[figure description] Page 040.[end figure description]

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 fidler, 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 fidler 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, clubbing their talents,
and joining in amusement, and in business as

[figure description] Page 041.[end figure description]

joined in the loss of vision, they 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 the law.

It may be asked how it came to pass, that he 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, of 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 this 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 Quintilian who has left us a
book on the eloquence of the bar, is more valued,

[figure description] Page 042.[end figure description]

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.

As a sample of the lectures of the blind lawyer,
we shall give the following.

[figure description] Page 043.[end figure description]

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 liberality, to your adversaries, in conducting the
cause to issue and trial, taking rules and giving notice.
This is not the stage where all advantages are
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 will lose nothing by

[figure description] Page 044.[end figure description]

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
one 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 sitted them, should undertake to examine. When
the conduct of the cause, rests 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 council 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 occurs 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

[figure description] Page 045.[end figure description]

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. All
concerned in a cause, must take down and wait for all.
The testimony must be taken down 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,
is the taking exception to evidence. For this purpose,
it is necessary that from the commencement of the
trial, the leading council 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.

[figure description] Page 046.[end figure description]

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 usual fault. Few err
in saying too little. Tediousness is the more common
extreme: padding, and beating on the point.

[figure description] Page 047.[end figure description]

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 stedfast
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 council 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.

Previous section

Next section