Review by William W C Scott © 10th January 2023.
Sir Edward Marshall Hall, KC, MP has been called the greatest advocate. In an age (1883-1927) when people could still be tried for murder and hanged, he saved more of them than anyone else. Time after time, he stood up alone in the most intimidating circumstances - a court crammed with spectators, counsel, judges - when a case seemed hopeless, because the press had already circulated 'their' version of events, having interrogated and paid witnesses for their stories. People came from all over the world because they had read about it beforehand and were fascinated. Time and time again, Marshall got an acquittal. He became the darling of the people, famous beyond all others in courts. Newspapers were full of his doings.
How did he manage this? What original moves did he make? These are the issues which compel our attention, for, if we understand them, we can increase our own advocacy skills and, following Aristotle's belief [about democracy requiring the activity of the governed], have a greater effect upon our own world. To read his 'Politics' is a humbling experience. You can imagine it written last year. Get the OUP version.
Some at the bar detested Marshal's success. Resented it and obstructed his advancement. He was never appointed to the bench, though he wanted it. The judges feared him. Sir James Mathew hated him: found against Marshall in every one of twelve 'small briefs', p102! Mathew had never taken silk, never defended in a murder trial, elevated to the bench because he was, perhaps, rated an exceptional lawyer. Envious, then. Marshall sent a friend to meet Mathew at his club to talk him round and returned to report that: 'The judge says he hates you.' p 103. There was nothing Marshall could do. Thus, malice ruled the law that was supposed to be fair. Solicitors, learning that some judges were far from impartial in cases defended by Marshall Hall, declined to brief him. So the malice of the judges threatened to destroy his ability to perform his professional task, one at which he excelled.
Notice this: the whole of the judiciary knew this was happening and nothing was done about it! Yet they all knew that impartiality was the ideal they were all bent on promoting, inculcated from day 1, the foundation of the entire edifice of the law. A fair trial was presumed the right of every Englishman since Magna Carta, boasted about, the world over.
Mr Justice Avory was another hater of Marshall. P236-8. Avory, the judge in the Stella Maris case of Smith against his wife's lover, Derham, p233 told the jury that if Smith pulled the trigger intending to kill Derham, it was murder. If, intending to shoot himself, he had accidentally shot Derham, it was still murder. In other circumstances it was manslaughter. He then pointed out that Smith's account was untrue from many points of view. Then Avory said to the jury: 'I have told you the law of this country as it must be applied. If you apply any notion of your own you are violating the oaths you have taken.'
The jury acquitted Smith from shooting Derham. Avory then refused to release Smith and introduced a fresh charge: having a revolver and bullets with intent to endanger life (whether his own or someone else's). Smith had to plead guilty, with Marshall's agreement. Avory found him guilty of manslaughter and jailed him with hard labour for a year. 'In 1926, to a man of Smith's background, such a sentence was, as the judge well knew, ruin… He died almost destitute.' P238 Again nothing was done to redress this injustice.
Marshall became poor: no briefs came to him because he had no chance of winning. He sold his collections of jewellery, pottery, art because he had to. For months he weathered the storm and gradually some briefs came his way. In time, he recovered.
In 1894, he defended his first murder trial: Marie Hermann, a German woman with a blind daughter forced by necessity into prostitution who had entertained an apparently blameless old man, murdered him, put the body in a trunk and moved lodgings, having unexpectedly acquired some money. Marshall transformed the victim into a vicious, violent predator who liked prostitutes who always went out with £50 in his pocket; and the accused into a once respectable governess with a blind child but no means of support.
He began by apologising for the grim courtroom which he said was 'unfitted for the administration of justice and a positive disgrace to the richest municipality of the world' p71 which won the sympathy of the jury. Suddenly, Marshall's 'tall slim figure flung himself into frantic activity. No one had ever seen anything like this recreation of the victim's death struggle. He demonstrated first the savage old man pinioning Hermann to the ground, his hands round her throat, and then Hermann herself, with only her left hand free, seizing an imaginary poker which seemed actually to materialise before the jury's eyes and delivering the ghastly fatal blows. The balletic agility and elegance of Marshall's sportsman's body made the whole thing transfixing theatre…' p71. Then Marshall dealt with his client's profession. In the courts, the language reserved for prostitutes was 'sinners and degenerates, rotten, brazen, wanton, steeped in vice, daughters of shame.'
These women, said Marshall, are what men made them. P72
'Gentlemen on the evidence before you I almost dare you to find a verdict of murder.' Then he sat down. P72
'Catching sight of the sobbing woman huddled in the dock, the ringing peroration seemed to Marshall suddenly to be inadequate. He got to his feet again and uttered the words with which his name has ever been associated.
Look at her, members of the jury, look at her. God never gave her a chance. Won't you? Won't you?' p72
Sally Smith, KC has written a superb biography, revealing Marshall warts and all. You feel that you know him. He would charm you, give you presents, beat you at golf and bowl you out of the cricket field. But if he disagreed with you he could he could get very angry. Defending his clients made him violently passionate. When he felt judges were not giving his clients all they were due, he would dominate them challenge them fiercely, against all the customs of according judges respect at all times and, because of his fame, in time, they would cease to complain. This capacity for anger is the reason, probably, for his failed first marriage. He grew up with his sweetheart in the same street but she never could tell him she did not love him until after the wedding. The outcome was a disaster: his wife took up with a lover, became pregnant, ran away and died in childbirth due to the application of corrosive mercury.
Sally has shown that the key to Marshall's excellence as an advocate and orator is his understanding of the psychology of the jury. But his fearless attacks upon judges is part of it: he was able to win over the juries away from the judges who were likely to demand a very different response to the one Marshall requested. The law was always well out of step with the morality of society, forever advancing, despite the law. How could it be right for women who had been seduced and abused by men into giving birth, to have the additional trauma of trial and even death when, because of their poverty and helplessness, the child's death should have been laid at the door of the man who caused it?
Marshall had other advantages: he was the handsomest man at the bar, as well as one of the tallest (6ft 3, when the average then was 5ft 8). He had charm and went out of his way to help people, which caused him, fanned by the newspapers which were full of his doings, to be loved by the general populace. His anxiety and determination to do his utmost for his clients was important. Especially in murder trials which often resulted in hanging. It gave his advocacy great energy, passion and, being the under dog every time, on his own, facing the effects of press coverage which made his case seem hopeless. Yet time after time, Marshall saved the accused's life. That was a tremendous achievement of Marshall's: the press made money by selling newspapers. They did it by fomenting interest and they did that by interviewing the ordinary bystanders before the trial (no law against that then) and paying them for their stories, getting them to provide the case for the prosecution in advance of the trial. No wonder Marshall had his hands full when every mind in the court room was made up before he ever rose to defend it. The newspapers wanted sensation and were willing to pay for it because it sold newspapers. Made them a lot of money.
© William Scott, BA,BSc,MEd,FIMA,FSAScot