ADVOCACY needs the “king-becoming graces: devotion, patience, courage, fortitude.” Advocacy is a form of combat where courage in danger is half the battle. Courage is as good a weapon in the forum as in the camp. The advocate, like Cæsar, must stand upon his mound facing the enemy, worthy to be feared, and fearing no man.
Unless a man has the spirit to encounter difficulties with firmness and pluck, he had best leave advocacy alone. Richard Bethell, Lord Westbury, in early life took for his motto: “De l’audace et encore de l’audace, et toujours de l’audace.” In advising on a case he was always clear and direct, saying that he was “paid for his opinion, not for his doubts.” Charles Hatton, writing as a layman of Jeffreys in his early days at the bar, shrewdly notes his best quality: “He hath in perfection the three chief qualifications of a lawyer: Boldness, Boldness, Boldness.” A modern advocate kindly reproving a junior for his timidity of manner wisely said: “Remember it is better to be strong and wrong than weak and right.”
The belief that success in advocacy can be attained by influence, apart from personal qualifications, is ill-founded. There was never a youngster with better backing than Francis North, afterwards Lord Keeper to Charles II., yet, as his biographer says, “observe his preparatives,” his earnest attendances at moots, his diligent waiting in that “dismal hole” the “corner chamber, one pair of stairs in Elm Court.”
In the same way his younger brother, Roger, though born in the ermine, so to speak, had to plod his way up like any other junior. It is good to be the brother of a Lord Chancellor, but it does not make a man an advocate.
Roger North’s autobiography is full of interest to the student of advocacy. His memory of his first appearance is vivid and entertaining. “I was immediately called,” he writes, “to the Bar, ex gratiâ, not having standing, although I had performed such exercises as the house required, save a few. My first flight in practice was the opening a declaration at Nisi Prius in Guildhall, under my brother, which was a crisis like the loss of a maidenhead; but with blushing and blundering I got through it, and afterwards grew bold and ready at such a formal performance; but it was long ere I adventured to ask a witness a question.”
Roger North would never have attained the eminence he did in his profession by merely hanging on to the gown of his greater brother. Hard work and dogged courage, not patronage, earned him the dignities he achieved. The description of his early beginnings is full of encouragement for the young advocate. “During my practice under Hale,” he says, “at the King’s Bench I was raw, and not at all quaint and forward as some are, so that I did but learn experience and discover my own defects, which were very great. I was a plant of a slow growth, and when mature but slight wood, and of a flashy fruit. But my profession obliged me to go on, which I resolved to do against all my private discouragements, and whatever absurdities and errors I committed in public I would not desist, but forgot them as fast as I could, and took more care another time. My comfort was, if some, all did not see my failings, and those upon whom I depended, the attorneys and suitors, might think the pert and confident forwardness I put on might produce somewhat of use to them.”
North held the sound opinion that “he who is not a good lawyer before he comes to the Bar, will never be a good one after it.” It is very true that learning begets courage, and wise self-confidence can only be founded on knowledge. The long years of apprenticeship, the studious attention to “preparatives,” are, to the advocate, like the manly exercises of the young squire that enabled the knight of old to earn his spurs on the field of battle. In no profession is it more certain that “knowledge is power,” and when the opportunity arrives, knowledge, and the courage to use it effectively, proclaim the presence of the advocate.
The best instance of what is meant perhaps may be found in Sir John Hollams’s account of the first appearance of Mr. Benjamin. He was a great lawyer before he addressed the court, but he sat down a great advocate. It was in a case which came on for hearing before Lord Justice James, then Vice-Chancellor, and “it appeared to be generally thought that, as usual at the time, a decree would be made directing inquiries in chambers. The matter was being so dealt with when Mr. Benjamin, then unknown to any one in Court, rose from the back seat in the Court. He had not a commanding presence, and at that time had rather an uncouth appearance. He, in a stentorian voice, not in accord with the quiet tone usually prevailing in the Court of Chancery, startled the Court by saying, ‘Sir, notwithstanding the somewhat off-hand and supercilious manner in which this case has been dealt with by my learned friend Sir Roundell Palmer, and to some extent acquiesced in by my learned leader Mr. Kay, if, sir, you will only listen to me—if, sir, you will only listen to me’ (repeating the same words three times, and on each occasion raising his voice), ‘I pledge myself you will dismiss this suit with costs.’ The Vice-Chancellor and Sir Roundell Palmer, and indeed all the Court, looked at him with a kind of astonishment, but he went on without drawing rein for between two and three hours. The Court became crowded, for it soon became known that there was a very unusual scene going on. In the end the Vice-Chancellor did dismiss the suit with costs, and his decision was confirmed on appeal.”
There have been many advocates whose courage was founded on humour rather than knowledge, and who have successfully asserted their independence in the face of an impatient or overbearing Bench through the medium of wit, where mere wisdom might have failed in effect.
Of such was Tom Jones, who startled Mr. Justice Byles into indignant attention by opening his case with bold impertinence: “No one, my lords, who looks at this case with common fairness and honesty, can hesitate for a moment in declaring that there ought to be a new trial.”
Byles observed, “This is rather strong language to use to us, Mr. Jones. I hope you think that we, at the least, are commonly fair and honest.”
“We shall see, my lord,” said Tom; “we shall see.”
Serjeant Robinson tells us a further good story of Tom’s refusal to be hustled by the Bench.
“Our friend Tom Jones,” he writes, “was a little lengthy sometimes in the exposition of his client’s rights, and one day the chief baron said to him, ‘Mr. Jones, this case has occupied a great deal of time, and we have a very long list of cases to get through.’
“‘My lord,’ said Tom, ‘I have carefully looked through that list, and I did not find there was a single cause in which I or my client was in the slightest degree interested.’”
But these sallies should never degenerate into mere incivility or abuse, in which there is little real courage, since a judge of sense will always refrain, if it be at all possible, from reply to such attacks, which only injure the reputation of the Bar and destroy the reputation of the advocate.
In the early days of American Sessions a certain judge was violently attacked by a young and very impudent attorney. To the manifest surprise of everybody present, the judge heard him quite through as though unconscious of what was said, and made no reply. After the adjournment of the day, and all had assembled at the inn where the judge and many of the attorneys had their lodgings, one of the company, referring to the scene in court, asked the judge why he did not rebuke the impertinent fellow.
“Permit me,” said the judge, loud enough to call the attention of all the company, among whom was the fellow in question—“permit me to tell you a story. My father, when we lived down in the country, had a dog—a mere puppy, I may say. Well, this puppy would go out every moonlight night and bark at the moon for hours together.” Here the judge paused, as if he had done with his story.
“Well, what of it?” exclaimed half-a-dozen of the audience at once.
“Oh, nothing, nothing whatever; the moon kept right on, as if nothing had happened.”
Independence without moderation becomes licentiousness, but true independence is an essential attribute of advocacy, and the English Bar has never wanted men endowed with this form of true courage. The sacrifice of the highest professional honours to the maintenance of principle has been a commonplace in the history of English advocates, and the names of the living could be added if need be to those who have passed away, leaving us this clean heritage as example.
The true position of the independence of the English Bar, the right and the duty of the advocate to appear in every case, however poor, degraded, or wicked the party may be, is laid down once and for all in a celebrated speech of Erskine’s in his defence of Thomas Paine, who was indicted in 1792 for publishing the Rights of Man. Great public indignation was expressed against Erskine for daring to defend Paine. As he said in his speech, “In every place where business or pleasure collects the public together, day after day, my name and character have been the topics of injurious reflection. And for what? Only for not having shrunk from the discharge of a duty which no personal advantage recommended, and which a thousand difficulties repelled.”
He then continued, in words which the learned editor of Howell’s State Trials emphasises by printing in capital letters, to enunciate one of the basic principles of English advocacy:
“Little, indeed, did they know me, who thought that such calumnies would influence my conduct: I WILL FOR EVER, AT ALL HAZARDS, ASSERT THE DIGNITY, INDEPENDENCE, AND INTEGRITY OF THE ENGLISH BAR; WITHOUT WHICH, IMPARTIAL JUSTICE, THE MOST VALUABLE PART OF THE ENGLISH CONSTITUTION, CAN HAVE NO EXISTENCE. From the moment that any advocate can be permitted to say that he will or will not stand between the Crown and the subject arraigned in the court where he daily sits to practise—from that moment the liberties of England are at an end. If the advocate refuses to defend, from what he may think of the charge or of the defence, he assumes the character of the judge; nay, he assumes it before the hour of judgment; and, in proportion to his rank and reputation, puts the heavy influence of perhaps a mistaken opinion into the scale against the accused, in whose favour the benevolent principle of English law makes all presumptions, and which commands the very judge to be his counsel.”
Side by side with this may be set the grand example of William Henry Seward in acting in the defence of the negro Freeman in 1846. A horrible murder was committed. Without any provocation or desire for plunder, Freeman killed a farmer and several of his family. He was easily captured, when he laughed in the face of his captors and acknowledged the crime. He was a recently emancipated slave, deaf, and obviously insane. The sheriff had the greatest difficulty in preventing him from being lynched. The clergyman at the victims’ funeral made a rousing appeal for his punishment, which was printed and circulated round the district.
Seward undertook his defence, and a storm of prejudice and passion was directed against him to dissuade him from doing what he believed to be his duty as an advocate. In the crowded court-house, when the judge asked, “Will any one defend this man?” and Seward rose, and said he was counsel for the prisoner, a murmur of indignation ran round the court. His advocacy was of no avail to the individual, but his eloquent speech remains a noble statement of the duty of the advocate, and a fine example of devotion and courage in the exercise of that duty.
The whole speech is worthy of study, as it contains a glowing and reasoned appeal for the right of the most degraded human being in a civilised state to a real hearing of his case in a judicial court, which can only be obtained through honest and competent advocacy.
As the yellow harvest-moon rose outside the darkening court-house his peroration was listened to by the indignant crowd with, at least, outward respect, and it remains a message of encouragement to the advocates of future generations.
“In due time, gentlemen of the jury, when I shall have paid the debt of nature, my remains will rest here in your midst with those of my kindred and neighbours. It is very possible they may be unhonoured, neglected, spurned! But perhaps years hence, when the passion and excitement which now agitate this community shall have passed away, some wandering stranger, some lone exile, some Indian, some negro, may erect over them an humble stone, and thereon this epitaph: ‘He was faithful.’”
These words, as he desired, are engraved on the marble over him, and he is remembered at the American Bar as an advocate who upheld its best traditions, and feared not to hold aloft the Lamp of Courage.