answer without hesitation; inquire when it was, and he will tell you the 10th of June. In this way you will avoid taxing a witness's memory; always a dangerous proceeding.

In

Another common error is worth noting, and that is the not permitting a witness to finish his answer, or tell all he knows on a material matter. the very midst of an important answer a witness is very often interrupted by a frivolous question upon something utterly immaterial. This seems so absurd on paper that it needs an example. A witness is giving an answer when some such question as this is interposed! "What time was this?" or, “Had you seen Mr. Smith before this?" A question is often left half answered by such interruptions, the better half perhaps being untold. "He never asked me about that," says the witness after the case is over; or, “I could have explained that if he had let me.". . . All unnecessary interruptions produce confusion in the mind of the witness and jury and tend to the damage of your case.

But although it is by far the best to let a witness tell his story in his own way as much as possible, it is absolutely necessary to prevent him from rambling into irrelevant matter. Most uneducated witnesses begin a story with some utterly irrelevant observation, such as, if they are going to tell what took place at a fire, they will say, "I was just fastening up my back door, when I heard a shout." Get him as soon as you can at the fire and the evidence will come with little trouble.

Every question should not only be intelligible and relevant in itself, but it should be put in such a form that its relevancy to the case may be apparent to him. A question, without being leading, should be a reminder of events rather than a test of the witness's recollection. I will give an illustration which will show how easy it is to blunder, and how necessary it is to avoid blundering. A man brings an action against a railway company for false imprisonment. The facts are these: He lost his ticket and refused to pay; the porter on the platform called the inspector, who sent for a policeman, and then gave him into custody. The best way not to get the facts out is to examine him in the following manner : —

"Were you asked for your ticket?—Yes."

"Did you produce it? No."

"Why not? I had lost it."

"Are you sure you took it? -Quite."

"Positive? (This is a good opening for the wedge of cross-examination a doubt thrown on your own witness.) — I am quite sure.'

"What did the defendants say then; I mean the porter?" (This blunder ought not to have been made.) At this point the witness is in a hopeless muddle, and says: "I was given into custody."

The story is not half told, although it is one of the simplest to tell. Now the counsel contradicts by way of explanation, and says, “No, no; do attend." Witness strokes his chin as though about to be shaved. Judge glances at him, and wonder's if he's lying. Counsel for the defendants (sure to be eminent) smile, and the jury look knowingly at one another, and begin to think it's a trumped-up attorney's action.

Now start again with another question.

'When the train stopped you got out?—I didn't get out afore it stopped, sir."

"Did any one ask you for your ticket? - They did;" emphatically, as though he knows now where he is.

"Who? - I'm sure I don't know who he is; never seen the man before in my life."

"Well, well, did he do anything?-No, sir; he didn't do nothin' as I knows of;" evidently puzzled, as if he had forgotten some important event upon which the whole case turns.

This looks so ridiculous on paper that it is possible some readers will doubt if it ever happened. I can only say there are many much more ridiculous incidents that occur in courts of justice when young counsel have what is called a "stupid" witness in the box. In court the stupidity always seems to be that of the witness; on paper it looks as if the learned counsel could establish a better title to it.

This leads me to notice a cardinal rule in examination in chief. It is seldom regarded as such by beginners, and only seems to be observed as the result of experience. Why it should not be learned at once and implicitly obeyed I do not know, except it be that it has never been written down. The rule is this, that in examining a witness the order of time ought always to be observed. Stated in writing, it looks simple enough, and everybody says "of course." Plain as one of the ten commandments, and as often violated by young advocates.

In putting questions long-drawn sentences should be avoided. The following is an almost verbatim report. The advocate was experienced, but he was anxious to get as much as he could into a question; and whenever your question is too large the answer will be worthless :

"Were you present at the meeting of the trustees when an agreement was entered into between them and the plaintiff?" Answer, "Yes."

Q. "Will you be kind enough to tell us what took place between the parties with reference to the agreement that was then entered into between them?"

The more neatly a question is put, the better, as it has to be understood not only by the witness, but by the jury. All that was necessary to be asked might have been put in the following words: "Was an agreement. entered into between the trustees and the plaintiff ?". "Yes." "What was it?" It will appear even more strange that after the answer was given by one witness, which was all that was necessary to prove that part of the case, the question was repeated to another with additional verbiage.

"Will you be good enough to inform us what took place upon that occasion between the parties, as nearly as you can, with reference to the agreement that was then, as you have stated, entered into between them. Please tell us, not exactly, but as nearly as you can in your own way what his exact words were?"

II. Next to examination-in-chief nothing is more important or difficult in advocacy than cross-examination. It is infinitely the most dangerous branch, inasmuch as its errors are almost always irremediable. It is in advocacy very like what "cutting out" is in naval warfare, and you require a good many of the same qualities; courage with caution, boldness with dexterity, as well as judgment and discrimination. . . . Cross-examination may almost be regarded as a mental duel between advocate and witness. The first requisite therefore on the part of the attacking party (namely, the

advocate) is a knowledge of human character. This is the first requisite, and it is an indispensable one. But I suppose almost everybody conceives himself to be a master of this science.

With respect to style, as before remarked, every man has his own, or should have.... With regard to manner, a man should imitate the best. The most eminent are as a rule the most unaffected, and the quiet, moderate manner is generally the most effective. I do not intend to imply that bluster and a high tone will not sometimes unnerve a timid witness, but this is not crossexamination or true advocacy. It is not art, but bullying- not intellectual power, but mere physical momentum. Nor would I say that an advocate should at all times treat a witness with the gentleness of a dove. Severity of tone and manner, compatible with self-respect, is frequently necessary to keep a witness in check, and to draw or drive the truth out of him if he have any. But the severity will lose none of its force, nay, it will receive an increase of it, by being furbished with the polish of courtesy instead of roughened with the language of uncompromising rudeness. Instances of the latter kind are extremely rare at the English bar. But they do occasionally appear, and are usually followed by a public outcry against them; they do not, however, cast discredit on the great body of a profession which is as jealous of its high reputation for courtesy and honor as it is deserving of it.

I make these observations because I am about to quote a passage from Archbishop's Whateley's "Elements of Rhetoric" on Cross-examination, wherein he passes a severe stricture upon advocates generally, and which, I am sure, so far as my own experience and observation go, is utterly undeserved. At page 165, he says: "In oral examination of witnesses a skillful cross-examiner will often elicit from a reluctant witness most important truths which the witness is desirous of concealing or disguising. There is another kind of skill, which consists in so alarming, misleading, or bewildering an honest witness as to throw discredit on his testimony or prevent the effect of it. On this kind of art, which may be characterized as the most, or one of the most, base and depraved of all possible employments of intellectual power, I shall only make one further observation." I pause here for a moment to say that so far as my experience of the bar is concerned, and I think it must be greater than that of the Right Reverend Father in God who penned these words, a more undeserved slander against a body of honorable men was never penned even by a Churchman. He proceeds to say: "I am convinced that the most effectual mode of eliciting truth is quite different from that by which an honest, simple-minded witness is most easily baffled and confused. I have seen the experiment tried of subjecting a witness to such a kind of cross-examination by a practiced lawyer as would have been, I am convinced, the most likely to alarm and perplex many an honest witness without any effect in shaking his testimony. . . . And afterwards, by a totally opposite mode of examination, such as would not have at all perplexed one who was honestly telling the truth" (nothing, it seems, will perplex an honest witness but an alarming style) "that same witness was drawn on step by step to acknowledge the utter falsity of the whole. Generally speaking, I believe that a quiet, gentle, and straightforward — though full and careful-examination, will be the most adapted to elicit truth, and that the manœuvers and the browbeating which are the most adapted to

confuse an honest witness are just what the dishonest one is the best prepared for." When I read those wordy sentences I could not help thinking it was a pity that the Archbishop did not confine himself to theology. He seems to think an honest witness easily baffled and frightened into telling a lie, and to imagine that a brutal liar is best induced to tell the truth by wooing him with sweet words, and by a straightforward, full, and careful examination. I can only say his acquaintance with truthful witnesses must have been small indeed, and the hypocrisy practiced upon his gentle questioning must have misled him into the falsest views of human nature ever formed even by those who assume to be the best acquainted with man's spiritual existence.

254. BARDELL v. PICKWICK. (CHARLES DICKENS. The Pickwick Club. 1837. c. XXIV.)

The name "Stareleigh," given by the novelist to this judge, is supposed to have signified Mr. J. Gaselee.

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the question. Are you, or are you not, a particular friend of the defendant's?" "I was just about to say, that "—"Will you, or will you not, answer my question, sir?" If you don't answer the question, you'll be committed, sir," interposed the little judge, looking over his notebook. "Come, sir," said Mr. Skimpin, "yes or no, if you please." "Yes, I am." "Yes, you are. And why couldn't you say that at once, sir? Perhaps you know the plaintiff too - eh, Mr. Winkle?" "I don't know her; I've seen her." "Oh, you don't know her, but you've seen her? Now, have the goodness to tell the gentlemen of the jury what you mean by that, Mr. Winkle." "I mean that I am not intimate with her, but that I have seen her when I went to call on Mr. Pickwick, in Goswell Street." "How often have you seen her, sir?" "How often?" "Yes, Mr. Winkle, how often? I'll repeat the question for you a dozen times, if you require it, sir." And the learned gentleman, with a firm and steady frown, placed his hands on his hips, and smiled suspiciously at

the jury. On this question there arose the edifying browbeating, customary on such points. First of all, Mr. Winkle said it was quite impossible for him to say how many times he had seen Mrs. Bardell. Then he was asked if he had seen her twenty times, to which he replied, Certainly, more than that.' Then he was asked whether he hadn't seen her a hundred times whether he couldn't swear that he had seen her more than fifty times - whether he didn't know that he had seen her at least seventy-five times and so forth; the satisfactory conclusion which was arrived at, at last, being, that he had better take care of himself, and mind what he was about. The witness having been by these means reduced to the requisite ebb of nervous perplexity, the examination was continued. . . . Tracy Tupman and Agustus Snodgrass were severally called into the box; both corroborated the testimony of their unhappy friend; and each was driven to the verge of desperation by excessive badgering.

255. JOHN C. REED. Conduct of Lawsuits. (2d ed. 1912. § 90.) . . . I note that the wary veterans of the courts cross-examine less and less as they grow older in practice. By the multitude, cross-examination is as much overrated as advocacy. Sometimes a great speech bears down the adversary, and sometimes a searching cross-examination turns a wit ess inside out and shows him up to be a perjured villain. But ordinarily cases are not won by either speaking or cross-examining. The tyro's conception. of the purpose of the latter is that it is to involve every adverse witness in an inconsistency or self-contradiction. But you will often see a dozen consecutive cases tried wherein no witness who is game for the cross-examiner makes his appearance. It is only the profligate who swears falsely; and if not the profligate, it is the extremely heedless who make such glaring blunders and mistakes as to destroy the credit of their testimony.

These cautions are placed in the forefront of the chapter, to be meditated before the student comes to the places farther on, where copious use is made of the writings of Mr. Cox and Mr. Harris, who, while giving very valuable instructions, yet hurtfully exaggerate what can be effected by cross-examination. Mr. Cox says, "There is never a cause contested, the result of which is not mainly dependent upon the skill with which the advocate conducts his cross-examination." In Mr. Harris's "Hints," it is implied in a few passages that there are witnesses who cannot be shaken, yet the bulk of what