Page:The Green Bag (1889–1914), Volume 07.pdf/490

 Bench and Bar Witty Encounters. orators the Union ever knew — Chief Justice Martin, hearing the word Prentiss, said testily, "Yes, yes, Mr. Sargent : but who is he apprentice to?" "Himself," responded, in an aside, Alfred Hennen, arbiter elegantiarum of the then bar, " Prentiss is the apprentice to the Muse of Eloquence." Elijah Paine, best known to the Bar of New York City half a century ago as author of a ponderous book of practice, was later a judge of the Superior Court of that city by gubernatorial appointment to fill a vacancy. He was fast becoming deaf and often mis took ringings in his ears for spoken words; and upon one occasion soon after his debut startled the court room by suddenly ex claiming to the crier beside him, at the very moment when counsel paused to consult a volume and quietude reigned. " Demand more silence," adding " I may be somewhat hard of hearing, but I do not want confusion." It was this judge of whom Daniel Lord, junior, having said to John Van Buren (while both were engaged in a trial and each fairly shouting) " this is another Elijah fed by ravings," was responded to by the witty Prince thus: "And the pleasure we delight in physics Paine." But deaf as some judges might be, it was dangerous for a juror to play —-a common one — the game of deafness as an excuse for release upon Sir Henry Hawkins, the eminent English judge, who would often catch a juror after hearing his excuse by emitting in a faint whisper scarcely to be heard by his clerk a few paces off, " excuse granted; you may go," and when the trapped juror answered, " Thank your lord ship," showing he was not deaf, Sir Henry would gruffly say, "Now take the box." It was before Sir Henry — who was fond of holding criminal assizes — that a Hebrew barrister made this appeal for clemency for his client, convicted of perjury : " He is the best man in the kingdom for de trut'. He always spoke de trut', and indeed he was so

451

fond of it that he would tell more than de trut'." Arguing a case once in the Federal Su preme Court, a western lawyer thinking to compliment Justice Story, then on the bench, quoted almost entirely from some of the judge's law books: and venturing to pun, as looking at the shining scalp of the great jurist (which to veterans who remember him seemed always blushing) said " but to at least one of your Honors these references may seem an old story." Reverdy Johnson, who sat near by, whispered to the advocate, "Your whole argument is built Story upon Story." Vice Chancellor and also Civil Judge Anthony S. Robertson, of New York City, was noted for indulging in bench repartees and witticisms without compromising his own dignity or that of an occasion. He was listening patiently at chambers to an argumentative conflict over the amount of a fee claimed by a counsel. At the close of the contention he remarked, " Let me have your papers and the affidavits of the expert, and I will see what is feasible as to the fee and endeavor to see my way to a just solu tion between the contention on the one side that the fee is a phenomenal one and on the other side that there should not be a nominal fee." He was very much beloved by all the profession, who scarcely ever referred to him otherwise than as " Tony." He had a brother Justice, James R. Whiting, who had been a District Attorney, and for his bitter prosecutions was named " Little Bitters," being abnormally short of stature. Judge Whiting was not college bred, but had an ambition to be thought literary, and was much given to quotations which often became curiously verbally mixed. Called upon to speak regarding the death of a judicial brother he rounded' his peroration with, "our brother has gone where the weary cease from troubling and the wicked are at rest."