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1859
BEWIGGED and begowned, I took
my oaths and began to tread the boards of the Parliament House just
fifty-five years ago. I earned my first fee on the first morning of my
wearing the horse-hair, and I look back to this with special pleasure, for
it was my friend Alexander Asher, who was still in an office, who sent me my
"instructions." I went up to the Bar of the Lord Ordinary on Teinds, and
read out my motion, of the force of which, as we got little training in
Teind Law at the University, I had but vague understanding. It was "approve
final," and something else. But there were none there "making me afraid," as
there was no opposition, and so in my first case I scored an easy success.
For the encouragement of those who come after me, I will reveal that my old
fee-book shows only £4,4s. in addition to that first guinea during the year
after I passed, and all in singles—-as we say at cricket—for motions. Thus
my powers of eloquence were not tested. It was my third year before I got
into my stride. Only in the Justiciary Court did I get any chance in my
early sessions of opening my mouth in argument. In my very first case I got
an unexpected compliment to the profession. I had to do some precognoscing
myself, and remember calling at a policeman's house, who being a
night-watchman was in bed, and, begging him to stay there, I took down what
he had to say. The charge was a sad one, being of child murder, and when I
was parting from him he said, "I'm afeard it be a bad case to which I
replied, "Well, we must see what we can do for the poor girl," to which he
responded: "Oh weel, I ken fine ye're deevils to argae!" We were able at the
first calling of the case to state an objection to the relevancy, with
success, and eventually the merits were met by a sentence of imprisonment,
which to me was eminently satisfactory.
I will confess that the
Justiciary Court and the Jury Court were the places of attraction to me. The
intricacies of vesting, with its destinations over, its conditional
institutions, its substitutions, and its subjections to defeasance, have
never awakened any enthusiasm in my breast, The conundrums of General
Service and Special Service, &c. &c., had no attractions for me.
In my first years at the Bar,
I attended all the criminal trials and the Jury Court trials that were
possible to me. It was my special satisfaction to watch how cases were
conducted; how proof was led; how rules of evidence are applied in
particular cases; how witnesses, to whom t was not permissible to put
leading questions, had their evidence drawn, out of them, how foolish it is,
when a clear and satisfactory answer has been given, to try to "rub it in"
by repeating the question in order to get the answer again, which so often
leads to the weakening of the point by its not coming out so well; how
cross-examination— the least understood part of duty in the case of the
inexperienced—should be conducted, in some cases by wheedling, in some cases
by attack, sometimes by drawing a witness into gross exaggeration of his own
case, he thinking he s clinching his evidence, while he is breaking t down;
how, above all other things, the cross-examiner should discern where and
when to stop in a particular line, either because he has got something
telling and does not risk giving the witness opportunity to water down what
he has said, or because it s discerned that to go on will make matters
worse. These things, dear brother advocate, require keen study and
observation, "hey cannot be acquired by listening to lectures or reading
treatises. They can only be taught by practical demonstration, to be got
where alone the demonstrations can be given—-in the Court; just as the
indicious and efficient use of the knife and the forceps in surgery can only
be learned iii the operating theatre. And if they are not learned by you as
an observer, the only other way is by learning how to act, and how to fail,
by practice on your own client 3 cases; i<; may be to his cause suffering
severely, because you are learning the lesson too late on your client,
instead of learning it sooner for him.
The young apprentice should
watch the experienced workmen, lest from want of noting he fail when called
on to act.
"A bungler thus who scarce the
nail can hit
Through driving wrong wiII make the panel split,
Nor dare an abler workman undertake
To drive another lest the whole should break."
How often has one seen the
look of chagrin on the senior's face when his junior has "dropped". himself
and made irremediable havoc, not from want of brains, but from want of
practical skill. How often have I heard hints from the Bench, in
consideration for young counsel, to beware of the danger ahead.
And here let me convey to
those who join the Bar a word of friendly advice, coming from a long
experience. It is a traditional rule of the Scottish Bar, which Robert Louis
Stevenson calls "a ferocious custom," that an advocate, as long as it is his
ambition to practice, or obtain a position in the profession, shall attend
in his wig and gown in the Parliament House, or the Court or Library, ready
to be called at any moment. Of course be cannot tout for work, and his
presence there, and the brass plate upon his door, are the only
advertisements of his readiness to take up the causes of clients which are
permissible to him. It is certain that while this rule holds sway—as it must
do— juniors, except those who receive early backing, will have much free
time on their hands during the hours they are in what Stevenson calls "the
most arduous form of idleness," at the Parliament House. This has it's
temptations. The youth who has just come off the stool of hard study, and
gone through the strain of working up subjects in order to face examination,
naturally feels himself entitled to some relaxation, and at first i'
stempted to wait until something turns up for him to do. To such an one may
be commended the well-known saying:
"Absence of occupation is not
rest."
A true rest consists in doing
what you choose to do, but doing something—some real thing. He may plead
with my young brother in the College of Justice, I would say—have your
relaxation, but do not yield yourself up to it. When relaxation fills all
the day, ;it ceases to be relaxation and becomes indulgence, and a self
indulgence— falsely called rest—soon becomes habit, which may end in
incapacity to take up work.
"When doing naught—and to
speak true,
Not anxious to find aught to do."
I knew a grievous case of
tins many years ago. A brother advocate had fallen into such a condition
caused by indulgence, that he could not break through. I pleaded with
him—would he not make up his mind to take up some study steadily for even
two hours a day, not necessarily law study —French, German, History—anything
having in it an element of mental culture. My imploring appeal was met by:
"Macdonald, I can't do it" expressed in tones indicating his own sorrow at
the confession that he was as the man who said, "I am shut up, and I cannot
come forth." I see his face now, expressing the despair of an atrophied mind
and conscience. Of course this was an extreme case, but I have known many
others, in which in a less degree excellent natural powers were weakened by
want of earnest exercise, as the body would be weakened by lying in bed
beyond reasonable time of rest, and the power be lost to shake oneself free
of a laziness which had come to rule the person.*
"An Mler is like a watch that
wants both hands, As useless when it goes as when it stands."
Therefore I plead with the
young advocate that his hours at Court be not all frittered away. Many a
pleasant half-hour one can spend 11 friendly intercourse, but hours of ;t
spell moral deterioration. Find something to give real point to a reasonable
portion of the day. Hold yourself to it until it becomes a second nature,
and therefore a pleasure to be really learning something—not necessarily
altogether by law study, many other subjects reasonably mastered will always
be of great assistance to any pleader who has to deal with men and things,
as well as with the intricacies of the feudal system, the law of
inheritance, or the interpretation of wills and testaments. The choice of a
subject for study may be important, but the thing is to have the mind
disciplined, to set oneself to do something real, and not to squander time
by overindulgence what does not nourish but only tickles the mind. Its also
a good training exercise, as has been hinted already, to attend cases with
an observing mind, not merely of what is being brought out and discussed,
but also how things are done, how rules of evidence are applied, &c. But
more than all this, the dealing of man with man, even up to the dealing of
counsel with judges, and of judges with counsel, is a very fit subject for
study. Let it be remembered that pleading is not merely putting facts and
arguments baldly, but has its psychological side. ' 'he question the pleader
may well put to himself s, "How shall I present my argument so that it shall
attract and be effective," quite as much as the question what the argument
is to be? A practised pleader knows well that as judges are men, one form of
presentation of a case may be more influential in securing a patient hearing
than some other form, although the latter might be quite effective with
another tribunal. The advocate who attends and watches cases will, almost
unconsciously to himself, acquire knowledge of pleaders' tact—a quality to
which, I fear, sometimes little thought is given, but which has often had
much to do in influencing the decisions both of juries and of judges.
In my early years at the Bar,
it so happened that I was frequently engaged n disputed settlement and
discipline cases in the Courts of the Church of Scotland. These tribunals
gave many telling instances of what is stated above. I have often said that
is a church court the work of the advocate had in it something of the
element of fly-fishing. Sitting as a jury, such Courts are sure to be much
influenced by those whom its members look up to as leaders, The pleader
threw his fly over this leader and then over that, endeavouring to get a
rise. If once you succeeded in capturing one or two of the leaders, you
could rely upon going near to win your case, t'heir "jury-room"
deliberations were not in secret, and one heard all the jury discussion, and
learned to know the trend of the great leaders' minds, and thus to be able
in subsequent cases to have a better idea how they could be won by a
particular line of argument. I mention this experience in order to bring
into prominence one part of the training of a pleader, which has nothing to
do with law or the knowledge of it.
There is a maxim which has
more importance in it for the legal pleader than for any other person,
except the police official. No man, although he may know all that professors
and law lecturers can teach him, is really equipped for a pleader's work, he
has another branch of study before him, of a knowledge of which he can
acquire little till he is engaged iff the actual study and work of his
profession as distinguished from mere equipment of learning, and has
opporturiity to watch how man deals with man. He must study human nature,
gaining an insight into its different types, and learning to know how
surrounding circumstances affect men, and how to deal with them—aye, and
with women too—who are associated with litigation, ether as parties or
witnesses. And this is not all. He must study the men who surround him in
his profession, and know their ways, and how to meet them in the struggle.
He must learn how the men of jury are likely to look on what's brought
before them, to know how to entrust their careful consideration, and where
it's possible,their sympathy, and to avoid—to use a colloquial phrase-
—setting their backs up. I once heard an able and distinguished counsel,
against whom a point had been well made, and which anybody could see was
likely to have been accepted by the jurymen, declare with an emphatic thump
that "No man not fit for Morningside* would take such a view as my learned
friend has pressed on you." I said to myself, "If they happen to have taken
that view already, telling them that they were qualified for a lunatic
asylum, is not likely to have the effect of turning them round." It is this
kind of thing of which there is sometimes too much, because the pleader has
thought that skill in pleading depends entirely on knowledge of law and
logical reasoning, forgetting that knowledge of man, an insight into human
nature—which can only be attained by watchfulness and practical
experience—conduces to tact—a power without which he may in many cases be
worse than powerless. And this does not apply only to pleading before a
jury. Judges also require to be studied. Frail men, they too may be swayed
against a pleader by his want of tactful mode. But this is delicate ground,
and had better be left on general statement. Verb. sap
The experiences of an
advocate as a pleader in criminal cases are very varied, and they involve
much greater strain than even the most important civil cause.
Cross-examination is in this class of cases an exceptionally anxious matter.
I have always hinted to junior members of the profession that it :was well
to keep two principles strictly before the mind: (1) Never ask a question in
cross upon the evidence given in chief, unless you are sure what the answer
will be, or (2) unless you feel you do not need to care what the answer may
be. A rash question may bring out a reply which will cutoff the chance of
the prisoner altogether. How often have I seen fatal results follow from
indiscreet cross-questions. How often when something a witness has said in
chief is but a loose-driven nail, has one seen t forced home with the aid of
the counsel for the defence—when the prosecutor had shrunk from trying to
fix it tighter for fear lest he should make the shaky fasten. ig weaker —and
when the case could have been attacked in argument, as being too weak to be
made the basis of a verdict.
A pleader in criminal cases
has some strange experiences. Sometimes a jury will accept an argument ill
which the speaker himself puts little confidence. On one occasion I had
defended a poor girl on a charge of concealment, and feared for the result.
After my speech I left the Court to catch a train to go home, just before it
moved off, the solicitor ran excitedly along the platform and called out,
"Not guilty, not guiIty," and then he added: "And for your own satisfaction
I want to tell you that she was guilty!" At other times, as in a case of a
murder, brutal in its character, anger at the deed will cause the jury to
reject the clearest evidence that the perpetrator was insane. I once
defended such a case, and a majority of the jury not only convicted, but
added a rider affirming that the prisoner was sane. The man was hopelessly
mad. The doctors sent to see him were satisfied of that, and the sentence
was not carried out. A crucial test applied was that while one of them put
his finger lightly on the pulse, the other suddenly said, "By the bye,
Miller, when is it you are to be hanged?" There was not a tremor or a change
of countenance, or acceleration of pulse, and looking up he said, quite
simply, "I think it's Tuesday week, if l am not mistaken."
The most harassing and
painful experience of a counsel practising in the Criminal Court is the
conduct of the defence in a case where the charge is one involving capital
punishment, and of these I certainly had more than my share during the
twenty-nine years that I was a pleader. Besides trials for which I was
retained, there were frequent applications by more counsel to aid them, in
cases where no fees could be given, and it was a matter of honour to
respond, unless other circumstances made it not possible. My experience
must, I think, be unique, Down to the last year when I was free to take up
the defence, before I became Lord-Advocate, I never had a client convicted
of murder, except the one who was insane, and was proved to be insane after
the trial. In all my other cases there was either an acquittal or a verdict
of culpable homicide. But this was too much of a success to last out one's
time. On two occasions in my last year or eighteen months of defence, I was
called on to act for first one pair of poachers, and then another pair, for
the murder of gamekeepers.
There was not a vestige of a
defence, and the whole four died on the gallows. The spell of success was
broken, and very shortly after my career on the left side of the table came
finally to an end.
After I had been a short time
in the profession, I began to feel the necessity of some definite work, if I
was not to fall into the condition which I have taken the liberty of making
a subject of warning to my junior brethren of to-day. 1 had for some time
made a very close study of the English classics, and read largely in French
and German, filling several commonplace-books with excerpts to the number of
over 1600. That was an exercise from which I derived great delight, and I
have been able in writing and speaking to make use of the store I possess to
enliven what was my own. I had also written for the Press—a weekly leader in
the Courant, generally on a political subject, and frequent leaders and side
articles for the Scotsman—non-political, as the conductors of the Scotsman,
my good friends Russel and Findlay, did not at that time see eye to eye with
me on politics. I also did some work in reviewing books for the Press, and
wrote at times in magazines. But I felt that all this, though improving, and
bringing some grist to the mill, was desultory, and not really occupation
for me, being not directly associated with professional work. While I was
brooding over this, it so happened that I had a conversation one day with my
friend of fifty years, the late Lord Adam. He said that there was one
department of law which the young advocate grievously neglected, doing
nothing beyond defending, and often not defending well, poor people
accused of crime, the cases being for the most part so simple that there was
nothing to be learned from them, and that too often ill-judged
cross-examination tightened the cords round the unfortunate clients' necks.
At that time there was practically no instruction given at the University in
this branch of the law, and even later it was treated as only a side
subject, to which but a few perfunctory lectures were devoted at the close
ol session, when weariness had set in. Adam's words made a strong impression
upon me. I knew that the available criminal text-books were only the great
and valuable—but somewhat out of date—treatise of Baron Hume, and a not
altogether satisfactory book by Sir Archibald Alison, and it occurred to me
that a practical and condensed exposition of the law brought down to date
would be useful, and help to supply to myself the equipment which might
enable one to be efficient in the practice of the Criminal Courts. I am
grateful to my friend James Adam to this day. Without delay I began, and for
three years I had abundance of work to occupy my time of attendance at the
Parliament House. The labour of ransacking for and laying down material took
much time and some patience, and 1 found the task of putting it together not
so difficult. At last my Practical Treatise, as I made bold to call it,
passed through the Press, and was well received by the critics. It brought
in a nice little sum at the time when a young man is the better if a
financial uplifting, when he has just entered into a union with one who is
"A gracious presence at his
board presiding,
Doubling his pleasures, and his cares dividing,"
as was my case for five and a
half too short years.
Thus I was tided over the
dangerous period when powers not used may be enfeebled, and by the time my
book was finished my work at the Bar began to be full occupation. That the
writing of the book had a great influence upon my professional career is
undoubted. I very soon received a large share of criminal law practice, and
in the latter years before I took office many important cases fell to me. I
feel sure that my intimate knowledge of criminal law enabled me often to be
successful, where otherwise one's action might have been uncertain and
blundering, fatal to the client's chance of success. How often have I seen
what was a "fightable' case lost, by the feebleness of grasp of points on
the one hand, or by speeches involving ideas about law which the judge had
to do his duty in crushing. I once heard Lord Deas in such a case, after
restating what had been said by counsel, say to the jury: "Now ye'll just
pay no attention to that; I've often done the same kind of thing when I was
a young man my self I also in earlier days heard Lord Justice-Clerk Hope
demolish an argument in which the law had been stated as to robbery, of
which he said it was the exact opposite of what the law really was. And oh!
that cross-examination I have already referred to, helping to clinch a case
which, if left alone hung loosely together, and gave chances to pass through
the meshes of the prosecutor's net. I once heard a counsel in the course of
five minutes, by foolish cross, deprive himself of four separate points of
defence which he could have made with some effect, assuming the truth of all
that had been brought out by the prosecution.
On the other hand, I have
seen at times advocates-depute, deservedly appointed for the general ability
and position in the profession, produce indictments, and support them by
arguments which indicated that criminal law was to them a new subject, as to
which they had but a smattering of knowledge from a practical point of view,
they having never attended the Court or ever had a criminal case entrusted
to them until they received their appointment. Also it is to be feared that
many an advocate when appointed to be a sheriff substitute is poorly
equipped for conducting trials. I hope it will be believed that it is in my
goodwill to the profession that I speak thus frankly. And may I add that in
this day, when every judge who takes his seat on the Bench is required to
preside in criminal trials, there is a dismal call on all the profession to
have practical knowledge of Criminal Law and Procedure. Without such panoply
it is very possible that injury may be done to the administration of justice
by unfair condemnation or improper escape from just conviction. |
