ANNOTATIONS.

"There is due to the public a civil reprehension of advocates, where there appeareth cunning counsel, indiscreet pressing, or an over-bold defence.'

The temptation to an 'over-bold defence'-to a wilful misleading of a judge or jury by specious sophistry, or seeking to embarrass an honest witness, and bring his testimony into discredit-is one to which the advocate is, undeniably, greatly exposed. Nay, it has even been maintained by no mean authority,' 'that it is part of a pleader's duty to have no scruples about any act whatever that may benefit his client.' 'There are many whom it may be needful to remind,' says an eminent lawyer, 'that an advocate, by the sacred duty of his connection with his client, knows, in the discharge of that office, but one person in the world-that client, and none other. To serve that client, by all expedient means, to protect that client at all hazards and costs to all others (even the party already injured) and amongst others, to himself, is the highest and most unquestioned of his duties. And he must not regard the alarm, the suffering, the torment, the destruction, which he may bring upon any others. Nay, separating even the duties of a patriot from those of an advocate, he must go on, reckless of the consequences, if his fate should unhappily be to involve his country in confusion for his client.'-[Licence of Counsel, p. 3.]

On the other hand, it is recorded that Sir Matthew Hale, whenever he was convinced of the injustice of any cause, would engage no more in it than to explain to his client the grounds of that conviction; he abhorred the practice of misreciting evidence, quoting precedents in books falsely or unfairly, so as to deceive ignorant juries or inattentive judges; and he adhered to the same scrupulous sincerity in his pleadings which he observed in the other transactions of life. It was as great a dishonour as a man was capable of, that for a little money he was hired to say otherwise than he thought.'-[Licence of Counsel, p. 4.]

Lecture on the Intellectual and Moral Influences of the Professions,' reprinted in the Elements of Rhetoric.

'The advocate,' says another eminent legal writer, observing in an honest witness a deponent whose testimony promises to be adverse, assumes terrific tones and deportment, and, pretending to find dishonesty on the part of the witness, strives to give his testimony the appearance of it. I say a bond fide witness; for in the case of a witness who, by an adverse interrogator, is really looked upon as dishonest, this is not the proper course, nor is it taken with him. For bringing to light the falsehood of a witness really believed to be mendacious, the more suitable, or rather the only suitable course is to forbear to express the impression he has inspired. Supposing his tale clear of suspicion, the witness runs on his course with fluency till he is entangled in some irretrievable contradiction, at variance with other parts of his own story, or with facts notorious in themselves, or established by proofs from other sources.' -[Licence of Counsel, p. 5.]

'We happen to be aware, from the practice of persons of the highest experience in the examination of witnesses, that this description is almost without exception correct, and that, as a general rule, it is only the honest and timid witness who is confounded by imperious deportment. The practice gives preeminence to the unscrupulous witness who can withstand such assaults. Roger North, in his life of Sir Dudley North, relates that the law of Turkey, like our absurd law of evidence in some cases, required the testimony of two witnesses in proof of each fact; and that a practice had in consequence arisen, and had obtained the sanction of general opinion, of using a false witness in proof of those facts which admitted of only one witness. Sir Dudley North, while in Turkey, had numerous disputes which it became necessary to settle by litigation,— 'and,' says his biographer, 'our merchant found by experience, that in a direct fact a false witness was a surer card than a true one; for if the judge has a mind to baffle a testimony, an honest, harmless witness, that doth not know his play, cannot so well stand his many captious questions as a false witness used to the trade will do; for he hath been exercised, and is prepared for such handling, and can clear himself, when the other will be confounded therefore circumstances may be such as to make the false one more eligible.'

According to one, then, of the writers I have cited, an

advocate is justified, and is fulfilling a duty, not only in protesting with solemnity his own full conviction of the justice of his client's cause, though he may feel no such conviction,-not only in feigning various emotions (like an actor; except that the actor's credit consists in its being known that he is only feigning), such as pity, indignation, moral approbation, or disgust, or contempt, when he neither feels anything of the kind, nor believes the case to be one that justly calls for such feelings; but he is also occasionally to entrap or mislead, to revile, insult, and calumniate persons whom he may in his heart believe to be respectable persons and honest witnesses. Another on the contrary observes: We might ask our learned friend and fellow-christian, as well as the learned and noble editor of Paley's Natural Theology, and his other fellow-professors of the religion which says that lying lips are an abomination to the Lord,' to explain to us how they reconcile the practice under their rule, with the christian precepts, or avoid the solemn scriptural denunciation- Woe unto them that call evil good, and good evil; that put darkness for light, and light for darkness; that put bitter for sweet, and sweet for bitter; . . which justify the wicked for reward, and take away the righteousness of the righteous from him.''—[Licence of Counsel, p. 10.]

Of the necessity and allowableness of the practices upon which these opposite legal opinions have been given, I leave every one to judge for himself. For my own part, I think that the kind of skill by which a cross-examiner succeeds in alarming, misleading, or bewildering an honest witness, may be characterized as the most, or one of the most, base and depraved of all possible employments of intellectual power. Nor is it by any means the most effectual way of eliciting truth. The mode best adapted for attaining this object is, I am convinced, quite different from that by which an honest, simple-minded witness is most easily baffled and confused. I have seen the experiment tried, of subjecting a witness to such a kind of crossexamination by a practical lawyer as would have been, I am convinced, the most likely to alarm and perplex many an honest witness without any effect in shaking the testimony; and afterwards by a totally opposite mode of examination, such as would not have at all perplexed one who was honestly telling the truth, that same witness was drawn on, step by step, to acknow

ledge the utter falsity of the whole. Generally speaking, a quiet, gentle, and straightforward, though full and careful, examination, will be the most adapted to elicit truth; and the manœuvres, and the browbeating, which are the most adapted to confuse an honest, simple-minded witness, are just what the dishonest one is the best prepared for. The more the storm blusters, the more carefully he wraps round him the cloak, which a warm sunshine will often induce him to throw off.

I will add one remark upon the danger incurred by the advocate-even if he be one who would scruple either wilfully to use sophistry to mislead a judge, or to perplex and browbeat an honest witness-of having his mind alienated from the investigation of truth. Bishop Butler observes, and laments, that it is very common for men to have a curiosity to know what is said, but no curiosity to know what is true.' Now, none can be (other points being equal) more in need of being put on his guard against this fault than he who is professionally occupied with a multitude of cases, in each of which he is to consider what may be plausibly urged on both sides; while the question what ought to be the decision is out of his province as a pleader. I am supposing him not to be seeking to mislead by urging fallacious arguments; but there will often be sound and valid arguments-real probabilities-on opposite sides. A judge, or any one whose business it is to ascertain truth, is to decide according to the preponderance of the reasons; but the pleader's business is merely to set forth as forcibly as possible those on his own side. And if he thinks that the habitual practice of this has no tendency to generate in him, morally, any indifference, or, intellectually, any incompetency, in respect of the ascertainment of truth,—if he consider himself quite safe from any such danger,-I should then say that he is in very great danger..

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ESSAY LVII. OF ANGER.

92

Ts O seek to extinguish anger utterly is but a bravery' of the Stoics. We have better oracles: 'Be angry, but sin not; let not the sun go down upon your anger.' Anger must be limited and confined, both in race and in time. We will first speak how the natural inclination and habit to be angry,' may be attempered and calmed; secondly, how the particular motions of anger may be repressed, or, at least, refrained' from doing mischief; thirdly, how to raise anger, or appease anger in another.

For the first there is no other way but to meditate and ruminate well upon the effects of anger, how it troubles man's life; and the best time to do this, is to look back upon anger when the fit is thoroughly over. Seneca saith well, 'that anger is like rain, which breaks itself upon that it falls." The Scripture exhorteth us to possess our souls in patience:" whosoever is out of patience, is out of possession of his soul. Men must not turn bees:

'Animasque in vulnere ponunt.' 7

Anger is certainly a kind of baseness, as it appears well in the weakness of those subjects in whom it reigns, children, women, old folks, sick folks. Only men must beware that they carry their anger rather with scorn than with fear, so that they may seem rather to be above the injury than below it, which is a thing easily done, if a man will give law to himself in it.

1 Bravery. Bravado. One Tait, who was then of the Lord's party, came forth in a bravery, asking if any had courage to break a lance for his mistress.'— Spottiswode.

2 Ephes. iv. 26.

3 Attemper. To temper; soften.

4 Refrain.

Those smiling eyes, attempring every ray.'-Pope.
To restrain.

I refrain my lips.

I refrain my soul, and keep it low.'

6 Luke xxi. 19.

5 Sen. De Irâ. i. 1.

7 And leave their lives in the wound.'-Virg. Georg. iv. 238.