ever, there is no necessity for such a scale. We have only to remember the old rule of Magna Charta, "amercietur secundum modum delicti, salvo contenemento suo;" that is, as Fitzherbert says, "saving to a gentleman his countenance and his household, to a merchant his merchandise, and to a husbandman his tenury." Let the fine be discretionary, and if a gentleman is fined 50l. for an assault, let him show, if he can, "by the oath of honest and lawful men of the vicinage," that it is beyond his means of payment; and as to all persons, gentle or simple, let the rule be rigidly enforced (at least by imprisonment), "qui non solvit in crumenâ, luat in corpore." In regard to civil costs, they should be in the discretion of the court, proper taxing officers being always appointed, who, at the conclusion of a cause, might determine whether the party, who was right on the merits, had not been wrong in some part of the procedure; and if so, he should be charged with a correspondent amount of the stamp duties eventually payable to the State, as well as of the legal assistance to which his adversary was in consequence necessarily obliged to resort; remembering the rule, that "in æstimando, ratio haberi debet ejus impensæ, quæ modum probabilem non excedat:" and the taxer's certificate, if not appealed from within a limited period, should have the force of a warrant to confess judgment for the sum which it might allot. In short, our aim would be so to distribute the burthen of justice, that whilst the honest and regular suitor paid in exact proportion to the benefit he received, the burthen of all unnecessary expence or delay should fall on the individual by

whom it had been caused.

318

ART. IV.-MR. BARON GARROW.1

"Neminem ex iis quidem qui in aliquo numero (jurisconsultorum) fuerunt cognovi, in omni genere honestarum artium tam indoctum, tam rudem. Nullum ille poetam noverat; nullum legerat oratorem; nullam memoriam antiquitatis collegerat ; non publicum jus, non privatum et civile cognoverat."CICERO, Brut. 59.

MR. GARROW was, in a certain line of the legal profession, without an equal, certainly—in a portion of that line, without a rival. He had early in life devoted himself to the practice of the criminal law, and he arrived in a short time at considerable eminence. By attending almost exclusively to this branch of business, and exercising upon it his great powers of steady attention, extraordinary quickness in apprehension, and a singular circumspection, he soon reached the lead of the Old Bailey practice, and domineered without a competitor at the bar, and with little control from the bench. He had the good fortune to acquire the friendship of the late learned Mr. Shelton, then clerk of the arraigns in that court, and perhaps the most accomplished criminal lawyer of his day. This gentleman, it was well known, freely unfolded to him his vast stores of knowledge, and where any complicated case arose, filled his mind both with principles and authorities. Such was the great experience of Mr. Shelton, and such the confidence reposed in him by the judges, that his opinion was solicited even by the most learned of their body in cases of much difficulty.

In consequence of some opening upon the Home Circuit, which Mr. Garrow travelled, and which is easily combined with the Old Bailey, (then only held eight times a

A well-written, and we believe authentic memoir of Mr. Baron Garrow was printed in 1832, in the third volume of the "Legal Observer," p. 253, to which we refer for some further particulars as to his life.

year, but now twelve times, ever since the establishment of the great Central Court,) he gradually became a candidate for civil business, and attended regularly in Westminster Hall. His success here was far more rapid than any one expected the "Old Bailey Solicitor" could attain. His talents were found to be perfectly well suited to the Nisi Prius business in general, and he before long had so large a share of it, that, having given up the Old Bailey some time before, he was soon raised to the rank of King's Counsel.

There have probably been few more ignorant men in the profession than this celebrated leader. To law, or anything like law, he made no pretence. What little he could have known was rather mechanical than scientific. He began as Assessor at the great Bedford County election in 1784, under the patronage of the Whigs, to whose party he appertained, without probably knowing very distinctly the meaning of the term, and with certainly no notion of the division in principle which distinguished the Whig from the Tory. The knowledge of a few statutory provisions being all that an assessor has to regard, he could go through the routine of that election safely enough, if not very respectably. Then the little criminal law required at the Old Bailey he could pick up by a few months attendance there, and for any outof-the-way point, he must trust to the suggestion, or rather the prompting of the moment from his junior or his client.

The practice of evidence, that is, of examination of witnesses, he soon acquired, without rule or the notion of principle, by use and observation, till he knew by sure and unerring instinct what questions might and what might not be put; and when a rare matter presented itself, he must here again be primed or prompted for the nonce. Then with so slender a provision of law, his ignorance of all beside, of all that constitutes science, or learning, or indeed general information, nay even ordinary information, was perfect; and yet one important branch of knowledge had become familiar to him-his intercourse with prisoners, with juries, above all with witnesses, had given him extensive knowledge of human nature-though not certainly in its higher, more refined, or even more respectable forms.

With all these great deficiencies, with this confessedly

slender stock in trade, Mr. Garrow was a great, a very great advocate. To describe him as merely quick, clear-seeing, wary, prompt, nimble, bold, in every sense of the large word, skilful, would be too general, though it would be quite correct if each of these phrases were extended to the superlative degree. But more is wanting to pourtray distinctly his extraordinary merits. The giddy and superficial vulgar-meaning by this the vulgar of the legal order — would admire without stint his cross-examination. It was, no doubt of the matter, very brilliant; in every sense, striking. He seemed every now and then to destroy, almost to anihilate, an adverse witness; and often he would, without effort and unperceived, be winding about him, throwing a net round, gradually contracting it into a noose, or drawing after him or towards him the witness, his appointed but unconscious prey, all else already seeing the fate that awaited him, and then would on a sudden pounce forth upon him, and tear him in pieces. But, generally speaking, his cross-examination had this great defect, that he trusted to attacking the witness hostilely, and made war upon him far too soon. Now, be a counsel ever so expert, there is one limit necessarily appointed to the success of such a hostile operation. If the witness is calm, or confident, or well trained, above all, if, without being honest, he is cool and self-possessed, he may bid defiance to any cross-examination. But in most cases a great deal may be obtained by gentle treatment by calmly throwing him off his guard- by kindly treating him—by presenting things to his mind without the warning which a hostile attack always gives an acute witness; and of this Mr. Garrow far too seldom availed himself. Men said his Old Bailey practice, by making him familiar with the lower and more tutored kind of witnesses, had spoilt him in other particulars. It is more likely that he could not resist the temptation of making a great impression on the jury and on the bystanders. Those bystanders — and the profession, we again must observe, are not to be excepted from the number never failed to commit the mistake of supposing a loud and angry examination to be a successful one; and they constantly supposed that the credit of a witness had been demolished when his person had only been scolded.

And here as to the uses of cross-examination, we may make an extract from Mr. Butler's "Reminiscences." 1 "Crossexamination," says that gentleman, "is sometimes abused, but it is certainly the surest method of eliciting truth that has been devised. When the affair of the necklace of the late Queen of France was in agitation, a person observed to Lord Thurlow that the repeated examinations of the parties in France had cleared up nothing. True,' said his Lordship, 'but Buller, Garrow, and a Middlesex jury would, if such a matter had been brought before them, have made it all in half an hour as clear as day-light.""

But Mr. Garrow's real forte was in truth his examination in chief, which was unrivalled, and which is, indeed, a far more important and not a less difficult attribute than the cross-examination which so captivates the ignorant. It requires the most perfect knowledge of the facts, and the most skilful leading of the witness through them, so as to make him tell the story clearly, connectedly, and strikingly, and to avoid the parts of the case, which, being tender, it would be perilous to let him come too near. But it also demands the most vigilant attention to every word, tone, look, gesture of the witness, because from this close and wakeful survey it will frequently appear how far the instructions may be relied on, how far the same things are likely to be told upon oath and in public, which were before related by the witness privately and unsworn to the client. No description can give the reader an adequate idea of this eminent practitioner's powers in thus dealing with his witnesses. They who had lying before them the instructions on which his examination proceeded, saw a case brought out which they scarcely seemed to have read before. How different the mechanical examinations of ordinary barristers, yawning over their briefs, pursuing the order of the written statement line by line, and only turning into a question, not seldom a leading or irregular question, the short sentences which the attorney has given as what “this witness will say!" Then, when the fire of crossexamination had shaken the credit of the evidence, how ad

1 Vol. i. p. 50.