Let me add, that while the higher orders seem to consider the assize week as a time for public amusements, though many of the lower classes are undergoing every variety of anxious suspense, and some perhaps awaiting the terrors of the Law, the consciousness of this painful truth may have a hardening effect on the surrounding population, whose sympathies are with their poorer brethren at the bar, not with those in the theatre or the ball-room; and whatever has a tendency to excite, among the former, a belief that their sufferings are forgotten, or viewed with indifference by their superiors, may lessen that love and confidence in the higher ranks, on which so much of the safety of society depends.
That week has always possessed for me an attraction of an intellectual kind, which at present I still feel irresistible; I mean attendance in the Nisi Prius Court—a love for which has “grown with my growth, and strengthened with my strength;” and certainly it has not become weaker since I have had the gratification of seeing on the judgment seat a near and dear relative, and sometimes also a highly esteemed friend.
The interest excited by the Criminal Court is often painfully strong, even though such a blessed change has taken place in the penal law.
Horace Walpole (who hated capital punishments) says in one of his letters, that whenever he heard any one was being tried for his life, he always earnestly desired he might be acquitted; and so strongly do I compassionate the prisoner, that I never attend a trial for murder, and am only at my ease in the Civil Court. And there I am, at a very early hour, in order to secure my favorite place in it, and before any preparations for business are begun. Nor is it without interest that I look round the empty Hall, and at the large table covered with green cloth, where the barristers and attornies sit, and think that soon the vacant seats will be filled with busy, anxious life, and the stillness exchanged for the hum of many voices! and absorbed and amused in the contemplation of the coming scene, I find the time of waiting pass almost imperceptibly away. But at length the solitude ceases—the necessary preparations are made by the attendants, and soon the bells and trumpets announce the approach of the great functionaries. To greetings, and the hum of voices, succeeds the silence of expectation; for silent become the bells and trumpets; and, in another moment, the Judge is in the Court; the barristers rise, as he courteously salutes them, and the business begins.
After a short process, twelve jurymen are sworn in—to me a most disagreeable ceremony—though the oath is repeated now with less rapidity than it used to be; still I always rejoice when it is over.
The leaders now take their places—a cause comes on—the junior counsel employed in it reads aloud to the jury the particulars of the case. The leader then rises, explains and comments on its merits, artfully warning the jury against the eloquence and sophistical arguments which his learned brother will, he knows, bring forward for the defence; but which he is very certain of proving vain and nugatory by the witnesses whom he can, without fear, expose to the powerful battery of his learned brother’s cross-examination. After a long and often eloquent speech, the counsel for the plaintiff calls his witnesses; by each of them, when called into the witness box, the oath is taken, and each in his turn is subjected to the fiery ordeal of cross-examination. Then rises the counsel for the defendant, hoping, and sometimes very justly, that cross-examination has shaken the testimony of the plaintiff’s witnesses; he tells the jury that though his own eloquence has been so warmly lauded by his obliging and learned brother, he has himself too mean an opinion of it to presume to rest on that his client’s cause; nor does he rest it on his arguments alone, though they are not sophistical, as his learned friend calls them. No! his only weapon will be the force of truth; for he shall bring forward facts; facts which he shall prove by witnesses, whose evidence not even his brother’s well-known power of cross-examination can shake; and he shall also prove that, whether from unintentional inaccuracy in their statements, from defective memory, or an utter disregard to truth, the plaintiff’s witnesses have borne testimony which was utterly false; he is sure, he says, to obtain a verdict for his client. Then comes “the tug of war,” and such a view of the case is presented, that it changes, no doubt, the opinion of many minds, (my own, for instance,) and of the probable result we form a very different expectation to what we previously entertained. But the first speaker, having left himself a right to reply, then rises again; after having opened on the defendant’s witnesses, the formidable field-piece of his cross-examination; and, that done, he is doubtless, not the less warm and powerful in argument, now that he feels his client’s cause is in more danger than when he opened the case, and that for the last time he fights for ultimate victory; at length he sits down, expressing his certainty of obtaining it!
Oh! bloodless fights! would that we should never hear again of any battles but these!
But now another interesting period has arrived—the judge is about to speak: he has not been silent during the proceedings; but has made many observations, and asked questions of the witnesses on both sides; and now, much to the refreshment of short memories, he sums up the whole proceedings, and delivers his charge to the jury; going over every tittle of the evidence with surprising accuracy. The Clerk of Arraigns then says, “Consider your verdict, gentlemen!” the jury then turn their faces to the wall, and form so peculiar a group, that were an artist to draw them, no one could imagine, I think, what they were meant to represent, unless well acquainted with courts of justice. * * *
There are certain persons at the barristers’ table, whose position is calculated to excite the sympathy of observers, and who have often awakened mine on their behalf; namely, the young lawyers, who have, perhaps, gone circuit after circuit, and still remain briefless barristers. This must be a painful situation; and I have been much gratified, when it has occasionally happened to me to see a usually unemployed barrister, with flushed cheek, opening, it may be, his first brief in that court, and, with beating heart, preparing to enter the legal arena. Gratifying indeed must it be, to a young man of talent, when at length some fortunate circumstance gives him the long-desired opportunity to distinguish himself, which was all, perhaps, that he required to rise in a short time to the head of his profession; and how enviable must be his feelings, when he looks back to departed hours, passed in vain expectation of business, sitting unobserved at that crowded table, making to himself employment by nibbing his pen, or cutting his pencil to write notes to a brother barrister, at a distance; and then, contrasts with that trying period, his present position, when he has scarcely time to sit, except when his opponent in a cause is speaking. Now, he is the “observed of all observers,” and feels that on his skill in argument, and on his powers of elocution and persuasive appeal, depend, perhaps, the future well being and happiness of many of his fellow-creatures, who have entrusted to him the vindication of their rights, and sometimes of their reputation. Anxiety must indeed be felt by barristers on every circuit, even whether they have attained, or not, the greatest eminence; since it is as necessary for them to retain, as to gain, that eminence. The advocate, therefore, pleads for his own as well as his client’s cause, when he puts forth all the energies of his voice, his gesture, and his mind, on the legal stage; and could address his audience in the words of the poet: “Alas! I feel I am no actor here!”
One of the attractions in the Nisi Prius Court is the agreeable surprises which one experiences in it. I have known a cause, promising at the beginning, to be very dull and uninteresting, become, as it went on, one of great interest and entertainment; for instance, a horse case, where the warranty of the horse is the subject brought forward, and many amusing witnesses are examined; or a right of way cause, as I believe it is technically called.