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Morality of Advocacy.
“ driven to change his opinion as the thing progresses, he must go on as a matter of course.' progress of the thing” can hardly mean the actual trial in Court, because in this case Mr. Felix Graham sees reason to change his opinion before the trial, and yet goes on as a matter of course. Besides, the reasons—apparent it should seem, even to Mr. Trollope--why a barrister must not, but in very exceptional cases, throw up his brief in the course of a trial, because he has come to think his client in the wrong, are just as good reasons for his continuing to hold the brief when he has once undertaken the case, although after studying the evidence which has been laid before him, and consulting with other counsel and with the attorney, he has come to be of opinion that his client is in the wrong. But when is it that he is to make up his mind whether he may undertake the case or no? Not “after the thing has progressed?" that is to say—not after he has had an opportunity of knowing in a civil case whether his client is right or wrong,
criminal case whether his client is guilty or innocent. He must not undertake a criminal case unless he is fully convinced at the beginning that his client is innocent. But he must not take the means of being fully convinced, which alone produce conviction in a reasonable mind, because, when the thing has progressed so far, that his withdrawal would be equivalent to a declaration that a lawyer knowing the true state of the facts had found his client guilty upon good evidence, he must then go on as a matter of course. To save his conscience he must be satisfied that his client is innocent, but he must not, in order to be satisfied, be so rash as to investigate the question. In that case he would be committed to the defence. The doctrine is illustrated by the practice of Mr. Felix Graham. He is convinced of Lady Mason's innocence, and therefore may safely undertake to defend her. But the grounds of his conviction are simply these, that she lives within three or four miles of Judge Stavely, that she is generally respected, and that one or two people who know nothing about the case think her extremely ill-used. As soon as he himself really understands the case he is driven to change his opinion. But having been “fully convinced” upon no evidence whatever, it is too late to withdraw, and he continues to hold the brief.
Mr. Graham is said to be a very able man as well as a very high-minded man. He is Mr. Trollope's model barrister, and it appears that such a barrister, if he defends a prisoner, must in the first place be fully convinced of his client's innocence; but then also he must know absolutely nothing about the matter. In other words, he must be convinced of his client's innocence, on precisely the same grounds as those on which Mr.
Trollope is convinced of the immorality of advocacy as practised by the bar of England. Which were absurd.
Of the external aspect of courts of law, however, Mr. Trollope does know something. He is very familiar with all that is striking and picturesque in the ordinary conduct of a trial. His satire is gayest and most trenchant when it is directed against certain practices which may be witnessed every day, even in our superior courts; and we have no desire that it should be restrained. There are persons in all professions who have no decency, no manners, and no self-respect. When such men exercise with coarse brutality the kind of power which an unscrupulous counsel has over a timid witness, by all means let the whip of the satirist be cracked for their improvement. They are pachydermatous to everything but ridicule: and no one will laugh them to scorn more effectively than Mr. Trollope. But his satire loses all its point when he confounds their malpractices with the necessities of their profession, and that is a blunder which he makes at every step. To torture a witness for the purpose of making him lie is a wicked and degrading occupation, whether the torture be inflicted through his mental or his physical nature. There are men who are not ashamed to confess themselves guilty of such crimes; but we do not believe they are numerous ; they are not the leaders of the bar. By all means let Mr. Trollope protect mankind, if he can, from the suffering which they inflict. But when from punishing such offenders he diverges into a discussion of the principles of the law of evidence, let him in the first place take the trouble to understand them. Mr. John Stuart Mill has remarked, that few persons know enough of things to say whether a dispute is merely about words. On the same principle, it is not every novelist who knows enough of jurisprudence to say whether a legal argument is a quibble or not; and a writer who makes so many blunders, as, if it were not tedious, we could easily point out in Mr. Trollope's very numerous examinations of witnesses, is hardly in a position to decide whether the law of evidence is so irrational that the application of its principles in a criminal trial tends to the conviction of the innocent, and the acquittal of the guilty. Yet that must be the meaning of Mr. Trollope's account of Mr. Allewinde. "The unfortunate junior,” says Mr. Trollope,“ who fondly thought that, with the pet-witness now in the chair, he would be surely able to acquit his client, finds that he can hardly frame a question which his knowing foe will allow him to ask, and the great Mr. Allewinde convicts the prisoner, not from the strength of his own case, but from his vastly superior legal acquirements.” Mr. Trollope disapproves of cross-examination. . He may possibly be right, although
Wickedness of Cross-Examination.
we do not share his opinion, nor greatly respect it. But he must consider that it is one thing to torture a man in order to make him lie, and another to question him in order to show that he is lying, or that he is forgetful, or stupid, or that he is prejudiced and incapable of seeing or describing without colouring what he sees and describes. The accuracy of a witness, his opportunities of observation, and his capacity of telling what he has seen, without confounding it with what he has conjectured, are as important as his sincerity. “ The difficulty of inducing witnesses to restrain, within moderate limits, the intermixture of their inferences with the narrative of their perceptions, is well known to experienced cross-examiners.” Experience seems to have proved that a cross-examination is the most effectual method of distinguishing the inferences, and the perceptions, as well as of testing the veracity of the witness. That may be a false opinion, nevertheless, and if a writer of Mr. Trollope's ability holds a different view, which is founded upon thought and knowledge, it is very desirable that he should express it; but he is bound to know about the matter first, and then he is bound to express himself rationally. He must show where the present test fails, and he must be prepared to substitute another. When he contents himself with saying that cross-examination “is opposed to truth and civilisation,” he expresses so coarse and summary a conclusion, of an intricate question, in language so silly and unmeaning, that he does not deserve to be answered with gravity or respect.
We have probably said enough about an author who is so familiar to our readers. His name will not stand among the highest in his own department of literature; but some at least of his books deserve to live. Writers of fiction may be divided roughly into two classes, Cervantes being the unquestioned leader of the one, and Le Sage, though not so unapproachable in his greatness, being the leader of the other. Mr. Trollope is of the house of Le Sage. Incomparably inferior to the great master in power and genius, he yet resembles him in this, that he represents ordinary characters, and paints real life as it is, only omitting the poetry. The highest object of imaginative literature he neither attains nor aims at. His novels will not raise our minds very far above the weary trivialities of common life ; but although they contain nothing very great or elevated, they are simple, natural, and moral, and if we can be amused with a picture of common life—as all people with any healthy curiosity of mind must be—he paints it for us, of the present generation, with an almost unrivalled delicacy and discernment. No novels are more pleasant than the best of Mr. Trollope's.
ART. V.—Day Dreams of a Schoolmaster. By D'ARCY W.
THOMPSON. Edinburgh, 1864.
This volume is the work of an accomplished scholar, and of a man of original mind and feeling. It will be suggestive, and in some respects instructive, to those who take a special interest in education; and it will amuse and delight the larger class of readers who have more taste for human nature than for abstract discussions. The author is evidently not a mere classical scholar: still less is he a mere grammarian, although a great deal of his book is occupied with grammatical questions. He heartily enjoys the great writers of antiquity, and looks at them with his own eyes and from his own point of view. But he appears to be as thorough a student of the modern as of the ancient languages and literatures. He is altogether free from the pedantry and prejudices of the ordinary classical student or teacher. His faults are indeed all the other way. He is almost too free from conventional and traditional views of things, and too partial to what many will call his own crotchets. We should think, indeed, that his brethren, in our schools and Universities, would find more in his theories to arouse than to convince them; but whatever else they may think of him, they will never call him dull or commonplace. Freshness of feeling and vigour of mind are the primary conditions of writing a good style, but fine scholarship is a great aid to the acquisition of that accomplishment. Mr. Thompson claims for himself the possession of one qualification for the task of writing a good grammar: “ The directness and plainness of speech that characterize my countrymen.” We heartily wish that a large proportion of his countrymen could write with the singular force and accuracy which we recognise in this volume, and which appear to be the result as much of a careful linguistic training, as of strong natural endowments.
A critic may indeed question the taste as well as the judgment displayed in occasional passages of the book, but he will attribute these defects (if they are so to be regarded) rather to the oddities of a humorist and “sentimentalist" (in the better sense of the word), than to inadequate power or ignorance of the true effect of words. There are other passages in the book of great beauty and pathos, the effect of which is enhanced by the careful but unforced simplicity with which they are expressed. Even the most unfavourable critic of Mr. Thompson's manner and opinions will often envy him the happy force and invariable liveliness of his language.
The title of the book is by no means sufficient to indicate the
nature of its contents. It is rather suggestive of that kind of work in which the author relies more on a literary faculty for writing about everything in general and himself in particular, than on the interest and importance of his subject. Such books have no doubt their value; they are said to be the favourite food of a large class of readers, while they are excessively distasteful to an ungenial minority. To glorify one's-self in print is at least a more venial offence than to do so in conversation. In the former case you cannot bore your neighbour, except with his own consent. It is undeniable, also, that some of the pleasantest works, both of ancient and modern literature, consist, in a great degree, of personal revelations. In no other works are we brought into such immediate contact with real qualities of human nature and real modes of human experience. But even if all such writers were equally sincere, there is a great difference in the original value of the nature and experience which they reveal. Thus the admirers of Horace and Montaigne may be forgiven if they are less partial to the self-communings of those who write about themselves because they have no ideas beyond their own unremarkable pursuits. But whatever may have been suggested to us by the title of the Day Dreams, we were happy to find that it was not to be included in this category. Mr. Thompson does indeed found his remarks on his own personal experience; he tells us a great deal of what he has gone through, of what he is doing, and of what he hopes or wishes yet to do. He allows us to see into his own heart and mind; and he secures our personal sympathy, more even than our assent to his opinions. But he does all this without being offensive. And the reason why he succeeds where other clever men fail, is that, notwithstanding the personal form which his book has assumed, he is not primarily interested in himself, or in any ideal of himself, which he wants the public to admire. He does not care to be taken for a man of more learning, or genius, or fashion, or knowledge of the world, than he really is. He writes in the first person because it is through his own experience that his convictions have come to him, and because it is the most direct way of bringing those convictions to bear on others. He has a doctrine to enforce, which has been first enforced upon himself by the labours, the mistakes, the success, the aspirations of his own life. He shows us everywhere that he cares more for his calling than for himself, and that he thinks of himself chiefly as an instrument for furthering and elevating the work to which he has devoted his life.
What, then, is the purpose which gives consistency to this medley of personal memories and experience, of humour and