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much money ought to be awarded, his task is degrading and irksome. He speaks of modesty destroyed, of love turned to bitterness, of youth blasted in its prime, and of age brought down by sorrow to the grave; and he asks for money.' He hawks the wrongs of the inmost spirit, "as beggars do their sores," and unveils the sacred agonies of the heart, that the jury may estimate the value of their palpitations! It is in vain that he urges the specious plea, that no money can compensate the sufferer, to sustain the inference that the jury must give the whole sum laid in the declaration; for the inference does not follow. Money will not compensate, not because it is insufficient in degree but in kind; and, therefore, the consequence is—not that great damages should be given, but that none should be claimed. When once money is connected with the idea of mental grief, by the advocate who represents the sufferer, all respect for both is gone. Subjects, therefore, of this kind are never susceptible in a court of law of the truest pathetic; and the topics to which they give occasion are somewhat musty.
If, however, the highest powers of the mind are rarely brought into action in a Court of Nisi Prius, its more ordinary faculties are required in full perfection, and readiness for use. To an uninitiated spectator, the course of a leader in considerable business seems little less than a miracle. He opens his brief with apparent unconcern; states complicated facts and dates with marvellous accuracy; conducts his cause with zeal and caution through all its dangers; replies on the instant, dexterously placing the adverse features of each side in the most favourable position for his client; and, having won or lost the verdict for which he has struggled, as if his fortune depended on the issue, dismisses it from his mind like one of the spectators. The next cause is called on; the jury are sworn; he unfolds another brief and another tale, and is instantly inspired with a new zeal, and possessed by a new set of feelings; and so he goes on till the court rises, finding time in the intervals of actual exertion to read the newspaper, and talk over all the scandal of the day! This is curious work; it obviously requires all the powers to which we have referred as essential; and the complete absorption of the mind in each successive case. Besides these, there are two qualities essential to splendid
success—a pliable temperament, and that compound quality, or result of several qualities, called tact, in the management of a cause.
To the first of these we have already alluded, in its excessive degree, as supplying a young barrister with the capability of making a display on trivial occasions; but, when chastened by time, it is a most important means of success in the higher deportments of the profession. An advocate should not only throw his mind into the cause, but his heart also. It is not enough that the ingenuity is engaged to elicit strength, or conceal weakness, unless the sympathies are fairly enlisted on the same side. To men of lofty habits of thinking, or of cold constitution, this is impossible, unless the case is of intrinsic magnitude, or the client has been wise enough to supply an artificial stimulus in the endorsement on the brief. Such men, therefore, are only excellent in peculiar cases, where their sluggish natures are quickened, and their pride gratified or disarmed by a high issue, or a splendid fee. Persons, on the other hand, who are prevented from saying "no," not by cowardice, but by sympathy; whose hearts open to all who happen to be their companions; whose prejudices vanish with a cordial grasp of the hand, or melt before a word of judicious flattery; who have a spare fund of warmth and kindness to bestow on whoever seeks it; and who, energetic in action, are wavering in opinion, and infirm of purpose—will be delighted advocates, if they happen also to possess industry and nerve. The statement in their brief is enough to convert them into partisans, ready to triumph in the cause if it is good, and to cling to it if it is hopeless as to a friend in misfortune. By this instinct of sociality, they are enabled not only to throw life into its details, and energy into its struggles, but to create for themselves a personal interest with the jury, which they turn to the advantage of their clients. It has often been alleged that the practice of the law prepares men to abandon their principles in the hour of temptation; but it will often appear, on an attentive survey of their character, that the extent of their practice was the effect rather than the cause of their inconstancy. They are not unstable because they were successful barristers, but became successful barristers by virtue of the very qualities which render them unstable. They do not yield on a base calculation of honour or gain, but because they cannot resist a decisive compliment paid to their talents by the advisers of the crown. They are undone by the very trick of sympathy which has often moulded them to the purposes of their clients and swayed juries to their pleasure.
But the great power of a Nisi Prius advocate consists of tact in the management of a cause. Of this a by-stander sees but little; if the art be consummate, nothing; and he is, with difficulty, made to comprehend its full value. He hears the cause tried fairly out; observes perhaps witnesses on both sides examined; and thinking the whole merits have been necessarily disclosed, he sees no room for peculiar skill, except in the choice of topics to address to the jury. But a trial is not a hearing of all the matters capable of discovery which are relevant to the issue, or which would assist an impartial mind in forming a just decision. It is an artificial mode of determination, bounded by narrow limits, governed by artificial rules, and allowing each party to present to the court, as much or as little of his own case as he pleases. A leader, then, has often, on the instant, to select out of a variety of matters, precisely those which will make the best show, and be least exposed to observation and answer; to estimate the probable case which lies hid in his adversary's brief, and prepare his own to elude its force; to decide between the advantage of producing a witness and the danger of exposing him; or, if he represents the defendant, to apply evidence to a case new in many of its aspects, or take the grave responsibility of offering none. Besides the opportunity which the forms and mode of trial give to the exercise of skill, the laws of evidence afford still greater play for ingenuity, and ground for caution. Some of these are founded on principle; some on mere precedent; some caprice; some on a desire to swell the revenue; and all serve to perplex the game of Nisi Prius, and give advantages to its masters. The power which they exhibit among its intricacies is really admirable, and may almost be considered as a lower order of genius. Its efforts must be immediate; for the exigency presses, and the lawyer, like the woman, "who deliberates is lost." He cannot stop to recollect a precedent, or to estimate all the consequences of a single step;
yet he decides boldly and justly. His tact is, in truth, the result of a great number of impressions, of which he is nowunconscious, which gives him a kind of intuitive power to arrive at once at the right conclusion. Its effects do not make a show in the newspapers; but they are very eloquent in the sheriff's office, and in the rolls of the court.
Besides exerting these qualities, a leader may render his statements not only perspicuous but elegant; relieves the dulness of a cause by wit not too subtle; and sometimes enliven the court by a momentary play of fancy. To describe Mr. Erskine, when at the bar, is to ascertain the highest intellectual eminence to which a barrister, under the most favourable circumstances, may safely aspire. He had no imaginative power, no originality of thought, no great comprehension of intellect, to encumber his progress. Inimitable as pleadings, his corrected speeches supply nothing which, taken apart from its context and the occasion, is worthy of a place in the memory. Their most brilliant passages are but common places exquisitely wrought, and curiously adapted to his design. Had his mind been pregnant with greater things, teeming with beautiful images, or, indued with deep wisdom, he would have been less fitted to shed lustre on the ordinary feelings and transactions of life. If he had been able to answer Pitt without fainting, or to support Fox without sinking into insignificance, he would not have been the delight of special juries, and the glory of the Court of King's Bench. For that sphere, his powers, his acquisitions, and his temperament, were exactly framed. He brought into it, indeed, accomplishments never displayed there before in equal perfection—glancing wit, rich humour, infinite grace of action, singular felicity of language, and a memory elegantly stored, yet not crowded with subjects of classical and fanciful illustration. Above his audience, he was not beyond their sight, and he possessed rare facilities of raising them to his own level. In this purpose, he was aided by his connexion with a noble family, by a musical voice, and by an eloquent eye, which enticed men to forgive, and even to admire his natural polish and refined allusions. But his moral qualities tended even more to win them. Who could resist a disposition overflowing with kindness, animal spirits as elastic as those of a school-boy, and a love of gaiety and pleasure which shone out amidst the most anxious labours 1 His very weaknesses became instruments of fascination. His egotism, his vanity, his personal frailties, were all genial, and gave him an irresistible claim to. sympathy. His warmest colours were drawn not from the fancy but the affections. If he touched on the romantic, it was on the little chapter of romance which belongs to the most hurried and feverish life. The unlettered clown, and the assiduous tradesman, understood him when he revived some bright recollection of childhood, or brought back on the heart the enjoyments of old friendship, or touched the chord of domestic love and sorrow. He wielded with skill and power the weapons which precedent supplied, but he rarely sought for others. When he defended the rights of the subject, it was not by abstract disquisition, but by freshening up anew the venerable customs and immunities which he found sanctioned by courts and parliaments, and infusing into them new energy. He entrenched himself within the forms of pleading, even when he ventured to glance into literature and history. These forms he rendered dignified as a fence against oppression, and cast on them sometimes the playful hues of his fancy. His powers were not only adapted to his sphere, but directed by admirable discretion and taste. In small causes he was never betrayed into exaggeration, but contrived to give an interest to their details, and to conduct them at once with dexterity and grace. His jests told for arguments; his digressions only threw the jury off their guard that he might strike a decisive blow; his audacity was always wise. His firmness was no less under right direction than his weaknesses. He withstood the bench, and rendered the bar immortal service; not so much by the courage of the resistance, as by the happy selection of its time, and the exact propriety of its manner. He was, in short, the most consummate advocate of whom we have any trace; he left his profession higher than he found it; and yet, beyond its pale, he was only an incomparable companion, a lively pamphleteer, and a weak and superficial debater!