« ПредишнаНапред »
him to possess, there must be some fault which they did not perceive; some want of industry, or perseverence; but there was probably none; and they may rather seek for the cause of failure in the delicacy of feeling which won their sympathy, or in the genius which they were accustomed to admire.
Men who take a cursory view of the profession are liable to forget how peculiarly it is situated in relation to those who distribute its business. These are not the people at large; not even the factitious assemblage called the public; not scholars, nor readers, nor thinkers, nor admiring audiences, nor sages of the law, but simply attorneys. In this class of men are, of course, comprised infinite varieties of knowledge and of worth; many men of sound learning and honourable character; many who are tolerably honest and decorously dull; some who are acute and knavish; and more who are knavish without being acute. Respectable as is the station of attorneys, they are, as a body, greatly inferior to the bar in education and endowments; and yet on their opinion, without appeal, the fate of the members of the profession depends. It can scarcely be matter of surprise that they do not always perceive, as by intuition, the accurate thinking, the delicate satire, the playful fancy, or the lucid eloquence, which have charmed a domestic circle, and obtained the applause of a college, even if these were exactly the qualities adapted to their purposes. They will never, indeed, continue to retain men who are obviously unequal to their duty; but they have a large portion of business to scatter, which numbers, greatly differing in real power, can do equally well; and some junior business, which hardly requires any talent at all. In some cases, therefore, they are virtually not only judges but patrons, who, by employing young men early, give them not merely fees, but courage, practice, and the means of becoming known to others. From this extraordinary position arises the necessity of the strictest etiquette in form, and the nicest honour in conduct, which strangers are apt to ridicule, but which alone can prevent the bar from being prostrated at the feet of an inferior class. But for that barrier of rule and personal behaviour, solicitors would be enabled to assume the language and manner of dictators; and no barrister could retain at once prosperity and self respect, except the few, whose reputations for peculiar skill are so well established, as to render it indispensable to obtain their services. It is no small proof of the spirit and intelligence of the profession, as a body, that these qualities are able to preserve them in a station of apparent superiority to those on whom they virtually depend. They frequent the places of business; they follow the judges from town to town, and appear ready to undertake any side of any cause; they sit to be looked at, and chosen, day after day, and year after year; and yet by force of professional honour and gentlemanly accomplishments, and by these alone, they continue to be respected by the men who are to decide their destiny. But no rule of etiquette, however strict, and no feelings of delicacy, however nice and generous, can prevent a man, who has connexions among attorneys, from possessing a great advantage over his equals who have none. It is natural that his friends should think highly of him, and desire to assist him, and it would be absurd to expect that he should disappoint them by refusing their briefs, when conscious of ability to do them justice. Hence a youth, born and educated in the middle ranks of life, who is able to struggle to the bar, has often a far better chance of speedy success than a gentleman of rank and family. This consideration may lessen the wonder, so often expressed, at the number of men who have risen to eminence in the law from comparatively humble stations. Without industry and talent, they could have done little; but, perhaps, with both these they might have done less, if their early fame had not been nurtured by those to whom their success was a favourite object, and whose zeal afforded them at once opportunity and stimulus which to more elevated adventurers are wanting.
Let us now examine a little the kind of talent by which success at the bar will most probably be obtained; as, from want of attention to this point much disappointment frequently springs. We will first refer to the lower order of business—that by which a young man usually becomes known—and then take a glance at the Court of Nisi Prius, as it affords scope to the powers of leaders. We pass over at present that class of men who begin to practice as special pleaders, and after acquiring reputation, are called late in life with a number of clients who have learned to value them as they deserve. These have chosen a safe and honourable course; but the general reader would find little to excite his interest in a view of their silent and laborious progress. We speak rather of the business of Criminal Courts and of Sessions, in which young men generally make first trial of their powers, and of the more trivial and showy order of causes which it may sometimes be their good or ill fortune to lead.
In this description of business, it must be obvious to every one that there is no scope for the higher powers and more elegant accomplishments of the mind. But it is not so obvious, though not less true, that these are often incumbrances in the way of the advocate. This will appear, if we glance at the kind of work he has to perform, the jury whom he is to influence, or the audience by whom he is surrounded. Even if the successful performance of his duty, without regard to appearances, be his only aim, he will often find it necessary to do something more painful than merely to lay aside his most refined tastes. To succeed with the jury, he must rectify his understanding to the level of theirs: to succeed with the audience, he must necessarily go still lower; because, although there are great common themes on which an advocate may raise almost any assembly to his own level, and there are occasions in which he may touch on universal sympathies, these rarely, if ever, arise in the beginning of his professional life. On those whom he has to impress, the fine allusion, the happy conceit, the graceful sophistry, which will naturally occur to his mind, would be worse than lost . But though he may abstain from these, how is he to find, on the inspiration of the instant, the matter which ought to supply their place 1 Can he, accustomed to enjoy the most felicitous turns of expression, the airiest wit, the keenest satire, think in a moment of a joke sufficiently broad and stale to set the jury box and the galleries in a roar 1 Has he an instinctive sense of what they will admire 1 If not, he is wrong to wonder that he makes less impression than others, who may be better able to sacrifice the refinements which he prizes, and ought not to grudge them the success which fairly and naturally follows their exertions.
The chief duties of a junior are to examine witnesses; to raise legal objections; and, in smaller cases, to address juries. We will show in each of these instances how much a man of accurate perceptions and fastidious tastes must overcome before he can hope for prosperity.
The examination of witnesses, in chief, generally requires little more than a clear voice, a tolerable degree of selfpossession, a superficial knowledge of the law of evidence, and an acquaintance with the matter to which the witnesses are expected to speak. There are critical cases, it is true, in which it is one of the most important duties which an advocate can perform, and requires all the dexterity and address of which he is master. But the more popular work, and that which most dazzles by-standers, is cronn-exuminalion,to which some men attribute the talismanic property of bringing falsehood out of truth. In most cases, before an intelligent jury, it is mere show. When it is not founded on materials of contradiction, or directed to obtain some information which the witness will probably give, it proceeds on the assumption that the party interrogated has sworn an untruth, which he may be induced to vary. But, in the great majority of cases, the contrary is the fact, and therefore the usual consequence of speculative cross-examining is the production of a more minute and distinct story than was originally told. Still a jury may be puzzled; an effect may be produced; and as, in cases of felony, an advocate is not permitted to make a speech, he must either cross-examine or do nothing * Here then, taste, feeling, and judgment, are sometimes no trifling hindrances. A man who has a vivid perception of the true relation of things cannot, without difficulty, force himself to occupy the attention of the court for an hour with questions which he feels have no bearing on the matter substantially in issue. Even when he might confound the transaction, the clearness of his own head will scarcely permit him to do the business well. He finds it hard to apply his mind to the elaborate scrutiny of a labourer's dinner or dress, the soundness of his sleep, or the slowness of his cottage time-piece; and he hesitates to place himself exactly on a level with the witness who comes to detail them. His discretion may
* This has been happily altered since the publication of this copy. sometimes restrain him from imitating the popular crossexaminers of the day, but his incapacity will prevent him still oftener, until, like them, he has become thoroughly habituated to the intellectual atmosphere of the court in which he practises.
In starting and arguing points of law, a deep knowledge of law, and a faculty of clear and cogent reasoning, might seem qualities of the highest value. At Nisi Prius, before a Judge, they are so, or rather would be if the modern course of transacting business left a junior any opportunity to use them. But they are very far from producing unmingled advantage before inferior tribunals. As the bench is not often filled with magistrates profoundly learned, futile objections are almost as likely to succeed as good ones, and sometimes more so, because those to whom they are addressed have a vague notion of law as something full of mere arbitrary quiddities, and therefore likely to be found in direct opposition to common sense. Now, a man who is himself ignorant of a science is obviously better fitted to hit the fancies of the respectable gentlemen who entertain such a notion, than one who thoroughly understands its rules. The first will raise objections where the last would be silent; or will defend them with the warmth of honest conviction, where the lawyer would introduce them with hesitation and abandon them without a struggle. When a man has nothing really to say he is assisted greatly by confusion of language, and a total want of arrangement and grammar. Mere stupidity, accompanied by a certain degree of fluency, is no inconsiderable power. It enables its possessor to protract the contest long after he is beaten, because he neither understands his own case, nor the arguments by which he has been answered. It is a weapon of defence, behind which he obtains protection, not only from his adversaries, but from the judge. If the learned person who presides, wearied out with endless irrelevancies, should attempt to stop him, he will insist on his privilege to be dull, and obtain the admiration of the audience by his firmness in supporting the rights of the bar. In these points, a sensitive and acute advocate has no chance of rivalling him in the estimation of the bystanders. A young man may, indeed, display correctness of thought, depth of research, and elegant perspicuity in an