TWO MEN were brought before the magistrate in Belfast the other day charged with fighting on the public street. Both pleaded "Not guilty." After hearing the evidence of the constable, the magistrate discharged one, and was about to impose a fine on the other, when his released comrade shouted out, "Yer worship, we worn't fightin' when the polis tuk us; we were trying to separate each other!" Both got off.-Victoria Cross Mag azine. GOLF (says The Law Times) always seems to have had a traditional connection with the wearers of wig and gown. Literature, in its widest sense, supplies many illustrations that this has been so. Sir Walter Scott paced many a weary step through the echoing hall of Parliament House waiting for more lucrative briefs than Peter Peebles v. Plainstanes. There does not seem to be any actual record among the chronicles of his contemporaries that "the Shirra" played the game, but that he was familiar with its jargon of technicalities is seen clearly enough by his autobiographic references in Red Gauntlet. He must have seen the game played over the now discarded Leith Links, once the golfing haunt of Scottish royalty and nobility, and in all probability he tried his hand with the driver and the old feather ball over Bruntsfield Links, near the house of his father. Though Robert Louis Stevenson was entitled to put a brass plate with the word "advocate" on the door of his father's house in Heriot row, he was never known to have handled a golf club, though the majority of his friends were golfers. Yet now and again throughout his books he works in with appropriateness a golfing simile, as, for exampie, the heading of "A Teed Ball," to one of the chapters of Catriona. If a prisoner is tired of saying "not guilty, m'lud," he may vary the monotony of that proceeding by pointing to the prosecutor and remarking: "He is a liar." Five eminent judges, after full consideration of this important question, yesterday reached the conclusion that the two are practically exchangeable terms, or, at all events, that the one phrase is merely a hyperbolical form of the other. "The statement that the prosecutor was a liar," said Mr. Justice Darling, "appears to me to be merely a repetition of Rouse's plea of not guilty-with emphasis. "It was only because he was in court," added the judge, solemnly, "that Rouse did not specify the particular kind of liar the prosecutor was. "He did nothing more than he had a right to. He put his statement in the emphatic way of a man of his class. "In the heat of cross-examination, he said. of one man what the psalmist in his haste said of all men."-London Express. CORRESPONDENCE. To the Editor of THE GREEN BAG: SIR-As the case is at once the foundation and the source of the law in the English speaking world, it is necessarily the basis of instruction whether it be discussed in detail, in class, or whether it be digested by text-writer, or by the lecturer, who in a less formal way digests the case and gives the result to the student. Private study in a law office differs in degree not in kind; for the case whether printed or not, whether in the form of text, or in the brief and abstract form of a digest properly so-called, is still the ultimate source of our knowledge of the law. A busy lawyer cannot well spare the time for discussion or analysis of a case and test by examination the student's grasp of the subject, as was formerly the practice. The student in the office is, therefore, thrown almost wholly on the printed page and himself. If, then, the case is in itself of the utmost importance, its setting might well be a matter of interest as well as moment. The parties to the action; the lawyers in the case; the judge or judges delivering the judgment of the court-a consideration of these not only lends an interest to the transaction, but very often throws a clear and strong light on the case itself, and illuminates, at times, other and unsuspected fields of law. A few examples, taken almost at random, will perhaps, give point to the suggestion. Planché v. Colburn, 1831, 8 Bingham 14, decided that an author might waive the contract on the refusal of the defendant to publish his work and sue in a quantum meruit for work and labor. The book in question was one upon Costume and Ancient Armor. On turning to Planché in the Dictionary of National Biography, vol. xlv., p. 395, it will be seen that Planché is the author of The History of British Costumes, published in 1834, which has been of great service to English historical painters. The short biographical account of Planché contains two items of interest. "In 1823 on the revival of 'King John' at Drury Lane by Charles Kemble, Planché, after making historical researches, designed the dresses and superintended the production of the drama gratuitously. This was the first occasion of an historical drama being brought out with dresses of the period of its action." Then again quoting from the same sketch it appears that "an unauthorized production (of Planche's 'Charles XII.') led to the appointment of a select parliamentary committee on dramatic literature and to the passing on 10 June, 1833, of the act 3, William IV, c. 15, giving protection to dramatic authors." Take another instance. Wheaton Peters, 1834, 8 Peters, 591, is a very leading case in the law of copyright, in which the author's rights at common law and under statute are carefully considered. The plaintiff was the illustrious Henry Wheaton, lawyer, diplomatist and leading authority on international law. He was Judge Peter's immediate predecessor as reporter of the United States Supreme Court (Carson's History of the Supreme Court of the United States, pp. 620-623) and the dispute arose from Judge Peter's alleged illegal use of matter for which Wheaton thought-erroneously as it turned out-that he had secured the copyright. Wheaton's name suggests that of his commentator, William Beach Lawrence, v. at one time our chargé d'affaires in London, later lieutenant and acting governor of Rhode Island (who figures in two wellknown cases: Hall. Lawrence, 1852, 2 R. I. 218, and Lawrence v. Dana, 1869. Fed. Cases, vol. 8, 136. . . . Dana was no less a man than the late Richard Henry Dana, Jr., known in literature as the author of Two Years Before the Mast; To Cuba and Back, and "the only Massachusetts advocate," Senator Hoar says, "who ever encountered Rufus Choate on equal terms." The judgment in Lawrence . Dana, while it did not enjoin, practically prevented the reissue of Dana's edition of Wheaton-a great loss to students of international law. (Adams' Dana, Vol. II., pp. 282-327; 390-402.) In still another case-Merivale v. Carson, 1887, L. R. 20 Q. B. Div. 275, the plaintiff's name suggests a family well known in literary circles. So much for the parties to the action. It is scarcely necessary to state that the date of the action is of great importance for the law of last century, indeed of the past decade, may not be law today. Like every organic growth it obeys the law of social and legal evolution. The names of the lawyers lend a personal interest to the case-at least to students and practitioners. A case in which Hamilton, Pinkney and Wirt, Jeremiah Mason, Webster and Choate appeared is really interesting from that fact alone; but to the student this fact of itself means that the case was carefully argued and every aid offered the court that the wit and ingenuity of man could advance or devise. In the same way cases in which the names of William M. Evarts and Charles O'Connor-notably Lemmon v. The People, 1860, 20 N. Y. 562-and the more recent cases in which Messrs. Olney and John C. Gray, Carter, Choate and Edward M. Shepard figure as the lawyers, mean that no point or authority bearing on the issue was overlooked. In the same way English cases in which Hardwicke (Yorke), Eldon (Scott), Romilly, Westbury (Bethell), and Cairns appear as attorneys of record have a peculiar interest in themselves and offer the guaran tee of careful preparation and argument. The names of Erskine, Brougham and Cockburn in like manner suggest eloquence and holy zeal, if not learning in the law. And finally the very name of the judge. means much. Chief Justice Marshall is almost in itself of persuasive weight. Chief Justice Taney is of hardly less authority; while of the justices, Story and Curtis, especially the latter, enjoy great and merited influence. In Massachusetts, Chief Justice Shaw and Justice Wilde; in New York, Chancellor Kent; in Pennsylvania, Chief Justice Gibson; in North Carolina, Chief Justice Ruffin, are, indeed, names to conjure with. The judgment of a less known judge may be no less worthy of respect; but the names of these judges are a guarantee for learning and careful preparation in the formation of the judgment and of accurate expression of the principles of the law in the opinion itself. Even the dicta of these judges cannot be overlooked, notably Marshall's numerous dicta in Marbury v. Madison, 1803, 1 Cranch 137. In the same way an English case decided by Hardwicke, Eldon, Westbury, Cairns, Hatherly (Wood), Jessel, Mansfield, Parke, Blackburn, Bramwell or Bowen, deserves and will receive careful attention. And this is especially so when the judge has had revious extensive practice at the bar as England. As an example of this take License Cases, 1847, 5 Howard 504, in Taney as Chief Justice rejects his la twenty years before in Brown v. On 827, 12 Wheaton 419. Again the mins of a judge of great experithat malow a more rounded grasp, differ from an earlier enced lawy things that horris v. Clymer, 1845, The expression Chief Justice Gibnarrative as he r opinion as Justice he looks the exam!825, 12 S. & R. brightens as he rethat opinion for incidents; he uses gention, by their in his station of life, aons of the part of the story he is narra of the his tale in his own accusto: the If, however, the manner of th It thus appears that the parties to the action may add an interest to the case and suggest other branches of the law, or fields of activity; that the names of the lawyers in the case are of themselves a guarantee of a careful and elaborate argument of the question or questions at issue; and that the professional careers of judges while at the bar, and their experience on the bench, render their opinions worthy of the greatest weight and consideration. I would, therefore, venture to suggest in conclusion that students and practitioners cannot well afford to neglect the sketches and biographies-where they exist-of the distinguished lawyers and judges who have honored bench and bar. The Dictionary of National Biography, edited by Leslie Stephen and Sydney Lee (67 vols. 1885-1903) gives a sketch of every distinguished lawyer and judge of Great Britain and the Colonies, who has died before January, 1901. The most authoritative works on the judges are Foss' Lives of the Judges (9 vols. 1848-1865); Foss' Biographia Juridica, an abridgement of the former work, appeared in one volume in 1870. Lord Campbell's Lives of the Chancellors and of The Chief Justices are too well known to need comment. Racy and interesting, they lack the accuracy of the dictionary and works by Foss. In America, Carson's History of the Supreme Court of the United States, (2 vols. 2nd ed., 1902,) gives an admirable historical and critical survey of the Supreme Courts, and its distinguished chief and associate justices. Appleton's Cyclopaedia of American Biography, (6 vols., 1885-1886-1888-1889). to date of publication and the English and American editions of Who's Who, put the reader in a position to judge of the educational and legal qualifications of the more distinguished contemporary lawyers of Great Britain and the United States. I am; very truly yours, Columbia University School of Law, NEW LAW BOOKS. At It is the intention of The Green Bag to have its book reviews written by competent reviewers. The usual custom of magazines is to confine book notices to books sent in for review. the request of subscribers, however, The Green Bag will be glad to review or notice any recently published law book, whether received for review or not. THE ART OF CROSS-EXAMINATION. By Francis L. Wellman. New York: The Macmillan Company. 1903. Cloth, $2.50 (283 PP.). This book derives its chief value and interest from the fact that the author, as assistant corporation counsel and assistant district attorney of the city of New York, has had great experience with witnesses and with juries. It is encouraging to find him saying: "In the vast majority of trials, the modern juryman, and especially the modern city juryman,—it is in our large cities that the greatest number of litigated cases is tried,―comes as near being the model arbiter of fact as the most optimistic champion of the institution of trial by jury could desire." (p. 14). Such sane words prepare the reader for a sensible presentation of the art of cross-examination. The expectation is well fulfilled. The author's general theory may be gathered from the following quotations: "No cause reaches the stage of litigation unless there are two sides to it. If the witnesses on one side deny or qualify the statements made by those on the other, which side is telling the truth? Not necessarily which side is offering perjured testimony, there is far less intentional perjury in the courts than the inexperienced would believe, but which side is honestly mistaken?-for, on the other hand, evidence itself is far less trustworthy than the public usually realizes. The opinions of which side are warped by prejudice or blinded by ignorance? Which side has had the power or opportunity of correct observation? How shall we tell, how make it apparent to a jury of disinterested men who are to decide between the litigants? Obviously, by the means of cross-examination" (p. 23). "It is absurd to suppose that any witness who has sworn positively to a certain set of facts, even if he has inadvertently stretched the truth, is going to be readily induced by a lawyer to alter them and acknowledge his mistake. People as a rule do not reflect upon their meagre opportunities for observing facts, and rarely suspect the frailty of their own powers of observation. They come to court, when summoned as witnesses, prepared to tell what they think they know; and in the beginning they resent an attack upon their story as they would one upon their integrity. If the cross-examiner allows the witness to see, by his manner toward him at the start, that he distrusts his integrity, he will straighten himself in the witness chair and mentally defy him at once. If, on the other hand, the counsel's manner is courteous and conciliatory, the witness will soon lose the fear all witnesses have of the crossexaminer, and can almost imperceptibly be induced to enter into a discussion of his testimony in a fair-minded spirit, which, if the cross-examiner is clever, will soon disclose the weak points in the testimony" (pp. 2728). "It is the love of combat which every man possesses that fastens the attention of the jury upon the progress of the trial. The counsel who has a pleasant personality; who speaks with apparent frankness; who appears to be an earnest searcher after truth; who courteous to those who testify against his who avoids delaying constantly the prully of the trial by innumerable objectirt that exceptions to perhaps incompeten advance less evidence; who seems to kes in which is about and sits down whers and Charles plished it, exhibiting a son v. The People, all occasions-he it is the more recent mosphere in favor of Olney and John C. resents, a powerfuland Edward M. Shepfluence with the ju, ers, mean that no point dict. Even if, or on the issue was overmony, the verd ame way English cases in amount will ke (Yorke), Eldon (Scott), schooled Westbury (Bethell), and Cairns ap"No, ttorneys of record have a peculiar n themselves and offer the guaran er was ness who has testified to no material fact against you. And yet, strange as it may seem, the courts are full of young lawyersand alas! not only young ones-who seem to feel it their duty to cross-examine every witness who is sworn. They seem afraid that their clients or the jury will suspect them of ignorance or inability to conduct a trial. It not infrequently happens that such unnecessary examinations result in the development of new theories of the case for the other side; and a witness who might have. been disposed of as harmless by mere silence, develops into a formidable obstacle in the case" (p. 113). "Embarrassment is one of the emblems of perjury, but by no means always so. The novelty and difficulty of the situation-being called upon to testify before a room full of people, with lawyers on all sides ready to ridicule or abuse-often occasions embarrassment in witnesses of the highest integrity. Then again some people are constitutionally nervous and could be nothing else when testifying in open court. Let us be sure our witness is not of this type before we subject him to the particular form of torture we have in store for the perjurer. Witnesses of a low grade of intelligence, when they testify falsely, usually display it in various ways: in the voice, in a certain vacant expression of the eyes, in a nervous twisting about in the witness chair, in an apparent effort to recall to mind the exact wording of their story, and especially in the use of language not suited to their station in life. On the other hand, there is something about the manner of an honest but ignorant witness that makes it at once manifest to an experienced lawyer that he is narrating only the things that he has actually seen and heard. The expression of the face changes with the narrative as he recalls the scene to his mind; he looks the examiner full in the face; his eye brightens as he recalls to mind the various incidents; he uses gestures natural to a man in his station of life, and suits them to the part of the story he is narrating, and he tells his tale in his own accustomed language. If, however, the manner of the witness and the wording of his testimony bear all the earmarks of fabrication, it is often useful, as your first question, to ask him to repeat his story. Usually he will repeat it in almost identically the same words as before, showing he has learned it by heart. Of course it is possible, though not probable, that he has done this and still is telling the truth. Try him by taking him to the middle of his story, and from there jump him quickly to the beginning and then to the end of it. If he is speaking by rote rather than from recollection, he will be sure to succumb to this method. He has no facts with which to associate the wording of his story; he can only call it to mind as a whole, and not in detachments. Draw his attention to other facts entirely disassociated with the main story as told by himself. He will be entirely unprepared for these new inquiries, and will draw upon his imagination for answers. Distract his thoughts again to some new part of his main story and then suddenly, when his mind is upon another subject, return to those considerations to which you had first called his attention, and ask him the same questions a second time. He will again fall back upon his imagination and very likely will give a different answer from the first-and you have him in the net. He cannot invent answers as fast as you can invent questions, and at the same time remember his previous inventions correctly; he will not keep his answers all consistent with one another. He will soon become confused and, from that time on, will be at your mercy. Let him go as soon as you have made it apparent that he is not mistaken, but lying." (pp. 58-60). These are fair samples of the author's tone; and they indicate clearly that he can be trusted not to suggest dishonorable or even merely dilatory tactics, and that he does not regard cross-examination as a mode of overthrowing the truth. Indeed, many a reader will pay the author the compliment of saying that the soundness of the author's theory is too obvious. Such a statement has in it one element of truth, namely, that it is less difficult to theorize about cross-examination than to practise it; but the author has |