There may be "some things new under the sun," in contradiction to the proverb; but they are not many, at least in wit. The story of the celebrated cardinal, who proved that the sun went round the moon, and vice versa, is sufficiently wall known. Dunning's pleading pro and con. is vouched for from Scott's personal experience. Dunning led in a cause in which Scott was junior counsel. The leader so evidently reasoned against his own client, that Scott, after long amazement, at last touched his arm, and whispered that he was speaking on the wrong side. Dunning instantly perceived his mistake, and gave him a rough reprimand (we may presume sotto voce) for having suffered him to go on so long. He then recovered himself with his habitual dexterity; said that he had stated all that could be urged against his client, and that he would then proceed to show how utterly futile was the argument.
A good deal of his early life on the circuit was passed with Lee, then the leader of the northern circuit, and a man of great vigour of mind. A curious question once rose between them on professional morality. At supper one night, Scott made the remark, that Lee always exerted himself to gain a verdict by a display of his great legal knowledge; but not always with a regard to the accuracy of either his law or his facts. Lee contended that it was the duty of counsel to state what the party himself would have stated, and get a verdict if he could. He, however, pondered on it; and, as they were retiring for the night, said, "Scott, I have been thinking of the question you asked me; and I am not quite sure that the conduct you represented will bring a man peace at the last."
Lord Eldon quotes Johnson's opinion, which had been referred to—and which stated that it was the duty of counsel, after having stated the law and the facts exactly, to exert his abilities to the utmost to gain his cause—the judge being supposed the abler lawyer, and the reasoning of the bench amending what was erroneous in that of the bar. Lord Eldon adds, in his rather too dubious way—"It may be questioned whether even this can be supported." Of course it may. The object of law is to do justice; and justice is not done if the ingenuity of an able advocate is entitled to gain a false verdict. For how is this to be gained? Either by a suppression of the truth in part, or by a colouring of the falsehood, or by an invention of facts, aided by a misinterpretation of law; all palpably against conscience. The true rule appears to be—the lawyer stands in the place of the client, to do what the client would and could have done, if he had equal skill in exhibiting the circumstances, and equal knowledge of the law which bore upon them. But as the client has no right to tell an untruth of any kind for himself, so neither has the lawyer the right to tell it for him. The lawyer's taking a brief in a cause of which he has a bad opinion, is wholly a different matter. The custom of the bar justly decides that he must not refuse the brief, because he cannot be sure that he knows the whole cause; for facts unexpected, and even unknown, may start up; he may be mistaken in his personal conception of the facts, the motives, and the law: new facts may come out on the trial. There is a judge to decide on hearing both sides, and the counsel has no right to assume the office of the judge. Of course, if he is made aware of any fraud in the conduct of the case, or even suspects it, he must abandon his brief at once.
Lee's manner was of that rough and ready kind which always tells with a jury. Once, after a very keen cross-examination, the witness charged him with severity to one who was his relation. "Why, how do you make that out," said Lee. The man stated the genealogy. "Well," said Lee, "I believe you are right. I only wish, my good fourth or fifth cousin, you would speak a little truth for the honour of the family; for not one word of truth have you spoken yet."
Even this able man had gone many years to York without a single brief; and even then began only on a burlesque case, fabricated by his brother barristers.
Accuracy of recollection is obviously of peculiar importance at the bar; but the profession has sometimes exhibited surprising instances of this faculty. Lord Eldon spoke of Chief Justice De Grey's powers of memory as extraordinary. De Grey suffered so much from the gout, the he used to come into court with both hands wrapped in flannel. He thus could not take a not. "Yet I have known him," said Lord Eldon, "try a cause that lasted nine or ten hours, and then, from memory, sum up all the evidence with the greatest correctness. When counsel offered any intimation of his inaccuracy, his answer was—'I am sure I am right; refer to your short-hand writer's notes;' and he was invariably found to be right." A similar faculty is possessed by that very distinguished person, Lord Lyndhurst.
It is remarkable that none of the lucky accidents which have raised so many inferior men into prosperity ever occurred to Scott, who was yet destined to rise to such opulence and eminence. His first steps in life might be regarded as all but ruin. He abandoned his college, where he had secured at least existence; and he abandoned it for a profession proverbially hazardous, and in which, for whole years, he made nothing. At this period, too, when scarcely able to support himself, he ran away with a portionless wife; and thus began the world not merely helpless, but with a new weight which has broken down many a strong mind. The opinion of every one who took an interest in him was, that this marriage was fatal to all his prospects. It necessarily compelled him to give up all collegiate objects; and we recollect to have seen in print a fragment of a letter from his elder brother (afterwards Lord Stowell) to a friend, in these words—"Have you seen what my foolish brother has done? He has made a runaway match; he is utterly ruined." The opinion of Moises, his schoolmaster, was equally decided. "Jack Scott has run off with Bessy Surtees, and the poor lad is undone."
Scott entered as a student of the Middle Temple in January 1773. In six years after, what was his progress? We have this letter from Lord Stowell about 1779. "Business is very dull with poor Jack, very dull indeed, and of consequence he is not very lively. I heartily wish that business may brighten a little, or he will be heartily sick of his profession. I do all I can to keep up his spirits, but he is very gloomy. But mum, not a word of this to the wife of your bosom."
At length, however, day began to dawn, and his powerful understanding and solid knowledge found the opportunity, which to such means is generally all that is wanting. A conversation with an old friend lets us into a curious trait of Lord Mansfield. "Was the Court of Chancery your object when you first came to the bar?" asked Farrar. "Certainly not," answered Lord Eldon. "I first took my seat in the King's Bench; but I soon perceived, or thought I perceived, a preference in Lord Mansfield (the Chief Justice) for young lawyers who had been bred at Westminster School and Christ Church; and so, as I had belonged to neither, I thought I could not have fair chance with my fellows, and therefore I crossed over to the other side of the hall. (The Courts of King's Bench and Chancery were at that time on the opposite sides of Westminster Hall.) Lord Mansfield, I believe, was not conscious of the bias; he was a good man." Mansfield's goodness was sufficiently questioned by his contemporaries; yet if he exhibited this bias, he could not have been a just man. The cause which first made Scott known was Acroyd v. Smithson. The question was—whether, in a property willed in fifteen shares to fifteen people, one of them dying in the testator's lifetime, the lapsed share did not belong to the heir at law. He argued the case before the Master of the Rolls, Sir Thomas Sewell. "He has argued it very well," said Sewell. But he gave it against Scott. An appeal came before Lord Thurlow. Scott argued his point. Thurlow took three days to consider, and then gave his decision in favour of the heir-at-law—a decision which has settled all similar questions ever since. He then had an omen of his prosperity. As he left the hall, a solicitor of some note touched him on the shoulder, and said, "Young man, your bread and butter is cut for life."
He then had another golden opportunity. Fatigued with waiting for fortune, he was on the point of leaving London, and taking up his abode at Newcastle, of which he was offered the recordership. A house was even taken for him, when, one morning at six o'clock, Mr, afterwards Lord, Curzon, and four or five other gentlemen, came to his door, mentioning that the Clitheroe election case was to come on that morning at ten before a committee of the Commons; that one of their counsel was detained at Oxford by illness, and their second was unprepared and would not appear; and that they were sent to him as a young and promising counsel. Scott told them that, on so short a notice, all he could do would be to give a dry statement of facts. The cause thus put into his hands went on for fifteen days. "It found me poor," said Lord Eldon, "but I was to be rich before it was done. They left me fifty guineas at the beginning; then there were ten guineas every day, and five guineas every evening, for a consultation—more money than I could count. But, better still, the length of the cause gave me time to make myself thoroughly acquainted with the law." After all this, the side on which Scott was, was beaten by a single vote. But Mansfield, (afterwards Sir James,) on hearing his speech in the committee, came up to him in Westminster Hall, and strongly advised him to remain in London. Scott answered that an increasing family compelled him to leave London. Wilson, a barrister, advised as Mansfield had done, and even generously offered to make up his income to L.400 a-year. He received the same answer. "However," said the chancellor, with natural selfgratulation, "I did remain, and lived to make Mansfield chief justice of the common pleas, and Wilson a judge." Moreover, his sagacity gave him additional triumphs on the northern circuit, where he soon took the lead. He was counsel in a cause which depended on his being able to make out who was the founder of an ancient chapel in the neighbourhood. "I went to view it," said Lord Eldon. "There was nothing to be observed which gave any indication of its date or history. However, I remarked that the ten commandments were written on some old plaster, which, from its position, I conjectured might cover an arch. Acting on this, I bribed the clerk with five shillings to allow me to chip away a part of the plaster; and after two or three attempts, I found the keystone of an arch, on which were engraved the arms of an ancestor of one of the parties. This evidence decided the cause. Here was an instance of good-luck, undoubtedly, but also of great diligence and great sagacity. A negligent counsel would never have thought of examining the chapel in person; a dull counsel would never have thought of examining the arch; but it happens that the sagacious are generally lucky, and that, therefore, the first quality is sagacity."