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Cheerful Yesterdays

Chapter XI — A Layman Among the Lawyers

page 139

Chapter XI
A Layman Among the Lawyers

It was with very slender equipment, so far as its practical side goes, that I entered upon the learned and responsible profession of the law. But it was fortunate for me that many years before I had definitely made up my mind to the change I had become interested in Roman Law. The logical symmetry of that great system of jurisprudence, the broad principles that underlie the growth and development of Prætorian Equity, make it a fascinating and engrossing subject to study; and so I had for several years past been a diligent student of Justinian's "Institutes," in spite of the canine Latin that positively barks at you from his pages. I had also read—and I hope assimilated—Austin's masterly fragment "The Province of Jurisprudence Determined." When, therefore, I entered upon the particular study of the great Common Law of England I brought to it a mind not wholly untrained or entirely unused to the apprehension of legal conceptions.

But as I was now approaching the forties, if I was going to change my profession at all it was high time I did it. So I set to work in earnest at the beginning of the year 1903. I enrolled myself once more as a student at Canterbury College and page 140attended the law classes. I sat in the same stiff-backed seats facing the same ink-bespattered desks where I had sat when an undergraduate twenty years before. I well remember my delight when one night at a law lecture in 1903 I discovered, deeply carved on the desk in front of me, a quite unmistakable "O. T. J. A. 1884." I must have carved it in my freshman's year with a fixed determination, evidently, to leave my mark somehow upon the College I had just entered.

The lecturer1 was a sound lawyer, with a thorough knowledge of his subject; and fortunately for me, he was a practical lawyer rather than an academic jurist, for while I felt reasonably competent to attend to the academic aspect myself, in the practical application of the doctrines in the books I should have felt utterly lost without his help. Fortunately also he was himself actively engaged in professional practice, and that no doubt is why he used to illustrate the legal principles he expounded to us, not with quotations dug out of "Smith's Leading Cases," but with citations from the current numbers of English and New Zealand Law Reports.

It was his custom also, I remember, to circulate among his students copies of the Law Times and the Law Quarterly whenever they happened to contain an article on some branch of our work. And, by the way, that reminds me—a few months after I had passed the examination for the LL.B. degree at the end of 1903, I found myself in conversation with one of the examiners. He narrated

1 Mr. G. T. Weston, B.A., LL.B. He and three of his brothers were all graduates of Canterbury College, and members of the New Zealand Bar.

page 141to me what he described as a very unpleasant, and at the same time very extraordinary, experience he had had in connection with that year's examination. His paper on "Real Property" had included a question on "Fixtures," which had suggested itself to him when reading a contribution on that subject in the Law Quarterly, in which the writer discussed two recent decisions in the Court of Appeal.1

"One of the candidates," said the examiner, "had cribbed his answer straight out of the Law Quarterly, which he must have had in his pocket. There could be no mistake about it: he not only had all the facts right, but he quoted verbatim from the judgments cited in the article. He even mentioned the names of the judges, and, as though he were determined to give himself away, he actually set out in his answer the reference to the volume of Reports in which each case was to be found! I never saw a more barefaced case of cribbing."

"What did you do about it?" I asked. "You reported him, I suppose!"

"Well, no; the fact is, I didn't. I daresay I ought to have put him up. Of course, I don't know who he was: examiners know only the codewords of the candidates—not their real names. But the most extraordinary thing about it was that all his other answers were quite good, and it was obvious that these had not been cribbed. In fact, his paper was so good all round that he actually got top marks. I couldn't find it in my heart to report him because he had done so well. But why on earth should a chap who knew his other work

1 In re De Falbe (1901, 1 Ch. 523) and Monti v. Barnes (1901, 1 Q.B. 205).

page 142go and crib just one question out of ten? And how in the world did he find out beforehand that there was a question in my paper on a subject discussed in a particular number of the Law Quarterly, and then bring that very number with him in his pocket?"

I refused to solve this conundrum and said I gave it up. I agreed with him that the conduct of that candidate was, as he said, most extraordinary —absolutely barefaced!

But it wasn't. For I was the candidate, and it was I who wrote that answer, but I didn't crib it.

The night before the "Real Property" examination I was about to turn in somewhere about 2 a.m., after doing a final revise of all my notes. I suddenly remembered that a Law Quarterly had been lent me by Mr. Weston, with an earnest injunction on no account to miss an article in that number on "Fixtures." I reflected that there might be a question on that very subject in tomorrow's paper, and I knew not a thing about it. Dog-tired and half-asleep though I was, I dared not chance it; so I lit my spirit-lamp, made myself a cup of strong coffee, rolled half a dozen cigarettes, and kicked myself awake.

When I went to bed an hour or so later I had read that article through, with my brain uncannily alert, and with my memory running in top-gear.

Some seven hours later—at 10 a.m. next morning —I was sitting in the examination-room with the "Real Property" paper in front of me, and there, among the questions, was one obviously framed on that very article! At that moment, I think, I could have recited the whole thing word for word page 143—stops and all. And so I amused myself by giving verbatim extracts from the judgments, recording the names of the judges—quite irrelevant, of course —and quoting the volume numbers in sheer exuberance of flippancy; so "bucked" was I over my luck in having read that article the night before.

If that examiner should do me the honour to read this book, as I hope he may, he will learn for the first time how that "extraordinary" candidate, more than twenty years ago, mildly pulled his leg. He will learn also how warmly the "barefaced" one appreciated the kindness of heart that saved him from being "reported."

It is perhaps advisable to explain that in New Zealand the two professions of barrister and solicitor are not kept distinct: the same man may be, and usually is, both. A solicitor may practise in the inferior Courts and may attend at Judge's Chambers, but he cannot conduct cases in the Supreme Court. A barrister, on the other hand, may do all that a solicitor can do, and his own special work as well. He may conduct a solicitor's business in conjunction with his barrister's practice; and he may enter into partnership with other barristers or even with solicitors who are not barristers. No one in a young community like this doubts that this union of the two professions is of advantage both to the members and to the public. But in the larger cities there is a growing tendency to keep the professions, in practice, distinct. In a legal firm there is usually one member who does barrister's work exclusively, leaving the solicitor's branch to the other partners.

Once you have passed the prescribed examinations, which are now reasonably stiff, entry into the page 144legal profession in New Zealand is a very simple matter. "Articles" are not compulsory; you may become a barrister or a solicitor or both without proof of any previous experience either of Court or office work. But, naturally, the great majority of men in the profession have been law-clerks before they became lawyers.

Having complied with the formalities required for admission, I was duly enrolled. The next step was to find someone who would take me into his office either as clerk or junior partner, so that I could get some practical experience. For a whole year I was looking for an opening, but I cannot say I found the demand for me at all brisk. The practitioners I consulted all seemed to think they could struggle on without me. So I stuck to my schoolmaster job for another year, and in the meantime devoted all my leisure to the diligent study of law.

My best asset, I think, was a knowledge of my own limitations. I might acquire a reasonable degree of skill in one profession, but I could not hope to do so in both. As the Bar had always been the goal of my ambition, I resolved to devote myself to that, and to leave solicitor's work strictly alone.

I realised I was too old to become a "profound" or omnisciently "learned" lawyer. I could not hope to emulate the type of pundit who goes to bed with "Jarman on Wills" under his pillow, and who prattles of "cross limitations" and "forisfamiliation" and "accelerating the remainder" with the same easy nonchalance with which I say "No trumps" when I sit with all four aces. That sort of man is a walking textbook. page 145But there is a worse type—the perambulating digest. This is the "case lawyer" who has an "authority" at his finger-tips to meet every point that comes along. "Ah!" he says, "that's covered by Brown and Robinson—House of Lords decision too—and absolutely on all-fours." You are ashamed to tell him that you have never even heard of Brown and Robinson, and as it's a House of Lords decision, you can't even have the satisfaction of telling him that you disagree with it. So what are you to say to that sort of person? Your only consolation is that he invariably loses all his own cases—or nine out of ten of them—and always for the same reason: because he can't see the wood for trees, and because that case of his "on all-fours" usually turns out to have only three legs to stand on after all.

But I did aspire to obtain a firm grasp of the broad, fundamental principles of Law and Equity. If I mastered these, I felt that I should be able with the help of my own "horse-sense" to apply them to facts as they arose, and to fossick out without much difficulty the particular doctrines and cases that bore upon the particular matters and circumstances in hand. For after all, I thought, there is much to be said for the views of Lord Foppington in the play—"What's the use of being able to read? Why stuff your mind with the forced products of another man's brain instead of being content with the natural sprouts of your own?"

It was my good fortune to have as one of my closest friends in Christchurch Mr. F. H. Bruges, an English solicitor profoundly "learned in the law," though without an atom of pedantry in his composition. It is no exaggeration to say that page 146in banking and company law particularly he had no superior in the profession. To him the discussion of a legal problem had the same fascination that some people find in a game of chess. We must have tramped hundreds of miles over the green sward of Hagley Park always "talking shop." He found in me, I think, a receptive pupil; I certainly found in him a consummate master, and learned from our "Socratic Dialogues" much more law than I could ever have acquired from all the textbooks ever written.

At the end of 1904 I resigned my position on the staff of the Christchurch Boys' High School and bade good-bye to the profession of schoolmaster with all its responsibilities and pleasures. I entered into partnership with Mr. J. W. White in Timaru. My salary at the High School ceased on January 31st, 1905, and my emoluments from the partnership began to accrue on the following day, so I lost neither time nor money in the change-over. As Mr. White was Crown Prosecutor for South Canterbury —a post he had filled for many years—he could give me what I most desired—opportunities for gaining experience. Moreover, Timaru was distant 100 miles from Christchurch, so I thought it a safe place in which to make the mistakes that were inevitable in the first years. By the time I had produced a big enough crop, I hoped to have learned enough of my new profession to venture back to Christchurch, where I proposed ultimately to establish myself.

The partnership was to have been for a term of five years—a period I deemed enough for my apprenticeship; but by the time half the term had page 147run I had reaped so rich a harvest of blunders that I thought it quite safe to return to Christchurch, there to profit by them.

I had never in my life been in a Court except as a spectator, and I had never spent one continuous hour inside a solicitor's office. I was therefore a very raw recruit indeed. The first matter on which I was personally asked to advise was an affiliation case, and neither Justinian's "Institutes" nor Austin's "Jurisprudence" seemed to throw any useful light on the question. The title of one of Captain Marryat's novels I remembered to have read as a boy—"Japhet in Search of a Father"— sounded more helpful; but that diverting story was not included among the law-books in my library.

The incident that brought home to me most clearly my audacity in setting up in practice occurred the very day after I had commenced. A member of the profession in the town, Mr. M. J. Knubley, very courteously called on me, and, not wishing to come empty-handed, brought with him an affidavit to be sworn, together with the customary florin— the oath-fee charged in New Zealand. I had provided myself with a Bible as part of my small stock-in-trade, but I suddenly realised that I had not the remotest idea what form of words to use in administering the oath! So 1 had to appeal to my visitor, who obligingly dictated the formula to me, and was duly sworn.

There was the less excuse for my ignorance because many years before I had been told a story which involved the words of the formula. An old firm of London solicitors, nearly a century ago, was page 148tendered a spurious shilling in payment for an oath. To guard against the occurrence of such a calamity in the future, they amended the formula by an addition, which has ever since been in use in that office: "You swear that this is your proper name and handwriting; that the contents of this your affidavit are true; and that the shilling you now tender is a good shilling—so help you God."

The quarterly sessions for trial of criminals commenced at Timaru three or four days after I had entered upon my new work. My partner, with a courage I must admire, boldly handed over the prosecutions to me. I had a bad attack of stagefright; but, after all, I had to make a beginning some time, and so I acceded to his suggestion to "jump in and splash."

The case first on the list was one of some difficulty. It rested entirely on circumstantial evidence of a complicated character. Much, I felt, would depend on the way it was put before the jury in the first place, and so I actually wrote out my opening address. I amended it and corrected it, dotted the "i's" and crossed the "t's" and spent much midnight oil upon it till I had turned out something that I felt tolerably satisfied with. On the whole, I thought, I would have no reason to feel ashamed of my first address to a jury.

But that polished and convincing oration was never delivered. I had entirely overlooked one possibility; for next morning the Grand Jury found "No Bill" against the accused. My belief in the institution of the Grand Jury was sadly shaken; but I have never again written out an address in a criminal case. The moral of this page 149would seem to be "Never do to-day what you can put off till to-morrow."

The other cases were simpler, and I managed to get through the sittings quite creditably. After all, criminal cases demand little more in Counsel for the prosecution than a reasonable amount of common sense: the golden rule for prosecuting criminals is the same as the golden rule for golf: "Don't press." Absolute fairness and moderation in presenting the case for the Crown is all that juries demand.

During my first year in practice I had to shoulder the grave responsibility of prosecuting on a capital charge; but fortunately it was only a case of infanticide of the ordinary type involving no special difficulties. A girl in domestic service "stooped to folly"; she had not confided her condition to anyone, and nobody apparently had observed it. Overtaken by the pains of parturition, with no one near to turn to for help, in her dismay she made away with the child. Neither the crime itself, nor the trial of the accused, presented any unusual features; it is the sequel only that is of interest.

The jury acquitted, as they nearly always do in cases of infanticide. The foreman pronounced the "Not Guilty" with explosive emphasis, while the other eleven looked as though they all wanted to say "Hear, hear!" and were only restrained by respect for the Court. But they were not content with a mere verdict of "Not Guilty," and presently the foreman, clearing his throat, read out from a paper in his hand, in a rich brogue that left no doubt of his nationality. "The Jury wish to state that they don't believe the poor girl knew page 150what she was doing when she did it." That rider, of course, was intended as a super-emphatic expression of the jury's sympathy. But the Judge ruled that it converted the verdict into a finding of "Not Guilty on the ground of insanity," and, to the visible indignation of those tender-hearted jurymen, he ordered the accused, in accordance with the provisions in our Criminal Code, to be detained in custody until the pleasure of the Minister for Justice should be made known. Whatever the jury might think of the girl's mental condition at the time the crime was committed, there could be no doubt of her sanity at the time of the trial. But the Minister of Justice did not choose to let his pleasure be known for twelve months, and so she spent that period in prison. And all this because a too sympathetic jury had over-acted the part!

Within a year of her release the girl gave birth to a second child—this time in Christchurch. Later on the same day the dead body of an infant was found in a trunk in her room, and she was again arrested. In the meantime I had returned to Christchurch and had commenced practice there: I was no longer prosecuting people, but defending them. The girl had evidently learned of my change of rôle and now asked me to defend her. She shrewdly suggested that if I would plead as hard for her this time as I had pleaded against her—or so she thought—on the former occasion, I might get her off. As she was to be charged with a capital offence, I considered that I had no option in the matter and consented. She had no money to pay me a fee, of course; but the Crown Law Office, following the practice usual in graver cases, paid me page 151an adequate sum for my services. This time the jury did not add any well-meaning but blundering rider to their verdict—they simply found the prisoner "Not guilty," and she was discharged.

And now comes the sequel that I have always thought so interesting.

The girl was entirely without any sense of moral responsibility. I had found in her neither remorse nor shame, nor the least trace of gratitude for what was done for her. She was an uninteresting and unattractive girl of a poor type mentally.

At the preliminary inquiry I persuaded the magistrate who sent the case for trial to place her in the custody of the Salvation Army instead of committing her to prison. She was accordingly detained, pending her trial, in a "Rescue Home" of which the Superintendent was an exceedingly earnest and kind-hearted woman, a Miss Johns, who had the Army rank of "Captain."

I called at the Rescue Home one day to see the girl about her defence. She at once asked me if I noticed any change in her. I told her I much preferred the simple Army costume she was then wearing to her former finery, and hoped she would dress like that at the trial. But that, it appeared, was not at all what she meant. So I tried again and told her that I noticed she looked much better —had a healthier colour; but again I was at fault.

"Garn!" said she, "I don't mean me clo'es nor me fice; can't you see a chinge in meself?"

I had to give it up and asked her what the change was that I was expected to see.

"I was converted last Wednesday night at nine o'clock."

page 152

I was tempted for a moment to ask her whether she was quite sure it wasn't 9.15, but I forebore, and asked her instead who had "converted" her.

"Gawd—and Captain Johns."

I told her I knew Captain Johns to be a good, kind woman, and I hoped she would profit by her advice and help. And then, to my astonishment, she actually thanked me, quite nicely too, for what I was doing for her. A change indeed!

Some months after her discharge from custody she wrote me a very illiterate but obviously quite sincere letter. She was in service up-country, she said, and had saved £2 out of her wages, which she enclosed in her letter as a first instalment of what she owed me. I had not told her that the Crown was paying my fee, and I did not tell her now, but put the £2 aside to await developments. From time to time she wrote to me from the same address and sent me various small sums of money which I paid in to the suspense account; and then one day I got a letter to say she was married.

About a year after that she and her husband came into town, and through the Army people arranged to see me; and to my office came not husband and wife alone, but—a baby!—a rosy, healthy infant, clean and nicely dressed—such a baby as any good mother might be proud of. And there was certainly no room to doubt her pride in that infant. I noted that she wore the simple plain serge costume and "poke" bonnet of the Salvation Army. Her husband, evidently a decent labouring man, told me they were employed as "married couple" on a farm—he working as ploughman and she doing house-work. He said they were very happy, and page 153both of them certainly looked it. He told me that he knew all about her past, and he was glad to say his "missus" was "keen set on the Army." So I took the opportunity of explaining that I had some money belonging to her and suggested she should spend it on a perambulator.

I don't profess to know anything about the psychology of "conversions." This one was obviously sincere: an unmoral and irresponsible girl had become a decent wife and mother. So far as I know, the effects of that "conversion" at "9 p.m. last Wednesday" are still complete and permanent. I merely state the facts and offer no comment. But I have never since been able to say "No" to a request for a subscription to the Salvation Army.