Tuesday, 17 April 2012

Penguin no. 1702: Six Great Advocates
by Lord Birkett

The advocate no longer plays the part in our public life that he once did. The fashionable divorce suit, the sensational libel action, the great murder trial - they are no longer the dramatic events that once occupied public attention to the exclusion of almost everything else. The television star and the film actor or actress, idolized by millions, now take pride of place. But men must be judged by the standards of the age in which they lived and worked, and in his day, Marshall Hall was one of the greatest figures of his world. He was one of the greatest of advocates when he was at his best.

This short book contains the transcripts of a series of seven talks that Lord Birkett (Norman Birkett, K.C.) gave on consecutive Sunday evenings on the BBC in April and May of 1961, the year before he died, sketching the careers and attributes of six of Britain's greatest advocates, and giving his thoughts on the importance of advocacy. He was himself recognised as a great advocate, famous for his successes defending  Mrs Hearn and Tony Mancini in their trials for murder. Called late to the Bar at the age of 30, having spent time as a draper and as a preacher, he met with early success and was invited into Marshall Hall's chambers, functioning as his junior, and going on to become a Member of Parliament, a High Court Judge, and an alternative Judge at the Nuremberg Trials.

Given the opportunity to nominate six outstanding advocates he chooses Edward Marshall Hall, Patrick Hastings, Edward Clarke, Rufus Isaacs, Charles Russell, and Thomas Erskine, three of whom he had known, and three who had lived in earlier times but whose fame had endured. He stresses repeatedly that it is impossible to assess the brilliance of these men by considering only the written records of their speeches, which can seem sentimental, or flowery, or unconvincing to modern ears. Instead, it is necessary to rely on the impressions recorded by their contemporaries, for their words were chosen to meet the challenge of a transient moment, and they should be judged by those who witnessed them in action, and in reference to the times during which they lived. He suggests their skill is as much in their presentation as in their words, for advocacy is multi-dimensional, combining drama, passion, gesture, expression, tone of voice, and force of personality, all tailored to fit one particular moment in time.

And it seems there is no one set of attributes which combine to produce the greatest of advocates. The men he chose excelled in different ways, Marshall Hall and Edward Clarke eloquent and poetic, Patrick Hastings disdaining eloquent speech but ruthless in his cross examinations, and Charles Russell with his forceful and dominating personality. However, the men all seem to have shared a determination to succeed and an ambition to be famous, and most experienced the need to overcome some initial setback, such as childhood poverty or a poorly chosen first career.

It is Thomas Erskine who Lord Birkett nominates as the very greatest of English advocates. Erskine was born in Edinburgh in 1750 into poverty, despite being the youngest son of the Earl of Buchan, and was forced to give up his education to go to sea before buying a commission in the army, spending his leisure memorising Shakespeare, and eventually studying for the Bar. Although his poverty was great, his success was immediate, and it came to him by chance: newly qualified and seeking shelter from the rain at the house of a friend one evening, he was observed by Captain Baillie, the Lieutenant Governor of Greenwich Hospital and defendant in a high profile case of criminal libel, who subsequently sent the unknown advocate a retainer. The speech Erskine gave at the trial was universally credited as responsible for the victory, and his career was assured. It was a career devoted to pursuing freedom, and he fought for the rights of jurors, for free speech, for the freedom of the press, and for the rights of citizens to use lawful means to protest against the government. He changed the way men thought, and set new standards for advocacy.

Birkett quotes the words of Swift that the Bar '[are] a society of men ...bred up from their youth in the art of proving by words multiplied for the pleasure, that white is black, and black is white, according as they are paid', acknowledging that advocates are paid to plead a case irrespective of their personal views on any matter, and irrespective of their beliefs as to the guilt of their client. He suggests that it must be this way, for refusing to defend someone believed to be guilty usurps the role of the judge and the jury. And even when the guilt is certain, the system is supported by a strong defence, for the requirement on the prosecution to prove its case means that it is more likely that a guilty person goes free, than that an innocent one is convicted. It is impossible not to get a sense, though, in reading Birkett's words, that an advocate represents not only his client's interests, but also his own, and his esteem and prestige seem based principally on winning cases, and especially on winning those cases in which the evidence of guilt is almost overwhelming. 

Birkett is a persuasive speaker, and his admiration for his profession and his interest in its history are evident. I enjoyed the book mostly for its attempts to carry knowledge forward - to remember the stories and contributions of people who have lived, and its evocation of a past which seems so foreign, in which murder by arsenic seems incredibly common, and in which advocates were revered.


  1. Very interesting sounding book, thanks.

  2. Yes this does sound interesting Karyn and not necessarily a book I would normally be rushing to read. I'll look out for it.



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