dignified appellation of 'cursitors'; and the counterfeiter of epilepsy
was a 'counterfeit crank'; money-dropping and ring-dropping were even
then old tricks of cozenage. Those who are acquainted with the modern
way of coney-catching, or the confidence trick--and who is not that
lives in London?--will know that the trick is now much simplified, and
yields much quicker and more satisfactory results--to the rogues. And
though, as we mentioned above, the trick has been exposed over and over
again, new fools are found every day to go into the trap. In fact, all
the old rogueries flourish at the present time, besides a few new ones
invented in this century. The holders of sham auctions; the
horse-makers, who, by means of drugs and other devices, make old horses
look as good as new till they are sold; the free foresters, who during
the night rob suburban gardens of roots and flowers, and sell them next
day off their barrows, all 'a-growing and a-blowing'; the dog stealers;
the beer and spirit doctors, who double and treble Master Bung's stock
by vile adulteration; the sellers of established businesses, which never
had any actual existence--all these are types of venerable institutions
which survive to this day, and not only survive, but flourish in
everlasting youth. The racing, betting and Stock Exchange swindles
perform their eternal merry-go-round, as they did when first started
several centuries ago, and the home employment deception still draws the
last shillings from the purses of poor people. And in most cases,
unfortunately, the law is powerless to reach the rogues; our foolish
humanitarianism, the interests of trade, the freedom of the subject to
contract, the technicalities and quibbles of legislative acts, and the
uncertainty as to their meaning, are at the bottom of all this failure
of justice. We ought to cease prating about the dignity of man--as if
there were any dignity in such paltry rogues!--and return, perhaps in a
modified form, to the drastic remedies of our forefathers, who
retaliated on those who made their neighbour suffer in health or in
purse by inflicting on them bodily pain and personal disgrace, and not
merely fining them, as is the custom with us. In the 'Memorials of
London and London Life,' extracted from the City Archives, and extending
from the years 1272 to 1419, will be found between twenty and thirty
condemnations to the pillory, the stocks, imprisonment, and being drawn
through the city on a hurdle, for deficiency of weight in bread, coals,
etc., for false measure, for enhancing the price of wheat, for
swindling, such as selling brass rings and chains for gold, for selling
false bowstrings, putrid meat, fowls and fish, and in these latter cases
the articles condemned were burnt under the noses of the culprits, as
they stood in the pillory. Even women had to undergo the punishment of
the pillory, one specially constructed for them being used on such
occasions; it was called the thewe.
At the commencement we referred to a Rogues' Lane at Bermondsey, but
there was another lane of that name in the very centre of London, Shire
Lane, which was close to Temple Bar, and pulled down when room had to be
made for the new Law Courts. The Kit-Kat Club held its meetings in that
lane; but in spite of the dukes and lords frequenting that club, the
lane never was considered respectable, and in the days of James I. was
known as Rogues' Lane, it being then the resort of persons coming under
that denomination. In the Bible public-house--a printers' house of
call--there was a room with a trap in it, by which Jack Sheppard, who
used the house, could drop into a subterranean passage which led to Bell
Yard. The Angel and Crown, another public-house in the same lane, was
the scene of the murder of a Mr. Quarrington, for which Thomas Carr and
Elizabeth Adams were hanged at Tyburn. One night a man was robbed,
thrown downstairs and killed in one of the dens of Rogues' Lane. Nos.
13 and 14 were bad houses; Nos. 9, 10 and 11, where thieves used to
meet, was known as 'Cadgers' Hall'; Nos. 1, 2 and 3 were houses of
ill-fame, and there existed a communication with the house No. 242,
Strand, through which the thieves used to escape after ill-treating
their victims. In Ship Yard, close to Shire Lane, there stood a block
of houses which were let out to vagrants, thieves, sharpers, smashers
and other disreputable characters. Throughout the vaults of this
rookery there existed a continuous passage, so that easy access could be
obtained from one to the other, facilitating escape or concealment in
the case of pursuit. The end house of this block was selected for the
manufacture of bad coin, and was known as the 'Smashing Lumber.' Every
room had its secret trap or panel, and from the upper story, which was
the workshop, there was a draft connected with the cellar, to which the
base coin could be lowered in case of surprise.
It is astonishing, and shows us the hollowness of the pretence to
civilization and decency set up on behalf of the velvet-dressed, lace
and gold-bedizened aristocrats of those days, that persons, not only of
respectability, but of rank and title, could live in such close quarters
with thieves and vagabonds of the lowest grade. Yet, as already
mentioned, the Kit-Kats had their club in Shire Lane; in 1603 there was
living in it Sir Arthur Atie, in early life secretary to the Earl of
Leicester; Elias Ashmole also inhabited the lane, so did Hoole, the
translator of Tasso, and James Perry, the editor of the _Morning
Chronicle_, who died worth L130,000.
London in the last century, and even in this, was full of retreats for
criminals. The demolition of West Street, formerly Chick Lane, and of
Field Lane, so recent as to be still fresh in the memory of living
persons, brought many of them to light. The Dog, a low public-house in
Drury Lane, was known as the 'Robbers' Den'; in fact, the whole street
had a bad reputation, and is even now a disgrace to London. But beside
these private retreats, the rogues and villains of the past had their
public refuges, where even the officers of the law had to leave them
unmolested--the sanctuaries at Westminster, St. John of Jerusalem, St.
Martin's-le-Grand, Whitefriars and the Mint, and Montague Close in
Southwark, some of which retained their privileges to the middle of the
last century. The name Sanctuary, still given to a certain spot near
Westminster Abbey, commemorates the actual sanctuary formerly existing
in that locality, and the narrow street called Thieving Lane, now
demolished, received that name because thieves, on their way to Gate
House Prison, were taken through it, to prevent their escape into the
sanctuary.
It is said that when rogues fall out honest men come to their own again.
Yes, when their 'own' is still come-atable, but as a rule it is not;
rogues seldom keep what they gain by trickery--lightly earned, lightly
spent is the rule with them. Rogues are as great fools as are the fools
they cheat, and the fools at heart are rogues too, without the wit of
the rogues. The fool who is done out of his money or other property by
trusting a perfect stranger is so done because he fancies himself more
clever than the cheat, and hopes to beat him. The victim scarcely
deserves any pity, for it is only a case of diamond cut diamond. And
unfortunately, as we intimated above, honest men do not come to their
own again, when rogues fall out, or are detected. The rogue who has
cheated a commercial firm out of goods to the value of thousands of
pounds, which he immediately pawns for half they are worth, rushes off
to a turf tipster or bookie, and though his betting turns out lucky, he
cannot get his winnings from the said bookie, who resists payment on the
plea that the transaction was illegal. The rogues fall out, a lawsuit
is the result, the speculator loses his case, but the firm do not get
their money; that is irretrievably gone. Plenty of such cases happened
hundreds of years ago, and continue to happen to the present day, and
there are various resorts in the City and West End of London where it
might truthfully be written up, _Si sceleratos quoeris, circumspice_!
*XVII.*
*BARS AND BARRISTERS.*
The profession of a barrister is a curious one. Theoretically, he is the
champion and protector of right and justice; but, practically, he often
is but the hired advocate of wrong and injustice. It is only when he
has attained high distinction at the Bar that he can, like Serjeant
Ballantine, be independent enough to say that he will undertake no case
of the justice of which he is not fully satisfied. True, counsel is
assumed to base his arguments on behalf of his client on the
instructions he receives from the solicitor who employs him; yet he,
counsel, having had a legal education, and practice, too, cannot fail to
see the weak points, supposing there are any, in the case before him,
and the evidence adduced in examination and cross-examination must very
soon satisfy him as to the real merits of his case; hence we often see
counsel throwing up his brief. It is related in Laud's Diary that, when
he was standing one day near his unfortunate master, then Prince
Charles, the Prince said that, if necessity compelled him to choose any
particular profession, he could not be a lawyer, 'for,' said he, 'I
could neither defend a bad cause, nor yield in a good one.' By the
Roman laws every advocate was required to swear that he would not
undertake a cause which he knew to be unjust, and that he would abandon
a defence which he should discover to be supported by falsehood and
iniquity. This is continued in Holland at this day, and if an advocate
brings forward a cause there which appears to the court plainly to be
iniquitous, he is condemned in the costs of the suit; and if, in
consequence of this, a cause, just in itself, should not be able to find
a defender because of some strong and general prejudice concerning it,
the court has authority to appoint a counsel.
The universal opinion that advocates are ready to support injustice for
the sake of gain--that they will undertake more work than they can
possibly attend to--is of very ancient date. The Lord Keeper Puckering,
directing attention to the grasping habits which too frequently
disgraced the leaders of the Bar, observed: 'I am to exhort you also not
to embrace multitude of causes, or to undertake more places of hearing
causes, than you are well able to consider of or perform, lest thereby
you either disappoint your clients, when their causes be heard, or come
unprovided, or depart when their causes be in hearing.' That the
administration of justice is much improved in modern days is
sufficiently proved by the fact that now no judge would be allowed, as
he was in the closing years of the fourteenth century, to give opinions
for money to his private clients, although he was forbidden to take gold
or silver from any person having 'plea or process hanging before him.'
It is, in fact, still a moot point, and, we suppose, always will be,
what lengths an advocate may go to, consistently with truth and honour,
in pleading the cause of a client whom he knows to be guilty. The
conduct of Charles Phillipps, in defending Courvoisier, has always been
condemned. Courvoisier did not confess his guilt to his counsel, but
admitted to him that he had made away with some plate from Lord William
Russell's house immediately after the murder. This was damning
evidence, but the communication was made by the prisoner not to admit
his guilt, but merely to prepare his counsel to deal with the evidence.
But Phillipps made a remark in his speech which the Bar considered as
unjustifiable. He said: 'Supposing him to be guilty of the murder,
which is known to God Almighty alone, I hope, for the sake of his
eternal soul, he is innocent.' These words were not only in bad taste,
but conveyed a positive falsehood. Counsel's part is to lay before the
jury possibilities, and not his own opinion of the prisoner's guilt or
innocence; and a strange feature of the etiquette of the Bar is that if
counsel is prepared to throw up his brief because he sees his cause to
be bad, yet he is bound, after accepting the retainer, to continue
defending the case if his client insists on his doing so. He may then
be compelled to go on arguing on behalf of a man whom he knows to be a
thorough scoundrel.
Barristers were first appointed by Edward I. about 1291, but there is an
earlier mention of professional advocates in England, who were of
various ranks, as King's or Queen's Counsel, Serjeants, etc. At more
recent dates we read of utter or outer and inner barristers; these terms
appear to have been derived from local arrangements in the halls of the
Inns of Court. In the public meetings held in these halls, the benchers
and readers--superior to barristers--occupying the dais, which was
separated by a bar, some of the barristers who had attained a certain
standing were called from the body of the hall to the bar--that is, to
the first place outside the bar--for the purpose of arguing doubtful
questions and cases, whence they probably obtained the name of outer
barristers. The course of legal education consisted principally of
readings and mootings. The readings were expositions of important
statutes. These readings being accompanied by costly entertainments,
especially at Lincoln's Inn, their original object was forgotten in the
splendour of the tables, for which the benchers were severely
reprimanded by Charles I. The readings were eventually suspended, but
were revived about 1796. Mootings were questions on doubtful points of
law, argued between certain of the benchers and barristers in the hall.
There was also another exercise in the Inns of Court, called
'bolting'--not gastronomically--which was a private arguing of cases by
some of the students and barristers. The term was probably derived from
'bolter,' a sieve, with reference to the sifting of cases.
As to the fees paid to barristers, how they have altered! In 1500 the
Corporation of Canterbury paid for advice regarding their civic
interests 3s. 4d. to each of three Serjeants, and gave the Recorder of
London 6s. 8d. as a retaining-fee. Five years later Mr. Serjeant Wood
received a fee of 10s. from the Goldsmiths' Company. In the sixteenth
century it was customary for clients to provide food and drink for their
counsel. In a bill of costs in the reign of Edward IV. we find:
s. d.
For a breakfast at Westminster to our counsel . 1 6
To another time for boat hire and breakfast . . 1 6
In like manner the accountant of St. Margaret's, Westminster, entered in
the parish books: 'Paid to Roger Fylpott, learned in the law, for his
counsel given, 3s. 8d., with 4d. for his dinner.'
In Elizabeth's reign, and during the time of her successors, barristers'
fees showed a tendency to increase. Counsel then received 20s. fees,
though 10s. was the usual fee. A ten-shilling piece was then called an
'angel,' whence arose the witty saying: 'A barrister is like Balaam's
ass, only speaking when he sees the angel.' When Francis Bacon was
created King's Counsel to James I., an annual salary of L40 was assigned
to him; but at present the status of a Q.C. is simply an affair of
professional precedence, to which no fixed emolument is attached. But
Francis Bacon, though he received as his official salary L40 only, made
L6,000 in his profession; other King's Counsel earned even larger sums
in fees. But the barristers were not all greedy. In the days of Sir
Matthew Hale, professional etiquette permitted clients and counsel to
hold intercourse without the intervention of an attorney. When those
who came to Hale for his advice gave him a sovereign, he used to return
half, saying his fee was 10s. When appointed arbitrator, he would take
no fees, because, as he said, he acted in the capacity of a judge, and a
judge should take no money. If he took bad money, as he often did, he
would not pass it on again, but kept it by him. At last he had a great
heap of it, and his house being once entered by burglars, this
accumulation of bad money attracted their attention, and they carried it
off in preference to other valuables, fancying that this must be the
lawyer's hoarded treasure.
Readers who wish to know in what estimation lawyers were held in the
seventeenth century should study the pamphlets and broadsides of the
Commonwealth, which show how universal was the belief that wearers of
ermine and gentlemen of the long robe would practise any sort of fraud
or extortion for the sake of personal advantage. How happy we are to
live in this century, when the legal profession is in a state of high
purification! It does, indeed, sometimes surprise an outsider that so
many barristers should be necessary to carry through one case--it looks
as if they were brought in merely for the benefit of the lawyers; but,
in justice to the profession, let us say that this is not so.
Barristers have their special gifts, and a long and involved case brings
them all into play to the advantage of the client. One man has
unrivalled powers of statement; another is sound in law; another excels
in cross-examination; another in reply; another has the ear of the
court, or is all-persuasive with the jury. A barrister, to be
successful at the Bar, needs, indeed, many qualifications. Lord
Brougham states that Mansfield's powers as an advocate were great; he
possessed an almost surpassing sweetness of voice, and it was said that
his story was worth other men's arguments, so clear and skilful were his
statements. Concerning Lord Erskine, another famous debater in the
forensic lists, juries declared that they felt it impossible to remove
their looks from him when he had riveted and, as it were, fascinated
them by his first glance; and it used to be a common remark of men, who
observed his motions, that they resembled those of a blood-horse--as
light, as limber, as much betokening strength as speed. His voice was
of surpassing sweetness, clear, flexible, strong, less fitted, indeed,
to express indignation or scorn than pathos. Lord Sandwich, First Lord
of the Admiralty, having brought an action for libel against persons who
had charged him with having appointed landsmen as Greenwich pensioners
to serve his own electioneering purposes, Erskine undertook the defence,
and such was the effect of his speech that, before he left the court,
thirty retainers were presented to him. Fortune comes to those who can
wait. Lord Ellenborough first distinguished himself as the leading
counsel for Warren Hastings, and soon after rose to the head of the
Northern Circuit; Lord Brougham attained his subsequent position by his
defence of Queen Caroline.
But counsel must not only be able to expound his case clearly, bringing
into prominence all its favourable points, and effacing or putting out
of sight all those of an opposite character, but he must also be
observant and quick enough on the spur of the moment to take advantage
of any rift in his opponent's flute, of any weakness in his argument; he
must be sharp in dealing with the plaintiff, supposing he is for the
defendant, and especially so with his witnesses. He should, in civil
cases, by skilful cross-questioning, entrap the principal or his
witnesses into damaging admissions and contradictions. The following
case, if not _vero_, is _ben trovato_ to illustrate our meaning. A man
brought an action against a coach proprietor, for having by the
carelessness of the latter's servants suffered bodily hurt, to wit, been
thrown from the coach on to the ground, the hind wheels of which passed
over his body, and injured his chest and lungs. In his
examination-in-chief he testified to these facts. Then the defendant's
counsel took him in hand. As the plaintiff was about to leave the box,
'One moment, my friend,' said counsel quite blandly. 'According to the
evidence you have just given, you obviously have suffered much; your
voice is gone, you say?'
'Yes, sir; I cannot speak above a whisper.'
'Very sad. The coach, you say, gave a sudden lurch backwards, and thus
threw you off the hind seat under the coach wheels? Were you sitting or
standing just then?'
'Well, I was standing up just then.'
'What made you stand up whilst the coach was in motion?'
'Well, you would have stood up had you been there.'
'Just answer my question; never mind what I should have done.'
'I don't know why I should answer this question.'
The judge pointed out to him that he must answer it.
'Well, I wanted to look at a pretty girl who had passed the coach; you
would have done so.'
'Possibly.' Counsel might have given him a sharper reply, but he did
not want to lose his hold over the witness by riling him. So he went
on: 'Possibly. And then, like the gallant gentleman you are, you kissed
your hand to the lady, and then the accident happened?'
'That's about it,' innocently replied the plaintiff.
'That's how it happened,' said counsel, turning to the jury.
And then, turning to the plaintiff again: 'And the coach-wheels passing
over you broke no bones, but ruined your voice, which we all can hear is
very weak; this must be a sad affliction, for you especially, because I
am given to understand that you were before this accident a famous
singer at free-and-easies and other convivial meetings, and made much
money by your voice?'
'That's the fact,' hoarsely whispered the plaintiff.
'Very sad. I am told your voice was not only melodious, but very
powerful. Perhaps,' continued counsel in the most insidiously
flattering tones, 'you might give his Lordship and the jury a specimen
of what your voice was before this unlucky accident.'
And the fool, entrapped by counsel's apparent sympathy and the petty
vanity clinging to all singing men to show off, actually broke forth
into a rollicking drinking song, which shook the walls of the building.
Thereupon counsel asked for a verdict for his client the defendant, and
for costs, and got the first, if not the second.
The terms barrister and counsel are often used indiscriminately; every
barrister is a counsel, but not every counsel a barrister. There are
barristers whose names are in everybody's mouth, and who earn their
thousands a year; there are counsel unknown to the public, who never, or
only under peculiar circumstances, appear at the Bar, but who are well
known to the legal profession, and make more than twice as much as the
barrister practising at the Bar; they are 'consulting' counsel. When you
go to a joiner and tell him to make you a cabinet, he takes your order,
and sets about making the piece of furniture you want; he does not say
that, as such an article is not one he ever heard of in his trade, he
will go and learn from someone more experienced than himself how to
execute your order, and that you will have to pay for his improving
himself in joinery. But if you go to your lawyer with a case which is
not of the most usual description, he informs you that he must have
counsel's opinion, for which you have to pay from two to five guineas,
to improve your lawyer's legal knowledge. And he sends a number of
questions to a 'consulting' counsel. Now, as every lawyer of any
standing has in his library all the legal handbooks and reports of cases
which are the consulting counsel's only guides, the lawyer might as well
look up the precedents himself, but that would not be etiquette, nor so
profitable all round, and so the more expensive method must be followed.
The consulting counsel sits in his chambers as the soothsayers of old
sat in their temples, whence, like them, he sends forth oracular
utterances as obscure and ambiguous as those of the ancient mummers, and
straightway solicitors and clients feel relieved of all anxiety: they
have counsel's opinion and their case is as good as won. For their
counsel's opinion is favourable, or, at all events, this is the
interpretation they put on it, though counsel's opinion on the same case
on the other side reads the very reverse. Should it so happen that on
the day in which counsel has given his opinion a case should be decided
in a law-court, which shows that his opinion is not worth a rap, will
counsel rush off to the lawyer to tell him so? Not he; he is not going
to admit that he is fallible. And he will not give his opinion on the
same case twice. A lawyer's clerk having obtained such an opinion from
counsel, and passing a pub, where he had agreed to meet a friend of his
to settle a little betting transaction, left the opinion in the omnibus
in which he had come, and did not discover his loss till it was too late
to go to counsel again the same day. So he went the next day, prepared
to pay out of his own pocket for another copy of the document. Counsel
honestly said: 'I could not do that, my friend, for to-day I might give
you an opinion totally opposed to the one I gave you yesterday, which
would be awkward if the first should turn up.'