Cross-Rxamination as an Art. the ordinary purpose of destroying or weak ening the direct. Above all, he knew when and where to refrain from cross-questions, — a great inci dent in the art. He reminded one of the skater who never ventures on or near thin ice, although there were no visible signs of •'dangerous." In this adroit refraining he probably remembered the anecdote accred ited to Curran and his horse-stealing client. The latter said after acquittal : " No thanks to you, John Philpot, and I ought to have the fee returned, for you never cross-examined a witness nor made a speech in my favor." "If I had even opened my mouth under the circumstances, the possibilities are, under the view judge and jury seemed evidently taking of your case, that you might then have been convicted." Plausible as David Graham was with the hostile witness, he was equally plausible in commenting to the jury upon the testimony of that witness. He was a thorough disciple of Henry Brougham's celebrated definition of an advocate's duty to his client, that was enunciated in his address to the Lords when defending Queen Caroline, — the doctrine of which definition several strict ethical writers have impugned. It may be observed that the brother, John Graham, still in active practice, seemed to rival the elder by his own methods of adroit and successful cross-examination. At Ле New Orleans Bar, as far back as the era of the Mexican War, Judah P. Benjamin seemed to possess and excel in most of the traits in the art of cross-exami nations already imputed to David Graham. Benjamin especially possessed celerity of thought and ready aptitude in dealing with the demeanor and expressions of a hostile witness. Like single-speech Hamilton in the traditions of the House of Commons, Mr. Benjamin knew when to quit talking; and like a good stage manager, he always arranged a good exit from the witness chair for his actor, who may have there endured forgetfulness of his cues. Without attempting to distinguish, or to 54
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extinguish, by mention any of the barristers or Q. C.'s of the London Bar excelling in the art in question, — beyond a passing trib ute to the careful and meritorious crossexaminations of Messrs. Charles Mathews, Poland, and Gill,— it may be observed that in this 'art not one of those cross-examiners can equal the excellence in it of those best known at the American Bar, from Maine to San Francisco; and for the reason that the former are nationally slower and less elastic than the latter. Is not the crossexaminer who "deliberates, ' like the woman commemorated by the Pope of poets, — "lost "? The average American cross-exam iner is in the battle of testimony like the Zouave, and the Englishman like a heavy dragoon by comparison, — the one alert in action and quick with rifle, while the other takes time for drawing his sabre. Moreover, the former thinks for himself, while the other is compelled to think more or less through a solicitor, and is fettered more or less by iron -clad instructions. It takes the lawyer who joins the bar as a fledgeling a long time often to acquire the art. He finds that he has to cultivate, for success in it, celerity of thought, close observation of human nature, and a study of its various phases, rapid exercise of judgement on the occasion sudden, com mand of feature and temper, and above all he must know when to stop cross-examina tion. Playwrights and actors learn how to value the good exit; and the lawyer who is adept in the art of cross-examination arranges an exit for his hostile witness that shall tell in favor of his own client. The young advocate's most frequent short-com ing in cross-examination is avidity at it, and eagerness to press questions. His selfsufficiency and indeed conceit will too often tempt to precarious questioning or too much detail in queries. Then how often at Nisi Prius one witnesses a rash although keen "encounter of wits " between cross-exam iner and witness, wherein the latter gets the advantage as Beatrice did over Benedict?
