7483 H31 .884 % ;r%^ £ ^teS'SC'^Si s^*^'- "Y^nf-A J^^A^^^^^.A^ ^^•^'.f^^^Cl^r. 1^^%^!^^^ ' :M1 w^JmrnMi ^a ■ im ^ 'tS/ Cornell University Law Library I ' P * T The Moak Collection PURCHASED FOR The School of Law of Cornell University And Presented February 14, 1893 IN HEnORY OF JUDGE D0UQLA5S BOARDMAN FIRST OEAN OF TME SCHOOL By his Wife and Daughter A. M. BOARDMAN and ELLEN D. WILLIAMS Digitized by Microsoft® Cornell University Library KD 7483.H31 1884 Illustrations In advocacy :including two 3 1924 021 716 653 DlnrnpU ICam ^rlyonl ICibtaty Digitized by Microsoft® 5-7 /I '"?-/3 -L - (o 3 Digitized by Microsoft® ILLUSTEATIONS ADVOCACY. Digitized by Microsoft® This book was digitized by Microsoft Corporation in cooperation with Corneii University Libraries, 2007. You may use and print this copy in iimited quantity for your personai purposes, but may not distribute or provide access to it (or modified or partiai versions of it) for revenue-generating or other commerciai purposes. Digitized by Microsoft® ILLUSTRATIONS IN ADVOCACY, INCLUDING TWO BREACHES 0! PROMISE OF MARRIAGE; ANALYSIS OF SIR HENRY HAWKINS' SPEECH IN THE I , TIOHBOElSrE PEOSE0UTIO]S" for Perjury. HIS CROSS-EXAMINATION OF " OLD BOGLE " AS TO THE TATTOO MARKS. ANALYSIS OF CICERO'S DEFENCE OE R0SCIU8 for Murder. COUNTY COURT ENTERTAINMENTS, 91 ?§umfile 9[titrresf£J to our future Bulrgeg, By RICHARD ^ARRIS, BABBISXEB-AT-LAW, MIDfSlTU CIBGUIX, , Author of " SA.-nt2 on JMivocacy,'* " The Swmoroua Story of Tarmev BumpHn's Lawsuit,** ^c, Sfc. LONDON: WATERLOW BRO«- & LAYTON, 24, BiBOHiir LAirs, B.C. Digitized byi^^/osoft® Digitized by Microsoft® PEEFACE. 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 (nomi- nally) 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 to be teachers. Many of them are so full of instruction, 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 bountiful stream ! Digitized by Microsoft® yi PEEFACE. V 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 honours, 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. RICHARD HARRIS, Lamb BuiLDmo, Temple, London, July 1st, 1884. Digitized by Microsoft® CONTENTS, A Breach of Promise of Marriage (showing " the awful clear delightful depth of things") -> . . . 1 Another Breach of Promise {showing the advcmtages , of poverty) -.--.. -.-22 An Action showi/ng that the most virtuous of men may fail to obtain the approbation of a Jury - - - - 36 A Hopeless Case {showing how sometimes innocence itself may rum the risk of being convicted) 64i Against a Railway Company (showing how necessary it is in advocacy sometimes to apply the break) - - 73 An " Akrangement in Black and White " 83 Against Promoters (for taking too scmguine a view of things) - ■ - - 95 An iNSnRAifCE Case (in which appear t/iao " devouring elements " — a Fire and a Lawsuit - - 106 Jack and the Bean Stalk (showing' that a "leader" may sometimes go one woaj amd his Coach another) - - 118 A Defence in Murder - - 128 Peeping into a Jdbyman's mind - - - 141 Two Modes of Oeoss-examination (being all there are) 143 A most Important Case of Stealing a Hen - - - 149 Amateur Cross-examination - 157 Mr. Bagpipes (one of Her Majesty's Counsel) - - - 160 The very Small Dust of Advocacy, that never affects the Scales of Justice - - - - 166 Cicero's Defence of Roscius- . - - - - 169 The Story of the 'Tichborne Claimant - - 183 The Cross-examination op the Old Gentleman (Bogle), by Mr. Hawkins, Q.C. ■ - ■ . . - 227 How TO Cross-examine for your Opponent (not by Mr. Hawkins, Q.O.) - - - - - - 240 Digitized by Microsoft® Till CONTENTS. CotjNTY CouET Entertainments Cecil Stanley Jenkins, Esq., Q.C. - Wit, Wisdom and Whim .... " Never was anytMng better perpetrated ' ' " What says my Bully-rook ? " Importance and Modesty How the great Wiggins was nonplussed - How "Jolly Jemmy'' (the bargeman) was committed for Contempt of Court - ... 296 An important and elaborate judgment . - . 305 Coimty Court Practice .... . 310 A Humble Address to our Future Judges .... 315 253 257 264 274 279 284 289 Digitized by Microsoft® PRELIMINARY. " Then slowly climb the many-wmding way. And frequent turn to linger as you go." Child; KaroJd's JPilgrUnaije. In writing these illustrations I have endeavoured to effect tkree objects : — ^first, to give the young advocate some warning of the dangers that lurli in his path, without alarming him ; secondly, to indi- cate the means of escape, without involving an inglo- rious 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 former you may fix as landmarks to guide your course ; the latter you can scarcely hope to appropriate 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 per- fection, and even approach its enchanting confines ; but the way is rugged and wild, strewn with the errors of those who have preceded us, and dan- Digitized by Microsoft® X PEELIMINAET. gerously near the treacKerous quagmires, towards which the spectral dazzle of cross-examination, lures, us to destruction. If I presumed to set up as an adviser of reckless youth, I should say seek only to avoid blunders ; 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 attention from its duty. Labour not to be rich in display, 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 fascinating Art j 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, frpm hedge to ditch; where nobody's 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, tUl 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 haphazard kiad of business that has to be done mechanically, as the ofB.cer administers the oath to the jury. You may see everyday advocates cross-examine as though Digitized by Microsoft® PEELimiNAET. XI their object were to develop, not tlieir own case^ but tteir opponent's. They ask questions which the other side cannot, or dare not, ask ; and, instead of breaking down their opponent's case, they build it up in the strongest possible manner, as though they had been retained on the other side. Nor is this unskilful mode of proceeding 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 so 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 gradients of the line, or the signals ? What if you don't know how to regulate pace and put on and shut off the steam ? and how to apply the break when necessary ? Where, I wonder, will your passengers 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 treatment, even with the tender nurturing of an experienced 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 pretty and the promise broken ; no Digitized by Microsoft® Xll PRELIMINAET. substantial damages, under the circumstances, could have been secured witbout some untoward event. There might have been a farthing or a withdrawal of a juror. I have chosen a curate of High Church pro- clivities, as the defendant, because it will make the case more interesting, and lend an additional charm to the fascinating 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 in- tense and the action religiously picturesque. Digitized by Microsoft® ILLUSTRATIONS ADVOCAGY. B Digitized by Microsoft® " Admire, exult — despise — laugh, weep, for here There is such matter for all feeling." Byron, Digitized by Microsoft® A BEEACH OF PEOMISE OF MAEEIAGE. THE COUKSE OP ADVOCACY DOES NOT ALWAYS ETJN SMOOTH. " The awful, dear, delightful depth of things." — Brooke. From a somewhat careful observation, I have re- luctantly 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 phraseology, 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 utterly 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 (fown the good cause of his opponent B 2 Digitized by Microsoft® 4 ILLTJSTEATIONS IN ADVOCACY. I he is a long way on "the road to establishing his own. Suppose then we start with an interesting action for breach of promise 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 all probability the damages 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 distasteful 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 con- fiding fair one, whose chief prospect in life is a happy marriage. Abused this form of action unquestion- ably is, and so is every other form ; but it has mainly been brought into contempt by the ridiculous handling which it has undergone by unskilful advocates. In a business-like manner it is seldom managed. Sometimes counsel think it an occasion for humour ; but if it were how many advocates are there who possess this quality ? Wh.at humour is ther^ in the ordinary speeches that too often trans- form 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 humourous 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 Digitized by Microsoft® A BEEACH OP PROMISE OP MAEEIAGE. O 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 a smile, and not the humour of the counsel. The- same laughter is produced when he attempts the sentimental. He unconsciously, and in a mild and shadowy form, imitates Serjeant Buzfuz. He is Buzfuz without his power. He does not reach the hearts of the jurj', 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 posi- tion she once occupied with her heart at her own disposal, for that heart is already given away, although given to one who is unworthy of it : but you can do this, gentlemen, 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, 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 — it 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 of the action for breach of promise. Punishmeiit is inflicted for a crime or a misdemeanour. A breach of Digitized by Microsoft® O ILLTTSTEATIONS IN ADVOCACY. promise is neither tlie one nor the other. And although the advocate probably intended his remark to be figurative, the judge will so strip it of its figuratiyeness, that it will appear as a naked untruth at last, or worse, as a legal deformity. " The mea- sure of damages," the 'judge will say " is what the plaintiff has lost by the non-performance of the contract, and anything you ma.y award as compensa- sation for injured feelings. No punishment to the defendant. Cases are too frequently opened as the boy opened the bellows to see where the wind came from. With these prefatory observations I will introduce the reader to the Court where this exciting action is a,bout 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 ecclesi- astical romance. The action is brought by a very interesting and strong-minded lady ; against an interesting High Churh curate. Some talk there has been of a settlement to this effect, that there shall be no damages and each party pay his own 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 ar- ranged 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. Digitized by Microsoft® A BEEACBC OP PKOMISE OF MAEBIAGE. 7 It is a great satisfaction to the eager public wHo iave come so far to see tlie 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. Eosy-cheeked country lasses beamed with excitement and modesty. F^ir 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 rustle of expectation there is in the galleries ! You can almost hear the beating of their tender hearts, 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 examinatipn-in-chief ; and the most that will ever be learned from those sources of informa- tion, imless 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 Digitized by Microsoft® 8 ILLUSTEATIONS IN ADVOCACY, a serious contract. Contract or no contract was the first jpoint. The pleadings said tlie promise was con- ditional, 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, comfortable living. So there was business to be done in this opening ^ and the business was to show fulfilment of the condition, or waiver of it by the defendant, or a- subsequent unconditional contract. To the latter part mainly the counsel's efforts were directed, although, by means of an interesting correspondence, they endeavoured to establish not only this point, but the waiver. So you see there was something 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. Bless you, he knew the value of his opponent's cards by one or two inadvertant observations. " 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 favour, and therefore it is best to/see every' page of this de- lightful 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 ghosts nowadays, so there is something more than a suspicion that in the mind of the defendsint there is substance in the letters objected to. First point reader, which " h^^^/pu^d m^e a note of." A BREACH OF PROMISE OP MARRIAGE. 9 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 he time enough to touch up the feelings of the jury when he rephes. You may sometimes advantageously 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 submitted to their judgment. Let us have the business first, and if that can be satisfactorily settled, the time may come when sentiment may be invoked as a powerful aux- i iliary 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 plain- tiff, and the injury to her feelmgs, all which topics must be handled without maudlin sentimentality 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 mattered that th^, 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 evidence. If you pro- mise you must perform, or — pay. The defendant pro- mised a curate, and did not deliver him. That's the simple case. I am not going to write the tittle-tattle of the Digitized by Microsoft® 10 ILLTJSTEATIONS IN ADVOCACY, trial for the amufiement 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 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. JK your facts can do this you need not, ^fj;hey_ 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 too heavily freighted, one would think, for the wife of a curate — more adapted, perhaps, for the consort of a bishop. Her capacity for letter-writing was known by its fruits, of which there was an abun- dant harvest. How the love-making began need not be written. Everybody knows that with the Church it must begin humbly with thfe slippers. It is a malady, as young ladies are well aware by unmistake- able 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, stoles, albs, alta,r- frontals, chasubles, and the rest of the gaudy eccle- Digitized by Microsoft® A BREACH OF PEOMISE 01' MAEEIAGE. 11 siastical millinery so dear to tlie female heart; and there was much interesting evidence of the endear- ments that sometimes spring from the sweet 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 esamination- in-chief — there was not a gap discoverable any- where. It was like a charming piece of ecclesiastical embroidery where the pattern is graceful and com- plete, and you see the golden thread everywhere in its simple and tasteful beauty. Still, there was an impression throughout the Cotirt 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 possessor of strong feelings ; in fact, she was what you might call " clinging " in her loveliness. The attitude she assumed in her devotion reminded qne of the position of the con- fiding 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 s^irong, confiding, clinging, sentimental, religious creature, who throws Digitized by Microsoft® ]2 ILLUSTRATIONS IN ADVOCACY, 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 injured. 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 companionship and convenience," the having some one to care for and to comfort him, the slipper- working and the slipper-warming ; the getting-up of evening classes, the discussion of abstruse doctrines of divinity, the reading together in the Greek Testa- ment, the discourses upon the Athanasian creed and the colours of the curate's vestments. All these and a hundred other pious incidents of ecclesiastical life in a country town, were but common-places which might have been compatible'with platonic friendship. What an 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 plaintifE looks at the downcast, hapless 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, very 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 volcanic eruption were imminent. This touch of genuine 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 quin- Digitized by Microsoft® A BREACH OF PEOMISE OF MAEEIAGE. 13 tescence of acting. At this supreme moment every female eye, moist with, sympathy, was turned upon the defendant. Every feminine heart palpitated with an indefinable yearning ; and every gentle bosom heaved with tender emotion. At this ecstatic moment what an interesting creature the High Church curate was ! Never in any Court was pro- duced such a delicate and dehcious 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 deptihs welled out the passion of those bygone days ; and, oh ! what a depth it was ! Very, very deep ! As the learned counsel for the defendant artisti- cally arranges his papers, and with ceremonious dignity rises to cross-examine this heart-broken plaintiff, 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 dis- section. All depends upon this cross-examination. | The Church can hardly go into the witness-box and deny the promise or the breacji. She may sit in Court and suggest questions, expose secrets, and otherwise assist the plaintiff; but there is no cer- tainty about her submitting herself to the ordeal of cross-examination. The counsel needs to be subtle, j acute and skilful, 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. Digitized by Microsoft® 14 ILLUSTRATIONS IN ADVOCACY. "Now," he asks, with placid and gentle tones, "did you frequently converse with him about marriage ?" "Oh, yes," answers the plaintiff; "frequently — frequently It was his constant theme." " You liked it I suppose ? " Oh, yes. It was agi-eeable." (A sigh.) " You were desirous of marrying him ? " " Certainly. Why should I not be ? I loved him." No bashful reserve you see ; no insipid hesitation. All was business-like and straightforward ; pure as the stream and open as its 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 9 " "Oh, yes; many times." (How she helps the learned counsel in his cross-examination !) "And said he would not marry until he had a living of his- own ? " " He did. 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 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." Digitized by Microsoft® A BREACH OF PKOMISE OF MAEEIAGE. 15 " 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 to many. Tou have to tryj 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 ofeered?" " Oh, yes ; and I have the letter to prove it ! " " 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 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 appreciable weight of damages. There had been too abundant spiritual excitement ; too much slipper warming. The mystical union of souls had been Digitized by Microsoft® 16 ILLtrSTEATIONS IN ADTOCACY. too frequently insisted upon ; and it was somewhat difficult to ascertain whetlier 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. I As a rule, a defendant in a breach of promise I should not be in Court, unless his personal appear- I ance 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 intense 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, when the answer was given (equally interesting), all those eyes immediately turned and riveted them- selves on the reverend defendant. It must have been 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 phenomenal question shoots across the legal firmament, arising, no doubt, from special instructions, which gives im- portance to the case ; the whole atmosphere, in fact. Is ablaze. "Is it not a fact," asks the counsel, "that the Digitized by Microsoft® A BREACH OP PEOMISE OP MAEEIAGE. 17 defendant and you were three weeks in the house without anyone else being there ? " A pregnant question truly ! What a flutter there was in the gallery ! Now the scandal's coming ! "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 a reputation to support, have so alarmed the heavens with mere fire- works. Oh, no, something must come of it, if its bnly an earthquake. To change my simile, this love in a cucumber-frame, (I mean this clerical forcing- houjj^n? 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 certaimty that the answer cannot injure your client. The dear girl was taken all aback ; up went her handkerchief to her eyes, and she made a succession 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. Everyone pitied her, except the counsel for the plaintiff, and they pitied the defendant. Digitized by Microsoft® 18 ILLtTSTEATIO;NS IN ADTOCACT. " 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 distressed 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. Tou can't get over a big thing like that in a moment, whatever your courage and virtue may be. 1 I never knew why the question was asked, and if j 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 decfeived 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-examination, 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 relatives. But, unfortunately for. him, such is the springiness or elasticity of the fair sex in actions of this nature thait she recovered sufficiently to be re- examined — just sufficiently, and no more. And in ( what a grave and business-like manner she was re- Digitized by Microsoft® A BBEACH OF PEOMISE OF MARBIAGE. 19 examined ! All amusemeiit had vanislied. Things ' tad assumed a serious aspect, approaching almost to indignation. The earthquake must come. The defendant hung his head, as well he might, re- pentant when too late, but bearing with Christian meekness and resignation the pitiless storm as it bore down upon him. From all sides the storm came; even from the galleries, because, after excit- ing the curiosity of the fair auditors with an appear- ance of approaching scandal, it was a shame to leave it ungratified. What ! shall there be no stain upon the plaintiff's character P What could be the mean- ing of such a question unless it was to be followed up by at least an insinuation that the plaintiff was. no better than shebught to be. It was cruel (not to- her, but to the fair sex in the gallery), and the dis- appointment 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 ques- tion ; 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 2 Digitized by Microsoft® 20 ILL0STEATIONS IN ADVOCACY. invectives, and points to him 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. Tou could tell 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 aiigry 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. Tou couldn't go into pounds, shillings and pence; all that was beside the question. Thejurv 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 pay after the exhi- bition he had made of himself in Court. Mr. Long- fellow's clap of thunder burst with blessings on the plaintifE's head, and down came a copious shower of golden damages. There was no need to awaken sym- pathy ; 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. Digitized by Microsoft® . A BREACH OP PEOMISE OP MAEEIAGE. 21 The fair sex drew in its breath, and speculWed on its own chances of a verdict on some future day. The plaintiff was being comforted and soothed with sal volatile and eau de Cologne when tlie verdict was returned, and she just revived in time to be escorted out of Court by her sympathising solicitor before the fair sex could rush from the gallery and make her a gaping stock in the hall and the streets. 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 ! Digitized by Microsoft® AJSrOTHEE BREACH OF PROMISE. THE BLESSIIfGS OF POVERTY. In all cases tact and judgment are indispensable to success. Wliat may be called " slogging advo- cacy," 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 often of vital importance to your client. To arrange your evidence, and to produce your argu- ments 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. AlthoT^h 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 from humble life ; and the advocacy to which I direct attention 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 Digitized by Microsoft® ANOTHER BREACH OF PROMip:. 23 mind, but at the Bai' 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 wealth}'. 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 oratory or ingenious cross-examination. The lesson is a lesson in tact and judgment ; in the mode of dealing with evidence, and, albeit, uncouth and rough, in the manner of disposing of its effect. 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 tissues, 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 tremendous oration, and not know how to cross-examine. A good case made against you will be hopelessly fatal unless you know how to deal with it. Is it possible then, that an illiterate uncultm-ed coffee-house 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 pi'esent when the case began, and so it was Digitized by Microsoft® 24 II,LUSTEATIONS IN ADVOCACY. opened as undefended. It looked an easy winning case, and one for considerable damages. The plaintijff was young and pretty: you would almost be inclined to give her five-and-twenty pounds for I 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 stonger sex — is always a, factor fwith which tho advocate must reckon. The learned I 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 ; attempted ■; 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 a simple manner, that the artless 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 up, in came the defendant. What a marvellous sensation was produced by his appearance ! 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 appearance quite lowered the plaintiff in the eyes of everyone in Court. If the jury would give something for her beauty, they would certainly award nothing for her taste. Damages decreased therefore on the Digitized by Microsoft® ANOTHER BREACH OF PROMISE. 25 view of the defendant, as mucli 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 point for him so efPectively ; 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- pre- senting a picture by cross-examination. He certainly could not do it by bullying the plaintiff, although he might have considerably increased the damages. If you are not an artist, you need not smudge everybody who comes into the witness-box with a tar brush, and think you are touching up their complexions — that is not the way to make yourself look beautiful, even by pontrast. But now comes a second 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 also see that he puts them ai'tf uUy if not artistically ; and forcibly, although not scholarly. He has no elocu- tion 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 appre- hend. He can cross-examine, too, although he has not had an hour's practice. He asks just the ques- tions that are likely to produce favourable answers. He understands what he is doing, and why he is asking every question that is put. He knows what is wanted, and his principal object is to convince the jiu:y that the occasion of the breach of promise was Digitized by Microsoft® 26 ILLUSTBATIONS IN ADVOCACY. not his ; that, although, he broke the promise, it was in consequence of the conduct of tht 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 imputa- tion 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 Avay 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. The coffee-house advocate knew better. In civil causes, whatever cannot be denied had better be frankly 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 m.an know of cross-examination '3 " 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. Digitized by Microsoft® ANOTHER BREACH OF PROMISE. 27 and it was one which involved a reason so natural that the jnry 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 engagement was coldnsss 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 matrimonial 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. 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 ! I aint acquainted with the: , forins of law. If I had had the means of employing- counsel, I should not have been in this predicament." 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 cannot afford to have counsel." Digitized by Microsoft® 28 ILLUSTEATIONS IN ADVOCACY. I presume tlie 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." " Five children ! " exclaims his lordship, with astonishment. " 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 it 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 going to return, and stating that he was anxious Digitized by Microsoft® ANOTHER BREACH OF PROMISE. 29 to get married as soon as possible, as Ms 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 ho received so cold a letter as this here." The letter was handed up, and certainly it did not breathe any very warm sentiments. It was a business- 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 pert ; 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 defen- ' dant'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 marketable commodity. The defendant, however, is as good at answering questions as he is at asking thpm. " 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." Digitized by Microsoft® 30 ILLUSTEATIONS IN ADVOCACY. 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 nsually make a tenant wealthy, and of this opinion seem his lordship and the jury. " And more than that," says the defendant, " They Ve nearly doubled my rent this last year, and that has nigh doubled me up. I could hardly get a living before, and now I don't know how I am to live. The business is worth nothing." " But you've got some other property, havn'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 Digitized by Microsoft® ANOTHER BREACH OF PROMISE. 31 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 wq,rn you she has sworn that you told her you had." " Its quite right, my lord, I did tell her, and here's my banking book, and your lordship will see that I have put a fe.w shillings a-week in the saving's bank 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 pawn tickets, £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 answered : "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." Theimaginary "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 plain- tiff 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 capacity to Digitized by Microsoft® 32 ILLtrSTEATIONS IN ADVOCACY. pay damages is the next object of tlie plaintifB's counsel. As a rule, I think this part of the business 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 himself for every question. The position of a man as a general 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 yoti 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 positions, 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 every- one supposed it was the particular "old gentlemen" so often referred to by persons 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 defendant to have been a very active agent in the promotion of this breach of premise. But the dirty book is produced, Digitized by Microsoft® ANOTHER BREACH OP PROMISE. 33 and the defendant is a^ked " what he has got there," generally a dangerous question enough, for, like a needle, it often draws with it a thread of evidence that stitches the parts of a ragged case together. " It's an account of my tahings," ■ 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 can see, and it extended over several months, as long at least as the legal proceedings had been on foot. The witness then goes into the coat of bread and butter, cofPee and general expenses, not! omitting the milk ; and there being a milkman on the/ jury, he knows that that is an important item, water] it as you like, in a cofPee-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, " ffe affAient circumstances of the defendant are evidence on the question of damages ") ; his lordship also says the injury to the plaintiff's feelings may be considered. Two items therefore to be assessed. The jury consider these " affluent circumstances," and this " injury to the plaintiff's feelings," and give D Digitized by Microsoft® 34 ILLUSTEATIONS IN ADVOCACY. 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 be'st defence to an action for breach of promise of marriage I ever heard. If you wish to cut doivn 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 advocate in twenty could have done it. Most of them would have tried to break down the plaintiff on the promise or breach, or have endeavoured to show that [the man was justified in breaking the engagement on (account of the character of the plaintiff, 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 her 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 liFsne. Usually an eloquent speech is made against the policy of permitting such actions. But the judge, Digitized by Microsoft® ANOTHEE BEEACH OF PEOMISE. 35 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 for the jury is whether ■there has been a promise and a breach, and if so what d&,mages. 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. Digitized by Microsoft® ' "^ AN ACTION ON A COVENANT CONCEENING A BILL OF SALE. SHOWING THAT THE MOST VIRTUOUS OP MEN MAT PAIL TO OBTAIN THE APPKOBATION OP A JUET. Who is this benevolent old gentleman strolling down the hall with a barrister ? What a beautiful Eembraiidt picture ! The white whiskers and flowing beard, and the silvery hair are thrown into striking relief by the half religious gloom which is cast by the huge dark gothic roof above. His shoulders have a slight stoop, as though he had long been in the habit of ofBering consolation to the afflicted. He looks not unlike an elderly physician. His head, thrust slightly forward, reminds you of the well- known picture of the great Duke : only his features are not so iron-bound, and his nose is not so warlike. As he passes the lofty window through which the sober light streams, he looks almost glorious. His smiling countenance impresses you with its saintly glow, and seems beatific with more than human holiness. Wonder as you may, you will never guess who this semi-glorified gentleman is, nor what his mission. His respectability is manifest to the world, and is evidently a respectability produced and nurtured under exceptionally favourable circum- stances. What a growth of goodness is here ! Digitized by Microsoft® A BENEVOLENT PLAINTIFF. 37 Tropical goodness, my friend ; not the stunted, careworn sapling tliat lives, if it do not thrive, in the chill atmophere and hungry soil of poverty. He has jJrobably come from a May meeting, and is in quest of some object upon which he can lavish the over- flowing compassion of his bountiful nature. What anxious conversation he is holding with his meek- looking barrister friend ! Perhaps he is consulting him as to how he may best provide for some destitute orphan, or distressed widow. There can be little doubt he is on the watch for some helpless waif drifting hopelessly on the troubled tide of humanity. I don't like to be too prying into people's affairs ; and although I am writing for the amusement and not the instruction' of -youth, it may perhaps be pardonable to look a little more closely into the movements of this illustrious and almost luminous m.an. Let us follow; for, although you may not possess the means of alleviating sorrow yourself, it is always pleasant and certainly inexpensive . to see it done by others. Benevolence administering to distress is a heavenly picture ! They stroll up the steps before us on the right, and, gently pushing the door as though they had no wish to hurt it, disappear from our view. We follow humbly and find ourselves in a Court of Justice. As we enter, the case of Hawh v. S;parrow is called on, and the learned counsel whom we have seen opens it — admirably opens it. Poor Sparrow, there is no chance for him evidently ! What a wicked sparrow he seems, to have been ! Years ago, it appears, he was a market gardener, and had befriended a grocer, by lending him, from time to time, sums of money. Digitized by Microsoft® 38 AN ACTION ON A COVENANT. which at last amounted to £160, 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 his 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 t^me after. Thriftless, going from bad to worse, gets into liquidation and so wipes out his debts ; but Sparrow has nothing to do with the liquidation, 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 Thriftless 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 Thriftless. 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 profession, sues Sparrow on a covenant in the assignment of the hill 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 Digitized by Microsoft® A QtTESTION COUNSEL SHOULD SELDOM ANSWER. 39 not lb good subsisting debt or a subsisting bill of sale at tbat time, because all liabilities had been washed away by the flood of liquidation proceedings. The judge nods his head at this, and evidently thinks it an undefended case. The judge is " against'j the defendant :" expresses himself to that effect, and/ counsel for the defendant seems in bad case. It's an up-hill fight when, the judge is against you; but if you believe your sparrow has a feather to fly with, you ought at least to afford him tbe opportunity 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 ever your opponent has made out his own. Let us first of all see what case the plaintiff has, not upon the opening, hilt 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' mttsf answer his lordship, and so you say you believe ycu will Digitized by Microsoft® 40 AN ACTION ON A COVENANT. satisfy his lordship when your turn conies ; at least, if 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 -operations. 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 that very same benevolent gentleman stepping intb the witness-box, and now 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 map of the world. One after another in went continents, Digitized by Microsoft® CROSS-EXAMINING A SPAEEOW-HAWK. 41 rivers, rills, hills, dales, lakes, waterfalls, and every- tliing that goes to make a complete hemisphere. The learned counsel left out nothing, not even so small a county as B.utland ; but I Aave known boys leave out not only a county, but a country as large as Russia, 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. Other- wise what's the use of webs, and what 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 guy-rope and then another till the centre portion, being unsupported, comes down as it must. The cross-examination has been evidently prepared, and every question is carefully and skilfully directed, Digitized by Microsoft® 42 AN ACTION ON A COVENANT. 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 ! 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 county court judges would ask. It seems utterly irrelevant to the question of this covenant, as to whether years ago the respectable plaintiff knew a particular person. Yes, your honours, so it does ; but your honours, as I have often perceived, do not know 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. Digitized by Microsoft® ENTANGLED. 43 needle. But your honours 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 for " 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 iii 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 perceivos 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-examiner. 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 engle would face the sun. " 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 Hawk was executed hy the defendant. A startling revelation, ti-uly ! quite takes the Digitized by Microsoft® 44 AN ACTION ON A COVENANT. learned counsel on the other side by surprise ; never- theless 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 some- how, there being no plank long enough to bridge it. " But," savs the plaintiff, quite gratuitously and quite as foolishly, " he 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-ex- aminer ; 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 asTcs 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. " 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 furniture 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 straig'htforward swearing enough, and unless the counsel really understands the business Digitized by Microsoft® NETTED. 45 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 Jcnom- ledge, or do you swear that you never heard of it ? " Now, then, Patriarchal Hawk, what sayest 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 j^oint to remember in cross-examina- j tion, that, if by a series of questions you can arrive at one, the answer to which must damage your oppo-i nent, you have almost made a cripple of him. The plaintiff being a shrewd man sees his position. He is surrounded by the enemy. He looks, not in front of but within himself, paiases, balances his gold spectacles, and is evidently balancing something else, namely, the respective value of alternative 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 fairly : skilful he will not only get an answer to one charge of his double-barrelled question but to both, and hoth answers shall he 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 dificult question in two. Digitized by Microsoft® 46 AN ACTION ON A COVENANT. ; knowing well enough, from the witness' reluctance what answer he will at last squeeze out of him. " Do you Tinow, 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 con- fident in his play. Wliy should Hawk know that Wob- bler had not carried out his instructions ? and liow ? The how must be that Wobbler must have told him, and the wlvy would have led to the exact fact which presently is proved. So the gentle student perceives as clearly as though he were cross-examin- ing himself that Hawk is well bird-limed, that he quivers on the bough, and oscillates between a yes and a no, and casts about to see what intermediate equivocation will answer his purpose. Then is he neatly pressed in the following manner : — " Mr. Hawk, it's a very simple question — did you know it or not ? " Hawk wants a little more time, so asks that tlie question may be repeated ; and whenever this takes place r.est 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." Digitized by Microsoft® IN DIFFICULTIES. 47 Still no answer, but a clear indication of what is to come. " 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 could pulverise 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. " I did hear he never seized," says poor Hawkj and now he is up to his very beak in difficulties. " Who told you ? " asks Jones, with irritating per- severance. Well, who could have told him but Wobbler him- self; so he is obliged to admit that Wobbler liimself 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, ptobably, after Hawk had, as is proved, written to him for an account of the sale. " Did he write to you ? " " I suppose he did." " Have you got that letter ? " " Oh, dear, no ! " Digitized by Microsoft® 48 AN ACTION ON A COVENANT. " You haye had notice to produce it," " I dare say." Copy letter from Wobbler to HawJe 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. Presses iim 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 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 ! He did not ruin Thrift- less, 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 bill of sale that Thriftless had been in liquidation, and it was a shame to suggest that the covenant about its being a subsisting 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 advan- tage of Sparrow's ignorance in that way. Quite against his principles. Then as to this Wobbler ; he Digitized by Microsoft® AN AETFTJL ATTEMPT TO ESCAPE. 4S liad not heard of hiin for years — insinuating thai 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 artfulness of the patriarch. There was the bond, and althougl: the greater part of the amount for which Hawk tool the assignment of the bill of sale with the covenan; was incurred in the preparation of the bill of sale bj him, yet what could be clearer than the bond! Nothing, except the admirable manner in which the case of the plaintifB was being conducted. " Oh, you lawyers ! " was written on the face oi every juryman. The case is getting interesting. The judge hat long ago seen through it; but we must wait'for th« evidence which has been foreshadowed by the cross- examination. Now, when the reader has well considered th< points of the cross-examination, let him remembei that at present all is suggestion, and if he had to gc to the jury upon the case as it staads, he would have to insinuate thiee things. First, that Mr. Hawk had knowledge of the liquidation before he got the defen- dant to sign the covenant, that it was a subsistent debt. If that point be established, the plaiatifE will 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 intelligent reader. Thirdly, and of greater force than the other two, there was the suggestion, amounting almost to cer- E Digitized by Microsoft® 50 AN ACTION ON A COVENANT. tainty, 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 rele- vant 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 conclusive character, Jones' able junior calls first, the defendant, who deposes to thia effect : — " Knew nothing of the nature of the covenant. The plaintiff knew as much as he did of the circumstances of Thriftless (the jury think a great deal more) . So, in spite of the original strong presumption that Thriftless, signing the covenant with his eyes open, knew what he was about, the jury believe 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. Raising cabbages does not require so much pettifog- ging technicality as raising points or sowing 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-examination and re-examination. Says poor Thriftless:—"! was indebted to the defendant, who had been very kind to me. He had Digitized by Microsoft® " CALLJ!D BACK." 51 lent me money from time to time, and at last he would lend me no more without security, so I gave Mm a bill of sale. Afterwards I became bankrupt." " Did the plaintiff know of your bailkruptcy pro- ceedings ? " " Of course he did." "Why, of course?" " Because I consulted him about them." Here the benevolent gentleman protests, by gesture and facial distortions, that this is the largest amount of perjury ever committed at one time. The witness and plaintiff had been neighbours. The plaintiff had been his legal adviser, and they used to meet and talk occasionally about Thriftless' a^airs. Grimaces, therefore, are no answer to such presump-. tions as arise from these facts. " He told me," says the witness, " what solicitor to go to about my bankruptcy." "Oh, did he?" " Yes, certainly." Poor old patriarch ! What a liar he thought this vritness. How a man could, &c,, &c. The next piece of evidence was that not long after, when he had got nicely settled again, his liquida- tion 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 pladntiff; 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 considerable quantity of plant which had cost £80 to set up and for which the money was borrowed of the defendant. There were tables and chairs, an eight-day clock, a Digitized by Microsoft® " 62 AN ACTION ON A COVENANT. mangle, a grindstone, and, above all, a nice feather bed that lie and Ms wife slept on. All these with other things were taken under the bill of sale. Altogether, about £60 or £70 worth, even if they had been sold by auction. This was a surprising revelation to the benevolent 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 arising. 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 avb existing debt hy selling a man out of house and hoTne'upon it and talcing his hedfrom under him. But perhaps the cross-examination will set matters right, as it sometimes does. " Now, sir, will you swear that it was not the defendant who seized the goods ? " , "I wool." ' Did the defendant never seize ? " '• No, he never did." " Will you swear that ? " " I wool." " Did you not have an execution put in once. "Yes, twice." " And didn't the defendant produce the bill of 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 ? " Digitized by Microsoft® POETIA. 63 " In that there way he did." "Just answer me this. Did you ever see the plaintiff after Wobbler, as you say, seized ? " " I did ? " "When?" " Several years arter." (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 lond. 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 generally effective. What did it matter now that Wobbler had cheated his employer ? The bill was not given to cover Wobbler's delmquencies ; it was only given to cover Thriftless' debt to the defendant, 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. Even a bond may have no merits, an4 may be cross-examined out of Court. Who can tell the configuration of the invisible hemisphere of the moon ? Caution and patience were the cardinal virtues, adjustment of facts the mechanical agent in this case. Digitized by Microsoft® "A HOPELESS CASE." AS TO UNPACKING A JUEY. Mt next case seems to contain instruction fo^ a, young and intelligent advocate, but I do not warrant it. By the early morning post came a letter from a country town to Alfred Jones, Esq. It contained these touching words — " Reg. on the Prosecution of Bowles versus Brown, Jones, Robinson 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 pocketed his greivance and the retaining fee. It is best to take things, especially fees, as you find them. The next scene is the conference at an hotel on the morr.ing of the trial. Alfred had not yet received his brief, and was meditatively smoking his morning cigar when the solicitor entered, apparently 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." Digitized by Microsoft® A CONFEEENCE, 55 " 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 bringing some one special." " Well, what are the facts ? We may as well know something about them." " I'll tell 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 a large proprietor of vehicles, which he lets out on hire to all comers." " To all comers," says Alfred, mentally ; " there's 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 i — " No, there's nothing in that, sir." "Very well ; go 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 thisT-^if we call wit- Digitized by Microsoft® 56 A "hopeless case of stealing and eeceiving. nesses to character, the other side may ask whether they are aware that the man has been tried before for a similar ofEence ? " " And what might that offence be ? " " Burglary, and receiving goods kn,owing them to have been stolen ? " " Is that all ? " " That's all. But he was acquitted of the previous charge, and I'm afraid to call witnesses." " I should thiuk so," says Alfred, in a petulant tone, and knocking off the ash 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 fa.cts 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 about six o'clock Brown goes into his yard, and imder 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 'P " " 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." Digitized by Microsoft® INNOCENT BUEaLAES. 57 " And the day after ? " " About the same as the day before." " Yes ? " says Alfred, making a mental note. " Well," continues the solicitor, who was beauti- fully imposing on his counsel, " he was bid by the butcher 5|d. ; but Brown refused to take it. ' No,* said he, ' I'm commissioned to sell it for 6d., and no less." Another mental note. "'The fict 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 certainly have been hanged. When you say it was taken away to avoid an execution " " I mean that an execution was expected, and — " " Ye,s, 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 meg-t was stolen; and Digitized by Microsoft® 68 A HOPELESS CASE OF STEALING AND KECEITING. the ticket that was in the sheep had got the name of the man whose house liad ieen iroTcen 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." " Yery curious ! Did he make an entry of letting the cart in any book ? I suppose he keeps books ? " " Oh, yes, there's an entry, fortunately." " But no name ? " " 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 Eobinson ; in fact, IS his mother-in- law, and while she was sitting up, with her back to the door, waiting for Eobinson 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 ? " Digitized by Microsoft® AN EXTEAOBDINART STOEY. 59 " No ; it appears slie didn't turn round. Thai'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 Eobinson 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." " 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 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, tJiat's all ! " " That's all he was, sir ; and I believe he's inno- cent as " " As Brown himself. Tes ? " " ' Well,' says Bowles, ' that's my meat, and you don't take it away.' " Digitized by Microsoft® 60 A HOPELESS CASE OP STEALING AND EECEITING. '\ ' 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 to 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 constable driving the cart, and was taken into custody. 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. Up 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 cart 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. Digitized by Microsoft® solicitors' observations. 61 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." Another mental note. "And then I suppose they were all taken into custody ? " " 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 thp brief," says Jackson, " I want to make a few observations " " Please don't — You need not trouble about ob- servations ; 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- Digitized by lyiicrosoft® 62 A HOPELESS CASE OP STEALING AND EECEIVING, thing important ; may try to make something that is important look more important still, or may add to their evidence. This should be carefully watched for. They may contradict themselves. The prosecu- tion may be too eager, and overshoot their mark. They may be slovenly, and omit some important particle of evidence. They may call witnesses not on the depositions, whose evidence has not therefore been previously sifted, or rather shahen together hy an . 'unskilful 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 unpre- pared 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 aboat 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 insight 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 ofiicials 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 jury- Digitized by Microsoft® CHALLENGING THE JUEY. 63 man in the face, and see if you can discover a prejudice either against the prisoner, his trade or calling. You will ascertain also whether there is any appearance of partiality for the prosecutor. I know that a good many readers will wonder how you can tell this before the prosecutor puts in an appearance. My dear sir, do look at that foreman ; 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 ! The 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 con- ducive to the interests of justice. The prisoner 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 catalogue 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 sufficiently impartial 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 Digitized by Microsoft® 64 A HOPELESS CASE OP STEALING AND EECBIVXNG. 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 perceive, ari 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- gi'inned 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 cousel, 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 keenness 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 commensurate with the human understanding. Three more were sworn, and then came a momentary 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 considerable, he was allowed to remain. But what about the next, a sullen-looking man, who never Digitized by Microsoft® WHY NO CEOSS-EXAMINATION ? 66 raised his eyes, but seemed waiting for condemna- tion. You artful one, James Rodger, you want to slip by the scrutinizing glance of the prisoner's counsel. Tour face blushes with conscious deter- mination tha,t no prisoner shall escape, if your " So help me Grod " can help it ; so you sfiall not " well and truly try," nor shall you try this case at all, for you are challenged. Out upon thee ! 'CU!»..> 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 watch, to elicit sqme 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 favour. 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 Asssizes. I mention this to point put 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 may damage the prisoners, I should be glad if he will write to my publishers. If he ctmnot he has his answer to the question. The cross-examination, indeed, was the shortest * Digitized by Microsoft® 66 A HOPELESS CASE OF STEALING AND EECEIVING. that could be administered, and was simply for tlie purpose of establishing tke 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 hnown 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 yehicles. ^ No question of character, you see, but indirect iSuggestions leading to inferences. The prisoner knew a respectable tradesman who was probably known to some of the jury : a kind of reflected moon- , shine 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 splendour which never appeared. Fourth — It was in consequence of Brown's going to this respectable tradesman that the police discovered 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 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 goodpoint to maJce in a charge of receiving. Digitized by Microsoft® DETECTIVE VON BIJSTEE. 67 ' There was, as before stated, no defence for Smith, but Jones and Robinson were admirably defended by another learned counsel, whose assistance to Alfred was by no means unimportant. He knew that Brown's defence would be endangered by any unskilful question, and that his own clients could not i possibly ie benefited hy it. So he put no unskilful'i 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 enquire 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 evidence, which was as follows : — A detective sergeant swore thut he was present when Brown was apprehended. Tha.t he was apprehended by a German detective named Yon Buster. That he heard this Yon Buster say, " Ha ! ha ! Chemmy (meaning Jemmy), we are cooart you at larst — I sed we shood ! " To which the prisoner replied " Well Mr. Buster, its all for money ; you Ttnow its 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 of 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. f2 Digitized by Microsoft® 68 A HOPELESS CASE OF STEALING AND EEOEIVING. 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- rate?" " 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 here ? " " A speener." This was detective wit, but it was not clever, inasmuch 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 favour of t the prisoner's acquittal. Wit sometimes is more i 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." Digitized by Microsoft® THE DETECTIVE CROSS-EXAMINED, 69 " You thouglit 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 mattter with the constable, because, having obtained all he wants as facts, he wants no policeman's ■reasons 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?" 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 he 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 dovra." Digitized by Microsoft® 70 A HOPELESS CASE OF STEALING AND RECEIVING. 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 Buster, 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 enter- tained strong prejudices against so 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 other- wise than suspicious against the prosecution ? Why was not Von Buster or the sergeant before the magistrate ? And why was not Von Buster /lere ? Why was no report of such a remarkable circum- stance made ? And why was there not so much as a memorandum o£ 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 supplement it at the last moment. . Well might the jury shake their patriotic heads in token of disapproval of this foreign mode of proceed- Digitized by Microsoft® POINTS. 71 pjeding. It looked to them like a concocted story altogether. So Von Buster and the detective are well belaboured with good sound invective and honest indignation, until the jury's indignation is fairly excited and in flames agaiast 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 coms 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 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 con- cerned, 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 of&cer. The next point was that, although the respectable 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 we^t 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; Digitized by Microsoft® 72 A HOPE^iESS CASE OF STEALING AJJD RECEIVING. Then he looked round at )^m^ellow jurymen 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 " snch," advisedly, leaving the jury to take it for what it was worth — they would put their own price upon it. Anofther point, not immaterial, was that Brown had actually prbduced the book in which was a note of the 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 vnth a good vigorous attack on the mode in which the prosecution had endeavoured, at the last moment, to bolster up their case ; and, with a scathing eulogy on the continental artfulness and cunning 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 kick and sent Von Buster and his sergeant colleague reeling. He was a vigorous and courageous .ally, and no doubt Brown's acquittal was due as 3nuch to his timely support as to his own counsel's skiU. 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. Digitized by Microsoft® AN ACTION AGAINST A KAILWAT COMPANY, SHOWING HOW NECESSABT IT IS IN ADVOCACY SOMETIMES TO APPLY THE BEEAK. An important class of cases at Nisi Prius is the actioij against railway, tramway and omnibus com- panies for injuries caused by negligence. In general, at starting, everj"- presumption is against the com-^ pany and in favour of the plaintiff. The sympathy of the jury is on the side of the injured; negligence is almost assumed, and the making compensation! appears to be a matter of simple justice and calcula- tion. Apart from any 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 whatever, and as often the ; negligence apart from any 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 per- sons, 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 resisting claims of this kind is a mitigation i Digitized by Microsoft® 74 AN ACTION AGAINST A RAILWAY COMPANY. ', 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 i company. He is a destructive agent rather than a i builder up of unsubstantial theories. But let it not .therefore, be supposed that a real defence upon the merits is of little moment. It is of the very highest importance, and as it is generally looked upon with considerable suspicion and prejudice, is one of the most difficult 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 purpose. 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 bo. J[wo years before the present trial, the plaintiff, a working man, was travelling by the railway from 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 knee, 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 Digitized by Microsoft® FALSE POINTS. 75 exercise of reasonable care. The twelve special heads in mystified chaos accordingly. Some months after ihe 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 at the Royal Courts of Justice, and the cause was once more tried. As I never flatter mortal man I do not wish to be supposed 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 ease 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 inlpress'on the reader that in the open- ing several microscopical points were made, which turned out to be no points, even under the strongest forensic lens. It was through no fault of the learned counsel, but in consequence of the inadvertence 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 favoiir 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 forty minutes late. This point, therefore, twenty minutes smaller than the other. Digitized by Microsoft® 7Q AN ACTION AGAINST A EAILWAT COMPANT. Secondly — It was opened that tlie train made ni three minutes between Whitechapel and Liverpo( Street. This also turned out to be a false point, c no point, for two reasons. First, the train onl travelled a mile and a-quarter in five mivMtes, nc a pace to indicate any extra speed or eagernes to make up time ; and, secondly, a margi of something like four minutes was allowed i timing the arrivals of trains in consequence of thei being obliged at times to wait outside the terminu before they could enter. But there being no obstacl on this occasion to the train running in instead c waiting outside, the three minutes were accounte for, not made up hy accelerated speed, but by no being delayed outside the station. Thus two fals points were made and disposed of, and the proba bility to which they gave a possible existence wa crushed before it had a breath o;£ life. Thirdl — the plaintiff would swear, said his counse' that he went to work seventeen weeks afte the accident, but for eight weeks could only ear twenty-two shillings a week instead of thirty five. A false point truly, because the man ha sworn on the two previous trials that when h ; went to work, after the seventeen weeks, he wa j as well as ever, and earned the same money as iefort This went very directly and forcibly to the man' .credit in cross-examination, and no doubt flashe- one gleam into the utter darkness. I will now tak the points of the material evidence in chief, an alongside of them show the cross-examinatioii leaving the reader to judge of their value. The plaintiff ceased work about half-past thre( Digitized by Microsoft® POINTS HADE IN CEOSS-EXAMINATION. 77 and waited for a man who left his work between four and five. He lived near Shoreditch Station. He was to meet Ms wife at Whitecliapel, and go shoppiag 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 companions, and that, although he himself remained as sober as a judge,. one of his companions 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 trustworthy as to clearness of observation of what took place on that night as that of the plaintiff and his drunken witness. Secondly — the plaintifP, 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 appointment with his Digitized by Microsoft® 78 AN ACTION AGAINST A BAILWAY COMPANY. wife was absurd when neither the time nor the plaa of me'.stihg was agreed upon, and neither went t( to keep the appointment. The story had nothing t( do with the cause of the accident or the merits o the plaintiff's case. But why was a useless start \told ? It was told to account for a fact which th( plaintiff did not know how to account for in an^ other way ; and you may always rely upon it tha when a plaintiff or defendant gives a false reason fo: any line of conduct, he is afraid of the true reasot damaging his case. In this instance, it could onl] damage his case by indicating recklessness of con duct ia alighting, which recklessness would seem t( be the cause of the accident. Fifthly — The plaintiff" did not enquire for hii wife at Whitechapel, but forgot all about her. H( admitted also that he might have been under th( influence of drink on the night of the accident Before he answered the question which was put tc him at the solicitor's office as to whether he was sober, he went to the hospital, saw the nurse who hac attended him on the night of the accident and asked het 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 tc attribute your condition to excitement, when it was not excitement." False points, therefore, made by counsel; falsi testimony given by plaintiff, and false reason! adduced for conduct which required no reasons to b( Digitized by Microsoft® SUPPOKTING A FALSE STOET. 79 given at all. A true story is generally simple enough ; a false one gives the lie to surrounding circumstances, 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 atory is so awkward when it has to be sup-i ported by more than one witness, The companion who was drunk swore he wasn't, and yet he was admitted to be drunk by the counsel for the 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 toohar long time to get out, before he attempted to do so. Another important circumstance was, that he had previously sworn he took hi? ticket for Whitechapel (this was to fit in with the theory of meeting his wife), and now he had to swear he took it to Shore- ditch. Here there was a fact capable of proof attempted to be displaced in order to fit in an im- aginary 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 travelling at more reckless speed than twelve miles an hour. There was time for persons to get out. Plaintiff had not to meet his 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 Digitized by Microsoft® 80 AN ACTION AGAINST A EAILWAT COMPANT. 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. But, notwithstanding all this, how did the accident happen ? He might have been drunk, but still the Company had no right to injure him. 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 plaintiff. Ton have only to prove there was no negligence on the part of the Company. If you can show negli- gence in the plaintiff, well ; and in suggesting this negligence as the probable cause of the accident, all the points made were good, because they gave rise -to probabilities ; nevertheless thewe, although good, were not conclusive. There was the fact of the accident, and the prolahle cause of it given hy 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, hased upon an answer to a question in cross- examination. The plaintiff stated that he knew some trains did not proceed further than Whitechapel, and the suggestion was that he hurriedly jumped Digitized by Microsoft® EAILWAT companies' MIRACLES. 81 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, therefore, was not evidence, and did not induce the jury to stop the case, so witnesses were called, who proved that the plaiatiff 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 carriages. I need, not say there was abundant evidence 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. favour of the defendant Company. Juries, truly, are an incomprehensible l?ody. I do not think the direct evidence on the part of the Com- pany would have been suflB.cient to lead them to the conclusion they arrived at, because it simply went to- show that the train stopped long enough to allow pas- sengers to alight ; that the doors were shut properly,, and that the guards did their duty. All 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 the result of a miracle. Miracles are so rare now-a- days that they are never believed in a Court of a Digitized by Microsoft® 82 AN ACTION AGAINST A RAILWAY COMPANT. Justice. Over-swearing is worse tlian not swearing up to the mark. What you have to look for in the plaintiff's case are false points, false arguments, absurd reasons for reasonable conduct, exaggera- tions, perversions of simple facta, imnatural theories, 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 diflB.cult it is for the most experienced counsel to overcome the prejudice and benevolence that at times, find their way into the jury-box. Digitized by Microsoft® ACTION AGAINST A TEAMWAT COMPANY. AN ABEANGEMENT IN BLACK AND WHITE. My next illustration is an action against a Tram- way 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 negligence precisely of the same character. The reader will smile when I say that> in conduct- Lug a defence much will defend upon the line you take. " Of course it will," he exclaims contemptuously ; but I want to point out,, my dear and impetuous friend, how the true and the false lines run so nearly parallel that it requires careful study awcZ knowledge of human nature to distinguish them. I am deailing in these cases for the most part with leaders, not with inexperienced juniors ; a,nd, if leaders with all their practice, fail sometimes to discern the left hand from :he right, it shows how carefully advocacy should be studied, and how useful models may hecome, whether ;hey are models of beauty or deformity. Have jatience with me, therefore, when I say that much lepends upon the line you take. G 2 Digitized by Microsoft® 84 ACTION AGAINST A TEAMWAT COMPANY. In the present case a middle-aged lady, whos husband was a builder, and carried on his busines at Scarborough, was on a visit in London. Goin| out one morning to " do a little shopping " sh^ hailed a tramcar, which was just in the act of start ing. The conductor stopped the car, and the lady a portly person, was just in the act of getting on t the platform when on it started, and as the lady hai one foot on the step and the other on the ground, lie footing was somewhat unstable, and down she wen on her back with considerable violence. She wa picked up and taken to a doctor's where she fainted was taken to her lodgings, and remained ther several weeks under medical treatment. She the: returned to her home, and, after some time, becomin; worse, called in a local doctor. That gentleman a once perceived that a rib was fractured, and imme diately reported the fact to the mtinager of the Trai Company, who some time after communicated th report to their medical adviser. That gentlemai however, pooh-poohed the idea of a broken rib witl out further examination, although the local doctor' letter had stated that if the Company's doctor woul come down he could not only ' ascertain from th ordinary examination that the rib was fractured, bt could distinctly hear that it was broken when ti patient breathed. But the Tram Company's docto: satisfied with his previous examination, was prepare without further enquiry, to swear that if a rib ha been broken he must have discovered it. One or tw "othe:- doctors would also give evidence that it wc , impossible for a rib to be broken, and not discovered c examination. The reader will bear this in mind, f( Digitized by Microsoft® A SUBTLE CEOSS-EXAMINATION. 85 it will become important on the motion for a new brial. One further statement there was in the local oaedical gentleman's letter to this effect, that " he reported the fact of the broken rib to the Company in order that they might send someone 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 — Bid the car start hefore the plaintiff had time to enter ? The cross-examination of the plaintiff and her witnesses will be amusing. It was clever but un- scrupulous; ingenious but unmerciful. It was clearly not based on any profound knowledge of human 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 valuable as the rib of a builder's wife. It means something you may be sure. The answer was " Never." The foundation on which this question was based Digitized by Microsoft® Qb ACTION AGAINST A TEAMTVAT COMPANY. was this : There had :_it one time been a front-room occupied as a greengrocer's shop on the premises where the plaintiff resided. But even if the plaintiff did keep a greengrocer's shop, it had little to do with the question as to whether there had been neghgence 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 ? " " I don't know." " What do you do ? " "I let his houses and keep his rent-books." " 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 Digitized by Microsoft® " TO THE CREDIT OF THE WITNESS, MY LORD ! " 87 after the car, and endeavoured to enter it while in motion ; a futile endeavour, certainly, seeing that this middle-aged lady had hailed the car while she was about a hundred yards iehind, 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 tramcar, 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 beliind, and only progressing at the rate of two miles an hour. So the cross-examination, admirable as it -was, 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 administered 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 gentleman,, j 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. Digitized by Microsoft® 88 ACTION AGAINST A TBAMWAT COMPANY. The doctor gives his evidence fairly enough ; states how he was called in, examined the woman, and dis- covered the broken rib, evidenced by crepidus ; how that he immediately wrote the report ; that he continued to attend the patient, for which attendance he had charged a moderate sum, not enouffh 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 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 vestry 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 doctor 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 Digitized by Microsoft® MUD. 89 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-examining | counsel, and the witness is reminded by the form of the question that he is on 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 that, sir," will induce him to con- S tradict"his former answer. I come now to the next question which the learned counsel was instructed to ask of this medical gentle- man, 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 Digitized by Microsoft® 90 ACTION AGAINST A TEAMWAT COMPANY. pale and red, and a strong emotion absolutely shakes his fjrame 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; that public sympathy had been on the side of the accused ; that he had retained, ever since, his position, appointments, and practice, and was respected by all who had the best means of knowing his character. 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 I onslaught as this in favour of your client ; and rely Digitized by Microsoft® "the weight of evidence." 91 upon it as a sure maxim in advocacy, that for ] every unjust attack upon private character the jury will 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 favOur of the plaintifp, and ! the jury gave a verdict for £150 : — iiijury, I presume, £60, £100 for the mud. Of course, there was the usual application for a 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 ■wjas 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, my 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 Digitized by Microsoft® 92 ACTION AGAINST A TEAMWAT COMPANT. 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 ?" " Oh 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 offence years before." " How could that affect the case ?" The learned counsel did not see how, although he and everyone 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 artful ia its mancBuvres, 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 Digitized by Microsoft® A JUDGE ON CROSS-EXAMINATION " TO CREDIT ! " 93 their will, are to have their whole life laid bare by / cross-examination, and every unhappy f aiUng or ' misfortune of their early days raked up for the ; purpose of throwing discredit, as it is called, upon , their 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 i 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 overboard^ you may bring her into port. There is often more } art in losing a case than in winning 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 answered, " 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 heen written by the man whose writing it purported to he. The expert was told to stand down. Experts in art have given similar evidence. Digitized by Microsoft® 94 ACTION AGAINST A TEAMWAT COMPANT. Counsel should always be on their guard against experts, the most dangerous class of witnesses you can meet. They do not swear to facts, but to opimions, 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 medical man was singularly unfortunate, since the tribunal could contradict it from its own experience. Digitized by Microsoft® ACTIOlSr AGAINST PEOMOTERS OF A COMPANT. A STAE OF THE FIEST MAfiNITUDE. It has been suggested during the progress of this book, that it might be useful to give instances of advocacy from the State trials. I cannot, however, perceive that any good would result from it. State ) trials are net necessarily great trials, aiiy more than great lawyers are always great advocates. Neither is it to exceptional advocacy that I desire to direct the reader's attention. Everyone has not to defend a royal personage or a covey of bishops, and I would much rather show, if possible, how to defend a common action or a common 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 performance of the minor and unapplauded duties of life. It is the everyday work of the profession that I am illus- trating. The great feats of advocacy illustrate them- ! selves, and after all are not different in kind, but only in prominence and splendour from the simplest work. Big cases are no bigger than little ones. Let [ Digitized by Microsoft® 96 ACTION AGAINST PEOMOTEES OP A COMPANY. 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 perspective must be obeyed in the one as in the other. You would defend a master and his ulave, 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 illusti'ations than sessions trials. What I chiefly want to find are tlunders; 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 won 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 construc- tion and symmetry in its proportions. Much needed here is the advocate's skill in management, for on the other side is an array of counsel by no means to be treated lightly. They are at least three to one against the plaintiff; for, as it appears, several gentle- men of position are charged with fraud. It is said they have issued a false prospectus for the purpose of inducing the public (and ampng them the plaintiff) to subscribe for shares in a certain commercial com- pany. The socialjposition of the defendants, there- fore, is an important element. Now, several things have to be established before a verdict for the plaintiff can be found, and in order Digitized by Microsoft® "human gullibility." 97 to understand the outline whicli 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 plaintifB 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 knowledge 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 be 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 oper.ing speech must be clear too; it must be so arranged that there must stand out before the jury the 'position of the defendants, 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 mode 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 advocatp. He makes a good start, because he calls the attention of the jury to " human 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 Digitized by Microsoft® ^ 98 ACTION AGAINST PEOMOTEES OP A COMPANY. 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 pro- bability, be brought to light. JIuman gullibility is always interesting, from the gypsey fortune-teller's ■vulgar imposition to the spiritualistic 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 defendants /or /rawc^Mfewi 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 through- out the trial will be always present to their minds. As we listen with intense interest we wonder what will come next. We have a first-rate advocate to tell us, and, therefore, had better listen. He will be sure to give some important fact the place of honour, 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. Tpu 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 Digitized by Microsoft® THE WAY TO OPEN. W defendants. This was necessary in order to the bomplete 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 occupations 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. 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 particular product from the seeds and fruit of a, certain vegetable. Hookey in fact was a trustee for himself and the other defendants. The next step was to sell the patent rights to a gentleman named Albert Montague Strawman, 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 aforesaid patent, and £20,000 iii cash or shares fully paid-up H 2 Digitized by Microsoft® 100 ACTION AGAINST PEOMOTEES OF A COMPANT. in a company which, was to be started by the said Albert Montague Strawman, to be called the "ChocO' late 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 favoured ? 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? vrith various other questions not unimportant at this stage of the enquiry. Next comes the story of the prospectus. Strawman being chairman of the Company, and Eomney the soliijitor, they drew out this important document : " 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 published in the newspapers describing the merits of this wonderful profluct. It was to possess seven distinct advantages over ordinary chocolate, the distinct advantages being conferred by the sawdust. 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 Digitized by Microsoft® "witty inventions." lOl 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 a first time. Greut 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 nominal capital, and would exceed those of the English Company, which Company had entered into a contract that would yield a return by way of annual dividend of a sum equal to the whole paid-up capital of £34,000. A truly magnificent project, proving the truth of Solomon's words that " man findeth out the Tcnowledge- 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 realty the jury think so if you can form any opinion from their counten- ances. 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 Digitized by Microsoft® 102 ACTION AGAINST PEOMOTEES OP A COMPANY. Companies. That they obtained £50,000 by these meansj and a further sum of £30,000, which was by capitalisation of the royalty. These sums the defen- dants it appeared put into their pockets, although the wonder is that being such public benefactors they did not put them into the pockets of other people. But the defendants did so far take the public into 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 ivent 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 different 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 proba- T^ilities 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 proba- bilities, that is to say, its absurdly exaggerated advantages calculated to deceive only rapacious gullible fools. Digitized by Microsoft® ATTACKING PEOBABILITIES. 103 Sixthly. The £80,000 in the pockets of the defen- dants, which was not a bad egg for a dead goose to lay. Now, I would like to ask what powers of advocacy could overcome such a set of facts as these ? Turn them, twist them as you will, there they are, and, like a glass prism, they present the same surfaces, but throw different coloured rays at every movement. There is only one way for skilled advocacy to meet these facts, although the unskilled would doubtless find m.any. The one way is not to dispute 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, 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 someone 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 vdth 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, j Digitized by Microsoft® 104 ACTION AGAINST PEOMOTEBS OF A COMPANY. although, he has only stated it to the best of his belief, 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 evidence ; are, ia fact, the evidence ; and I wUl endeavour 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 evidence to the probabilities. The defendants 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 beiooled, 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 defendants' counsel said that to establish fraud against his client, who was the solicitor to the Company, it must be shown that he acted not merely as a solicitor, but as an individual. Digitized by Microsoft® MAKING TWO PERSONS OUT OF ONE. 1.05 and lie 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 beheve 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 with- out 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 thistles;" horticulture has not attained that pitch of perfection at present. When it does you may probably 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 defendants, 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 wisiflto 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 con- cerned in pointing out, and I have done so without the remotest intention of casting an imputation on anyone concerned in the cause. I know nothing of the parties, the cause, or the chocolate. Digitized by Microsoft® AN INSURANCE CASE. TOO MUCH EPITHET. This case will illustrate the fallibility of liiiirtan judgment, when formed before the facts are fully known ; the difficulty- which som.etimes arises in advocating a righteous cause, as well as the efPects of prejudice upon the progress of a case. The action was brought by a mechanic against a Eire 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 iu alleging first that there was a policy, and in the alternative of there being 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 counsel for the plaintifB commenced his opening speech by alleging that the Company was a miserable wretched Com- pany, a family party who traded on the poor, and who, after taking the premiums for 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 Digitized by Microsoft® TWELTE "special" HEADS. 107 rapport of a single statement was deposed to, and jvery juryman became a prejudiced and unscrupulous idvocate for the plaintiff. They were a special jury, md wagged and shook their special heads, as every epithet and insinuation were hurled at the deroted 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 f^ct propose to give it before bhe counsel for the defendant Company had been heard; and sent up to the judge whaSt 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 follow : — ■ 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 the pro- posal was accepted by the Company, and the policy ■yr notice of acceptance was sent to him. Five shillings was paid on account of deposit, to be returned if the proposal were not accepted. This was on the 4th February. The' proposal was sent to the manager of bhe Company on the 8th. On the 14th of the same aaonth two events occurred ; the premises were burnt iown, and the Board of Directors refused to enter- tain the proposal. It was clearly established that at Digitized by Microsoft® 108 'AN INSTJEANCE CASE. the time they did so they had never heard of the jwe. But before this was proved the learned judge observed tbat if the fire had not occurred on that day, covld anyone doubt that the proposal would have been accepted ? Here the special heads wagged with conscious wisdom and delightful expectation. Following my lord's leading, the whole band of fiddlers struck 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 Com- pany had Jcnown of the fire, and had refused to accept the proposal for insurance on that ground alone, they would have had 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 accusations of the learned counsel, they would have reflected 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 began by being unjust, and ended in being foolish. They are sometimes so clever and absnrd. Whenever 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 tbe defendants the counsel undertook to prove conclusively 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 Digitized by Microsoft® TWELVE MEERT FIDDLERS. 109 argument, and stares you in tlie face, not-withstanding bte 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 inelts away generally like a snowflake that you examine in the palm of your hand. And in this case I thought the learned counsel did protest too much. He alleged facts too big for proof ; he denounced the defendants and left his denunciations as the only evidence against them ; he insinuated 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 payment thereof j and as if witnesses could never lie. So that point was established to their satisfaction. 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 was said the man would be called who received the accepted proposal from the Board and made out the policy upon it. So that altogether a marvellously good case was opened. No link was missing, and nothing but the Digitized by Microsoft® 110 AN INSURANCE CASE. (' evidence in support of it wanting. But unf ortuna4iely, 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 premium paid to him, and another discharged servant who had been the victim of a similar accusation. But neither of the discharged servants swore up to the mark, or up to any mark whatever. Their evidence 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 lordship with a view of showing that the defendants were liable. Never was there such a battle in a Court of Justice. , The jury practised 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 wish 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 had been burnt. / In cross-examination it was shown first that all I the vilification of the Company was groundless ; there had never been but one resistance to a clain>. before this during the Company's existence; tens of thousands of policies, had been granted and thou- sands of claims paid. In fact the Company stood Digitized by Microsoft® FORENSIC MUD. Ill about as high as any Company could stand, and the learned counsel, who had opened with so much acrimony, 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, miserable Company " or a " family party," but a bond fide respectable body of gentlemen, and we hear no more of attempts to win the case by abusing them. Vitu- peration in fact turns out to be forensic eloquence, that is all. Still, the jury are benevolent-hearted gentlemen,' 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 dis- honesty 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 plaintifE did not prove, as he undertook to do, that the policy was issued, but that it was not, and in this he was corroborated by the two discharged servants. The point remaining, there- fore, was, as to whether the agent had made the alleged verbal bargain, and, it was upon this point that the sagacious jury made up their twelve several minds that he had. Digitized by Microsoft® 112 AN INSTJEANCB CASi!. But the judge was of opinion that eren if that were so, there was still left the question as to whether the agent had authority to mahe 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 matter for the judge than for them. To this the defendant's counsel cheerfully assented, and the plaintiff's counsel being also agreeable, the whole matter was left to be decided by the learned judge, and the jury were dismissed. Now, let it be observed that this jury broke down through their own wrongheadedness. The very sur- render of the case was only in keeping with their previous conduct. If they could have returned their verdict for the plaintiff without hearing the defen- dant'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 pre- judice 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 lordships's opinion has been materailly changed from what it was before he heard the evidence, and his mind is open to be convinced by arguments on the one side and the other. It is clear, too, that, whatever the result, his lordship is glad to Digitized by Microsoft® ABGUMENT AND EVIDENCE. 113 he rid of that special twelve-headed prejudice whicli would not permit so much as . a fair trial, or, indeed, a trial at all before verdict. At the sitting of the Court the learned judge announces that his opinion is in favour of ' the defen- dants upon the question as to whether the agent of the Insurance Company had authority to make the verbal bargain which the plaintiff swore he did, which verbal bargain the reader will remember was, that if the plaintiff paid five shillings, the insurance 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 perceive, was a case in which the evidence had all been given, and the effect of it upon his lordship's experienced mind was adverse to the defendants. If argument can change the judge's opinion, it will be something in favour 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 may not flow in a straight line, and seldom do ; but yon must follow their course if you would trace out the restdt. If Digitized by Microsoft® I 114 AN INSUEANCE CASE. you dodge about for the purpose of making short cuts you will miss some little riyulet, may be, that has increased the volume and even had an effect upon the direction of the current, Jn 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 in- ferences have been adduced, and several false con- clusions 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 ? " — ruot 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- ments 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 — demolished, with all its inferences, while forensic vituperation is col- lected 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 Digitized by Microsoft® TACTS AND PEOBABIMTIES. 115 influence his lordship's mind so as to change it from a present belief in the word of the plaintiff to a f utiu-fe belief in that of the agent ? First, the conduct of the plaintiff and of the agent,'' and the prohaMUties on the one side and the other. The receipt in express terms contradicts the plain- tiff. 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. Another fact 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 practised upon him. Another /aci admitted by the plaintiff was, that the agent had told him that if the proposal was not accepted the five shillings would be returned. Im- probability arising therefrom was, that the agent should have covered the risk for ihe 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, ij he had really been told that the risk was covered. The fact vras he did not go; but having set it about that he was insured in the' ° Digitized by Microsoft® ' _ „ 116 AN INSURANCE CASE. defendants' Company, a letter was sent to him from them, asking him to call. 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 heen told hy 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 plaintiff, however, had not heen asked 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 I been too ready, as juries often are, to let their hearts I govern their heads, in which case justice is in- variably' turned topsey-turvey. They little think, however, in their ignorance of legal procedure, that Digitized by Microsoft® IGNOEANCE, PREJUDICE AND STUPIDITY. 117 verdicts given out of sympathy in tke face of facts and law, entail disappointment and loss on tlie unhappy 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. \ Digitized by Microsoft® JACK AND THE BEAN-STALK. A CUEIOtJS PHENOMENON. " Thither to haste, the region to explore— " Was first my thought." — IPo^e'a Odyitsejj, \ A MISTAKE in advocacy is always worth noting. It 1 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 will 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 Compa^ny 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 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. Digitized by Microsoft® THE "right to begin, MY LORD.*' IK Mr. Kewsea was engaged for the Colliery Company ■while Jack and Harry, two juniors, were retained bj Mr, Tent. When the case was called on, in the ordinary course of things the Griant would have accepted th( admission of the juniors that their client owed th( money, and remained quiet in his colossal strength. But Kewsea was eager to take every advantage fo] 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 Kewses availed himself of that technicality. The pleading! evidently were of more authority than the defendan or his counsel. " I don't care," says Kewsea, " abou your admitting the debt ; the pleadings don't admr it, so I have the right to begin." But it is no always, as the reader Imows, the' horse that is mos rampant at starting which is first to pass th( vyinning-post. I have seen him before now in i very ignominious position at the finish of the race Get a good start if you can, but remember that s good ending is better. In advocacy it is not alwayi wise to stand upon your strict rights. Concessioi sometimes wins. The two juniors smiled together when they hearc their gigantic opponent, with a deep voice, claim th( "right to begin;" .but his voice did not frightes them in the least, for although these giants ar( supposed to eat juniors up. Jack and Harry wer( brave little chaps, and they knew if they could onb get the chance they could slay Mr. Kewsea, so the] sat close up together on their seat behind him, anc swung their legs and touched one another with thei Digitized by Microsoft® 120 JACK AND THE BEAN-STALK. 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 wotdd call the case by that title. " He is to be the G-iant," said Harry, " and we are to be the two little dwarfs he is to try and eat up." One need hardly observe that it is as well before yon 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 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 yoTingest student ! Yes, strange, indeed, but not un- necessary, since the temptation to begin is strong, sometimes almost irresistible. There is much in advo- cacy to learn that comes not of practice, and much to unlearn that comes of slovenly and unobservant prac- tice. Here was not an inexperienced junior making this mistake, but one of the leaders, and therefore Digitized by Microsoft® OPENING THE BELLOWS. 121 one likes to follow thouglitfully and observe atten- tively until the bourne is reached. Mr. Kewsea begins to open. Tou ask what ? My answer is Bradshaw. Not irreverently do I say it, nor as if I would say " bosh I " 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 geography it was fairly well put. Then the subject-matter of the opening changed, and observations were made concerning a pit's mouth. This doubtless had some reference to the coal trade. The Court was next enlightened as to the mode of filling coal trucks, an interesting 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 Digitized by Microsoft® 122 JACK AND THE BEAN-STALK. 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 ^et 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, for nobody but the two juniors could possibly tell what it was going to lead to. The judge, however, care- fully 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, " stop 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 ? " Digitized by Microsoft® A PUZZLING CEOSS-EXAMIlfATION. 123 " 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 some time after." " I suppose the plaintiffs must have known it? " " Oh, yes ; but I have found out- that these coals were not supplied under the corctract." 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. " Tinder what contract then were they supplied ? " " 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 r^ll 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 inunensely, 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 Digitized by Microsoft® 124 JACK AND THE BEAN-STALK. ' 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 Company are got in in cross-examination, a much better way, under the circumstances, than getting them in in chief, because of various damaging g[uestions interposed, and suggestive comments by way of question. This was the very gentleman who supplied the coals, saw that they were sent to the 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 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 witnesses 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. Digitized by Microsoft® THE GIANT WRITHES. 125 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. But the witness agrees, which lets him in nicely for this series of questions. " Were they supplied at the 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. Kewsea 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 ton at two shillings less than the market price ?" That again is an abominably awkward question. Digitized by Microsoft® 126 JACK AND THE BEAN-STALK. and one would tliink framed expressly for the pur- pose of doubling the witness up in a heap. The answer will be as good as a stroke of lightning, answer it as he will, and it will rire Mr. Kewsea's case from top to toe. " No," says the witness, after careful hesitation. " Then, how came you to do this ?" " I knew the defendant was a friend of the directors." Oh, poor man f when you are driven to such shifts as that the judge gets his eye on you ; and in that judicial eye there is a merry, sceptical and half- compassionate twinkle. Now, a little observation will tell. " So, without the knowledge of your employers, 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 matter 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 doing ! He has been corroborated by the other side before he opens his mouth. He fills up the little Digitized by Microsoft® THE GIANT GIVES UP HIS GHOST. 127 gaps as nicely as possible ; contradicts when neces- sary witli such, circumstantiality that you can see the probabilities coming up all over the bed of facts like asparagas 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 style. There is all the difference hetween contradicting and heing contradicted. . 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 ! Digitized by Microsoft® A DEFENCE m MUEDER. 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 vrhich no resolution can allay. You know that every question 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 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 nervoulsness increase, and you feel almost as miserable as the prisoner himself. I cannot tell when you will " come to," but I know 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 dis- comfiture, and I hope for the sake of your clients you will never wholly lose it. Nervousness is _ a Digitized by Microsoft® A DEFiJNCB IN MUKDEE. 129 ZiZ^ySS_E9J?[§JJ'3?tlier JhajLiaLWeakn 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-exami- nation which have been well considered, so that by no possibility can they injure your client, all will be well, so far as your mental condition 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 ! How closely you can examine the evidence. The smallest point is visible ; the most insignificant flaw in that legal chain does not escape your scrutinising 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 fight 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 E Digitized by Microsoft® 130 A DEFENCE IN MUEDEE. nervous?" Nervous beyond all capability of ex- expression — beyond all power of comprebension. 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 yoii/r 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 forget yourself. It is self consciousness 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 minute, with a microscophic 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 witness ; that is your world, and you will find it large enough to engage your whole powers. Tour 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 exhibition of any 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. Digitized by Microsoft® A DEFENCE IX MUEDER. 131 The prisoner was charged with the murder of his wife. The main evidence againt him was the deposi- tion of the dying woman, although it was not a " dying declaration." Without it there could 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 m/uch analytical examination ; this is a mistake in advocacy. It seems, as a rule, to be assumed that as the witness cannot be cross-examined, 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 be cross-exarniined, and cross-examined she undoubtedly was upon every point of her deposi- tions. Her evidence was analysed, her statements. compared, contrasted, and, in one or two material particulars, turned in favour of the prisoner, although 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 she knew a knife was kept, that he came towards her and threatened to k-;n 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 d. policeman, and gave himself up. It is clear that if these facts could be handled skil- fully there was a defence to be made, although it might not be sugc^s|f^^ ^. To^^gquit himself as an 132 A DEFENCE IN MITKDEE. intelligent advocate was all tliat could be expected of . counsel upon wlxom 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 pos- sible, the edge of the most fatal testimony. 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 damning evidence. But this much he has for his comfort — he can do no harm in attacking facts that are clearly and absolutely against him. He may kick these about as he Hkes, with the hope that something may turn up in the scuffle. While he cannot exaggerate a fact he may possibly modify it. A skilfuUy-asked question may produce an answer which will change the colour of a fact. But there is anc(ther 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 prisoner." He is not the Crown, but he is the crowning glory of our Vadministration of justice. No man in this country can [ever lose his life against the conscience of the judge who tries him. Stictly impartial and yet sympathetic ; Digitized by Microsoft® A DEFENCE IN MITEDEE. 133 rigorously justandyet tenderly protective. An Englisli judge trying a man for murder is tlie highest and noblest iQustration of the human character. I say this, not to compliment the Bench, but to encourage the youthful 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 favour. Whether you should cross-examine to a fact which is neither for nor against you depends upon your skill, youi knowledge of human nature, and your confidence in yourself. If you Jcnow that you will not make a mis- taJce, cross-examine by all means, because a neutral fact may be turned to your advantage, and if it be ever so slightly shifted or altered in appearance ii will form the foundation of an argument, while everj argumentinthe prisoner's favour is something towards a verdict. Remember, too, that in cases of life and death arguments will sonietimes neutralise facts. ] say this from experience, and therefore the more boldly. A jury will generally, if possible, escape from thf painful necessity of condemning a fellow creature tc death. Just indicate the way; you need not lead Sometimes, it is true, they are i;oo rigidly con- scientious, but it is not often the case, and theu conscience, as a rule, backs their inclination on th( side of mercy. " I wish I could have cross-examined the wife,' said the defending counsel; something might hav( been elicited to show a quarrel, or otherwise to reduc( the crime to manslaughter. The wish contained th( germ of the defence. The deposition could be cross Digitized by Microsoft® 134 A DEFENCE IN MUEDEE, examined, and, above all, tlie lack of opportunity of cross-examining tlie woman herself afforded the opport unity of a creditable speech. One argument, at all events, there was to start •vvith — 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 all. This was a point to elicit tenderly in cross-examina- tion. 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 without the chance of j being represented by counsel or solicitor. It is a good point if the man is to be condemned upon the 1 evidence of this deposition, and it will surely stand I the prisoner in good stead somewhere, 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 some- thing, hopeless as the case may be, he must do it well, if possible. So he starts with this cross-exami- 1 nation 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 ? " Digitized by Microsoft® A DEFENCE IN MUEDEE, 136 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." A question that must be answered in prisoner's favour. " 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 whiore 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 Rome when the murder was committed ; that is one cir- cumstance, 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. I Next, what did Titus do after the murder? He [struggled to become the accuser of Boscius. It was his -friend and dependant who brought the first news of 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 Ameria with the news ? And why did he go to Titus Roscius Capito first of all, instead of to the unhappy family of the deceased? Then see the expedition with Digitized by Microsoft® CICEEO'S DEFENCE OF ROSCIUS. 181 wMcb. this messenger carried tlie news ! How did lie come to hear of it so soon ? He 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 Gapito, who shaxed 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 Chrysogonus, the hurried sale of the estates, and the sharing amongst them of the property. Next, the suppress- ing 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 muddles, 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 modei than that adopted by Cicero of properly conducting a case. Mr. Bagpipes may suit our age better ; but, if so, it has marvellously degenerated in everything that pertains to real oratory and true advocacy. Cicero Digitized by Microsoft® 182 CICEEO'S DEFENCE OF EOSGITTS. 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 ■xyere 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 aU. His speeches are but a confused torrpnt of commonplaces, and his cross-examination but a haphazard flingp.ng of questions 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 lare 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 perceive an almost perfect likeness between a parent and child ? the same ex- pression of face and tone of voice, the same smile iipon the lips, the same twinkle of the eye, when the features of the one bore no actual resemblance to -the features of the other? If so, he has seen the Hkaness which exists between the true advocacy of -to-4ay and the advocacy of Cicero. Digitized by Microsoft® THE STOEY OF THE TICHBOENE CLAIMANT. ANALYSIS OP ME. HENET HAWKINs'* SPEECH FOE THE PEOSECUTION IN THE TICHBOENE CASE. As the object of telling a romantic story differs from that of narrating a series of facts in Court, sc tiie art is different. The interests also are of an opposite nature. The object of the former is tc entertain without any regard to your belief, while the latter is to impress your belief without anj ■view to your entertainment, except that an artistic advocate v?ill take care to rivet your attention by the entertaining manner in which he unfolds the inci- dents of his story ; but he will not amuse you at the expeuse of his cause, or excite your imagination tc the detriment of your judgment. The interest he excites is in the reality of the facts he intends tc prove ; the charm of the noveKst depends mainl] on presenting fiction, so that it resembles reality The emotions are stirred by imaginary incidents, anc at the emotions his art stops. The advocate, on thi contrary, if he awakens emotion, does so only th( more surely to reach your belief, and when he pro duces a striking situation it is but for the purpose o: impressing its incidents. * Now Sir Henry Hawkins, and one of Her Majesty's Judges c the High Court of Justice. Digitized by Microsoft® 184 THE STOBT OP THE TICHBOBNE CLAIMANT. The noveKst and the dramatist strike a situation in order to heighten the entertainment. I do not say that the advocate will not sometimes waylay you mth surprise, but when he does so it is still with the object of fixing more certainly your behef . If these observations be true, it follows that the mode of unfolding a story containing many striking incidents will be difEerent in the two artists. The novelist may commence where he likes, except at the \ end ; the advocate will generally commence tefore I 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 skiU in its construction is concerned. The mechanism 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 in- numerable that have to be collected, collated, separated 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 appa- rently 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 des- troyed. Digitized by Microsoft® THE STORY OF THE TIOHBORNE CLAIMANT. 185 The panorama of a long series of years lias to be brought before the jury. To unfold it -with the art of the novelist wotild be to produce thrilling and extraordinary effects exciting wonder and sympathy; to perform the task with the ptill of the advocate, will be to fix the belief of theiury without any regard to their emotions. The former would draw from .the reader the exclamation '' "Wonderful ! " The latter must excite the jury at every stage of his progress to say " Impossible ! " The case was 'opened as simply and as dramatically 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 experienced when it was delivered. In the first place it is noteworthy that there need be no waste of words in the exordium of this " mo- mentoas 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 pubKc 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 wiU have to be stated. It is said in few words, and to this effect : In April, 1854, Roger T ichbo rn e, the heir to the Tichbome baronetcy and estates, embarked at Eio on board the "Bella," which was lost, and for eleven long years nothing was know n, or hear d of him. Suddenly, in Austraha, a butchfir—came from the shambles and announced himself as the long lost heir, and in the legal proceedings which were instituted by him for Digitized by Microsoft® 186 THE STOET OF THE TICHBOENE CLAIMANT. the recovery of the estate's, he swore falsely many things in support of his claim, of which these are the chief : — Of course he swore that he was Eoger Tich- bome, the sojuoLihe lost baronet. In support of the story which he told he also swore that he had, while on a visit to Jiis uncle, ^educed his -cousin Kate ; and, it being suggested to him that he was Arthur Orton, the son of a butcheratJWi,pping, 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 gigantic fraud which it is my duty to unfold to you, and 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 every- thing. If this be Eoger Tichborne we shall find some likeness to his former self in his education, character and mind. We shall also find some knowledge of the incidents of his past life and his connection with byegone 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 influence, 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. Digitized by Microsoft® THE STOET OF THE TICHBOENE CLAIMANT. 187 educated in France ; that lie 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 hahits, manners and pursuits; told, says the learned counsel, in detail, bec ause they h ad been denied by the defendant in his cross-examination, while endeavouring 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 vnll go far to shake his character in 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." Roger's good French was mentioned, as also his bad spellinginEnghsh, but akind 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 " to convey to the jv/ry a thorough knowledge of this young man's character and ideas," his way of thinking and style of writing, because the learned coimsel would have to contrast these letters with those of the defendant. Not a bad test of like- Digitized by Microsoft® 188 THE STOBT OF THE TICHBOBNE CLAIMANT. ness or unlikeiiess this .between two minds, if two minds they were. We are next brought to the turning-point of Roger's life — ^his uncle's discovery of his attacliment to his cousin and his disapproval thereof. In consequence of this, on the 12th January, 1852, he left Tichbome Park, where he was then staying, and wrote in melancholy terms of his intention to go abroad for ten or fifteen years. In that month he confided to a Mr. Gosf ord, 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 which were couched in the strongest terms of afFec- tion. In answer to a letter from Lady Doughty he wrote a warm epistle expressing his affection 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. Grosford 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 Eoger Ti.hborne. 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 Tichborne no more; he went to Upton, Digitized by Microsoft® THE STOET OF. THE TICHBOENK CLAIMANT. 189 near Winchester, in the autumn of 1852, to hunt; 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. 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 Eoger 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 skelelton which Eoger sent over to Gosford, and which would be produced. It was produced at 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 Eoger 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 Digitized by Microsoft® 190 THE STOEY OF THE TICHBOENE CLAIMANT. Buenps Ayres. Thence he went to Eio and engaged a passage on board the Bella for New York. He had, in the meantime, written many letters to his aunts, Lady Doughty and Mrs. Seymour, and to Gosford. These will be produced, and important evidence, the learned counsel says, they wiU be, " because they are the evidence of Roger Tichborne himself." In not one of these letters is Mellvpilla mentioned, nor the name of the fcmiily of Castro, with whom the defendant 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 exchange 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 1864, in which he says he is "fond of this kind of Hfe," 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 knew. He then went to Eio, where the Digitized by Microsoft® THE STOET OF THE TICHBORNE CLAIMANT. 191 Bella lay, bound for New York. Jules Berand saw Roger on board, and would be called as a witness ; so would two captains in tbe mercbant service, wbo also saw Mm. Tbe sbip sailed on the 20th 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. "All the world," says the learned counsel, "believed that Roger Tichbojrne was dead. One poor, crazy, misguided soul alone refused to listen to the voice of reason — refused to believe that her iirst-born son was dead. Gentlemen, I have now finished with the life of Roger Tichbome, 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 Tichbome 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 feehngs 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 hot- 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 keen with regard to monetary arrangements, and that Digitized by Microsoft® 192 THE dTOKY OF THE TICHBOENE CLAIMANT. he knew the exact time when lie 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 ira^te.r hand, and I have no hesitation in saying thai it r. '^ild not have been surpassed by human skill. ^ e have him from childhood to youth, from youth to the stripling officer in the Hussars, and onward then a little further till he becomes the adventurous explorer of the South American wilds ; thence onward again to his depar- ture ia the Bella, when we lose sight of him for ever. In all these changes and vicissitudes there is not an instance of his acting contrary to the instincts and breeding of a gentleman. We gather this from the picture of his life, and important it is to remember. 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 wonderful drama. 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 son of a respectable butcher at Wapping. If the defendant is the man, then be certainly is guilty, for he has sworn that he is not." Digitized by Microsoft® THE STORY OF THE TIOHBOENB CLAIMANT. 193 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 Tichbome. 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 Jiine, 1834. He was poorly educated, could read and write, and had a little arithmetic. He was afflicted from infancy with St. Yitus' 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 Orton. 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 fam.ily named Castro,. who treated him kindly. In February, 1851, he left Chili in the name of Joseph Orton, but with the sea- man's nwmher of Arthur Orton. He sailed in the Jesse Miller, came home, and went to Wapping. He had by this time so increased in bulk that he was called " Fatty Orton." He then paid his addresses to one, Mary Ann Loader, the daughter of a lighter- man, who woidd be a witness — doubtless to say that the defendant is her old lover. In December, 1852, he sailed on board the Middle- ton for Hobart Town; James Lewis, captain; one, o Digitized by Microsoft® , 194 THE STOBY OP THE TICHBOENE CLAIMANT. James Peebles, boatswain; while one of tlie 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 of Roger of the same period. The spelling was, indeed, remarkable ; " writing " is spelt without a " g ; " few is written fue ; " enquiring " is spelt enquireen. But this, of course, does not matter if the defendant be not that Arthur Orton; he, in that case not beiag responsible for the bad orthography of the Wapping Butcher. But if he is shown to have written these letters, the probability is the jury wiU identify him with that same butcher. Let us follow then his his- tory. He went in the " Middleton " as a hutcher. In April, 1853, he arrived at Hobart 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 1865. The jury are asked at this stage to bear in mind that at this time Eoger Tichborne was in South America. Orton borrowed £14 from Mrs. Jury, and gave a note of hand bearing date 1855. That, therefore, fixes 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 Newbum Digitized by Microsoft® THE STOET OF THE TICHBOENE CLAIMANT. 195 Park, CHppesland, Australia. In 1856 he was in the service of a Mr. Foster, where he remained till March, 1868. In that month he was at Dargo, which is proved by a document dated Dargo, Ma/rch 11th, 1868. Orion 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 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 evi- dence is corroborated by the deferhdant himself, who had admitted that he was in, the service of Mr. Higgins in- 1865 ; so here is truly a matter of great importance I The man the learned counsel has been tracing all along as Arthur Orton turns out in 1865 to be Eoger- Tichborne ! Could there possibly have been a trans- migration of Eoger's soul? Now, Hopwood, who had knovni 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 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 teUs 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 WMn he had Ttnown in Gippesland, at Dargo, at Boislafid, and at Sale." Digitized by Microsoft® O 2 196 THE STOET OF THE TICHBOBNE CLAIMANT. 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 a 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, Gibhes, 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 Tichbome,' says the learned counsel, ' alone of aU the world, clung to the belief that her son was not really dead.' No tidings had been heard of the Bella, no news of the vessel or the crew, but still she clung to that belief. She was, moreover, not on good terms with the Tich- borne family, and was not satisfied with the settle- ments. 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, supposing her own reason to be blinded by her feel- ings and her delusions.' " A very good and striking way of putting it. No one could do it better than that, Cicero or no Cicero. " StiU, 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 influence or console her was thus silenced, and she at once set to work advertising for her son. In 1863 she advertised Digitized by Microsoft® THE STOEY OF THE TICHBOENE CLAIMANT. 197 in the Times and in tlie Australian papers, and in tliat year the death of her husband, James Tichborne, was announced in the " Home News " m Australia. But it is not easy to ascertain the exact time when it first occurred to anyone that this slaughter-man should set up this monstrous claim to the Tichborne title and estates." But this is clear that it was after the advertisem,ent 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 acqaintance who knew something of the Tichborne family. In 1865,. however, he knew Httle 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 a step : It was desirable to find out what had become of the Orton family at Wrapping. 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 Roger never knew Castro. Here the learned counsel uses a strong argument in the shape of an important question or two, which vfill require a deal of answering, "Why on earth should he have done that? Above all, why should Roger Tichborne write in his own name or anyone else's^ iiame to enquire after the Ortons at Wapping ? Roger, who never was at Wapping in his Hf e, and never- heard of the Ortons ! Yet this man wrote in a feigned name and in another person's hand, and as a stranger, to one, Richardson, at Wapping, to enquire Digitized by Microsoft® 198 THE STOET OF THE TICHBOENE CLAIMANT. after tlie Orton family. How should he have kndwn Richardson ? " — another .important question, giving birth, to a whole family of inferences, The letter was as follows : — " Wagga-Wagga, April 13th, 1865. " Mr. James Richardson. " SiE. — 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 favour I seek. I believe there was, some years ago, living in your neighbourhood 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, «o that I must conclude he has not received 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 for ever feel grateful. 1 beg to say here with pleasure that one of the most notorious ■of the Bushrangers has fallen by a rifleball, and that on the news of his death and doings being properly chronicled, I wiU 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 Arth/ur. I am, Sir, your obedient and obliged servant," Thomas Casteo." Digitized by Microsoft® THE STOET OF THE TICHBOENE CLAIMANT. 199 This letter, defendant admitted, was -written by Ms 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 Roger Tichborne ; but in April, 1865, defendant begins to write the initials R. T. accom- panied with a certain sign or heiroglyphic which Orton always used 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 R. 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 Arm Loader, Russell's Buildings, Wapping." " How," asks Mr. Hawkins, " could Roger Tichborne have her name and address in his pocket- book ?" Then we have another important matter. At Sydney was one Cuhitt, who kept a " missing friends* ofice " and issued advertisements. Lady Tichborne Digitized by Microsoft® 200 THE STORY OP THE TIOHBORNE OLAIMANT. 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 asks Ciibitt to make enquiries con- cerning Roger, gives his age as 32, says he embarked at Eio on the 20th April, and had not been heard of since ; affirms that part of the crew were saved — gives the name of. the lost vessel — thinks her son may have married and changed his name, and asks that enquiries should be made. Advertisement 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 Roger Tichborne; you are advertised for, and if you don't disclose yourself, I shall." He had seen the initials, it appears, " R. C. T." cut on a tobacco-pipe, and this led to the remarkable 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 Gibbes would denounce him to the world. This story, be it remembered, of Gibbes' discovery, 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 Roger 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 Digitized by Microsoft® THE STOET OF THE TICHBORNE CLAIMANT. 201 examination well before he got into tliat regiment — tliat lie never knew his grandfather — Sir James's father having died before she married. Roger was bom in Paris, she continues, and spoke French better than English, she beheved ; 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 until he has been identified, and that must be in England. Here is the twihght of Castro's dawning know- ledge of Roger's early Hfe. What a feeble glim- mer for ingenious fraud to work by ! But even ingenious 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, '64 " (He has got this date from her foolish letter telling Cubitt 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 attorney, and the more private details I will keep for your own Ear. Of odb thing rest Assured, that although I have been in a humble condidition 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 Digitized by Microsoft® 202 THE STORY OF THE TICHBOENE CLAIMANT. 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 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, therefore, 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 Hundred pound, for f 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 Roger Tichborne? " A good question to ask in argument as to proba- bility, and destroys an alleged fact, Then, he says, Roger 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-examined. Digitized by Microsoft® THE STORY OF THE TICHBOENE CLAIMANT. 203 " How was it," asks Mr. Hawkins, " that he did not allude to any of the early incidents of his life? " How, indeed, since he could have satisfied her of his identity by a hundred of them had he been her Tery son. Castro, in the meantime, mentions to several persons that he had St. Vitus's dance. This, Tichbome never had in his life, but we Imow Orton had that 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 Tichbome received the letter she achially wrote to him and achnowledged him as her " dearest son Roger " without a single particle of evi- dence of any kind. No wonder he began to beheve in himself. She writes again and again, giving " scraps of information which were made the most of, and, among other things, mentioned that one Bogle was at Sydney." Bogle had been an old servant in the Tichborne family. Before leaving Wagga-Wagga Castro made his vrill, and that will has an important bearing upon the question as to whether he was Orton or Tichborne. He mentions his mother's name as Hannah Frances, when, in fact, it was Henrietta Felicite. It left property at Gowes, where no Tichborne property was, and at Hermitage, Dorset- shire. There was no such place ; but there was a farm called Hermitage in Surrey, which had been acquired after- Roger left England, There was mention of estates at Ryde, where no Tichborne estates existed. The executors were John Jones, of Bidford, a/n old friend of George Orton, and Lady Hannah Frances Tichbome, " my mother," and Sir John Bird, of Herts, Bart., an imaginary baronet. Digitized by Microsoft® 204 THE STOET OF THE TICHBOENE CLAIMANT. The defendant went to Sydney and saw Bogle, who gave him information on many points. He got from him the Tichhorne Qrest, and he fotmd 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, teUing him that he and his family were Roman 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 Eoger Tichborne had arrived, " con- tinues Mr. Hawkins, " surely he would have eagerly sought his friends and relations ; the Seymours, the EadclifEes, his executor Gosford, and many other familiar friends. But Arthur Orton knew none of them. There was only one home he was familiar vnth, and that was in High-street, WappiTig. There he hurried, and knocked at No. 69." " Whose house was that ? " asks Mr. Justice Lush, by no means intending any dramatic surprise. Digitized by Microsoft® THE STOET OF THE TICHBOENE CLAIMANT. 205 But the answer came witli tlirillmg and sensational effect : " The house of the late old George Orton, my lord ! " That was truly a memorable knock ! " Old George wa^ 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 Glohe. The burly stranger asked after the old inhabitants, and at last after the Ortons. He was told the daughters were married and gone away, and that the father was dead; and then, suddenly, the lelndlady exclaims, ' Why, Hess ine, you are rather like an Orton yourself V ' Oh, no, I am not an Orton,' he said, ' but I am a friend of the family.' ' You seem, to know 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 recognise in him 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 longer Tichbome: 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, the sister of the husband of Digitized by Microsoft® 206 THE STOEY OF THE TICHBOENE CLAIMANT. Mrs. Jury. After sending up Ids 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. "Mt deae and beloved sistee, — 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 England, 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, Aethue Oeton." 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 Miss Loader, saying also that she will hear something to her advantage. The address was Post Office, Gravesehd. The sister believed him to he Orton, and had asked for his portrait ; so in a feigned hand he writes on the 7th January, 1867, and says : — " Deae Madam — I received your kind letter this Digitized by Microsoft® THE STOET OF THE TICHBOBNE CLAIMANT. 207 momiiig, and very sorry to think yon should be so much, mistaken as to tlvinh I am your hrother. Your brother is a very great friend of mine, and whom I regard has a brother. And I have likewise 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 your brother's wife and child this morning. I should have sent you one, but I have only one left, which I 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-ojfice, 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 theTn 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 ! The sisters also recognised the handwriting of Stephens as that of Arthur Orton. So he writes Arthur's hand- writing, and has Arthur's wife and child. He swore that his 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 :— , Digitized by Microsoft® 208 THE STOET OF THE TICHBOBNE CLAIMANT. " 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 veiy much marked with the smaU-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 born 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. TiCHBOBNB." 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 " E. C. T." upon his trunks, no doubt aS a suggestion or invitation to recognition. If he had been the real man, why did he not go down boldly in his own name and declare himseK ? 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 pubhcan, takes him for walks round the Tichbome estate, and gathers from biTn 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 Digitized by Microsoft® THE STORY OF THE TICHBOENE CLAIMANT. 209 ■what many persons thought so wonderful, the know- ledge he possessed of the persons and incidents connected with the Tichborne family. Lady Tichborne, in her imbecility, was first; Bogle was next; and now comes the pubHcan. It was quite time to obtain the assistance of a solicitor, 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 questions to him, and told him he was not Eoger Tichborne. Then the defendant writes to Rous in these terms : — " If my solicitor, Mr. Holmes, writes to you, give him any information you can, and depend upon per- fect secrecy between us." " Who was Mr. Eous ? " asks 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 clerh of Mr. HopMns," says Mr. Hawkins ; "the old family attorney, acquainted with the famiily estates. Eous cotdd give him much information about them, and it was all important to obtain such information before the claimant faced Hopkins himself, as he would have to do. Hence the application to Eous, and hence the hint as to secrecy." He then goes with a brewer's clerh and his attorney to see Lady 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 hi^n such false particulars as might well have raised a doubt in any rational mind. StUl, she refused to doubt. He had talked about his grandfather, whom Roger had never seen. p Digitized by Microsoft® 210 THE STORY OF THE TICHBOENE CLAIMAKT. He said he was a private, whereas Eoger was an officer ; that he was educated at Winchester instead of Stonyhurst; that he had had St, Vitus's dance, which Eoger never had. ' He confesses everythdng as if in a dream,' she wrote ; ' but it will not prevent me from recognising him, though his statements differ from mine.' This was the poor bewildered old lady, who was now to be con- fronted with her long-lost son in the company of two strangers, one of them an attorney ! 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 recog- nise her son through the bedclothes ! This was her meeting with her long-lost son. Then is given the defendant's own accoimt of this affecting interview. " I was lying on a bed, and my ynother was standing alongside of me. I cannot say who spoke first. We conversed a long time. I cannot say if she recog- nised 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. Shrimptonv I 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 Tichborne pedigree and the Army Gazette containing the dates of Roger's military life, and a copy of the Tichborne will, disclosing most important pa/rticulars as to his affairs. Digitized by Microsoft® THE STOBT OP THE TICHBOENE CLAIMANT. 211 Soon after this Gosford met the defendant, and said — " If you are Roger Tichborne, you 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 Roger he could have told at once, and so have convinced Mr. Grosford 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 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 at Hermitage Wharf, Wapping. He, being poor, communicated with the defendant, and from him received letters and money; £5 a week, at first in the name of Tichborne, and then in the name of Brand. This continued up to September, 1868, so that Tichborne in his communications with Charles Orton becomes Brand. Rumours arose that he was supporting the Ortons, but he wrote to Digitized by Microsoft® P 2 212 THE 8TOBT OF THE TICHBOBNE CL'AIMANT. 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 affidavit, in vrhich he svrore — "I did not know any of Arthur Orton's family until the year 1868, when, in consequence of rumours which reached me, I called upon his sisters, whom I then saw for the first time. . They both made an afidawit that I am no relative of them, and that I am not their brotlier 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 hadbeen long in communication with them; that he had been giving them money; that his first visit on his arrival in England (Christmas Eve, 1866) was to enquire after them; and that /or two years he had been in constant communicationwith them ?" Who, indeed ? Not the jury, one would suppose. And here ends the third day of Mr. Hawkins' speech. And what a distance he has travelled ! 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 difficulty. Do you want Valparaiso? There are Digitized by Microsoft® THE STOET OS THE TICHBOENE CLAIMANT. 213 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 ? Tou'U find out at Mellipilla how he gets 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, [tfever 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 cleaa-ly 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 minds and characters. In the next chapter the learned counsel dwelt upon Digitized by Microsoft® 214 THE STOET OP THE TICHBOENE CLAIMANT. that part of the defendant's history which related to ChiH. " My case," he said, " is that Orton left ChiK two years before Roger left England. It was necessary for the defendant, while making his claim, to write to Castro in MeUipillato prepare him for the enquiries that would ineTitably be made. So he writes to say that he has got very fat and his relations dispute his identity; tells him he made use of his name in Australia, and neTer 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. Eoger Tichbome did not leave England until February, 1 854 ; so that when the defendant speaks in his letter of being the same person whom Castro knew seventeen years ago, he overruns himself hy at hast 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 Castro, of Mellvpilla, in answer to one from the defendant, who had signed his name as Tichbome. 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 conveyed to the mind of the man who received it ! 'I have received irom you a letter, signed Tichbome ; 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 Digitized by Microsoft® THE STOET OF THE TICHBOENE CLAIMANT. 215 have mistaken tlie two Spanisli words ccmciller and camicero — the one meaning chancellor, the other bntcher.'" Next Holmes writes to Castro asking him whether he really knew Orton or whether Barra, the agent of the Tichborne family, had mentioned the name to him first. He says also that he lias 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 aristocracy, and that he had played with the Queen's children." Presumably, while his father was Chancellor. 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, " I have never parsed under the name of Orton, so do not allow my opponents to persuade my friends that I 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 "Sir Roger," this, of course, being the defendant's own likeness. So aU is arranged for Sir Roger's departure for Chin 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 Digitized by Microsoft® 216 THE STOBT OF THE TICHBOENE CLAIMANT. , evidence-^one in Chili and one in Australia ; he got that for Australia postponed, on the ground that he desired to attend the Chili conunission. He swore that he was advised to do so — very good advice and very necessarj', if the man were really Sir Roger. But the defendant never meant to follow it. He sailed indeed, and arrived at Eio in October, 1868 ; from Eio he and his companions went to Monte Video, but there they separated, his companions 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 Roger had taken and he had not. He intended to study the route from Bio to Valparaiso, but had no idea of ever pre- senting himself there. Conscious that he was Arthur Orton, he took care never to stand face to face with Castro. So he never went to ChiH after all. The commission was delayed till December, but , he never came. The evidence was taken in his absence, but in the presence 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 having 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 that which comes from the mouth of the defendant himself. Evidence not to be contradicted or ei- Digitized by Microsoft® THE STOET OP THE TIOHBOBNE CLAIMANT. 217 plained away, and whicli will remain for ever as facts fitting in with the case for the J)rosecution, but by no manner of means capable of finding a resting- place in that of the defendant. This part, therefore, will 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 fooHshly 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 has thrown over us, and in praying God that our wishes may be fulfilled. " E. C. Tichborne." In the witness-box the defendant had feigned a _ reluctance to disclose it. Mr. Hawkins pertinently asks " why ? " There had been two copies of this .document; one was given to Mr. Gosford and the Digitized by Microsoft® 218 THE STOKT OF THE TICHBOBNE CLAIMANT. 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 thinMng no copy of it could be produced, he, in February, 1868, made an affidavit, in which he says, "that before leaving England in March, 1863, I placed in the hands of Gosford the document, with instructions not to open it except in certain events, one of which I know has not happieued 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 return before my marriage." He was pressed upon the point and then said, " I dont 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," said Mr. Hawkins, " do you mean this lady sitting beneath me?" " Yes." "Doyoumeantoswearthatyou seduced this lady?" He answered, " I most solemnly to my God swear it ! " "When?" " 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 event of my father being in possession before my return, or dying before my return, he (Gosford) was to act for him according to instruc- Digitized by Microsoft® THE STOET OF THE TICHBOENB CLAIMANT. 219 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 (Grosford) 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. "E. C. D. TiCHBOENE." . 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 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. TiCHBOENE." This incredible story was to be disproved by evidence; not merely by evidence which added to Digitized by Microsoft® 220 THE STOET OF THE TICHBOENE CLAIMANT. the improbabilities, but wbicli 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 defendomfs story ieing 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 wiU 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 honour 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 defendant was Tichborne, but whether a lady, hitherto regarded as a virtuous woman, would be degraded, and perjuted in the eyes of the jury, heir husband, her children and the world. So, says Mr. Hawkins, not liking to leave this point without thoroughly exhausting everything he could say upon the subject, he will prove hy Roger's letters that he was not at Tichborne at the 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, Eoger never was at Tichborne again. The sealed packet was given to Gosford 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 Digitized by Microsoft® THE STOBT OF THE TICHBOENE CLAIMANT. 221 bear in mind that no true story can have an impossi- bility in it — a false story frequently has. Then came another impossibility. Eoger's letters showed that he never could 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 the Tichbome family ; yet the defendant denied that he had ever sent them — a strange and shortsighted, denial truly ! Now comes, another point relating to the wreck. During all the nine been years that had elapsed since the loss of the Bella, no hving 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 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 defendant, was as large as the Bella — 1800 tons — but the Osprey that came into 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 names of the men on board the Middleton — Orton's Digitized by Microsoft® 222 THE STOBT OP THE TICHBOEITE CLAIMANT, vessel in 1862 ! What a poor uninventive mind ! And yet what a remarkable memory he must have had ! On reaching Melbourne he said he gave the captain a cheque, which had reached home and been acknowledged by his relatives as genuine, but had been dishonoured. 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 cheque came to Griyn, and that the money had been taken from Glyn's previously. The cheque 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 dishonoxured." It was necessary for him to dishonour it, other- wise the bankers' books would have been in his way. But the counsel deals with it in one argument : " This was all a fabrication and an absurd fabrication, for, of course, had any such cheque really arrived, it would have shown that he was aHve." 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, and then he said it must have been the Themis; but he further swore that eight sailors were sawed with him. Not one of these had ever been heard of. It was thought proper to give the jui-y the key to the story of the £17 or £18 cheque, and it was this : Digitized by Microsoft® THE STOET OP THE TICHBOENE CLAIMANT. 223 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 defen- dant'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 passenger to Melbourne, who had disappeared after giving the captain a cheque for £17 or £18. This was the origin of the story of the cheque. But in a short time "the mate of the Themds turned up, and declared it was all wrong, and then the Themis 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 de- clined to say why, on the ground that it might tend to criminate Aim j that he knew Arthur Orton, who had changed his name to Alfred Smith, because " he had 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 inti- macy 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 Digitized by Microsoft® 224 THE STOET OF THE TICHBOENE CLAIMANT. horse stealing. This he admitted. " What more," asks the learned cotmsel, " need I say ? " Just one or two words, perhaps. Upon Roger 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 different physical peculiarities were referred to which existed in Roger, 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 Roger adhered closely to his cheeks, while this man had pendant lobes. So having contrasted the two men's personal peculiarities, as he had con- trasted their histories, manners, characters, senti- ments, education and minds, he concludes 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 speUing were writing and spelling exactly resembling Arthur Orton's, but totally dissimilar to the writing and spelling of Roger Tichbome. ' It was true that he had endeavoured to imitate Roger's writing after he had come to England, and after he had written to the dowager, saying — "I 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 resemblance of these later letters was the result of imitation. He then concludes : — " Gentlemen, I have shown you the life, habits, education, the correspondence, the sentiments, the Digitized by Microsoft® THE STOET OF THE TICHBOENE CLAIMANT. 225 dealings of Eoger Charles Tichborne, -whom, the de- fendant is charged with fraudulently attempting to personate. I haye 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-bom English gentleman, who had 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 Avith slaughtermen, highwaymen and thieves ; how, from a man of honour 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 honour 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 caUed your attention to the mass of living testimony which I propose to offer to you. I shall lay before you also Q Digitized by Microsoft® 226 THE STOKT OF THE TICHBOENE CLAIMANT. 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 her death, and with the con- sciousness that in a few short moments she would enter into the presence of her G-od, to whom she swore, she recorded her oath that the defendant was not the man he had falsely sworn himself to be. With such testimony, added to those inferences which I invite you to draw, as reasoning men, from matters to which I have called your attention, I believe I shall abundantly satisfy ■ you that the defendant is not Roger Charles Tichbome, 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 cha- racter and reputation of the lady whose name has been so often mentioned, he committed perjury the most daring and detestable. Digitized by Microsoft® THE CROSS-EXAMINATION OF "OLD BOGLE." Many readers, wlien they see the heading of this page, wiU wonder who " Old Bogle " was. Very few persons comparatively have read the Tichboi-ne case, or know the Tichbome story. They will think pro- bably 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 Orton he will know that Old Bogle was an old black servant of the Tichbome family; that he was at Sydney at the time Castro commenced to make his claim to the estates; and that Roger's 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 Tichbomes. The cross-examination of this witness is inte- restiQg from many points of view. It affords specimens of artistic workmanship and of variations of style employed for the purpose of producing different effects, but always with the view of minimising his evidence or discrediting it by eliciting contradictions. I shall give only two iUustra- Q 2 Digitized by Microsoft® 228 THE CEOSS-EXAMINATION OF " OLD BOGLE." tions, 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 impostor obtained the knowledge which he undoubtedly possessed of many incidents in the Tichbome family ; the design of the other being to break down the witness on the ground of his unrehabiHty, 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 humour 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 dependents on the Claiwiant for support J that they had shared his home and lived Kipon his hospitality; and therefore the natui-al iiuf erence would be at the outset that Old Bogle was a zealous and prejudiced partisan. 2. Bogle's intimate knowledge of the Tichborne family and its history ; his acquaintance with innu- merable details of the life and character of Roger; his recollection of the minor incidents of Roger's childhood and boyhood up to the period of his leaving England oh 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 Roger' s- nurses and the neighbours with whom he had been acquainted ; even the trivial and minuter details were to be shown as Digitized by Microsoft® "OLD BOGLE." 229 « 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 will 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 hnoivn all these things." This is precisely what Mr. Hawkins's cross-exami- nation is about to be directed to — namely, to show that the Claimant's knowledge was the knowledge of Old Bogle, and not his own in reality ; and if I mistake not, it will show that the pretended recollection of the Claimant is not the recollection of a child grown into a man, hut of one who was a man when the incidents \ occurred ! The claimant, as I read the evidence, hnew somewhat more than he would have recollected if he had been the real Eoger. He recollected 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-examination was directed. It was this : — Godwin'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 Tichbome family," and came to clean the pictures — to wash, in fact, the f&,ces of remote ancestors. Mr. Hopkins, the family lawyer. Mr. Slaughter, and many others. Digitized by Microsoft® 230 THE CROSS-EXAMINATION OF All these had doubtless been kno-ym 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 boundless a store as . this, and can you wonder that he should show a surprising knowledge of some incidents in Eoger's early life? Then came another group of things which Bogle was asked about and gave information upon, showing again the acquired knowledge of the man, and that of the most minute and circumstantial kind, such as no grown-up child would recollect. Miss Doughty's hay mare, Roger's dog " Spring," Powell, who taught Roger the French horn, and the visits of Lady Tichborne to the family seat. Bogle also knew the Nangles, Walter Strickland, a friend of Roger's, Tom Muston, the groom ; Moore, a servant ; ■Garter, another servant, and McCann. He had also heard of Clarke, Roger's servant in Ireland, having 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 killed. And let the reader note where it comes in — all in the midst of a lot of urdnvportant matters of detail which are poured upon him like corn out of a sack. Poor Old Bogle ! He Digitized by Microsoft® "OLD BOGLE." 231 didn't think lie 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 Bogle, " Eoger ought to recellect about the French horn, he couldn't forget it," although it was mixed up in cross-examination with such a variety of small matters 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 information which he so adroitly used to prove he was the heir to the estates. The next point in the cross-examination was to show that after Bogle left England and took up his residence in Austraha, his two sons followed in the course of two or three years, brmgmg with them information up to date. It was one of these two sons, Andrew, who, as the cross-examination shows, gave the witness a piece of paper. This paper showed clearly enough that when Old Bogle went to the hotel where the Clainiant 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 Eoger ; 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 all he knew of the family and estates, and if he went as a fool he could easily be drawn by a cunning impostor to impart the same information. Then we get the cross-examination as to Bogle's first interview vyith the Claimant, and a very interest- Digitized by Microsoft® 232 THE CROSS-EXAMINATION OF " OLD BOGLE. ing cross-examination it is from an advocate's point of view. "You knevf 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 recognised him ? " " Yes." "At first sight?" " At first sight." " Not from his likeness to Roger ? " "Not exactly." " There's a good deal of difference between him and Roger, 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 measurement." Digitized by Microsoft® "OLD BOGLE." 233 " Don't talk of measurement. 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." "TaUer?" " No ; about the same height." . • " Had Eoger 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 Eoger's." " What do you say to the lower part ? " " Well, his nose was injured." " But the lower part— the chin ? " " It was shorter." " Eoger's was long ?" " Eather." " 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 Guilf oyle (the old family gardener), I don't know whether Gruilfoyle had told him any- thing. (The dowager's letters to the defendant had Digitized by Microsoft® "234 THE CROSS-EXAMINATION OF " OLD BOGLE." mentioned tliat Bogle was in Sydney, and was quite black) . " Did he tell you he knew you were in Sydney? " " Yes he did." " Did he show you a letter of Lady Tichbome ? " " He did." " Did he ask you if you knew her handwriting ? " " Yes, he did." " Did he put the letter into ybur 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 the name of Bogle never had been mentioned to him wntil he saw him. " But you knew at the time that Bogle was there?" " I ddd 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- encfe to his recognition of the Claimant, and his direct contradiction of the Claimant with regard to Digitized by Microsoft® "old bogle." 235 Lady Tichborne's letter, which had informed him that Bogle was in Sydney. I will now give another example from the cross-ex- amination of this witness. It refers to the important subject of the tattoo marks which were proTed to nave been upon Eoger's arms before he left England. As the defendant had no such marks, Bogle swore that if Roger had ever had such a thiiig he, Bogle, Tnust have seen theTn, for Bogle had heen with Roger on three occasions, and had seen Roger's arms hare, 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 Eoger 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." " Well ? " " Well," says Bogle. *' What then ? What did you see ? " " I saw him rub his arm." " Simply rubbing his arm, hke 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 ! I don't know." " But what did you think when you saw him rubbing his arm ? " Digitized by Microsoft® 236 THE CBOSS-EXAMINATION OF " OLD BOGLE." " I thought he'd got a flea," says the innocent Bogle, little dreaming how big a flea that was. " A flea ! " says Mr. Hawkins, amid immense laughter. " Yes, I thought so." " Did you see it ? " " No, of course not, Mr. HawMns." " 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 seing 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 seeing it ? " " Each time I saw it." " Eubbed it outside ? " " I don't know what you mean by outside." " Did he always put his hand inside ? " Digitized by Microsoft® "OLD BOGLE." 237 " Inside of a shirt," says the confused Bogle; " Always put his hand in — I don't know." " But I want you to know — ^you recoUect it you say ? " " If your shirt was unbuttoned, and you was rubbin' yonr 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." ".Aflea?" " I suppose so." " But did you see him, Bogle ? " " I told you, Mr. Hawkins, I did not." " Excuse me, that was the first one." "WeU, 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 poLut this laughter was as good as many witnesses against the theory of there being no tattoo marksj- and Bogle's evidence of their non-existence. At length Mr. Hawkins continues : — " Tou 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, lit begins like a nice friendly conversation, as calmly as possible. " Do you know," asks the counsel, " whether there were buttons or not ? " Digitized by Microsoft® 238 THE CBOSS-EXAMINATION OF " OLD BOGLE." " 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 course ? " " And oh 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 ? " " I 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 ? " "tes." " With sleeves unbuttoned ? " "Yes." " Why did you notice them particularly ? " " If you pull up your sleeves," says Bogle, " I can see it without noticing it particularly." " But you would not notice my arm P " " If I was sitting with you, and there was two Digitized by Microsoft® '