As, for example: "Gentlemen of the jury, I smell a rat--but I'll nip it in the bud." And, "My client acted boldly. He saw the storm brewing in the distance, but he was not dismayed! He took the bull by the horns and he _indicted him for perjury_."

Peter Burrowes, a well-known member of the Irish Bar, was on one occasion counsel for the prosecution at an important trial for murder.

Burrowes had a severe cold, and opened his speech with a box of lozenges in one hand and in the other the small pistol bullet by which the man had met his death. Between the pauses of his address he kept supplying himself with a lozenge. But at last, in the very middle of a 'high-falutin' period, he stopped. His legal chest heaved, his eyes seemed starting from his head, and in a voice tremulous with fright he exclaimed: "Oh! h-h!!! Gentlemen, gentlemen; I've swallowed the bul-let!"

An Irish counsel who was once asked by the judge for whom he was "concerned," replied: "My lord, I am retained by the defendant, and therefore I am concerned for the plaintiff."

A junior at the Bar in course of his speech began to use a simile of "the eagle soaring high above the mists of the earth, winning its daring flight against a midday sun till the contemplation becomes too dazzling for humanity, and mortal eyes gaze after it in vain." Here the orator was noticed to falter and lose the thread of his speech, and sat down after some vain attempts to regain it; the judge remarking: "The next time, sir, you bring an eagle into Court, I should recommend you to clip its wings."

Mr. Tim Healy's power of effective and stinging repartee is probably unexcelled. He is seldom at a loss for a retort, and there are not a few politicians and others who regret having been foolish enough to rouse his resentment. There is on record, however, an amusing interlude in the pa.s.sing of which Tim was discomfited--crushed, and found himself unable to "rise to the occasion."

During the hearing of a case at the Recorder's Court in Dublin the Testament on which the witnesses were being sworn disappeared. After a lengthy hunt for it, counsel for the defendant noticed that Mr. Healy had taken possession of the book, and was deeply absorbed in its contents, and quite unconscious of the dismay its disappearance was causing.

"I think, sir," said the counsel, addressing the Recorder, "that Mr.

Healy has the Testament." Hearing his name mentioned, Mr. Healy looked up, realised what had occurred, and, with apologies, handed it over.

"You see, sir," added the counsel, "Mr. Healy was so interested that he did not know of our loss. He took it for a new publication." For once Mr. Healy's nimble wit failed him, and forced him to submit to the humiliation of being scored off.

In the North of Ireland the peasantry p.r.o.nounce the word witness "wetness." At Derry a.s.sizes a man said he had brought his "wetness" with him to corroborate his evidence. "Bless me," said the judge, "about what age are you?"--"Forty-two my last birthday, my lord," replied the witness. "Do you mean to tell the jury," said the judge, "that at your age you still have a wet nurse?"--"Of course I have, my lord." Counsel hereupon interposed and explained.

The witness who gave the following valuable testimony, however, was probably keeping strictly to fact. "I sees Phelim on the top of the wall. 'Paddy,' he says. 'What,' says I. 'Here,' says he. 'Where?' says I. 'Hush,' says he. 'Whist,' says I. And that's all."

The wit of the Irish Bar seems to infect even the officers of the Courts and the people who enter the witness-box. It is impossible, for example, not to admire the fine irony of the usher who, when he was told to clear the Court, called out: "All ye blaggards that are not lawyers lave the building."

Irish judges have much greater difficulties to contend against, because the people with whom they have to deal have a fund of ready retort.

"Sir," said an exasperated Irish judge to a witness who refused to answer the questions put to him--"sir, this is a contempt of Court."--"I know it, my lord, but I was endeavouring to concale it," was the irresistible reply.

A certain Irish attorney threatening to prosecute a printer for inserting in his paper the death of a person still living, informed him that "No person should publish a death unless informed of the fact by the party deceased."

A rather amusing story is told of a trial where one of the Irish jurymen had been "got at" and bribed to secure the jury agreeing to a verdict of "Manslaughter," however much they might want to return one upon the capital charge of "Murder." The jury were out for several hours, and it was believed that eventually the result would be that they would not agree upon a verdict at all. However, close upon midnight, they were starved into one, and it was that of "Manslaughter." Next day the particular juryman concerned received his promised reward, and in paying it, the man who had arranged it for him remarked: "I suppose you had a great deal of difficulty in getting the other jurymen to agree to a verdict of 'Manslaughter'?"--"I should just think I did," replied the man. "I had to knock it into them, for all the others--the whole eleven of them--wanted to acquit him."

An Irish lawyer addressed the Court as _Gentlemen_ instead of _Your Honours_. When he had concluded, a brother lawyer pointed out his error.

He immediately rose and apologised thus: "In the heat of the debate I called your honours gentlemen,--I made a mistake, your honours."

CHAPTER FIVE

THE JUDGES OF SCOTLAND

"Ye Barristers of England Your triumphs idle are, Till ye can match the names that ring Round Caledonia's Bar.

Your _John Doe_ and your Richard Roe Are but a paltry pair: Look at those who compose The flocks round Brodie's Stair, Who ruminate on Shaw and Tait And flock round Brodie's Stair.

"But, Barristers of England, Come to us lovingly, And any Scot who greets you not We'll send to Coventry.

Put past your brief, embark for Leith, And when you've landed there, Any wight with delight Will point out Brodie's Stair Or lead you all through Fountainhall Till you enter Brodie's Stair."

OUTRAM: _Legal and other Lyrics_.

CHAPTER FIVE

THE JUDGES OF SCOTLAND

From the Inst.i.tution of the Court of Session by James V of Scotland till well into the nineteenth century, it was the custom of Scottish judges when taking their seat on the Bench to a.s.sume a t.i.tle from an estate--it might even be from a farm--already in their own or their family's possession. So we find that nearly every parish in Scotland has given birth to a judge who by this practice has made that parish or an estate in it more or less familiar to Scottish ears. Monboddo, near Fordoun, in Kincardineshire, at once recalls the judge who gave "attic suppers" in his house in St. John Street, Edinburgh, and held a theory that all infants were born with tails like monkeys; but under the modern practice of simply adding "Lord" to his surname of Burnet, we doubt if his eccentric personality would be so readily remembered. Lord Dirleton's _Doubts_, Lord Fountainhall's _Historical Observes_, carry a more imposing sound in their t.i.tles than if those one-time indispensable works of reference had been simply named Nisbet on Legal Doubts, and Lauder on Historical Observations of Memorable Events.

The selection of a t.i.tle was an important matter with these old judges.

When Lauder was raised to the Bench, his estate to the south-east of Edinburgh was called Woodhead; but it would never have done for a Senator of the College of Justice to be known as "Lord Woodhead," so the name of the estate was changed to Fountainhall, and as Lord Fountainhall he took his seat among "the Fifteen" as the full Bench of judges was then termed.

These old-time judges with their rugged ferocity, corruption, and occasionally brave words and deeds, in a great measure present to us now a miniature history of Scotland in the seventeenth and eighteenth centuries. "Show me the man, and I will show you the law," one is reported to have said, meaning that the litigant with the longest purse was pretty certain to win his case in the long run. They delighted in long arguments, and highly appreciated bewilderment in pleadings; "Dinna be brief," cried one judge when an advocate modestly asked to be briefly heard in a case in which he appeared as junior counsel. But the tendency to delay cases in the old Courts stretched beyond all reasonable lengths and became a scandal to the country. It was not a question of a month or even a year. Years pa.s.sed and still cases remained undecided, some even were pa.s.sed on from one generation to another--a litigant by his will handing on his plea in the Court to his successor along with his estate.

This protracted delay in deciding causes formed the subject of that highly amusing and characteristic skit on the Scottish judges for which Boswell was largely responsible:

THE COURT OF SESSION GARLAND

PART FIRST

The Bill charged on was payable at sight And decree was craved by Alexander Wight;[1]

But, because it bore a penalty in case of failzie It therefore was null contended Willie Baillie.[2]

The Ordinary not chusing to judge it at random Did with the minutes make avizandum.

And as the pleadings were vague and windy His Lordship ordered memorials _hinc inde_.

We setting a stout heart to a stey brae Took into the cause Mr. David Rae:[3]

Lord Auchenleck,[4] however, repelled our defence, And over and above decerned for expence.

However of our cause not being asham'd, Unto the whole Lords we straightway reclaim'd; And our pet.i.tion was appointed to be seen, Because it was drawn by Robbie Macqueen.[5]

The answer of Lockhart[6] himself it was wrote, And in it no argument or fact was forgot; He is the lawyer that from no cause will flinch, And on this occasion divided the Bench.

Alemoor,[7] the judgment as illegal blames, 'Tis equity, you b.i.t.c.h, replies my Lord Kames;[8]

This cause, cries Hailes,[9] to judge I can't pretend, For Justice, I see, wants an _e_ at the end.

Lord Coalston[10] expressed his doubts and his fears, And Strichen[11] then in his weel weels and O dears; This cause much resembles that of M'Harg, And should go the same way, says Lordy Barjarg.[12]

Let me tell you, my Lords, this cause is no joke; Says with a horse laugh my Lord Elliock[13]

To have read all the papers I pretend not to brag, Says my Lord Gardenstone[14] with a snuff and a wag.

Up rose the President,[15] and an angry man was he, To alter this judgment I never can agree; The east wing said yes, and the west wing cried not, And it carried ahere by my Lord's casting vote.

This cause being somewhat knotty and perplext, Their Lordships not knowing what they'd determine next; And as the session was to rise so soon, They superseded extract till the 12th of June.

PART SECOND