The firm of Gottlieb & Quibble had not been long established before
--quite by chance--a new vista of opportunity opened before us.
My partner had a wretched client who, not unlike many others, would
go to more pains and trouble to steal a dollar than it would have
taken him to earn twenty. This, I have noticed, is a general
peculiarity of lawbreakers. The man's name was McDuff and my
partner had defended him on several occasions and had got him off,
with the result that he was always hanging about the office and
asking if this and that were "within the law." One fine day he
was arrested on the charge of having obtained money by false premises
in an unique manner.
It appeared that he had learned through a certain bar-tender that
one Jones, a patron of the place, had but recently come into a
legacy of a couple of hundred dollars and, in connection therewith,
had imbibed so freely that he had become involved in a fist fight
with a gentleman by the name of Holahan and had done the latter
considerable facial damage. McDuff pondered upon these facts for
some time over his beer and then set out to find Jones--not a
difficult task, as the legatee was making a round of all the near-
by saloons and endeavoring to drink up his good fortune as rapidly
as possible. Overtaking him in a side street McDuff grasped him
roughly by the shoulder.
"Look here, Jones," says he, pretending to be an officer; "I have
a warrant for your arrest for committing a battery upon Thomas
Holahan. You must come along with me to the station-house."
"What! For me!" cries Jones in an agony of dismay. "Sure, I did
nothing to the man. You're not going to lock me up for that!"
"It's my unpleasant duty," answers McDuff. "An officer has no
choice in the matter. You must step along."
"Come, come!" replies Jones, pulling his money from his pocket.
"Here's a hundred and fifty dollars. Say you couldn't find me!"
"I would be taking a great risk," responds the supposed officer.
"Have you no more than that?"
"I have my gold watch and chain," returned Jones. "You can have
them and welcome--only let me go!"
The bargain was struck then and there and the transfer from Jones'
pockets to those of McDuff effected. Unfortunately, however, Jones
next day discovered that Holahan harbored no ill-will against him
and that the supposed officer was nothing of the kind. Rising in
his wrath, he in turn procured a warrant for McDuff and caused his
arrest and indictment. The trial came off and despite Gottlieb's
best efforts his client was convicted by the jury of stealing Jones'
watch, chain, and money by falsely representing himself to be an
officer of the law. The case went on appeal to the Supreme Court,
which affirmed the conviction, and there seemed no escape for McDuff
from a term in prison.
One evening Gottlieb and I got talking about the case among other
things.
"How is it," said I, "that the criminal law will step in and give
a man back his money when, under precisely the same circumstances,
the civil law will let him whistle?"
"What mean you by that?" asked my partner.
"Why," answered I, "the civil law will not settle disputes between
thieves, it will not enforce an equitable division of stolen
property, and it will not compel rogues to keep a dishonest contract
between themselves. Now this fellow, Jones, it seems to me, was
almost as bad as your friend McDuff. He tried to induce a man he
thought was a sworn officer of the law to violate his oath and
disregard his duty. Why should the criminal law do anything for
him? Why should it hand him back his money as if he were an innocent
and honest man?"
"It is an ingenious argument," replied Gottlieb, scratching his
ear; "and yet it is poppycock for all that. The criminal law is
to punish criminals. According to your reasoning, two wrongs would
make a right and two thieves one honest man. Would you let McDuff
go unpunished simply because he was clever enough to induce Jones
to try to break the law as well as himself? Why, any judge would
laugh you out of court on such a proposition."
"But," I retorted, "surely, if I gave you a hundred dollars for
the purpose of bribing a judge and you failed to accomplish your
purpose, no court would assist me to recover the money. 'Twould
be against public policy and _contra bonos mores_."
"Even so," answered my partner, "would it not be more _contra bonos
mores_ to let a thief go unpunished, once he had been arrested?
Take my word, Quib, there's nothing in it," insisted Gottlieb
warmly. "For instance, there is the crime against usury--a very
foolish law to be sure, but there it is. No one can commit usury
unless some one else participates in the offense by paying the
unlawful interest; but the usurer does not escape on that account.
Why, then, should the false pretender in our case?"
"I admit the force of your analogy," said I, "and I could easily
suggest others myself. Bribery, for instance; extortion and many
other offences, where the law does not refrain from punishing the
one because the other is equally guilty. But the cases differ in
that, in bribery, the briber is seeking to influence the acts of
an official; and, in extortion, the law imputes an element of force
which is supposed to overcome the will of the person paying the
money. I am not so clear on your usury. Still, I believe there
is a fighting chance to win the case on my theory."
"If you think so," grumbled Gottlieb, "you had better argue it
yourself before the Court of Appeals."
"Very well," said I. "Nothing will give me greater pleasure."
It was with some trepidation, however, that I went to Albany to
argue, before so august a body of judges, a proposition of law that
had in reality so little to commend it; particularly as I was
opposed in person by the district attorney of New York County--a
man of great learning and power of sarcasm. However, I found the
Court of Appeals much interested in my argument and had the pleasure
of hearing them put many puzzling questions to my opponent, in
answering which he was not always altogether successful.
Pending the opinion of the Court, which was not handed down for
several months, an incident occurred in our practice that may serve
to amuse the reader if not to illustrate the dangers of ignorance.
We were engaged in a litigation in the United States District Court,
where the subpoenas for the witnesses are issued by the clerk to
the deputy marshals for service. Our opponent in the case was a
testy old member of the bar over sixty years of age and of the very
highest respectability and standing, who had several times refused
elevation to the bench and was regarded as the personification of
dignity and learning. Unfortunately his appearance belied his
position, for he was almost totally bald and his face was as weazened
and wrinkled as that of a monkey.
It so happened that we desired to have in court the following day
certain papers that were in his possession; and, in order that we
might be in a position to introduce copies of them in case he failed
to produce the originals, we secured what is called a _duces tecum_
subpoena for him--that is to say, a subpoena directing him to bring
with him--_duces tecum_--"bring with you"--the papers in question.
There had recently been appointed as a deputy marshal a very honest
and enthusiastic, but exceedingly ignorant Irishman named Hennessey,
who, prior to his advent into officialdom, had been employed at
heaving coal at a dollar and eighty cents a day. The clerk called
him into his office and handed to him our subpoena.
"Mike," he said, "here is a subpoena for Winthrop Van Rennsellaer"
--our worthy opponent. "It is a _duces tecum_. Understand?"
"Shure, I do!" answered Mike, wiping his mouth with the back of
his hand and taking the paper; for, though he had no idea of what
_duces tecum_ meant, he had no intention of disclosing the fact.
"It's important," continued the clerk. "Be sure and attend to the
matter at once."
"Lave that to me!" Mike assured him.
"Don't forget that it's a _duces tecum_," admonished the clerk as
Mike passed out of the door.
"Not on yer life!" replied the newly appointed deputy.
Outside, he found a fellow deputy, also newly appointed.
"Pat," said Mike, holding out the subpoena, "phat is the meanin'
o' thim two wurrds?"
His friend carefully examined the paper.
"'_Duces tecum_'," he repeated thoughtfully. "'_Dooces taycum_.'
They be Latin words meanin' 'take him alive or dead.'"
"Thanks," said Mike. "Trust me!"
And he started forthwith for Wall Street, where Mr. Winthrop Van
Rennsellaer's office was located. Having ascertained by inquiry
that his quarry was in, Mike pushed by the clerks and scriveners
in the outer offices and armed with the majesty of the law, boldly
forced his way into the lawyer's sanctum. Marching up to him, he
demanded in a loud voice:
"Are you Van Rennsellaer?"
The lawyer, exceedingly astonished, replied, with what dignity he
was able to assume under the circumstances;
"I am Mister Winthrop Van Rennsellaer."
"Come wid me!" ordered Mike.
"I shall do nothing of the kind!" retorted the lawyer, getting red
in the face.
"Y' won't, eh?" exclaimed the deputy; and, grasping Mr. Winthrop
Van Rennsellaer by his linen collar, he yanked him out of his chair
and, to the horror of the servile supernumeraries in the lawyer's
employ, dragged that eminent member of the bar through his own
offices, down the stairs, and into the street.
The lawyer protested loudly at the indignities to which he was
being subjected and a large crowd gathered, which for the time
being blocked Broadway. Mike, confident that he had the authority
of the United States Government behind him, exhibited his badge,
called upon the police to assist him in the exercise of his duty
and proceeded triumphantly to march Mr. Winthrop Van Rennsellaer,
hatless, up the street at the head of a large and enthusiastic
procession of interested citizens. From time to time Mike would
turn and call upon the crowd to disperse, at the same time announcing
in a loud voice that he had arrested his prisoner by an order of
the Government to take him alive or dead.
By this time the lawyer's little round head was glowing a bright
red and his legs almost refused to carry him. Once they had arrived
at the Post-office Building the mistake was quickly discovered and
Mr. Van Rennsellaer was set at liberty; but each and every United
States judge had to descend in his robes from the bench and implore
his pardon before the furious little lawyer would consent to call
a cab and return to his office.
I understand that he always believed that the whole thing was a
trick of Gottlieb's to humiliate him; and, indeed, some members of
the bar have suspected me of the same thing--entirely without
justification, of course. During the rest of his exceedingly
distinguished career one had only to mention the words _duces tecum_
in the presence of Mr. Winthrop Van Rennsellaer to deprive him instantly
of his composure; in fact, for a long time he abandoned appearing
in court and contented himself with nursing his dignity in his
office. I should add that the incident so affected his confidence
the next day in court that we won our case without difficulty.
But to return to the unfortunate McDuff. To my great astonishment
and still more so to that of my partner the Court of Appeals handed
down an opinion sustaining my contention and holding his client's
conviction to be illegal. That night Gottlieb and I, sitting in
his office, shook our sides with laughter at the idea of having
hoodwinked the greatest court in the State into a solemn opinion
that a rogue should not be punished if at the same time he could
persuade his victim to try to be a rogue also! But there it was
in cold print. They had followed my reasoning absolutely and even
adopted as their own some of the language used in my brief. Does
any one of my readers doubt me, let him read the report of a like
case in the forty-sixth volume of the reports of the Court of
Appeals of New York, at page four hundred and seventy.
Said the Court: "The prosecutor"--Jones--"parted with his property
as an inducement to a supposed officer to violate the law and his
duties; and if in attempting to do this he has been defrauded the
law will not punish his confederate, although such confederate may
have been instrumental in inducing the commission of the offence.
Neither the law nor public policy designs the protection of rogues
in their dealings with each other, or to insure fair dealing and
truthfulness, as between each other, in their dishonest practices."
(This sentence had been in my brief.) "The design of the law is
to protect those who, for some _honest_ purpose, are induced upon
false and fraudulent representations to give credit or part with
their property to another, and not to protect those who, for
_unworthy_ or illegal purposes, part with their goods."
"Why, Quib," quoth Gottlieb, "you are the discoverer of a new legal
principle. You will inaugurate a new field of human activity.
Generations yet unborn will profit by your ingenuity. From now on
every rascal in the land will set his wits to work trying to bring
his schemes within the scope of this beneficent opinion."
"Indeed," I replied, "however fine it may be for McDuff, I can
easily see that I have unloosed as many troubles as ever flew out
of Pandora's Box."
"Yes--but to our profit," he retorted, with a grin. "Don't forget
that. The inventors will all come flocking straight to us to get
them out of their difficulties--you may be sure of it!"
"'Tis extraordinary," I said, "what a multitude of opportunities
this new principle enunciated by the Court of Appeals affords to
a man of an inventive turn of mind. As I take it, all one has to
do is to induce another man to part with his money in the belief
that he is going to take a sharp advantage of some one else. For
example, let us suppose that I go to some person and falsely tell
him that I have a client serving a term in Sing Sing for burglary
who has confided to me the whereabouts of the secret hiding-place
of his loot. All that is necessary is some one to put up sufficient
money to cover the expense of transportation and excavation--and
it can be divided between us. For this purpose he intrusts me with
several hundred dollars, with which I make off. I have stolen the
money fast enough, but I can never be punished for it."
"Exactly!" exclaimed my partner. "And here is another idea that
is well calculated to appeal to almost anybody. It has just occurred
to me quite involuntarily while you were speaking. Many of our
clients want to know if they cannot send the judge, who is trying
the case, a present of some sort, or maybe loan him a little money;
and it is always distressing to be obliged to tell them--usually--
that it is quite out of the question; that it would only get them
into trouble. Of course, occasionally we let them send the judge
a box of cigars, _but always with the compliments of our adversary
--never our own_. Now this shows how readily persons who are mixed
up in lawsuits or other difficulties would be ready to put up their
money if they supposed the judge were going to get it. All you
need is some unscrupulous fellow to go up to one of our clients
and mention the fact that he is the judge's brother-in-law and is
in dearth of ready money. Can't you see the client digging up the
needful? He'd be stuffing it down our friend's pockets before he
got through speaking; and the whole thing could be done quite
openly, you observe, because, even if the client found out later
that he had made a mistake, the law would not help him."
"An excellent illustration," I answered, "of the uses to which a
legal decision may be put."
"Indeed, though," continued Gottlieb, "the scheme need by no means
by as raw as all that. It is enough if there be merely an _immoral_
or _improper_ motive that induces the victim to part with his money.
For example, if he but thinks that he can do a sharp trick to some
one else. Let us suppose that I pretend to have secret information
to the effect that certain property is really much more valuable
than the owner supposes it to be. I propose to another that--if
he will put up the money for that purpose--we shall buy the property,
leading the owner to suppose he is getting full value for it. Now,
if, to induce the latter to make the sale, it is agreed between us
that we make false or misleading statements as to the real value
of the property I do not see but that I would be perfectly safe."
"Safe?" I queried. "I don't understand. You would have bought
the property, that is all."
"My dear Quib," returned my partner, "you seem singularly dull this
evening for one of your brilliant parts. The point is that the
property really isn't worth anything. I am in cahoots with the
man who sells it; and we divide even!"
"Yes," I answered; "a dozen similar schemes could be worked like
that."
"A dozen!" cried Gottlieb, bounding enthusiastically out of his
chair and commencing to stalk up and down the room. "A hundred!
Why, there are endless ways in which it can be worked--and I know
the man to work them too!"
"Eh!" I exclaimed.
"I mean, who will undoubtedly avail himself of some of them," he
corrected himself. "Take this case: It is a crime under the law
to give back or rebate part of the premium on a life insurance
policy. Now many a man could be induced to insure his life if he
could get back the first year's premium. All you have got to do
is to tell him that you are an insurance agent and will give it
back--and then put the money in your own pocket, for he will have
given you the premium for an illegal purpose--that is to say, with
the idea of having it paid back to him contrary to law. Under the
decision he will have no chance to get you arrested."
"Never say that you are not a man of ingenuity yourself," said I.
I bade my partner good-night and walked slowly homeward meditating
upon the wonders of the law, but totally unconscious of what a
harvest was to be reaped from the seed I had sown so innocently.
It was but a short time after this that, happening to enter the
office somewhat unexpectedly one evening, I discovered Gottlieb in
animated conversation with a stockily built man of about forty
years of age, whose coal-black hair--by far his most conspicuous
feature--had been suffered to grow quite long and was parted evenly
in the middle, so that it gave him somewhat the appearance of the
hooded seal that was then on exhibition at P. T. Barnum's museum.
He had a good-humored face, jet-black eyes, and a familiar, easy
way with him that put one on a friendly footing at once.
"Hello! Quib!" exclaimed my partner. "I want you to meet my
friend, Charlie Billington."
"Delighted to meet you, Mister Quibble," cried the stranger, grasping
my hand. "Our friend Gottlieb knows me almost better than I know
myself--eh, Gottie? Between us we have turned many a trick."
"You mean that I have pulled you out of many a bad hole," retorted
Gottlieb.
"As you please," answered Billington good-temperedly. "But in any
event you are a splendid fellow at all times--and especially in
times of need."
"May I inquire your business, Mr. Billington?" I asked, curious to
identify my new acquaintance.
Billington winked at Gottlieb.
"How would you describe it, Mr. Lawyer?" said he.
Gottlieb laughed and shifted his cigar.
"Our friend Charlie lives by his brains," he replied. "He is an
inventor, a promoter, an artist. He has earned many a small fortune
by the simple use of a postage stamp. He can extract gold from
seawater or silver from pineapples. Incidentally, he is of a
scientific turn of mind and can rattle off the Morse alphabet as
deftly as any operator in the business. Occasionally he has, in
the interest of finance, tapped a wire."
"Tapped a wire!" Instantly I regarded Billington with a new
interest. So at last I had met one of those famous gentry of whom
I had so often heard!
"Never again, I fancy!" laughed Charlie. "My friend, you have
saved a lot of poor devils a deal of trouble. From this time on
none of us will ever need to tap wires. After this we shall only
_pretend_ to tap 'em."
"How so?" I inquired, dropping into a near-by chair.
"Why, under the new law," responded Billington--"the law of which,
I may say, you are the creator--we shall only have to induce some
innocent countryman to believe that he has heard the result of a
horse-race being sent over the wire in advance of the pool rooms,
and persuade him to turn over his roll for the purpose of betting
it on a horse that is presumably already cooling off in the paddock
and we can keep his money, for he has parted with it for an illegal
or an inimical purpose--to wit, cheating the bookies."
"Not with my sanction!" I retorted, somewhat aghast at the idea of
having paved a broad and easy path for the way of criminals.
"Tut, tut, Quib!" said Gottlieb. "You have nothing to do with what
use our friend here sees fit to put your law to. I have never yet
advised any man how to do an illegal thing. The most I have ever
done has been to show some of my clients how to do in a perfectly
legal manner that which had heretofore been unlawful."
"Yea, Gottlieb," remarked Billington. "And many things that before
were accounted faults have now, thanks to you, become virtues."
After Billington bade us good-night, Gottlieb said to me:
"Quib, the more I think of it, the more astonishing is the result
of this new doctrine of yours that has been sanctified by the Court
of Appeals. I do not for the life of me see how a seller of 'green
goods' can be prosecuted. The countryman comes to the city for
the purpose of buying counterfeit money at a ridiculously low
figure. He puts up his money and gets a package of blank paper
with a genuine one-dollar bill on top of it. What good will it do
him to appeal to the police? Has he not parted with his money
avowedly for a most wicked purpose--that of uttering counterfeit
bills?"
"I quite agree with you," I answered. "There seems to be no escape
from your result; and I, for one, do not see what is to prevent
New York from becoming the Mecca of all the thieves and rogues in
the country."
And such, indeed, it became. From this time on, until very recently,
the metropolis was the stamping ground of all the rogues who could
not earn a dishonest living elsewhere. With our friend Charles as
their sponsor, there sprang into being herds of "sick engineers,"
fake "wire-tappers," "green-goods" swindlers, and confidence men
of all sorts, who flourished safely under the protection of the
decision of the Court of Appeals in McDuff's case.
It was but shortly after this that one of Billington's friends
found himself in the toils of the police for having pretended to
sell a package of "green goods" to a yokel from the rural part of
the State. Charlie at once engaged me to defend him, asserting
that as I was responsible for the law it was my duty to apply it
for the benefit of our clients. So once again I entered the arena
in behalf of a principle that at heart I believed to be vicious
and even absurd, and once again, to my surprise and the delight of
my new clients, I triumphed. The Appellate Division reversed the
conviction that had followed the arrest and discharged the prisoner,
asserting that there was no longer any authority for holding him
if the McDuff case was to be taken as law.
Thus it was, by such unconscious steps, that I, the only son of a
clergyman, found myself--willy-nilly--a leader of the criminal bar.
Yet at no time during my career would I have exchanged places with
my honored parent or even with Mr. Tuckerman Toddleham, of Barristers'
Hall, Boston.