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Bar News - January 19, 2007

It Has All Been Done Before


The truism that one man’s trash is another’s treasure often finds its proof in flea markets and yard sales. So it was a few years ago when I found languishing for the price of a quarter a book, three volumes of the four volume set entitled, The Lives of the Chief Justices of England: From the Norman Conquest Till the Death of Lord Tenterden, by John Lord Campbell, LL.D. F.R.S.E, Third Edition, London 1874. I am missing the fourth volume so will likely never know the foibles of the late Lord Tenterden, but I observe on my return to private practice just how true it is, that the more things change the more they stay the same.


The aforementioned thought came to me following a recent discouraging adventure in one of our district courts. Some years ago I had the rare privilege of representing the State of New Hampshire in prosecuting tragedies among a subset of the these courts, observing the variations of decision-making in minds charged by our Constitution with being as impartial as the lot of humanity will admit.


In perusing the volumes I found the following. John Lord Campbell, in introducing the successes of Chief Justice Holt (tenure 1689-1710), recorded these contrasts:


“According to the ancient traditions of Westminster Hall, the anticipation of high judicial qualities has been often disappointed. The celebrated advocate, when placed on the bench, embraces the side of the plaintiff or of the defendant with all his former zeal, and—unconscious of partiality or injustice—in his eagerness for victory becomes unfit fairly to appreciate conflicting evidence, arguments, and authorities.


The man of a naturally morose or impatient temper, who had been restrained while at the bar by respect for the ermine, or by the dread of offending attorneys, or by the peril of being called to a personal account by his antagonist for impertinence—when he is constituted a living oracle of the law, puffed up by self-importance, and revenging himself for past subserviency, is insolent to his old competitors, bullies the witnesses, and tries to dictate to the jury.


The sordid and selfish practitioner, who, while struggling to advance himself, was industrious and energetic, having gained the object of his ambition, proves listless and torpid, and is quite contented if he can shuffle through his work without committing gross blunders or getting into scrapes. Another, having been more laborious than discriminating, when made a judge, hunts after small or irrelevant points, and obstructs the business of his court by a morbid desire to investigate fully and to decide conscientiously.


“The recalcitrant barrister, who constantly complained of the interruptions of the court, forgets that it is his duty to listen and be instructed, and himself becomes a by-word for impatience and loquacity. He who retains the high-mindedness and noble aspirations which distinguished his early career may, with the best intentions, be led astray into dangerous courses, and may bring about a collision between different authorities in the state which had long moved harmoniously, by indiscreetly attempting new modes of redressing grievances, and by an uncalled-for display of heroism.”


Chief Justice Holt was unaffected by any such flaw. Said Campbell:


“Perhaps the excellence which he attained may be traced to the passion for justice by which he was constantly actuated. This induced him to sacrifice ease, and amusement, and literary relaxation, and the allurements of party, to submit to tasks the most dull, disagreeable, and revolting, and to devote all his energies to one object—ever ready to exclaim:


            …‘Welcome business, welcome strife,

            Welcome the cares of ermine life;

            The visage wan, the purblind sight;

            The toil by day, the lamp by night;

            The tedious forms, the solemn prate;

            The pert dispute, the dull debate;

            The drowsy bench, the babbling hall, -

            For these, fair Justice, welcome all!’”


E. F. Wingate III is an attorney with Family Legal Services in Concord.

Supreme Court Rule 42(9) requires all NH admitted attorneys to notify the Bar Association of any address change, home or office.

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