When we speak of the world, its shortcomings, infirmities and virtues, we refer to the world evolved from the hearts of men. The conditions around us, the scenes we witness, are the blossoms and the fruit of the human tree of many branches. Every human being, because of the illusions in material existence, lives in a world of his own. The social divisions that move in their respective orbits, considered separately, seem to be on distinct globes of their own. There is the clergyman's world, the physician's world, and the lawyer's world. And so of all other spheres of activity on the earth we may take note of. And as the adept in true science returns again and again to nature to observe her behavior and study her processes, and to verify the tests he has made, so we may, with profit, direct our attention to the whirl of the lawyer's globe, from the actual experiences in his profession.
"Truth is stranger than fiction." The greatest creations in the world of letters are those founded on facts, with here and there a touch of fine sentiment. People really delight in the actual occurrences of human life, rather than in the mere fanciful delineations of character. In the painting of actual life the reader or observer feels charmed and flattered when the artist leaves scope for the imagination. In the writings called realistic in our times, it is the grossness that gives offense. Many think that even crime loses much of its enormity by losing all of its grossness.
The things that strike the lawyer more forcibly than anything else in dealing with his clients and in observing the conduct of the clients of opposing counsel, are the lack of honesty and truthfulness that so largely prevails. If the lawyer says to his client: "In order to win your case, or to make sure of your defense, you must have witnesses or evidence to establish certain facts," in nine cases in ten, complete or partial evidence will be furnished by the client.
Sometimes it occurs that a client is charged, unjustly, with having purchased goods without paying for them. If the charge is made good by testimony, though as false as that of the one who makes the charge, the claim may be established, unless the one charged as purchaser can overcome the evidence of his antagonist by proving by another false witness who claims he was present at a time subsequent to the alleged sale and saw the one charged as purchaser, pay for the identical goods charged. Falsehood meets falsehood. Fortunately, such cases are rare. But it is not rare to find parties coming into court and swearing diametrically opposite to each other as to a plain, simple transaction. Frequently there is in the trial of causes, the greatest conflict in the testimony, where it requires the closest scrutiny of witnesses, as to their manner, their interest, bias, prejudice, or otherwise, in order to determine where the truth is. In a case of such conflict an appeal must be made to experience and the common sense of men, applying the rules laid down by the masters of the law in order to reach a just result.
Experience in the practice of the law demonstrates that our system of trial by jury in "civil causes" is most essential to a satisfactory determination. In a government like ours, it is necessary to the maintenance of free institutions, that the direct influence of the people in the administration of the law which now prevails should not be impaired or curtailed in the slightest degree. The jury is the right hand of the Court for the determination of questions of fact or the assessment of damages. Questions of purely equitable jurisdiction, beyond the power of a jury of laymen to hear and decide, are reserved for the Judge or Chancellor, alone. In criminal causes the accused is always entitled to demand a jury.
In trials before a jury, some peculiar episodes occur. When a jury is sworn to try a cause, it is the rule that the jurors should form no opinion about the issues involved, nor speak to anyone about the cause, nor determine what the verdict should be, until all the evidence is heard and the instructions of the court are given to them.
In an important criminal trial the accused was charged with the commission of a heinous crime, the clear proof of which would have had the effect to not only degrade the one charged, but to reflect upon human nature and to cause the community of the venue to deeply regret that such a thing were possible. After the close of the evidence, it was manifest that a very strong case was established against the accused. The argument opened by the prosecuting officer; it was strong, and should have been convincing to the minds of the jurors. The counsel for the accused opened his argument, dwelling especially upon the enormity of the crime — that such an offense had never been charged against any one in the community — that to find the accused guilty would degrade him and seriously affect the standing of the people of the county. And finally, after enthusing the jury to the highest pitch of excitement he suddenly, addressing one of the jurors by name, asked him if he, by his verdict, was going to tarnish the fair name and fame of his county. The juror quickly arose in his place and said "not much." The result of the trial showed that the juror voiced the sentiments of the panel.
"If self the wavering balance shake,
It's rarely right adjusted."
Occasionally we find a citizen who does not comprehend the duties and responsibilities of a juror. The aim of the law is to fit all citizens, naturally intelligent, to become competent jurors. The service in court in such capacity, from the knowledge gained by such experience, necessarily fits men, of common understanding, for the discharge of the duties of jurymen. Here is a citizen who was not quite up to the standard; yet he did not know it, and in the best of good faith he solicited the proper officer to place him in the jury box; and as an apology to the officer for making such a request, he stated that he had been, and was then, in poor health, and that his physician prescribed rest, that he should not "do any thinking," and that he had come to the conclusion that by serving as a juror he might be able, more completely, to follow the advice of his physician. The officer remarked that he regretted exceedingly that he was unable to comply with his request, as the panel was complete. So the court and litigants were deprived of his valuable services.
Some years ago a trial took place in one of our courts in which, among other witnesses who testified, was a bright, innocent young girl. She impressed the jurors most favorably; but when the jury retired to deliberate as to their verdict, there was some division among them, and they got into controversy. One of the jurors was aiming to do what was right, yet by mistake was voting to sustain the cause of the complainant, when, really, he intended to support that of the defendant; and when asked by some of his brother jurors if he did not believe what the young girl testified to, he said, "Yes, of course I do;" they replying that she supported the claim of the defendant. He exclaimed, "Is that so?" They convinced him of the fact. Then he declared, "I will vote for the little girl every time."
In a commonwealth where the State, in criminal cases, is not liable to jurors or witnesses for costs, and where the costs and fees are payable only in the event that the accused is found guilty, a criminal case before one of the inferior courts came on for trial by jury, and after the evidence was heard and argument of counsel the court proceeded to charge the jury. After making many sage observations as to the duty of jurors, stating, among other wise suggestions, that "the jury system is the palladium of litigants and of our liberties," he summed up his instructions by stating to the jury: "Gentlemen of the jury, self preservation is the first law of nature; if you don't find the defendant guilty, you will get no fees." The verdict returned enabled the officers and jurors to get their fees.
A lawyer should be a good judge of human nature. More cases are won by counsel on account of their intuition, tact and management than by appeals to the facts and the strict letter of the law. The lawyer should know the temper, type of mind and general tendencies of the life of the judge. Few people know how to commend, or praise others, and fewer still know how to be praised. The lawyer should, if possible, be personally acquainted with the judge and know the antecedents of the jurors, the sort of men they are. The standing of witnesses should be known. Hence in the trial of causes by jury, where there are large interests involved, great expense must be incurred to pay detectives and others to "hunt down" witnesses and "probable jurors."
The behavior of the parties to the controversy is of great moment. The lawyer should see to it that his client, especially while in court, conduct himself with the greatest propriety. His style of dress and bearing are of the greatest importance. If his client be a woman, he dare not, with safety, permit her, whatever her tastes may be, to "dress loud." The expansive hat in a court room is as injurious to her as it is offensive to others in a theatre. The general sentiment expressed and unexpressed is: ''Shoot that hat."
The great lawyer is a diplomat. He should be in the best sense "all things to all men," that blessings to his clients may abound. As Col. Ingersoll said, in his lecture on Lincoln, he was such a discerning, politic and sagacious man, so patient in the midst of difficulties, so penetrating in seeking for the motives of men, so wary and prudent in dealing with them, that there was but a thin veil between his honesty and dishonesty. But the veil existed, palpable and well denned. His disposal of men and measures raised his prudence to the height of wisdom, as subsequent events have demonstrated.
I spoke to an eminent lawyer once, who was noted for his power of "wringing verdicts from juries," as to his style and methods when dealing with them, delicately suggesting that the style and manner of lawyers could be greatly improved. He told me that he realized that very sensibly, but that it was a matter of slow growth, and that so long as jurors remain in their present state, the style of address to them indulged in would continue. When the whole community is raised up, when men become more intelligent and humane, the method will change. Men should receive the mental pabulum that they are capable of digesting.
The short and pathetic address of Senator Vest, who is a great man in our part of the country, to a jury in a "dog case," illustrates the matter under consideration. The plaintiff sued the defendant for killing his dog — valued at one hundred dollars. The trial came on, and as the Senator happened to be in town, he was employed by the plaintiff to assist in the prosecution. The Senator hesitated to take the employment, because of the nature of the case and the small amount involved, but the plaintiff urged him, and to make his urgency more pronounced, handed him fifty dollars. The evidence was introduced, the senior counsel presented the case to the jury for the plaintiff, and the counsel for the defendant made a vigorous argument. The Senator closed the argument, not referring once to the evidence, but confined his remarks to the canine genus; alluding to the fidelity of the dog of ancient and modern times; that he was the first to welcome his master's return home, and that starvation could not force him to desert his dead body. The jury were completely overcome with emotion. They retired to deliberate and soon returned a verdict for the plaintiff for two hundred dollars — one hundred more than the plaintiff demanded in his complaint.
In an early day in the southwest, when law books were rare, except in the larger towns, the country lawyers had to appeal to what they conceived to be right and justice — tact and eloquence carried off the palm of victory. The lawyer who could make his contention the more plausible by his art and positive assertions, would win court or jury to his views.
In one of the inferior courts a cause was tried, there being no law books at hand except the statutes and a copy of Blackstone's Commentaries on the laws of England. The lawyer on one side of the case found some proposition in Blackstone which was the law in this country as well as in England, sustaining his contention. It proved to be unavailing, owing to the poverty of the judicial equipment and the appeal of the lawyer on the opposite side of the case, to our Declaration of Independence, the success of our arms against "Old England" which made us a free and independent nation. He further stated that "while it would not be courtesy, nor in conformity to the well established rules to impute any improper motive on the part of the counsel in producing Blackstone as authority, it would seem that the learned counsel must know better." Blackstone was held by the "learned court" not to be good law here after the success of our arms in the war of the Revolution.
The lawyer who produced Blackstone then stated that he had an authority directly in point — indeed, "a hog case" — in the form of a decision of the Supreme Court of the State. The report containing it had been brought into the court room, but it had mysteriously disappeared. This left the counsel in a very uncomfortable condition, as it was the only copy in town, and because he stood discredited before the court by reason of his attempt and failure to convince the "learned Judge" that the proposition in Blackstone alluded to was sound law in this country; the opposing counsel contending that there was no such decision, so far as he knew, and that he was perfectly familiar with what the Supreme Court had decided.
The truth about the matter was that the counsel that contended that there was no such decision, had induced one of his friends to get the report containing the decision referred to and hide it until after the trial was over and the victory won. The case not having been one of great importance, so far as the amount involved was concerned, it was in after years treated as a very amusing occurrence — a travesty on court trials.
As the country improves, as distance is annihilated by a net-work of railroads and telegraphs spreading all over the country, and as knowledge is disseminated throughout the nation by means of the Press and other instrumentalities, a change is perceptible in every walk of life and nowhere is a more marked improvement observable than in the courts of the country and in the legal profession. A reference to such scenes and occurrences as are alluded to, which belong to the history of the legal profession and the courts of the country, is of interest to those who are seeking for a painting of the grotesque and humorous side of life as exhibited in the courts and in the actual experiences of men of the profession of the law.
And it may have a higher value, even, than that. A history of the evolution of any profession, and especially of one which has exerted, and still exerts, such an influence in our society — making its mark in every stage of our progress, must be of great concern to all who are alive to whatever tends to show that a period of stagnation has not set in among us, and that we have arisen, by our own native strength and energy, from a lower condition to a higher. A less ambitious attempt may not be wholly without merit and may serve as a guide-board to the place where the treasure may be found.