THE first task of the advocate is to learn to labour and to wait. There never was a successful advocate who did not owe some of his prowess to industry. From the biographies of our ancestors we may learn that the eminent successful ones of each generation practiced at least enough industry in their day to preach its virtues to aspiring juniors.
Work soon becomes a habit. It may not be altogether a good habit, but it is better to wear out than to rust out. Nothing, we are told, is impossible to industry. Certainly without industry the armoury of the advocate will lack weapons on the day of battle.
There must be years of what Charles Lamb described with graceful alliteration as “the dry drudgery of the desk’s dead wood” before the young advocate can hope to dazzle juries with eloquent perorations, confound dishonest witnesses by skilful cross-examination, and lead the steps of erring judges into the paths of precedent.
All great advocates tell us that they have had either steady habits of industry or grand outbursts of work. Charles Russell had a continuous spate of energy. Many of us can remember him, tireless and active himself, bustling into the robing-room at St. George’s Hall, Liverpool, and finding several members of the Junior Bar standing around the fire.
“Why are you loafing about here?” he asked. “Why don’t you do something?”
“We have nothing to do,” said the Junior Bar.
“Why don’t you go to the races?” he rejoined. “Do something!”
Abraham Lincoln owed his sound knowledge of law to grim, zealous industry. As a storekeeper he studied Blackstone out of shop-hours, perched on a wood-pile or lying under a tree. On circuit, in the bedroom of the village inn, a candle at his head and his feet protruding over the foot-board of his bed, he lay reading law until two in the morning, undisturbed by snoring comrades. When possible, he would read aloud, for thus, he said, “two senses catch the idea. First, I see what I read; second, I hear it, and can therefore remember it better.” In after-life to every student who came near him his advice was, “Work! work! work!”
Advocacy is indeed a life of industry. Each new success brings greater toil. Campbell, writing home from the Oxford Circuit, describes the weary round of his daily task. Some advocates suffer thus every day the court sits, whilst others sit round and suffer envy.
“I ought to have got so far to-night on my way to Hereford, but we have a long day’s work before us, and I shall be obliged to travel all to-morrow night. You can hardly form a notion of the life of labour, anxiety, and privation which I lead upon the circuit. I am up every morning by six. I never get out of court till seven, eight, or nine in the evening, and, having swallowed any indifferent fare that my clerk provides for me at my lodgings, I have consultations and read briefs till I fall asleep. This arises very much from the incompetence of the judge. It is from the incompetency of judges that the chief annoyances I have in life arise. I could myself have disposed of the causes here in half the time the judge employed. He has tried two causes in four days. Poor fellow, he is completely knocked up.”
An advocate must study his brief in the same way that an actor studies his part. Success in advocacy is not arrived at by intuition. Mr. O’Brien, in his excellent biography of Charles Russell, details an interesting conversation with his hero which enforces this truth. He had raised the question of an advocate succeeding by mere intuition in picking up the threads of a case in court, when Russell interrupted him in a characteristic phrase.
“‘That’s all nonsense,’ he said. ‘You don’t know anything by intuition. You have to work hard and to think hard. I get some good help, as I tell you. My mode of work is this: One of these young men reads the brief and makes a note—a full one. I go through the note with him’ (smiling), ‘cross-examining him, if you like. Sometimes, I admit, it may not be necessary for me to read the brief; the note may be so complete, and the man’s knowledge of the case so exact, that I get everything from him. But it often is—in fact, generally is—necessary to go to the brief. You have seen me reading briefs here. I admit that I am quick in getting at the kernel of a case, and that saves me some trouble; but I must read the brief with my own eyes, or somebody else’s.’
“I said, ‘Sir John Karslake went blind because he could only read his brief with his own eyes. It is a great point to be able to read your brief with somebody else’s eyes!’
“Russell—‘Well, well, well, that’s so! but it is not intuition.’
“I said, ‘It has been said that O’Connell never read his brief when he appeared for the defendant. He made his case out of the plaintiff’s case.’
“Russell—‘I don’t think that is likely; I think O’Connell knew his case—the vital points in his case—before he went into court. There is often a great deal in a brief which is not vital, which is not even pertinent. I can read a brief quickly; I can take in a page at a glance, if you like; I can throw the rubbish over easily, and come right on the marrow of the case. But I can only do that by reading the brief, or by the help of my friends. I learn a great deal at consultations; I am not above taking hints from everybody, and I think carefully over everything that is said to me’ (holding his hand up with open palm); ‘I shut out no view. If I have a good point, it is that I can see quickly the hinge on which the whole case turns, and I never lose sight of it. But that is not intuition, my friend; it is work.’”
Industry in reading and book-learning may make a man a good jurist, but the advocate must exercise his industry in the double art of speaking and arranging his thoughts in ordered speech. He must be ready to leave his books awhile and practise the athletics of eloquence with equal industry.
The silver-tongued Heneage Finch advises students “to study all the morning and talk all the afternoon.” Old Serjeant Maynard, deeply learned in booklore as he was, described the calling of the advocate as ars bablativa. Brougham told the law students of London University to habituate themselves to talk about everything.
For “bare reading without practice pedantiseth a student, but never makes him a clever lawyer.” Our fathers understood this better perhaps than we do, and made provision of halls and cloisters and gardens, where students could take exercise and discuss the mysteries of their profession when the hours of reading were over.
Roger North tells us in his life of his brother, the Lord Keeper: “I remember that, after the fire of the Temple, it was considered whether the old cloister walks should be rebuilt or rather improved into chambers; which latter had been for the benefit of the Middle Temple. But in regard it could not be done without the consent of the Inner house, the masters of the Middle house waited upon the then Mr. Attorney Finch, to desire the concurrence of his society upon a proposition of some benefit to be thrown in on that side. But Mr. Attorney would by no means give way to it, and reproved the Middle Templars very wittily and eloquently upon the subject of students walking in evenings there and putting cases, ‘which,’ he said, ‘was done in his time, as mean and low as the buildings were then, however it comes that such a benefit to students is now made so little account of.’ And thereupon the cloisters, by the order and disposition of Sir Christopher Wren, were built as they now stand.”
The days of wandering in cloisters and gardens, putting cases to one’s fellow-students, and listening to the wisdom of elders by the margin of the fountain are, alas! not for us. But even to-day a wise youngster should recognise that sitting in court to listen to the conduct of cases, attendance at circuit mess and dining in Hall, where the law-talk of seniors may still on occasion be of value—these things are all forms of industry, for the advocate can only learn the true creed of his faith from oral tradition.
In recent years we have wisely revived the old moots which date back to early days when the Inns of Court were really schools of law. Dugdale thus describes the ancient ceremony of the moot: “The pleadings are first recited by the students, then the case heard and argued by the barristers; and lastly by the reader elect and benchers, who all three argue in English; but the pleadings are recited, and the case argued by the utter barristers, in law French. The moot being ended, all parties return to the cupboard, where the mootmen present the benchers with a cup of beer and a slice of bread.”
Roger North also remembers that in his day, the time of Charles II., the custom of mooting had been discontinued for upwards of a century; but modern wisdom brings us back to many old customs of our fathers, and to-day all dramatic methods of education are recognised as of greater value than dictatorial lectures.
And not only are these more social forms of industry good in themselves, but they are the only antidote to that despondency and dread of failure which cloud the brightest and most hopeful mind in the long days of apprenticeship. Even the greatest advocates have suffered such moments. Had John Scott yielded to his own sinking inclinations, he might have been a provincial barrister at Newcastle instead of Lord Chancellor; Kenyon nearly became a Welsh parson instead of Chief Justice of England; and Russell tells us that in our own day Gully nearly exiled himself to the Straits Settlements, and Herschell proposed to emigrate to the Indian Bar.
A learned County Court judge, in dealing with the unfortunate bankruptcy of a brother-barrister, expressed the opinion that for a man to come to the Bar without private means, or, at least, expectations from a maiden aunt, was “a rash and hazardous speculation.” His dictum was unsound in law and history. Some of the greatest advocates began life as poor men. And though men of wealth have succeeded in advocacy, yet poverty is a true friend to industry. “Parts and poverty,” said Lord Chancellor Talbot, “are the only things needed by the law student.”
Kenyon, when asked by a fashionable lady how her son might best prepare for success at the Bar, said: “Let him spend all his money, marry a rich wife, spend all hers, and when he has got not a shilling in the world, let him attack the law.” For a lawyer, as an old pleader said, must be prepared in his early days “to eat sawdust without butter,” or, as Lord Eldon put it, “to live like a hermit and work like a horse.”
If a man is endowed with health and industry, the profession of an advocate is not “a rash and hazardous speculation.” He may even without blame give hostages to fortune, remembering that when Erskine made his first appearance at the Bar his agitation nearly overcame him, and he was just about to sit down a failure when, he says, “I thought I felt my little children tugging at my gown, and the idea roused me to an exertion of which I did not think myself capable.” He succeeded, indeed, far beyond his expectations, and he found, when he had overcome that first modest inertia which benumbs even the greatest genius, that he was fully equipped to fight the battles of his clients against all comers. And the reason of it was that he had not failed to read and learn and digest beneath the Lamp of Industry.