Part 19

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.'

Sometimes consulting counsel will condescend to come into court to argue some disgustingly technical point about 'contingent remainders' or 'conveyancing.' On such occasions they evince unbounded contempt for the court, whose ignorance necessitates their presence. They will consume a whole day in dull and dry arguments, and send some judges to sleep, and those who remain awake after counsel's speech know less of the matter than they knew before; their brains are muddled with the legal rigmarole they have been listening to. The ecclesiastical counsel, who flourished in the days before the Probate and Divorce Courts were established, and from 'doctors' became 'counsel,' when called out into the general practice of the new system, were like so many owls suddenly brought into daylight, Sir Cresswell Cresswell so bedevilled them, and yet did it so politely that they could not complain.

Barristers had a good time of it in those old days of the Ecclesiastical Courts; the system of appeal was splendidly organized--the pettiest case could gradually be raised into one of great importance. There were courts throughout the country--royal, archiepiscopal, episcopal, decanal, sub-decanal, prebendal, rectorial, vicarial, and manorial. A case arises in any one of these courts, and the verdict being unsatisfactory to one of the parties, he appeals to the courts of the archdeacons and others, where the case is again heard, decided, and again appealed against. Poor men, who cannot go on for ever, must stop; but the party who can afford it goes to the Consistorial Court, where the whole process of hearing, deciding, and appealing is repeated. The third step is the Chancellor's Court; the fourth the Court of Arches. If the appellant still has some money left, he may go to the Privy Council--formerly to the Court of Delegates at Doctors' Commons, now abolished. This is no mere imaginary case. 'There was a case,' says Dr. Nicholls, 'in which the cause had originally commenced in the Archdeacon's Court at Totnes, and thence there had been an appeal to the Court at Exeter, thence to the Arches, and thence to the Delegates; and the whole question at issue was simply the question which of two persons had the right of hanging his hat on a particular peg. Fancy, what an army of barristers must have grown fat on this oyster!'

Success at the Bar comes to barristers in the most capricious manner. In this profession, as in many other pursuits, modest merit but slowly makes its way. Manners make the man, but impudence an advocate; without this latter quality even high connections and powerful patronage often seem ineffectual. Earl Camden, the son of Chief Justice Pratt, was called to the Bar in his twenty-fourth year, and remained a briefless barrister for nine long years, when he resolved to abandon Westminster Hall for his College Fellowship; but at the solicitation of his friend Healey, afterwards Lord Chancellor Northington, he consented once more to go the Western Circuit, and through his kind offices received a brief as his junior in an important case. His leader's illness threw the management of the case into Mr. Pratt's hands; his success was complete, and, after many years' lucrative practice, he was made Attorney-General, and three years after, in 1762, raised to the Bench as Chief Justice of the Common Pleas. In 1766 he was made Lord Chancellor, and raised to the peerage. The Earl of Eldon was on the point of retiring from the contest for clients, when fortune unexpectedly smiled upon him, and the records of the Bar are full of similar instances.