The Art of Advocacy: Character and Skills for the Trial of Cases

Author(s): Norman Birkett

Source: American Bar Association Journal , January 1948, Vol. 34, No. 1 (January 1948),
pp. 4-7, 80-83
Published by: American Bar Association

Stable URL: https://www.jstor.org/stable/25716249

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 3

The Art of Advocacy:

Character and Skills for the Trial of Cases

by The Right Honorable Sir Norman Birkeft, P. C.

much value
We are privileged to bring to our readers a delightful and instructive exposition were formulated; and
of the art of trying cases, by the gifted British jurist who has several timesthrough all the centuries they have
addressed
our Association and is known to many of our members. For many years he been in operation.
ranked
It isthe
with the best among British advocates; then he ascended the King's Bench, was quite true that if you have
beena at
British alternate judge at the Nuremberg trials, and was appointed this year the Bar you know what the
mem
Bar thinks about the bench. We in
ber of the Privy Council. All will attest the fullness of the experience from which he
spoke. England treasure very much the
freedom of the Bar, in the various
Sir Norman's address was delivered on Sefitember 10, before the Lawyers' Club messes on circuit and elsewhere, to
of Toronto, in Osgoode Hall. On an evening of sweltering heat, he spoke for more speak their minds about the Bench;
than an hour, wholly without notes; our report of his address is condensed from the and so the tradition grows from day
stenotype transcript. He was introduced by D. L. McCarthy, K. C, of Toronto, a to day. Mr. Justice Field, one of our
wartime President of the Canadian Bar Association, who has attended many meetings old justices of days past, was so deaf
of our Association, including that in Cleveland in September. An unprecedented that when he sat in the Court he
circumstance of his address was that, on his very popular motion in view of the heat once mistook a clap of thunder for
and humidity, he and all his august auditors took off their coats. "Sir Norman in an interruption by the witness. And
shirt-sleeves" may be conjured as far different from Sir Norman in full wig and in Mr. Justice Field's day one bar
rister would say to another: "How
robe, pictured herewith.
are things in Field's Court?" And
the answer invariably was: "Part
heard".
It is now ten years since I first you come from the Bench you share
came to Toronto as a member of the the same cordial feelings. It may The Ancient Story of the Deaf
English Bar, and upon that occasion serve as an illustration of the great Plaintiff, Defendant and Judge
I brought the cordial greetings of my ness of the work which was done, And speaking of the tradition that
colleagues working at the English first of all in our own country in the the Bar should have the license to
Bar. Now, by an accident arising out Twelfth Century, when for the very speak freely among themselves about
of and in the course of my employ first time the lawyers became a self the judges, I was interested to ob
ment, I come as one of His Majesty's conscious community; when, for the serve, when looking into the Greek
Judges; but I feel no essential differ first time men who were not in Holy anthology the other night to find a
ence. And whilst I bring the cordial Orders were permitted to practice particular quotation unconnected
greetings tonight of the Bench and at the English Bar. And from that with the law, to find there the story
Bar of England, I bring them with early date in the Twelfth Century which still circulates in England
no less fervor than I brought them the promotion has always been from about the deaf judge, the deaf
ten years ago. Bar to Bench. And by that simple plaintiff and the deaf defendant. The
And that, sir, illustrates the most thing, dependent upon the reforms judge took his seat upon the bench;
important factor in any community of Henry II, the great community the plaintiff and the defendant came
of lawyers?the fact that whether of lawyers within the community was before him; and the judge said:
you come from the Bar or whether formed; those traditions which we so "You will begin".

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 The Art of Advocacy
3
The plaintiff had never heard a
word, neither had the defendant,
but he saw the judge's lips had
stopped moving and said: "My Lord,
my claim is a claim for rent".
Of course, the defendant never
heard a word about this, and neither
did the judge; but the plaintiff's lips
had stopped moving, and the judge
turned to the defendant and said:
"What do you say to that?"
So the defendant, who had never
heard a wrord, said: "My Lord, how
can that be when I grind my corn
at night?"
Of course, the plaintiff never heard
a word about this and neither did
the judge, but he saw his lips had
stopped moving. The judge pulled
himself together and said: "Well, I
think this is a most difficult case but
I see no useful purpose in reserving
my judgment. As I have formed a
clear opinion I propose to give ex
pression to it. I have come to the
conclusion that she is your mother
and you will both maintain her."
So the license to speak freely of
judges is pretty ancient.
Then we had a perfectly delight
ful case of a very pleasant judge
indeed who was trying a very com
THE RIGHT HONORABLE SIR NORMAN BIRKETT
plicated financial case. And he came
finally to deliver his judgment and deep and much more lasting. And say that the habiliments, the trap
he said: "And so I come to the con between the Bench and Bar in pings, the ceremonial which is at
clusion that I must find for the England, and I am sure between the tendant upon the procession of the
plaintiff, and I find for the plaintiff Bench and Bar in Canada, there is judges through the cities of our land,
in the sum of 25,452 pounds, 16 that community of interest which is the pomp with which justice is ad
shillings and 11 pence, but of course, based upon one thing, namely, that ministered, does certainly give not
if my figures aren't quite right, no our profession is devoted to the ad merely dignity to the Bench, but
doubt the counsel for the plaintiff ministration of the greatest thing in gives to the populace throughout
and the counsel for the defendant any civilized community?the admin our land a deep-seated admiration,
will check me and correct me." istration of justice. And we in Eng which almost on occasion approaches
Whereupon, the counsel for the land pay great attention to tradition reverence, for the value which the
plaintiff said to the counsel for the and to ceremonial. When the judge King's justice represents.
defendant in a loud whisper, "Why is going upon circuit, let us say to In these days of change, when the
the damn old fool has added the date York to attend service in the cherished institutions are in some
in". And the kindly judge, over Minster, he goes arrayed in full danger from revolutionary hands,
hearing said: "So I have". scarlet and ermine, and the stately it is vital that that upon which every
procession through the ancient city thing else depends, the respect for
Our Profession Is Great
Df York brings all the populace to law, for its administration, should
Because It Is Devoted to Justice
the street sides and they see the be preserved; and the ceremonial
Those are the kind of things which risible embodiment before them of
and the tradition extending down
are only permissible and permitted :he King's justice being brought to through the ages, in my judgment,
when the community of interest be- ( *very part of the community. And tends greatly to that end.
tween Bench and Bar is founded not ihough it is not for me to make The links between Canada and
upon the ephemeral things but 1 ?uggestions with regard to procedure Great Britain, and the links between
founded upon something much more ^ lere or anywhere else, I can only the lawyers, are deep and lasting.

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3 The Art of Advocacy

We are members of a great profes advocate. "When the day comes", are paid", it is because of the great
said Erskine in the course of that
sion, with a great history and a great virtue of the advocate that he is
magnificent defence, "that the advo
responsibility. Every civilized com there to present the view of the client
munity must?it is imperative?havecate in England is permitted to And it leads me to say this further
within its borders a body of men choose whom he will and whom he thing: Because of that duty, because
will not defend, and becomes not the
trained in the law whose purpose is of that responsibility, there are cer
not merely to make money, not advocate but the judge in the cause, tain qualities of the advocate about
merely to seek and to win honor at that moment the liberties of the which I hope you will allow me to
though these things are not to becitizens of England are at an end". say a word or two tonight.
despised?but their purpose, the pur And that quality, the result of the Just let me say before I do it, that
pose of the community of lawyers unwritten law that the advocate I don't pretend for one moment to
within the community, is that thetrained in the law to defend the give anybody advice about advocacy.
ordinary citizens shall always havecitizen shall be available to the I expect there are plenty of people
at their disposal the man who can
citizen, is one reason why the lawyer who now hear me speak who are
protect them, who can defend them,in England is unpopular. Why, it is quite as competent to talk about the
who can stand up before arbitrarysaid, does the lawyer affect views in elements of advocacy as I am, but it
which he does not believe? He puts
power from whatever quarter it may is a subject on which we are all
come and assert the inalienable forward to the Court submissions interested and therefore, perhaps,
which
rights of the individual to the eternal he may or may not think with humility and with deference,
freedoms. That is the center of allsound, but that is the r61e of the you will allow me to make a few
lawyer's work and the lawyer's amadvocate. What the public will never observations about it.
bition. And indeed, if you reflectunderstand is that the man who
upon it?I don't know how it is in There Is No One Pattern
stands there to plead is not pleading
Canada but in Great Britain wherehis own view. He may be putting for Greatness as an Advocate

diere is this deeply-rooted respectforward a view of which he pro I have now been at the Bar and upon
for the law, the lawyer himself isfoundly disapproves; but he is put the bench for thirty-four years and I
never likely to be a greatly beloveding forward, for the client, the view have seen almost every type of
figure, and the real reason is becauseof the client. advocate in almost every type of
of one of the greatest virtues of our We had a famous case in England Court. And I know at once there are
system. of an advocate appearing for a no standards that you can lay down
prisoner, who in the midst of an and say, if you want to be a great
The Advocate Cannot Be Judge impassioned speech to the Court advocate, there is the pattern. It
of His Client's Cause can't be done. There are diversities
stopped and said: "Now, Milord, I
We in England have an unwritten will lay aside the rdle of the advocate of gifts but the same spirit; and I
law?the unwritten law is frequently and I will assume the rdle of the have known in my time, men who
much more powerful than the man". And Milord upon the bench could scarcely string a sentence to
written?that every counsel, whoever said: "You have no right to do any gether, who lacked all graces, and
hej may be, has no right to decline such thing. The only title by which yet impressed the Court so that the
any brief that may be offered to him you may be heard in this Court is Court strained to listen and to catch
except for good and sufficient reason. that you speak as an advocate." every word that was said. And I
In my own practice at the English And the great Lord Brougham in have known the impassioned orator
Bar, I have frequently had to under his famous defense of Queen Caro who swept juries off their feet.
take murder cases of the greatest line carried the doctrine to an ex I was in the chambers of Marshall
complexity and difficulty, not be treme length when he asserted before Hall and I shall never forget that
cause I wanted to but because of the the Court that the duty of a counsel very great man. There were times
unwritten law that I could not refuse to his client was so deep and so when Marshall Hall had very great
them. It was Lord Erskine, perhaps strong that it in fact over-rode his failures, and there were times when
the greatest advocate who ever trod duty to his country. That is a prop he had the most resounding triumphs.
Westminster Hall, the great Erskine, osition to which, I am quite sure, To see Marshall Hall come into the
when he undertook the defense of you of the Bar would not agree; but Court surrounded by a retinue of
Tom Paine?and you may read it in it is an illustration of the length to people carrying pencils and air
the State Trials?was the subject of which the doctrine of the advocate cushions and all sorts of things was
the fiercest criticism by political speaking for the client may go. an art in itself. Marshall Hall would
parties in England because he under And when you find great prose sit there and he was not above cer
took that defense. And on that writers like Swift saying of advocates tain, shall I call them, small tricks.
memorable occasion in Westminster that they are men bred in the art of This air cushion which he had?if
Hall, Erskine laid down the first proving "that white is black and the cross-examination of his client
rule with regard to the English black is white, according as they was getting pretty severe he would

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 The Art of Advocacy mmmmmm
3
and the usher put him out. All that
put the air cushion under his arm lucid, vivid speech, in all its simplic
went on under the observant eyes of
and go fsh! fsh! fsh! So that the ity that gave them their strength.
cross-examining counsel was veryHewart And at the supreme moment Most Cases Are Won by
greatly disconcerted. But I havehe came to the jury and said: Preparatory Work
heard Marshall Hall on some of the
"Members of the jury, then there My own private view is that most
big cases, the defense of Fahmy at was
the the witness, the Greek Pappinuck cases are won before you go into
ulous, sometimes coming through
Old Bailey, the defense of Green Court It is the preliminary, the pre
wood, when Marshall Hall quotedthat door, sometimes going out paratory work, the mastering of the
to the jury that wonderful thing through this other door; occasionally brief so that every fact and every
from Othello: "Put out the light, trying to push his way into the ranks figure is in your head, that is all
of counsel, here, there and every
put out the light". To hear Marshall important. I always found it most
Hall on the full tide of his forensic
where." And then, pointing to the useful to have the essential things
witness box: "but never there, never
oratory was a thing never to be for on a little sheet of my own, so that
gotten. there'*. The effect upon the jury was they could be referred to instantly
These were great figures in my profound beyond all words. at any critical moments in the case.
very early days. Edward Carson, the The conference, as we call it in
finest cross-examiner within my recol Simple Speech Makes the Most England, when you have your dis
lection at the English Bar, had a very Powerful Appeal in Court cussion with the experts, is of the
attractive Irish brogue. You all know And I once heard one of the most utmost importance. For example, in
famous stories of Carson; you read moving things I have ever heard in a the great murder trials it was often
them in the press: "Do you drink?" murder trial by the advocate for the necessary to understand the effects
And the witness says: "That is my defense, words that I knew by heart, of arsenic on the human body and to
business". And Edward Carson says: and yet the effect upon the jury was discover matters which were simply
"Have you any other?" But to hear quite startling. of vital importance as the case pro
it in the brogue, the effect was in The moving finger writes; and, having ceeded. One of the cases that I had
describable. writ, to defend, a case which came from
Rufus Isaacs was a great cross Moves on: Nor all thy Piety nor Wit the West Country, was where a
Shall lure it back to cancel half a
examiner with an extraordinarily line, woman was charged with the admin
simple method of opening in his Nor all thy Tears wash out a Word istering of arsenic to various people.
cross-examination. In the Seddon of it. It was necessary that we should
case, as you know, Seddon was And that leads me to say that understand from the point of view
charged with the murder of an old while there are no fixed standards of the defense, in every detail, the
lady named Miss Barrow. On the for forensic oratory, and there are effect of the administration of arsenic
opening of it in that crowded court no patterns and no types to which upon the human body. And as you
?Seddon, the little, composed, ready, the advocate must conform, yet I probably know, arsenic taken into
versatile prisoner; Rufus Isaacs at have found that it is simple speech the body has certain well-known
his very best, and he begins: "Seddon, that makes the most powerful appeal. pathological effects, but one thing
did you like Miss Barrow?" And Now when you think of it, you take is of the greatest importance, it comes
Seddon, surprised by the opening the Gettysburg address. It is perhaps down through the strands of the hair
question, said: "Did I like her?" the greatest speech that ever fell from the inside, from the inside. And
Said Rufus Isaacs: "That was the from the lips of man. "Fourscore and your expert, by taking the strand of
question". And in that simple, in seven years ago our fathers brought hair, can tell you when the arsenic
cisive, forcible, direct way one of forth upon this continent a new was first administered and in what
the most wonderful cross-exami nation, conceived in liberty, and probable strength.
nations in the world was begun. dedicated to the proposition that all In this particular case it so
Lord Hewart had an inimitable men are created equal." Nothing happened that the body of one of
way with him. I remember a Greek could exceed it for simplicity. Take the victims was exhumed in the
witness called Pappinuckulous, a the Authorized Version of the Bible Lewannick Churchyard and they
very undesirable man with a very and pick where you will. Take the decided to conduct the post-mortem
bad character, and he was going to great stories of the Bible, such as the in the churchyard. And by the
give evidence?at least, it was said story of the Prodigal Son, and note strangest circumstances, the soil of
that he was going to give evidence. this essential simplicity. It is the that Cornish churchyard at Lewan
And he used to come in at one door simple, direct, incisive speech that nick was charged and impregnated
of the Court and probably leave by wins the great victories. And so it is with arsenic, and it was the easiest
the other one. Uppn one occasion he in the Court. My experience has thing therefore for the cross-examiner
tried to push his way in to the fr?nt always been with regard to the great to say to the paihological expert
row of counsel which, as you know, advocates that I have known that it from the Home Office, and to tell
in England is absolutely sacrosanct, was the element of direct, forceful, (Continued on page 80)

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 26
^mammmm Proceedings of the House of Delegates

Re-dedication Week to be held in ence, to continue participation in Bar of the city of Cleveland, and the
each community in conjunction with Traffic Institutes. Secretary of this Association is di
rected to advise the President of the
the Train's visit, was made by Louis The Section of Taxation presented Bar Association of this resolution of
Waldman, of New York, Chairman eleven resolutions, all of which were
appreciation and thanks.
of the Committee on American Citi approved by the House.
A resolution calling for formation
zenship. of a committee to report suggestions
George M. Morris, of the District Association Reiterates Stand as to how the Bar might cooperate
of Columbia, reported for the Com for Improving Military Justice in stimulating an improved spiritual
mittee on Public Relations. In die consciousness in America was referred
The House concurred with the As to the Committee on American Citi
absence of Senior Circuit Judge John
J. Parker, who had to leave Cleve sembly in adopting a resolution to zenship.
land to attend the Judicial Confer approve H. R. 2575, as to improve The Committee on Hearings had
ence of Senior Circuit Judges in ments in military justice. An Assem no report. Glenn M. Coulter, of
Washington, Chairman Barkdull bly resolution for the memorializing Michigan, gave the supplemental
placed before the House the report of the Congress to renounce title to report of the Committee on Creden
of the Committee on Improving the tide lands recently declared to be tials and Admissions of the House.
Administration of Justice. long to the government of the United
Secretary Stecher stated that at the
Mr. Lyman stated that the Junior States was referred by the House to meeting of the State Delegates last
Bar Conference wished that the con the Board of Governors for reference
February 25, the following nomina
sideration of its recommendations be by it to a Committee or Section for tions for officers of the Association
deferred until the Mid-Winter meet recommendation and action. were made:
ing. A motion to that effect was car The report of the Committee on
For President: Tappan Gregory, of
ried. Draft was given by Osmer C. Fitts, Illinois.
of Vermont. He offered the follow
A report by the Section of Patent, For Treasurer: Walter M. Bastian,
Trade-Mark and Copyright Law was ing resolutions, which were adopted: of the District of Columbia.
Resolved, That the Committee to
given by its Chairman, Charles H. For Secretary: Joseph D. Stecher,
Walker, of New York. be appointed under Resolution (A) of Ohio.
of the Committee on Aid to Lawyers
John R. Snively, of Illinois, offered in Devastated Countries be charged No other nominations having been
the report of the Section on Crimi with investigation, consideration and made by petition, M. J. Galvin, of
nal Law, with a resolution author appropriate action toward publicizing Minnesota, moved that the Secretary
the safest and most economical meth
izing the Section to award each year cast a unanimous ballot for those
in the name of the Association a ods of dispatching packages of food
to our professional brethren in the
nominees. This was carried; Presi
"citation to the city making the most devastated countries of Europe and dent Rix declared them the officers
progress in the improvement of its Great Britain. of the Association for the ensuing
Resolved, That the American Bar year.
traffic court practice and procedure". Association and its members in na
After some debate, this was voted. The final session of the 1947 House
tional convention assembled are duly
The Section was also authorized, adjourned at 11:25 o'clock on Friday,
appreciative of the hospitality and
along with the Junior Bar Confer cordial reception by members of the September 26.

3
w?m^mm The Art of Advocacy

(Continued from page 7) making a short opening statement

conference, of understanding details
that may perhaps never be used to
the jury, that in these organs of the in the jury in a jury case. And again,
body there were so many grains of it would be almost a truism to say
the case, is of the utmost importance.
arsenic, which might have come that more cases are won by a proper
from the soil. How are you to know Importance of a Proper Opening presentation of that opening state
some of that arsenic was not de Statement to the Jury
ment than in any other way. The
As I said before, all that side of the
posited from the soil of the Lewan jury, fresh to the Court, fresh to the
nick Churchyard? That was easy, work of advocacy is an integral partcase, hear a presentation, and they
but the strands of hair, nothing of the mastering of the brief, the are never, never likely to forget.
wrould avail to say that the arsenic
assimilation of the expert's knowl Shaken they may be by cross-exami
found there came from the outside.edge in the conference room, then nation, by subsequent witnesses, but
That came from administration frominto the Court and the presentation that first, clear, incisive impression
within. And so you perceive howof inthe case. We begin, as you know, made upon the jury is beyond all
a case of that nature, and indeed by
in the leading counsel for the Crown,
price.
all cases, the preliminary work ofor leading counsel for the plaintiff, Then there is the calling of wit

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 The Art of Advocacy
3
nesses, what we call the examination
As you probably have it in Canada on the hedge bottom on these moon
in-chief?a most delicate and difficult
and as we have it in England, any lit nights with this nice girl?"?"Oh
case of what I will call notoriety
task. And I have always found for yes," he said, "we did that".
my own part that, if you can always
so brings people from all parts There he should have stopped.
of the land volunteering to give
conduct your examination-in-chief Instead of that, he asked one
evidence because of the kudos that
that your opponent must sit still, question too many; and he said to
their presence in the box gives.
that is a very great triumph; but if you the old man: "Well now, tell me,
This was a man exactly of that
so conduct yourself that you give your there was nothing wrong about that,
opponent the opportunity of pro And there was I rising to cross
type. was there?" And the old man said to
testing against leading questions examine
or him, and whether it was the judge: "Am I bound to answer
other irregularities your influenceinspiration or what it was I don't that question?" No doubt, there are
begins to go, your control over the
know, but my first question in the many classical illustrations of the
cross-examination of the man cer
jury begins to vanish. And I can not man who in cross-examining gets all
emphasize as much as I would wish tainly wasn't in the brief. I said: that he can ever wish to have, and
the importance of paying attention me, sir, what is the coefficient
"Tell who can not restrain himself, and
to the proper examination-in-chief.
of the expansion of brass?" And he asks the one question too many.
didn't know. I am not sure that I
Indeed, I would lay down for myself
that a very sound working rule is did,
so but he couldn't ask me questions The Advocate Must Be
and I could ask him, and he didn't
to conduct your case that the inter a Man of Complete Integrity
ruptions of your opponent are know. And from that moment, of
matters that will be frowned on by
course, it was easy. Then we have, of course, the final
the Court.
Skillful Cross-Examination You
address to the jury when all the
Cross-Examination in the evidence is over, when everything is
Have to Get from Your Judgment
"Blazing Car Murder" Case presented in its final form. All these
And the cross-examination to a very things about which I do not presume
And then cross-examination^the large extent must depend upon the to speak at any length are all essen
thing which everybody thinks he can kind of man you are. You can't get tial parts of the work of the advocate,
do so well and the thing that is it from your brief; you must use your but the matters that I did just want
rarely so very easy to do well. Some judgment. And above all don't ask to speak about in a general way,
times you have a moment of inspir the one question too many. They tell before I sit down, about advocacy
ation. At one of our big murder a grand story about a bastardy case are these?they are quite general.
cases, which is now fairly well known in England where in the old days The first quality beyond all others
as the "Blazing Car Murder", a man they used evidence of association as in your advocate, whatever his type,
called Rouse was accused of burning tending to show that the man accused the first quality is that he must be a
the body of his victim at a little was the father of the child. And in v man of character. Without that in
village called Hardingstone in North one of the country assizes towns there the long run all else fails. The Court
hamptonshire in the middle of the was an old farmer called to give must be able to rely upon you. Your
night. It was a most remarkable case. evidence. He was cross-examined and word must be your bond, and when
I wish I had time to tell you about the cross-examination proceeded up you assert, as a matter of fact, to the
it. The victim was never identified, on these lines: "Well, sir, I suppose Court those matters which are within
although the case was discussed from you were young once yourself?" "Yes your personal knowledge the Court
one end of our land to the other. sir," he says, "I was young once my must be able to know that you in
Nobody ever came forward anywhere self". "And I suppose you used to your integrity, on your responsibility
to say they had ever known this go walking through the lovely lanes as a member of a great profession,
unknown man, and there were all and fields?"-"Oh yes," he says, "I are being loyal to the Court.
sorts of features of that kind. The walked the lanes and fields, all right". You will forgive me saying it, but
question before the jury, raised by "And I suppose there were occasions I am jealous of the very great reputa
the defense, was whether the burning when you went in those lanes and tion of the law. Its future is in our
was accidental. There had been a fields in the moonlight?"?"Oh yes," hands; and it is a solemn respon
joint?it was a Ford car?and there he said, "I went in the moonlight." sibility and duty cast upon every
had been a joint where it was said "I suppose there were occasions when member of the practicing profession
that the petrol leaked and the heat you had a girl with you?"?"Yes," he that in all he does, in his duty to the
of the car had made this joint much said, "there were occasions, I will client, in his duty to the Court and
looser. That was the line upon which admit, in these fields and lanes on in his duty to the State, he shall be
the defense was run. I was the moonlight nights when I had a nice above and beyond all other things a
counsel for the Crown and a man girl with me." "Well," said the man of complete integrity. Whatever
came in to the box for the defense counsel, "I suppose there were gifts or attributes he may possess, he
who called himself an expert witness. occasions when you used to sit down shall have this supreme qualification

January, 1948 Vol. 34 81

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 3
gg^B The Art of Advocacy

amine
that he is a man of integrity and a that oratory you will find it
man of honor. derives from the Authorized Version.
His very great speech in the House
An Advocate Should Be a Man of of Commons on the Crimean War
Culture as Well as Character owed all its power to the narrative
The other general observation I
of Herod's slaying of the first born.
Lincoln,
would like to make with regard to President Lincoln, owed
much to the same source. And to
the advocate is this: I think he must
be not only a man of character familiarize
but yourself with that great
a man of culture. You may rememberrepository of English prose is in itself
an education.
in Sir Walter Scott's Guy Mannering
the figure of Counsellor Pleydell,
Familiarity with the Greatest
who went into his room and thereExpressions in Speech Is Essential
were all the great poets and writers
Shakespeare! Even a nodding ac
on the shelf, and pointing to the
quaintance
books, he said: "These are my stock with Shakespeare is of
in trade". the greatest possible advantage to
the advocate, for there speech has
There can be no doubt that whilst
reached the highest form that we
the knowledge of law and the train
have ever known or are ever likely to
ing in law is essential, of itself it is
insufficient. There must be theknow. cul And if we can get just a touch
of historical background with it, it
tural background out of which
becomes most moving and most
springs the serene mind, the subtle
magical. A few months ago I was
understanding, the insight, that
privileged to be in Shakespeare's
which differentiates man from man.
birthplace, Stratford-on-Avon, and I
"Two men look out through reflected
the that it was at Stratford-on
same bars, one sees the mud, and one
Avon that Shakespeare came at the
the stars." That cultural background
end of his short and crowded life,
is open to everybody. It may very
and it was at Stratford-on-Avon that
well be that there are some here who
he penned those memorable words
have not had the opportunity of a
in which he took farewell of all the
classical education and been made
imaginative beauty which he had
familiar with all the great ancientcreated. For it was there that he
writers; it may very well be so. We
wrote The Tempest, and into the
are not all so fortunate as to be born
mouth of Prospero he put perhaps
in circumstances which permit it. It
the greatest form of speech we are
may be, that many were unable, as
ever likely to know:
indeed they were in England, to You
go do look, my son, in a mov'd sort,
to universities like Oxford and
As if you were dismay'd: be cheerful,
Cambridge and to spend the leisureSir.
Our revels now are ended. These our
years in reading, absorbing and im
bibing. These are very great advanactors,
As I foretold you, were all spirits, and
tages but they are not possible for
Are melted into air, into thin air:
all.
And, like the baseless fabric of this
But what is possible for all is vision,
that there should be a cultural back The cloud-capp'd towers, the gorgeous
ground created by themselves. Take palaces,
the whole field of literature and what The solemn temples, the great globe
itself,
a repository, what a treasure we have Yea, all which it inherit, shall dissolve,
there. Take the Authorized Version And, like this insubstantial pageant
itself of King James' Bible. Why, faded,
there are some men who have Leave not a rack behind. We are such
stuff
achieved very great fame who had As dreams are made of, and our little
little more cultural background than life
that very great book. Some of the Is rounded with a sleep.
greatest examples of oratory in our To be familiar even for a moment
land and in our speech were given with the greatest expression of that
by John Bright, and if you will ex kind is, I think, not only a valuable
addition to the advocate's art but
an indispensable addition; and you
no doubt have your own favorite
passages in Shakespeare. The only
other one I will quote is where I
think the loveliness is still as perfect:
Sit Jessica: Look, how the floor of
heaven
Is thick inlaid with patines of bright
gold:
There's not the smallest orb which
thou behold'st,
But in his motion like an angel sings,
Still quiring to the young-ey'd cheru
bins,?
Such harmony is in immortal souls;
But whilst this muddy vesture of
decay
Doth grossly close it in, we cannot
hear it.
I cite that merely to illustrate the
admonition: Don't rely too much
upon the law books. Our very dear
friend George Pepper the other night
made a beautiful speech at Osgoode
Hall, and in the course of it he said:
"If I were pressed I could tell you
of every form of dower, dower at
common law, and all the rest of it".
And I said to George this morning:
"My dear George, it was lovely to
hear you, but let me tell you that in
thirty-four years at the Bar I have
never had one single case in which
dower ever came into it".
And whilst these things are essen
tial and training is invaluable, my
advice is: Let your advocate be not
merely a man of law?let him be a
man of letters. Let him love the
humanities, and from that springs
the insight, the understanding and
the judgment.
Cultivate and Love the
Right Use of Words
The last thing that I would like to
say to you, as a third matter for the
advocate, is to cultivate the love of
words. It is important to cultivate
words, to select the right words, to
put them in the right order, to know
something of their meaning, of their
association, of their sound. You
know, it is a most fascinating world.
Again take Shakespeare: "The un
certain glory of an April day". No
body but a Shakespeare could have
used the word "uncertain" to convey
everything. Just think of it: "The

82 American Bar Association Journal

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uncertain glory of an April day". It
is perfect.
And if you examine your Shake
peare you will find that is what
Shakespeare was. He was a word
lover. He invented, of course, a
great many of the words which have
gone into our common speech,
simply made them up, but he also
used the words of Romeo to Juliet
on the balcony: "O, speak again,
bright angel". Think of the use of
"bright"?"O speak again, bright
angel". Think how he used that
word "bright" in so many places:
"So quick bright things come to
confusions," and so on.
That love of words, that discrimi
nation in the use of words, is all
essential to the advocate. The pres
entation of your case in the appro
priate language, in the inimitable
language, is part of the art of
persuasion; and persuasion is the
whole end of it, as I understand it.
The Bar is the source and guardian
The Art of Advocacy mm?mm*
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of the virtue of the bench. It is the presenting his case to the very best
good Bar that makes the good bench. of his ability?immature it may be,
And therefore it is the greatest pos but with all the signs of promise. And
sible pleasure to feel I have spent if I find, as I do find, an advocate
my life at the Bar; and now when I with a nice sense of words who pre
sit upon the bench, with occasionally sents the argument in an attractive
a strong yearning to get back into form, my heart warms to the advocate
the arena, nothing gives me greater and I do my best to encourage and
joy than to see the young advocate to help him on his way.

New Jersey State Courts mmmmmm

5
(Continued from page 14) cellors and Advisory Masters ofupon there-appointment shall hold their
to recommend, and the obligatory Court of Chancery, who were ap during good behavior".48
offices
nature of its recommendations, havepointed by the Chancellor alone.
Retirement, Impeachment
been regarded as vouchsafed by the A new provision is that no nomi and Removal of Judges
Constitution of 1844, and the new nation to a judgeship on the Su
Constitution continues the substance
preme, Superior or County Courts Heretofore New Jersey has had no
"shall be sent to the Senate forprovision con for the compulsory retire
of this power in the judiciary. The
power of discipline is now concen firmation until after seven ment
days' pub of judges on account of age.
lic
trated in the Supreme Court, instead notice by the Governor".41 The
This new Constitution provides that
of being scattered as formerly. was evidently intended as insurance the justices of the Supreme Court
against possible abuses of the ap and the judges of the Superior Court
pointing power, by giving the Bar shall be retired on pensions upon at
Appointment, Confirmation
and Terms of Judges and the public an opportunity to taining the age of seventy years.44
express their views about a nomina Compulsory retirement of County
With respect to the selection of tion. Court judges for age is not provided.
judges, the new Constitution pro With respect to judicial tenure, The Constitution of 1947 provides
vides that all judges, except thosesome
of changes are made by the new methods of terminating the service
Constitution.
inferior Courts with jurisdiction lim Under the Constitution of Supreme Court justices, Superior
ited to one municipality, shallofbe 1844, judges of constitutional 40. Const. 1947, Art. VI, Sec. VI, Par. 1.
nominated and appointed byCourts
the held office for specified terms, 41. Const. 1947, Art. VI, Sec. VI, Par. 1.
Governor with the advice and which
con in most instances were of seven 42. Const. 1844, Art. VII, Sec. II, Par. 1 (Chan
cellor and Supreme Court Justices?7 years); Art.
sent of the Senate.40 This retainsyears.42
un The Constitution of 1947 VI, Sec. II, Pars. 1 and 2 (Court of Errors and Ap
peals Judges?6 years). By statute, 7-year terms
changed the appointive system provides
that that "the Justices of the Su are provided for Circuit Court Judges, R. S. 2:5-4,
has always been in effect in preme
NewCourt and the Judges of the Vice Chancellors, R. S. 2:2-3, and Advisory Masters,
R. S. 2:2-14.
Jersey for the judges of all the prin
Superior Court shall hold their offices 43. Const. 1947, Art. VI, Sec. VI, Par. 3.
cipal Courts except the Vice Chanfor initial terms of seven years and 44. Const. 1947, Art. VI, Sec. VI, Par. 3.

January, 1948 Vol. 34 83

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