CHAPTER XII

THE MORALITY BILL, ACCESSION, AND CORONATION OATHS AND DECLARATIONS 203

APPENDICES.

APPENDIX A DIVORCE 229

APPENDIX B CORONERS 233

APPENDIX C THE ROYAL MARRIAGES ACT, 1772 237

APPENDIX D EXECUTIONS 239

APPENDIX E AN ENGLISH LEGITIMATION BILL 243

APPENDIX F THE CRIMINAL APPEAL ACT, 1907 244

APPENDIX G THE CORONATION OATH OF KING GEORGE V 262

APPENDIX H THE POOR PRISONERS’ DEFENCE ACT, THE PERJURY BILL, AND THE CRIMINAL EVIDENCE ACT 265

I DEDICATE THIS WRITING TO MY FRIEND, William H. Cozens-Hardy, OF LINCOLN’S INN.

S. B. C.

ANOMALIES OF THE ENGLISH LAW

INTRODUCTION[1]

“Authors have long got the credit of being the most accomplished persons going--thoroughly conversant not only with the features of every walk of life, but, also, with their intimate sentiments, habits of thought, and modes of expression. Now, I have long been of opinion that, in all these respects, lawyers are infinitely their superiors. The author chooses his characters as you choose your dish, or your wine at dinner--he takes what suits, and leaves what is not available to his purpose. He then fashions them to his hand--finishing off this portrait, sketching that one--now bringing certain figures into strong light, anon throwing them into shadow: they are his creatures, who must obey him while living, and even die at his command.

“Now, the lawyer is called upon for all the narrative and descriptive powers of his art, at a moment’s notice, without time for reading or preparation; and worse than all, his business frequently lies among the very arts and callings his taste is most repugnant to. One day he is to be found creeping, with tortoise slowness, through all the wearisome intricacy of an equity case--the next, he is borne along in a torrent of indignant eloquence, in defence of some Orange processionist or some Ribbon associate; now he describes, with the gravity of a landscape gardener, the tortuous windings of a mill-stream: then, he expatiates in Lytton Bulwerisms over the desolate hearth and broken fortunes of some deserted husband. In one court he attempts to prove that the elderly gentleman, whose life was insured for a thousand at the Phœnix, was instrumental to his own decease, for not eating cayenne with his oysters; in another, he shows, with palpable clearness, that being stabbed in the body, and having the head fractured, is a venial offence--merely the result of ‘political excitement’ in a high-spirited and warm-hearted people.... These are all clever efforts, which demand consummate powers of him who makes them; but what are they to that profound and critical research with which he seems, instinctively, to sound the depths of every scientific walk in life, and every learned profession.

“Hear him in a lunacy case--listen to the deep and subtle distinctions he draws between symptoms of mere eccentricity and erring intellect--remark how insignificant the physician appears in the case, who has made these things the study of a life long--hear how the barrister confounds him with a hail-storm of technicals--talking of the pineal gland as if it were an officer of the court, and of atrophy of the cerebral lobes, as if he were speaking of an attorney’s clerk. Listen to him in a trial of supposed death by poison; what a triumph he has there, particularly if he be a junior barrister--how he walks undismayed among all the tests for arsenic; how little he cares for Marsh’s apparatus and Scheele’s discoveries--hydro-sulphates, peroxydes, iodurates, and proto-chlorides are as familiar to him as household words. You would swear that he was nursed at a glass retort, and sipped his first milk through a blow-pipe.

“Like a child who thumps the keys of a pianoforte, and imagines himself a Liszt or Moschelles, so does your barrister revel amid the phraseology of a difficult science, pelting the witnesses with his blunders, and assuring the jury that their astonishment means ignorance. Nothing in anatomy is too deep--nothing in chemistry too subtle; no fact in botany too obscure--no point in metaphysics too difficult. Like Dogberry, these things are to him but the gift of God, and he knows them at his birth. Truly, the Chancellor is a powerful magician; and the mystic words by which he calls a gentleman to the Bar must have some potent spell within them.

“The youth you remember as if it were yesterday, the lounger at evening parties, or the chaperon of riding damsels to the Phœnix, comes forth now a man of deep and consummate acquirement--he, whose chemistry went no further than the composition of a ‘tumbler of punch,’ can now perform the most difficult experiments of Orfila or Davy, or explain the causes of failure in a test that has puzzled the scientific world for half a century. He knows the precise monetary value of a deserted maiden’s affections--he can tell you the exact sum, in bank notes, that a widow will be knocked down for, when her heart has been subject to but a feint attack by Cupid. With what consummate skill, too, he can show that an indictment is invalid, when stabbing is inserted for cutting; and when the Crown prosecutor has been deficient in his descriptive anatomy, what a glorious field for display is opened to him.

“Then, to be sure, what droll fellows they are!--how they do quiz the witness as he sits trembling on the table; what funny allusions to his habits of life, his age, his station; turning the whole battery of their powers of ridicule against him--ready, if he ventured to retort, to throw themselves on the protection of the court! And truly, if a little Latin suffice for a priest, a little wit goes very far in a law court. A joke is a universal blessing; the judge, who, after all, is only ‘an old lawyer,’ loves it from habit: the jury, generally speaking, are seldom in such good company, and they laugh from complaisance; and the Bar joins in the mirth, on that great reciprocity principle, which enables them to bear each other’s dulness, and dine together afterwards.

“What set me first on this train of thought was a trial I lately read, where a cross action was sustained for damage at sea--the owners of the brig _Durham_ against the _Aurora_, a foreign vessel, and _vice versâ_, for the result of a collision at noon, on the 14th of October. It appeared that both vessels had taken shelter in the Humber from stress of weather, nearly at the same time--that the _Durham_, which preceded the Prussian vessel, ‘clewed up her topsails, and dropped her anchor _rather_ suddenly: and the _Aurora_ being in the rear, the vessels came into collision.’ The question, therefore, was, whether the _Durham_ came to anchor too precipitately, and in an unseamanlike manner; or, in other words, whether, when the ‘_Durham_ clewed up topsails and let go her anchor, the _Aurora_ should not have luffed up, or got sternway on her,’ etc.

“Nothing could possibly be more instructive, nor anything scarcely more amusing, than the lucid arguments employed by the counsel on both sides. The learned Thebans, who would have been sick in a ferry-boat, spoke as if they had circumnavigated the globe. Stay-sails, braces, top-gallants, clews, and capstans they hurled at each other, like _bon bons_ at a carnival; and this naval engagement lasted from daylight to dark. Once only, when the judge ‘made it noon,’ for a little reflection, did they cease conflict, to renew the strife afterwards with more deadly daring, until, at last, so confused were the witnesses--the plaintiff, defendant, and all, that they half wished they had gone to the bottom, before settling their differences in the Admiralty Court.

“This was no common occasion for the display of these powers so peculiarly the instinctive gift of the Bar, and certainly they used it with all the enthusiasm of a _bonne bouche_.... How I trembled for the _Aurora_, when an elderly gentleman, with a wart on his nose, assured the court that the _Durham_ had her topsail backed ten minutes before the anchor fell; and then, how I feared again for the _Durham_, as a thin man in spectacles worked the Prussian about in a double-reefed main-sail, and stood round in stays so very beautifully. I thought myself at sea, so graphic was the whole description--the waves splashed and foamed around the bulwarks, and broke in spray upon the deck; the wind rattled amid the rigging, the bulkheads creaked, and the good ship heaved heavily in the trough of the sea, like a mighty monster in its agony. But my heart quailed not--I knew that Dr. Lushington was at the helm, and Dr. Haggard had the look-out ahead--I felt that Dr. Robinson stood by the lee braces, and Dr. Addison waited, hatchet in hand, to cut away the mainmast! These were comforting reflections, until I was once more enabled to believe myself in Her Majesty’s High Court of Admiralty.

“Alas! ye Coopers, ye Marryats, ye Chamiers--ye historians of storm and sea-fight, how inferior are your triumphs compared with the descriptive eloquence of a law court. Who can portray the broken heart of blighted affection like Charles Phillips in a breach of promise case? What was Scott compared to Scarlett?--how inferior is Dickens to Counsellor O’Driscoll?--here are the men, who, without the trickery of trade, ungilt, unlettered, and unillustrated, can move the world to laughter and tears. They ask no aid from Colburn, nor from Cruikshank--they need not ‘Brown’ nor Longman, Heaven-born warriors, doctors, chemists, and anatomists; deep in every art, learned in every science--mankind is to them an open book, which they read at will, and con over at leisure--happy country, where your talents are so available that they can be had for the asking.”

FOOTNOTE

[1] A satire on barristers, by Charles Lever.

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