Chapter 8

On Tuesday night, May 5th, 1840, Lord William Russell, infirm, deaf, and aged, being in his seventy-third year, was murdered in his bed. He was a widower, living at No. 14 Norfolk Street, Park Lane, London, a small house, occupied by only himself and three servants,--Courvoisier, a young Swiss valet, and two women, a cook and house-maid. The evidence was of a character to show very clearly that the crime had been committed by some one in the house; but, Courvoisier's behavior throughout had been that of an innocent man. Two examinations of his trunk, by the officers of the police, showed nothing suspicious; rewards having been offered by the government and family of the deceased; for the detection of the criminal, a third examination was made of Courvoisier's box, which resulted in the discovery of a pair of white cotton gloves, two pocket handkerchiefs, and a shirt-front, stained with blood. The prisoner's counsel went to the trial with a full persuasion of his innocence, and conducted the cross-examination closely and zealously, especially of Sarah Mancer, one of the female domestics, with a view of showing that there was as much probability that the witness or the other domestic was the criminal as the prisoner; and that the police, incited by the hopes of the large rewards offered, had conspired to fasten the suspicion unjustly on him. At the close of the first day's proceedings, the prosecutors were placed unexpectedly in possession of a new and important item of evidence: the discovery of the plate of the deceased, which was missed, and that it had been left by the prisoner, at the place where it was found, about a week, perhaps only a very few days, before the committing of the murder. The parcel contained silver spoons, forks, a pair of gold auricles, all unquestionably the property of the unfortunate nobleman; and the only question remaining was, whether Courvoisier was the person who had so left it. If he were, it would, of course, grievously for him, increase the _probabilities_ that it must have been he who subsequently committed the murder, and with the object of plunder. On the ensuing morning, the person who had made this discovery (Mrs. Piolaine, the wife of a Frenchman, who kept a place of entertainment, called L'Hotel de Dieppe, in Leicester Place, Leicester Square), was shown a number of prisoners in the prison-yard, one of whom was Courvoisier, whom she instantly recognized as the person who had left the plate with her, and also had formerly lived in her employ. Courvoisier also suddenly recognized her, and with dismay. The immediate effect of his panic was the confession of his guilt to his counsel at the bar of the court, a few minutes afterwards, coupled with his desire, nevertheless, to be defended to the utmost. His probable object was simply to prepare his counsel against the forthcoming evidence. The prisoner was convicted, and afterwards confessed his crime. Mr. Phillips's conduct of the defence was criticized at the time, in the columns of the Examiner, but he suffered it to pass in silence. In 1849, that periodical renewed the accusation originally made, upon which the following correspondence appeared in the London Times of Nov. 20th, 1849.

TO THE EDITOR OF THE "TIMES."

SIR,--I shall esteem it a great favor if you will allow the accompanying documents to appear in the "Times." Its universal circulation affords me an opportunity of annihilating a calumny recently revived, which has for nine years harassed my friends far more than myself.

I am, &c., CHARLES PHILLIPS. 39 Gordon Square.

INNER TEMPLE, Nov. 14, 1849.

MY DEAR PHILLIPS,--It was with pain that I heard yesterday of an accusation having been revived against you in the "Examiner" newspaper, respecting alleged dishonorable and most unconscientious conduct on your part, when defending Courvoisier against the charge of having murdered Lord William Russell. Considering that you fill a responsible judicial office, and have to leave behind you a name unsullied by any blot or stain, I think you ought to lose no time in offering, as I believe you can truly do, a public and peremptory contradiction to the allegations in question. The mere circumstances of your having been twice promoted to judicial office by two lord chancellors, Lord Lyndhurst and Lord Brougham, since the circulation of the reports to which I am alluding, and after those reports had been called to the attention of at least one of those noble and learned lords, is sufficient evidence of the groundlessness of such reports.

Some time ago I was dining with Lord Denman, when I mentioned to him the report in question. His lordship immediately stated that he had inquired into the matter, and found the charge to be utterly unfounded; that he had spoken on the subject to Mr. Baron Parke, who had sat on the Bench beside Chief Justice Tindal, who tried Courvoisier, and that Baron Parke told him he had, for reasons of his own, most carefully watched every word that you uttered, and assured Lord Denman that your address was perfectly unexceptionable, and that you made no such statements as were subsequently attributed to you.

Lord Denman told me that I was at liberty to mention this fact to any one; and expressed in noble and generous terms his concern at the existence of such serious and unfounded imputations upon your character and honor.

Both Lord Denman and Baron Parke are men of as nice a sense of honor and as high a degree of consciousness as it is possible to conceive; and I think the testimony of two such distinguished judges ought to be publicly known, to extinguish every kind of suspicion on the subject.

I write this letter to you spontaneously, and, hoping that you will forgive the earnestness with which I entreat you to act upon my suggestion, believe me ever yours sincerely,

SAMUEL WARREN. MR. COMMISSIONER PHILLIPS.

39 GORDON SQUARE, Nov. 20.

MY DEAR WARREN,--Your truly kind letter induces me to break the contemptuous silence, with which for nine years I have treated the calumnies, to which you allude. I am the more induced to this by the representations of some valued friends, that many honorable minds begin to believe the slander because of its repetition without receiving a contradiction. It is with disgust and disdain, however, that even thus solicited I stoop to notice inventions too abominable, I had hoped, for any honest man to have believed. The conduct of Lord Denman is in every respect characteristic of his noble nature. Too just to condemn without proof, he investigates the facts, and defends the innocent. His deliberate opinion is valuable indeed, because proceeding from one who is invaluable himself. My judicial appointments by the noblemen you mention would have entailed on them a fearful responsibility, had there been any truth in the accusations of which they must have been cognizant. I had no interest whatever with either of these chancellors, save that derived from their knowledge of my character, and their observation of my conduct. It is now five-and-twenty years ago since Lord Lyndhurst, when I had no friend here, voluntarily tendered me his favor and his influence, and his kindness to me remains to this day unabated. Of Lord Brougham, my ever warm and devoted friend, I forbear to speak, because words cannot express my affection or my gratitude. His friendship has soothed some affliction and enhanced every pleasure, and while memory lasts will remain the proudest of its recollections and the most precious of its treasures. This is no vain-glorious vaunting. The unabated kindness of three of the greatest men, who ever adorned the Bench, ought, in itself, to be a sufficient answer to my traducers. Such men as these would scarcely have given their countenance to one, who, if what were said of him were true, deserved their condemnation. I am not disposed, however, though I might be well warranted in doing so, to shelter myself under the authority of names, no matter how illustrious. I give to each and all of these charges a solemn and indignant contradiction, and I will now proceed to their refutation. The charges are threefold, and I shall discuss them _seriatim_.

First, I am accused of having retained Courvoisier's brief after having heard his confession. It is right that I should relate the manner of that confession, as it has been somewhat misapprehended. Many suppose it was made to me alone, and made in the prison. I never was in the prison since I was called to the Bar, and but once before, being invited to see it by the then sheriffs. So strict is this rule, that the late Mr. Fauntleroy solicited a consultation there in vain with his other counsel and myself. It was on the second morning of the trial, just before the judges entered, that Courvoisier, standing publicly in front of the dock, solicited an interview with his counsel. My excellent friend and colleague, Mr. Clarkson, and myself immediately approached him. I beg of you to mark the presence of Mr. Clarkson, as it will become very material presently. Up to this morning I believed most firmly in his innocence, and so did many others as well as myself. "I have sent for you, gentlemen," said he, "to tell you I committed the murder!" When I could speak, which was not immediately, I said, "Of course then you are going to plead guilty?"--"No, sir," was the reply, "I expect you to defend me to the utmost." We returned to our seats. My position at this moment was, I believe, without parallel in the annals of the profession. I at once came to the resolution of abandoning the case, and so I told my colleague. He strongly and urgently remonstrated against it, but in vain. At last he suggested our obtaining the opinion of the learned judge, who was not trying the cause, upon what he considered to be the professional etiquette under circumstances so embarrassing. In this I very willingly acquiesced. We obtained an interview, and Mr. Baron Parke requested to know distinctly whether the prisoner insisted on my defending him, and, on hearing that he did, said, I was bound to do so, and to use all fair arguments arising on the evidence. I therefore retained the brief, and I contend for it, that every argument I used was a fair commentary on the evidence, though undoubtedly as strong as I could make them. I believe there is no difference of opinion now in the profession that this course was right. It was not until after eight hours' public exertion before the jury that the prisoner confessed; and to have abandoned him then would have been virtually surrendering him to death. This is my answer to the first charge.

I am accused, secondly, of having "appealed to Heaven as to my belief in Courvoisier's innocence," after he had made me acquainted with his guilt. A grievous accusation! But it is false as it is foul, and carries its own refutation on its face. It is with difficulty I restrain the expression of my indignation; but respect for my station forbids me to characterize this slander as it deserves. It will not bear one moment's analysis. It is an utter impossibility under the circumstances. What! appeal to Heaven for its testimony to a lie, and not expect to be answered by its lightning? What! make such an appeal, conscious that an honorable colleague sat beside me, whose valued friendship I must have forever forfeited? But above all and beyond all, and too monstrous for belief, would I have dared to utter that falsehood in the very presence of the judge to whom, but the day before, I had confided the reality! There, upon the Bench above me, sat that time-honored man--that upright magistrate, pure as his ermine, "narrowly watching" every word I said. Had I dared to make an appeal so horrible and so impious--had I dared so to outrage his nature and my own conscience, he would have started from his seat and withered me with a glance. No, Warren, I never made such an appeal; it is a malignant untruth, and sure I am, had the person who coined it but known what had previously occurred, he never would have uttered from his libel mint so very clumsy and self-proclaiming a counterfeit. So far for the verisimilitude of this-charge. But I will not rest either on improbability, or argument, or even denial. I have a better and a conclusive answer. The trial terminated on Saturday evening. On Sunday I was shown in a newspaper the passage imputed to me. I took the paper to court on Monday, and, in the aldermen's room, before all assembled, after reading the paragraph aloud, I thus addressed the judges:--"I take the very first opportunity which offers, my lords, of most respectfully inquiring of you whether I ever used any such expression?"--"You certainly did not, Phillips," was the reply of the late lamented Lord Chief Justice, "and I will be your vouchee whenever you choose to call me,"--"And I," said Mr. Baron Parke, happily still spared to us, "had a reason, which the Lord Chief Justice did not know, for watching you narrowly, and he will remember my saying to him, when you sat down, 'Brother Tindal, did you observe how carefully Phillips abstained from giving any personal opinion in the case?' To this the learned Chief Justice instantly assented." This is my answer to the second charge.

Thirdly, and lastly, I am accused of having endeavored to cast upon the female servants the guilt, which I knew was attributable to Courvoisier. You will observe, of course, that the gravamen of this consists in my having done so after the confession. The answer to this is obvious. Courvoisier did not confess till Friday: the cross-examination took place the day before, and so far, therefore, the accusation is disposed of. But it may be said I did so in my address to the jury. Before refuting this let me observe upon the disheartening circumstances under which that address was delivered. At the close of the, to me, most wretched day on which the confession was made, the prisoner sent me this astounding message by his solicitor: "Tell Mr. Phillips, my counsel, that I consider he has my life in his hands." My answer was, that as he must be present himself, he would have an opportunity of seeing whether I deserted him or not. I was to speak on the next morning. But what a night preceded it! Fevered and horror-stricken, I could find no repose. If I slumbered for a moment, the murderer's form arose before me, scaring sleep away, now muttering his awful crime, and now shrieking to me to save his life! I did try to save it. I did everything to save it, except that which is imputed to me, but that I did not, and I will prove it. I have since pondered much upon this subject, and I am satisfied that my original impression was erroneous. I had no right to throw up my brief, and turn traitor to the wretch, wretch though he was, who had confided in me. The counsel for a prisoner has no option. The moment he accepts his brief, every faculty he possesses becomes his client's property. It is an implied contract between him and the man who trusts him. Out of the profession this may be a moot point, but it was asserted and acted on by two illustrious advocates of our own day, even to the confronting of a king, and, to the regal honor be it spoken, these dauntless men were afterwards promoted to the highest dignities.

You will ask me here whether I contend on this principle for the right of doing that of which I am accused, namely, casting the guilt upon the innocent? I do no such thing; and I deny the imputation altogether. You will still bear in mind what I have said before, that I scarcely could have dared to do so under the eye of Baron Parke and in the presence of Mr. Clarkson. To act so, I must have been insane. But to set this matter at rest, I have referred to my address as reported in the "Times"--a journal the fidelity of whose reports was never questioned. You will be amazed to hear that I not only did not do that of which I am accused; but that I did the very reverse. Fearing that, nervous and unstrung as I was, I might do any injustice in the course of a lengthened speech, by even an ambiguous expression, I find these words reported in the "Times,"--"Mr. Phillips said the prosecutors were bound to prove the guilt of the prisoner, not by inference, by reasoning, by such subtile and refined ingenuity as had been used, but by downright, clear, open, palpable demonstration. How did they seek to do this? What said Mr. Adolphus and his witness, Sarah Mancer? And here he would beg the jury not to suppose for a moment, in the course of the narrative with which he must trouble them, that he meant to cast the crime upon either of the female servants. It was not at all necessary to his case to do so. It was neither his interest, his duty, nor his policy, to do so. God forbid that any breath of his should send tainted into the world persons depending for their subsistence on their character." Surely this ought to be sufficient. I cannot allude, however, to this giant of the press, whose might can make or unmake a reputation, without gratefully acknowledging that it never lent its great circulation to these libels. It had too much justice. The "Morning Chronicle," the "Morning Herald," and the "Morning Post," the only journals to which I have access, fully corroborated the "Times," if, indeed, such a journal needed corroboration. The "Chronicle" runs thus:--"In the first place, says my friend Mr. Adolphus, and says his witness Sarah Mancer--and here I beg to do an act of justice, and to assure you that I do not for a moment mean to suggest in the whole course of my narrative that this crime may have been committed by the female servants of the deceased nobleman." "The Morning Post" runs thus: "Mr. Adolphus called a witness, Sarah Mancer. But let me do myself justice, and others justice, by now stating, that in the whole course of my narrative with which I must trouble you, I beg you would not suppose that I am in the least degree seeking to cast the crime upon any of the witnesses. God forbid that any breath of mine should send persons depending on the public for subsistence into the world with a tainted character." I find the "Morning Herald" reporting me as follows: "Mr. Adolphus called a witness named Sarah Mancer. But let me do myself justice and others justice by now stating that in the whole course of the narrative with which I must trouble you, I must beg that you will not suppose that I am in the least degree seeking to cast blame upon any of the witnesses." Can any disclaimer be more complete? And yet, in the face of this, for nine successive years has this most unscrupulous of slanderers reiterated his charge. Not quite three weeks ago he recurs to it in these terms: "How much worse was the attempt of Mr. Phillips to throw the suspicion of the murder of Lord William Russell on the innocent female servants, in order to procure the acquittal of his client Courvoisier, of whose guilt he was cognizant?" I have read with care the whole report in the "Times" of that three hours' speech, and I do not find a passage to give this charge countenance. But surely, surely, in the agitated state in which I was, had even an ambiguous expression dropped from me, the above broad disclaimer would have been its efficient antidote.

Such is my answer to the last charge; and, come what will, it shall be my final answer. No envenomed reiteration, no popular delusion, no importunity of friendship, shall ever draw from me another syllable. I shall remain in future, as I have been heretofore, _auditor tantum_. You know well how strenuously and how repeatedly you pressed me to my vindication, especially after Lord Denman's important conversation with you, and you know the stern disdain with which I dissented. The _mens conscia recti_, a thorough contempt for my traducer, the belief that truth would in the end prevail, and a self-humiliation at stooping to a defence, amply sustained me amid the almost national outcry which calumny had created. Relying doubtless upon this, month after month, for nine successive years, my accuser has iterated and reiterated his libels in terms so gross, so vulgar, and so disgraceful, that my most valued friends thought it my duty to them publicly to refute them. To that consideration, and to that alone, I have yielded; in deference to theirs, relinquishing my own opinions. If they suppose, however, that slander, because answered, will be silenced, they will find themselves mistaken.

Destroy the web of sophistry--in vain-- The creature's at his dirty work again.

No, no, my dear friend, invention is a libeller's exhaustless capital, and refutation but supplies the food on which he lives. He may, however, pursue his vocation undisturbed by me. His libels and my answer are now before the world, and I leave them to the judgment of all honorable men.

C. PHILLIPS.

No. II.

COURSE OF LEGAL STUDY[60]

_Non multa sed multum_, is the cardinal maxim by which the student of law should be governed in his readings; at the commencement of his studies--in the office of his legal preceptor, REPETITION--REPETITION--REPETITION. Blackstone and Kent, should be read--and read again and again. These elementary works, with some others of an immediately practical cast--Tidd's Practice, Stephen's Pleading, Greenleaf's Evidence, Leigh's Nisi Prius, Mitford's Equity Pleading--well conned, make up the best part of office reading. Of course the Acts of Assembly should be gone over and over again. I do not say that this is all. The plan of reading, which I am about to recommend, may be begun in the office. Much will depend upon, what may be termed, the mental temperament of the student himself, which no one but the immediate preceptor can observe; and he will be governed accordingly in the selection of works to be placed in his hands. No lawyer does his duty, who does not frequently examine his student, not merely as a necessary means of exciting him to attention, and application; but in order to acquire such an acquaintance with the character of his pupil's mind--its quickness or slowness--its concentrativeness or discursiveness--as to be able to form a judgment whether he requires the curb or the spur. It is an inestimable advantage to a young man to have a judicious and experienced friend watching anxiously his progress, and able to direct him, when, if left to himself, he must wander in darkness and danger. "There be two things," says Lord Coke, "to be avoided by him as enemies to learning, _præpostera lectio_ and _præpropera praxis_." Co. Litt. 70 b.

I prefer presenting a certain order of subjects to be pursued; observing, however, that it may be somewhat irksome to pursue any one branch for too long a period unvaried. When that is found to be the case, the last five heads may be adopted as collateral studies, and pursued simultaneously with the first three.

These heads or branches are--1. Real Estate and Equity. 2. Practice, Pleading, and Evidence. 3. Crime and Forfeitures. 4. Natural and International law. 5. Constitutional Law. 6. Civil Law. 7. Persons and Personal Property. 8. The Law of Executors and Administrators.

I. REAL ESTATE AND EQUITY.