Many critics of the legal system have bemoaned the tendency of judges and barristers to bamboozle the layman by use of language. Erudite, jargonistic, Latinised, fanciful or plain euphemistic, it’s an endless conundrum. Just consider the divorce case:
‘And when did you and your wife last have relations?’
‘That would have been last Christmas when her mother came to stay, Your Honour.’
It’s an old one but it makes the point. How can the ordinary person even begin to understand the language of the law?
That’s why it comes as such a comfort to know that even those within the profession are occasionally hoisted by their own petard. Or, in the interests of plain speaking, should I say caught out at their own game?
One such unusual case was related in his memoirs by Lord Eldon, Lord Chancellor for 26 years at the start of the nineteenth century, and it shows how the use of language, even at the most basic level, can paralyse the opposition into submission against their will.
It was at the Carlisle Assizes in 1776 when Eldon, then just a young practitioner on the Northern Circuit working as plain John Scott, was called upon to defend a man accused of salmon poaching. Scott had a yen for such cases, for although he was to rise to become one of the most celebrated English lawyers of his era, he had been born of humble parentage in Newcastle and had a down-to-earth approach that served him well.
Prosecuting the poacher was a barrister named Bearcroft, rather a star in London, who agreed to make his first ever visit to Cumberland only on agreeing the then enormous fee of 300 guineas. Despite his misgivings about the ways of the far north, Bearcroft confidently expected to bring the case home against the country bumpkins. As it was, he got a rude awakening.
John Scott displayed a canny grasp of the power of language by playing on Bearcroft’s lack of a common touch – while conducting his defence he spoke in the broad Cumberland dialect of the Carlisle region and liberally scattered his speeches with vernacular phrases, which the jury fully understood but which the increasingly bewildered Bearcroft could make neither head nor tail of.
The crucial moment came when Scott began to question a witness about salmon caught out of season. Scott knew, as did the witness, that such salmon have white flesh instead of red. He also knew that poachers were in the habit of disguising such illegally caught fish, reddening the flesh by smoking it up a chimney to make what were known locally as ‘old soldiers’, named after the colour of a soldier’s red coat.
Being unaware of country matters, Bearcroft strained to follow the dialogue and when Scott asked the witness, ‘Did the salmon make good “ould soldiers”?’ the surreal image of an army of fish engaging in battle in their twilight years was more than Bearcroft could stand.
He promptly made the mistake of asking Scott to translate, and Scott’s clever but surely entirely just retort won the day in this North-versus-South battle of wits: ‘Surely a London counsel marked three hundred guineas on his brief can understand a simple thing like that. Furthermore, it is not for me, with a fee of only five guineas to my name, to help a London counsel whose value is evidently sixty times as great as my own.’
Thus put in his place, Bearcroft floundered like a fish out of water as the jury warmed to Scott’s plain-talking submissions.
The salmon poacher was quickly acquitted and Bearcroft left Carlisle sorely stung by the experience of his northern excursion, swearing, ‘No fee shall ever tempt me to come among such a set of barbarians again.’
A famous triumph for Scott. A salutary lesson for Bearcroft. But above all a victory for the plain-speaking society.
I would add only one footnote. One must always be careful of assuming from a response that someone has misunderstood the question. For misconstrual on the grounds of ambiguity can, as a rereading of my opening quotation might suggest, sometimes be a two-way affair.
Who’s to say, after all, that it wasn’t ‘last Christmas’, poor chap?