AT the back of this little word “wit” lies the idea of knowledge, understanding, sense. In its manifestation we look for a keen perception of some incongruity of the moment. The murky atmosphere of the court is illuminated by a flash of thought, quick, happy, and even amusing. Wit, wisely used, bridges over a difficulty, smooths away annoyance, or perhaps turns aside anger, dissolving embarrassment in a second’s laughter.
Nor can “(laughter in court),” a derogatory parenthesis unknown in the official law reports, be wholly condemned among human men. “How much lies in laughter, the cipher key wherewith we decipher the whole man!” Laughter may be derisive, unkind, even cruel, or it may be rightly used as a just weapon of ridicule wherewith to smite pretension and humbug. It may be gracious and full of kindliness, putting a timid man at his ease, or instinct with good-humour, softening wrath or mitigating tedious irrelevancy. It may be the due recognition of a witty text preaching a useful truth, that could otherwise be expressed only in a treatise; as when Common Law said unto Chancery, “Truth will leak out even in an affidavit;” or when Erskine replied to Kenyon, who suggested that he should apply to Chancery for relief, “Would your lordship send a dog you loved there?”
From the earliest times wit has been a light to lighten the darkness of advocacy. Cicero was noted for the jests and repartees which punctuated his forensic speeches, and these were held “not foreign to the business of the forum.” Yet, like many a man of wit, he stumbled on occasion through the temptation of the gift, and offended some with malevolent sayings, as Bethell and others have done in our own time. It is easy to forget the poet’s warning about “the medium in all things.”
Pedants and bores resent all forms of wit, but a real humorist rejoices in nothing so much as a good story against himself. Rufus Choate was a man of great eloquence and abounding vocabulary, but he had a true sense of wit. No one enjoyed better the remark of Mr. Justice Wilde, a dry, precise judge who, out of court, on occasion allowed his wit expression. He was asked by a junior if he had not heard that Mr. Worcester had just published a new edition of his dictionary with a great number of additional words. Gripping his young friend’s arm, he said in a perturbed whisper, “No, I had not heard of it. But, for God’s sake, don’t tell Choate!”
Choate had his own wit, which charmed many juries to his clients’ cause. No one could more pleasantly disperse the frowning morality of a common jury by a human simile. What could be more pastoral and poetical than his description of his clients in an Arcadian divorce case? “They were playful, gentlemen of the jury, not guilty. After the morning toil they sat down upon the hay-mow for refreshment, not crime. There may have been a little youthful fondling, playful, not amorous. They only wished to soften the asperities of hay-making.” One can see the jury broadening into sympathy and smiles over the pleasantry of the final phrase.
Often the wit of an advocate will turn a judge from an unwise course where argument or rhetoric would certainly fail. Lord Mansfield paid little attention to religious holidays. He would sit on Ash-Wednesday, to the scandal of some members of the Bar, whose protests made no impression upon him. At the end of Lent he suggested that the court might sit on Good Friday. The members of the Bar were horrified. Serjeant Davy, who was in the case, bowed in acceptance of the proposition. “If your lordship pleases; but your lordship will be the first judge that has done so since Pontius Pilate.” The court adjourned until Saturday.
But the learned Serjeant “Bull Davy,” as he was called on circuit, could never pass a jest, even at the expense of his client. He was defending a criminal against whom the prosecution had opened a very strong case.
“Who is concerned for the prisoner?”
“My lord,” replied Davy, rising with grave solemnity, “I am concerned for him, and very much concerned, after what I have heard.”
Wit is often the fittest instrument with which to destroy the bubble of bombast. When Curran, in an outburst of histrionic anger, placed his hand upon his heart, saying, “I am the trusty guardian of my own honour,” it was Sir Boyle Roche who spoiled the episode by rising with much friendliness to say, “I congratulate my honourable friend on the snug little sinecure to which he has appointed himself.”
Wit may fairly be used to strip the cloak of pretension from the shoulders of impudence. Holker was cross-examining a big vulgar Jew jeweller in a money-lending case and began by looking him up and down in a sleepy dismal way and drawled out: “Well, Mr. Moselwein, and what are you?”
“A genschelman,” replied the jeweller with emphasis.
“Just so, just so,” ejaculated Holker with a dreary yawn, “but what were you before you were a gentleman?”
Wit, skilfully used, is the kindliest and most effective method of exhibiting the futility of judicial interruptions.
“Where do you draw the line, Mr. Bramwell?” asked a learned judge in the Court of Common Pleas.
“I don’t know, and I don’t care, my lord. It is enough for me that my client is on the right side of it.”
Wit and courtesy need never be divorced. They are, indeed, complementary. Wit, deftly used, refreshes the spirit of the weary judge.
Lord Chief Justice Coleridge, writing from the Northern Circuit, says: “Gully was excellent. His phrase, when he asked for a stay of execution ‘in order to consider more at leisure some of your lordship’s observations,’ tickled my fancy very much. Misdirection was never more courteously described.”
Satire or irony is often in danger of being misunderstood by the simple-minded jury. Ridicule, to be effective, must be pointed, even extravagant.
In combating the defence of Act of God set up by an American advocate defending a client on the charge of arson, Governor Wisher, for the prosecution, disposed of the theory of spontaneous combustion, and succeeded in satisfying the jury of its absurdity: “It is said, gentlemen, that this was Act of God. It may be, gentlemen. I believe in the Almighty’s power to do it, but I never knew of His walking twice round a straw stack to find a dry place to fire it, with double-nailed boots on so exactly fitting the ones worn by the defendant.”
Bowen, on the Western Circuit, was less fortunate. Prosecuting a burglar caught red-handed on the roof of a house, he left the case to the jury in the following terms: “If you consider, gentlemen, that the accused was on the roof of the house for the purpose of enjoying the midnight breeze, and, by pure accident, happened to have about him the necessary tools of a housebreaker, with no dishonest intention of employing them, you will, of course, acquit him.” The simple sons of Wessex nodded complacently at counsel, and, accepting his invitation, acquitted the prisoner.
And as there is danger of satire being misunderstood, there is also a certain danger that an advocate, in an endeavour to shorten a case, may fail to drive home all the points he seeks to make. Modern advocates, however, are more likely to remind the Bench of Quintilian’s maxim, “There is not so much inconvenience in listening to superfluous matter as to be ignorant of such things as are necessary,” than to remember the more pertinent first principle of their own art that “brevity is the soul of wit.”
It has always been a reproach to our advocacy that it injured its clients by calculated circumlocution, an exuberance of verbosity, and a prolixity of style and method ruinous to the widows and the fatherless and the strangers that strayed within the gates of the temple.
Good advocacy displays the highest form of wit in an instinct for brevity. The healthy appetite of judge and advocate alike is shown in a keenness to “get through the rind of the orange and reach the pulp as soon as possible.” This wit and wisdom of Bramwell should be painted on the wall in bold letters of silver opposite every judge on the bench, and in larger letters of gold over every bench in the kingdom in the face of the nation’s advocates.
Judges are, indeed, a long-suffering race, but there are some advocates difficult to suffer gladly. Mr. Justice Wightman showed a Christian forbearance to Mr. Ribton, who, after pounding away for several hours, began repeating himself unto the third or fourth iteration.
“Really, Mr. Ribton, you know, you’ve said that before.”
“Have I, my lord? I am very sorry. I quite forgot it.”
“Don’t apologise,” said the mild old judge, patiently stifling a sigh. “I forgive you; for it was a very long time ago.”
How many advocates weary juries into forgetfulness by long-continued repetition of their cross-examination, often giving a clever witness opportunities of rehabilitating himself, forgetting Josh Billings’s immortal advice: “When you strike ile, stop boring; many a man has bored clean thru and let the ile run out of the bottom.”
But whatever sound maxims may be cited, it is to be feared that there will always be a line of advocacy answering to the definition of length without breadth. Nor will the old story, first told, perhaps, of Chief Baron Kelly, ever want a new and even more long-winded hero. A legal comrade of Kelly on circuit dreamed that they appeared before the tribunal on the Great Day of Judgment. Upon Kelly’s name being called, and his being put up in the dock, the recording angel arose and shouted out in a loud voice, “No other case will be taken to-day!”
Lest I should provoke a similar reproof from a devout reader, let me leave the Lamp of Wit upon the altar of justice and retire from the pulpit.