Van Buren, Edward Sandford, Daniel Lord, James T. Brady, the brothers David Dud ley and Stephen J. Field, the brothers David and John Graham, Henry L. Clinton, Lewis B. Woodruff, — who afterward died as Federal Circuit Judge, — Attorney-General Ambrose L. Jordan, and Wm. Curtis Noyes, — only three of whom survive. Their suc cessors in the art at the New York City Bar were undoubtedly William Fullerton, Joseph H. Choate, Robert J. Ingersoll, Clarence A. Seward, and Messrs. Root, Rollins, Coudert, James, Fellows, Cochran, Nicoll, Holmes, and Parsons. Of those in my list who have passed away, my best repre sentative of the art was, by all odds, David Graham, who can only be remembered by the later generation of the bar as author of a treatise on new trials. I select him as my model of a XX examiner. When he arose to cross-examine a hostile witness, he was like a duellist during the time when seconds were measuring the ground. Calm, suave, not exhibiting acer bity in look or tone, ready however, like a good surgeon, to use lancet or probe with full knowledge of the strength of the witness in muscles of prevarication, or of the exact situation of the nerves of the witness, Mr. David Graham's furtive study of the witness during the direct, as well as of the judge and jurors, as determining what effect the adverse testimony was hav ing upon them, presented a fine forensic picture. Nor did he, for a similar purpose, omit to ' scan auditors also. While the direct proceeded, he was an actor, who could conceal emotion, express surprise, doubt, or dissent, with a facial gesture in a timely glance at the jury. Like the duellist of the foregoing illustration, he was ever courtesy itself, never losing temper or presence of mind. He never committed the average error of counsel in arguing with the witness, or over the witness forestall summing up to the jury through some question. He reserved his appreciation of a telling or of a random shot of evidence, and his comment
of facial expression or of rhetoric, to his address to the jury. He never proposed to allow a witness to understand fully the motive of a question. If the witness was subtle, he fought him with suavity, and soon threw. him off guard. The too willing or rapid witness he encouraged into quicksands of contradiction or a slough of misstatement. He never assumed risks with questions that might bring hostile answers. He never threw bait or fly, as 't were into a stream of inquiry, unless he knew the stone under which lay the pike, nor where he suspected that trout were absent. One of his maxims to students was, "Never on cross-examination ask a question the answer to which in any one possible way might aid the other side and place your own side in jeopardy of dangerous comment." Like a keen marksman, he accommodated his aim of inquiry to the direction in which the wind was blowing. He did not waste time on immateriality for his client by crossquestions. He had studied the very bull's eye of his case, and tried to bury at times his own bullet in the very opening made by his adver sary's bullet. Like the French swordsman, he sought his adverse witness while off guard. His whole play was a standing rebuke to Old Bailey practitioners, who bullied wit nesses. He could be severe with hostile witnesses, but preferred to strike them with the gloved rather than the mailed hand. Another Graham maxim was : '• If your adverse witness becomes forewarned by your manner or address, he is likely to be aroused to greater antagonism of evidence." On one occasion a witness examined by David Graham was heard to say, " If any one testifying could be persuaded into perjury or contradiction or inconsistency, David Graham is the lawyer to accomplish it." He was throughout cross-examination a master in realizing the maxim ars celare artem. His especial aim was in the main to convert the hostile witness into a witness for his own client. This was a purpose even beyond
