Abstract
Greater eloquence began to be heard in courts during the eighteenth century resulting from wider knowledge of classic literature and rhetorical style. The effect of contemporary poetry, used to awaken generous sympathies in jurors, and of literature, including that of Sir William Blackstone which may be regarded as such, in enriching vocabulary and providing advocates in the later eighteenth century with more allusions on which to draw is considered, as is the florid and emotional style, taken to new heights by barristers from Ireland. Contributions by prominent barristers to advocacy, conspicuously Thomas Erskine, who also did much to establish the moral basis for its practise, are described. Mention is made of previous cases becoming binding authority, the doctrine of stare decisis, before courts in the eighteenth century and the effects of this on advocates, who had to adapt their submissions to take account of that key change.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
These reports, made between 1163 and 1858, chiefly cover cases of high treason but also include bigamy, sedition, seditious libel, murder involving high ranking officials or peers, riot, piracy, witch craft, bribery and corruption. The quality of reporting, especially in early cases, is variable, but increased in the late seventeenth century, when good shorthand writers were employed. It is difficult to say how representative the cases reported in the State Trials are of criminal trials more generally, of which there are few records. See Sir James FitzJames Stephen, A History of the Criminal Law of England, London, Macmillan and Co., 1883, Vol. I, Chapter XI, page 345.
- 2.
Sweet and Maxwell, London, 1921.
- 3.
The Trial of Sir Walter Raleigh, 1 State Trials (1730) page 205.
- 4.
In the opinion of Sidney W. Clarke, writing in 1896, (William Andrews ed. The Lawyer in History, Literature and Humour, William Andrews and Co, London, 1896 page 56) the phrase “if thou thou’st him some thrice”, said by Sir Toby Belch in the course of directing Sir Andrew Ague-Cheek, in Act iii, Scene 2 of Twelfth Night, probably first performed in Middle Temple Hall on 2nd February 1602, to convey a challenge to the disguised Viola was an obvious allusion by Shakespeare to the violent invective thrown by Coke at Sir Walter Raleigh in court. Conversely, appreciation of Shakespeare in succeeding centuries was to ensure that his words were much alluded to in trials by generations of advocates in numerous lands.
- 5.
F R Wrottesley, The Examination of Witnesses in Court, Sweet and Maxwell, London 1910. Chapter 3. Pages 89–90.
- 6.
State Trials 43 ELIZ 1600, 1333–59. At his trial, the Earl of Essex told the jury that Coke was “playing the orator and displaying the trade and talent of those who value themselves upon their skill in pleading innocent men out of their lives”. David Jardine, Criminal Trials, Charles Knight, London, 1832, Volume 1, Page 321.
- 7.
See John Hostettler, Champions of the Rule of Law, Waterstone Press, 2011, Chapter 2, especially page 46.
- 8.
Bernard Kelly, Famous Advocates and their Speeches: British Forensic Eloquence from Lord Erskine to Lord Russell of Killowen, London, Sweet and Maxwell, 1921, page 2. Sir James FitzJames Stephens, however, concluded, after surveying the State Trial Reports that, in the rancorous ferocity of his advocacy, Coke was unrivalled in any English court of justice, except perhaps those in which Judge Jeffries presided, following the Restoration. Sir James FitzJames Stephens, A History of The Criminal Law of England. Vol. I, Chapter XI, page 333.
- 9.
Coke had attended Norwich Grammar School. (For further details of his background and career, see Cuthbert W. Johnson. The Life of Sir Edward Coke, 2 Volumes, Henry Colborn, London, 1837.) Many lawyers, members of the gentry and of commercial families, who served as jurors, were educated at grammar schools (On the Elizabethan grammar school curriculum and the prime place within it of Latin and reading Cicero, Ovid, Virgil and Horace, see Alison Plowden, Elizabethan England, RDA Limited, 1982, Chapter 3.). Boys at Grammar school were also taught adoxography, the art of eruditely praising worthless things. It has been said Coke mastered a reverse skill and with his words sent scores of men to their deaths. Sadakat Kadri, The Trial. A History from Socrates to O.J. Simpson, Harper, London, 2006, page 82. Probably the first English treatise on adoxography, The Defence of Contraries, written by Anthony Munday, was published in 1593. The work contains essays celebrating deformity, ugliness, poverty, blindness, sterility and stupidity. In its preface is a claim that it would be particularly useful to lawyers. Francis Bacon, typical of those from particularly wealthy backgrounds, did not attend grammar school but was educated privately by tutors.
Late sixteenth and early seventeenth century judges, members of what Dr. Ian Williams (Interviewed on the 5th May, 2010) described as “the classically educated humanist elite”, occasionally referred to the classics in their judgements (no records of their use by advocates before them appear to exist, although, in Dr. William’s view, it is highly likely that they were employed to persuade Privy Counsellors, not usually legally trained but educated in the classics, who sat in Star Chamber Cases, with common-law judges, and in treason cases.). Examples kindly supplied by Dr. Williams, from his research, included: Berkeley J’s reference to Aesop’s Fables, Plato and Diogenes in Hastings v Douglas (1634) CUL. Gg.ii.19,f.506; Aristotle’s Politics and Demosthenes in Zangis V Whiskard (1595) BL. MS. Add. 25,211, f. 126, per Harris sjt; Reference to the Philosopher (presumably Aristotle) in Lord Cromwell’s Case (1601) 2 Co.Rep., ff.72–73: Reference to Virgil by Francis Bacon in The Case of Impeachment of Waste (undated) in Arguments of Law of Sir Francis Bacon, Knight, In Certain Great and Difficult Cases. In The Works of Francis Bacon. Ed. Spedding J., Ellis R. L. and Heath D.D., vol. 7, p. 532 and Bacon’s reference to Julius Caesar’s works and his departure from England in Lowe’s Case (undated) in Arguments of Law of Sir Francis Bacon, Knight, in Certain Great and Difficult Cases. In The Works of Francis Bacon. Ed. Spedding J., Ellis R. L. and Heath D.D. vol. 7, p. 548. Dr. Williams was in no doubt that, although no explicit reference was made to it, the judges and jurors in the Trial of Walter Raleigh would have implicitly understood Coke’s portrayal of Raleigh to be Cicero’s Cataline, the arch traitor.
- 10.
See Thomas H. Macauley’s biographical essay, Lord Bacon in Critical and Historic Essays, London: Longman, Green and Longman, 1877, pp. 356–414. Also see F.E. Smith, First Lord Birkenhead, Famous Trials, Hutchinson and Co, Ltd., Francis Bacon pp. 395–399, who describes Bacon’s career and his trial, conviction and ruin in 1621 for taking bribes from parties in a case which he sat as a judge. Although seldom discussed, it is broadly accepted that in England, right until the impeachment of Lord Macclesfield, in 1725, there was a steady tradition of judicial corruption, a hidden and silent influence on the success of advocacy in trials. Bribes were resisted by some judges but, it would seem, taken by many. Andrew Dewar Gibb, Judicial Corruption in the United Kingdom, W. Green and Son, Edinburgh, 1957.
- 11.
On Lord Francis Bacon, published in 1625, Harvard Classics, 1910, Vol 27, page 60.
- 12.
John, Lord Campbell, Lives of the Chancellors, London: John Murray, 1856, Volume III, page 12.
- 13.
John Lord Campbell, ibid, page 28.
- 14.
William Forsyth, Hortensius or the Advocate, London: J. Murray, 1849, page 20.
- 15.
Bernard Kelly, Famous Advocates and their Speeches, Sweet and Maxwell, London, 1921, page 2.
- 16.
Heneage Finch (1621–1682), 1st Lord Nottingham, called to the Bar (Inner Temple) in 1645, appointed as Solicitor General in 1660, Attorney General in 1670 and five years later Lord Chancellor, spoken of as the father of equity and known as the English Cicero, the English Roscius and silver tongued, appears as a seventeenth century eloquent exception to this. However, according to Forsyth (Hortensius, 1879 Edition, page 312.) none of his speeches remain that would justify these descriptions. There is evidence that judges who sat in the reign of Charles II disapproved of long or elaborate speeches by counsel. Lord Guilford, for example, had little toleration for speeches at all. According to contemporary reports, he would strongly discourage counsel from making them after the conclusion of evidence. Mr. Commissioner Kerr at the Old Bailey had the ledges in front of counsel’s seats cut away, so that they had nowhere to rest their papers, thus reducing the length of their speeches. Another Stuart judge much annoyed by the length of some written pleadings, which would subsequently have to be read aloud in court, ordered the draftsman to parade through the courts with his head through them. (Richard Du Cann, The Art of the Advocate, 1993, Penguin Books, page 21.)
- 17.
1703 92 ER 126.
- 18.
Quoted by Brian Gibbens QC, Former Recorder of Oxford, Elements of Modern Advocacy, New Law Cassettes, Butterworths, London, 1979.
- 19.
William Forsyth, Hortensius or the Advocate, London, John Murray, 1849, page 13.
- 20.
Characteristics of Lord Hardwicke, by Lord Chesterfield, European magazine and London review, Volume 41, 1802, page 250.
- 21.
Bernard Kelly, Famous Advocates and their Speeches, London: Sweet and Maxwell, 1921, page 3.
- 22.
Lord Campbell, Lives of the Chancellors, London, John Murray, Volume V.
- 23.
Lord Mansfield, C. H. S. Fifoot, Oxford, Clarendon Press, 1936.
- 24.
Later in life, in 1775, William Murray, then Lord Mansfield, commissioned a portrait, Lord Mansfield Chief Justice of England, attributed to David Martin, depicting him seated, in front of a bust of Solomon, reading Cicero. The picture was purchased for display in his very substantial London home, Kenwood House, beside Hampstead Heath. This property was acquired, and much altered, mainly with the proceeds of his highly successful career in law.
- 25.
Bernard Kelly, Famous Advocates and their Speeches, London, Sweet and Maxwell, 1921, page 3.
- 26.
There is an anecdote that Pope undertook to teach Murray oratorical delivery shortly after his call to the Bar, and that one day a neighbour entering his Chambers, 5 King’s Bench Walk, found him gesturing before a mirror with Pope giving instructions. See Lord Campbell, The Lives of the Chief Justices, Volume II, London: John Murray. 1858, page 33.
- 27.
Prominent amongst these was, in 1737, as counsel in the Houses of Parliament for Edinburgh to oppose the imposition of penalties on that city following the Porteous Riots. His considerable eloquence in this cause was greatly noted. See Edmund Heward, Lord Mansfield: A Biography of William Murray 1st Earl of Mansfield 1705–1793. Chichester: Barry Rose, 1979, pp. 18–21. The story of the Porteous Riots is graphically told by Sir Walter Scott in The Heart of Midlothian.
- 28.
The case of William Sloper, a wealthy young man, who had the misfortune to be found in bed with an actress Maria Cibber. Proceedings, with the object of obtaining as much money as possible from him, were begun by her husband. William Murray acted as junior counsel for William Sloper. See Edmund Heward, ibid, pp. 21–23.
- 29.
Lord Mansfield, C.H. S Fifoot, ibid, Oxford, Clarendon Press, 1936, page 37.
- 30.
C.H.S. Fifoot, ibid, page 37. The speech to which Murray referred was that made by Coke in the prosecution of Sir Walter Raleigh.
- 31.
Edmund Heward, Lord Mansfield: A Biography of William Murray Ist Earl of Mansfield 1705–1793. Chichester: Barry Rose, 1979, pp. 46–47. Other changes brought about by Lord Mansfield included reducing the number of reserved judgements after hearings had finished and restricting rehearing of cases to when only real doubt existed about the first.
- 32.
The period also experienced works written in verse on a vast range of subjects including law. An example is Coke’s Reports in Verse published by the legal bookseller John Worrall in 1742 and reissued in the early 1800’s. Each case is summarized in a rhyming couplet appearing in the same order as the full cases in Coke’s Reports, with the case name at the head of the couplet. According to research undertaken by John Kleefeld, author of From Brehons to Brouhahas: Poetic Impulse in the Law, a paper delivered at the Institute of Advanced Legal Studies on the 17th June, 2009, this slim volume sold widely but particularly amongst law students. Mr. Kleefeld was interviewed on the 26th June, 2009.
- 33.
Lord Chesterfield’s letter to his son November 1st 1739. Chesterfield’s Letters. J M Dent and Sons, last reprinted 1975, pp. 3–4. Alexander Pope saw poetry as a means of aiding public speaking. In The First Epistle of the Second Book of Horace, in John Butt (ed), The Poems of Alexander Pope , vol. IV 1737, reprinted by Methuen, London 1939, page 189, Pope wrote: What will a Child learn sooner than a song?/ What better teach a Foreigner the tongue?/ What’s long or short, each accent where to place?/ And speak in public with some sort of grace?
- 34.
Quoted by A. W. Cockburn QC, In Limine An Address on Advocacy to the Christ Church Law Club, May 15th, 1952, published and gestetnered by the Faculty of Law, University of Southampton.
- 35.
Works of Alexander Pope, Book XX, Wordsworth, 1995.
- 36.
R v Knowles, ex parte Somerset, 1772, 20 State Trials 1; 98 Eng Rep 499; 1 Lofft 1 (KB 1772).
- 37.
See Wilfred Prest, William Blackstone and the Historians, History Today, July 2006, page 49.
- 38.
See Lord John Campbell, Lives of the Chief Justices, Volume II, page 418. Also Lord Denning, then Sir Alfred Denning, attributed similar words to Lord Mansfield in Freedom Under the Law, The Hamlyn Lectures, London; Stevens and Sons, 1949, page 7.
- 39.
Most trials, both criminal and civil were before common juries, selected from the general pool of those eligible to serve as jurors. However four non-standard common law types of juries existed in England. These were:
-
The Gentleman Jury – men of high social and economic status;
-
The Struck Jury – principal landowners selected from a list of forty-eight names;
-
The Professional Jury – members of special knowledge or expertise, and
-
The Party Jury (known by the Latin phrase “jury de medietate linguae”) – a jury for defendants at special risk of suffering prejudice. It was composed either wholly or in half of persons of the same race, sex, religion or origin.
The first three types were first recognized by a statute in 1730 (3 Geo.II.c.25) under the general term “special jury”. The background of special jurors meant that they could usually be relied upon to find for the Crown in political cases and tried many in the late eighteenth century. This feature continued well into the first third of the nineteenth century when out of the small number of criminal cases tried each year by a special jury, a significant number were political prosecutions (some 183 between 1816 and 1834 – Woodward, L. The Age of Reform 2nd edition, Oxford, 1962, p. 31) The special jury was employed extensively in civil cases from 1770 to 1790, roughly corresponding to Lord Mansfield’s period as Lord Chief Justice of the Court of Kings Bench, when he used juries of merchants (The Professional Jury) in the shaping of a coherent body of commercial law. After Lord Mansfield, special juries of merchants continued to be influential, especially during the first half of the nineteenth century under Lords Ellenborough and Campbell. The Parliamentary Select Committee on Special and Common Juries of 1867 found a burgeoning use of special juries in the Court of Common Pleas, Chancery, in the Divorce Court and in a great many Sheriff Courts dealing with compensation cases. They attracted some criticism as an adjunct to the class system (Oldham, James, The Seventh Amendment and the Anglo-American Special Juries, NYU Press, 2006, Chapter 8). The Juries Act 1870 defined the class of persons entitled and liable to serve on special juries. As before, they were every man whose name was on the jurors’ book for any county and who was legally entitled to be called an esquire, or was a person of higher degree, or a banker or merchant. An additional qualification of occupying a house of a certain high rateable value was added. A special juryman received a fee of one guinea for each cause, unlike common jurors who were unpaid. Either party to a case could obtain an order for a special jury but had to pay the additional expenses incurred unless the judge certified that it was a proper case to be tried by a special jury. Under the 1870 Act a special jury could not be ordered in cases of treason or felony and could only be ordered in misdemeanours when the trial was before the King’s Bench Division of the High Court, or the civil side at assizes. The Party Jury was abolished in the Naturalisation Act of 1870, which also gave foreigners the right to serve on juries. Special Juries remained on the statute book until 1949 (1971 for London) and the last case using a special jury was in London in 1950. (Neil Vidmar, World Jury Systems Oxford University Press, 2000). Perhaps the most famous post war action heard by a special jury was the much publicized libel case of Laski v The Newark Advertiser Co. Ltd and Parlby, tried by Lord Goddard, then Lord Chief Justice of England, in 1947, and in which Sir Patrick Hastings, see later Chap. 9, appeared for both the defendants.
-
- 40.
Shelley , it has been calculated, got through some 75,000 lines of Greek and Latin poetry and prose during his time at Eton, 1804–10, many of them being constantly repeated. Eton gave priority to three authors: Homer, Virgil and Horace. Pote and Williams, Eton publishers, produced other books of classical authors which were used at Eton, Harrow and other schools. The 1806 edition of Potae Graei included extracts, inter alia from Homer, Hesiod, Theocritus, Euripides and Sappho. Other books published at this time included Aeschyles, Aesop’s Fables and selections from Ovid and Tibullus. Ian Gilmour, The Making of the Poets. Byron and Shelley in Their Time, Pimlico, London, 2003. Page 100.
- 41.
On the variety of schools and education in the eighteenth century see Nicholas Hans, New Trends In Education In The Eighteenth Century, Routledge and Kegan Paul, 1951.
- 42.
Instead of going to university, Dissenters attended senior classes at the Dissenting Academies where a much wider curriculum was taught, including English, contemporary literature, history geography and politics. See Irene Parker, Dissenting Academies in England. Cambridge University Press, 1914. Some nonconformists attended universities in Scotland, where there was also an emphasis on classical languages.
- 43.
For an account of the range of classical influence on eighteenth century English society see Jeremy Black, Culture in Eighteenth Century England. A Subject for Taste, Hambledon and London, 2005, Chapter 8. See also, Mark Bradley, Classics and Imperialism in the British Empire, Oxford University Press, 2010, which explores interactions between classics and imperialism during the heyday of the British Empire from the late 18th to its collapse in the twentieth century.
- 44.
Philosophy of Rhetoric, 1911, Funk and Wagnalls, London and New York.
- 45.
Lectures on Rhetoric and Belles Lettres (with an introduction by Linda Ferreira-Buckley and S. Michael Halloran), 2005, South Illinois University.
- 46.
Lectures on Rhetoric and Belles Lettres, 1985, Indianapolis, Liberty Classics. Also see, J.C. Bryce (Ed) Rhetoric and Belle Lettres, 1983, Oxford: Clarendon Press, 1983.
- 47.
Robert Graves, a classical scholar as well as a novelist, presents Modestus, in Count Belisarius, Cassells, 1938, Chapter 2, as a person in classical times who was given to strained rhetorical oratory, overly concentrating on style and numerous allusions, considered by him to assist clarity, an opinion not shared by certainly most listeners.
- 48.
Being absent when oratory of whatever style is delivered was considered by Sir Norman Birkett, more than half a century ago, in a Presidential Address to the Holdsworth Club of the Faculty of Law in the University of Birmingham, 7th May, 1954:
For the great utterances when recalled are without the fire and glow of the advocate’s presence; the dramatic setting has vanished; and the magical moments have irrevocably gone. It is clear that the thing said can hardly be separated from the moment of its saying and great advocacy reaches its heights only at the very moments of its performance. It is designed and intended for one particular occasion. Then and then only are to be seen the many elements which in combination make advocacy what it is. The advocate himself with his own distinctive personality, his quick mind and understanding heart, his readiness, his resources, his courage; the particular occasion with all its dramatic possibilities; the particular theme, whether noble and lofty or tragic and pitiful: the form and beauty of the words the advocate employs; the fire and glow and vehemence; the gestures, the voice, the expression – all these things are for the moment, and once gone, are gone beyond recall. That is why the modern reader of past forensic oratory falls to wondering how those triumphs were ever achieved. It is not merely that the oratory suited to one age is quite unsuited to another; it is that the one vital element of true advocacy is missing.
- 49.
See Marshall, P J. The Impeachment of Warren Hastings, Oxford University Press, 1965. Also see F. E. Smith, The First Earl Birkenhead, Famous Trials, Hutchinson and Co, Ltd., 1930, The Trial of Warren Hastings , pp. 151–166, for a concise and lively account and for criticism of the trial managers: But it is one thing to deliver a philippic, another to manage a prosecution (Page 161). For a brief history of impeachment trials in Britain and the United States, see Andrew Watson, Impeachments – Past, Present and Future? Justice of the Peace 1999, Vol. 163, pp. 468–472 and pp. 491–494.
- 50.
From Dublin Castle on the 8th February, 1747. Unable to locate in Lord Chesterfield’s Letters, J. M. Dent and Sons, reprinted in 1975, but quoted by Richard DuCann, The Art of the Advocate, Revised Edition, Penguin Books, 1993, page 193.
- 51.
George Kennedy, Classical rhetoric and its Christian and secular tradition from ancient to modern times, Croom-Helm, 1980, pp. 231–232. For a more detailed description of methods employed by Demosthenes, see Hans Julius Wolff, Demosthenes as Advocate: The Functions and Methods of Legal Consultants in Classical Athens, in Edwin Carawan, Oxford readings in the Attic orators, Oxford University Press, 2007, Chapter 5. Michael Grant, Cicero Selected Works, Penguin, 1960, page 30, considered that Burke’s attack on Warren Hastings owed much of its balance, symmetry and resonance to Ciceronian oratory and noted that Burke explicitly referred to Verres, the corrupt governor of Sicily, who was successfully prosecuted by Cicero.
- 52.
Just to present one example, Burke, at the conclusion of a speech which lasted four days, set out a number of separate and quite distinct reasons to convict Warren Hastings:
-
I impeach Warren Hastings , Esquire of high crimes and misdemeanours .
-
I impeach him in the name of Commons of Great Britain in Parliament assembled, whose Parliamentary trust he has betrayed.
-
I impeach him in the name of all the Commons of Great Britain, whose national character he has dishonoured.
-
I impeach him in the name of the people of India whose laws, rights and liberties he has subverted, whose properties he has destroyed, whose country he has laid waste and desolate.
-
I impeach him in the name and by virtue of those eternal laws of justice which he has violated.
-
I impeach him in the name of human nature itself, which he has cruelly outraged, injured and oppressed, in both sexes, in every age, rank, situation, and condition of life.
Classical rhetorical devices used here include anaphora, where a phrase, I impeach him, is repeated at the beginning of successive lines and tricolon, a sentence of three clearly defined parts of equal length usually independent clauses and of increasing power, in the fourth sentence.
-
- 53.
See Fintan O’Tool, A traitor’s kiss: The life of Richard Brinsley Sheridan 1751–1816. Granta Books, 1998.
- 54.
Bernard Kelly, Famous Advocates and their Speeches, London, Sweet and Maxwell, 1921, page 12.
- 55.
See Arthur Aspinall, Lord Brougham and the Whig Party (originally published in 1927), Nonsuch Publishing, 2005, Chapter 6. Sir George Hayter’s very large and detailed oil on canvas, The Trial of Queen Caroline , painted between 1820 and 1823, may be seen in the National Portrait Gallery, London.
- 56.
Speeches of Henry Lord Brougham, Adam and Black, Edinburgh, 1838, vol 1, page 227. It was quoted in Hornal V Neuberger Products Ltd. [1957] 1 Q. B. 247 a case concerning the burden and standard of proof in civil actions, by Lord Justice Hodson, page 263.
- 57.
In his masterpiece “On the Crown”, Demosthenes (384–322 BC), who is generally considered to have been the greatest of all Greek orators and an inspiration to Cicero in Roman times, defended Ctesiphon, who had been charged by Aeschines on a legal technicality with offering a golden crown to Demosthenes to honour him for his services to their city of Athens. Ctesiphon was acquitted, thus also vindicating Demosthenes, and Aeschines, a rival orator and supporter of Philip II of Macedonia, was forced into exile. This was achieved not by the sort of measured and reasoned argument that Socrates might have employed but by brilliant rhetoric and the ability to condense long and complex episodes in a few masterly dramatic phrases. In the Attic plain tradition, Demosthenes’s style was relatively straight forward, though he made use of his body to accentuate his words. George Keeton (Harris on Advocacy Eighteenth Edition, Stevens and Sons, 1943, Chapter 1), commenting on Demosthenes’s denunciation, saw it as an acknowledged model of the prosecutor’s art, although it contained much that would not be permitted under modern advocacy; “he used every trick in the orator’s art – suggestion, abrupt transition from second to third person and back again, prejudice (against one of low alien birth), and the implied comparison between the mediocre talents of Aeschines and his own brilliance to bring his accuser to confusion”. From the eighteenth century generations of those attending public schools and grammar schools in Britain studied, read and translated the speeches of Demosthenes, Socrates, especially The Apology with its appeal to reason rather than emotion, and those of Cicero, particularly his speeches against the anti-republican conspirator Cataline, in which he used similar forensic methods to those of Demosthenes.
- 58.
Bernard Kelly, Famous Advocates and their Speeches, Sweet and Maxwell, London, 1921, Page 82. Henry Brougham’s oratory, in and out of court, and ability in law was not universally lauded. William Hazlitt, the essayist, wrote, in his Spirit of the Age, published in 1825, “Mr Brougham speaks in a loud and unmitigated tone of voice, sometimes almost approaching a scream. He is fluent, rapid, vehement, full of his subject, with evidently a great deal to say, and regardless of the manner of saying it…….As a lawyer, he has not hitherto been remarkably successful. He is not profound in cases and reports, nor does he take much interest in the particular cause or show much adroitness in the management of it”. William Hazlitt, Spirit of the Age, now published by Kessinger Publishing Co, 2004, Mr Brougham, pp. 136–137.
- 59.
See, for example, The Speeches of the Right Honourable Lord Erskine When at the Bar, with a Preparatory Memoir by the Right Honourable Lord Brougham. Edited and published by James Ridgway. 4 Volumes. London, 1810.
- 60.
On the career of Thomas Erskine, see John Hostettler, Thomas Erskine and trial by jury, Chichester, Barry Rose Law Publishers, 1996.
- 61.
Volume VI (1845).
- 62.
In late Victorian times, Sir James FitzJames wrote, Erskine was the most popular and effective advocate who ever appeared before the English Bar. Sir James FitzJames Stephen, A History of The Criminal Law of England. Macmillan and Co., 1883, Chapter XXII, page 454.
- 63.
Famous Advocates and their Speeches, London: Sweet and Maxwell, 1921, Chapter One, Historical Introduction.
- 64.
Richard Hamilton, All Jangle and Riot – A barrister’s history of the Bar, Professional Books, 1986, page 144.
- 65.
Sean Gabb, Thomas Erskine: Saviour of English Liberty, Freeman, July 1989, Vol 39, No 7.
- 66.
Sean Gabb, Thomas Erskine: Saviour of English Liberty, Freeman, July 1989, Vol 39, No 7, page 4.
- 67.
Sir James FitzJames Stephen, A History of The Criminal Law of England, Macmillan and Co., London 1883, Chapter XXII page 454. In his view, in nearly thirty years as a barrister and a judge, counsel generally took the law as they found it and did not invite jurors to ignore it. He also, however, presents illustrations when they did. They are drawn, before his time as a barrister, from the famous trials for libel which led to Fox’s Libel Act 1792, the trials of the Chartists in 1841, 1842 and 1843, the later trials for trade conspiracies and from a long series of Irish trials starting after the 1798 rebellion.
- 68.
See, for examples: Carrol C. Arnold, Lord Thomas Erskine Modern Advocate in Thomas Benson Edited Landmark Essays on Rhetoric, Hergamoras Press, California, 1993, pp. 89–105, especially pp. 97–98; and Sean Gibb, Thomas Erskine: Saviour of English Liberty, Freeman, July, 1989, Volume 39, No 7.
- 69.
John Andrew Hamilton, Thomas Erskine, First Baron Erskine (1750–1823), Dictionary of National Biography, 1885–1900, Volume 19, pp. 437–438. Whilst a gentleman commoner at Trinity College, Cambridge, in 1776, Thomas Erskine won a prize in English declamation. Also see Sean Gibb, ibid. Of note, it is said that within the British advertising industry the most appealing and trustworthy accents nowadays are Scottish.
- 70.
The following, at the end of his closing speech for Lord George Gordon, is an example of the use of this oratorical device, not unknown in ancient Rome:
Gentlemen, I feel entitled to expect both from you and the court the greatest indulgence and attention. I am indeed a greater object of your compassion than even my noble friend whom I am defending. He rests in conscious innocence and in well-placed confidence that it can suffer no strain in your hands. Not so with me. I stand before you a troubled, and, I am afraid, a guilty man, in having presumed to accept the awful task which I am now called upon to perform- a task which my learned friend who spoke before me, though he has justly risen by extraordinary capacity and experience to the highest in his profession, has spoken of with distrust and diffidence which becomes every Christian in a cause of blood. Mr Kenyon has such feelings, what must be mine! Alas gentlemen who am I? A young man of little experience, unused to the bar of criminal courts, and sinking under the dreadful consciousness of my defects. I have, however, this consolation, that no ignorance nor inattention on my part can possibly prevent you from seeing, under the direction of the judges, that the Crown has established no case of treason. (Extract printed in S. C. Sarkar, Hints on Modern Advocacy and Cross-Examination, S. C. Sarkar and Sons (Private) Ltd., Calcutta, 1924, 4th Edition, pp. 172–173)
- 71.
David Mellinkoff, The Conscience of a Lawyer, 1973, St Paul, West Publishing Co, page 247. The author draws attention to what Erskine said in his prosecution of the publisher of Tom Paine’s Age of Reason (Erskine lived by the Cab-rank Rule, see below) The people of England are a religious people, and with the blessing of God, so far as is in my power, I will lend my aid to keep them so. Rv Williams (1797), 26 How. St.Tr.653, 668 (1816–1826).
- 72.
Volume IV, referred to by Richard Du Cann, The Art of the Advocate, Penguin Books, 1993, page 53.
- 73.
See Geoffrey Robertson, The Justice Game, London, Chatto and Windus, 1998, 478–480 and also Andrew Watson, Advocacy for the unpopular, Part 1, Justice of the Peace, Vol. 162, 1998, 476–480 at 477–478.
- 74.
John Hostettler, Thomas Erskine and trial by jury, Barry Rose, Chichester, 1996, Chapter 8, page 91.
- 75.
See Andrew Watson, Advocacy for the Unpopular, Justice of the Peace. Volume 163, 1998, pp. 478–480.
- 76.
For example Geoffrey Robertson, The Justice Game, Chatto and Windus, London, 1998, page 378. This view is not shared by Hostettler, Thomas Erskine and trial by jury, Barry Rose, Chichester and Sean Gabb, Thomas Erskine: Saviour of English Liberty Freeman, July 1989, Vol. 39, No. 7, who summarise Erskine’s arguments to the jury. See page 96 and pp. 3–4 respectively.
- 77.
Speeches of the Right Honourable Lord Erskine, James Ridgway, 1810, Volume 1, pp. 90–91.
- 78.
See, for instance, Brougham’s speech to the House of Lords in 1840, 55 Parliamentary Debates, House of Lords (5th Series) August 10, 1840, cols. 1401–2. Cited by David Pannick, Advocates, Oxford University Press, 1992. page 141.
- 79.
Andrew Watson, Advocacy for the Unpopular, Justice of Peace, Volume 162, 1998. page 476.
- 80.
See Richard DuCann, The Art of The Advocate, Penguin, 1993, page 14.
- 81.
Jonathan Swift, Gulliver’s Travels, 1726. Reprint, Harmondsworth Press, Middlesex, 1985, page 291. Detractors who were educated in the classics doubtlessly also referred to Homer’s Iliad:Verse
Verse Yea, when men speak, that man I most detest Who lacks the verity within his breast.
- 82.
See Kirsten Olsen, Daily Life in 18th Century England, The Greenwood Press, Westport, Connecticut, 1999, pp. 204–220. A number of caricatures and cartoons of lawyers from the period are shown in this book.
- 83.
Interview with Anthony Arlidge QC. Held on 30th October, 2007.
- 84.
Alan Harding, A Social History of English Law, Penguin, 1966, page 291.
- 85.
Daniel Duman, The English and Colonial Bars in the Nineteenth Century, Croom Helm, London, 1983, Chapter 6.
- 86.
Daniel Duman, The English and Colonial Bars in the Nineteenth Century, Croom-Helm, London, 1983, page 145.
- 87.
Dictionary of National Biography (Ed Sidney Lee, 1897), Vol. 49, page 190. See also R.A. Melikan, Romilly, Sir Samuel (1757–1818), published 2004, Oxford Dictionary of National Biography. For more on the life and achievements of Sir Samuel Romilly, see John Hostettler, Champions of the Rule of Law, Waterside Press, 2011, Chapter 11.
- 88.
Unreported in the law reports.
- 89.
Dictionary of National Biography, Volume IV pp. 1108, T.M.
- 90.
Richard Hamilton, All Jangle and Riot, Professional Books, 1986, pp. 261–262. However, after the Criminal Procedure Act 1851 trivial indictment flaws and variances no longer won an accused his or her freedom – see Bentley, David, English criminal justice in the nineteenth century, Hambledon Press, London, 1998, Chapter 13.
- 91.
Unreported in the law reports, but a short hand note was taken by W. B. Gurney and printed by G. Woodfall for the use of the Plaintiff in 1816.
- 92.
Copley was able to convince the court that the Plaintiff’s machine was only an improvement on the Spinning Jenny invented by Mr. Heathcote, some years ago, who was then enabled to obtain substantial reward for his invention. National Dictionary of Biography, Volume IX, page 1109. T.M.
- 93.
See Malcolm Chase, Arthur Thistlewood, radical and revolutionary, Oxford Dictionary of National Biography.
- 94.
Lord Campbell, Lord Chancellors and Keepers of the Great Seal of England. John Murray, London, 1869, Volume VIII, Chapter 2, page 17.
- 95.
Dictionary of National Biography Volume IV, page 1109.
- 96.
Gareth Jones, Copley, John Singleton, Baron Lyndhurst (1772–1863), published 2004, Oxford Dictionary of National Biography and see Sir Theodore Martin, A life of Lord Lyndhurst from letters and papers in possession of his family. John Murray, London, 1883.
- 97.
A Brief history of the Irish Bar from the 18th Century to the Present. The Bar Council of Ireland, 2012. By 1835 in England and Wales the number in practice had increased to 1300 and in 1846 had grown to 3080, including 28 serjeants at law and 74 Queens Counsel.
- 98.
See Maire and Connor Cruise O’Brien, A Concise History of Ireland, Thames and Hudson, 1985, Chapter 5.
- 99.
Bernard Kelly, Famous advocates and their speeches, London: Sweet and Maxwell, 1921, page 19. The essayist, William Hazlitt, writing in 1825, saw Irish oratory rather differently: It is a sort of aeronaut; it is always going up in a balloon, and breaking its neck, or coming down in a parachute. It is filled full with gaseous matter, with whim and fancy, with alliteration and antithesis, with heated passion and bloated metaphors, that burst the slender, silken covering of sense; and the airy pageant, that glittered in empty space and rose in all the bliss of ignorance, flutters and sinks down to its native bogs. A little further Hazlitt writes of Irish orators playing with words, ranging them into all sorts of fantastic combinations. William Hazlitt, Spirit of the age, Republished by Kessinger Publishing Co, USA, 2004, page 133. It is not possible to discover the extent to which Hazlitt’s opinions were shared.
- 100.
See F. Roderick O’Flanagan, The Munster Circuit, Sampson, Low, Marston and Searle, London, 1880, Chapter XIV Immorality Rebuked.
- 101.
The Reverend Massey was awarded £10,000 by the jury. In both Ireland and England actions for criminal conversion crim con, by which a cuckolded husband was allowed to sue his wife’s seducer for damages, usually attracted many spectators in court and were widely reported in the newspapers (See Ben Wilson, The Making of Victorian Values: Decency and Dissent in Britain: 1789–1837, Penguin, 2007, Chapter 5.) Cases were often brought as a prelude to an action for a divorce mensa et thoro, effectively a claim for judicial separation. In England they were heard by a special jury of gentlemen of fortune, (Lord Mansfield encouraged their use.) consisting of twenty four jurors selected from freeholders of substance, knights and urban gentry. Damages set by them could be as great as £15,000, indicating the high value placed on a gentleman’s honour. Once awarded the defendant either paid up, came to an arrangement with the husband or was arrested, his goods seized and put into a debtors prison. The Divorce Reform Act 1857 abolished the action of criminal conversion in England and Wales.
For another example of Curran’s richly worded and emotive advocacy to a special jury, see an extract of his speech, contained in Great Orators, Statesmen and Divines, Edinburgh, W. P. Nimmo, Hay and Mitchell, 1914, pp. 75–79, on behalf of Michael Hamilton Rowan, indicted for seditious libel, delivered 29th January, 1794. Curran also makes generous allusions to Leonidas and Sparta.
- 102.
Bernard Kelly, Famous Advocates and their Speeches, Sweet and Maxwell, London, 1921, page 19.
- 103.
Charles Phillips, Curran and his contemporaries. William Blackwood, 1850.
- 104.
National Dictionary of Biography, Volume XIV, pp. 816–817.
- 105.
Patrick M. Geoghegan, King Dan, The Rise of Daniel O’Connell 1775–1829, Gill and Macmillan, 2008, Page 78.
- 106.
Patrick M. Geoghegan, King Dan, The Rise of Daniel O’Connell 1775–1829, Gill and Macmillan, 2008, Page 78.
- 107.
John Mitchell, Jail Journal, 1854, New York, The Citizen, page 15.
- 108.
Richard Du Cann, The Art of the Advocate, 1993, Penguin Books, page 196.
- 109.
Bernard Kelly, Famous Advocates and their speeches, London, Sweet and Maxwell, page 12 and page 18.
- 110.
Some had an awareness of Brehon law, Ireland’s indigenous system of law dating from Celtic times, which survived until the seventeenth century, when it was finally supplanted by English Common Law. It was administered by Brehons, the successors to Celtic druids. Their role was to preserve and interpret the law rather than expand it. Great attention was paid the use of elegant language in judgements, which were sometimes delivered in verse. See Laurence Ginnell, The Brehon Laws: A Legal Handbook, T. Fisher Unwin, London, 1894. Also see John Kleefeld, From Brehons to Brouhahas: Poetic Impulses in the Law, a paper delivered at the Institute of Advanced Legal Studies on 17th June, 2009.
- 111.
In 1835 the number of barristers originating in Ireland and practicing at the English Bar was 21 (8.7 of the total). By 1885 the figure had risen to 50 (7.9 of the total). The corresponding statistics for barristers of Scottish origin are 10 (4.1) in 1835 and 37 (5.9 of the total) in 1885, Daniel Duman, The English and Colonial Bars in the 19th Century, Croom Helm, 1983, page 12. The influence of both greatly exceeded their numbers.
- 112.
See Chapter 5.
- 113.
Louise S Goldsmid (his Wife), Memoirs of Sir Francis Goldsmid Bart, 1882, C Kegan Paul and Co.
- 114.
Arthur Goodhart, Five Jewish Lawyers of the Common Law, Oxford University Press, 1949.
- 115.
Interview with Gerald Rabie, barrister and scholar of British Jewish history, London, 30th July, 2009.
- 116.
Wilfred Prest, Blackstone and his Commentaries, Hart Publishing 2009, Introduction.
- 117.
On the reception of Blackstone in the United States, see Shick v. United States, 195 US 65, 66 (1904) and Lawrence M. Friedman, A History of American Law, Simon and Schuster, 1973, pp. 88–89.
- 118.
Somewhat later they were to be caricatured by Jeremy Bentham as reactionary, glorifying the status quo and opposed to all reform: see Wilfred Prest, William Blackstone and the Historians, History Today, July 2006.
- 119.
John Scott, Lord Eldon, who served as Lord Chancellor (1801–1806 and 1807–1827), was particularly critical and said that lawyers had been made cheap by learning the law from Blackstone’s. He asserted the superiority of Coke on Littleton written by Sir Edward Coke and first published in 1629. As a student, John Scot had abridged this work for his own use. Bernard Kelly, Famous Advocates and their Speeches, London, Sweet and Maxwell, 1921, page 18.
- 120.
Bernard Kelly, Famous Advocates and their Speeches, London: Sweet and Maxwell, 1921, page 18.
- 121.
Bernard Kelly, Famous Advocates and their Speeches, London, Sweet and Maxwell, 1921. The author wrote, pp. 20–21, “The Courts of law could not but imitate the general spirit which shone forth in speeches and addresses of the highest excellence”. On the use of poetry and other literature before jurors in the nineteenth century see also J.A. Foote, Pie powder from the Law Courts, John Murray, London, 1911, pp. 85–90.
- 122.
On nineteenth century sentimental novels drawn upon in speeches to jurors see Michael Millender, The Transformation of the American Criminal Trial 1790–1875, Doctoral Dissertation, Department of History, Princeton University, Chapter 7.
- 123.
Walter Scott, Guy Mannering, 1815, P. D. Garside edition, 1999, Page 259.
- 124.
In his Rhetoric , Aristotle identified three modes of persuasion: Logos, the art of deductive logical proof; Pathos, playing on the audience’s emotions to put them in a certain frame of mind and Ethos which relies on the good character of the speaker to influence others. Clearly appeals to emotion by advocates alluding to literature corresponds with Pathos. Citing literature also relates to Ethos in that it invokes the authority of the author, or subject, of the work, who may be greatly respected, and enlists him or her in the advocate’s cause.(Aristotle, himself, categorized literary figures as ancient witnesses.) Also, in the eyes of jurors, it may have enhanced the advocate as a literate and erudite person, even if some members of the jury were unfamiliar with the literary references made. In eighteenth and nineteenth centuries, times of great social deference, this apparent learning may have contributed to persuading jurors who were often less educated than the advocate. For those of similar education, citations they recognized from literature may have confirmed, psychologically, that the advocate was one of them and, therefore, safe to trust.
- 125.
See Neil Duxbury, The nature and authority of precedent, Cambridge University Press, 2008, Chapter II, pp. 31–37.
- 126.
J. H. Baker, An Introduction to English Legal History, Butterworths, 2002, Chapter 12, pp. 195–201. See also Gerald J. Postema, Philosophy of the Common Law, in The Oxford Handbook of Jurisprudence and Philosophy of Law, ed. J. Coleman and S. Shapiro, Oxford University Press, 2002, pp. 588–622 at 589. For the somewhat later crystallization of stare decisis in the United States, see Frederick G. Kemplin, Precedent and Stare Decisis: The Critical Years, 1800 to 1850 (1959) 3 American Journal of Legal History, pp. 28–54.
- 127.
See Laurence Goldstein edited Precedent in law, Oxford, Clarendon Press, 1987: The Rule of Precedent, Theodore M. Benditt, pp. 89–106; Theories of Adjudication and the Status of Stare Decisis, Peter Wesley-Smith, pp. 73–87 and Changes in the Doctrine of Precedent during the 19th Century, Jim Evans, pp. 35–72.
Author information
Authors and Affiliations
Corresponding author
Rights and permissions
Copyright information
© 2019 The Author(s)
About this chapter
Cite this chapter
Watson, A. (2019). Distinguished Advocates, Judges, Classical Learning and Other Influences on Advocacy in the Eighteenth and Early Nineteenth Centuries. In: Speaking in Court. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-10395-8_2
Download citation
DOI: https://doi.org/10.1007/978-3-030-10395-8_2
Published:
Publisher Name: Palgrave Macmillan, Cham
Print ISBN: 978-3-030-10394-1
Online ISBN: 978-3-030-10395-8
eBook Packages: Law and CriminologyLaw and Criminology (R0)