A Barrister’s Privilege Against Physical Retribution for Hurt Feelings, 1821

From Saunders’s News-Letter, 27 November 1821:

COURT OF COMMON PLEAS

On Saturday a conditional order was obtained by Counsellor Blackburne, the plaintiff, against Mr Hines, an attorney, for sending a Gentleman to him in the Hall of the Four Courts, to demand an explanation of account of some misunderstanding between them, and for telling him that he must abide the consequences of a refusal.

Mr Sergeant Vandeleur, on behalf of the defendant, contended that the rule ought not to be made absolute, for that when all the circumstances were detailed, they did not amount to a proof of a delivery of a challenge to fight.

Mr Wallace, for the plaintiff, said that Mr Blackburne, in the progress of an argument in the court, lately stated a particular passage of an affidavit, and contrasted that with another affidavit, in consequence of which Mr Hines felt hurt, and got up to controvert Mr Blackburne.  Mr Hines, on the next morning, sent a Gentleman to Mr Blackburne for explanation,; Mr Blackburne’s answer was, that whatever had been stated by him was stated in the discharge of his duty, and that he meant Mr Hines no personal offence whatever.  With this explanation, Mr Hines’s friend was satisfied.      

However, Mr Hines sent another messenger to meet Mr Blackburne, who did meet him accordingly in the Hall of the Four Courts, to whom Mr Blackburne again mildly explained in the presence of a Gentleman of the Bar, everything that he had done and said upon the occasion of receiving the former message whereupon the messenger asked him ‘Sir, have you any objection to put on paper what you have spoken by way of explanation?’  Mr Blackburne declined compliance and the reply was ‘then sir you must abide the consequences,’ the clear meaning of the last remark was that if Mr Blackburne, as a barrister, did not think proper to give satisfaction for what may displease an individual for an occurrence, which in the discharge of his duty takes place in open court, then he must be whipped.  

Lord Norbury: At my advanced period of life, I find a difficulty in believing the possibility of such an occurrence.  Two days have scarcely elapsed since the trial, from whence this matter emanated, took place in this Court.  It is our duty to protect the Gentlemen of the Bar, as well as the Public, and we should be unworthy if we did not so so with firmness on an occasion such as the present. 

At the trial alluded to, the Attorney stepped forward in his robes, and although the court did not commit him, he did everything in his power to commit himself.  What! Is he to be the hero of his profession? To use ‘pens for pistols, ink for blood’?  If he is suffered to run this race, to outstrip our brethren thus, the rights of the bar are lost, we injure society as well as the advocates of a free country, if we strip them, or consent to their being stripped, of those privileges which I hope they will long maintain.    

The conduct of Mr Blackburne was conciliating and kind, he stated that he had meant no offence, and yet what amounts almost to a challenge was delivered in our very court.  If such is to be the history of our profession, what will be its effect?   What the impression made, when this matter goes forth into our country, many parts of which are at present in a miserably disturbed state.  We had better strip off our robes, and fling them to the winds, if we do not protect the gentlemen of the Bar.   How can an Irish Gentleman, practising at the Bar in Ireland for many years, tell me that what has been stated in this case is not a challenge to fight?  

With respect to the individual concerned, he has not uttered one word of contrition, no acknowledgment of shame, or a word by way amends honourable to that profession he has so inured.  This has been the most levelling and audacious attempt I ever heard of.  If had ever used a hasty expression, and one that ought to be apologised for, to any member of a profession I have ever loved and regarded, I should conceive it my duty to make to him the best amends in my power.  I will, as far as I can, protect Counsel, and use every means in my power to defend the privileges of the Bar.”

John Toler, Lord Norbury, Chief Justice of the Common Pleas in Ireland, 1800-1827, while not normally regarded as a sympathetic character, certainly stood up for the rights of barristers on this occasion!  His ruling above is characteristic of many of his judgments in containing a pun, a misquote, a self-deprecating comment about his age (a sprightly 81!)  and the sort of basic common sense which it is not necessary to be a lawyer to understand.  It also shows the value placed by judges of that era on their role as guardians of the public peace.

By the time of Lord Norbury’s retirement from the Bench six years later, Counsellor Blackburne was a Senior Counsel and King’s Serjeant at Law; he subsequently rose to the giddy height of Sir Francis Blackburne, Lord Chancellor of Ireland.

Mr Hines continued in practice as an attorney, becoming involved in at least one further physical dispute with a legal colleague (an attorney by the name of Boswell) on the steps of the Royal Exchange, Dublin, in 1835.  He later appears as a witness for Mr Robert Caldwell, in another great solicitor-barrister dispute of the early 19th century – the 1842 trial of Mr Caldwell, an attorney, for attempted violation by force of the wife of one of his briefed barristers.

Despite his reprehensible performance at the trial of Robert Emmet, we must thank Lord Norbury for formally recognising a barrister’s immunity from physical chastisement for offence caused to the other side in the discharge of our duty.  Without this, we would all be dodging beatings daily! 

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