To give the bog-trotter time to write his history, the Captain turned his attention for a while to other objects. There was an old lawyer in the village that had left off practice, and accompanied by a blind[fiddler, gave lectures occasionally, at what he called his inns of court, on the practice of the law, of which he pretended to have had great experience; and in fact he had been a long time at the bar; and from age was now unfit for the circuit, especially being blind and unless in a carriage, which the roads did not well admit, could not conveniently go abroad; and the small practice of the village, scarcely sufficed for the occupation of his time, or the means of his support. The want of sight rendered him incapable of conveyancing, and all he could do was to give council, or argue a cause by which he made a penny; but to fill up his time, and put his learning to account, he had set on foot lectures for young students, and amused himself at intervals with a tune on the violin which the fiddler played, and for which the by standers threw in a five penny bit of silver, such of them as did not attend to the law lecture, or could derive any benefit from it. Thus, these two, clubbing their talents, and joining in amusement, and in business as joined in the loss of vision, made a living; the scraper receiving his six cents and a half for his tune on the instrument, and the lawyer the same money for his breath on the abstract subject of the study and practice of law.
It may be asked how it came to pass, that this man could lay down the principles of a successful practice in a profession, and at the same time not to have become enriched by it himself, so as to be above the necessity in his old age, or making money, by the best means in his power to procure his support, the profession being lucrative itself, especially where any one excels in the knowledge of it, and is ordinarily industrious in the pursuit?. But the answer is easy; that the making money and keeping it are two distinct things: for so it was that the lawyer now blind, had let a great deal of business go through his hands, without making much by it; from a want of skill to make money stick. He thought always more of gaining the suit and the praise of managing it well, than of the fee. Hence it was that he had credit as a pleader, but not as the maker of a great estate.
It is doubtless a general rule that the way to be rich is to excel in your profession, and whoever excels may in general be rich, and it is a folly not to make this use of it. But we see that with all the lovers of the arts, painting, music, statuary, eloquence, there is a neglect of riches, the mind carried off from the love of money, and placed upon the art itself. The main chance is overlooked; and it is only late in life that the folly is discovered by the person himself, though others had been remarking it all his life long. But though not profitable to the professor, to cultivate an art for its own sake, yet it is useful and pleasing to the world; and Quintillian who has left us a book on the eloquence of the bar, is more valued in memory, because he has given more pleasure to those who have come after him, than others who had made perhaps more by their practice, but whose memory has gone with themselves, at the same time that their estates went to others.
It is necessary to comprehend perfectly the facts of the case, and this to enable;
1. To frame the action; trespass, or trespass on the case, &c.
2. To frame your declaration: that is, to put a precise statement of the cause of action upon the record.
3. To examine the witnesses, preparatory to the trial.
I say nothing of the science necessary to draw a declaration; though there is great delicacy and beauty in making a legal statement of your cause of action with brevity, perspicuity, and technical correctness. Nor do I mean to touch on the vigilance on your part, or illiberality to your adversaries, in conducting the cause to issue and trial, taking rules and giving notice. This is not the state where all advantage is fair. These are preliminaries to the contest, and as in the wager of battle the combatant makes oath, that he uses no enchantment; so a liberal lawyer will disdain to avail himself of an oversight, or take a catch which has no effect upon the merits of a cause. If he observes a defect which it becomes necessary to amend, in civil cases, he will point it out and give leave to do it. This I grant he is not bound to do; but it is for the credit of the profession that such liberality should be cultivated, and justice wil lose nothing by it. Strict rules of pleading, strictly pursued, are not inconsistent with this liberality. Professional men, can understand the boundaries and distinctions. It is not within my present compass to go into them.
Preparatory to the trial; a great point is, the examination of the witnesses to be adduced by your client; such of them as are willing to say what they know, prior to their being called in court. It is of moment for you to know what you can prove by any of them, that you may bring them to the point immediately; and save the time of the court from impertinent relation. It is necessary for the sake of your client to sift them well, and know the testimony they are about to give. The council above who has thus sifted them, should undertake to examine. When the conduct of the cause, rest with me, and the responsibility, I would suffer no assistant to ask a question of my witnesses. Let him take his turn, and fill up his part in cross examining the witnesses of the adversary. When the testimony is closed in a jury trial, the cause is usually lost or won: and a single question injudiciously put, may have been the cause of losing it. Yet there is nothing more difficult for a leading counsel than to restrain the impetuosity of his associates, and their avidity to ask questions.
It is a matter of great judgment when a witness has answered well, to let the answer rest. It is favourable to truth to let it rest; for by putting it again, and again, you confuse the mind, and you may get the very reverse of what he had before said; or at least you may get it so disturbed, as to be unintelligible, and do you no good.
If it occur to an assistant council who has not previously examined; that a question may be put with advantage, he can suggest it to the leading, or examining council, and leave him to judge. The wish of seeming to be doing something for his money is the cause of that propensity to interrogate that prompts improperly to take up the examination.
The taking down the testimony is so managed as to consume time unnecessarily in our courts. Each concerned in a cause, must take down and wait for all. The testimony must be taken as if it was to be read again to the court, or sent to the jury in the style of a written deposition. Unnecessary matter is taken down; for there are seldom more than a few sentences in the testimony of a witness that are material to the cause. But it is to seem very busy, and doing something for the client, where in fact nothing is done, that leads to an ostentation of taking down, even where there is nothing to take. I have actually known this to take place at the bar.
Well; what do you know of this matter?
Why, in fact, I know little about it.
Stop, stop a little, let me take that down.
Well; you say you know little about the matter.
Nothing at all--only--
Stop, stop, let me take down what you have said--
A thing like this exhausts the patience; yet it is difficult for a court to correct it. It must depend upon the good sense of the council themselves, to select and confine their notes to what is of substance in the evidence.
The greatest effort in the management of a cause, it the taking exception to evidence. For this purpose, it is necessary that from the commencement of the trial, the leading counsel lies by; thinks much; says little; bends his whole mind, to preserve himself unruffled: sets forward the junior, and assistant council to spar where it may be necessary; to make prolusions, and gain time.
As for instance; a piece of evidence is offered. It strikes the leading council, that exception lies against it. But he is not clear; nor is he prepared to support the exception. An assistant council takes the exception. It is run down and completely answered. Not a word more: But the leading council has had time to consider.
If he had not thought proper to give it up; he would have risen in full force.
And if he had been answered with some shew of reason, the assistant would have rejoined, and done justice to the argument. For let it not be thought that though I mark the parts of the assistant council, I do not well know that the greater lawyer, may have the subordinate part assigned him; or may fall into that place, in the management of a cause, on the trial. The greater general may happen to have the command of a detachment only; or be employed to bring on, or relieve, in the course of an engagement.
For law is an image of war; and as in war, the greatest praise is to discharge your duty wherever it may be assigned; so, on a trial. A column standing still, and never brought forward, or discharging a shot, but simply keeping ground, may have done the real execution, and gained the battle. A thought suggested is sometimes more than an argument.
But, nevertheless, elocution has its place, and noble praise. It is delightful to hear one speak well where he ought to speak. The words of the wise are like nails; fastened in sure places. Great indulgence must be made, for young pleaders; but I have it not in view to treat, not of what is to be indulged; but of what is to be approved. Brevity is the soul of eloquence, and amplification, the useful fault. Few err in saying too little. Tediousness is the more common extreme: padding, and beating on the point. After a passion is excited, there is danger of tearing it to rags.
The opening of the case, before the evidence is introduced, is a matter of some delicacy; and a principle is brevity; and stating the proper proof, rather below what it will turn out. When disappointed in the expectation raised, the mind is dissatisfied, and with difficulty can do justice to what is proved. It is in the application of the evidence that eloquence finds her province at the bar. And yet here it is that less harm can be done by weak or unskilful advocates, than in any part of the contest. The court and jury are attached to the evidence.
The mind is steadfast upon this, and if a flourisher runs off; he may talk; it is only a loss of time. It is here that less experienced council may be suffered to amuse themselves; and can do little harm, more especially if there is some one to follow to review the facts, apply the law, and clench the argument. The harm that can be done, is to weary the mind, and relax the spring of attention. This is mischievous; but cannot well be prevented. The counsel must be heard. But there is much less danger to a cause, in this, than from an injudicious touch in the conduct of it, through the evidence.
With regard to reading authorities in the opening, or reply; or in the conduct of the trial generally, I have but a single observation. It is better to adduce no authority, at all, than one which has a doubtful application, because it brings in question the discernment of the council; and gives an opportunity to the adversary, to flourish and run down. General reason is a safer ground, than doubtful decisions.