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Cornell University Law Library 
 
 The Moak Collection 
 
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 The School of Law of Cornell University 
 
 And Presented February 14, 1893 
 IN nenoRY of 
 JUDGE DOUGLASS BOARDMAN 
 
 FIRST DEAN OF THE SCHOOL 
 
 By his Wife and Daughter 
 A. M. BOARDMAN and ELLBN D. WILLIAMS 
 
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THE ADVOCATE, 
 
 ms 
 
 TilAINING, PRACTICE, EIGHTS, 
 
 DUTIES. 
 
 
 -JfT^M 
 
 By EDWARD W. ^X, Esq., / 
 
 BARBI3TEK-AT-LAW. 
 
 VOL, I., 
 
 ./^. 
 
 Hoiitiou : 
 
 JOHN CROCKFOED, LAW TIMES OFFICE, 29, ESSEX STREET, 
 STRAND. 
 
 1852. 
 
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LOSDON • 
 
 Printed by John Crockfoed, 29, Essex Street, Strand. 
 
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TO 
 
 THE EIGHT HONOURABLE LORD DENMAN. 
 
 My Lord, 
 
 Having received your Lordship's permission to 
 dedicate to you a volume upon a subject which, 
 through a career so long and honourable, you have 
 exalted by your precepts and illustrated by your 
 example, I now submit to you this first attempt to 
 exhibit, in the^form of a treatise, a practical sketch 
 of the training, practice, rights and duties of the 
 British Advocate. 
 
 In the performance of this task I have sought 
 to set up the high standard of acquirement and of 
 conduct that has made the Bar of England, for so 
 many centuries, the nursery of its noblest and truest 
 
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VI DEDICATION. 
 
 gentlemen — the school of its statesmen — and the 
 profession of those patriots to whose courage, inde- 
 pendence and honesty the liberties of the land have 
 been more than once indebted for their salvation. 
 
 I may say in perfect sincerity, and with no 
 purpose of flattery, that it was your Lordship who 
 suggested to me the subject of this treatise. I had 
 been accustomed to contemplate you at the Bar as 
 the ideal of an Advocate : afterwards, I looked up 
 to you upon the Bench with veneration, as the very 
 model of that most honourable and honoured of 
 dignitaries — the Lord Chief Justice of England. 
 Reflecting upon the qualities that had thus com- 
 manded my admiration, I sought the sources of 
 them, and what were the natural and acquired 
 qualifications for an accomplished Advocate. I could 
 find no book that supplied the information I was 
 seeking, and setting down some notes of what I had 
 observed, I was tempted to enlarge and systematize 
 them, and, ultimately, to design the formal treatise, 
 the first portion of which I now, with permission, 
 dedicate to your Lordship. 
 
 The time at which I do so is of such serious 
 
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DEDICATION. VU 
 
 interest to the Profession, for which, I believe, your 
 Lordship still feels the attachment of a life devoted 
 to its service, that I cannot refrain from inviting 
 yonr attention, in a few words, to its position and 
 prospects. 
 
 My Lord, I much fear that the glory of the Bar 
 of England has departed, that its sun has set, and 
 that it is doomed to destruction, or to a change of 
 character and position that will be more lamentable 
 than destruction. The recent revolution in the 
 manner of administering justice, by substituting 
 local tribunals for the great central fountains of 
 law in Westminster HaU, combined with the sim- 
 plifications of procedure that annihilate aU those 
 minor fees by which the Juniors of the Bar have 
 been supported hitherto through the inevitable 
 period of probation, will so reduce the amount of 
 employment for Barristers, that their numbers— 
 already too great — will be more than ever dis-^ 
 proportioned to the business, and hundreds, nay 
 thousands, must go out of the Profession, or be 
 starved out, before demand and supply can be 
 equalized, and there will be a prospect of even a 
 moderate provision for a few. 
 
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Vni DEDICATION. 
 
 It is not surprising that they who find them- 
 selves thus suddenly deprived of present subsistence 
 and of aU hope of future advancement in a Profes- 
 sion to which they have devoted so much labotir 
 and money, should receive with something like 
 approval almost any plans proposed for snatching 
 their long-cherished hopes and ambitions from 
 threatened destruction. To this instinctive effort 
 of the sinking to grasp at straws, we are probably 
 indebted for the welcome so unwisely given by a con- 
 siderable number of the members of the Junior Bar 
 to a suggestion that they should rescind the rule of 
 the Profession that forbids Counsel to accept a brief, 
 or advise a Client, except through the intervention 
 of an Attorney. This rule was, doubtless, recom- 
 mended by experience ; it has been found in practice 
 to conduce to the well-being of both branches of the 
 Profession, and to the advantage of the Client. I am 
 sure that I need not recapitulate to your Lordship 
 the benefits of this arrangement for the distribution 
 of legal business, or the many mischiefs that would 
 flow from its repeal. If it be desirable to preserve 
 the distinction between the functions of Advocate 
 and Attorney, as few, I presume, would seriously 
 doubt, it is necessary that some distinct and unques- 
 
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DEDICATION. IX 
 
 tionable line should be dra-wn, which, being recog- 
 nised by the whole Profession, should constitute the 
 boundary between those functions. Once permit 
 that boundary to be overpassed, and there wiU 
 be no limit to invasion. If it be left to each 
 practitioner's individual sense of propriety to deter- 
 mine what is within his province and what is not, 
 interest will assuredly so blind some, and a keen 
 sense of rivalry influence others, that they will be 
 tempted to commit, even in all honesty and with 
 good intentions, what to calm onlookers would 
 appear to be a serious trespass upon the most lenient 
 interpretation of the laws of professional conduct. 
 Especially will this danger arise now that, in all 
 probability, the Bar will cease to congregate in 
 Westminster Hall and to take their tone from the 
 highest of that assembly — to be inspired, as the dullest 
 were, by such dignity as was shown byyour Lordship 
 — ^by such lofty-min dedness as is displayed by so many 
 of the present Judges — ^by the spirit, and bearing, 
 and language of the accomplished gentleman exhi- 
 bited, as a standard for juniors to shape themselves 
 by, in Counsel of the class of which I may designate 
 Sir Frederick Thesiger as the type. Kemoved from 
 the locality in which the mind and manners of the 
 
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X DEDICATION. 
 
 man, the spirit and the tone of the gentleman, are 
 continually being refreshed by living examples and 
 by the very atmosphere of the society among which 
 they move, transferred to a provincial town, subjected 
 to its rivalries, its jealousies, its littlenesses, there 
 is, my Lord, the most imminent danger lest the 
 Bar in the Provinces should, after a time, lose much 
 of the lofty character of the Bar at Westminster. 
 This will certainly be the result if they should be 
 tempted, by an excess of anxiety to compete with 
 the Attorneys for the business of the County Courts, 
 to rescind the rule that forbids them to take instruc- 
 tions and briefs directly from chents ; for thus they 
 will come, in no long time, to do the duties of 
 Attorneys, and a ruinous rivalry will be established 
 between the two branches of the Profession, who, in 
 their proper duties and capacities, are not rivals, 
 nor have any occasion for rivalry or jealousy, but 
 only are two limbs of one body — two parts of one 
 great whole. 
 
 The dangers that threaten to the Bar from its 
 impending (^^-centralisation, so far from encouraging 
 a relaxation of the rules of professional etiquette 
 hitherto recognised, should but enforce their more 
 
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DEBICATION. XI 
 
 stringent observance. The greater the temptation 
 to trespass against them, the more zealously and 
 rigidly should they be preserved. If requisite to 
 sustain the character pf the Bar assembled at "West- 
 minster, ten times more necessary will they be to 
 uphold the status of the Bar scattered aU over 
 England, from Yorkshire to Cornwall. 
 
 I trust, therefore, that, if it should come to be 
 a question whether the i-ule as to taking briefs in the 
 County Courts should be rescinded, your Lordship's 
 influential voice will be lifted up against it. 
 
 Many entertain sanguine expectations that the 
 reforms now in progress in the Courts of Law will 
 restore much of the lost business and even increase 
 it. I cannot share this hope. The attractions of 
 the County Courts to suitors who have disputes to 
 try are such as no reforms in the Superior Courts 
 could rival. The rapidity with which trials can be 
 heard, the convenience of a hearing on the very day 
 appointed, without the cost and trouble of convey- 
 ance of witnesses to a distant place, the satisfaction 
 of knowing that, when a case is tried, it is settled 
 and cannot be disturbed again and again — sources of 
 
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XU DEDICATION. 
 
 vexation to suitors in the Superior Courts, which 
 more trouble them even than the bill of costs that 
 tells them that justice can be too dearly purchased 
 — these are tangible benefits which suitors will not 
 readily resign. Improve the Common Law Courts as 
 we may, they wiU never compete successfully with 
 the County Courts in ^Aese particulars, and, therefore, 
 1 entertain but faint hopes of any large revival of 
 business in them ; and certainly I despair of such as 
 will compensate for the fees of the Bar that are swept 
 away by the recent statute, and by which the Juniors 
 subsisted, or were much assisted to subsist, while 
 acquiring the experience necessary for leadership. 
 If Juniors cannot now live by the Bar, whence are 
 to come our future Leaders — ^whence our Judges? 
 
 Such are the prospects of the Bar, as they pre- 
 sent themselves to me, and I am unable to discover 
 any way of escape. Nevertheless, whatever the fate 
 of the Profession, I trust that no endeavour will be 
 made to avert it by assenting to aught that will 
 lower its status, or confuse its functions with 
 those of the Attorney. Far better it should cease to 
 exist as a Profession, than that it should survive its 
 ancient honour, its influence, its respect, and its 
 
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DEDICATION. XIU 
 
 public estimation. If we must fall, let us fall with 
 dignity. 
 
 If I have been successful in sustaining, through 
 these pages, the character of the Advocate, as we 
 have seen it exemplified in your Lordship, and thus 
 done something to avert the dangers to be feared 
 from the changes now in progress, I shall be more 
 than rewarded for the labour of the enterprise, to 
 the prosecution of which I am encouraged by the 
 approval with which you have honoured this first 
 portion of the endeavour of, 
 
 My Lord, 
 
 Your Lordship's very faithful servant, 
 
 EDWARD W. COX. 
 
 3, Crown Office Row, Temple, 
 2\stJidy, 1852. 
 
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CONTENTS. 
 
 L Introduction 
 
 page 1 
 
 n. Capacities 
 
 5 
 
 III. Natural Qualifications 
 
 8 
 
 rV. Physical Qualifications 
 
 ... 11 
 
 V. Mental Qualifications 
 
 ... 14 
 
 VI. Pecuniary Resources 
 
 27 
 
 VII. Will and Courage 
 
 ... 43 
 
 Vin. The Training of the Advocate .. 
 
 ... 48 
 
 IX. Moral Training 
 
 ... 51 
 
 X. Practical Morals 
 
 ... 59 
 
 XI. Intellectual Training 
 
 ... 76 
 
 XII. How to Study 
 
 ... 80 
 
 Xin. How to Read 
 
 ... 86 
 
 XTV. What to Read 
 
 ... 92 
 
 XV. Studies for Information 
 
 ... 94 
 
 XVI. Studies that Educate 
 
 ... 103 
 
 XVn. Professional Studies 
 
 ... 131 
 
 XVTTT. Physical Training 
 
 ... 163 
 
 XIX. The Art of Speaking 
 
 ... 173 
 
 XX. Practice in Chambers 
 
 ... 201 
 
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XVI CONTENTS. 
 
 XXI. The Inns of Court pag/e 209 
 
 XXII. Student Life in the Temple 216 
 
 XXIII. The CaU 246 
 
 XXIV. Eefleotion 255 
 
 XXV. Choice of a Circuit 262 
 
 XXVI. The Circuit 270 
 
 XXVIL Practice in Chambers 294 
 
 XXVIII. Cases for Opinion 302 
 
 XXIX. Advising on Evidence ... ... ... 311 
 
 XXX. Reading a Brief 321 
 
 XXXI. Consultations 328 
 
 XXXII. The Practice of the Courts 3?" 
 
 XXXIII. The Examination-inrChief 351 
 
 XXXIV. Cross-Examination 375 
 
 XXXV. Re-examination ... ... ... ... 435 
 
 XXXVI. The Defence 442 
 
 XXXVII. The Reply 465 
 
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THE ADVOCATE: 
 
 HIS TRAINING, PEACTICE, EIGHTS, AND 
 DUTIES. 
 
 INTRODUCTION. 
 
 The term Advocate is here intended to apply to 
 him who undertakes to plead vivd voce the cause of 
 any suitor before, any of the legal tribunals of this 
 country, whether he be, as is the Barrister, exclu- 
 sively the Advocate, or whether the duties of the 
 Attorney be connected with those of advocacy. Nor 
 will it be necessary for the purpose of these papers 
 to make any distinction. Whatever instructions 
 apply to the one wiU be applicable also to the 
 other, and there is no difference in their rights or 
 duties. 
 
 Without raising, at this stage, a discussion as 
 to the propriety or otherwise of a severance of the 
 duties of the Advocate from those of the Attorney, 
 
 B 
 
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2 THE ADVOCATE. 
 
 it will be sufficient for the immediate purpose to 
 state, as a fact, that such a distinction exists in 
 practice in all civihzed communities; for even in 
 America, although the law permits the Attorney to 
 appear as an Advocate, the privilege is rarely used 
 in courts which are of sufficient importance to be 
 attended by a body of Advocates by profession. 
 The division of labour is found to be as advan- 
 tageous in this as in other employs. The foolishness 
 of conducting one's own case has passed into a 
 familiar proverb; and the same objection, for the 
 same reasons, extends to the Attorney, who usually 
 feels as much interest in the cause as does his client, 
 is as apt to receive the same bias from his intimacy 
 with all the facts, and therefore to forget whether 
 they be strictly evidence or not. But obviously 
 that distinction cannot be extended to all the 
 tribunals of a country, and therefore everywhere 
 is the Attorney required to discharge the duties of 
 Advocate before tribunals whose jurisdiction is not 
 sufficiently important to insure the attendance of 
 those who are Advocates only. 
 
 But the principle is found to prevail to a great 
 extent even in such tribunals. So peculiar are the 
 qualifications required in the Advocate that, in the 
 smallest matter that can be brought before the 
 humblest Court, the Attorney unaccustomed to the 
 practice usually engages the service of some other 
 Attorney more sldlled than himself in the duties of 
 the office and accustomed to play there the part of 
 Advocate. Every County Court has its Bar, by 
 whom the greater portion of the business is con- 
 
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INTRODUCTION. 3 
 
 ducted for those who are the actual Attorneys in 
 the cause — only that there the Bar is composed of 
 Attorneys and not of Barristers. 
 
 Why it is so, and ever must be so, wlQ be suffi- 
 ciently apparent, when the reader learns how many 
 are the qualifications requisite to the Advocate. 
 
 It is necessary, also, to observe, that the term 
 " Advocate " will here be used in its widest sense, 
 as applying to all who plead the causes of others in 
 courts of justice, whether they are of the class to 
 which the title is usually applied, whose special 
 business it is to deal with facts^ either to elicit them 
 from the witnesses, or to present them with a 
 commentary to the Court or the Jury, or whether 
 they are of that more numerous class who are 
 peculiarly qualified to deal with questions of law. 
 In common parlance, and perhaps in strictness of 
 definition, the former only is designated by the title 
 of Advocate ; but in this work both wiU be 
 intended by the term, and in proper place wiU be 
 described the difference in the qualifications requi- 
 site to each, so that the student may be enabled to 
 form some judgment for which department he is by 
 nature and education best fitted, that he may direct 
 his thoughts and studies accordingly. 
 
 Undoubtedly the distinction is one which the 
 members of the Bar are very loth to admit. It 
 wounds our vanity to know that there is no hope 
 of our becoming great both as an Advocate and as 
 a Lawyer. If a man has a decided talent for advo- 
 cacy, he will not readily admit that he is less 
 profound a Lawyer than his friend in the adjoining 
 
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4 THE ADVOCATE. 
 
 chambers, who can cite cases by the hour, and 
 argue a demurrer till the Judges are " in wandering 
 mazes lost," and who, in his turn, would be 
 extremely wrath were he told that, although so 
 learned a Lawyer, he cannot hope to be great as an 
 Advocate. Yet would no effort of theirs make it 
 othenvise. Nature forbids. The two callings 
 demand not merely different, but opposite, faculties, 
 which cannot co-exist in the same mind. 
 
 In truth, the practical sagacity of our clients has 
 already decided otherwise, and we must bow to the 
 decision, even if we question its righteousness. 
 They who have briefs to bestow do not look for the 
 combination in one mind of conflicting qualifica- 
 tions. They do not expect to retain with one fee 
 the rapidity of thought, the promptitude of decision, 
 the large knowledge of the world required in the 
 Advocate, and the slow judgment, patient study of 
 the books, and of the cases, and of the statutes 
 needed for the getting up of the law of their case. 
 The Attorney who consults the real interests of his 
 chent seeks first a skilful, intelligent and eloquent 
 Advocate, to conduct his cause and deal with its 
 facts, and then he consorts with him a junior, whom 
 Nature and hard chamber study have qualified to 
 work up the law ; and thus, each supplying what 
 the other wants, he finds his cause conducted in 
 the most perfect manner. 
 
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II. 
 
 CAPACITIES. 
 
 The duties of an Advocate demand a larger 
 range of intelligence, a combination of a greater 
 number of qualifications, than do those of any- 
 other branch of oratory. 
 
 The preacher needs little knowledge save that of 
 the one great subject he is ordained to teach. AU 
 beyond this is ornamental, and not essential. He 
 may be a giant in the pulpit, and a pigmy every- 
 where besides. 
 
 The Senator is not necessarily a man of wide 
 range of information, of judgment correct and 
 rapid, and competent to persuade or to convince. 
 He may devote himself to one branch of pohtics, or 
 be great on one question, or he may obtain a hear- 
 ing on account of his acquaintance with some single 
 topic to which he brings the wisdom of experience. 
 
 But the Advocate cannot thus be mse on one 
 subject alone^ His intellect must not be cultivated 
 
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6 THE ADVOCATE. 
 
 in parts. His information must be universal as the 
 range of human inquiry. His intelligence must 
 have no limits but those of the human mind. All 
 learning of the past that is contained in books, and 
 of the present as it m9ves before his eyes, the philo- 
 sophy of the study and the business of actual life, 
 must be familiar to him — not, indeed, with the 
 perfect mastery of a professor, for that is as unne- 
 cessary as impossible, but with such general know- 
 ledge of the facts of science and art, and of the 
 processes by which they are pursued, as may enable 
 him to deal with them as matters not foreign to his 
 thoughts, and to talk of them in such manner as 
 may be easily intelligible to the unlearned, and 
 yet shall not subject him to the ridicule of the 
 scientific. He needs equally large learning and 
 vigorous common sense ; imagination to give a glow 
 to eloquence; strong emotions wherewithal to per- 
 suade, and power of argimaent by which to convince. 
 For his duties are wide and various as are these quali- 
 fications, To-day he addresses Parliament on the 
 complicated facts of a peerage case; — to-morrow he 
 appeals to a jury for damages for an injury done to 
 character. One hour he defends a criminal charged 
 with an oifence that involves nice questions of 
 physiology or chemistry ; the next he is required to 
 handle disputed mercantile accounts, — or an archi- 
 tect's estimates for a building, — or the infraction of 
 a patent for machinery, — or, before a Parliamentary 
 Committee, to sift the schemes of an engineer, — or, 
 before a Commissioner of Lunacy, to try the sanity 
 of some crotchety man whose friends think they 
 
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CAPACITIES. 7 
 
 might manage his estate better than himself can do 
 it. For him there is no time for previous " cram- 
 ming; " he must possess this various knowledge 
 beforehand, and so that it may be ready for use at 
 any moment. 
 
 Thus considered, the assertion will not be deemed 
 extravagant, that the duties of the Advocate, if not 
 the loftiest exercise of the mind, demand a larger 
 amount of intelligence and call into operation a 
 greater number of mental faculties, than any other 
 profession to which the art of oratory appertains, 
 and therefore that it should not be adopted without 
 the most anxious self-scrutiny, and, when embraced, 
 should be made the subject of systematic study; — 
 for, in fact, it can be accomphshed only by enor- 
 mous labour directed to the cultivation of a rare 
 combination of natural endowments. 
 
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III. 
 
 NATURAL QUALIFICATIONS. 
 
 Nature has not cast aU minds in the same mould. 
 That every part in the drama of society may be 
 properly fiUed, a wise Providence has created an 
 infinite variety of capacities. .It is vain to struggle 
 against the decree, or endeavour to become that for 
 which Nature has not designed us. By industry 
 we may improve our natural faculties to a limited 
 extent; but vain is the eifort to cultivate into fair 
 proportions powers denied or dwarfed at birth. Let 
 parents and teachers devise the most promising 
 plans for the future vocations of youth, apart from 
 the consideration of natural capacity, and their 
 schemes wUl be defeated and their hopes blighted. 
 For awhUe there may be a show of progress in the 
 path prescribed; but, ere long. Nature asserts her 
 empire, and before her will we must bend or break. 
 A pursuit that is distasteful is never prosperous. 
 AVhere there is a decided fitness for any occupation, 
 
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NATURAL QUALIFICATIONS. 9 
 
 sooner or later we find " the way of life " following 
 the bent, and success crowning the laboufs that are 
 those of love. To the thoughtful observer there is 
 nothing more remarkable in the phenomena of 
 society than the certainty with which, amid its jost- 
 lings and shakings, almost every man finds his 
 proper place, and the nice adjustment by which aU 
 its strata are supplied with exactly so many minis- 
 ters to its wants as those wants demand. 
 
 The first duty, therefore, of him who aspires to 
 the high and difficult office of an Advocate, is to 
 institute a rigid self-examination, and to crave the 
 honest opinion of a sagacious friend, whether he 
 does indeed possess the natural quaUfications with- 
 out which industry will be vain and disappointment 
 certain. 
 
 And it may not be useless to precede our survey 
 of the natural qualifications required by one who 
 would be an Advocate, with a word of warning 
 against an error to which all, but especially the 
 young and enthusiastic, are very prone in their 
 endeavours after self-knowledge. Let the student 
 beware lest he mistake aspiration for inspiration; 
 ambition for capacity ; desire for power. In aU 
 intellectual pursuits there is no error so common 
 and so fatal as this. Literature abounds in instances 
 of it, and at the Bar they are not less numerous. 
 Let the young man choosing a profession keep the 
 remembrance of it before him, and ask himself, not 
 " What do I wish to be? " but, " What am I quali- 
 fied to become ? " 
 
 Preliminary to a self-examination, undertaken. 
 
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10 THE ADVOCATE. 
 
 •wltli serious intent, to ascertain whether his natural 
 capacities are such as to justify him in aspiring to 
 the honours of an Advocate, it is necessary that he 
 should have plainly before him a catalogue of the 
 qualifications required. 
 
 That let us now endeavour to supply. 
 
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IV. 
 
 PHYSICAL QUALIFICATIONS. 
 
 Certain Physical Qualifications are as essential as 
 those of the intellect. Wanting the one, the others 
 avail nothing ; so necessary are they, indeed, 
 that an Advocate well endowed with them will 
 appear to more advantage, attain to a wider reputa- 
 tion, and be more successful, than an Advocate 
 largely gifted with the Intellectual, but wanting the 
 Physical capacities. 
 
 And, first, has he a healthy frame, capable of 
 enduring long- continued exertion of mind and body, 
 the confinement of the study, the excitement of 
 practice, the crowded court by day, the vigil of 
 thought by night? Can he subsist with a sleep of 
 five hours ? Can he, without dyspepsia, endure 
 irregular meals — hasty eatings and long fastings ? 
 If he be not blessed by Nature with the vigorous 
 constitution that will bear all this, and more, let 
 him not dream of adventuring into the arena of 
 Advocacy. 
 
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12 THE ADVOCATE. 
 
 Let him look to his lungs. If they be feeble, 
 there is no hope for him. Let him be assured that 
 they possess both power and capacity. They must 
 be competent to express and to endure. A thin 
 small voice, womanish and weak, will fail to impress 
 the soundest arguments upon an audience over 
 whom the shows of things have more influence than 
 the substance they hide. It is difficult not to asso- 
 ciate a small voice with a feeble intellect. In fact 
 they have no relationship, as, upon acquaintance 
 with the owner, is frequently discovered. But an 
 audience can judge only by first impressions ; they 
 cannot enjoy the intimacy necessary to ascertain the 
 true measure of the mind that speaks through so 
 unhappy an instrument. Perhaps it will be said 
 that this is a defect, but not a fatal one ; and 
 instances will be cited of orators of great fame at 
 the Bar, in the Pulpit, and in the Senate, whose 
 voices were inharmonious and displeasing. Shell 
 screamed; Roebuck squeaks ; true; but those were 
 voices wanting in tone only, not in volume. The 
 scream and the squeak were uttered with a power 
 that excluded any sense of mental weakness in the 
 orators. The hopeless voice here alluded to is the 
 small voice — the woman voice. Mere harshness 
 and dissonance are faults which anxious efforts 
 should be made to amend, but which do not unfit 
 the Advocate for his office. You may dislike, but 
 you listen; your ear may be oifended, but your 
 mind will be informed ; you may feel pain, but 
 never contempt. 
 
 A frame generally healthy, and sound lungs espe- 
 
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PHYSICAL QUALIFICATIONS. 13 
 
 cially, are the physical qualifications essential to an 
 Advocate, and, wanting which, the youth should, 
 without hesitation, abandon the Profession. All 
 others are desirable accessories, but their absence is 
 not fatal ; they are only obstacles to success, which 
 may be obtained, either in spite of them, or by con- 
 quering them. But these are natural barriers which 
 industry cannot remove ; — defects which no amount 
 of capacity, in other respects, can counterbalance: 
 because the sound mind . cannot exercise itself but 
 in the sound body, nor can the thoughts of the 
 most masculine intellect impress themselves upon 
 other minds, when conveyed in feeble and feminine 
 accents. 
 
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V. 
 MENTAL QUALIFICATIONS. 
 
 A REVIEW of the catalogue of Mental Qualifica- 
 tions will require more consideration ; it is so much 
 longer, more difficult, and perhaps, in parts, more 
 disputable. But, for the sake of order, it -will be as 
 well to throw into groups such of them as have 
 certain relationships one with another. First, then, 
 for the Intellectual^ secondly, for the Moral, Quali- 
 fications. 
 
 INTELLECTUAL QUALIFICATIONS. 
 
 The easiest mode of dealing with this branch of 
 the subject would be the usual convenient dictum, 
 " You should possess all." But it is only when 
 they come to be examined in detail, and their rela- 
 tive importance to the Advocate investigated, in 
 order to ascertain what are essential, what desirable 
 but not indispensable, what ornamental only, that 
 the reader, anxious to learn the measure of his 
 
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MENTAL QUALIFICATIONS. 15 
 
 own competency, can rely with confidence upon the 
 result of his scrutiny. Even at the risk of tedious- 
 ness, therefore, we purpose to note each faculty 
 separately, and to show the extent of its importance 
 in the formation of the Advocate. 
 
 It is necessary to premise that this catalogue will 
 follow no scientific formula, nor shall we plunge 
 into the labjrrinths of metaphysics, nor endeavour 
 to observe strictly the definitions of the mental 
 faculties, as propounded by the philosophers. It 
 wUl be enough for the purposes of this treatise to 
 employ terms in their popular meaning and 
 consider the broad features of the mind, as univer- 
 sally recognised. If, therefore, we depart from the 
 systems of Locke, or Browne, or Stewart, or Combe, 
 it is without intention to imply approval of or 
 dissent from either, but to quit ground that may 
 be disputed for that upon which there is a general 
 agreement. 
 
 The first faculty required by the Advocate, and 
 that in an eminent degree, is Pbeception ; — keen- 
 ness of observation ; — clearness and quickness of 
 comprehension. A subject must be seen and 
 understood in its entirety and in its details almost 
 at the same instant and with the rapidity, as it 
 were, of an intuition. For the Advocate there is 
 no time to ponder upon a thought, and turn it over 
 and over in his mind, and master it by degrees. 
 He must grasp it faster than speech can convey, 
 and measure it as he grasps. 
 
 This is the faculty by which the Advocate reads 
 the thoughts of witnesses and the feelings of juries. 
 
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16 THE ADVOCATE. 
 
 This enables Mm, as by an instinct, to avail himself^ 
 for the furtherance of his cause, of any circumstance 
 that transpires in the course of the trial. It shows 
 him the seeming and the latent bearings upon his 
 case of every fact as it is developed, and enables 
 him to adopt suddenly a course, it may be, alto- 
 gether differing from that upon which he started. 
 Another faculty, indeed, is necessary to this prompt 
 decision; but it is the quick Perception that pre- 
 sents the materials upon which the ready judgment 
 must be formed. 
 
 Clear and quick Perception is, in truth, the 
 foundation — the corner stone — of the mental 
 character of the Advocate. Without that, all other 
 qualifications are worthless, for they can only 
 mould and inspire the material which Perception 
 supplies. If it be not rapid as the lightning, the 
 time is gone for the exercise of the judgment, or 
 the tintings of the imagination, or the awakening 
 of the sympathies. 
 
 Let, then, the self-questioner first be assured that 
 he possesses quick and clear powers of Perception. 
 If he feel any doubt upon this ; if one glance be not 
 sufficient to transfer an object to his mind, and fix 
 it there ; if the moment of its impression does not 
 reveal its aspects, however many-faced, and its 
 bearings, however various, upon the other facts 
 with which it is associated, — let him not seek to be 
 an Advocate : success is hopeless ; disappointment 
 certain. 
 
 Next to it, and only second to it in importance — 
 if, indeed, it may not claim equal rank — is a sound 
 
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MENTAL QUALIFICATIONS. 17 
 
 and prompt Judgment. They are partners for 
 all practical purposes. Perception supplies the 
 material upon which the Judgment operates. The 
 chief element in the Judgment is the reasoning 
 faculty, — ^the distinctive feature of humanity ; it 
 traces causes and deduces consequences, — thus 
 linking the present with the past and the future. 
 But it is less frequently found in any strength than 
 is Perception, and it is usually less cultivated. Even 
 where it exists in some power, it is rarely combined 
 with the quahty of quickness. Yet is this union 
 necessary to the Advocate. His act of reasoning 
 must he imperceptible in its gradations, and yet 
 clear and sound in its conclusions. While he 
 pauses to reflect, his cause is lost. 
 
 Nor less is this faculty required to enable him to 
 convince the judgments of others. He must have 
 his argument clear in his own mind or he cannot 
 clearly convey it to the minds of his audience. 
 Confused speech is the consequence and the sign of 
 confiised thought. In oratory, the mind must be 
 continually a little way in advance of the lips. 
 While the speaker is uttering one sentence, he 
 ought to be framing the next. If the Judgment 
 be at all tardy, not only is this impossible, but there 
 wiU be a painful pause and hesitation, or, still 
 worse, a confusion of words thrown in to stop 
 the gap untU the halting Reason can perform its 
 office. 
 
 The possession, therefore, of a sound and rapid 
 Judgment is needful to the Advocate, and he who 
 wants it would be wise to adopt some other profes- 
 
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18 THE ADVOCATE. 
 
 sion, where it is either less in request, or in which 
 more time is permitted for its operations. 
 
 But rapid and clear Perception, ready and 
 accurate Judgment, wiJl not suffice without Imagin- 
 ation, to give shape to thoughts, to infuse the glow 
 of colour into expression, and make words pictures. 
 It is not enough that an Advocate has, in his own 
 mind, an accurate vision of a place, a person, an 
 event, or that he shall be able, in a moment, with 
 the clearest logical acuteness, to propound his 
 argument. He needs to convey to other minds the 
 picture painted on his own; he has to convince 
 judgments for the most part slower than his in the 
 process of reasoning, and to whom words do not 
 always convey the same meaning as that which they 
 present to him. In Advocacy, fact is always the 
 foundation of argument, and upon the clearness 
 with which the Advocate puts his facts will depend 
 the force of the arguments he founds upon them. 
 Wanting Imagination, he can never master the art 
 of word-painting; without a mastery of that art, 
 he cannot summon a distinct conception of scenes 
 and objects before the mind's eye of his audience; 
 this failing, he cannot influence their judgments or 
 even their sympathies. Mark the Advocates of the 
 same Bar at any Assizes, and note the different 
 degrees of interest with which you listen, — ^the 
 different effects which they produce upon your 
 mind, and unconsciously on your judgment of the 
 causes they plead. One is precise, correct, hard, — 
 his language scholarly, his composition perfect as a 
 prize essay, his reasoning close and accurate, his 
 
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MENTAL QUALIFICATIONS. 19 
 
 learning profound, his tone solemn, his manner 
 imposing : the most critical eye can find no fault in 
 him. But when the novelty of a strange voice is 
 over, your attention flags, in spite of your desire to 
 hear and be instructed ; your thoughts wander ; — it 
 is with an effort you accompany his statement of 
 facts and his train of argument. They enter at the 
 ear, but, with all your desire to receive them, they 
 do not write themselves on your mind. They are 
 words that in their cold correctness convey no 
 images of things. When the orator has ceased, you 
 look for the results : you find only a confused, dis- 
 jointed mass of imperfect ideas; the places, and 
 persons, and objects of the story he has been talk- 
 ing about are but dimly distinguished : there is no 
 life nor colour in them ; and their relationship to 
 one another, which it was the Advocate's purpose 
 to point out, is left stiU more uncertain than when 
 he began to explaia it. Hence you are unable to 
 understand the bearings of his arguments, or to see 
 the point of his conclusions ; and the cause of his 
 client has suffered in your estimation, for you not 
 unnaturally suppose that a case which so learned a 
 Lawyer and so acute a reasoner has left in so unsa- 
 tisfactory a condition, must owe its indistinctness 
 rather to its own weakness than to the incapacity of 
 its Advocate to invest it with the life and colour, 
 which it is the province of the Imagination to impart 
 to speech. 
 
 Let him be followed by another of different 
 character. He may not be quite so classically cor- 
 rect in language, so pure in composition, so terse 
 
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20 THE ADVOCATE. 
 
 and close in argument : perhaps your critical taste 
 does not so much approve him. But you listen, 
 and soon, instead of an effort to keep the attention 
 awake, you cannot choose but hear. Like the 
 Ancient Mariner with the Wedding Guest, he holds 
 you as by a spell. Let him want almost every seem- 
 ing advantage his predecessor enjoyed, — aspect, 
 manner, profundity of learning, school logic, — his 
 words are things^ not abstractions; each one calls 
 up a distinct image in your mind; persons, and 
 places, and the order of events, gestures and tones, 
 and even the fleeting expressions of faces, are sum- 
 moned before your mental vision, and the picture, 
 complete as in his own mind, perfect in its details and 
 proportions, lives before you. You beome yourself 
 a witness and all your sympathies are kindled by 
 the interest of a spectator. Then, with ease he 
 shows you how this or that occurrence or position 
 of aifairs could or could not have existed, according 
 to the view he desires you to adopt. You see, — 
 you comprehend, — ^you are convinced; and when 
 he resumes his seat, you are satisfied that he has 
 the right with him. 
 
 The faculty by which he efifects this triumph of 
 the art of Advocacy is Imagination. That imparts 
 form and colour to his thoughts, gives vividness 
 and glow to his language, and summons before other 
 minds the vision that is painted on his own. Hence 
 it is not merely one of the graces and ornaments of 
 the Advocate — but, like the twain we have already 
 noticed, — indispensable to him. 
 
 Turning from the Intellectual to the Moeal 
 
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MENTAL QUALIFICATIONS. 21 
 
 faculties, we find that these are no less necessary 
 to the Advocate. He must be as quick to feel as 
 to perceive and to judge. By that term we describe 
 all the sentiments, that is to say, the faculties that 
 are stirred within us on the presentation of the 
 proper objects of them; the Emotions that speak long 
 before the more sluggish Reason can pronounce her 
 verdict. Such are Conscientiousness, Benevolence, 
 Veneration, Firmness and so forth. These operate 
 mainly by sympathy. So are we constituted, that 
 an emotion in another, strongly and naturally 
 expressed, excites a corresponding emotion in our- 
 selves. Mark, then, the importance of quick and 
 powerful emotions in the Advocate. Without 
 them he cannot feel strongly; if he does not feel 
 strongly himself, by no art can he excite through 
 sympathy the feelings of his audience. If, on the 
 contrary, his sense of right, his indignation at 
 wrong, his emotions of benevolence, are enlisted in 
 the cause he is advocating, they make themselves 
 visible upon his face, they utter their own natural, 
 and therefore appropriate, language ; they kindle, 
 even by their very presence, a sympathy in the 
 minds of the audience, and thus hj persuasion he is 
 enabled to accomplish more even than by his appeals 
 to their convictions. 
 
 Moreover, the Advocate, beyond aU other men, 
 needs to possess the respect and confidence of his 
 fellow men. Character to him is of incalculable 
 value. They must have faith in his honesty of 
 purpose, in the truthfulness of his nature, in the 
 general benevolence of his aims, in his love of 
 
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22 THE ADVOCATE, 
 
 justice, and his detestation of wrong; in his con- 
 tempt for trickery and unworthy arts, whereby 
 to procure a temporary triumph in snatching a 
 verdict; in his consciousness of the greatness 
 of his calling, and the actual boundaries of its 
 duties; or they will look upon him with sus- 
 picion, distrust his assertions, and, however great 
 his abilities and brilliant his oratory, listen to 
 him as an actor merely, whose part, albeit so 
 cleverly played, is, after all, but an assumed one, 
 his emotions feigned and liis argument an ingenious 
 fallacy. 
 
 And to complete the whole, and wanting which 
 the rest will fail to perform their mission, the 
 Advocate must possess, as the gift of nature, and 
 that, too, in a large degree, the class of faculties 
 which, for lack of an apter term, have been styled 
 The Propensities, and which are possessed by man 
 in common with the inferior animals. He needs 
 undaunted Courage, resolute energy in attack or 
 defence. Self-confidence^ and these combined with 
 great Cautiousness and unflinching Firmness. It 
 is the presence or absence of these faculties that 
 produces the sense of strength or weakness we 
 instantly recognise when listening to a speaker; 
 which we are unable to define, but which we feel; 
 and which may perhaps be best described by the 
 terms power and feebleness. The effect of the one 
 is to subdue to itself all minds of lesser power ; 
 the other produces an involuntary feeling of con- 
 tempt, and causes the wisest words to lose their 
 influence. 
 
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ArENTAL QUALIFICATIONS. 23 
 
 Lastly, there is a faculty for which philosophers 
 have found no name, which by few has been 
 admitted into their systems, but whose presence, 
 nevertheless, will be recognised the moment its 
 office is described. We aUude to the faculty, rarely 
 found, but almost more, perhaps, than any other 
 necessary to the Advocate, — or, at least, the absence 
 of which would be, more than that of any other, 
 fatal to his hopes, — by which he is enabled, with 
 ease and rapidity, to concentrate his whole mind upon 
 the matter immediately before him. His duties 
 require him often, within the space of a single day, 
 to devote aU his energies to haK-a-dozen different 
 cases, each altogether unlike the rest in its character. 
 Before he can do justice to any one, he must forget 
 the rest as completely as if they had never been 
 in his thoughts; he must therefore be capable of 
 turning from that one to these others, and, it 
 may be, in a minute's time, to cast aside entirely 
 aU that had been engrossing every faculty of his 
 mind for the last three hours, and throw himself 
 with equal devotion into a matter altogether 
 of a different class and become equally absorbed 
 in that during its progress; and thus through 
 days, and weeks, and months, and years, If the 
 student have not this rare faculty, let him not 
 waste his precious time in seeking to become 
 an Advocate. 
 
 But, it may be asked, how is a man to ascertain 
 if he possesses these needful natural qualifications ? 
 Undoubtedly the search presents the difficulties 
 that impede all attempts at self-knowledge. But 
 
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24 THE ADVOCATE. 
 
 they are not insuperable. They may be overcome 
 by rigid examination, and by seeking the counsel 
 of a judicious and honest friend. 
 
 For the first, bearing ever in mind that desire 
 is not power, nor ambition capacity, let him calmly 
 and deliberately, in the loneliness of his study, or, 
 still better, in the meditations of a solitary walk, 
 task that inward consciousness which usually 
 whispers the truth to us, however slow we may be 
 to accept it, as to his actual possession of these 
 natural qualifications, each in its turn. K the 
 reply be doubtful, let him invoke the aid of memory. 
 He should recal the various circumstances in his 
 life in which a demand has been made for the 
 sudden exertion of those faculties. Did they, in 
 fact, come when they were called for ? Were they 
 equal to the occasion? In practice has he found 
 his perceptions prompt and clear, his judgment 
 ready and accurate? Does he paint in words? Is 
 lie firm and fearless ? Has he force and energy of 
 character ? And these, not as speculations merely, 
 but proved in the experiences of his past life? Not 
 content with this scrutiny, let him go to a court of 
 justice, or to a public meeting, and as the business 
 proceeds, question himself thus : — " What if, instead 
 of being a spectator, I were an actor in this scene, 
 how should I feel? What should I dof If that 
 resolution were placed in my hands, what should I 
 sayl If I were required to cross-examine that 
 witness, could I accomplish it ? How should I reply 
 in this case — how open that defence?" If he find 
 his faculties fail to respond, he may well doubt his 
 
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MENTAL QUALIFICATIONS. 25 
 
 natural qualifications for tlie office. Let him not, 
 like so many others who waste the best season of 
 their lives iii a vain attempt to become that which 
 Nature has forbidden them to be, flatter himself 
 with the false hope that, arrayed in wig and gown, 
 and compelled by the possession of a brief, there 
 would arise within him, as by an inspiration, the 
 powers he cannot call up now, sitting there as an 
 impartial, unexcited spectator ; on the contrary, the 
 consciousness of incapacity would then only the 
 more disable him. 
 
 It must be for want of some such stern preli- 
 minary self-examination as this that the painful 
 spectacle is presented of so many men crowding the 
 mess-tables at the Inns of Court, and sitting in 
 dignified ease at the Bar at Westminster and on 
 the Circuits, so obviously deficient in the natural 
 qualifications requisite for the arduous and difficxilt 
 profession they have adopted, that it is a matter 
 for amazement how they could so have mistaken 
 themselves as to prefer a path in which success for 
 them is impossible, and whose end can only be 
 blighted hopes and a life of poverty or of depend- 
 ance, to one for which Nature has quahfied them, 
 and whose end would be happiness, honour and 
 wealth. 
 
 We have dwelt the more earnestly on this, 
 because we have witnessed so many instances of 
 the misery resulting from the inconsiderate ambi- 
 tion of parents and of youth, that we are anxious 
 emphatically to impress upon all who may consult 
 these pages the necessity of carefully ascertaining 
 
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26 THE ADVOCATE. 
 
 if they possess the natural qualifications for an 
 Advocate, before they stake their fortunes and 
 happiness upon the pursuit of a profession in which, 
 if the highest honours beckon on the one hand, an 
 inglorious poverty frowns on the other, and between 
 them there is no resting-place. 
 
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VI. 
 PECUNIARY RESOURCES. 
 
 Being assured that he possesses the necessary natural 
 qualifications, the aspirant should next betake him- 
 self to the more easy, but less agreeable, task of 
 calculating his PECtJinART Rbsoueces. 
 
 As this is a subject upon which much misunder- 
 standing prevails, not only among young men, whose 
 disregard of it may be excused, but among parents, 
 who ought to know better; as many fallacies are 
 current upon it in society, and which are pro- 
 ductive of an enormous amount of disappointment 
 and wretchedness, we make no apology for dwelling 
 upon it at a length proportioned to its real im- 
 portance. 
 
 There is a very prevalent impression, that pro- 
 Added a man can pay the cost of going to the Bar, 
 he needs not to concern himself about the means of 
 living after he is there ; the examples of a few who 
 have toiled their way from poverty to distinction 
 
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28 THE ADVOCATE. 
 
 are triumphantly described to hesitating youth as a 
 stimulus to rush into the arena, and the dicta of 
 two or three authorities are cited, to the effect 
 that nothing less than the urgency of poverty 
 ■will impel a man to the drudgery requisite to 
 success. 
 
 But Experience tells a different tale. Doubtless 
 a few — very few — have conquered poverty, and 
 thriven in spite of, or, perhaps, even by reason of, 
 the difficulties that have encompassed them. But 
 how few ! Of aU the great men whom the Enghsh 
 Bar has produced, how many are there who entered 
 upon it without an assured income, sufficient at the 
 least for a maintenance, possessed by them inde- 
 pendently of their Profession, supplied by friends, 
 if not the proceeds of property of their own ? It is 
 questionable whether the records of the English Bar 
 could produce twenty such fortunate persons. 
 But they who adduce the twenty examples of 
 triumph over the difficulties of destitution, take 
 no count of the thousands who wrestled with 
 poverty and were defeated in the struggle, who 
 died of broken spirits, or passed to some other 
 pursuit, after the best years of their lives had 
 been wasted in a vain attempt to live poorly 
 by a Profession which demands the addition of 
 experience to ability and learning before it wiU 
 bestow its prizes, or even provide subsistence. 
 
 Let us trace the progress of a Barrister from his 
 first entrance into the Profession as a student, untU 
 the period when he may fairly expect, if he have 
 the natural and acquired qualifications, to obtain a 
 
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PECUNIAEY RESOURCES. 29 
 
 business tliat will support him as a gentleman. 
 Thus we shall be enabled to ascertain very nearly 
 what are the pecuniary resources on which he 
 should be enabled to rely before he hazards his 
 happiness in the pursuit of wealth and honour, 
 certainly so distant^ and usually so dubious. 
 
 The following statements may be relied upon as 
 the results of actual experience. 
 
 Passing by the cost of the education requisite to 
 fit a youth for entering upon the formal study of 
 the Law, these estimates are limited, first, to the 
 cost of legal education ; and, secondly, to that of 
 the pursuit of the Profession during the interval 
 that must elapse, even with the most fortunate 
 and the most able, before the subsistence of a 
 gentleman can be hoped for. 
 
 As the first step, a deposit of 1001. must be made 
 with the Treasurer of the Inn of Court selected by 
 the student. The annual fees required are trifling, 
 not exceeding lOZ. But the practice of the Law 
 must be learned in the chambers of a Barrister or 
 Pleader, to which the established fee of admission 
 is 100^. per annum. To one who knows nothing of 
 the Law previously to his beginning to keep his 
 terms, the three years over which that ceremony 
 extends are not more than sufficient for the most 
 sedulous attendance in the chambers successively 
 of a Conveyancer, a Pleader, and a Barrister. Less 
 than that cannot qualify the student for the practice 
 of his Profession. But say that he dispenses with 
 one of these years of pupilage, and devotes it to 
 diligent study unassisted, there remain two years 
 
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30 THE ADVOCATE. 
 
 of necessary instruction, witli a fee of 200^. to be 
 paid for it. 
 
 But this is not all. During Ms three years of 
 study the student must have a subsistence, inde- 
 pendently of labour. For this, less than 100/. per 
 annum cannot well be counted. Thus, before he 
 can place himself in a position to enter upon the 
 practice of his Profession, an expenditure of 630/., 
 at the least, must be provided for. 
 
 Let not any reader flatter himself with the hope 
 that he may venture to dispense with the 200Z. fee, 
 because it is not made a condition of his call ; or 
 that he can earn his subsistence by some other 
 pursuit alien to the study of the Law during the 
 period of his probation. It is quite true that some 
 do so, and that he may attempt it; but if he goes to 
 the Bar with intent to live hy it, he must consider the 
 consequences. If he have not learned the practice 
 of the Law in the chambers of a Practitioner, or the 
 theory of Law in his own, he may be called to the 
 Bar, he may put on its robes, he may frequent the 
 Courts, he may even obtain business for a time, but 
 it is impossible that he can succeed. 
 
 Entire devotion of the whole time to the most 
 diligent and laborious study of the Law for three 
 years is scarcely sufiicient to supply the student 
 with knowledge enough for the conduct even of the 
 less important business that falls to the lot of a 
 junior. If he have not the practical knowledge 
 acquired as a pupil, he will be perplexed at every 
 trifle in practice, in a public court, where perplexity 
 is ruin. If he look to live during the three years 
 
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PECUNIARY RESOURCES. 31 
 
 by some other pursuit, then that occupation of his 
 time is equally fatal to his legal education. It is a 
 self-evident proposition, that if the most unwearied 
 diligence devoted daily to reading and practice for 
 three years scarcely suffices to introduce him who 
 comes to it a stranger into enough of law for the 
 requirements of a junior's practice, — the three years 
 engaged in obtaining subsistence by a pursuit foreign 
 to the Law must, in fact, be a fatal disqualification. 
 
 Let this be well considered by those who may be 
 prudent enough to calculate probabilities before 
 they stake their fortunes upon the issue. 
 
 " Ccesarem vehis " has been ever since repeated as 
 an illustrious instance of self-confidence. But Caesar 
 was in that only a type of mankind. Each of us is 
 a Caesar in his own esteem. Every man has faith 
 LQ his good fortune, that it will enable him to 
 succeed where all others fail, and that to him even 
 the laws of Nature wiQ yield. In many respects it 
 is a useful confidence; but it should always be 
 taken into calculation by the prudent in estimating 
 probabilities of success in any calling, and they 
 win be wise who do not sufier it to blind them to 
 plain facts and figures, however disappointing these 
 may be to ambition. 
 
 This common weakness of our nature should be 
 borne in mind in the choice of any pursuit ; but in 
 that of the Bar beyond all others. It is, perhaps, 
 that alone in which success cannot be attained 
 without competency. The reason is, that Advocacy 
 is the only profession in which a man cannot dis- 
 guise his deficiencies. In others, he has but to say 
 
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32 THE ADVOCATE. 
 
 little and look wise to be accounted wise by those 
 ■wbo have no opportunity of peeping below the 
 surface. The physician can be properly judged 
 only by doctors as learned as himself, and even 
 from them, by prudence, he may conceal the extent 
 of his ignorance. The Attorney may be almost 
 altogether unskilled in Law, and yet, if he have 
 good conmion sense, not only maintain a high pro- 
 fessional reputation, but really transact his business 
 as satisfactorily as the most profoundly read of his 
 fellows; because he can obtain his law from counsel 
 when he requires it, and his practice from a clever 
 clerk ; but the Advocate cannot thus be learned by 
 deputy; he cannot be of those who are 
 
 reputed wise 
 
 When they say nothing. 
 
 Such as he is he must appear to the whole world 
 — alike to those who are quaUfied to form a judg- 
 ment of his matter, as of his manner ; of his 
 knowledge of the law, as of his general knowledge ; 
 of his capacities, as of his acquirements; of his 
 readiness and tact, as of his slowness of perception 
 and judgment; of his powers of argument, as 
 of the discursiveness .or inconclusiveness of his 
 reasonings. In the most severely critical of aU 
 assemblies, in the presence of Judges, Counsel, 
 Attorneys, Juries, the Public, including all degrees 
 of intellect and all varieties of cultivation, he ex- 
 poses himself to every shade and form of criticism ; 
 many of the critics, moreover, not friendly, and 
 ready to seize upon every show of weakness and 
 inefficiency. Rarely, indeed, can he come armed 
 
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PECUNIARY RESOURCES. 33 
 
 at all points for the particular case — crammed for 
 the occasion — so that his defects may not be dis- 
 covered. Such a reliance would make failure more 
 sure and fatal, for not in one case in a hundred 
 ■wUl he find that he had anticipated the turn of 
 fact or argument, and the preparation for a different 
 one would but make his confusion greater, when 
 the lesson so carefully conned had proved not to be 
 to the purpose. Nor more can he hope to hide 
 defective knowledge under any fluency of words. 
 In a popular assembly, mere voice often passes for 
 ability, and he who talks glibly takes rank before 
 him who discourses wisely. Not so is it in a Court 
 of Justice, nor in Parliament, nor, indeed, in any 
 gathering of men for the purpose of transacting 
 actual business. There they are always preferred 
 who speah to the point in the most sensible manner 
 — if with ease, and grace, and eloquence, so much 
 the better — they are added recommendations — but 
 always is substance preferred to sound, and ease, 
 grace and eloquence, without wisdom, are deemed 
 only impertinences and soon come to be disre- 
 garded. 
 
 The practical conclusion we would inculcate is, 
 that no prudent man should venture upon the pro- 
 fession of an Advocate, unless he can afford to 
 devote to the study of it his whole time, day and 
 night, for at least three or four years before he 
 enters upon practice; nothing less than such a 
 dedication of his hours to the actual pursuit suf- 
 ficing to qualify him to endure the ordeal we have 
 described, and upon the result of which his future 
 
 D 
 
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34 THE ADVOCATE. 
 
 fortunes will depend. Nor should connection nor 
 friends be too much estimated in the calculation. 
 True it is that connections are of infinite advantage 
 to ability, but they will not support incapacity. 
 "Wanting friends to afford to it the opportunity for 
 display, the greatest ability may, and too often does, 
 pine away a life of obscurity and poverty. But, 
 on the other hand, instances are even more nume- 
 rous of men who have been " killed by kindness ; " 
 whose friends have prematurely pushed them for- 
 ward, making their unfitness known, and inflicting 
 an ill character upon them, which abides with them 
 for ever, blighting aU hope for the future. Let 
 it be borne in mind by the aspirant after forensic 
 fame, that no partiaHty of friends, no influence of 
 connection, can help him to success at the Bar, if 
 he have not the needful qualifications, natural and 
 acquired. Not even parental solicitude could twice 
 venture to intrust him with his client's cause, if he 
 show himself incompetent to conduct it. Every 
 day's experience teaches this; for continually is the 
 spectacle exhibited of men coming to the Bar with 
 connections that have the power to place a fortune 
 at their feet, bearing an armful of briefs for a term 
 or two, proving themselves incompetent at the 
 moment of trial, and then falling back into the 
 ranks of the briefless, without so much as the con- 
 solation of hope to cheer their prospects. The Bar 
 is the only Profession in which connections can do 
 nothing to advance or sustain the feeble, though 
 they can do much to help to a position those who 
 have the capacity to maintain it. 
 
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PECUNIARY RESOURCES, 35 
 
 The calculation of expenses must not be closed 
 witli tlie Call to the Bar. On the contrary, the 
 subsequent costs must be considered stiU. more 
 seriously. To the former there is at least a limit ; 
 the uttermost farthing can be known beforehand. 
 To the latter, the most sagacious, the most prudent, 
 the most far-sighted, can set no limit. Three years 
 of expenditure brings a man to the Bar ; but who 
 will pretend to assure himself how many years of 
 outlay will be necessary before he will be enabled 
 to maintain himself there? With the most for- 
 tunate they must be many; with the multitude 
 they are a considerable fraction of a life; with 
 not a few the struggle ends but in despair or 
 death. 
 
 But inasmuch as our present purpose is to set 
 before those who have the natural capacities for 
 the calling the data by which they may be enabled 
 to ascertain if they possess also the artificial qualifi- 
 cations, we will assume the case of a man in all 
 other respects qualified to succeed as an Advocate, 
 and endeavour to learn what are the expenses upon 
 which he must calculate, before his abUities can 
 hope to be rewarded by an income sufficient for 
 his support. 
 
 Nor is this estimate conjectural. The sums that 
 will be set down for outlay are those which appear 
 in the accounts of one who has used the most care- 
 ful economy and calculated every item. Here and 
 there it might be possible to reduce a charge by a 
 few pounds, but others are less than in ordinary 
 circumstances could be relied upon. The whole 
 
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36 THE ADVOCATE. 
 
 "will be found, we believe, a fair representation of a 
 young Barrister's necessary expenditure. 
 
 He must bave chambers, and a clerk, and books. 
 He must attend his Quarter Sessions and his Circuit. 
 He must eat, and drink, and clothe. Occupying the 
 place of a gentleman, he must preserve the appear- 
 ance of one. 
 
 At the first, he wiU, of course, be content with a 
 second or third story in the Temple. Let, therefore, 
 his chambers be set down at 30Z. per annum ; his 
 laundress at \2l.; his clerk at 15^.; and his books, 
 if he limit them to a copy of the "regular reports," 
 at 10^. Add to these primary expenses, IQl. for 
 robing-room, rates, fees, and sundries, and there is 
 a total of 77^., which may be termed the cost of 
 chambers. 
 
 His other expenses are yet more serious. There 
 are four Sessions in each year in every county — in 
 most of them five, in some eight. But, as we are 
 here considering the least expenditure of an Advo- 
 cate at the commencement of his career, we w^ill 
 suppose that his Sessions demand five attendances. 
 The lowest cost at which each can be estimated is 
 8/.— the total, 40Z. 
 
 His Circuit expenses are to some extent optional. 
 He may attend at all the Assizes; he must attend 
 some. But inasmuch as it is the practice for men 
 with straitened means to select, in the beginning of 
 their career, those only of the counties in their 
 Circuits in which they have connections, it wUl be 
 sufficient to place three to the account, and esti- 
 mating the cost of these at the very lowest to which 
 
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PECUNIAEY RESOURCES. 37 
 
 the most calculating economy can reduce them, each 
 maybe counted at 8^. ; and there being two Circuits 
 in the year, the total cost will consequently be 4:81. 
 To this, however, it is necessary to add the Circuit 
 fees, which are about 71. per annum. 
 
 Thus we have, as the inevitable professional costs 
 of an Advocate, for Chambers, Circuits, and Sessions, 
 an expenditure of 1721. per annmn. 
 
 But this includes nothing of his personal expen- 
 diture. He must subsist and clothe like a gentleman, 
 and incur some personal expenses in the claims of 
 his social position. His chambers provide him with 
 lodging. His clerk and laundress suffice for ser- 
 vants. Certainly we do not much over-estimate 
 his necessities, if we sum them together at lOOZ. for 
 the year. 
 
 Thus the gi-and total of a Barrister's annual 
 expenditure, upon which he must calculate as in- 
 evitable^ and without some assurance of which it is 
 worse than rashness to adventure upon the pursuit, 
 even though aU other things give promise of success, 
 amounts to the sum of 2721. per annum. 
 
 And even with a margin for reductions here and 
 there from the above items — the very largest 
 clippings that the most sanguine temperament could 
 venture to make — it may by no ingenuity be 
 brought below 250Z. 
 
 But total sums are never properly comprehended, 
 especially by the young and hopeful; 250^. upon 
 paper looks like something indefinite in the dim 
 distance of a remote future — which by some 
 of those chances that the imagination loveg to 
 
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38 THE ADVOCATE. 
 
 picture, may be provided for wlien the time comes 
 for payment, — if ever it does come, — of whicli youth 
 is apt not to appreciate the uncertainty. Let it, 
 then, be viewed in the more appreciable shape of a 
 demand, that cannot be averted or postponed, — a 
 claim, that will admit of no denial, — of 51. per week 
 — of 155. every day ! 
 
 It is unhappily too true that, by parents as well 
 as by youth, these calculations are usually wholly 
 unthought of when choice is made of a profession. 
 Often is this the result of ignorance, but more fre- 
 quently of a foolish confidence that, despite of all 
 experience, such is the genius, or such the con- 
 nection, in their own particular case, that the 
 expenses are of little moment, for assured success 
 win yield an income that will amply meet them, if 
 not in the first year, in two or three years at the 
 utmost. 
 
 As this is by far the most common and the most 
 fatal error, and the cause of more misery and dis- 
 appointment than any other, it is desirable that the 
 delusion should be dispelled by reference to facts, 
 which wiU be readily confirmed by aU. who have 
 had experience of the anticipations of a call party 
 and the realisation of the first seven years : who 
 have compared results with hopes, and the per- 
 formances of friends and connections with their 
 pro7nises. 
 
 The following statement, like aU we have made 
 or may hereafter make, is the result of actical 
 experience, and we have purposely taken for an 
 instance a case that will remarkably illustrate the 
 
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PECUNIARY RESOURCES. 39 
 
 argument. We have not sought among the un- 
 successful, but from those who have made advances 
 far beyond the average even of such as are called 
 successful. 
 
 We have been permitted access to the fee-book of 
 one who would be deemed singularly fortunate, and 
 whose case remarkably illustrates the above asser- 
 tions, because it had peculiar advantages, which 
 could not be found in one instance in five hundred. 
 It is that of one who became an Advocate in his 
 mature years, with the invaluable advantage of 
 that experience of the world which age only can 
 give, and for which no genius nor learning can 
 compensate, and that practical knowledge of the Law 
 which is obtained by those who have had their 
 legal education in a clerkship to, and some years 
 of practice in, the other branch of the Profession, 
 and who, therefore, necessarily must have enjoyed 
 a degree of confidence, on account of age and ex- 
 perience, which those who want these requisites, 
 although of equal standing at the Bar, cannot expect 
 and could not obtain. The fee-book of our infor- 
 mant, even with these advantages, exhibits the 
 following professional receipts : — 
 
 1st year 6il. 
 
 2nd year 92/. 
 
 3rd year 140/. 
 
 4th year 198/. 
 
 5th year 237/. 
 And these were the professional gains of a man 
 whom everybody called successful; — who was suc- 
 cessful ! At the end of five years he did not earn 
 
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40 THE ADVOCATE. 
 
 enougli to pay his expenses. Probably, by the end 
 of the sixth year, he might have done so. But in 
 the first five years of his singularly successful career 
 as an Advocate, his total expenditure must have 
 been 1,350Z. ; his total receipts were 721^. 
 
 If so it be with one eminently successful, what 
 must it be with others ? If he could not make an 
 income equal to his unavoidable expenditure, until 
 five long years had passed, how many years must 
 be counted upon by those who have to combat the 
 disadvantages of youth and inexperience ? 
 
 There is another element in the estimate that 
 must not be lost sight of, although we never re- 
 member to have seen or heard it adduced in any 
 calculation of the chances of the Bar. 
 
 A successful junior is seen with many briefs, and 
 engaged in many cases. It is commonly supposed 
 that he must be making a good income — at least, 
 earning a livelihood by his Profession. But nobody 
 considers what is the amount of his fees. A junior 
 may have his hands full of business and yet the pro- 
 ceeds will be small. To appreciate this eifect of the 
 lowness of fees upon the practical results as regards 
 income, let it be considered for a moment how many 
 briefs a junior must hold — what an immense amount 
 of business he must not only appear to be doing, but 
 be really doing, — in order to produce, at the rate of 
 junior's fees, an income of 250^. per annum ! Say 
 that they average two guineas each, he must hold 
 125 briefs in the year to enable him to subsist by 
 his Profession. But, in fact, the briefs of a junior 
 do not average so much. At the Sessions and 
 
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PECUNIARY RESOURCES. 41 
 
 Assizes the great majority of fees do not exceed a 
 guinea. In the fee-book before us we find that, in 
 the five first years, were held 441 briefs, which, it 
 appears, yielded 721Z., or a little more than one 
 guinea and a half upon an average, and this may 
 perhaps be deemed a safe estimate for others. At 
 that rate, an Advocate, while a junior, must calcu- 
 late on acquiring a patronage of no less than 166 
 briefs per annum, in order to meet his unavoidable 
 expenses. 
 
 We have put these facts plainly, and with some 
 elaboration of detail, because the pubhc are entirely 
 ignorant of them ; because few even of the members 
 of the Profession have ever seriously considered 
 them ; and because the consequences of that igno- 
 rance have been very serious to individuals, who 
 have rushed into a costly pursuit without suffi- 
 ciently calculating the proportion of their means 
 to its demands, and to families, ill able to endure 
 the burden, who have been for years laden with the 
 support of members who, in almost any other 
 calliag, ia a few months, or in two or three years 
 at the most, would have been enabled to maintain 
 themselves in comfort if not in affluence. An Ad- 
 vocate (and, as it is said, a Physician), are the only 
 two Professions which, while compelled to a large 
 expenditure, cannot, by any ability, or any con- 
 ceivable good fortune, earn their inevitable expenses 
 for many years, because they are the only two Pro- 
 fessions in which age and experience are requisite 
 to confidence — and reaUy to competency, — with 
 this added disadvantage in the case of the Advocate, 
 
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42 THE ADVOCATE. 
 
 that the ascent to honour and profit does not 
 depend upon ability alone, but must be made by 
 that slow march to seniority in standing, which 
 accident may slightly abridge, but which time only 
 regulates, and which, at the best, must extend over 
 many — ^many long years. And when it comes at 
 last — as come it will, if there be the capacity — ^too 
 often is the fortune that it brings swallowed up by 
 the demands of debts that have accumulated during 
 the years of waiting — and of poverty. . 
 
 The practical conclusion we would deduce from 
 the review we have thus taken of the expenses 
 unavoidably attendant upon the profession of Ad- 
 vocate, and which amount at the least to 650^. 
 previous to his caU, and to 250Z. per annum after- 
 wards, is this : — Let no inan, who values his happi- 
 ness, or his ultimate success in life, make the Bar 
 his Profession, unless he has resources, other than 
 his Profession, upon which he can rely for a clear 
 income of 15QI. per annum, at the least. This will 
 stiU leave 100^. to be provided for by that Pro- 
 fession. But that is a risk he may not unreasonably 
 run, if conscious that, in all other respects, he is 
 qualified for ultimate success. With less than that, 
 it would be unwise to incur the hazard. With no 
 resources, as is sometimes seen, it is madness. 
 
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VII. 
 WILL AND COURAGE. 
 
 It is not enough tliat so many natural qualifica- 
 tions should combine with the artificial ones we 
 have described, to permit a prudent man to adven- 
 ture upon the profession of an Advocate ; he must 
 farther be assured, by the same stern self-examina- 
 tion, that, having all those qualifications, he pos- 
 sesses also the Will to grapple with and to subdue 
 the difiiculties and obstacles so thickly strewn upon 
 his path, and the Couiiage that can sustain him to 
 the end, — ^through Herculean toil at the first, then 
 through the yet more trying years of waiting, and, 
 lastly, through the life dedicated to labour which 
 will be his lot, when success shall at length reward 
 his exertions and his patience. 
 
 Has he a resolute Will — the Will that subdues 
 and moulds circumstances to its own needs; the 
 Win that resolves — and does ; the WiU that disap- 
 pointment cannot disturb, nor delay weary, nor 
 
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44 THE ADVOCATE. 
 
 opposition terrify, nor obstacles deter, nor diffi- 
 culties defeat? 
 
 Has lie tlie Mokal Courage to smile at the 
 assaults of rivalry and jealousy; to bear without 
 shrinking the poison-pointed shafts of small slander ; 
 to face abuse — and that which is still harder to 
 endure — ^ridicule? To hear the whisper, and see 
 the smile, and know that he is the object of it, and 
 not to be dismayed nor disturbed? — To see rivals, 
 more favoured by friends or fortune, press upon his 
 heels, or pass him in the race, and not to lose a jot of 
 heart or hope ? — To be accused of faults of which he 
 is guiltless? — To err, and to redeem his fault? — To 
 confess an error, and not be abashed? — To fail, and 
 to try again ? — To be defeated^ and not to be sub- 
 dued? 
 
 If he want such a Will, or such a Courage, let 
 him not adventure upon the profession of an 
 Advocate. 
 
 Of those who enter our Courts of Law, as spec- 
 tators of the proceedings, who see the Advocate 
 with such seeming ease playing his part in that 
 serious drama, stealing the truth out of the wit- 
 nesses, arguing with the Court, making speeches to 
 the jury, consulting with his clients, with no 
 appearance of effort, or of labour, as if those mul- 
 titudinous facts and that knowledge of the law 
 came to him by inspiration, — how many care to 
 reflect upon the years of toil through which this 
 mastery of his art has been attained? But if, 
 ambitious of the like distinction, eager for such 
 honour, panting to possess the same power over 
 
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WILL AND COURAGE, 45 
 
 men's ears and minds, to be heard with such respect 
 by Judges, so to sway Juries, to have multitudes 
 crowding to listen, and, above aU, to wield that 
 power in the defence of the poor and defenceless 
 and in the vindication of right^ the visitor entertain 
 the project of striving for the like honoured and 
 honourable place, let him, besides assuring himself 
 that he possesses the qualifications already described, 
 reflect upon the mental and physical toil which an 
 Advocate must endure in his training and in his 
 practice, and ascertain also if he have the will so 
 to labour, the courage so to endure and to spurn 
 the temptations to indulgence, and the health of 
 mind and body, the constitution, sturdy by nature 
 and confirmed by temperance and exercise, requisite 
 to resist the evil influences of long hours of study, 
 the midnight lamp, the crowded court, irregular 
 meals, incessant wear and tear of mind, the excite- 
 ment of public speaking, the long day of labour, 
 the short night for sleep. 
 
 Flatter not yourself. Reader, that your time of 
 training may be shared between labour and plea- 
 sure. The years when the sense of enjoyment is 
 the keenest must be passed by you in toU and self- 
 denial. So much have you to learn, that, be you 
 ever so apt at acquiring knowledge, the years 
 between your college or school and your entrance 
 upon the practice of this Profession, are insufficient 
 for your education, though they be most diligently 
 devoted to study. The law alone will demand more 
 than that time, for even such a general knowledge 
 of it as wiU suffice for the ordinary business of a 
 
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46 THE ADVOCATE. 
 
 beginner. But, if you aspire to be an Advocate, 
 the law is but & fraction of the acquirements requi- 
 site for you, as you will presently learn when you 
 accompany us through the review of the Advocate's 
 education. You must make up your mind to forget 
 the present and hve for the future; to sacrifice 
 youth for honour and wealth in middle life ; to live 
 like a hermit; to work like a slave; to shun plea- 
 sure ; to dedicate your whole time to reading, and 
 reflection, and observation of the business of life : 
 you wlU have little leisure to devote to its recrea- 
 tions, none to its frivohties. 
 
 If you doubt your courage or capacity to endure 
 all this, do not adventure upon the profession of an 
 Advocate. 
 
 But if you be confident in your power of self- 
 control ; if you be content to stake the pleasure of 
 the present for the chance of the great prize that 
 glitters in the future ; if, with a full consciousness 
 of the sacrifices you must make, the difficulties you 
 must encounter, the toils you must undergo in the 
 training, the delays and disappointments in the 
 pursuit, the absorption of existence in the work 
 when success at length arrives, and brings the for- 
 tune you wiU. not then have the leisure to enjoy; 
 assured that you possess the natural mental and 
 physical qualifications, capacity of intellect, a sound 
 fi'ame, independent resources — in short. Ability, 
 Will, Courage, and Health — then, we say to you, 
 from the instant of resolve, cast aside, at once and 
 for ever, doubt, hesitation, fear, and ftdl of heart 
 and hope, with unfaltering step and eye fixed 
 
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WILL AND COUHAGE. 47 
 
 steadily upon the goal, press forward upon the race, 
 forgetful of the past, careless of the present, and 
 resolute to win the prize, which is not often lost by 
 those who seek it so. 
 
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VIII. 
 THE TRAINING OF THE ADVOCATE. 
 
 It is assumed that the youth who has resolved to 
 adventure upon the profession of an Advocate "wiU 
 have received that preliminary training at school 
 and at coUege, at least at the former, which is 
 called education. The expression is thus guarded, 
 because that which is so termed is really but a very 
 small portion of actual education — ^indeed, little 
 more than its foundation. When the youth imagines 
 that his studies are completed, they are, in fact, but 
 begun. 
 
 Experience soon proves this. Every man who 
 has established a position in any intellectual pursuit 
 will confess how trifling a portion of his practical 
 intelligence was taught to him, compared with that 
 which was self-acquired after his tutors were dis- 
 missed. Imagine a youth suddenly transferred from 
 college to take part in the actual business of the 
 world, in any capacity ! Of how small worth would 
 
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THE TRAINING OF THE ADVOCATE. 49^ 
 
 he find the learning of the schools, upon which he 
 had so prided himself and built up such lofty anti- 
 cipations of success in the struggle of life ! He would 
 discover that he has something to unlearn, much to 
 learn, in which he must be his own tutor. Not 
 that the training of the school and the college are 
 worthless ; on the contrary, they are essential^ as 
 the foundations of practical knowledge and the 
 means by which the faculties of the mind are disci- 
 phned and strengthened and developed. We are 
 anxious only that the student should not enter upon 
 his new pursuit, as too often he does, with an 
 exaggerated estimate of the value of school acquire- 
 ments and coUege triumphs, supposing that his 
 work is already more than half accomplished, and 
 that he has but to appear upon the stage of life to 
 receive there the same plaudits that greeted him in 
 the theatre at Oxford. Let him look upon the 
 honours he has won there but as incitements to the 
 new labours needful for the acquisition of those 
 greater honours to which he aspires. Let him bear 
 in mind that the most intimate acquaintance with 
 the classics, the utmost facility in writing and 
 speaking Latin, the most profoundly critical know- 
 ledge of the Greek dramas, the most accurate 
 memory of dates, the philosophy of Aristotle, the 
 mastery of the mathematics, familiarity with the 
 formulas of the school-logic, are in themselves of 
 trifling worth for any practical purpose, and, in 
 truth, Httle more than the means by which his 
 intellect has been disciplined, his taste cultivated, 
 his mind invigorated, for that education in the 
 
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50 THE ADVOCATE. 
 
 realities and business of the world upon which he 
 is now about to enter. 
 
 With equal humility and resolution, then, what- 
 ever his past triumphs, let him who would succeed 
 as an Advocate apply himself to the new and larger 
 course of training necessary to fit him for the oJ0Sice, 
 as if he were at the threshhold of his education, 
 and not as if he deemed himself at the close of it, 
 counting his former achievements but as proofs of 
 capacity which, sedulously cultivated, will certainly 
 conduct to future fame, and firm to endure the toil 
 and self-denial through which alone the " first-class 
 man," equally with him who has not enjoyed the 
 great advantage of a university education, can hope 
 to achieve the honours of a successful Advocate. 
 
 Assuming, then, that aU needful preliminary 
 education in classical and scholastic acquirements 
 has been obtained in youth (and wanting which it 
 would be unwise to adventure upon the Profession), 
 we take the Student at the point in his career when 
 he quits the school or the college, and invite him to 
 follow us through a brief review of the course of 
 education which it is desirable that he shotdd adopt 
 for the purpose of preparing himself for the Pro- 
 fession of an Advocate. 
 
 And that course of education will be conveniently 
 considered under the three heads into which it 
 naturally divides itself — viz., his Moral, his 
 Intellectual, and his Physical Training. 
 
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IX. 
 MORAL TRAINING. 
 
 Foremost we place the Moral Training of the 
 Advocate, because foremost in importance to the 
 successful discharge of his duties is the Mens 
 CdNsciA Recti ; and, next to that, his Reputation 
 among his fellow-men. Wanting either, his Intel- 
 lect will be shorn of half its influence. 
 
 Let the aspirant set up in his own mind the ideal 
 of a good man, to which he should ever strive to 
 approach nearer and nearer, remembering always 
 that the loftiest courage and the grandest eloquence 
 proceed from a profound consciousness of rectitude 
 of purpose, and that the confidence of others can 
 only be secured, and their emotions awakened, by 
 the reality of sincerity and feeling in himself. 
 Shams of every kind have no lasting success in any 
 pursuit, least of all in the profession of an Advocate, 
 where any art^ other than that which is properly 
 nature cultivated, fails to make more than a passing 
 
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52 THE ADVOCATE. 
 
 impression of admiration at the skill of the per- 
 former. Only a genuine Man can be a great 
 Advocate. 
 
 The character to which the student should aspire 
 is that of the Christian Gentleman, of whose 
 portraiture let us attempt a brief and rudely pen- 
 cilled sketch. 
 
 It is not true that "the manners make the man;" 
 on the contrary, as the man is, so are the manners. 
 Manner is but the mind seen in action. Coarse 
 manners never can accompany a refined mind, nor 
 the graces of a gentleman conceal the spirit of a 
 savage. 
 
 To be a gentleman is rightly held in higher 
 esteem among gentlemen than to be a nobleman ; 
 for the latter is usually the accident of fortune, and 
 the title independent of personal worth; the'former 
 is Nature's endowment cultivated by education. 
 A Duke cannot be more than a gentleman, but he 
 may be less. The word, however, is not used here 
 in its vulgar sense, as descriptive of any class or 
 caUing, or of any circle, social, religious or political ; 
 nor even is it intended to designate any degree of 
 wealth or poverty, but simply the man, be he of any 
 rank, who, to that instinctive sense of right which 
 shrinks from the very shadow of wrong, adds that 
 consciousness of kiadred with humanity which 
 makes him respect the rights and feelings of others, 
 and establishes a sympathy between him and every 
 soul that is. 
 
 This is the characteristic of the Gentleman, 
 whatever his creed or colour. 
 
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MORAL TRAINING. 53 
 
 But to this proud title one more proud should 
 be joined in our time and country : — a title wMch 
 implies something more, and claims other and 
 loftier duties. 
 
 The Advocate should aspire to be the Christian 
 Gentleman. 
 
 To the characteristics described as belonging to 
 " the Gentleman," everywhere, the Christian Gentle- 
 man will add the sanctions of religion. That which 
 in the one is cultivated instinct ascends in the other 
 to the distinction of duty. 
 
 But the superiority of the Christian Gentleman 
 lies not in this alone. Ever present to his contem- 
 plations is a code of the purest and loftiest ethics, 
 and a model of sublimest virtue. His piety is not 
 a formula, or an observance of times and seasons, 
 as if it were only the performance of an obligation ; 
 but it is a part of his being, an ever-present 
 pervading influence, moulding his thoughts and 
 guiding his actions, seen upon his face and heard 
 in his voice. Christianity, the law of love, whose 
 divinity is in nothing so proved as in this, — that it 
 is the only religion the world has known that is not 
 a rite but & feeling — is visible in all his sayings and 
 doings, public and private; and thus is the stem 
 and lofty honour of the Gentleman gracefully com- 
 bined with the mUdness and loving-kindness of the 
 Christian, 
 
 If the high calling of the Advocate be rightly 
 estimated, the advantages of — nay, the necessity for 
 — the possession of such a character, will be readily 
 acknowledged. It will be required alike for self- 
 
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54 THE ADVOCATE. 
 
 sustainment in the discharge of his difficult duties, 
 and to enable him to influence the minds of his 
 fellow-men. His path, though exalted, is beset 
 with temptations, so insidious, so urgent, so instant, 
 that it needs something more prompt than the slow 
 calculations of reason to resist them. In the hurry 
 of a trial, the Advocate cannot pause to reflect upon 
 the rectitude or otherwise of some suggested course ; 
 he must rely upon that inward monitor which 
 whispers in the heart of the Christian Gentleman 
 before the slow voice of reason can be sounded; 
 that instinctive sense of rights at the touch of whose 
 Ithuriel spear aU wrong, whatever luring shape it 
 may have assumed, starts up — the fiend confessed ! 
 The desire to please a client, the still stronger 
 anxiety for the triumph of a verdict, continually 
 tempts the Advocate to practices, for which, indeed, 
 he may appeal to high authorities, but which reh- 
 gion and vea&on forbid. Hereafter we shall endeavour 
 to show that the arts to which we allude, however 
 they may contribute to temporary success, are in 
 the end injurious to those who practise them; but, 
 for the present purpose, admitting that they are 
 too often resorted to, and that they offer very great 
 temptations to an Advocate not already morally 
 and religiously schooled to resist them, it will suffice 
 to indicate their presence. The arts to which we 
 particularly allude are those which, as we must 
 confess, not altogether without foundation, form the 
 staple of popular declamation against the morality 
 of the Bar : — the browbeating of witnesses with 
 intent to perplex the honest, and not with purpose 
 
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MORAL TRAINING. 55 
 
 to confound the perjurer and wring the truth 
 from the liar ; the solemn asseveration of belief in 
 the innocence of a prisoner whom the Advocate 
 knows to be guilty; the yet more fearful, but, as un- 
 happily shown by instances, not impossible, wrong 
 of charging the innocent with the crime for the 
 purpose of shifting it from the guUty ; the taking 
 advantage of the privilege of his gown to asperse 
 the characters of individuals, though not at issue in 
 the cause. We are aware that for some of these 
 practices, and especially for the latter of them, high 
 authorities may be adduced. But believing them 
 to be opposed to the dictates of religion and 
 morality; assured that "to be just and fear not " 
 is everywhere and at all times a safe rxile of con- 
 duct, — that honesty is wisdom as well as virtue, 
 equally in the profession of an Advocate as in all 
 other pursuits, — we are compelled to pronounce 
 these practices incompatible with the character of a 
 Christian Gentleman, and therefore to be contemned 
 and spurned by the Advocate who rightly reads the 
 duties of his office. 
 
 There wiU be no disputing as to the advantages 
 of the character of a Christian Gentleman in the 
 influence it gives him with all whom he has occasion 
 to address, and it would be difficult to overrate 
 the value of that influence. Whatever temporary 
 profit he may sacrifice by the abandonment of the 
 questionable arts above alluded to, he regains fifty- 
 fold in the path thus cleared and made straight for 
 him to the ears, and hearts, and convictions of 
 Judges, Juries and Audiences. The confidence 
 
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56 THE ADVOCATE. 
 
 they all have in his honesty, not merely predisposes 
 them in his favour, but makes them listen, because 
 they know that what he says he means ; induces 
 them to put faith in his assertions, because they are 
 sure he will not deceive them; and inclines them to 
 foUow his argument with attention, because they 
 are confident that all is fairly^ candidly and truth- 
 fully conducted. The very appearance of such a 
 man is an advantage to a cause; he imparts some- 
 thing of his own reputation to whatever is asso- 
 ciated with him ; and when we come to examine the 
 details of practice, and to trace step by step the 
 progress of a cause under his management, it will 
 yet more plainly appear how, in every stage of it, 
 the client reaps the benefit of being represented by 
 an Advocate who is a Christian Gentleman. 
 
 Besides the indirect influence of reputation, such 
 an one enjoys the direct ' influence of sympathy. 
 His kindly views of things — ^his large benevolence, 
 which comprehends all men of aU classes, because 
 " we have aU of us one human heart" — ^his high 
 sense of justice, as knowing no distinctions of rich 
 and poor, high and low — his reverence for that Law 
 of Kindness which Christianity teaches, but which 
 legislatures and tribunals have been so slow to 
 recognise — his ready indignation at oppression or 
 unfairness in any form — ^his consciousness of the 
 proiid privilege of his Profession, which permits, 
 nay, enjoins, him, in the discharge of his duty to the 
 poorest and most friendless being in the world, to 
 employ the same ability, the same energy, as if his 
 client were the noblest in the land, and in his vin- 
 
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MORAL TRAINING. 57 
 
 dication to beard tlie powerful, if need be, with 
 eloquence licensed to all honest eiForts ; — ^tbis con- 
 sciousness, we say, gives to bis words a dignity tbat 
 commands respect and attention, and opens for tbem 
 a way rigbt into tbe feebngs and convictions of bis 
 audience, and stirs tbeir answering emotions. Tbe 
 intelbgent applaud, tbe dullest bsten: be pleases 
 even wben be is unable to persuade. 
 
 By keeping ever in bis contemplation tbis ideal 
 of an Advocate, tbe Student sbould strive to 
 approach it as nearly as be can. But, to enable 
 bim to do so, be must master tbe Christian Code, 
 not in its letter only, but in its spirit; be must 
 habitually mould bis thoughts to its precepts, and 
 try his actions and tbe actions of others by its 
 decrees. Charity — ^we do not mean almsgiving, but 
 that Christian charity which should govern the 
 relationship of man to man, and which is shown in 
 frankly conceding to others the same liberty of 
 opinion and action, and the same fair and kindly 
 construction of motives, we desire for ourselves — 
 must be sedulously cultivated by reading, by reflec- 
 tion, and by practice ; and, thus learned, ■ tbe Law 
 of Kindness will become imprinted upon bis mind, 
 and be tbe touchstone by which be will be enabled 
 to test tbe excellence of all human laws, institutions 
 and social observances. 
 
 His Moral Training, then, as it can never be per- 
 fected, cannot be commenced too soon, nor pursued 
 too sedulously. In that the Advocate must be 
 always a pupil, for the experience of every day of 
 actual practice will serve to confirm his principles 
 
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58 THE ADVOCATE. 
 
 by the frequent illustration of them in action, or 
 by the stiU. stronger evidence of the consequences 
 of their absence, and thus the virtue of the youth 
 will grow into the wisdom of the man. 
 
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X. 
 
 PRACTICAL MORALS. 
 
 Perhaps it may be permitted to us to suggest a 
 few of the more prominent precepts which, in his 
 Moral Training, the Student should cultivate with 
 peculiar care, as being in most frequent demand 
 amid the active labours of his Profession. We 
 pass over the duties universally recognised, assum- 
 ing that no reader is ignorant of their obligation. 
 For the present purpose, it is unnecessary to 
 reiterate the Decalogue, or to enlarge upon that 
 subhme summary of our duty to God and man, 
 which the highest authority has delivered to us : — 
 " Thou shalt love the Lord thy God with aU thy 
 heart, and with all thy soul, and with all thy 
 strength. This is the first and great command- 
 ment. And the second is like unto it, — Thou shalt 
 love thy neighbour as thyself. On these two hang 
 aU the law and the prophets." 
 
 Placing this foremost in his memory, to throw 
 
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60 THE ADVOCATE. 
 
 a pure, unfailing light upon his pathway through 
 the world, let us turn to the more specific maxims, 
 of special utility to the Advocate, applications of 
 the principles of the great Christian Code, but, 
 perhaps, not immediately so obvious, which, as sug- 
 gested by practical experience, it may not be amiss 
 briefly to enumerate. 
 
 Let, then, the aspirant to the profession of an Ad- 
 vocate sedulously train his mind to the exercise^ as 
 well as to the recognition, of the following virtues. 
 
 Foremost of them, as the foundations of cha- 
 racter, as the sources whence spring all the manly 
 virtues, are Self-Rbspect and its twin brother 
 Self-Reliance. 
 
 "Wanting these, there never was, and there never 
 will be, a great man. It is the remarkable feature 
 of our age, that it is wanting in Great Men. We 
 have in abundance clever men, learned men, wise 
 men, able men ; but there are no great men. Mind 
 is, by a hot-bed process forced up, or by merciless 
 pruning clipped down, to one dull level of unifor- 
 mity, and none dares to lift his head higher into 
 the heaven above, or to throw out his arms wider 
 into the world around, than his fellows who want 
 his capacity or his will. Whether the cause be, as 
 some assert, that we read too much and think too 
 little — that the pursuit of material science has 
 made us more knowing than foise, — certain it is 
 that never were the highest intellectual faculties less 
 exercised, and that the decline of individual great- 
 ness has kept pace with the decrease in the culti- 
 vation of philosophy. It may be an argument, if 
 
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PRACTICAL MORALS. 61 
 
 the change be for the general good ; but there can 
 be no question that it is injurious to the characters 
 of individuals. It may he better for the whole 
 community that knowledge should be more diffused, 
 and that a few should not stand out prominently 
 among their fellows ; but since even that is doubtful, 
 while the individual benefit is certain, and no man 
 enjoys such opportunities for greatness as the Advo- 
 cate, if he possess but the power and the will, we 
 cannot too earnestly exhort the student to culti- 
 vate the virtues by which alone greatness is to be 
 attained, in disregard of fashion, in defiance of 
 sneers, in scorn of abuse, in despite of ridicule. 
 
 Reader ! you ask how you shall do this ? The 
 precept is contained in two words — be yourself. 
 
 You are a man. Let that be your title of honour, 
 than which no higher can be conferred by kings. 
 You have a mind^ whose freedom is a birthright 
 given by its Creator, whose liberty is in your own 
 keeping, which no power on earth can enslave, 
 without your own consent. If it be fettered, your 
 own hand must forge the chain and fix the lock. 
 If it continue enslaved for another moment, it is 
 your own fault, for you have but to will freedom, 
 and it is free again, as it came from its Creator's 
 hands. You have an organization^ wonderfaUy 
 framed to accomplish the desires of that mind, 
 through which it communicates with other minds 
 and influences the circle, more or less extensive, 
 amid which it lives and acts. You have a mission 
 here, which, — if you could trace it in all its conse- 
 quences — ^if you could rightly comprehend how 
 
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62 THE ADVOCATE. 
 
 even a thought of yours may modify the destinies 
 of your own and all coming generations, — would 
 awe you by its magnitude; — a place in the world, 
 with duties attached to it, which you must fill to 
 the best of your ability. You have an Immortality 
 for your inheritance — Divinity for your parent. 
 And all this is yours — ^is every man!s, — whatever 
 his family or fortune — ^whatever his country, or 
 colour, or creed, or race — alike of Lazarus and of 
 Dives. Compared with these incalculable riches, 
 which are your birthright^ what are the titles, the 
 stars, the ribbons, the ancestries, and the acres, of 
 those who are the favourites of fortune? To Kken 
 great things to small, it is as if a Baronetcy were 
 conferred upon a Duke, and he were to deem himself 
 honoured by the title. 
 
 We have ventured to remind you of this, not 
 that you should despise social distinctions, nor hold 
 the honours of rank or the advantages of wealth in 
 light esteem, but to show you that your title to 
 self-respect is independent of worldly advantages, 
 and to encourage you to self-reliance. By recalling 
 what it is to be A man, you wiU take heart, and by 
 virtue of your manhood be bold to stand erect and 
 think for yourself, and to dare to do and utter what 
 your free thought dictates. As a man, you will be 
 yourself alone., with only God for your guide and 
 Reason for your rule, and with courage to form 
 convictions, and proclaim them, and hold to them, 
 and act upon them. 
 
 Be a genuine man; genuine in aU things; genuine 
 in manner, in speech, in thought, in deed. No 
 
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PRACTICAL MORALS. 63 
 
 other man that ever existed was like you, and your 
 likeness will never again exist : there is a part 
 assigned to you in the drama of Creation, whose 
 scheme would be imperfect without you. Why, then, 
 strive to seem unlU^e yourself? — For it is only seem- 
 ing. You cannot transform yourself into another 
 being, nor wiU you succeed in imposing upon your 
 fellows. It is a vice of our age that everybody 
 seeks to appear that which he is not. Perhaps it 
 was always so with the many. The same aping of 
 appearances that assumes the shapes of fashion in 
 forms and cant in speech, and produces such moral 
 and intellectual prostration, has ever existed, more 
 or less ; but in our time it is a growing evil, and 
 it will demand an extraordinary eifort on the part 
 of any person entering upon a career of public life 
 to resist the contagious influence, to preserve intact 
 the consciousness of his individuality as a man, and 
 to maintain that self-reliance, without which he 
 cannot approach to real greatness. 
 
 Even as a matter of prudence, it is best to be 
 yourself everywhere and always. Simplicity is 
 truest wisdom. What you are, appear. Be not 
 ashamed of aught you cannot help. Strive so to 
 know yourself that you may estimate your capaci- 
 ties rightly, and seek not to seem greater or less 
 than you are. Society wiU speedily reduce you to 
 your level, if you rate yourself too highly : it is a 
 mock humility that pretends to self-abasement, and 
 contempt is its just punishment. Never is a man 
 so respectable and so respected as when he is 
 content to appear just what nature and education 
 
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64 THE ADVOCATE, 
 
 have made him, neither better nor worse, wiser nor 
 weaker, richer nor poorer, higher nor lower in 
 rank. Are you of noble birth? Good. It is a 
 proud thing to be the inheritor of a name with 
 which is associated great deeds and unsulhed 
 honour: it is the strongest stimulus to transmit 
 that name in its purity to generations to come : it 
 is an advantage of position, the value of which 
 cannot be over estimated, but for which God and 
 man require proportionate services. Are you of 
 humble origin? Good, again. You also have cause 
 for an honest pride in your ancestry. The lower 
 their station, the more your merit in having, by 
 your own abUity, industry and virtue, worked your 
 way upwards, through the difficulties that throng 
 the path of humble merit, and which to have over- 
 come is a sure sign of capacity and perseverance. 
 Dishonour lies only in denial or concealment of the 
 fact. It is in itself an honour ; and in the practice of 
 life we find it acknowledged. It is only the man who 
 assumes an aUiance with aristocracy, to which he 
 has no title by birth, who is held in contempt and 
 scorn. The Genuine Man commands the respect 
 of all classes, and, if he be also the Christian Gen- 
 tleman, he will find that the accident of his birth 
 will not close against him the doors even of the 
 highest in the land. It Avill be seen hereafter how 
 to the Advocate, beyond all other men, these great 
 virtues of self-respect and self-reliance are of incalcu- 
 lable advantage. 
 
 Possess your mind fuUy with the precept that 
 " Honesty is the best policy." Hold it, not as a 
 
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PRACTICAL MORALS. 65 
 
 sentiment only, but with the pervaduig influence of 
 a sincere and solemn conviction. It is a maxim in 
 every mouth ; but how few make it the inflexible 
 rule of their conduct! It is plain that many per- 
 sons flatter themselves they are honest, if they keep 
 their hands from picking and stealing. But 
 HONESTY means a great deal more than absti- 
 nence from Theft. It means fair dealing in every 
 transaction, public or private ; truthfulness of 
 speech ; frankness of deportment ; readiness to 
 HEAR ALL SIDES of every question, and to judge all 
 men — foes as well as friends — those who differ 
 from us, as well as those who agree with us — by the 
 same standard, meting out to them the same mea- 
 sure of charity in the construction of their motives, 
 their words and acts. There is no term in our 
 language whose meaning has been so cabined and 
 confined as this word Honesty. If you profess what 
 you do not believe, assent without conviction, 
 assume what you do not feel, help to deprive a 
 neighbour of his good name by circulating scandal, 
 are overreaching in your dealings, seek your ends 
 by any indirection., sacrifice your independence for 
 patronage, prostrate yourself before the powerful, 
 take mean advantages of those in your power,' 
 exact from your dependents more than you would 
 claim from your equals, stand strictly upon legal 
 rights without regard to the equity of your demands ; 
 in brief, if in any manner you do to your neighbour 
 otherwise than as you would that he should do to 
 you, you are as guilty of dishonesty as if you had 
 picked his pocket. 
 
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66 THE ADVOCATE. 
 
 And this is the unfailing test by which you can 
 always try the honesty and propriety of any pro- 
 ceeding. Question yourself thus : — " Were we to 
 change places, how should I consider that he ought 
 to act towards me?" As the answer is, so act to 
 him. Then seldom, indeed, will you err. 
 
 But it is not enough to know how large a word is 
 Honesty ; assure yourself also that it is really " the 
 best policy" at all times and under all circum- 
 stances. It is a lesson slowly learned and very 
 difficult of apphcation ; but if there be one thing 
 more than another that experience of the world 
 teaches a man, it is that in every condition and 
 transaction of life, equally with individuals and 
 with nations, Honesty is wisdom as well as virtue. 
 How tempting soever the promise of present advan- 
 tage from a contrary course, in the end it wiU be 
 found an unprofitable bargain. It is a moral law 
 by which the order of things in this world is regu- 
 lated — a law universal, irresistible, and which is 
 never violated with impunity. The longer we live 
 and the more we observe and reflect, the more pro- 
 found wiU be our conviction that, even apart from 
 duty, as a matter of prudence and profit, it behoves 
 the Advocate to cultivate the strictest Hokesty. 
 
 Another virtue to be especially cultivated by the 
 Advocate is Moral Courage. It is a virtue at all 
 times rare, but most rare in this our time of intel- 
 lectual depression. Rightly to understand the 
 meaning of the term, it is necessary to note accu- 
 rately the distinction between Moral and Physical 
 Courage, — two quahties in their sources different, 
 
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PRACTICAL MORALS. 67 
 
 in their functions unlike, in their objects and 
 modes of action dissimilar, — yet constantly mis- 
 taken the one for the other. In formal discourse, 
 as well as in conversation, the term Courage is 
 continually applied to acts of mental as to those of 
 physical daring, and they who have not been 
 accustomed to accurate definitions deem them to 
 be the same quality shown in difi'erent forms. But 
 slight consideration of facts will prove that they 
 are in truth distinct virtues, which need not 
 co-exist, which are often seen to dwell apart, and 
 therefore require distinct training. Recall to your 
 memory the crowd of distinguished men with 
 whom history and biography have made you 
 acquainted. Observe in how many of them you 
 may trace the utmost physical daring^ fearlessness 
 of danger, and carelessness of pain, combined with 
 moral cowardice; in how many others there was 
 the most exalted moral courage in combination 
 with physical cowardice. Look among your con- 
 temporaries, in the circle of your private acquain- 
 tances, and mark the same seeming contradiction. 
 But, in truth, it is not an anomaly — nothing in 
 nature is so; — the objects of your contemplation are 
 neither identical, nor even in aUiance. Physical 
 Courage is a physical quality ; it is shared by man 
 with the animal creation ; it is an animal instinct ; 
 it is bom with him ; it is capable of very little 
 education ; it is found equally in the savage as in 
 the civilised, or rather more abundantly in the 
 former than in the latter. Moral Courage is the 
 faculty of an intellectual being; it is the mental 
 
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68 THE ADVOCATE. 
 
 asserting its supremacy over the animal ; it is the 
 sum of all the virtues, at once their product, their 
 representative, their spokesman, and their captain. 
 
 In action^ it is the courage to do and say what- 
 ever you deem to be right, without first asking 
 what is the fashion of the moment, what the doc- 
 trine of the hour, what the state of the tide of 
 public opinion. Remember this, that Tetjth and 
 Right are independent of times and places; they 
 are the same now as they have been from the 
 beginning and ever will be; nor can any shiftings 
 of opinion change their substance or their forms. 
 Let every man whose lot is cast upon the troubled 
 and ever-shifting sea of public life bear with him, 
 as a perpetual monitor for the confirmation of his 
 resolves, to be repeated whenever he feels his moral 
 courage in the maintenance of his convictions 
 wavering before the hostility of the passing opinion 
 of his day, the memorable saying of Galileo, when 
 his hand, compelled by the Inquisition, signed the 
 declaration that the earth was the stationary centre 
 of our system — " Jif moves, for all that." So do 
 you, without imitating his weakness in subscribing 
 to error, remembering ever that truth is truth, and 
 right right, let men say, or rulers enact, or public 
 opinion prescribe, what they will, fearlessly pro- 
 claim your convictions, and face persecution itself 
 with the reflection, '■'■It moves, for all that." 
 
 This is but one form of moral courage. It takes 
 more shapes than in a work like this we could 
 attempt even to name. But there are some in 
 which it is likely to present itself to the Advocate 
 
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PBACTICAL MORALS. 69 
 
 more often than in others, and which, therefore, it 
 will be proper to specify. 
 
 There is need of moral courage^ not only to pro- 
 claim the truth, but to confess error. Than this 
 there is nothing more difficult. It is the sublime 
 of virtue. Its difficulty is shown by its rarity. 
 Whether in opinion or in action, how few are 
 magnanimous enough to confess, " I have erred" — 
 " I was wrong ;" and yet, why should we be 
 ashamed to avow that we are not exempt from the 
 infirmity of humanity? — Why shrink from the 
 adnaission that some other man has arrived at more 
 correct conclusions than ourselves? — that we are not, 
 like the angels, faultless? True greatness consists, 
 not in never falling, but in knowing how to rise 
 again. It is true that, with the malignity of envy, 
 little minds fasten upon the faults of great ones, 
 and flatter themselves that they have reduced them 
 to their own level by showing that they are not 
 infallible. But moral courage will teach us to 
 disregard the LiUiputian darts, and to make our 
 very errors the stepping-stones to improvement. 
 It is impossible to attempt many and great things 
 without falling into some mistakes, and it is easy 
 enough for those who never seek to soar to gratify 
 themselves by counting the falls of those who take 
 flight above them. A man's abilities are truly 
 measured by his achievements, and not by his 
 failures. 
 
 And the Advocate wiU find many occasions of 
 lesser moment demanding the exercise of his moral 
 courage. In the discharge of his duties he is often 
 
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70 THE ADVOCATE. 
 
 required to defy power, to tell truths that bring 
 upon him the enmity of the influential and the 
 alienation of friendship. Sometimes he stands 
 alone to defend an unpopular cause, with the con- 
 sciousness that the feehngs of his audience are 
 arrayed against him, and that he has to fight their 
 prejudices before he can obtain even a fair hearing 
 for his arguments. Only a high moral courage 
 can sustain his spirit through the difficulties of 
 such a position. Sometimes he is compelled to the 
 yet harder task of wrestling with an impatient 
 Judge, and to labour on, conscious that the Court 
 is against him. Hardest of all is the struggle with 
 a hopeless case, and yet to betray no sign of hope- 
 lessness, but to the last to bear up against the 
 adverse tide, with the same unfaltering spirit as if 
 he were advancing to victory. These are occasions 
 for moral courage which can only be understood 
 by those who have endured them. 
 
 Another virtue to be sedulously cultivated in the 
 Moral Training of the Advocate is Command of 
 Temper. It is of incalculable value to him in the 
 conduct of his business, where there is always so 
 much to ruffle the feelings. Tetchiness is one of 
 the most fatal failings in him who would be an 
 Advocate — most injurious to himself, most dis- 
 agreeable to all about him. It is a despotism sure 
 to grow under the stimulus of the continual goad- 
 ings to which it will be subjected in his practice, 
 unless early and sedulously seen, corrected, and 
 controlled by the student. Its presence destroys 
 that cool self-command which is essential to a 
 
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PRACTICAL MORALS. 71 
 
 rapid and sound judgment, and gives an immense 
 advantage over him to an adversary of calmer 
 head. 
 
 Train yourself to command of temper by a reso- 
 lution, in the first instance, not to give expression 
 to it. If it be a natural infirmity, or have been 
 fostered by early indulgence, you will not, by force 
 of your mere -will, cease to feel ; but you may, by 
 stern self-control, shut up your feelings in your own 
 bosom, and forbid them to appear in word, or even 
 in look, or tone. The habit of suppressing the 
 expression of it will in time enable you to subdue 
 the emotion itself You will cease to take offence 
 at trifles ; you wiU come to receive with a smile 
 provocations that formerly would have made you 
 uncomfortable in yourself and ridiculous to others. 
 
 SELr-coNTROL is another virtue wHch he whowould 
 qualify himself to be an Advocate must resolutely 
 cultivate. To command his appetites and his pas- 
 sions is a duty imposed upon him fi-om the com- 
 mencement of his studentship to the last hour of his 
 professional career. His must be a fife of self- 
 denial. His youth wiU be one continual conflict 
 with the temptation of pleasures beckoning without, 
 and nature whispering within. He must forswear 
 the enjoyments that belong to his age and station, 
 to dedicate himself to the hbrary and the lamp. 
 Work, work, work, is his inexorable destiny from 
 early morning far into the night. His recreation 
 must be but an interchange of toUs. With the 
 utmost diligence, and no hours wasted, he will 
 scarce be enabled to qualify himself for the office. 
 
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72 THE ADVOCATE. 
 
 before he will be required to undertake some of its 
 duties. The dinner table and the drawing-room, 
 with their excitements and excesses, are fearful foes 
 to severe and continuous study. Few minds can 
 in a moment revert from the pursuit of pleasure to 
 the pursuit of knowledge, and at once concentrate 
 upon the subject that had engrossed them pre- 
 viously the thoughts that had been forced far 
 astray. Thus, to the time actually expended in 
 the dinner or the dance, must be added the loss of 
 the time which it takes to restore the mind to its 
 former condition of calm, and to recall the wan- 
 dering thoughts to the point at which they had 
 strayed. 
 
 To resist these allurements, there is demanded 
 such a power of self-control as can only be attained 
 by a resolute will, incessant vigilance, and the prac- 
 tice of it, cultivated as a duty, until it becomes a 
 habit. But the Student will ask, how is he to train 
 himself to the practice f It is a question fairly to 
 be put to all who undertake to tell others what they 
 ought to do., and which therefore we are not dis- 
 posed to shrink from answering. We say then to 
 the reader, let him cultivate self-control somewhat 
 after this manner. He must begin by tasking him- 
 self daily; let him allot his hours, so that each 
 shall be provided with its work, and let that work 
 be done at its allotted time, and then only. Let 
 him resolve that, whatever the hinderances of any 
 particular times, compensation shall be made for 
 them before the day, or the week, or the month, has 
 expired. To this end, let him note in a diary such 
 
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PRACTICAL MORALS. 73 
 
 hours as have not seen the performance of their 
 apportioned tasks, and there let them stand as 
 reminiscences of time lost, which he should not 
 rest tUl he has regained. By this arrangement, 
 not only will the Student learn the value of time, 
 but, having resolved to dedicate himself to his 
 duties (and if he is not prepared to do so he had 
 better at once abandon the pursuit altogether), he 
 will not find any time to be devoted to pleasure, 
 without imposing upon himself additional burdens, 
 which he will soon discover to be iU compensated 
 by the enjoyments of an evening. 
 
 So, in after years, if he be successful in his career, 
 his profession wiU engross his existence. Honour 
 and profit will be purchased by perpetual labour ; 
 he will be unable to enjoy the wealth he earns; he 
 may not taste of the luxuries, the amusements, 
 scarcely even of the comforts, of life. That purest 
 and dearest of all delights, indulgence in the plea- 
 sures of home, the joys of a parent, are forbidden 
 to the Advocate in fuU practice. Is not self-control 
 needed to enable him so to dedicate his life to his 
 profession ? But not so hard is his task as that of 
 the young Student, for he has been, by the habit of 
 long years, moulded to his unnatural existence, 
 untU it has ceased to be an effort and become a 
 preference; whereas the Student must subdue his 
 natural inchnations at the time when they are least 
 under control, and deny himself present pleasure, 
 when it wears its most attractive form, for the sake 
 of a reward which is yet future and distant. 
 
 Self-control is also much demanded in the 
 
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74 THE ADVOCATE. 
 
 practice of an Advocate, It has been said that 
 actors and musicians are the most jealous people in 
 the world. Advocates are not far behind them in 
 this particular. The reason is obvious. They aU 
 depend entirely upon their personal merits for their 
 subsistence and advancement; they are brought 
 into direct personal contrast, and hence the two 
 strongest of human passions are subject in them to 
 the incessant stimulus of rivalry, namely, the love 
 of fame and the love of gaia. The success of a 
 rival is to them not merely loss of honour but loss 
 of a livelihood, at least a diminution of income, 
 which, in most cases, is equivalent to ruia. Hence 
 the jealousy which is felt in all professions where 
 men immediately compete for a precedence upon 
 which depend their fame and fortunes. The gen- 
 tlemanly training and habits of the Bar prevent the 
 display of this inevitable emotion in the oflfensive 
 forms it assumes in professions less educated to self- 
 control; but, nevertheless, it exists, and must ever 
 exist, for it is a part of human nature ; and few 
 there are, indeed, who, if they would confess the 
 truth, could refuse to acknowledge that they have 
 felt a pang when they have seen influence and 
 interest lifting inferior merit over their heads; 
 friends on whose support they had counted resort- 
 ing to a rival, only because he is a rival, and such- 
 like trials, to which every Advocate is subjected in 
 the earlier years of his career, before he has attained 
 a standing and a repute that give him so unques- 
 tioned a. superiority that even they who would have 
 retarded his rise are eager to be his supporters, and 
 
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PRACTICAL MORALS. 75 
 
 crowd about him with their services — when he has 
 risen — in spite of them. 
 
 That he may command this emotion, even if it 
 cannot be wholly subdued ; endure slights and 
 ingratitudes, if not without a pang, at least without 
 a murmur, and cease to be ruffled by the vexations 
 and crosses of a calling more exposed to them than 
 perhaps any other, let it be the Student's care to 
 cultivate Self-control. 
 
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XI. 
 
 INTELLECTUAL TRAINING. 
 
 Observation^ Reading^ and Reflection are the teachers 
 by which the Intellect is trained. 
 
 The object of that training is, not alone to fill 
 the mind with facts, but to educate the faculties. 
 Good training consists much more in the cultiva- 
 tion of the powers with which God has gifted us, 
 and in stimulating our own thoughts, than in 
 saturating the memory with facts, and crowding it 
 with the thoughts of others. It is the • office of 
 education, properly understood, to evoke rather than 
 to instil. Very early experience of the world 
 serves to satisfy the observer that Knowledge and 
 Wisdom are not always, nor even often, identical. 
 
 The Advocate is essentially the man of action. 
 His knowledge needs to be extensive ; but it will 
 be worse than worthless if he have not also the 
 power promptly to apply it to the demands of the 
 moment. His superiority over other men lies, not 
 
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INTELLECTUAL TRArNING. 77 
 
 SO much in his possession of a larger store of facts, 
 as in his capacity for drawing from them such as 
 serve to illustrate the subject he is treating, and in 
 showing in an instant, with the speed of thought, 
 in what they agree and in what they differ. Want- 
 ing this facility of putting it to practical use, aU the 
 learning that ever was accumulated within a single 
 head would be of no avail, but rather a burden, to 
 the Advocate. 
 
 Hence the necessity for the Student so to conduct 
 his Intellectual Training that every faculty may be 
 stimulated to put forth its powers — ^that facts may 
 be used as food for reflection — the results of obser- 
 vation and reading reduced to rule and order, and 
 Knowledge passed through the alembic of his 
 mind to be thence distilled in the precious form of 
 Wisdom. 
 
 Two distinct branches of Intellectual Training 
 are required for the Advocate — General and Pro- 
 fessional. Neither can be neglected without ruin 
 to his hopes. 
 
 But the twain may and ought to proceed simul- 
 taneously. Each will facilitate the other. As we 
 have already stated, we assume that the Student has 
 received all that preliminary instruction which is 
 called Education, but which, with the most diligent, 
 forms so insignificant a portion of the training 
 required for the purposes of active life in any pur- 
 suit. We assume, for instance, that he is tolerably 
 acquainted with the classics, with the elements of 
 logic and mathematics, and the usual routine of 
 school and college teaching. We propose to take 
 
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78 THE ADVOCATE. 
 
 up the subject of his training at the point where it 
 is most commonly left by masters and tutors to 
 self-teaching, and endeavour to aid him in his re- 
 search after the best methods for attaining the 
 acquirements requisite to make him an accomplishted 
 Advocate. To do this, we propose to consider, first, 
 the methods for study, as the ordering of his time, 
 and the habits to be cultivated, and then the 
 matters which it behoves him to study, and the 
 books and other appliances by which he may the 
 most readily attain his object. 
 
 In this we shall probably, but with great diffi- 
 dence, diifer much from those who have treated of 
 legal studies. But in this work we have pro- 
 posed to state the results rather of experience than 
 of reading — ^to be received, of course, for so much 
 as they are worth, being ofifered suggestively and 
 not dogmatically. It has appeared to us to be an 
 objection to all the Courses of Legal Study we 
 have consulted (we found it, indeed, practically so 
 to be when we had need to resort to them), that 
 they were too vast and too difficult; the authors 
 did not appear to have calculated Umits of time or 
 capacity of brain : for the most part they are physi- 
 cally impossible ; aU the hours of studentship 
 devoted to reading, as a book should be read, would 
 not enable the Student to wade through the pages 
 he is directed to peruse, to say nothing of the 
 impracticabihty of fixing the attention for an un- 
 limited time upon one topic. The aim of the 
 following remarks will be rather to suggest what 
 can be done than what it is desirable to do : time 
 
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INTELLECTUAL TRAINING. 79 
 
 will be calculated, and aUowance made for rest and 
 recreation ; and, in brief, we shall seek to inform 
 those, who may honour these pages by consulting 
 them, what they may do, because it is very much 
 what many have already done. 
 
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XII. 
 HOW TO STUDY. 
 
 The first care of the Student must be an apportion- 
 ment of his time, so that each hour shall have its 
 allotted duty, and the economising it, so that no 
 minutes shall be wasted. In this lies the secret of 
 the difi"erent degrees of work accomplished by 
 different men. One will do more in a month than 
 another in a year; and yet both wiU appear equally 
 busy. The reason is, that one usefially employs 
 every moment, and the other Hngers in goiag to 
 his task, and wastes the periods that intervene 
 between the ending of one occupation and the 
 beginning of the next. In brief, the former feels 
 that life is an aggregate of minutes, and seizes them 
 as they pass; the latter may recognise it as a fact^ 
 but wants the resolution or the firmness of faith to 
 induce him so to practise. Seeing how much he 
 has to learn, and how short the time for learning, 
 let him who seeks to become an Advocate begin 
 
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HOW TO STUDY. 81 
 
 his studies with an earnest faith in the value of 
 minutes, and a firm resolve to turn every minute 
 to the best account. Let there be no lingering 
 after recreation, no loitering before work; but let 
 him turn from one to the other as promptly as if 
 he was obeyitig a command issued from authority. 
 Let him keep his inclinations ever subject to his 
 
 WILL, 
 
 He must next proceed to methodize the time he 
 has thus resolved to find — or mahe ; and in doing 
 this it will be necessary to bear in mind some rules 
 whereby to regulate the apportionment. 
 
 First, he must remember that the capacity for 
 mental labour is limited. Nature is inexorable; 
 she will permit of no abuse of her powers ; she will 
 suffer none to steal a march upon her. Violate her 
 laws and punishment follows as surely as the night 
 the day. She prescribes a balance of employment 
 for mind and body — so much for labour, so much 
 for rest — so much for study, and so much for re- 
 creation; — ^if you trespass beyond these limits, 
 the penalty is not only incurred, but exacted, with 
 unpitying sternness. If your powers of work 
 extend to ten or twelve hours in the twenty-four, 
 you cannot filch from rest two more and calculate 
 that you have made a gain of fourteen hours in the 
 week. 
 
 A little while and then wiU. come depression, 
 inertness of mind, iU health, and instead of two 
 hours more than the proper allowance, you will not 
 be able to accomplish the regular quantity by two 
 hours ; or, if you persist in poring over the books 
 
 G 
 
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82 THE ADVOCATE. 
 
 for the prescribed time, the mind will refuse to 
 receive or retain what the eye conveys to it. Upon 
 the balance of account there will be rather a loss 
 than a gain to you, by trying to do more than your 
 physical powers will permit. 
 
 Then it is necessary that you vary your occupa- 
 tions. In tendering this advice we are aware that 
 we are dissenting from many and high authorities; 
 but we profess in this treatise to suggest rather the 
 results of experience than the recommendations of 
 books. Actual hard study of any one subject can- 
 not be continued for a long time with unflagging 
 attention. The study of the law, especially, which 
 requires every faculty of the mind to be kept upon 
 the stretch, is not capable of being successfully 
 pursued through many successive hours. It is a 
 law of the human mind that the impressions made 
 upon any of its overstrained faculties should be 
 imperfectly written, dimly retained, and with dijfH-- 
 culty recalled; just as with the eye fixed long and 
 steadUy upon any object, however clearly seen at 
 first, as we gaze it grows dim, and gradually fades 
 away from vision, the strained nerve refusing to 
 convey the image painted upon it. Doubtless you 
 will hear among the boasts of your friends large 
 talk of law read for ten, twelve, or even fourteen, 
 hours a day. Be not therefore dismayed, nor deem 
 yourself a laggard, if your labours are more limited. 
 Be assured that such boasts are not true, because 
 they are physically impossible. No man could read 
 law for so many hours without intermission. The 
 eye may, indeed, be made to wander over the pages ; 
 
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HOW TO STUBY. 83 
 
 but the mind could not be informed, and reading 
 consists, not in the survey of words, but in the 
 storing up of facts in the memory, and pursuing a 
 train of argument for the purpose of arriving at a 
 truth or comprehending a principle. 
 
 For these reasons we suggest the adoption of a 
 system which has been found practically advan- 
 tageous. 
 
 In the first place, let the Student keep a diary. 
 It is essential to regularity. Let it be ever open 
 upon his table, ready for reminiscence or for record. 
 But we do not mean a diary of thoughts and 
 " trivial fond records," such as are sometimes pub- 
 lished after mens' deaths for the gratification of 
 public curiosity, but simply a note-book, having a 
 space for each day, in which the work of that day 
 should be set down at the beginning, and each 
 marked off as it is done. If, at the close of the 
 day, from any unforeseen disturbance, any portion 
 of the allotted tasks remains unperformed, let it be 
 carried to the account for the next day, and thus 
 onward, until, by a little extra exertion, the debt 
 so due to yourself shall have been faithfully dis- 
 charged. 
 
 And, in mapping out the day, make ample 
 allowance for rest and for refreshment. Nothing 
 is gained in the end by unduly abbreviating these. 
 Provided you work without wasting a moment in 
 your working hours, you can afford to be liberal in 
 your apportionment of time to exercises of the 
 body and relaxations of the mind. Above aU, and 
 at whatever sacrifice, begin your allotment by 
 
 g2 
 
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84 THE ADVOCATE. 
 
 devoting two hours at the least in each day to 
 active bodily exercise, and give one of these to the 
 early morning and the other to the evening. So 
 with your meals. First consult health, without 
 which your studies wUl be unproductive and your 
 hopes of future success blighted. Thus, then, 
 would stand the account for the day : — 
 
 Exercise ... 2 hours. 
 Meals and Rest . . 3 „ 
 Sleep . . . . 7 „ 
 For Study . . . 12 „ 
 The allowance for rest and refreshment is here 
 very ample — quite as much as Nature requires for 
 a person of tolerable health and strength. Yet is 
 the time for study sufficient too. The mind could 
 not safely endure more, and it is somewhat singular 
 that, although the hours for refreshment and rest 
 were determined without reference to the hours for 
 study, and these latter were appropriated merely 
 as the residue of the hours not required for the 
 former, the result should show an exactly equal 
 division of the day, as if the equilibrium of health 
 was, in fact, preserved by dedicating one-half of 
 the hours to the body and the other half to the 
 mind. 
 
 The variances in the order of studies should be 
 made with reference to the nature of each. The 
 profound should be exchanged for the more super- 
 ficial; the grave for the gai/; such as engage the 
 reasoning powers for those which appeal rather to 
 the perception or the memory. Natural Science 
 should take its turn with Law; languages with 
 
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HOW TO STUDY. 58 
 
 logic; rhetoric with mathematics, and such like, — 
 an entire change in the faculties employed being 
 in fact a more perfect relief than entire rest. Nor 
 should more than an hour, or an hour and a half, 
 be given at one time to the most profound of the 
 course of studies, — such, for instance, as the read- 
 ing of the most difficult law books. But, inasmuch 
 as a knowledge of the law is the primary object of 
 the Student's labours, law books should alternate 
 with almost every other pursuit, save such as may 
 be particularly exhausting. Thus, if he begins 
 with an hour of law, then devotes half an hour to 
 natural science, then another hour to law, then an 
 hour to languages, then to law again, and so forth, 
 he will be enabled, without weariness, and without 
 that flagging of the attention which no effort of the 
 will can conquer, to give from seven to eight hours 
 of each day to law ; while, if he were to attempt to 
 pursue his legal reading consecutively, in half that 
 time the impressions would begin to grow dim, 
 memory would refuse to record them, and he would 
 discover, long before the period of seven hours had 
 expired, that although he may have read, he has 
 not learned^ and that half his time has been labour 
 lost. 
 
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XIII. 
 HOW TO READ. 
 
 Read slowly and read twice. A book that is 
 worth reading at all is worthy of careful reading. 
 
 Your daily task should comprise three classes of 
 books, aU having instruction for their object, but 
 varying in the degree of labour requisite to be 
 bestowed upon them, — namely, books that inform, 
 books that educate, and professional books. 
 
 The books that inform are those whose primary 
 purpose it is to fill the mind with facts, — as history 
 and science. The books that educate are those 
 which cultivate the reasoning faculties, and teach 
 the mind to frame its own opinions, and evolve its 
 own thoughts; such are philosophy, mental and 
 moral, political economy, languages, and polite 
 literature. Professional books are such as convey 
 a knowledge of the law, and make an accomplished 
 Lawyer of the accomplished Gentleman ; for be it 
 ever borne in mind that the latter is the necessary 
 
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HOW TO READ. 87 
 
 substratum of the former, and that the Gentleman 
 must precede the Advocate. 
 
 The books that inform must be read -with some 
 distrust of the unaided memory. All the appliances 
 of art must be brought to its assistance. History- 
 should never be read without an atlas and a table 
 of contemporary chronology open by the side, and 
 the eye should trace every locality described, and 
 dates should be fixed in the recollection by noting 
 what other events of moment occurred about the 
 same time in other parts of the world. So should 
 the sciences be studied with the help of diagrams, 
 and drawings, and actual experiments, without 
 which it is almost impossible to understand accu- 
 rately the principles and processes described. 
 
 The books that educate should be read after this 
 fashion. Philosophy, ethics, and political economy, 
 whose primary purpose is to teach the mind how to 
 think, should be read slowly, a few pages only at 
 one sitting, and twice over, and then, closing the 
 book, the student shotdd set down, in the fewest 
 words and in the closest logical order, the argument 
 of the author. He will thus at the same moment 
 test his understanding of what he has read, and 
 accustom himself to think closely and clearly. If 
 he find that he is unable to state the argument 
 succinctly, let him read again and again until he 
 have mastered it. This may try his patience at 
 first, but aptitude will grow with practice, and ere 
 long the task will be both easy and agreeable. He 
 will begin to enjoy the exercise of his mental powers, 
 and from learning to glean the thoughts of others, 
 
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88 THE ADVOCATE. 
 
 he will soon come to have clear thoughts and 
 opinions of his own. 
 
 Languages and Polite Literature, which have the 
 twofold object of extending the range of ideas and 
 cultivating the power of expression, besides giving 
 a peculiar refinement and grace which nothing else 
 wiU impart, require only a careful choice of the best 
 words of the best authors, and reading twice or 
 thrice to impress them upon the memory. At the 
 first reading of an eloquent book, the mind is 
 engrossed by its novelty. It must be read a second 
 time for the enjoyment of all the elements of beauty 
 or sublimity that unite to produce the admirable 
 whole. A third time it must be read for the purpose 
 of analysis, to learn the sources of the author's 
 success, that we may learn his art. Remember that 
 the Advocate is but an author who speaks essays 
 instead of writing them. 
 
 Professional books must be read after a different 
 fashion. The law is a peculiar study. Every good 
 law book is a collection of principles and cases, the 
 latter adduced to illustrate the former, or rather, 
 perhaps, to show their application to particular 
 states of fact. The Student's object is clearly to 
 comprehend the principle, its limits, and the excep- 
 tions to it, and these he is often compelled to evis- 
 cerate from the cases. The art of reading law is 
 an aptitude for sucking the marrow of a case, — for 
 discerning the point really decided by it, with little 
 reliance upon the author's citation, and less upon 
 the reporter's marginal note. 
 
 This peculiarity of legal studies demands a special 
 
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HOW TO READ. 89 
 
 manner of reading. You cannot safely read only- 
 one book at a time ; you require to have a library 
 within your reach, and the pen ever in your hand. 
 A note-book is indispensable, wherein to analyse 
 your author, setting down the divisions of the sub- 
 ject, the principles and the deviations from them, 
 and the names only of the leading cases by which 
 those principles and deviations were established. 
 The most convenient form for doing this is to make 
 a threefold division of the pages of your note-book, 
 — in one column setting down the divisions of the 
 subject J in the second the principles, with the cases 
 that establish them ; in the third the deviations and 
 exceptions, with the cases in like manner. This may 
 appear to the unpractised a tedious method of read- 
 ing, but it will be found far otherwise, and will 
 vastly abbreviate labour in the end. 
 
 There is yet another caution to be observed in 
 reading law. Be not content with the author's 
 citation of a case. If the point for which it is cited 
 be of importance, pause there, and read the case 
 itself in the report. The abstract point of law, as 
 stated in a treatise, readily passes out of the 
 memory; the fuU report, in which the facts and 
 arguments illustrate the judgment, not only makes 
 it more intelligible, but is seldom or never for- 
 gotten. 
 
 When you have in this manner completed your 
 apportioned task, you should read twice or thrice 
 the contents of your note-book ; read them again 
 the next day — ^the next week — the next month — 
 to refresh your memory and fix the principles and 
 
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90 THE ADVOCATE. 
 
 the cases in your mind, until you can recal them at 
 any moment when any topic relating to them arises 
 in your reading or conversation. Even in after life 
 they will not be useless to you. These notes will 
 be an abstract of the law, to which you wiU often 
 find it convenient to turn for condensed informa- 
 tion, and for the cases not so readily to be found in 
 the more elaborated pages of the original. 
 
 Nor is this quite so slow a process as might be 
 supposed from the description of it. It is wonder- 
 ful how much a man can do if only he will devote 
 himself to his work, permit no interruptions, set 
 himself his task and accomplish it before he quits it. 
 
 With time, as with money, the art of profitable 
 management lies in looking after the small coins. 
 " Take care of your pence and your pounds will 
 take care of themselves." Treasure your minutes 
 and you need not trouble yourself about your 
 months. Fortunes are composed of farthings. 
 Lives are made up of moments. All great works 
 are completed, not by fits and starts, but by steady, 
 continuous industry. To those who have never 
 given thought to the subject it is a marvel to be 
 told of what may be done by the regular daily 
 devotion to any employ of a small portion of time. 
 Say that the Student can read and note one page 
 of an ordinary law-book in seven minutes (and that 
 we have found from experience to be about the 
 average of time occupied in the perusal of a law- 
 book in the careful manner above recommended) ; 
 this yields eight pages in an hour. If six hours in 
 the course of the day he given to the reading of 
 
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HOW TO READ. 91 
 
 law, the result is about fifty pages as the produce 
 of the day, three hundred pages of the week, fifteen 
 thousand pages for the year — or about twenty 
 volumes ! — and this, after allowing a fortnight for 
 absolute rest, and occupying in the work only six 
 out of the twelve hours of the day which are 
 allotted for study! How trifling the hour's pro- 
 ceeds! How grand the year's product! What 
 more encouragement to industry can the Student 
 require than these simple facts f What more 
 persuasive preachers of perseverance than these 
 plain figures f 
 
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XIV. 
 WHAT TO READ. 
 
 PuESUiNG the arrangement of the classes of studies 
 indicated above, we proceed to state particularly 
 the subjects that may be most usefully introduced 
 into each, dwelling, of course, with more minuteness 
 upon the course of Professional Studies than upon 
 such as fall under the other divisions. But each 
 wiU be suggested with a careful calculation of its 
 practicability, as well as of its utility to the future 
 Advocate. Nothing will be recommended which 
 it is not within the Student's capacity of mind and 
 time to compass, and from which he will not in 
 after-life reap some advantage. Let us avow that 
 we are perfectly aware of the difficult and delicate 
 nature of this duty; our consciousness that the 
 courses of reading we may suggest will find 
 numerous dissentients — in parts, at least — almost 
 every reader having some favourite author or par- 
 ticular plan of study which he prefers toany other. 
 
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WHAT TO READ. 93 
 
 Indeed, we offer them with much diffidence, and 
 without dogmatism, as the suggestions of a practical 
 man, rather than as rules prescribed by a pedant. 
 They are not the product of any theory ; they are not 
 modelled after any system ; they are nothing more 
 nor less than the actual experiences of one who has 
 practically reaped the advantage of what he did, and 
 felt the disadvantage of what he had omitted to do. 
 It has been truly said that we learn more by our 
 failures than by our successes ; and so, we trust, 
 the reader will profit more by the writer's experience 
 of the wisdom he has wanted^ than by any knowledge 
 he may have been so fortunate as to acquire. 
 
 To each class of study we now propose to devote 
 a distinct section. 
 
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XV. 
 
 STUDIES FOR INFORMATION. 
 
 Information, varied and extensive, is the founda- 
 tion of intelligence. The Student may be assiired 
 that there is no such thing as useless knowledge ; 
 occasions for its apphcation will offer often when 
 least anticipated : and even if there be no caU for it 
 from without, it Avill be found of infinite service in 
 moulding thought and guiding judgment. To the 
 Advocate especially, who is daily required to deal 
 with subjects dififering the most widely one from 
 another, and with whom it is impossible to antici- 
 pate to what strange topic his attention may be 
 suddenly directed, without time to permit of a 
 reading-up for the occasion, an extensive acquain- 
 tance with the entire circle of human knowledge is 
 of incalculable value. 
 
 First of all, let him master the principles and 
 most prominent facts of Physical Science, begin- 
 ning with Astronomy and ending with Man. Let 
 
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STUDIES FOTl IIWORMATION. 95 
 
 US not be misunderstood as inculcating any such 
 herculean task as the mastery of the problems and 
 processes by which the facts taught by science are 
 proved, but only an acquaintance with the general 
 principles of each of the sciences, and the laws and 
 ii'uths that have been discovered. For instance, in 
 Astronomy, the Student needs not to pursue the 
 calculations of the astronomers — for that would 
 only be required if he were about to become an 
 Astronomer — but it will suffice that he learn the 
 mechanism of the heavens, as they have revealed 
 it. Thus viewed, the task will not be found so 
 difficult or laborious as at the first glance it might 
 appear. A Httle reading every day wiU suffice to 
 carry the Student through the entire course within 
 the period of his probation. 
 
 An outline or map of human knowledge wiU help 
 to indicate the natural order of study, which, if 
 methodically pursued, is not only abbreviated, but 
 impresses itself more thoroughly upon the memory, 
 each subject falling into its proper place, so that it 
 may be readily recalled when wanted. 
 
 Seeking some arrangement of knowledge which 
 should be at once simple, natural, and comprehen- 
 sive, we fell into the following train of thought, 
 which, because of its novelty, we submit with much 
 doubt and deference. 
 
 Suppose a man to have been suddenly placed 
 upon this world, with his intellect fully developed, 
 but before any impression had been made upon it 
 through the senses, and then suddenly, with his 
 mind, as it were, a blank page, awakened to 
 
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96 THE ADVOCATE. 
 
 sensation, having the desire and the capacity to 
 learn : — what would be his proceeding? 
 
 He would look round him upon the world with- 
 out, and the thought would arise in his mind, 
 " Where am I ?" He would contemplate himself — 
 his form so curious, his feelings so strange and 
 various — and he would ask, " What am I?" Then 
 reflection would begin to stir within him, and, 
 reviewing the world without and within, and pon- 
 dering upon the mystery of existence, he would 
 exclaim, " Why am I?" 
 
 And the replies to these three questions compose 
 the entire circle of human knowledge, developed in 
 its natural order. 
 
 That is the order which we would recommend 
 the Student to pursue. 
 
 Where am I? Standing upon a ball that roUs 
 in infinite space, a part of a planetary system, itself 
 a part of another system. The relationship of this 
 round world to the rest of creation is taught by 
 Astronomy. Geology teaches the past history of 
 this ball ; Geography the aspect of its surface ; 
 Chemistry and Mineralogy its composition; Botany 
 the vegetation with which it is clothed ; Natural 
 History the animal life which swarms upon it; 
 Meteorology describes the atmosphere that wraps it 
 round; Electricity, Galvanism, Magnetism, develop 
 the laws of the mysterious fluid which permeates 
 the mass, and is the agent by which aU organic 
 changes are produced ; Mechanics, Hydrostatics, and 
 Hydrodynamics teach the laws of motion and rest, 
 as the result of gravitation. 
 
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STUDIES FOR INFORMATION. 97 
 
 All these exist as facts in nature^ independently 
 of man, and would still be, if he were not. Other- 
 wise it is with the sciences that present themselves 
 in answer to the second question. 
 
 What am I ? For this we must first seek the 
 sciences of Anatomy, to teach the mechanism of the 
 human frame, and Physiology, to teach its functions. 
 
 But the human being is composed of two parts 
 — mind and body. Mental Philosophy will teach 
 the anatomy and physiology of the mind — its struc- 
 ture and functions. 
 
 And from the relationship of this mind and this 
 body to the external world proceed certain sciences 
 and arts, which would not be if man were not. 
 Such are Acoustics, or the science of sound, and 
 Optics, or the science of sight. So, from the manner 
 in which the mind contemplates space proceed the 
 sciences of Mathematics and Geometry; from its 
 notions of numbers, Arithmetic ; from its faculty of 
 thought. Grammar and Logic ; from its capacity 
 for speech. Rhetoric and Languages ; from its sense 
 of the beautiful, the Fine Arts ; from its ingenuity 
 of construction, the Useful Arts. In brief, what- 
 ever teaches what man is and what he can do, is 
 comprised in the answer to the question — What 
 am If 
 
 The third and grandest query. Why am I ? con- 
 ducts at once to the loftiest themes that can engage 
 the human intellect — Religion, and Philosophy, 
 Moral and Political. The objects of existence are 
 to discharge certain duties here and to prepare for. 
 an eternity hereafter. Religion reveals the rela- 
 
 H 
 
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98 THE ADVOCATE. 
 
 tionship of man to his God ; Moral Philosophy, the 
 relationship of man to man, as individuals ; Political 
 Philosophy, the duties and relationship of men as 
 members of the conununity. 
 
 In this manner, we beheve, are comprehended 
 within these three questions the entire circle of 
 human knowledge. There are many sciences which 
 we have omitted to specify, because they are, in 
 fact, but branches of others, as Comparative Anatomy, 
 of Natural History, and Vegetable Physiology of 
 Botany. 
 
 Nor is the list really so formidable as it looks. 
 The greater portion of every treatise on science 
 consists of the problems by which the facts stated 
 are proved. It is not necessary for the purpose 
 of the general student that he should master 
 more than a knowledge of the facts and of the 
 fundamental principles of the sciences. He will 
 accept them upon the authority of others, who have 
 made it their business to test the evidence by which 
 they are established. 
 
 But, in reading, the Student should carefully 
 resort to diagrams and illustrative engravings, and, 
 wherever it is practicable, make the experiment 
 which exhibits the fact asserted, not only to give 
 him habits of close observation, but because there 
 is no teacher like the eye. He should seize every 
 opportunity for attending lectures at which experi- 
 ments in natural science are shown, and for the 
 inspection of workshops and manufactories where 
 the processes of science are to be witnessed in 
 actual operation. This duty cannot be too earnestly 
 
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STUDIES FOE INFORMATION. 99 
 
 impressed upon the Student who seeks to become 
 an Advocate. 
 
 The portions of the scheme of knowledge which 
 belong to the class of studies at present under con- 
 sideration are those that inform. Those that educate 
 vriU be treated of hereafter. 
 
 The books that may be recommended to the 
 Student for the acquisition of natural science are so 
 numerous that merely to name them would be 
 tedious. We will suggest a few only, which we have 
 found in practice to serve the purpose, but with a 
 notification to the reader that doubtless many as 
 good, or better, may be procured. 
 
 Joyce's Scientific Dialogues is, perhaps, the best 
 book for a beginner, as it is remarkable for the 
 simplicity, yet aptitude, of its illustrations, and its 
 felicity of exposition, so that subjects usually diffi- 
 cult to be understood by a learner are made intelli- 
 gible even "to a child. For the best collection of 
 the facts of each of the sciences, Chambers's Infor- 
 mation for the People may next be read, and then, 
 for the applications of them, the various Treatises 
 published in the Library of Useful Knowledge. These 
 three works wiU be found to convey as much know- 
 ledge of science as is needful for the uses of the 
 Advocate, with a few exceptions, which we proceed 
 to name. 
 
 There are some sciences with which the Advocate 
 requires a more intimate acquaintance than with 
 others, because he will be hkely to have more fre- 
 quent occasion to deal with them in his practice. 
 Such are — 
 
 H 2 
 
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100 THE ADVOCATE. 
 
 Anatomy and Physiology^ the value of a know- 
 ledge of which it would be difficult to exaggerate. 
 Whether his practice call him into the Criminal 
 Courts, or confine him to the Civil Courts, the 
 Advocate will find an acquaintance with the human 
 frame and its functions in continual request, and 
 the possession of it yielding him great advantage 
 over those who are not equally informed. What a 
 mastery does it give him over a cause in which the 
 issue turns upon a medical question ! Competent 
 to cope with professional witnesses, and to interpret, 
 as it were, their technicalities to the unlearned jury, 
 he not only appears to an immense advantage in 
 the eye of the public, but he is able to protect the 
 interests of his client as no other man could do 
 who had not his scientific knowledge. Experience 
 of the advantage resulting from it leads us earnestly 
 to recommend all Students for the profession of an 
 Advocate to make themselves intimately acquainted 
 with Anatomy and Physiology. For an introduction, 
 we know of no books so fitted as Dr. Southwood 
 Smith's Philosophy of Health^i and Dr. Andrew 
 Coombe's Physiology applied to Education and Health. 
 But with reading there should be combined the study 
 of the human subject, either in the dissecting-room, 
 or by means of one of those wax models which 
 have been introduced from Florence. A minute's 
 inspection will teach more than an hour's reading. 
 
 Chemistry.^ as being associated with so many 
 subjects of litigation, groAving out of patents, manu- 
 factures, and such Hke, should be particularly 
 investigated by the Student. 
 
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STUDIES FOE INPOEMATION. 101 
 
 Mechanics^ both theoretical and practical, is 
 another science which should be intimately learned 
 by the Advocate, who, in a manufacturing country 
 like this, has so continually to deal with litigation 
 involving questions that appertain to it. 
 
 Of Arithmetic and Algebra he should also possess 
 more than a superficial knowledge. 
 
 Architecture^ among the Fine Arts, should engage 
 particular attention ; and among the Useful Arts he 
 should, by inspection, learn the manner of Book- 
 keeping^ as usually practised in a merchant's office. 
 
 .K ever the reader has frequented the Courts of 
 Law, he will have observed the utter bewilderment 
 commonly occasioned by the production of a trader's 
 account-books; — the blank gaze of perplexity and 
 despair with which counsel turn over the leaves of 
 this, to them, worse than Egyptian scroll ; he will 
 have heard the irrelevant examinations and cross- 
 examinations that betray the most entire ignorance 
 of the manner in which the business of the count- 
 ing-house is conducted, and the consequent ease 
 with which a witness of ordinary sagacity baffles 
 and evades his querist. It is strange, remembering 
 how large a portion of the labours of the Law 
 Courts is connected with mercantile accounts, and 
 the methods of business among traders, that this 
 has never yet formally entered into the education 
 of the Advocate. We trust that our readers will 
 not lose sight of a subject whose importance will 
 become more apparent the more they consider it. 
 But they must remember, also, that it is a knowledge 
 that cannot be obtained from books or mastered in 
 
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102 THE ADVOCATE. 
 
 the study. They xnust go abroad to seek it, and 
 condescend to be taught (if to be taught can ever 
 be deemed a condescension) by the merchant's clerk, 
 and the obliging shopkeeper. 
 
 We might enlarge this list, but our object is not 
 to supply a catalogue of books, so much as to indi- 
 cate the direction of studies, and the nature of the 
 books and other means by which they may be pur- 
 sued. The Student will mould them according to 
 his tastes and opportunities. 
 
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XVI. 
 STUDIES THAT EDUCATE. 
 
 The studies next to be described are those, at once 
 tbe most important and the most neglected, which 
 do not, like the sciences already enumerated, convey 
 knowledge from without, but stimulate the mind to 
 action, and educate, that is, call forth, the faculties 
 that are within. There is no word so commonly 
 misapplied as the term Education, and that confu- 
 sion of meaning has produced incalculable mischiefs. 
 It is usually employed as synonymous with the term 
 Instruction; whereas the two words mean, not merely 
 in strictness of verbal definition, but in fact, two 
 processes precisely opposite the one to the other. 
 Instruction is the implanting of knowledge ; Educa- 
 tion is the cultivation of the mental faculties: the 
 one is passive, the other active j they may coexist, 
 but they are as frequently found apart. Nothing 
 is more common than a learned man wanting in 
 sense, or a sensible man deficient in learning. For 
 
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104 THE ADVOCATE, 
 
 the ordinary purposes of life, a combination of both 
 is desirable ; but for the duties of an Advocate, 
 it is absolutely essential. 
 
 It is necessary to the Advocate that he should 
 possess a rapid and vivid flow of ideas, a ready 
 command of words, the faculty of quick and accu- 
 rate combination of thoughts, with a power of rea- 
 soning which should have almost the character of 
 intuition. He must be endowed by Nature with 
 the requisite capacities ; but he can only be indebted 
 to long and arduous study for the abUity to put 
 forth aU the powers of the wondrous instrument 
 with which he has been gifted. Be assured that no 
 natural genius will supply the place of study ; the 
 finest capacities wUl need cultivation; only by long 
 and laborious training can they be brought under 
 subjection to the judgment, and kept to their proper 
 places and uses in intellectual labour. 
 
 Foremost of the studies that educate is Philo- 
 sophy ; — a term not very easily defined, but readily 
 understood. Perhaps the derivation of the word 
 will suggest the best description of it. Literally 
 the Love of Wisdom^ it may be more accurately 
 described as the Science of Wisdom. But this is a 
 very rude and imperfect definition, because, under 
 the title of Philosophy, many things are marshalled 
 which do not properly belong to the branch of 
 study now under consideration. For the present 
 purpose of this treatise, it wUl suffice that the 
 reader understands that we are referring only to 
 that Philosophy which grows out of the existence 
 of the human mind, and its relationship to the 
 
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STUDIES THAT EDUCATE. 105 
 
 natural and spiritual worlds between which " life 
 hovers Hke a star." Thus understood, Philosophy 
 offers itself for consideration in four divisions: — 
 Mental Philosophy^ which concerns itself about the 
 nature and faculties of the human mind; — Moral or 
 Ethical Philosophy^ which regards the duties of the 
 individual man to his fellow-men ; — Political Philo- 
 sophy^ which investigates the duties of men, in the 
 aggregate form of communities or nations, to them- 
 selves and to other nations ; and Spiritual Philo- 
 sophy, which seeks to explore the relationship of 
 the soul of man to the existences, not palpable to 
 the bodily senses, that hedge us round about. 
 
 We cannot too earnestly commend to the reader 
 the study of these various branches of Philosophy, 
 as a part of his daily course'^of reading. It wiU be 
 of incalculable service to him, directly, by the 
 wisdom it implants, indirectly, by the habit of 
 reasoning and of reflecting 'it will foster. More 
 especially is a profound acquaintance with Mental 
 Philosophy of inestimable worth to the Advocate. 
 We are so earnest in this exhortation to the Student, 
 because it is a truth which we have proved, and not 
 merely a theoretical proposition. Every day makes 
 its value more apparent ; and if we were asked what 
 of the studies of our youth had proved most ser- 
 viceable to us in the practical business of life, we 
 should not hesitate to answer, " The study of Mental 
 Philosophy." There is scarcely a pursuit in which 
 it is not profitable ; there is scarcely an occurrence 
 that brings a man into contact with his fellow-men, 
 in which he is not able usefully to apply this know- 
 
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106 THE ADVOCATE. 
 
 ledge. But in the peculiar duties of the Advocate 
 it is in daily, — hourly, — requisition. Whether he 
 examines a witness, or addresses a Jury, or a Judge, 
 his acquaintance with the nature and faculties of 
 the mind is equally in request. It is true that, to 
 some extent, all who mingle with the world do 
 practically acquire a great' deal of this knowledge. 
 But we do not propose that the Advocate should 
 content himself with either reading or experience 
 only. He must mingle them, to correct the short- 
 comings of one by the other ; for they do not per- 
 form the same functions, nor in their results will 
 they be found alike. Experience teaches only the 
 naked fact, without the reason for it, and conse- 
 quently, when it presents itself in other combina- 
 tions, mere Experience falls into the most grievous 
 mistakes. Nor can it safely predicate anything that 
 has not come within the limited range of its own 
 observation, for, ignorant of the cause, it is unable 
 to calculate the influence of other concurrent cir- 
 cumstances upon the result. So, he who has learned 
 Mental Philosophy in books alone, although famihar 
 with its principles, fails in their practical applica- 
 tion, if he have not learned also to study the mind 
 in actual operation, and to note the manner in 
 which the faculties express themselves in the coun- 
 tenance and demeanour. But, for the foundation 
 of his knowledge, let the Student master the Philo- 
 sophy of Mind, as teaching him the nature of the 
 instrument which it will be the future business of 
 his life to operate upon, and whose Anatomy and 
 Physiology it is as much his Profession to be 
 
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STUDIES THAT EDUCATE. 107 
 
 acquainted with, as it is that of the Physician to 
 know the Anatomy and Physiology of the body. 
 
 It is by this that he is enabled, not only to 
 measure his own mind, but to read the minds of 
 others. Familiar with the nature and operations 
 of the mental facilities, he can trace the motives of 
 actions, and account for much that, to others not so 
 well informed, seems wrapt in mystery. Knowing 
 the strength and weaknesses of those whom he 
 desires to influence, he can approach them at the 
 most accessible points and subdue them when they 
 least expect it. 
 
 In the examination of witnesses, he is enabled to 
 elicit truth and detect falsehood; in deahng with 
 evidence to the Jury, he is enabled to explain and 
 make intelhgible to them motives of action which 
 often give to men's conduct a very different com- 
 plexion from that which it assumes on the first 
 glance at its outward aspect. These are a few only 
 of the practical uses of Mental Philosophy to the 
 Advocate. 
 
 To indicate the books in which the study of it 
 may be best pursued is a delicate task, for what- 
 ever may be recommended wiU be sure to find 
 objectors from the sectarianism, that unhappily, 
 even now, is exhibited in relation to this branch 
 of science. Instead of treating it like the other 
 sciences and contributing to a common store of 
 facts, with purpose to deduce from them principles 
 that may be generally recognised, it is to be 
 lamented that the Philosophers have formed schools, 
 and invented systems, and launched hypotheses, 
 
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108 THE jiVDVOCATE. 
 
 and sought to make their followers pupils of a 
 master, instead of scholars of nature, precisely as 
 was done formerly with the Physical Sciences, until 
 Bacon rent the chain and substituted experiment 
 for hypothesis, and fact for conjecture. Mental 
 Science still lags far in the rear, and is, even in this 
 age, shackled by the fetters from Avhich Bacon so 
 long since emancipated Natural Philosophy. There- 
 fore it is impossible to indicate any course of 
 reading which will not offend some devotees of 
 some other of the many systems, whose very exis- 
 tence is proof how little we have really learned. 
 Nevertheless, we must incur that hazard, or leave 
 our design imperfect, and without professing at- 
 tachment to any particular school, and without 
 acknowledging allegiance to any teacher or system, 
 we name the books that, from experience^ we have 
 found to be best calculated to accomplish the 
 Student in Mental Philosophy. 
 
 For a beginning, we would recommend Dr. 
 Thomas Browne's Lectures on the Philosophy of the 
 Human Mind ; to be read, not because his system 
 is true — for it is not — but because his descriptions 
 of the particular faculties and their operations are so . 
 graphic, and his style is so eloquent and fascinating, 
 winning the reader to love the science he expounds, 
 and implanting a taste for the pursuit of it, which, 
 thus kindled, is not likely again to dechne. 
 
 Next, we would recommend a patient and atten- 
 tive perusal of Comhe's Phrenology. But be it 
 understood that we do so without expressing either 
 assent to or dissent from the peculiar theory of 
 
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STUDIES THAT EDUCATE. 109 
 
 mind taught by the phrenologists. Nor is it neces- 
 sary that the reader should form any opinion of his 
 owTi upon that moot question. It is not for this 
 that we desire it to be read, but as presenting the 
 best analysis of the faculties of the mind and their 
 functions which has yet been propounded. It 
 should be observed that this has no necessary con- 
 nection -with the system out of which it has grown. 
 The doctrine of phrenology is, that the brain is the 
 organ of the mind, that it is a congeries of organs, 
 each having a distinct function, with powers regu- 
 lated by size and consequently apparent in the form 
 of the skull. JN^ow it is obvious that all this may 
 be false in fact, without in any manner aifecting 
 the divisions into which the phrenologists, for the 
 purposes of study, have classified the mental 
 faculties. For instance, whether it be true or false 
 that there is a part of the brain dedicated to the 
 faculty of reasoning, or of number, and that this is 
 visible in an increased bulk of the brain in that 
 part, it is certain and will be admitted by all, that 
 the mind does in fact possess the faculties of num- 
 ber and reason, and that they naturally vary in 
 power in different persons. So may the entire 
 theory of phrenology be rejected, and yet its ad- 
 mirable analysis of the mental faculties and their 
 functions will remain as true descriptions of the 
 human mind, an intimate acquaintance with 
 which will be found of incalculable utility to the 
 Advocate in his practice. It requires only a little 
 attention to sever the indubitable portion of Mr. 
 Combe's work from that which must be admitted by 
 
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110 THE ADVOCATE. 
 
 all impartial persons to be — as yet, at least — ques- 
 tionable and unproved. 
 
 The perusal of Locke and Stewart may follow, 
 but ratber as exercises for the thought than as 
 guides to be implicitly accepted. 
 
 Moral Philosophy should form another branch of 
 the education of the Advocate. It teaches the 
 duties of man, as an individual, to his fellow-men. 
 Such portions of it as peculiarly concern the 
 Advocate have been already specifically examined 
 in the course of our review of his moral training, 
 and therefore it will be unnecessary to do more in 
 this place than recommend the attentive perusal of 
 Paley's Moral Philosophy^ as, perhaps, the book 
 that may best be consulted for a systematic exposi- 
 tion of the subject. But it should be read in 
 combination with Combe's Essay on the Constitution 
 of Man, otherwise the Student may fall into serious 
 errors in his estimate of the obhgations of morality. 
 From the latter he will learn that the moral law is 
 no deduction of reason, but that it is written by 
 the finger of God upon the heart of man; that it 
 is immutable and eternal, and that its obhgations 
 are enforced by punishments as certain as those 
 which follow the violation of Nature's physical or 
 organic laws. 
 
 Political Philosophy has special claims upon the 
 attention of the Law-Student, and should occupy a 
 proportionate space in the programme of his 
 labours. It properly embraces, not only the science 
 of Government, but the sciences of Jurisprudence 
 and of Political Economy. There is no branch of 
 
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STUDIES THAT EDUCATE. Ill 
 
 these that is not oi practical utility to the Advocate, 
 even in the immediate duties of his Profession, 
 independently of the recollection, he ought ever to 
 keep before him that success in that Profession 
 conducts invariably to a place in the Legislature, 
 and consequently to the discharge of functions to 
 which an extensive knowledge of these sciences is 
 indispensable, if he would be an active and useful 
 public servant. Therefore we make no apology for 
 dwelling upon them at greater length than at the 
 first glance their apparently slight connection -with 
 the education of a Lawyer would seem to justify. 
 
 History presents itself under two aspects, and 
 will come to be ranged under the studies that 
 belong to instruction, or those that belong to 
 education^ according to its kind. There is History, 
 or rather that which passes by the name of History, 
 which professes simply to narrate the principal 
 facts in the life of a nation, as they are found in 
 tradition or record, without the exercise of reason 
 to sift the false from the true, and with no effort to 
 make a practical use of the lessons of the past to 
 form the wisdom of the present. There is also 
 History, properly so termed, which investigates 
 probabilities and weighs evidence in its review, and, 
 as it goes along, traces events to their causes, dis- 
 covering thus the moral laws which Providence has 
 prescribed equally to nations and to individuals; 
 finding in the errors of old times rules for the better 
 regulation of our own era; deducing lessons of 
 statesmanship, the principles of national economy, 
 the sources of a people's greatness or decline, and 
 
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112 THE ADVOCATE. 
 
 thence the code of laws by which happiness is best 
 promoted, and the forms of government that have 
 proved in operation to be the most conducive to 
 the general well-being. This is History proper, and 
 it has been aptly described as Philosophy teaching 
 by example. This is the manner in which it should 
 be studied by the Advocate, not only for the extent 
 and utility of the knowledge it imparts, but for the 
 stimulus it gives to his intellectual powers, and the 
 habits it cannot fail to form of reflection, of caution 
 in the acceptance of assertion in the apphcation of 
 one state of facts to another, of ready reasoning, of 
 quick perception of distinctions and similitudes, and 
 of estimating the worth of testimony. 
 
 We assume that the Student has already, in his 
 school and college training, acquired at least a 
 general knowledge of the history of the world and 
 of the nations that have flourished in it; that he 
 is not very deficient in Chronology; that he is 
 acquainted with the principal events, not only in 
 their order in each country, but in their relationship 
 to one another in contemporaneous history. It 
 will not be necessary, therefore, for the present 
 purpose, to invite him to begin his researches ajfresh. 
 The histories of the ancient world he is sure to "be 
 familiar with ; but it is questionable, as education 
 is conducted in England, whether he possesses more 
 than a mere chronological acquaintance with modem 
 history. But, as an exercise for his reasoning 
 powers, and to cultivate the habit of sifting and 
 weighing testimony before he accepts it as truth 
 and makes it the foundation either of opinion or 
 
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STUDIES THAT EDUCATE. 113 
 
 action, we would strenuously urge him to a slow 
 and careful perusal of Mebuhr's History of Rome 
 and Grote's History of Greece. He cannot too 
 soon learn the disagreeable, but necessary, lesson, 
 how much of that which he has been wont to 
 receive with implicit deference as unquestioned and 
 unquestionable truth is really but the fiction of the 
 poet or the imposition of the priest, — ^how very 
 small is our actual information as to the history of 
 the times that preceded the discovery of the art of 
 printing, — how dubious is much even of that which 
 the press has preserved. 
 
 Modern History., as being the history of the 
 origin and progress of the existing state of society, 
 its governments, its ideas, its manners, its civUisa- 
 tion, and therefore of vastly more value to all who 
 are to mingle in the business of real life, should 
 occupy a large space in the studies of the Advocate. 
 He should read slowly, with maps before him and 
 pen in hand, to note dates and contemporaneous 
 events, the best history of each of the nations that 
 now occupy the face of the earth, beginning with 
 his own. 
 
 The History of England cannot be learned from 
 one book, nor ought it to be studied thus narrowly. 
 Every historian has his own bias, political or sec- 
 tarian, and colours his narrative according to the 
 hues of his own opinions or prejudices. The judi- 
 cious Student wiU, therefore, sedulously endeavour 
 to avoid the danger of partial impressions, by 
 reading the works of those who are most opposite 
 in their views, and drawing his own conclusions 
 
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114 THE ADVOCATE. 
 
 from the comparison. As the best foundation for 
 the study of EngHsh History, as the largest and 
 most accurate collection of its facts, and as present- 
 ing the history of the people, and not merely of 
 Kings and Courts, we would strongly commend 
 The Pictorial History of England, published by Mr. 
 Knight. It is beyond compare the most interesting 
 and instructive book of its class which our litera- 
 ture possesses. This read, it would be well to 
 peruse parts of Hume, for the sake of his style ; of 
 Hallam, for the sake of his philosophy ; the entire of 
 Macaulay, unrivalled as a revivification of the past, 
 and portions oiLingard, as showing the aspect under 
 which the same events present themselves to a mind 
 of an opposite bias, and for the new light which 
 undoubtedly his investigations have thrown upon 
 many portions of our annals which party and sect 
 had perverted for their own purposes. As further 
 illustrative of these more formal narratives, the 
 Student may with advantage read some of the 
 best of the biographies with which the libraries 
 abound. Lord Campbell's Lives of the Chancellors 
 should occupy a prominent place, as having for him 
 a double interest. Mr. Foster's Life of Cardinal 
 Wolsey, and his Lives of British Statesmen, in the 
 Cabinet Cyclopoedia, may be consulted with great 
 advantage, as may also Miss Strickland's Lives of 
 the Queens, and Mr. Townsend's Lives of the 
 Judges. 
 
 A philosophical History of England, composed 
 with purpose to apply the lessons of the past to the 
 instruction of the present, yet remains to be written. 
 
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STUDIES THAT EDUCATE. 115 
 
 Our literature can boast of none such, for England 
 is not fruitful of PhUosopliers. 
 
 In like manner, one good history, at least, of 
 each of the other nations should be read; but the 
 choice may be left to the Student. 
 
 Besides the formal histories, there are some works 
 on the Philosophy of History which should be perused 
 with particular attention. Foremost among them 
 we would place Guizot's Lectures on Civilization ; 
 Schlegel, also, may be consulted with advantage. 
 
 And, in addition to the histories of nations, there 
 are some histories devoted to particular epochs 
 which should not be overlooked. Of these, the 
 greatest in itself and in its effects upon the present 
 condition of the world is the French Revolution. 
 With that, in all its various aspects, he who is ever 
 likely to take part in the politics of his own time 
 cannot too familiarly acquaint himself. Not only 
 should Alison's History be read, but he should 
 consiilt the narratives of Lamartine in his History 
 of the Girondists, of Thiers in his History of the 
 Consulate and the Empire, and of Carlyle, in his 
 History of the Revolution. Our own Revolution 
 should also receive separate study. 
 
 Such a programme may appear formidable, but 
 it is not so in reality. The same steady, continuous 
 industry, devoting to it a determinate portion of 
 each day, and a resolve that the close of every 
 week shall count a certain number of pages 
 mastered, will help the reader through an array of 
 volumes most alarming in a group. Remember 
 that twenty-five pages per day are one hundred and 
 
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116 THE ADVOCATE. 
 
 fifty pages per week ; and that a year would thus 
 enable you to read seventeen volumes^ with the daily 
 application of half an hour at the utmost. Five years 
 will place you in possession of aU that is most requi- 
 site to be known of history ; and that, as a collection 
 of facts as well as a storehouse of philosophy, makes 
 you the possessor of a store of practical wisdom 
 which, in every stage of your career, will be found 
 of infinite service to you. Is not the advantage 
 well worth the labour of the acquisition ? Could 
 half an hour a day for five years be more profit- 
 ably or more pleasantly employed ? 
 
 Next after an acquaintance with the facts of 
 History should come its Philoophy ; and especially 
 that portion of it which relates to the Constitution, 
 Government and Laws of each particular nation. 
 Perhaps, with all its faults, the best book on that 
 topic which our language possesses is Lord 
 Brougham's Political Philosophy. The Philosophy 
 of History should be succeeded by the study of 
 Political Economy^ than which there is none more 
 useful to aU who mingle with the business of the 
 world, and to the Advocate especially, inasmuch as 
 it teaches habits of close attention, of caution, of 
 calculation, and of looking for the truth beneath 
 the surfaces of things. Adam Smith's Wealth of 
 Nations should form the foundation of this study, 
 to be followed by the works of M'CuUoch and 
 MiU, or such of the best authorities as the reader 
 may have inclination or leisure to consult, espe- 
 cially the remarkable contributions of Colonel 
 Thompson in the Westminster Review. 
 
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STUDIES THAT EDUCATE. 117 
 
 Then will the Student be prepared to enter upon 
 the difficult but deeply interesting science of Juris- 
 prudence^ which he must pursue as sedulously as 
 time will permit, because it will be directly useful 
 to him in the acquisition of Positive Law, which 
 constitutes strictly his Professional Education. 
 
 But that the scheme we are suggesting may be 
 more clearly comprehended, it will perhaps be con- 
 venient to state the sense in which we are using 
 certain of the terms that wiU be found here. 
 
 Under the title of Political Philosophy we include 
 aU the sciences that combine to constitute the 
 Science of Government. The art of Statesmanship 
 is the result of very various knowledge. It must 
 be based on an accurate acquaintance with the 
 Philosophy of the Human Mind; upon an extensive 
 knowledge of the History of Man ; upon an accurate 
 understanding of the proper province of Law ; upon 
 profound study of the sciences of Political Economy 
 and of Jurisprudence. 
 
 By the term of Jurisprudence we intend the 
 entire Science of Law-making. It teaches us Law 
 as it ought to 6e, not Law as it is. The proper 
 subjects for Legislation, the manner of dealing with 
 them, how laws should be framed and how adminis- 
 tered — these are comprehended in the Science of 
 Jurisprudence. But it does not concern itself, as it 
 is often supposed to do, with Law as it is, other 
 than for the purpose of illustration and by way of 
 proof, in the course of argument. The business of 
 the Jurist is to teach us what laws ought to be, 
 and how to construct them. The business of the 
 
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118 THE ADVOCATE, 
 
 Lawyer is to expound and administer them after 
 the Jurist has made them. For the present, we are 
 considering only the studies necessary to give to the 
 Advocate, who should be both Jurist and Lawyer, a 
 knowledge of the Science of Jurisprudence. 
 
 The first step is to assure himself what are the 
 proper boundaries of legislation, for it is the 
 neglect of this that has produced the greater 
 portion of the mischiefs that have resulted to man- 
 kind, and stiU do result, from bad government. 
 History is fuU of the fearful consequences of thus 
 trespassing beyond the boundaries of Jurisprudence, 
 and attempting, often with the most benevolent 
 motives, to regulate by Law matters with which 
 Law has no concern. Three-fourths of the labours 
 of modern legislatures have been employed in 
 undoing what had been foolishly done by their pre- 
 decessors, acting in ignorance or disregard of the 
 limits of their ftinctions. Nor is the evil, yet quite 
 stayed. At home we daily see attempts made by 
 the less informed, both in and out of Parliament, to 
 stretch the law beyond its province, and abroad we 
 have beheld the same mischievous propensity in 
 active operation and producing the multiphed 
 miseries that inevitably result from it. The only 
 security against the repetition of the mischief is, 
 that all who are likely to take part in the business 
 of legislation should early inform themselves what 
 are its proper boundaries, and then, la&ym^ principles 
 for their guide, they wiU be enabled to withstand 
 the temptations to trespass beyond those boundaries 
 which are continually offered under the alluring 
 
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STUDIES THAT EDUCATE. 119 
 
 promise of some seeming present advantage, with- 
 out calculation of the cost of future evil at which all 
 departures from principle are inevitably purchased. 
 
 The book from which this most valuable know- 
 ledge may be best gathered, and which, therefore, 
 should be first read, is Austin's Province of Juris- 
 prudence Defined — a work of great utUity as a fine 
 exercise for the mind, independently of the know- 
 ledge it conveys of the important subject to which 
 it is devoted. 
 
 This may be followed by such of the works of 
 Bentham as relate to Jurisprudence, and which, 
 although often extravagant in their conclusions, 
 contain, upon the whole, the most valuable collec- 
 tion of the principles of that science, and sugges- 
 tions for their application, which the world possesses. 
 Mr. Arthur Symons's little book on the Mechanics 
 of Law-making may also be read with great advan- 
 tage, as may many of the articles on the same 
 subject which will be found scattered through the 
 early voltunes of the Westminster Review, 
 
 But the severer studies of Philosophy should be 
 mingled with those which appeal to other than the 
 reasoning faculties, — ^not, however, for the sake of 
 relaxation, so much as because it is right to culti- 
 vate all the intellectual faculties, and to improve to 
 the utmost that magnificent instrument, the mind, 
 with which we are gifted, for the glory of God, for 
 the benefit of our fellow-creatures, and for our own 
 honour and happiness. The opinion that too much 
 prevails in relation to Philosophy, that it is a pur- 
 suit of no practical utility, that it is abstract, 
 
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120 THE ADVOCATE. 
 
 dreamy, dry, and repulsive, fitted only for the 
 retirement of the library, but out of place in the 
 business and realities of every-day life, is a preju- 
 dice which it is the duty of all who have any 
 influence with the reading public to endeavour to 
 dispel, for nothing can be more false in fact. 
 Philosophy, as it is now understood, is pre- 
 eminently a, practical pursuit; it is to be learned in 
 the busy world at least as much as in the retire- 
 ment of the study. The mind, indeed, must reflect 
 in solitude, but its materials for reflection must be 
 obtained in society ; from personal intercourse with 
 men; from personal knowledge of afi^airs; from 
 personal inspection of mind in action; for, if its 
 information be derived from books alone, it will fall 
 into the most fatal errors. Mental Philosophy can 
 be acquired only by observation of the manner in 
 which the various faculties combine to influence the 
 conduct of men, and their manifestations can only 
 be correctly read after long practice. Contempla- 
 tion of the actual world can alone assure us of the 
 great truth of Moral Philosophy, that nature has 
 her moral laws, to which she enforces obedience by 
 afiixing to every breach of them punishment, which 
 follows as certainly as the shadow pursues the sun, 
 and thus only can the maxim that Honesty is the 
 best Policy become a firm conviction. Still more 
 is Political Philosophy to be learned in the streets, 
 in the mart, and in the newspapers ; a mere closet 
 acquaintance with it is worse than worthless — 
 for it is the science, not alone, as it is termed, of 
 the wealth of nations, but it is the rule of economy 
 
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STUDIES THAT EDUCATE. 121 
 
 for individuals, teaching them how to live and 
 thrive ; it is, in fact, the Philosophy of meat, drink, 
 washing and lodging. 
 
 These practical uses, and the interest it thus 
 ^ves to every word and act of our feUow-men, and 
 to every movement and phase of society, making us 
 observers of, and therefore sharers in, the pursuits, 
 feelings, pleasures, and pains of all men, from the 
 highest to the lowest, tend to create in us a large 
 sympathy with our fellow creatures, which exercises 
 the most wholesome influence upon our own temper 
 and turn of thought. Thence springs true philan- 
 thropy : not the wretched cant of it which is the 
 fashion of our time, but that genuine fellow-feeling 
 which, recognising as a fact that " we have all of 
 us one human heart" is the parent of Charity; — 
 the Charity of the Bible, which consists, not only in 
 giving from superfluities to those who ask, but the 
 rarer charity that excuses faults, forgives wrongs, 
 acknowledges virtues in opponents, admits that 
 worth is of no party nor sect, and that another may 
 differ from us in religious or political opinion, and 
 yet be as honest and as estimable as ourselves. 
 
 Can that be a dry and dull study which is thus 
 to be pursued where "men most do congregate," 
 and which concerns itself about all that is most in- 
 teresting and important in relation to man's welfare 
 and progress here, and seeks even to penetrate the 
 veU of the future that awaits him ? Is it possible 
 that any occupation could offer more attractions ? 
 
 Let, then, the Law Student, purposing to become 
 an Advocate, whose occupation will hourly demand. 
 
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122 THE ADVOCATE. 
 
 not merely the knowledge which it teaches, but the 
 mental activity and power which it fosters, begin 
 betimes the pursuit of mental, moral, and political 
 philosophy, mingling the study of the master- 
 minds who have recorded their thoughts upon it m 
 books with his own personal observation of the 
 world. This, in fact, is the province of true philo- 
 sophy; for what, after all, is this formidable learning 
 but the Science of Man, viewed under his twofold 
 aspect as an individual and as a member of society? 
 
 We have dwelt thus long and urgently upon this 
 topic, because it is one whose value is, we fear, very 
 imperfectly understood, upon which great prejudices 
 prevail, which has been, and stiU is, too much 
 neglected in this country, but which the Advocate 
 would do well to cultivate, as a branch of his edu- 
 cation, of the worth of which in after life he will 
 become more and more sensible, as the experience 
 of every day will prove to him its infinite utility in 
 the practice of his Profession, and how great 
 advantages it gives him over those who have not 
 made the same ample preparation. 
 
 Throughout the long and arduous course of 
 study which we have indicated as necessary to 
 form an accomplished Advocate, Polite Literature 
 should not be neglected. It will not suffice that 
 he possess knowledge, and that his mind be 
 thronged with thoughts; he must enjoy the faculty 
 of readily, and in a pleasing form, conveying that 
 knowledge and those thoughts to others. To this 
 end he must cultivate taste, quicken his perceptions 
 of the graceful and the beautiful, and make himself 
 
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STUDIES THAT EDUCATE. 123 
 
 familiar with the aptest words and the most 
 pleasing manner of expression. This branch of his 
 education, inferior in importance to none other, he 
 may combine with needful relaxation from severer 
 toils. We have already urged the necessity for 
 variety of employments, because the mind will not 
 endure continuous attention to one subject without 
 danger to its health ; and it was intimated that the 
 hardest tasks of the day should be succeeded by 
 occupations of an opposite kind, so as to give entire 
 rest to the faculties that have been toiling, by 
 diverting the attention and engaging faculties that 
 have been idle. A change of employment does, in 
 truth, give more perfect relaxation and rest than 
 absolute idleness. Hence it is well to seek an em- 
 ploy for those requisite periods of relief, which, 
 while diverting the thoughts, shall turn the 
 moments of diversion to profit. Polite Literature 
 accomplishes this object. 
 
 Daily, then, and more than once in each day — 
 indeed, so often as you feel your attention flagging 
 and the mind halting behind the eye, as it passes 
 over the pages that demand a memory of minute 
 facts and the pursuit of intricate threads of argu- 
 ment, do you seek relief in some volume of poetry, 
 or fiction, or graceful essay, or eloquent discourse. 
 Of these let there be ever at hand in your study a 
 choice assemblage, from which you may select, 
 according to the mood of the moment, a companion 
 either cheerful or grave, humorous or sentimental. 
 Read aloud, if possible, although but to your 
 chamber-walls, for thus you will read more slowly, 
 
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124 THE ADVOCATE. 
 
 and the necessity for giving the proper emphasis 
 to the words will compel you to a comprehension 
 of the author's ideas. Besides, one of the principal 
 objects of this sort of reading is to place at 
 your command ready and apt expressions ; and the 
 words that enter through eye and ear at once be- 
 come more firmly fixed upon the memory than if 
 received through one sense alone. But this is not 
 all the advantage that results from the combination 
 of such books with your more formal studies. The 
 reading of all works that appeal only to the per- 
 ceptive and reasoning faculties, and especially of 
 technical works, and beyond all others of law-books, 
 tends insensibly, but surely, by the force of habit 
 and imitation, to mould the Student's mind to 
 that angularity and hardness so disagreeable in 
 society, and induces the dogmatism that makes the 
 pedant, while to the Student of law it superadds 
 that most odious form of pedantry — a professional 
 phraseology. 
 
 This tendency of thoughts and words to run in 
 one accustomed track can only be subdued by con- 
 tinual counteraction. It must not "be permitted to 
 grow into a habit. The regularity of learned labour, 
 which is the parent of pedantry, should be as regu- 
 larly disturbed by the interposition of reading that 
 wlU cultivate the imagination and the sentiments. 
 By cherishing the sense of the sublime and beau- 
 tiful, it will insensibly impart grace to manner, 
 refinement to thought, eloquence to speech; — 
 accomplishments without which the profoundest 
 learning loses half its value, and the wisest man 
 
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STUDIES THAT EDUCATE. 125 
 
 half Ms usefulness. It is a truth, however unsatis- 
 factory, that the manner is more esteemed by the 
 world than the matter. Nay, it is difficult, even 
 for the most critical, not to listen with more plea- 
 sure and attention to an unsubstantial discourse 
 gracefixUy delivered, than to the speech most full of 
 wisdom and learning that is uttered in coarse 
 phrases, with ungainly action, and in harsh tones, 
 or in that which is even worse — in the formal, 
 correct, logical, and dry phraseology, and with the 
 dogmatic manner, of the schoolman, who supposes 
 that the rest of mankind, like himself, are to be 
 moved only by a syllogism and an authority. 
 
 Of Poetry let the Student procure an ample store 
 of all countries — of all ages. It is a vulgar and 
 ignorant prejudice that represents poetry as frivo- 
 lous and useless. To produce it is the loftiest 
 eflfort of human intelligence, and its perusal awakens 
 the noblest faculties of the mind. Poetry is the 
 appeal from our divine against our human nature, 
 startling us from too entire devotion to the pursuits 
 of pleasure or profit, and recalling our thoughts to 
 the duties that belong to us here and the destinies 
 that are promised to us hereafter. If it do not directly 
 minister to the purposes of wordly advancement, it 
 profits us indirectly by the sense of the becoming 
 which it imparts, by its humanising influences, by the 
 indefinable but unmistakable impress of a cultivated 
 mind which it stamps upon the face, the voice, the 
 manner, and which is of itself a letter of recommen- 
 dation to the bearer. 
 
 It will suffice merely to name some of those poets 
 
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126 THE ADVOCATE. 
 
 "which should be within the Student's reach, for 
 perusal in the moments of recreation that should 
 divide his severer studies. Others may be added 
 according to his taste. 
 
 Foremost for the present purpose of education 
 we place the poets who suggest thought, conducting 
 us, as it were, to a height and then bidding us con- 
 template the prospect whose more prominent 
 features only they attempt to describe. These are 
 the philosophical poets; and the best of them be- 
 long to our own time. Wordsworth should hold 
 the highest place in the Student's catalogue, as well 
 for the purity and transparency of his language, as 
 for the sublimity of his ideas. He has been well 
 termed the Priest of Nature ; it might be added 
 that he is also the Prophet of Humanity. It is im- 
 possible to hold habitual intercourse with his works 
 without feeling the heart expand, the intellect 
 taking clearer and wider prospects of creation, 
 without a keener sense of duty and a more ardent 
 desire to perform it faithfully. With him combine 
 the poetry of Coleridge^ less simply grand and 
 more imaginative, but as profoundly true. 
 
 Then Byron^ for his passionate thoughts and 
 burning words, so apt for the expression of emotion, 
 and therefore so valuable to an orator; Southey, 
 for his pure Enghsh idiom; Moore, for the spark- 
 ling brilliancy of his words and his exquisitely 
 graceful ideas, imparting a more delicate sense of 
 grace and beauty to the reader; Milton, for his 
 grandeur of conception and the classic dignity of his 
 composition — the most majestic discourses that ever 
 
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STUDIES THAT EDUCATE. 127 
 
 proceeded from human pen ; Scott, for his pic- 
 turesqueness, which, as we shall have occasion to 
 show hereafter, is so important an element in 
 successful oratory; Crabbe, for his vigorous de- 
 scriptions of character; Shelley, for his refinement 
 of thought and language ; Pope, for his harmony 
 of words : — all these, and such others as individual 
 taste may incline unto, should be within the 
 Student's reach, portions of one or of some of them 
 to be read daily, at the intervals of severer toU. 
 Nor should this wholesome practice end with the no- 
 vitiate, but be sedulously pursued through life, even 
 amid the most distracting claims of business, for then, 
 indeed, it is that there is most need to cherish the 
 divinity that is in us — to withdraw the thoughts 
 for a time to loftier themes than briefs and law- 
 books, and to remind us continually that we do not 
 live for law alone. Nothing will so surely efifect 
 this as the habitual reading of the best Poetry. 
 
 With the Drama, in like manner, there should 
 be a daUy intercourse; at least, with Shakspere — 
 in himself a world of wisdom, wit and poetry fur- 
 nishing the memory with stores of thought, always 
 apt and always acceptable, because always intel- 
 ligible. 
 
 Nor should Fiction be neglected. A good novel 
 is Philosophy in practice. It is like a book of 
 travels ; it exhibits man in spheres of action beyond 
 the immediate circle of your own observation, and 
 therefore, next to society itself, it is most instruc- 
 tive. It is impossible that any man, having other 
 occupations, could mingle personally with all the 
 
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128 THE ABVOCATE. 
 
 social circles painted in the best novels. Hence 
 their utility. They give him a knowledge he could 
 not otherwise obtain, and that of a kind the most 
 practically useful to him — ^the knowledge of man 
 and of society. Nor is the Historical Romance 
 without its uses. Not only does it convey to the 
 mind a more distinct idea than does formal history of 
 the times treated of, and of the great men who flou- 
 rished in them, presenting the actors as in life, and 
 making the past as present, so that the dead seem 
 to live, and move, and speak, before us, and we 
 think of them as beings whom we have known 
 personally, and not by report alone ; but the His- 
 torical Komance yields this further advantage to 
 the Advocate, that it cultivates his powers of de- 
 scription, than which, next to power of argument, 
 none is so essential to his success. It gives him a 
 graphic style ; accustoms him to look at things in 
 their most picturesque aspect, and teaches him how 
 he can most vividly paint them upon the minds of 
 others. Of these, the Romances of Scott hold the 
 highest place ; and after them, though at long dis- 
 tance, come those of James, and of Cooper. 
 
 Among the works which combine recreation with 
 education, the Essayists should have a place. They 
 supply and suggest thoughts, they induce a habit 
 of reflection, they make the process of argument 
 famUiar, and show how logic can be made to assume 
 a graceful and even attractive aspect; they open 
 new truths, and indicate the direction in which 
 thought may be best employed. The Essays of 
 Addison in The Spectator, — the masterly produc- 
 
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STUDIES THAT EDUCATE, 129 
 
 tionsof Hazlitt, — the quiet humour of Charles Lamb, 
 and the wit of Sidney Smith, are the best specimens 
 of this class of reading ; but others will be found 
 abundantly in our periodical hterature, and especially 
 we would recommend the Selections from the Edin- 
 burgh Review, by Mr. Cross, as a mine of intellectual 
 wealth, and as containing specimens of writing equal 
 to anything that any language or any age can boast. 
 Combined with these book studies, it will be 
 necessary to keep pace with the current of con- 
 temporary events and intelligence, by regular inter- 
 course with the newspapers and reviews of the day. 
 A very little neglect of these will speedily leave the 
 Student far in the rear, and give him the appear- 
 ance of one who is behind his age, and therefore 
 incompetent to take part in its aflfairs. Nor would 
 such an impression be altogether a prejudice. Useful 
 as is our knowledge of the past, it is mainly to 
 correct our views of the present that it is practi- 
 cally serviceable. A man who is well informed on 
 all that is passing about him may go through the 
 world successfully, and even with credit ; but he 
 who is ignorant of the people, the prevalent ideas 
 and events, the doings and sayings, of his own 
 times, is utterly unfitted for intercourse with his 
 fellow men — incompetent to advise or act with 
 them, and should not venture beyond the door of 
 his library, however profoundly learned he may be 
 in the doings and sayings of an extinct era. Hence 
 it is that we so often find men learned but not wise, 
 and wise but not learned. Be it the care of the 
 reader to make himself both learned and wise. 
 
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130 THE ADVOCATE. 
 
 Daily perusal of a newspaper is not needful, and 
 it is too dangerous a temptation to trespass upon 
 time, otherwise claimed, for any cautious Student to 
 indulge in it. A weekly newspaper — any one of those 
 which condense with so much ability the news of 
 the week — wiU amply suffice to secure the object 
 indicated above, so far as respects the political and 
 social history of the world. But to this must be 
 added the regular perusal of one of the literary 
 journals, which may inform him also of what mind 
 is doing throughout the world, and of the progress 
 of hterature, art, and science, which exercise even a 
 greater influence than do statesmen over the destinies 
 of our race : for the former implant the ideas 
 which the latter embody into constitutions and laws. 
 
 Add to these, as studies of style merely, occa- 
 sional passages from the prose works of Swift, 
 Dryden, Jeremy Taylor, Cobbett, and Southey, the 
 great masters of the English language, and there 
 will be a tolerably complete course of general 
 reading^ to be interspersed among the more formal 
 studies. 
 
 But, as this may appear a very formidable list, it 
 should be observed that we do not suggest the 
 reading of the entire works of any of these authors. 
 It will suffice to take them indiscriminately, and 
 open them at almost any page, and read for the 
 allotted time, and lay them down again at the close 
 of any section, according to the mood of the 
 moment. 
 
 And this will complete our review of the Studies 
 that Educate. 
 
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XVII. 
 PROFESSIONAL STUDIES. 
 
 Before we enter upon the consideration of the 
 course of Professional Study which experience has 
 suggested as practically useful for the Advocate, it 
 will be convenient to make a few general observa- 
 tions as to the principles upon which it wiU be 
 framed. 
 
 We have consulted almost every work of repute 
 that has professed to aid the Law Student by 
 indicating to him a course of reading. They were 
 sought for the sake of assistance and not for the 
 purpose of criticism ; when the desire to obtain the 
 best teacher was strong within us, when unlimited 
 time was at our command, and labour little regarded. 
 But, with aU these advantages, the task prescribed 
 by the authors who had undertaken to be our 
 guides to the learning of the law presented a most 
 formidable front. Our courage was cooled by the 
 awfiil array of books which, we were gravely assured, 
 
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132 THE ADVOCATE. 
 
 it was absolutely necessary that we should read, 
 learn, and inwardly digest, before we could venture 
 upon the practice of our Profession. Having a 
 calculating turn of mind, and a very provoking 
 habit of trying assertions by the test of figures, we 
 remember that we set ourselves to estimate the 
 possibilities of the prescribed courses of study. It 
 will not be necessary to state the entire process, but 
 the result was, that, according to the scheme of 
 our considerate teachers, it would be necessary to 
 read, as law-books can only be read with benefit, 
 for twelve hours per day, Sundays included, for ten 
 years, in order to accomplish the course of study 
 which they had recommended ! 
 
 The truth is, that too often they who have under- 
 taken the duty of advising the Law Student in his 
 reading have thought more of themselves than of 
 their pupils. As if they hoped to receive credit 
 for having done all that they recommend to others, 
 and with design to display a most extensive ac- 
 quaintance with law and law books, they have 
 set forth such a catalogue of volumes to be read, 
 and which they would have the Student believe to 
 be essential to his qualification, that they deter 
 many from attempting the Herculean task, and they 
 who boldly venture a beginning speedily find them- 
 selves compelled to abandon their guide and seek 
 unaided a more practicable path. 
 
 With the memory of this personal experience, 
 we will endeavour to suggest a course of reading 
 which shaU. at least possess the advantage of being 
 possible and practicable. Doubtless other better 
 
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PROFESSIONAL STUDIES. 133 
 
 ones laight be designed, and many improvements 
 might be introduced into this one. Some will 
 complain of certain omissions, others of others ; the 
 relative value of different branches of study wlU. be 
 disputed, according to the accident which has made 
 one more prominent than the rest in the practice 
 of individual readers. But we have sought to lay 
 aside personal prejudices, to exercise an unbiassed 
 choice, and to correct experience by reflection and 
 observation. 
 
 It must be remembered that we are here con- 
 sidering only what should be the Professional 
 Studies of the Advocate in particular, for every 
 branch of the Profession needs its own special 
 training and reading. There are certain parts of 
 the law with which it behoves all lawyers to be well 
 acquainted. But there are other departments of 
 it which require more or less of study, according 
 to the destination of the Student. The Advocate, 
 the Conveyancer, the Equity Counsel, the Special 
 Pleader, the Attorney, needs each one a different 
 knowledge. To the requirements of the Advocate 
 is the present inquiry directed. 
 
 Another rule has regulated the following selec- 
 tion. It is made with cautious reference to the 
 capabilities of the Student, and therefore it is strictly 
 limited to his actual necessities. The test applied 
 to every subject recommended, and the proportion 
 of time allotted to it, was this : is it indispensable ? 
 —for, if it be not so, there is so much to be learned 
 which cannot be dispensed with that we have pre- 
 ferred to dismiss the former from a place in a course 
 
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134 THE ADVOCATE. 
 
 of reading wMch is intended to be strictly prac- 
 tical, and to be constructed witb reference rather 
 to the requirements of the reader than the aspira- 
 tions of the author. In brief, recalling what were 
 our own needs when first entering upon Profes- 
 sional training, what, after many trials and disap- 
 pointments, we found to be the most satisfactory 
 study at the time, and which has proved to be the 
 most useful in after life, we have endeavoured to 
 suggest such a course of reading as we should have 
 welcomed gratefully had it been proposed to our- 
 selves, when we were, as our Student readers are, 
 bewildered gazers upon the intricate and thorny 
 domain of the law which it was our destiny to 
 explore. 
 
 We have already described how Law should be 
 read ; with pen ever in hand, note-book spread 
 open before the reader, and a Law Dictionary by 
 his side. 
 
 There are two classes of law books, — to wit, 
 Treatises, and Books of Practice; the former almost 
 exclusively teaching the Law, and the latter the 
 practice of it. The distinction is not a very strict 
 one, for it rarely happens but that something of 
 the one is unavoidably mingled with the other. 
 But nevertheless there is a manifest difference 
 between these two classes of books, which will be 
 readily recognised by every practitioner, however 
 difiicult to define with accuracy. 
 
 Every Treatise on Law that deserves attention 
 consists of the following parts: — 1. The principle, 
 with the authorities from which it is deduced. 
 
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PROFESSIONAL STUDIES. 135 
 
 whether statute law or cases. 2. The exceptions to 
 or variations from the prmciple, accompanied, in 
 like manner, by the authorities establishing them. 
 
 Every Book of Practice, rationally constructed, 
 sets forth: — I. The rule, with the authorities for 
 it. 2. The exceptions, with the authorities for 
 them. 3. The forms of the processes, &c. The 
 method of arrangement usually is, and always 
 should be, to describe the course to be pursued, in 
 the order of occurrence, according to the customary 
 progress of the particular matter; as, in the Practice 
 of the Common Law Courts, from the Instructions 
 to sue to Execution ; or, in the Practice of Wills, 
 from the first giving of the Instructions to the 
 final distribution of the Estate. 
 
 In reading a Treatise on Law, the Student should 
 first slowly peruse a section ; then, in his note-book, 
 which should be ruled with a treble margin, he 
 should, within the first margin, note the principle, 
 and this, if possible, in fewer words than are found 
 in the treatise. Then, within the second margin, 
 he should insert the names merely of the cases, or 
 the statute, by which the principle is established. 
 Then, within the third margin, in the fewest words, 
 he should state the exceptions and variations, with 
 the names of the cases or statutes by which each 
 was established. Having thus done, he should 
 again read the section, in the volume, to assure him- 
 self that he has rightly comprehended it. 
 
 When he resumes his work on the following day, 
 he should slowly read his notes of the previous day, 
 for the purpose of fixing them more firmly upon 
 
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136 THE ADVOCATE. 
 
 the memory; and, when the work is completed, it 
 would be wise to read all the notes once more in 
 succession, so as to comprehend the whole subject, 
 as it were, at one view. 
 
 So, in reading a Booh of Practice. First, note 
 the Rule^ then the Exceptions, and then transcribe 
 the Form. It wiU scarcely be necessary to note 
 the cases, but Rules of Court and Statutes should 
 always be named. The utility of transcribing the 
 form lies in this, that it is seldom forgotten after- 
 wards, and when it is named, in reading or discus- 
 sion, a much more accurate conception of it is 
 suggested than when it has been merely read ; 
 besides, the recollection of the form often recalls 
 the rules that belong to it. 
 
 When, in reading either class of law books, you 
 come to a word whose import you do not thoroughly 
 understand, make it your invariable rule instantly 
 to consult the Law Dictionary. And when you meet 
 with a case which is stated to be important, or to 
 be the leading one upon the subject, or which is in 
 any way indicated by the author to be one of 
 peculiar interest, score it in your note-book, and, as 
 soon as you have completed the allotted portion of 
 the text, turn to the Reports for the cases so scored 
 and read them attentively. 
 
 This may appear a slow and tedious process of 
 study, but it is a sure one. You will certainly learn 
 more law in one morning thus spent, though you 
 might not have mastered twenty pages, than in a 
 week of mere reading, with the appearance of a 
 volume perused. It should also be recollected that 
 
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PROFESSIONAL STUDIES. 137 
 
 the following recommendations are founded upon 
 the assumption, that the impossible task is not to 
 be expected of you that you should master every 
 branch of law, and that the length of the course is 
 apportioned with strict reference to this careful 
 manner of pursuing it. 
 
 We must assume that you are entirely a novice, 
 and ask you to accompany us from the very com- 
 mencement of legal study. The first acquisition 
 you will require will be a general view of the Law 
 of England, its principles and its practice, its pri- 
 mary divisions, its history, and the manner in which 
 it is administered. The Commentaries of Blackstone 
 are, and will long continue to be, the universal 
 teacher of this first step, not only on account of 
 their masterly arrangement, but for the fascination 
 of their style, which makes a theme, in all other 
 hands so dry and difiicult, here a pleasing and 
 attractive study. Of the many editions adapting 
 the great commentator to the present state of the 
 law, the best beyond all measure is that by Mr. 
 Seijeant Stephen, and with that we would recom- 
 mend every Student to commence his legal studies. 
 
 Next to Blackstone, perhaps, Smith's Elemen- 
 tary Sketch of an Action at Law^ a little book, 
 but fall of useful instruction, should be perused 
 tuoice. 
 
 From Blackstone you wiU have learned the ele- 
 ments of every branch of the law, and, according 
 to your destination, you will proceed to devote 
 yourself more particularly to some or one of them. 
 We are now considering the case of one who has 
 
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138 THE ADVOCATE. 
 
 preferred the difficult ambition of an Advocate at 
 the Common Law Bar. 
 
 He needs to know something of every branch of 
 law ; and, as the eldest and most scientific, he 
 should be^ with the Law of Meal Property. 
 
 The history and foundations of this he will have 
 learned from Blackstone ; but he needs a more 
 minute acquaintance than he can there obtain, 
 although it will not be necessary for him to plunge 
 into all the learning of it, — ^in itself almost the 
 labour of a life. For the purposes of his practice, 
 he will gather enough from Williams on the Law of 
 Real Property, and the Second Edition of Hughes's 
 Practice of Sales of Real Property, which perhaps 
 contains the most complete abstract and condensa- 
 tion of the entire law of real property, as it now is, 
 which our legal literature possesses. There are of 
 course many books of greater fame and profounder 
 learning, but they are all treatises on particular 
 branches of the law, and not a systematic account 
 of the whole law. 
 
 Of the distinct treatises on distinct divisions of 
 Real Property Law, the Student can at his pleasure 
 peruse one, or more, or none: if he reads but 
 one, let him prefer Fearne's Essay on Contingent 
 Remainders, as being an admirable exercise for his 
 intellect, by its difficulty and profundity. It con- 
 stitutes a sort of mental drUling, very useful for 
 invigorating and expanding the reasoning and per- 
 ceptive faculties. 
 
 If time wiU permit, the Student should make 
 Wathi'ns's Treatise on Copyholds a portion of his 
 
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PEOFESSIONAL STUDIES, 139 
 
 reading, for he will scarcely acquire from Black- 
 stone so much knowledge of that branch of Eeal 
 Property Law as certainly is desirable, although 
 not strictly necessary. And, subject to the same 
 proviso, he may peruse the first volume of Powell 
 on Mortgages, or Hughes's Practice of Mortgages, 
 which more condenses the subject. 
 
 As intimately connected with this branch of his 
 legal studies, he may here introduce the Law of 
 Landlord and Tenant, a considerable acquaintance 
 with which is Ladispensable. The best existing 
 treatise on this subject is Mr. Archbold's. 
 
 The Student may now turn to the Courts of 
 Equity, and the law administered by them; and, 
 for this purpose, Mr. Spencers Equitable Jurisdic- 
 tion of the Court of Chancery should undoubtedly 
 be preferred. Smith's Handbook of Chancery 
 Prac^'ce will teach the present practice of the Courts 
 of Equity, with which the Advocate needs only so 
 much acquaintance as consists in a knowledge of the 
 outhnes of the proceedings and their order, and the 
 meaning of the various technical terms and phrases 
 employed in those Courts, especially as great altera- 
 tions are about to be made in it. 
 
 He will now be in a position to read with advan- 
 tage, because, with an accurate comprehension of 
 the principles upon which they are based, two sub- 
 divisions of the law which it behoves him to be 
 familiar with, for questions growing out of them 
 wUl continually occur in the course of his practice 
 as an Advocate; we allude to the Law of Trusts 
 and the Law of Wills. 
 
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140 THE ADVOCATE. 
 
 On the former there is an authority of high 
 repute which, although not precisely the kind of 
 treatise required by the learner, is the best that can 
 be procured. Lewin's Law of Trusts should be 
 read with attention. 
 
 To that should succeed some treatise on Wills; 
 and we have no hesitation in recommending Mr. 
 Allnutfs Practice of Wills and Administrations, 
 as containing, within a small compass, both the law 
 and the practice, illustrated by all the forms and 
 precedents, interspersed in the text, each in its 
 proper place ; and by means of which the reader is 
 conducted, step by step, through aU that is to be 
 done, from the first instructions given for the draw- 
 ing of a will to the final distribution of the estate. 
 There are more ponderous works upon the subject, 
 but they are rather adapted for reference than for 
 reading. Where time is important, brevity is a great 
 recommendation. 
 
 Another branch of Equity Law, which it behoves 
 the Advocate to master, is the Law of Partnership. 
 Mr. Colly er's book on this subject bears the highest 
 reputation, and should be placed upon the Student's 
 list. 
 
 Having acquired a considerable knowledge of 
 the Law of Real Property, and of Equity Juris- 
 prudence, the Student should devote himself to the 
 mastery of the Common Law, with which he wlU 
 need a more minute and intimate acquaintance. 
 
 The first obvious division is into the Law, and 
 the Practice ; and it will be necessary to know the 
 former, in order to understand the latter. The 
 
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PROFESSIONAL STUDIES. 141 
 
 Student, therefore, should begin by applying him- 
 self to learn the Law. 
 
 Already Blackstone has taught him the general 
 scope, and more important provisions, of the Law, 
 as regulated by statute or by the decisions of the 
 judges. In no other book will he find them so weU 
 stated. But now he must proceed to investigate 
 the various branches of it. 
 
 As embracing the subject-matters of most 
 frequent occurrence in practice, he should first 
 read Chitty on Contracts not under Seal; or, Mr. 
 Addison^ s Law of Contracts ; both excellent books 
 — but the latter, perhaps, the most carefully and 
 artistically written; and, upon the whole, to be 
 preferred to the higher reputation of the name of 
 the author of the former work. 
 
 This should be followed by Smith's Mercantile 
 Law, the new edition of which has added vastly 
 to its value; and to that, Byles on Bills of 
 Exchange wiU appropriately succeed. 
 
 It is singular that, as yet, there should not be 
 a treatise on Torts, upon the same plan as Cfliitty 
 on Contracts ; but we understand that Mr. Pater- 
 son is preparing for the press a volume on this 
 topic. UntU that appears, the Student must 
 reserve his reading of that branch of the law 
 until a later period of the course. 
 
 These are the principal branches of the Common 
 Law, and all which, for practical purposes, it is 
 essential that the Advocate should make an 
 intimate acquaintance with. The minor topics he 
 may select according to his inchnations, his 
 
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142 THE ADVOCATE. 
 
 industry, or his prospects, and read up special 
 subjects for special purposes. Here we propose no 
 more than is necessary for all Students purposing 
 to become Advocates, whatever their probable 
 destinies. 
 
 The Administration of the Common Law through 
 the medium of the various tribunals will next 
 engage the attention. The general outline of an 
 action at law has been previously learned from 
 the treatise of Mr. Smith; but that is a skeleton 
 only, which it is now the laborious and difficult 
 task of the Student to fill up. 
 
 He must begia with the most arduous and 
 repulsive of legal studies, the Practice of the 
 Courts. As their rules and decisions are con- 
 tinually shifting, it is necessary always to prefer 
 the latest work on this subject to the best. For 
 intrinsic worth. Lush's Practice is by far the most 
 estimable; but there is no recent edition of it, and 
 Chitty's Practice., hy Archbold., although ill-digested, 
 is the only safe authority at present. We would 
 recohimend it to be read thus : 
 
 Let the reader, as he proceeds, trace upon a 
 large sheet of paper, after the fashion of a 
 pedigree, the successive steps to be taken in the 
 conduct of an action, from its commencement to 
 all its various possible conclusions, inserting the 
 name of each process, and the number of days 
 within which it is to be taken or served, and 
 any other peculiarity belonging to it, as, if it 
 requires to be supported by affidavit, and such 
 like. This map will serve the twofold purpose of 
 
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PROFESSIONAL STUDIES. 143 
 
 fixing upon the memory a multitude of minutiaa 
 which it would be almost impossible to recall from 
 merely reading them, and it wiU relieve the 
 tedium of perusing a book of practice, where 
 there are no principles to exercise the intellect 
 and guide the search, but where all is arbitrary 
 rule, which can only be retained and recalled by 
 sheer power of memory. 
 
 It will now be necessary for the Student to be 
 initiated into the mysteries of Pleading^ to which 
 the master-key is given in Stephen's Principles of 
 Pleading, — a work of inestimable value to the 
 learner, as reducing to a system and a science 
 that which in every other book appears as a mass 
 of arbitrary rules, without mutual connection, and 
 with no other reason to support them than the 
 sic volo of the Courts. Although undoubtedly 
 capable of much simplification, and stUl modelled 
 more than it should be after the traditions of the 
 past than according to the requirements of the 
 present, the science of pleading, as set forth in 
 this treatise, wiU be acknowledged to have been a 
 highly intellectual production, and to have deserved 
 aU the admiration expressed for it by the Lawyers 
 who beheld it in its completeness, and whose acute- 
 ness had been exercised in the daily application of 
 its wonderful refinements. If it had its evils for 
 the suitor, it was certainly advantageous to the 
 Profession, and we have no doubt that it was 
 mainly instrumental in producing the great Law- 
 yers of former days, whose like we now look for 
 in vain. Still, though shorn of its ancient 
 
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144 THE ADVOCATE. 
 
 honours, enough remains to exercise the intellect 
 of the Student, to engross his powers of attention 
 and of reflection, and to interest him after a while 
 in the curious learning it unfolds to him. K it 
 have no other use than to teach him to observe 
 minute distinctions in language and idea, the study 
 of special pleading -will be of invaluable service 
 to the Advocate, whose business it will be to 
 interpret decisions and statutes, and apply them 
 to particular facts, and who needs, therefore, 
 ready and accurate perception of the most trifling 
 differences, upon which the question so often turns, 
 whether his case be within or without the law 
 proposed to be applied to it. Immediately after 
 this masterly work, which should be read twice, 
 at least, and carefuUy analysed in the manner 
 already described, the Student should read Mr. 
 Finlayson's Leading Cases in Pleading, where he 
 will find the practical application of the learning 
 he has acquired. 
 
 Next in natural sequence to the Practice of the 
 Courts and Pleading comes the Law of Evidence, 
 to the Advocate the most indispensable of all 
 branches of legal knowledge, and which he needs 
 to possess, not merely stored in the memory, but so 
 arranged there that it can be produced in. a 
 moment, when occasion requires. For, be it 
 observed, the application of the Law of Evidence 
 almost always occurs in the course of a trial, when 
 there is no time for reference and very little for 
 reflection ; when an objection, if not taken on the 
 instant, before the words are out of the witness's 
 
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PROFESSIONAL STUDIES. 145 
 
 mouth, comes too late, and which, if taken, must 
 be supported with reasons which there will be no 
 leisure to make search after in books ; they must 
 be at the tongue's tip, ready for instant use. 
 Undoubtedly this promptitude of application can 
 only be acquired by practice; the most accom- 
 plished lawyer is perplexed at first; but the 
 knowledge itself must be obtained in the study, 
 by reading, — the manner of its employment is the 
 education of the Court. 
 
 On this branch of the Law there have been two 
 standard works ; namely, the treatise of Mr. 
 Starkie, and that of Mr. Phillips; the former the 
 most elaborate and practical; the latter, perhaps, 
 the most scientific; and if the Student can find 
 time for the perusal of both, he should begin with 
 the latter. But there is a third book, lately 
 published, and, therefore, adapted to the existing 
 state of the law, which has been materially 
 modified by some recent legislation, Mr. Taylor's 
 Treatise on the Law of Evidence, which is entitled 
 to attention, and, probably, would be preferable, 
 for the purposes of study, to either of its prede- 
 cessors. It is, in substance, a famous American 
 treatise, by Professor Greenleaf, adapted to English 
 Law, which differs but slightly fi'om that of the 
 States. It is beautifully written; the principles 
 are defined with remarkable perspicuity, and the 
 illustrative cases are selected from a wider range, 
 embracing those of the American as well as of 
 the English Courts, with repeated references to 
 the law of other countries — a feature of American 
 
 L 
 
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146 THE ADVOCATE. 
 
 legal literature wliich miglit be worthily followed 
 by our own jurists. 
 
 The Law of Evidence being of such primary 
 importance to the Advocate, it should be read 
 with particular attention to the system of noting 
 previously recommended. And when the book 
 preferred has been completed, it should not be 
 laid aside altogether, but thenceforward, mingled 
 with the studies of each day, should be the 
 re-perusal of some portions of the Law of Evi- 
 dence, or of the leading cases by which its most 
 important principles, or their exceptions, have 
 been established. 
 
 Selwyn's Law of Nisi Prius, in its latest edition, 
 will next teach the uses, both of pleading and evi- 
 dence. Here the Student will see the practical 
 application of almost every branch of law which he 
 has been reading, from the beginning of his labours. 
 But it is not a book to be read through con- 
 tinuously, day by day, like a treatise on some 
 single subject, but small portions of it should be 
 read daily, mingled vdth other subjects. Although 
 a part of the course of reading, and stationed here 
 as its most appropriate place, it is intended only 
 that the Student should begin its perusal at this 
 point, and henceforward pursue it contempora- 
 neously with the books that follow. A work not 
 so well known, but more copious, and in many 
 respects better, than Selwyn, is Harrison and 
 Edwards's Nisi Prius, the greater portion of which 
 was the production of Mr. Edwards's unassisted 
 labours, his colleague having, soon after its com- 
 
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PROFESSIONAL STUDIES. 147 
 
 mencement, obtained a colonial appointment. It 
 is remarkable for the clearness and precision with 
 which the law is defined, and the acuteness with 
 which the points actually decided in a case are 
 eviscerated. It is to be regretted that there has 
 been no recent edition of so able a work. 
 
 The Criminal Law should next engage his atten- 
 tion, and this will be best learned from the last 
 edition of Russell on Crimes and Misdemeanors ; a 
 very costly and somewhat ponderous book, but, 
 unquestionably, the most copious and correct 
 treatise on the Criminal Law the library possesses. 
 
 The knowledge of Quarter Sessions Law needs to 
 be very intimate, for in that he wOl probably make 
 his first essays as an Advocate. To acquire this, he 
 should read Dickinson's Practice of the Quarter 
 Sessions, an excellent book for the Student, how- 
 ever worthless to the Practitioner. This will give 
 him an insight into the general jurisdiction and 
 practice of the Quarter Sessions. But he will 
 require something more than this with a branch of 
 the law he may be called upon to practise before 
 the gloss is gone from his gown ; he must make 
 himself intimately acquainted with the particular 
 branches of it in most fi'equent operation. For 
 that purpose, he shoxild study Archbold's Poor Law, 
 and Mr. Saunders's Law of Bastardy. All the 
 recent law administered by Magistrates, and over 
 which the Quarter Sessions have jurisdiction, as 
 prescribed by statute and settled by the decisions 
 of the Courts, has been gathered and arranged in 
 the New Magistrates' and Parish Officers' Law of 
 
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148 THE ADVOCATE. 
 
 the latter gentleman, where it is to be had in a col- 
 lected form. As, during the last six years, most of 
 the principal branches of Magistrates and Parochial 
 Law have been subjected to considerable alterations, 
 the Student will obtain from this work almost all the 
 most useful information he will need relating to 
 these branches of the law as they are at present. 
 
 We have now taken the Student through a 
 course which embraces all the prominent points in 
 the circle of legal knowledge, and that their con- 
 nection may be better understood, it will be conve- 
 nient to group them in one field of view. Beginning 
 with Blackstone, he learns the outline of the law, 
 its boundaries, its divisions, its prominent parts, 
 and their mutual connection, the origin and history 
 of that which, imexplained, appears meaningless 
 and absurd. He next masters the Law of Real 
 Property and the Principles and Practice of the 
 Courts of Equity, as being necessary to the proper 
 comprehension of the principal branches of it, to 
 which he then turns: the Law of Sales, the Law 
 of Copyholds, the Law of Trusts, the Law of WiUs, 
 the Laio of Mortgages, and the Laiv of Landlord and 
 Tenant. 
 
 The study of the Common Law is now to be 
 begun, and he learns, in succession, the Law of 
 Contracts, the Mercantile Law, the Law of Torts. 
 
 The manner in which this Law is administered, 
 through the medium of the Courts of Justice, is the 
 next natural division of his studies — the Practice 
 of the Courts, the Science of Pleading, the Law of 
 Evidence, the Law and Practice of Nisi Prius. 
 
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PEOFESSIONAL STUDIES. 149 
 
 The Criminal Law^ and the Law administered 
 by Justices of the Peace, including the Practice of 
 the Quarter Sessions, the Poor Law, the Law of 
 Bastardy and Parochial Law, come next in order. 
 
 And, lastly, the Law of Debtor and Creditor, 
 including that of Bankruptcy and Insolvency. 
 
 This course may be expanded to any extent that 
 may suit the leisure, the capacities, or the industry 
 of the Student. Many minor branches of the law, 
 not included within it, may be advantageously 
 added ; but it would be difficult to name one that 
 might be safely excluded. We have sought to 
 sketch the shortest, rather than the most complete, 
 outline of the studies necessary for the Advocate, 
 and we have advised rather what is practicable than 
 what is desirable. But there are a few books yet 
 remaining, which we place together at the end of 
 the course, because they do not properly belong to 
 any particular division of it, and might be read 
 with advantage simultaneously with all or any 
 part of it. 
 
 One of the most necessary, and at the same time 
 one of the most difficult, accomplishments of the 
 Advocate is the reading of an Act of Parliament. 
 Strange as it may appear to a person who has not 
 yet entered upon the study of the law, the art of 
 construing a statute is not merely an exercise of 
 the ingenuity — ^it involves no small amount of 
 actual learning, which has formed the theme of 
 bulky volumes. Dwarris on Statutes wiU serve to 
 introduce him to the mysteries of this art, which 
 he should omit no opportunity of practising in the 
 
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150 THE ADVOCATE. 
 
 course of his reading, by seeking to construe, accord- 
 ing to the rules he has learned, aU such moot points 
 of construction as he may meet with in the books. 
 
 Nor should he be content mth this alone. It is 
 excellent practice to translate a statute, thus : read 
 it section by section, with care and attention ; then, 
 in the fewest words, and avoiding technicalities, in 
 the plainest and purest English, state in writing the 
 substance of the section; that is to say, the pro- 
 visions intended by it, divested of the verbiage and 
 pecuhar phraseology of an Act of Parliament. 
 State it upon paper as you would describe it to a 
 person not a lawyer. This will accustom you readily 
 to extract the meaning of a statute, and to under- 
 stand the value of seemingly minute differences of 
 expression. 
 
 Another exercise of a similar kind is that to 
 which we may be permitted, perhaps, to apply a 
 term borrowed from our schoolboy memories — ^the 
 Parsing of a Deed or a Plea. By this we literally 
 mean the exercise so called ; — that is to say, let the 
 Student take a deed, for instance, and beginning 
 with " This indenture," parse every word to " day 
 and year first above written," stating its meaning, 
 the reason of its employment, its value in that 
 place, and its operative effect. By this process he 
 will thoroughly probe his own knowledge, — he will 
 ascertain not only how much he has learned, but 
 how readily he can use his learning; and the same 
 exercise might be, with equal benefit, extended to 
 Pleadings, both Civil and Criminal, and, indeed, to 
 precedents of every kind. 
 
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PROFESSIONAL STUDIES. 151 
 
 There is a work which no Student should omit 
 to read, for it is, perhaps, next to Blackstone, the 
 most instructive in the Law Library : SmitKs 
 Leading Cases should be begun very early in the 
 course and read with it; nor should one perusal 
 suffice. Some of the most important branches of 
 the Law are so accurately traced from the leading 
 cases by which they were determined through all 
 the exceptions and variations introduced by suc- 
 cessive decisions on their application to different 
 circumstances, and the points determined are so 
 clearly and precisely defined, that, whether as 
 teaching a mass of the most valuable and practical 
 law, or as a wholesome exercise for the intellect, 
 these two volumes should be perused twice at least. 
 
 The works of Mr. Justice Story, although they 
 come to us across the Atlantic, will have a place in 
 the studies of the British Advocate. These mas- 
 terly productions are models of legal writing. He 
 rises above the mere practising lawyer, the man of 
 cases and forms, and becomes the philosopher, 
 teaching principles which are universal and eternal. 
 Law in his hands becomes what it should ever be 
 deemed by those who expound it, whether from 
 the judgment-seat or the study — a great science, 
 whose foundations are as broadly and unchange- 
 ably laid as those of any other of the moral sciences, 
 and not so dependant upon accidental and arbi- 
 trary decision as it is the habit of English lawyers 
 to deem it. We have carried to an absurdity the 
 reverence for precedent, which ought to be used 
 only by way of exposition or illustration of principle, 
 
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152 THE ADVOCATE. 
 
 and not as in itself the reason for a decision of the 
 particular case under discussion. For, in truth, 
 when we talk of cases in point, we only mean cases 
 that approximate, not such as are identical, because 
 rarely does it occur that the facts are precisely 
 parallel; indeed, if they were so, there would be 
 nothing to discuss. The rational use of case law 
 is to show the principle that guided the decision, 
 and how it was applied in a particular combination 
 of facts, and thence to show that the case now 
 under consideration does or does not come within 
 the scope of the same principle; and the proper 
 foundation for the argument, and the true reason 
 for the decision, should not be the cases, which were 
 employed only as illustrations, but the principles 
 that are to be traced in them. 
 
 It is in this manner that Mr. Justice Story has 
 composed legal treatises which are consulted and 
 cited as authorities by the Lawyers of other nations 
 besides that one whose particular laws they profess 
 to expound. And wherefore? Because the foun- 
 dations of Law are everywhere the same. In all 
 countries the Law divides itself into two great 
 branches. There is the Law, properly so called ; the 
 code that regulates the conduct of men towards 
 their fellow-men individually and their duties to 
 the state; and there is the administration of the 
 Law, which is, the forms by which it is enforced. 
 The Law itself is very nearly the same in all civi- 
 lized countries, for the rules of right and wrong 
 are immutable and eternal; human nature is every- 
 where alike, and the same chain links society. 
 
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PROFESSIONAL STUDIES. 153 
 
 which must be protected by the same services and 
 prohibitions. But the manner of its administration 
 — ^the forms by which it is enforced — the nature 
 and amount of its sanctions, admit of infinite dif- 
 ferences, according to the habits, the ideas, and 
 local circumstances of every people. Hence it is 
 that treatises upon Law^ properly written, have an 
 interest and a value beyond their locality, and 
 hence also it is that Mr. Justice Story is not only 
 reverenced as an authority throughout the civi- 
 lized world, but in his own works has largely cited 
 the authority of foreign jurists. His Conflict of 
 Laws is a treatise on International Law, a subject 
 which English lawyers have, for the most part, 
 strangely neglected ; his Law of Agency wiU demand 
 a patient perusal. But it will be scarcely necessary 
 to bespeak that for them. The Student wiU find 
 them full of interest and attraction. 
 
 This list might be extended to any length that 
 circumstances and inclination permit, but it wiU 
 not bear much curtailment. An Advocate could 
 not safely adventure upon the Practice of his Pro- 
 fession with a less extended circle of preliminary 
 study. No subject comprised in this list could be 
 altogether excluded, without leaving the Student 
 in fatal ignorance of some department of the Law, 
 which he may be required at any moment to apply 
 to some case suddenly submitted to his judgment, 
 when there is no time for "looking into it," as it is 
 professionally termed, or, in other words, reading 
 up for it. The only means of abbreviating the 
 course, whose outline we have sought to trace. 
 
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154 THE ADVOCATE. 
 
 would be, by preferring some books that treat their 
 subjects in a more brief and elementary manner. 
 This probably might be done in a few instances, 
 but for the most part we have already selected the 
 books in which condensation has been carried to its 
 utmost Hmits consistently with accuracy. 
 
 But let not the Student be alarmed because, 
 while pursuing his labours at the chambers of the 
 pleader and the conveyancer, he finds his time for 
 hard reading so curtailed that no industry con- 
 sistent with health will enable him to accomphsh it 
 during the three years of his novitiate. It is not 
 probable that he will be able to do so. In the first 
 place, no amount of industry, no number of hours 
 daily dedicated to his legal studies, can possibly 
 qualify him in that time for Practice as an 
 Advocate. If he be prudent, he wUl not avail 
 himself of the privilege of being " called" so soon as 
 his dinners are eaten. He will devote five years, at 
 least, of the same unwearied and unbroken toil to 
 his studies, before he places himself in a position 
 where failure at the first may be fatal to his after 
 prospects. Or, even if he be so unwise as to assume 
 the gown and wig immediately on the expiration 
 of the period of probation, he should only strive 
 the more to escape the not improbable consequences 
 of his folly, by continuing with even more zeal the 
 course of reading recommended, trusting to his 
 good fortune for an escape from clients. There is 
 nothing he should more dread than the appearance 
 of a brief! 
 
 So far we have sought to suggest to the Student 
 
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PROFESSIONAL STUDIES. 155 
 
 what he should read. But he will not accomplish 
 himself to be an Advocate by reading alone. Books, 
 it is true, form the foundation of his knowledge; 
 without much and attentive study of them he can- 
 not possibly become a Lawyer ; but it would be most 
 unsafe to rely upon Books only, without other 
 assurance than his memory that he has really mas- 
 tered the learning he has been perusing. 
 
 There are two methods by which the Student 
 may attain this necessary object, viz. — by writing 
 and speahing. It is in one or both of these forms 
 that he will be required in his after-life to employ 
 the knowledge he has obtained from Books; and it 
 is not until he begins to make a practical use of 
 his acquirements that he plumbs the depth, and 
 measures the extent, of his knowledge ; that he 
 learns how much of it is substantial, and, above all, 
 how it is to be applied in practice. 
 
 He must use the pen often and fearlessly ; for it 
 is by the pen that he will discover the defects in 
 the lessons which the eye has conveyed. First, 
 fearless of the name of drudgery, which idleness 
 has affixed to it, let him copy with his own hand 
 all the forms used in aU proceedings at Law or in 
 Equity. This, at the first glance, may appear a 
 needless expenditure of time and toil; but a Httle 
 reflection will discover its worth. It is with these 
 processes that he will have to deal continually in 
 the course of his practice. He will have a very 
 vague conception of them from any mere descrip- 
 tion that could be conveyed in words. A moment's 
 inspection of the form itself, and a careful copy of 
 
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156 THE ADVOCATE. 
 
 its phraseology, will more perfectly impress it upon 
 his memory than reading about it for an hour. In 
 the latter case, when any process is named, whether 
 in a book or in argument, imperfect and cloudy 
 would be the conception of it that would arise in 
 his mind, and uncertain his understanding of the 
 points thereupon raised. In the former case, the 
 technical name instantly brings before his mental 
 vision the very object itself, clear and intelligible, 
 and he is enabled to treat of it as accurately as if 
 it was then lying bodily before him. 
 
 There is another reason why the Student for the 
 Profession of an Advocate should do this. It is 
 the only means by which he can attain to a know- 
 ledge of the Practice of the Law, Every Writing 
 Clerk in an Attorney's office wiU be able to detect 
 his eiTors, and laugh at him, if he does not master 
 such elementary information as this. But he can- 
 not learn it, as does the Articled Clerk, in the 
 ordinary course of his Studentship. He must, 
 therefore, make it his special care to overcome this 
 defect, by resorting to other means for acquiring 
 the information so necessary for him. He may do 
 so thus: — 
 
 Among his acquaintance wiU probably be an 
 Attorney in practice ; if not, with such an errand 
 he may venture to intrude himself upon any respec- 
 table practitioner in his neighbourhood, to ask that 
 which wiU be readUy accorded to him, — the loan 
 of such papers as he requires to prosecute his 
 studies. Then let him, with his own hand, copy 
 fairly into a book each one of the processes we 
 
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PROFESSIONAL STUDIES. 157 
 
 have named. Thus will their aspect, their techni- 
 calities, their phraseology, be indelibly impressed 
 upon his mind; he will form a more distinct and 
 accurate conception of them than by merely reading 
 about them, and when he has occasion to treat of 
 them, he wHL speak of their characteristics with a 
 precision to which he never could have attained by 
 any verbal description, or by reading about them 
 in a text-book. This plan should be adopted from 
 the first step in an action to the final one, inserting 
 every process that might possibly be employed in 
 the course of the most complicated cause. Nor 
 should he be content with thus copying the pro- 
 ceedings in an action at Law; he should do the 
 same with a suit in Equity, with Indictments, with 
 proceedings in Bankruptcy and Insolvency. Nor 
 should Conveyancing be neglected. He should make 
 one copy, at least, of all the principal forms of Con- 
 veyances. 
 
 This work of copying should be commenced at 
 the beginning of his studies, and be continued with- 
 out remission for a fixed time — say one hour, every 
 day. He will find it of incalculable value in his 
 education, by familiarising him with the technicali- 
 ties of the law and illustrating his readings. It 
 will form also a fit preparation for his next occu- 
 pation, which win be that of drawing precedents 
 similar to those he has been copying. 
 
 As soon as he has sufficiently advanced in the 
 double task of reading and coppng, he must test 
 his acquirements by drawing such processes as are 
 not, as it were, stereotyped by statute or by 
 
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158 THE ADVOCATE. 
 
 prax!tice. This should be the manner of doing 
 it:— 
 
 Let him read with attention the description of 
 the particular process, and the law relating to it, 
 as he win find it in his text-book. Then, closing 
 the volume, let him, from recollection of the learning 
 applicable to it, draw the form required. "WTien it 
 is completed, he should compare it with the prece- 
 dent in the printed volume, and scoring the passages 
 that differ, let him investigate them one by one, in 
 order to see whether it is in substance, or in phrase- 
 ology only, that the diiference lies. Let him recal 
 the reasons that led to the adoption of the language 
 in question, and compare them with the reasons for 
 the form given in the text-book, and the result 
 wiU correct erroneous judgment or supply defi- 
 cient information, discovering to the Student the 
 points in which he is weakest, so that he may 
 strengthen them, and what are his deficiencies, so 
 that he may supply them. 
 
 If the Student have not ingenuity to imagine 
 cases upon which to frame these fictitious pleadings 
 or conveyances, he needs but to open any volume 
 of Reports, and he will find combinations of circum- 
 stances that win afford ample scope for the exercise 
 of his abilities. 
 
 Speaking is another valuable aid to the education 
 of the Advocate. We do not now refer to the 
 general advantages of accomplishment in the Art of 
 Oratory, for that will be a theme for consideration 
 hereafter, but to the particular benefits that result 
 from it as an assistant in the work of education. 
 
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PROFESSIONAL STUDIES. 159 
 
 In speaking, even more than in writing, we discover 
 the true extent and accuracy of our legal acquire- 
 ments. Writing may be assisted by researches at 
 the moment ; but speaking allows no time for inves- 
 tigation. If the speaker be not ready with his 
 reasons when they are wanted, he not only becomes 
 painfully conscious of his own deficiencies, but he 
 feels that his audience recognise his incapacity. 
 
 Hence, we would urgently recommend every 
 Student who lives in London, and has begun to 
 keep his Terms, to make a point of joining one of 
 the legal debating societies, where he may at the 
 same time test his knowledge and his capacities, 
 and prepare himself for the pursuit of his profes- 
 sion. There he will find an audience, cold and 
 critical, indeed, but patient ; and to whom he may 
 utter his crudities of thought and broken sentences, 
 with the consciousness that they are, for the most 
 part, learners like himself, and subject to the same 
 infirmities. At all of the existing Law Debating 
 Societies it is wisely provided that every third dis- 
 cussion shall be upon a general question, usually 
 political. The purpose of this is to prevent the 
 members from faUing into professional mannerisms ; 
 to enlarge the circle of thought in them ; and to 
 encourage reading and reflection beyond the range 
 of law studies. Were it otherwise, these societies 
 would become only schools for pedantry, and would 
 certainly produce very bad Advocates, if very 
 learned Lawyers. 
 
 Their uses to the Student are incalculable. He 
 there learns the first step in the art of speaking, — 
 
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160 THE ADVOCATE. 
 
 to open his mouth as readily when he stands as 
 when he sits, and to hear his own voice without 
 being afraid. He acquires in this school the art of 
 governing his temper and his tongue; the former, 
 by the merciless replies which it is the wholesome 
 practice to encourage, and which form so excellent 
 a preparation for the more real conflicts of the Bar ; 
 the latter, by the prompt and unequivocal expres- 
 sion of displeasure sure to be exhibited upon any 
 departure from the language of polite society, or 
 any licence given to unbecoming personalities. Sur- 
 rounded only by those who are either beginners like 
 himself, or who have but lately emerged from the 
 condition of the neophyte, he may adventure the 
 only sure path to success — -failure. What if he 
 stumble, halt, break down altogether? No matter. 
 He needs not to be ashamed. It has been the fate 
 of many of his audience, of some of those who 
 now talk the most fluently and exhibit the most 
 ability. ^Tiat others have done, he may do, and, 
 if he is bravely persevering, he will do. Failure 
 in the public presence might be fatal to his prospects ; 
 how desirable is it, then, that it should be first 
 encountered in private. And it must not be per- 
 mitted to deter or dishearten. In this, as in most 
 other affairs of life, we learn more from our failures 
 than from our successes. No matter though it foUow 
 once — twice — thrice. Let his motto be, " Try 
 again r Let him remember that Greatness con- 
 sists, not in never falling, but in knowing how to 
 rise again. 
 
 We say, then, to the Student, omit no opportu- 
 
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PROFESSIONAL STUDIES. 161 
 
 nity to attempt to talk, and on every subject, legal 
 and general. It is the express purpose for which 
 you have joined the Society. To the legal debates 
 come prepared by previous research into the cases 
 and authorities, which set down upon a card, with 
 two or three lines of notes, sufficient to recal the 
 point decided should it escape your memory. 
 Sketch also upon the card a very brief outline of 
 your argument — the heads of it merely; that is to 
 say, the divisions into which you propose to marshal 
 it. This will give you an early habit of methodizing 
 your speech; it will accustom you to keep to the 
 point, and always to have a plan, more or less per- 
 fect, which will serve to direct your thoughts, and 
 to bring you to a conclusion when you have said 
 all that you have to say. The preliminary research 
 will accustom you to " look up" a point with 
 rapidity, and teach you how to find your law — an 
 art as difficult, and almost as useful, as that of 
 remembering it. The discussion will teach you 
 how to argue, show you the nice distinctions of 
 ideas and language, which are the occasion of 
 nineteen-twentieths of the points that occupy the 
 attention of the Courts. It will give you a habit 
 of accuracy in reading, as well as of close attention 
 to every expression, which it is difficult to acquire 
 by any other means. If you have not found leisure 
 to prepare yourself by previous research, do not 
 therefore be deterred from taking part in the dis- 
 cussion. On the contrary, be only the more reso- 
 lute to speak, remembering that it will be often 
 your duty as an Advocate to undertake a case 
 
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162 THE ADVOCATE. 
 
 without any preparation, and with only your own 
 natural acuteness and rapidity of resolve and action 
 to direct you in its conduct. Here you will have 
 some of the experience of such a position, without 
 the responsibility. On such occasions, you wiU of 
 course reserve yourself for answering the remarks 
 of other speakers. From them you will be sure to 
 learn the principal questions at issue, to hear the 
 cases that bear upon them, and then, exercising your 
 own thoughts upon those materials, you wiU be 
 sure to discover a great deal that may be said on 
 one side or the other, which has either escaped the 
 previous speakers, or which they have left in doubt. 
 Thence you will learn the art of reply, and, above 
 all, confidence in your own resources, so that, how- 
 ever suddenly called upon, you will be able to say 
 something pertinent to the occasion. 
 
 So much for the uses of Debating Societies, and 
 the manner in which the Student may employ them 
 to the most advantage. We quit them here, because 
 it is our purpose to devote a distinct chapter to the 
 Training of the Advocate in the Art of Oratory, 
 under which many topics suggested by the present 
 theme will more properly and conveniently come to 
 be considered. 
 
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XVIII. 
 PHYSICAL TRAINING. 
 
 We have traced the Moral, the Intellectual, and the 
 Professional Training, of the Advocate. But these 
 wiU not suffice ; their advantages may be neutra- 
 lised, unless accompanied by an equal attention to 
 Physical Training. 
 
 Perhaps some may be inclined to deride the 
 formal introduction of such a topic, and to ask if 
 we propose to educate the Advocate like a prize- 
 fighter. But a little reflection will serve to show 
 that his duties demand the exercise of certain 
 PHYSiCAii capacities, which are as capable of culti- 
 vation as the faculties of the mind. 
 
 Health is an advantage to all men, but it is 
 essential to the Advocate. In other pursuits, the 
 absence of it may not disqualify for the discharge 
 of the duties belonging to them. An Attorney may 
 control his office, advise his clients, study his books, 
 and conduct his business, although feeble in fi-ame 
 
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164 THE ADVOCATE. 
 
 or suifering from disease. A Trader may manage 
 his affairs, even if his voice be weak, his hand 
 trembling, his nerves shattered. But the Advocate 
 cannot perform his functions with frail lungs, an 
 aching head, or a failing frame. He may not choose 
 the hour for his exertions. He must be ready at 
 all times to answer the call of his clients, to endure 
 close and crowded courts, irregular meals, contracted 
 sleep, consultations early and late, work without 
 pause, and unceasing excitement. To enable him 
 so to do, he must not only inherit a good constitu- 
 tion from nature, but he must train it to endure 
 the trials to which it will be exposed by the exi- 
 gencies of his Profession. Terrible indeed would 
 be his disappointment if, neglecting this duty, he 
 should master, by the labours previously described, 
 all that the mind needs to qualify him for the 
 highest place in his high calling, and then find his 
 accomplishments and his learning worthless, because 
 he has not the physical capacities requisite to carry 
 him through the fatigues of the day, or to enable 
 him to give expression to the wisdom that is in 
 him. 
 
 Already we have ventured an earnest and solemn 
 exhortation to those who are not possessed of great 
 constitutional vigour and robust health, whatever 
 their fitness in other respects, to seek some other 
 calling than that of an Advocate, to whom health 
 and strength are indispensable. But even natural 
 robustness will need to be confirmed and cultivated, 
 or the toils of the study and the Court wiU impair 
 its powers. Not inappropriate then is the conside- 
 
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PHYSICAL TRAINING. 165 
 
 ration which we propose to give to the Physical 
 Training of the Advocate. 
 
 It should be of two kinds, general and special; 
 the former directed to the preservation of the general 
 health, the latter to the cultivation of those physical 
 functions which are more especially exerted in the 
 business of an Advocate. The one we shall but 
 briefly touch upon, the other we shall endeavour to 
 treat more minutely, because it peculiarly belongs 
 to the subject of this essay. 
 
 General attention to the Rules of Health is 
 demanded of every person ; but for none is it more 
 requisite than for those whose occupations are 
 sedentary, and upon whom the claims of the study 
 are continually operating to sanction, as it were, 
 that vis inertice which more or less aiFects aU of us. 
 Hence, with those who are not compelled, by their 
 calling, to bodily exertion, it is necessary to substi- 
 tute for the stimulus of circumstances an impetus 
 from within, supplied by a resolute wUl, operating 
 in pursuance of a preconcerted system. It wiU 
 not suffice to make a general resolve — "I will walk," 
 " I loill bathe," " I will rise early," " 1 will not be 
 late at night." Intents thus vague are sure to 
 yield to the temptations of the moment. Excuses 
 will be ever present to second inclination. " Some 
 other time" will be the ready answer, until, by 
 degrees, the resolution itself is forgotten. The 
 Student must begin by regulating his Physical 
 Training as methodically as his Professional Studies. 
 Not only must he determine how much time in 
 each day he will dedicate to it, but he must appoint 
 
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166 THE ADVOCATE. 
 
 the very time. The same hour should find him 
 engaged in the same pursuit, whether of labour, or 
 of exercise, or of rest. 
 
 Not less than two hours in each day should be 
 devoted to bodily exercise — to walking or riding. 
 It would be prudent to divide his walks into two 
 periods, giving to them one hour in the morning, 
 and another in the evening. The one strengthens 
 him for the work of the day, the other refreshes 
 him after its labours. Mind and body share the 
 wholesome influence of the free wind, the unfathom- 
 able sky, the cheerful country. Nor is this aU. It 
 is the time for thought. While reading, we do not 
 reflect much; we do but gather food for reflection. 
 When books are out of sight, the ever-busy mind 
 employs herself in digesting what the printed page 
 has taught; and nowhere is this wholesome and 
 necessary process more actively pursued than during 
 the ramble or the ride. 
 
 But, to carry out this rule, the Student must 
 adopt another, equally necessary to his health, and, 
 consequently, to his success. He must resolve to 
 retire early to rest, that he may rise betimes. With- 
 out assenting to aU the wise saws that proclaim the 
 benefits of early rising, or adducing in answer 
 to "the early bird finds the worm," — that the 
 poor worm who is eaten must have been earlier, — 
 we cannot but concede that to the Student the 
 practice is fraught with great advantages. The 
 midnight lamp is, perhaps, most congenial with the 
 exercise of the fancy. Works of imagination, which 
 require the inventive faculties to be wrought to a 
 
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PHYSICAL TEAINING. 167 
 
 high pitch of excitement, can be better composed 
 after the day's occupations have dulled the other 
 faculties, and no other thoughts or sounds obtrude 
 to divert the attention. But it is not so with the 
 mental occupations of the Law Student. They 
 demand the exercise of factdties which are always 
 most energetic after sleep, and grow weaker as the; 
 day advances, — memory, comparison, perception, 
 reason. One hour of morning reading of a law 
 book will be more profitable than three hours of 
 it carried far into the night. Thus, for the purposes 
 of study, independently of health, it is very neces- 
 sary that the Law Student should begin by a stern 
 resolve to rise early. If he will do that, he will be 
 sure to retire early to rest. 
 
 It would be well if he were to appoint six o'clock 
 as his hour for rising, but on no account should he 
 be later than seven. That he may not be deterred 
 in the winter by a fireless and unswept room, he 
 should have his study put in order and the fire laid, 
 after he leaves it at night ; or, if that be impracti- 
 cable, his bedroom might be prepared for the fire 
 to be lighted as soon as he quits his piUow. In the 
 summer time, he should commence the day with his 
 morning walk. In the winter, he should await the 
 rising of the sun, whom he has preceded. Returning, 
 he will pursue his studies until his breakfast-hour, 
 renewing them after that meal until the dinner 
 bell. The evening walk should always be taken as 
 nearly as possible at sunset, not only as being the 
 most beautiful time, the most calming and sub- 
 duing, the most wholesome in its influences upon 
 
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168 THE ADVOCATE. 
 
 mind and body, but as being usually the most 
 favourable as respects the weather ; it being a fact, 
 not noticed in the books, but confirmed by the 
 experience of the writer, that, however wet the day, 
 there is usually a cessation of rain at sunset, inso- 
 much that in nearly twenty years of walks rarely 
 omitted at the hour of sunset, he believes he has 
 not twenty times encountered rain. The evening 
 wUl see him again at his labours; and at eleven 
 precisely, whatever the interest of the subject, how 
 great soever the temptation to " a few minutes 
 longer," let him resolutely close his book, lay down 
 his pen, and retire to rest. 
 
 There is a practice, highly conducive to health, 
 which we cannot omit to notice here, because, with 
 so much that is noxious to encounter, the Advocate 
 cannot use too many precautions to prepare himself 
 for resistance. In summer he should bathe regu- 
 larly, if he have the opportunity ; but winter and 
 summer it should be his daily habit to sponge the 
 whole surface of the body with cold nvater, imme- 
 diately on rising. 
 
 If he can obtain access to a gymnasium^ it would 
 be weU to practise there the more active exercises 
 of the limbs twice or thrice in the week. 
 
 Nor are field-sports to be contemned by the 
 Student, provided he have sufiicient self-command 
 to indulge them with moderation ; and if he have 
 it not, he had better not aspire to be an Advocate, 
 for it is a quality he will require every day. Be- 
 sides his two hours of daily exercise, he may 
 profitably give to himself a day's holiday once in 
 
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PHTSICAI, TRAINING. 169 
 
 a fortnight, and a vacation of entire rest from toil 
 during three weeks of the year. Nothing is gained 
 in the end by over-work. To attain a temporary 
 object, labour may be extended under the influence 
 of undue stimulus for a short period; but the 
 advantage is invariably purchased by subsequent 
 depression, precisely proportioned to the excess — 
 for nature will, by no contrivance, be cheated of 
 her claims; she will not permit one part of our 
 complex being permanently to profit at the expense 
 of the other. All reasonable recreation is per- 
 missible to the Law Student; he may safely and 
 wisely dedicate one afternoon in the week to 
 cricket, or rowing, in the summer; one morning 
 in the week to hunting, or shooting, in the 
 winter; provided he does not pass that limit, and 
 provided also that he does not fall into the 
 common failing of what is termed " making a 
 day of it," — or what is, in fact, nothing more 
 than the folly of wasting three or four hours 
 before, and five or six hours after, a recreation. 
 Let it be borne continually in remembrance that 
 the day has sixteen hours; that there is ample 
 time for what would be deemed a good day's 
 sport in the stubble, or at the hunt, or on the 
 green, in one half of the hours that make up the 
 day, leaving to the Student some five or six hours, 
 even of what would be called a holiday, for profit- 
 able pursuit of his studies. It is in consequence 
 of the neglect of the practice of turning every 
 moment to advantage, of mingling study with 
 recreation, of occupying every minute^ working tiU 
 
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170 THE ADVOCATE. 
 
 the time when the recreation begins, and returning 
 to work the instant it is over, that people fall into 
 the two extremes of error — either passing their 
 lives in worthless idleness, or destroying health 
 and life by over-work. It is very practicable to 
 combine a sufficiency of labour for all useful 
 purposes with ample recreation for aU healthful 
 purposes. Pleasure may be abundantly reconciled 
 with profit by the simple process of making the 
 best of time; by which we mean, the dedication 
 of every moment to a purpose^ either of study or 
 of recreation, and permitting no moment to mere 
 do-nothing idleness, which is neither one nor the 
 other, but which nevertheless absorbs a large 
 proportion of the entire lives of multitudes, who 
 are ever complaining that they have no time for 
 study, or no time for pleasure. 
 
 This is the solution of the seeming paradox that 
 the busiest man has always the most leisure; this 
 is the secret of much-doing ; this is the elixir vitce, 
 which really doubles our lives by doubling our 
 profits and our pleasures; let not a minute pass 
 unemployed; turn instantly from recreation to 
 work, from work to recreation; work when you 
 are at work; play when you play; rest when 
 you rest ; suum cuique. 
 
 Let exercise be combined with temperance. 
 The mind is much more affected by the quality 
 of food than men are willing to admit. The 
 Student speedUy discovers the difference in his 
 mental powers as he feeds lightly or heavily; 
 animal food once a day suffices for him who has 
 
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PHYSICAL TRAINING . 171 
 
 little bodily labour, and who desires to keep his 
 mental faculties active and keen. His breakfast 
 should be of naitk, or coiFee, or tea, with bread 
 alone, and he should shun suppers as destructive 
 to his morning studies. Especially should he avoid 
 wine, because it will make him feverish, and beer, 
 because it will make him sleepy. The nearer 
 he can approach to " total abstinence " the better 
 for his reading. Whatever may be the difference 
 of opinion as to the propriety of total abstinence 
 in all cases by all persons, there can be no question 
 as to the necessity of extreme temperance to the 
 Student. 
 
 Another caution we may be permitted to offer. 
 Use no stimulants to keep you up to your studies. 
 When the attention flags, the head nods, the eyes 
 wink, do not swallow tea, or coffee, or spirit, in 
 order to keep you awake, but look upon the irresis- 
 tible tendency to slumber as a signal from Nature 
 that she is exhausted and needs rest; yield to the 
 solicitation; let her sleep, and you wiU awake with 
 renewed liveliness and vigour. The temporary 
 benefits of an artificial stimulus are always pur- 
 chased at the cost of subsequent depression, 
 demanding a renewal of the dose, until the whole 
 nervous system becomes disordered, and you are 
 unable to pursue your labours without danger to 
 life or reason, and in the end you find your loss 
 greater than the gain. 
 
 Regularity of meals is another essential to health 
 for those who lead a sedentary life. 
 
 These suggestions may appear to some as out of 
 
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172 THE ADVOCATE, 
 
 place in a treatise on the training of an Advocate; 
 but his studies are necessarily severe, and demand 
 for their accomplishment the entire devotion of the 
 sound mind in the sound body during a long period 
 of time, -which leaves no margin for subtraction on 
 account of ill health. 
 
 And not only has he need to secure this healthy 
 condition during the period of his study, but he 
 must prepare his frame to endure the yet greater 
 trials to which it wUl be subjected when he enters 
 upon the active duties of his Profession. Although 
 these hints have no pretension to novelty, they may 
 serve to induce the Student, who may have deemed 
 lightly of them when addressed to the general 
 reader, to pause, reflect, and adopt them, when 
 specially presented to his attention in a work which 
 aims to show him how he may best prepare himself 
 for the Profession he has resolved to embrace. 
 
 Besides, it is part of a plan which would have 
 been incomplete without some such short notice of 
 duties that properly belong to it, and without 
 attention to which all other qualifications of nature 
 or art will prove worthless to the Advocate. 
 
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XIX. 
 THE ART OF SPEAKING. 
 
 We have reserved this branch of the Education of 
 an Advocate for careful and elaborate consideration 
 in a distinct chapter, not only on account of its 
 great importance, but because it can but be begun 
 during the term of his Studentship, it must be 
 matured by practice, and the longest life will not 
 serve to witness its perfection. 
 
 Two classes of accomplishment are essential to 
 successful oratory, matter and manner. 
 
 It would seem like a tniism to say that a man 
 must have ideas before he can speak, were it not 
 that every day produces instances to the contrary. 
 Nothing is more common than copiousness of 
 words combined with lack of thoughts, and abun- 
 dance of ideas which are unable to shape themselves 
 into language. The faculty of readily com- 
 municating our ideas to others is as distinct, 
 and as various in its degrees of natural power 
 
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174 THE ADVOCATE. 
 
 in various persons, as any other of the mental 
 faculties. 
 
 And, like the rest, it is capable of being improved, 
 more or less, according to its original capacity. 
 When it is naturally feeble, no care wiU do more 
 than make it less painfully conspicuous. Industry 
 "will cultivate it to the utmost limit of its capacity, 
 but not beyond ; and, therefore, as we had occasion 
 to observe at the commencement of this treatise, it 
 would be most unwise for one who is conscious of 
 natural slowness of thought, or natural feebleness 
 of expression, to adventure upon the Profession of 
 an Advocate, to whom rapidity and vividness of 
 ideas, and ease and elegance of language, are 
 essential qualifications. 
 
 Assuming, then, that you are, at least, not 
 deficient in either of these faculties, you must 
 prepare yourself for becoming an orator by filling 
 your mind with a vast variety of information, upon 
 every subject within the ordinary range of profes- 
 sional, public, and social life ; such as may be 
 obtained from the course of study described in the 
 preceding portions of this treatise. " Reading," 
 says Bacon, " makes the fuU man," and that is the 
 foundation of all substantial oratory. An audience 
 will soon weary of mere imaginations and abstrac- 
 tions. Flashes of poetry are pleasing and eifective, 
 when used with taste, as ornaments ; but they paU 
 by fi-equent repetition. There is no topic and no 
 audience that does not demand a substratum of 
 good sense and substantial information in the 
 speaker. But especially is it so with the Advocate, 
 
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THE ART OF SPEAKING. 175 
 
 who deals with the most serious concerns of life, 
 who has to discourse on matters of business, to 
 whom the opportunity rarely oifers for indulging 
 in declamation, and who must usually substitute 
 the interest of extensive knowledge applied to the 
 actual affairs of life for the attractions of the loftiest 
 flights of oratory, only demanded upon occasions of 
 rare occurrence. 
 
 Then, while daily pouring fresh stores of 
 knowledge into his mind and exercising his powers 
 of reflection, accustoming himself to ihinh as well 
 as to observe, let the Student pursue the special 
 training that will enable him to make use of the 
 facts he has learned and the thoughts he has 
 conceived. 
 
 Following the natural order of the process by 
 which a speech is produced, — ^the facts, the 
 thoughts, the language, the manner of dehvery, — 
 and referring to the hints already given for the 
 acquirement of the facts and the thoughts, we 
 proceed now to consider how best the Student may 
 accomplish himself in language and delivery. 
 
 And, first, for the acquirement of ready, pleasing, 
 expressive, and intelligible language : — 
 
 It has been already observed that there is 
 manifestly a mental faculty that prompts to speech, 
 for its development varies immensely in individuals 
 educated amid the same influences. This faculty 
 shows itself, not only in readiness, but in copious- 
 ness, and even in elegance, of language, for. which 
 neither reading nor society wiU account ; while, 
 with others who have enjoyed every advantage of 
 
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176 THE ADVOCATE. 
 
 books and teaching and intercourse with polite 
 writers, there is often found hesitation and inele- 
 gance. Although, where this defect exists, it can 
 never be entirely removed, it is undoubtedly 
 capable of great mitigation, while the faculty itself, 
 when naturally active and capacious, admits of ■ 
 almost unlimited improvement. 
 
 There are three methods by which the command 
 and the choice of language are to be cultivated, — 
 reading^ writing, and speaking. 
 
 The reading to which we here refer is that 
 which is to be pursued exclusively, or principally 
 for the purpose of the acquisition of words and 
 style. 
 
 It should be the stedfast aim of the Student in 
 the first place to saturate his mind with the purest 
 English. The classical studies of the school and 
 the university will have exercised an unavoidable 
 influence over his expressions, which it wiU cost 
 him much perseverance and resolution to unlearn. 
 After years spent in daily and almost exclusive 
 communion with Greek and Latin books, the words 
 derived from those tongues will much more readily 
 rise to the lips than the, to him, less famihar words 
 that have been transmitted from our iSaxon ances- 
 tors. Nevertheless, the former must be discarded, 
 and the latter substituted, if he would attain to 
 any success as an Advocate. The words, to him 
 and those who have been educated like him, so 
 intelligible and expressive, are as incomprehensible 
 as are the languages from which they were derived 
 to the class of persons whom he wiU need to 
 
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THE ART OF SPEAKING. 177 
 
 address as jurymen or as witnesses. Let him be 
 ever so eloquent, fluent, pleasing in tone or grace- 
 ful in manner — ^let him boast the possession of 
 every other qualification of the orator, and he will 
 assuredly fail of success as an Advocate if he should 
 address his audience in a phraseology that abounds 
 in expressions borrowed from the classical tongues. 
 There needs no elaborate proof of this ; the fact 
 is manifest to all who attend our Courts. Nothing 
 is more common than to see a man of undoubted 
 capacity in aU other respects utterly failing as an 
 Advocate, because he talks over the heads of his 
 juries, and addresses the tradesman and the farmer 
 in a language for whose every fourth word the per- 
 plexed twelve need an interpreter. 
 
 The language of the people of England is in 
 great part Saxon. The admixture of Latin and 
 Greek words in their vocabulary is very inconsi- 
 derable. Almost every name of every object in 
 common life is Saxon. The only books with whose 
 phraseology their minds are perfectly familiar — 
 the Bible and the Prayer book — are thoroughly 
 Saxon. So are most of our provincialisms. The 
 language of our childhood and of our boyhood is 
 Saxon. All our best and most popular writers 
 have left us their thoughts in Saxon. It is not 
 until we dedicate our days and years to the mastery 
 of the dead languages of Greece and Rome that we 
 gradually come to substitute the words that have 
 been derived from them for the more expressive 
 words we have received from our ancestors. 
 
 And impressed as they are by long familiarity, 
 
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178 THE ADVOCATE. 
 
 the diificulfy of again replacing them by the 
 language they had displaced should be fully 
 appreciated, that proportionate exertions may be 
 made for its accomplishment. It will not be a 
 work of a month, or of a year, but of a life. It 
 should be your constant aim from the beginning to 
 the end of your career as an orator. You must 
 read much, and cuU your reading ; write, and 
 purge your writing. The books that will help you 
 to the purest Saxon are not very numerous, nor do 
 they need to be, for it will not suffice to read them, 
 and put them aside when read, Hke books that are 
 perused for knowledge ; but they must be read 
 over and over again, consulted almost daily for the 
 purpose of refreshment "from the pure well of 
 English unde filed." Fortunately, the most purely 
 Saxon book in our language is one which otherwise 
 you ought to read daily for other purposes, — The 
 Bible, — and from its phraseology there is derived 
 this further advantage, that, besides its Saxon 
 purity, it is so familiar to every ear that there is no 
 audience, from the highest to the very lowest, to 
 whom it does not appear expressive^ and in whose 
 minds it does not conjure up distinct ideas. 
 
 There is another advantage resulting from the 
 use of Saxon by an orator, and which is seen even 
 when he is addressing a classically educated 
 audience. It is eminently pictorial. It expresses 
 few abstract ideas. Its words are pictures, and the 
 entire train of thoughts which they suggest are 
 distinct in form and full of colour. It is manifestly 
 the language of a young race whose perceptions 
 
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THE ART OF SPEAKING. 179 
 
 had been' more cultivated than their reflective 
 faculties. Hence they are more readUy intelligible 
 than the terms of a more refined language, which 
 require some portion of thought to discover their 
 precise meaning ; hence also their peculiar advan- 
 tage in oratory, where the listener has no time for 
 reflection, when it is necessary that words shall 
 instantly suggest the images the orator desires to 
 call up in the minds of his audience, under penalty 
 of being but half understood. It is this power of 
 word-painting which recommends so many un- 
 educated preachers and speakers to popularity — it 
 is the absence of it that deprives the scholar of his 
 influence over an audience and makes them yawn, 
 in spite of all his substantial learning and sound 
 argument, whUe the self-taught field-preacher or 
 pot-house orator is commanding the ears of his ap- 
 plauding circle. The one talks Greek and Latin, with 
 their refined abstractions ; the other talks Saxon in 
 word and spirit, with its graphic images, its expres- 
 sions of homely sounds, and its familiar associations. 
 
 Nor is this difference of effect confined to the 
 uneducated classes. It extends to all : and hence 
 it is that, whether in Parliament, at the Bar, or in 
 the Pulpit, the greatest and most effective orators 
 have invariably spoken the purest Saxon. 
 
 There is another reason why the language of our 
 ancestors is so pecuharly fitted for oratory. It is 
 singularly imitative. The sound continually echoes 
 the sense. This may be a mere conceit, but there 
 can be no doubt that it is wonderfully effective, and 
 no aid is to be depised which conduces to the object 
 
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180 THE ADVOCATE. 
 
 of oratory, — ^the winning of the attention so as to 
 command the feeUngs and convince the reason. If 
 the sound allied to the sense helps to a more ready 
 or vivid conception of the orator's meaning, he 
 should not fear to use it. And in such words the 
 Saxon tongue abounds. It wUl suffice, as instances, 
 to name the words — " rush," " hiss," " jarring," 
 " sword " (expressing the peculiar sound of the 
 drawing of the sword from the scabbard, or its 
 rush through the air), '' dart," " lady " (an 
 exquisitely expressive word), " roar," " dash," and 
 such-hke. 
 
 Shakspeare is another book that should be read 
 for its Saxon- English, and to these we would add 
 Bunyan's Pilgrim's Progress, Dry den. Swift, 
 Cobbett, and Southey. There are no writers in 
 our language who command such vigorous English 
 as Bunyan and Cobbett, and none who use such 
 pure English as Southey. An Advocate should 
 read one or the other of these authors every day, 
 that he may keep his mind constantly stored with 
 words apt for his purpose, and uppermost, that they 
 may rise unconsciously and his thoughts come 
 clothed in them, so that he may not need an effort 
 of attention to reclothe them before they issue from 
 his lips. 
 
 It is an excellent practice to read these, as well as 
 other, books aloud. If in your family circle you 
 can obtain an a,udience, so much the better; there 
 is a double inducement to the exertion ; but if you 
 can find no listener, do not, therefore, neglect the 
 duty. Close your door and read to the chairs. 
 
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THE ART OF SPEAKING. 181 
 
 "witli the same attention to the manner of reading 
 as if you were surrounded by a listening and 
 applauding crowd. You wiU reap from it many 
 advantages. Physically, it wiU strengthen your 
 organs of speech, and qualify them to endure the 
 labours that will hereafter devolve upon them. 
 Intellectually, it will impress upon your mind both 
 the thoughts and the words of the author more 
 vividly than a silent perusal. In reading aloud, 
 the mind is affected by the sound as well as by the 
 sight ; the idea is doubly suggested by the printed 
 word and the spoken word, and words especially 
 are more frequently recalled by the recollection of 
 their sound than by the form of their letters. You 
 must acquaint yourself with the writer's meaning, 
 that you may express it properly, and that teaches 
 a habit of attention and accuracy and makes you 
 acute in the interpretation of language. You learn 
 to give expression to the sentiments in appropriate 
 tones, with due emphasis, and thus to utter your 
 own thoughts impressively, when, instead of read- 
 ing the compositions of another, you speak your 
 own. 
 
 The subjects thus read should be continually 
 varied. Narrative, oration, discourse, dialogue, 
 poetry, should alternate, not merely for the sake of 
 variety, but to prevent your falling into a habit of 
 monotony. For this the best practice is the read- 
 ing aloud of dialogue, as it is found in genteel 
 comedy, and in the novel. But it must be read 
 dramatically ; that is to say, you must read it in 
 character, as if yoxx were acting it, changing your 
 
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182 THE ADVOCATE. 
 
 tone of voice with each personage in the scene, and 
 uttering every sentence precisely as you might 
 suppose that such a person in such circumstances 
 would have uttered it. This will be difficult at 
 first; but, as we had occasion to observe before, 
 you must not be deterred by difficulty, if you 
 desire to be an Advocate; — you must try again 
 and again, and you will soon begin to note im- 
 provement, which win continue so long as you 
 persevere in your efforts after it. 
 
 Perhaps it wUl be asked, what are the rules for 
 reading? They have been attempted often to be 
 defined, but never successfully. The truth is, it 
 cannot be reduced to rule. For, after all, what is 
 reading but the expression of some thought, sug- 
 gested through the eye by certain signs which 
 represent certain sounds? He who reads well is 
 he who expresses that thought naturally — and the 
 best reading is that which most exactly gives 
 utterance to the words, as they would have been 
 uttered by the person from whom they are sup- 
 posed to proceed. But to be naturally expressed 
 they must be felt as well as understood. The 
 reader must have in his own mind the emotion of 
 the supposed speaker, or he will not give the very 
 tone ; — an audience would constantly perceive the 
 presence of art^ and their sympathies would not be 
 excited. Thence, therefore, it is, that for good 
 reading there is no other rule than this.,— understand 
 and feel. The rest will foUow. 
 
 This is, of course, apart from the mere manner. 
 That is entirely to be cultivated by the practice we 
 
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THE ART 01" SPEAKIKG. 183 
 
 are recommending of reading aloud to others, if 
 possible, or if that be impracticable, to yourself 
 alone, and without the intermission of a single day. 
 You will probably not be conscious of your defects 
 of style^ such as an unmelodious voice, provincial 
 pronunciation, and the like faults, and therefore, 
 if you have not a judicious friend who will some- 
 times listen to and correct you, call in a master, and 
 let him be your monitor. But do not mistake our 
 purpose in this. We are very strongly opposed to 
 the acquirement of the art of speaking from the 
 professional teachers of elocution. Usually, if they 
 teach anything, it is a studied manner, which has 
 the appearance of affectation, and is infinitely more 
 disagreeable than the modest form of untaught 
 speech. If a professor be employed at all, it should 
 only be to warn you what you should not do, by 
 telling you of your faults, and not to teach what 
 you should do. 
 
 Another aid to the acquirement of the art of 
 oratory is to Usten to the best orators, and note the 
 graces for which you admire them. The Pulpit, 
 the Bar, the public meeting, will teach you many 
 lessons, and you shoiild lose no opportunity to be 
 present where a speaker of ability is expected. 
 Mark his faults as carefully as his excellences, that 
 you may shun them, and let your own sense of 
 what ought to have been done by him show you 
 what you ought to do. 
 
 The Practice of the Art of Speaking will be con- 
 sidered when we come to treat of the Practice of 
 the Advocate. At present we are dealing only 
 
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184 THE ADVOCATE. 
 
 ■with the education necessary for its acquirement. 
 To enable the Student to speak correctly and 
 fluently, he should exercise himself in connposition 
 Avith the pen. It matters little what his subject, 
 he should endeavour to set dowTi his own thoughts 
 upon it, in the order in which they occur to him, 
 and in the language that most readily presents 
 itself, and of this he should daily write a prescribed 
 quantity. On the following day let him revise it, 
 correcting errors, substituting better expressions, 
 rounding rude sentences, expanding some and con- 
 tracting others. The same process of polishing 
 should be repeated at the end of a week, and again 
 at the end of a month. At first, the paper will 
 probably be little better than a great blot ; but by 
 degrees he will find the erasures less frequent, and 
 he will not only write with more correctness, but 
 with greater fluency and ease. It is by this process 
 that he may advantageously tutor himself in the 
 use of Saxon-English. Let him mark every word 
 that has a Greek or Latin origin, and endeavour to 
 substitute for it an equivalent from the Saxon. 
 Perseverance in this practice will certainly give 
 him a facility in the employment of Saxon words 
 which could not be acquired by any amount of 
 mere reading. 
 
 Another excellent practice is to read slowly and 
 carefully a paragraph from one of our best authors, 
 and then to close the book and endeavour to 
 express his ideas as nearly as possible in his words 
 and manner. This done, compare your version of 
 the fact or sentiment with his, and you will dis- 
 
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THE ART OF SPEAKING. 185 
 
 cover wherein lies your fault and his superiority, — 
 what it is that made him so strong and you so 
 feeble. 
 
 We are almost afraid to recommend another 
 practice, in itself of great utility, from fear lest it 
 should be abused; — we allude to the composition 
 of speeches upon paper. Our fear is, lest the 
 Student should be tempted, by the habit of com- 
 posing speeches for an exercise, to write them for 
 actual delivery — than which there is no more fatal 
 practice. Warning the Student against that, we 
 would urge him occasionally to write speeches 
 upon any subject that may interest him. And 
 here also he may beneficially adopt the same prac- 
 tice of reading the speech of some orator, and then 
 writing one upon the same theme, which, by com- 
 parison with the other, will reveal to him his 
 deficiencies more forcibly than any advice of teacher 
 or friend. 
 
 Nor should he be content with one essay at the 
 same speech. Having written and compared it, he 
 should again close the book, and again, with the 
 improved knowledge thence acquired, write it fi^om 
 his memory, and again compare it with the original, 
 and even repeat that process three or four times. 
 Each one will be better than the last, and he will 
 find rapid progress developed by a tedious task, in 
 which little appears to be accomplished. 
 
 At the same time, let him read daily a portion 
 of the best orations in our language; not hastily, 
 as an ordinary book, but slowly, so as to note the 
 structure of the composition, the choice and collo- 
 
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186 THE ADVOCATE. 
 
 cation of words, the selection of topics, the cast 
 of the sentences, the art of the speaker. Once 
 should it be read silently, with the purpose of 
 thoroughly understanding it; then aloud, and in 
 oratorical style, as it seems to you it ought to have 
 been delivered, and which will not ordy be an 
 added help to the impressing of it upon the mind, 
 but wUl ia some measure show you the effect of 
 the speech in its utterance, spoken composition 
 having a peculiar structure and tone which distin- 
 guishes it from written composition — a distinction 
 difficult to be defined, but which cannot be mis- 
 taken, so that a written speech, however fluently 
 and artistically delivered, is invariably betrayed to 
 an audience accustomed to oratory. 
 
 But reading aloud the best words of the best 
 authors, and putting your own thoughts upon 
 paper, will not suffice for your education in the 
 Art of Speaking. In that, as in aU other accom- 
 plishments, it is one thing to know how it ought to 
 be done and another thing to do it. Hence it is 
 that a man may be, and often is, a very able critic 
 without being an artist, and hence the fallacy of a 
 popular opinion that the critic has no right to sit 
 in judgment on that which he cannot himself 
 execute. Hence also it comes that we so often see 
 men mistaking their own capacities and exhibiting 
 melancholy failures in action, although perfectly 
 competent to advise others what they should do, 
 and possessing the most perfect knowledge of the 
 course by which alone success can be attained. We 
 have already endeavoured to impress upon the 
 
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THE ART OF SPEAKING. 187 
 
 reader, who may consult these hints before he finally 
 resolves upon the adoption of a Profession, the 
 necessity for the most earnest self-investigation, for 
 the purpose of ascertaining the measure of his 
 capacities to do as well as to thinh^ and if then he 
 should discover a reasonable doubt of his possession 
 of this ability to ac% to abandon all thought of a 
 pursuit in which the largest knowledge of what 
 should be done wiU avail nothing, unless the power 
 to do it be present also. But the mere possession 
 of the capacity to act will not be sufficient of itself 
 That capacity must be cultivated hj practice. The 
 ready and graceful and effective exercise of his art 
 can only be attained by the speaker's perfect con- 
 fidence in his own capacities for his task, and that 
 can be acquired only by frequent trials, and by 
 failures no less than by successes. 
 
 In the provinces, opportunities for a learner's 
 practice in the Art of Speaking are rare. A Deba- 
 ting Society is the only school for a beginner. An 
 assembly of men met for the purpose of business 
 wiU not endure to be made the subject of a tyro's 
 first steps in talking, and it would be impertinence 
 on his part so to use it. He must take his lessons 
 for some time among those who meet with the 
 same object — self-instruction — each enduring the 
 others that he may be endured in turn. Here he 
 may venture to fail, and dare to try again. Here 
 he may talk nonsense or stumble over half-con- 
 ceived ideas, attach singular verbs to plural nouns, 
 and throw about the disjecta membra of sentences 
 in his trepidation at the sound of his own voice. 
 
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188 THE ADVOCATE. 
 
 His audience will be patient and forgiving, for most 
 of them have done, or are preparing to do, the Hke. 
 If the reader live in a country town where the for- 
 mation of such a society is hopeless, he must make 
 his way as speedUy as possible to London, and 
 there join one, or as we would strongly recommend 
 to him, both of the two Societies which have attained 
 to reputation by their long standing — namely, the 
 Forensic Society and the New Forensic Society — ^both 
 of them established specially for practice in the 
 Art of Speaking by members of the Inns of Court, 
 to whom they are exclusively confined. The sub- 
 scription is very trifling. Their meetings are held 
 weekly at Lyon's-inn Hall, on different evenings, 
 and therefore it is that we recommend the Student 
 to join hoth^ because he wUl thus be enabled to 
 practise twice in the week instead of once only. 
 Their rules are excellently adapted to their object. 
 The subjects of discussion are in the proportion of 
 two legal questions to one general one, the latter 
 excluding none but religious topics, political ques- 
 tions being very prudently permitted, because it is 
 most important that the Advocate should learn to 
 preserve his temper in the heat of debate, and 
 nothing is so likely to provoke passion, and there- 
 fore to teach the command of it, as political dis- 
 cussions. The order of debate is thus. Each 
 member is in turn appointed to open the question, 
 and two others to follow him, and for omitting to 
 do so there is a fine. When these three appointed 
 members have spoken, it is then permitted to any 
 others to speak, and so until all who please have 
 
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THE ART OF SPEAKING. 189 
 
 declared their opinions, and then a division is taken 
 upon the question, this latter being, of course, little 
 more than a form, the real object of all who attend 
 being the discussion. Great order and decorum are 
 observed, and the utmost toleration is extended to 
 the mistakes or hesitations of inexperience. Indeed, 
 a beginner could not find a' more admirable school 
 for his first trials. 
 
 Having joined one or both of these Societies, 
 attend two or three of their meetings as a listener, 
 to learn their forms, and to familiarise yourself Avith 
 the manner of speaking and the strange faces before 
 you. That done, delay not your own debut. You 
 will fear it, probably, but therefore the more reason 
 for adventuring forthwith. To postpone it will be 
 but to make you the more nervous. 
 
 Your resolution taken, prepare yourself for the 
 occasion, but limit that preparation to reading up 
 for the subject, and by short notes of the heads of 
 your intended argument. Do not be tempted to 
 write your speech ; prefer to that any extent of 
 failure. Better sit down covered with confusion 
 on account of inability to frame a sentence, than 
 speak a speech learned by rote. And this for many 
 reasons. A written speech is always perceptible to 
 an audience as coming from the memory and not 
 from the mind. If you chance to forget any portion 
 of a written speech, you are unable to supply the 
 defect at the moment, and the hiatus becomes pain- 
 fully apparent. If you begin with a written speech, 
 which you throw off fluently, because you are 
 repeating a lesson, you are not thereby emboldened 
 
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190 THE ADVOCATE, 
 
 to attempt an extempore speech on the next occa- 
 sion, but, on the contrary, you dread to lose your 
 first reputation by the contrast, — and, as is usual, 
 having taken one false step, you are compelled to 
 take another, and so on until, on some unlucky day, 
 you are unable to escape the trial, and you have to 
 undergo the vexation of a failure, which, on your 
 first appearance, would have been readily fbrgiven, 
 but which, coming after a show of success, will cer- 
 tainly expose you to hopeless ridicule and deprive 
 you of the sympathy without which it would be 
 difficult for any learner to combat the awkwardness 
 of his first endeavours. Content yourself, then, with 
 a few short suggestive notes, — as thus : — 
 
 If the subject for discussion be a legal one, the 
 case or cases in which the point arose are stated in 
 the question. You must refer to these cases, and 
 read them carefully, and so also with aU the cases 
 therein cited, and to any statutes or text-books 
 treating of the same topic. Having formed your 
 own opinion of the proper solution of the poiat, 
 proceed to consider the reasons for that opinion, 
 and taking a shp of paper, set these down in order, 
 in the fewest words that will serve to recall them, 
 together with the name, reference, and point of the 
 case or cases with which you purpose to support 
 that argument. 
 
 If the subject be a general one, you must proceed 
 in like manner to collect the facts bearing upon it. 
 Such of these as you are not Hkely to remember 
 readily, as names, figures, &c., abstract from the 
 authorities, upon a similar slip of paper. Then, 
 
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THE ART OF SPEAKING. 191 
 
 after the same fashion as with the legal questions, 
 arrange your argument upon paper — ^the method of 
 your speech, nothing more, — and to these you should 
 append your notes of the names, dates, &c., that 
 you may refer to them, if need be, without pausing 
 in your discourse. 
 
 Having done this, trouble not yourself about the 
 words in which you shall express your thoughts ; 
 they will come, more or less expressively and artis- 
 tically, according to your previous studies and 
 natural capacity for eloquence. Practice will, at 
 all events, greatly facilitate the process of expres- 
 sion, and trust to practice alone for its accomplish- 
 ment. Do not study phrases more than sentences ; 
 they smell of the lamp. But, armed with these two 
 little shps of paper, and strong in the confidence 
 that you really know something about the subject 
 upon which you propose to make your maiden 
 speech, go to the meeting and wait tremblingly the 
 moment when, according to the rules, it wiU be 
 permitted to you to take part in the discussion of 
 the evening. 
 
 You rise. Your heart thumps, your knees 
 tremble, your sight swims, your throat becomes 
 dry, your tongue seems to swell, perhaps even your 
 naind is a chaos of confusion, your thoughts cease 
 to flow, the very shape and subject of your speech 
 escape from your treacherous memory. You 
 see nothing of the upturned faces around, but eyes 
 fixed steadily upon you, and they seem to be mul- 
 tiplied tenfold — eyes on every side — eyes every 
 where. Then that dead silence; never in your life 
 
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192 THE ADVOCATE. 
 
 have you heard such a stillness^ — ^it is unnatural, 
 appalling ; you would give the world for a noise ; 
 if one would only cough, or hiss, or talk aloud, 
 — anything rather than that ominous hush. But 
 vain the wish. The sUence is within yourself. 
 Your nerves are paralyzed, you cannot hear better 
 than you can see. In the absorbing anxiety of 
 that moment the only sound that makes itself 
 audible to you is that of your own voice, — and 
 that seems louder than ever before; it is echoed 
 from each wall; the husky whisper of your dry 
 and swollen lips is to you like the voice of a 
 trumpet. 
 
 And like a trumpet let it be your summons to 
 the strife. The worst part of your trial is over. 
 You have taken your resolution, made the first 
 plunge, endured the first shock, dared to stand 
 upon your feet and open your lips, and now 
 your task is comparatively easy. You have only to 
 speak on. 
 
 You will stumble, you wUl hesitate, you will halt 
 even ; thoughts will flow faster than words, and words 
 will come without thoughts ; ideas will trip up each 
 other's heels, and in the m^lee you will seize upon 
 them out of their places, producing the last first and 
 first last, and throwing your speech into the most 
 admirable disorder. You will sin against all the 
 laws of grammar; there will be no respect for 
 gender, or number, or the rules of Murray. Sen- 
 tences begun wiU never come to an end ; intermi- 
 nable parentheses will land you at the opposite 
 argument from that with which you started. You 
 
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THE ART OF SPEAKING. 193 
 
 will be teased by tautologies ; your intended order 
 of discourse, however skilfully framed, will be for- 
 gotten, and you wUl find yourself " in wandering 
 mazes lost." 
 
 No matter. Go on. Say anjrthing, however 
 nonsensical or ungrammatical, rather than pause 
 to cast about for something better, or resume your 
 seat in the silence of confessed incapacity. In the 
 first place, if you permit yourself to be defeated 
 now, you will scarcely again find courage to endure 
 the same ordeal, with the memory of the former 
 failure added to the same difficulties as then 
 oppressed you. But there is another reason for 
 proceeding. Nothing is so painful and annoying 
 to an audience as hesitation, pauses, recalling of 
 words and such like signs of perplexity in a 
 speaker. Nothing is more generally approved than 
 facility of discourse. By nine persons out of 
 ten, a fluently delivered speech will be preferred to 
 one hesitatingly delivered, even if the latter be full 
 of wisdom and tlje former the mere froth of words. 
 It is not with the orator as with the writer — ^with 
 the listener as with the reader. The business of 
 the speaker is to make his audience hear him, and 
 then to appeal to their common sense and their 
 feelings ; to satisfy the one, by putting the facts so 
 that the conclusions to be drawn from them shalj 
 be palpable to common understandings, and to per- 
 suade the other by the power of sympathy; — the 
 task of the writer is usually to address the pro- 
 founder intelligence, and to convince by logiqal 
 process of argument. So it is with an audience. 
 
 
 
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194 THE ADVOCATE. 
 
 The listener to a speech has no leisure to pursue a 
 long chain of reasoning, nor accurately to criticise 
 the structure of sentences and the choice of expres- 
 sions as they fall from the speaker's lips. His 
 attention is engrossed by the words that come and 
 are coming; he is anticipating rather than reflecting, 
 and looking for the speaker's meaning, or sharing 
 his emotions, instead of meditating upon his lan- 
 guage. Hence it is that speeches which seemed so 
 excellent, when heard, often appear so tame, flat 
 and senseless, when read in the Reports : hence 
 imperfections in the structure of sentences, in the 
 choice of expressions, even in the grammar itself, 
 recognised and painfully felt by the orator, are 
 frequently scarcely perceived by his audience, who 
 have not found time to criticise, because they have 
 been employed in hearing. So tmiversal is this that, 
 within our own experience, and that of all with 
 whom we have conversed upon the theme, a speech 
 has not been made that did not appear to the 
 speaker far more imperfect than it seemed to the 
 audience. 
 
 Therefore, we repeat, go on — say anything, how- 
 ever nonsensical, rather than stop even for an instant. 
 If your audience perceive, they wiU forgive, for they 
 have known the same difficulty and proved the 
 same trial. Your manner will certainly show that 
 you are in a state of profound agitation, and scarcely 
 master of your senses, and that will save you from 
 suspicion of incapacity. The more you are flustered, 
 the more hope there is for you. The only hopeless 
 case is, where the youth rises, for the first time, cool 
 
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THE AET OF SPEAKING. 195 
 
 and confident, and spouts pompous commonplaces 
 with the assurance of a practised orator. Such a 
 man never improves. He shows you at the begin- 
 ning all that he has in him, and he may be thence- 
 forth looked upon as the bore of the Society. But 
 all who have large capacities and great store of 
 knowledge and of wisdom packed away in their 
 minds, which can only be brought out by degrees, 
 as occasions require, — the men of genius, — the 
 sensible men, — the able men, — ^having within them- 
 selves a much loftier standard of excellence than 
 they possess the capacity to reach, are conscious of 
 their short-comings and defects, — have a thousand 
 thoughts for which they cannot find expression, and 
 so are abashed and fearful at the beginning of their 
 speech. Nor does this agitation cease to return 
 until very great practice indeed — extending over 
 years — ^has gradually subdued it. It will even 
 revive when, after illness, or the pause of the vaca- 
 tion, they reappear for the first time. Such, we 
 believe, is the experience of almost every successful 
 speaker. It is said that Sir Thomas Wilde never 
 rose to address a jury without being sensible of a 
 nervous tremor. Mr. Serjeant Wilkins, the style 
 of whose oratory would be supposed to express the 
 very opposite emotion to diffidence, has assured us 
 that, even after his grea,t practice, for the first three 
 or four minutes of every speech his hands tremble 
 and his sight swims. We have heard a similar 
 remark made by other public speakers, both in Par- 
 liament and in the Pulpit. Let these facts, there- 
 fore, encourage you to proceed, in spite of any 
 
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196 THE ADVOCATE, 
 
 amount of trepidation you may experience, not on 
 your first attempt alone, but even although it con- 
 tinue for a long time. Of itself it is no very for- 
 midable impediment to your success as an Advo- 
 cate ; it is rather a proof of capacity in other respects ; 
 time and practice will certainly so far subdue it that 
 it will become a slight inconvenience only. Besides, 
 it is more apparent to yourself than to your audience, 
 and if it does not amount to actual confusion of 
 ideas and annihilation of words, it gives a subdued 
 tone to the voice, a modest manner, and a deferen- 
 tial aspect to the countenance, which are rather 
 pleasing to an audience than otherwise, and the 
 very hesitation and other signs of nervousness at 
 the beginning produce a favourable contrast with 
 your bolder aspect afterwards, when, in the glow 
 and excitement of speech, the eye flashes, the face 
 is lighted up, and the fearless confidence of a great 
 duty faithfully discharged animates the whole being. 
 Having spoken some ten minutes, or thereabouts, 
 sit down, although it may be you have not said a 
 twentieth part of the things you intended to say. 
 Remember that you are as yet but a learner, and 
 that you are talking entirely for your own benefit, 
 not for the advantage of your audience. Inasmuch 
 as they, like yourself, have come rather to talk than 
 to listen, they -will bear with good humour for a 
 reasonable time your " bald, disjointed chat ;" if you 
 are ever so hesitating, they Avill look at you -with 
 sympathy, and they will kindly cheer every sentence 
 you may be fortunate enough to complete. But 
 you must not misunderstand this applause — it is 
 
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THE AUT OF SPEAKING. 197 
 
 not admiration, but charity — and you must be 
 especially careful not to abuse it. A party of young 
 men, learners, like yourself, will encourage and help 
 you in your lesson, but you must be merciful in 
 return, and not inflict upon them too much of your 
 tediousness. Ten minutes of it is quite as much as 
 ordinary patience will endure, and if you do not 
 trespass beyond those bounds, you will establish 
 yourself in the favourable opinion of your fellows, 
 who, on the next occasion, will see you rise with 
 complacency, and continue their encouragements, 
 from which you wUl derive very great assistance in 
 your early trials. 
 
 The ordeal is now over, and you will feel as 
 relieved from an anxiously-anticipated danger; you 
 will rejoice greatly, your spirits wUl rise, and perhaps 
 you will imagine yourself already an orator. Because 
 you were not altogether struck dumb, you are very 
 likely to suppose that you have succeeded, and that 
 you may now proceed, with confidence that you 
 have the great qualifications for an Advocate. This, 
 however, is the very time when it behoves you to 
 institute the most careful and serious self-interro- 
 gation, because it is the last, and you have now an 
 opportunity to retreat, if you are not assured that 
 it is safe to advance in the career you have chosen. 
 Permit two or three days to remove the excitement 
 of the trial, and then, calmly, soberly, and as 
 impartially as you can, set yourself to review the 
 incidents of your first attempt, and, if you are for- 
 tunate to have had a judicious friend among the 
 audience, call him to your council. 
 
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198 THE ADVOCATE. 
 
 Pursue your self-examination upon paper : it is 
 more likely to be correct and complete. Litera 
 scripta manet. The confessions there made cannot 
 be evaded by the legerdemain in which the mind is 
 so apt to indulge when dealing with its own imper- 
 fections. The first fault admitted cannot be for- 
 gotten before the last is catalogued, as is customary 
 in a merely thoughtful self-review. Take, then, 
 paper and pencil, and deliberately asking yourself, 
 " What were the difficulties I really found in my 
 attempt to speak that speech?" proceed to set them 
 down as they recur to you. 
 
 Was there any impediment to your thoughts? 
 Had you any distinct and definite ideas upon the 
 subject you were spealdng about? Did they come 
 quickly or slowly? Are you conscious of capacity 
 or of incapacity? What were the powers of your 
 voice, of your lungs? In what did you fail? And 
 wherefore ? 
 
 You have now enjoyed the opportunity of putting 
 your abilities to the test. All that you have dreamed 
 of your capacities, all that you have learned of the 
 rules of the art, all your large resolves and grand 
 imaginings, have been reduced to the sober standard 
 of experience. You may know now what you can 
 do, and what you cannot do; be it your care to 
 ascertain the very truth, for the future prospects of 
 your life depend upon it. 
 
 If, in reviewing the trial you have made, you are 
 satisfied that you had no other defects than such as 
 proceeded from the agitation natural to your posi- 
 tion, — if you had thoughts, but only were unable 
 
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THE ART OF SPEAKING. 199 
 
 to produce them in proper order and clothe them in 
 becoming words; if words came to your lips, only 
 you were too disturbed to cull them ; — if your 
 breath did not forsake you, but only was impeded 
 by the beating of your heart ; — ^if your voice endured 
 to the end, and your lungs were not exhausted when 
 you sat down ; — ^you may be satisfied that the defects 
 of your first appearance were but the accidents of 
 the occasion, which time, patience, and practice, 
 will subdue, and that you may anticipate with con- 
 fidence a reasonable success in the career upon which 
 you have entered. Go on, then, with cheerfulness 
 and hope, and prosper ! 
 
 But if, in very truth, it was that you did not frame 
 a consecutive discourse because your mind was a 
 vacuum ; — ^if it was not that your thoughts were 
 confused, but that you had none; — if you were 
 unable to forge a chain of argument ; — if your ideas 
 arose, isolated one from another, with no visible 
 link between them ; — ^if words would not come at 
 all, or but so slowly as to produce the hesitations 
 and pauses with which you vexed your audience ; 
 — if your voice failed from inherent feebleness, or 
 your lungs were exhausted by the exercise, — then, 
 in either of these cases, you will consult your future 
 happiness by at once manfully turning from a pro- 
 fession in which you cannot prosper, and dedicating 
 yourself to some other pursuit, which, if less attrac- 
 tive to your ambition, will be more conducive to 
 your substantial welfare. "Whatever poets may 
 sing, wisdom teaches that it is better to flourish in 
 a humble calling than to fail in a lofty one. "\i\Tio 
 
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200 TUE ADVOCATE. 
 
 can measure the pangs daily endured by him who, 
 at once proud but poor, ambitious but incapable, 
 sits hour after hour and year after year at the Bar, 
 and sees briefs flying over his head, to his contem- 
 poraries first and then to his juniors, who are passing 
 him in the race for fame and fortune, and who feels 
 the best years of his life gliding ft-om him in cheer- 
 less and hopeless inactivity. Far happier would he 
 have been in some more humble sphere, where the 
 faculties he possesses might be successfully employed, 
 than thus to pine his life away in the obscurity and 
 neglect that are the fate of the wig and gown that 
 do not cover a mind endowed by nature and by 
 study with that rare and peculiar combination of 
 faculties that are essential to the Advocate. 
 
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XX. 
 
 PRACTICE IN CHAMBERS. 
 
 The range of study that lias been described is to 
 be pursued, partly before and partly during, that 
 necessary portion of an Advocate's education, — ^the 
 acquirement of practical law in the Chambers of 
 Counsel. Some difference of opinion prevails, both 
 with respect to the branches of practice that should 
 be thus sought and the time that should be devoted 
 to them. Something must depend upon the cir- 
 cumstances of each case. Thus, a Student who has 
 previously enjoyed the incalculable advantage of a 
 seat for two or three years in an Attorney's office, 
 needs to devote very much less time to the teachings 
 of Chambers, because he is already half instructed, 
 and is competent to understand the business that 
 comes before him from the first hour of his entrance ; 
 while the Student to whom the practice of the law 
 is altogether strange must consume some weeks, or 
 even months, in mastering its mere alphabet. Again, 
 
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202 THE ADVOCATE. 
 
 he who is bent upon advancement, and resolute to 
 devote to his studies the full measure of time 
 demanded for them, will not waste the hours that 
 are at his own command before he enters upon 
 Chamber teachings, nor will he throw away a 
 moment of his time after he has commenced them. 
 But not less than eighteen months will suffice for 
 those who are the best prepared and the most 
 industrious, and three years should be preferred by 
 those who have had no previous acquaintance with 
 practice, or who are conscious of an irresolute will 
 to persevere in such a system of self-education as 
 we have already described. 
 
 But, whether the term of three fuU years, or but 
 one-half of that period, be resolved upon, in either 
 case the same course of training must be followed; 
 three different classes of Chambers must be resorted 
 to ; those, namely, of a Conveyancer, of a Special 
 Pleader, and of a General Practitioner, and in the 
 order in which they are here named. 
 
 But this is upon the assumption that the Student 
 contemplates the Common Law Bar. If he purposes 
 Equity Practice, he must substitute an Equity 
 Draughtsman for the Special Pleader. 
 
 The practice of Conveyancing is essential to the 
 acquirement of the Law of Real Property. A merely 
 theoretical knowledge of that law will be found 
 insufficient for the Advocate, who will have to deal 
 with its forms even more frequently than with its 
 principles. If the Student has well read before he 
 seeks the experience of Chambers, he may attain a 
 sufficient mastery of it for his purposes as an Advo- 
 
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PRACTICE IN CHAMBERS. 203 
 
 cate, in the course of six months of assiduous labour 
 with his pen, accompanied with the teachings of 
 an intelligent instructor. But, if he have not pre- 
 viously laid a broad foundation for practice, by 
 extensive study of books, twelve months of diligent 
 toil win scarcely sujffice to qualify him for his 
 duties. If his object be the Equity Bar, in no case 
 should less than twelve months be devoted to the 
 Conveyancer ; nor less than two years, if he does not 
 bring with him a large amount of knowledge already 
 acquired. 
 
 Passing thence to the Chambers of the Special 
 Pleader or Equity Draughtsman, according to his 
 future destination, the same rule should regulate 
 the periods of study. If well read in the law, six 
 months sedulously devoted to the practice of 
 pleading will suffice for the Advocate to learn so 
 much of it as he will need, unless he purposes first 
 to practise as a Special Pleader. But, if that be 
 his design, or he be previously ignorant of the 
 practice of the Common Law, he must dedicate a 
 twelvemonth at the least to this branch of practice. 
 
 And the like considerations should determine the 
 period of study in the Chambers of the Equity 
 Draughtsman. 
 
 The Student should devote the last portion of 
 his studentship to the Chambers of a Common Law 
 Barrister in general practice, where he wUl see and 
 learn the various forms of business, as they occur 
 to a man who is rising in his Profession. The 
 Advocate wlU find this, albeit so rarely resorted to, 
 the most practically useful of his Chamber studies, 
 
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204 THE ADVOCATE. 
 
 and therefore it has been recommended as the latest 
 of them. Here he will learn to apply the know- 
 ledge he has gained in the Chambers of the Con- 
 veyancer and the Pleader ; here he wUl become 
 familiar with many matters of form, trifling, indeed, 
 in themselves, but ignorance of which often exposes 
 an Advocate to more reproach than defects of a 
 more substantial nature. He wiU learn here 
 precisely that which he will need to know at the 
 very commencement of his career, especially if the 
 Counsel with whom he is studying discharges his 
 duty faithfully, and takes some trouble to explain 
 to him, not merely the law, but the details of 
 practice, such as the manner of reading and noting 
 a brief; — the application of the law of evidence to 
 particular facts ; — how an opinion is to be formed 
 and given; — the advising upon evidence, and so 
 forth. It is while reading thus in the Chambers of 
 one who is himself an Advocate that the Student 
 should attend with him the courts, at the trial of 
 the cases that have come before him in Chambers. 
 There he will witness the practical application of 
 the rules he has learned; he will understand more 
 thoroughly the purpose of the tactics that had been 
 recommended or resolved upon ; he will comprehend 
 the meaning of much that appeared obscure, and, 
 having been behind the scenes, he will trace the 
 tact and skill with which the case is conducted, and 
 which are apparent only to those who are ac- 
 quainted with its difficulties. An excellent exer- 
 cise in this portion of the course of Chamber 
 Training is for the Student to read the briefs that 
 
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PRACTICE IN CHAMBERS. 205 
 
 come in, with the same attention as if their conduct 
 was to be intrusted to himself. Let him take paper 
 and pen and shortly draw an outline sketch of the 
 manner in which he would treat the case had it 
 been his own; what flaws he can find in the evi- 
 dence, what points of law he can raise upon it, and 
 the arguments by which he would seek to win a 
 verdict from the jury. Then let him attend the 
 trial, and mark the difference between the manner 
 in which it is actually conducted by his experienced 
 instructor, and note the points he raised or omitted, 
 with their results. If he cannot discern the reason 
 for the course pursued, or any portions of it, he 
 should make inquiry fii-om his friend wherefore he 
 preferred such and such a treatment; and having 
 ascertained the motives, he should carefully com- 
 pare the actual conduct of the cause with his own 
 anticipations of the manner in which, as it seemed 
 to him, it ought to be handled; and thus he will 
 learn in some sort the measure of his own abilities, 
 and how far he approached to or fell below the 
 skill of the Advocate, and where he finds a differ- 
 ence he should endeavour to ascertain the causes of 
 that difference. He wiU learn more from half a 
 dozen of such exercises as this than from any 
 quantity of mere reading. 
 
 In like manner, when a case comes into Cham- 
 bers for an opinion, he should make a point of 
 reading it, and writing, for his own instruction, his 
 own opinion, after due research into the books ; 
 and when the opinion of his tutor has been given, 
 he should copy it upon the same paper with his 
 
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206 THE ADVOCATE. 
 
 own, and compare the two carefully, so that he 
 may trace the defects in his own knowledge, be- 
 sides acquiring the habit of readily reading a case 
 and forming and expressing a clear judgment 
 upon it. 
 
 And should there be some leisure moments, they 
 may be profitably employed thus : — Taking any of 
 the volumes of the Reports, find some case in which 
 the pleadings are set out, and upon some alleged 
 defect in which the arguments turned. Reading 
 no more than the facts, let him draw similar 
 pleadings, without resorting to the report for help, 
 but employing any other books he pleases. He 
 should then compare his own pleading with that 
 set out in the report, and observe whether he has 
 avoided the same blot, as he will learn it from the 
 argument and the judgment. 
 
 It should also be a rule with him to attend the 
 hearing at Westminster of every case of any interest 
 that comes before him in Chambers; for he will 
 understand the proceedings, and the manner in 
 which it is conducted, and thus acquire a far more 
 accurate knowledge of the law and its application 
 than would be possible from any attention given to 
 a case previously strange. But we do not recom- 
 mend daily wandering to the courts, in the absence 
 of some such special attraction as this, for the time 
 so spent rarely yields an equivalent profit. It is 
 very difficult to sustain the attention to the pitch 
 requisite for a perfect comprehension of the pro- 
 ceedings in a matter in which no personal interest 
 is felt ; and the hours thus expended are, it must 
 
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PRACTICE IN CHAMBERS. 207 
 
 be remembered, but so many stolen from a long 
 and severe course of study, besides disturbing its 
 order and diverting the current of thought. 
 
 The Student wUl, perhaps, ask of us to suggest 
 to him some rules for his guidance in the selection 
 of Chambers in which to pursue the practical part 
 of his education. ShaU he prefer those in which 
 the business is much or little ; is he to be influenced 
 by a name of note; should he go where many or 
 where few pupils are to be found ? Here, as usual, 
 the middle course is the surest and the safest. 
 There is an ample range of choice, and the selection 
 should be made with reference to all the circum- 
 stances of each case, and, yet more, upon some 
 knowledge of the habits of the man to whose tuition 
 he is about to intrust himself. The Counsel who 
 is overwhelmed with business cannot possibly find 
 time to impart to his pupUs personal instruction ; 
 they will necessarily be left to pick up their know- 
 ledge as they can from the papers that pass before 
 them. So, where the business is trifling, the teach- 
 ings of the tutor, however zealous, will not com- 
 pensate for the deficiency in practice. It must be 
 remembered that the very purpose of the pupilage 
 in Chambers is to witness the practice of the law 
 which the Student has learned or is learning from 
 his books ; he does not expend his hundred guineas 
 to be taught vivd voce the theory of the law, which 
 he can acquire as certainly from five pounds' worth 
 of printed paper, but that he may learn how to 
 apply his knowledge to practice, and what he is to 
 do when business is brought to him. The Pleader, 
 
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208 THE ADVOCATE, 
 
 the Conveyancer, or the Counsel, having a business 
 that occupies only a portion of his time, will be 
 very preferable to the famous man who has not 
 a moment to spare from his papers. Again, we 
 would earnestly recommend the Student not to go 
 where many pupUs resort. In every respect it is a 
 disadvantage to sit in crowded Chambers. The 
 opportunities for instruction are lessened by divi- 
 sion, and the interruptions to study are incalculably 
 increased. Choose, if they can be found. Chambers 
 in which, alone, or with one other at the most, you 
 may procure the personal instruction of an intel- 
 ligent tutor, who has both the ability and the will 
 to illustrate his teachings by his practice. 
 
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XXI. 
 
 THE INNS OF COURT. 
 
 Having thus endeavoured to describe the substan- 
 tial education of an Advocate, so far as it may be 
 self-directed, and which it is at his own option to 
 cultivate or to neglect, neither advancing nor re- 
 tarding his admission into the Profession, although 
 it will wholly govern his after fortunes, we will 
 now dedicate a chapter to a review of the formal 
 and nominal studentship, whose duties must be 
 performed in order to qualify him for his call. We 
 purpose to describe the Inns of Court, and the Law 
 Student's connection with them, from his admission 
 to his call to the Bar. 
 
 There are four Inns of Court, at either of which 
 a quaUfication may be obtained for a call to the 
 Bar; namely, Lincoln's Inn, the Inner Temple, the 
 Middle Temple, and Gray's Inn. 
 
 Lincoln's Inn is usually preferred by those who 
 contemplate the Equity Bar. Custom has consti- 
 
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210 THE ADVOCATE. 
 
 tuted its precincts the locality of Equity Counsel 
 and Conveyancers, and very few, if any, members 
 of the Common Law Bar have their Chambers 
 within it. The Student's choice between this and 
 . the other Inns should, therefore, be determined by 
 his destination. If he purposes to practise as a 
 Conveyancer, or at the Equity Bar, he should enter 
 himself at Lincoln's Inn. 
 
 But if he designs to practise the Common Law, 
 either as a Special Pleader, or immediately as an 
 Advocate, his choice lies between the Inner and 
 Middle Temple and Gray's Inn. 
 
 In point of time, we believe, he gains no advan- 
 tage at either. An uniform rule has been lately 
 adopted by all, of them. But there are some other 
 considerations which will deserve to be weighed. 
 
 At the Inner Temple he will have to undergo an 
 examination in the classics. It is by no means a 
 formidable ordeal, for it is rather a formality than 
 a reality ; but it is sufficiently inquisitive to make 
 it an obstacle not to be encountered by one who 
 has not received a classical education. But the 
 knowledge acquired at school will suffice ; the 
 training of a university is not essential, however 
 desirable. 
 
 At the Middle Temple no such test is applied, 
 and the consequence is, a more miscellaneous assem- 
 blage of Students than at either of the other Inns. 
 In repute it stands higher than Gray's Inn, and it 
 is more accessible than the Inner Temple. Hence 
 its numbers. 
 
 Not long since the Inner Temple required Terms 
 
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THE INNS OF COURT. 211 
 
 to be kept for jive years by those who had not taken 
 a degree at one of the Universities, but extending 
 to the latter the privilege of a call after three years. 
 The result of this arrangement was practically to 
 constitute its members almost exclusively of Uni- 
 versity men, and the new regulation for admitting 
 aU candidates after keeping twelve Terms has not 
 yet destroyed the prestige produced by its former 
 exclusiveness, and hence it must be admitted that 
 the Society is more select, although probably it does 
 not present such a remarkable amount and variety 
 of talent as its more hospitable neighbour, the 
 Middle Temple. 
 
 In number of members, and as the resort of the 
 men who hope to " achieve greatness," rather than 
 of those who are " born great," the Middle Temple 
 offers by far the most varied society. Hence advan- 
 tages and disadvantages. The Student cannot be 
 so secure of his associations; but, on the other 
 hand, he will have more to animate and incite to 
 enterprise in the characters of the men by whom 
 he is surrounded. There is the difference between 
 the scholar and the man of the world ; between the 
 College and Westminster Hall. Upon the whole, 
 while fully appreciating the advantages of the 
 loftier tone of sentiment and the greater refine- 
 ment of the select Society of the Inner Temple, 
 gathered as it is for the most part from the Univer- 
 sities, we are inclined to give the preference to the 
 more mingled company of the Middle Temple, re- 
 flecting so much more faithfully the busy world 
 without, for which it is no despicable preparation. 
 
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212 THE ADVOCATE. 
 
 It will be seen presently, when we come to describe 
 the customs of this Inn, how such a result may be 
 produced. 
 
 Gray's Inn, for some undefined cause, has been 
 long out of favour with the Bar, and very few 
 Students resort thither, although it spreads a more 
 liberal table for its guests than either of the other 
 Inns. Whatever the occasion, it is undoubtedly 
 the fact, that not only are the Students far less 
 numerous here, but an absurd and unfounded idea 
 of inferiority attaches to them; it raises the ques- 
 tion, " why did he prefer it," and suggests expla- 
 nations which, in nine cases out of ten, are erro- 
 neous, but the mere suspicion of which is unplea- 
 sant. Kecently great efforts have been made by 
 Gray's Inn to regain its place in the estimation of 
 the Profession, and to obtain its fair proportion of 
 the candidates for forensic honours; -vith what 
 success is yet to be proved ; but nothing is so diffi- 
 cult to subdue as prejudice that associates infe- 
 riority with any Institution, and we fear that, 
 without some very extra ordinarj- attractions to 
 turn the scale, the Student will prefer to call him- 
 self of the Inner or Middle Temple rather than 
 attach Gray's Inn to his name. Nor could we 
 honestly advise him otherwise, even though we are 
 fully sensible that there is no substantial reason for 
 the difference of reputation. 
 
 Having made choice of his Inn, the next step of 
 the Student is to procure his admission as a member 
 of the Society. 
 
 For this purp"Dse he must obtain the certificate 
 
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THE INNS OF COUET. 213 
 
 of two Barristers, members of the Society, together 
 with that of a Bencher, that he is a fit person to 
 be received into it. Formerly this duty was very 
 laxly performed by the certifiers, and the conse- 
 quence has been the admission of many persons of 
 questionable character, to the no small discredit of 
 the Profession. But latterly, we are pleased to be 
 able to say, much more caution has been exercised, 
 as well by the Barristers as by the Benchers, in 
 affixing their names to such a certificate. Indeed, 
 it never should be done without either a personal 
 knowledge of the applicant, or such an assurance 
 from one who knows him well, as may remove all 
 doubt as to the propriety of his admission to a 
 society of gentlemen. The Bencher should be stiU 
 more cautious than the Barrister, because he is in 
 a more especial manner the guardian of the honour 
 and interests of the Society and of the Profession 
 to which it is the pathway, and the time to prevent 
 the endangering of either by the admission of 
 unworthy characters is now, at the threshold, when 
 it may be exercised with the least possible inconve- 
 nience to the individual and the Bench ; for it is 
 very difficult to refuse a call to the Bar after the 
 sanction given for admission to the Society and 
 years devoted to preparation, and therefore lost to 
 the Student. We repeat, therefore, that it is with 
 much satisfaction we record the resolution of the 
 Benchers for the future to exercise much greater 
 strictness than hitherto in giving the sanction of 
 their certificates for the admission of members to 
 their several Inns. 
 
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214 THE ADVOCATE. 
 
 But it is not thereby intended that they shall 
 require a personal knowledge of the candidate ; such 
 a rule would in effect exclude hundreds of fit per- 
 sons who may not have the good fortune to enjoy 
 the personal acquaintance of a Bencher. It means 
 this only : that they will not sign a certificate as a 
 matter of course when it is put before them, or in 
 reliance only upon the names of the Barristers 
 appended to it ; but, if they have not a personal 
 knowledge of the applicant, that they will require 
 a personal voucher from some person to whom he 
 is known, and that they will make inquiries into 
 such particulars relating to him as shall satisfy 
 them that, assuming the answers to be correct, the 
 description is satisfactory. 
 
 Having obtained this certificate, the Student is 
 admitted as a matter of course ; but if he is not a 
 member of one of the Universities he is required to 
 deposit with the Treasurer the sum of 100^., which 
 is retained without interest until he is called, and 
 then apphed in liquidation of his fees. He must 
 also enter into a bond with two housekeepers as 
 sureties for payment of his Commons and Term 
 fees. The fees for admittance are not heavy, and 
 they are required to be paid at the time. 
 
 At the Middle Temple, he then receives from the 
 Treasurer an order for his admission to the library, 
 which is open daily from ten o'clock till five, and 
 contains a good collection of standard law books, 
 and aU the reports, ancient and modem. Great 
 facilities are afforded for reference and writing ; the 
 room is warm and comfortable, and he will find it 
 
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THE INNS OF COURT. 215 
 
 a convenient resort for information not contained in 
 his own chambers. 
 
 He will not need to purchase a Student's gown. 
 For a trifling Term fee he procures one from the 
 porter at the Hall, which serves for the purpose of 
 dining, the only occasion on which he is required to 
 wear it. 
 
 These preliminaries completed, he is now fairly 
 on the road to the object of his ambition. He is a 
 member of a Society which has ever contained, and 
 stUl boasts the possession of the greatest men his 
 country has produced, and he must be dull indeed 
 if the reflection does not inspire a resolve by 
 industry and self-control to emulate their toils, 
 their self-denials, their dauntless hopes, their con- 
 flicts, and their triumphs. 
 
 In the next chapter we wiU attempt to sketch 
 the scenes of a Law Student's Life, as they are 
 exhibited at the Inn of Court which is our own 
 alma mater — the Middle Temple. With trifling 
 variations, it will be a picture of the rest. And 
 we will use the painter's privilege, and endeavour 
 to make a subject of it. 
 
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XXII 
 STUDENT LIFE IN THE TEMPLE. 
 
 Few of those who swell the living tide of humanity 
 that rolls through Temple Bar from morning to 
 midnight all the year round are conscious that, 
 within a few yards' distance from the din that stuns 
 their ears and the motion that wearies their eyes, 
 there is a region dedicated to quiet ! — Reader, when 
 next you traverse that great artery of the metropolis, 
 having passed the city boundary at Temple Bar, 
 advance a few steps, until you see a smaU open 
 gateway on your right. There pause, escape from 
 the restless crowd that is treading on your heels as 
 you move, and will tread upon you if you stand still 
 for an instant, and though the path guarded by that 
 gate looks gloomy and of doubtful character, fear 
 not, but advance. 
 
 A few paces, and you are beyond the roar of 
 wheels and the tramp of feet. Tall, gloomy, smoke- 
 embrowned buildings, whose uniformity of dullness 
 
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STUDENT LIFE IN THE TEMPLE. 217 
 
 is not disturbed by windows incrusted with the 
 accumulated dust of a century, hem you in on 
 either side, and oppress your breathing as with the 
 mildewy atmosphere of a vault. The dingy ranks 
 of brick are broken by very narrow alleys, and here 
 and there, peeping under archways, you may espy 
 little paved court-yards, with great pumps scattering 
 continual damp in the midst of them, and enclosed 
 with just such dusky walls and dirty windows as 
 you have already noticed. You are amazed at the 
 silence that prevails in these retreats, so near the 
 living world, and yet so entirely secluded from it. 
 But not less will you be interested by the peculiar 
 appearance of the persons you meet in this place. 
 The majority of them carry packets of written papers 
 tied about with red tape, and folded after a fashion 
 here invariably observed. If you love natural his- 
 tory, and have invented a new system of classifica- 
 tion, or write essays on philosophy in general, or 
 have made speeches at the British Association upon 
 the varieties of the human race, you Avill at once 
 recognise five distinct species of the genus Homo as 
 fi'equenting this locality. 
 
 First, and most abundant, are certain short, thin- 
 visaged, spare-limbed, keen-featured, dapper-looking 
 men, who appear as if they had never been young 
 and would never be old, clothed in habihments of 
 sober hue, seemingly as unchangeable as themselves. 
 They walk with a hurried step, and a somewhat 
 important swing of the unoccupied arm. A smaller 
 packet of the aforesaid tape-tied paper peeps from 
 either pocket ; they look right on and hasten forward 
 
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218 THE ADVOCATE. 
 
 as if the fortunes of half the world rested upon their 
 shoulders, and the wisdom in the briefs at their 
 elbow had all been distilled from the skull covered 
 by that napless hat. If you do not move out of 
 the way, you wiU probably be knocked down and 
 trodden upon by them — unconsciously, of course. 
 They are Attorneys' Clerks. 
 
 The second species found in this region are more 
 youthful in aspect, carry themselves with more 
 swagger, wear their hats jauntily, with greasy curls 
 coaxed to project beyond the brim. They affect 
 a sort of second-hand gentility, cultivate great 
 brooches, silver guard-chains, and whiskers, and 
 have the air of persons claiming vice-royalty in the 
 dominions in which they live and move and have 
 their being. They are Barristers^ Clerics. 
 
 The third class are gentlemanly but very shabbily- 
 dressed men, who look as if they were thinking of 
 something beside themselves. They are of all ages, 
 and statures, and complexions; of feature of all 
 degrees of ugHness in form and beauty of expression. 
 You cannot mistake them; there is a family like- 
 ness running through aU of them. They are Bar- 
 risters. 
 
 The fourth species are composed of men of busy, 
 busthng aspect, arrayed for the most part in gar- 
 ments of formal cut, and of the fashion of a by -gone 
 day. They always look as ordinary men do when 
 told on some pressing emergency to " look sharp." 
 Their countenances, motions, and gait, express 
 thought and anxiety. They hurry onward, noticing 
 nothing and nobody. They are Attorneys. 
 
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STUDENT LIFE IN THE TEMPLE. 219 
 
 Lastly, you discern a few wasted forms and 
 haggard faces, on which lines are traced by the icy 
 finger of Disappointment, and garments, growing 
 ragged, ill protect from the keen draughts that play 
 through these passages hearts aching with the sick- 
 ness of hope deferred. The pockets, though tightly 
 buttoned, are lank and light. They step briskly 
 and eagerly onward, if entering; they creep slowly, 
 if passing out toward the street. They are Clients. 
 
 Approach the pursy personage who leans motion- 
 less as a statue against the wall, basking in the 
 yeUow ray of light called sunshine, with his hands 
 in his pockets, his eyes half closed, a very clean 
 apron, and a brass ticket depending from his neck ; 
 inquire of him the name of this strange locality ; 
 he screws his well-fed cheeks into a self-complacent 
 smile, and tells you that you are in the Temple. 
 
 Much marvelling that such huge masses of building 
 should be tenanted solely by those whose business 
 it is to dispense law, you emerge suddenly upon a 
 fine open area of bright green turf, surrounded with 
 beds of flowers, rows of leafy trees, broad gravel 
 walks, and seats in shade or sun, where you may 
 rest and enjoy the season. If the day be sunny, 
 crowds of merry children are running and rolling 
 upon the turf, as if they were anywhere but in the 
 heart of a great city ; ladies are stroUing to and fro, 
 breathing the fresh air, and rejoicing in the flower- 
 treasures that invite the eye ; groups of Law Students 
 are lounging there, laughing and talking: and a 
 few solitary youths, with pale faces and earnest eyes, 
 are poring upon great books in professional bindings. 
 
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220 THE ADVOCATE, 
 
 heedless of the attractions of tree, or flower, or child, 
 or woman. 
 
 The garden is bounded by the river, and as you 
 walk upon the bank you see once again the signs 
 of a city. Steamers vomiting forth sulphurous 
 smoke glide by continually; laden barges turn 
 heavily round and round ; the tide flings its refuse 
 at your feet, and the breeze, that ever sweeps over 
 the surface of the water, bears with it the shouts of 
 watermen, lightermen, bargemen, and sailors. It 
 is a stirring sight. 
 
 And you reflect that this garden scene — this 
 patch of real country — this calm and pleasant 
 retreat — where the most fidgetty of readers may 
 pursue his studies without interruption, — lies 
 within little more than a gun-shot of Fleet-street — 
 in the very heart of London; that the flood of 
 business, with all its cares, and hopes, and fears, is 
 ever rolling on so near to you, and you hear it 
 not, see it not, heed not its neighbourhood; that 
 thousands daily pass it by with anxious brains and 
 rufiled hearts, without so much as discovering that 
 there is peace and rest so near them, little thinking 
 that the calm of nature reigns within a few steps of 
 the busy spot where city life is concentrated. It 
 is strange. 
 
 Reluctantly you quit this quiet place, and plunging 
 again into the mob of buildings, you reach a gra- 
 velled area, at the further extremity of which you 
 are surprised to see another little garden-plot, in 
 the midst of which a fountain plays continually, 
 making the air cool with its spray, and sprinlding 
 
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STUDENT LIFE IN THE TEMPLE. 221 
 
 even the loftier branches of the trees and shrubs 
 with which it is crowded. Approaching this gi een 
 spot, you see on your left another gravelled flat, 
 and beyond that a small but very verdant and 
 neatly-shaven lawn, bordered by flower-beds, and 
 traversed by smooth paths, reaching down to the 
 river. The breeze from the water blows upon you 
 refreshingly as you gaze with longing eye. Here, 
 in this garden of the Middle Temple, there is no 
 human presence to disturb the profound quiet of 
 the place, as in the more spacious garden of the 
 Inner Temple which you have lately quitted. Seats 
 are scattered about, and pretty summer-houses 
 invite to study or contemplation, but they are 
 unoccupied by any visible presence. One is inclined 
 to imagine that the Benchers have dedicated this 
 garden to the exclusive occupation of the dead 
 luminaries of the law, as the garden on the other 
 side is devoted to its living oracles. With such a 
 fancy, we always feel disposed to take off" our hat 
 to the invisibles, as we pass the tranquil spot where 
 we suppose them to be " doomed for a certain time 
 to walk." 
 
 Turning again, and starting from your dream as 
 you behold the endless pUes of unromantic brick 
 before you, you cannot fail to notice a red building 
 on your right, the exterior of which has little note- 
 worthy ; but, as you are in a mood for exploring 
 new regions, and you are making bets between your 
 right hand and your left whether it be a church or 
 a dissenting chapel, a school or a hospital, you 
 ascend the flight of steps, and, cui'iously opening 
 
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222 THE ADVOCATE. 
 
 the heavy door, find yourself in a passage, the aspect 
 of which almost establishes the bet of right hand, 
 that you are in a building dedicated to divine 
 worship; for panels of dark old oak, richly carved, 
 line the sides and ceihng, and doors of the same 
 sober material admit to the mysteries within. 
 
 Open and enter. Let not your admiration check 
 your advancing steps untU you have reached almost 
 the end of the magnificent room in which you find 
 yourself There pause, and, as soberly as you can, 
 survey the Hall of the Middle Temple. 
 
 It will amply repay the inspection of an hour. 
 Mark, first, its beautiful proportions. Look, then, 
 at the roof of pendent oak, where strength is, by 
 the artists' skill, made to appear as the most light 
 and elegant tracery; rafters, which commonly 
 deform, are so constructed as to become ornaments, 
 and the eye loses itself delighted amidst lights and 
 shadows, each making some beauty manifest, or 
 courting the imagination to picture some perfection 
 veiled in gloom, which it cannot distinctly see. 
 You turn your gaze upon the walls, panelled with 
 oak from the very floor, and in each panel, for 
 nearly half the height of the room, is painted the 
 armorial bearings of some one of the Benchers who 
 has filled the office of Reader to the Society, and 
 among them you wUl recognise names of legal 
 luminaries familiar to all law students. These 
 painted panels are in themselves a history, and 
 their dates and mottoes suggest many serious 
 reflections. 
 
 But the pride of the Hall is the magnificent 
 
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STUDENT LIFE IN THE TEMPLE. 223 
 
 screen of elaborately-carved oak beneath which you 
 had entered. Tradition says that the wood of which 
 it was framed was taken from the Spanish Armada, 
 and presented to the Society by Queen Elizabeth. 
 Whether this story be true or false, certain it is 
 that the oak is very old, and that the most asto- 
 nishing skill was exhibited by the artist by whom 
 it was carved, for nothing can be more tasteful in 
 design and bold in execution. It is reported that 
 George the Fourth oifered the Benchers an immense 
 sum of money for this magnificent relic, but they 
 wisely refused to strip their hall of its most valued 
 ornament. 
 
 At the further extremity is a platform, slightly 
 raised, on which the Benchers sit, apart from the 
 less dignified members of the Society. Above them 
 hang some choice pictures, portraits of the Stuarts, 
 aU by great artists — one of them a gem — a Vandyke 
 — or a copy. It must be familiar to most of our 
 readers through the numerous engravings scattered 
 about the country. 
 
 The efifect of the whole is much heightened by 
 the judicious manner in which the light is thrown 
 from windows that do not glare upon the eye, and 
 the dim rehgious hue of which is enhanced by its 
 passing through crimson curtains drawn over them 
 with commendable discrimination, as if the butler 
 had an eye for the picturesque in architecture. 
 
 But, before you depart, you will be curious to 
 learn what are the uses of this hall, what the forms 
 and ceremonies observed there ; for you cannot fail 
 to be thinking that, in so noble a relic of old times, 
 
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224 THE ADVOCATE. 
 
 the genius loci must influence the manners of those 
 who tenant it. As we do not remember ever to 
 have "read in tale or history" the doings at the 
 Inns of Court, though College hfe has found hun- 
 dreds of faithful sketchers, we will endeavour to 
 supply this void in topographical Hterature. 
 
 It is well known that a wig and gown are 
 obtained by eating a certain number of dinners, 
 according to certain prescribed forms, in this glorious 
 old hall. But the Benchers have bowels. They 
 enforce the actual swallowing of three dinners only 
 in each Term, though, constructively, the Student 
 devours fourteen; that is, he pays for them. This 
 manner of admission to a noble profession has been 
 made the theme of many a sorry jest among the 
 ill-informed; but, in truth, it is as good a form as 
 any other that could be adopted. The Bar is the 
 only profession in which it is impossible for a man 
 to impose upon the public by pretending to abilities 
 he does not possess. A medical man may kiU his 
 patients by mismanagement, and none know it; an 
 attorney may conduct his client to ruin, without 
 the client's suspecting it till he finds himself in 
 prison ; for in neither of these professions are the 
 employers sufficiently Avell skilled to form a correct 
 judgment of the proficiency of the employed. But 
 a Barrister is retained by sldlful lawyers; he con- 
 ducts his business in open court, before a multitude 
 of witnesses, many of whom are more learned than 
 himself, and with a judge ever near to correct him 
 on the instant. Hence no examination, no pecuhar 
 test of knowledge, is so needful in his case, as in that 
 
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STUBENT LIFE IN THE TEMPLE. 225 
 
 of other professions; it could add nothing to his 
 respectability, nor to the security of the public. 
 However the ease of admission may crowd the 
 Profession, we believe it will not be found that, in 
 this itistance, " in the multitude of counsellors there 
 is wisdom," and practically the business will go to 
 those only who are competent to conduct it, be the 
 number of aspirants great or small. But, if the 
 learning required for mere admission to the Bar is 
 little or nothing, the unavoidable expenses are so 
 heavy, that they ought to deter any man from joining 
 it who has not some certain income independent 
 of its precarious emoluments. This necessary union 
 of education and property is, in the long run, a 
 sufficiently accurate test that a man is a gentleman, 
 and, without education and some property, no man 
 in his senses would venture on a profession to which 
 they are essential, while the strictness exercised in 
 the recommendations required from two Barristers 
 and a Bencher, before admission to membership of 
 the Society as a Student, constitutes practically a 
 guarantee for character. 
 
 Shortly before the hand on the dial over the 
 doorway points to five, crowds of gentlemen may 
 be seen hurrying through the labyrinthine paths 
 that intersect the Temple in aU directions and con- 
 centrating at the yard before the hall, for dinner 
 there waits for no man, and, better still, no man 
 waits for dinner. Gowns are provided for the 
 Student in the robing room, for the use of which a 
 small Term fee is paid, and, thus habited, he is 
 introduced into the hall, of which we have at- 
 
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226 THE ADVOCATE. 
 
 tempted a faint description. But it is now no 
 longer hushed and sombre, but a scene of brightness 
 and bustle. The tables are spread for dinner in 
 close and orderly array; wax-lights in profusion 
 blaze upon them; a multitude of gowned men are 
 lounging on the seats or talking in groups, or busily 
 looking out for the most agreeable places, which are 
 secured by simply placing the spoon in the plate. 
 Suddenly a single loud thump is heard at the door. 
 All rush to their seats: it is opened wide: the ser- 
 vants range themselves on either side, and between 
 their bowing ranks behold the Benchers enter in 
 procession, and march to the dais allotted to them. 
 The steward strikes the table three times with his 
 hammer to command silence, says a grace before 
 meat, and the feast begins. 
 
 According to Mr. Addison, it was a feast once — 
 a mighty spread. In these degenerate days it is a 
 respectable dinner, nothing more. Soup, a joint, 
 a tart, and cheese, constitute the ordinary fare. 
 Each day of the week has its prescribed mess. A 
 sirloin of beef alternates with a leg of mutton, 
 except on Saturdays, when the shoulder of a sheep is 
 the appointed dainty. The pastry is remarkably good . 
 During the winter Terms it is of apple; in the first 
 spring Term, of rhubarb ; in the second, of goose- 
 berry. On Sundays, a plum-pudding is substituted. 
 
 The Benchers' tables are ranged upon the dais, 
 across the haU. The tables in the body of the 
 hall are placed lengthwise, the Barristers occu- 
 pying those nearest to the dais, and the Students 
 taking the others indiscriminately. They are 
 
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STUDENT LBFE IN THE TEMPLE. 227 
 
 laid so as to form messes for four, each mess 
 being provided with distinct dishes, and making a 
 party of itself The persons who chance to be 
 seated at the same mess need no other introduction ; 
 he who sits at the head is called "the Captain;" he 
 first carves for himself, and then passes the dishes 
 to the others in due order. The Society presents 
 each mess with a bottle of wine — always port — a 
 custom which might be most advantageously vio- 
 lated. Until lately, as the butler placed it upon 
 the table, he named the Bencher who was appointed 
 to do duty, and receive, the acknowledgments of 
 the recipients. " Master Cockburn, gentlemen," 
 " Master Jervis, gentlemen," as the case might be. 
 Hereupon the grateful Students rose and bowed to 
 the representative of the bench, who bowed to 
 them, and so he nodded and nodded, until all the 
 messes in the hall had acknowledged the bounty 
 of the Society. But this custom is now, alas! 
 abolished. The wine decanted, the captain of 
 the mess fiUs, and passes the decanter to the rest, 
 and they take wine together, and are thenceforth 
 acquaintances. When the Benchers have finished 
 their repast, which is furnished with abundance of 
 dainties, the steward repeats another formula, as a 
 grace after meat, and the Benchers pass down the 
 hall on the other side, in like procession as before, 
 the rest of the company standing; and sometimes 
 they are greeted with applause, and sometimes, but 
 rarely, and never deservedly, with disapprobation, 
 as lie Stud'ents chance to be pleased or displeased 
 wim some recent proceeding. 
 
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228 THE ADVOCATE. 
 
 But this uniformity of entertainment is varied 
 once in every Term, on Grand Day, as it is called, 
 and occasionally at Readers' feasts and calls to the 
 Bench. These events are celebrated by an extra 
 bottle of wine, and the addition of a capon to the 
 fare. The tables are more crowded, and the com- 
 pany remains longer seated at them, and some 
 hours elapse before the hall is restored to silence 
 and darkness. 
 
 There are eight dinners in every year, at which 
 you wiU espy a few wigs scattered among the crowd 
 of gowns. These are call-days; that is to say, the 
 days on which Students who have completed their 
 term of probation, digested their thirty-six dinners, 
 and listened to lectures, are called to the Bar. To 
 entitle them to this dignity, they must be proposed 
 in Parliament by a Bencher — Parliament being the 
 ancient name by which the councils of the Bench 
 are designated. On this important day the fledghng 
 Barristers march into the hall, in procession with 
 the Benchers, arrayed in their bran-new gowns and 
 wigs, stand in awful rank before the dignitaries, 
 take the oaths of allegiance and supremacy to the 
 Sovereign, and having received the congratulations 
 of their friends, retire to the tables and mess for the 
 last time with the Students, still wearing their pro- 
 fessional costume. On this occasion the new-made 
 Barrister supplies the wine of the mess he chances 
 to join; and it is usual for such as have a circle 
 offriends in the Society (and few are the un- 
 happy beings who have not succeeded in making an 
 extensive social circle in this most social of com- 
 
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STUDENT LIFE IN THE TEMPLE. 229 
 
 munities), to give a handsome entertainment, to 
 which they are permitted to invite strangers, and 
 there is no limit to the supply of viands and 
 wines but the purse or the inclination of the 
 Barrister. 
 
 Many are the merry meetings holden in this old 
 haU. Pleasant are the memories it enshrines of 
 friendships formed there, ardent and enduring. In 
 the same spot, Term after Term, you will see 
 gathered the same groups — ^friends all, with com- 
 munity of feeling produced by the single tie of 
 belonging to the same mess ; where men — differing 
 in everything beside, opposed in politics and reli- 
 gion, and not concealing their opposition, yet feel 
 for each other the sincerest regard — meet with joy, 
 part with regret, argue without anger, joke with- 
 out ill-nature, contest for victory without rivalry, 
 applaud without envy, and without jealousy pro- 
 mote the advancement each one of the other. Such 
 at least, is our own experience ; such is the character 
 given of this Society by its elders. 
 
 The Temple is a world within itself, having little 
 connection with the great city world within which 
 it lies, — a charmed circle, possessing privileges, 
 powers and authorities of its own. Into its sacred 
 precincts no policeman, tax-gatherer nor rate-col- 
 lector dares to enter. It preserves its own peace 
 by its own constables, who have little more to do 
 than walk about in liveried leisure and call for 
 their Christmas-boxes. The Queen's Taxes are 
 graciously gathered by the Treasurers of the two 
 Societies; from municipal taxes, the City tribute. 
 
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230 THE ADVOCATE. 
 
 it proudly claims exemption, and although, with 
 characteristic loyalty, it submits to have the police- 
 rate imposed upon it, notwithstanding that it pro- 
 vides its own police, yet was this concession made 
 in dignified obedience to an act of Parliament, and 
 not in recognition of any vote of city or parish 
 authority. " We do not want your police," said 
 the Temple, " we have always maintained our own, 
 both for day and night, and paid them from our 
 own funds, without demanding a penny from the 
 extra-Temple citizens. It is not quite fair to tax 
 us now for their convenience ; but from our love of 
 good order and respect for the law, we will contri- 
 bute our proportion to your police ; only, be it 
 remembered, we do not want them here, and we 
 will not have them. We will pay for yours if we 
 must, but we wiU keep our own." And so do the 
 Temple beadles bloom still in pristine majesty of 
 brown turned up with yellow, and preserve peace 
 and property within their precincts, at least as 
 effectively as their blue-coated rivals on the other 
 side of the gates. 
 
 Antiquity, expelled from every other part of 
 London, has taken refuge in the Temple, with an 
 apparent resolve to end his days there. But there 
 are alarming indications of late that the poor per- 
 secuted gentleman will not be suffered to be at 
 peace, or to live out the full term of his life, even 
 in this stronghold. Symptoms are showing them- 
 selves of an insane desire to turn him out. 
 What, but for a battery against him, can be the 
 meaning of the monstrous pile of brick lately 
 
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STUDENT LrFE IN THE TEMPLE. 231 
 
 erected under the mocking title of " Paper-build- 
 ings?" Would they were of paper, for then there 
 would be some chance of their sharing the fate of 
 their elder brethren, and being burned by a candle 
 thrust under a bed, in error. But such good fortune 
 belongs not to all incommodious or unsightly edi 
 fices, so Master Antiquity must e'en prepare himself, 
 if not for total ejectment from the territory which 
 he had been taught to believe exclusively his own, 
 at least to be insulted every day of his life by the 
 spectacle of modern taste, as displayed in that sub- 
 stantial and respectable range of stone, suddenly 
 terminated by a flank of red brick — a most Gothic 
 design, with a Mother Redcap crown, and which 
 harmonises with nothing, neither with the building 
 of which it forms part, nor with the opposite wing, 
 nor with aught within the range of vision. 
 
 Who, then, may venture to hope for a permanent 
 possession of the spirit of the old time even within 
 the precincts of the Temple, with this melancholy 
 memento of innovation staring him in the face, here, 
 in the very heart of the domain supposed to be 
 dedicated to antiquity? May aught be accounted 
 safe from invasion? Is the Garden safe? Is the 
 Church safe? Is the Hall safe? Are the Benchers 
 themselves safe? Are our social dinners secure? 
 Is there nothing but what is not f In the name of 
 all that is interesting., let us preserve such relics of 
 the old time as yet are spared to us, and, if they be 
 banished from all the world beside, let us hallow 
 them in the Temple ! 
 
 But this by the way. We could not pass the new 
 
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232 THE ADTOCATE. 
 
 building without expressing the sense of insulted 
 taste which it rouses in us, as in all beholders. Let 
 us now resume our subject. 
 
 We are not sure that entire lives are not passed 
 in the Temple, but we are sure that they might be. 
 Here a studious man may dream away his days in 
 the possession of most of the comforts, and many 
 of the luxuries, of a civilised region ; here he may 
 accommodate himself with a dwelling, more or less 
 capacious, more or less pleasantly situate, literally 
 a town house or a country house, according to his 
 taste or means, the one with a prospect of black 
 bricks and a damp court, the other with a charming 
 out-look upon grass, and flowers, and trees, and 
 river, and scarcely a wall visible to remind its tenant 
 that he is in a city. He may dwell, poet-Hke, in an 
 attic, or, student-Hke, in a second floor, or, fashion- 
 ably, in a first floor, or, humbly, in an area. He 
 may furnish these rooms after his fancy, with the 
 costly luxury of a west-end mansion, or the sober fur- 
 niture of true professional chambers ; to wit, book- 
 case, well lined with portly volumes, three chairs, 
 one, at least, of which is huge, high-backed, with 
 leather worn and greasy; its companions, dififering 
 entirely in age and shape : a rickety sofa, a table 
 strewn with papers, open and folded, and books 
 lying confusedly ; a closed cupboard, that, on near 
 approach, telleth of provender within ; two or three 
 prints of celebrated Chancellors, or Judges, accord- 
 ingly as the votary belongs to Equity or Common 
 Law. 
 
 Here is the Templar's house and sanctuary, upon 
 
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STUDENT LIFE IN THE TEMPLE. 233 
 
 whicli none dares intrude, save the privileged 
 laundress and the saucy clerk; and both of these 
 personages being necessary appendages to a set- 
 tlement in the Temple, and usually constituting 
 themselves the real rulers of the domain, — the 
 masters of the master, — they will deserve a passing 
 notice. 
 
 To the uninitiated, the idea of a laundress is that 
 of a lady whose talents are exclusively dedicated to 
 the useful art of purifying dirty linen, and who 
 notifies her calling to the world by the inscription, 
 more expressive than elegant, " Mangling done 
 here." But not such is the laundress of Templar 
 contemplation. The abstract idea of that personage 
 is to him the form of a very plain woman, descending 
 into the vale of life, with very dirty face and hands, 
 and apron to match, having considerable fluency of 
 speech, a resolute tone, a forward manner, busy and 
 bustUng, who comes and goes when she pleases, and 
 without any apparent object puts his room "tidy," 
 as she terms it, or throws it into confusion, according 
 to his notions; lights the fire, lays the breakfast, 
 removes it, brings his tea, leaving him to put it 
 aside for himself; and as she bars his window, 
 wishes him a good night, with a manner that indi- 
 cates something hke a motherly interest in his 
 well-being, and for which, because it reminds him 
 of his boyhood's home, he blesses her in his heart, 
 and forgives her besom and her chatter. But if 
 he chances to be ill, her woman's nature is forthwith 
 displayed; no murmurings then : she is as kind, and 
 tender, and watchful, as if he were her own son ; 
 
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234 THE ADVOCATE. 
 
 looks in half-a-dozen times a day to see if she can 
 do anything for him ; bakes his toast, and makes his 
 tea, and moves about on tiptoe, and procures of 
 her own thoughtfulness little delicacies, and advises 
 him not to work so hard, and even hints how much 
 better it would be for him if he were to marry and 
 leave those solitary chambers, and ventures a com- 
 parison between the lot of her master and that of 
 her goodman at home, much to the disadvantage of 
 the former. Such, in the natural history of the 
 Temple, is the Laundress 
 
 Nor is the Clerk less sui generis. He is either a 
 very sharp lad or a very dull man. If yet in his 
 teens, he is a little, impudent, precocious varlet, 
 learned in all the "wise saws and modern in- 
 stances" that chance to be popular at the time, 
 ultra-Cockney in his talk, ill-taught, and yet 
 knowing a great deal too much for his age. If he 
 be a man advanced in years, he is as duU now as 
 in his premature boyhood he was sharp— as slow to 
 move as he had been quick, as heavy in eye and 
 feature as once he was bright and knowing. He 
 dresses formally, he walks formally, he talks for- 
 mally; occasionally he ventures a joke, but it is 
 always a professional one ; and an anecdote, but it 
 is of some eccentric Judge who had been the 
 delight of the last generation of the briefless. Such 
 is the fate of the town bred; precocious in youth, 
 manhood, which brings to the countryman an 
 intelhgence strengthened and matured, and facul- 
 ties fitted for thought and action, only dulls his 
 senses, and, if it sobers, makes him stupid. The 
 
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STUDENT LIFE IN THE TEMPLE. 235 
 
 eras of life in him seem to have changed places ; in 
 his premature boyhood he is "the little man;" in 
 his manhood, the dull boy; nature is perverted, 
 and no season with him is genial. 
 
 But, boy or man, he is usually a good servant. 
 Provided he be permitted certain traditionary pri- 
 vileges, and too severe a censorship be not exercised 
 over his sayings and doings, he is a faithful and 
 useful assistant. The Barrister's Clerk ranks him- 
 self as a grade above the Attorney's Clerk, and yet, 
 such is the force of custom, he will perform menial 
 offices to which the latter would not condescend. 
 He is valet as well as clerk, and footman as well as 
 valet. He cleans his master's boots, brushes his 
 master's shoes, waits upon his master at dinner, and 
 will carry a plate of oysters or a pot of stout as 
 readily as a blue bag or a brief. But then he has 
 the prospect, at least, of rising with his master, 
 whose fortunes are his own. The success of his 
 master brings with it golden times to him ; he may 
 anticipate an income which Barristers themselves 
 might envy; to be Judge's clerk, if his master 
 should climb to that dignity ; nay, even a carriage 
 and a country-house are not beyond the bounds of 
 possibility. Such things have been, and they may 
 be again. 
 
 Hence he has that strongest possible inducement 
 for faithful and zealous service — a community of 
 interest. They must struggle together, pine in 
 obscurity together, or rise together, into fortune 
 and fame. In the whole circle of society, there is 
 not a tie so close as this. But, to do them justice, 
 
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236 THE ADVOCATE. 
 
 the race of Clerks are not moved alone by their 
 manifest interest in their master's advancement; 
 they have also a personal attachment, and many 
 are the fine traits that might be told of services 
 rendered and sacrifices made, of pure unselfish 
 regard, which would do honour to any class. If 
 dependents, their masters soon come to be dependent 
 upon them; if they show themselves worthy of 
 trust, they are not long in being trusted, and, thus 
 thrown together by circumstances, the assistant 
 becomes the humble friend. 
 
 Life in Chambers is, at the best, a dull, mono- 
 tonous and unwholesome life, and therefore not to 
 be protracted longer than necessity requires. Its 
 very cheerlessness tempts to irregularities that are 
 injurious alike to health of body and of mind. The 
 tendency of solitude is to foster evU imaginations, 
 and to induce a desire for excitement at any 
 price. It is the law of our being, and must be 
 observed, or the penalties of disobedience wiU be 
 endured. 
 
 But although we are fuUy conscious of the 
 dangers that beset the Student's life in Chambers, 
 we cannot counsel him to fly from them, but only 
 to resist them. It is a necessary evil, which he 
 must encounter as the price of his Profession, 
 scarcely to be learned by any other process. The 
 advantages of Chambers for the purposes of study 
 more than counterbalance the disadvantages to 
 which we have alluded. To become a la^vyer, a 
 man must become a hermit ; he must sacrifice the 
 pleasures and advantages of society, and the wonted 
 
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STtlDENT LIFE IN THE TEMPLE. 237 
 
 enjoyments of youth, at the altar of his ambition ; 
 and nowhere can this sacrifice be so easily made as 
 in Chambers, where the very solitude compels to 
 labour, and there is nothing to distract the atten- 
 tion from the abstruse and dilQ&cult page that is 
 opened to the eye. Let him be ever so devoted to 
 his task, the Student who shares the pleasures of a 
 family wiU be tempted to linger over the social 
 meal, to join the social circle, or to mingle in the 
 dance; he must mould his hours and habits to 
 those of the persons about him. But in Chambers 
 he is absolutely his own master — his time and 
 his thoughts are his own; meals are despatched 
 with speed, except the tea, which the Student loves 
 to extend over a full hour, and which, if he is wise, 
 he will devote to some light reading — poetry or 
 fiction, the newspaper or the review — as a valuable 
 interval of relaxation between the toils of the day 
 and the labours of the night, for far into the night 
 he will probably protract his vigils. Perhaps, in 
 accordance with all who volunteer advice, we ought 
 to warn the youth who toils for the rewards of our 
 toilsome Profession that he should not read hard at 
 night, or sit up late over his books; but, rather, 
 early to bed, and then up before the sun, and dedi- 
 cate the fresh and wholesome morning to the tasks 
 which, destructive at midnight, become pleasant 
 then. We candidly admit such advice to be excel- 
 lent; we recognise its truth; we are conscious of its 
 propriety ; we have never disputed it, and yet have 
 we not been able to follow it; and, inasmuch as in 
 this treatise it is our aim to describe rather the 
 
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238 THE ADVOCATE. 
 
 strictly practical than the theoretically true, we are 
 bound to refrain from inculcating that which we 
 very well know would not be observed by the 
 reader, whatever the language of warning or ex- 
 hortation addressed to him. The plain fact is — and 
 why disguise it? — ^that in our artificial London life 
 early hours are impracticable. It is impossible for 
 any man who does not live a life of utter seclusion 
 from the rest of the world to go to bed at ten 
 o'clock; and yet, unless he does so, he cannot, 
 without injury to health from insufficient sleep, rise 
 with the sun at five. And if the Student should 
 bring with him to London his country habits, close 
 his books at ten, just as he is getting deep into his 
 subject, jump into bed, and rise at five with pur- 
 pose to resume them, what does he find ? His room 
 unswept, his fire unlaid, his boots uncleaned, the 
 chUling gloom of a fog, and all the unpleasantries 
 of daybreak, with nothing of its poetry or its 
 beauty. But suppose his zeal for the maxim that 
 is to make him " healthy, wealthy, and wise," to 
 overcome these disagreeables ; let him dare the dirt 
 of laying and lighting his own fire; a room is not 
 comfortably warmed in a moment; he composes 
 himself to his books, but his hands and feet are like 
 icicles ; he is in no condition to write, he is in no 
 mood to think, and before the warming is complete, 
 and perhaps just as he is getting again into the 
 spirit of his task, an hour or two being spent in 
 the process, there comes the laundress with mer- 
 ciless resolve to sweep and dust the room and lay 
 the breakfast; compelling him to take refuge in his 
 
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STUDENT LIFE IN THE TEMPLE. 239 
 
 bedroom, where he probably reflects that, if he had 
 continued at his books overnight till one o'clock, 
 he would have enjoyed three cahn hours of con- 
 tinuous and profitable labour, whereas he has ex- 
 changed that for three morning hours, of which two 
 at the least have been wasted in unavoidable dis- 
 comforts. This, we are conscious, is very unphilo- 
 sophical, but it is very true, and our excuse must 
 be, that we are endeavouring to deal with men and 
 things as they are, and not as we might wish that 
 they were, or as they ought to be. 
 
 Then resign yourself patiently to circumstances 
 you cannot control, and adapt your habits to your 
 position, with as little disregard as possible to the 
 laws of health. If you cannot "early to bed," 
 abandon also the "early to rise." Take needful 
 sleep ; give the mind repose when it is asked, even 
 at the cost of half an hour or so. A literal trans- 
 lation of a well-known hne at the opening of the 
 Iliad informs us that " it does not become a coun- 
 sellor to sleep all the night." But you are not a 
 counsellor yet, so sleep on now; time enough to 
 trespass upon needful rest when clients command, 
 and you barter your health for gold. Observe 
 carefully stiU the rules for reading, for recreation, 
 for exercise, which we have suggested in an earlier 
 part of this essay, and beware only lest you permit 
 yourself to lapse into either error, of too much 
 indulgence in pleasure, or too much devotion to 
 study. Health is the first object, for, without it, all 
 other objects are worthless, and health can only be 
 secured by the temperate exercise of all the faculties 
 
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240 THE ADVOCATE. 
 
 of mind and body, each in its turn and in its place, 
 none over-taxed and none neglected. 
 
 From the solitude of Chambers you wiU find a 
 pleasant and profitable relief in regular attendance 
 at the meetings of the two Forensic Societies, and 
 it is one of the advantages of life in Chambers that 
 it offers every inducement to a visit to Lyon's-inn 
 Hall, instead of the temptation to absence which so 
 strongly besets him who dwells in another part of 
 town, and who must take a rapid after-dinner walk 
 citywards if he would be present in good time. The 
 excitement and the society will benefit your health 
 and spirits, as much as the practice will cultivate 
 your acquaintance with the law, and your capacities 
 for speaking. It combines the uses of society with 
 the advantages of study. 
 
 Moreover, it will be your duty and your interest 
 to attend regularly one or more of the series of 
 lectures lately established in the several Inns of 
 Court. Certain of them you are bound by the 
 regulations to attend ; but do not limit yourself to 
 the letter of the law, but selecting such of the 
 courses as from time to time chance to be most in 
 accordance with the branches of the law you are 
 then particularly reading, make a point of being 
 present at every lecture, and not only give to it 
 attentive ear, but let it be a rule with you to take 
 notes of the most striking points of the argument, 
 not merely for better impressing it upon the 
 memory, but for a purpose which we will presently 
 explain. 
 
 And here we must guard ourselves against the 
 
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STUDENT LIFE IN THE TEMPLE. 241 
 
 possibility of being misinterpreted on this matter 
 of lectures. While we admit them to be useful to 
 some extent, and that they have been very properly 
 introduced into the course of legal education, by the 
 Benchers, we are far from sharing the exaggerated 
 estimate of their value so generally received. We 
 believe that a mistake is made in this, proceeding 
 from the not uncommon fault of confusing things 
 that differ greatly in fact, because they are called 
 by the same name. Lectures are the only means 
 of conveying knowledge to those who cannot read; 
 they form the best process of teaching sciences that 
 are to be illustrated by experiments ; they are but 
 an imperfect method of conveying a statement of 
 facts, and they constitute the worst plan that could 
 be devised for impressing logical processes and 
 abstract truths. The cause is, that the slowest 
 reader speaks faster than the quickest faculty of 
 reason can foUow him, if he argues closely; and if 
 his argument be not close, it is of little worth. 
 Hence, for all that relates to the history of Law, as 
 its birth, the origin of its various forms, the broad 
 principles on which it is based, the changes it has 
 undergone, and such like, lectures are sufficiently 
 well adapted; but for its application as illustrated 
 in the cases, and its minute ramifications in prac- 
 tice, dependent as are these upon refined distinc- 
 tions which it requires reflection to perceive and 
 appreciate, the lecture is obviously unfitted, because 
 the mind of the listener has not time to follow the 
 train of argument as fast as it falls, previously 
 excogitated, from the reader's lips, but is looking 
 
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242 THE ADVOCATE. 
 
 for that which is coming instead of pondering on 
 that which is past. 
 
 It appears to us, therefore, that lectures are not 
 the best method of teaching Law, and that the 
 Student will faU into a dangerous mistake if he 
 supposes that, by attending a few courses of lec- 
 tures, he wiU make himself a lawyer, or anything 
 like one. The best use of law lectures, if we might 
 speak of our own experience, is rather to teach the 
 hearer what there is to be learned by him, and, as 
 it were, to map out in his mind the region to be 
 explored by his own research, than to fiU it up 
 from the stores of the lecturer. He obtains thus a 
 comprehensive view of the subject ; he discerns its 
 origin; he sees how its branches have stretched 
 themselves on all sides; he traces its boundaries; 
 he learns what are the authorities where further 
 information is to be found; and the lecture, so 
 employed, becomes a useful aid to reading; but 
 never can it be a substitute for the hooh. 
 
 Thence the use of the notes which we have 
 recommended the Student to take, and hence he 
 will see the kind of notes he ought to take. They 
 need not be of the lecturer's very words; it would 
 be better not to take them in short-hand. He 
 should set down the divisions of the subject, and 
 aU its subdivisions, in their order; the cases and 
 authorities cited, and the lecturer's definitions. 
 These wUl suffice for the lecture-room. But the 
 same evening, if possible, or not later than the 
 next day, while yet it is fresh in his memory, he 
 should transcribe in a hook, at full and in proper 
 
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STUDENT LIFE IN THE TEMPLE. 243 
 
 shape, the outline he has taken. This done, at his 
 more leisure he should refer to this book, begin at 
 the beginning of the lecture, turn to all the autho- 
 rities and cases cited, read them with care, until 
 he understands their bearing upon the principle 
 they were adduced to prove, and so he may erect, 
 upon the foundation laid in the lecture-room, a 
 goodly structure of law. For any other purpose 
 than this, lectures on law appear to us to be very 
 greatly over-esteemed by the advocates of legal 
 education, and often substituted for reading by 
 the Student, who is but too willing to accept his 
 regular attendance at the lecture-room as an excuse 
 for irregidar reading in his Chambers. 
 
 Still they are important, because they are now a 
 necessary portion of his education : they are capable 
 of being turned to very profitable account if judi- 
 ciously employed, and they are a feature of the 
 Student's career which could not be passed in this 
 place without notice. 
 
 Peculiar as in every thing beside is this Life in 
 the Temple which we have been describing, — 
 peculiar in its dwellings, in its social character, in 
 its pursuits, in its external as well as in its internal 
 aspect, in its Hall dinners, its strange old customs 
 and formalities, — it is not less pecuhar in its obser- 
 vance of the grand and solemn rites of rehgion. It 
 has within its precincts a structure, dedicated to 
 God, such as in all Europe there is not the like 
 of in beauty. It has been handed down to the 
 Benchers of the Temple as a splendid rehc of the 
 taste and munificence of the Knights of the Holy 
 
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244 THE ADVOCATE. 
 
 Sepulchre, whose mansions they have inherited, and 
 worthily the sacred trust has been discharged. No 
 cost has been spared in its preservation and reno- 
 vation, and here it stands now, fresh as in the days 
 of its youth, the pride of our sober community. 
 You enter, and at once your thoughts are carried 
 back through centuries to the days when those 
 graceful aisles echoed to the tramp of iron heels, and 
 those slender arches trembled with the clank of arms, 
 as the warrior- worshippers knelt before the emblems 
 of their faith. And there they are, stiU lying upon 
 that pavement, those marble knights, with their 
 crossed legs and their forms, scarcely touched by 
 time, looking up to heaven as fixedly as they have 
 looked for centuries ; and that fine old organ makes 
 the solid pavement shake as with subterraneous 
 thunder; and the services are chanted cathedral- 
 like, and glorious anthems are sung gloriously, and 
 through the painted windows the light falls hohly 
 and richly toned; and the altar is emblazoned after 
 its ancient fashion; and the walls and the ceiling 
 show many colours, that blend into a delicious 
 unity of hue that fills the mind with a sense of 
 satisfaction; and the Benchers and the Barristers 
 take their allotted places, and the Students theirs, 
 with that recognition of rank which prevails 
 throughout the Profession of the Law, and other 
 seats are reserved exclusively for ladies who are 
 permitted to be present if they accompany a Bar- 
 rister of have a Bencher's order, and in this mag- 
 nificent Temple of the Templars is the worship of 
 God conducted after the most impressive and most 
 
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STUDENT LIFE IN THE TEMPLE. 245 
 
 solemn fashion of the English Church, and with an 
 earnestness of devotion such as is not always seen 
 in its churches. The spirit of the place sheds its 
 influence upon the worshippers. 
 
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XXllI. 
 
 THE CALL. 
 
 Having in this manner kept the prescribed nmnber 
 of Terms, that is to say, having eaten at least three 
 dinners in each of twelve Terms, and attended a 
 prescribed number of lectures, and attained the ripe 
 age of twenty-three, you are competent to be called. 
 But, previously to your call, you may, if you please, 
 offer yourself for an examination, for the purpose 
 of obtaining, if you can, a certificate of merit and 
 the advantage of having your name published to 
 the world as one who has given proof of legal 
 attainments. It is an honourable ambition, and if 
 you are conscious of being qualified, by all means 
 dare the trial ; for, even if you do not attain the 
 immediate object, the benefit of the preliminary 
 studies, and of the examination itself, will not be 
 trifling. 
 
 And before you determine "to be called," bethink 
 you well of the propriety of such a course. It will 
 
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THE CALL. 247 
 
 be a matter for your gravest deliberation whether 
 it will not be more prudent to practise for a while 
 as a Pleader, and the considerations that should 
 determine your choice may thus be stated : — 
 
 The comparative advantages of practising as a 
 Pleader for a few years previously to going to the 
 Bar are these. If you are yet young, you attain 
 to age and experience before you make your public 
 appearance, and so avoid the public failures which 
 youth and inexperience can scarcely hope to escape 
 at first, and which are always damaging — often 
 destructive. You •will not suffer from the imputa- 
 tion of being " a boy," which invariably attaches 
 to a very youthful Barrister, and which, once 
 affixed, is not removed until long after he has really 
 ceased to be one; — so difficult is it to erase an 
 impression and to prevent the recurrence of asso- 
 ciations of ideas once established in the mind. As 
 a Pleader, you are intrusted with business which 
 would not be given to you as Counsel; first, because 
 it is one thing to deal with a case in chambers, 
 surrounded by a library and with unlimited time 
 for search, and another thing to deal with it in the 
 exigencies of a Court, where no help can be given 
 to you from without; and, secondly, because as a 
 Pleader you are permitted to take half-fees^ and, 
 consequently, would be preferred for a great deal of 
 work for which the Attorney would not be inclined 
 to pay the full fee. Then, business is much more 
 speedily and easily obtained by a Pleader than by 
 a Barrister ; for nobody who deals fairly with his 
 clients would intrust a brief of any importance to 
 
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248 THE ADVOCATE. 
 
 the hands of one who is without experience, what- 
 ever may be his natural abiHties. Lastly, as a 
 Pleader, you wiU form connections, which, if you 
 give satisfaction, will follow you to the Bar, so that 
 the years spent in pleading are not, as some suppose, 
 time lost, even for the purposes of success as an 
 Advocate ; but, when called, you will be pretty sure 
 to occupy the same position in respect of amount 
 of business, and in the confidence of your clients, 
 as if you had been spending the same period in 
 wearing out your wig and gown, and rusting your 
 brains in idleness ; to say nothing of the difference 
 of your expenditure in the meanwhile, which you 
 must take as a very serious item into your calcula- 
 tion, for, as a Pleader, you have no other necessary 
 expense than your chambers and your maintenance ; 
 as a Barrister, you wiU be compelled to throw away 
 an additional hundred pounds every year in your 
 attendance on Circuit and at your Sessions. 
 
 On the other hand, there may be circumstances 
 which will outweigh these considerations; as, for 
 instance, if you have had previous experience in 
 the practice of the law — as, if you have been for a 
 long time holding a situation which has compelled 
 you to make the law your study, as is the case in 
 some of the public ofB.ces; or, if you have actually 
 practised for a few years as an Attorney. If you 
 are already of mature age, and only when late in 
 life had turned your attention to the law, you 
 cannot then afford to devote six or seven years to 
 pleading, but must rely upon the confidence which, 
 to some extent, is always and very properly placed 
 
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THE CAXL. 249 
 
 in tlie fact of age, and the sober judgment it usually 
 brings with it. In these and such-like cases, it 
 would be more wise to be called immediately that 
 you are qualified. But, in the majority of instances, 
 prudence would recommend to every Student under 
 the age of thirty the propriety of practising as a 
 Pleader for a few years, before he presents himself 
 as a candidate for forensic honours. 
 
 If you adopt the prudent course, and betake your- 
 self to pleading, we must here part company with 
 you for a time, heartUy wishing you the success 
 your diligence has deserved. 
 
 If you determine to be called, your first care will 
 be to procure yourself to be proposed by a Bencher 
 at the Parliament ; (so the assembled body of 
 dignitaries of the Inn is termed.) This done, your 
 name is posted in the HaU in the list of Students 
 proposed, in order that any person who has " to 
 show any just cause or impediment" why you are 
 unfit to be admitted to a society of gentlemen might 
 declare it before it is too late. You then make 
 application to the Treasurer, who, you wiUremember, 
 has aU this time been in possession, without interest 
 paid upon it, of your 100/. deposited on your 
 admission, as your security for your fees. In true 
 lawyer-like fashion he presents you with an account, 
 which, within about 81. or so, balances your account 
 against him. But even this balance comes oppor- 
 tunely, for you had probably looked upon the 
 money as gone for ever, and it just suffices to defi:ay 
 the charges for your wig and gown, which you must 
 order forthwith, to be worn for the first time on 
 
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250 THE ADVOCATE 
 
 the great occasion of your call. We paid 31. 2s. 
 for a gown, but competition has since reduced the 
 price to some 50s. or so ; the wig, however, remains 
 at its original, time-out-of-mind price of five guineas, 
 for goats' hair warranted, wrought by the expe- 
 rienced hands of Savage or Albin. True it is, that 
 some wretched innovator, speculating upon possible 
 poverty at the Bar, has invented a wig which he 
 offers for three guineas. But what a wig ! what a 
 stiff, wiry, dirty-hued, shapeless thing ! " Pray you 
 avoid it." 
 
 But your choice will yet lie between goats' hair, 
 and powder; a wig of native white and a wig made 
 white by the barber. A war is raging at this 
 moment in all our courts between nature and art. 
 As often happens, a silly notion has entered some 
 weak heads that it imparts a sort of dignity to the 
 brains to clothe them with a coat of flour; some 
 prefer it, out of respect to antiquity, it being the 
 fashion of the olden time, and a third party advo- 
 cates starch, as being the universal practice of all 
 Judges, Serjeants, and Silks, and therefore smacking 
 of aristocracy. But, in making your choice, you 
 must also take convenience into account. A goats'- 
 hair wig requires no barber's delicate attentions; 
 it packs into a small tin box which you can carry 
 in your blue bag or in your portmanteau ; it does 
 not throw dust into your eyes nor spoil your coat. 
 The powdered wig, on the contrary, is guilty of all 
 these annoyances. It costs a small annuity in the 
 dressing; it plasters your coat with grease and 
 then bespatters it with flour; it must be borne about 
 
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THE CALL. 251 
 
 in a box by itself, and makes a third package in 
 your travels ; and, lastly, and perhaps the most 
 serious objection of all, by reason of the pomatum 
 with which it is larded, it keeps the head hot, pre- 
 vents evaporation, and rots the hair, not unfre- 
 quently producing headaches and flow of blood to 
 the brain ; the hair wigs, on the contrary, permit 
 the freest access of air to the skuU. 
 
 This knotty point resolved, the measure of your 
 cranium taken, and your order given, nothing 
 remains but to send out your invitations to such 
 of your friends as you purpose to invite to your 
 Call Party. 
 
 At last arrives the hour, in your estimation so 
 important, and really so big with fate to you — for 
 upon its results depend the fortunes of your life. 
 As the clock strikes five you rush to the HaU, where 
 your robe-maker and your wig-maker are in atten- 
 dance to put upon you these insignia for the first 
 time, and see that they fit. You have worn a white 
 " tie" of course ; your sister, your wife, your 
 betrothed — whatever female hand is most dear to 
 you, has provided your first bands of the most 
 delicate gauze, and which you are afterwards glad 
 to exchange for a coarser material that will not curl 
 in the hot air of a court. You are arrayed in the 
 costume of your Profession; you feel yourself now 
 "my learned friend;" you peep sidelong at the little 
 looking-glass in the lobby to try to see how you 
 look; you endeavour to appear nonchalant in the 
 presence of the servants, who, however, very well 
 understand the meaning of your awkward ease. 
 
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252 THE ADVOCATE. 
 
 But they anticipate a fee, and so they do not laugh 
 outright) but proffer little services that are not 
 required ; and the under-butler makes a point of 
 informing you that the wine is come, and at the 
 same time expects you to drop half a sovereign into 
 his hand. 
 
 But now that single indescribable thump of the 
 beadle's staff upon the floor announces the approach 
 of the Benchers; and ranging yourselves in the 
 order of your seniority, measured by the dates of 
 your admission, and which order of seniority is 
 often of vast importance, inasmuch as it determines 
 the question of seniority in Court, and, consequently, 
 which shall lead^ you foUow the train of Benchers 
 into the Hall, usually on such occasions crowded 
 more than is its wont. You pass in procession 
 through the ranks of smiling friends and envying 
 freshmen, up to the foot of the dais; the Benchers 
 stand in formidable array upon the platform ; the 
 Treasurer reads to you individually, and you repeat 
 after him, the oaths of abjuration and supremacy, 
 and the oath of allegiance; the Benchers bow to 
 you, and you return the bow, and you walk back 
 to your mess a full-fledged Barrister — an esquire 
 of right — with great privileges, but also with great 
 duties. 
 
 Your special friends in the HaU are ah-eady 
 gathered at the table which you have chosen ; you 
 dine in your robes for the first and the last time in 
 that Hall ; you supply the wine to your party. The 
 dinner ended, you disrobe ; the dessert and the wines 
 you have previously ordered are, by the accommo- 
 
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THE CALL. 253 
 
 dating waiters, placed upon the table. On this 
 occasion you are permitted, by a courteous custom, 
 to invite any friends you please, although not mem- 
 bers, to join your wine party. 
 
 The rest of the evening may be readily imagined. 
 Six or eight parties are scattered about the HaU ; 
 each one has its complimentary speeches and toasts, 
 with all the honours, and thanks returned. The 
 sentiments uttered at each are, it is true, precisely 
 the same. The new-made Barrister is invariably 
 " a gentleman whose talents and industry cannot 
 faU to secure to him the highest honours of the 
 Profession ;" and the said new-made Barrister always 
 declares that " it is the proudest moment of his life ;" 
 then every visitor is by some toast or other compli- 
 mented, and called on for a reply ; then songs are 
 sung; first by one, afterwards by many. In the 
 beginning, one man only speaks at a time ; after a 
 whUe, half-a-dozen are upon their legs at once. 
 " The honours" for a while are given with steady 
 fire ; in an hour, they are irregular ; in two hours, 
 they mingle with songs and speeches, every part 
 of the table conducting its own exclusive per- 
 formances. 
 
 As a similar course of entertainment is pro- 
 ceeding at the same time at six or eight other 
 tables in the same room, each acting independently 
 of its neighbours, and speaking, singing, or cheer- 
 ing, without reference to what the others may 
 chance to be doing at the moment, the scene may 
 be imagined, but cannot be described ; but when 
 the latter acts of the comedy are being played, and 
 
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254 THE ADVOCATE. 
 
 every group is a Babel, the chaos of the eight united 
 Babels can neither be described nor imagined. It 
 must be heard and seen to be comprehended. At 
 eleven o'clock the room is cleared, and before mid- 
 night that grand old Hall is as silent and as dark 
 as if its oaken rafters had never echoed the con- 
 vivialities of your Call Party. 
 
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XXIV. 
 REFLECTION. 
 
 In compliance with immemorial custom, be tem- 
 perately mirthful at your Call Party, and when it 
 is concluded, retire to your chambers, and, throwing 
 aside the excitements of the evening, forgetting the 
 flattering speeches of your friends, and banishing 
 the dreams of yoijr own hopeful fancy, give the last 
 hour of that memorable day to calm and serious 
 reflection upon the new duties that have devolved 
 upon you, the new responsibihties you have under- 
 taken, the new privileges you have received, the 
 new rights that have been given to you to maintain. 
 It is no light task that you are now solemnly pledged 
 to perform ; it will demand all your faculties, moral, 
 intellectual, and physical ; the energies of your mind 
 and body must be devoted to its performance. It 
 is not an enterprise to be thoughtlessly begun or 
 carelessly pursued. When you assumed the title of 
 Advocate, you took upon you the responsibilities 
 
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256 THE ADVOCATE. 
 
 as ■well as the honours of the office, and you should 
 enter upon your new and hazardous career with a 
 full appreciation of its duties and its dignity. To 
 review these will be a worthy conclusion of your 
 Call Day. 
 
 You have taken no oaths save that of loyalty to 
 your sovereign; you have made no pledges, you 
 have signed no contract, you have bound yourself 
 by no promise to observe any code of laws, you 
 have subscribed no creed, you have been subjected 
 to no examination; upon the faith of your honour 
 as a gentleman you have been admitted into a 
 society of gentlemen; in a manly confidence that 
 you have not offered yourself for the office without 
 being prepared to submit to its obligations, you 
 have been invested by your sovereign Tvith the 
 privileges of an Advocate. But, although unsworn, 
 you are bound by a stronger obligation than any 
 oath that human art could frame in words; and 
 although the rules are unwritten, they are more 
 imperative upon you than any statute of the realm. 
 Let it, then, be your first resolve to submit yourself 
 cheerfully and without reserve to the reguktions 
 of the Society to which you have been admitted, 
 unconditionally in form, but in reliance upon your 
 honour; and to dedicate yourself, head and heart, 
 — in conduct, in speech, and in writing, — to the 
 maintenance of its integrity and to the advancement 
 of its reputation. 
 
 It needs very little experience of society to dis- 
 cover that a man's true interest is always to give 
 the first place in his regards to the interests of the 
 
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EEFLECTION. 257 
 
 profession or society of which he is a member. The 
 attempt to court popularity, by abusing his own 
 class, ensures to a man the hatred of those whom 
 he betrays and the contempt of those to whom he 
 sacrifices them. " Stand by your Order." The 
 observance of this maxim always commands respect, 
 even from those with whom you may have to conflict 
 in doing so. They who take advantage of a man's 
 abuse of his own class despise him while they 
 use him, and spurn him when he has served their 
 turn. Do you bear this in mind, and having 
 become a member of the Society, " stand by your 
 Order" and let your chiefest care be to maintain 
 its rights and its privileges, at any sacrifice of your 
 own seeming interests, and whatever the temporary 
 inconvenience to yourself They who may be 
 oiFended for the moment will respect you even in 
 their anger, and when reflection returns they will 
 acknowledge in you at least an opponent with whom 
 it is no indignity to strive. In these times, when 
 encroachments are continually being attempted upon 
 all privileges, and when the Lawyers are more 
 especially subjected to popular hostility, it becomes 
 more than ever necessary that the members of every 
 class among them should, each of them, not only 
 boldly and resolutely stand by his Order, but that 
 both branches of the Profession should unite to main- 
 tain the privileges and position that each now enjoys. 
 Bethink you next of the great privileges which 
 have been this day conferred upon you, — the privi- 
 lege of unlimited freedom of speech, — the privilege 
 of bearding the noblest and proudest in the land in 
 
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258 THE ADVOCATE. 
 
 the cause of the poorest and lowliest ; a privilege 
 against which there is no protection for the power- 
 ful ; which a pauper may require you to exercise on 
 his behalf, and which, once so required by him, a 
 peer cannot command, a millionaire cannot buy. 
 In virtue of the robes you wear, all men's characters 
 and conduct are exposed to your unbridled criticism, 
 and there is no appeal, no redress for them, if they 
 are wronged by you. But this tremendous power 
 is entrusted to you in the confidence that you will 
 not abuse it ; it is given to you, not for your own 
 advantage, but for the advantage of your clients; 
 the privileges are not yours, but theirs, and it is that 
 they might have a full and fair hearing that you are 
 admitted to irresponsible speech. This mighty 
 power, so capable of abuse if misdirected, may be 
 employed most advantageously, if wisely and gene- 
 rously wielded. It may be made the vindicator of 
 truth and righteousness when it can find no voice 
 elsewhere. The time has been that the press, cor- 
 rupted or coerced, has refused to utter truths 
 unpalatable to the powers that be, and the voice of 
 reason and justice has been stifled by the tyranny 
 of monarchs, of oligarchies, or of mobs. Such times 
 may be again. Should they come, it will be your 
 mission to give utterance to those truths which can 
 find no other mouth-piece ; to stand boldly upon 
 your privilege as an Advocate, and defy and denounce 
 the wrong, under what guise or pretence soever it 
 may appear, and whether it assume the name of 
 liberty or of loyalty, of democracy or of despotism. 
 You alone can command a hearing — you only are 
 
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KEFLECTION, 259 
 
 exempt from the vengeance of those whose deeds 
 you denounce ; you only are irresponsible, save to 
 your God and to your conscience ; and as your pre- 
 decessors have more than once turned back the tide 
 of tyranny, against which aU other opposition had 
 proved powerless, so may it become your lot, in 
 some evil days which the unknown future may have 
 in store for your country, to follow their example 
 and oppose the privilege of your robe to the tyranny 
 of the time, not the less tyranny, because decreed 
 by a majority, than when wielded by one or by a 
 few. 
 
 And bethink you also of the solemnity of the 
 task you have undertaken. What vast interests are 
 to be committed to your hands and made dependant 
 upon your single skill and judgment, to be exer- 
 cised often in an instant, with only your sagacity 
 to determine your choice, and yet upon that choice 
 depending the issues of life or death, prosperity or 
 ruin. How serious the responsibility incurred even 
 in the defence of a prisoner on a petty charge ! — 
 his liberty for months or years — his character for 
 ever — ^the desolation of his home — ^the ruin of his 
 children ; stUl more, where life is at stake, and it is 
 upon your tact, and skill, and competency to the 
 task, that it depends whether a fellow-creature 
 shaU die or live. Second only to these in import- 
 ance are the properties that will be confided to 
 your care; — ^the fortunes of famihes; hereditary 
 honours; legitimacy; the vindication of public or 
 of private character; the protection of the weak 
 against the strong; of the poor against the rich; 
 
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260 THE ADVOCATE. 
 
 of the oppressed against the oppressor; the main- 
 tenance of right; the disappointment of wrong ; all 
 these will be of the duties that devolve upon you 
 by virtue of your office as an Advocate. 
 
 Scarcely need you be reminded that such duties 
 and responsibihties will demand on your part 
 uncommon capacities ; great self-control ; much 
 courage to resist as well as to dare ; stern rectitude ; 
 a fine sense of honour ; a lofty morality ; a pro- 
 found sentiment of religion ; a large Christian 
 charity ; a generous ambition ; a noble disinterested- 
 ness, — an ever present consciousness of respon- 
 sibility to Heaven for the talents that have been 
 given to you, and to your fellow-men for the right 
 use of the privileges with which they have 
 entrusted you. So many and such various quali- 
 fications are required for the Advocate, so high is 
 the standard of his acquirements, so much of 
 natural ability and so much of cultivation are 
 essential to his success ; — when that success is 
 attained, he has so much to do, and so much to 
 shun, so many are his duties, so fi"equent the 
 occasions for the exercise of his virtues, so countless 
 the forms in which his capacities are tried, that of 
 his own strength he cannot hope to come with 
 credit out of the ordeal. He must turn for 
 assistance to Him who alone is a very present help 
 in time of trouble, and bending before the throne 
 of Heaven he will find confidence in his humility, 
 and strength in his confession of weakness. 
 
 Be it, then, your care, on this the first evening 
 of your call to an office at once so important, so 
 
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REFLECTION. 261 
 
 difficult, and so perilous, to kneel down there, in 
 your solitary chamber, and offer up a fervent 
 prayer to Heaven for strength from on high to 
 enable you to comprehend the rights and duties 
 you have undertaken ; for wisdom and virtue to 
 maintain the one and discharge the other manfully 
 and fitly, to the glory of God, and for the good of 
 your fellow-creatures. 
 
 The influence of that solemn prayer wUl assuredly 
 be upon you through all your after-life ; it will be 
 present in the time of temptation and in the hour 
 of trial ; it wiU strengthen you in your toils ; give 
 you courage when you feel your heart failing you ; 
 nerve you to the combat j conduct you to victory 
 and crown you with the honours to which it should 
 be your worthy ambition to aim, as the earthly 
 reward of your industry, your perseverance, your 
 self-control, your experience and your virtue. 
 
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XXV 
 CHOICE OF A CIRCUIT. 
 
 Your first care wiU be to choose your Circuit and 
 your Quarter Sessions, and in this important duty 
 you win need to employ much deliberation, to use 
 the utmost caution, and to weigh well aU the many 
 considerations that should be taken into account 
 in the formation of your judgment. And for this 
 reason, that practically your decision is almost 
 irrevocable. By a wholesome rule of the Profes- 
 sion, you are permitted to change but once; and 
 even that change cannot be made, after three years, 
 without the consent of all who may be your juniors 
 on the Circuit or at the Sessions, to which you 
 wish to remove. This conventional law is often 
 made the subject of complaint by those who feel its 
 restraint, but have not reflected upon the reasons 
 for it. Like all the other rules that have been 
 established for the governance of the Bar, it will 
 be found, upon investigation, not to have been 
 
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CHOICE OIT A CIRCUIT. 263 
 
 capriciously framed, but to be the result of expe- 
 rience, and to have the general good for its object. 
 It may appear unjust to forbid a man to quit a 
 place where he has been unsuccessful for another 
 where he may hope for better fortune; but how 
 much more unjust it would be, if it were permitted 
 to him to proceed at any time to any Circuit or 
 Quarter Sessions where accident had made an 
 opening, and by virtue of his seniority to oust from 
 their places the juniors who had been for years 
 working their way upwards at that Bar? If this 
 were allowed, no man would ever be safe in his 
 position, for at any moment some other man might 
 come unexpectedly and step over him, by virtue of 
 his standing or of a silk gown. So great, indeed, 
 would be the confusion occasioned, that it would 
 be impossible for the Bar to exist in harmony ; the 
 struggle would become a personal one; the most 
 hateful passions would be kindled ; instead of emu- 
 lation^ as now, thiere would be competition in its 
 worst shape; and, as a necessary consequence, the 
 entire code of rules must be abolished that now 
 regulates the relative positions of senior and junior 
 — a result which the most positive objector to the 
 existing rules would not, we believe, be prepared 
 to accept. 
 
 But you should endeavour, if you can, to make so 
 prudent a choice at the first, that even the thought 
 of change shall not be permited to enter your mind. 
 Be assured that the proverb of the roUing stone is as 
 applicable to the Advocate as to every other calling. 
 Choose with care, but, having chosen, abide by 
 
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264 THE ADVOCATE. 
 
 your choice. Perseverance is the secret of success 
 in all pursuits. If you are only assured that you 
 really possess the natural qualifications (which are 
 indispensable, and for which there is no substitute), 
 take your path and proceed in it steadily, whatever 
 the obstacles, the difficulties, or the doubts, con- 
 fident that they will yield and disperse before a 
 resolute will. Nothing but utter hopelessness of 
 success where you are, or uncommon prospects of 
 prosperity in another place, should induce you to 
 entertain the thought of change ; for not only is the 
 contemplation of change in itself injurious to the 
 mind, but the time you have already spent must be 
 counted as time lost. In your new position you 
 ■will have to work your way once again through the 
 same process to the same position, and you will 
 probably find, after all, that your new Circuit, if it 
 wants some of the difficulties which you found in 
 your former one, has others of its own, which at a 
 distance you had not discovered, but which are 
 apparent now that you are near. But then repen- 
 tance win be too late, for there is no retreating. 
 Even if you have changed for the worse, for evil or 
 for good, by your choice you must abide. 
 
 Hence, then, the necessity for that caution in the 
 first resolve in the selection of your Circuit and 
 Quarter Sessions, which we are desirous of im- 
 pressing upon you; and we will now endeavour to 
 set before you some of the considerations that 
 experience and observation have suggested to us 
 as those which may assist you in forming your 
 j udgment. 
 
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CHOICE OF A CIRCUIT, 265 
 
 First, as to the choice of a Circuit. 
 
 In resolving this, the foremost question that 
 presents itself will be, in what Circuit you have 
 connections, and then, whether you should permit 
 the fact of having connections in it to influence 
 your choice, and to what extent. 
 
 If the choice lies between two Circuits equally 
 desirable in other respects, but in one of which you 
 have, and in the other you have not, connections, 
 there can be no doubt that your preference should 
 be given to the latter. 
 
 But too much importance is often attached to 
 this circumstance of connections. It is right you 
 should understand their true value, that you may 
 not be deceived in your reliance upon what others 
 wiU do for you, instead of depending upon what 
 you can do for yourself. Connections are useful, 
 but their utility is usually much over-rated. In 
 the first place, they are not always your best 
 friends. The experience of almost every man at 
 the Bar will tell you, that his surest supporters 
 have not been among those, whether relatives or 
 acquaintances, upon whom he had the greatest 
 claim, but persons previously unknown to him. 
 The reasons for this are manifold. Your relations 
 and friends know too much of you. They have 
 been accustomed to see you as a child, a boy, a 
 youth, and they cannot easily bring themselves to 
 think of you as a man, and to consult you and 
 confide their afiairs to you, as one more learned and 
 skilful than themselves. Besides, there is often a 
 lurking sense of jealousy, which prevents them from 
 
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266 THE ADVOCATE. 
 
 helping to lift you over their own heads. These 
 motives, apart or combined, are wont to operate so 
 as materially to contract the sum of benefits ex- 
 pected from connections ; and fortunate it is that 
 so it is, or there would be no hope for merit that 
 wants them. 
 
 When the Bar of any Circuit is surveyed by one 
 acquainted with the histories of the various men 
 who crowd the counsel table, there is nothing more 
 curious than to note the manner in which the 
 business is distributed. Among them will be men 
 highly and powerfully connected, — the sons of the 
 most influential Squires of the county, or of Members 
 of Parliament, or of Attorneys with extensive prac- 
 tice, and to whom it might be supposed that a 
 considerable portion of the business would go, if 
 only from the mere influence of those connections. 
 There are other men, without family, or rich rela- 
 tives, or influence of any kind. Yet do we frequently 
 see the former sitting almost briefless, the latter 
 busily employed. The truth is that, in the long 
 run^ the business will go to the most competent 
 men. Influence and connection may procure a few 
 briefs at first, or even permanently a certain number 
 of trifling prosecutions and matters of small moment, 
 which may be given to anybody. But an Attorney 
 cannot confide a case of importance to one of 
 whose efficiency he is not assured, even if he be 
 his son or his brother. He dares not sacrifice his 
 chent to any interest or partiality, and it is this 
 confidence shown in cases of importance, and not 
 the bestowing of a few prosecution briefs, that tests 
 
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CHOICE OF A CIRCUIT. 267 
 
 the real position which the Advocate holds in the 
 estimation of the Attorneys. 
 
 Therefore it is that connections can do no more 
 for you than give you a trial, nor have you a right 
 to expect from them more than this. But that is 
 in itself a considerable advantage ; for, merely 
 because you have not the opportunity to display 
 your powers, you may possibly, as a few of your 
 predecessors have done, remain for a long time 
 unknown. To that extent connections are a benefit, 
 to be taken into account in your calculation of the 
 Circuit to be preferred. But even that possibility 
 is more remote than it is generally supposed to be. 
 As " mute inglorious MUtons " are rather ideal 
 than real, so extraordinary ability at the Bar, 
 pining in obscurity for many years, for want only 
 of the opportunity to show itself, is a fancy more 
 useful to soothe the disappointed, who have mistaken 
 themselves, than true in fact. We have no faith in 
 neglected genius. It is one of the characteristics 
 of genius through all obstacles to make itself 
 known, — and that, not from vanity, but from the 
 impulse to action, which is its nature. If it does 
 not thus go forth of him we know that it is not 
 real genius, but a vague sort of cleverness, which 
 is so often mistaken for it, or that still more 
 frequent ambition which mistakes its desire of 
 greatness for capacity to be great. It is almost 
 certain that, in the course of three or four years 
 regular attendance at the Assizes and Quarter 
 Sessions, some occasion wiU arise, — through kites 
 descending from the Court, or briefs held for friends 
 
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268 THE ADVOCATE. 
 
 in their absence, or accidental stragglers,- 
 chances wiU occur, by which you wiU be enabled 
 to prove that there is in you the capacity for 
 business, if you had it. The reason why this is so 
 rarely acknowledged is, that so few men are ready 
 to seize the opportunity when it offers, and if not 
 fearlessly accepted at the moment, it passes by, and 
 the chance is lost. You have only to be always 
 ready^ and you may depend upon it that the chance 
 wiU come, and much more speedily than you are 
 wont to believe. Such, at least, is the result of 
 our own experience and of the information we have 
 gathered from others. 
 
 Connections, then, are not the only consideration 
 in the choice of a Circuit ; they are but one 
 element in the calculation, and that not a very 
 important one. There are others of greater serious- 
 ness, which it behoves you to consider. 
 
 You must take some account of the position of 
 the Bar already assembled there. As to numbers, 
 that is now a matter which it is vain to set down 
 as an item, for such has been of late the vast 
 increase of Barristers that every Circuit is over- 
 crowded, and the wigs have increased precisely in 
 proportion as the business has decreased. The 
 circumstances to be considered are, the capacities 
 of the men, present and prospective, who form its 
 actual staff of Advocates. Are the leaders likely 
 to be fixtures, or to move off? How many rising 
 juniors are there, and are they of the class of 
 Advocates who are hkely to seize and to maintain 
 the vacant post on the departure of the present 
 
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CHOICE OF A CIRCUIT. 269 
 
 leaders? You must remember that, whatever 
 your abilities, you must move upward by senio- 
 rity : all you can hope to effect is to be ready 
 to take the place when your turn comes, or to 
 contest it successfully with another of equal 
 standing. You must bide your time. If, therefore, 
 you find that there are already a succession of 
 well-qualified juniors, who wiU precede you by 
 virtue of their seniority, unless you can pass them 
 by force of decided superiority of genius, you should 
 avoid that Circuit, even though you have con- 
 nections within it, and betake yourself to some 
 other where the road to success is less hopelessly 
 blocked. 
 
 Another consideration is, the size of the Circuit, 
 and the amount of business to which it leads. It 
 is of little use to obtain distinction where it pro- 
 duces nothing after it is won. A small Circuit 
 should not be chosen by you, if you are confident 
 in your own capacities, and have the perseverance, 
 the courage, and the pecuniary means, to wait your 
 turn. There can be no doubt that a man who 
 knows himself to be qualified by nature and 
 education to be a great Advocate should make 
 choice of a Circuit which will offer the largest and 
 most advantageous field for his exertions when he 
 shall have achieved greatness. 
 
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XXVI. 
 THE CIRCUIT. 
 
 YouE Circuit chosen, you have next to determine 
 what of its Assizes you will attend ; and as opinion 
 and practice differ much upon this point, we wiU 
 briefly state the arguments on both sides, that you 
 may form your own judgment. 
 
 Some say, "attend all;" others, "select such as 
 afford a present prospect of business." 
 
 You cannot know where or when business wiU 
 come, argue the first ; accident may bring you for- 
 ward at any time or anywhere ; chance may throw 
 a brief into your hands in the unlikeliest places ; 
 you make acquaintances by degrees, and establish 
 yourself in the memories of the people of the 
 locality; your face, at least, becomes familiar; your 
 name ceases to be strange; you are, in their con- 
 templation, a part of the Circuit; in time they 
 come to know you, and, when a man is wanted, 
 
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THE CIRCUIT. 271 
 
 you will be preferred to a new comer. These con- 
 siderations are certainly weighty. 
 
 On the other hand, it is urged that it is a 
 needless waste of time and money to wander 
 through the whole Circuit. The constitution of the 
 Bar prevents a junior from obtaining much prac- 
 tice out of his Sessions county. These are the 
 reasons. A junior can expect only junior business; 
 that is to say, in the Nisi Prius Court, the third 
 brief in the few causes that admit of three counsel 
 on one side, and, in the Criminal Court, prosecu- 
 tions and petty defences. However desirous of 
 serving you, an Attorney cannot^ in justice to his 
 client, intrust you for four or five years with any- 
 thing more important; for, whatever your ability 
 or learning, you have not experience, which is an 
 indispensable qualification. Your own brother 
 would be compelled, in any cause he was taking to 
 trial, to give his first brief to an Advocate as leader, 
 his second brief to one of the experienced " heavy 
 juniors," — some pleader and case lawyer. The 
 third brief only is really at his own disposal, and 
 not one cause in ten permits the addition of a third 
 counsel. Your chances, therefore, in a county 
 where you have no connections to assist you to 
 these two or three stray third briefs, is infinitely 
 small. It is little better in the Criminal Court of a 
 county in which you have not a multitude of 
 friends, or that is not your Sessions county. An 
 Attorney cannot, with any courtesy or fairness, 
 take away his criminal briefs from the man who 
 labours for him at Sessions, to give them to a 
 
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272 THE ADVOCATE. 
 
 stranger at the Assizes. Your best friend could 
 not do this, however desirous to serve you. Hence, 
 at the Assizes, the criminal business is'_ always, and 
 very properly, given to the Sessions men — we 
 mean, of course, the mass of the business, all that 
 is worth having and worth coming for. Small pro- 
 aecutions are certainly open to the many ; but then 
 these are given to personal friends, if not to the 
 Sessions man, and you, as a friendless junior, have 
 not the most remote chance of obtaining them ; or, 
 if one or two should, by some fortunate chance, 
 come to you, th^^v afford no opportunity for an 
 eflfort, and are of no worth to you beyond the 
 guinea that accompanies them, and that is but a 
 poor set-oiF against your expenses. 
 
 As a junior therefore, of less than five or six 
 years' standing, it is almost impossible that you 
 should obtain any business in a strange county, 
 where you have not connections, and, even where 
 you can count a few friends, it is not in their 
 power to assist you to anything worth the cost of 
 the journey. But there is another consideration 
 which should have your serious attention. Is there 
 not also some positive mischief resulting from being 
 seen frequently at a place, without business? We 
 think there is; and that this has not been suffi- 
 ciently taken into account in the decision of the 
 question at issue. True it is that you make your 
 face familiar, and you come to be contemplated as 
 a part of the Circuit. But after what fashion? 
 We will tell you. 
 
 To every Circuit there belongs a band of gentle- 
 
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THE CIRCUIT. 273 
 
 men who were never known to hold a brief, to 
 whom nobody ever dreamed of oifering a brief, and 
 who, if it had been offered, would probably have 
 declined it. Yet they travel the entire Circuit, are 
 punctual in bowing to the Judge at the opening of 
 the court in the morning, sit there with heroic 
 patience all the day through, nor leave until his 
 lordship announces that he wiU. "take no other 
 case after that" when they look delighted, rise like 
 schoolboys released, and rush from the Court to 
 enjoy half an hour's holiday before dinner. This 
 they have done for more years than any but them- 
 selves and their fellows can remember. They are 
 the traditions of the Circuit. To aU the inha- 
 bitants of all the Assize Towns they are as familiar 
 by name and aspect as the captain of the javelin- 
 men; they are the Circuit, in the embodied idea 
 of that abstract term. They are not inaptly 
 compared to the dummies on a book-shelf; — 
 they help to fill the table ; to make an imposing 
 mass of wigs ; to swell the importance of the 
 Bar ; and therefore they have their uses. There 
 is nothing useless in nature — not even a briefless 
 Barrister. 
 
 Now it is necessary that you should bethink you 
 soberly whether, by going many times to a place 
 where you have no briefs, you may not incur the 
 hazard of being classed, in the contemplation of the 
 spectators, with those circuit dummies. Who knows 
 that you have business elsewhere — if so it be ? 
 Enough that, year after year, you are seen to be 
 idle here^ to affix to you the reputation of being 
 
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274 THE ADVOCATE. 
 
 but an amateur lawyer. You know the proverbial 
 consequence of a bad name. 
 
 But if you begin by going only to your Sessions 
 county, and establishing first a reputation where, 
 if you have any capacity, you are almost sure to 
 obtain some business soon, and your full share of 
 it ultimately, and then gradually exten'd your 
 travel as your reputation extends, you will go to 
 the new county, not as a nameless stranger, who 
 may or may not be somebody, but as one who is 
 already known, with a prestige in your favour, and 
 a confidence in your fitness which cannot be given 
 to any man who is yet untried. If there be briefs 
 to be given out of the Sessions circle, they are more 
 likely to light upon you, a man with a name, than 
 upon one whose face may be familiar from being 
 frequently seen in solemn idleness at the coimsel- 
 table, and remembered as a part of the pageantry 
 of an Assize, but of whose quahfications there is 
 the profoundest ignorance. Be assured that you, 
 the new comer, with five years' experience to back 
 you, will be in a better position by far than if you 
 had been sitting in state in those Courts during the 
 same period, and you will take sure precedence of 
 your predecessors, besides saving the four or five 
 hundred pounds which they have spent in the vain 
 chase of a junior after Circuit business out of his 
 own Sessions county. 
 
 Of course, if, in any county, you have connections 
 who are likely to exert themselves in your behalf, 
 you will at once attend there also; but if, after a 
 fair trial, you find that they cannot, or will not, 
 
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THE CIRCUIT. 275 
 
 help you to something more than the single compli- 
 mentary prosecution brief, with its guinea fee, do 
 not continue to be seen there without business, but 
 confine yourself again to your Sessions county, and 
 pursue the process of development described above. 
 
 Such are the arguments on both sides of this 
 vexed question; and although great authorities 
 differ from our conclusion, we have no hesitation in 
 giving a preference to the plan of beginning in one 
 county, and penetrating into others by degrees, 
 over that of wandering through the whole Circuit 
 for years, with no reasonable probability of ap- 
 pearing otherwise than as a dummy. You will, 
 however; weigh the reasons for either course, and 
 adopt that which may then appear to you the most 
 satisfactory. 
 
 But, observe, that wherever you resolve to go you 
 must go regularly. Nothing should be permitted 
 to interfere with the indispensable duty of being 
 present at all Sessions and Assizes to which you 
 have determined to attach yourself. You must so 
 identify yourself with them as to be considered a 
 part of them, — that they shall not look like them- 
 selves, wanting you. Nothing so much gives the 
 aspect of a man of business as being always at his 
 post, ever ready to take business when it offers — ever 
 prepared to take care of it when he has got it. If 
 regularity of attendance be not always a test of the 
 existence either of the taste, or the capability, for 
 business, irregularity is a certain sign of its absence, 
 and is more damaging to the reputation of a young 
 Advocate than positive defects in manner or know- 
 
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276 THE ADVOCATE. 
 
 ledge. The first thing a client requires is reliance 
 upon you that you can be found when wanted, and 
 that, being once intrusted with his brief, it wiU have 
 your attention, without imposing upon him the trouble 
 of watching it and you. Therefore, not only come, at 
 any inconvenience, to the Court you have once 
 resolved to attend, but be punctually in your place 
 day by day at the moment of its opening. We are 
 desirous of impressing this upon you the more 
 earnestly, because we have seen the mischiefs that 
 result from its neglect. The Circuit offers large 
 temptations to the indulgence of late hours at night. 
 The hospitable people in the country towns make 
 the Assizes and the Sessions the periods for their 
 reunions, to which the presence of strangers imparts 
 a zest, and the Bar are always cordially welcomed 
 — ^invitations crowd upon us, the company is agree- 
 able, and it requires some self-command to quit the 
 ball-room just when the spirit of the dance is 
 becoming the most cheerful. But late hours at 
 night always tempt, and after awhile compel, late 
 hours in the morning. You cannot be regularly in 
 court at nine o'clock, if you regularly dance until 
 three. Occasionally you may set sleep at defiance, 
 for a single night; but two or three nights of 
 abbreviated slumber will certainly show themselves 
 in the heavy eye, in the duUed brain ; and if you do 
 not positively lie a-bed after the hour of business 
 has begun, of which there is great probability, you 
 o-o to the court unstrung and incompetent to that 
 intense exercise of the mind which is demanded of 
 the Advocate in the discharge of his duties. 
 
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THE CIRCUIT. 277 
 
 It is, we hope and believe, scarcely necessary 
 now to counsel temperance. The times are tra- 
 ditional in which there was emulation at the mess- 
 table. But a hint upon another topic wiU not 
 be so needless. Do not neglect to take daily 
 exercise. The hot carbonized air of the crowded 
 and often iU-ventilated courts in the country is 
 extremely noxious, as you will soon discover in a 
 series of disagreeable sensations, — sleepiness, inacti- 
 vity of mind, relaxation of the whole bodily frame, 
 and the other usual results of depression of the 
 nervous system, for want of a proper supply of 
 stimulus to the vital powers, — in short, from a lack 
 of oxygen. To counteract this evil influence 
 which, if you have any tendency to disease will be 
 sure to call it into activity, by the favourable con- 
 dition of your body for its development, it is 
 essential that you should take regular exercise in 
 the open air, and especially after leaving court, and 
 before you retire to your bed. Let it be a rule with 
 you, that, however late the hour to which you may 
 be detained in the court, whatever your engage- 
 ments in the evening, whatever the weather, you 
 shall not go to bed until you have walked briskly in 
 the open air for half an hour at the least: Even 
 if you must steal exercise from sleep, time will be 
 better expended so than in the unwholesome slumber 
 of over-carbonized blood. And, when your time of 
 retiring to rest will admit of your rising sufficiently 
 early, it would be desirable to walk a mile or two 
 before the court opens, for the refreshment alike of 
 the mind and body. But let the evening walk be 
 
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278 THE ADVOCATE. 
 
 deemed indispensable ; and we have dwelt upon it 
 thus earnestly, because its importance does not 
 appear to be generally known, and because the 
 temptations to omit it are so many and potent, that 
 unless there be a profound conviction of its 
 necessity for preserving the sound mind in the 
 sound body, it is very likely to be forgotten. 
 
 Every Circuit has its own rules for the regula- 
 tion of its own Bar, but these are, of course, subor- 
 dinate to the general regulations which govern the 
 whole Bar. 
 
 It is right that you should acquaint yourself with 
 both, that you may observe them to the best of your 
 ability. They are not arbitrary rules, wantonly 
 devised and tyrannically imposed, but such as expe- 
 rience has proved to conduce to the common con- 
 Aenience, and to the maintenance of harmony among 
 a numerous body of men met together in pursuit of 
 the same object, and, therefore, necessarily rivals. 
 The result has proved the wisdom with which those 
 rules were framed; for the generally harmonious 
 state of the Circuit Bars will appear marvellous, 
 when we remember the rivalry that prevails among 
 the members of every other profession, and the 
 consequent quarrels and hostilities, even although 
 they may be rarely brought into personal contact. 
 But when we reflect that the Bar is an arena of 
 personal competition ; that each man can only suc- 
 ceed by triumphing over his fellows; that fortune 
 and fame are dependant upon the issue of the con- 
 test ; that there is continual opportunity, and not 
 unfrequently necessity, to say severe things one of 
 
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THE CIRCUIT. 279 
 
 another, and to assume at least the .appearance of 
 a quarrel, in court; we say, when all this is 
 duly considered, it is a proof of the marvellous 
 wisdom with which the regulations of the Bar have 
 been framed, that we see how entirely they have 
 succeeded in preserving, not civility alone, but good 
 feehng and friendship, between the individuals so 
 situated, and how they have made the Circuit Bars 
 models of gentlemanly intercourse. 
 
 We direct your attention to these results, because 
 it is not uncommon for those who have had no 
 experience of their practical working to try these 
 regulations of the Bar by some standard of fitness 
 taken from circumstances altogether different, and 
 to condemn this one as worthless, and that one as 
 foolish, and to chafe under the restraints, without 
 calculating the per contra of convenience, which, 
 if they do not feel immediately, they will certainly 
 discover the moment they are fairly launched into 
 the business of the Circuit. Some of them, un- 
 doubtedly, have been superseded by changed 
 external circumstances, but these, although not 
 formally repealed, are practically so by tacit assent. 
 
 A brief review of these rules will, perhaps, be 
 acceptable ; but it should be premised that, as each 
 Circuit has its own special regulations, we are 
 unable to do more than state the general rules that 
 govern the whole Bar, and the special ones which 
 prevail on the Circuit with which we are personally 
 acquainted; but these wiU suffice to show their 
 general character. 
 
 The general rules are, — ^first, that you shall not 
 
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280 THE ADVOCATE. 
 
 change your Circuit more than once, nor at all 
 after three years, at least without the consent of 
 all your juniors on the Circuit you propose to join. 
 
 Although this may appear to be a harsh restric- 
 tion on liberty, its justice and propriety •wiU be 
 recognised, when the reasons for it are stated. 
 
 Were it not for this regulation, no man could be 
 secure of his position. The moment that a man 
 having business should retire from any Circuit, 
 there would be a general scramble for the vacant 
 place, — men would rush in from all quarters, and 
 you, who had been labouring and patiently waiting 
 your turn through long years, would find yourself, 
 as it were, thrust out of your inheritance by a 
 stranger, and by one, moreover, who beats you, not 
 by superior abiUty, but by virtue of longer stand- 
 ing: he was called, perhaps, a Term or so before 
 you, and, consequently, takes precedence of you. 
 It may be well imagined what discords and strifes 
 would ensue ; how entirely all the existing brother- 
 hood of the Circuit Bar Avould be broken up, and 
 the competition of opposition tradesmen take the 
 place of the honourable and generous rivahy that 
 now merely stimulates the energies of the mind, 
 without provoking personal hatreds. 
 
 But the present regulation completely prevents 
 this mischief, and secures fair play for all. If you 
 have steadily worked your way upwards, so as to be 
 prepared to take the place of a departing senior, 
 you know that you cannot be deprived of the reward 
 of your patience, industry, and abUity, by the irrup- 
 tion of a stranger, against whom you have never 
 
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THE CIRCUIT. , 281 
 
 measured your strength, and who puts you down 
 by reason of his senionty ; if you are disappointed, 
 it can only be by a man of your own standing, on 
 your own Circuit, with whom you have wrestled in 
 a fair and open trial of intellectual strength, with 
 equal chances, and who has won because he was 
 entitled to do so — ^because he has proved himself 
 to be your superior in capacity. It is, indeed, 
 always sufficiently painful to be worsted in any 
 conflict, to see a rival in anything passing you in 
 the race; but with the mortification of defeat there 
 is not mingled the sense of injustice and of wrong, 
 which, in the other case, would add bitterness to 
 regret; nor is your whole life made anxious and 
 uncomfortable by the consciousness of insecurity 
 which would haunt you if, instead of rivals whom 
 you know and see about you, crowds of them might 
 come from afar to snatch out of your hand the 
 honours and rewards for which you have toiled and 
 waited. 
 
 We have dwelt thus minutely upon the reasons 
 for this regulation, because there prevails among 
 many juniors an impression that it is unjust; that 
 it was made and is maintained by the seniors for 
 their own convenience, without regard to the posi- 
 tion of others. " It is," they say, " very hard that 
 we, who have tried this Circuit in vain, and find 
 aU prospect of business hopeless, should not be 
 permitted to betake ourselves to another where 
 better chances of success open to us. Circumstances 
 have changed since we joined this Circuit : our 
 fi:"iends have left the neighbourhood ; we have made 
 
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282 . THE ADVOCATE. 
 
 connections in another Circuit; in that we might 
 prosper ; here we are condemned to a life of hope- 
 less idleness." 
 
 This is vejy true, and it is to some extent an 
 evil ; but here, as in other cases, the evils on both 
 sides must be weighed. Is it not better that a few 
 should be inconvenienced thus, than that all should 
 be subjected to insecurity and deprived of the 
 stimulus to exertion which a reasonable assurance 
 of reward produces. Is it not better thus than that 
 the harmony of the whole Bar should be destroyed, 
 and a Profession, now conducted with the generous 
 rivalry of gentlemen, converted into a personal 
 strife, in which the vulgarest brawlers would obtain 
 the victory, because honourable men could not 
 compete with them in acts which they would have 
 no shame to practise? Besides, to you also the 
 regulation is an advantage; for you hope to rise in 
 your Circuit ; you look forward at least to a time 
 when you shall claim a place among the recipients 
 of its honours and rewards, and you should be 
 unwilling to hazard these, because your prospects 
 might possibly change in the meanwhile, and it 
 might happen that you have cause to regret your 
 choice, and find it advantageous to migrate. 
 
 And there is another benefit not usually urged, 
 but which seems to us to be of material importance 
 in estimating the value of this regulation of the 
 Bar. It is the advantage to the individual that 
 results from a consciousness that his choice is final ; 
 that he cannot change ; that here he must succeed 
 or fail. It prevents that restlessness of mind which 
 
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THE CIRCUIT. 283 
 
 too often seriously affects men who feel themselves 
 unsettled, and look out for something better. If 
 the young Barrister could change about as often as 
 he pleased, he ^^ould be continually watching the 
 state of other Circuits, instead of fixing his whole 
 attention upon his own; he would neglect opportu- 
 nities at home, in his search after them elsewhere. 
 A habit of wandering is readily acquired; there is 
 a natural tendency in the mind to believe that it 
 would be better off in some other position than that 
 in which it is. But in no profession did any man 
 ever yet succeed by going about looking for success. 
 We do not mean by this that he should sit at 
 home, with folded arms, waiting for it to come to 
 him ; that would be to fall into the opposite error ; 
 for, now-a-days at least, however it may have been 
 formerly, there is not such a lack of able men, in 
 any profession, that the world should need to go to 
 seek them, and, as it were, press them into its 
 ser\ice ; besides, the world, which is a very shrewd 
 world, is not unlikely to conclude that a man who 
 does nothing to prove his capacity is Avanting either 
 in the capacity itself or in the industry or courage 
 requisite to make it practically useful. All that we 
 mean is, that you should not give yourself to a habit 
 of discontentedness, and paralyze exertion within 
 the circle in which you have deliberately cast your 
 lot, by looking out of it into other circles, and 
 imagining how much better off you would be if 
 you were there instead of here, and devising the 
 means of change, and so neglecting the opportuni- 
 ties that actually occur to you, because the mind is 
 
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284 THE ADVOCATE. 
 
 wandering to a distance where, as you would dis- 
 cover, if you were to transfer yourself, 'tis '■'■fancy 
 lends enchantment to the view." 
 
 The rule, therefore, that forbids ghange of Circuit 
 after a certain period, and within that period per- 
 mits of it once only, is not merely a rule that 
 conduces to the general convenience of the whole 
 Bar, but it is a positive advantage to its members 
 individually, by preventing the restlessness which 
 would certainly prevail if they were allowed to 
 move from Circuit to Circuit, at any time, and as 
 often as convenience, or opportunity, or whim, 
 might dictate. 
 
 As it is right that you should observe the 
 minutest rules of etiquette upon your Circuit, it 
 will be advisable that, before its commencement, 
 you should call upon its Leader, at his chambers 
 in town, and notify your intention, and ask him 
 what are the general rules to be observed (each 
 Circuit having its own code). You will be sure of 
 a courteous and even kind reception, and the infor- 
 mation you seek wUl be readily given. After this, 
 the Leader wUl probably take upon himself the 
 task of introducing you to your future fellows at 
 the mess-table, and such an introduction has its 
 advantages, for it is a tacit recommendation of you 
 to their good graces. It would be still better if 
 you could be introduced to your Leader by some 
 mutual friend, who will avouch you to him, for 
 in such case he will, upon that assurance, avouch 
 you as a gentleman, and establish a position for 
 you at once. 
 
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THE CIRCUIT. 285 
 
 When you have joined, accede cheerfully to all 
 the Circuit arrangements, — ^the fines, the fees, the 
 subscriptions to the wine fund, to the baggage van, 
 to the travelling regulations ; for, however incon- 
 venient the expense or trouble they occasion to you, 
 they are wholesome regulations, promoting the 
 general welfare and adding materially to the comfort 
 of your Circuit life. Remember that the Profession 
 has been your voluntary choice ; that you knew, or 
 ought to have known, before you determined to 
 join it, what were the charges it would impose upon 
 you. When you were admitted a member of the 
 Inns of Court — and again, more solemnly, when 
 you were called to the Bar, — it was upon the tacit 
 understanding, as binding upon a gentleman as any 
 form of oath, that you subscribed to its rules and 
 would observe them. If you doubt this, try it 
 thus. Would you have been received as a member 
 of your Inn, in the first place ; would the Benchers 
 have consented to call you, if you had avowed that 
 it was your intention not to submit to what may 
 be termed the bye-laws of the Bar ? Certainly not. 
 Then is not the obligation upon you to observe the 
 implied terms of your admission as binding as, or 
 even more so than, if they had been expressed? 
 Your own conscience will answer ; and, if conscience 
 will not, honour wiU. 
 
 Railways have introduced as formidable innova- 
 tions upon the customs of the Bar as in all other 
 social habits and arrangements. Formerly it was 
 an established rule that a Barrister should not 
 travel his Circuit by a public conveyance. This 
 
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286 THE ADVOCATE. 
 
 might have proceeded from the jealousy, which 
 marks all the rules of the Bar, of unfair advantage 
 taken by means of peculiar opportunities for making 
 acquaintance with Attorneys, or from a fear lest 
 thus they should obtain a knowledge of matters in 
 course of litigation which it was desirable they 
 should approach with unprejudiced minds ; or from 
 possible inconveniences that might result among 
 themselves from competition for places in the coach. 
 But this rule, which was very stringently enforced, 
 and to which the only permitted exception was in 
 case of inability to procure a companion to share a 
 conveyance with him (it not being required of a 
 man to pay for a chaise for himself alone), has been 
 practically abolished by the introduction of rail- 
 ways. The Bar does not ignore the existence of 
 boundless accommodation, nor refuse to acknow- 
 ledge the superiority of an express train over a 
 post-chaise. Principle, if ever there was any in 
 the rule itself, has been sacrificed to comfort, 
 economy, and speed. A railway carriage offers 
 precisely the same opportunities on account of 
 which the stage-coach was excommunicated j but, 
 nevertheless, the claims of the railway to carry the 
 learning of the Circuit are admitted, and the rule 
 is practically rescinded; for, after so great a breach 
 in it, to defend the remnant and say that it shall 
 still be good for the prohibition of a mail-coach, 
 would be an absurdity which no Bar could have 
 the face to maintain. 
 
 But although, as we take it, the rule that pro- 
 hibits Circuit travel by a public conveyance is 
 
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THE CIRCUIT. 287 
 
 practically repealed by reason of the railways, yet 
 will it usually be found more convenient and equally 
 economical to journey, where there is no railway, 
 by means of the old method — a party joining in 
 the hire of a carriage ; transmitting baggage by the 
 van which, on most of the Circuits, is maintained by 
 subscription for that purpose. In such journeys, 
 the orderly spirit to which the Bar is indebted for 
 its sociabUity still prevails, and established rules 
 prescribe the arrangements. The junior of the 
 party — (junior in standing^ the only kind of age 
 recognised by the Bar) — undertakes the office of 
 director and paymaster ; he apportions the expenses 
 equally between them, and is required to ask of 
 each one his portion on the following day — a wise 
 regulation, which removes the objection that might 
 otherwise be felt to asking that which, in the cares 
 of business, might otherwise escape the memory, to 
 the unfair burdening with cost of him on whom 
 falls the duty of providing. 
 
 Another rule is, that you shall not enter the 
 Assize town until the Commission day. Formerly, 
 we believe, this was carried so far, that it was not 
 permitted to Counsel to enter it before the Judges. 
 It is not, however, now so stringently observed. 
 The reason for this wholesome regulation is that 
 which will be found to govern the greater part of 
 the social code of the Bar — the avoidance of undue 
 advantages being taken one of another, and the 
 consequent dissensions that would arise, to the 
 destruction of the general peace, harmony, and 
 comfort. If it were permitted to go to the Assize 
 
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288 THE ADVOCATE. 
 
 town before the Commission day, some might be 
 tempted to quit the last place, where they are 
 unemployed, and by means of acquaintanceship and 
 the convenience of being near to be consulted, 
 anticipate the briefs of those who were detained by 
 business elsewhere. By the rule now under notice 
 some security is afforded that all shall " start fair." 
 
 But this rule is subject to some exceptions. You 
 may precede the Judge to the Assize town, if called 
 thither by actual business — as by a Sessions, or an 
 arbitration, or such like; and if it be your home, or 
 your usual abiding-place, you may adjourn there 
 during the interval of a whole assize; and this, per- 
 haps, is a good line to draw : you shall not go to 
 an Assizes, stay there a day or two, and then move 
 on to the Assize town, merely because you have a 
 home or friends there, but you may go thither to 
 spend the period of an intermediate Assize which 
 you have not attended at all. 
 
 Again, at the Assizes you are forbidden to live 
 at an hotel ; you must take lodgings or reside at a 
 private house. Probably the same reason dictated 
 this rule as that which prohibits travelling in a 
 public conveyance. But the principle of cessante 
 ratione, &c., does not apply to this as to the other 
 regulation, for here the reason has not ceased; if 
 ever a sound one, it is equally operative at this 
 time. 
 
 But it is otherwise at Quarter Sessions, and there 
 convenience determines the practice. When that 
 business was more abundant than now it is, 
 lodgings were more convenient than any other 
 
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THE CIRCUIT. 289 
 
 residence; but now that the business is reduced, 
 so that it scarcely repays the cost of the journey, 
 and two days suffice to despatch it, the Bar will 
 probably adopt the practice usual at local Sessions, 
 and take up their quarters at an hotel, having a 
 common sitting-room and one room for consultation 
 with their clients ; an agreeable as well as an eco- 
 nomical arrangement, which we would recommend 
 to universal adoption. 
 
 One of the most difficult and delicate cares of a 
 Barrister is to regulate his conduct towards the 
 Attorneys, and probably there is nothing in his 
 professional life which occasions him so many per- 
 plexities and annoyances as this; and all because 
 there exist no definite regulations upon the matter ; 
 traditions, opinions and practice varying, not only 
 on every Circuit, but between the different autho- 
 rities in the same Circuit, each one setting up a 
 standard of his own, according to his particular 
 notions, and trying the conduct of others by his 
 measure, in default of some definite test. Perhaps 
 it will not be deemed impertinent in this place, or 
 presumptuous, if we, who have had personal expe- 
 rience of the feelings and opinions of both branches 
 of the Profession on this subject, endeavour to catch 
 the ideas that float about the forensic mind upon 
 the matter, and after subjecting them to the 
 review of common sense, attempt to put them into 
 a distinct, intelligible, and rational shape, as adapted 
 to the circumstances of the times in which we live, 
 and as best calculated to promote the respectabihty, 
 and, consequently, the true advantage, of the whole 
 
 u 
 
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290 THE ADVOCATE. 
 
 Profession, each branch of which has a direct in- 
 terest in preserving and raising the status of the 
 other, since thus only can they exalt the Profession 
 as a -whole. We shall enter upon this task with a 
 consciousness of its deHcacy and difficulty, and shall 
 state our views with due deference to others better 
 entitled to treat such a topic ; but it properly be- 
 longs to the larger subject of this treatise; its 
 importance is as great as its difficulty, and if we 
 can in any degree relieve the young Advocate 
 from even a portion of his present perplexities, by 
 giving some definite rules of conduct, instead of the 
 uncertain ones he now hears, and which he sees 
 hourly violated even by the very persons who pro- 
 claim them, we shall have the satisfaction of feeling 
 that the labour has not been worthless. 
 
 It will be necessary, in the first place, to bear in 
 mind the object of these regulations of professional 
 intercourse. They are supposed by some to proceed 
 from a purpose thus to indicate degrees of rank, 
 and to preserve the relative positions of superior 
 and inferior between the two branches of the Pro- 
 fession. But such was not the origia of the regu- 
 lations, nor are they maintained with any such 
 views. They have been framed with the single 
 object which we have abeady noticed as being the 
 primary one sought in all the social polity of the 
 Par — ^the prevention of undue advantage by one 
 member of it over the other, by means of other 
 influences than the legitimate one of superior merit. 
 Therefore, it is not as a slight to the Attorneys, or 
 to indicate inferiority, or to keep them at humble 
 
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THE CIRCUIT. 291 
 
 distance, that the rules of Circuit intercourse be- 
 tween the two branches of the Profession were 
 framed, but solely to prevent irregular methods of 
 procuring briefs, which would often be as incon- 
 venient to the Attorneys themselves as to the 
 character and internal harmony of the Bar; for 
 it is most desirable that the widest and most 
 unbiassed choice of his Advocate should be exer- 
 cised by the Attorney, and it is a duty to his chent 
 that he shall so choose, — a duty which he might be 
 tempted to overlook, if he were to be exposed to 
 unrestrained solicitations, or claims difficult to 
 resist. Hence the necessity for some regulations, 
 and that is their sole object. 
 
 But, as remarked before, these regulations are 
 not uniform on aU the Circuits, nor do the autho- 
 rities anywhere agree as to their limits. It is, 
 therefore, difficult to define them, and we can only 
 hope to do so by thus recalling their principles and 
 purpose. 
 
 The first principle may, perhaps, be thus stated. 
 The regulations are strictly professional, and relate 
 only to professional intercourse^ — and no rule can 
 be valid which pretends to reach beyond this, — or 
 to determine the social intercourse of the Barrister 
 and the Attorney, as individuals. It is only while 
 playing the part of counsel that custom could pre- 
 scribe any rules of conduct towards Attorneys. 
 The moment the professional character is put off, 
 the law ceases to be imperative. 
 
 But when is the professional character put on 
 and put off ? Is it with the professional costume, 
 
 u2 
 
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292 THE ADVOCATE. 
 
 or are we supposed to be always "in character" 
 while on Circuit? By solving this question most of 
 the existing differences of opinion and of practice 
 might be determined. For instance, on some Cir- 
 cuits it is forbidden to shake hands with an 
 Attorney at any time or any where upon Circuit. 
 In others, this prohibition is confined to the court 
 and its precincts. 
 
 Applying the above test, it would appear that the 
 latter is the correct, as certainly it is the reasonable, 
 rule. It is manifestly right that an Attorney with 
 briefs under his arm should not be affectionately 
 greeted, as he passes up behind the counsel-table, 
 by all his wigged acquaintances. But to say that 
 a Barrister meeting his relation or his friend in the 
 street shall not shake hands with him, is an irra- 
 tional law, which has no foundation in necessity, 
 which cannot appeal to propriety, and which is 
 unsuited to the present state of society generally, 
 and of the Profession in particular. It does not 
 exist on the Circuit with which we are most fami- 
 liar, and there is no complaint of inconvenient 
 consequences, and the sooner the more stringent 
 rule is relaxed in the Circuits where it still lingers, 
 the better for the Profession. In order to maintain 
 useful and rational laws in their efficiency, it is 
 necessary to amend whatever is useless, irrational, 
 or unsuited to the circumstances of the times. In 
 such matters the most resolute reformer is the 
 truest conservative. 
 
 But be careful not to fall into the opposite error, 
 and, as do many, in your anxiety tO avoid the 
 
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THE CIECmT. 293 
 
 charge of courting an Attorney, be guilty of inci- 
 vility to him. Simply behave as would one gentle- 
 man to another, without the constraint of fearing 
 what your fellows wiU say, remembering this, that 
 the Attorneys are now very superior as a class to 
 the Attorneys of a former time ; that they occupy 
 a higher place in society, are better educated, dis- 
 charge more important functions than they used to 
 do, and may not, therefore, be treated as (if tradi- 
 tion tells truly) the Advocates of by-gone days 
 treated their Attorneys. And if you so bear your- 
 self towards them, sure we are that they wiU be 
 most ready to recognise the propriety, and desire 
 the observance, of the rules which, for a wise pur- 
 pose, and with a view to the general convenience, 
 forbid more intimacy ia the place where both 
 appear in distinct characters, with distinct duties. 
 
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XXVII. 
 PRACTICE IN CHAMBERS. 
 
 We are now about to enter upon the most in- 
 teresting, but the most difficult, division of our 
 subject — ^the Practice of the Advocate. We are 
 now to venture upon an unexplored sea, without 
 chart or compass. With many of the topics that 
 will come to be treated of, no attempt has yet been 
 made to reduce them to writing; the wisdom that 
 appertains to them is only traditionary, floating 
 about the legal mind in indefinite forms, and often 
 evoking contradictory opinions. Some have been 
 deemed too trite and trivial, others too abstruse 
 and indefinite, to be dealt with in books designed 
 to train the young Lawyer in the duties of his 
 Profession. But the plan of this treatise would be 
 incomplete without at least an endeavour made to 
 embody whatever properly falls within it, however 
 trifling or however formidable. It must be pre- 
 
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PRACTICE IN CHAMBERS. 295 
 
 mised that we approach the subject in no presump- 
 tuous spirit, not underrating its importance or its 
 difficulties, thoroughly conscious that it might have 
 better fallen into abler hands; but, having ven- 
 tured upon it, resolved to spare neither time nor 
 thought in the task, — praying patience if "we are 
 sometimes tedious, and forbearance if we often 
 err, — we proceed, as minutely as the subject will 
 permit, to state what are the various branches of 
 Practice in which Counsel may be engaged, and in 
 what manner these may be best conducted. 
 
 The Practice of a Barrister may be considered 
 imder two obvious divisions; — Practice in Cham- 
 bers, and Practice in Court; each being distinct 
 from the other in the qualifications required for it, 
 in the manner of pursuing it, in the rules by which 
 it is regulated. Capacity for the one by no means 
 implies capacity for the other; a man may be 
 whoUy unfitted to play the part of Advocate in a 
 Court, and admirably qualified to be an Adviser in 
 Chambers. In fact, we find many persons loaded 
 with briefs in the Courts, but rarely or never con- 
 sulted in Chambers; and many, who are briefless 
 at Nisi Prius, overwhelmed with papers in their 
 Chambers. The latter, indeed, is perhaps the most 
 profitable branch of the business, and scarcely less 
 does it conduct to honour; for, of the Judges, as 
 many have been indebted for their dignity to their 
 reputations as Chamber Counsel as have won the 
 ermine by their fame as Advocates. 
 
 Be not, therefore, discouraged merely because 
 you may find yourself, after aU your laborious 
 
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296 THE ADVOCATE. 
 
 endeavours for self-improvement, disqualified to 
 succeed as an Advocate ; another path to success 
 remains for you in which your industry and perse- 
 verance, being less dependent on physical and 
 special qualifications, will reap their reward. Many 
 a client will be glad to consult your judgment and 
 your learning^ who may be unwilling to trust his 
 cause to your tardiness of thought or imperfections 
 of speech. 
 
 But because the offices of Adviser and Advocate 
 are essentially different and require different capa- 
 cities, do not suppose that therefore you may, with 
 safety, or even with propriety, embrace the one and 
 dismiss the other from your studies and thoughts. 
 Without relying upon that for which you are con- 
 scious that you are least qualified, do not abandon 
 it altogether; still strive to the utmost of your 
 ability so to prepare yourself for such accidental 
 duties as may devolve upon you, that you may not 
 appear entirely ignorant of them. Show, at least, 
 that you know what is to be done, even if you are 
 obliged to betray the want of capacity for doing it. 
 You cannot anticipate the chances that may compel 
 you to action in the field that is not properly your 
 own. The absence of leaders may require you to 
 play for a time the part of Advocate ; you are sure^ 
 as a successful Advocate, to be sometimes consulted 
 by your clients upon the cases which you are after- 
 wards to conduct. Hence, such an essay as this 
 would be incomplete without a review of the duties 
 of Counsel in Chambers as well as of their duties 
 in Court. 
 
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PEACTICE IN CHAMBERS. 297 
 
 The Chamber Practice of Counsel is of two kinds 
 — Drawing Pleadings, and advising upon Cases and 
 Evidence. The duties of a Conveyancing Counsel 
 are not included in this chapter, but wiU form the 
 subject of a distinct one hereafter. 
 
 The Preparation of Pleadings is undertaken by 
 two classes of practitioners — Barristers and Special 
 Pleaders. The latter possess by far the larger 
 portion of this business. The former are usually 
 employed only in cases of peculiar importance; but, 
 as we shall presently show, very often to the dis- 
 advantage of the suitor. 
 
 A Special Pleader is an unfledged Barrister. He 
 is required to be a member of an Inn of Court, 
 and to have kept his Terms, and then to take out 
 a certificate, which entitles him to practice helow 
 the Bar. 
 
 But the uninitiated reader will probably ask with 
 surprise, why, if to be a Special Pleader a man must 
 have qualified himself to be a Barrister, he does 
 not go to the Bar, instead of occupying such an 
 anomalous position. 
 
 The real reason for this is that, by thus remaining 
 below the Bar, he reaps the profits of the Bar, 
 without its responsibilities; he can secure a large 
 part of its business, without being subjected to its 
 restraints. Nay, not only does he thus obtain a 
 great deal which would not otherwise, perhaps, 
 come at all, but he deprives the Bar of a vast 
 amount of business which, but for the intervention 
 of the Special Pleader, would go to it. This setting 
 up by the Bar of a rival to compete with it upon 
 
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298 THE ADVOCATE. 
 
 lower terms was as unnecessary and as suicidal an 
 act as ever was committed ; an error which we are 
 unwilling to believe that it is yet too late to repair. 
 The Special Pleader is not bound by the rules of 
 the Bar as to fees, therefore he does the work of a 
 Barrister cheaper than a Barrister may; and, con- 
 sequently, he carries off an extremely valuable part 
 of the Barrister's proper business. This might be 
 remedied by a slight alteration. Either the pro- 
 fession of Special Pleader might be abolished and 
 the members of it made Barristers in name and in 
 responsibility, as they are now in advantage ; or the 
 rules of the Bar might be relaxed and Barristers 
 permitted to accept the same fees as are now in 
 practice established for Special Pleaders. 
 
 However, as it is, a very small portion only of 
 the business of pleading is entrusted to Barristers, 
 because we are not permitted to accept a less fee 
 than one guinea, while Special Pleaders in all com- 
 mon cases accept half a guinea. This has converted 
 Pleading into a business of itself, much, as we think, 
 to the disadvantage of the Law. !£ it had been the 
 universal practice for pleadings to be drawn by 
 Barristers, probably we should not have been able 
 to boast of the refinements of the science of pleading, 
 which, thus abused, has become the art of defeating 
 justice ; but it would have been more in accordance 
 with common sense and common honesty, and far 
 more conducive to the obj ects of a legal tribunal, which 
 ought to be the discovery of the very truth^ and the 
 application to it of the actual law. When Pleading 
 is made a distinct business, it unavoidably degene- 
 
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PRACTICE IN CHAMBERS. 299 
 
 rates into logomachy, and quirk and quibble come 
 to be esteemed, and the advantages that result from 
 them lift them into objects of ambition instead of 
 reprobation. 
 
 But the practice of a Barrister, from its wider 
 scope, directly destroys this tendency of a mind 
 exclusively dedicated to pleading. The Barrister 
 soon learns to look beyond the mere conflict of 
 words ; his thoughts turn to the facts that are the 
 substance of the dispute, and, remembering what 
 he wiU be called upon to prove or disprove at the 
 trial, his impulse is to frame the pleadings so that 
 they shall best biing out the facts it is his purpose 
 to establish. This is also the reason why we think 
 that the preparation of the pleadings should, more 
 often than it is the custom, be committed to Counsel, 
 and especially to those to whom the subsequent 
 conduct of the cause is entrusted. Indeed, now 
 that the Courts are daily declaring themselves 
 more and more averse to mere technicalities, and 
 discourage, by language and by favours denied, 
 attempts to pervert justice and escape a fair trial 
 by means of the verbal tricks of ingenious pleaders, 
 it may be anticipated that the preparation of plead- 
 ings wiU be restored in a great measure to those 
 who are certainly the most proper persons for the 
 task, because they bring to it the knowledge of what 
 will be required by a Court and a Jury, which is at 
 least equaUy necessary with a knowledge of Stephen 
 and Chitty. 
 
 It wiU, therefore, be requisite for you, after your 
 career as a Student is closed, and before your prac- 
 
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300 THE ADVOCATE. 
 
 tice is sufficiently extensive, by continual exercises, 
 to keep up your knowledge of pleading acquired as 
 a pupU. Every man's experience will tell you of 
 the difficulty he had to encounter at the beginning, 
 from the rust which gradually settled upon the 
 knowledge acquired in his student days by reason 
 of its non-user during the early days of his Bar- 
 rister-life. A long time must elapse before you can 
 fairly hope to have papers enough coming in to 
 keep your hand in full exercise, and the art^ if not 
 the science^ of Pleading — the mere technicalities and 
 formalities — very soon escape the memory, if not 
 kept there by continual practice. You should 
 endeavour to compensate for lack of this, either by 
 asking, as a favour to yourself that the Pleader, 
 whose pupU you were, will permit you to assist him 
 "by occasionally undertaking some of his papers, or 
 by the less agreeable and less usefiil process of 
 drawing sham pleas on imaginary cases. 
 
 When instructions to prepare pleadings really 
 come to you, on your own account, you will be 
 sufficiently conscious of your responsibility to give 
 them due attention. You have most to fear from 
 an over anxiety to be very correct. You wUl see 
 so much to be thought of through the magnifying 
 medium of importance with which the earliest cases 
 of the young Barrister are invariably beheld, that 
 you are not unlikely to be confused and to fall into 
 errors from your excessive care not to err. Hence 
 it is desirable, at the beginning, until this sort of 
 excitement has passed away by familiarity with its 
 cause, to submit your finished draught to an expe- 
 
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PRACTICE IN CHAMBERS. 301 
 
 rienced friend before you return it, tliat his coolness 
 may detect any blunder into which your heated 
 anxiety may have betrayed you. 
 
 The rules for preparing Pleadings belong to the 
 province of Legal Studies, and not to this treatise 
 on Professional Practice. We, therefore, shall at 
 once proceed to consider the other branches of 
 Chamber Practice — Opinions upon Cases., and Ad- 
 vising upon Evidence. 
 
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XXVIII. 
 CASES FOE OPINION. 
 
 " A Case" as it is teclmically termed, is a state- 
 ment of facts upon which your opinion is sought as 
 to what is the law applicable to the circumstances 
 there detailed. It must come to you from an 
 Attorney; and, according to the etiquette of the 
 Bar, you cannot receive it directly from a client. 
 Usually the fee is indorsed, and its amount indi- 
 cates in some measure the degree of importance 
 which is attached to the subject. But it must not 
 be supposed from this that you wOl not give your 
 best and most careful advice upon every matter 
 submitted to you, whatever the amount of fee, only 
 that a larger than the usual fee is a hint to you that 
 there is something more than common in the case, 
 which wUl require from you more than, ordinary 
 research and reflection. 
 
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CASES FOR OPINION. 303 
 
 The Case contains, or rather ought to contain (for 
 frequently it is drawn with insufficient attention to 
 that which should be the Attorney's particular duty 
 — ^the noting of every fact, however trifling, and 
 whether it tells for or against him), first^ a nar- 
 rative of the circumstances upon which the ques- 
 tions have arisen, stated in order of time as they 
 occurred, — and if any written documents are neces- 
 sary to be referred to, copies of them are appended, 
 and reference made to them in the body of the case, 
 by numbers ; secondly ^ the questions to which the 
 answers of Coimsel are requested, clearly and 
 succinctly put; and, thirdly, the attention of 
 Counsel is directed to any cases or observations 
 which may have occurred to the Attorney in his 
 researches. 
 
 You will begin by reading the whole of the case, 
 slowly and attentively, that you may master its 
 general scope and purport. Then, taking a sheet 
 of paper, make an analysis of it. K it consist of 
 more than one train of incidents, give to each a 
 distinct heading, and under it set down the mate- 
 rial facts that belong to it, with their dates, and in 
 the order of date. You may name them in the 
 fewest words which suffice to recall the circum- 
 stances to which they allude, and thus you will 
 have secured two important objects; you will have 
 learned thoroughly the facts of the case, and you 
 will have a bird's-eye view of it upon a single 
 page. 
 
 Next, bethink you carefully, and with repeated 
 r-econsideration, what are the questions of law that 
 
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304 
 
 THE ADVOCATE. 
 
 arise upon the state of facts before you, taking tlie 
 questions put to you in the case for your guidance 
 and assistance, but not relying upon them alone. 
 Frame your own queries in your own language and 
 according to your own impressions of what are the 
 doubts actually arising out of the facts. Even if 
 this were not desirable for your own satisfaction and 
 proper understanding of the whole, you will find a 
 sufficient reason for it in a few words which almost 
 invariably close the particular queries proposed to 
 you: "And generally to advise Mr. A. B. upon the 
 case." 
 
 Having thus fi-amed your own queries, your next 
 care will be to investigate the law which they 
 involve. And here let us impress upon you the 
 importance of the rule, to trust nothing to your 
 memory. Your impressions and recollections of the 
 law on any point may be vivid, but you cannot be 
 sure that they are correct, beyond a memory of the 
 general rule; the exceptions, or to speak more 
 accurately the variations, from it, owing to the 
 introduction of some new element, are so numerous 
 and so refined, that, without refreshing your 
 memory from the text-books and the cases, you 
 cannot be confident that the very point under con- 
 sideration is not, either by express decision or by 
 its analogy to a decision, one of those variations. 
 
 Another rule is to consult the latest authorities. 
 So numerous are the statutes and decisions, that the 
 most tenacious memory cannot retain them, and 
 when this rule is not carefully observed, the most 
 serious mistakes are apt to be committed, from 
 
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CASES FOR OPINION. 305 
 
 overlooking some recent case or statute which 
 directly or indirectly affects the question before you. 
 The task of consulting all the indexes to all the 
 reports and statutes would be as formidable as it is 
 indispensable, were it not that of late the labour 
 has been performed for you by means of that 
 ingenious invention, the Digest^ which is to the 
 Lawyer what the steam-engine is to the mechanic 
 — it does his hardest work for him, saving him time, 
 and ensuring to him accuracy. Harrison^s Digest 
 contains the cases decided at common law down to 
 within a few years, and Crabb's Index to the Statutes 
 performs a similar office with them. From the period 
 at which that closes, the Law Digest, edited by Mr. 
 Wise and Mr. Evans, on a plan stiU more complete 
 and comprehensive, containing every case in every 
 report, both at Common Law, and in Equity, in 
 Bankruptcy and Insolvency, in Criminal Law and 
 Ecclesiastical Law, in the Chief Courts of Ireland, 
 in the Privy Council and ia the House of Lords, 
 together with the statutes of each session, has 
 enabled the English lawyer to trace in a moment, 
 with ease and certainty, if there be any and what 
 cases, and where to be found, touching any subject 
 on which he may be inquiring and how it has been 
 affected by statute. As this Law Digest is pub- 
 lished half-yearly, by consulting the latest part you 
 wiU be sure of your law up to its date, and the 
 reports digested in it being stated upon the cover, 
 you have only to examine such parts of them as 
 have since appeared, to be assured that no case or 
 new law has escaped you which it would be neces- 
 
 X 
 
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306 THE ADVOCATE. 
 
 sary for you to know in order to the formation of a 
 correct opinion. 
 
 In the investigation of the law, where the facts 
 are complicated, it is often very difficult to arrive 
 at a satisfactory conclusion, because you have no 
 sooner determined, as you suppose, the law on one 
 part of it, than you find your deductions modified 
 or overthrown by other facts and circumstances 
 which require also to be taken into account, and 
 unless you proceed methodically with your task 
 and advance step by step, you will find yourself 
 involved in a maze of perplexity, from which you 
 will with difficulty escape, and your opinion will 
 probably reflect in its obscurity the confusion of 
 your mind. To avoid this the following process 
 wiU be found effective: — 
 
 Take another sheet of paper, and having the case 
 on one side of you, and your abstract of it on the 
 other, begin with the earliest part of its history and 
 set down upon the paper the legal result of the 
 first stage of the proceedings ; such and such were 
 at that time the relative positions of the parties, 
 and such their rights or liabilities. Advance then 
 to the next stage, and carefuUy trace the effect of 
 those new circumstances in changing or modifying 
 the previous rights or liabiHties. So proceed, stage 
 after stage, however long the task, until you have 
 arrived at the last period, which is the immediate 
 subject of inquiry. You will be astonished to find 
 how, by this simple process, confusion vanishes, the 
 most complex questions are disentangled, and that 
 which was a chaos becomes clear and orderly to 
 
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CASES FOR OPINION. 307 
 
 youl' contemplation. You will now experience no 
 difficulty in forming your opinion upon the specific 
 questions submitted to you, and upon the general 
 merits of the case, and your next and concluding 
 task wUl be to put that opinion into words. 
 
 Unless much pressed for time, do not write your 
 opinion immediately. Sleep upon it. Your thoughts 
 will be with it in your evening walk, at your fire- 
 side lounge, and in the morning you will return to 
 it with renewed vigour and often view it under a 
 new aspect. Writing your opinion after this 
 interval will be practically to give to it a second 
 consideration, — satisfactory, if it confirm your first 
 judgment, most important, if it should disturb it. 
 Probably it may have occurred to others, for more 
 than once it has done so to ourselves, that having 
 begun to write an opinion with certain views, the 
 accurate investigation of the reasons that were 
 requisite to the statement of them made their weak- 
 ness manifest or suggested more powerful ones on 
 the other side, and the Opinion at the end was the 
 very opposite of that with which we had started. 
 
 Hence the propriety of making a draught of the 
 Opinion upon a distinct paper, before it is appended. 
 Write it first, then revise, then copy it, if you 
 please, or let your clerk do so, at the foot of the 
 case. 
 
 An Opinion should be clearly expressed, and 
 explicit ia its result. Too often it is confusedly 
 written, or so guarded in its language that it is 
 difficult for the Attorney to understand its precise 
 purport. Counsel are sometimes over anxious not 
 
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308 THE ADVOCATE. 
 
 to commit themselves by decided views, where they 
 feel considerable doubt. So far they are right ; but, 
 having doubts, they should say so, and decline to 
 express an opinion ; they should not appear to give 
 an opinion, and yet so surround it with qualifica- 
 tions that it is, in fact, no opinion at all. 
 
 There is a saying in the Profession that an Opinion 
 can always be procured on any side of any ques- 
 tion. The Attorney has only to colour his case a 
 little, and the Counsel to be a little biassed on behalf 
 of his client, and there wlU be reasons enough for 
 advising according to the wishes of the party seek- 
 ing advice. Perhaps there is some truth in this, as 
 in all popular behefs ; but it wiU be the duty of an 
 upright Attorney neither to colour nor to suppress, 
 but to place all the facts, whether they be for or 
 against his client, fully and fairly before Counsel, 
 and of Counsel to state his sincere opinion of those 
 facts, without even thinking which side they affect. 
 
 Let it, then, be your endeavour to form a clear, 
 determinate opinion upon a case submitted to you, 
 and, having formed it, state that opinion firmly, 
 distinctly and intelligibly, with your reasons for it; 
 and if you can form no decided opinion, candidly 
 say so. 
 
 There is some art in the manner of writing an 
 Opinion. If you have seen many, you must have 
 noticed how singularly they vary in shape, some 
 being as logical and lucid as others are confused 
 and obscure. Much depends even upon the form 
 of putting it upon paper. 
 
 The most convenient course, both for writer and 
 
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CASES FOR OPINION. 309 
 
 reader, is to distribute it into distinct paragraphs, 
 according to the subjects j and certainly the answer 
 to each question should be given by itself. More 
 readily to catch the eye, the answers should be 
 numbered, like the questions, and the first line 
 should begin without the margin, the other being 
 what in printing is termed indented within it. Each 
 answer should contain your Opinion, succinctly 
 stated, with your reasons for it, and the cases, if 
 any, upon which it is founded. Where you are 
 unable to form a decided Opinion, say so ; if you 
 have doubts, declare them ; if you see any difficul- 
 ties, state them. Having thus candidly declared 
 your views upon each particular question submitted 
 to you, in the last paragraph state your general 
 opinion upon the whole case, and here you should 
 include any points that may have occurred to you 
 to which your attention had not been drawn, but 
 which you consider it to be for your client's interest 
 that he should know. 
 
 If, as often it happens, you are asked whether 
 you advise an action, under the circumstances 
 stated, you should take especial care not to do so 
 on slight grounds ; you should weigh all the 
 chances ; anticipate the case on the other side ; 
 search out the blots in your own; make allowance 
 for the natural tendency of Htigants, in which their 
 Attorneys cannot help sharing to some extent, to 
 exaggerate their own case and depreciate that of 
 their opponents. Remember that upon you it 
 will probably depend whether he shall plunge 
 into a costly, perhaps ruinous, litigation, and 
 
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310 THE ADVOCATE. 
 
 before you advise what he can do safely — think 
 twice. 
 
 By observing these rules you will obtain the 
 reputation, which you will then deserve, of being a 
 safe adviser ; your opinions will become authorities ; 
 they will be sought, because they are at once 
 cautious and intelligible, and although it is a fame 
 which is of all others of the slowest growth at the 
 Bar, it is sure when it comes ; it is a most interesting 
 and improving mental exercise, and its substantial 
 results, as a profitable branch of your Profession, 
 are not to be despised. 
 
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XXIX. 
 
 ADVISING ON EVIDENCE. 
 
 We have purposely separated this from the subject 
 of the last chapter, because, although there is much 
 similarity in form, and many of the same rules are 
 applicable to both, the principle that should guide 
 the mind is different. Your object in giving an 
 opinion upon a case submitted to you should 
 always be to ascertain and state the very truth of 
 the matter, without reference to any interest or 
 desire to please your client, by leading him to 
 suppose that your judgment coincides with his 
 wishes. Your object in advising upon evidence 
 is to show your client how he may best establish 
 his own case. In the one, your duty is that of a 
 Judge, in the other, it is that of an Advocate. 
 Perhaps it is scarcely necessary to remind you 
 that these different duties demand the exercise of 
 different faculties of the mind, and different trains 
 of thought. 
 
 The case upon which you are to advise should 
 
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312 THE ADVOCATE. 
 
 set out all the pleadings in full, and the evidence, 
 so far as the Attorney has been enabled to procure 
 it ; and if there be any gaps in it, of which he is 
 aware, the Attorney should indicate them by a 
 marginal note, and state the reason why the 
 desired testimony cannot be produced. These 
 cases are often very carelessly drawn, a general 
 statement of the facts being transmitted, instead 
 of the evidence itself, as taken from the lips of 
 the witnesses. Counsel can only advise upon the 
 facts as stated^ and if at the trial they are not 
 borne out by the testimony, the cause is lost, and 
 the favourable opinion of the advising Coxmsel is 
 then not unfrequently adduced as an excuse to 
 the disappointed client, who vents his wrath upon 
 the unhappy wig, which, after all, had rightly 
 advised upon the case as it was stated. Therefore, 
 whenever you are asked to advise upon a case that 
 is imperfectly stated, be careful to let it appear in 
 your notes that your opinion is given upon the 
 assumption that the facts asserted will be proved 
 by the witnesses, and that you write with reserva- 
 tion, because you have not the material for a 
 decided opinion. This is due alike to your own 
 reputation and to the interest of your client; nor 
 wUl it offend any Attorney whose support is 
 desirable, but, on the contrary, it will greatly 
 increase his confidence in you. A cautious Counsel 
 is always preferred by a prudent Attorney. 
 
 The case thus fully stated, first, read it over 
 without note or comment, in order to obtain a 
 general outline of it. 
 
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ADVISING ON EVIDENCE. 313 
 
 Take, then, a large sheet of paper, and, spreading 
 it before you, prepare to analyse the whole case. 
 
 Begin with the pleadings, upon which you can- 
 not bestow too much care, for by them the entire 
 of the evidence is governed. The case can be 
 proved only as it is pleaded; you cannot travel 
 out of " the issues joined between the parties," 
 and what is pleaded must be proved, if it be 
 denied. Therefore it is that, in order to advise 
 upon the evidence satisfactorily, you require to be 
 thoroughly acquainted with the pleadings. 
 
 What are the issues raised? What must your 
 client prove to maintain his pleadings? What 
 must the other party prove to support his ? Again, 
 what facts have been admitted upon the pleadings 
 by your client, what by his opponent, and what 
 remains to be proved on both sides? 
 
 An analysis of the pleadings, on the sheet of 
 paper which we have requested you to spread 
 before you, will answer these queries more clearly 
 than it could be done by any merely mental 
 process. In one column, state the counts in the 
 declaration, very briefly, so that they may be in a 
 manner intelligible to you. In a second column, 
 set against each count the defendant's answer to 
 it by his plea. In a third column, state the repli- 
 cation, and so on until the substance of the 
 pleadings is all before you in parallel lines, so that 
 you can see at a glance what is the position of the 
 whole case, what is answered, what is admitted, 
 what is denied, upon what issue is joined, and then 
 what is to be proved. 
 
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314 THE ADVOCATE. 
 
 With this chart distinctly traced in your mind, 
 and with the paper before you to refresh your 
 memory, proceed to the study of the evidence ; but 
 first, upon another sheet of paper, set down in 
 column on one page the matters which, according 
 to the pleadings, are to be proved by the plaintiff, 
 and also, in like column, on another page, the 
 matters to be proved by the defendant. Then, 
 going slowly and thoughtfully through the evi- 
 dence, trace what each witness can prove, and set 
 his name, with a very short indication of the par- 
 ticular facts he speaks to, against the particular 
 pleading in the column to which it applies, and so 
 on until you have gone through the whole of the 
 evidence in the case. But your task is not yet 
 done, you have only made good preparation for it 
 and vastly facilitated its performance. 
 
 You may now begin to write your commentary, 
 and this also you should first do in draught. Take 
 each item of things to he proved as it appears in 
 your abstract of the pleadings, and ascertain if 
 the evidence, as it stands, does suffice to prove it. 
 If such should be your opinion, so state it. If 
 otherwise, point out the imperfection and state 
 what is necessary to be supplied. 
 
 And in writing observe the same methodical 
 arrangement suggested in the previous hints for 
 the giving of an opinion upon a case. It is not 
 necessary to set forth the issues which you con- 
 sider to be sufficiently proved, but, unless the case 
 is otherwise a long one, it may be more satisfactory 
 to your client that you should do so. But let every 
 
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ADVISING ON EVIDENCE. 315 
 
 ^completely proved issue be described in a separate 
 paragraph, and each paragraph should be numbered 
 for convenience of reference, the first line com- 
 mencing without the margin, and the rest indented 
 within it, so as to catch the eye on the instant. 
 
 State in explicit terms what is the defect, and 
 what is required to supply it, and add any hints 
 that may suggest themselves to you as to the kind 
 of testimony that would be desirable, where it 
 might be sought, or how procured, and such other 
 advice as your experience as an Advocate will be 
 sure to help you to, and which may materially 
 assist your client in the getting up of the case. 
 
 And to do this efficiently you must adopt the 
 only plan which will enable a Lawyer, whether 
 acting as Counsellor or as Advocate, to advise or 
 act with safety. You must anticipate the case on 
 the other side. You must put yourself, in idea, in 
 the place of Advocate for your opponent, and try 
 thus how you would meet this, or evade that, and 
 what answer, by argument or by evidence, you 
 would produce against those which you are engaged 
 in arraying on your side. Thus, and thus only, 
 wUl you discover the weaknesses of your own case, 
 which it is as necessary for you to know as those 
 of your adversary's case. If you do not thus 
 change your position, you will be sure to take a 
 partial view, and to overlook a great deal that will 
 come upon your client unprepared to meet it. 
 Many a good cause has been lost for want of this 
 preliminary review of both sides of it. 
 
 Another matter which will require your parti- 
 
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316 THE ADVOCATE. 
 
 cular attention is the nature of the documentary 
 evidence. The importance of this cannot be over- 
 estimated, for more defeats are sustained through 
 imperfections in proof of written documents than 
 by any other kind of informahty. To prevent the 
 possibihty of oversight in this, make a list of the 
 documentary evidence, and set against each one 
 the proofs that will be necessary to its admission, 
 and as you find them stated in the case, score the 
 proof so provided for, and then you will see at a 
 glance what remains to be procured. As this is a 
 subject which falls peculiarly within the province 
 of Counsel, it would be as well for you to state, in 
 your opinion, the proofs which each document will 
 require, including those of which you are^ as well 
 as those of which you are not^ informed, that the 
 Attorney may precisely understand wnat he must 
 supply. See also to the stamp. 
 
 Lastly, you must be very careful in distinguishing 
 the secondary from the primary evidence, so as to 
 ensure the necessary notices to produce being 
 given, in order to let in the former. Make a 
 similar list of the secondary evidence, and add it 
 to your opinion, with a statement of the sort of 
 notice that should be given, and to whom, — ^in order 
 to permit of its production at the trial. 
 
 Write all in perspicuous language, and in short 
 sentences, always using the same word in the same 
 sense, and then, having copied your notes upon, the 
 case, return it as speedily as possible. The maxim, 
 bis dat qui cito dat, appHes to giving an opinion at 
 least as emphatically as to any other gift. 
 
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ADVISING ON EVIDENCE. 317 
 
 Although it will sometimes happen that time will 
 not permit you to write your opinion in draught, 
 you should endeavour in all cases to preserve a copy 
 of it. For this purpose keep a blank book, in which 
 your clerk should be required to make a copy of 
 every opinion before he despatches it, numbering it, 
 and having an index both to the subject-matter and to 
 the name of the case ; so that if you should need there- 
 after to refer to any one, it may be found readily. 
 If for no other use, it is often very interesting, 
 after the same question has been formally decided 
 by the Courts, to turn back to your opinion and see 
 how far your anticipations were borne out by the 
 result, or in what you erred; and if you have any 
 success in your profession, you will often find it 
 impossible to recall, by the memory alone, what was 
 the advice you had given. The only way in which 
 a Lawyer in large practice can get through his 
 Work, without becoming insane, is by the process of 
 forgetting. As soon as a case is fairly out of his 
 hands, it must also pass out of his mind, or the 
 burden would soon grow to be greater than he 
 could bear. 
 
 Another suggestion we may here throw out to 
 you; that you keep a fee-booh, from the date of 
 your first fee, and never fail to insert in it every 
 fee you receive, as well as those not paid. It is 
 curious as well as useful. It is the best record of 
 your professional progress, and the study of it wiU 
 often serve to guide you in some of the most 
 momentous eras of your life. Do not buy any of 
 the printed forms of fee-books which you see in the 
 
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318 
 
 THE ADVOCATE. 
 
 shops, but procure a blank quarto book, and let your 
 clerk rule it and make your entries after the follow- 
 ing fashion, and be careful to enter all the particulars 
 here set forth : — 
 
 
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ADVISING ON EVIDENCE. 319 
 
 Such as are not paid you can so mark with a 
 pencil in the margin that your clerk may not forget 
 to procure them, for although the theory of the Bar 
 is that the fee should be paid with the brief, it is 
 impossible in practice to enforce this rule, and it is 
 not done by anybody. A regular client will not 
 pay every guinea separately, but at the close of a 
 Term, or at the end of an Assize or Sessions, he 
 wiU pay the whole in one sum. 
 
 The uses of such a fee-book as is described above 
 are manifold. It is a matter of curious interest to 
 you to trace thus your rate of progress, year by 
 year, and this will be conveniently shown -by 
 devoting a page at the end of the book to a sum- 
 mary of each year's results, stating in columns the 
 number of cases that have come to you, and the 
 total amount of the fees. This list will also, if you 
 will take the trouble so to analyse it, show you 
 what success has attended your efforts — how many 
 of the cases you have won, how many lost — what 
 classes of business have increased or diminished, — 
 serving thus to guide your future course of study, 
 and to direct your efforts to that which appears 
 to promise the most of success. There is another 
 indirect advantage from such a careful and minute 
 keeping of a fee-book, that it will show you what 
 is your income, remind you day by day what are 
 your real resources, and so prevent your being 
 deceived by false impressions of progress. Begin- 
 ners at the Bar are very apt to be flushed by 
 unexpected successes. Half-a-dozen briefs at an 
 Assize or Sessions beyond the anticipated number 
 
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320 THE ADVOCATE. 
 
 induce a strangely exaggerated imagination of 
 the amount of pecuniary profit thus produced. 
 It is, indeed, extremely difficult, and requires no 
 small self-command, to distinguish between pro- 
 fessional success and professional income. Because 
 juniors justly attach so high an importance to a 
 pile of briefs lying before them, as being indi- 
 cations of future fortune and flattering promises 
 of success, they are wont to attribute to them also 
 a higher pecuniary value than they actually yield, 
 and to increase their expenditure accordingly. 
 But the young Barrister cannot be too often 
 reminded that the income upon which he can count, 
 whatever his success, is extremely small. In an 
 earlier part of this essay we have given the results 
 of five years' experience of a successful man; we 
 may add to the startling facts there disclosed two 
 or three more that belong to the present subject. 
 From the same fee-book, during the same period, we 
 find that the fees did not yield upon an average 
 more than a guinea and a half on each brief, and 
 consequently to produce a net income of 100^. a 
 year beyond your necessary professional expenses, 
 you wiU require to receive, in the course of the year, 
 no less than one hundred and seventy briefs, — a 
 number which would give to a man the appearance 
 of having a great business, and, indeed, would 
 really be such. Beware, then, lest you mistake 
 professional for pecuniary prosperity, and to pre- 
 vent this, study your fee-book often, and calculate 
 products before you presume to spend. 
 
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XXX. 
 READING A BRIEF. 
 
 Before we suggest to you the best methods for 
 reading briefs in the different classes of cases, 
 which may be more conveniently done when we 
 come to treat of the various kinds of practice 
 upon which an Advocate may be employed, we will 
 endeavour to give you a few hints for the reading 
 of briefs generally 1 and so to avoid repetition. 
 
 You will probably be much surprised and 
 amused, when you begin your practice, . at , the 
 extraordinary compositions often plaeed;in your 
 hands under the name of briefsi Some will be 
 drawn with masterly skUl,. marshalling, the. facts 
 and setting out the evidericej collecting the cases 
 and suggesting arguments ; while others will be 
 almost unintelligible, confused in language, and 
 entirely wanting in arrangement. Occasionally 
 you wiU be left with no iijstructions at all, or only 
 the very scantiest s.tafeements of the outlines of the 
 case, your imagination being presumed to be such 
 as to supply whatever has been omitted by the 
 
 Y 
 
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322 THE ADVOCATE. 
 
 composer of the brief. Sometimes, instead of a 
 plain narrative of facts, you are favoured with a 
 facetious commentary, or a sort of peroration for 
 your speech. It is scarcely necessary to tell you 
 that you must at once reject all such impertinences, 
 and look only to the proofs. A brief consists of 
 several parts. 1st. It states the names of the 
 parties, the court in which the case occurs, and 
 the nature of it. 2nd. It sets out the pleadings in 
 full. 3rd. It gives in a narrative form the history 
 of the case, with a general account of what the 
 claim or charge is, and what the defence. 4th. It 
 presents in detail the evidence of each of the wit- 
 nesses. 5th. In conclusion, a commentary should 
 suggest whatever may have presented itself to the 
 Attorney in the course of his investigations, with 
 which it may appear to him that Counsel should 
 be acquainted ; and here should be stated also the 
 law which he supposes to bear upon it, with 
 references to the text-books and reports. 
 
 In this, as in perusing a case for your opinion, 
 you will begin by slowly reading through the brief. 
 Then turn to the pleadings, and analyse them in 
 the margin, until you have eviscerated the precise 
 issues to be proved or disproved. Then, bearing 
 these fully in your mind, read the statement of 
 the case, scoring with your pen, as you read, such 
 parts of it as are material to those issues. Then 
 read the proofs in the same manner. 
 
 It will continually happen that, among the proofs, 
 is a great deal which is not evidence, as hearsay and 
 so forth; it is very important that you should 
 
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READING A BRIEF. 323 
 
 exclude this from your thoughts, and still more so 
 that you may not be misled by your brief to put 
 to the witness questions which are not legal. To 
 avoid such a mischance, you should score the objec- 
 tionable passages with a double line in the margin, 
 and set against it a great " 0," which will catch 
 your eye instantly, and prevent your putting the 
 question, whatever the hurry of the moment. 
 Score with a double line the very material portions 
 of the evidence, and indicate them also by some 
 sign in the margin, as a cross, or any other your 
 fancy may prefer, only taking care to continue to 
 use the same signs as you begin with. In the 
 margin state also any matters contained in the 
 evidence to which you may have occasion to refer 
 in the course of the trial, as names, dates, 
 numbers, &c., so that, when you need them, instead 
 of hunting for them among the crowded pages, 
 you will have but to cast your eye over the margin 
 of each page and they will be found instanta- 
 neously. These minutiae may appear unimportant, 
 but, until you have experienced it, you can 
 form no conception of the difficulty of finding 
 a name, or a date, or a number, amid a mass of 
 writing, especially when you are hurried and the 
 court waits your search ; every contrivance, there- 
 fore, for facilitating discovery and bringing the 
 principal facts, as it were, to the fingers' ends, will 
 be found to deserve your attention, and you will 
 hereafter thank us for a hint, which is the product 
 of practical experience of its utility. 
 
 In simple cases, where the witnesses and facts 
 y2 
 
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324 . THE ADVOCATE."' 
 
 are few, this process will suffice; but where there 
 are chains of evidence linked together, the same 
 witness speaking to different parts of the case, it 
 will be necessary to make a complete analysis of 
 the whole case upon the back of your brief. This 
 requires some natural aptitude for methodical 
 arrangement, and a good deal of practice to per- 
 form it skilfully and rapidly. It is difficult to 
 describe the process without an illustration, and 
 you must therefore excuse us if we fail to make it 
 intelligible to you. First, you must arrange your 
 case into parts, according to the various chains of 
 facts to be proved. Then, beginning with the first 
 part, state under it, as briefly as you can, the evi- 
 dence that belongs to it, especially names and 
 dates, and the names of the witnesses by which 
 those facts are proved. Thus do with each of the 
 divisions. If it be required,: as 'often it is, to sub- 
 divide, still pursue the same plan ; 'and! in order 
 that aU the divisions and- subdivisions' may catch 
 the eye in a moment, even in the midst of sCspeech, 
 let the commencement of each division be placed 
 conspicuously in the margin, and the names of the 
 witnesses who prove the facts in a distinct line, that 
 you may in like manner recal them should you chance 
 to have forgotten them. When addressing the jury, 
 this analysis should always be open before you, for 
 reference by the mere downward glance of the eye, 
 so as to avoid the suspicious appearance of being 
 imperfect, which results from a pause while you are 
 turning overyour brief in confusion tofindsomething 
 which, because you are in such haste, you cannot find. 
 
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READING A BRIEF. 325 
 
 In cross-examination .'o£ Avitiiesses you will often 
 require ta' be reminded-ofisbrfle; points apart from 
 those.. which are immediately .suggested by the 
 ekam&ation-in-chief, and which, when your naind 
 is engrossed by the latter, you will be. very apt to 
 forget. These usually arise- out of instructions 
 contained in your brief among- fhe!" Remarks" 
 which an intelligent Attorney will append to his 
 statement of the case ; and as these are found upon 
 a different page of the brief from that which contains 
 the evidence: of the- witness, it is .often extremely 
 perplexing -to be obliged to. turn from one page to 
 another, iri order to ascertain that 'nothing has been 
 omitted.^ :-• '- , „ 
 
 This inconvenience can be most easily avoided 
 by the simple practice of setting down upon a paper 
 distinct from your brief the hints for cross-exami- 
 nation, and if you are careful to have this paper 
 Ijdng before you during the trial, you can, as the 
 case proceeds, add to it such suggestions as may 
 then occur to you. It wiU suffice merely to place 
 conspicuously in the margin the name of the 
 witness, and then, in the fewest words that wiU 
 remind you of your purpose, the subject-matter 
 upon which he is to be cross-examined. The sim- 
 plicity of this plan must not induce you to deem 
 lightly of it. It effectually removes a great practical 
 inconvenience, which can only be understood by 
 those who have experienced it. 
 
 So much for the Evidence. 
 
 In the like manner you must marshal your points 
 of lau: These should be taken in the order in 
 
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326 THE ADVOCATE. 
 
 which they are likely to arise at the trial, and upon 
 the back of your brief, or (which is very much 
 more convenient, because you may require to turn 
 over your brief for reference to facts, or to keep it 
 unmoved for the purpose of taking notes) upon a 
 separate paper, set down each point in succession, 
 and under it the heads of the argument and the 
 names and references of the cases by which you 
 support it. For this purpose you should study 
 brevity. You wiU usually find a word or two suffi- 
 cient to preserve the train of thought, and the act 
 of setting down the heads of the argument will not 
 only perfect you in it, but it will prevent you from 
 wandering away from it when you come to put it 
 to the Court. The links of the chain being thus 
 before your eyes, it will be hard indeed if you 
 cannot contrive to keep them together. Moreover, 
 if you have a bad memory for names, you will find 
 this summary of the cases to which you intend to 
 refer an invaluable assistant. 
 
 The last care in reading your brief wUl be to 
 sketch a similar outline of your argument to the 
 jury. This will, of course, be unnecessary if you 
 are acting as junior only, for the duty of a speech 
 wiU not then devolve upon you. But, if you are 
 alone, or leader, and the case is one that requires 
 anything more than a few observations, — if, in fact, 
 a speech is expected, — you should prepare for it, 
 not by writing it, for that is dangerous always and 
 often destructive, but by sketching the plan of it, 
 that is to say, the order in which you propose to 
 deal with the various topics. This you shoidd set 
 
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BEADING A BRIEF. ' 327 
 
 down, either upon the outside leaf of your brief, or 
 upon a separate paper, putting it in columns, the 
 principal divisions without, the subdivisions within, 
 the margin, writing it in a round bold hand, so 
 that the eye may read it readily as it lies upon the 
 table. A sketch of your argument being thus spread 
 before you as you speak, without effort, without 
 pause, without the unpleasing effect of reference, 
 you wlU. be enabled to refresh your memory, and to 
 be assured that you have omitted no topic upon 
 which, in your dehberations, you had determined 
 to dwell. 
 
 The labour of these preparations may appear to 
 be great ; but it is not more than is necessary for 
 the proper understanding and satisfactory conduct 
 of your case. You will, perhaps, perform it slowly 
 at first, but you will find it every day a task of less 
 toil, until it becomes almost mechanical, and you 
 Avill arrange your case with a rapidity which wiU 
 astonish yourself. Only thus can you go into court 
 thoroughly prepared for action, and the advantages 
 that will arise to you then, both in personal satis- 
 faction and in reputation, will amply compensate 
 your previous toil. 
 
 These hints, however, are intended as suggestive 
 only. Each mind will, perhaps, better attain its end 
 by its own methods; but let us impress upon you 
 that some such process cannot be safely avoided, 
 and we have described how it can be accomplished, 
 in order that, if you have no better scheme, you 
 may make use of it, or of such parts of it as 
 you may approve upon trial of it. 
 
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XXXI. 
 CONSULTATIONS. 
 
 After you have read your brief, and previously 
 to the trial, you will probably be invited to a con- 
 sultation. 
 
 This is, or rather ought to be, a meeting of the 
 Counsel and the Attorney, for the purpose of 
 deliberating upon the course to be pursued in the 
 conduct of the cause, and at which each should 
 freely communicate to the others his own opinion, 
 and to aU opinions a careful consideration should 
 be given, at least if there be any truth in the pro- 
 verb that "in a multitude of counsellors there is 
 wisdom." 
 
 But consultations are not always in fact what 
 they were intended to be and ought to be ; too often 
 they are but a mere form, hurried over in ludicrous 
 haste, the Leader consulting nobody and pronouncing 
 an opinion ex cathedra ; then the briefs are tied up, 
 and the junior Counsel and the Attorney are politely 
 
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CONSULTATIONS. 329 
 
 and perhaps graciously bowed out, without having 
 exchanged a word. 
 
 Of course nothing is gained by such a consulta- 
 tion, except the fee, and as a Junior you have no 
 help for it but to submit. You are not allowed to 
 volunteer your opinion unless your Leader asks for 
 it. It would be deemed an impertinence if you 
 were to offer it. 
 
 But with some Leaders, and sometimes with all, 
 consultations are not thus summarily dismissed ; 
 and as you cannot anticipate the mood in which you 
 will find your Leader on the particular occasion, 
 you must . always be prepared to play your part 
 worthily, should you be called upon. It may happen 
 that the case is a difficult one, involving a compli- 
 cated state of facts, and some points of law, and 
 then it is extremely probable that your Leader may 
 not have given to it the time necessary for the 
 proper understanding of it, and he will rely upon 
 his Junior to put him in possession of the points. 
 In such a case he wiU probably greet you with his 
 most gracious smUe, and condescendingly say, 
 
 "Well, Mr. R , what is yoMr opinion of it?" 
 
 Whereupon you will be expected, without betraying 
 the slightest suspicion that he is not as famUiar 
 with it as yourself, . to state to him the principal 
 points that will probably arise. These will have 
 his assent as you state them, and, taking a note of 
 them upon his brief, he will proceed, with that 
 astonishing readiness of apprehension which the 
 practice of an Advocate so cultivates, seriously to 
 consider them, and to put to the Attorney divers 
 
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330 THE ADVOCATE. 
 
 questions as to the precise nature of the evidence 
 by which he proposes to establish or rebut the facts, 
 and to you as to the cases which you have found to 
 support the law. With all these you ought to be 
 well prepared; for, if your leader finds that you 
 thoroughly understand your case, he will rely upon 
 you at the trial, and listen to your suggestions, and 
 advise with you upon it in its progress, greatly to 
 your own edification. If, on the contrary, he sees 
 that you have not mastered it, he will treat you as 
 a niere note-taker, and neither invite you to his 
 councils, nor trust you with more of the conduct of 
 the case than etiquette compels. In the former 
 case, he will be glad to have you associated with 
 him again; in the latter, he will be averse to 
 you, and this is soon discovered by the Attorneys, 
 and your fortune is made or marred accordingly. 
 If you have taken the trouble to prepare your 
 brief in the manner recommended in the preceding 
 chapter, you can scarcely fail to show yourself such 
 a master of your whole case as to secure the confi- 
 dence of your leader, and to establish your reputa- 
 tion with him, and with the Attorney, who knows 
 precisely what credit is due to you, although by the 
 general pubhc aU is given to your leader. 
 
 It wiU happen very frequently that, besides these 
 formal consultations, which are, of course, regularly 
 fee'd, the Attorney desires an interview, for his own 
 satisfaction, on some questions of evidence, or on 
 doubts that have arisen in his own mind, but for 
 each one of which he could not charge his chent 
 with a consultation fee. Whatever may be the 
 
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CONSULTATIONS. 331 
 
 strictness of the rule as to making every interview a 
 consultation, and requiring a fee accordingly, in 
 practice this is not and cannot be exacted; and, no 
 less for your own satisfaction than for that of your 
 client, it is desirable that you should encourage 
 rather than show any aversion to a frank commu- 
 nication with the Attorney at any time and as often 
 as he may require to see you, upon any matter 
 connected with the cause. It happens not unfre- 
 quently that the Attorney is deterred from commu- 
 nicating to his Leader in consultation all that he 
 desires to say, and it is a satisfaction to him to 
 go to the Junior and tell him his doubts, and 
 thoughts, and fears, and hint at points which his 
 modesty had withheld from the more distant Leader. 
 It is scarcely necessary to remind you that, what- 
 ever may be your Leader's bearing, you, as a 
 Junior, have no right to bear yourself distantly and 
 haughtily, and assume airs of superiority of know- 
 ledge, which only long experience and success 
 render endurable. Your duty and your interest 
 are to welcome aU such communications, to en- 
 courage the Attorney, probably far more expe- 
 rienced and skilful than yourself, to help you in the 
 getting up of the case. He will look to you for 
 the law, and for an impartial judgment of the value 
 of evidence ; but it is probable that you will be able 
 to learn from him at least as much as he will learn 
 from you. Therefore, do not begrudge time, nor 
 look impatient, nor play the sage, when he comes 
 to you ; but hear him to the end, deliberate with 
 him, and gather from him all that he has learned 
 
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332 THE ADVOCATE. 
 
 in relation to the matter in hand, and afterwards 
 you can use that information at your discretion. 
 
 In like manner bear yourself to him if you are 
 alone in the case. Be not too exigent of consultation 
 fees. Require, of course, the formal consultation 
 ■with its regular fee, but do not deprive your- 
 self of the assistance of the Attorney,- because he 
 .cannot, with justice to his client, give you a guinea 
 every time he asks you a question or makes a com- 
 munication. Let him. feel that you are pleased 
 to possess all the information he can gather 
 for you, and that you are . desirous that nothing 
 shall be wanting on your part by which success 
 may be assured, or defeat avoided. 
 
 Thus will you have accomplished aU that dili- 
 gence and prudence can perform, and you will go 
 into court confident that, if you fail, defeat wiU 
 not be the consequence of any neglect of yours, but 
 of the weakness of your cause. Wht^tever the 
 result, there will be nothing with which to reproach 
 yourself, and if, your reputation, be not advanced, 
 it will not be damaged, by the display which you 
 have made of your capacities. 
 
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■ - ■ XXXII. 
 THE PRACTICE OF THE COURTS. 
 
 We have now arrived at tlie most important, the 
 most interesting, the most laborious and the most 
 difficult, portion of our task-^a description oi the 
 practice of r:an Advocate before the various tribunals 
 -:^and in the'performance' of it-.we;rwill ^endeavour 
 to observe the, same plan of :minufe"detail which we 
 have hitherto "followed, /preferf in'g : rather to be 
 tedious through too inuch particularity, than to 
 omit any thing that might be useful to the reader ; 
 remembering that 'every man's experience ^ has 
 shown him that it is in matters apparently trifling 
 he is usually most deficient, and that, the ' most 
 useful guide is he who will condescend to tell him. 
 
 common things. '. - . . 
 
 So wide and various a subject wiH requii'e to be 
 treated systematically, or there will be "liability to 
 confasion and repetition. The latter, indeed, it wiU 
 be very difficult altogether to avoid, because many 
 
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334 THE ADVOCATE. 
 
 of the topics, differing too much to be blended, are 
 yet in some points so alike that it will be almost 
 impossible to deal with them without repeating 
 what has been said before. But it shall be our 
 constant aim to avoid this inconvenience, wherever 
 it may be practicable without destroying the com- 
 pleteness of the design. 
 
 Perhaps the better course will be to treat of the 
 practice of an Advocate in each of our courts 
 separately, as at Nisi Prius, in the Criminal Courts, 
 in Banco, in Equity, in Appeals to the House of 
 Lords, at the Privy Council, at Quarter Sessions, in 
 the County Courts, before Magistrates, at Arbitra- 
 tions, in Parliamentary Committees and so forth. 
 In dealing with these, we propose to foUow in each 
 the order of the proceedings in an ordinary case, 
 describing minutely what should be done by the 
 Advocates in conducting it from its commencement 
 to its conclusion ; and this wiU introduce the sub- 
 jects of the examinations of witnesses, the addresses 
 to the Court and the jury, the principles that should 
 guide these, the rules, both legal and rational, by 
 which they are governed, dwelling mainly, upon 
 what might be termed the common sense of the 
 theme, as derived from observation or taught by 
 experience. It is no part of our plan to resort to 
 the logic of the schools ; they who have faith in 
 that^ as a means of commanding the judgments of 
 their fellow men, will neither require nor seek the 
 assistance of such humble teachings as these, which 
 do not pretend to more than a plain matter-of-fact 
 account of the manner in which juries and judges 
 
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PRACTICE AT NISI PRIUS. 335 
 
 appear to be most readily convinced or persuaded, 
 by addressing them in the language of every-day 
 life and in the common forms of speech. Hence 
 the Student will be disappointed who hopes to find 
 here anything very learned or profound, or even so 
 much as Aristotle modernised or Whateley made 
 easy; he wiU, indeed, probably be inclined to 
 exclaim at the end, " And is this all — anybody 
 could have told me this." And so anybody might 
 have done; but, because anybody might, nobody 
 has, done so ; and it is only because it has not been 
 done yet, that we hope to benefit some readers by 
 now doing it. 
 
 PRACTICE AT NISI PRIUS. 
 
 The preparations for going into Court are pre- 
 sumed to be completed, your brief carefully read 
 and noted, as described in a former chapter, and 
 your mind saturated, as it were, with the facts of 
 your case. The cause is called on, and the trial 
 begins. 
 
 The Junior opens the Pleadings; that is to say, 
 he states to the jury the proceedings through which 
 the issue or issues have been arrived at which they 
 have to try. This should be done in the shortest 
 and most simple manner. Nothing can be more 
 absurd than to hear, as one often does, a long string 
 of technicalties read to a jury, to whom every 
 second word must be unintelligible, and the eifect 
 of which must be to perplex them at the very 
 beginning of their task, and thus to some extent 
 prevent them from approaching it with such clear 
 
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336 THE ADVOCATE. 
 
 intelligence as if it had been introduced to them in 
 plain English. If the form of opening the plead- 
 ings be requisite at all, it should be so done as to 
 be understood by those to whom it is addressed ; 
 and if it be not requisite, it ought to be abolished. 
 But, in truth, if done judiciously, it would be a 
 useful proceeding, for it would give to the jury a 
 bird's-eye view of the case, and enable them the 
 better to understand the subsequent statements. 
 To make it such, however, you must have the 
 courage to depart from the habitual practice ; you 
 must dare to put your learning into unlearned 
 shape, to hazard the sneers of that large class of 
 lawyers who contemplate law as a phrase rather 
 than as a fact, and whose notions of knowledge are 
 limited to its technicalities. You must learn to 
 disregard such critics. When assured that your 
 course is the right one, follow it fearlessly, and: rely 
 upon the common sense of your profession, which 
 is sure in the long run to prevail, to do justice to 
 your motives and to attribute your departure from 
 accustomed form to prudence rather than to 
 incapacity. As this is one of the forms which 
 would be far more honoured in the breach than in 
 the observance, we will tell you how, in our humble 
 judgment, confirmed by that of some more worthy 
 ones to whom we have upon occasion hinted our 
 views, this process of Opening the Pleadings ought 
 to he performed. 
 
 Make your statement intelligible to the jury by 
 putting it in an intelligible shape, and in language 
 which they can understand. As thus: — 
 
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PRACTICE AT NISI PRIUS. 337 
 
 " Gentlemen of the Jury,— In this case John 
 Doe is the plaintiff and Richard Roe is the defen- 
 dant. The action is brought to recover the sum of 
 211. and interest, being the amount of a bill of 
 exchange drawn by the plaintiff upon, and accepted 
 by, the defendant. In answer to this claim the 
 defendant has pleaded, 1st, that he did not accept 
 thebiU; 2nd, that he has paid it; 3rd, that it was 
 obtained by fraud; 4th, that no consideration was 
 given for it. Upon these pleas issue has been 
 joined, and these are the questions you have to 
 try." 
 
 But it will be said, perhaps, that however prac- 
 ticable this may be with so simple a case as an action 
 on a bill of exchange, it could not be done where 
 the pleadings are more technical, as in an action of 
 trespass, quare clausum fregit, for instance. This, 
 however, will not be found incapable of interpreta- 
 tion into intelligible English, to the happy dissipa- 
 tion of much wondering ignorance among the 
 audience at the mystery and perplexity of their 
 laws. Let us make the attempt. 
 
 " Gentlemen of the Jury, — In this case John 
 Doe is the plaintiff and Richard Roe is the defen- 
 dant. The action is brought to recover damages 
 for a trespass by the defendant upon certain 
 premises of the plaintiff, in Ide, in the county of 
 Devon, The defendant has pleaded, first, that he 
 is not guilty of the said trespass ; second, that he 
 entered the premises in question by the leave and 
 licence of one James Brown, who was the tenant in 
 possession of the said premises. To the second 
 
 z 
 
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338 THE ADVOCATE. 
 
 plea the plaintiff lias replied that the said James 
 Brown was not in lawful possession of the premises, 
 nor entitled to give such leave and license, and 
 these are the questions you have to try." 
 
 A statement somewhat in this form might be 
 made with equal ease, however various, com- 
 plicated, or technical the pleadings, and, indeed, 
 some such sketch of it must have been drawn in 
 the pleader's mind, or set down upon his notes, 
 before he put it into technical form. 
 
 This may sound strangely at first, but it is so 
 rational a plan that it is sure, after a while, to 
 commend itself to the good sense of the Judges 
 and of your fellows at the Bar, and, however they 
 may smile, they will follow your example in the 
 end; you need only some degree of courage to 
 begin the innovation and to persevere with it until 
 it ceases to be a novelty. 
 
 The pleadings opened by the Junior, the Leader 
 proceeds to open the case to the Jury, and should 
 you chance to fill this honourable post, you may 
 glean some hints for your task from the following 
 remarks : — 
 
 As a general rule, the statement of the case for 
 the plaintiff should be calm, temperate, and dig- 
 nified, orderly in arrangement, lucid in language, 
 and as brief as the facts to be told will permit. 
 Remember that a plaintiff is supposed to come 
 into court to demand redress for a wrong that has 
 been done to him: he is there of his own will, 
 invoking the aid of public justice to procure com- 
 pensation for his private injury. You cannot 
 
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PRACTICE AT NISI PEIUS. 339 
 
 more effectually awaken in the Court and the 
 Jury a sympathy for your Avronged client and 
 indignation against the wrong-doer, than by a 
 simple description of the injury, and a careful 
 abstinence from angry comments, personal abuse 
 and other indications that revenge rather than 
 redress is the object of the plaintiff. It con- 
 tinually happens that a prejudice against a case 
 is excited at its very opening in the minds of the 
 Judge and Jury simply by the display of an excess 
 of zeal on the part of the Counsel and injudicious 
 indulgence in personal reflections, before a foun- 
 dation has been laid for them by proof of facts 
 which justify reproaches. An orderly and lucid 
 statement of the case, keeping as closely as may 
 be to the order of time in the relation of events, 
 is almost always desirable; because a plaintiff, who 
 is the mover in the action, and comes voluntarily 
 into court, may be supposed in most cases to have 
 the right on his side, and always to have some 
 probable foundation for his claim; so that it is 
 very rarely his policy to throw a fog about his 
 case. 
 
 You will begin, of course, with an account of 
 the parties, who and what they are, and the cir- 
 cumstances that led to the present dispute; then 
 you wiU state with precision the nature of the 
 dispute itself, and whether it is upon a question 
 of law, or of fact, or both, with the very points 
 at issue, the one for the information of the Court, 
 and the other for the information of the Jury, that 
 attention may be directed more readily and surely 
 
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340 THE ADVOCATE. 
 
 to your evidence as it bears upon those points. 
 Of so much importance is this, that you should 
 take some pains by previous preparation to put 
 them into the most distinct shape, and you should 
 repeat each one totidem verbis whenever you intro- 
 duce your statement, and when you close the 
 evidence that bears upon it. Then, taking each 
 of these questions in turn, state, in the form of a 
 narrative, the proofs you propose to produce in 
 order to its establishment, and in so doing be very 
 careful to show no misgivings about it, by antici- 
 pating objections, apologising for defects, or making 
 an effort to give weight to certain witnesses, for you 
 must assume that they are unimpeachable until they 
 are shaken by your opponents, and their testimony 
 to be conclusive until it is shown to be otherwise. 
 If you display the slightest doubt about your own 
 case and your own witnesses, they wiU be at once 
 suspected to be far worse than they are; they will 
 be heard with a prejudice against them, and small 
 errors which, unsuspected, would not have been 
 noticed, are instantly enhsted to confirm the fore- 
 gone conclusion of the audience. Hence, too much 
 emotion, too much anxiety, too much elaboration, 
 and too much effort, in an opening speech, are 
 calculated to damage the cause, by exciting a 
 suspicion that it is not so good a one as it should 
 be, and then it becomes a difficult task for you to 
 combat a prejudice as well as to convince. You 
 should reserve your energies and your eloquence 
 for the reply. 
 
 Strange as it may appear, there is nothing more 
 
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PKACTICE AT NISI PRIUS. 341 
 
 difficult in the art of Advocacy than effectively 
 to open a- case to a Jury. The proof of this is 
 the rarity of the exhibition. How few of our 
 Advocates accomplish it to the entire satisfaction 
 of a critical listener ! How few possess the faculty 
 of marshalling facts in their natural order, and 
 taking up and so interweaving distinct threads of 
 a story as to form a clear, continuous, intelligible 
 narrative. Even if he can thus arrange his facts, 
 there is seldom found in the, same person the 
 faculty of describing them graphically, so as to 
 paint them upon the minds of those to whom they 
 are addressed. Yet, unless thus presented, glowing 
 with colour, substantial in form, and instinct with 
 life, no clear image, whether of places, persons or 
 events, is summoned to the mind's eye of a listener; 
 at the best, he obtains but a confused, shadowy, 
 uncertain conception of the scene you desire to 
 convey to him. 
 
 The best means of learning how to affect others 
 is carefully to interrogate your own experience and 
 see how you are yourself affected. In the broad 
 features of humanity, we are all very much alike, 
 and if we would more frequently examine ourselves 
 and ascertain what are our own impulses, and how 
 we are acted upon, we should not fall into so many 
 errors as we are wont to commit when dealing with 
 other people. This close family resemblance of 
 mankind, however differing in external circum- 
 stances, in race, or colour, or creed, or country, or 
 class, is a fact which" it peculiarly behoves the 
 Advocate to recognise, for it will, more than aught 
 
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342 THE ADVOCATE. 
 
 beside, enable him to plumb the depths of the 
 hearts, and measure the heights of the intellects, of 
 those with whom he will have to deal in the course 
 of his practice, whether as judges, as jurymen, or 
 as witnesses. 
 
 Continually shall we have occasion to remind 
 you of this in the progress of the hints we are 
 about to submit to you. 
 
 It must not be forgotten when you open your 
 case to the Jury. Remember what is your 
 purpose. It is your object to convey to them 
 and to the Court a history of your case, so that 
 they may thoroughly understand what is the 
 subject-matter of the contention, upon what grounds 
 of claim or complaint you come into court, and the 
 evidence by which you purpose to establish them. 
 Now, to make any narrative clearly intelligible, the 
 first care is to observe as closely as possible the 
 order of time in the detail of the events. You will 
 commence, of course, with a description of the 
 parties, who and what they are, with the addition of 
 any circumstances in the position of either of them 
 which may aflFect the case by explaining subsequent 
 transactions, or aggravating the damages. If locality 
 is in any way concerned, describe then the locus in 
 quo^ and if it be possible to procure it, in all cases 
 use a map for this purpose. The rudest drawing of 
 a place is more intelhgible than any verbal descrip- 
 tion, and it has the still more important use of at 
 once arousing, and fixing upon the story, the atten- 
 tion of the Jury. Their curiosity is awakened even 
 by this slight taxing of their own ingenuity and b^- 
 
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PRACTICE AT NISI PRIUS. 343 
 
 the effort which they make to realise in their minds 
 the aspect of the spot thus suggested. Your words 
 then become pictures to them, and by the time you 
 have completed your sketch, each of them has in his 
 mind's eye not those lines and dots only, but build- 
 ings, and walls, and fields, and doors, and gates, 
 distinct as if he had seen them, and each is eagerly 
 curious to learn with whom they are to be peopled, 
 and what adventures have occurred there upon 
 which he is to pass a judgment. 
 
 But if you fail to paint this picture on their 
 minds, if their ideas of the place be imperfect 
 or confused, the perplexity wiU extend to the 
 subsequent narrative; not clearly understanding 
 your allusions, they will listen for a time, but 
 with little profit, and then they will probably 
 abandon the vain attempt to follow you, and 
 averted looks and uneasy gestures will inform 
 you too plainly that your labour has been lost, 
 and that you will leave them in a rather less 
 favourable condition for your client than you found 
 them. 
 
 Having described the persons and the place, take 
 up your narrative at such period preceding the 
 immediate matter of controversy as may be neces- 
 sary to explain the causes of it — ^to use a legal 
 phrase, begin with the inducement. Show how it was 
 that the conflict arose. Then, describe minutely, 
 with careful reference to the plan, if there be one, 
 the subject-matter of the dispute and the precise 
 questions which the jury will have to determine in 
 relation to it. This done, you will proceed to state 
 
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344 THE ADVOCATE. 
 
 your case, the facts and arguments upon which you 
 rest your claim to the verdict. 
 
 Advocates do not always make this statement in 
 this part of their opening. Often they reserve 
 it for the close, preferring first to state their 
 evidence. But consulting, as before suggested, 
 one's own mind for the manner in which con- 
 viction is most readily produced, it appears 
 that, to make the account of the evidence easily 
 intelligible, it is necessary to have such a pre- 
 vious view of the facts as might enable us to 
 discern the bearings of the promised testimony. 
 We would, therefore, earnestly recommend to you 
 to adopt, as an invariable rule of your practice, the 
 plan of preceding your statement of the evidence 
 with a succinct narrative of the facts and the argu- 
 ments you found upon them, briefly set forth, 
 and then to proceed to describe the testimony by 
 which, as you are instructed, you will establish 
 those facts. 
 
 Let us pause at this point, and consider how 
 your audience is affected ; for only by knowing 
 what you have done can you understand what 
 remains for you to do; and remember always that 
 the purpose of your opening speech is not to 
 display yourself, nor to amuse spectators, nor to 
 exhibit your learning or your wit, hut to inform 
 your Jury. You have made them acquainted 
 with the history of the case; they now see in 
 their minds (and if they do not see them, your 
 labour is lost, and probably your cause too) the 
 place at which the scene is laid, the parties con- 
 
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PEACTICE AT NISI PKIUS. 345 
 
 cerned as principals, each individualised, and they 
 have traced the origin and progress of the 
 difference, and distinctly they perceive what 
 doings or sayings, and by whom, how, and 
 when done or said, have been the immediate 
 occasion of the present suit. Moreover, they 
 perceive the collateral circumstances and persons 
 that have mingled with the principal ones in the 
 course of the transaction, and the surrounding 
 facts which serve to elucidate or illustrate the main 
 one, and the incidents that have been traced, by 
 means of which the fact is to be proved circum- 
 stantially, if incapable of being proved directly. 
 The Jury are informed, also, how it is that you 
 propose to use these incidental circumstances for 
 the establishment of your case, and the reasons 
 through which they are asked to conclude that 
 the facts were as you assert them to be. 
 
 Perhaps the test whether you have done aU 
 that you should do previously to describing your 
 testimony may be thus put — " Have you made 
 out such a case by your facts and arguments that, 
 if you prove those facts, and they be unanswered, 
 the Jury would be convinced that your claim or 
 complaint was justly founded, and give you their 
 verdict?" 
 
 This accomplished, and not before, you should 
 proceed to state the particular evidence by which 
 you propose to establish the facts you have detailed ; 
 and in arranging your statement you will often 
 have this difficulty to encounter; the same wit- 
 ness win. sometimes speak to different parts of the 
 
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346 THE ADVOCATE. 
 
 transaction, and the question, no doubt, often occurs 
 to the practitioner, whether it is the better course 
 to deal with the whole testimony of the witness at 
 once and dismiss him, or to confine the statement to 
 so much of it as comes in order of time, and 
 introduce him again when he is wanted. But this 
 often-recurring source of perplexity will be entirely 
 removed by observance of the arrangement above 
 proposed. Having stated, in a narrative form, the 
 whole story intended to be proved, with the argu- 
 ments founded upon the facts, apart from any par- 
 ticular proposed proofs, and the Jury being thus 
 already in possession of the facts and their mutual 
 bearings, aU that now remains for you to do is to 
 introduce to them the persons and documents by 
 which you hope to establish the case you have 
 already painted upon their minds. You are 
 going to deal now rather with the witnesses 
 themselves than with their evidence, and the natural 
 and least perplexing course to your audience is to 
 introduce each one in succession, describe him and 
 his whole evidence, and dismiss him; for it is 
 very diificult for the mind, following the rapidity 
 of your speech, to go backward and remember 
 that the personage you are recalling has been 
 already introduced; confusion is apt to be the 
 result, and it is wonderful how small a degree of 
 perplexity cast over a juror's mind, at the close of 
 a case, will envelope as with a fog his previously 
 clear impressions. 
 
 By all means, then, take each witness in turn, 
 and dispose. of him at once. But in what order 
 
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PRACTICE AT NISI PEIUS. 347 
 
 shall the witnesses be taken? In that of time, or 
 in that of importance? Practice varies in this 
 respect. Some Advocates prefer the one, some the 
 other, and some hke to disregard both, and keep 
 their most important witness to the last, so that 
 they may end with a flourish, and leave the minds 
 of the Jury at the moment when it is expected that 
 the strongest impression is made upon them. But 
 this appears to us to be a mistake. It is to con- 
 found an opening speech with that in defence or in 
 reply. In the latter, it is often desirable to end 
 with the most powerful of one's arguments, because 
 the object is to convince or persuade. But the 
 purpose of an opening speech is simply to inform. 
 Nothing is gained, but, on the contrary, a great 
 deal is lost, by stating to the Jury anything you 
 cannot prove. They are not convinced by your 
 speech, but by the evidence by which you substan- 
 tiate your statement. You cannot hope to achieve 
 more with the most impressible juryman than to 
 bring him to this : " Well, if you prove what you say, 
 you will have my verdict." In accordance with this 
 state of feeling on the part of the jury, your course 
 will be only to describe your testimony in the course 
 in which it will least disturb the order of the story, 
 as it already exists in their minds. You will take 
 them, therefore, in order of time, and shortly 
 repeating that portion of the narrative which is 
 spoken to by the witness you are about to intro- 
 duce, you should state who and what he is, and the 
 circumstances, if any, that give peculiar value to 
 his testimony, or that enable him to depose to the 
 
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348 THE ADVOCATE. 
 
 particular facts, and then very shortly repeat the 
 facts he will prove. If he speaks also to a subse- 
 quent part of the transaction, when you have said 
 all you have to say of the former part, and not 
 before, refer to that latter part with the like intro- 
 duction and the like brevity. 
 
 Thus deal with all your witnesses in turn. But 
 if any of them be adverse or doubtful^ all your 
 discretion and ingenuity will be required in treating 
 of them. It is your business to leave upon the 
 minds of the jury the most favourable impression 
 of the persons upon whom your case depends; and 
 yet you must as carefully avoid such a representa- 
 tion of them as might in the witness-box disappoint 
 your anticipations, for there is always a tendency 
 in a jury to suppose that, if you have been deceived 
 as to one part of your case, or one of your wit- 
 nesses, you may have been deceived as to the rest; 
 and not only is the influence of the statements and 
 arguments in your opening destroyed, but a pre- 
 judice is created against you, which you wiU find 
 it very difl&cult afterwards to remove. It is often, 
 perhaps always, the best policy to be candid in 
 your admissions: to open your doubtful witnesses 
 as being such ; to state to the jury the objections 
 which you are aware will be made to their testi- 
 mony, and take the opportunity to show also why, 
 upon the whole, it is to be rather received than 
 rejected, or what parts of it may be relied upon, 
 although other parts may be questioned. It is not 
 unfrequently a prudent course boldly to throw 
 overboard some testimony which you can afford to 
 
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PRACTICE AT NISI PRIUS. 349 
 
 sacrifice, in order to save the credit of the rest : as 
 when, for instance, a doubtful witness is to be called 
 merely to corroborate, whose presence does not 
 really strengthen your case, but whose absence 
 would be a subject for injurious comment; you 
 thus get rid of a difficulty in your proofs, create a 
 favourable impression of your case, and by antici- 
 pating the objections of your opponent, snatch his 
 most effective weapon from his hands. There are 
 few circumstances in which an Advocate's tact is 
 more exhibited than in this exercise of a cautious 
 and yet far-seeing discretion as to the manner of 
 introducing his adverse and doubtful witnesses 
 into his opening speech, so as to anticipate any 
 damage they might possibly inflict upon him, 
 having thus to steer between dangerous confessions 
 of weakness and exposure of his blots on the one 
 hand, and the still more dangerous concealment of 
 them upon the other, leading often to fatal surprises. 
 
 With an adverse witness your course is clear. 
 You will point out in the strongest colours 
 the interests that operate upon him, as likely to 
 warp his testimony, not only for the purpose of 
 warning the Jury against placing confidence in any 
 evidence injurious to you which he may give, but 
 also to make doubly influential whatever he may 
 say in your favour. 
 
 In concluding your opening, it is rarely prudent 
 to do more than briefly to repeat the outline of 
 your case, and especially so much of it as goes to 
 aggravate damages, winding up by a calm assertion 
 of your confidence that, if you establish the case 
 
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350 THE ADVOCATE. 
 
 you have stated, you will be entitled to their 
 verdict. Anything in the shape of a formal 
 peroration, and especially any display of eloquence 
 at the close of an opening, is out of place and in 
 bad taste, and only permissible in a few exceptional 
 cases, of which it must be left to your discretion at 
 the moment to determine. 
 
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XXXIII. 
 THE EXAMINATION-IN-CHIEF. 
 
 The plaintiffs case being thus stated by the 
 Leader, the examination of the plaintiiF's witnesses 
 proceeds. The general rule is for the Counsel on 
 that side to conduct the examination of the wit- 
 nesses in turn, the Junior taking the first witness, 
 probably because it was supposed that the Leader 
 would require rest after his speech. But this order 
 is sometimes departed from, under special circum- 
 stances, — as where the witness is peculiarly impor- 
 tant, or his examination demands peculiar skiU, — 
 in which cases the Leader will propose to take him, 
 a suggestion to which you should always readily and 
 cheerfully assent ; and, indeed, when such a witness 
 chances to fall to your lot, it would be becoming in 
 you to propose to your Leader that he should call 
 him, and thus to anticipate the delicacy that often 
 prevents a Leader jfrom doing that which may look 
 like a want of confidence in you. 
 
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352 THE ADVOCATE. 
 
 An impression very generally prevails in both 
 branches of the Profession that the Examination-in- 
 chief, equally with the opening of the case, is an 
 easy task, which anybody may perform, and 
 demanding neither abUity nor experience. But 
 this is a grave mistake, and the difficulty of the 
 one, as of the other, will be discovered at the first 
 experiment. You probably suppose that you have 
 nothing to do but to take your brief in your hand 
 and carry your witness through his evidence, as it 
 is there set down, turning aside neither to the right 
 hand nor to the left, and, when you have come to 
 the end of the statement on the paper, to resume 
 your seat and leave him to be dealt with by your 
 adversary in cross-examinatio^. But your task is 
 far from being so easy, for, in the first place, you 
 cannot always rely upon the evidence as stated in 
 the brief The Attorney does not always know 
 what is and what is not admissible evidence, and, if 
 he has a doubt, he prudently states rather than 
 omits, deeming that it may be useful to you for 
 information, although you cannot bring it directly 
 before the Court. The witnesses themselves cannot 
 always be relied upon in their statements made to 
 the Attorney, and upon which the brief is framed. 
 Nothing is more common than to find assertions, 
 most confidently made in the office, retracted in the 
 witness-box, under the sanction of an oath and the 
 fear of cross-examination. Witnesses have so 
 many motives for stretching their stories to the 
 Attorney — the love of being important — the desire 
 to be taken to the assizes and paid for pleasure trips 
 
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EXAMINATION-IN-CHIEF. 353 
 
 — ^that it is often impossible by any vigilance to keep 
 them to the strict literal truth in their statements 
 given in the office, and unless you are prepared for 
 this kind of disappointment in your examination-in- 
 chief, you will be sorely disconcerted and put to 
 confusion. And here let us warn you against the 
 danger, which inexperience frequently incurs, of 
 being not only disconcerted by the witness failing 
 to support the statements of the brief, but by 
 exhibiting in countenance or manner the disap- 
 pointment it feels. Let nothing, not even a tone 
 of your voice, betray surprise, or it will assuredly 
 reveal your weakness to your lynx-eyed opponent, 
 who will make good use of the fact to discredit 
 your witness and your cause, by the argument, 
 always powerful, that the witness has told two 
 diiferent stories. And hence the necessity for 
 another rule of examination, to make as little use 
 as possible of your brief. You should commit to 
 memory the leading facts to be proved by the 
 witness, or note them in the margin in such a 
 manner that, as the brief lies upon the table, your eye 
 may catch in an instant anything you may have 
 forgotten as you go along; but do not hold the 
 brief before you, like a book from which you are 
 reading, or you will inevitably examine the witness 
 as if you were hearing him repeat a catechism he 
 has learned, instead of gathering from him informa- 
 tion which he possesses but you do not. If you 
 read your questions from your brief, you will find 
 it very difficult, whatever the necessity, to depart 
 from the terms or the order there set down. But 
 
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354 THE ADVOCATE. 
 
 if you examine from your memory, or such an 
 outline of the facts as we have suggested, your brief 
 lying upon the table, your whole attention will be 
 given to the witness, your eye to his deportment, 
 your mind to his words, and knowing what you 
 want to have from him, you will be enabled to 
 frame your questions in accordance with what has 
 preceded, and so as to procure the facts you are 
 seeking. It happens frequently that new facts come 
 out in examination, which materially alter the com- 
 plexion of the case and require a complete remodel- 
 ling of the entire train of questions, with a view to 
 eUcit explanation and to make the whole consistent 
 with your case. Such a position will demand the 
 exercise of all your ingenuity and caution, and it 
 is in such a position that the skill of the accom- 
 plished Advocate is discovered, far more than in 
 those oratorical displays which win for him the 
 applause of the public. The Attorney and the 
 Counsel in a cause alone know the real and greatest 
 merits of an Advocate. 
 
 You are, of course, acquainted with the first 
 great rule of practice in the examination-in-chief, 
 that you shall not put leading questions to your 
 own witness — a leading question being such an 
 one as suggests the answer. This rule is short, 
 simple, and seemingly easy of application ; but you 
 will find it to be excessively difficult to be observed 
 in practice, and, indeed, if it were strictly enforced, 
 a trial would be prolonged indefinitely. At the 
 beginning of your practice, having this rule con- 
 stantly ringing in your ears, from the interruptions 
 
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EXAMINATION-IN-CHIEF. 355 
 
 of unpractised juniors trying to appear very clever 
 and very quick, you will be apt to err rather by 
 its too strict observance than by violating it. 
 Nevertheless, as it is often enforced without neces- 
 sity, merely for the sake of interruption, you must 
 be prepared to cope with its difficulties, and we 
 will endeavour to point out to you the most pro- 
 minent of them. 
 
 But first observe, that the rule against leading 
 questions is properly applicable only to such questions 
 as relate to the matter at issue. Whatever some 
 priggish opponent may protest, it is permitted to 
 you, and the Judges will encourage you in the 
 practice, to lead the witness directly up to the 
 point at issue. It saves time and clears the case, 
 and if you narrowly observe experienced Advocates, 
 you will find that they always adopt this course. 
 For instance, instead of putting the introductory 
 questions — "Where do you live?" "What are you?" 
 and so forth, you should, unless there be some 
 special reason to the contrary, directly put the 
 leading question, " Are you a banker carrying on 
 business in Lombard-street?" and so on, until you 
 approach the questionable matter, when, of course, 
 you wUl proceed to conduct the examination 
 according to the strict rule. 
 
 But that rule is not so easily to be observed as 
 you may suppose. Frequently it will occur, that 
 you will have need to call the attention of the 
 witness to something he may have forgotten. As 
 thus: — Suppose that you were examining as to a 
 certain conversation. The witness has narrated 
 
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356 THE ADVOCATE. 
 
 the greater portion of it, but he has omitted a 
 passage which is of importance to you. We know- 
 that, in fact, with all of us, in our calmest moments, 
 it is difficult to repeat perfectly the whole of what 
 was said at a certain interview, and if it had been 
 a long one, probably we might repeat it half-a-dozen 
 times, and each time omit a different portion of it, 
 although in either case the omitted part would be 
 instantly recalled to our memories if we were asked, 
 ''Did he not also say so and so?" or, " Was not 
 something said about so and so ?" But this sort of 
 reminiscent question you are not permitted to put 
 to a witness, because it would be a leading question, 
 although he is far more likely, in his agitation, to 
 forget that he had not repeated the whole than we 
 should be in our calmest moments. In vain you 
 ask him, " Did anything more pass between you ?" 
 " Was nothing more said?" " Have you stated aU 
 that occurred?" He does not in fact remember 
 precisely what he had stated of it, or the portion 
 you desire to obtain has escaped his memory for 
 the moment. It would flash upon him instantly, 
 if it were to be repeated, or even to be half uttered ? 
 But you may not help him so, and then there arises 
 a perplexity, which every Advocate must often have 
 experienced, — in what manner can this be recalled, 
 without leading? Here is another occasion for the 
 exercise of that ready tact in the conduct of an 
 examination -in -chief which marks the skilful 
 Advocate. Your endeavour must now be to 
 suggest indirectly the forgotten statement : and to 
 do so without violating the rule which in this 
 
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EXAMINATION-IN-CHIBF. 357 
 
 respect is certainly pushed further than justice and 
 fairness to the infirmity of human memory can 
 sanction. As each case must depend upon its 
 circumstances, it is impossible to lay down any 
 rule to help you, or even to hint at forms of sug- 
 gestion. But one method we may name, as having 
 proved eficacious when others had failed, and that 
 is, to make the witness repeat his account of the 
 interview, or whatever it may be; then it will not 
 unfrequently happen, as we have already observed, 
 that he will remember and repeat the passage you 
 require and omit something else which he had 
 previously stated. But this, of course, matters 
 not; your object has been gained and your adver- 
 sary may take what advantage he can of the 
 difference in the statements. If the story is a long 
 one, you will avoid inflicting this repetition of it, 
 until other expedients have been tried in vain. It 
 may be added, that a single word often suffices to 
 suggest the whole sentence; if you have a quick 
 wit, you may sometimes bring out the matter you 
 want, by so framing a question that it shall contain 
 a part of the forgotten sentence, ipsissimis verbis^ 
 but otherwise applied. 
 
 Great caution is required in the examination of 
 all your witnesses, after the first, to prevent their 
 disagreement in any important particulars. No 
 error of inexperience or unskilfulness is more 
 common, than to examine a witness according to 
 the briefs without reference to the evidence pre- 
 viously given and the requirements of the case, as 
 it stands. If you fear that there may be conflicting 
 
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358 THE ADVOCATE. 
 
 testimony on any point, the first witness having 
 varied from the statement in the brief, it is usually 
 better to leave it as it stands upon that single testi- 
 mony than to bring out a contradiction ; but upon 
 this you must exercise your sagacity at the moment ; 
 it must depend upon the particular facts of the 
 case ; we only suggest to you, that it is one of the 
 difficulties of examination-in-chief which you should 
 be prepared to encounter. Anticipating it, you 
 will not be taken by surprise when it occurs to you 
 in your practice. 
 
 There are two kinds of troublesome witnesses 
 whom you will have to encounter in the conduct of 
 a cause — those who say too much, and those who 
 say too little: your too eager friends, and your 
 secret enemies. Of these, by far the most difficult 
 to deal Avith are your over-zealous friends — your 
 witnesses who prove too much. A very little expe- 
 rience will enable you to detect these personages 
 almost at a glance, certainly after a few sentences. 
 They usually try to look wonderfully easy and con- 
 fident ; answer ofi"-hand, with extraordinary glibness, 
 and give you twice as much information as you have 
 asked for. Now, another rule of evidence is, that 
 you shall not discredit your own witness^ so that 
 your only chance of dealing with these troublesome 
 friends is to check them at the very outset, by 
 kindly, but gravely and peremptorily, requiring 
 them to do no more than simply to answer the 
 questions you may put to them, and then so to 
 frame your questions that the answer shall be a 
 plain " Yes " or " No," giving no opportunity for 
 
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EXAMINATION-IN-CHIEF. 359 
 
 expatiating. Keep such witnesses closely to the 
 point for which they are required, and having got 
 from them just what you want, dismiss them, right 
 thankful if they have not done yoii more harm than 
 good. 
 
 There is no more difficult and delicate task in 
 the conduct of an examination-in-chief than so 
 skilfully to manage an adverse witness, called by 
 yourself, that he shall state just so much as you 
 require and no more. 
 
 When the Court is satisfied that the witness is 
 reaUy an adverse one, the strict rule that forbids 
 leading questions will be relaxed, and you will be 
 permitted to conduct the examination somewhat 
 more after the manner of a cross-examination. 
 But this is only a partial licence. You may put 
 leading questions, but you may not discredit him, 
 whatever may have been the damage done to you 
 by his testimony, and however obvious the animus 
 which has misrepresented the facts purposely for 
 the injury of your cause. He is still your witness, 
 and having chosen to call him, and thereby to ask 
 the Jury to believe his story, it is not competent 
 to you to turn round, when you find he does not 
 suit your purpose, and endeavour to show to the 
 Jury that he is unworthy of credit. Between this 
 Scylla and Chary bdis lies your difficult course in 
 dealing with such a witness. 
 
 As a general rule, it may be taken that the less 
 you say to him the better for you. Bring him 
 directly to the point which he is called to prove j 
 frame your questions so that they shall affi)rd the 
 
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360 THE ADVOCATE. 
 
 least possible room for evasion or, what is stiU 
 worse, explanation. Avail yourself of your liberty 
 to lead, as soon as you can — that is, as soon as you 
 have laid the foundation for it by showing from his 
 manner that the witness is really adverse. Make 
 no secret of his enmity; on the contrary, you have 
 most to dread when his manner and tone do not 
 discover his feelings. If you are satisfied beyond 
 doubt of his hostility, and he should, as is often 
 seen, assume a frank and friendly mien in the 
 witness-box, instead of accepting his approaches, 
 reject them with indignation ; let him see that you 
 understand him, and are not to be imposed upon, 
 and endeavour to provoke him to the exhibition of 
 his true feelings. The importance of so doing will 
 be obvious to you when you remember that it is 
 essential to the safety of your cause that the Jury 
 should receive his testimony with a knowledge of 
 the circumstances under which it is given, so that 
 anything adverse to you which may fall from him 
 shall be accepted by them with the allowance which 
 is always made by reasonable men for the exagge- 
 rations, or even inventions, of an enemy ; for, to an 
 audience so prepared, whatever falls from him in 
 your favour will have double value given to it, and 
 whatever he may say that teUs against you will be 
 rejected. Hence it is the first care of a skilful 
 Advocate, in deahng with his own adverse witness, 
 not only not to conceal the hostility, but to make it 
 prominent — to provoke it to an open display, and 
 draw out the expression of the feeling, if it does 
 not sufiiciently appear without a stimulus. If he 
 
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EXAMINATION-IN-CH I EF . 361 
 
 be adverse at all, you cannot make him appear too 
 adverse, because, tbe more hostile he is, the more 
 ■will his evidence in your favour be esteemed, and 
 the less weight will be given to such as he may 
 utter against you. 
 
 If your witness be timid, it wiU be your care to 
 restore his self-possession before you take him to 
 the material part of his testimony. This you 
 should eiFect by assuming a cheerful and friendly 
 manner and tone, and if you have the art to make 
 him smile, your wit would be better timed than is 
 always the case with forensic jests. Keep him 
 thus employed upon the fringe of the case, until 
 you are satisfied that his courage is restored, and 
 then you may proceed with him as with any other 
 witness. But be very careful not to take him to 
 material topics while he is under the influence of 
 fear, for in this state a witness is apt to become 
 confused, and to contradict himself, and so to 
 afford to your adversary a theme for damaging 
 comment. 
 
 A stupid witness is often more troublesome than 
 an adverse one. He cannot understand your 
 questions, or answers them so imperfectly that he 
 had better have left them unanswered. With such 
 an one the only resource is patience and good 
 temper. If you are cross with him, you will be 
 sure to increase his stupidity, and to convert 
 evidence that means nothing into evidence that is 
 contradictory and confused. . The preservation of 
 imperturbable good temper is a golden rule with an 
 Advocate. He should never be moved to anger 
 
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362 THE ADVOCATE. 
 
 by anything, however provoking, and however he 
 may appear to be in a passion. Entire self-com- 
 mand is his greatest virtue, never more in 
 requisition than in dealing with a stupid witness. 
 Instead of rebuking him, you should encourage 
 him by a look and expression of approval, and you 
 must frame your question in another shape, better 
 suited to his dense faculties. If baffled again, do 
 not retreat, but renew the catechism until your 
 object is obtained. In constructing your questions, 
 you will often find a clue to his links of thought 
 by observing his answers, and your next question 
 might then, with a little ingenuity, be so framed as 
 to fall in with his train of ideas. Thus patiently 
 treated, there are few witnesses so dull as not to be 
 made efficient for the purpose of an examination- 
 in-chief. 
 
 In this, as in opening your case to the Jury, it is 
 the better course to observe the order of time. 
 That is not only the most easily intelligible to the 
 Jury, but it is the natural order in which events 
 are associated in the mind of the witness, and, 
 therefore, by which they are the most readily and 
 accurately recalled. If you depart from this for 
 the sake of bringing out facts that are connected 
 together by some other link than time, as, for 
 instance, to exhibit in its entirety one branch of 
 your case, let the same principle govern the order 
 of that, and then return to the original plan. But 
 it win not do to revert to the precise point where 
 you quitted it ; you should repeat the two or three 
 questions with which you concluded, so as to recal 
 
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EXAMINATION-IN-CHIEF. 363 
 
 your witness to the point from which you had 
 diverted him. Inattention to this simple rule is 
 often the occasion of no small perplexity to the 
 witness, and it is scarcely necessary to warn you 
 against that, of which advantage is certain to be 
 taken to damage your case. 
 
 Your manner in examination-in-chief should be 
 very different from that which you have in cross- 
 examination. You are dealing with your own 
 witness, whom you assume to be friendly to you, 
 unless informed to the contrary, when it is per- 
 mitted to you to take the tone already described. 
 You must encourage him, if he be timid, and win 
 his confidence by a look and voice of friendliness. 
 It often happens that witnesses, unaccustomed to 
 courts of justice, are so alarmed at their formidable 
 aspect, and at their own new position, that in their 
 confusion they cannot at first distinguish between 
 the friendly and the adverse Counsel, and they 
 treat you as an enemy to be kept at bay and to 
 whom they are to impart as little as possible. It 
 is then your care to set your witness right, and a 
 kindly smile will often succeed in doing this. Do 
 not appear to notice his embarrassment, for that is 
 sure to increase it, but remove it quietly and 
 imperceptibly by pleasant looks, friendly tones, 
 and words that have not the stem sound of a 
 catechism, but the familiar request of a companion 
 to impart a story which the querist is anxious to 
 hear, and the ■ other gratified to tell. The most 
 frightened witness may thus be drawn almost 
 unconsciously into a narrative which, when he 
 
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364 THE ADVOCATE. 
 
 entered the witness-box^ had escaped his memory 
 in his terror. 
 
 Your questions in examination-in-chief should 
 be framed carefully, and put deliberately. You 
 never require in this that rapid fire of questions 
 which, as we shall have occasion to show hereafter, 
 is so often requisite in cross-examination. Nor in 
 this have you need to put an immaterial question, 
 save under the rare circumstances previously 
 described. You should weigh every question in 
 your mind before you put it, in order that it may 
 be so framed as to bring out in answer just 
 so much as you desire, and no more. You have 
 time for this, if you are as quick of thought as an 
 Advocate should be, while the Judge is taking his 
 note of the previous answer; but even if this be 
 not sufficient for your purpose, you must not fear 
 to make a deliberative pause. The Court wiU soon 
 learn not to be impatient of your seeming slowness, 
 when it discovers that you have, in fact, abbreviated 
 the work by a pause which has enabled you to keep 
 the evidence strictly to the point at issue. They 
 who remember Sir William Follett will at once 
 understand our meaning, for one of his most 
 remarkable and impressive peculiarities was the 
 grave and thoughtful deliberation with which he 
 framed and put his questions to his own wit- 
 nesses, and the result of which was, that he was 
 seldom annoyed by unexpected answers, or by 
 additions and explanations which he did not 
 desire. 
 
 Sometimes it demands considerable discretion to 
 
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EXAMINATION-IN-CHIEF. 365 
 
 determine whether it is better to permit the witness 
 to tell his own story in his own way, or to take him 
 through it by questions. No rule can be laid down 
 for this ; it must depend upon your discernment at 
 the moment. There is a class of minds which can 
 only recal facts by recalling all the associated cir- 
 cumstances, however irrelevant: they must repeat 
 the whole of a long dialogue, and describe the most 
 trivial occurrences of the time, in order to arrive at 
 any particular part of the transaction. With such 
 you have no help for it but to let them have their 
 own way. It is the result of a peculiar mental 
 constitution, and endeavours to disturb his trains 
 of association will only produce inextricable confu- 
 sion in the ideas of the witness, and you will be 
 further than ever from arriving at your object. 
 But if you are dealing with that other class of 
 witnesses, happily more rare, who appear to have 
 no trains of thought at all, who can. observe no 
 order of events, whose ideas are confused as to time, 
 place and person, your only chance of extracting 
 anything to your purpose is to begin by requesting 
 that they would simply answer your questions, and, 
 falling in, as it were, with their own mental condi- 
 tion, proceed to interrogate them after their own 
 fashion, with disconnected questions^ and so endea- 
 vouring to draw out of them isolated facts, which 
 you will afterwards connect together in your reply, 
 or which may dovetail with the rest of the evidence, 
 so as to form a complete story. 
 
 This plan will often be found effective with such 
 witnesses, when aU the usual methods of eliciting 
 
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366 THE ADVOCATE. 
 
 a narrative from them have been abandoned in 
 despair. Of course, it demands great tact and 
 readiness; but it is presumed that, unless you 
 possess these quahties, you will not attempt to 
 become an Advocate. 
 
 It is, perhaps, almost an impertinence to tell you 
 that you are by no means bound to call the wit- 
 nesses in the order in which they are placed in the 
 brief. It will be your task, when reading and 
 noting up your case, to marshal your witnesses in 
 the order in which they wiU best support your case, 
 as you have determined to submit it to the jury. 
 But, inasmuch as you are not allowed to recal 
 your witnesses, except with special permission of 
 the court, given only under special circumstances, 
 and you are, therefore, compelled to elicit aU that 
 you require in order to support any part of your 
 case, where the same witness speaks to different 
 parts of it, you must take care in his examination 
 to separate his testimony, as it relates to each of 
 such parts, and even at the expense of some 
 repetition to take him through his evidence, as 
 it bears upon one part, before you take him to 
 another, observing, however, ^he rules as to time 
 and the manner of reverting to the former por- 
 tion of the narrative, which have been previously 
 described. 
 
 While the examination-in-chief is proceeding, it 
 win be the duty of the counsel on the other side to 
 give the most attentive ear to every question and 
 every answer, and to take a note of it upon his 
 brief. When this duty devolves upon you, it may. 
 
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EXAMINATION-IN-CHIEF. 367 
 
 perhaps, be performed all the more satisfactorily 
 by the observance of some rules which experience 
 has approved. 
 
 You must mark every question put to the 
 witness, with a double purpose; first, to be sure 
 that it is properly put, according to the rules of 
 evidence; and, secondly, to ascertain what is its 
 bearing upon the case, and the design of your 
 adversary in putting it. 
 
 Immense keenness of perception and readiness of 
 apprehension are requisite to the proper perform- 
 ance of this task. You will need to have the law 
 of evidence at your fingers' ends, that, if the 
 question be an improper one, you may interpose 
 instantly, before the answer is given, to forbid the 
 witness to reply, and then not only to make your 
 objection to the Court, but to support it by 
 reasons. 
 
 And here let us warn you against a fault into 
 which young Advocates are especially apt to fall — 
 that of making too frequent and too frivolous 
 objections. Many inexperienced men appear to 
 think that, by continually carping at the questions 
 put to the witnesses by the other side, they are 
 proving to the audience how quick and clever they 
 are. But this is a mistake. Such an exhibition of 
 captiousness, whether affected or real, is offensive 
 to the Court and to the jury; it displeases the 
 Attorneys, who see through it, and only deem you 
 an ass for your pains, and it can impose only upon 
 the mob in the gallery, whose applause, however 
 desirable in politics, is rather injurious than other- 
 
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368 THE ADVOCATE. 
 
 wise to a professional reputation. Nothing is more 
 easy than to find opportunities for this sort of 
 vanity, without starting objections actually 
 untenable, because in practice, and by the courtesy 
 of Advocates, and the honourable understanding 
 they have one with another that they wiU not 
 knowingly put leading questions where it would be 
 wrong to lead, a vast number of questions are put 
 which, in strictness of the rule, are leading, and, 
 therefore, if objected to, could not be permitted. 
 But it will be your proper course never to object to 
 a question, as leading, merely because it is such^ but 
 only when it appears to you to be likely to have an 
 efiect injurious to your cause. And when you 
 have real occasion to make such an objection, do it 
 not in a perked, angry, and conceited manner, as is 
 sometimes seen, but good-temperedly, and as 
 appealing to the better judgment of your opponent, 
 whether he does not deem it to be an improper 
 question; nor address the objection to the Court 
 in the first instance, but to your adversary, 
 and only if he persist in putting it should you 
 call upon the Court to decide between you which 
 is right. 
 
 But it is not alone against improper leading ques- 
 tions you must be upon the watch ; there are many 
 others, still more objectionable, which it will be 
 your duty to prevent by an instant objection. As 
 soon as the words have fallen from your opponent's 
 lips, and before the witness can have time to answer, 
 you must interpose, first, with an exclamation to 
 the witness, " Don't answer that," and then turning 
 
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EXAMINATION-IN-CHIEF. 369 
 
 to the Court, state what is your objection to the 
 question, with your reasons for it. Your opponeijt 
 will answer you, if he can. Then you wiU have the 
 right of replying to him, and the Court will decide 
 between you. 
 
 There is, perhaps, no part of the difficult business 
 of an Advocate in which the fruits of experience 
 are more obvious than in this. If you watch 
 closely the examinations of the witnesses, in a trial 
 where an experienced Advocate is on the one side 
 and an inexperienced one on the other, you will 
 see the practised man putting question after ques- 
 tion, and eliciting facts most damaging to the other 
 side, which his adversary might have shut out by 
 a prompt objection to them, but which he permits 
 to pass without protest, because he is not sufficiently 
 experienced in the Law of Evidence to discern their 
 ihegg-lity on the instant, or so much master of it 
 as to give a reason for objection, even though he 
 may have a sort of dim sense that the questions 
 are wrong somehow, and he fumes and is fussy 
 upon frivolous protests against leading questions, 
 while he permits iUegal questions, destructive to 
 his client, to be put without a murmur. On the 
 other hand, when it comes to his turn to examine 
 his witnesses, and on the experienced man devolves 
 the duty of watching, you will see how, in no single 
 instance, is he suffered to tread over the traces, but 
 the strictest rules of evidence are enforced upon 
 him, so that he sits down, leaving half his case 
 undeveloped to the Jury, while his adversary has 
 brought out all that he had desired to impress 
 
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370 THE ADVOCATE. 
 
 upon the Court, his case having been as bald, in 
 fact, as that of the other. 
 
 Hence it is that we have endeavoured to impress 
 upon the Student, aspiring to be an Advocate, the 
 vital importance of a mastery of the Law of Evi- 
 dence, as the branch of law which is not only most 
 frequently in requisition by him, but the only one 
 which he is called upon to propound without 
 previous research. Almost all other subjects are 
 notified to him before he goes into Court, so that 
 he may look into the law and prepare himself for 
 the argument; or if, as rarely happens, he is 
 suddenly called upon, the Court will always give 
 time for research, or, at the least, allowance is 
 made for an insufficiency common to his audience, 
 even to the Judge upon the Bench. But, in ques- 
 tions of evidence, no such delay is practicable, and 
 no such excuse is accepted. They necessarily arise 
 on a sudden, and must be suddenly argued and 
 decided. An Advocate is expected to be aware 
 of this, and to come prepared with a knowledge of 
 aU the principles and rules of evidence. In order 
 to this, it is necessary to keep up his acquaintance 
 with it, by continually refreshing his memory, 
 not only by reading every day a portion of his 
 favourite text-book, but by carefully reading, and 
 then noting up in that text-book, which should be 
 interleaved for the purpose, every case decided 
 upon the Law of Evidence, from week to week, as 
 the Reports issue; and it is of the extremest 
 importance that he should possess the very latest 
 decisions, for they will not unfrequently give him 
 
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EXAMINATION-IN-CHIEF. 371 
 
 a victory over an adversary not so well prepared 
 as himself with the latest cases. 
 
 While we are upon this subject, it may be con- 
 venient to add, that there is another class of cases 
 of which an Advocate should be careful to procure 
 the earliest intelligence, and should note with equal 
 care in his book of practice ; namely, such as may, 
 perhaps, be best described under the collective title 
 of " the Practice of Nisi Prius." We mean, by 
 this, cases equally in sudden requisition with those 
 on evidence, for determining the conduct of a trial ; 
 as the right to begin, stamps, notices, juries, and 
 verdicts, the measure of damages, bills of excep- 
 tion, &c. Many a victory has been won solely by 
 the superior diligence of an Advocate in thus 
 possessing himself of the most recent decisions on 
 cases of this class. 
 
 Your notes of the evidence, as it proceeds, should 
 be fully taken, because you cannot anticipate, at this 
 period of the cause, what portions of it may prove 
 to be material, nor where a question may arise as 
 to what was the witness's answer. In taking these 
 notes, you begin with the day and date on which 
 the trial took place, and the name of the Judge. 
 You then very briefly note the more important 
 points of the opening speech, especially such as 
 you purpose to answer, and you indicate such as 
 will require peculiar attention by scoring it twice 
 or thrice. Then, stating the name of the witness 
 and the Counsel by whom he is examined, you set 
 down his evidence, leaving a broad margin for your 
 own observations, if any should occur to you. It 
 
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372 THE ADVOCATE. 
 
 is not necessary to give both question and answer, 
 save where the question strikes you as one of 
 special import, or to which you might desire to 
 refer thereafter, it will suffice merely to give the 
 answer in the witness's own words, as nearly as 
 you can observe them, so as to make them 
 intelligible. Thus, if the witness be asked, " Were 
 you at Exeter on Saturday?" and answers, "I 
 was," — a leading question, but probably not worth 
 objecting to, — you set it down thus : " Was at 
 Exeter on Saturday." But let it be a rule with 
 you, so far as it is practicable, always to take the 
 very words used by the witness. As you proceed, 
 you win find that the evidence suggests to you 
 matter to be explained on cross-examination, or to 
 be answered in your speech for the defence, or to 
 be contradicted by your own witness. Here it is 
 that you wiU find the margin useful. When such 
 an idea occurs to you, never sufier it to escape, 
 trusting to recall it when it is wanted, for, amid 
 the multipUcity of claims upon your attention, you 
 cannot be assured that it will return ; but grasp it 
 instantly, and in the margin, against the evidence 
 that is so to be treated, set some mark which may 
 catch your eye, and if the words are not likely to 
 suggest the thought you desire to recall, you can, 
 in a hurried sentence, insert there that of which 
 you wish to be reminded. This plan is especially 
 useful for the purpose of cross-examination, for it 
 is extremely difficult to carry in the mind all of 
 the evidence-in-chief that needs to be explained or 
 deprived of its credit; but, with this scored and 
 
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EXAMINATION-IN-CHIEF. 616 
 
 noted report of the witness's testimony before you, 
 it is unlikely that anything of moment will escape 
 your attention. 
 
 Another duty may devolve upon you, as Advocate 
 for the defendant, which will properly come to be 
 noticed here, — that is, the examination on the voir 
 dire. This legal phrase means merely, the exami' 
 nation to which a witness may be subjected, before 
 he is admitted, for the purpose of ascertaining 
 if he is competent to be a witness. This 
 is now much less frequently seen than formerly, 
 because it has been the wise policy of recent legis- 
 lation to remove the disqualifications of witnesses ; 
 but a few yet remain, and until these are also swept 
 away, in obedience to the same rational principle, 
 you must not forget that there are objections to 
 competency yet lingering in our law, and that it 
 wiU be your duty to enforce them where you are 
 instructed that they exist. When, therefore, a 
 witness is called, you must be prepared, if you have 
 an objection to him, to state it immediately on 
 his appearance, and having intimated to the Court 
 that you have such an objection, you mil pro- 
 ceed to examine him in support of it. This ex- 
 amination you will be permitted to conduct as in 
 the nature of a cross-examination. Very few ques- 
 tions usually suffice ; but, if you are dealing with 
 a very acute witness, who knows your object, and 
 especially with a Professional one, no common skill 
 and tact are often required in order to drag out of 
 him the particular circumstances upon which you 
 rely to sustain your objection. The same rules are 
 
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374 THE ADVOCATE. 
 
 applicable to this as to cross-examinations, upon 
 which we shall comment presently, and therefore 
 it is unnecessary to say more about it in this 
 place. 
 
 These are all the duties that occur to us as likely 
 to be required of you, as Advocate for the defendant, 
 during the progress of the examination-in-chief of 
 the plaintiff's witnesses. We shall next proceed to 
 consider what you should do in the conduct of your 
 cross-examinations. 
 
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XXXIV. 
 
 CROSS-EXAMINATION. 
 
 Cross-examination is commonly esteemed the 
 severest test of an Advocate's skill, and perhaps it 
 demands, beyond any other of his duties, the 
 exercise of his ingenuity. But those who have had 
 experience wiU be inclined to doubt whether, upon 
 the whole, it is so difficult to do well as an exami- 
 nation-in-chief, and certain it is that it is more 
 frequently seen to be well done, although this may 
 not improbably result from the prevalent notion 
 that examination-in-chief is an easy matter, which 
 any body can do, while cross-examination is 
 extremely difficult, and therefore that Advocates, 
 and especially young Advocates, perform the one 
 carelessly, while they put forth all their powers for 
 the accomplishment of the other. Do not under- 
 stand, however, that we are in any degree uncon- 
 scious of the difficulty of conducting a cross-exami- 
 nation with creditable skill. It is undoubtedly a 
 
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376 THE ADVOCATE. 
 
 great intellectual effort ; it is the direct conflict of 
 mind with mind; it demands, not merely much 
 knowledge of the human mind, its faculties, and 
 their modus operandi, to be learned only by reading, 
 reflection and observation, but much experience of 
 man and his motives, as derived from intercourse 
 with various classes and many persons, and, above 
 all, by that practical experience in the art of dealing 
 with witnesses which is more worth than aU other 
 knowledge ; which other knowledge will materially 
 assist, but without which no amount of study wiU 
 suffice to accomplish an Advocate. To the on- 
 looker, a cross-examination has much more of 
 interest, for it is more in the nature of a combat, 
 with the excitement that always attends a combat 
 of any kind, physical or intellectual; it is man 
 against man, mind wrestling with mind. But, 
 in examination-in-chief, the Advocate and his 
 witness have the appearance, at least, of being allies, 
 and whatever skUl the former is required to exercise 
 for the attainment of his object needs to be con- 
 cealed, and is seldom apparent to a mere spectator, 
 however it may be recognised and appreciated by 
 those who are engaged with him in the cause, and 
 who know with what exquisite tact he has eHcited 
 just what he desired, and suppressed that which he 
 wanted not to reveal. 
 
 There are two styles of cross-examination, both 
 of which you may see exemplified in any court 
 where you may chance to spend a day, and which 
 we may term the savage style, and the smiling style. 
 The aim of the savage style is to terrify the witness 
 
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CROSS-EXAMINATION. 377 
 
 into telling the truth; the aim of the smiling style 
 is to win him to a confession. The former is by 
 far the most frequently in use, especially by young 
 Advocates, who probably imagine that a frown and 
 a fierce voice are proofs of power. Great is their 
 mistake. The passions rouse the passions. Anger, 
 real or assumed, kindles anger. An attack stimu- 
 lates to defiance. By showing suspicion of a witness, 
 you insult his self-love — ^you make him your enemy 
 at once — you arm his resolution to resist you — ^t.o 
 defy you — to tell you no more than he is obliged 
 to teU — ^to defeat you, if he can. Undoubtedly 
 there are cases where such a tone is called for; 
 where it is politic as well as just ; but they are rare, 
 so rare that they should be deemed entirely 
 exceptional. In every part of an Advocate's career, 
 good temper and self-command are essential quali- 
 fications ; but in none more so than in the practice 
 of cross-examination. It is marvellous how much 
 may be accomplished with the most difficult 
 witnesses simply by good humour and a smile ; a 
 tone of friendliness wiU often succeed in obtaining 
 a reply which has been obstinately denied to a 
 surly aspect and a threatening or reproachful voice. 
 As a general rule, subject to such very rare excep- 
 tions as scarcely to enter into your calculations, 
 you should begin your cross-examination with an 
 encouraging look, and manner, and phrase. Re- 
 member that the witness knows you to be on the 
 other side ; he is prepared to deal with you as an 
 enemy ; he anticipates a badgering ; he thinks you 
 are going to trip him up, if you can ; he haSj to 
 
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378 THE ADVOCATE. 
 
 more or less extent, girded himself for the strife; 
 It is amusing to mark the instant change in the 
 demeanour of most witnesses, when their own 
 Counsel has resumed his seat and the Advocate on 
 the other side rises to cross-examine. The position, 
 the countenance, plainly show what is passing in 
 the mind. Either there is fear, or, more often, 
 defiance. If you look fierce and speak sternly, it 
 is just what had been expected, and you are met by 
 corresponding acts of self-defence. But if, instead 
 of this, you wear a pleasant smUe, speak in a kindly 
 tone, use the language of a friendly questioner, 
 appear to give him credit for a desire to tell the 
 whole truth and nothing but the truth, you surprise, 
 you disarm, him : it was not what he had antici- 
 pated ; he was prepared to resist an open enemy, 
 but not to combat a friend ; he hesitates what to do, 
 how to treat you ; the fortress is surrendered, he 
 submits, and answers frankly to your questionings. 
 
 But where shall you begin? What order shall 
 you follow? Shall you carry him again through 
 the narrative given in his examination-in-chief, or 
 begin at the end of it and go backwards, or dodge 
 him about, now here, now there, without method? 
 
 Each of these plans has its advantages, and 
 perhaps each should be adopted, according to the 
 special circumstances of the particular case. 
 
 But you cannot determine which course to adopt 
 unless you have some definite design in the ques- 
 tions you are about to put. A mere aimless, hap- 
 hazard cross-examination, however frequently 
 occurring, is a fault which the young Advocate 
 
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CROSS-EXAMINATION. 379 
 
 should most strenuously guard against. It is far 
 better to say nothing than to risk the consequence 
 of random shots, which may as often wound your 
 friends as your opponents. Very little experience 
 in Civil or Criminal Courts, and in the latter 
 especially, will assure you that there is no error so 
 common as this. Some persons seem to suppose 
 that their credit is concerned in getting up a cross- 
 examination, and they look upon the dismissal of a 
 witness without it, as if it were an opportunity 
 lost, and they fear that clients will attribute it, not 
 so much to prudence as to conscious incapacity. 
 So they rise and put a number of questions that do 
 not concern the issue, and perhaps elicit something 
 more damaging to their own cause than anything 
 the other side has brought out, and the result is, 
 that they leave their case in a far worse condition 
 than before. Let it be a rule with you never to 
 cross-examine unless you have some distinct object to 
 gain by it. Far better be mute through the whole 
 trial, dismissing every witness without a word, than, 
 for the mere sake of appearances, to ply him with 
 questions that are not the result of a purpose. You 
 will not fall in the estimation of those on whom 
 your fortunes will depend ; but the contrary. The 
 Attorneys well know, that in legal conflicts, even 
 more than in military ones, discretion is the better 
 part of valour ; they will not mistake the motive of 
 your silence, but they wiU commend the prudence 
 whose wisdom is proved by the results. 
 
 Your first resolve will, therefore, be, whether you 
 should cross-examine at all. 
 
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380 THE ADVOCATE. 
 
 It is impossible to prescribe any rules to gmde 
 you in this, so much must depend upon the parti- 
 cular circumstances of each case. You must rely 
 upon your own sagacity, on a hasty review of what 
 the witness has said, how his testimony has affected 
 your case, and what probability there is of your 
 weakening it. If he has said nothing material, it 
 is usually the safer course to let him go down, 
 unless, indeed, you are instructed that he can give 
 some testimony in your favour or damaging to the 
 party who has called him, and then you should 
 proceed to draw that out of him, if you can. But 
 unless you are so instructed, you should not, on 
 some mere vague suspicions of your own, or in hope 
 of hitting a blot somewhere by accident, incur the 
 hazard of detaining him and eliciting something 
 that may damage you, — a result to be seen every 
 day in our courts. So, as a general rule, it is 
 dangerous to cross-examine witnesses called for 
 mere formalities, as to prove signatures, attesta- 
 tions, copies, and such like. StiU, such witnesses 
 are not to be immediately dismissed, for you should 
 first consider if there be any similar parts of your 
 case which they may prove, so as to save a witness to 
 you, and then you should carefully confine yourself 
 to the purpose for which you have detained them. 
 
 In resolving whether or not to cross-examine a 
 witness, it is necessary to remember that there can 
 be but three objects in cross-examination. It is 
 designed either to destroy or weaken the force of 
 the evidence the witness has already given against 
 you, or to elicit something in your favour, which 
 
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CROSS-EXAMINATION. 381 
 
 he has not stated, or to discredit him, by showing 
 to the Jury, from his past history or present 
 demeanour, that he is unworthy of belief Never 
 should you enter upon a cross-examination without 
 having a clear purpose to pursue one or all of these 
 objects. If you have not such, keep your seat. 
 
 Let us consider each of these objects of cross- 
 examination separately. 
 
 1st. To destroy or weaken the force of his testi- 
 mony in favour of the other side. If this be your 
 design, you can attain it only by one of two pro- 
 cesses. You must show from the witness's own 
 lips, either that what he has stated is false, or that 
 it is capable of explanation. If your opinion be 
 that he is honest, but prejudiced; that he is mis- 
 taken ; that he has formed a too hasty judgment 
 and so forth, your bearing towards him cannot be 
 too gentle, kind, and conciliatory. Approach him 
 with a smile, encourage him with a cheering word, 
 assure him that you are satisfied that he intends to 
 tell the truth, and the whole truth, and having 
 thus won his good will and confidence, proceed 
 slowly, quietly, and in a tone as conversational as 
 possible, to your object. Do not approach it too 
 suddenly, or you wiU chance to frighten him with 
 that which forms the greatest impediment to the 
 discovery of the truth from witnesses, the dread of 
 appearing to contradict themselves. K once this 
 alarm be kindled, it is extremely difficult to procure 
 plain, unequivocal answers. The witness forthwith 
 places himself on the defensive, and, deeming you 
 an enemy, fences you, with more or less of skill, 
 
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382 THE ADVOCATE. 
 
 certainly, but always to the weakening of whatever 
 may drop from him in your favour. With such a 
 witness, of whose candour you are seeking to avail 
 yourself, the better course is to begin with the 
 beginning of the story he has told, and conduct 
 him through it again in the same order, only intro- 
 ducing at the right places the questions which are 
 intended to explain or qualify what he has stated 
 in his examination-in-chief. The advantage of this 
 course consists in its avoidance of any appearance 
 of a surprise upon him. You take him into his 
 former track — you even make him repeat a portion 
 of what he has said before — ^you recall his mind 
 from the Court and from yourself to the subject 
 with which it is familiar. The scene is again before 
 him, occupjdng his thoughts. Then^ it is easy to 
 try him upon the details (but still gently), to 
 suggest whether it may not have differed by so 
 and so from that which he has described, or if so 
 and so (which gives to the transaction another 
 complexion) did not occur also, and thus, at more or 
 less length, according to the circumstances of the case. 
 And here, at the very outset, let us warn you 
 against exhibiting any kind of emotion during 
 cross-examination ; especially to avoid the slightest 
 show of exultation when the witness answers to 
 your sagacious touch, and reveals what he had 
 intended to conceal. It startles him into self- 
 command and closes the portal of his mind against 
 you more resolutely than ever. You have put him 
 upon his guard and defeated yourself. Let the 
 most important answer appear to be received as 
 
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CROSS-EXAMINATION. 383 
 
 calmly and unconsciously as if it were the most 
 trivial of gossip. 
 
 In the same manner you may carry him to the 
 conclusion of his story, and what with an explana- 
 tion of one fact, an addition to another, and a 
 toning down of the colour of the whole, the evidence 
 will usually appear in a very different aspect, after 
 a judicious cross-examination, from that which it 
 wore at the close of the examination-in-chief. 
 
 Thus you should deal with a witness whom you 
 believe to be truthful, and therefore from whom you 
 propose only to elicit explanations and facts in your 
 favour, which his own Counsel has not, of course, 
 assisted him to disclose. 
 
 If you suspect that some of the statements of 
 the witnesses are false in fact, although not wilfully 
 mis-stated, — errors of the senses, of the imagina- 
 tion, of the memory, — so much more frequent than 
 they might suppose, whose occupation it had not 
 been to sift and weigh the worth of evidence, — 
 your task becomes a very difl&cult one ; for without 
 in any manner charging him with peijury or desir- 
 ing to have it understood that you do otherwise 
 than believe him to be an honest witness, you have 
 to prevail upon him to confess that which will wear 
 the aspect of falsehood. Now, there is nothing 
 upon which witnesses of every grade of rank and 
 intellect are so sensitive as self-contradiction. They 
 suspect your purpose instantly, and the dread of 
 being made to appear as lying, while often pro- 
 ducing contradictions and evasions, more often 
 arms the resolution of the witness to adhere to his 
 
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384 THE ADVOCATE. 
 
 original statement without qualification or explana- 
 tion. When, therefore, it is your purpose to show 
 from the witness's own lips that he was mistaken, 
 the extremest caution is required in approaching 
 him. You must wear an open brow and assume a 
 kindly tone. Let there be no sound of suspicion 
 in your lajiguage. Intimate to him delicately your 
 confidence that he is sincerely desirous of telling 
 the truth and the whole truth. Be careful not to 
 frighten him by point-blank questions that go at 
 once to involve him in a contradiction, or he will 
 see your design and thwart it by a resolute adiesion 
 to his first assertion. You must approach the 
 object under cover, opening with some questions 
 that relate to another matter, and then gradually 
 coming round to the desired point. And even 
 when you have neared it you must endeavour, by 
 every device your ingenuity can suggest, to avoid 
 the direct question, the answer to which necessarily 
 and obviously involves the contradiction. The 
 safer and surer course is to bring out the discre- 
 pancy by inference, that is, instead of seeking to 
 make the witness unsay what he has said, it should 
 be your aim to elicit a statement which may be 
 shown by argument to be inconsistent with the 
 former statement. 
 
 But it must be understood that, in aU this, your 
 only purpose should be, to ascertain the very truth 
 — ^to trace an error, if it exists — to try the memory 
 of the witness, if it be trustworthy. Never should 
 you seek to entrap him into a falsehood, or, by your 
 art, to throw him into perplexity, with a design to 
 
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CROSS-EXAMINATION. 385 
 
 discredit him, if, in your own mind, you believe that he 
 is not only honest, but that he has not erred. Your 
 duty as an Advocate is strictly limited by the rules 
 of morality. It is no more permissible for you to 
 tamper with the truth in others, or tempt them to 
 confound or conceal it, than to be false yourself. 
 The art we have endeavoured to describe, as to be 
 practised in cross-examination, is to be used only 
 when you really believe that the witness has not 
 told the very truth, and it is your honest purpose 
 to elicit it. 
 
 An explanation of the statements of a witness is 
 not so difficult to be procured from him as is a 
 contradiction ; because there is not the same for- 
 midable fear of being presented to the Court in the 
 aspect of one who is perjured. A witness who is 
 conscious that he has been induced, by the 
 encouraging examination of his own counsel, to say 
 too much, is often ready to seize the opportunity 
 affijrded by cross-examination to modify his asser- 
 tions by qualifications and explanations. If you 
 see this tendency, which is usually shown at the 
 beginning, you have only to encourage it by falling 
 in with his mood, and carefully avoiding anything 
 calculated to make him fear the use to which you 
 may put his admissions. If there be no such 
 tendency, then your course will be the reverse of 
 that to be pursued when you are seeking for con- 
 tradictions. Instead of avoiding the point, you 
 should go at once to that part of the evidence, 
 repeat the very question, and when you have ' 
 received the same reply, follow it with a series of 
 
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386 THE ADVOCATE. 
 
 questions as to the circumstances which, as you are 
 instructed, go to modify or explain the statements 
 you are combating. If you are satisfied that the 
 witness is honest and truthful, you cannot put your 
 questions too plainly ; let them be as leading as you 
 can frame them, naming the fact, and in such a 
 form that the answer shall be a plain " Yes," or 
 " No." And here let us warn you to be cautious 
 not to press your inquiries too far. Having, 
 obtained enough for your purpose, pass on. You 
 may obtain too much. There is no more useful 
 faculty in the practice of an Advocate than to know 
 when he has done enough. Many more causes are lost 
 by saying too much than by not saying sufficient. 
 A chapter may not uselessly be devoted hereafter 
 to the inquiry — When to sit down ? 
 
 The second object of cross-examination is to elicit 
 something in your favour. The method of doing 
 this will depend upon the character of the witness. 
 If you believe him to be honest and truthful, you 
 may proceed directly to the subject-matter of your 
 inquiry, with plain, point-blank questions. If you 
 suspect that he wiU not readily state what he is 
 aware will operate in your favour and against his 
 own friends, you must approach him with some of 
 the precautions requisite for the cross-examination 
 of a witness who is not altogether trustworthy. 
 But this distinction in the circumstances is to be 
 observed. Here you are dealing with a witness 
 from whom it is your intent to procure some 
 evidence in your favour. You cannot discredit 
 bim, by showing him to be unworthy of belief. 
 
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CROSS-EXAMINATION. 387 
 
 without losing the advantage of his testimony on 
 your own behalf. Therefore, you cannot venture 
 to prove him by questions that might lead to 
 contradictions. How, then, may you attain your 
 end? 
 
 You can only do so by gradual approaches. The 
 plain, direct questions, which best elicit the truth 
 from the witness desirous of telling the whole 
 truth, and nothing but the truth, would operate as 
 a signal for silence to a witness who desires to sup- 
 press some of the truth. With such an one the 
 surest course is to conduct him to the end by 
 almost imperceptible degrees. Elicit one small fact, 
 perhaps but remotely connected with the main 
 object of your inquiry. He may not see the chain 
 of connection, and will answer that question freely ; 
 or deem it not worth evading. A very small 
 admission usually requires another to confirm or 
 explain it. Having said so much, the witness can- 
 not stop there ; he must go on, in self-defence, and 
 thus, by judicious approaches, you bring him to the 
 main point. Even if then he should turn upon 
 you, and say no more, you will have done enough 
 to satisfy the Jury that his silence is as significant 
 as would have been his confession. 
 
 It may be remarked here that good generalship 
 may be often shown in skilfully availing yourself of 
 the silence of a witness. A refusal to answer, or an 
 evasion of your question, wiU frequently be more 
 serviceable to you than his words. On such occa- 
 sions, when assured of the advantage with which 
 you can employ, in your argument to the Jury, that 
 
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388 THE ADVOCATE. 
 
 reluctance to reply, you will not continue to urge 
 him, after having plied him fairly ; but having done 
 enough to satisfy the Court that he can say some- 
 thing more, if he pleases, you should withdraw, 
 and then you may suggest such inferences from his 
 silence as may be most advantageous to your cause. 
 It is one of the most frequent and fatal faults of 
 young Advocates that they will have an answer in 
 words to every question they put, forgetting that 
 the answer may be injurious, while the silence may 
 be more than suggestive of all that it is their design 
 to elicit. 
 
 The most cautious cross-examination will not 
 always prevent that most disagreeable of incidents 
 to an Advocate, the receipt of an answer that teUs 
 strongly against him, when he is anticipating an 
 answer in his favour. When such a contretemps 
 occurs, it is most important that you should not 
 appear to be taken by surprise. Let neither 
 countenance, nor tone of voice, nor expression of 
 annoyance, show to the spectators that you are 
 conscious of being taken aback. If they laugh, be 
 not vexed; if others exhibit surprise, be as calm 
 and appear as satisfied as if you had expected it. 
 Thus you -will repel the force of the blow, for, seeing 
 that you are not perplexed by it, the audience 
 begin to suppose it not to be so important as they 
 deemed it to be, or they give you credit for some 
 profounder purpose than is apparent, or that you 
 are prepared with a contradiction, or an explanation. 
 Sometimes, indeed, where the blow has been more 
 than usually staggering, it may not be bad policy 
 
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CROSS-EXAMINATION. 389 
 
 to weaken its force by openly making light of it,' 
 repeating it, taking a note of it, or appending a 
 joke to it. At no time is self-command more 
 requisite to an Advocate than at such a moment, 
 and never is the contrast between experience and 
 inexperience, the prudent and the injudicious, more 
 palpably exhibited. 
 
 The third object of cross-examination is to 
 discredit the witness, and it will be necessary to 
 preface the hints we venture to oifer to you upon 
 the aptest methods of doing this, with a few remarks 
 upon the principle that should guide you in the 
 adoption or rejection of this expedient ; for it is one 
 upon which there exists somewhat too vague and 
 indefinite an understanding, not merely in the 
 Profession, but with the general public, the former 
 erring on the side of laxity, and the latter on that 
 of strictness ; the one being influenced by the 
 feelings of an Advocate, the other by the sympa- 
 thies of a witness. Upon so important a matter 
 it must surely be possible to ascertain some rules 
 which may help to determine the limits of an 
 Advocate's duty, in an endeavour to discredit a 
 witness by cross-examination. Let us try to trace 
 them. 
 
 In this, as in all other questions of right and 
 wrong, it is necessary to go back beyond the point 
 immediately at issue, to consider the circumstances 
 out of which it has arisen. In matters of duty and 
 propriety, it is most dangerous to introduce refined 
 distinctions, and to seek to justify, by ingenious 
 argument, that which presents itself to the unbiassed 
 
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390 THE ADVOCATE. 
 
 and unreflecting conscience as wrong. We may 
 fairly doubt the correctness of any proceeding in a 
 matter of morals which needs an argument for its 
 justification. We cannot, • therefore, assent to the 
 conclusions, which have been so elaborately wrought 
 out by Lord Brougham and others, as to the duty 
 of an Advocate — conclusions opposed to the plainest 
 dictates of morality, which forbid us to do an injury 
 to our neighbours, or to lie for any. purpose what- 
 ever, and which are equally binding upon us, 
 whether we are merely acting and speaking for 
 another or upon our own account. We believe 
 sincerely that the character and credit of the Pro- 
 fession would be infinitely raised in public esteem 
 if these broad landmarks of morality were more 
 strictly observed in the practice of Advocacy, and 
 we are sure that in the long run it would be pro- 
 fitable to our clients. For if, by arts, ingenious 
 but wrong, by confusing the honest, browbeating 
 the tunid, and putting false constructions upon the 
 words of a witness, a verdict may be stolen now 
 and then, the benefit of such rare triumphs is more 
 than counterbalanced by the mistrust which a 
 departure from candour and fairness, and a resort 
 to arts for concealing or disguising the truth, 
 invariably sows in the mind of the Court and of 
 the Jury, inclining them to look with suspicion 
 upon everything the unscrupulous Advocate says 
 and does, and at length to see in him a trickster 
 always, and to deny to him the credit of frankness 
 and truth-telling, even when he is dealing honestly 
 with them. Who that has addressed jm'ies many 
 
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CROSS-EXAMINATION. 391 
 
 times can fail to have seen the incredulous smile 
 that curls upon their lips, and the sort of stern 
 resolve that settles upon their countenances, as if 
 they would say — " "We are not going to be bam- 
 boozled by you." It is not too much to say, that 
 owing to the reputation which some unscrupulous 
 Advocates have earned for the whole body of us, 
 the primd facie impression of a Jury is almost 
 invariably against the Counsel who rises to address 
 them, and that he has to disabuse their minds of 
 this prejudice, by impressing them with his own 
 truthfulness, before he can obtain from them a fair 
 consideration of his argument. But, in justice to 
 our order, it must be admitted^ that there is now 
 far less cause for this mistrust than there used to 
 be. Advocacy has, in this respect, vastly improved 
 of late years, and is stiU improving. BuUying and 
 browbeating are as rare now as they were common 
 formerly. It is seldom, indeed, that unscrupulous 
 assertions and daring misrepresentations of evidence 
 are indulged. The standa,rd of morality has been 
 advanced among us, and is advancing; and it should 
 be your solemn purpose and earnest endeavour not 
 to suffer it to retrograde in your person, but, by 
 beginning with a stern resolve to maintain the 
 loftiest principles of professional virtue, whatever 
 the temptations to the contrary (and they wiU be 
 many and formidable), to prove by your example 
 that greatness and success as an Advocate are not 
 only compatible with the strictest integrity as a 
 Man, but that henceforward these shall be the onlt/ 
 paths to prosperity and honour. When they are 
 
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392 THE ADVOCATE. 
 
 seen to bring briefs into tbe bag, they will not be 
 slow of adoption by those who may have thriven 
 by a different course. Whatever it may once have 
 been, be assured that the day is passing, if it have 
 not passed, when a trichy Advocate was popular 
 with clients ; and one reason of this is, that the law 
 itself has become less tricky; a cause depends more 
 upon its merits and less upon quibbles, and there- 
 fore its Advocates must take a different tone. They 
 will be the most prosperous for the future who see 
 the change and conform themselves to it. 
 
 The principle, then, that should govern your 
 conduct in dealing with an adverse witness, with a 
 view to discredit him, should be that which you 
 would recognise in your private capacity as a 
 Christian gentleman^ and which may be summed up 
 in three words — Justice, Truth, Charity. You 
 have no right to tempt, or terrify, or entrap him 
 into falsehood. You have no right to charge him 
 with falsehood, unless you are in your own mind 
 entirely convinced that he is lying^ and not that he 
 is merely mistaken. 
 
 Justice demands that you deal with him as you 
 would be dealt with by him, were you the witness 
 and he the Advocate. Truth demands that you 
 make no endeavour to misrepresent him, or to 
 distort the meaning of his words, contrary to your 
 own conscientious conviction of his honesty. 
 Charity demands that you put upon his evidence 
 the construction most accordant with good 
 intentions. 
 
 Only when you are in your own mind thoroughly 
 
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CROSS-EXAMINATION. 393 
 
 persuaded that the witness is not telling the truth, 
 may you with propriety use your art to entrap him 
 into contradictions, or charge him with falsehood 
 in word or manner. 
 
 And, indeed, it is very rarely that anything is to 
 be gained by such prostitution of the abilities of 
 the Advocate as that against which we are desirous 
 of warning you. In fact, witnesses do not delibe- 
 rately lie so frequently as the inexperienced and 
 unreflecting are wont to believe. All who have 
 had much practice in examination will subscribe to 
 the assertion, — ^that downright, intended, conscious 
 perjury occurs but seldom in our Courts. 
 
 But, on the other hand, the same experience will 
 teach you this, which is equally important to be 
 understood, — ^that evidence is far less trustworthy 
 than the public, or juries, who represent the public, 
 are accustomed to suppose it to be. In few words, 
 there is much less of perjury^ and vastly more of 
 mistake^ in witnesses, than the unaccustomed 
 observer would imagine to be possible, unless he 
 had studied the physiology of the mind, and had 
 thence learned how manifold are the sources of 
 error, and how imperfect is the sense that conveys 
 the knowledge of facts, and the understanding that 
 tries, and proves, and applies them. 
 
 To the Advocate, however, it is of vital im- 
 portance that he should attain to the full compre- 
 hension of this truth, for it must be the guiding- 
 star of his conduct in the cross-examination of 
 witnesses. The consciousness of it will govern his 
 words, his voice, his manner; change the tone of 
 
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394 THE ADVOCATE. 
 
 mistrust into that of confidence; the language of 
 rebuke into that of kindness; the eye that flashes 
 anger and kindles defiance into the look that wins 
 to frankness. 
 
 Do not let us be misunderstood in the use of the 
 phrase, to discredit a witness. We do not mean by 
 this the vulgar notion of discrediting by making 
 him appear to be perjured. Our meaning is simply 
 to show, by cross-examination, that his evidence is 
 not to be implicitly believed ; that he is mistaken in 
 the whole or in parts of it. By adopting this 
 manner of dealing, you not only act in strict 
 accordance with justice, truth, and charity, but you 
 are far more likely to attain your object than by 
 charging wilful falsehood and perjury, by which 
 course, if you fail to impress the jury, you endanger 
 your cause. It not unfrequently happens that a 
 charge of perjury against the witnesses on the other 
 side induces the Jury to make the trial a question 
 of the honour of the witnesses, instead of the issue 
 on the record. They say, "if we find for the 
 defendant, after what has been said by his counsel 
 against the plaintiff's witnesses, we shall be con- 
 firming his assertion that they are peijured, which 
 we do not believe ;" and so, to save the characters 
 of their neighbours, whom they believe to be unjustly 
 impugned, they give a verdict against the assailant. 
 Such a result of brow-beating and of imputations 
 of perjury and falsehood is by no means rare, and 
 while it affords another instance of the truth of the 
 remark we have already made more than once, that 
 honesty is wisdom as well as virtue, it should be 
 
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CKOSS-EXAMINATION, 395 
 
 treasured in your memory as a warning against a 
 style of cross-examination once popular, but now- 
 daily falling more and more into disrepute, and 
 which is really as bad in policy as it is discreditable 
 in practice. 
 
 In truth, without imputing perjury, you will find 
 an ample field opened to you for trying the tes- 
 timony of a witness by cross-examination, and of 
 showing to the jury its weakness or worthlessness, 
 by bringing into play all that knowledge of the 
 physiology of mind and of the value of evidence, 
 which it is presumed that you have acquired in 
 your laborious training, before you ventured to 
 undertake the office of an Advocate. Thus armed, 
 you will experience no difficulty in applying the 
 various tests by which the truth is tried, with much 
 more of command over the witness and vastly more 
 of influence with the jury, who will always acknow- 
 ledge the probability of mistake in a witness, when 
 they will not believe him to be perjured. And do 
 not adopt this course as if it were an art, a con- 
 trivance, but frankly and fuUy, with entire confi- 
 dence in its policy as weU as its rectitude, so that 
 no lurking doubt may betray itself in your manner, 
 to throw suspicion over your sincerity. It often 
 occurs that an unpractised Advocate arms the 
 ■witness against him, before he has opened his lips, 
 by a certain defiant look and air as he rises from 
 his seat, as if he were already revelling in anticipated 
 triumph over his victim. Nothing is more fatal 
 than this to success in cross-examination, for it 
 provokes the pride of the witness, sets him on his 
 
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396 THE ADVOCATE. 
 
 guard, and rouses him to resistance. He says in 
 his heart " You shall get nothing out of me." And 
 it is probable that nothing you will get. 
 
 A sober quietness, an expression of good temper, 
 a certain friendliness of look and manner, which 
 ■will be understood, although it cannot be described, 
 should distinguish you when you rise for the cross- 
 examination of a witness, the truth of whose 
 testimony you are going to try, not by the vidgar 
 arts of brow-beating, misrepresenting, insulting, 
 and frightening into contradictions, but by the more 
 fair, more honourable, and more successful, if more 
 difficult, method of showing him to be mistaken. 
 You must begin with conciliation ; you must remove 
 the fear which the most truthful witness feels when 
 about to be subjected to the ordeal of cross-exami- 
 nation. Let him understand, as soon as possible, 
 that you are not going to insult him, or to entrap 
 him into falsehood, or to take unfair advantages of 
 him ; that you have confidence in his desire to tell 
 the truth and aU the truth, and that your object is 
 to ascertain the precise limits of positive truth in 
 the story he has told. 
 
 Proceed very gently, and only, as it were, with 
 the fringe of the case, until you see that the witness 
 is reassured, and that a good understanding has 
 been established between you, to which a smiling 
 question that elicits a smiling answer will be found 
 materially to contribute. A witness, who stub- 
 bornly resists every other advance on the part of 
 the Advocate, will often yield at once to a good- 
 humoured remark that compels the lip to curl. 
 
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CROSS-EXAMINATION. 397 
 
 This point gained, you may at once proceed to your 
 object. 
 
 The other purposes of cross-examination have 
 been previously explained. We are now considering 
 only what is to be done when the design is to dis- 
 credit the testimony, not by discrediting the witness^ 
 but by showing that he is mistaken; that he has 
 been himself deceived. Now, the way to do this is 
 by closely inquiring into the sources of his know- 
 ledge ; and here it is that so much analjrtical skill, 
 so intimate an acquaintance with mind and its 
 operations, is demanded on your part, in order that 
 you may avert resistance to your inquiries on the 
 part of the witness. 
 
 Perhaps it is unnecessary to inform you that it 
 is useless to put to a witness directly the question, 
 if he is sure that the fact was as he has stated it. 
 He will only be the more positive. No witness will 
 ever admit that he could have been mistaken. This 
 is shown remarkably in cases where personal identity 
 is in question. Ever3'^body admits that there is 
 nothing upon which all persons are so often mis- 
 taken ; yet is there nothing upon which witnesses 
 are more positive, and that positiveness is con- 
 tinually influencing inconsiderate juries to erro- 
 neous verdicts, as the records of our criminal law 
 painfully prove ; for, of the wrongful convictions, 
 fuUy one-half have been cases of mistaken identity, 
 in which witnesses have been too positive, and 
 juries too confiding, in a matter which their own 
 daily experience should satisfy them to be of all 
 others the most dubious and unsatisfactory. Instead, 
 
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398 THE ADVOCATE. 
 
 therefore, of asking the witness whether he might 
 not be mistaken, you should proceed at once to 
 discover the probabilities of mistake, by tracing the 
 sources of his knowledge, and by ehciting all the 
 circumstances, internal and external, under which 
 it was formed. It is in this operation that the 
 faculties of the great Advocate are displayed; this 
 it is that calls into play his acquaintance with 
 mental physiology, his experience of men and 
 things, and in which he exhibits his infinite supe- 
 riority over the imperfectly-educated and the inex- 
 perienced. 
 
 By what process do you perform this difficult 
 duty, and achieve this triumph of your art? Let 
 us endeavour to describe it. 
 
 The witness has detailed an occttrrence at a 
 certain time and place, and it is your purpose to 
 show that he was mistaken in some of the particu- 
 lars, and that the inferences he drew from them 
 were incorrect, or not justified by the facts. Your 
 first proceeding, to this end, is to realise the scene in 
 your own mind. Your fancy must paint for you a 
 picture of the place, the persons, the accessories. 
 You then ask the witness to repeat his story — you 
 note its congruity or otherwise with the circTma-- 
 stances that accompanied it; you detect improba- 
 bilities or impossibilities. You see as he saw, and 
 you learn in what particulars he saw imperfectly, 
 and how he formed too hasty conclusions; how 
 prejudice may have influenced him; how things 
 dimly seen were by the imagination transformed into 
 other things in his memory. 
 
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CROSS-EXAMINATION. 399 
 
 How erring the senses are, and how much, their 
 impressions are afterwards moulded by the mind; 
 how very fallible is information, seemingly the most 
 assured, it needs no extensive observation to teach. 
 If you make inquiry as to an occurrence in the next 
 street, ten minutes after it has happened, and from 
 half-a-dozen actual spectators of it, you will receive 
 so many different accounts of its details, and yet 
 each one positive as to the truth of his own narra- 
 tive, and the error of his neighbour's. It is so with 
 all testimony; and hence, whatever depends upon 
 the senses or the memory of a witness, however 
 honest and truth-speaking he may be in intention, 
 is fairly open to doubt, to question, to investigation, 
 and to denial, for the purpose of showing that it 
 ought not to be relied upon, and that it may have, 
 upon the question under consideration, a bearing 
 altogether different from that for which it was 
 employed by the party who had adduced it. 
 
 But it is not enough to ascertain that the witness 
 is mistaken; to satisfy the jury, when you. come to 
 comment upon his evidence, you must learn also 
 whence the mistake arose, and you should not 
 leave him until you have attained your object 
 Sometimes you may procure this from the witness's 
 mouth, thus : — Having gathered from his descrip- 
 tion that, in the circumstances of place, or time, or 
 otherwise, as the case may be, it was impossible or 
 improbable that he could have seen or heard enough 
 to justify his positive conclusion, you may plainly 
 put to him the question, how it is that, being so 
 situated, he could have so seen or heard? This 
 
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400 THE ADVOCATE. 
 
 will usually elicit an explanation that "will at once 
 be a confession of his mistake, and a discovery of 
 the cause of it. 
 
 Caution is nevertheless necessary in this pro- 
 ceeding, and it should only be resorted to when 
 other means have failed; for, having ascertained to 
 your own satisfaction the mistakes of the witness, 
 and the facts that prove them to be mistakes, the 
 exhibition of them will come with far better eflfect 
 in your address to the Jury, when lucidly displayed 
 iu argument, than when developed bit by bit in the 
 course of a long examination. Usually, it will be 
 sufl&cient for you that you have the fact. Besides, it 
 is as well that the witness himself should not be made 
 conscious of detected error, lest, fearing to have his 
 veracity impugned, he should close his mind against 
 you and resist further investigation into the parts 
 of his story which yet remain to be tried. 
 
 The art of cross-examination, however, is not 
 limited to the detection of mistakes in a witness. 
 Sometimes it happens that you have good reason 
 to believe that he is not mistaken, but that he is 
 lying ; and when you are assured of this in your 
 own mind, but not otherwise, you may treat him 
 as a liar, and deal with him accordingly. Your 
 object will now be to prove him to be so, out of 
 his own mouth ; and it will be permissible to resort 
 to many a stratagem, for the purpose of detection,, 
 which might not be fairly used towards a witness 
 whom you really believed to be honest, but mis- 
 taken. 
 
 The question has often occurred to us, whether 
 
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CROSS-EXAMINATION. 401 
 
 it is more prudent to show such a witness that you 
 suspect him, or to conceal your doubts of his 
 honesty? Either course has its advantages and 
 its disadvantages. By displaying your doubts, you 
 incur the risk of putting him upon his guard, and 
 leading him to be more positive in his assertions, 
 and more circumspect in his answers ; but, on the 
 other hand, a conscious liar is almost always a 
 moral coward; when he sees that he is detected, 
 he can rarely muster courage to do more than 
 reiterate his assertion ; he has not presence of mind 
 to carry out the story by ingenious invention of 
 details and a consistent narrative of accidental 
 circumstances connected with it. A cautious con- 
 cealment of your suspicions possesses the advantage 
 of enabling you to conduct him into a labyrinth 
 before he is aware of your design, and so to expose 
 his falsehood by self-contradictions and absurdities. 
 Perhaps either course might be adopted, according 
 to the character of the witness. If he is a cool, 
 clever fellow, it may be more prudent to conceal 
 from him your doubts of his veracity, until he 
 has furnished you with proofs. If he is one 
 of that numerous class who merely get up a 
 story, to which they doggedly adhere, it may be 
 wise to awe him at once, by notice that you do not 
 believe him, and that you do not intend to spare 
 him. We have often seen such a witness surrender 
 at discretion on the first intimation of such an 
 ordeal. This is one of the arts of Advocacy which 
 cannot be taught by anything but experience. It 
 is to be learned only by the language of the eye, 
 
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402 THE ADVOCATE. 
 
 the countenance, the tones of the voice, that betray 
 to the practised observer what is passing through 
 the mind within. 
 
 But having, after a glance at your man, resolved 
 upon your course, pursue it resolutely. Be not 
 deterred by finding your attacks parried at first. 
 Persevere untU you have attained your object or 
 are convinced, by your examination, that your 
 impression was wrong, and that the witness is 
 telling the honest truth. If you determine to 
 adopt the course of hiding from him your doubts^ 
 be very careful not to betray them by your face, 
 nor by the tone of the voice, where the feeling is 
 so often shown while the words are otherwise 
 framed. To be a good Advocate you must be a 
 good actor, and it is one of the faculties of an actor 
 to command his countenance. Open gently, mildly ; 
 do not appear to doubt him; go at once to the 
 marrow of the story he has told, as if you were not 
 afraid of it ; make him repeat it ; then, carry him 
 away to some distant and collateral topic, and try 
 his memory upon tha% so as to divert his thoughts 
 from the main object of your inquiry, and prevent 
 his seeing the connection between the tale he has 
 told and the questions you are about to put to him. 
 Then, by slow approaches, bring him back to the 
 main circumstances, by the investigation of which 
 it is that you purpose to show the falsity of the 
 story. 
 
 The design of this manoeuvre is, of course, to 
 prevent him from seeing the connection between 
 his own story and your examination, so that he 
 
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CROSS-EXAMINATION. 403 
 
 may not draw upon his imagination for explana- 
 tions consistent with his original evidence ; your 
 purpose being to elicit inconsistency and contra- 
 dictions between the story itself and other circum- 
 stances, from which it may be concluded that aU or 
 a great part of it is a fabrication. 
 
 As a specimen of the sort of cross-examination 
 to which we are referring, we may name an instance 
 that fell within our own experience. 
 
 In a case of affiliation of a bastard child, the 
 mother had sworn distinctly and positively to the 
 person of the father, and to the time and place of 
 their acquaintance, fixed, as usual, at precisely the 
 proper period before the birth of the child. In 
 this case, the time sworn to was the middle of May, 
 and the place, the putative father's garden. For 
 an hour she endured the strictest cross-examination 
 that ingenuity could suggest : she was not to be 
 shaken in any material part of her story ; she had 
 learned it well, and with the persistence that makes 
 women such very difficult witnesses to defeat, she 
 adhered to it. It suddenly occurred to us that she 
 might be thrown off her guard by a question for 
 which she was not likely to be prepared, and the 
 examination proceeded thus : — " You say you 
 walked in the garden with Mr. M. ? Yes. Before your 
 connection with him ? Yes. More than once? Yes; 
 several times. Did you do so afterwards? No. 
 Never once? No. Is there fruit in the garden? 
 Yes. I suppose you were not allowed to pick any? 
 Oh ! yes ; he used to give me some. What fruit ? 
 Currants and raspberries. Kipe? Yes." 
 
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404 THE ADVOCATE. 
 
 This was enough. She was detected at once. 
 The alleged intercourse was in the middle of May. 
 Currants and raspberries are not ripe till June. 
 This instance will illustrate our meaning better 
 than any verbal description of it. In this case the 
 woman's whole story was untrue. She had fallen 
 in with the suggestion about fruit, to strengthen, 
 as she thought, her account of the garden; but she 
 did not perceive the drift of the questions, and con- 
 sequently had not sufficient self-command to reflect 
 that fruit is not ripe in May. 
 
 This wiU serve as an illustration of the manner 
 in which the most acute witness may be detected 
 in a lie. But patience in the pursuit is always 
 necessary. You may be baffled again and again, 
 but be careful never to let it be seen that you are 
 baffled. Glide quietly into another track, and try 
 another approach ; you can scarcely fail of success 
 at last. No false witness is armed at all points. 
 
 But, in this process, somewhat tedious, it is true, 
 to yourself, and not always comprehended by others, 
 the art of the witness wUl not be the only nor the 
 severest trial of your temper. Too often you will 
 find the Judge complaining of tediousness or repe- 
 tition. He does not always see your drift, and, 
 especially if you are young, he is too apt to con- 
 clude that you are putting questions at random, 
 and to refuse you credit for a meaning and a design 
 in your queries. You must, in such case, firmly 
 but respectfully assert your right to conduct your 
 examination after your own fashion, and proceed, 
 without perturbation, in the path your deliberate 
 
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CBOSS-EXAMINATION. 405 
 
 judgment has prescribed. Your duty is to your 
 client, and you must discharge it fearlessly, leaving 
 to the event and to experience to vindicate your 
 motives and prove the wisdom of your conduct. After 
 awhile the Judge will discover that you do not act 
 without a sufficient reason, and that you have a 
 design in your course of cross-examination. It 
 must, however, be confessed that cross-examination 
 is so often conducted at random, without aim, or 
 plan, or purpose, as if for the mere appearance of 
 saying something, that Judges may well be excused 
 for suspecting a divergent course in a junior, and 
 attributing to inexperience a string of questions 
 which are, in fact, the result of profound delibera- 
 tion and design. 
 
 If, however, you adopt the other course, and, 
 instead of surprising the witness into the betrayal 
 of his falsehood, you resolve to bring it out of him 
 by a bold and open attack — to awe him, as it were, 
 into honesty — aspect and voice must express your 
 consciousness of his perjury, and your resolve to 
 have the truth. A stern, determined fixing of 
 your eye upon his will often suffice to unnerve 
 him, and it will certainly help you to assure your- 
 self whether your suspicions are just or unjust. It 
 may be stated, as a general rule, that a witness who 
 is lying will not look you boldly and fuUy in the 
 face, with a steady gaze; his eye quivers and turns 
 away, is cast down, or wanders restlessly about. 
 On the contrary, the witness who is speaking the 
 truth, or what he believes to be the truth, wiU meet 
 your gaze, however timidly, will look at you when 
 
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406 THE ADVOCATE. 
 
 he answers your questions, and will let you look 
 into Ms eyes. There may be rare exceptions to 
 this rule, but we can scarcely recall an instance in 
 which it has failed to inform the Advocate whether 
 the person he is subjecting to cross-examination is 
 the witness of truth or of falsehood. 
 
 Thus assured, and pursuing your plan of bold 
 attack, there needs to be no circumlocution, no 
 gradual approaching, as in the other method of 
 surprisal, but go straightway to your object, 
 plunging him at once into the story you are 
 questioning. Make him repeat it slowly. It 
 will often be that, under the discomposure of 
 your detection of his purpose, he will directly 
 vary from his former statement, and if he does so 
 in material points, which are undoubtedly sufficient 
 to discredit him, it will usually be the most prudent 
 course to leave him there, self-condemned, iustead 
 of continuing the examination, lest you should give 
 him time to rally, and, perhaps, to contrive a story 
 that will explain away his contradictions. If, how- 
 ever, his lesson is well learned, and he repeats the 
 narrative very nearly as at first, you will have to 
 try another course, which wiU tax your ingenuity 
 and patience. 
 
 Procure from him in detail, and let his wm^ds 
 be taken down, the particulars of his story, and 
 then question him as to associated circumstances, 
 upon which he is not likely to have prepared him- 
 self, and to answer which, therefore, he must draw 
 on his invention at the instant. Some little 
 ingenuity will be necessary on your part, after 
 
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CROSS-EXAMINATION. 407 
 
 surveying his story, to select the weakest points 
 for your experiment, and to suggest the circum- 
 stances least likely to have been pre-arranged. 
 Having obtained his answers, permit to him no 
 pause, but instantly take him to a new subject; 
 lead his thoughts away altogether from the matter 
 of your main topic. The more irrelevant your 
 queries, the better; your purpose is to occupy his 
 mind with a new train of ideas. Conduct him to 
 different places and persons and events. Then, as 
 suddenly, in the very midst of your questionings, 
 when his mind is the most remote from the subject, 
 when he is expecting the next question to relate to 
 the one that has gone before, suddenly return to 
 your first point, not repeating the main story (for 
 this, having been well learned, will probably be 
 repeated as before), but to those circumstances 
 associated with it upon which you had surprised 
 him into invention on the moment. It is most 
 probable that, after such a diversion of his thoughts, 
 he win have forgotten what his answers were, what 
 were the fictions with which he had filled up the 
 accessories of his false narrative, and having no 
 leisure allowed to him for reflection, he will now 
 give a different account of the circumstances, and 
 so betray his falsehood. Of all the arts of cross- 
 examination, there is none so efficient as this for 
 the detection of a lie. 
 
 Another excellent plan is to take the witness 
 through his story, but not in the same order of 
 incidents in which he told it. Dislocate his train 
 of ideas, and you put him out; you disturb his 
 
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408 THE ADVOCATE. 
 
 memory of his lesson. Thus, begin your cross- 
 examination at the middle of his narrative, then 
 jump to one end, then to some other part the most 
 remote from the subject of the previous question. 
 If he is telling the truth, this will not confuse him, 
 because he speaks from impressions upon his mind; 
 but if he is lying, he will be perplexed and will 
 betray himself, for, speaking from the memory only, 
 which acts by association, you disturb that associa- 
 tion, and his invention breaks down. 
 
 When you are satisfied that the witness is 
 drawing upon his invention, there is no more 
 certain process of detection than a rapid fire of 
 questions. Give him no pause between them; no 
 breathing place, no time to rally. Few minds 
 are sufficiently self-possessed as, under such a 
 catechising, to maintain a consistent story. If 
 there be a pause or a hesitation in the answer, you 
 thereby lay bare the falsehood. The witness is 
 conscious that he dares not stop to think whether 
 the answer he is about to give will be consistent 
 with the answers already given, and he is betrayed 
 by his contradictions. In this process it is neces- 
 sary to fix him to feme, and place, and names. 
 " You heard him say so? " "When? " " Where?" 
 "Who was present?" "Name them." "Name 
 one of them." Such a string of questions, 
 following one upon the other as fast as the answer 
 is given, will frequently confound the most 
 audacious. Fit names, and times, and places, are 
 not readily invented, or, if invented, not readily 
 remembered. Nor does the objection apply to this 
 
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CROSS-EXAMINATION. 409 
 
 that may undoubtedly be urged against some others 
 of the arts by which an Advocate detects falsehood, 
 namely, that it is liable to perplex the innocent, as 
 well as to confound the guilty ; for, if the tale be 
 true, the answers to such questions present them- 
 selves instantaneously to the witness's lips. They 
 are so associated in his mind with the main fact 
 to which he is speaking, that it is impossible to 
 recall the one without the other. Collateral 
 circumstances may be forgotten by the most 
 truthful, or even be unobserved; but time, place, 
 and audience, are a part of the transaction, with- 
 out which memory of the fact itself can scarcely 
 exist. 
 
 There is no branch of our subject on which a 
 wider difference of opinion prevails, than upon the 
 weight to be given to variations by a witness in the 
 telling of a story — Counsel usually dwelling upon 
 them as evidences of falsehood, and Judges almost 
 always directing the Jury that they are rather 
 evidences of honesty. As these views are often 
 sincerely entertained by both, and considerable 
 practical inconvenience results from so wide a 
 difference, it may be useful, in this place, to 
 endeavour to reconcile the opposite conclusions 
 of intelligent minds, as only they can be reconciled, 
 by reference to principles. 
 
 Memory is association : ideas return linked 
 together as they were originally presented to the 
 mind, and the presence of one summons the others 
 by suggestion. An event is witnessed, and the scene 
 and its accessories are impressed upon the mind. 
 
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410 THE ADVOCATE. 
 
 But they are only impressed there as the spectator 
 beheld them, and not necessarily as they were in 
 reality. It is necessary to ascertain also the medium 
 through which he saw or heard, before we can 
 properly estimate the value of his naemory. When 
 called upon to bear testimony to a fact, if a man 
 desires to teU the truth, he will describe, as nearly 
 as he can in words, so much as he can recall of 
 the circumstances. But it by no means follows 
 that, every time he recalls the scene, it should 
 present itself to his mind in precisely the same 
 aspect; and for this reason: — the mind does not 
 revive the whole at once, but in succession, and 
 some portions of it will come back more vividly 
 at one time than at another, and, by their very 
 vividness, recall other associations before unremem- 
 bered. Hence, differences in description, and 
 especially new circumstances introduced into a 
 repeated narrative, although each repetition should 
 vary from aU the former ones, by the addition of .. 
 some things and the omission of others, do not 
 afford the slightest grounds for imputing perjury 
 to a witness. On the contrary, they are rather 
 a presumption in his favour, for an invention 
 that is learned would probably be recalled as it 
 was learned, with the same facts, and almost in the 
 same words. 
 
 But it is otherwise with discrepancies of state- 
 ment. These cannot exist in a truthful narrative. 
 Repeated ever so frequently, and whatever the 
 variance in detail, the story wiU always be con- 
 sistent with itself, and with its former assertions. 
 
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CROSS-EXAMINATION. 411 
 
 A positive discrepancy is proof that, whatever the 
 cause, whether of design or by the not unfrequent 
 delusion of mistakuig imagination for reality, the 
 witness is not speaking the truth, and therefore in 
 such a case, be the motive what it may, an Advo- 
 cate is justified in pointing out these discrepancies 
 to the jury, and asserting that no faith can be 
 placed in a narrative which thus contains within 
 itself decisive evidence that some portion of it, at 
 least, is not true. By bearing in mind the dis- 
 tinction between variances and discrepancies in the 
 repetitions by a witness of the same story, the 
 Judge and the Advocate may avoid those contra- 
 dictions of assertion as to the worth of certain 
 testimony, which sometimes shake the confidence 
 of juries in arguments that really deserve their 
 consideration, and which are equally disagreeable 
 to the speaker and to the commentator. Let 
 the Advocate abstain from dwelling upon mere 
 variances, and let the Judge as cautiously assure 
 himself, before he directs the Jury that the Advo- 
 cate is wrong ia his assertions, that the objections 
 that have been urged are not to discrepancies but 
 to differences. 
 
 We have already noticed the difiiculty some- 
 times experienced by an Advocate, and especially 
 by the beginner, from the impatience of the Judge 
 at repetitions of the same questions. Too often he 
 
 is met with the remark, "Mr. , you have 
 
 asked that question before," or " The witness has 
 already told you." This is doubly disagreeable, 
 for besides putting you on ill terms with the Court, 
 
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412 THE ADVOCATE. 
 
 it disturbs your plans, and sets the witness on his 
 guard. There is nothing of which the Bench is so 
 little tolerant as of the repetition of the same 
 questions, and yet there are few more effective 
 methods of detecting a falsehood. The witness 
 answers. You note his answer. You pass away 
 to some distant part of the story, or some foreign 
 transaction. You then suddenly return, when 
 his thoughts have been otherwise engaged, when 
 probably he has forgotten his first answer, if it 
 was false, and you obtain a different one, which 
 instantly betrays him. Often have we seen wit- 
 nesses, who were proof against all other tests, fail 
 before this one. When your design is distinctly 
 this, and not merely a vague, purposeless interro- 
 gation, proceed respectfully, but firmly, to show 
 that you have a meaning, and your aims will soon 
 come to be understood and respected by the Court. 
 Be careful to avoid contracting a habit into which 
 an Advocate is liable to lapse if he does not keep 
 guard over himself at the beginning of his practice. 
 Do not indulge too much in adjurations to wit- 
 nesses to speak the truth, reminding them con- 
 tinually that they are on their oaths, as " Now, sir, 
 upon your solemn oath ;" "Remember you are upon 
 your oath, and take care what you say;" and such 
 like. If frequently introduced, they lose their force 
 by repetition. They are very effective when judi- 
 ciously employed and uttered with due solemnity 
 of tone and manner, and on jit occasions ; but they 
 should not be put forward on every slight pretence, 
 to frighten an honest, as to awe a dishonest, witness. 
 
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CROSS-EXAMINATION. 413 
 
 Reserve such an appeal for times when it may be 
 used with effect, because with obvious propriety. 
 When you believe that a witness is tampering with 
 his conscience, you may sometimes successfully 
 prevent the contemplated perjury by a solemn 
 appeal, and especially if you add to it an exhorta- 
 tion not to be hasty in his answer, but to think 
 before he speaks. The countenance, the tone of 
 the voice, the very attitude, should express the 
 language you utter. You may word it somewhat 
 after this fashion, " Remember, you have sworn to 
 teU the truth, and the whole truth. Now" — (put 
 the question, and add) — " think before you speak, 
 and answer me truly as you have called God to 
 witness your words." It is one of the faults 
 common, to young Advocates, that they make too 
 free an use of this appeal to witnesses, wasting its 
 worth by familiarity ; hence, as with all familiar 
 things, the tone and manner that gave it power 
 are lost, and failure is the result. 
 
 Sometimes it happens that a witness will not 
 answer. He does not choose to know. He vnll 
 not remember. He is obstinately ignorant. You 
 are aware that he could tell you a great deal, if he 
 pleased, but he has reasons for forgetting. Such a 
 witness wiU task your skill and patience. To 
 conquer him you wiU need as much of patience as 
 of art. The first rule is to keep your temper ; the 
 second, to be as resolute as himself ; the third, to 
 discover his weak place : every person has some 
 weak point, through which he is accessible. If 
 you betray the slightest want of temper, the witness 
 
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414 THE ADVOCATE. 
 
 will have the advantage of you, for you will enlist 
 his pride in defence of his determination. If you 
 show him that you are resolved to have an answer, 
 you will shake him by the influence which the 
 strong Will always obtains over the weaker one, 
 and by that wonderful power which persistency 
 never fails to exercise. To find out his weaknesses, 
 you must peruse his character by the art which, it 
 is assumed, you have cultivated, or you would not 
 have adventured in the lottery of such a Profession 
 as that of an Advocate — the art of reading the mind in 
 the face. If you have a doubt, a few questions will 
 prove him. Then work him accordingly. The 
 surest method is to be smiling and jocose. Many 
 a man, who will withstand unmoved a tor- 
 rent of abuse, or rather become more obstinate 
 under its influence, will surrender to a smiHng 
 face and a good-humoured joke. If these fail, 
 there remains yet another resource, more difficult 
 of appliance, and demanding the most consummate 
 mastery of the art of cross-examination. You 
 must now approach him by stratagem. Your 
 object is to procure from him an admission of so 
 much that he cannot help telling the whole. The 
 difficulty of this consists in the extreme caution 
 required to approach him, so that your object shall 
 not be perceptible ; so to frame your questions 
 that he shall not see the connection between the 
 answer he is about to give and the confession you 
 desire to extract from him. In appearance, the 
 questions must be dissevered from the immediate 
 subject sought, but, in fact, they must be associated 
 
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CROSS-EXAMINATION. 415 
 
 with it. The approach must be so gradually made 
 as not to excite suspicion; and perhaps it is well 
 to open with something quite foreign to the 
 subject-matter. Having obtained an answer, you 
 put another query that appears naturally to follow 
 from the former, and so on, until you link with 
 the question something that is associated with the 
 matter sought for. It is not easy for a witness 
 to discover the links of such a chain, and he is 
 sure to make some admissions that negative his 
 alleged ignorance of the transaction, and compel 
 him, having yielded so much, to surrender, the 
 whole. 
 
 Taking, then, this maxim for your guidance 
 that, whatever sophistry may suggest to the con- 
 trary, you have no right to attempt to discredit a 
 witness by perplexing him into contradictions, 
 unless you entertain the strongest suspicion that 
 he is not telling the truth, or the whole truth, let 
 us now proceed to consider what kind of contra- 
 diction is requisite to such a conclusion, for upon 
 this there is evidently much misunderstanding 
 among inexperienced Advocates. 
 
 Remember, that your object is to convince the 
 Judge and Jury that the witness is unworthy of 
 credit. In answer to the questions of his own 
 Counsel in the examination-in-chief, he has told 
 an apparently straightforward and consistent story^ 
 He could scarcely do otherwise. He had previously 
 made his statement to the Attorney; it had been 
 taken down and read to him, perhaps more than 
 once ; he has had leisure to supply whatever was 
 
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416 THE ADVOCATE. 
 
 defective, or to clear up whatever was obscure. 
 His cautious Counsel has also employed his in- 
 genuity in the avoidance of any questions that 
 might mar the completeness of the narrative. If 
 you reasonably suspect that the story is forged, 
 or coloured, or only partially told, it wiU be your 
 duty to discover and display its defects. If you 
 believe it to be a falsehood or a misrepresentation, 
 it will be your endeavour to make him contradict 
 himself. K you believe that there is a suppressio 
 veri, your ingenuity wiU be exerted to extract the 
 truth that had been withheld. 
 
 Beware that you fall not into the fatdt, only too 
 common with the inexperienced, of seizing with 
 eager triumph upon small and unimportant discre- 
 pancies. Every man's experience teaches him that 
 there are few who can tell the same story twice in 
 precisely the same way, but they will add or omit 
 something, and even vary in the description of 
 minute particulars. Indeed, so well known is this, 
 that a verbatim recital of the same tale by a witness 
 is usually taken as satisfactory proof that he is 
 repeating a lesson he has learned, and not nar- 
 rating facts he has seen. To be of any value to 
 you for the purpose of discrediting his testimony, 
 the contradiction must be on some material parti- 
 cular, or some incidents connected with it which, 
 according to common experience, a man is not 
 likely to have observed so slightly that, in the 
 course of ten minutes, he would give two different 
 descriptions of it. In this, as in all matters of an 
 Advocate's duty, remember that you are dealing 
 
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CROSS-EXAMINATION. 417 
 
 with a Jury composed of men of common sense and 
 experience in life, who cannot understand refined 
 distinctions, and have no respect for petty artifices 
 and small triumphs over a witness's self-possession 
 or memory, and that you will not win their verdict 
 unless by your cross-examination you show that 
 the witness is not puzzled, but lying. Yet how 
 often may this error be seen in our courts, and 
 verdicts lost by the very cunning that was pluming 
 itself upon its ingenuity. 
 
 When a witness, upon his examination-in-chief, 
 anticipates the Counsel, and, instead of waiting to 
 be questioned, or after two or three questions have 
 been, put to him, proceeds to tell his whole story, 
 and, as is often seen, will go on in spite of every 
 effort made to stop him, you should observe him 
 closely, to ascertain from his manner whether he is 
 telling the truth, or merely repeating a lesson 
 learned by heart. It is wrong to suppose, as some do, 
 that when a witness thus dispenses with questions 
 and pours out his whole story in a continuous 
 stream, he is therefore always lying. It is not so. 
 There are many minds in which the association of 
 ideas is so fragile that, if the thread is once snapped, 
 they cannot, without great difficulty, take it up 
 again at the place where it was broken ; they 
 must begin at the beginning and go right through 
 every incident as it occurred, however trivial or 
 irrelative to the main story; conscious of this 
 defect, and once set a-going, they have an irresis- 
 tible impulse to proceed without pause until they 
 have delivered themselves of all they have to say. 
 
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418 THE ADVOCATE. 
 
 Such a witness, it is obvious, is not only not to be 
 c?^■scredited, but his testimony is really of more 
 worth than that of a more passive witness, because 
 the very structure of mind that prevents him from 
 taking up the thread of a story at any point, and 
 the memory that can only be revived by the 
 recalling of every circumstance in the precise order 
 of its occurrence, forbids the introduction of fic- 
 tions, which would necessarily destroy the entire 
 chain and plunge his mind into chaos. 
 
 Your care wiU be to distinguish between the 
 witness who from this cause runs through his 
 story, and the witness who does so because he is 
 repeating a lesson learned by rote. Close observa- 
 tion will enable you to discover a difference in 
 the look, the tone, the manner and the language. 
 When relating what he has seen, there is always an 
 aspect of intelligence, even in the dullest; the eye 
 kindles, the face brightens, the expression changes 
 with the incidents narrated. Still more does the 
 tone of the voice reveal the speaker's truth; its 
 changes are dramatic ; it varies with every emotion 
 that flashes across the mind, awakened by the 
 recalling of the incidents described. The manner 
 is usually eager and energetic and in strict accor- 
 dance with the tones, the aspect, and the theme. 
 And even if these signs should be wanting you 
 must not, therefore, decide against the veracity of 
 the witness, until you have considered his language. 
 If he is honest, his language will always be such as 
 is consistent with his condition of life — appropriate 
 to age, sex, education and calling. Moreover, it 
 
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CROSS-EXAMINATION. 419 
 
 will exhibit that fitness for the subject, without 
 reference to structure of sentences, which always 
 distinguishes extempore narrative. If these charac- 
 teristics, or either of them, be present, you may 
 safely assume that the witness is telling the truth, 
 but that he is only able to do so after his own fashion 
 of a continuous story, and cannot recall it by scraps, 
 under interrogation. 
 
 If, on the other hand, he is repeating by rote a 
 lesson which he has committed to memory, you 
 wiU find wanting in him all or most of the signs 
 of truth above described. He stands quite stiU, 
 excepting, it may be, an uneasy motion of the 
 hands or feet. His face has no meaning in it. His 
 eyes are fixed, not upon the Counsel, the Judge, or 
 the Jury, but upon the wall, or more commonly 
 turned upwards, with a sort of vacant stare. Hia 
 voice is monotonous and expresses no emotion. 
 His delivery is rapid, unless when seized by a 
 sudden forgetfulness, when he makes a fuU stop, or, 
 after stumbling a little, tries back again, in hope to 
 regain the lost word or thought. His language, 
 also, is almost always ^appropriate to his position, 
 for in such case it would seldom be his own com- 
 position that he has learned, but something which 
 another has put into words, and which words would 
 not be those of the pupil, but of the master. A 
 single expression will often suffice to betray to you 
 this sort of taught testimony yyThen it is one which 
 you know that such a person as the witness would 
 not have used, and perhaps there is no test so 
 difficult to evade, and so conclusive where it pre- 
 
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420 THE ADVOCATE. 
 
 vails, as this of language. The reason is plain. 
 A witness learns his lesson thus. He tells what 
 he knows to the Attorney, or his Clerk. If they 
 be of the unscrupulous class, which has happily 
 become so rare, the witness is informed that his 
 evidence is of no use, but that if he had known so 
 and so he would have been taken to the Assizes. 
 The hint suffices. The memory is racked again, 
 and the testimony desired is then found. It is 
 taken down in writing. His entire story is put 
 into formal shape ; it is read over to him again and 
 again, until he has it almost by heart. He learns, 
 not merely the facts he is to prove, but the very 
 words in which those facts are narrated in the 
 brief, and he repeats them as he has learned them. 
 
 Having thus satisfied yourself of the fact that he 
 is lying, you may, in your cross-examination, avail 
 yourself of it to discredit the witness with the 
 Jury ; but, unless so satisfied, you ought not so 
 to attack him. 
 
 Your attack may be most successfully conducted 
 thus. Without previous questioning, come at once 
 to the point, and ask him to repeat his account of 
 the transaction. He will do so in almost the self- 
 same words, with the same aspect and manner, and 
 in the same tone, differing palpably from his 
 bearing and tone and language before and after the 
 episode. So certain is this test that, if it fails, you 
 may fairly give to the witness the benefit of the 
 doubt, and say that, whatever other objections may 
 be ofiered to his testimony, it is not a story learned 
 and repeated by rote. 
 
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CBOSS-EXAMINATION. 421 
 
 The recent alteration in the Law of Evidence, 
 not only permitting, but compelling, the examina- 
 tion of the parties to a suit, calls for some observa- 
 tions before we conclude the subject of cross- 
 examination, for it wiU probably require of the 
 Advocate a special direction of his faculties. 
 
 This wise measure was for a long time success- 
 fully resisted, on the plea that, so great was the 
 interest of parties, and such, therefore, the tempta- 
 tion to falsehood, no reliance could be placed upon 
 their testimony. To this the answer was, that 
 the security of Judges and Juries in the reception 
 of evidence is not so much dependent on the oath 
 taken by the witness to speak the truth, as upon 
 the sifting to which the evidence is subjected by 
 cross-examiaation ; that it is unjust to exclude 
 all parties to suits, because some might not be 
 trustworthy, and that the same persons who were 
 deemed competent to try the value of all other 
 testimony were equally competent to try that of the 
 parties, whom, because of their interest, they would 
 necessarily watch with the greater strictness, and 
 receive with the more caution. 
 
 This argument at length prevailed, and the wit- 
 ness-box is now open to all, leaving it to the sagacity 
 of Counsel and the discretion of the Court to 
 determine, from the demeanour of the witness, the 
 intrinsic probability of his story, the manner in 
 which he endures a cross-examination, and the 
 other tests by which truth is distinguished from 
 falsehood, whether he is worthy of credit, and to 
 what extent. Thus will a new duty devolve upon 
 
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422 THE ADVOCATE. 
 
 the Advocate for the future in the examination and 
 cross-examination of the parties. 
 
 In the examination-in-chief you will require to 
 observe no difference of conduct towards a party 
 and another witness, excepting, perhaps, a little 
 care to rein him in if he should appear to be too 
 eager, or inclined to pass the strict boundary of 
 truth. But, in cross-examination, you must take 
 into your account the fact that he has a strong bias 
 of interest which may tempt him to tell a deliberate 
 lie, but which is much more likely to colour his 
 impressions, and produce 5e^-deception, so that he 
 may have the most confident belief in the truth of 
 that which he is stating, and yet it may be false in 
 fact. Therefore, in almost all cases where a party 
 to the suit is a witness, it will be your duty to 
 subject him to the most rigid cross-examination, 
 for the purpose of testing his accuracy. The 
 manner of doing this will be somewhat diflferent 
 from that which has been suggested as applicable 
 to other classes of witnesses. 
 
 You may assume the existence of a strong pre- 
 judice and bias, but not, therefore, necessarily of an 
 intention to deceive. Great caution will conse- 
 quently be required in dealing with him. You 
 will have occasion to employ by turns all the tests 
 of truth that have been already described. You 
 will soon discover, from the manner of the witness, 
 if he means well, if he is scrupulous, or if he is 
 blinded by his feelings, or deliberately determined, 
 at any cost of veracity, to advance his own cause. 
 His countenance, his tone, his manner of answering 
 
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CROSS-EXAMINATION. 423 
 
 the questions put to him, will sufficiently reveal his 
 character. 
 
 If he is manifestly desirous of speaking the 
 truth, your course is clear. Let him see that such 
 is your opinion of him. Encourage his honest 
 intents by frank acknowledgment. If the exami- 
 nation-in-chief has brought out only a portion 
 of the facts, it will be your business to supply 
 the deficiencies and elicit the whole story. No 
 ingenuity will be required for this with such a 
 witness. You may advance directly to your 
 object. He will give straightforward answers to 
 your questions, and the more plain they are, the 
 more ready and full will be his reply. But 
 remember that such a witness is the most dan- 
 gerous one to you. The same honesty which 
 enables you to obtain a ready answer to your 
 questions, and to elicit every circumstance con- 
 nected with the transaction, wiU carry conviction 
 to the Jury also, and his testimony will be received 
 with unhesitating confidence. If, therefore, you 
 do not expect to obtain fi-om him some facts or 
 explanations which may weaken the case on the 
 other side, it wUl be more prudent not to cross- 
 examine him at all, or only to put a few questions 
 that have no bearing on the case, merely that you 
 may not appear to have abandoned your cause. 
 The more truthful he is, the more likely it is that 
 every answer you will obtain will make his case 
 the stronger, and damage you more and more. 
 Before you begin your cross-examination, ascertain 
 from your Attorney if there is really any probability 
 
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424 THE ADVOCATE. 
 
 of explaming away the facts proved by the witness. 
 If that is hopeless, your wisest course will be 
 to take the chance of omissions in the examination- 
 in-chief, which are always more or less to be found, 
 by reason of the fear which a cautious counsel has 
 of putting questions that may elicit unfavourable 
 replies, and so to trust to your ingenuity to make 
 the most of them in your address to the Jury. At 
 all events, a cross-examination is more likely to 
 injure than to help you. 
 
 But if you see that the witness is biassed by his 
 feelings and interest^ you must approach him after 
 another fashion. Your ingenuity will now be 
 called into play. You must employ some artifice. 
 Direct questions will not suffice. You must 
 approach him with caution, and indirectly. Begin 
 by giving him credit for good intentions. Do 
 not appear to mistrust him. Flatter him even 
 with the assurance that you believe he desires to 
 teU the whole truth. It is a great point to have 
 him well pleased with himself, for your purpose is, 
 not only to unveil him to others, but to strip from 
 his own eyes the veil of se(/'-deception, so that his 
 vanity will be enlisted against you, and it wiU be 
 prudent to start with conciliating as much as 
 possible that formidable antagonist to the Advocate. 
 Remind him, by your first question, that he is a 
 party to the cause, and has the strongest interest 
 in the result. This will operate as a useful caution. 
 Follow it with the assurance of your own confi- 
 dence that, in spite of this bias, he desires to tell 
 the whole truth; but, although he has no intent 
 
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CROSS-EXAMINATION. 425 
 
 to deceive, the truth is not as he has stated; 
 blinded by his feelings or his interest, he has seen 
 it only partially, or distorted, or falsely coloured. 
 Your duty is either to elicit the very truth as it 
 was, or to show that, being thus self-deceived, his 
 testimony is not to be relied upon. How may you 
 best do this? 
 
 Remember the position of the witness. He has 
 impressions upon his mind which he believes to be 
 true. He, therefore, unhesitatingly swears to them 
 as facts. It is obvious that direct questioning wiU 
 fail to disturb them, for to a mere repetition of the 
 question as to what he saw or heard, the same 
 answer as before wUl be as promptly and distinctly 
 given. Again he tells you what was his impres- 
 sion of the fact, and it is all that he can tell you ; 
 it is all, in truth, which any of us can tell, for, with 
 every man, knowledge is only of the impressions of 
 his own mind, and not of the very fact itself, which 
 may present itself to many minds in many different 
 aspects. The only means, then, of shaking such 
 testimony is to show it to be inconsistent with other 
 facts, or with those strong probabilities arising out 
 of the usual order of things, the ready perception 
 of which constitutes what is called common sense. 
 It is in eliciting this inconsistency, either with the 
 rest of the story, or with the common sense of 
 mankind, of which a Jury is generally a pretty fair 
 representative, that the skill and ingenuity, aided by 
 the experience, of an Advocate is demanded. Many 
 hints for this purpose have been already given, 
 which are no less applicable to the case now under 
 
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426 THE ADVOCATE. 
 
 consideration, and to whicli the reader is again 
 referred for instructions as to the best manner of 
 attaining the object now sought. There is no 
 difference in this respect in the cross-examination 
 of a witness having the interest of a party, and 
 that of a witness biassed by any other interest. In 
 all, the process will be the same ; to approach them 
 by indirect, and not by direct, questions, and to 
 employ all your efforts to elicit contradictions and 
 inconsistencies between the facts positively asserted 
 by the witness and other undoubted facts, or between 
 his testimony and probability and common sense, 
 from which you may, in argument to the Jury, 
 successfully show that no reliance can be placed 
 upon the evidence, not because the witness has 
 been guilty of perjury, or intends to deceive, but 
 because he has fallen into the error, to which the 
 very best of us is liable, — of having our senses and 
 our memory imposed upon by our interest, our 
 wishes and our feelings. And this is a line of 
 argument which rarely fails to carry with it the 
 convictions of the Jury, and the approval of the 
 Judge, because it is in accordance with their expe- 
 rience, and is infinitely more effective than the more 
 frequent one, which imputes every mistake or mis- 
 statement to deliberate perjury. 
 
 It would be but an impertinent repetition of that 
 which has been already minutely examined to detail 
 here how you may obtain from a biassed witness 
 satisfactory proof of the distortion of his mind by 
 reason of that bias. The present purpose is only 
 to suggest so much of the new duties of an Advocate 
 
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CEOSS-EXAMINATION. 427 
 
 as would appear to be imposed upon him by reason 
 of the new law that places the parties to a suit in 
 the witness-box. 
 
 "When a party to the suit is, under the provi- 
 sions of the new statute, called as a witness, and 
 from his manner of answering the questions put to 
 him by his own Counsel, you have just cause to 
 suspect that he has placed himself in the box with 
 premeditated purpose • to make out his own case at 
 any sacrifice of truth, your first duty in dealing 
 with him will be to assure yourself that your sus- 
 picions are well founded ; for, unless you are really 
 convinced of this, you will have no right to charge 
 him with perjury, or to conduct your cross-exami- 
 nation as if you believed him to be lying. The 
 best mode of trying him will be to put to him some " 
 plain question bearing directly upon the case, the 
 answer to which, if truly given, will tell against 
 him, and which, if falsely given, he must know to 
 be false. Your ingenuity will, without difiiculty, 
 discover in your brief some facts contradictory of 
 his statements, which wiU serve for this purpose, 
 and, if he denies those facts, as in consistency with 
 his own story he must, you will know that he is 
 wilfully lying and will proceed to deal with him 
 accordingly. 
 
 Already, in an earlier part of this chapter, we 
 have endeavoured to show how the cross-examina- 
 tion of a perjured witness may be conducted so as 
 to make his perjury apparent to the Jury. In 
 dealing with a party to the suit you will have this 
 further advantage, that the Jury will be more 
 
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428 THE ADVOCATE. 
 
 inclined to look with suspicion upon his testimony, 
 will watch it with more strictness, and subject it 
 to a severer scrutiny, than would be given to the 
 evidence of an unbiassed witness. Now there is 
 but one method of defeating falsehood in the 
 witness-box, and that is by involving it in a maze 
 of contradictions, which it is almost impossible for 
 the most skilful liar to avoid, because the quickest 
 mind cannot in a moment calculate the eiFect of 
 its present answer upon the past, or anticipate the 
 bearing of the reply it is about to give upon the 
 questions that are to foUow. Hence it is that 
 cross-examination has been always deemed the 
 surest test of truth, and a better security than the 
 oath. 
 
 The witness has already echoed the questions of 
 his own Counsel, and proved his own case, and 
 being weU prepared with that, he will of course 
 repeat the lesson he has learned, without alteration 
 or hesitation, and the more positively the more 
 you press him; therefore it is a waste of time and 
 helping him more than yourself to repeat those 
 selfsame questions. Yet how often is this done by 
 Advocates not wanting in experience, and it is the 
 almost universal fault of beginners. With a sHght 
 alteration of phrase and an attempt to be stem in 
 tone and eye, they persist in repeating the very 
 question which the witness has already distinctly 
 answered. " Do you mean to tell the Jury upon 
 your oath that you heard him say so?" "Will 
 yoa swear you saw Smith strike him?" and such 
 like; to which the answer is, "I have said so 
 
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CEOSS-EXAMINATION. 429 
 
 already." " I have sworn it." No other answer 
 could be expected. The witness had come pre- 
 pared to prove these very facts, and it is not likely 
 that he would forget them so soon; and, although 
 false, having once sworn to them he could not do 
 otherwise than swear to them again, however fre- 
 quently the question may be repeated. This manner 
 of proceeding is, therefore, worse than worthless, 
 and you will at once direct your efforts to the 
 eliciting of contradictions — by which we do not 
 mean trifling differences of phrase, or discrepancies 
 in small matters, which the witness is not hkely 
 to have observed very accurately, and on which, 
 therefore, his story might vary upon every repeti- 
 tion, without any intentional falsehood or any 
 substantial error, but downright unquestionable 
 contradictions of statement, so obvious that the 
 witness could not have believed both to be true. 
 If he is lying, no presence of mind or ingemiity 
 wiU enable him to escape from your pursuit, pro- 
 vided you conduct it with proper skill, giving him 
 no time for reflection, and so engaging his attention 
 that he shall not have leisure to digest his answers, 
 or to see how they square with the story he has 
 already told. 
 
 The principle of this manner of cross-examination 
 is, that truth is always consistent with itself. If 
 the witness is telling the truth, his answers wiU be 
 in substantial accordance with the story he has 
 already told, and with any questions that may be 
 put to him. He has no need to consider their 
 bearing, and therefore his reply is as prompt as 
 
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430 THE ADVOCATE. 
 
 memory. On the contrary, the witness who is 
 telling a false story cannot so construct it that it 
 shall be consistent — not merely in itself, for that is 
 not difficult, — but with other associated circum- 
 stances which it is impossible to anticipate. 
 
 Hence it is that you must try him by questions 
 on matters which only bear indirectly upon the 
 point at issue. As, for instance, if he have sworn 
 that, on a certain day a certain person made to him 
 a certain statement. You cannot directly shake 
 the fact ikus sworn to, for the witness has but to 
 adhere to his assertion and he will baffle any 
 amount of direct interrogation. But it is not at 
 all likely that he has prepared himself with all the 
 accompanying particulars ; therefore you address 
 to him such as these. Where was the conversation 
 held ? At what time of the day ? Who was 
 present ? Were they sitting or standing ? How 
 did he come to the place ? Whom did he meet on 
 the way? How was he dressed — and the other 
 party ? Did they speak loud or low ? Did they 
 eat or drink together, and what ? Did anybody 
 come in while they were talking ? How long were 
 they together ? When they parted which way did 
 each take? Whom did he meet afterwards ? At what 
 time did he reach his home ? And so forth, as the 
 particular circumstances of the case may suggest, 
 but always, if possible, preferring facts spoken to 
 by other witnesses, so that you may expose him, 
 not only by his self-contradictions, but by the 
 testimony of others. When questions of this kind 
 are rapidly put, they deprive the false witness of 
 
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CROSS-EXAMINATION. 431 
 
 opportunity to fit them to his previous story. 
 You should also carefully avoid putting them in 
 any natural sequence of time or place, for that is to 
 suggest to him a story which he will invent quite 
 as rapidly as you can construct your questions. 
 Dislocate them as much as possible. Take now 
 one part of the story, then another. Dodge him 
 backwards and forwards, from one object to the 
 other, so that it shall be impossible for him to be 
 prepared by one question for the next, or that one 
 answer shall be the prompter of its successor. The 
 difficulty of doing this well is very great, and 
 therefore, perhaps, it is that it is so rarely seen to 
 be weU done ; but it is an accomplishment wanting 
 which the Advocate is not a master of his art, for 
 in none of his many duties is the consummate skill 
 of a great artist so usefuUy employed and so 
 signally shown as in the exposure by cross-exami- 
 nation of a lying witness, and this art wUl be more 
 in request than ever, now that all persons, whatever 
 their interest, are admitted to the witness-box, 
 and the law, instead of vainly attempting to deter- 
 mine credibility by an abstract rule, has wisely left 
 it to the discretion of the Court and the Jury, 
 under the protection of cross-examination, to 
 determiae in each particular instance whether the 
 individual witness is or is not worthy of credit. 
 
 But there is one kind of testimony which will 
 sometimes baffle your utmost skUl, and we name it 
 that you may be prepared for it when it comes, lest 
 it should throw you into an awkward perplexity. 
 It is the case of a witness who swears positively to 
 
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432 THE ADVOCATE. 
 
 some single fact, occurring when no other person 
 was present, or but one now dead or far distant, 
 and whom, therefore, it is impossible to contradict, 
 and equally difficult to involve in self-contradiction, 
 because all the circumstances may be true, except 
 the one which he has been called to prove. An 
 instance will make this more intelligible. In order 
 to prove a link in the chain of a pedigree, a witness 
 swears to a conversation with one of the family 
 now dead, in which an ancestor of the claimant 
 was alleged to have been recognised as a relative. 
 It is very probable that the witness did at some 
 time hold some conversation with the deceased in 
 the manner and place described. He has only 
 added to it the one false assertion that such a 
 statement was then made. Now it is obvious that 
 in this case all the usual methods of detecting 
 falsehood will fail. The witness can neither be 
 contradicted, nor will he contradict himself, for all 
 that he has told is true, save a few added words, 
 and you will not shake him by an examination as 
 to the circumstances, for they also would be truly 
 stated. Your difficulty is the greater, inasmuch 
 that, so far from aiding yourself by a protracted 
 and skilful cross-examination, you will be likely 
 only to damage yourself, for you wiU show him to 
 be perfectly truthful in all other parts of his story, 
 and therefore the Jury wiU be inclined the more 
 implicitly to credit him in that which most 
 materially affects you. In such a case, the most 
 baffling to the Advocate, the most difficult of any 
 that you will encounter in practice, there remains 
 
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CROSS-EXAMINATION. 433 
 
 for- you only an appeal to the Jury to look with 
 suspicion upon evidence so easily forged, so im- 
 possible to be disproved, and entreat them to try 
 its worth by its intrinsic probabilities, showing 
 them then, if you can, how improbable it is that 
 such a statement should have been so made, or 
 such a circumstance have occurred. 
 
 In concluding these remarks on cross-examina- 
 tion^ the rarest, the most useful, and the most 
 difficult to be acquired of the accomplishments of 
 the Advocate, we would again urge upon your 
 attention the importance of calm discretion. In 
 addressing a Jury, you may sometimes talk without 
 having anything to say, and no harm will come of 
 it. But, in cross-examination, every question that 
 does not advance your case injures it. If you have 
 not a definite object to attain, dismiss the witness 
 without a word. There are no harmless questions 
 here ; the most apparently unimportant may bring 
 destruction or victory. If the summit of the 
 orator's art has been rightly defined to consist in 
 knowing when to sit down^ that of an Advocate may 
 be described as knowing when to keep his seat. 
 Very little experience in our courts wUl teach you 
 this lesson, for every day will show to your 
 observant eye instances of self-destruction brought 
 about by imprudent cross-examinations. Fear not 
 that your discreet reserve will be mistaken for care- 
 lessness or want of self-reliance. The true motive 
 will soon be seen and approved. Your critics are 
 Lawyers, who know well the value of discretion in 
 an Advocate, and how indiscretion in cross- 
 
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434 THE ADVOCATE. 
 
 examination cannot be compensated by any amount 
 of ability in other duties. The Attorneys are sure 
 to discover the prudence that governs your tongue. 
 Even if the wisdom of your abstinence be not 
 apparent at the moment, it will be recognised in 
 the result. Your fame may be of slower growth 
 than that of the talker, but it will be larger and 
 more enduring. The issue of a cause rarely 
 depends upon a speech, and is but seldom even 
 affected by it ; hut there is never a cause contested 
 the result of which is not mainly dependent upon the 
 skill with which the Advocate conducts his cross- 
 examination. 
 
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XXXV. 
 
 RE-EXAMINATION. 
 
 The cross-examination being closed, the duty of 
 Re-examination devolves upon the Counsel on the 
 other side. It is usually undertaken by the Leader, 
 even although the examination-in-chief had been 
 conducted by the Junior, probably because it is 
 supposed to require the skill and caution which only 
 experience can teach. You will remember that 
 cross-examination is, in like manner and for the 
 same reason, conducted by the Leader as a matter 
 of course, unless, as sometimes is the case, when the 
 witness is unimportant, or he has great confidence 
 in his Junior's ability and prudence, he requests you 
 to undertake the task. Then, and only then, have 
 you an opportunity of practising the lessons you 
 may have learned. 
 
 It will be necessary for you to bear in mind what 
 is the purpose of re-examination, that you may 
 avoid the offence of trespassing beyond the limits 
 
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436 THE ADVQCATE. 
 
 assigned to it, and so exposing yourself to a rebuke 
 from the Judge. Remember, then, that the object 
 of re-examination is simply to obtain from the 
 witness an explanation of that which he had said 
 in cross-examination. The necessity for giving to 
 a witness such an opportunity proceeds from the 
 system adopted in our courts of eliciting evidence 
 by means of questions. A witness does not tell 
 his story without interruption, as is the practice in 
 most of the law courts on the continent, but he is 
 required to answer the questions of Counsel, and 
 seldom permitted to do more, or to accompany his 
 answer with an explanation. A skilful Advocate, 
 in his cross-examination, avails himself of this to 
 obtain such answers only as suit his purpose, 
 excluding the explanations that might give them 
 another meaning. It is the duty of the Advocate 
 on the other side to note such replies, and on re- 
 examination to give to his witness the opportunity 
 for explanation denied to him before. Hence the 
 necessity for keeping a very observant eye upon 
 your witness while he is under cross-examuaation, 
 so that you may discover any desire he may exhibit 
 to give an explanation of an answer, or to add 
 something that might modify its apparent import. 
 Be especially careful to note all such upon your 
 brief; also any answers that appear to be damaging, 
 so that, when you come to re-examine, you may 
 not leave any one unexplained, and that they may 
 the more readily catch the eye, set them down 
 separately, one under the other, marking the most 
 important of them with a cross in the margin, that 
 
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EE-EXAMINATION. 437 
 
 the glance may fall upon it in a moment. A little 
 experience will teach you by what signs your witness 
 will indicate that he can explain what he has said. 
 Usually he hastens to add something to his answer, 
 but sometimes he does not immediately perceive the 
 use to which his reply might be put, or he expects 
 that it will be followed by other questions that wiU 
 enable him to explain ; in such case the disappoint- 
 ment is sure to be shown as soon as he finds himself 
 entrapped. If the witness is unconscious of his 
 position, it will be for you to endeavour to remedy 
 the mischief that has been done by rapidly reviewing 
 your instructions and the facts, so far as the evidence 
 has proceeded, to see if they will aiSford materials to 
 justify you in the dangerous duty of trying if the 
 witness can explain away what he has said. 
 
 Your notes of the cross-examination before you, 
 the work commences. It is a rule that you shall 
 strictly confine yourself to matters that have been 
 mooted in the cross-examination. You are not 
 permitted to go into new matter. This is the only 
 restriction, for, if the subject has been touched upon, 
 however slightly, by your adversary, you are entitled 
 to go fuUy into it, and hence it is that a skilful 
 Advocate is commonly enabled to make such good 
 use of the opportunity, for a cross-examination 
 rarely omits to deal more or less with all the most 
 important portions of a witness's testimony. Re- 
 member that he is your own witness, and therefore 
 to be dealt with tenderly ; his answers will be willing 
 and prompt ; you will need no art to procure them. 
 Your caution will rather be required in the way of 
 
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438 THE ADVOCATE, 
 
 restraint. Great care must be taken, lest you seek 
 explanations where none can be given, for thus you 
 would certainly do yourself an injury by recalling 
 the damaging answer and making it doubly impres- 
 sive by reiteration. 
 
 Nor is this caution aU that is requisite. Without 
 trespassing beyond the limits of the rule, a skilful 
 use of the opportunities sure to be offered by the 
 cross-examination will enable you to elicit a repeti- 
 tion of the most important parts of the evidence in 
 chief, and so, by recalling them to the attention of 
 the Jury, not only to revive the impression made 
 by them, but to operate as a set-off against what- 
 ever of an unfavourable character may have been 
 extracted by the cross-examination. 
 
 All this appears easy enough in the description ; 
 but it is very difficult in the practice. Before you 
 have sat in the courts many days, you will discover 
 the vast difference between different Advocates in 
 the ability with which they conduct a re-examina- 
 tion. Sometimes you will see a witness, who has 
 been apparently destroyed by a cross-examination, 
 triumphantly set up again by the admirable skill 
 with which he is re-examined, — every weak point 
 strengthened, every contradiction explained away, 
 every doubt removed, and his original story repeated 
 with confirmations. On the other hand, when 
 undertaken by an inefficient Advocate, you wiU 
 observe how bad is often made worse by injudicious 
 attempts to mend it, and that which had been left 
 in doubt by his adversary converted into a defeat. 
 The difference will be found to consist mainly in 
 
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RE-EXAMINATION. 439 
 
 that discretion which enables the Advocate to 
 advance his questions to the precise point at which 
 the answers will be innocuous, and avoiding such 
 as are not touched upon in the cross-examination, 
 so moulding his queries that they shall, while 
 adhering strictly to the rules, necessarily bring out 
 those leading points in his own case which he is 
 desirous of repeating. 
 
 Remember, then, that the business of re-exami- 
 nation is the restoration of your witness to the 
 confidence of himself and of the jury. It frequently 
 occurs that a witness has been terrified and confused 
 by the cross-examination, even to the loss of 
 memory, or, which is even more dangerous, to the 
 producing in him of an aspect and manner that 
 might be mistaken for conscious guilt. If, there- 
 fore, you detect in him any signs of dissatisfaction 
 with himself, your first care will be to revive his 
 self-possession. To him who is sincerely desirous 
 of telling the truth, no position is more painful than 
 that into which he is sometimes betrayed by seeming 
 contradictions, elicited in the course of an ingenious 
 cross-examination, producing upon the audience th( 
 visible impression that he has been lying. In sucls 
 circumstances it is difficult to be discreet and to 
 preserve the temper unruffled. Let your first care 
 be given to this. The witness burns for an oppor- 
 tunity to explain himself; it will be yours to give 
 it to him, but not in the hasty manner in which his 
 feelings prompt him to deliver it, but in fit season 
 and form, as suits your discreeter purpose. Prevent 
 this natural outburst by questions that will show 
 
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440 THE ADVOCATE. 
 
 yonr sympathy and assure him of your aid to set 
 him right. Soothe his irritation by your words, 
 and aspect, and by tones that are more powerful 
 to soothe than words. When he is restored to 
 himself, take him quietly through his story, in the 
 order in which you have noted upon your brief the 
 questionable points of his cross-examination. Bring 
 out, as far as you can, the strong points of his testi- 
 mony, which had not been shaken, to remind the 
 Jury how much, after all, remained intact. When 
 you come to some doubtful matter, on which the 
 cross-examination had damaged you, extract fi-om 
 the witness an explanation of it, if he can ; if he 
 cannot satisfactorily explain it, pass it by, for a 
 failure to effect this object serves only to give it a 
 double importance in the estimation of the court. 
 Here it is that aU your sagacity is called into play. 
 It happens frequently that your brief gives you no 
 information on the new point started, and the 
 Attorney who sits behind you cannot help you : it 
 is as new to him as to yourself Failing help from 
 these sources, you will seek to form a judgment 
 from the manner of the witness, whether the fact 
 is as it appears, or if he can give any explanation 
 of it. If, when questioned upon it, he showed signs 
 of annoyance and an eager desire to say something 
 more about it, you may conclude that he can explain 
 and safely call upon him to do so. If this symptom 
 is absent, then your sagacity will be exercised in a 
 review of the internal probability or otherwise of 
 the matter itself If any improbability appears, 
 you may try with extremest caution to approach 
 
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RE-EXAMINATION. 441 
 
 the topic, so as to afford to your witness an oppor- 
 tunity of clearing himself, if he can, but so tenderly 
 that you may retreat unharmed should you find 
 that you are treading on dangerous ground. Wanting 
 all these encouragements, you will prove your dis- 
 cretion by passing it unnoticed. Here again we 
 reiterate the caution, so often repeated to you 
 already — never to put a question to a witness 
 without an aim, nor unless you expect to derive 
 some positive advantage from it. It is wiser to 
 leave a bad matter untouched than to notice it, 
 unless you are sure that you can make it better. 
 If you cannot do good, you are almost certain to 
 do harm. More of the Advocate's art is shown in 
 silence than in speaking. 
 
 In other respects, the instructions for the exami- 
 nation-in-chief will be applicable equally to re- 
 examination. 
 
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XXXVI. 
 
 THE DEFENCE. 
 
 The PlaintiiF's case being closed, that of the Defen- 
 dant begins. 
 
 You will open with an address to the Jury, in 
 which you comment upon the case, as disclosed by 
 the plaintiff, and state the case which you propose 
 to produce in answer to it. Herein does it differs 
 materially from the plaintiff's opening, for whereas 
 his Counsel properly confines himself to a lucid and 
 temperate statement of the facts, reserving com- 
 mentary for his reply, the Defendant's Counsel 
 must perform the double duty and combine the 
 spirit of a reply with the calmness and clearness 
 of an opening. It is his single opportunity for 
 addressing the Jury, and he must use it to travel 
 over the whole case, with comment, not only upon 
 that which has been proved, but also upon that 
 which yet remains to be proved, and which may or 
 may not answer to his anticipations. 
 
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THE DEFENCE. 443 
 
 Hence the dif&culty of a defence. It is usually- 
 said that a reply is the test of ability ; and so it is, 
 in debate. But the saying has been inconsiderately 
 extended to forensic oratory, in which the circum- 
 stances are very different. In debate, there is no 
 necessity for anticipating the production of facts, 
 which may not be proved after all, and dealing 
 with them as if proved. To answer the argument 
 on the other side, and urge his own reasons, are all 
 that devolves upon the debater. But, at the Bar, 
 the Counsel for the Defendant must do all that the 
 debater is required to do, with the additional 
 difficulty that he must state a case that will be 
 an answer, and yet must state it so that a failure 
 in proof of parts of it shall not be destructive to 
 the whole ; for one of the first lessons of experience 
 in Advocacy is the little reliance to be placed upon 
 instructions, not from any fault of the Attorney, 
 but because witnesses, from many motives, are 
 wont to make to the Attorney in his office a 
 statement very different from that which they will 
 venture, under the sanction of an oath, with a cross- 
 examination in prospect, and with the eyes of the 
 public upon them. 
 
 As a general rule it will be desirable to treat 
 your subject in its natural order, that is to say, in 
 the order in which it has been already presented to 
 the minds of the Jury, unless some special reasons 
 exist for dealing with it otherwise, some of which 
 wlU be suggested presently. Here, as on all 
 occasions in the exercise of his art, the Advocate 
 should remember that he is addressing minds of 
 
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444 THE ADVOCATE. 
 
 whom the majority are certainly inferior to his 
 own in capacity, in subtlety, in quickness of appre- 
 hension, in nimbleness of thought and reasoning 
 power — minds neither so well informed nor so 
 skUful. He must adapt his ideas to their percep- 
 tions, mould his words to their knowledge, so 
 present his thoughts to them that they may com- 
 prehend his meaning. The first condition of this 
 self-adaptation is to understand thoroughly how 
 such minds think. As this is the first occasion for 
 reference to the subject,. — for the opening speech 
 deals with the case as strange to the Jury, and, 
 therefore, the Advocate may follow almost his own 
 will in submitting it to them, whereas the speech for 
 the defence deals with a story already imparted to 
 the Jury, — it will be as weU to pause at this place 
 to give it consideration. 
 
 Memory is association. You recall one fact by 
 recalling some other that was connected with it. 
 The associations differ in different persons, — words 
 with some, places with others, sounds and sights 
 with many, being the readiest and surest media for 
 recollection. But there are few whose memories 
 will not be best revived by recalling events in 
 the order of their occurrence, or rather in the order 
 in which they were presented to them originally ; 
 with many it is the only form of memory. To 
 take up a story irregularly, a bit here and a bit 
 there, beginning in the middle of it, and skipping 
 about from part to part, without reference to this 
 natural order of the memory of your audience, 
 would be merely to throw all minds among them 
 
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THE DErENCE. 445 
 
 not as agile as your own into hopeless perplexity, 
 and disable them entirely from comprehending 
 your argument. The more probable eifect will be, 
 that, after shortly listening to you, and finding 
 only an unintelligible maze, they wiU abandon the 
 attempt altogether, and cease to hear, or at least 
 resign even an effort to follow you. Let such a 
 feeling once prevail, and your cause is lost, so far 
 as it depends upon your eloquence. 
 
 Bear, then, this in mind, when you rise to open 
 a defence at Nisi Prius, that you are about to 
 comment upon a story already known to the jury ; 
 that it is your business to convince them that this 
 story is not credible, by reason either of its own 
 intrinsic improbabilities, or of the insufficiency of 
 the testimony by which it was supported, or of the 
 little faith due to the witnesses, or of the contradic- 
 tions which you purpose to produce. In order to 
 remove the impressions made upon their minds by 
 that story, you must ask them to review it with 
 you, and to do this you must recall it to them; 
 and, as we have sought to show you, it can be best 
 recalled in the order in which it was imparted to them. 
 
 Then occurs another question, upon which there 
 is some difference of opinion even among ex< 
 perienced Advocates, namely, if it is more prudent 
 to recall the whole of your adversary's case, its 
 strongest as weU as its weakest parts, that which 
 you cannot answer as well as that you can; 
 or, if it is wiser to pass over that which 
 tells against you, and to dwell exclusively on that 
 which you can meet. On the one hand it is said 
 
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446 THE ADVOCATE. 
 
 that, by reviewing the strong points, and leaving 
 them unassailed, you not only recall what may have 
 been unnoticed, but you give them double signifi- 
 cance by the confession of their strength implied 
 in the inability to answer them. On the other 
 hand, it is argued that, not to notice them at all is 
 to admit them to be both unanswerable and destruc- 
 tive, and thus to concede a victory. 
 
 This is a dilemma of such frequent occurrence 
 to the Advocate for the defence, that we should 
 have been very glad if we could have discovered 
 any rules for guidance in the choice. But we have- 
 endeavoured in vain to do so. Even after the 
 experiment has been made, and with reference to 
 the results of actual experience, we are unable to 
 say which course has the balance of reason or the 
 proofs of practice to recommend it. Much must 
 depend upon the particular circumstances of the 
 case, upon the impression apparently made upon 
 the Jury, upon the nature and worth of the answer 
 you are about to put in. If you have reason to 
 believe that the Jury did not see all the value of 
 the evidence you cannot disturb, it wUl obviously 
 be prudent not to give it additional importance in 
 their eyes by reviving it. But if the Jury do appear 
 to have been much impressed by it, and likely to 
 have their judgments swayed by it, you cannot 
 do harm by repeating it; on the contrary, by 
 linking it skilfully with the other portions of the 
 evidence, which you can answer, you may, to some 
 extent, shake its influence also : at all events, by 
 boldly meeting it and even putting it forward pro- 
 
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THE DEFENCE. 447 
 
 minently, making a virtue of the necessity, you 
 may not improbably obtain this advantage, that the 
 Jury will say, " These facts cannot be so important 
 as we thought, or the Counsel would not have so 
 talked about them." So infinitely small are the 
 reasons that sway verdicts, that even this sometimes 
 would give a chance, which would be annihilated 
 by the opposite remark — " He never said a word 
 about that, because he could not." 
 
 But whether you do or do not determine to recall 
 the whole case, a great deal of ingenuity may be 
 employed, and will be requisite, in dealing with the 
 evidence, so to treat it as to throw into shade the 
 stronger parts, and bring out prominently its weak- 
 nesses and deficiencies. 
 
 As a general rule, it will be the more prudent 
 course to begin with a review of the case as disclosed 
 by the plaintifi', and then to state your own ; but to 
 this there will be exceptions under special circum- 
 stances, some of which we will notice presently. 
 Take the story as it was told, not strictly observing 
 the order of witnesses, but rather the order of time. 
 A favourite and often very efiective opening of a 
 defence is an allusion to the highly-coloured asser- 
 tions of the Counsel for the plaintifi' as compared 
 with his proofs ; for seldom, indeed, does the sifted 
 evidence quite fulfil the promise of the opening. 
 Eeminding the Jury of this, you disturb their con- 
 fidence in the case already submitted to them, and 
 you conciliate their good will to give you, who 
 appear as an injured party, at least a fair hearing; 
 Then travel carefully through the case, restating it 
 
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448 THE ADVOCATE. 
 
 with your own comments, and according to your 
 own view of it, thus presenting it under a different 
 aspect to their minds. Take care that no weak 
 part in it escapes your notice. Point out its 
 shortcomings. Show not only the worthlessness of 
 what is proved, but how much more might and 
 should have been proved. Of nothing does a skilful 
 Advocate take more advantage than of omissions 
 of evidence, and nothing is more telling with a Jury 
 to the disadvantage of the party so complained of; 
 a motive for the withholding of the witness is 
 always, and not unreasonably, suspected, and of 
 that suspicion it is permissible to you to avail 
 yourself. Then you must show, if you can, that 
 the evidence upon which you are commenting does 
 not bear the construction intended to be put upon 
 it, or that it is inconsistent with itself, or with 
 other testimony, or that the witness is unworthy 
 of credit, or any other explanation of it that may 
 occur to you. 
 
 But observe that, in the performance of this 
 portion of your task, great caution will be neces- 
 sary on your part to proceed upon substantial 
 grounds, and only to put forward objections that 
 have some show of reason and good sense in them. 
 Criticism that is obviously frivolous wUl recoU 
 upon yourself and damage you much more than 
 your adversary. It is far better to leave the point 
 untouched than to handle it inefficiently, for you but 
 revive it in the memories of the Jury, and make it 
 appear to them doubly important by your vain and 
 weak endeavour to depreciate it. Remember this, 
 
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THE DEFENCE. 449 
 
 also, that juries do not understand very nice dis- 
 tinctions and refined arguments : they usually take 
 broad views of a case, and you should endeavour, 
 as much as possible, to meet it after their fashion, 
 looking at it broadly^ dealing with its most pro- 
 minent features, attacking obvious defects, and 
 treating it rather as a matter of common sense 
 than of subtlety. If you can thus deal with it, by 
 an appeal to their common sense, and it offers 
 material for you to make its insufficiency plain to 
 ordinary minds, be careful not to quit these, its 
 broad and obvious features, for those more refined 
 and deHcate distinctions and arguments, which are 
 intelligible only to an intellect as refined and 
 practised as your own in the discernment of minute 
 resemblances and differences. You will but divert 
 their attention from that which they do compre- 
 hend to that which they cannot^ and the advantage 
 you have gained by the one you will not impro- 
 bably lose by the other. The jury will perhaps 
 forget what you have done^ and remember only 
 what you failed to do ; the confusion of the latter 
 will dim in their minds the clear memory of the 
 former. 
 
 There is another very important rule to be 
 observed, especially where you are dealing with 
 a common jury, and that is, not to perplex them 
 with too many defences. Even if you have many 
 answers, it will be your truest policy to take the 
 strongest and best, and rely upon that, or, at 
 most, upon two or three, if they be very conclusive. 
 But let it be an inflexible rule with you never to 
 
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450 THE ADVOCATE. 
 
 attempt to back up a strong and palpable answer 
 with weak and subtle ones. Once in a thousand 
 times you may lose a cause by omitting to bring 
 forward some other weak defence, after having 
 thrown yourself upon your strong one; but for 
 once that this is likely to happen, you will twenty 
 times lose the verdict your strong defence would 
 have secured, had you not weakened it by tacking 
 to it some other more refined and, therefore, less 
 intelligible one, thus, instead of imparting strength 
 to the latter, infecting the former with its own 
 weakness. 
 
 The art of a defence consists in battering down 
 your adversary's case and erecting your own upon 
 its ruins. This shows you the proper order of 
 your strategy. You must first attack the case on 
 the other side, and shake it to its foundations, 
 before you attempt to lay the foundations of your 
 own. Yet, apparently obvious as is this policy 
 of a defence, how often is it neglected; and the 
 listener in our Courts will hear the attack and the 
 defence, the facts that have been asserted, and 
 those that are to be proved, mingled in the speech, 
 to the detriment of both, and to the perplexity of 
 the Jury. Pray you avoid it. 
 
 Spare no pains for the weakening of your adver- 
 sary's case by making plain to the Jury every flaw 
 in it your ingenuity can find. Never neglect this 
 portion of the duties of a defence, for you know 
 not what may be its value, — if it may not be your 
 sole reliance at last. J7as, at least, is yours — of 
 such advantage as can be had from it you are 
 
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THE DEFENCE. 451 
 
 certain; nothing can deprive you of that But 
 your own case, however apparently strong, is never 
 secure until it is proved; it may break down at the 
 last from circumstances you could not anticipate 
 nor control, and then your only hope will rest upon 
 the damage that has been done to the case of the 
 plaintiff. Remember that it is upon the other side 
 that the onus of proof usually lies. It is for the 
 plaintiff to make out his case to the satisfaction of 
 the Jury, and if he fails to do this, even although 
 you may be equally unable to prove what you had 
 expected to prove, still you will be entitled to the 
 verdict. Therefore it is that a sagacious Advocate 
 always, in defences, throws his whole strength 
 into the attack, and permits no weak point in the 
 sum, or in the details, of proof to escape from his 
 criticism. He will labour at this, while often he 
 will pass lightly over the evidence he proposes to 
 produce on his own part, leaving the latter to tell 
 its own tale, if it is strong, and covering its defects, 
 if it is weak. 
 
 In commenting upon evidence, two topics will 
 present themselves. You may criticise either the 
 evidence itself, or the witnesses, or, more usually, 
 both, — for the testimony of a witness whose de- 
 meanour justifies reproach wiU usually require to 
 be sifted with great care. 
 
 You may take the case either in the order in 
 which the witnesses were examined, or in that of 
 time, according to the story. The former will be 
 the most convenient course for you, because you 
 have your notes so arranged upon your brief; but 
 
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452 THE ADVOCATE. 
 
 the latter is, perhaps, the most intelligible arrange- 
 ment for a Jury. You will be guided by circum- 
 stances in your choice, each case having its own 
 considerations in this respect, which no general rule 
 could anticipate. 
 
 If you prefer the order of ivitnesses for the order 
 of your commentary, it will be desirable to begin 
 with a short outline of the whole case, as professed 
 to be proved by the plaintiff, for the purpose of 
 recalling and fixing in the minds of the Jury the 
 points which it is your intention to assail, putting 
 them the most prominently forward. That done, 
 you remind the Jury that this was the case which 
 the plaintiff had proposed to set up, upon which 
 he relies for their verdict; you will now show 
 them how he has failed to prove it, that his 
 witnesses are not to be relied upon, and that their 
 evidence, even if reliable, is inconclusive. 
 
 And to do this is now your duty. 
 
 Y'ou begin with the first witness whose testimony 
 you desire to shake. You point out to the 
 Jury whatever there was in the substance of his 
 story, in his manner, in particular parts of his 
 evidence, that should induce them to attach no 
 weight to his testimony. In commenting upon 
 him, as in his cross-examination, it is not necessary 
 to this end that you should question his integrity, 
 or charge him with wilful perversion or conceal- 
 ment of the truth. It will be more prudent, as 
 well as more proper, in every case, save where you 
 are satisfied that there has been wilful perjury, to 
 give the witness credit for honest intentions, but to 
 
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THE DEFENCE. 453 
 
 show from his testimony, or from the manner in 
 which he has given it, or from both, that he is 
 mistaken^ that his means of knowledge were 
 imperfect, or his senses deceived, or his memory 
 treacherous. The manner from which you argue 
 such a conclusion is not difficult to be understood, 
 though difficult to be described. Hesitation, unde- 
 cided answers, retracting, saying and unsaying, 
 contradictory assertions, are arguments for uncer- 
 tain observation or imperfect memory, and you 
 milst not omit to impress them upon the Jury by 
 repetition of the witness's very words, and by 
 description of the dubious manner in which they 
 were uttered. Here it is that you may fairly and 
 very advantageously employ such talent as you 
 may possess for wit and humour. If the witness 
 has fairly exposed himself to ridicule, it is permis- 
 sible for you to avail yourself of it for the sifting 
 of his testimony, of whose worth a just judgment 
 can rarely be found without taking into account 
 the peculiarities of the witness, — whether, from his 
 characteristics, he is a person competent to observe 
 keenly and remember accurately. 
 
 At the same time you must bear in mind that 
 there is a limit to this license. You hajve no right, 
 by misrepresentation or exaggeration, to subject a 
 witness to ridicule. You must not caricature him 
 or his sayings, much less may you wantonly wound 
 his reputation by assailing his veracity or his 
 sagacity. The very position you occupy, having 
 yourself entire license of speech, while he is not 
 permitted to answer or retort, should incline you 
 
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454 THE ADVOCATE. 
 
 rather to forbearance, as you would refrain from 
 striking an enemy whose arms are bound. Before 
 you make a witness the object of ridicule or 
 reproof, be assured that he has fully deserved it by 
 his own folly. 
 
 With these limitations, deal with him fearlessly, 
 according to his deserts. Be no respecter of per- 
 sons, but subject all equally to unsparing criticism, 
 however high or low their station. The Advocate 
 sees and knows only the Witness. He recognises 
 no other personality ; he considers him in no other 
 capacity; and in that one all men are equal. The 
 testimony of the Peer and of the Peasant must be 
 sifted with the same care, commented upon with the 
 same freedom — its shortcomings proclaimed with 
 the same measure of indignation, or ridicule, or 
 complaint, and with the same manner of exposition. 
 The observance of the first rule, never so to treat 
 any witness without good cause, will enable you 
 faithfully to discharge the duty indicated by the 
 second rule, of dealing with all witnesses equally, 
 whatever their difference of rank ; for, if it be well 
 deserved, only credit can come to you from the free 
 and fearless exercise of your ability. Thus it is 
 in this, as it will be found in the whole conduct 
 of life — ^that adherence to the strict line of duty in 
 one thing facilitates the performance of our duties 
 in all other things. 
 
 In deahng with the evidence of the witnesses, 
 your sagacity will be exercised in detecting and 
 exposing contradictions, improbabilities, and state- 
 ments at variance with the evidence of other wit- 
 
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THE DEFENCE. 455 
 
 nesses. No portion of the duties of the Advocate 
 opening a defence are so effective as this. Criticism 
 on the manner of a witness may amuse the Jury, 
 and induce them to listen to you, but it rarely 
 influences their opinion. It is otherwise with com- 
 ments upon the evidence that show it to be unsound 
 and insufficient. Nothing so seizes the minds of 
 the class of persons who usually constitute com- 
 mon juries as contradictory evidence. They cannot 
 follow a subtle argument, but they can thoroughly 
 comprehend a plain palpable fact, and it always 
 makes a profound impression upon them. Persons 
 accustomed to think know how frequently circum- 
 stances the most contradictory in appearance can 
 be reconciled in fact, and they do not reject a story 
 merely because it is not entirely self-consistent; 
 but with minds less trained to reflection, the pre- 
 sence of two statements, both of which cannot be 
 true, almost invariably produces an impression that 
 both are false, and an inclination to reject a case 
 that has failed in part^ even although that part may 
 be comparatively immaterial. 
 
 For the same reason you should not be satisfied 
 with making manifest the worthlessness of the 
 testimony in some important parts ; . let no one 
 weak portion of it escape exposure, howsoever 
 unimportant. You cannot tell which may most 
 strike the minds of the Jury ; and of this you may 
 be certain, that an accumulation of contradictions 
 and defects will increase the chance of convincing 
 them in almost geometrical ratio. You cannot be 
 sure when the process is complete; it may be the 
 
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456 THE ADVOCATE. 
 
 last and the least of the flaws that may determine 
 their judgments. 
 
 Above all, dwell with emphasis upon the contra- 
 dictions that may have been given to the witness 
 you are criticising by the testimony of other wit- 
 nesses. Unreasonable and unjust though the maxim 
 is, that a party shall not discredit nor contradict 
 his own witness, still it is the law, as laid down by 
 the Courts, and you may seize upon unanswered 
 statements of any witness on the other side to 
 show how discordant they are with the evidence of 
 others of its witnesses. The effect of this is not 
 merely to destroy the confidence of the Jury in 
 both of those in whom the discrepancies appear, 
 and to shake their whole testimony, but to throw 
 a shade of suspicion upon the character of the 
 entire case which has been so supported. 
 
 But if you are sincerely convinced that the 
 witness has been guilty of wilful falsehood, if there 
 is proof of it, such as no charitable interpretation 
 can otherwise explain, your duty is clear. Spare 
 him not. Let your tongue give expression to the 
 honest indignation you feel, assured that it wiU 
 find an echo in the heart of every honest man 
 who hears you. Not for your particular case only, 
 but for the interests of justice, for the protection of 
 the public, for the honour of the Courts, it is 
 necessary that this most odious and dangerous 
 crime should not pass unreproved, but that the 
 detected perjurer should quit the Court with the 
 brand upon him. It is this tenable consequence 
 of such a charge that ought to make Advocates 
 
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THE DEFENCE. 457 
 
 more chary than sometimes we see them of affixing 
 it to a witness. Be it your care to avoid the risk 
 of doing an irreparable wrong, by studiously avoid- 
 ing, either to charge openly, or to insinuate a 
 charge, of perjury against any witness, unless there 
 is such •proof of it as the infirmity of the senses or 
 of the memory cannot explain away. 
 
 In this manner deal with each witness in suc- 
 cession, until you have exhausted your commentary 
 on the plaintifi"s case. 
 
 You will now proceed to open your defence; to 
 state what is the answer you are prepared to put 
 in to so much of the plaintifPs case as requires an 
 answer. In your commentary upon it you have 
 shown what of it was untenable, what unproved — 
 what had, in fact, answered itself You have now 
 to show the means by which you propose to defeat 
 by evidence that which you were unable to beat 
 down by argument. 
 
 Here, also, your task is more delicate and diffi- 
 cult than that of the Counsel who opens a plaintiff's 
 case. Great caution is required; some tact is to be 
 exercised; your judgment must be ever on the 
 watch to control your tongue. You must be very 
 careful to state no more than you are confident of 
 being able to prove : you must avoid unnecessary 
 proofs — by which we mean, the proving of that 
 which is not denied, or not relevant, or which is 
 abeady established by the witnesses on the other 
 side; for an unnecessary witness is always dan- 
 gerous ; once in the box he is equally the property 
 of your opponent, and you cannot know what 
 
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458 THE ADVOCATE. 
 
 damaging facts may be obtained from him in cross- 
 examination. If, on the other hand, you refer to 
 him in your speech, and afterwards omit to call 
 him, you expose yourself to severe and just ani- 
 madversion in the reply, and the Jury will be asked 
 to put the worst construction upon this discrepancy 
 between promise and performance. In stating your 
 defence, if it is a strong one, it is desirable briefly 
 to recall the parts of the plaintiiF's case to which it 
 is an answer, by which you impress it the more 
 forcibly upon the Jury; and this should be done, 
 not by stating all of the plaintiff's case at once, 
 but each part of it that you refute, in succession, 
 with the answer following immediately upon the 
 fact ; for Juries cannot pursue a train of argument, 
 nor even carry in their minds many successive 
 facts, so as to apply a succession of other facts to 
 those which have preceded. It is your business, 
 and it should be your particular care, to make the 
 application for them, and by putting the assertion 
 and the answer before your audience in immediate 
 sequence, to associate in their minds and memories 
 your opponent's facts, and your contradictions of 
 them. 
 
 And your statement of facts — that is, the opening 
 of your defence, should be, like all statements of a 
 case — plain, perspicuous, and unimpassioned, but 
 also pictorial and dramatic. There must be no 
 effort to be oratorical, no flights of eloquence or 
 poetry, no appeal to the passions, — only mere nar- 
 rative, told in the language most intelligible to 
 unlearned ears, in the purest Saxon you can muster. 
 
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THE DEFENCE. 459 
 
 delivered in a conversational tone, and in the manner 
 of one who is telling a story. That is what in truth 
 you are now doing, and nothing more. You want 
 to convey to the minds of the Jury, and to fix 
 there in distinct form and vivid hue, the places, 
 the persons, and the incidents you are narrating. 
 To accomplish this, your words must be pictures; 
 your recitals of what men do and say must be after 
 the manner in which men act and talk, imparting 
 to your speech reality and life, wanting which you 
 cannot long command the attention of your 
 audience. 
 
 Having concluded the statement of your case, 
 you will then proceed to make application of it to 
 the case of the plaintiff, showing how triumphantly 
 it will answer this point, how it will demoHsh that 
 one, how little remains unshaken, and how worth- 
 less that little is. Here it is permissible to you to 
 be somewhat discursive ; to call in the aid of any 
 arts of oratory that may be apt to the occasion, for 
 the purpose of yet more damaging the case of your 
 opponent, or invoking a favourable opmion for your 
 own; and following the sober narrative of the facts, 
 eloquence, or wit, if justified by the subject, will 
 now come with the advantageous effect of contrast, 
 and please and attract the more that it will not be 
 disapproved by the sense of propriety and fitness that 
 is common to all men, and much more possessed 
 by Juries than Advocates are wont to believe. 
 
 Again we must remind you that this is your 
 only speech: you will not enjoy another opportu- 
 nity of addressing the Jury ; you must say all that 
 
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460 THE ADVOCATK. 
 
 you desire to say now, or never. A defence partakes 
 of the double character of an opening and a reply; 
 it is, in fact, hoih^ and must combine the art of 
 both, and be guided by the rules that govern both. 
 Hence its difficulties; of which not the- least you 
 will feel is to decide the best manner of dealing with 
 so much of the plaintiff's case as you are able to 
 answer only partially and imperfectly. This it is 
 that will test your tact and prove your discretion. 
 The parts to which you have no answer you will of 
 course pass unnoticed. But the most cautious dis- 
 cretion is requisite to determine if, and how, you 
 shall deal with facts to which you have not a satis- 
 factory answer. It is impossible to suggest any 
 rule for your guidance in these circumstances. 
 You must rely upon your own tact at the moment, 
 to determine you how to treat them. Your inge- 
 nuity must be invoked to give them their best 
 aspect. This is an art which experience only can 
 teach, and we cannot do more than remind you of 
 the existence of these difficulties, and of the 
 capacities that will be required of you to meet and 
 overcome them. You can only anticipate them 
 by cultivating those capacities, so that, when the 
 moment for action comes, they may be competent 
 to the task that will be imposed upon them. 
 
 Having concluded your speech, you proceed to 
 call your witnesses, observing the same rules as 
 have been already given for the production of the 
 plaintiff's evidence. You and your Junior conduct 
 the examination-in-chief by turns, the right of re- 
 examination being yours, if you are pleased to 
 
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THE DEFENCE. 461 
 
 exercise it; and whether you will do so or not will 
 depend upon your confidence in your Junior, and 
 the importance of the witness. Where special care 
 and skill are required in order to set up again a 
 witness who has been damaged by cross-examina- 
 tion, the duty should be undertaken by yourself. 
 But if there is nothing demanding more than ordi- 
 nary capacity, it is a graceful concession to a Junior 
 to invite him to the work, while you watch his 
 proceeding, and kindly suggest any thing that 
 might have escaped his less experienced eye. Such 
 considerate politeness is always appreciated by the 
 object of it, and insures even for yourself the good' 
 wUl of the Court and of the Profession, by whom 
 it is seen and applauded. It should also be ob- 
 served that, in the re-examination of witnesses for 
 the defence, there is less occasion for the Leader's 
 personal conducting of it than in cross-examination, 
 or even in the re-examination of the witnesses for 
 the plaintiff; because, in both of these latter cases, 
 the Leader has to comment in a speech upon the 
 testimony, which it is therefore desirable for him 
 to direct to his own purpose ; whereas, in the former 
 case, no further opportunity will offer for remarking 
 upon it; nothing that the witnesses say will in- 
 terfere with what is further to be said, 
 
 Some cautions, however, are to be observed in 
 the examination of witnesses for the defence, acr 
 cording to the nature of that defence. 
 
 Defences will be found, for the most part, to fall 
 under one of two grand divisions. Either they go 
 to contradict the case of the plaintiff, or they pro- 
 
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462 THE ADVOCATE. 
 
 ceed upon what, in legal phrase, is termed confession 
 and avoidance. The first kind of defence consists 
 in a simple contradiction of the facts asserted on 
 the other side, by calling -witnesses to prove that 
 they are not ti'ue. It is the most direct and obvious, 
 but also the most difficult and dangerous, defence, 
 for it stakes the issue of the cause upon a conflict 
 of credibility; and when Juries are required to 
 weigh the worth of opposing testimony, it is not 
 always that the right triumphs, for it is a task that 
 tries the strongest intellect, and which such un- 
 practised minds as those in the Jury-box are not 
 likely to perform with accuracy. The defence by 
 confession and avoidance is the most frequent, the 
 most effective, and also requires the most skill and 
 caution on the part of the Advocate. It consists 
 in admitting, or rather in not disputing, the facts 
 proved by the plaintiff, but proving other facts that 
 deprive them of their significance, or what is termed 
 in common parlance, explaining them away, — a 
 phrase for which we have sought in vain an equally 
 significant equivalent. These two kinds of defences 
 may be thus illustrated. The plaintiff charges the 
 defendant with having bought of him certain goods 
 on a certain day. The defendant does not deny 
 the purchase, but he proves that the goods were 
 worthless. Or, the plaintiff charges the defendant 
 with trespassing on his land. The defendant admits 
 that he went across it, but claims a right of way 
 there. Instances in abundance will readily occur 
 to you; these wiU suffice to show you the meaning 
 of the technical phrase that has been employed 
 
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THE DEFENCE. 463 
 
 to describe the kind of defence most frequently 
 resorted to. 
 
 You will, of course, have well weighed, before 
 you come into Court, the line of defence to be 
 adopted, and your speech and your examination of 
 the witnesses wUl be directed to sustain it. If you 
 are a Junior, it should be your care to listen atten- 
 tively to the speech of your Leader, in order to 
 learn what is the defence he proposes to oflFer, that 
 in your examination of the witnesses that fall to 
 your lot you may assist his object. And, whether 
 Leader or Junior, in conducting such examination 
 it is of very great importance to understand 
 thoroughly what the line of defence is, that you 
 may educe whatever is requisite to support it, and 
 shut out whatever may be damaging to it. Dis- 
 regard of this often produces fatal results; and it 
 is not uncommon to see a Junior, by some unlucky 
 questions, destrojdng in a moment an edifice which 
 his Leader has, with consummate ingenuity, con- 
 structed in his speech, but which an answer, incon- 
 siderately ehcited from a witness, has blown to the 
 winds. 
 
 In this, again, the difficulties of a defence are 
 greater than those of the plaintiff's case, — that the 
 latter can almost always be prepared out of court. 
 The facts to be proved are known, and there is 
 little chance of a surprise by something not anti- 
 cipated. It is otherwise with the defence. Here 
 it continually occurs that unexpected incidents in 
 the course of the trial demand a modification of 
 the intended defence, or even an entire change of 
 
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464 THE ADVOCATE. 
 
 position; and thus a different argument and dif- 
 ferent examination of witnesses must be adopted 
 from that which the brief contains, or which had 
 been resolved upon in consultation. These are 
 circumstances that claim all your skill and caution, 
 all your readiness of invention and soundness of 
 judgment, to enable you to come to an instant 
 decision and proceed without perplexity upon the 
 new track. 
 
 In such a case, it is more than ever incumbent 
 upon the Junior to keep his attention fixed upon 
 the speech of his Leader, that he may learn precisely 
 what is the defence to be resorted to, in order to 
 adapt to it his own subsequent examinations of.the 
 witnesses. ' And here we may give you another 
 hint for your observance in your capacity as Junior. 
 While your Leader in his speech is commenting 
 upon the evidence, turn to the pages of your brief, 
 on which you have taken notes of the evidence, 
 and let your eye follow the notes as your ear 
 pursues his commentary, so that, if he should be 
 at any time in want of any fact or expression 
 used by the witness, you may be enabled instantly 
 to supply it. 
 
 These hints are all that occur to us as useful for 
 the conduct of a defence at Nisi Prius. 
 
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XXXVII. 
 THE REPLY. 
 
 The Reply is usually deemed to be the test of an 
 orator's ability, and his most difficult achievement. 
 It may rightly be so in debate, because the Reply is 
 the only portion of it which we are sure could not 
 have been prepared, and in which we know that the 
 speaker gives expression only to his own thoughts, 
 in his own words, thus enabling us to measure 
 his capacities. But, at the Bar, it is dangerous to 
 come prepared with an opening speech, still more 
 dangerous to anticipate a defence, and therefore 
 the tact and skill required for a defence are even 
 greater than those demanded for a Reply. In a 
 defence, half the case is conjectural; in reply, all 
 is known, and the Advocate may deal with it after 
 his own fashion, without fear of contradiction 
 from forthcoming evidence. Hence the wide scope 
 which the Reply affords for the exercise of all 
 the powers of the intellect, and which really makes 
 
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4(56- THE ADVOCATE. 
 
 it a less difficult achievement than the other ora- 
 torical duties of an Advocate that compel the speaker 
 to caution and restraint, the curb in oratory being 
 a great deal more trying to the speaker's intellect 
 than unlicensed liberty. 
 
 The Reply is always the duty of the Leader, and 
 it is to enable him to mould the case, so that he 
 may maintain a consistent argument, that to him 
 is also intrusted the task of cross-examining the 
 witnesses for the defence. 
 
 No rules can be suggested for regulating a reply, 
 because the utmost licence is given to you, alike in 
 respect of subject and of treatment. You reply 
 upon the whole case. You may comment upon 
 every portion of it, repeat your own evidence, 
 review that of the defendant, compare the one with 
 the other, point out the relative strength or weak- 
 ness of either, show inconsistencies, criticise the 
 witnesses, confirm the weak, denounce the false, 
 vindicate the true, answer the arguments of your 
 opponent, elaborate your own, invoke the aid of 
 wit or wisdom, humour or pathos, as it serves your 
 purpose. The wide range thus given to the play 
 of your intellect is to yourself one of the most 
 delightful exercises of your mind, and if you have 
 a quick and various intelligence, prompt to deal 
 sensibly with divers topics, you cannot faU to 
 arrest the attention of your audience, and dull 
 indeed must be the Jury that will deny to you a 
 patient hearing. 
 
 Hence the extreme importance of the right to 
 reply. Doubtless you have many tiiTies read 
 
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THE REPLY. 467 
 
 in the Reports, or witnessed in the Courts, severe 
 contests upon the claim of right to begin, and 
 possibly you may have wondered what great 
 advantage, worth so much talk, could arise to a 
 party from the mere permission to state his case 
 first. But the battle is not really for the right to 
 begin, but for the right of reply, which is consequent 
 upon the right to begin. The general rule is 
 briefly stated: that party begins with whom rests 
 the affirmative of the issue ; but, as with all general 
 rules, the application of it to particular cases often 
 produces great and reasonable doubts where the 
 aflSrmative does lie. 
 
 The value of a reply can scarcely be over-esti- 
 mated. In the hands of a skilful Advocate, scarcely 
 any case is hopeless where a reply is given to him. 
 Instances of its importance must continually occur 
 to aU who have had experience in our Courts. 
 How often have we seen a Jury intimate that they 
 had made up their minds, but, being told by the 
 Judge that it was their duty to hear the whole 
 case, reluctantly and sullenly at first submitting to 
 the Advocate's address, then listening of good-will, 
 and ultimately delivering a verdict directly opposed 
 to that upon which their minds had been made up ! 
 Remember that the Reply is the last word, and we 
 aU know the proverbial worth of that. Arguments, 
 however fallacious, must pass unanswered, save by 
 the Judge in summing up, and the evidence may 
 be so skilfully disposed as to give to it such aspects 
 as the Advocate desires. He may batter down his 
 adversary's case, and there is none to set it up again, 
 
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468 THE ADVOCATE. 
 
 or display his own in glowing colours, and it cannot 
 be stript of its hues, however shadowy or decep- 
 tive. 
 
 You will now understand why it is that the 
 Counsel for the Defence should always exercise 
 such care in resolving whether to call witnessess. 
 If he does not do so, the case ends there, and the 
 defence has the benefit of the last word. As a 
 general rule, a cautious Advocate will not call 
 witnesses for the defence, unless they are absolutely 
 required to meet the case established by the Plaintiff. 
 If the Plaintiff has failed to make out his case, it is 
 always better to leave it so, with the impression of 
 the speech for the defence full in the minds of the 
 Jury, than to hazard a reply, which can never be 
 given without danger. 
 
 This difficulty however occurs more frequently 
 in the Criminal Courts, in treating of which we 
 shall have occasion to return to the topic, and 
 adduce the reasons for the rule we are recommend- 
 ing. It suffices merely to hint it here. 
 
 But even a reply should be governed by some 
 regard to method. No such orderly array is 
 required as in the Opening Speech, which is a 
 narrative of facts, or in the Defence, which is partly 
 argument and partly narrative. But it should not 
 be desultory and unmethodical. It should be 
 artistically arranged, and not a mere string of dis- 
 connected sentences. Remember, that it ought to 
 be a continuous and complete argument. However 
 sparkling with wit, or glowing with elegance, however 
 you may seem to play with your theme, and to flit 
 
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THE EEPLY. 469 
 
 away on this side or on that in pursuit of illustrations, 
 or even for the indulgence of your fancy, you must 
 never lose the thread of your discourse ; an under 
 current of argument must run through every part 
 of it, and all must be directed and actually tend to 
 the conclusion which you desire that the Jury shall 
 draw from it. A formal logical discourse would be 
 disagreeable and repulsive ; but if the flowers with 
 which you adorn it be stript off", there beneath them 
 the logic should be found that gives pith and sub- 
 stance to the whole. 
 
 Eemember what is your purpose — to answer by 
 argument the case that has been made out for the 
 defence by the evidence. That is the principal 
 object of a reply; the others are only secondary. 
 You have also to answer the arguments of the 
 Coimsel for the Defence, but these are of small 
 moment compared with the duty of meeting and 
 explaining away his facta, for arguments are but 
 dimly understood by the majority of jurymen, and 
 by almost all of them are but feebly remembered ; 
 while facts make their way into the minds of the 
 dullest, and remain there. It will therefore be 
 your most prudent course, upon the principle of 
 reserving your most important points to the last, 
 that they may leave the most vivid impression, to 
 begin with an answer to the arguments of the other 
 side, and then to proceed to review the facts of the 
 case as proved by yourself, dwelling emphatically 
 upon such as have been left unanswered by the 
 defence. This serves to refresh the minds of the 
 Jury upon the strong points of your own case, and 
 
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470 THE ADVOCATE, 
 
 it will also enable them more readily to follow you 
 in your examination of the case submitted for the 
 defence. Good generalship and great caution are 
 required in this, so to handle your own case as not 
 to bring into prominency its weaknesses and 
 defects, and to give strength and symmetry to its 
 best points by your manner of recalling them. But 
 that manner cannot be conveyed by rule ; it can 
 only be taught by experience, combined with a quick 
 perception, and a power of ready adaptation to the 
 demands of the moment. 
 
 This done, you proceed to comment upon the 
 evidence for the defence, and to that the same 
 instructions are applicable as have been already 
 submitted to you for your guidance in the speech 
 that opens the defence, for your business in either 
 is the same in this particular, namely, to show that 
 the evidence is not credible, or, if credible, that it does 
 not support the case. But you have something more 
 to do than mere criticism on the evidence of the 
 defendant ; you must compare it with your own case, 
 and show how and where it is weak, and what it has 
 failed to shake, and what it has left unassailed. In 
 the Defence, your only duty was to criticise the case 
 of the plaintiiF; you could scarcely venture to 
 compare it with your own, because yours remained 
 as yet unproved, you could only speak of it in 
 anticipation, and as you knew not how it might fail 
 in the witness box, it would have been dangerous to 
 treat it as proved, and dwell upon it by compari- 
 sons mth that which was actually proved. But 
 in Reply the best and the worst are known ; there is 
 
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THE REPLY. 471 
 
 nothing to fear from failure of proof; the range 
 of the Advocate's review is only limited by the 
 legitimate boundaries of the whole case; he will 
 set the one fact against the other, and draw such a 
 comparison in his own favour as the contrast will 
 permit, and with the results of that comparison, 
 carefuUy summed up and put to the Jury in the 
 clearest language, he will close his reply. 
 
 Observe, however, that this is but an outline 
 of the form of a reply; as a general rule, it 
 would be most prudent to adopt this arrange- 
 ment of your theme, as being the natural order 
 in which it would recur to the thoughts of the 
 Jury. For its details, for the ornaments with 
 which you should surround it, and almost con- 
 ceal its shape, you can be indebted only to 
 your own skiU and accomplishments exercised at 
 the moment. There is scarcely one of the graces 
 of oratory which you may not now advantageously 
 employ, provided it be in accord with the subject. 
 And this suggests to us another hint, not out of 
 place here. Let your treatment of every case be 
 consistent with itself. Let the tone, the manner 
 of handling, and the language, be in harmony 
 with the character of the case. If a fit theme for 
 light and jesting treatment, so treat it; if for 
 pathos, be pathetic ; if it be a grave matter, deal with 
 it gravely; if shameless, severely. But do not 
 endeavour to mingle aU humours, nor approach it 
 in an unsuitable mood. Such bad taste is far more 
 offensive to an audience than many positive faults. 
 And yet it is not an uncommon spectacle in our 
 
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•472 THE ADVOCATE. 
 
 Courts, especially among the inexperienced, or 
 those who are thinking more of the display of 
 their own wit, or eloquence, than of the interest of 
 their clients. Above all, be fastidious as to the 
 introduction a£ flights of oratory; be as little poetical 
 as possible, and indulge in no "fine phrensies." 
 Courts of Justice are places of business, where men 
 resort for the despatch of earnest and serious 
 affairs, and not for empty declamation and debating- 
 club talk. The occasions are extremely rare that 
 permit of anything more than a sensible plain- 
 spoken address to a Jury ; — enlivened, if you please, 
 by a spice of humour, or a dash or two of wit, 
 fairly suggested by some person or event on which 
 you are required to comment in due course; — but 
 let nothing tempt you to be eloquent about mere 
 matters of business — to rhapsodise upon a trades- 
 man's bin, or to scatter the flowers of oratory over 
 a right of way. 
 
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