The Art of Cross-Examination Part 12

"'Doctor, to what do you attribute this condition of the plaintiff which you describe?'

"'Hysteria, sir; he is hysterical.'

"That waked me up. I said, 'Doctor, did I understand--I was not paying proper attention--to what did you attribute this nervous condition of my client?'

"'Hysteria, sir.'

"I subsided, and the examination went on until it came my turn to cross-examine.

"_Mr. Butler._ 'Do I understand that you think this condition of my client wholly hysterical?'

"_Witness._ 'Yes, sir; undoubtedly.'

"_Mr. Butler._ 'And therefore won't last long?'

"_Witness._ 'No, sir; not likely to.'

"_Mr. Butler._ 'Well, doctor, let us see; is not the disease called hysteria and its effects hysterics; and isn't it true that hysteria, hysterics, hysterical, all come from the Greek word ?st??a?'

"_Witness._ 'It may be.'

"_Mr. Butler._ 'Don't say it may, doctor; isn't it? Isn't an exact translation of the Greek word ?st??a the English word "womb"?'

"_Witness._ 'You are right, sir.'

"_Mr. Butler._ 'Well, doctor, this morning when you examined this young man here,' pointing to my client, 'did you find that he had a womb? I was not aware of it before, but I will have him examined over again and see if I can find it. That is all, doctor; you may step down.'"

Robert Ingersoll took part in numerous noted lawsuits in all parts of the country. But he was almost helpless in court without a competent junior. He was a born orator if ever there was one. Henry Ward Beecher regarded him as "the most brilliant speaker of the English tongue in any land on the globe." He was not a profound lawyer, however, and hardly the equal of the most mediocre trial lawyer in the examination of witnesses. Of the art of cross-examining witnesses he knew practically nothing. His definition of a lawyer, to use his own words, was "a sort of intellectual strumpet." "My ideal of a great lawyer," he once wrote, "is that great English attorney who acc.u.mulated a fortune of a million pounds, and left it all in his will to make a home for idiots, declaring that he wanted to give it back to the people from whom he took it."

Judge Walter H. Sanborn relates a conversation he had with Judge Miller of the United States Court about Ingersoll. "Just after Colonel Ingersoll had concluded an argument before Mr. Justice Miller, while on Circuit I came into the court and remarked to Judge Miller that I wished I had got there a little sooner, as I had never heard Colonel Ingersoll make a legal argument."--"Well," said Judge Miller, "you never will."[24]

[24] "Life Sketches of Eminent Lawyers," Gilbert J. Clark.

Ingersoll's genius lay in other directions. Who but Ingersoll could have written the following:--

"A little while ago I stood by the grave of the old Napoleon--a magnificent tomb of gilt and gold, fit almost for a dead deity, and gazed upon the sarcophagus of black marble, where rest at last the ashes of that restless man. I leaned over the bal.u.s.trade, and thought about the career of the greatest soldier of the modern world. I saw him walking upon the banks of the Seine, contemplating suicide; I saw him at Toulon; I saw him putting down the mob in the streets of Paris; I saw him at the head of the army in Italy; I saw him crossing the bridge of Lodi, with the tricolor in his hand; I saw him in Egypt, in the shadows of the Pyramids; I saw him conquer the Alps, and mingle the eagles of France with the eagles of the crags; I saw him at Marengo, at Ulm, and at Austerlitz; I saw him in Russia, where the infantry of the snow and the cavalry of the wild blast scattered his legions like winter's withered leaves. I saw him at Leipsic, in defeat and disaster; driven by a million bayonets back upon Paris; clutched like a wild beast; banished to Elba. I saw him escape and retake an empire by the force of his genius. I saw him upon the frightful field of Waterloo, where chance and fate combined to wreck the fortunes of their former king. And I saw him at St. Helena, with his hands crossed behind him, gazing out upon the sad and solemn sea. I thought of the orphans and widows he had made, of the tears that had been shed for his glory, and of the only woman who had ever loved him, pushed from his heart by the cold hand of ambition.

And I said I would rather have been a French peasant, and worn wooden shoes; I would rather have lived in a hut, with a vine growing over the door, and the grapes growing purple in the kisses of the autumn sun. I would rather have been that poor peasant, with my loving wife by my side, knitting as the day died out of the sky, with my children upon my knees, and their arms about me. I would rather have been that man, and gone down to the tongueless silence of the dreamless dust, than to have been that imperial impersonation of force and murder, known as Napoleon the Great."

CHAPTER XI

THE CROSS-EXAMINATION OF RICHARD PIGOTT BY SIR CHARLES RUSSELL BEFORE THE PARNELL COMMISSION

The modern method of studying any subject, or acquiring any art, is the inductive method. This is ill.u.s.trated in our law schools, where to a large extent actual cases are studied, to get at the principles of law instead of acquiring those principles solely through the _a priori_ method of the study of text-books.

As already indicated, this method is also the only way to become a master of the art of cross-examination, and, in addition to actual personal experience, it is important to study the methods of great cross-examiners, or those whose extended experience makes them safe guides to follow.

Hence, the writer believes it would be decidedly helpful to the students of the art of cross-examination to have placed before them, in a convenient and somewhat condensed form, some good ill.u.s.trations of the methods of well-known cross-examiners as exhibited in actual practice, in the cross-examination of important witnesses in famous trials.

For these reasons, and the further fact that such examples are interesting as a study of human nature, I have in the following pages introduced the cross-examination of some important witnesses in several well-known cases.

Probably one of the most dramatic and successful of the more celebrated cross-examinations in the history of the English courts is Russell's cross-examination of Pigott--the chief witness in the investigation growing out of the attack upon Charles S. Parnell and sixty-five Irish members of Parliament, by name, for belonging to a lawless and even murderous organization, whose aim was the overthrow of English rule.

The princ.i.p.al charge against Parnell, and the only one that interests us in the cross-examination of the witness Pigott, was the writing of a letter by Parnell which the _Times_ claimed to have obtained and published in facsimile, in which he excused the murderer of Lord Frederick Cavendish, Chief Secretary for Ireland, and of Mr. Burke, Under Secretary, in Phoenix Park, Dublin, on May 6, 1882. One particular sentence in the letter read, "I cannot refuse to admit that Burke got no more than his deserts."

The publication of this letter naturally made a great stir in Parliament and in the country at large. Parnell stated in the House of Commons that the letter was a forgery, and later asked for the appointment of a select committee to inquire whether the facsimile letter was a forgery.

The Government refused this request, but appointed a special committee, composed of three judges, to investigate all the charges made by the _Times_.

The writer is indebted again to Russell's biographer, Mr. O'Brien, for the details of this celebrated case. Seldom has any legal controversy been so graphically described as this one. One seems to be living with Russell, and indeed with Mr. O'Brien himself, throughout those eventful months. We must content ourselves, however, with a reproduction of the cross-examination of Pigott as it comes from the stenographer's minutes of the trial, enlightened by the pen of Russell's facile biographer.

Mr. O'Brien speaks of it as "the event in the life of Russell--the defence of Parnell." In order to undertake this defence, Russell returned to the _Times_ the retainer he had enjoyed from them for many previous years. It was known that the _Times_ had bought the letter from Mr. Houston, the secretary of the Irish Loyal and Patriotic Union, and that Mr. Houston had bought it from Pigott. But how did Pigott come by it? That was the question of the hour, and people looked forward to the day when Pigott should go into the box to tell his story, and when Sir Charles Russell should rise to cross-examine him. Mr. O'Brien writes: "Pigott's evidence in chief, so far as the letter was concerned, came practically to this: he had been employed by the Irish Loyal and Patriotic Union to hunt up doc.u.ments which might incriminate Parnell, and he had bought the facsimile letter, with other letters, in Paris from an agent of the Clan-na-Gael, who had no objection to injuring Parnell for a valuable consideration....

"During the whole week or more Russell had looked pale, worn, anxious, nervous, distressed. He was impatient, irritable, at times disagreeable.

Even at luncheon, half an hour before, he seemed to be thoroughly out of sorts, and gave you the idea rather of a young junior with his first brief than of the most formidable advocate at the Bar. Now all was changed. As he stood facing Pigott, he was a picture of calmness, self-possession, strength; there was no sign of impatience or irritability; not a trace of illness, anxiety, or care; a slight tinge of color lighted up the face, the eyes sparkled, and a pleasant smile played about the mouth. The whole bearing and manner of the man, as he proudly turned his head toward the box, showed courage, resolution, confidence. Addressing the witness with much courtesy, while a profound silence fell upon the crowded court, he began: 'Mr. Pigott, would you be good enough, with my Lords' permission, to write some words on that sheet of paper for me? Perhaps you will sit down in order to do so?' A sheet of paper was then handed to the witness. I thought he looked for a moment surprised. This clearly was not the beginning that he had expected. He hesitated, seemed confused. Perhaps Russell observed it. At all events he added quickly:--

"'Would you like to sit down?'

"'Oh, no, thanks,' replied Pigott, a little flurried.

"_The President._ 'Well, but I think it is better that you should sit down. Here is a table upon which you can write in the ordinary way--the course you always pursue.'

"Pigott sat down and seemed to recover his equilibrium.

"_Russell._ 'Will you write the word "livelihood"?'

"Pigott wrote.

"_Russell._ 'Just leave a s.p.a.ce. Will you write the word "likelihood"?'

"Pigott wrote.

"_Russell._ 'Will you write your own name? Will you write the word "proselytism," and finally (I think I will not trouble you at present with any more) "Patrick Egan" and "P. Egan"?'

"He uttered these last words with emphasis, as if they imported something of great importance. Then, when Pigott had written, he added carelessly, 'There is one word I had forgotten. Lower down, please, leaving s.p.a.ces, write the word "hesitancy."' Then, as Pigott was about to write, he added, as if this were the vital point, 'with a small "h."'

Pigott wrote and looked relieved.

"_Russell._ 'Will you kindly give me the sheet?'

"Pigott took up a bit of blotting paper to lay on the sheet, when Russell, with a sharp ring in his voice, said rapidly, 'Don't blot it, please.' It seemed to me that the sharp ring in Russell's voice startled Pigott. While writing he had looked composed; now again he looked flurried, and nervously handed back the sheet. The attorney general looked keenly at it, and then said, with the air of a man who had himself scored, 'My Lords, I suggest that had better be photographed, if your Lords.h.i.+ps see no objection.'

"_Russell_ (turning sharply toward the attorney general, and with an angry glance and an Ulster accent, which sometimes broke out when he felt irritated). 'Do not interrupt my cross-examination with that request.'

"Little did the attorney general at that moment know that, in the ten minutes or quarter of an hour which it had taken to ask these questions, Russell had gained a decisive advantage. Pigott had in one of his letters to Pat Egan spelt 'hesitancy' thus, 'hesitency.' In one of the incriminatory letters 'hesitancy' was so spelt; and in the sheet now handed back to Russell, Pigott had written 'hesitency,' too. In fact it was Pigott's spelling of this word that had put the Irish members on his scent. Pat Egan, seeing the word spelt with an 'e' in one of the incriminatory letters, had written to Parnell, saying in effect, 'Pigott is the forger. In the letter ascribed to you "hesitancy" is spelt "hesitency." That is the way Pigott always spells the word.' These things were not dreamt of in the philosophy of the attorney general when he interrupted Russell's cross-examination with the request that the sheet 'had better be photographed.' So closed the first round of the combat.

"Russell went on in his former courteous manner, and Pigott, who had now completely recovered confidence, looked once more like a man determined to stand to his guns.