I have a theory that a man's fate lies in his natural disposition; not the disposition which he|
has control over, but a certain secret and unsuspected bent of his mind, which leads him right or
wrong, against his will and against his knowledge. Thus, I believe that the man who never gets
on in the world has within him a certain bias towards the wrong side of the road of life. He is like
one of those balls used in playing bowls. He is, to all appearance, perfectly round and equally
balanced; but roll him as straight as you will, he invariably inclines to one side. When we see
men equal in all other respects—in talent, education, physical strength, and personal
appearance—it is, I suspect, this secret bias which makes the difference in their fortunes. One
goes straight along the high road of life to the goal; while the other struggles onward for a while,
inclining little by little towards the side, until at last he rolls into the ditch. This bias is placed
variously, and disposes the ball to every variety of accident. Thus one becomes rich, another
poor; one catches all the diseases that flesh is heir to, another escapes them; one is drowned,
another is hanged. I have long entertained the belief that it is a certain and particular kind of
person who catches the small-pox and becomes pitted by it; that it is a particular kind of person
who is destined to wear a wooden leg; that it is a very exceptionable and distinct kind of person
who is destined to be murdered: I further believe that, if we could only make a diagnosis of the
predisposition of these persons, and ascertain the nature of the bias and its general indications,
we should be able to look in a man's face and tell him for a certainty that he will one day have a
wooden leg, or that he will be murdered, or that he will be smashed in a railway accident. There
are certain things that I am not afraid of, because I feel that they will never happen to me. I feel
that I have the bias which will, under certain circumstances, always keep me right side up. There
are other things, again, that I am afraid of, because I am not sure how my bias lies with regard
In pursuing this theory, I am disposed to believe that there is a certain kind of men and women
whose bias is always rolling them into the witness-box; whose bias first of all rolls them into
situations where they see and hear things bearing upon matters which will become the subject
of litigation or criminal process. Look at the people whom Mr. Brunton has so happily sketched
in illustration of these remarks. There they are, born witnesses; types which we see in the box
repeated over and over again, with all the fatuity [stupidity] which leads them into the position
of witnesses, and all the attributes which so peculiarly fit them for the operations of counsel plainly
stamped upon their features. They cannot help being witnesses any more than Dr. Watts' bears
and lions could help growling and fighting. It is their nature to. Mark the dull witness. Have you
not seen him times out of number? At the police-court in a case of assault and battery—he
happened to be in the way at the time, of course: at the inquest—he was passing just at the
moment the deceased threw himself from the first-floor [second floor, in America] window: in the
Court of Queen's Bench, in a case of collision, where the defendant is sued for damages on the
score of having taken the wrong side of the road. Of course he gets into the dock [enclosure in
court for the prisoner] instead of the witness-box; of course he stumbles up the steps, and
equally of course stumbles down them again. He takes the book in the wrong hand, and when he
is told to take it in the other, that hand is sure to be gloved; the court is kept waiting while he
divests himself of this article of apparel; and the consciousness of the witness that all eyes are
upon him, concentrated in a focal glare of reproof and impatience, only tends to increase and
intensify his stupidity. He drops the book; he kisses the thumb—not evasively, for he is incapable
of any design whatever; he looks at the judge when he ought to be looking at the counsel, and at
the counsel when he ought to be looking at the judge. There is such an utter want of method in the
stupidity of this witness that counsel can make nothing of him. He perjures himself a dozen times,
and with regard to that collision case, gets into such a fog about the rule of the road, that at last
he doesn't know his right hand from his left. It is useless for counsel to point with triumph to the
inconsistencies of this witness's evidence; for it is obvious to everybody that he is quite incapable
of throwing any light on the subject whatever, and that what he says one way or another is of no
importance. The examining counsel is only too glad to get rid of such a witness, and very soon
tells him to stand down—a command which he obeys by tumbling down and staggering into the
body of the court, with a dumb-foundered expression quite pitiful to behold.
Now the confident witness steps into the box. He is, in his own idea, prepared for everything. He
is prepared for the slips; he is ready at all points for the greasy New Testament. He looks the
counsel steadily in the face, as much as to say—"You will not shake my evidence, I can tell you."
The counsel meets this look with a glance of anticipated triumph. There is a defined position
here whose assumption of strength is its greatest weakness. The confident witness has resolved
to answer yes and no, and not to be tempted into any amplifications which will give the
cross-examining counsel an opportunity of badgering him. The counsel can make nothing of him
for a while; but at last he goads him into an expression of anger; when, seeing that he is losing
his temper, he smiles a galling smile, and says—"No doubt, sir, you think yourself a very clever
fellow: don't you, now? Answer me, sir." The confident witness falling into this trap, and thinking
"answer me, sir," has reference to the question about his cleverness, snaps the counsel up with
a retort about being as clever as he is; and immediately the badgering commences.
"How dare you interrupt me, sir? Prevarication won't do here, sir. Remember you are on your
oath, sir!" And the indignation of the witness being thus aroused—by, it must be confessed, a
most unwarrantable and ungentlemanly course of proceeding—away goes the main-sheet of his
confidence, and he is left floundering about without rudder or compass in the raging sea of his
anger. It is now the worthy object of the learned counsel to make him contradict himself, and to
exhibit him in the eyes of the jury as a person utterly unworthy of belief.
There is a nervous variety of this witness, who is occasionally frightened into doubting his
own handwriting. He is positive at first; has no doubt on the point whatever. It is, or it is not. Then
he is asked if he made a point of putting a dot over the i in "Jenkins." He always made a point
"Do you ever omit the dot?"
"Then be good enough to look at this signature" (counsel gives him a letter, folded up so as to
conceal everything but the signature). "You perceive there is no dot over the i there. Is that your
"I should say not."
"You should say not—why? Because there is no dot over the i?"
"Yes; because there is no dot over the i."
"Now, sir, look at the whole of the letter. Did you write such a letter?"
"Certainly; I did write such a letter."
"Did you write that letter."
"Remember, sir, you are on your oath. Is it like your handwriting?"
"Is it like your signature?"
"Is it your signature?"
"It might be."
"Gentlemen of the jury; after most positively denying that this was his signature, the witness at
length admits that it might be. What reliance then can be placed upon the doubts which he
expressed with regard to the document upon which this action is based?"
This witness has really no doubts about his handwriting at all, until he is artfully induced to
commit himself with regard to the dotting of i's and the crossing of t's.
The deaf witness is not a hopeful subject for counsel to deal with; and when, on entering the box,
he settles himself into a leaning posture, with his hand to his ear, the gentlemen in horse-hair
wigs will be seen to exchange glances which imply mutual pity for each other. Those glances
say plainly enough, "Here is a deaf old post, who will pretend to be much more deaf than he
really is, and will be sure to have the sympathies of the public if we bully him." The deaf witness,
when the counsel begins to ask awkward questions, says "eh?" to everything; and if he be a
knowing witness at the same time, pretends not to understand, which justifies him in giving
stupid and irrelevant answers. As a rule, both sides are not sorry to get rid of a deaf witness;
and he is told to stand down in tones of mingled pity and contempt.
The knowing witness, who is not deaf, is a too-clever-by-half gentleman, who soon falls a prey to
his overweening [arrogant] opinion of his own sharpness. They are not going to frighten him by
asking him to kiss the book. He kisses it with a smack of the lips and a wag of the head, by
which he seems to indicate that he is prepared to eat the book if required. Then, after a question
or two, when he thinks he is getting the best of it with the lawyers, he winks at the general
audience, and so fondly believes he is taking everybody into his confidence, against his
cross-examiner. This is the gentleman who is credited with those sharp retorts upon lawyers
which we find in jest-books and collections of wit and humour; but I fear he has little claim to
distinction as a dealer in repartee. Those smart things are "made up" for him, as they are made
for the wag, and generally for Joseph Miller. The retorts of the knowing witness are usually on
the simplest principle of tu quoque [you also], and as their pith chiefly consists in their
rudeness—only counsel are allowed to be rude in court—they are certain to be checked by the
court. The court does not tolerate jokes that are not made by itself.
The witness who introduces foreign matter into her evidence is generally of the female gender,
and is a person whose appearance and manner warrant counsel in addressing her as "my
good woman." She will declare that she is "not a good woman," and secure for that
standard witticism the laugh which it never fails to raise, whether spoken innocently or with intent.
She deals very much in "he said," and "she said;" and of course the counsel doesn't want to
know what he said or she said, but what the good woman saw with her own eyes and heard with
her own ears. But nothing on earth will induce her to stick to the point; and though she is pulled
up again and again, she still persists in giving all collateral circumstances in minute detail. I
should say that when this witness goes to the play, she provides herself with a small bottle of
rum and an egg-cup.
The interesting witness is also of the female gender—slim, prim, modest, and demure. She is
a young lady of "prepossessing appearance," and notably interesting. The moment she steps
into the box and puts up her veil to kiss the book, the gentlemen in the horse-hair wigs fix their
eye-glasses and scrutinize her narrowly; and, as the gentlemen of the long robe are proverbially
polite, they will be seen, while staring the interesting young lady out of countenance, to nudge
each other and pass round pleasant jokes. The interesting young-lady witness is rarely to be
met with in the Queen's Bench, the Common Pleas, or the Exchequer. The place to look for her
is the Court of Divorce and Matrimonial Causes, where it is generally the object of the
cross-examining counsel to prove that the interesting witness, who has prepossessed every
one by her modest demeanour, is no better than she should be. There is possibly no warranty
for this course of proceeding; but then the noble practice of the law requires that a barrister
should do the best he can for his client, and that he must not scruple to blacken the character
of the innocent, in order to protect from the consequences of his crime one whom he well knows
to be guilty.
The interesting female witness is of two kinds. One is what she seems; the other is not what
she seems. The mock-modesty lady usually gives her cross-examiner a good deal of trouble.
She is wary; brief in her answers, decisive in her replies; and her habit of dropping her eyes
enables her to conceal her emotions. This witness holds out to the last. The other, who is really
the interesting, modest, demure, timid creature that she appears, soon betrays herself under a
severe cross-examination. Her only weapon of defence rises unbidden from the depths of her
wounded feelings, in the shape of a flood of tears.