Abstract
After a long campaign, prisoners were given the right to give evidence on oath by the Criminal Evidence Act 1898, Advocates then had to advise clients whether to testify. If they did, counsel’s closing speech had accommodate their evidence. An advocate was no longer free to suggest to the jury any story his ingenuity could devise as a possible explanation of the proved facts and amounted to a revolution in defence advocacy. Skills in re-examination, to lessen any damage inflicted in cross-examination, became vital. In both civil and criminal cases, advocacy at the turn of the twentieth century was affected by rules concerning the content of opening speeches. It was also influenced by having to accommodate increasing numbers of expert witnesses. Examination of witnesses, especially cross-examination, became a much more precise and subtle endeavour, far removed from earlier indiscriminate and instinctual performances.
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Notes
- 1.
From Thomas Fuller (1608–1661), the eminent churchman and historian. His works, including The Church-History of Britain from the Birth of Jesus to the Year 1648 and Ephemeris Parliamentaria, or a Faithful Register of Transactions in Parliament [from 1627 to 1628], with a Forward urging law students and lawyers to purchase it, had been read by lawyers since both books were published in the 1650s and sold in bookshops near the Temple. Interview with Dr. Kate Loveland, School of English, Leicester University, held on 29th April, 2010.
- 2.
Lawyers and Eloquence, In William Andrews ed. The Lawyer in History, Literature and Humour, William Andrews and Co., 1896, page 261.
- 3.
Andrews, ibid, page 262.
- 4.
See Edward Manson, Builders of Our Law During the Reign of Queen Victoria, Horace Cox, London, 1895. Although as a judge critical of longwinded and unstructured advocacy, there is evidence that Edward Maule himself when a barrister was prone to these traits – J.B. Atlay, The Victorian Chancellors, Smith, Elder, 1908, vol 2, pp. 85–86, records the following outburst from Lord Tenterden, who strongly disliked repetition: “You have told us that three times, Mr Maule.” Maule replied, “Only twice, my Lord.” Robert Walton, Random Recollections of the Midland Circuit, Chiswick Press, 1869, pp. 150–151, recounts that at the end of a speech given by Maule in the Bail Court in Westminster Taunton J exclaimed “Mr Maule, − Mr Maule you have been arguing for the last half hour, and like a child, like a child Mr Maule.” Maule replied “I am well content to be likened to a child, for a child, if spared, becomes, in process of time, a man; but once a bear, my Lord, always a brute.” See also David F Pugsley, Mr. Justice Maule and the Western Circuit, The Western Circuiteer, Michaelmas Term 2000, pp. 14–17.
- 5.
Lawyers and Eloquence in William Andrews, The Lawyer in History, Literature and Humour, William Andrews and Co., London, 1896, page 264.
- 6.
(1837) 8 Car& P. 141.
- 7.
Edmund Purcell Forty Years at the Criminal Bar, Fisher Unwin, London, 1916, page 46.
- 8.
This practice was allowed earlier in the United States. In 1864 the state of Maine passed a statute making the accused and his spouse competent but not compellable witnesses. Others followed: Massachusetts (1867); New Hampshire and New York (1869) and New Jersey (1871). By 1878 no fewer than twenty eight states had enacted similar statutes. A survey, conducted by the Society for the Amendment of the Law in 1878, and published in the Irish Law Times of that year (12 Ir LT, 554, 563, 575 and 593), found the general view in those states was that reform had worked well, wrongful convictions had been prevented and that judges and lawyers originally hostile to the change, were now convinced of its advantages and utility. For the long campaign which led to the Criminal Evidence Act 1898 in England and Wales see David Bentley, English Criminal Justice in the Nineteenth Century, The Hambledon Press, London, 1998, Chapters 15, 16, 17 and 18.
- 9.
Purcell, Forty Years at the Bar, Fisher Unwin, London, 1916, page 47.
- 10.
Criminal Days, Hodder and Stoughton, 1945, pp. 46–49.
- 11.
A. J. Ashton, As I went on my way, Nisbet and Co., London, 1924, page 255.
- 12.
Sir Patrick Hastings, recognized as one of the first half of the twentieth century’s most able advocates, wrote many a murderer has stepped joyfully into the witness box and by his own eloquence has promptly hanged himself. Patrick Hastings, Cases in Court, William Heinemann, 1949, page 11.
- 13.
See Richard DuCann, The Art of the Advocate, 1993, Penguin, pp. 81–82.
- 14.
Tal Golan, History of Expert Testimony in the English Court Room, Science in Context 12,1 (1999), pp. 7–32.
- 15.
Tal Golan, ibid, page 16.
- 16.
Under the Rules, which were adopted throughout much of the common law world, but are now hardly used, the defence of insanity may only be established if clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or if he did know it, that he did not know he was doing what was wrong. M’Naghten’s Case [1843] All ER Rep 229.
- 17.
For an account of highly reported controversial cases concerning the defence of insanity in the decades following establishment of the M’Naughton Rules see Roger Smith, Trial by Medicine, 1981, Edinburgh University Press, Chapter 6.
- 18.
J. A. Foote, Piepowder from the Law Courts, John Murray, London, 1911, page 180.
- 19.
Frederick John Wrottesley, The Examination of Witnesses in Court, Sweet and Maxwell, 1910, London, pp. 93–4.
- 20.
See Chap. 5 for suggestions of Scarlett’s possible influence on barristers, including John Holker, Hardinge Gifford, Charles Russell and Edward Clarke, who did much to change the style of late Victorian advocacy.
- 21.
F.W. Wrottesley, The Examination of Witnesses in Court, Sweet and Maxwell London, 1910, page 78. Similarly, Sir Cecil Henry Walsh, The Advocate, Pioneer Press, Allahabad, 1916, page 95 wrote the: “method of cross-examination by direct attack, is as a rule the least successful. It is certainly, the least pleasant to hear, and the least edifying. The insidious, half friendly, half-confidential method is usually the more successful, merely because if a witness is attempting to deceive, it is more apt to put him off his guard”.
- 22.
An important development in the law of evidence affecting advocacy had been the introduction, through case law (A.G. V Hitchcock. (1847) 1 Ex 91 and Palmer V Trower, (1852) 8 Ex. 247) and by statute (28 and 29 Vict. c. 18, s. 6.) of rules which meant, subject to two exceptions (the fact that a witness was convicted of a crime and the fact he was biased in favour of the party calling him), answers given by a witness to questions put to him in cross-examination tending to shake his credit by injuring his character were treated as final. See Sir James Fitzjames Stephen, A digest of the law of evidence. Macmillan, London, 1877, Chapter XVI, Article 130. Prior to these rules counsel could call witnesses to prove allegations made in cross-examination. When they did so, trials sometimes swelled to almost unmanageable proportions. For a modern exposition of the law concerning collateral facts see Colin Tapper, Cross and Tapper on Evidence, 11th Edition, Oxford University Press, 2007, pp. 343–345.
- 23.
That bullying, blustering and thumping the table in cross-examination was increasingly seen as out of place is confirmed by part of a speech delivered by Sir Walter Schwabe K.C., who became Chief Justice of the Madras High Court in 1921 and served until 1924, in London. He advised advocates to: “Cultivate a pleasant manner and get on as friendly terms as possible with the witness. Reproving, lecturing, bullying were methods now recognized as belonging to a first generation. One should bring out the unpleasant facts with an air of condolence and regret rather than with an air of triumph, which might raise sympathy and one should never lose one’s temper”. Reproduced in S. C. Sakkar, Hints on Modern Advocacy and Cross-Examination, S. C. Sakkar and Sons (Private) Ltd., 4th Edition, 1985, page 201.
- 24.
A Character of Charles Curran, Esq., in Speeches of Charles Phillips, Williams, Mason and Co., Cincinnati, 1818, pp. 191–196.
- 25.
J.H. Foote, Pie Powder from the Law Courts, John Murray, London, 1911, pp. 196–197.
- 26.
F.W. Wrottesley, The Examination of Witnesses in Court, Sweet and Maxwell, London, 1910, page 36.
- 27.
Page 153.
- 28.
Page 154.
- 29.
J.H. Foote, Piepowder from the Lawcourts, John Murray, 1911, page 90.
- 30.
Foote, ibid, pp. 85–90.
- 31.
J.H. Foot, Piepowder from the Lawcourts, John Murray, 1911, page 88.
- 32.
Christopher Stray, Classics Transformed, Clarendon Press, 1998, Chapter 3. This was principally because of the growing number of working class Members of Parliament who had not formally studied Latin, Greek and the Classics (Interview with Mr. Stray on 2nd July, 2010).
- 33.
Abolition of the compulsory Greek requirement by Oxford and Cambridge came immediately after the First World War: See Christopher Stray, Classics Transformed, Clarendon Press, 1998, Chapter 9.
- 34.
J. H. Foote, Piepowder from the Lawcourts, John Murray, 1911, page 88.
- 35.
Foote, ibid, page 89.
- 36.
For humorous examples of this see Theo Mathew (1866–1939), Forensic Fables, Wildy and Sons, 1999, The Blushing Beginner and The Bearded Juryman (pp. 57–58) and The Brilliant Person, The Vulgar Individual With A Cockney Accent And Two Malefactors (pp. 305–306), both originally published in 1926.
- 37.
See J. A. Crook, Legal Advocacy in the Roman World, London, Duckworth, 1995, Chapters One and Two. The author seeks to controvert the view that advocacy decayed and sets out to show how it adapted to changed conditions, one of which was the fading away of by the second century AD of jury courts.
- 38.
Famous Advocates and their Speeches, London, Sweet and Maxwell, 1921, page 28.
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Watson, A. (2019). The Late Nineteenth Century and the Beginning of the Twentieth Century. In: Speaking in Court. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-10395-8_7
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