Abstract
Examples of the dominant style of advocacy before juries in the second half of the nineteenth century, roughly up until the 1880s, are presented. Declamatory, melodramatic and lachrymose this frequently involved aggressive, intimidating, wide ranging – “blunderbuss”– cross-examination and long, repetitious and emotive closing speeches invoking the Deity and the Bible or the spirit of justice. (Special jurors, because they were usually more educated, would more often be treated to more allusions to the classics, references to history, and quotations from literature and poetry). Some leaders of the bar, including Hardinge Giffard, John Holker, Charles Russell and Edward Clarke, began to significantly change this style of advocacy. Their approach was quieter, more learned, less inclined to violent appeals to emotion, florid speech and to widely quoting from literature and verse. In the bar’s tradition of copying what appeared to succeed, they began to be emulated by junior members.
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Notes
- 1.
J. R. Lewis, The Victorian Bar, Robert Hale, London, 1982, pp. 119–120, describes how prospective barristers would sometimes attend a course on declamation with John Cooper, who had given up the stage himself to teach young hopefuls. His classes on declamation were attended by a mixture of aspiring barristers and actors. Recollecting the criminal bar in the 1870s and early 1880s, Edward Purcell, Forty Years at the Criminal Bar, page 27, wrote of “many advocates who deliberately took a dramatic approach to advocacy and were prepared to adopt mannerisms, tricks of speech and gestures to heighten the effect of their pleas and of the prevailing fondness for noise”.
- 2.
Lord Chief Justice Cockburn’s comments in 1874 on the treatment of witnesses indicate this was particularly bad in England:
I have watched closely the administration of justice in France, Germany, Holland, Belgium, Italy, and a little in Spain, as well as the United States, in Canada, and in Ireland, and in no place have I seen witnesses so badgered, brow beaten, and in every way so brutally maltreated as in England. The way in which we treat our witnesses is a national disgrace, and a serious obstacle, instead of aiding the ends of justice. In England the most honourable and conscientious men loathe the witness-box. Men and women of all ranks shrink with terror from subjecting themselves to the wanton insult and bullying misnamed cross-examination in our English courts. Watch the tremor that passes the frames of many persons as they enter the witness box. I remember to have seen so distinguished a man as Sir Benjamin Brodie shiver as he entered the witness box. I dare say his apprehension amounted to exquisite torture.
Calling for judges to exercise more control over the way cross-examination was conducted, the Lord Chief Justice continued:
Witnesses are just as necessary for the administration of justice as judges or jurymen, and are entitled to be treated with the same consideration, and their affairs and private lives ought to be held as sacred from the gaze of the public as those of the judges or the jurymen. I venture to think that it is the duty of the judge to allow no questions to be put to a witness, unless such are clearly pertinent to the issue before the court, unless such as are clearly pertinent to the issue before the court, except where the credibility of the witness is deliberately challenged by counsel and that the credibility of a witness should not be wantonly challenged on slight grounds. (Irish Law Times, 1874, quoted in Francis L. Wellman, Wellman’s Art of Cross – Examination, 4th Edition, 1936, pp. 188–189)
Nearly a decade after Lord Justice Cockburn’s comments, and demonstrating continuing concern about cross-examination, Sir James Fitzjames Stephen, who at the time had nearly thirty years’ experience in the courts firstly as a barrister and then a judge, wrote, in similar terms, that “it was the highest importance that judges and counsel bear in mind the abuse to which cross-examination is liable and should do their best not to ask questions conveying reproach on character, except in cases in which there is a reasonable ground to believe that they are necessary”.
Like Cockburn, Stephen was not only exercised about the subject of questions put to witnesses but also the way in which they were asked. “ Cross-examination is not infrequently converted into an occasion for the display of wit, and for obliquely insulting witnesses. It is not uncommon to put a question in a form which is in itself an insult, or to preface a question or receive an answer with an insulting observation. This naturally provokes retorts, and so cross-examination so conducted ceases to fulfil its legitimate purpose and becomes a trial of wit and presence of mind which may amuse the audience, but is inconsistent with the dignity of justice, and unfavourable to the object of ascertaining the truth”. Stephen principally blamed judges for this state of affairs by not stopping examinations unnecessary for any proper purpose and for failing to prevent questions in improper forms. Sir James Fitzjames Stephen, A History of The Criminal Law of England, Macmillan and Co., 1883, Chapter XII, pp. 435–436.
- 3.
George Gilbert, when a practising barrister on the Northern Circuit, later as a magistrate for Middlesex and who also involved himself in much litigation about his work, would have been familiar with courtroom advocacy of his time. It is said he compiled his notes for Trial by jury in 1868. Still performed today, it is often produced in the Royal Courts of Justice, and until recently at the former Bow Street Magistrates Court, as part of the annual Covent Garden Festival.
- 4.
B. Kelly, Famous Advocates and their Speeches, London: Sweet and Maxwell, 1921, page 109.
- 5.
His closing speech for Franz Muller was widely praised as a memorable piece of advocacy (Kelly , ibid, Page 109.), especially those parts which dealt with: the influence of the press on public (the jury’s) opinion; that counsel’s personal opinion was to be ignored; and for circumstantial evidence to be complete.
- 6.
J. R. Lewis, The Victorian Bar, Robert Hale, London, 1982, page 62.
- 7.
See. J. R. Lewis, ibid, page 63.
- 8.
John Alderson Foote Pie powder from the Law Courts: being dust from the law courts, collected, and recollected on the Western Circuit by a circuit tramp., first published by John Murray, London, 1911, re-published by EP Publishing, Yorkshire, Chapter IV page 81.
- 9.
B. Kelly, Famous Advocates and their Speeches London: Sweet and Maxwell, 1921, page 124.
- 10.
J. R. Lewis, The Victorian Bar Robert Hale, London, 1982, page 63. Bernard Kelly, ibid, page 124, also noted a certain hesitation but also wrote of his great charm of manner.
- 11.
Law Times 82 (1886–8) pp. 198–199.
- 12.
Details of these and of his very early years are presented in Montagu Williams’s memoirs, Leaves of a Life being the Reminiscences of Montagu Williams QC, Macmillan and Co., 1893, Chapters I–VI.
- 13.
B. Kelly, Famous Advocates and their Speeches, London: Sweet and Maxwell, 1921, page 127.
- 14.
Two good examples of his style are given in the Appendix to Williams’s Leaves of a Life. The first (pp. 335–348.) is his address to the jury on behalf of Percy Lefroy, tried in 1881 for the murder of Frederick Gold on the London to Brighton Railway. According to Williams, this was “the most sensational trial” of his career. Lefroy was convicted and hanged. The second (pp. 348–363.) is Williams’s jury speech, which he delivered over two days, for George Lamson, a surgeon tried, convicted and executed in 1881 for the murder by poison of his young brother in law. The case was very widely reported in the press.
- 15.
For an account of this case, in which Williams had defended another prisoner, one Murray, see Montagu Williams, Leaves of a Life, Chapter XXXIII, pp. 217–222.
- 16.
Robert Walter, Random Recollections of the Midland Circuit (1869), Chiswick Press, page 13.
- 17.
Montagu Williams, Leaves of a Life, Macmillan and Co., 1893, page 87.
- 18.
Montague Williams, Leaves of a Life, Macmillan and Co., 1893, pp. 50–51.
- 19.
Bernard Kelly, Famous Advocates and Their Speeches, Sweet and Maxwell, 1921, page 119.
- 20.
J R Lewis, The Victorian Bar, Robert Hale, London, 1982, page 120.
- 21.
Arab Steeds. Viscount Alverstone’s Recollections of Bar and Bench (1914), cited by Richard Hamilton, All Jangle and Riot, Professional Books, 1986, page 270.
- 22.
R v Allen, Larkin, O’Brien, Maguire and Condon 1867.
- 23.
Reproduced by Kelly, Famous Advocates and their Speeches, London: Sweet and Maxwell, London, 1921, pp. 132–133.
- 24.
J. R. Lewis, The Victorian Bar, Robert Hale, London, 1982, pp. 70–71.
- 25.
J. R. Lewis, ibid, page 15.
- 26.
An aspect of Hawkins’s abilities marvelled upon by Sir Edward Clarke in his unfinished short treatise on advocacy, published some years after his death as an Appendix to E. W. Fordham, Notable Cross-examinations, Constable, 1951.
- 27.
Reproduced by Richard Du Cann, The Art of the Advocate, Pelican Books, 1980, page 126.
- 28.
See Henry Hawkins, Reminiscences of Henry Hawkins, Baron Brompton, Edited by Richard Harris, K C, E. Arnold, 1904, republished by Kessinger Publishing, USA 2004, especially Chapter XIV: ‘The case of Mr. Faker and the Welsh Will’, in which, through testing his evidence in cross examination, Hawkins exposed a well-known dissenting clergyman, thus destroying the plaintiff’s case, called as a witness by his opponent Edwin James.
- 29.
This was, of course, appreciated at least since the days of ancient Rome. See Excursus (Classical Rhetoric) available on the Internet: Historyadvocacy.wordpress.com.
- 30.
Chapter 5. J. Murray, 1911.
- 31.
Pie Powder, J. Murray, 1911, Page 32. On the following page, Foote wrote about hearing Mathews addressing a common jury in a “torrent of burning eloquence , probably incomprehensible to most of them, but nonetheless impressive”.
- 32.
Travers Humphreys, Criminal Days, Hodder and Stoughton, 1946, pp. 68–69.
- 33.
See John Hostettler, Lord Halsbury, Barry Rose, 1998.
- 34.
J. R. Lewis, The Victorian Bar, Robert Hale, London, page 120.
- 35.
Such qualities were praised by the eminent solicitor William Freshfield in a letter he wrote to Giffard in 1883, and cited in Lewis J. R. The Victorian Bar, page 163. He was said to be blessed with great powers of memory to such an extent that he could read a brief without making a single note and conducted one heavy case without taking the ribbon off the papers in court; they were later found to have only one thing written on the outside: a list of the trains back to London. Richard Hamilton, All Jangle and Riot, Professional Books, 1986, page 177. Another, although somewhat later, advocate, who was also renowned for a phenomenal memory was Sergeant A. M. Sullivan, the last Sergeant at the Irish Bar who died in 1959. It was said of him that he never needed to refer to papers in court. Brian Gibbens, Elements of Modern Advocacy, New Law Cassettes, Butterworths, London, 1979. Minimising the need to read papers, enabling barristers to maximize time looking at witnesses, judges and juries, was often seen as a valuable persuasive technique in advocacy, projecting confidence and sincerity of belief in a client’s case. Indeed in his short treatise on advocacy Sir Edward Clarke, infra, remembers being told by Harry Hawkins, earlier, to never examine or cross-examine from your brief. Know your brief and examine from your head. He recalled this as one of the most useful pieces of advice I ever received.
- 36.
R. F. Heuston, Lives of the Lord Chancellors 1885–1940, Oxford, 1964, 12. Hardinge Giffard , although generally eschewing them, did vividly employ theatrical emotion and drama, presumably for entirely tactical reasons, in his six hour speech before lay magistrates at Market Drayton in 1867. He was instructed to halt the prosecution of Edward Eyre, the former governor of Jamaica, for murder, arising from his bloody suppression of the Morant Bay uprising in 1865. At one stage, Giffard broke down in tears and called on God before resuming his appeal to the biases of rural magistrates. Eyre was not committed. (See Korstal, R. W. A Jurisprudence of Power; Victorian Empire and the Rule of Law. Oxford University Press, 2005, pp. 302–310.)
- 37.
Reproduced by J R Lewis, The Victorian Bar, Robert Hale, London, 1982, pp. 163–164.
- 38.
AW Cockburn QC. An Address on Advocacy to the Christ Church Law Club, May 15th 1952. Published by the University of Southampton.
- 39.
Mr. Balfour Browne K.C. Quoted by Francis Cowper, Holker of Gray’s Inn, Graya 14, Easter 1934, page 71.
- 40.
J. A. Foote, Pie powder from the Law courts, John Murray, 1911, page 177.
- 41.
Francis Cowper, Holker of Gray’s Inn, Graya 14, Easter 1934, page 72.
- 42.
Charles Russell’s biographer, R. Barry O′ Brien wrote: It was a fine sight to see him rise to cross-examine. His very appearance must have been a shock to the witness, − the manly, defiant bearing, the noble brow, the haughty look, the remorseless mouth, those deep set eyes, widely opened, and that searching glance which pierces the very soul. “Russell ”, said a member of the Northern Circuit , “produced the same effect on a witness that a cobra produced on a rabbit”. R. Barry O’Brien, O’Brien’s Life of Lord Russell, Smith, Elder, 1901, page 101. John Singer Sargent’s large portrait of Charles Arthur Russell, Baron Russell of Killowen, painted in 1899, hangs in Lincoln’s Inn.
- 43.
B. Kelly, Famous Advocates and their Speeches, London: Sweet and Maxwell, 1921, page 135.
- 44.
Criminal days, Hodder and Stoughton, London, 1945, page 91.
- 45.
R. Barry O′ Brien, his biographer, said to Russell, “Your methods are altogether different, you do not as a rule manoeuvre, you go straight at the witness. Russell replied: With an English jury it is different. They are busy and they want to go away quickly. Mere finesse they do not appreciate; go straight at the witness and at the point; throw your cards on the table. It is a simple method and I think it is a good method”. O’Brien’s Life of Russell, Smith, Elder, 1901, pp. 100–101.
- 46.
Lord Norman Birkett, Six Great Advocates, Penguin, 1961, page 71.
- 47.
See Lord Norman Birkett, ibid, pp. 71–80. Also, for a highly readable account of the trial, F. E. Smith, Famous Trials, Hutchinson and Co, Ltd., 1930, Mrs Maybrick, pp. 399–412.
- 48.
Edgar Lustgarten, R v The Stauntons, part of the Old Bailey Series, broadcast in 1970 on Radio 4.; tape kindly lent by Mr. Leslie Blake, Senior Lecturer, Department of Law, University of Surrey.
- 49.
Following a public outcry, and a petition signed by over seven hundred doctors that the cause of Harriet Staunton’s death was not starvation but tuberculosis, they were reprieved.
- 50.
Travers Humphreys, Criminal Days, Hodder and Stoughton, page 92.
- 51.
J. R. Lewis, The Victorian Bar, Robert Hale, London, page 141.
- 52.
DuCann, Edward, The Art of the Advocate, Penguin Books, 1993, page 144.
- 53.
Quoted by Richard Du Cann, The Art of the Advocate, ibid, page 218.
- 54.
In the form of an Appendix to E.W. Fordham, Notable Cross-examinations, Constable and Company, 1951.
- 55.
Elsewhere in his treatise, Clarke criticizes Sergeant Parry, earlier, for often spoiling shrewd and powerful cross-examinations by violence and harshness to witnesses. John Duke Coleridge (1820–1894), eventually Lord Chief Justice of England, was praised for his ingenious and painstaking cross-examination, in which the more closely a witness was entangled the more suave and gentle Coleridge’s manner became. Clarke, however, described, as “studiously unfair”, Coleridge’s habit of repeating a witness’s answer or quoting it in a subsequent question but not exactly as it had been said, though insufficiently altered to attract comment from opposing counsel or judges, as a means of quietly getting the witness to give his or her case away.
- 56.
Six Great Advocates, Penguin, 1961, page 38.
- 57.
Sir Malcolm Hilbery, born in the same year as Lord Birkett, in a speech, entitled Duty and Art in Advocacy, at Gray’s Inn, delivered in 1938 when he was a High Court judge, (Graya No XX, Easter), recounted how, as a young boy, he had seen, Sir Edward Clarke in the Kings Bench: “It has remained a vivid memory and a model to this day”. Travelling back in generations, and showing how young advocates may to some extent be influenced by older and outstandingly successful ones, Edward Clarke himself professed, in his short treatise on advocacy, Fordham, ibid, admiration for William Ballantine, Henry Hawkins and John Duke Coleridge.
- 58.
It was said of James Scarlett, in contrast to many of his colleagues, that
One of his great merits was that when he was engaged in a cause his services might always be relied on. He disdained to adopt the vicious practice of some barristers, then far too common, of wandering from court to court and taking contemporaneous briefs in all, to the damage of those whose briefs they had accepted.
Unattributed quote in Richard DuCann, The Art of the Advocate, Penguin Books, 1993, pp. 40–42. The habit, to the detriment of the quality of their advocacy, of leading silks to accept, when they were in court, as many small briefs as their clerks could collect is also mentioned by Sir Edward Clarke in his short unfinished treatise on advocacy, Appendix to E.W. Fordham, Notable Cross-examinations, Constable and Company, 1951.
- 59.
A. W. B. Sampson, Biographical Dictionary of the Common Law, Butterworths, 1984. For Scarlett’s own assessment of his advocacy, in a biography written by his son, see Peter Campbell Scarlett, A Memoir of the Right Honourable James, First Lord Abinger, J. Murray, 1877, Chapter 18.
- 60.
J. Crockford, London.
- 61.
The Art of Winning Cases, or Modern Advocacy: A Practical Treatise on Preparation for Trial and the Conduct of Cases in Court, New York, Albany Banks and Bros, 1894, passage quoted in The Examination of Witnesses in Court, by F J Wrottesley, Sweet and Maxwell 1910, pp. 147–148.
- 62.
Hardwicke, The Art of Winning Cases, New York, Albany Banks and Bros, page 281.
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Watson, A. (2019). Signs of Changes in Styles Before Juries. In: Speaking in Court. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-10395-8_5
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