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case by the impression he made in his opening presentation of it.
“I made it my business to know and remember the principal facts, to lay the unimportant wholly out of memory; to open the case, if for the plaintiff, and when I expected evidence for the defendant, in the shortest and plainest manner, with no other object than to make the jury comprehend the evidence which they would shortly hear. I very seldom thought it necessary to make any anticipation of the defendant's case. It is, indeed, oftentimes dangerous to do so, as it leads the judge and jury to seek for support to it in the plaintiff's evidence. I found from experience as well as theory, that the most essential part of speaking is to make yourself understood. For this purpose it is absolutely necessary that the court and jury should know as early as possible de quâ re agitur. It was my habit, therefore, to state, in the simplest form that the truth and the case would admit, the proposition of which I maintained the affirmative and the defendant's counsel the negative, and then, without reasoning upon them, the leading facts in support of my assertion. ... Moreover, I made it a rule in general rather to understate than overstate facts I expected to prove."
“ From these remarks it will appear that my success did not in the least depend on those tirades of declamation which make the reputation of a speaker. Not in the most considerable and difficult cases in which I have carried the verdict can any one who reads the printed speech either take any interest in it, or even understand it without reading over and understanding the whole evidence.”
Much the same was true of Mr. Mason. In his masterly defence of Avery, the Methodist minister, where he won a very doubtful and difficult case by a management similar to Scarlett's method, his speech which carried the jury has no particular interest or value, except as an analysis and discussion of the facts and evidence disclosed at the trial. Viewed in that light, however, it is entitled to very high praise.
“I learned by my experience that the most useful duty of an .advocate is the examination of witnesses, and that much more mischief than benefit generally results from cross-examination. I therefore rarely allowed that duty to be performed by my colleagues. I cross-examined in general very little, and more with a view to enforce and illustrate the facts I meant to rely upon than to affect the witness's credit, — for the most part a vain attempt.” 1
1 He once said of Mr. Topping, an eminent leader on the same circuit, that his idea of cross-examination was putting over again every question asked in chief in a very angry tone.
Serjeant (afterwards Mr. Justice) Talfourd, the most successful of literary lawyers, thus describes him, while he was in full practice at the Bar.
“What Johnson said of Burke's manner of treating a subject is true of his management of a cause, he winds himself into it like a great serpent.' He does not take a single view of it, nor desert it when it begins to fail, but throws himself into all its windings, and struggles in it while it has life. There is a lucid arrangement, and sometimes a light vein of pleasantry and feeling in his opening speeches ; but his greatest visible effort is his replies. These do not consist of a mere series of ingenious remarks on conflicting evidence, still less of a tiresome examination of the testimony of each witness singly, but are as finely arranged on the instant, and thrown into as noble and decisive masses, as if they had been prepared in the study. By a vigorous grasp of thought he forms a plan and an outline, which he first distinctly marks, and then proceeds to fill up with masterly touches. When a case has been spread over half a day, and apparently shattered by the speech and witnesses of his adversary, he will gather it up, condense, concentrate, and render it conclusive. He imparts a weight and solidity to all he touches. Vague suspicions become certainties, as he exhibits them ; and circumstances light, valueless, and unconnected till then, are united together, and come down in wedges which drive conviction into the mind.”
A country attorney, Lord Brougham tells us, paid him perhaps the highest compliment, when he said of him, “ Really there is nothing in a man getting so many verdicts who always has the luck to be on the right side of the cause.”
“ I have it," says Mr. Campbell Scarlett, “ on Lord Chelmsford's authority that the Duke of Wellington said of my father: • When Scarlett is addressing a jury, there are thirteen jurymen.'” Mr. Scarlett thinks this was the origin of the sobriquet of “the thirteenth juryman,” by which his father went, — one by the way that sounds better than it really is. We rather doubt this, and think the Duke's remark was only confirmatory of an already well-known designation.
There are occasionally causes, however, for which he was not so well fitted as many inferior men of intenser feelings. His nature was somewhat timid, and his temper cold. He would seem to have lacked enthusiasm. Thus he could not have conducted with success such a defence as Erskine did in the case of Hardy, nor would he have appeared to advantage as counsel for Queen Caroline. He would, indeed, have conducted the prose
cution in both those cases with eminent tact, humanity, and ability ; but their defence required qualities which he wanted. Perhaps his most important political case was The King v. Pinney, tried at the bar of the King's Bench in 1832, when, with Mr. Campbell and Mr. Follett as his junior counsel, he successfully defended the Mayor of Bristol against a criminal information for neglect of duty during the Reform riots in that city; but here political disappointment and somewhat bitter hostility to the Reform Bill and towards those who had introduced it, gave an intensity to his feelings in regard to the case that he did not usually display.
At times, too, his dislike of the side he was on prevented his making so earnest an effort for his clients as we think he otherwise might have done. In the case of Ambrose Williams,tried for a libel on the clergy of Durham Cathedral, occasioned by its bells not tolling on the death of Queen Caroline, where his personal sympathies were doubtless rather with the defendant, he does not seem to us to have pressed the case as earnestly as he could ; and his unfortunate suggestion that the bells of the cathedral might not have tolled because the grief of the clergy was too deep for such utterance of it, gave Brougham the needed opportunity for launching forth into one of the greatest pieces of invective in the English language. A similar criticism may be made of his defence of the Wakefields for the abduction of Miss Turner. The case was, from the beginning, hopeless, and public indignation was justly excited against his clients. But the defence, though ingenious, does not strike us in reading it as either an earnest or a strong one ; and his opening remarks about the duties of an advocate (which singularly contrast with Lord Brougham's declaration on the subject at the Queen's trial) were then out of place, and could not have failed of doing harm.
But these were exceptions, such as are found in the lives of all great lawyers, to his ordinary management of a cause. How eminent he really was is well shown in a comparison between him and his greatest successor, the lamented Sir William Follett, contained in an address delivered by the late Sir John Taylor Coleridge — and we cannot name a more competent or trustworthy critic - on his “ Recollections of the Western Circuit,"
1 2 Townshend's Modern State Trials, 272. ? 13. 231.
8 Id. 112.
before the Exeter Literary Society in 1859. After speaking of. Sir Thomas Wilde, he says:
“With Follett I had more familiar relations. I saw his whole course, standing near to it in its commencement and up to my quitting the Bar. I was deeply interested in observing it, and I early predicted his future eminence. No man, I suppose, ever had or desired to have success more complete in proportion to the time he was in the profession; had his health been continued to him, he would have entirely filled up the place at the Bar which Sir James Scarlett had left, and, I think, still leaves un filled ; he wanted his literature, his science, his variety of legal learning, and his great experience, not only in legal practice but in general life; but he was his equal in the ready appreciation of facts and in the soundness of his legal principles. He would, I think, have become even a better speaker, for he was equally natural and apparently free from artifice, and yet was more capable of earnest and sustained declamation: his voice was sweet, his action good.” 1
One of the numerous stories told of him, of that class that injure rather than help a great advocate's reputation, is the following one, related by Lord Brougham:
“ He had defended a gentleman of rank and fortune against a charge of an odious description. He had performed his part with even more than his accustomed zeal and skill. As soon as the judge had summed up, he tied up his papers deliberately, and with a face smiling and easy, but carefully turned towards the jury, he rose and said, loud enough to be generally heard, that he was engaged to dinner, and in so clear a case there was no occasion for him to wait what must be the certain event. He then retired deliberately, bowing to the court. The prosecuting counsel were astonished at the excess of confidence or of effrontery; nor was it lost upon the jury, who began their deliberations. But one of the juniors having occasion to leave the court, found that all this confidence and fearlessness had never crossed its threshold, — for behind the door stood Sir James Scarlett, trembling with anxiety, his face the color of his brief, and awaiting the result of the clearest case in the world' with breathless suspense.”
i Sir John Coleridge goes on to say of Follett, what is so true of other great lawyers, " that neither as a lawyer nor a legislator has he left any lasting monument behind him of his great abilities; the gainful business of the day swallowed him up. Like a well-graced actor,' the admired one of his day, he lives only in the recollections of one fleeting generation who saw him. We have a distinct idea of him as our fathers had of Garrick; henceforward a mere tradition of him will remain, — tradition becoming every year more uncertain, obscure, indiscriminate." How true this is not only of Scarlett and of Follett, but of Samuel Dexter, of Pinkney, of Mason, and of Binney, and soon will be of Choate and of Curtis !
The lay magazines have been discussing the question of how far this was justifiable. To us it appears to be rather a question of taste than of morals. But there are great difficulties in the way of believing the story at all. The case, we take it, was The King v. Wall, tried in the King's Bench in 1833. The report, however, in the Annual Register says that the jury stopped the Lord Chief Justice in his summing up, and found the defendant not guilty without leaving the box.
Like Erskine, Pinkney, and Webster, he had the weakness of vanity, which shows itself in his autobiography and correspondence, and sometimes showed itself by an overweening self-confidence at the Bar and in Parliament, greatly to his detriment. One amusing story Lord Brougham tells:
“ It was a case of libel, and no justification had been pleaded. He was
1 A still more impossible anecdote is recorded by Mr. Campbell Scarlett, who says it was sent to him "by a lady," which perhaps accounts for its insertion :
"Sir Walter Scott promised a friend that he would write a book for his benefit. The friend died before the promise was fulfilled, and his executors insisted that Sir Walter should write a book for the benefit of the widow and children of the deceased. This, Sir Walter refused to do. The executors sought the advice of Mr. Scarlett, who, having listened to their case, said: 'Let us suppose the position to be reversed; if Sir Walter Scott had died, should you have required his executors to write a book for the benefit of your clients ?' 'Oh, no!' exclaimed the executors, convinced at once that they had no case against Sir Walter Scott."
Neither the law nor the logic of this is very apparent. Whether an executor could enforce such an agreement against an author would depend upon its terms. To assume that he could not, because if the author had died, his executor could not have compelled the acceptance of a work of his own, is a palpable non sequitur; and it is not necessary to tell lawyers that it is one of which no good lawyer could be guilty. But the origin of the story is undoubtedly found in Lord Abinger's dissenting judgment in the leading case of Gibson v. Carruthers, 8 M. & W. 343, 344, in which, in discussing the question of how far bankruptcy affected executory contracts, he put as an illustration a controversy between Sir Walter Scott and the assignees of his booksellers, who were to have published one of his novels, and to pay him for the privilege £4000. The assignees, after the bankruptcy, contended that they had succeeded to the bankrupts' rights under the contract and desired to undertake the publication, but Sir Walter Scott objected that there were many qualities required in a publisher, — credit, skill, reputation, - in order to push a new book in the market, and that the contract was a personal one, discharged by the booksellers' bankruptcy. “I must own," says Lord Abinger, “that his reasoning appeared satisfactory to me; but a more obvious illustration of the principle on which it rested would have been afforded by reversing the case, and supposing that Sir Walter Scott had been the bankrupt, and his booksellers solvent, would they have been content to pay their £4000, and take the risk of publishing a novel written by the assignees of the Novelist?" See Beckham v. Drake, 8 M. & W. 846; 8. c. 2 H. L. Cas. 579.