with this 
 cross-examination of the police-constable. 
 
 "When was the prisoner taken to the bed-room 
 of the dying woman?" 
 
 "Was any notice given to him that he was to be 
 so taken?" 
 
 Counsel knows it must have been extremely short, 
 if notice was ever given; he knows in fact that no 
 notice was given, so the question is a safe one, and 
 gets well answered. 
 
 "Had he counsel or solicitor?" 
 
 "No." 
 
130 ILLUSTRATIONS IN ADVOCACY. 
 
 A question that must be answered in prisoner's 
 favor. 
 
 "Was the charge read over to him?" 
 
 "No." 
 
 "Was he distressed and agitated?" 
 
 "Yes." 
 
 Counsel knows this answer will be given. It is 
 coming remarkably well, and carefully is it taken 
 down in his lordship's notes. I need scarcely say 
 that an advocate should ask no question which will 
 not at least seem to be answered in his favor. All 
 the facts, therefore, involved in these questions have 
 been carefully inquired into beforehand and he knows 
 what answers will be given. 
 
 Then the -vyitness appears, to whom the prisoner 
 said, after the crime was committed — 
 
 I've killed her, Jem. I did it with this knife." 
 
 Fearful evidence; accurate and unimpeachable. 
 How is it to be dealt with, either in cross-examina- 
 tion or argument? 
 
 In this way. First you want to neutralize the 
 effect of the words, "I've killed her." Your ques- 
 tion then will probably be, ^^Did he seem excited?" 
 The answer you know will be "Yes," because you 
 can see in the witness' manner and hear it in his 
 tone. You get your answer, and from his eager- 
 ness to give it, you know that if you ask him, with 
 proper tone, "Did he seem sorry?" he will say, 
 "Yes, sir; very sorry." 
 
 From what you know as having taken place, you 
 will press the question, "Did you say it could not 
 
IN MURDER TRIALS, 131 
 
 be true that he killed her?" The answer is "Yes." 
 "Did he say, ♦Jem, it's too true?" Jem says, 
 "Yes, he did." 
 
 There's much argument to be used to the jury in 
 that little word "too" — an argument that there was 
 no intention to hill, and if you show that, you may 
 get at least a recommendation to mercy, which may 
 come alike, for aught you know, from jury and 
 judge. If you do, your man is saved, and that is 
 the glorious triumph of your art. 
 
 But now, you see, you hare a good witness in the 
 box, whom, if you handle wisely and in accordance 
 with the laws that govern and reveal human nature, 
 you will do something more with him yet. You 
 now know that he will say anything in favor of the 
 prisoner that is possible. Then ask him this — 
 
 " Was the prisoner a hind and humane man?" 
 
 "He was, sir." 
 
 "Was that his general character?" 
 
 "It was." 
 
 "Was he sober, quiet and industrious?" 
 
 "He was." 
 
 The next question you must put with somewhat 
 more of preparation, for it is the one with which 
 you desire to strike a lasting effect upon the jury 
 before you sit down. 
 
 Let me ask you — "You have often seen the pris- 
 oner and the deceased woman together?" 
 
 "Yes, sir ; very often " 
 
 "In their home and in public?" 
 
 "Yes, sir." 
 
132 ILLUSTRATIONS IN ADVOCACY. 
 
 "Did he always treat her kindly?" 
 
 "Always." 
 
 "And seem fond of her?" 
 
 "He was very fond of her; and there never was 
 a kinder husband or a more hard-working, sober 
 man." 
 
 There is nothing else to ask. All has been done 
 that is possible by questionp, and probably not a 
 little by effect. Not one question but has been 
 answered in your favor, and you sit down with a 
 look from the jury, which affords you a trifle of 
 encouragement for your future progress. 
 
 The doctor gives doctor's evidence — length, depth 
 and nature of wound, with the consequence clear 
 and hopeless. Still, you must try for something in 
 the prisoner's favor. Is anything to be done with 
 evidence of this sort? 
 
 To answer this, you must ask yourself again, 
 What is your defence? What can your advocacy 
 lead to ? 
 
 Your only defence is that it was not wilful mur- 
 der, but manslaughter. Knowing this, can you 
 cross-examine the doctor ? Can you elicit that the 
 wound might have been occasioned without having 
 been wilfully inflicted ? That is what you have to 
 do, if possible, but in heaven's narne take care, or 
 a single question may make your defence and the 
 prisoner's chance of being recommended to mercy 
 utterly hopeless. You will not ask if it might have 
 been done by accident. The doctor would shake 
 
IN MUEDEB TEIALS. 133 
 
 his head, and the most probable answer would be 
 this: — 
 
 "Hardly." In all probability he would say no. 
 Besides, the question is objectionable — it is a ques- 
 tion for the jury, not for the doctor. You must get, 
 therefore, as far away as possible from this kind of 
 examination, objectionable or unobjectionable. It 
 is the answer you want, but it is just the very ques- 
 tion you must not put if you value your reputation. 
 What, then, is to be done? He is a clever man, 
 this doctor. Can you not see that he is a humane 
 one, who will help you if he can? Is he notsympa~ 
 thising with the prisoner? Had he not just given 
 him a pitying glance? and do you not see that if 
 you ask two or three questions, the answers to which 
 will neither compromise his reputation nor strain his 
 conscience, he will answer as favorable as he can, 
 and perhaps save the life of the wretched man. 
 Doctors are almost invariably humane. 
 
 At least you can try a harmless question or two, 
 and if you cannot feel the way safely to the question 
 you desire answered, you may leave him before it is 
 too late. 
 
 "Where do you say, doctor, the wound was?" 
 
 The doctor describes it. 
 
 "Will you point out the exact spot to the jury?" 
 
 The doctor shows the place. 
 
 "Now first indicate the direction. 1 see, a little 
 downward, is it?" 
 
 "Slightly." 
 
 "Then the hand might have been in that posi- 
 
134 ILLUSTRATIONS IN ADVOCAC3T. 
 
 tion?" (indicating that the arms might have been 
 encircling the woman's body.) 
 
 "Quite so," says the doctor. 
 
 "As if they were struggling?" 
 
 "Yes." 
 
 "Then it might have been done in a struggle?" 
 
 "Undoubtedly,"' says the doctor; "and in all 
 probability it was." 
 
 That is the exact answer required, and not another 
 question must be asked. Argument deducible from 
 this that it might have been an accidental wound- 
 ing, or at least that the jury may legally find a 
 verdict of manslaughter. If you cannot get proba- 
 bility, at least endeavor to secure possibility, which 
 is sometimes good enough for the jury. 
 
 There's a good deal now that can be said. 
 
 It is possible to attack the statement of the dying 
 woman. What was her physical condition when 
 she made it? What the state of her mind and 
 memory ? What were the circumstances under which 
 it was made ? What is the nature of the statement 
 itself ? Does it disclose all that must have taken place ? 
 Are there gaps in it — expressions which are ambig- 
 uous, conflicting, or irreconcilable? of a twofold 
 meaning? of a nature that one construction may be 
 in favor of the prisoner, and another against him? 
 
 Whenever this is the case you may have made a 
 strong point, and that point may become the pivot 
 upon which the defence may turn. If the statement 
 does not contain a perfect narrative you have a fine 
 opportunity for suggesting probabilities, and these^ 
 
IN MUEDER TEIALS. 135 
 
 as you know, have often the force of evidence itself, 
 sometimes, indeed, supersede it. Evidence may be 
 deceitful or false, probabilities are never the one or 
 the other, although you may draw a wrong inference 
 from them. Cicero says that swearing to opposing 
 facts is no good in the face of the strongest proba- 
 bilities. 
 
 Again, circumstances are valuable only as sug- 
 gesting probabilities ; but if there be a gap in the cir- 
 cumstances you may suggest incidents, if they fairly 
 arise from just inference from the other facts. Cir- 
 cumstances may not lie in the sense of not being what 
 they are, but they often deceive in not being what 
 they seem, and in not belonging to the series of other 
 facts with which they are supposed to be connected. 
 The strongest chain of circumstances is only a chain 
 of probabilities, and if you show an improbability 
 amongst thom there is a weak if not a broken link. 
 
 In this case the moral guilt was reduced to con- 
 structive murder, that is murder without the inten- 
 tion to commit it, although there was an intention 
 to commit another crime. 
 
 The jury asked whether, if the intention was to 
 commit grievous bodily harm and death resulted, it 
 was murder. The learned judge said he was bound 
 to say that that was the law of England. 
 
 The verdict was guilty, with a recommendation to 
 mercy, a recommendation which, under the circum- 
 stances, developed by the progress of the case, and 
 supported as it was by abundant evidence to char- 
 acter, was given effect to by the sovereign. 
 
136 
 
 CHAPTER XI. 
 
 IN CASES OF ROBBERY. 
 
 "Gentlemen of the jury, I must beseech you to 
 dismiss from your minds all that you may have read 
 or heard of this case, and come to the consideration 
 of it with unbiased judgment. Gentlemen, from 
 the village of Chorbakon to the village of Clodthorpe, 
 where the prisoners resided, is two miles. (Assistant 
 Counsel whispers something with intense agitation). 
 " Oh — I beg your pardon, gentlemen, I am sorry it 
 is two miles and seventy-six yards." 
 
 "Where do you measure from?" asks the judge, 
 "Is there any map of this part of the county?" 
 
 There is tremendous excitement in the "well" of 
 the Court ; the other attorney and his clerk vigorously 
 stare at one another for some two minutes, then 
 the learned counsel stoops and asks if there is a map 
 or a plan. 
 
 "N-n-no I" stammers the assistant, "Treasury 
 
IN CASES OF ROBBEET. 137 
 
 won't allow plans — disallowed expenses in last 
 murder case — man acquitted for want of plan — scan- 
 dalous detriment to administration of justice wont 
 allow surveyor's fees." 
 
 "No my lord," says the counsel, "I am told there 
 is not a plan, my lord." 
 
 "It's a great pity, says his lordship, with a twink- 
 ling smile; "if you are desirous of being accurate, 
 and it is necessaiy to go into these minute particulars, 
 we ought to have a map. This is a matter appar- 
 ently of yards and feet ; it may be inches for ought 
 I know. Where do you measure from?" 
 
 "Pump to pump," whispers the assistant, with 
 his hand sideways to his mouth so as to shoot the 
 sound into the ear of the counsel. 
 
 "Pump to pump," repeats the counsel. 
 
 "Wait a minute," says his lordship, "let me take 
 that ; if anything turns upon it — pump to pump — 
 does anything turn upon this?" 
 
 The assistant turns upon it with great rapidity, 
 and says: — 
 
 "We trace them. Oh, yes, yes, we trace them, 
 of course — pump near the pound." 
 
 " The case for the prosecution," says the learned 
 counsel, "is that we trace them on the night in 
 question along the road from Clodthorpe to Chor- 
 bakon. They left Clodthorpe at five minutes to 
 eleven, and the policeman who will be called will say 
 that they were both under the influence of beer." 
 
 "But surely," says his lordship, "they did not 
 get so influenced by going from pump to pump; if 
 
138 ILLUSTRATIONS IN ADVOCACY. 
 
 80, they are the most extraordinary pumps I ever 
 heard of." (Great laughter, notwithstanding the 
 solemnity of the prosecution. ) 
 
 "Gentlemen," continued the imperturbable coun- 
 sel, "I shall show you that from the high road that 
 leads from Clodthorpe to Chorbakon, there is a 
 pathway across the field leading up to the house of 
 the prosecutor where the crime was committed. 
 Along that path there were footprints. The night 
 was wet, and the nature of soil was such that the 
 impress of a boot could easily be seen. I shall show 
 you beyond all doubt that one of those footprints 
 was the footprint of one of the prisoners at the bar 
 — (sensation.) That will be an important matter 
 for your consideration. Now, gentlemen, that 
 being so 
 
 " What being so?" whispers the counsel from the 
 defence. 
 
 "Please do not interrupt. I shall show you, 
 gentlemen, that on the coat and trousers of one of 
 the prisoners there were stains of blood — (more 
 sensation)— I shall also prove that when th&prisoners 
 were asked what time they reached home, Walker 
 said half-past ten, and Shuffler said five-and-twenty 
 to eleven; so you see, they gave different accounts 
 of the time of their arrival. They also contradicted 
 one another as to the time they left Clodthorpe, and 
 you, gentlemen, will have to say whether, taking all 
 these facts together, the prisoners are guilty of the 
 crime with which they stand charged." 
 In all this opening there was not stated a particle 
 
m CASES OF EOBBERT. 139 
 
 of evidence against the prisoners. But you could 
 not stop the case, inasmuch as the judge would be 
 obliged to say the opening speech is nothing, with 
 which observation you might conscientiously agree, 
 feeling at the same time that there was a good deal 
 of it. 
 
 Now comes a stalwart member of the "Force," 
 with a large pair of dirty, hob-nailed boots, carefully 
 tied up in manifold papers and fastened with many 
 strings, as though there was danger of the boots 
 making their escape. There's a charming innocence 
 about provincial policemen which is always amusing 
 and sometimes dangerous. They invariably get 
 prisoners to take them into their confidence, as 
 though the police were their legal advisers or their 
 best friends, and would do anything to get them 
 acquitted. 
 
 "Where was you last night. Jack?" asks the 
 friendly and familiar "Kobert" of the provincial 
 force. 
 
 "At Clodthorpe," answers the prisoner, whose 
 name was Walker — a true answer, which the constab- 
 ulary cross-examiner notes against him. 
 
 "What time did you leave. Jack?" 
 
 "About ha-' past ten," says Walker. 
 
 "Ha ! and what time did you get home?" 
 
 "About a quarter past eleven." 
 
 "Was anybody with you?" 
 
 "Yes." 
 
 "Who? was it Shuffler?" 
 
 *«Yes," says the ingenious Walker. 
 
140 ELLUSTKATIONS IN ADVOCACT. 
 
 "Did he come home with you?" 
 "Yes." 
 
 "You didn't steal any fowls from Mr. Bodgers, 
 did you?" 
 
 "No," says Walker, "I didn't and never went 
 near the place." 
 
 "O," says Eobert, "but there was a robbery 
 between half -past ten and half -past eleven, and 
 I shall take you on suspicion. Let's have them 
 there boots, I think they'll correspond. So I took 
 the boots," adds the active and intelligent one, "sud 
 found they co-responded 'exackerly.". 
 "You cpmpared them?" 
 "I did." 
 
 "I object," protests the counsel for the prisoner; 
 this man's opinion as to whether the boots co-re- 
 sponded is not evidence. (Laughter). 
 The judge takes a note of the objection. 
 "I then went to Shuffler's father," says the po- 
 liceman, "and axed him if the son was in." 
 
 "What he axed the father behind the prisoner's 
 back is not evidence," objects the counsel for the 
 defence. (Laughter). 
 
 The counsel for the prosecution submits it is; 
 good quarter sessions evidence of the excellent 
 quality of hearsay — "something" he avers, "ac- 
 companying an act." 
 
 "Not evidence," says his lordship. 
 (Attorney for the prosecution is quite thunder- 
 struck; never heard such law laid down since Ae was 
 clerk of the peace.) 
 
IN CASES OP ROBBEET. 141 
 
 "What did you do next?" 
 
 "I axed the father for his son's coat and trous- 
 ers." 
 
 Objected to. 
 
 "More wishy-washy than the last," holds his 
 lordship. 
 
 But the coat and trousers are somehow produced 
 by the intelligent constable, and he says that there 
 was a kind of "down" on the trousers. ("A 
 downy observation that," whispers the usher.) But 
 the policeman adds, with awful emphasis, which 
 makes quite a sensation in Court, that "there's 
 stains of blood or summat just like it in the trous- 
 ers." There was first, sensation, and then laughter, 
 . in which his lordship tried not to join. 
 
 Then he described how he cross-examined Shufiler 
 when he had succeeded in getting him into his con- 
 fidence. After which the policeman's turn to be 
 cross-examined came, and a dire retribution it was. 
 
 "Is it your practice to cross-examine prisoners ?" 
 
 "Well, sir, it's yushal like to axe 'em a bit " 
 
 "Why?" 
 
 "To see if we're to take 'em into custody." 
 
 "But you had them in custody. "Was it to make 
 evidence?" 
 
 "It was to hear what they'd got to say.' 
 
 "About what?" 
 
 Eobert rubs his chin. 
 
 "What did you cross-examine them for?" 
 
 "For the Clerk of the Peace." 
 
142 rLLTJSTEATIONS IN ADVOCAC3Y. 
 
 ««But hadn't you enough evidence without put- 
 ting these questions?" 
 
 That was awkward for Eobert. He is blocked 
 whichever way he turns, and all the friction pro- 
 duced by rubbing his chin will not help him. The 
 jury wait his answer, and not getting it, look up 
 into his face, which is a red as the judge's goWn. 
 He is evidently considering, if consider he can un- 
 der such circumstances, what answer he shall make. 
 He wishes the counsel would repeat the question, so 
 as to give him a fresh start and a little more time. 
 But the advocate knows better than that. When he 
 gets a witness into a hold he keeps him there, and, 
 if possible, shuts the lid down. The judge looks at 
 him, a rebuke in itself, and then, with monosylla- 
 bilic terseness, says: — 
 
 "Well?" 
 
 After a further pause Eobert is asked: — 
 
 "What did the Clerk of the Peace want with it?" 
 
 "For a remand, I s'pose," 
 
 "Was there not enough evidence unless you made 
 some?" 
 
 "I s'pose there warnt, sir, if you come to that." 
 
 "Did the clerk say so?" 
 
 "Yes, sir." 
 
 "Then, wanting it for evidence, did you say, 
 'Now, Jack, my friend, at present there is no evi- 
 dence against you, but just answer me a question or 
 two, and I'll soon make some. I will write down 
 your answers so that there will be no mistake ?' Did 
 you say that by way of caution?" 
 
IN CASES OF ROBBEEY. 143 
 
 "No, sir." 
 
 "Do you know that the learned judge is not al- 
 lowed to put a question to these men?" 
 
 "Don't know, sir; s'pose a judge can do what he 
 like." 
 
 "Did you make a note of the conversation?" 
 
 "No; but the Clerk of the Peace did." 
 
 "Is he the solicitor for the prosecution?" 
 
 "I believe so." 
 
 The policeman gladly enough left the box, and 
 as there was no evidence the prisoners were acquit- 
 ted. Robert's opinion that there was a correspon- 
 dence between the boot and the footprint was worth 
 nothing. There might have been another boot of 
 the same make, or another person might have worn 
 the prisoner's boots on that night. Besides which, 
 the policeman had taken the shoe belonging to the 
 other prisoner, and that not only did not correspond 
 with the impression on the ground, but differed en- 
 tirely from it. The down on the trousers was no 
 more evidence that the wearer had stolen a fowl 
 than a button off a policeman's coat in the posses- 
 sion of little boy, would be evidence that he had 
 swallowed a constable. 
 
144 
 
 CHAPTER XII. 
 
 ILLUSTRATIONS OP A MAN CONDUCTING HIS OWN CASE. 
 
 In all cases tact and judgment are indispensable to 
 success. What may be called "slogging advocacy," 
 is of little use against art. To bring out the right 
 point at the right time, and to call the right witness 
 just when his, evidence will be most effective, are 
 of ten of vital ' importance to your client. To ar- 
 range your evidence, and to produce your arguments 
 in due order, is as necessary in a cause as the 
 proper disposition of troops on the eve of battle. A 
 mob is no use to a disciplined army, nor is a con- 
 fused mass of tangled evidence likely to be effective 
 against the well ordered case of your opponent. 
 Although your cause may be right, the other will 
 seem so. And juries generally, like other men, act 
 upon what seems to be, rather than what is. 
 
 The illustration I am about to give is front hum- 
 ble life ; and the advocacy to which I direct atten- 
 
CONDUCTING HIS OWN CASE. 145 
 
 -tion is not the advocacy of a professor in the art. 
 It is a defence "in person;" but the "person" 
 shows that he possesses just that knowledge of 
 human nature which the professional advocate may 
 sometimes lack. Low life, no doubt, is revolting to 
 the fastidious mind, but at the Bar you will do all 
 the better by having some acquaintance with it. 
 Human nature is not the monopoly of the high-born, 
 the educated, or the wealthy. You will find a good 
 deal of it lying about the slums ; and if I mistake not, 
 you will perceive a trace of it in the following case. 
 I am not about to give an instance of brilliant ora- 
 tory or ingenious cross-examination. The lesson is 
 a lesson in tact and judgment ; in the mode of deal- 
 ing with evidence, and, albeit, uncouth and rough, 
 in the manner of disposing of its effects. It will 
 show you, indeed, by a rude and unpolished example, 
 how a case should be handled. I suppose a pauper's 
 body would be as good for anatomical purposes as a 
 body which died worth a million. The same kind 
 of nerves, the same kind of ^issues, bones, limbs, 
 muscles, and organs. 
 
 But will students condescend to learn advocacy 
 from a coffee house keeper? And if not, may I 
 enquire why not? Let us recollect that advocacy is 
 not fine language. You may quote Cicero, and make 
 a bad speech, or you may make the most tremend- 
 ous oration, and not know how to cross-examine. 
 A good case made against you may be hopelessly 
 fatal unless you know how to deal with it. Is it pos- 
 sible then, that an illiterate, uncultured coffee-house 
 
146 ILLUSTEATION8 IN ADVOCACY. 
 
 keeper can tell us how to deal with the points of a. 
 case so as absolutely to destroy them? What does 
 he know of advocacy? He knows nothing in the 
 artificial sense; but having a knowledge of men, he 
 stumbles over the facts made against him and 
 tramples them out of all shape and consistency. He 
 was not present when the case began, and so it was 
 opened as undefended. It looked an easy winning 
 case, and one for considerable damages. The 
 plaintiff was young and pretty : you would almost be 
 inclined to give her five-and-twenty pounds for 
 being so pretty. Her looks deserved it. I mean that 
 a fascinating plaintiff is almost sure to win her way 
 with the jury. Juries are so human. And the 
 appearance of a plaintiff or a defendant, if of the 
 weaker — that is the stronger sex — is always a factor 
 with which the advocate must reckon. The learned 
 counsel opened the case remarkably well. There 
 was not a word too many, nor a point too few. He 
 was a modest junior, and assumed no airs; at- 
 tempted no jokes and ignored all attempts to 
 evoke sympathy. 
 
 The pretty plaintiff gave her evidence in a very 
 nice, calm, unaffected way. Told of the promise 
 and the breach, in such simple manner that the art- 
 less conduct of the defendant spoke for itself. It 
 was apparent to all who heard her, especially to the 
 jury, that a man who would not marry such a loveable 
 and loving creature when he had the opportunity 
 ought to pay for his folly. 
 
 Unfortunately, just as the judge was about to sum 
 
CONDUCTING HIS OWN CASE. 147 
 
 up, in came the defendant. What a marvellous sen- 
 sation was produced by his appearance I And what 
 an insight into human nature he must have had ! He 
 was unshaven, ill-clad, I should say unwashed, and 
 was got up (without appearing to be so) in the most 
 unattractive manner you can imagine. His appear- 
 ance quite lowered the plaintiff in the eyes of every- 
 one in Court, If the jury would give something for 
 her beauty they would certainly award nothing for 
 her taste. Damages decreased therefore on the view 
 of the defendant, as much as they had gone up on 
 that of the plaintiff. So they are now on a level. 
 That was the first good point the defendant made. 
 I am quite aware that counsel could not have made 
 this poiut for him so effectively ; but he might have 
 made it nevertheless. How? — will be asked — ^how 
 could he show what kind of man the defendant was ? 
 I answer, by cross-examination. If he could not , 
 produce the original, he could exhibit a picture of 
 him, that is, if he were skilled in the art of present- 
 ing a picture by cross-examination. He certainly 
 could not dd it by bullying the plaintiff, although he 
 might have considerably increased the damages. If 
 you are not an artist, you need not smudge every- 
 body who comes into the witness-box with a tar 
 brush and think you are touching up their complex- 
 ions — ^that is not the way to make yourself look 
 beautiful, even by contrast. But now comes a sec- 
 ond view of the defendant. You can perceive that 
 his knowledge of the points of his case is perfect 
 and that he knows how to deal with them. You will 
 
148 ILLUSTRATIONS IN ADVOCACY. 
 
 also see that he puts them artfully if not artisti- 
 cally; and forcibly, although not scholarly. He has 
 no elocution and no oratorical powers as the learned 
 impute oratory; but he can speak so as to persuade, 
 and argue so as to convince — two good qualities, I 
 apprehend. He can cross-examine, too, although he 
 has not had an hour's practice. He asks just the. 
 questions that are likely to produce favorable answers. 
 He understands what he is doing, and why he is 
 asking every question that is put. He knows what 
 is wanted, and his principle object is to convince the 
 jury that the occasion of the breach of promise was 
 not his; that although he broke the promise, it was 
 in consequence of the conduct of the plaintiff herself, 
 for he was anxious to marry her. His object was to 
 reduce the damages to a minimum. Now, observe 
 how he does it. You may learn it from this natural ' 
 advocate as you may learn what motions are neces- 
 sary in swimming from watching the evolutions of a 
 frog in the water. 
 
 And first, let me say, he did not cross-examine as 
 to the plaintiff's character, nor did he make any 
 imputation upon it. The common trick too often 
 resorted to of trying to blacken your opponent's 
 reputation to the infinite damage of your own client, 
 was not the coffee-house keeper's way of advocating 
 his cause. Wherever he had learned it he knew 
 better than that. Secondly, he did not deny the 
 promise or the breach ; he was not foolish enough 
 to attempt the impossible. 
 
 I have heard advocates say never admit anything. 
 
CONDUCTING HIS OWN CASE. 149 
 
 The coffee-house advocate knew better. In civil 
 causes, whatever cannot be denied had tetter be 
 franhly admitted, and for this principal reason, that 
 the proof may damage you more than the fact proved. 
 It is often the evidence and the surrounding circum- 
 stances that you have to fear more than the thing 
 itself. They may aggravate the default and exag- 
 gerate it, distort it or make it look infinitely worse 
 than it is. 
 
 The student, no doubt, is thinking, " What can 
 this man know of cross-examination?" Let the 
 student put the same question to himself. We shall 
 see. He cross-examines for the purpose of showing 
 what led to the breach. There could not be a better 
 purpose, and it was one which involved a reason so 
 natural that the jury could see it at a glance — not 
 only see it, but calculate it in pounds, shillings and 
 pence. The reason why he broke off the engage- 
 ment was coldness on the part of the plaintiff, and 
 when the Jury looked at her and then looked at the 
 defendant, it was manifest that she must turn cold, 
 even if she did not freeze. How could such a man 
 inspire warmth? His looks and manner were below 
 zero ever so many degrees. No pretty girl twenty 
 years his junior could warm herself up to a matri- 
 monial and enduring heat. 
 
 Notwithstanding all this, he was, I believe, a most 
 respectable, well-to-do tradesman, but he was a con- 
 summate actor and a good advocate, although he 
 made pretensions to neither character. 
 
150 ILIiUSTEATIONS IN ADVOOACT. 
 
 Now comes another point. He asks about a letter 
 in which he had complained of her coldness. 
 
 "Had he given notice to produce?" asks the 
 counsel for the plaintiff. 
 
 "Oh, no, my lord 1 I aint acquainted with the 
 forms of law. If I had had the means of employ- 
 ing counsel, I should not have been in this predica- 
 ment." 
 
 No; but he might have been in a worse. So he 
 says if he had but been able to procure legal assist- 
 ance he would have made her produce a letter which 
 would have shown the sincerity of his affection and 
 his complaint of her coldness towards him ; three 
 good points in a cluster, but distinct and clear as 
 windows with a light behind them. 
 
 "But you shall have every opportunity," says the 
 learned judge. "You shall not suffer because you 
 you cannot afford to have counsel." 
 
 I presume the reader perceives how the defendant 
 is getting on in the way of reducing damages, and 
 probably believes he could not have done it better 
 himself. 
 
 "Thank you, my lord," says the poor man most 
 reverently. "I couldn't afford to pay my solicitor 
 and so he wouldn't go on with the case." 
 
 "Very well," says the judge, "what is the date of 
 the letter?" 
 
 "It was while she was away in Cumberland, my 
 lord. It would be about March. I wrote to ask 
 her when she was going to return, as I had five 
 children, my lord, and no one to look after them." 
 
CONDUCTING HIS OWS CASE. 151 
 
 "Five children!" exclaims Ms lordship, with as- 
 tonishment. «'Why, how old are they?" 
 
 "One is seventeen, my lord, and the youngest is 
 two." 
 
 Damages are certainly lessening. This is quite 
 an unexpected style of advocacy, but so effective 
 that no counsel could have surpassed it by any man- 
 ner of eloquence or cross-examination. These five 
 children come in just at the right moment, and the 
 jury see them hungry and ragged. 
 
 "Have you got that letter, Mr. Jones?" asks his 
 lordship. What a fuss there is about that letter, to 
 be sure ! 
 
 "Oh! yes, my lord; here is is. It shows the 
 promise clearly. I read part of it in my opening." 
 
 "Yes, but now the defendant is going to read the 
 other part. 
 
 There it was, truly enough, a good, honest, 
 manly letter, asking the plaintiff when she was go- 
 ing to return, and stating that he was anxious to 
 get married as soon as possible, as his business was 
 going to rack and ruin. He could not afford to 
 have a housekeeper, and there was no one to look 
 after his five "motherless children." 
 
 "What do you make of that?" asks the judge. 
 
 "My lord," says the defendant, "I want now to 
 show what answer she returned to that letter which 
 was the reason of my breaking off the engagement 
 which I confess I did, and believe any man would 
 do if he received so cold a letter as this here." 
 
 The letter was handed up, and certainly it did not 
 
152 ILLUSTBAXION8 IN ADVOCACT. 
 
 breathe any very warm sentiments. It was a busi- 
 ness-like affair altogether, but still did not warrant 
 a breach of the promise to marry. Damages still 
 decreasing, that is clear, because not much injury to 
 feelings — feelings not up to anything like matrimo- 
 nial point as you would expect in one so pretty — ^the 
 letter, indeed, reads somewhat pei-t ; she is not quite 
 a scold, but a very indifferent lover evidently. 
 
 "Very well," says the judge, "but now then you 
 must pay, it is a question of damages only." 
 
 Then the counsel cross-examines as to the defend- 
 ant's position, so as to show how much pecuniarily 
 the plaintiff has lost, that being apparently her only 
 claim now, as injured feelings are no longer a mar- 
 ketable commodity. The defendant, however, is as 
 good at answering questions as he is at asking them. 
 
 "Now then," says the counsel, "You live in a 
 house of £120 a-year rent, don't you? 
 
 "I don't deny that," answers the defendant, 
 "And that is what makes me so poor; if I was the 
 landlord it would be different." 
 
 That seemed to strike the jury as a common-sense 
 argument. It is one , thing to have to pay and 
 another to have to receive £120 a-year. Heavy rent 
 does not usually make a tenant wealthy, and of this 
 ^pipioi) seem his lordship and the jury. 
 
 "4jjd more than that," says the defendant, 
 "Ti^y've nearly doubled my rent this last year, 
 and^&'fc has nigh doubled me up. I could hardly 
 get p> living before, and now I don't know how lam 
 to live. The business is worth nothing." 
 
CONDUCTING HIS OWN CASE, 153 
 
 "But you've got some other property, haven't 
 you? 
 
 "Yes I have. I've got these here pawn tickets," 
 producing about a dozen. 
 
 There was a peal of laughter at this stroke of 
 business. Pawn tickets may be a valuable property, 
 but they don't usually indicate affluent circum- 
 stances, especially when they relate to a watch, a 
 great coat, a silver buckle, an arm chair and a hat. 
 
 "Do you mean to swear, sir, that you have no 
 money?" 
 
 "I do," says the witness; "they thought I had." 
 
 "Why do you say that?" 
 
 "Because they Was always trying to get some out 
 of me." 
 
 "Who do you mean by they?" 
 
 "Why this plaintiff and her father^ the old gen- 
 tleman who was a witness." 
 
 "How did they try to get your money?" 
 
 "They took me to a place where they had got an 
 old painting about eight feet long by six, and wanted 
 me to give £700 for it. As I told them, I hadn't 
 got 700 pence, and if I had what was the use of a 
 picter of that size to me? What's a man in my 
 position want with one of these here old masters." 
 
 "Now sir," asks the counsel, "do you mean to 
 swear that you have no money in the bank ? I warn 
 you she ba^s sworn that you told b^r that you bad." 
 
 "Its quite right, my lord, I did tell her, and here's 
 my Ij^iuking book, and your lordship will see that I 
 have put a few shillings a-week in the saving's bank 
 
154 ILLUSTRATIONS IN ADVOCACY. 
 
 for the purpose of paying my rent, and hard enough 
 it is to scratch it up." 
 
 His lordship looks at the book and finds that he 
 has never had more than £7 10s. in the bank. Not 
 a great amount certainly ; and so far as one can see 
 up to this point, if the marriage had taken place, 
 the lady would have acquired no very affluent position 
 out of five children, a number of pawntickets, £120 
 a-year rent, and a few shillings in the saving's bank. 
 
 •'Now tell me, did you not break off this engage- 
 ment because you were going to marry a widow with 
 £900?" 
 
 Here there was great laughter in which the de- 
 fendant joined, and then answerfed: 
 
 "I only wish it was true. I should very much 
 like to marry a widder with £900, or for the matter 
 of that I'd take less. I wouldn't keep a coffee shop 
 long." 
 
 The imaginary "widder" having been thus 
 promptly disposed of, there remained one other point 
 to cross-examine this prosperous defendant upon. 
 If he possessed a really flourishing business the fair 
 plaintiff had lost a home of some value, and the 
 measure of damages must be estimated thereby. To 
 ascertain then the estate of the defendant and his ca- 
 pacity to pay damages is the next object of the plaint- 
 iffs counsel. As a rule, I think this part of the busi- 
 ness dangerous to venture upon except you do it in the 
 most general way. If you enter into details you 
 may be sure the defendant has prepared himseif for 
 every question. The position of a man as a general 
 
CONDUCTING HIS OWN CASE. 
 
 155 
 
 rule is a better test of his capacity than the items of 
 his expenditure. If you get the style of the man 
 the jury will apportion his income to it ; but if you 
 try to get at his income you may find that he places 
 himself on the brink of ruin. This proposition of 
 course does not apply to fixed and determined posi- 
 tions, which go either with or without proving, and 
 concerning which you may make your choice with 
 safety. 
 
 "Now," says the counsel, "what are your 
 takings?" 
 
 "I have not taken much lately," says the witness, 
 producing a dirty red memorandum-book. 
 
 "We have been told you take £7 a day?" 
 It was hardly a question, but it did duty as one. 
 
 "I suppose the old gentleman told you that; it's 
 just like him." 
 
 This answer provoked much laughter ; the learned 
 judge himself could not resist. For a time it was 
 doubtful what "old gentleman" was meant, and 
 everyone supposed it was the particular "old gentle- 
 man so often referred to by p'ersons who have a 
 lively faith in his personality. It really referred, 
 however, not to the "Father of Lies," but to the 
 father of the plaintiff, who was shown by the defend- 
 ant to have been a very active agent in the promotion 
 of this breach of promise. But the dirty book is 
 produced, and the defendant is asked "what he has 
 got there," generally a dangerous question enough, 
 for, like a needle, it often draws with a thread of 
 
156 ILLUSTRATIONS IN ADVOCACY. 
 
 evidence that stitches the pax'ts of a ragged case 
 together. 
 
 "/it's an account of my takings,^' says the melan- 
 choly creature ; and the book being handed to the 
 judge shows £7 a-week instead of that amount per 
 diem. A very carefully kept book it was, not con- 
 cocted as you see, and it extended over several 
 months, a^ long at least as tlie legal proceedings had 
 been on foot. The witness then goes into the cost of 
 bread and butter, coffee and general expenses, not 
 omitting the milk ; and there being a milkman on 
 on the jury, he knows that that is an important item, 
 water it as you like, in coffee-house business? so 
 that on the whole the wonder is how the man can 
 support his five children, and why the whole .family 
 is not in the workhouse, or singing doleful songs in 
 the streets. 
 
 What is to be done? the more you cross-examine 
 this witness the worse the case looks, so the learned 
 counsel wisely leaves him to my lord and the jury, 
 weary of a hopeless task. It's like pushing a jibbing 
 horse uphill. 
 
 My lord tells the jury that the proper measure of 
 damage is what the plaintiff has lost by not becoming 
 the wife of the defendant (and as Eoscoe puts it, 
 ^Hhe affluent circumstances of the defendant are 
 evidence on the question of damages"); his lordship 
 also says the injury to the plaintiff's feelings maybe 
 considered. Two items therefore to be assessed. 
 
 The jury consider these "affluent circumstances »" 
 and this *'injuryto the plaintiff's feelings," and give 
 
CONDUCTING HIS OWN CASE. 157 
 
 effect to the conclusion they arrive at by the follow- 
 ing verdict:-^ 
 
 "My lord, we finds a werdick for the plaintiff with 
 40s. damages, and thinks as how she have had a 
 werry narrer escape, and is well out of it." 
 
 Judge agrees with the jury, and does not allow 
 costs, which was as bad as if the solicitor for the 
 plaintiff had been the defendant and lost the verdict. 
 This was the best defence to an action for breach of 
 promise of marriage I ever heard. If you wish to 
 cut down damages this coffee-house keeper has shown 
 the line to take. A chorus of voices says "of 
 course !" But it is by no means of course ; not one 
 in advocate twenty could have done it. Most of 
 them would have tried to break down the plaintiff 
 on the promise or breach, or have endeavored to 
 show that the man was justified in breaking the 
 engagement on account of the character of the plaint- 
 iff, and this, as a recent case has proved is the most 
 dangerous of all defences. It cannot be too frequently 
 impressed upon the mind of the advocate — leave 
 character alone unless it is material to the issue or 
 fatal to the credit of a witness. 
 
 The usual mode of dealing with this case would 
 have been to fly at the plaintiff with the object of 
 showing that she was unworthy of belief, and that 
 she released the defendant from his promise. Some- 
 body's character would have been attacked, perhaps 
 her father's, or mother's, or her grandmother's, or 
 the solicitor's, or even the conduct of the plaintiff's 
 counsel. Anything and anybody rather than the 
 
158 ILLUSTRATIONS IN ADVOCAC3T. 
 
 issue. Usually an eloquent speech is made against 
 the policy of permitting such actions. But the 
 judge having to sum up after the eloquent advocate 
 does not permit the main issue to be shunted, and 
 the jury to be trailed along by a false scent on a 
 fool's errand. There may be differences of opinion 
 about the advisability of abolishing actions for 
 breach of promise ; but the question f o]> the jury is 
 whether there has been a promise and a breach, and if 
 so what damages. The jury are not a public meeting 
 to carry resolutions for the amendment of the law, 
 but to take the law as it is from the judge and en- 
 force it by their verdict. 
 
 In the trial of Kush, in 1849, for the murder of 
 Mr. Jermy, the prisoner defended himself. The 
 principal witness against him was Emily Sandford, 
 who had been governess to his daughter. This 
 witness he had seduced under a promise of marriage. 
 She gave material evidence for the crown as to 
 Eush's absence from his home at the time when the 
 murder was committed; also as to his conduct on 
 his return, especially his telling her, should she be 
 asked how long he was absent on the night in 
 question, to say about ten minutes. Almost every 
 
CONDUCTING HIS OWN CASE. 159 
 
 question the prisoner put in cross-examination was 
 dangerous, if not fatal. But among others he asked 
 this, with a view to showing enmity and spite on the 
 part of the witness : 
 
 "Have you not told me you would make me_ 
 repent of not keeping my promise to make you my 
 wife after the birth of the first child?" 
 
 This question was damaging in every way, even 
 without an answer, and consequently the worst form 
 of question that could be put. It was based upon 
 the assumption that the witness had been swearing 
 falsely against Mm for the purpose of taking his life, 
 and yet it assumes that she will not commit perjury 
 in answering his question. In either view her answer 
 must be against him; but if there had been reason 
 for putting it, still it ought not to have been put. 
 If she ever threatened him in the manner alleged, a 
 skillful cross-examination would have elicited the fact 
 without the question; and long before any such 
 question was necessary, would have made it unnec- 
 essary by her manner in the box. It is the worst 
 form of cross-examination that simply obtains a 
 denial to what you wish. But this question drew 
 more than a mere denial. This was the answer the 
 witness gave with solemn emphasis, and amid pro- 
 found sensation in Court: 
 
 "I told you when you broke your promise, that 
 before you died you would rep,ent of not keeping 
 your word. I told you that you would never pros- 
 per after breaking such a promise. You said I had 
 made you a reformed man, when I charged you with 
 
160 ILLUSTRATIONS IN ADVOCACY. 
 
 being unfaithful, and you promised solemnly to 
 marry me." 
 
 These were awful words, and their reproachful 
 accents must have been remembered by the pris- 
 oner with fearful clearness, while their prophetic 
 truthfulness was rendered plain in that dreadful 
 moment. 
 
 Mr. Baron Eolfe, in sentencing the prisoner, 
 made these observations : 
 
 "In the mysterious dispensations of the Almighty, 
 not only is much evil permitted, but much guilt is 
 allowed to go unpunished. It is perhaps, presump- 
 tuous, therefore, to attempt to trace the finger of 
 God in the development of any particular crime; 
 but one has felt at times a satisfaction in making 
 such investigations, and I cannot but remark that if 
 you had performed to that unhappy girl the promise 
 you made to her, the policy of the law which seals 
 the lips of the wife in any proceeding against her 
 husband, might perhaps have allowed your guilt to 
 go unpunished." 
 
161 
 
 CHAPTEE XIII. 
 
 PEEPING INTO A JUETMAn'S MIND. 
 
 It wiU sometimes happen during the progress of a 
 case that a juryman is anxious to put a question. 
 He is most frequently, with great judicial politeness 
 "shut up" by the judge, who tells him that "by- 
 and-by" if he pleases, when the learned counsel has 
 finished, if there is any question he would like to put, 
 &c., &c. The poor juryman, who probably has never 
 been in a jury-box before, feels awfully snubbed, 
 although snubbed he really is not, and withdraws as 
 completely within himself as a snail within its shell 
 on the approach of danger, and the question is either 
 forgotten or the juryman will run no further risk 
 Whenever this happens be careful to remind the 
 judge that the juryman desires to put a question. It 
 may be against you, or for you, or altogether irrev- 
 elant. In any event you will gain something from 
 it — ^you will get at least a peep into the juryman's 
 
162 ILLUSTEATIONS IN ADVOCACT. 
 
 mind J and a peep through the smallest chink has 
 often revealed strange things; they may be only 
 small matters twisting about in the mental kaleido- 
 scope of the juryman's cranium, but they may be 
 vei"y important for you to know, nevertheless. I 
 have seen cases won by these little sudden peeps. 
 Of course, the advantage is equally great, you will 
 say, to the other side. My answer is, that depends 
 upon circumstances. Some men will glance in at a 
 window, and see only their own reflection. Others 
 wiU look in and see people inside, and learn a good 
 deal of what is going on. Sometimes you will learn 
 that the juryman is misunderstanding the drift of 
 the whole case, bothering his poor head about some 
 totally irrelevant -matter ; in any event, it will be 
 useful to know what is passing in his mind. 
 
163 
 
 CHAPTER XIV. 
 
 SEVERAL MODES OF CROSS-EXAMINATION. 
 
 Let us now take an example of a bad and a good 
 cross-examination ; and I would like the student to 
 ask at every question herein set down, whether or 
 no he can determine for himself its quality. It wiU 
 afford some test of his knowledge of the art of 
 advocacy if he can. For I may say that every 
 question I shall give has been put over and over 
 again, even by leaders, without any definite calcu- 
 lation as to its value, or any knowledge of its 
 practical effect, either on the mind of the witness 
 or the jury. 
 
 Let us suppose a man to be charged with hiving, 
 three or four years ago, at a country fair, purchased 
 a horse, and paid for it with a bad cheque. The 
 following cross-examination will disclose all the facts 
 that are necessary to be known. The whole issue 
 is as to the identity of the prisoner. 
 
164 rLLUSTRATIONS IN ADVOCACT. 
 
 Question No. 1. "Had you ever seen the man who 
 bought your horse before that day?" 
 "No." 
 
 2. "How long were you with him on that day?" 
 "Several hours." 
 
 3. "Were any other people present?" 
 "Yes, many." 
 
 4. "When did you next see the man after that 
 day?" " 
 
 "Not till I saw him in the police-station. 
 
 5. "Did you know him directly or did you pick 
 him out?" 
 
 "Knew him directly." 
 
 6. "How do you know him?" 
 "From his appearance." 
 
 7. "And will you undertake, upon your solemn 
 oath, to swear he is the man?" 
 
 "I will." 
 
 The first question is right, the second wrong, the 
 third nearly right, the fourth right, the fi:fth, sixth 
 and seventh utterly wrong, and the man must he 
 convicted! 
 
 The first question is right, because the defending 
 counsel knows what the answer will be, and he must 
 elicit it. 
 
 The second is wrong, because he does not know 
 what the answer wjU be, and the witness will nnder- 
 st3.]jd fj-oro its form bow to make his reply as tellr 
 ing as he can against the prisoner. 
 
 The fact which the counsel, however, was desir- 
 ous of eliciting was all important to the defence. 
 
MODES OF OEOSS-EXAMINATION. 165 
 
 and should have been got out of the witness in 
 favor of the prisoner and not against him. 
 
 The third question was nearly right, because it 
 was better to place the man to be identified among 
 a crowd ; but it ought to have been put in a less 
 direct form, for fear the answer should be against 
 the prisoner. The witness evidently answered it as 
 he did, because he thought it told most strongly in 
 favor of his own accuracy and against the prisoner. 
 
 Tbe fourth question was right, because no other 
 answer was possible, as was known to the counsel, 
 not only from information communicated by the 
 prisoner himself, but for many other obvious 
 reasons. 
 
 The fifth was wrong, because it would be sure to 
 be answered against the prisoner, and could not, in 
 the form in which it was put, he answered in his 
 favor. 
 
 The sixth was wrong, because it gave the pi'ose- 
 cutor the opportunity of giving reasons for his belief, 
 making his belief looJc like a fact. 
 
 The seventh also was wrong for the same reasons, 
 and also because it was a mere repetition of what 
 the prosecutor had sworn in chief. It was not 
 cross-examination at all, and could only confirm the 
 evidence already given. And, again, it was only 
 asking the wan whether he would undertake to do 
 something. So that altogether it was as bad as all 
 the other bad ones put together 
 
 Let us now see another style of cross-examina- 
 tion to the same witness. 
 
166 ELLUSTEATIONS IN ADVOCACT. 
 
 No. 1 is asked. 
 
 Instead of No. 2, let us ask where ho saw the 
 man. Then we shall get the, fact, without asking 
 for it or seeming to desire it, that the man was with 
 other people ; and the crowd in the fair or in the pub- 
 lic house will come out as nicely as possible. 
 
 Safely, then, may be asked what time it took 
 place. The witness knows nothing of your object, 
 and answers you to the best of his belief, like a lamb 
 bleating for its mamma, ''Twelve o'clock." 
 
 But how, then, having got twelve o'clock, shall 
 we keep them together several hours ? By no means . 
 You wonder what time he left the fair to return to 
 his home; and, not knowing what you are driving 
 at, and that presently yon are going to do a little 
 mental arithmetic and reduce everything to min- 
 utes, the witness tells you that he didn't stay long . 
 after the '^ornary" which took place at one o'clock-. 
 He is already afraid of making himself drunk, you 
 see, and away he goes home, as sober as a judge, 
 *^about two to ha' past." 
 
 You see, you don't want the answer ''several 
 hours;" you will, if you are careful, reduce it to 
 several minutes without a single question with that 
 apparent object. 
 
 What time had he finished selling? 
 
 He sold the last pen just before one, all in good 
 time for the "ornary." 
 
 Things fetched a goodish price that day, he tells 
 you, and you get out that towards {lie latter part of 
 the morning the market got a little brisker like, and 
 
MODES OF CROSS-EXAMINATION. 167 
 
 he, being as shrewd a man as any in the place, had 
 reserved a smart deal of stock till the last, so that 
 between eleven and one he was pretty busy like. And 
 there not being much chaffering about the price of 
 the horse, as you know there seldom is when a rogue 
 buys who doesn't inean to pay for it, the thing's 
 done, bless you, and the prosecutor too, both by the 
 thief and your learned self, in a few minutes; 
 before he has so much time as to observe whether 
 the man had blue or grey eyes, a brown neck doth or a 
 white one, alight grey over-coat or a shooting jacket: 
 how could a man after three years, he plaintively 
 observes, almost weeping, be expected to give the 
 color or shape of a man's coat, or even tell whether 
 he had brown or grey whiskers or any whiskers at all? 
 he couldn't tell you the color of his own necktie or 
 coat on that day. It's not to be exjjected. 
 
 " Unpossible," he says "my lord." 
 
 Poor soul he dosn't think what he's doing, and 
 that he is being turned into as good a witness for the 
 defence as it is possible to have. The learned coun- 
 sel knew full well that there was not a question he 
 put to this witness that he could answer, try as he 
 might. And further, he has not put one question 
 . which, answer as the witness liked, or refuse as he 
 liked, but would have been in the defendant's favor. 
 
 Let us take any one. Suppose he had said the 
 man who cheated him wore a beard, but added that 
 he had shaved it off since. His case must have been 
 over, if you couple that fact with another fact, 
 namely, that he had never seen the prisoner before 
 
168 ILLUSTRATIONS IN ADVOCACY. 
 
 or after the occurrence. So of every question ; the 
 answer, if near the mark, would have been a guess, 
 and if he could not even guess, his evidence was 
 destroyed. But if you want to pound the poor man 
 still more it is possible to do so. Just try the effect 
 of this upon him: — 
 
 Can you teU me, without looking at the prisoner, 
 what is the color of his eyes? 
 
 He certainly cannot; and although he turns in- 
 stantly to the prisoner, the prisoner as instantly 
 turns his eyes modestly to the ground, so that no 
 information is to be got from that quarter. Now 
 then, as you know perfectly well that the witness has 
 been trying to get a sight of the prisoner's eyes, and 
 had not directed his attention to his necktie or waist- 
 coat, you may safely and suddenly ask him about 
 either or both of those articles, and you will find that 
 he cannot answer you. Notwithstanding all this, if 
 you really desire to show how utterly worthless such 
 evidence of identity is, you may do a great deal more 
 than you have yet done. But what I am now about 
 to indicate requires some skill and judgment in 
 framing your questions. 
 
 Be careful you do not get an accurate portrait of 
 the man made up partly from his own clumsy de- 
 scription to the police, and partly by the description 
 of the man to the witness by the police. 
 
 I cannot put down questions here which would be 
 a safe guide, because t should like first of all to see 
 the witness, for it would depend upon the kind of 
 man he was as to what question should be put first 
 
MODES OF CKOS8-EXAMINATION. 169 
 
 on this subject. Further, I should like to know 
 from the police-sheet containing the report of the 
 robbery. (and which is not evidence unless you make 
 it so) what kind of description was given of the thief 
 by the witness immediately after the swindle, if any 
 description was so given. But be sure of this, that 
 if he has given one which does not tally with that of 
 the prisoner, it loill ensure an acquittal. 
 
 I need not add that a cross-examination of the 
 kind indicated, when the case depends entirely upon 
 the prosecutor himself will be certain to break him 
 down and obtain for the swindling rascal the "6en- 
 efit of the doubt," which is a doubtful benefit to 
 society, notwithstanding society's love of fair play. 
 
 By way of contrast to this effective cross-examin- 
 ation, I will give an illustration of one not so effec- 
 tive. It will show the danger of being too minute 
 and circumstantial, the usefulness of a judicious re- 
 examination, and how such re-examination may be 
 admitted through a very small opening. 
 
 Let it be remembered that this is another instance 
 of the advocacy of leading men, whose experience 
 seems to have innured them to danger, showing, as 
 I take it that something more is required in advo- 
 cacy than mere practice to make perfect. The cir- 
 cumstances arose in a case where the validity of a 
 will was the question in dispute. On the one side 
 the testator was alleged to have been perfectly capa- 
 ble, and by the other side was perfectly incapable, 
 of understanding the nature of the act he was doing. 
 
170 , ILLUSTKATIONS IN ADVOCACY. 
 
 Eminent advocates and hard-swearing witnesses 
 abounded on both sides. 
 
 One witness swore that the testator, in his opin- 
 ion, was of sound mind, memory and understanding. 
 He gave his evidence fairly, and seemed desirous of 
 establishing the will. 
 
 He was then cross-examined in the following 
 manner: — 
 
 "I believe you were related to the testator, were 
 you not?" 
 
 "I was." 
 
 "Nearly related?" 
 
 "Yes." 
 
 "And would have an interest in the will if estab- 
 lished?" 
 
 No objection seems to have been taken to this 
 question, which was very near speaking to the con- 
 tents of a document which was not read. 
 
 The answer was "Yes." 
 
 If the advocate had asked nothing further, it was 
 a good point made, and certainly would have mate- 
 rially affected the value of the evidence as to the 
 soundness of the testator's mind, because the witness 
 had a direct interest in establishing the will. But in 
 spite of the remonstrance of his junior, the leader 
 continued his cross-examination, and asked — 
 
 ' 'Would you take as much as ten thousand pounds 
 if the will were established ?" 
 
 "I should," said the witness; and, as the news- 
 papers reported, "there was profound sensation in 
 Court." 
 
MODES OF CROSS-EX AMINATIOJf. 171 
 
 Of course, if matters could have remained here, 
 the profoundity of the sensation would have been 
 permanent ; but the watchful counsel on the other 
 side quietly remarked: — 
 
 "Just one question. Have you make a calcula- 
 tion as to what you would be entitled to in the event 
 of an intestacy?" 
 
 "I have." 
 
 "What would it be?" 
 
 "As next-of-kin I should be entitled to ^/i!?/ thou- 
 sand pounds. 
 
 Cross-examination not effective, except for the 
 purpose of letting in this fact, which let in the will, 
 and also let in to a considerable depth the cross-ex- 
 aminating counsel. This almost seems incredible; 
 one of the frequent characteristics of truth. There 
 are so many mistakes made by experienced counsel 
 that one sometimes doubts whether practice really 
 makes perfect: if it do not, I will affirm that care- 
 ful study of human nature will bring you much 
 nearer to it than any amount of so called practice, 
 which often is nothing more than physical exercise. 
 
 Merely shooting at a target is not much, but the 
 careful study of the rifle, the amount of pressure 
 required on the trigger, the direction and force of 
 the wind, the stateof one's nerves on the occasion, 
 the clearness of the atmosphere, the "pull," and 
 other trifling matters, are a good deal, and no one 
 will excel unless he study them. 
 
 A man by nature may be an advocate ; he cannot 
 become one by practice; but he may perfect his 
 
172 ILLUSTRATIONS IK ADVOCACT. 
 
 natural gift by careful study of the motives that 
 touch the springs of human action. You may not 
 be able to learn much advocacy in a Court of Justice, 
 but you may learn a good deal in the market-place, 
 on the race-course, and at country falirs, especially 
 "Goose Fairs." 
 
 CROSS-EXAMINING TO THE CREDIT OF A WITNESS. 
 
 This is always a dangerous, and too often a disas- 
 trous and cruel performance. None can do it grace- 
 fully or approvingly. It exhibits generally a weak 
 case and a malignant mind. For, mark, whatever 
 questions are put are not the inventions of the pro- 
 lific genious of advocate, but are conveyed to his 
 mind by the client, who will ultimately, if they fail 
 to demolish the character of his opponent, have to pay 
 for the luxury of them. The advocate is responsible 
 for the use he makes of his instructions, not for the 
 instructions themselves. 
 
 "How is that revelant, Mr. Jones?" asks the 
 judge by way of remonstrance, as Jones is unlimber- 
 ing his Gatling for the purpose of pouring it into the 
 witness's character, loaded as the fieldpiece is with 
 all the errors and supposed errors of the witness's 
 past life that could be collected or invented against 
 him. 
 
 "Oh, my lord," says Jones plaintively, as though 
 he were unkindly interrupted in the performance of 
 an act of mercy : 
 
lIODES OF CROSS-EXAMINATION. 173 
 
 "It goes to the witness's credit." 
 
 "Oh," says his lordship, and then the jury Just 
 tap the ledge of the desk with the tips of their fin- 
 gers — and a good deal of meaning there is in those 
 taps: — take care, Jones, the gun may burst I Jones 
 might have added, "My lord, at present my client 
 has only succeeded in breaking up the witness's 
 home ; he is now about to ruin his character : it may 
 be to make his children hate and his wife despise 
 him!" 
 
 "Ask him," says a money-lending plaintiff in a 
 bill of exchange case, '■^whether he isn't a JewT' 
 
 "But," says the counsel, taken all a-back at the 
 suggestion, "what does that matter?" 
 
 "It will prejudice the jury against him," says the 
 plaintiff, 
 
 "But you are a Jew, sir?" 
 
 "Yes but the jury don't know that. I am not a 
 witness." 
 
 This is the usual spirit in which counsel are 
 instructed to cross-examine "to the credit of a wit- 
 ness," and I need not say a cruel one it is. Spite 
 and malice are generally the moving springs of that 
 species of attack. 
 
 The greatest mistake an advocate can make is to 
 let his client dictate to him the mode in which his 
 case is to be conducted. Either use your own judg- 
 ment,- or resign your duties to the hands of the 
 gentleman who desires to conduct your case. You 
 cannot drive a coach with your back to the horses. 
 
 There was a famous case not long ago which is 
 
174 ILLUSTRATIONS IN ADVOCACY. 
 
 extraordinary in many aspects. Extraordinary for 
 the way in which experts swore ; extraordinary for 
 the enmity which was exhibited by some of the 
 partizang as well as the defendant ; extraordinary for 
 the mode in which the character of the plaintiff was 
 assailed, both out of Court and in. 
 
 There was no defence to the action: could be 
 none when plain common sense was brought to bear 
 upon it. There was no defence when the law was 
 brought to bear upon it. 
 
 There should have been an apology and a retract- 
 ation; but you may always defend some actions, 
 even though there is no real defence. The point I 
 am about to direct the attention of the reader to is 
 the attempt to destroy the plaintiff's character in an 
 absolutely undefended case, and the consequences 
 resulting therefrom. You may be sure that juries 
 will make you pay for unfounded attacks upon wit- 
 ness' characters. They invariably take the advocacy 
 of the cause into their reckoning with the cause 
 itself, and no one has power to prevent it. Try to 
 reduce damages if you like, but you will find it 
 difficult to reduce them on the ground that you 
 aggravated your original wrong by abusing the 
 plaintiff. Human nature has not yet been tutored 
 by fierce advocates to put out of its calculation 
 the injury done to a plaintiff by the defendant's 
 mode of attempting to escape a just liability. You 
 may injure your adversary more by firing at him in 
 your retreat than you did in your first attack. This 
 
MODES OF CROSS-EXAMINATION. 175 
 
 will be taken into account by the jury, although it 
 forms no part of the original claim. 
 
 The extraordinary case I allude to was an action 
 for libel. The plaintiff was asked in cross-examin- 
 ation whether he had not committed theft and forgery . 
 The charge was indignantly denied. There was, 
 indeed not a shadow of foundation for such a charge. 
 I wonder why, after this, he was not asked whether 
 he hadn't murdered his mother. He could but have 
 denied it. 
 
 After some considerable time the defendant went 
 into the box to prove the truth of the libel; and by 
 way of clearing up the matter of charge of theft, 
 and forgery he was asked, as a sort of "By-the-by, 
 
 Mr. now you are in the box we may as well 
 
 dispose of this little matter about which there seems 
 to be some little misapprehension." 
 
 That was the tone of injured innocence, assumed 
 in consequence of the plaintiff denying that he was 
 a forger. Observed the learned Queen's counsel : — 
 "Something has been said about the plaintiff and 
 a cheque. I don't want to make too much of it, but 
 for his sake it ought to be cleared up." 
 
 Such kindness, I need not say, verily received its 
 reward. 
 
 "Oh, yes," says the defendant, "I remember." 
 
 "You remember?" repeats the counsel. 
 
 "Oh, yes; quite well," says the witness. 
 
 "We may as well clear it all up. You had a 
 cheque, had you?" 
 
 "Yes." 
 
176 ILLUSTRATIONS LN ADVOCACY. 
 
 "Where did you keep it ! " 
 
 "In my desk." 
 
 "And what happened ?" 
 
 "I suppose he took it, and signed it— 
 
 "Did you authorize — ah, well! — you don't wish 
 to go into it?" 
 
 "Oh, dear no ! ' 
 
 Poor man, he little thought he was already "into 
 it" to the depth of four or five thousand pounds ! 
 
 Counsel sits down. 
 
 "Now," says the junior on the other side, in true 
 Ciceronian style, "just^ attend to me. Have you 
 talked this matter of the cheque over this morning?" 
 
 The witness never expected this question any more 
 than his counsel did ; but it was just the question to 
 put, and the only one that could have the effect it 
 did. But what is the witness to say? He must 
 answer "Yes." 
 
 "Did you talk it over with your solicitor?" 
 
 Bound to answer "Yes." 
 
 And was it arranged that you were to be ashed the 
 circumstances of this alleged robbery T' 
 
 No other answer than "Yes" can be given. 
 
 It was not an accidental thought of the learned 
 counsel you see, but a planned and deliberate 
 renewal of the attack upon the plaintiff's character. 
 
 Thus literally in the interest of the plaintiff, was 
 it cleared up at an expense of some thousands of 
 pounds to the defendant. 
 
 It may be as well to give the opinion of a distin- 
 guished writer on this subject. 
 
MODES OF CROSS-EXAMINATION. 177 
 
 The late Charles Eeade, in a letter to the Daily 
 Telegraph, entitled, "The rights and the wisdom of 
 Juries," says with reference to the defence: — 
 
 "Eight or wrong, they found some injurious ex- 
 aggeration in the original libel, and much malicious 
 exaggeration in the defence, which the defendant 
 selected. Now, all juries argue backwards, from the 
 animus of the defence to the animus of the original 
 libel, and they have a right to do so. As to dam- 
 ages, here I drop conjecture, for I think I know the 
 grounds on which they settle them. They decupled 
 the damages because the defence centupled the libel." 
 
 The mild issue of "thief or no thief," was sug- 
 gested, and the plaintiff was tortured, yet cleared. 
 Where was his remedy for this attack ? It was in 
 its nature indictable, yet he had only the jury in this 
 suit to pity him and to compensate him. God for- 
 bid that the defendants in libel should be encouraged 
 by trumpery damages not equal to the plaintiff's 
 costs, to stab another in so holy a place as a temple 
 of justice, with any irrelevant dagger the ruthless 
 hand can furnish to the passionate, and therefore 
 remorseless heart. 
 
 The defendant selected his own defence. He 
 could have resigned the verdict, and reduced the 
 costs and damages to a trifle. He preferred the bold 
 course though he and his counsel knew it was the 
 perilous one. 
 
 Mr. Bead speaks of the dangers of such a mode of 
 examination from a point of view different from 
 mine ; he regards it from the public standpoint and 
 
178 ILLUSTEATIONS IN ADVOCACT. 
 
 as a malignant attack by the defendant himself, I 
 look at it from the advocate's position only. 
 
 Subsequently, on a motion for a new trial, the 
 whole blame for putting the offensive question was 
 bravely accepted by the defendant's counsel. The 
 blame doubtless may so be appropriated, but it 
 could not be shifted from the defendant, who told 
 the learned counsel that the plaintiff was a forger 
 and a thief. The original libel could not be appro- 
 priated by any number of counsel, nor could the 
 subsequent slander. It was not invented by the 
 advocate, and the advocate could not be punished 
 for it. To relieve the defendant from the conse- 
 quences of the slander, without paying the penalty, 
 was only making matters worse, because it was an 
 attempt to avoid the pecuniary consequences which 
 must ensue. 
 
 An advocate cannot take the blame of his instruc- 
 tions, he can only accept the responsibility of acting 
 upon them. 
 
 It is unquestionably right sometimes to attack 
 private character ; but you must be sure of your 
 ground, and skillful in your mode of performance. 
 Time and circumstances must be taken into account. 
 
 Suppose a murder had been committed at a house 
 of "ill fame," do you think it would be useful to 
 ask the keeper of it whether he had ever been con- 
 victed of keeping such a house? It would be ab- 
 surdly inconsistent with the nature of the inquiry, 
 but if such a witness came up to give evidence of 
 another man who was indicted for keeping a house 
 
MODES OF CROSS-EXAMINATION. 179 
 
 of that character, the question then would be all im- 
 portant, as it would throw light on the motive of his 
 evidence, and absolutely destroy any value it may 
 have possessed. Don't imagine that you are always 
 advocating your client's cause because you are put- 
 ting questions or making speeches. You may ride 
 on a rocking-horse all day long and fancy you are 
 hunting, but such a performance, however creditable 
 to your imagination, will say little for your judg- 
 ment. 
 
180 
 
 CHAPTER XV. 
 
 CICERO S DEFENCE OF ROSCIUS FOR MURDER. 
 
 "Now," says the reader, as he g^nces at the 
 heading of this chapter, "I am on familiar ground. 
 I knew Cicero before I knew 'The house that Jack 
 Built.' " 
 
 "But still," I meekly observe, "You will agree 
 with me that there is more of 'The House that Jack 
 Built' than Cicero, in many of our modern trials. 
 Otherwise how comes it to pass that simple cases 
 with a single point last a fortnight, three weeks, or 
 three months? Are judges less learned or juries 
 more stupid than they were? By no means. Coun- 
 sel have improved in their wind of late years, and 
 clients seem to have greater facilities for raising it. 
 But for 'The House that Jack Built' how comes it 
 that in a civil case you may have the plaintiff on 
 his trial for forgery, the defendant for libel and the 
 witnesses for other crimes? How comes it that 
 
CICEEO'8 DEFENCE Or ROSCItTS. 181 
 
 learned leaders wander away into the regions of 
 "railing accusation," instead of keeping to the 
 homely paths of fact that lead direct to the issue ? 
 This is the fault of the shepherd boy who leaves his 
 sheep to chase a butterfly or climb a pollard to see 
 if there is a ghost in its hollow. What of pursuing 
 character when you ought to be wrestling with facts 
 and probabilities? Is a suggestion of forgery an 
 answer to an action for breaking the plaintiff's leg? 
 That was not Cicero's style. It was no matter what 
 path he travelled, or if he were in a wilderness with- 
 out a path, his art ever pointed to the issue, and 
 straight was the course he made for it. No butter- 
 flies and no ghosts in hollow trees for him ; he dealt 
 with hard, substantial facts and visible probabilities. 
 But now let me ask the reader, whose intimate 
 acquaintance with Cicero is of so long standing, 
 what are the lessons in advocacy the great master 
 teaches? He does not teach eloquence, for that has 
 never been taught since the world began, any more 
 than poetry has been taught. He taught many 
 things which ordinary minds can grasp. But what 
 he teaches he also learnt. One can see that he 
 studied order and arrangement, human nature in its 
 complex and beautiful mechanism, its passions, pre- 
 judices, and its innermost sources of action; he 
 learned to measure its strength and to probe its 
 weaknesses; he knew its ailments, and their proper 
 treatment. He did not appeal to the passions when 
 he had to attack prejudices; and where human 
 
182 ILLTJSTKAtlONS IN ADVOCACY. 
 
 weaknesses invited his skill, he did not waste his 
 energies in higher conflict. 
 
 The whole of Cicero's speeches are constructed on 
 the same lines; and, advocacy in the humblest 
 branches constructed upon those lines, will achieve 
 marvelous results. You will perceive in all the great 
 advocate's speeches the same symmetrical propor- 
 tions, the same mode of construction, and if I may 
 be permitted the expression, the same elevation of 
 surprising beauty. 
 
 One has known voluble speakers hammer away 
 at a case regardless where the blows may fall. There 
 was a waste of strength here, and a mis-directed 
 energy there, which you never detect in Cicero. A 
 general onslaught is not the way to attack the case 
 made against you. Cicero does not pour a shower 
 of platitudes on the surface of a case, otherwise it 
 would be like a wave dashing itself upon a rock — it 
 would rollback but the rock would remain uninjured. 
 He attacks a single fact or an improbability at a 
 . time, and never leaves it till he has destroyed it if 
 destruction be possible. He does not attempt to 
 remove at once all the stones in an arch, but the 
 Keystone only, and if he is successful there he leaves 
 the rest to fall. 
 
 He knew that many strong facts may rest upon a 
 weak one : to the weak one then he directed his 
 efforts. No fact in a case can stand alone; if it be 
 not attached to another fact, it will and must dis- 
 close an improbability. It is the improbability in 
 that case he belabors. 
 
Cicero's defence of eoscius. 183 
 
 Wg approach the perfection of speaking when an 
 advocate, skilled in his art, without witnesses, suc- 
 cessfully attacks an apparently strong case that has 
 been made against him. He is thrown upon his own 
 resources. Facts are proved, so far as evidence can 
 prove them, and it is a noble task to demolish them 
 by argument. There is something more here than 
 fighting a compensation case, in which, usually, there 
 is about as much art required as there is in a well- 
 organized wrangle between two accountants' clerks. 
 
 The speech for Koscius, though not to be ap- 
 proached for its eloquence, is the line upon which, 
 consciously or unconsciously, are framed all success- 
 ful defences. I say unconsciously, because, without 
 studying the particular model, the same art is exhib- 
 ited where the advocate has any knowledge of 
 human nature and any skill in argument. Where 
 you have no evidence the facts on the other side can 
 only be met by argument, and argument must 
 proceed upon their improbability. That is the key. 
 But to show the improbability requires a carefully 
 trained mind, educated in the motives, the passions, 
 the weakness, the cunning of human nature. Let 
 us test these observations by a short examination 
 of the defence in the case before us. 
 
 Roscius was charged with the murder of his 
 father. The case, according to our modern and 
 enlightened view, would not present any great diffi- 
 culty. I know many juniors, and one or two leaders, 
 who could have got Eoscius off had he been tried at 
 the Old Bailey. But the difficulties of the case are 
 
184 rLLUSTRATIONS IN ADVOCACY. 
 
 aot to be judged by our modern system of criminal 
 law or criminal procedure, and indeed ajre nothing 
 to the point in the matter of dealing with the case. If 
 it had been ever so difficult the line of argument 
 would have been the same, although the result might 
 have been different. What then was the nature of 
 thei defence? I pass by the skillful apology which 
 Cicero makes for appearing in the case at all, and 
 the means he takes to impress the judges with the 
 difficulties of the task, in consequence of the 
 nature of the Government he indirectly attacks 
 and charges with tyranny. He goes directly to 
 the motives which influenced the prosecution. 
 
 Suppose these motives had come last instead of 
 first in the order of his speech, their effect would 
 have been nearly lost, because they could not have 
 a retrospective effect so strong as to impart a color 
 to his past arguments. In placing them first they 
 followed the speaker, and gave strength and effect, 
 force and distinctness to every word he uttered. 
 
 The motive is that Roscius may be got out of the 
 way in order that Chrysogonus, the Director of 
 Eome, may enjoy the estate which belonged to the 
 father of the accused : and Cicero asks that this 
 may not be permitted, and he asks this, not merely 
 in the interests of his client, but he extends his 
 advocacy and makes his cause the liberties of his 
 cowniry, which would not be safe if such a prosecu- 
 tion were successful. The judges themselves, 
 therefore, by this stroke were placed on the side of 
 the defence. 
 
OICEBO'S DEFENCE OP EOSCIUS. 185 
 
 So one sees what powerful arguments may at times 
 arise from an Investigation of the motives which 
 inspire a criminal prosecution. 
 
 If the motive of the prosecutors be avarice or 
 plunder, it follows that the judges are asked by them 
 to become instruments of plunder and avarice by 
 enabling the movers of the prosecution to carry out 
 their object. A judgment adverse to Koscius would 
 give them legal possession, so the judges are in fact 
 insulted by the prosecutors. Good knowledge of 
 human nature here, and marvelous skill in apply- 
 ing it I 
 
 Now comes a history of the father of the accused. 
 His character and position are described; and 
 differences between him and the two Eoscii of 
 Ameria are glanced at. 
 
 Then it appears that while the accused, who was a 
 farmer, was at Ameria, attending to his country 
 affairs, and Titus Eoscius every day at Eome, the 
 old man was murdered as he returned one night 
 from supper, a circumstance which Cicero hopes will 
 give a pretty good intimation of the persons against 
 whom the presumption of guilt is strongest. Proba- 
 bilities again. So that what with motive and what 
 with presumption, he starts very fairly on his 
 course ; for, givea motive and presumption you go a 
 long way towards awakening suspicion, and suspicion 
 cast on the prosecution is a strong auxiliary in a 
 defence. 
 
 Now he arrays the circumstances of suspicion or 
 rather of that presumption which awakens suspicion 
 
186 ILLUSTRATIONS IN ADVOCACY. 
 
 against the prosecutors. After the murder, a creat- 
 ure and dependant of Titus Koscius, within a few 
 hours, having travelled fifty-six miles in the dark, 
 brings the news to Ameria, and tells it, not to the 
 son, but to his enemy Titus Gapito. Four days 
 after, the news is brought to Chrysogonus. Then, 
 not to take up the time of the Court, a consideration 
 in those days if not in ours, these disinterested 
 parties enter into a confederacy. 
 
 Now comes the account of what the confederates 
 did. Chrysogonus buys at an auction the estate of 
 the deceased man, who was entirely devoted to the 
 interests of nobility. Capito takes three of the 
 best estates, while Titus, in the name of Chrysogonus, 
 seized the rest. Things fetched apparently very 
 little at the sale — ^£50,000 worth commanding only a 
 few pounds. In the meantime the worthy Titus, 
 the agent of Chrysogonus comes to Ameria and seizes 
 the estate of Cicero's client, drives him naked, my 
 lords, from the house of his father, the seat of his 
 ancestors, and the altars of his family ; he took 
 many effects openly to his own house and secreted 
 others, lavished some upon his confederates, and 
 sold the rest by auction. 
 
 No wonder the people of Ameria wept. The poor 
 son, the accused, was left in poverty, and these great 
 men enjoyed his property I There was not a man 
 who would not rather have seen the whole party 
 writhing in flames than this Titus swaggering and 
 domineering in the spoils of the excellent and vir- 
 tuous Sextus I 
 
Cicero's defence of eoscius. 187 
 
 The inhabitants of Ameria, therefore pass a 
 resolution, and a deputation of ten was sent to 
 Lucius Sylla to tell him of the character of this Sextus 
 lioscius, and to complain of the wickedness of these 
 confederates, and to beg his interposition on behalf of 
 Sextus' poor son. Then Cicero asks leave to read 
 the decree. Sylla, he is careful to impress upon their 
 lordships, knew nothing of the transaction. The 
 deputation never reaches Sylla. Chrysogonus shuffles 
 and promises to resign the estate to the son, and 
 Titus promises most faithfully to join in this so fair 
 undertaking. But they delay the performance from 
 day to day, and at last, beginning to feel they were 
 not in possession of a good title, they enter into a 
 conspiracy against the life of Cicero's client. But 
 poor young Eoscius flies for protection to a lady who 
 had been his father's patroness. She succors and 
 protects him, and then they have recourse to the 
 guilty device of impeaching him of the murder of 
 his father ! They secure a hardened impeacher, and 
 as they knew they could not prove him actually guiltj' 
 they resolve to make him politically guilty. They 
 think that the power of Chrysogonus would prevent 
 any man from coming forward to defend him against 
 so foul a charge as parricide ; but apparently they did 
 not know the courage of the young advocate named 
 Cicero. 
 
 After showing thus the nature and motive of the 
 prosecutors, the learned advocate asks where he shall 
 begin by way of meeting the charge. The answer 
 
188 ILLUSTRATIONS IN ADVOCACY. 
 
 had better come from himself, for no one can answer 
 like Cicero. 
 
 He begins by depicting the unhappy event of the 
 barbarous murder, and says they improve on that 
 wickedness by bribing witnesses to accuse the son, 
 with his own money I He asks what is there that 
 requires to be defended ? He will examine the whole 
 matter, so that the Court will have a clear compre- 
 hension of the circumstances upon which the accusa- 
 tion lies, of the points to which he is to speak, and of 
 the manner in which they ought to decide. 
 
 Cicero comes now to the charge, the blackest of all 
 crimes, requiring to be strictly proved beyond even 
 facts, for it must be shown that his whole life has 
 been one of consummate guilt. This would not and 
 could not be shown in an English Court, as the reader 
 is aware, but the converse could. A good character 
 would be placed by a skillful advocate immediately 
 after the charge. What is the charge ? "Who and what 
 is the prisoner? So that Cicero here, as on all other 
 occasions, is true to the highest art. He not only 
 shows that the prosecutors can say nothing against 
 his previous character, but he goes on to show every- 
 thing by way of argument, to be afterwards sup- 
 ported by evidence, in his favor. And it may here 
 be mentioned that it is open to the prosecution in our 
 own day to prove the bad character of the prisoner 
 if his counsel gives evidence of character in his 
 favor. 
 
 Ciceroi never.forgetting. that all crime proceeds 
 from motive, places motive in the forefront of his 
 
OICEEO'S DEFENCE OP R080IU8. 189 
 
 argument for the defence. It must come after 
 character, because if the character be good, there 
 will be the less probability of there being any motive. 
 It is its natural place, and Cicero never puts any- 
 thing out of its order. Here, in arguing that there is 
 no motive, he deals with two improbabilities in their 
 order. First, the improbability that without very 
 strong provocation a son should attempt the life of 
 his father; and, on the other hand, the improba- 
 bility that a father should hate his son without 
 weighty and indisputable reasons. Both these points 
 are argued upon the basis of the character of father 
 and son, upon the circumstances attending their busi- 
 ness and social relations to each other, as well as 
 upon the general practice and habits of society with 
 reference to their mutual dealings ; and he does not 
 leave this subject till he has examined it from 
 every point of view and left nothing further to be 
 urged. 
 
 It was said by the prosecutors that the father of 
 the accused intended to disinherit him, and that 
 caused hatred, 
 
 "If so," asked Cicero, "for what reason? Did 
 he do it? What prevented him from doing it? and 
 did he ever mention such intention?" 
 
 A safe question after the statement made by the 
 prosecutor. Having shown that the charge of parri- 
 cide is brought without a suggestion of motive, he 
 says that the prosecution should be abandoned, but 
 for once he will forego his right to demand it, and 
 being so thoroughly satisfied of the innocence of his 
 
190 ILLUSTEATIONS m ADVOCACY. 
 
 client, he addresses himself to that part of the case 
 which would come next in order if the least sugges- 
 tion of motive could have been made. 
 
 He now abandons the argument based on motive, 
 and asks how the murder was committed ? He not 
 only asks the question, but answers it, and deals 
 with every possible answer that could be given. If it 
 is said the accused did it with his own hand the 
 answer is complete he was not at Rome at the time. 
 A good alibi can be proved. If it was done by 
 others, were they slaves or free? Were they of 
 Ameria or of Eome? If of Ameria let them be 
 produced ; if of Rome how did this country bump- 
 kin knoK Eoman cut-throats ? he who had not been 
 at Kome for years. If he met them to arrange the 
 murder of his father, where was the place of meet- 
 ing? If he hired them to whom did he pay the 
 money? where did he get it? and what was the 
 amount? These are awkward questions, but they 
 refer to circumstances that usually accompany justice 
 when she is in pursuit of a criminal. And they were 
 the more awkward to answer, inasmuch as the pros- 
 ecutors had alB&rmed that Roscius was a country bar- 
 barian, who held no intercourse loith the human spe- 
 cies and never set foot within a town. 
 
 Cicero does not readily abandon this line of argu- 
 ment: it is too precious. Truth wooes him with too 
 fascinating a smile of approval, and he proceeds; 
 taking their own description of the country clown, 
 and working upon it with imperturbable pertinacity, 
 he asks, as Roscius was at Ameria when his father 
 
CTCEBO'S DEFENCE OF EOBCinS. 191 
 
 was murdered at Eome, he must have written to some 
 assassin there or sent for one! But this involves the 
 employment of intermediate agents, not one of 
 whom can be traced or even suggested by the prose- 
 cution. 
 
 If not committed by free-men the murder was 
 perpetrated by slaves. But the prosecution will not 
 allow the slaves of the accused to give evidence, 
 which is a good argument in favor of the defence; 
 and, moreover, these slaves are now in the service of 
 Chrysogonus, pampered and rewarded by him — not 
 to give false evidence against Eoscius, which it 
 would be impossible to do with success in the pres- 
 ence of such a cross-examiner as Cicero, but to sup- 
 press that evidence which would have cleared his 
 client. 
 
 Now, then, my lords, having traveled thus far, 
 whom do you suspect ? What inferences and suspi- 
 cions arise from all these arguments? Eoscius is 
 reduced to poverty by his father's death, and he is 
 not permitted to inquire into it. The prosecutors, 
 who are known to live by deeds of bloodshed, have 
 possessed themselves of the property of the deceased 
 man. 
 
 Now is the time to state an alibi; and having thus 
 far refuted the charge he considers it advisable not 
 only to acquit his client, but absolutely to purge 
 his character from the charge by showing who did it, 
 or by raising such presumptions of guilt that all the 
 world shall fix it upon his persecutors. He is to 
 show the murderers, the confederacy and the con- 
 
192 ILLUSTRATIONS IN ADVOCACY, 
 
 spiracy; and he warns the judges, with a touch of 
 exquisite- skill, how many presumptions are necessary 
 to establish a single fact. 
 
 He begins by saying that they can find no motive 
 in /Sextus Roscius, but that he can find a motive in 
 Titus. If so, that is a good foundation on which to 
 build his presumptions. The motive stands out 
 clearly enough — it was plunder. The man who was 
 poor before the murder becomes rich after, and rich 
 with the estates of the deceased. Then the prose- 
 cutor, who thus gains by the murder, was a man who 
 bore an inveterate hatred to the deceased man. 
 
 The motives being thus established, he next 
 inquires whether there was in the case of Titus that 
 which he proved did not exist, so far as could be 
 seen, in Sextus namely, opportunity; and this is 
 shown beyond the shadow of a doubt. He was at 
 Eome when the murder was committed ; that is one 
 circumstance, but we' need more. Others were at 
 Eome besides Titus. But this gentleman was ac- 
 quainted with bands of assassins who murdered that 
 those who employed them might become possessed 
 of their property. 
 
 Next, what did Titus do after the murder? He 
 struggled to become the accuser of Roscius, It was 
 his friend and dependent who brought the first ne.ws 
 at the murder to Ameria. Did this messenger and 
 friend do this of his own head ? If so what concern 
 had he in the matter? And why did he go to Ame- 
 ria with the news? And why did he go to Titus 
 Roscius Capito first of ail,inateadof to the unhappy 
 
CICEEO'S DEFENCE OF EOSCIU8. 193 
 
 family of the deceased? Then see the expedition 
 with which this messenger carried the news I How 
 did he come to hear of it so soon? 6e must have 
 heard of it the moment after it was committed. And 
 from these facts it follows that both Titus and the 
 messenger were present at the murder. Furthermore, 
 the news being taken to this Capita, who shared 
 with Titus the plunder, the whole matter is as clear 
 to the minds of the judges as if they had stood by 
 and seen the murder committed. 
 
 The subsequent acts of the conspirators are next 
 referred to ; such as sending the news to Chryso- 
 gonus, the huri;ied sale of the estates, and the 
 sharing amongst them of the property. Next, the 
 suppressing of the evidence which the slaves could 
 give, is strong presumption that it would be, not 
 only to the advantage of the accused, but to the ruin 
 of the accusers, if they had been permitted to be 
 examined. 
 
 Now all this seems very simple indeed. So are 
 nearly all the great works of art when closely ex- 
 amined. Art loves simplicity, and nature abhors 
 complications. It is inartistic Ignorance that mud- 
 dles, and Pettifoggism that complicates. 
 
 I have often heard it said that ^'Cicero would not 
 do now." I answer, Cicero would have been the 
 greatest advocate of the day, because he was one 
 of the finest speakers, and constructed his defences 
 and his prosecutions on the truest lines. Nor is there, 
 even now, nor has there ever been, any other mode 
 
194 ILLUSTRATIONS IW ADVOCACY. 
 
 than that adopted by Cicero of properly conducting 
 a case. 
 
 Mr. Bagpipes may suit our age better; but, if so, 
 it has marvelously degenerated in everything that 
 pertains to real oratory and true advocacy. Cicero 
 was a good speaker, which Bagpipes is not. How, 
 then, can it be said that bad speaking will succeed 
 and good speaking fail ? Why will not good speak- 
 ing do now ? But Cicero was also a common sense 
 advocate, which Bagpipes is not. Why, then, if 
 Bagpipes succeeds should not Cicero? Can it be 
 said that the people are less intelligent than they 
 were in Rome in the days of Cicero? But further, 
 Cicero constructed his cases on the' truest lines of 
 advocacy ; Bagpipes has no constructive faculty, and 
 does not construct his advocacy at all. His speeches 
 are but a confused torrent of commonplaoes,and his 
 cross-examination but a haphazard flinging of ques- 
 tions at a witness, with the bare hope that some one 
 or other may hit something or somebody. 
 
 Our tribunal, no doubt, is different from the one 
 Cicero addressed ; the law, the political situation, 
 the habits, manners and institutions of the people 
 are all different, but human nature remains un- 
 changed and unchangeable, and so does the true art 
 of appealing to that nature. 
 
 Did the reader never preceive an almost perfect 
 likeness between a parent and child ? the same expres- 
 sion of face and tone of voice, the same smile upon 
 the lips, the same twinkle of the eye, when the feat- 
 ures of the one bore no actual resemblance to the 
 
Cicero's defence of eoscius. 195 
 
 features of the other ? If so, he has seen the like- 
 ness which exists between the true advocacy of 
 to-day and the advocacy of Cicero. 
 
196 
 
 CHAPTER XVI. 
 THE STORY OF THE TICHBORNE CLAIMANT. 
 
 ANALYSIS or MR. HENRY HAWKINS* * SPEECH FOB THE 
 PROSECUTION IN THE TICHBORNE CASE. 
 
 As the object of telling a romantic story differs 
 from that of narrating a series of facts in Court, so 
 the art is different. The interests also are of an 
 opposite nature. The object of the former is to 
 entertain without any re^rd to your belief, while 
 the latter is to impress your belief without any view 
 to your entertainment, except that an artistic advo- 
 cate win take care to rivet your attention by the 
 
 ♦Now Sir Henry Hawkins, and one of Judges of the High 
 Court of Justice, of England. 
 
THE TICHBORNE CLAIMANT. 197 
 
 entertaining manner in which he unfolds the inci- 
 dents of his story ; but he will not amuse yoa at the 
 expense of his cause, or excite your imagination to 
 the detriment of your judgment. The interest he 
 excites is in the reality of the facts he intends to 
 prove ; the charm of the novelist depends mainly on 
 presenting fiction, so that it resembles reality. The 
 emotions are stirred by imaginary incidents, and at 
 the emotions his art stops. The advocate, on the 
 contrary, if he awakens emotion, does so only the 
 more surely to reach your belief, and when he pro- 
 duces a striking situation it is but for the purpose of 
 impressing its incidents. 
 
 The novelist and the dramatist strike a situation 
 in order to heighten the entertainment. I do not 
 say that the advocate will not sometimes waylay 
 you with surprise, but when he does so it is still 
 with the object of fixing more certainly your belief. 
 
 If these observations be true, it follows thai the 
 mode of unfolding a story containing many striking 
 incidents will be different in the two artists. The 
 novelist may commence where he likes, except at the 
 end; the advocate will generally commence before 
 the beginning of the actual drama ; that is to say, he 
 will state the charge, if it be a criminal case, and the 
 nature of the action, if it be a civil cause, before he 
 comes to the incidents of the story. 
 
 In the case now before us I have nothing to do 
 with its merits, but only with the merits of the 
 opening speech, and with them only so far as the 
 skill in its construction is concerned. The mechan- 
 
198 ILLUSTRATIONS IN ADVOCACY. 
 
 ism of the speech first, and the mode of presenting 
 it next. But what an ample field for criticism 
 stretches out before us as we cross the borders of 
 this amazing case ! On every side are incidents 
 innumerable that have to be collected, collated, sep- 
 arated and arranged. It is a wilderness of facts; 
 those in the far distance bearing a near relation to 
 those that are close at hand. Circumstances appar- 
 ently unconnected have the closest relation to each 
 other; truth and falsehood are intermingled in the 
 wildest, confusion ; ignorance and imbecility, preju- 
 dice and fraud,overlay and smother minute incidents 
 of overwhelming importance, and even twist and 
 distort facts that can neither be hidden nor de- 
 stroyed- 
 
 The panorama of a long series of years has to be 
 brought before the jury. To unfold it with the art 
 of the novelist would be to produce thrilling and 
 extraordinary effects exciting wonder and sympa- 
 thy ; to perform the task witb the skill of the advo- 
 cate will be to fix the belief of the jury without any 
 regard to their emotions. The former would draw 
 from the reader the exclamation "Wonderful I" 
 The latter must excite the jury at every stage of his 
 progress to say "Impossible !" 
 
 The case was opened as simply and as dramat- 
 ically as anything I have ever listened to ; and, 
 reading the statement as I do now after many years, 
 it reproduces in my mind all the excitement and 
 wonder which I so well remember to have experi- 
 enced when it was delivered. 
 
THE TICIIBORNE CLAIMANT. 199 
 
 In the first place it is noteworthy that there need 
 be no waste of words in the exordium of this 
 "momentous case," although the jury are told that 
 "the defendant is charged with a crime as foul as 
 Justice ever raised her sword to strike, and that the 
 public interests demanded the protection of the 
 innocent as well as the punishment of the guilty." 
 That is enough, and then comes "the substance" of 
 all the great mass of facts which will have to be stated . 
 
 It is said in few words, and to this effect: In 
 April, 1854, Roger Tichborne, the heir to the Tich- 
 borne baronetcy and estates, embarked at Rio on 
 board the "Bella," which was lost, and for eleven 
 long years nothing was known or heard of him . 
 Suddenly, in Australia, a butcher came from the 
 shambles and announced himself as the long lost 
 heir, and in the legal proceedings which were insti- 
 tuted by him for the recovery of the estates, he 
 swore falsely many things in support of his claim, 
 of which these are the chief: — Of course he swore 
 that he was Roger Tichborne, the son of the last 
 baronet. In support of the story which he told he 
 also swore that he had, while on a visit to his uncle, 
 seduced his cousin Kate; and, it being suggested to 
 him that he was Arthur Orton, the son of a butcher 
 at Wapping, he swore that he was not. These 
 three things he falsely swore, and those are the 
 three main charges against him." 
 
 "Such is the outline of the fabric of that gigan- 
 tic fraud which it is my duty to unfold to you, and 
 
200 ILLUSTRATIONS IN ADVOCACY. 
 
 now I proceed to state the story of the life of Eoger 
 Tichborne." 
 
 This is enough to tell the Jury as to the charge. 
 Now come three things necessary to clearly define, 
 because identity or non-identity in this case is 
 everything. If this be Eoger Tichborne we shall 
 find some likeness to his former self in his educa- 
 tion, character and mind. We shall also find some 
 knowledge of the incidents of his past life and his 
 connection with bygone and living persons. So, if 
 the jury are acquainted with Eoger Tichborne' s 
 early life, they will see whether this man is likely to 
 be he — likely, that is all, so far as these details are 
 concerned ; probabilities ever asserting their influ- 
 ence, as they always do in true advocacy. The 
 main incidents I shall give because many students 
 will, I am sure, find them interesting as a story as 
 well as instructive as a piece of advocacy, who 
 would never wade through the Tichborne trials in 
 the newspaper reports of the time. 
 
 We are told that Eoger was, in his earlier years, 
 educated in France; that he occasionally visited 
 this country; and that his education was" con- 
 tinued at Stonyhurst. Then came many details of 
 the early incidents of his life, and as to his habits, 
 manners and pursuits ; told, says the learned counsel, 
 in detail,6ecaMse they had been deniedhythe defendant 
 in his cross-examination, while endeavoring to sup- 
 port his claim to the Tichborne title and estates. 
 Of course, if he is well caught in a good many lies 
 hereabouts, it will go far to shake his character in 
 
THE TICHBORNE CLAIMANT. 201 
 
 the eyes of the jury for veracity. It was not omitted 
 to be stated that Roger had been tattooed on the 
 arm,which was to be proved by Lord Bellew ; a good 
 point,of course,in an individual's likeness to himself, 
 because, although features change and waists enlarge, 
 tattoo'.marks remain about the same "through all the 
 changing scenes of life . ' ' Rogers' s good French was 
 mentioned, as also his bad spelling in English', but a 
 kind of spelling,which would be peculiar to a boy who 
 had spent his early days in a French school, and by no 
 means likely to be acquired in a butcher's shop at 
 Wapping. 
 
 So that there was a pretty good likeness of the 
 outward boy on the mind of the jury so far as his 
 habits, customs and manners were concerned, before 
 the learned counsel proceeded to give a likeness of 
 his character, including his heart and mind. 
 
 Roger entered the army and fell in love with his 
 cousin Kate. To show his mind on this subject many 
 letters were read "<o convey to the jury a thorough 
 knowledge of this young man" s character andideas," 
 his way of thinking and style of writing, because the 
 learned counsel would have to contrast these letters 
 with those of the defendant. Not a bad test of like- 
 ness or unlikeness this between two minds, if two 
 minds they were. We are next brought to the 
 turning-point of Roger's life— r-his uncle's discovery 
 of his attachment to his cousin and his disapproval 
 .tibereof. In consequence of this, on the 12th of 
 January, 1852, he left Tichborne Park, where he was 
 then staying, and wrote in melancholy terms of his 
 
202 ILLUSTRATIONS IN ADVOCACT. 
 
 intention to go abroad for ten of fifteen yeai'S. In 
 that month he confided to a Mr.Gosford.in a "sealed 
 packet," his instructions as to certain matters in the 
 event of death. 
 
 The jury are asked if it were possible that such 
 an event could be forgotten? They were then 
 enjoined to bear in mind certain letters to Kate 
 whicli were couched in the strongest terms of affec- 
 tion. In answer to a letter from Lady Doughty he 
 wrote a warm epistle expressing his affections for his 
 cousin. After spending a few days with his relations 
 in town he visited them in Hampshire. Whilst there 
 "he gave his cousin a document dated 22nd June, 
 1852, the duplicate of which he said he had deposited 
 with Mr. Gosford in the sealed packet. That docu- 
 ment Miss Doughty had preserved to this hour and 
 she would produce it to the jury. It was a short 
 statement — only four lines — a promise to build a 
 chapel at Tichbome if he married his cousin within 
 three years. And from that hour to the present she 
 has never seen Roger Tichbome. This, I pledge 
 myself to prove to you by overwhelming evidence. 
 Never forget the facts and dates I have now stated ; 
 they are of vital importance in this case. Could 
 such facts ever be forgotten by Roger? He 
 went to Tichbome no more; he went to Upton, 
 near Winchester, in the autumn of 1852, to hubtj: 
 sold out of the army January 6th, 1853, and in 
 February went to Paris to take leave of his parents, 
 who were living there ; left with his mother a lock of 
 his hair, and returned to England. Leaving Mr. 
 
THE TICHBOBNE CLAIMANT. 203 
 
 Gosford a power of attorney, on the 25th February 
 he left London for Southampton, accompanied by 
 Gosford, who took leave of him at Winchester, On 
 the 4th March he sailed from Havre for Valparaiso." 
 
 Now the wanderings of Roger are traced by the aid 
 of maps in South America. Dates of arrivals at 
 different places, and departures, are given with a view 
 of falsifying dates given by the defendant in the 
 former trial. After making a tour in the interior, 
 Roger returned to Valparaiso, stopping on his way at 
 Lima, where he engaged one Jules Berand, who 
 would be called to give some important evidence. 
 From Jules Berand he purchased certain curiosities, 
 especially a little skeleton which Roger sent over to 
 Gosford", and which would be produced. It was 
 produced on the last trial, and Mr. Hawkins says he 
 shall have to call particular attention to the evidence 
 given on that trial by the defendant concerning this 
 "little skeleton." It may be big evidence, although 
 a small skeleton. 
 
 At the end of December Roger was at Santiago 
 making preparations for a tour in the mountains. 
 
 While there two daguerreotype portraits were taken 
 one for his mother and one for Lady Doughty. Of 
 this there could be no doubt, as he refers to them in 
 a letter to Lady Doughty written in February, 1854. 
 
 In January he left Santiago for his tour in the 
 mountains. On the 13th February he arrived at 
 Buenos Ayres. Thence he went to Rio and engaged 
 a passage on board the Bella for New York. He had, 
 in the meantime written many letters to his aunts. 
 
204 ILLUSTRATIONS IN ADVOCACY. 
 
 Lady Doughty and Mrs. Seymour, and to Gosford. 
 These will be produced, and important evidence, the 
 learned counsel says, they will be, "because they are 
 the evidence of Eoger Tichborne himself." In not 
 one of these letters is Mellipilla mentioned, nor the 
 name of the family of Castro, with whom the de- 
 fendant swore he spent three weeks. In one of these 
 letters, too, he says he had heard from Lady Doughty 
 of the death of his uncle, the baronet, by which the 
 baronetcy and estates descended to his father, and 
 he himself became next heir. 
 
 Of vast importance, too, says Mr. Hawkins, is the 
 fact that, in one of his letters, he alludes to his 
 "daily Journal.' ' 
 
 Another fact of importance was that, on the death 
 of his uncle, he became entitled, under the settle- 
 ments, to £1,000 a-year; and he wrote home about 
 it, and asked that, "as my income has increased since 
 my uncle's death, pray go to Messrs. Glyn's to ex- 
 change the letter of credit for £2,000 for three years 
 for one for £3,000 for the same period." This is 
 considered important as showing the intended period 
 of his stay abroad. It is dated Lima, September 11th, 
 1853, and is addressed to Mrs. Slaughter. 
 
 Next come letters from Buenos Ayres and Monte- 
 Video in March 1854, in which he says he is "fond 
 of this kind of life," intends to visit other parts of 
 South America and then proceed to New York. On 
 April 1st he wrote his last letter, so far as the 
 prosecutors knfew. He then went to Eio, where the 
 Bella lay, bound for New York. Jules Berand saw 
 
THE TICHBORNE CLAlMANt. 205 
 
 Koger on board, and would be called as a witness ; so 
 would two Captains in the merchant service, who also 
 saw him. The ship sailed on the 20<A April, 1853, 
 commanded by Captain Birkett. Four days after, 
 the long-boat of the Bella was picked up at sea. The 
 ship was never heard of again nor any of the crew. 
 
 •*A11 the world, "says the learned counsel"believed 
 that Roger Tichborne was dead. One poor, crazy, 
 misguided soul alone refused to listen to the voice of 
 reason — refused to believe that her first-born son 
 was dead. Gentlemen I have now finished with the 
 life of Eoger Tichborne, and I shall have to ask you 
 whether the man who sits there is the young man 
 whose history I have given you. If he is, then he is 
 wrongly charged in this indictment. If he is not, 
 then he is undoubtedly guilty, for he has sworn that 
 he is the man." 
 
 Let it be now remembered that all the story of the 
 Tichborne family and all the material incidents in 
 the life of Roger are before the jury. They know 
 his education, his connections, his constitution, his 
 character, his disposition, even his eccentricities ; 
 they know his tender feelings towards, and respect 
 for, the lady he was villainously said to have seduced. 
 They have daguerreotype likenesses of his features ; 
 they have more than daguerreotype likenesses of his 
 mind. They know that he was a constant letter writer, 
 and not the man to cease from writing for eleven years 
 if he had been alive ; and they know that his letters 
 ceased to come after his disappearance in the Bella, 
 where all were lost. They know that he was pretty 
 
206 ILLUSTRATIONS IN ADVOCACY. 
 
 keen with regard to monetary arrangements, and that 
 he knew the exact time when he could increase his 
 allowance^ and that he was fond of the wandering 
 life of adventure and freedom he was leading. 
 
 Here was his portrait then, by a master hand and, 
 I have no hesitation in saying that it could not have 
 been surpassed by human skill. _We have him from 
 childhood to youth, from youth to the stripling 
 officer in the Hussars, and onward then a little fur- 
 ther till he becomes the adventurous explorer of the 
 South American wilds ; thence onward again to his 
 departure in the Bella, when we lose sight of him for 
 ever. In all these changes and vicissitudes there is 
 noi an instance of his acting contrary to the instincts 
 and breeding of a gentleman. We gather this from 
 thepictureof his life, and important it is to remem- 
 ber. We know, also, that he was not a clever, and 
 far less,a cunning youth, a not unimportant feature of 
 his character to bear in mind. The face may change, 
 but mental capacity is stamped with an unchangeable 
 quality; it may brighten or tarnish, but it never 
 loses its characteristics. 
 
 With this portrait closes the first act of this won- 
 derful dranaa. 
 
 The next scene is also artistic, and the "arrange- 
 ment" might be called an arrangement in black and 
 white. Mr. Hawkins likes contrasts. He knows the 
 effect of these on juries, and so he opens the next 
 act in these words: — 
 
 "I have now to direct your attention to the life of 
 a very different person — ^the life of Arthur Orton, 
 
THE TICHBORNE CLAIMANT. 207 
 
 the son of a respectable butcher at Wapping. If the 
 defendant is the man, then he certainly is guilty, for 
 he has sworn that he is not." 
 
 A good, straight way of putting it 
 
 Then the jury are reminded that although he may 
 not be Orton it does not follow that he is Tichborne. 
 But if he be Orton, as is now going to be shown, 
 then, of course, he is guilty of both perjuries. 
 
 Arthur Orton lived at 69, High Street, Wapping, 
 with his father, George Orton, who had a numerous 
 family. Arthur was born on the 1st of June, 1834. 
 He was poorly educated, could read and write, and 
 had a little arithmetic. He was afflicted from infancy 
 with St. Vitus' dance; and in 1848 it was suggested 
 he should go to sea with a view to getting rid of this 
 malady. Accordingly, he sailed via Antwerp for 
 Valparaiso in a ship commanded by Captain Brooke. 
 Captain Brooke was dead, but his widow, since re- 
 married to a Mr. Howell, could be called, and she 
 would say that the defendant, to the best of her 
 belief, was that Arthur Qrton. 
 
 In November, 1848, Orton was at Valparaiso. In 
 January, 1849, he went there again, having de- 
 serted from his ship, and thence to Mellipilla, where 
 he made the acquaintance of a family named Oastro, 
 who treated him kindly. In February, 1852, he left 
 Chili in the name of Joseph Orton, hut with the sea- 
 man's number of Arthur Orton. He sailed in the 
 Jessie Miller, came home, and went to Wapping. He 
 had by this time so increased in bulk that he was 
 called "Fatty Orton." He paid his addresses 
 
208 ILLUSTRATIONS IN ADVOCACIT. 
 
 to one,Mari/Ann I/oader, the daughter of a lighter- 
 man, who would be a witness — doubtless to say that 
 the defendant is her old lover. 
 
 In December, 1852,he sailed on board the Middle- 
 ton for Hohart Town; James Lewis, captain; one, 
 James Peebles, boatswain ; while one of the seamen 
 was named Owen David Lewis. On board the ship 
 he wrote to Miss Loader, which letter was read, and 
 which, with other letters of the defendant, would 
 show the difference in handwriting and style from 
 those c/ Roger of the same period. The spelling was, 
 indeed, remarkable; "writing" is spelt without a 
 " g ; " few is written/Me ; ♦ ' enquiring' ' is spelt enquir- 
 een. But this,of course,does not matter if the defend- 
 ant be not that ArthurOrton ;he,inthat case not being 
 responsible for the bad orthography of the Wapping 
 Butcher. But if he is shown to have written these 
 letters, the probability is the jury will identify him 
 with that same butcher. Let us follow then his his- 
 tory. He went in the ^^Middleton^' as a butcher. In 
 April, 1853,he arrived atHobart Town, and in that 
 town a family connected with the Ortons was settled. 
 Their name was Jury. He took a letter of recom- 
 mendation to these Jurys, and Mrs. Jury would be 
 called as a witness, not to prove merely that Orton 
 came there, but that this defendant was that Orton; 
 so he will have a double benefit of trial by Jury. 
 
 A Mr.Hawkes, of Hobart Town,who bought meat 
 of him would depose to the same fact. He remained 
 there as a butcher till 1855. The jury are asked at 
 this stage to bear in mind that at this time Eoger 
 
THE TICHBOBNE CLAIMANT. 209 
 
 Tichborne was in South America. Orton borrowed 
 £14 from Mrs. Jury, and gave a note of hand bearing 
 date 1855. That,therefore^xes his exact whereabouts 
 at that time. Note was due in August, but when 
 August came Arthur was gone. 
 
 In the latter part of 1855 or beginning of 1856, 
 Orton was in the service of a Mr. Johnson, at New- 
 burn ParTe Gippesland, Australia. In 1856 he was 
 in the service of a Mr. Poster, where he remained 
 till March, 1868. In that month he was at Dargo, 
 which is proved by a document dated Dargo, March 
 11th, 1868. Orton remained here between one and 
 two years ; a Mr. Hopwood would prove this fact, 
 for he saw him at a place called Sale, where he was 
 engaged in breaking horses, and this witness also 
 will prove that he saw the same Orton in 1863 at 
 Wagga-Wagga. He was in the service of a Mr. 
 Higgins there, and this evidence is corroborated by 
 the defendant himself, who had admitted that he was 
 in the service of a Mr. Higgins in 1865; so here is 
 truly a matter of great importance I The man the 
 the learned counsel has been tracing all along as 
 Arthur Orton turns out in 1865 to be Roger Tich- 
 borne ! Could there possibly have been a transmi- 
 gration of Roger's soul? Now, Hopwood, who had 
 known this same defendant as Arthur Orton, and 
 esteemed him as "his old friend," met him one day 
 in Wagga-Wagga in Higgins' shop, and went in and 
 spoke to him, calling him by his old name. Alas? 
 the mutability of human names I 
 
210 ILLUSTKATIONS IN ADVOCACY. 
 
 "I am not Orton," says the defendant, "I am 
 Castro. Come and have a drink." 
 
 But whether Orton or Castro he remembered Hop- 
 wood. They drank ; they talked of old times ; Castro 
 asked after old friends, and as they got more chatty, 
 Castro tells his friend why he had changed his name 
 — "there was a warrant out against him about some 
 horses." 
 
 "Now," says the learned counsel, "Hopwood will 
 tell you that the man there is the same man he had 
 known in Gippesland, at Dargo, at Boisland, and at 
 Sale." And in addition to this, another witness 
 would prove he saw defendant at work as a butcher 
 in Mr. Higgins' shop. On the 20th of January, 
 1865, this Castro was married to Mary Ann Bryant, 
 describing himself as born in Chili, and giving his 
 age as thirty years — same age as Arthur's. After 
 his marriage he lived at Wagga-Wagga in a state of 
 abject poverty, and became at last acquainted with 
 one, Gibbes, an attorney — a great comfort, no 
 doubt, to one in abject poverty, and better to know 
 than a constable with a warrant 'about some horses' 
 one would think. Now comes an apparent break in 
 the story; but a break by no means, for it becomes 
 the key to all the future conduct of this Castro. 
 'Poor Lady Tichborne,' says* the learned counsel, 
 'alone of all the world, clung to the belief that her 
 son was not really dead.' No tidings had been 
 heard of the ^eBa, no news of the vessel or the 
 crew, but still she clung to that belief. She was, 
 moreover, not on good terms with' the Tichborne 
 
THE TICHBOENE CLAIMANT. 211 
 
 family, and was not satisfied with the settlements. 
 She had been left out in the cold, with no provision 
 beyond her marriage settlement. Her income was 
 limited. 'Now,' says the learned counsel, 'such a 
 person would be a ready tool to an impostor, suppos- 
 ing her own reason to be blinded by her feeling and 
 her delusions.*" 
 
 A very good and striking way of putting it. No 
 one could do better than that, Cicero or no Cicero. 
 
 "Still, during her husband's life she took no 
 active steps in the matter; but in 1862 her husband 
 died. The voice of the only person who could influ- 
 ence or console her was thus silenced, and she at 
 once set to work advertising for her son. In 1863 
 she advertised in the Times and in the Australian 
 papers, and in that year the death of hef husband, 
 James Tichborne, was announced in the '■'■Home 
 News" in Australia. But it is not easy to ascer- 
 tain the exact time when it first occurred to anyone 
 that this slaughter-man would set up this monstrous 
 claim to the Tichborne title and estates." But this 
 is clear that it was after the advertisement and the 
 announcement of the death of the last baronet — an 
 important point, which the jury note. Here springs 
 a huge mountain range of probabilities ! 
 
 This Castro had a Hampshire acquaintance who 
 knew something 6f the Tichborne family. In 1865, 
 however, he knew littl6 of the Tichborne title or 
 estates. Further information, therefore, would be 
 necessary before setting up the claim, and one other 
 matter was worth enquiring into before taking such 
 
212 ILLUSTRATIONS IN ADVCM3ACT. 
 
 a step: It was desirable to find out what had become 
 of the Orton family at Wapping. It would not do 
 to write to Wapping in his own name or in his own 
 hand, so he went to a schoolmaster and got him to 
 write for him in the name of Castro. The reader 
 will remember that Eoger never knew Castro. 
 
 Here the learned counsel uses a strong argument 
 in the shape of an important question or two, which 
 will require a deal of answering, "Why on earth 
 should he have done that? Above slII, why should 
 Roger Tichhorne write in his own name or anyone 
 else's name to enquire after the Orton' s at Wapping? 
 Eoger, who never was at Wapping in his life, and 
 never heard of the Ortons ! Yet,this man wrote in a 
 feigned name and in another person's hand, and as a 
 stranger ,tp one, Richardson, at Wapping, to enquire 
 after the Orton family. How should he have known 
 Richardson? — "Another important question, giving 
 birth to a whole family of inferences. 
 
 The letter was as follows : 
 
 "Wagga-Wagga, April 13th, 1865. 
 
 •«Mr. James Kichardson : 
 
 "Sir: — ^Although a perfect stranger, I take the 
 liberty of addressing you, and as my residence at 
 present is in this distant Colony, I trust you will 
 pardon the intrusion and oblige me by granting the 
 favor I seek. I believe there was, somie years ago, 
 living in your neighborhood a person named Orton. 
 To this man I wrote several letters, none of which 
 have ever been answered. The letters are of 
 importance to Orton or his family, and to no other. 
 
THE TICHBORNE CLAIMANT. 213 
 
 SO that I mast conclude he has not receired them, 
 or I am certain they would be answered; besides as 
 this district is, or lately was, in a very disturbed 
 state, through a lawless set, who styled themselves 
 Bushrangers, and who respected neither life nor 
 property, I concluded my letters perhaps fell into 
 their hands. If Orton or his family live near you 
 still, or if you have, or can give any information 
 respecting them, I shall forever feel grateful. I 
 beg to say here with pleasure that one of the most 
 notorious of the Bushrangers has fallen by a rifle- 
 ball and that on the news of his death and doings 
 being properly chronicled, I will send you the paper 
 containing such. 
 
 "I trust you will not fail to oblige me by sending 
 any information whatever respecting Orton or his 
 son Arthur. 
 
 I am. Sir, your obedifent and obliged servant," 
 
 Thomas Castro." 
 
 This letter, defendant admitted, was written by 
 his dictation, and was produced. This was shortly 
 before the claim was set up. 
 
 "So much for the origin of this most monstrous 
 fraud,' ' says the counsel. There was no reply to the 
 letter. An important fact to state when the subse- 
 quent conduct of the defendant is considered. 
 
 Then comes another curious step taken by the 
 defendant. For eleven years no letter had been 
 received from Koger Tichborne; but in April, 1865, 
 defendant begins to write the initials R. T. accom- 
 panied with a certain sign or hieroglyphic which 
 
214 ILLUSTRATIONS IN ADVOOACT. 
 
 Orton always itsed but which Roger had never used. 
 Then there was a pocket-book in which was written: 
 "Some men has plenty brains and no money; some 
 has plenty money and no brains. Surely the men as 
 has plenty money and no brains are made for the 
 men as has plenty brains and no money." 
 
 "These are the sentiments," says the counsel 
 ironically, "of K. C. Tichborne, Bart." "Then," 
 says the document, "Rodger C. Tichborne some day, 
 I hope." "But Roger Tichborne never spelt his 
 name with a 'D.' " Another entry was, "I Thomas 
 Castro do certify that them as thinks that is my name 
 don't no nothink about it." Then there was the 
 name and address of '■'■"Mary Ann Loader, Russell's 
 Buildings, Wapping. ' ' 
 
 "How," asks Mr. Hawkins, "could Roger Tich- 
 borne have her name and address in his pocket- 
 book?" 
 
 Then we have another important matter. At 
 Sydney was one Ouhitt, who kept a "missing friends' 
 office" and issued advertisements. Lady Tichborne 
 saw them and wrote to Cubitt. In this letter she 
 plays into the hands of Castro by giving certain 
 items of information concerning her son and her 
 family. She asked Cubitt to make enquiries con- 
 cerning Roger, gives his age as 32, says he embarked 
 at Rio on the 20th April, and had not been heard of 
 since; affirms that part of the crew were saved — 
 gives the name of the lo^t vessel — ^thinks her son 
 may have married and changed his name, and asks 
 that enquiries should be made. Advei'tisement 
 
THE TICHBORNE CLAIMANT. 
 
 215 
 
 accordingly issued. Orton at this time being in 
 Wagga-Wagga. 
 
 While Gibbes the Attorney was engaged in taking 
 Castro through the Insolvent Court, he suddenly 
 exclaims "I've spotted you; you are Eoger Tich- 
 borne; you are advertised for, and if you don't dis- 
 close yourself, I shall." 
 
 He had seem the initials, it appears, "R. C. T." 
 cut on a tobacco-pipe, and this lead to the remark- 
 able discovery. What could poor insolvent Castro 
 do, being thus suddenly found out to be a baronet 
 in disguise, and heir to thousands a year? Of course 
 Giibbes would denounce him to the world. 
 
 This story, be it refnembered, of Gibbes' discov- 
 ery, was told by the defendant himself. Gibbes then 
 writes to Cubitt, and a correspondence takes place 
 between that gentleman and Lady Tichborne. She 
 gives more information, but says she cannot send 
 £400 until her son's identity is proved. Then she 
 tells him to remember that Eoger was three years at 
 the Jesuit College at Stonyhurst, and when he was 
 nineteen years of age went into the Dragoon Guards, 
 where he remained nearly two years : that he passed 
 his examination well before he got into that regi- 
 ment — that he never knew his grandfather — Sir 
 James's father having died before she married. 
 Roger was^born in Paris, she continues, and spoke 
 French better than English, she believed; and then 
 she says, poor deluded creature, "I enter into all 
 these details that you may be able to know him," 
 and she repeats that she cannot send any money 
 
216 ILLUSTRATIONS, IN ADVOCACr. 
 
 until he has been identified, and that must be in 
 England. 
 
 Here is the twilight of Castro's dawning knowl- 
 edge of Roger's early life. What a feeble glim- 
 .mer for ingenious fraud to work by ! But even in- 
 genious fraud requires time; so the unfortunate 
 baronet wanders about (not able to get any money 
 till he is identified) until January 1866, and then he 
 writes his first letter to his anxious mother. The 
 letter is worth reading. 
 
 "Wagga-Wagga, Jan. 17th, '66. 
 ' 'My dear mother. The delay which has taken place 
 since my last letter, dated 22nd April, '54" (He 
 has got this date from her foolish letter telling Cu- 
 bitt the Bella sailed on the 20th), "makes it very 
 difficult to commence this Letter. I deeply regret 
 the truble and anxiety I must have cause you by 
 not writing before ; but they are known to my at- 
 torney, and the more private details I will keep for 
 your own Ear. Of one thing rest Assured, that 
 although I have been in a humble condition of Life 
 I have never let any act disgrace you or my Family." 
 (He forgets the change of name in consequence of 
 the warrant about the horses. ) ' «I have been A poor 
 man and nothing worse. Mr. Gibbes suggest to 
 me as essential that I should recall to your memory 
 things which can only be known to you and me to 
 convince you of my Identity. I don't think it 
 needful, My Dear Mother, although I send them 
 Manely the Brown Mark on my side and the card- 
 case at Brighton. I can assure you. My Dear 
 
THE TICHBORNE CLAIMANT. 217 
 
 Mother, I have kept your promise ever since. In 
 writing to me please enclose your letter to Mr. 
 Gibbes, to prevent unnecessary enquiry, as I don't 
 wish any person to know me in this Country when I 
 take my proper position and title. Having, there- 
 fore, made up my mind to return and face the Sea 
 once more, I must request to send me the means of 
 doing so and paying a few outstanding debts. I 
 would return by the Overland Mail. The passage 
 Money and other expenses would be over Two Hun- 
 dred pound, for I propose sailing from Victoria, 
 not this Colonly, and to sail from Melbourne in my 
 own name. Now, to annable me to do this, my dear 
 
 mother, you must send me " The remainder 
 
 of the letter was missing. 
 
 This letter came into the defendant's possession 
 after Lady Tichborne's death, and was filed by him 
 in Chancery. 
 
 "Now," asks the counsel, "what resemblance was 
 there in this letter to the letters of Eoger Tich- 
 borne?" A good question to ask in argument 
 as to probability, and destroys an alleged fact. 
 Then, he says, Koger Tichborne never had a brown 
 mark on his side ; his mother herself said so ; and 
 she had no knowledge of any card-case at Brighton ; 
 and she admonished him that the less he said about 
 those matters the better. He took her advice, and 
 never mentioned them again till he was cross-ex- 
 amined. 
 
 " How was it," asks Mr. Hawkins, " that he did 
 not allude to any of the early incidents of his life?" 
 
218 ILLUSTRATIONS IN ADVOUACT. 
 
 How, indeed, since he could have satisfied her of 
 his identity by a hundred of them had he been her 
 very son. Castro, in the meantime, mentions to 
 several persons that he had St. Vitus's dance. This, 
 Tichborne never had in his life, but we know Orton 
 had this disease. He said he was educated at Win- 
 chester, and that he was only in the army thirteen 
 days, and was then " bought off." 
 ■ But before Lady Tichborne received the letter she 
 aotually wrote to him and acknowledged him as her 
 ^^ dearest son Roger" without a single particle of evi- 
 dence of any hind. No wonder he began to believe 
 in himself. She writes again and again, giving 
 " scraps of information which ivere made the most 
 of, and, among other things, mentioned that one 
 Bogle was at Sydney." Bogle had been an old ser- 
 vant in the Tichborne family. Before leaving Wagga- 
 Wagga Castro made his will, and that will has an 
 important bearing upon the question as to whether 
 he was Orton or Tichborne. He mentions his moth- 
 er's name as Hannah Frances, when, in fact, it was 
 Henrietta Felicite. It left property at Oowes, where 
 no Tichborne property was, and at Hermitage, Dor- 
 setshire. There was no such place; but there was a 
 farm called Hermitage in Surrey, which had been 
 acquired after Roger left England. There was men- 
 tion of estates at Ryde, where no Tichborne estates 
 existed. The executors were John Jones, of Bid- 
 ford, an old friend of George Orton, and Lady 
 Hannah Frances. Tichborne, "my mother," and Sir 
 John Bird, of Herts, Bart. , an imaginary baronet. 
 
THE TICHBOENE CLAIMANT. 219 
 
 The defendant went to Sydney and saw Bogle, who 
 gave him information on many points. He got from 
 him the Tichborne Crest, and he found the English 
 Baronetage. In the will no mention was made of 
 Upton, and he said he made the will purposely to 
 deceive the bankers to whom he applied for money. 
 He told them he was in the 66th Regiment Light 
 Dragoons (Blues). 
 
 Next comes a letter from Lady Tichborne, telling 
 him that he and his family were JRoman Catholics, 
 which rather surprised him, for having forgotten 
 he was a Catholic, he had been married in a 
 Wesleyan Chapel. This mistake, however, he 
 immediately corrects, and, as a true Catholic, gets 
 re-married in a Roman Catholic Church in the name 
 of Titchborne, which he spelt with two t's instead of 
 one. In answer to his mother's letter containing 
 the information that he is a Catholic, he writes to 
 his " dearest mamma, and may the blessed Maria 
 have mercy on your soul," telling her he is grieved 
 she did not know his handwriting. 
 
 Not long after this he came home, and "on Christ- 
 mas Day, 1866, Arthur Orton once more set foot on 
 familiar soil . If Roger Tichborne had arrived ," con- 
 tinues Mr. Hawkins, "surely he would have eagerly 
 sought his friends and relations; the Seymours, the 
 Eadcliffes, his executor Gosford, and many other 
 familiar friends. But Arthur Orton knew none of 
 them. There was only one home he was familiar 
 with, and that was in High-street, Wapping. There 
 he hurried, and knocked at No. 69," 
 
220 ILLUSTRATIONS IN ADVOCACY. 
 
 "Whose house was that?" asks Mr. Justice 
 Lush, by no means intending any dramatic surprise. 
 But the answer came with thrilling and sensational 
 effect : 
 
 "The house of the late old George Orton, my 
 lord !" 
 
 That was truly a memorable knock ! "Old 
 George was dead. He had left two daughters — 
 a Mrs. Jury and a Mrs. Tredgett, and Arthur 
 Orton went to make enquiries after them at a 
 little public house called the Globe. The burly 
 stranger asked after the old inhabitants, and at 
 last after {he Ortons. He was 'told the daughters 
 were married and gone away, and that the father was 
 dead; and then, suddenly, the landlady exclaims, 
 * Why, Mess me,you are rather like an Orton yourself!' 
 'Oh, no, I am not an Orton,' he said, 'but I am a 
 friend of the family,' ' You seem to hnow all about 
 the people here,' she replied. 'Ah,' he said, 'I have 
 not been here for fifteen years,' which was true, for 
 that was about the time Arthur Orton went away. 
 Next day, very early in the morning, this illustrious 
 baronet was down at Wapping again, making further 
 enquiries after Arthur Orton' s sisters. It has to be 
 ascertained by him whether they will recognize in 
 hini their long-lost brother, Arthur Orton. If they 
 do not, well and good; but if they do, the voice of 
 affection must, if possible, be silenced." 
 
 At this point in the history of the case another 
 change occurs, which shows again the mutability of 
 human affairs. He is no longer Castro; he is no 
 
THE TICHBOKNB CLAIMANT. 221 
 
 longer Tichborne ; he plays many parts, and now 
 comes on as one Stephens, a man he had met on board 
 ship on his homeward voyage. He finds out the resi- 
 dence of a Mrs. Pardon,th.e sister of the husband of 
 Mrs. Jury. After sending up his card, on which he had 
 written "Australia," Mrs. Pardon came to him, and 
 in answer to his enquiries for the sisters, said, ' Why 
 you look like an Orton yourself.' 'No,' said he, 'I 
 am not one of the Ortons, but I am a very great 
 friend of Mrs. Tredgett's brother.' He gave her a 
 letter for Mrs. Tredgett. The letter is sent in, and 
 Mrs. Tredgett appears. The letter was as follows : — 
 Wagga-Wagga, N. S. W., June 3rd, '66. 
 / ««My dear and beloved sister, — It many year 
 now since I heard from any of you. I have never 
 heard a word from any one I knew since 1854. But 
 my friend Mr. Stephens is about starting for Eng- 
 land, and he has promised to find you all out, and 
 write and let me know all about you. I do not 
 intend to say much, because he can tell you all 
 about me. Hoping my dear sister will make him 
 welcome, has he is a dear friend of mine, so 
 good-bye, 
 
 Arthur Orton." 
 
 M" 
 It ends with the same dots and a letter as in his 
 letters to Mary Ann Loader. Stephens had never 
 seen the man until he was on board the ship." 
 
 On the 26th December he writes again, and asks 
 for further information concerning the Ortons and 
 
222 ILLUSTRATIONS IN ADVOCACT. 
 
 Miss Loader, saying also that she will hear some- 
 thing to her advantage. The address was Post 
 Office, Gh-avesend. The sister believed him to be 
 Orton, and had asked for his portrait; so in a 
 feigned hand he writes on the 7th January, 1867, 
 and says: — 
 
 "Dear Madam — I received your kind letter this 
 morning, and very sorry to think you should be so 
 much mistaken as to think I am your brother. Your 
 brother is a very great friend of mine, and whom I 
 regard has a brother. And I havelikewise promised 
 to send him all the information I can about his 
 family. I cannot call on you at present, but will do 
 so before long. I sent your sisters a likeness of yo\|jr 
 brother's wife and child this morning. I should 
 have sent you one, but I have only one left, which 1 
 require for copying. I have likewise one of himself, 
 which I intend to get some copy of.' I will then 
 send you some of each. My future address will be 
 E. C. T., Post-ojffice, Liverpool. Hoping to have the 
 pleasure of making the acquaintance of my friend's 
 sisters before long. — ^I remain, yours respectfully, 
 
 W. H. Stephens." 
 
 Having written these letters, the defendant "sub- 
 sequently denounced them as forgeries, and then in 
 the witness-box was obliged to confess that he had 
 written them. Besides this, he sent the portraits of 
 his own wife and child as that of Arthur Orton^s wife 
 and child." An awkward circumstance if he was 
 Tichborne, and Arthur's wife and child were his 1 
 The sisters also recognized the handwriting of Ste- 
 
THE TICHBORNE CLAIMANT. 223 
 
 phensas that of Arthur Orton. So he writes Arthur's 
 handwriting, and has Arthur's wife and child. He 
 swore that the object in going to Wapping was to 
 find out about Arthur Orton, and when he swore this, 
 the letter purporting to be brought by him from Arthur 
 had not been seen by his solicitor. There was this 
 further remarkable fact that he concealed these visits 
 to Wapping from his legal advisers. He writes to his 
 friend Eous on the 20th October, 1867: — 
 
 "We find the other side busy with another pair of 
 sisters for me one of them been to see Mr. Holmes. 
 They had been three days at them, and they are 
 quite sure of success. Only there is this difference, 
 which they cannot make out. The brother of them 
 young womans is very dark, and very much marked 
 with the small-pox very much about the face. But they 
 are still very sure I am him. I wonder who I am to 
 be next? the man they think I am is still living in 
 Wagga-Wagga under an assumed name. They say 
 I was borne in Wapping. I am glad they have found 
 out a Respectable part of London for me. I never 
 remember having been there; but Mr. Holmes tell 
 me it a very respectable part of London. E. C. D. 
 
 TiCHBOENB." 
 
 We are then told that the defendant for some 
 time keeps in hiding; "dare not face even the poor 
 old lady herself without some little knowledge of the 
 old place. So he left his wife and children behind 
 and went down to Alresford to look at it. He put 
 "R. C. T." upon his trunks, no doubtas a suggestion 
 or invitation to recognition. If he had been the real 
 
224 ILLUSTRATIONS IN ADVOCACT. 
 
 man, why did he not go down boldly in his own name 
 and declare himself? Why did he not go to his 
 attorney, or to his father's or to his old friend and 
 executor? Instead of this he goes to an obscure 
 public-house, and keeps himself quite concealed. 
 Then he gets hold of the publican takes him for walks 
 round the Tichborne estate, and gathers from him 
 all the information he can." 
 
 Now, you will observe, the learned counsel has 
 arrived at a point in the case where it is advisable to 
 show the means the defendant employed to obtain 
 what many persons thought so wonderful, the knowl- 
 edge he possessed of the persons and incidents con- 
 nected with the Tichborne family. 
 
 Lady Tichborne, in her imbecility, was first; 
 Bogle was next ; and now comes the publican. It 
 was quite time to obtain the assistance of a solici- 
 tor, so he employed Mr. Holmes. Mr. Gosford 
 went to Gravesend to see him, but he refused to be 
 seen. Mr. Gosford went again; saw him, put ques- 
 tions to him, and told him he was not Eoger Tich- 
 borne. Then the defendant writes to Eous in these 
 terms: — "If my solicitor, Mr.Holmes, writes to you, 
 give him any information you can, and depend upon 
 perfect secrecy between us. 
 
 "Who was Mr. Rous?" asked the counsel. The 
 question is very well placed, and the answer 
 extremely important as clearing much ground in the 
 future. It could not have come at a better time. 
 "■An old clerk of Mr. Hopkins," says Mr Hawkins; 
 "<Ae old family attorney, acquainted with the family 
 
THE TICHBORNE CLAIMANT. 225 
 
 estates. Rous could give him much information 
 about them, and it was all important to obtain such 
 information before the claimant faced Hopkins him- 
 self, as he would have to do. Hence the application 
 to Rous, and hence the hint as to secrecy." 
 
 He then goes with a brewer's clerk and his attor- 
 ney to see I*ady Tichborne in Paris. 
 
 "Unable," says Mr. Hawkins, "to relinquish her 
 long cherished idea that her long-lost son was yet 
 alive, she still had received from him such false par- 
 ticulars as might well have raised a doubt in any 
 rational mind. Still, she refused to doubt. He had 
 talked about his grandfather, whom Roger had never 
 seen. He said he was a private, whereas Roger was 
 an officer; that he was educated at Winchester 
 instead of Stonyhurst ; that he had had St. Vitus's 
 dance, which Roger never had. 'He confesses every- 
 thing as if in a dream,' she wrote ; 'but it will not 
 prevent me from recognizing him, though his state- 
 ments differ from mine.' This was the poor bewil- 
 dered old lady, who was now to be confronted with 
 her long-lost son in the company of two strangers, 
 one of them an attorney I He did not go to see her ; 
 she had to come to find him, and she found him 
 lying on a bed." Must have been rather a strong 
 maternal instinct, one would think, to recognize her 
 son through the bedclothes ! 
 
 This was her meeting with her long-lost son. 
 Then is given the defendant's own account of this 
 affecting interview. 
 
 ^'I was lying on a bed, and my mother was stand- 
 
226 ILLtrSXBATIONS IN ADVOCACY. 
 
 ing alongside of me. I cannot say who spoke first. 
 We conversed a lono; time. / cannot say if she rec- 
 ognized me at once or after a time, or what. There 
 were others in the room who will be able to 
 give a better account of it than me — Mr. Holmes 
 and Mr. Leete (the brewer's clerk) and Dr. Shimp- 
 ton. / believe we were both affected at the interview. 
 She did not express any doubt about my being her 
 son. Oh, no, not in the slightest." Such was this 
 first interview between mother and child. He 
 remained three days in Paris, and then returned to 
 London. Mr. Holmes obtained for him the tich- 
 borne pedigree and the Army Gazette containing the 
 dates of Eoger's military life, and a copy of the 
 Tichbome will, disclosing most important particu- 
 lars as to his affairs. 
 
 Soon after this Gosford met the defendant, and 
 said — "If you are Roger Tichborne, yon can't have 
 forgotten the sealed packet deposited with me. What- 
 were the contents of it?" 
 
 The defendant could not say. The probability, of 
 course, is, that if he had been Eoger he could have 
 told at once, and so have convinced Mr. Gosford of 
 his identity. The defendant, in the course of time, 
 we are told, filed an affidavit in Chancery, giving an 
 account of the wreck of the Bella, his rescue, and 
 voyage to Australia. But "his affidavit was a tissue 
 of gross and revolting absurdities,' ' That is somewhat 
 stronger than saying it was a tissue of falsehoods, 
 because the absurdities would speak for themselves, 
 so would the falsehoods, but they would have to be 
 
THE TICHBORNE CLAIMANT. 227 
 
 disproved, while absurdities would not. Falsehood 
 or not is a matter of belief ; absurdity or not is a 
 matter of common sense and sight. In order to pre- 
 pare himself for cross-examination, the defendant 
 next obtained possession of all the letters of Roger 
 that could be laid hold of. 
 
 In the meantime he was corresponding with the 
 Ortons, and giving them money. " Whenever they 
 wanted money," he said, " I sent them some." 
 "Charles Orton, brother of Arthur, was carrying on 
 business as a butcher a.t Hermitage TF'Aar/,Wapping. 
 He, being poor, communicated with the defendant, 
 and from him received letters and money; £5 a 
 weeli, at first in the name of Tichborne, and then in 
 the name of Brand. This continued up to Septem- 
 ber, 1868, so that Tichborne in his communications 
 with Charles Orton becomes Brand. Rumors arose 
 that he was supporting the Ortons, but he wrote to 
 Holmes in October, 1868, distinctly denying that he 
 sent them money. The correspondence was burnt at 
 defendant's instance, and he got Charles to sign a 
 declaration saying he was not his brother. Here you 
 see blood must have been very strong to require a 
 declaration. But he could never get Charles to 
 swear the denial. In October, 1868, he ceased to 
 make provision for him, and Charles went to the other 
 side and told them the truth about the matter. Then 
 the defendant made an aflBdavit, in which he swore 
 — "I. did not know any of Arthur Orton' s family 
 until the year 1868, when, in consequence of rumors 
 which reached me, I called upon his sisters, whom I 
 
228 lliLUSTRATIONS IN ADVOCACT. 
 
 then saw for the first time. They both made an 
 affidavit that I am no relative of them, and that I 
 am not their brother Arthur, whom they last heard 
 from in a letter dated August last from Western 
 Australia." 
 
 " Who would imagine from this," asks the learned 
 counsel, " that he had been long in communication 
 with them ; that he had been giving them money ; 
 that \aa first visit on his arrival in England (Christ- 
 mas Eve, 1866) was to enquire after them ; and that ■ 
 for two years he had been in constant communication 
 with themT' 
 
 Who, indeed? Not the jury, one would suppose. 
 
 And here ends the third day of Mr. Hawkins' 
 speech. And what a distance he has traveled I what 
 a multitude of facts he has collected and arranged ! 
 Not one, so far as I can discover, out of place ; not 
 an episode in the whole case but is appropriately 
 inserted. Surely no speech was ever better planned. 
 You may walk over the ground he has traversed and 
 find your way to any point without the slightest 
 difliculty. Do you want Valparaiso? There are 
 landmarks in the facts he has narrated which will 
 take you direct. Do you want Hobart Town? There 
 are the Jurys, the note of hand and the date, 1855. 
 Do you wish to see him at Gippesland ? Mr. John- 
 son will take you. Dargo? There's a document 
 dated and signed. Sale? Mr. Hopwood knows all 
 about it, and so he does of Wagga-Wagga. Do you 
 wish to see when and wherefore he changes his name 
 to Castro ? You'll find out at Mellipilla how he gets 
 
THE TICHBOENE CLAIMANT. 229 
 
 the name, and from Hopwood why he changes it. 
 And so, after this opening you may, with the utmost 
 ease, shift scene after scene and see the defendant 
 pursuing his vocations, and even get occasional 
 glimpses of him in the obscurity of the bush, where 
 he wanders like a dark and suspicious figure in the 
 pathless wilderness of unrevealed mysteries: — ^un- 
 revealed, except by his own inadvertent observa- 
 tions, which shed a momentary glimmer on the 
 scene, and show that he was engaged in business 
 which only those with whom he consorted could 
 divulge. Never was a figure more clearly traceable 
 from point to point and from name to name. And it 
 may fairly be said of him that when he takes the 
 greatest pains to conceal his identity his identity 
 stands most clearly revealed. It is strange that 
 there is no point of contact between these two 
 men. They never even cross each other's path, and 
 there is scarcely a movement of either man in which 
 you can mistake for a single moment the identity of 
 the person. It is as impossible to confound their 
 actions as it is to assimilate their miijds and charac- 
 ters. 
 
 In the next chapter the learned counsel dwelt upon 
 that part of the defendant's history which related to 
 Chili. 
 
 "My case," he said, "is that Orton left Chili two 
 years before Eoger left England. It was necessary 
 for the defendant, while making his claim, to write 
 to Castro in Mellipilla to prepare him for the enqui- 
 ries that would inevitably be made. So he writes 
 
230 ILLUSTRATIONS IN ADVOCACY. 
 
 to say that he has got very fat and his relations dis- 
 pute his identity ; tells him he made use of his nanie 
 in Australia, and never disgraced it in feats of horse- 
 manship." 
 
 Commenting on all this, the learned counsel ob- 
 serves: "Orton left England for Chili in the early 
 part of 1851, came back to Wapping, and left at the 
 end of 1852 for Hobart Town, Roger Tichborne did 
 not leave England until February, 1854; so that 
 when the defendant speaks in his letter of being the 
 same person vf hom Castro knew seventeen years ago, 
 he overruns himself by at least two or three years." 
 That is a point of immense importance, which the 
 jury note. 
 
 Now comes a letter which, the learned counsel 
 says, "speaks volumes." It was from the real Cas- 
 tro, of Mellipilla, in answer to one from the defend- 
 ant, who had signed his name as Tichborne. As the 
 letter is described as a "crucial test" as to who the 
 defendant really was, it is read and its main point 
 commented on in these words: "See what it con- 
 veyed to the njind of the man who received it ! 'I 
 have received from you a letter, signed Tichborne ; 
 I assume it is your name ; but the man who was 
 staying here hore the name of Orton, and described 
 himself as the son of a butcher; but there is nothing 
 in that, and you may have mistaken the two Span- 
 ish words canciller and carnirero — the one meaning 
 chancellor, the other butcher."' 
 
 Next Holmes writes to Castro asking him whether 
 he really knew Orton or whether Barra, the agent 
 
THE TICHBORNE CLAIMANT. 231 
 
 of the Tichborne family, had mentioned the name 
 to him first. He says also that he has clear evidence 
 that Orton is in western Australia. The answer 
 came that, although the defendant "had borne the 
 names Arthur Orton he had stated they were not 
 his own; that he belonged to the English aristoc- 
 racy, and that he had played with the Queen's 
 children." Presumably, while his father was Chan- 
 cellor. 
 
 The defendant had repeatedly on oath denied that 
 he had ever passed as Arthur Orton. 
 
 It is next proposed that the defendant should go 
 to Chili to be seen by the people there. He is 
 reluctant, but consents; and, in the meantime to 
 prepare Castro for the interview, Holmes writes and 
 tells him that "his client has completely gained his 
 suit in the Court of Chancery." 
 
 Then the defendant writes to Castro, "/ have 
 never passed under the name of Orton, so do not 
 allow my opponents to persuade my friends that 1 
 have." 
 
 Holmes also writes to Castro and says: — Orton' s 
 brother and sister have seen Sir Roger, and declare 
 he is not Arthur, and that the proceedings are the 
 result of malice." He also sends a portrait of "/^S'^V 
 Roger," this, of course, being the defendant's own 
 likeness. So all is arranged for Sir Roger's depart- 
 for Chili to be seen by the Chilian witnesses. 
 
 "And now," says the counsel, "you will see how 
 he met them. There were two commissions for 
 taking evidence — one in Chili and one in Australia; 
 
232 ILLUSTRATIONS IN ADVOCACT. 
 
 he got that for Australia postponed, on the ground 
 that he desired to attend the' Chili commission. He 
 swore that he was advised to do so — ^very good 
 advice and very necessary, if the man were really 
 Sir Eoger. But the defendant never meant to follow 
 it. He sailed indeed, and arrived at Eio in Octo- 
 ber, 1868 ; from Kio he and his companions went to 
 Monte Video, but there they separated, his compan- 
 ions to follow their pre-arranged course by sea to 
 Valparaiso, while he preferred to go by land. It 
 was very necessary for him to do so, for this was a 
 journey Sir Eoger had taken and he had not. He 
 intended to study the route from Rio to Valparaiso, 
 but had no idea of ever presenting himself there. 
 Conscious that he was Arthur Orton, he took care 
 never to stand face to face with Castro. So he 
 never went to Chili after all. The. commission was 
 delayed till December, but he never came. The 
 evidence was taken in his absence, but in the pres- 
 ence of his counsel. From that time the defendant 
 had no communication with Castro or any of his 
 Chilian friends. 
 
 Having got thus far with the case ; having traced 
 his sinuous course till "the burly stranger knocked 
 at the door of the late George Orton, my lord," 
 and haying shown his suspicious and false dealings 
 since that memorable knock, the learned counsel 
 now takes up evidence which comes in here like 
 the capital on a pillar. His edifice is nearly com- 
 plete. He is not about to deal with evidence 
 which his own witnesses are to prove, but with 
 
THE TICHBORNB CLAIMANT. 233 
 
 that which comes from the mouth of the defendant 
 himself. Evidence not to be contradicted or ex- 
 plained away, and which will remain forever as 
 facts fitting in with the case for the prosecution, but 
 by no manner of means capable ©f finding a resting- 
 place in that of the defendant. This part, therefore, 
 wUl be complete in itself, and finds its appropriate 
 position in this part of the opening. This evidence 
 consists in certain answers of the defendant in his 
 cross-examination by Sir John Coleridge, contra- 
 dicting many absolute irrefutable facts, and dis- 
 closing such astounding ignorance of the prominent 
 features of Roger's life, that the idle tale will 
 appear utterly unbelievable upon these admissions, 
 even before other evidence in proof of the imposture 
 can be given. 
 
 In this cross-examination came the defendant's 
 account of the contents of the "sealed packet" 
 which he foolishly and wickedly connected with 
 the alleged seduction of his cousin — "the most foul 
 and detestable perjury ever committed," says Mr. 
 Hawkins. The paper deposited was this:- — 
 
 Tichborne Park, June 22nd, 1852. 
 
 "I make on this day a promise that if I marry 
 my cousin Catherine Doughty this year, before three 
 years are over at the latest, to build a church or 
 chapel at Tichborne to the Holy Virgin, in thanks- 
 giving for the protection which she had thrown over 
 us, and in praying God that our wishes may be ful- 
 filled. 
 
 "R, C. TiCHBOENB." 
 
234 ILLUSTRATIONS IN ADVOCACT. 
 
 In the witness-box the defendant had feigned a 
 reluctance to disclose it. Mr. Hawkins pertinently 
 askes "why?" There has been two copies of this 
 document; one was given to Mr. Gosford and the 
 other to Miss Doughty. The defendant did not 
 know that one had been given to her, and, finding 
 out that Gosford' s was destroyed, and thinking no 
 copy of it could be produced, he, in February, 1868, 
 made an affidavit, in which he says, "that before 
 leaving England in March, 1853, I placed in the 
 hands of Gosfdi'd the document, with instructions 
 not to open it except in certain events, one of which 
 I know has not happened and the other I hope has 
 not happened." 
 
 The engagement, be it remembered, was broken 
 off between the cousins in 1852. He was asked 
 what the first event was. He answered: "My retnrn 
 before my marriage." He was pressed upon the 
 point and then said, ^^ I don't know; I think it was 
 my death. 
 
 He was then asked as to the other. He professed 
 extreme reluctance, but at last said, "the confine- 
 ment of my cousin]" He was asked solemnly," 
 says Mr. Hawkins, "do you mean this lady sitting 
 beneath me?" 
 
 "Yes." 
 
 "Do you mean to swear that you seduced this 
 lady?" ... , . . 
 
 -He answered, "I most solemnly td.my God swear 
 it!" 
 
 "When?" 
 
THK TIUHBORNE CLAIMANl'. 235 
 
 "In July or August, 1852." 
 
 In August, 1862, the defendant gave his attorney 
 the following as the document he had deposited with 
 Gosford: — 
 
 "In the events of my father being in possession 
 before my return, or dying before my return, he 
 (Gosford) was to act for him according to instruc- 
 tions contained in the document. In the first place, 
 he was to have Upton to live at and there to manage 
 the whole of the estate. He was to keep the farm 
 in hand and show the greatest kindness to my cousin 
 Kate and let her have anything she required. My 
 cousin gave me to understand she was enciente, and 
 pressed me very hard to marry her at once. I did 
 not believe such was the case, nor have I since heard 
 it was. I always believe it was said to get me to 
 marry her at once. For this my father tried to per- 
 suade me. It also refers to the village at Prior Dene. 
 He (Gosford) was to have the cottages repaired and 
 also to improve the estate in general. Was also to 
 make arrangements for Kate to leave England if that 
 was true. Both Gosford and wife pressed me very 
 hard to marry her at once. I do not think Mrs. 
 Gosford knew about Kate. 
 
 "R. 0. D. TiCHBOKNE," 
 
 Pressed at the first trial to give his recollections 
 of it, he wrote the following: — 
 
 "If it be true that my cousin Kate D- should 
 
 prove to be enciente you are to make all necessary 
 arrangements for going to Scotland, and you are to 
 see that Upton is properly prepared for her until I 
 
236 rLLUSTBATioNS m advocacy. 
 
 return or she marries. You are to show great kind- 
 ness to her and let her have everything she requires. 
 If she remains single until I come back I will marry 
 her. In the event of my cousin's death you are to 
 take charge of the estates on my behalf, to keep the 
 home farm and to repair the cottages at Prior Dene. 
 
 «'E. C. D. Tichborne." 
 
 This incredible story was to be disproved by 
 evidence ; not merely by evidence which added to 
 the improbabilities, but which would prove it to be 
 impossible to be true. And this would be accom- 
 plished by means of dates to which the defendant 
 had been pinned. Then the learned counsel mar- 
 shalled facts and dates in the history of Eoger which 
 proved the impossibility of the "defendant's story being 
 true. Not only would the story be proved impossible 
 out of the defendant's own mouth, but it would be 
 contradicted by a body of trustworthy evidence 
 which could not be disbelieved. "If this evidence 
 will not satisfy the jury," said the learned counsel, 
 "I declare to God I do not know what evidence 
 would be required, or by what evidence a lady of 
 honor and character could vindicate her virtue against 
 a foul aspersion." 
 
 No wonder the learned counsel rose to this height, 
 seeing the issue which loomed through this dark 
 cloud of lies. It was not merely whether the de- 
 fendant was Tichborne, but whether a lady, hitherto 
 regarded as a virtuous woman, would be degraded, 
 and perjured in the eyes of the jury, her husband, 
 her children and the world. So, says Mr. Hawkins, 
 
THE TICHBORNE CLAIMANT. 23t 
 
 not liking to leave this point without thoroughly 
 exhausting everything he could say upon the subject, 
 he will prove by Roger' s letters that he was not at 
 Tichborne at that time or anything near the time 
 when the seduction was alleged to have taken place. 
 After a certain date, which was long before the time 
 alleged by the defendant, Roger never was at Tich- 
 borne again. The sealed packet was given to Gos- 
 ford in January 1852, while defendant in his affidavit 
 swore it was November, 1852. 
 
 Next came the incredible story of the wreck, in 
 itself an impossibility, as told ; and let the reader 
 bear in mind that no true story can have an impossi- 
 bility in it — a false story frequently has. 
 
 Then came another impossibility. Roger's letters 
 showed that he could never have been at Mellipilla; 
 but Orton undoubtedly was, and his presence there 
 gave birth to the Castro episode. In 1854, Roger 
 sent home two daguerreotypes, and they were in the 
 possession of Tichborne family ; yet the defendant 
 denied that he had ever sent them — a strange and 
 short sighted denial truly I 
 
 Now comes another point relating to the wreck. 
 During all the nineteen years that had elapsed since 
 the loss of the Bella, no living being had ever been 
 heard of as having been saved. The ship that, 
 according to the defendant's account, had saved 
 him was the Themis, which was changed to the 
 Osprey, because, doubtless, he had learned that an 
 Osprey had reached Melbourne about the time that 
 would have fitted in with his story. But there are 
 
238 ILLUSTRATIONS IN ADVOCACY. 
 
 other things required to fit in with such a story 
 before it can be accepted as true, and to these the 
 learned counsel calls the attention of the jury. 
 First the size of the vessel, as stated by the defen- 
 dant, was as large as the Bella — 1800 tons — but the 
 Osprey that came to Melbourne was a little vessel 
 under 100 tons; it had no passengers and only a 
 small crew, while the defendant's Osprey had a 
 crew of ten men. He was asked the names of the 
 captain and the crew, but he could not give one. 
 He was pressed in cross-examination, with this 
 remarkable result, that he gave the names of J. 
 Lewis, J. Peebles and Owen David Lewis, which, 
 strange to say, were the name of the men on hoard 
 the Middleton — Orion's vessel in 1852 ! What a 
 poor un inventive mind ! And yet what a remarka- 
 ble memory he must have had ! On reaching Mel- 
 borne he said he gave the captain a check, which 
 had reached home and been acknowledged by his 
 relatives as genuine, but had been dishonored. 
 This was all self-evidently untrue, and required no 
 reasoning upon whatever, but it was as well to give 
 the defendant's own version, which was as follows :• — 
 
 " Mr. Hopkins told me that during my absence a 
 check came to Glyn, a,nd that the money had been 
 taken from Glyn's previously. The check was sent 
 to Hampshire, and Mr. Hopkins got it. He told me 
 it was between £17 and £18. He sent it to Mr. 
 Greenwood, who acknowledged it was mine, but it 
 was dishonored." 
 
 It was necessary for him to dishonor it, other- 
 
THE TICHBORNE CLAIMANT. 239 
 
 wise the bankers' books would have been in his 
 way. But the counsel deals with it in one argu- 
 ment: '« This was all a fabrication and an absurd 
 fabrication, for, of course, had any such check 
 really arrived, it would have shown that' he was 
 alive." 
 
 ^ Moreover, the log-book of the Osprey contained 
 no account of the picking up of a shipwrecked 
 passenger, or any reference in any way to such an 
 incident of her voyage as he described. But the 
 defendant had tried to meet this impossibility by 
 another — he said it was another Osprey, arnd then 
 he said it must have been the Themis; but he 
 further swore that eight sailors were saved with him. 
 Not one of these had ever been heard of. 
 
 It was thought proper to give the jury the key to 
 the story of the £17 to £18 check, and it was this: 
 the defendant had heard that the Themis had picked 
 up a shipwrecked man at sea, so this poor ship- 
 wrecked Claimant, driven to his wit's end, and 
 eager to catch at any straw, goes down to Liverpool 
 to see the owner, and is so elated with his success 
 that he writes: — 
 
 "It is now beyond a doubt it was the 'Themis^ 
 picked me up. The owners and agents are doing all 
 they can to find me evidence." 
 
 So the log-book is entrusted to one of the defend- 
 ant's agents, but, strange to say, there was no 
 trace in it of any shipwrecked passenger having 
 been saved. It was, however, discovered that a 
 ship called the Themis had taken a second-class 
 
240 ILLUSTRATIONS IN ADVOCACY. 
 
 passenger to Melborne, who had disappeared after 
 giving the captain a check for £17 to £18. This 
 was the origin of the story of the check. But in a 
 short time " the mate of the Themis turned up, and 
 declared it was all wrong, and then the TJiemis was 
 dropped, and the Osprey taken up again." 
 
 As to the life in Australia, the defendant admitted 
 that he had changed his name to Morgan, but 
 declined to say why, on the ground that it might 
 tend to criminate him; that he knew Arthur Orton, 
 who had changed his name to Alfred Smith, because 
 •' he ha(J done something not in accordance with 
 law." "He admitted that his friend was charged 
 with bushranging, which meant highway robbery; 
 and on being asked if he was charged with Orton 
 for that offence, he declined to say. He admitted 
 his intimacy with Morgan, a bushranger, shot in 
 1865, and his intimacy with another bushranger 
 named Tote. He was also charged in the name of 
 Orton with horse stealing. This he admitted. "What 
 more," asks the learned counsel, "need I say?" 
 
 Just one or two words, perhaps. Upon Eoger 
 there were tattoo marks not found upon this man, 
 and upon this man there were fabricated marks, 
 which never had existed on Eoger. All the differ- 
 ent physical peculiarities were referred to which 
 existed in Eoger, and which did not exist in the 
 defendant ; so that, according to the description, no 
 two men could be more dissimilar with regard to 
 unchanging signs of identity; one important sign 
 being that the ears of Eoger adhered closely to his 
 
THE TICHBORNE CLAIMANT. 24l 
 
 cheeks, while this man had pendant lobes. So hav- 
 ing contrasted the two men's personal peculiarities, 
 as he had contrasted their histories, manners, char- 
 acters, sentiments, education and minds, he con- 
 cludes with a peroration useful to the student as a 
 study of the arrangement of a case. His last 
 observation was as to handwriting, which he said 
 could not deceive. The defendant's writing and 
 spelling were writing and spelling exactly resem- 
 bling Arthur Orton's, but totally dissimilar to the 
 writing and spelling of Roger Tichborne. 
 
 It was true that he had endeavored to imitate 
 Roger's writing after he had come to England, and 
 after he had written to the dowager, saying — "/ 
 hope you have got some of the letters;^' but that 
 would not affect the judgment of the jury in any 
 way, except by showing that the apparent resem- 
 blance of these later letters was the result of imita- 
 tion. He then concludes: — 
 
 " Gentlemen, I have shown you the life, habits, 
 education, the correspondence, the sentiments, the 
 dealings of Roger Charles Tichborne, whom the de- 
 fendant is charged with fraudulently attempting to 
 personate. I have shown you also the life, habits, 
 education, correspondence, conduct and career of 
 Arthur Orton, whom we allege this man to be. No 
 two persons could be possibly more unlike each 
 other. I have also called your attention to the 
 various accounts given by the defendant of his past 
 life and career. How he would have you to believe 
 that this high-born English gentleman, who had 
 
242 ILLU8TKATION8 IN ADVOCACY. 
 
 rank and fortune at his command, descended so low 
 as to forget every tie of duty and sacred affection 
 towards those to whom he owed both; how, with 
 birth and education, which would have enabled him 
 to move in the highest station of society, he chose to 
 associate with slaughtermen, highwaymen and 
 thieves; how, from a man of honor and truth, he 
 condescended to become a trickster and a knave ; 
 how, with audacity unparalleled for his own ends, 
 and to cover his ignorance of the one tender secret 
 of the man whose name he had assumed, he did not 
 hesitate to impute to him the baseness, ingratitude 
 and cruelty of assailing the honor of an English 
 lady. I have shown you, moreover, how the de- 
 fendant would have you believe that, with a memory 
 said to be so marvellous as to enable him to relate 
 with accuracy the most puerile trifles, he has never- 
 theless forgotten his own mother tongue, and has 
 become oblivious of events which, once known, could 
 never have been effaced from the memory of the 
 man who had witnessed them. I have called your 
 attention to the mass of living testimony which I 
 propose to offer to you. I shall lay before you also 
 the evidence of the dead. In December last the late 
 Lady Doughty, with intellect unclouded, closed her 
 eyes in death. She ended her days in peace, and 
 ere she died, in the hour of death, and with the con- 
 sciousness that in a few short moments she would 
 enter into the presence of her God, to whom she 
 swore, she recorded her oath that the defendant was 
 not the man he had falsely sworn himself to be. 
 
THE TICHBORNE CLAIMANT. 243 
 
 With such testimony, added those inferences which 
 I invite you to draw, as reasoning men, from mat- 
 ters which I have called your attention, I believe I 
 shall abundantly satisfy you that the defendant is 
 not Eoger Charles Tichborne, as he has falsely 
 sworn himself to be, and that he is Arthur Orton, 
 whom I allege him to be; and, lastly, that in this 
 foul aspersion which he has made on the character 
 and reputation of the lady whose name has been so 
 often mentioned, he committed perjury the most 
 daring and detestable. 
 
244 
 
 CHAPTER XVII. 
 
 MR. HAWKINS' CROSS-EXAMINATION 
 IN THE TICHBORNE CASE. 
 
 THE CROSS-EXAMINATION OF "OLD 
 BOGLE." 
 
 Many readers, when they see the heading of this 
 page, will wonder who "Old Bogle' ' was. Very few 
 persons comparatively have read the Tichborne ease, 
 or know the Tichborne story. They will think prob- 
 ably it means the "old gentleman" himself. If it 
 did, I believe Mr. Hawkins could have effectively 
 cross-examined him. But if the thoughtful reader 
 has perused the analysis of the opening speech in the 
 prosecution of Oiton he will know that Old Bogle 
 was an old blacik servant of the Tichborne family; 
 that he was at Sidney at the time Castro comiiienced 
 to- make his claim to the estates; and that Roger's 
 
MR. HAWKINS' CROSS-EXAMINATION. 245 
 
 mother, "the poor deluded creature," had written 
 and told Castro that fact. It was from Bogle the 
 Claimant obtained almost his earliest information of 
 the family of the Tichbornes. 
 
 The cross-examination of this witness is interesting 
 from many points of view. It affords specimens of 
 artistic workmanship and of variations of style em- 
 ployed for the purpose of producing different effects, 
 but always with the view of minimising his evidence 
 or discrediting it by eliciting contradictions. T shall 
 give only two illustrations, opposite in their character 
 and widely different in their objects ; the purpose of 
 the one being to lay before the jury the sources from 
 whence the alleged imposter obtained the knowledge 
 which he undoubtedly possessed of many incidents in 
 the Tichborne faniily ; the design of the other being 
 to break down the witness on the ground of his 
 unreliability, and especially when speaking to the 
 identity of the Claimant,, and the circumstances 
 attending the earlier years of Roger's life. The 
 reader will see how humor and ridicule may some 
 times be made to play an important part in cross- 
 examination. The following is the general nature of 
 the evidence the cross-examination was directed to 
 elicit: — 
 
 1. That Bogle and his son had been ever since 
 their return to England dependants on tjie Olaimant 
 fw mpport; that they had shared his home and lived 
 upon his hospitality; and therefore the natural 
 inference would be at the outset tha* Old Bogle was 
 a zealous and prejudiced partisan. 
 
246 ILLUSTKATIONS IN ADVOCACY. 
 
 2. Bogle's intimate knowledge of the Tichborne 
 family and its history; his acquaintance with innu- 
 merable details of the life and character of iRoger ; 
 his recollection of the minor incidents of Roger's 
 childhood and boyhood up to the period of his leav- 
 ing England on his ill-fated expedition. 
 
 3. His intimate knowledge of the situation and 
 character of the Tichborne estates ; of Upton ; of the 
 rooms in Tichborne House, their furniture and 
 pictures; of the names of Eoger's nurses and the 
 neighbors with whom he had been acquainted ; even 
 the trivial and minuter details were to be shown as 
 within his powerful recollection, such as the kind of 
 frocks the child wore, and the childish- frolics he 
 used to indulge in. 
 
 All this would be of immense importance, as the 
 reader wiU see, as so much stock-in-trade to a man 
 who was about to set himself up in the business of 
 personating that child grown into manhood. It had 
 been said over and over again by persons who had 
 not read the case, and their name was legion, 
 "This must be the right man, or how could he have 
 known all these things." 
 
 This is precisely what Mr. Hawkins's cross-exam- 
 ination is about to be directed to — namely, to show 
 that the Claimant's Tcnowledge was the knowledge of 
 Old Bogle, ^nd not his own in reality ; and if I mis- 
 take not, it will show that the pretended recollection 
 of the Claimant, is not the recollection of- a child 
 grown into a man, but of one who was a man when 
 the incidents occurred! The claimant, as. I read the 
 
ME. HAWKINS' CROSS-EXAMINATION. 247 
 
 evidence knew somewhat more than he would have 
 recollected if he had been the real Eoger. He recol- 
 lected with the crammed mind of a man and not 
 with the artless memory of a child. Hence we have 
 another category of objects to which the cross-ex- 
 amination was directed. It was this:— 
 
 Grodwin's Farm and its occupants. 
 
 Old Etheridge, the blacksmith of Upton. 
 
 The Nobles, who -kept the "Dairy Farm." 
 
 Mr. Baigent, who called himself "a connection 
 of the Tichborne family," and came to clean the 
 pictures — to wash, in fact, the faces of remote 
 ancestors. 
 
 Mr. Hopkins, the family lawyer. 
 
 Mr. Slaughter, and many others. 
 
 All these had doubtless been known to the boy, 
 •but they were far better known to Old Bogle, and 
 his recollection of them would be keener than that 
 of the real man, who knew them only as a child. 
 Just imagine for a moment a clever cunning man 
 like the Claimant gathering materials from so bound- 
 less a store as this, and can you wonder that he 
 should show a surprising knowledge of some inci- 
 dents in Koger's early life? 
 
 Then came another group of things which Bogle 
 was asked about and gave information upon, show- 
 ing again the acquired knowledge of the man, and 
 that of the most minute and circumstantial kind, 
 such as no grown-up child would recollect. 
 
 'Maas Doughty' s bay mare, Roger's dog "Spring" 
 Powell, who taught Koger the French horn, and the 
 
248 ILLUSTKATIONS IN ADVOCACY. 
 
 visits of Lady Tichborne to the family seat. Bogle 
 also knew the N'angles, Walter Stickland, a friend 
 of Eoger's, Tom Muston, the groom ; Moore a ser- 
 vant ; Carter, another servant and Mc Oann. He has 
 also heard of Clarke, Roger's servant in Ireland hav- 
 ing been killed — a most important fact for Roger to 
 remember, even if he had forgotten the name of the 
 man who had given him a lesson or two on the 
 French horn, or had forgotten the name of one of 
 the grooms, or those of the other servants, with whom 
 he would not be familiar, although Bogle would. So 
 it was a good thing in the cross-examination that 
 Old Bogle let slip the fact that he had heard all about 
 Roger's servant having been hilled. And let the 
 reader note where it comes in — all in the midst o/a 
 lot of unimportant matters of detail which are 
 poured upon him like corn out of a sack. Poor 
 Old Bogle I He didn't think he was doing any harm. 
 Even the French horn did not seem to him an 
 instrument out of which anything could be made to 
 turn against the Claimant; "because," thought Bo- 
 gle, "Roger ought to recollect about the French horn 
 he couldn't forget it," although it was mixed up in 
 cross-examination with such variety of small mat- 
 ters as tended to show whose memory it was — 
 Bogle's or the boy's. 
 
 Thus the cross-examination was directed to the 
 sources from whence the Claimant obtained the in- 
 formation which he so adroitly used to prove he was 
 the heir to the estates. 
 
 The next point in the cross-examination was to 
 
MR. HAWKINS' CROSS-EXAMINATION. 249 
 
 show that after Bogle left England and took up his 
 residence in Australia, his two sons followed in the 
 course of two or three years, bringing with them 
 information up to date. 
 
 It was one of these two sons, Andrew, who, as the 
 cross-examination shows, gave the witness apiece of 
 paper. This paper showed clearly enough that when 
 Old Bogle went to the hotel where the Claimant was 
 staying in Australia he went to greet /Sir Roger rather 
 than to ascertain whether or no it was he. He went 
 "possessed with the idea" that the person he was to 
 meet was in fact the veritable Roger ; and then one 
 of two things must follow — if he went as a rogue to 
 assist in the perpetration of a fraud, he would will- 
 ingly communicate aU he knew of the family and 
 estates, and if he went as a fool he could easily he 
 drawn by a cunning impostor to impart the same 
 information. 
 
 Then we get the cross-examination as to Bogle's 
 first interview with the Claimant, and a very interest- 
 in^ cross-examination it is from an advocate's point 
 of view. 
 
 "You knew the defendant at once?" asks Mr, 
 Hawkins. 
 
 "Yes," answers Bogle. 
 
 "He was exactly like?" 
 
 "Yes; I knew him from his likeness to his 
 uncle." 
 
 "And that was how you recognized him?" 
 
 "Yes." 
 
 "At first sight?" 
 
250 n<LUSTRATIONS IN ADVOCACY. 
 
 "At first sight." 
 
 "Not from his likeness to Roger?" 
 
 "Not exactly." 
 
 There's a good deal of dijBference between him and 
 Eoger, is there not?" 
 
 This question was a sort of petard, and Bogle, 
 having been got ready by the previous questions, 
 must be hoisted upon it, struggle as he may ; he 
 struggles thus : 
 
 "He is stouter," says Bogle. 
 
 "A great deal stouter?" repeats Mr. Hawkins. 
 
 "No; not a great deal." 
 
 "What, was Roger stout?" — The "what" startles 
 Bogle. 
 
 "No." 
 
 "Was he thin?" 
 
 "Yes." 
 
 "Very thin?" 
 
 "Yes.-" 
 
 "Narrow-chested ; pigeon-breasted ?' 
 
 "They say so; but I didn't think he was by meas- 
 urment." 
 
 "Don't talk of measurment. Was he not narrow 
 in the front part of the chest ?' ' 
 
 "He appeared so." 
 
 "Did you think the defendant narrow and pigeon- 
 breasted ?' ' 
 
 "No; he was stouter." 
 
 "And broader^" 
 
 "Yes." 
 
 MTaller?" 
 
MB. HAWKINS' CROSS-EXAMINATION. 251 
 
 'No ; about the same height." 
 
 'Had Roger a long neck?" 
 
 'Well, I don't know if longer than usual. As he 
 was thin it appeared to be so." 
 
 'The defendant's did not appear so? did it?" 
 
 'It appeared stouter because he was stout." 
 
 'As to the face?" 
 
 'The upper part was like Roger's." 
 
 'What do you say to the lower part?" 
 
 'Well, his nose was injured." 
 
 'But the lower part — the chin?" 
 
 ^ It was shorter.'^ 
 
 'Roger's was long?" 
 
 'Rather." 
 
 'And pointed?" 
 
 « Yes, I think so." 
 
 Now a direct point-blank contradiction of what the 
 defendant had sworn in the former trial is obtained 
 in this way: 
 
 "Do you know whether he had heard you were in 
 Sydney?" 
 
 "He had seen Guilfoyle (the old family gardener). 
 I don't know whether Guilfoyle had told him any- 
 thing. (The dowager's letters to the defendant had 
 mentioned that Bogle was in Sidney, and was quite 
 black ) . 
 
 "Did he tell you he knew you were in Sydney?" 
 
 "Yes he did." 
 
 ' 'Did he show you a letter of the Lady Tichborne ?' ' 
 
 "He did." 
 
 "Did he ask you if you knew her handwriting?" 
 
252 ILLUSTEATIONS tSt ADVOCAOT. 
 
 '•Yes, he did." 
 
 "Did he put the letter in your hand?" 
 
 "Yes, he did." 
 
 "Did you read it." 
 
 " I couldn't, as I had not got my glasses." 
 
 "Did he ask you if you knew the handwriting?" 
 
 "Yes, he did; and he told me his mother had 
 written and told him I was there." 
 
 "Did he say he had been making enquiries about 
 you?" 
 
 "He said he was going to advertise for me." 
 
 The course thus clear, the cross-examination of 
 the defendant is now referred to, and that portion 
 of it read where the defendant swore that ihe_name 
 of Bogle never had been mentioned to him until he 
 saw him. 
 
 "But you knew at the time that Bogle was 
 there?" 
 
 ^^I did not,'" swore the defendant in his previous 
 examination. 
 
 "Had not you received your mother's letter?" 
 
 "No, not at that time." 
 
 We have then up to this point, upon the facts. 
 Bogle's absolute contradiction of himself with refer- 
 ence to his recognition of the Claimant, and his 
 direct contradiction of the Claimant with regard to 
 Lady Tichborne's letter, which had informed him 
 that Bogle was in Sydney. 
 
 I will now give another example from the cross- 
 examination of this witness. It refers to the import- 
 ant subject of the tattoo marks which were proved to 
 
MR. HAWKINS' CKOSS-BXAMINATION. 253 
 
 Jiave been upon Roger's arms before he left England. 
 As the defendant had no such marks, Bogle swore 
 that if Eoger had ever had such a thing he, Bogle, 
 must have seen then, for Bogle had been with Roger 
 on three occasions, and had seen Roger's arms bare, 
 and no tattoo mark was there. Positive point-blank 
 swearing this, dealt with in the following manner : — 
 
 "You say," asks Mr. Hawkins, that "on each of 
 ' these occasions Roger had on a pair of black trousers, 
 with his braces tied round his waist ?' ' 
 
 "Yes." 
 
 "Was the night shirt buttoned up to the throat?" 
 
 "Yes." 
 
 "The sleeves, how were they?" 
 
 "Loose." 
 
 "WeU?" 
 
 -'Well," says Bogle. 
 
 "What then? What did you see ?" 
 
 "I saw him rub his arm." 
 
 "Simply rubbing his arm, like this?" 
 
 "He just rubbed one arm and then the other." 
 
 "Both at the same time?" 
 
 "No, not both at the same time ; first one and then 
 the other." 
 
 "Do you know why he rubbed his arm ?" 
 
 "I suppose it itched 1 I don't know." 
 
 "But what did you think when you saw him rub- 
 bing his arm ?' ' 
 
 "I thought he'd got a flea," says the innocent 
 Bogle, little dreaming how big a flea that was. 
 
254 ILLUSTRATIONS IN ADVOCACY. 
 
 "A flea!" says Mr. Hawkius, amid immense 
 laughter. 
 
 "Yes, I thought so." 
 
 ''Did you see it?" 
 
 "No, of course not, Mr. Hawkins." 
 
 Where abouts was it? Just show me?" 
 
 Bogle points out the place, just about two inches 
 above the elbow. 
 
 "Can you tell me what time this was?*' 
 
 "About ten minutes past eleven," says Bogle. 
 
 "That's the first occasion." 
 
 "Yes; but it occurred three times, I've told you." 
 
 "And on each occasion you had the same oppor- 
 tunity of seeing his naked arms?" 
 
 Just the same." 
 
 Now let's come to the second occasion. Did he 
 do the same thing?" 
 
 "He did the same thing." 
 
 "Was this about the same time?" 
 
 "About the same time." 
 
 "About ten minutes past eleven?" 
 
 "Yes; because I left him about " 
 
 "I don't want to know your reasons. Did he just 
 rub one arm so, and then the other so?" 
 
 "Yes; he was rubbing his naked arm." 
 
 "And each time you had the opportunity of see- 
 ing it?" 
 
 "Each time I saw it." 
 
 "Rubbed it outside?" 
 
 "I don't know what you mean by outside." 
 
 "Did he always put his hand inside?" 
 
MR. HAWKINS' CROSS-EXAMINATION. 255 
 
 "Inside of a shirt," says the confused Bogle; 
 "Always put his hand in — I don't know." 
 
 "But* I want you to know — ^you recollect it you 
 say?" 
 
 "If your shirt was unbuttoned, and you was rub- 
 bin' your arm, Mr. Hawkins, you would draw your 
 sleeve up." 
 
 "Never mind what I should do," says the cross- 
 examiner, "I want to know what you say Roger 
 did. Why do you think he rubbed his arm this 
 time?" 
 
 "I suppose the same as before.' 
 
 "A flea?" 
 
 "I suppose so." 
 
 "But did you see him, Bogle?" 
 
 ''I told you, Mr. Hawkins, I did not." 
 
 "Excuse me, that was the first one." 
 
 "Well, this was the same." 
 
 They had to wait some time, because the laughter 
 was perfectly irresistible, and no amount of usher 
 power could restrain it. And upon so important a 
 point this laughter was as good as many witnesses 
 against the theory of their being no tattoo marks, 
 and Bogle's evidence of their non-existence. At 
 length Mr. Hawkins continues: — 
 
 "You say there were no buttons on the sleeves. 
 Bogle?" 
 
 "I don't believe there was, Mr. Hawkins." 
 
 That is a good fair start for witness and counsel. 
 It begins like a nice friendly conversation, as calmly 
 as possible. 
 
256 ' ILLUSTRATIONS IN ADVOCAOT. 
 
 "Do you know," asks the counsel, "whether there 
 were buttons or not?" 
 
 "I don't believe it." 
 
 » 
 
 "But do you know?" 
 
 "I do not know." 
 
 "But I daresay you know this — that if a man has 
 no shirt-buttons his sleeves would fall open a good 
 deal?" 
 
 "I know every man has shirt-buttons, but they 
 come off." 
 
 "Were the sleeves made to button?" 
 
 "Yes, of jcourse." 
 
 ' 'And on every one of the three occasions it hap- 
 pened to be unbuttoned?" 
 
 "Each time I saw it." 
 
 "Now let us come to the third occasion. Do you 
 recollect that?" 
 
 "I do." 
 
 "Do you recollect which arm you saw?" 
 
 "1 saw both." 
 
 "Both arms up to the elbow?" 
 
 "Occasionally." 
 
 "Just point out where it was you saw him 
 rubbing." 
 
 Bogle points out the spot. 
 
 "That's the same place as before ?" 
 
 "The same place." 
 
 The same place on all three occasions?" 
 
 "Yes." 
 
 "With sleeves unbuttoned?" 
 
 "Yes." 
 
MR. HAWKINS' CKOSS-EXAMnSTATION. 257 
 
 '•Why did you notice them particularly?" 
 
 "If you pull up your sleeves," says Bogle, "lean 
 see it without noticing it particularly," 
 
 "But you would not notice my arm?" 
 
 •'If I was sitting with you, and there was two 
 sleeves, and if you rubbed your arms, would I not 
 see you?" 
 
 "You would look at my arm and notice it particu- 
 larly, so as to recollect the circumstance for five- 
 and-twenty years, would you?" 
 
 "I would be noticing what you was doing." 
 
 "Do you seriously mean to say you took notice of 
 his arms?" 
 
 "I seriously mean to say I saw him rubbing his 
 arms, and saw no marks on them." 
 
 "When did you first recall these circumstances to 
 memory?" 
 
 "What circumstances?" 
 
 "These summer evening rubbings of his arms in 
 1851." 
 
 "I don't know." 
 
 '■When did you first of all remember it?" 
 
 ' 'I thought of it when I first heard the tattoo marks 
 mentioned." 
 
 "Yes?" 
 
 "And I said if he was tattooed I ought to have 
 seen it." 
 
 "On the last occasion, did you think it was the 
 flea again?" 
 
 "I suppose so." 
 
 "What time was it? About the same time?" 
 
258 ILLUSTRATIONS IN ADVOCACY. 
 
 "Yes." 
 
 "Ten minates past eleven ?" 
 
 "Yes." 
 
 "Then all I can say is, he must have been a very 
 punctual old flea . ' ' 
 
 Which observation is enough for Bogle and his 
 evidence. It explodes amid a peal of laughter. 
 
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