home to the arms of his family and the wishes of his country. But if, which Heaven forbid! it hath still been unfortunately determined that, because he has not bent to power and authority, because he would not bow down before the golden calf and worship it, he is to be bound and cast into the furnace, I do trust in God that there is a redeeming spirit in the constitution which will be seen to walk with the sufferer through the flames and preserve him unhurt by the conflagration.'

No one can doubt that these highly finished passages were carefully prepared, and it is worthy of note' (writes Lord Brougham) 'for the use of the student in rhetoric, that Erskine wrote down word for word the passage about the savage and his bundle of sticks. His mind having acquired a certain excitement and elevation, and received an impetus from the tone and quality of the matured and premeditated composition, retained that impetus after the impelling cause had died away.' Lord Brougham states in another place that the perfection of public speaking consists in introducing a prepared passage with effect. He spoke from his own experience as an orator. Scarlett is

speaking, and with equal weight, from his as a Nisi Prius advocate, when he deprecates the practice of composing speeches, or parts of speeches, beforehand. He tried it once, forgot his lesson, and scrambled through with difficulty:

From that time I not only renounced previous composition, but scarcely ever in thinking over the subject I was to speak upon clothed a thought with words, certainly with no words that I ever remembered afterwards, and I never found a want of words when I had thoughts or arguments to utter. Provisam rem, verba sequentur.'

His language was correct as well as fluent, and his style bore marks of having been formed after the best models. Coleridge, in Table Talk,' June 29, 1833, is reported to have said: 'I think Sir James Scarlett's speech for the defendant, in the late action of Cobbett v. "The Times," for a libel, worthy of the best ages of Greece and Rome, though to be sure his remarks could not have been very palatable to his clients.' Assuming this remark to refer to the trial, published in 1819, of Wright v. Clement (Cobbett's printer), found amongst his father's papers, Mr. Scarlett has reprinted Sir James' speech for the plaintiff, which contains nothing Demosthenic or Ciceronian, nothing indeed worth quoting except a criticism on Cobbett's style, of which he says: There is a certain coarseness of feeling, a spice of blackguardism, which pervades his compositions, and which, though it renders them less acceptable to circles of the highest polish, renders more formidable his powers over the

vulgar mind.' This was the very stigma which Cobbett was wont to fix on the objects of his aversion, as when he described the respectable community of Quakers as 'unbaptised, buttonless blackguards.'

As regards wit, humour, and sarcasm, again, it does not follow that, because a speech destitute of either may suffice for the occasion, they will be always superfluous, meretricious, or out of place. Here, too, Erskine presents a conclusive example—as in what branch of forensic excellence does he not?—

His humour as gay as the firefly's light,

Played round every subject and shone as it played;
And his wit in the combat as gentle as bright,
Never carried a heartstain away on its blade.'

The invariable tendency of his sallies was to advance his cause; as when he was counsel for a man named Bolt, who had been assailed by the opposing counsel for dishonesty: 'Gentlemen,' replied Erskine, my learned friend has taken unwarrantable liberties with my client's good name. He is so remarkably of an opposite character that he goes by the name of Bolt-upright.' This was pure invention.

In an action against a stage-coach proprietor by a gentleman who had suffered from an upset, Erskine began: Gentlemen of the jury, the plaintiff is Mr. Beverley, a respectable merchant of Liverpool, and the defendant is Mr. Wilson, proprietor of the Swan with Two Necks in Lad Lane-a sign emblematic, I suppose, of the number of necks people ought to possess who travel by his vehicles.'

He was defending an action brought against the proprietors of a stage-coach by Polito (the keeper of a celebrated menagerie) for the loss of a trunk. Why,' asked Erskine, 'did he not take a lesson from his own sagacious elephant, and travel with his trunk before him?' In this way he managed to keep both judge and jury in good humour; and Scarlett, apparently forgetful of his own theory, says of him :

'I recollect to have heard the late Mr. Justice Chambers say that a day at Nisi Prius was very dull unless Erskine was engaged in it, but he always made it entertaining by his wit and imagination, yet during the whole conduct of the cause nothing was more remarkable to those who listened than his discretion in selecting the points and facts as they arose, and applying them for the benefit of his client, in so much that Sheridan used to say of him, “Erskine in his gown and wig has the wisdom of an angel, but the moment he puts them off he is nothing but a schoolboy."

In his reply, though abounding with eloquence and ornament, no topic was admitted that did not bear directly upon the verdict.' C 2

Hume,

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Hume, in his Essays on Eloquence,' lays down that criticism is nearly useless without innumerable examples, but we will give only two more, selected from among Scarlett's younger contemporaries: Cockburn (the Chief Justice), who never rose above the common level, or struck a chord beyond the reach of mediocrity, without producing the calculated effect: Thesiger (Lord Chelmsford), who won his way into the front rank by wit, spirit, and vivacity.

Lord Brougham relates that a person being asked at what he rated Scarlett's value, replied: A thirteenth juryman.' Mr. Scarlett has a different version :—

I have it on Lord Chelmsford's authority that the Duke of Wellington said of my father: "When Scarlett is addressing a jury there are thirteen jurymen." This is both characteristic of the influence he exercised when addressing juries and of the Duke's terse manner of expressing himself.'

6

A thirteenth juryman would not necessarily bring over the other twelve. What the Duke probably meant was, that Scarlett, suppressing the advocate, talked to them as one of themselves and as having at heart the same object, the discovery of the truth. He did this so completely that the sense of his superiority was lost, and no suspicion broke upon them that they were under a spell woven by a master of his art. 'He the best player!' exclaimed Partridge, after seeing Garrick in Hamlet, why I could act as well as he myself. I am sure if I had seen a ghost, I should have looked in the same manner, and done just as he did. The King for my money he speaks all his words distinctly, half as loud again as the others; anybody may see he is an actor!" This is the precise spirit in which Brougham and Scarlett were compared by critics of the Partridge school. After the breaking up of the Court on the last day of a long Yorkshire Assize, Wightman, then at the Bar, found himself walking in the crowd ; cheek by jowl with a countryman whom he had seen serving day after day on the jury. Liking the look of the man, he got into conversation with him and finding that this was his first attendance at the Assizes, asked him what he thought of the leading counsel. 'Well,' was the reply, 'that Lawyer Brougham be a wonderful man: he can talk, he can; but I don't think nowt of Lawyer Scarlett.' 'Indeed,' exclaimed Wightman, 'you surprise me. Why you have been giving him all the verdicts.' 'Oh, there's nothing in that,' said the juror; he be so lucky, you see, he be always on the right side.'

This is the correct version of the story as told by Mr. Justice Wightman. It is spoiled by Lord Brougham, who tells it thus: A country

A country attorney perhaps paid him (Scarlett) the highest compliment once when he was undervaluing his qualifications, and said: "Really there is nothing in a man getting so many verdicts who has always the luck to be on the right side."' This remark is obviously misplaced in the mouth of an attorney. It should be added, however, that the success of a popular leader in obtaining verdicts may be partially accounted for by his being generally retained for the plaintiff, who, coming first into the field, has the choice of counsel and (such is the result of professional observation) is most frequently in the right. Plaintiffs also have, or had, advantages which have been satirically attributed to the interested collusion of the Courts.

'But 'tis not to b' avoided now,
For Sidrophel resolves to sue,
Whom I must answer or begin,
Inevitably, first with him.'

'And knowing he that first complains
The advantage of the business gains-
(For Courts of Justice understand
The plaintiff to be eldest hand:
Who for his bringing custom in
Has all advantages to win)-
I, who resolve to oversee
No lucky opportunity,
Will go to counsel to advise

Which way t' encounter or surprise.'

Scarlett's manner was no doubt admirably adapted to the great majority of cases, and the effect was enhanced by his comely person, gentlemanlike air, and finely modulated voice; which was so pleasing that a lady who met him for the first time said he ought to be asked to speak as others were asked to sing. But this conversational tone and flattering assumption of familiarity were out of place, or of no avail, when the jury or audience were to be moved to pity or indignation, warmed, roused, excited, or (so to speak), lifted out of themselves. If he had been leading counsel for Queen Caroline, he would hardly have risen to the occasion, which seemed made for Brougham. He had no more tenderness or sensibility than fancy or imagination. Erskine's speech in Howard v. Bingham was as much beyond and above him as the defence of Stockdale. This was an action of crim. con. brought by Mr. Howard, heir-presumptive of the Duke of Norfolk, against the Hon. R.

*Hudibras,' Part iii. Canto 3. The plaintiff had the choice of the form of suit, the time, the Court, and the venue or locality from which the jury was to be taken. Bingham,

Bingham, afterwards Earl of Lucan; to whom the erring fair one, daughter of the last Earl of Fauconberg, was engaged when she was compelled by parental authority to marry Mr. Howard. He, therefore, Erskine contended, was the real wrong-doer:

'If Mr. Bingham this day could have, by me, addressed to you his wrongs in the character of a plaintiff demanding reparation, what damages might I not have asked for him? I would have brought before you a noble youth who had fixed his affections on one of the most beautiful of her sex, and who enjoyed hers in return. I would have shown you their suitable condition: I would have painted the expectation of an honourable union, and would have concluded by showing her to you in the arms of another, by the legal prostitution of parental choice in the teeth of affection; with child by a rival, and only reclaimed at last after so cruel and so afflicting a divorce, with her freshest charms despoiled, and her very morals in a manner impeached, by asserting the purity and virtue of her original and spotless choice. Good God! imagine my client to be plaintiff, and what damages are you not prepared to give him? And yet he is here as defendant, and damages are demanded against him. Oh, monstrous conclusion!'

The jury gave only 5007. damages, as little as could well be given, considering the rank and position of the parties. Curran obtained 10,000l. in the case of Massey against the Marquis of Headfort, in which, by a bold figure, he supposed the jury remonstrating with the noble defendant: You would have said to him, "Pause, my Lord, while there is yet a moment for reflection. What are your motives, what your views, what your prospects from what you are about to do? You are a married man, the husband of the most amiable and respectable of women; you cannot look to the chance of marrying this wretched fugitive; between you and such an event there are two sepulchres to pass.

The very ingenuity which proved so successful in ordinary cases was against Scarlett when higher objects were at stake and Nisi Prius tactics misapplied. A striking example occurred at the trial of Ambrose Williams, the editor of the Durham Chronicle,' for a libel on the Bishop and clergy of Durham, Aug. 18th, 1821. The pith of the alleged libel was contained in the following passages:

'So far as we have been able to judge from the accounts in the public papers, a mark of respect to her late Majesty (Queen Caroline) has been almost universally paid throughout the kingdom, when the painful tidings of her decease were received by tolling the bells of the cathedrals and churches. But there is one exception to this very creditable fact which demands especial notice. In this episcopal city, containing six churches independently of the cathedral, not a single bell announced the departure of the magnanimous spirit of

the