1* 
 
 A, B.mfi^on, 
 
^nrn^U ICam ^rl|onl Etbrarg 
 
KD 358.M2™" ""'™"»1' Library 
 
 iiMiMiiiSfeStehes / 
 
The original of tliis book is in 
 tlie Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924021861103 
 
LEGAL SKETCHES. 
 
LEQAL 
 
 SKETCHES 
 
 BY 
 
 ALFRED B. MAJOR 
 
 SOLICITOR 
 
 Sir Man of Lawe,' quod he, ' so have ye blisse 
 Telle us a tale anon, as forward ys.' 
 
 CHAUCER. 
 
 
 MONTREAL 
 
 A. PERIARD, LAW PUBLISHER 
 
 2 1, 23 6^ 25 St James Street 
 
 1887. 
 
Enteked according to act of Parliament, by A. Pekiakd, in tlie year 
 of Our Lord One thousand eight hundred and eighty-six, in the 
 office of the Minister of Agriculture. 
 
PREFACE. 
 
 The following sketches are republished by permis- 
 sion from the Albany Law Journal, the American Law 
 Review and the Central Law Journal, of St. Louis. It 
 will be readily perceived that I make no pretence of 
 adding to any one's stock of legal lore. " Whoever 
 " goes in quest of knowledge, let him fish for it where 
 " it is to be found ; there is nothing I so little profess." 
 My only object has been to amuse an occasional leisure 
 hour, and if my reader shall say that this end has been 
 in any measure attained, I am content. 
 
 Alfred B. Major. 
 
 Montreal, Dec 7, 1886 
 
TABLE OF CONTENTS. 
 
 Reminiscences 
 
 In Westminster Hall i 
 
 The Temple Church 4 
 
 At Assizes 8 
 
 At Guildhall 14 
 
 Sentenced to Death 19 
 
 An English County Court 23 
 
 Odds and Ends 27 
 
 An Articled Clerk's Day in London . . ; 31 
 
 A Day in a Country Solicitor's Office 36 
 
 My First Case 41 
 
 The Great Red Pepper Case 44 
 
 How Mr. H became a ] udge 51 
 
 Old Cases Revived. 
 
 A Feudal Law Suit 56 
 
 A Legal Romance 59 
 
 A Forgotten Tragedy 67 
 
 The Case of the Nine Members 76 
 
 The King's Trial 83 
 
 The True Story of Ophelia 93 
 
 The Trial of Lords Warwick and Mohun 103 
 
 Miscellaneous 
 
 Law in Quebec 112 
 
 The English Solicitor 117 
 
 A Short Plea for a Code I2I 
 
 On Easements 126 
 
 Shakespeare's Lawyer* 130 
 
 Two Legal Pictures. 13S 
 
 A Writ of Elegit. . . . i39 
 
 The Old London Bankruptcy Court 143 
 
IN WESTMINSTER HALL. 
 
 IN WESTMINSTER HALL. 
 
 In my day the most conspicuous figure in Westminster 
 Hall was Lord Chief Justice Cockburn. He was a 
 little old man, with the most intellectual face I have 
 ever seen — high, broad forehead, clear, brilliant eyes, 
 and a most musical voice. His detractors said he was 
 too fond of displaying his own powers, and too ready 
 to take a strong view of one side of a case, but if there 
 was some little foundation for these complaints, none 
 could deny his rapidity of apprehension, clearness of 
 thought and expression, and never-failing courtesy. 
 His very faults arose from his desire to do justice. He 
 could not sit on the bench a dummy, and see the weaker 
 made to appear the better reason to a befogged jury. 
 Cockburn was generally admitted to he. facile princeps 
 in the strongest Queen's Bench Court that England has 
 had for many years. 
 
 His coadjutors were Blackburn, Lush, Mellor, Quain 
 and Hannen. Blackburn, a master of the common law, 
 profound and exact, but justly unpopular with the bar 
 for his bullying tendencies and merciless treatment of 
 unknown juniors, a fault the more inexcusable in one 
 who had himself been promoted from obscurity to the 
 bench. Lush, a gentleman really beloved by all who 
 practised before him, modest and unassuming, but 
 
WESTMINSTER tiALL 
 
 withal having a quiet dignity which stood him in fal* 
 better stead than his colleague's sneers and impertinences» 
 Mellor, a sound, steady, thorough lawyer, rather prolix, 
 but always equal to his work, and Quain and Hannen, 
 both men who wanted years rather than ability to make 
 them equal in weight with their more prominent 
 brethren. 
 
 Outside the Queen's Bench the two best known and 
 ablest judges were Brett and Bramwell. Brett was 
 reputed the best man on the bench for a shipping of 
 commercial case, and Brahiwell had a fame all his own 
 for strong common sense, and a roUgh, pithy way of 
 putting things. Perhaps no judge was a more general 
 favourite than Bramwell, both with the bar and the 
 public, and none cared less for popularity. Then there 
 was poor old Kelly, the chief baron, the wreck of a 
 splendid advocate, now capable of nothing but "words, 
 words, words." 
 
 In the equity courts, which, by a legal fiction we may 
 treat as being at Westminster, where indeed they sat 
 once every term, Romilly's somnolent tendencies were 
 still an unforgotten jest, and his great successor, Jessel, 
 was commencing that magnificent but too short lived 
 career which remains the wonder and admiration of the 
 English bar. Malins, an able lawyer, but a peppery and 
 undignified judge, was constantly kicking up his heels, 
 and sedulously kept up the title of his court as the 
 " Chancery Bear Garden." Still he got through a heavy 
 list every term, and has contributed no few well con- 
 sidered decisions to modern equity jurisprudence. 
 
 In appeal, James and Mellish, the inseparable twins, 
 
WESTMINSTER HALL 
 
 delivered their constantly unanimous judgments, and 
 James carried to its extreme the conversational style of 
 argument, much to the bewilderment and disgust of the 
 less ready members of the bar. Mellish generally con- 
 fined his share in the spoken labors of the court to the 
 words " I assent," invariably following his colleague's 
 judgment. Notwithstanding these apparent defects, the 
 decisions of this court always carried great weight, and 
 were seldom reversed by the lords, both the lords justices 
 being well known as lawyers of unexceptionable learning 
 and ability. 
 
 The House of Lords itself, I only saw once in legal 
 session. Jessel, then solicitor-general, was delivering 
 his famous argument in the Mordaunt divorce case. 
 Benjamin, if I remember rightly, was his opponent, and 
 his little figure appeared to be utterly swallowed up in 
 the full-bottomed wig which it is de rigueur to wear 
 before their lordships. On the woolsack was the chan- 
 cellor in lonely majesty. Immediately before him were 
 three or four common-law judges, wearing their huge 
 wigs with an air of sulky resignation, and on the benches 
 around in ordinary civilian dress were the law lords, 
 Hatherly, Chelmsford, Selborne, and one or two others 
 whom I have forgotten. The whole scene was strangely 
 like morning service in an ancient cathedral — the full, 
 sonorous tones of Jessel — the sacrificial vestments of the 
 judges, and the great spaces of blank emptiness in the 
 gorgeous chamber, partially lit up in many colours by 
 the morning sun struggling through the stained glass, 
 whilst the law lords themselves, in their lounging atti- 
 tudes and evident jauntiness, suggested the little group 
 of dilettanti always to be found around the choir waiting 
 for the anthem. 
 
THE TEMPLE CHVRCH- 
 
 THE TEMPLE CHURCH. 
 
 After a few years' absence from London it is hardly 
 safe to assume the present existence of any old land- 
 mark, but we hope the much decorated barber's shop 
 in Fleet street, just within Temple Bar, has escaped the 
 fate of its better known neighbour, the old Bar itself, 
 and still remains with its bold inscription informing the 
 passer-by that here once stood the palace of Henry 
 VIII. A second Elia would find matter for an essay 
 in such an instance of the irony of history, but the 
 mantle of Elia, alas ! has not fallen upon any successor, 
 and our purpose is not to moralize, but to turn once 
 more, as in the happy days of yore, down the archway 
 under the shop, and descending the flight of steps, to 
 enter the ancient and solemn portal of the Temple 
 church. What an airy architecture have we here ! How 
 original and striking the effect of the old octagon chapel 
 — of which the first stone was laid by an eastern patriarch 
 in the early crusading days — opening into the younger 
 but still ancient oblong, forming now the principal 
 building ! Around us lie the crusaders themselves, 
 with legs crossed, and their great swords by their sides, 
 while over our heads the quaint gargoyles show the 
 exuberant wit of monastic fancy. How some old fellow 
 
THE TEMPLE CHURCH 
 
 must have chuckled to himself when he knocked off 
 this poor sinner's head, with the devil actually eating 
 his ear! Truly Rabelais was not without predecessors 
 who write their mocking tales in stone. 
 
 But we pass through the barrier and enter the main 
 building. Our lady companions are ushered to their 
 separate seats at the side, and we, bachelors for the 
 nonce, must take our places in the middle pews, for the 
 separation of the sexes still remains a custom of the 
 church, handed down from the old monastic times. 
 A chorister boy is busy arranging music books. A 
 distant strain of rehearsal reaches us from the outer 
 buildings, and we may therefore safely conclude that 
 we have a quarter of an hour to spare before service 
 commences. We notice the clean spring of the arches 
 from the darkly glistening, many columned pillars, the 
 rich, soft colours of the roof, the purple windows, the 
 quiet, unobtrusive completeness of the whole building, 
 and we admit that the Honourable Societies of the 
 Inner and Middle Temple have indeed known how to 
 build to God a church worthy of their old and noble 
 guild. We recall, too, the many famous divines that 
 have preached here, from the sad and serious Hooker, 
 the stately periods of whose " Ecclesiasticalpolity " still 
 delight the student of Elizabethan literature, down to 
 the present distinguished master, C. J. Vaughan, whose 
 sermons are a model of cultured power. 
 
 Even this afternoon we notice in the congregation 
 many a famous man. Yonder, pathetic in his blindness, 
 sits the beloved Sir John Karslake, and next to him is 
 Sir Thomas Chambers, recorder of the city, whilst just 
 behind them, also amongst the Benchers of the Middle 
 
THE TMMPLE CHURCH 
 
 Temple, we espy the ruddy countenance of the Prince 
 of Wales. Over against them, on the Inner Temple 
 side, sits old Lord Chelmsford, erst chancellor, close to 
 his successor on the wool-sack, Cairns, and further on, 
 Selborne, who in his turn has ousted Cairns, is cheek 
 by jowl with the last of the chief barons, Sir Fitzroy 
 Kelly. The Temple congregation is probably the most 
 intellectual and distinguished in London, and it is no 
 ordinary ordeal a preacher here has before him. 
 
 Now let us see what music we are to have, and whilst 
 we are examining our anthem and church books we do 
 not fail to note the winged pegasus stamped thereon, 
 the emblem of the Inner Temple. We are just deep in 
 the learned examination of cathedral music, which pre- 
 cedes the chorales, when the melodius thunder of the 
 organ awakes our attention. Nor must we omit to notice 
 this famous instrument peculiar in having six black 
 keys to each octave, to wit, a B minor distinct from the 
 D sharp, built by Smith, the father of English organ 
 building, in tempore Charles II. The construction there- 
 of was a subject of competition between the aforesaid 
 Smith and the then equally renowned Renatus Harris. 
 Both rivals erected an organ in the church, and the 
 cognoscenti of the day were at a loss to decide which to 
 select, till ultimately the choice was left to Chief Justice 
 Jeffreys of bloody Assize infamy, who pitched upon the 
 one which, greatly augmented and improved, now 
 delights us with its soft fullness of tone. For many a 
 year has Hopkins, the present organist, to whom the 
 English church is indebted for some of its most beauti- 
 
The temple church 
 
 ful services and anthems, presided at its keys, and long 
 may he remain an institution of the Temple. 
 
 And now the choir and clergy enter, and evensong 
 commences. We will not dilate upon the well-matched 
 Voices of the boys, the harmony of the chorus, and the 
 sweetness of the solos, but the most unmusical hearer 
 cannot but be struck by the exceptional effect of the 
 hymn singing in which the voices of the whole congre- 
 gation join. Each person has the tune before him, and 
 the majority of the worshiprers being sufficiently 
 skilled in music to take their parts, the result is a grand 
 volume of harmonious sonnd. The preacher this after- 
 noon is the reader, Ainger, a quiet scholar, whose 
 thoughtful cogent discourses have in large part remained 
 in our memory [a memory not to prone to retain ser- 
 mons], even after the laps of years. The pulpit candles 
 throw into strong relief his pale and wasted face, whilst 
 the rest of the church is gradually shrouded in gloom, 
 through which his well modulated voice sounds with 
 strange effect, and it is with almost a start that we rise 
 at the Ascription, and receive the peaceful Benediction. 
 Soon we are out in the dark and foggy streets, amongst 
 the noise and rattle of the city, from which we have 
 escaped for two quiet hours, and in our walk home-ward 
 Milton's noble lines come into our minds as a summing 
 up of the afternoon : 
 
A T ASSIZES 
 
 And let my due feet never fail 
 
 To walk the studious cloister's pale, 
 
 And love the high embowed roof, 
 
 With antic pillars massy proof ; 
 
 And storied windovcs richly dight. 
 
 Casting a dim religious light ; 
 
 There let the pealing organ blow 
 
 To the full voiced quire below. 
 
 In service high and anthem clear, 
 
 As may with sweatness thro' mine ear 
 
 Dissolve me into ecstasies. 
 
 And bring all heaven before mine eyes. 
 
 AT ASSIZES. 
 
 Of all the pleasant places that are studded throughout 
 England, commend us to the " ever faithful city," beau- 
 tiful Worcester, as the model of an Assize town. With 
 its vast cathedral, ancient even in the days when King 
 John was laid to rest therein, its queenly river, its broad, 
 grassy race-course, its old rookeries, its modern factories, 
 it combines in an unusual degree the excellence of the 
 past and the present, and when we add to these attrac- 
 tions, an abundance of good hotels, and Assize courts, 
 large and well ventilated, it may be easily understood 
 why we are speeding our way down there this morning 
 to attend Assize. Dirty Stafford is nearer to our own 
 district, but there the calendar is always crowded and 
 the courts are not fit to breathe in. 
 
AT ASSIZES 
 
 Arrived at Worcester, we find ourselves ahead of the 
 judges whose train is half an hour late, and, as nothing 
 can be done till they arrive, we secure our quarters at 
 the " Hop-pole," and stroll down to the cathedral, to 
 which we know the judges will straightway proceed, 
 both their lordships being true sons of the church, and 
 sure to attend the Assize sermon. Half an hour quickly 
 passes in the familiar aisles, and then we hear the blare 
 of trumpets outside, the great doors swing slowly open, 
 the organ peals out the National Anthem, and Her Ma- 
 jesty's judges, in all the pomp and ceremony of state, 
 accompanied by the high sheriff and his crew, pass up 
 the broad nave, enter their stalls in the choir, and 
 morning service begins. After the Te Deum and the 
 anthem we .make our escape, having no mind to listen 
 to the string of platitudes which some reverend and 
 rusty canon is about to inflict on his unfortunate au- 
 dience. We repair to the Shire Hall, and pass the time 
 in badinage with our confreres already there, till at last 
 the judges come from church, go on the bench and 
 " open the commission," a mystic ceremony performed 
 with much antique solemnity, and supposed to be essen- 
 tial to the validity of all the proceedings at the Assize. 
 No sooner is the commission opened than the minor 
 officials begin business and we are at liberty to enter 
 cases. After a little delay we get our cause favora- 
 bly placed on the list, and we have next to deliver 
 briefs. Mr. Matthews, Q. C, whom we have taken the 
 precaution to retain two months ago, lodges as usual in 
 the quiet abode of the widow Dunn (all hotels are, or 
 were, at the time of which we are writing, tabooed to 
 the barristers on circuit), and there we deposit his bulky 
 brief, with its little endorsement : 
 
10 AT ASSIZES 
 
 " Mr. Matthews, Q, C So guas [i] 
 
 Consultation, ... . $ guas. 
 
 55 guas. 
 
 With you : 
 
 Mr. Dryasdust, 
 Mr. Pepperemwell. " 
 
 The other briefs vary only in the lesser amount of the 
 fees marked thereon, and are similarly left at the 
 learned gentlemens' respective lodgings, and now we 
 are free for the day. Mr. Matthews is expected down 
 about six o'clock in the evening, and before the morn- 
 ing he will have to read perhaps a dozen briefs, one or 
 two of which, like our own, may consist of loo pages of 
 closely written matter, and involve much analysis of 
 dates and facts. To a stranger, the rapidity of appre- 
 hension, which the English system of instructing coun- 
 sel at the last moment produces in the average barrister 
 seems almost incredible ; but there is an equally strik- 
 ing result flowing from the division of the profession 
 into two branches which is not so obvious to outsiders, 
 but must be well known to all who, as solicitors, have 
 had the task of preparing cases for trial, and have sub- 
 sequently heard them tried. It is this — that very sel- 
 dom indeed do counsel present and handle a case in the 
 manner and from the point of view anticipated by the 
 solicitor. The bringing a new mind to bear upon the 
 case almost always results in the case being placed in a 
 fresh light, in the discarding of a host of minor points. 
 
ATASSIZES. n 
 
 and in the battle being lost or won on the real hinges 
 of the matter. The solicitor's careful mind has provided 
 for every contingency, and prepared every detail, and 
 had he to argue his case himself he would be far more 
 prolix, and consequently less forcible than the barrister. 
 This is, we think, the true advantage of the English 
 dual system, and we are bound to say, after some expe- 
 rience of the American and Canadian plan, that we still 
 give the preference to the old way. 
 
 But we must not longer digress. Let us imagine the 
 afternoon and night past, and the day of actual work 
 arrived. Consultation is fixed for half past eight sharp 
 at our leader's chambers, and there accordingly we go 
 and meet Mr. M., and his two juniors. The keen hard 
 lawyer receives us with dignified courtesy. He says 
 little and the consultation does not last ten minutes, but 
 we have had sufficient experience of counsel to know 
 from the little he does say that he has read his brief, a 
 thing by no means to be taken for granted. Mr. Pep- 
 peremwell, a pert little dandy with an eye-glass, evidently 
 stayed too late at the county ball last night and has 
 seen nothing of his brief, except the outside, but by the 
 time the case is called he will have picked up enough 
 to vigorously cross-examine one or two weak witnesses 
 on the other side and this is all we expect from him. As 
 for Dryasdust, a reliable, thorough old lawyer, not showy, 
 but true, he has previously drawn the pleadings, and 
 advised on evidence and consequently knows the case 
 almost as thoroughly as we do ourselves. 
 
 Entering the civil court, we find ourselves in a large 
 square hall, one side of which is occupied by the bench 
 whilst round the other walls are ranged rows of high- 
 
12 AT ASSIZES 
 
 backed, uncomfortable pews, gradually descending as 
 in a class room. The centre place or pit immediately 
 beneath the judge is filled by a large baize covered 
 table, round which sit the members of the bar in lively 
 conversation, the sedateness of their wigs and the viva- 
 city of their countenances forming as odd a contrast as 
 their talk, in which racing and law, politics and scandal 
 jostle for predominance. As the judge's door opens, 
 silence instantly obtains, and Manisty J., a quiet slow old 
 man, as yet blissfully ignorant of the Adams-Coleridge 
 case, takes his seat and begins work. In those days 
 Manisty was considered an exceptionally good lawyer, 
 but weak in his appreciation of facts and wanting in 
 capacity for business. In an appeal court he might have 
 made a reputation — at nisi prius he was lost. 
 
 We need not recapitulate the various proceedings of 
 an assize trial which differs in little but its surroundings 
 from an American trial by jury. There is more form 
 and circumstance amongst the Englishmen, but there is 
 also much more rapid despatch of business. Everybody 
 is in a hurry, for the time allotted to the assize is quite 
 inadequate to the proper trial of the causes set down. 
 Out of the sixteen on the list, probably seven or eight 
 will be tried out, and, of the rest, some will be settled, 
 others sent to a reference and two or three made remanets 
 for Gloucester, at which place, the last on their road, the 
 judges can sit indefinitely and clear off the arrears of the 
 whole circuit. This, of course, applies only to the civil 
 business. On the criminal side, the judge must make a 
 complete jail delivery before leaving each town, no 
 matter how long it takes him or how the other appoint- 
 ments of the circuit are deranged. 
 
AT ASS/ZMS. 13 
 
 As our case is not reached on the first day, we have 
 still ■ to stay over, and indeed, we are in no very great 
 hurry to get away, for we are pleasantly lodged in an 
 old-fashioned, homely hotel, and there is sure to be a 
 race meeting, a county cricket match, or regatta, or some 
 kind of festival going on at assize time, not to mention 
 the minor attractions of the theatre, refreshingly provin- 
 cial, or the glee club. This last institution deserves, at 
 least, a passing notice. From time whereof the memory 
 of man runneth not to the contrary, the singing men of 
 the cathedral have been accustomed to meet in a tavern 
 once a week and there sing glees and catches together. 
 These meetings are now held in the large hall of an an- 
 cient inn and here on the usual night, the good burghers 
 of Worcester are wont to assemble, smoking their long 
 pipes, drinking their clear red ale or fragrant whiskey 
 and listening to those cheerful old madrigals and glees 
 which are the most truly national music England can 
 boast and which seem never to lose their charm. Long 
 may the good old custom be kept up. not for the sake 
 of gain, for not one copper do the singers receive, but as 
 a living mark of that mild and tolerant feeling which 
 is hereditary with the ecclesiastics of Worcester. 
 
 But the pleasantest holiday must end. On the thirdand 
 last day our case is reached, fairly well tried and a spe- 
 cial verdict taken. The judge orders the legal points, 
 which are intricate, to be argued before him in London 
 after the circuit is closed, and suspends till then the 
 entering up of judgment. This means more briefs, 
 more fees, and considerable delay, but, as our client 
 happens to be a corporation, we do not feel that extreme 
 disgust at the result, which our friend Jones, the solicitor 
 
14 AT GUILDHALL 
 
 on the other side, vigorously expresses. The judge 
 may be, as he says, an old woman — he may even be 
 right when he calls the barristers sharks, but our corns 
 are not trodden on and why should we grumble ? Any- 
 way, the Assize is over and we have only to pay our 
 reckoning at our inn and go home. 
 
 AT GUILDHALL. 
 
 The Guildhall courts used under the old regime to be 
 the most active centre of substantial litigation in the 
 kingdom. Here, during the appointed terms, the legal 
 student might take his pick of six .divisions, two for 
 each of the superior common-law courts. The chief 
 justices and chief baron were seldom absent from the 
 Guildhall sittings, for the heaviest commercial cases 
 found their most convenient and natural tribunal here, 
 almost under the shadow of St. Paul's and within five 
 minutes' walk of Change, Lothbury, and the heart of 
 the city. 
 
 The same cause that attracted a strong bench attracted 
 a strong bar, and the faces most familiar to the abode 
 of Gog and Magog were those of the men most 
 renowned for forensic ability or sound learning at West- 
 minster and on circuit. The lofty and spacious Queen's 
 
AT GUILDHALL 15 
 
 Bench, over which Cockburn, clear and courteous 
 presided) was the scene of some of Benjamin's most 
 remunerative successes, and the wonder the by-stander 
 at first felt on seeing a little, unprepossessing man with 
 a weak, disagreeable voice, and no pretensions to oratory, 
 guiding rather than pleading to judge and jury, dis- 
 appeared as one noted his perfect mastery of his case, 
 his memory exact for the smallest detail, capacious 
 enough to hold each such detail in due subordination, 
 and his pellucid law. Another frequent figure was that 
 of Thesiger. Tall, handsome, and singularly youthful 
 in appearance, he had all those adventitious aids to suc- 
 cess that Benjamin lacked. He, too, had great weight 
 with the judges ; but if we may venture to criticise so 
 distinguished an advocate, he somewhat lack^ the 
 faculty of ramming his points home, so essential with a 
 jury, even though that jury be a special jury of London 
 merchants Thesiger knew how to appeal to the man 
 of taste, to the student, to the judge ; but, to a jury, such 
 a man as Watkin Williams, inelegant of speech, but 
 forcible and lively, was more effective. Not that Wil- 
 liams was a weak lawyer or a mere nisi prius advocate — 
 far from it, he was one of the soundest commercial 
 lawyers at the bar — but to his learning he added home- 
 liness, and a British jury loves homely common sense. 
 We must not linger longer in the Queen's Bench. As 
 we write, visions of Milward, great in admiralty ; Butt, 
 his equal rival ; James, since attorney-general, a man of 
 wondrous fluency ; Karslake, beau ideal of an honourable 
 English lawyer, and many another well remembered 
 figure rise before us ; but our readers will like to glance 
 at another court and see what is going on there. 
 
16 AT GUILDHALL 
 
 The Exchequer, for some reason, was not in great 
 favour with commerciaUitigants, but it got a considerable 
 share of the cases which delight newspaper readers ; and 
 here therefore the orators, as distinguished from the 
 lawyers, were often to be found. Here we first heard 
 Serjeant Parry, to our thinking the Chrysostom of the 
 English bar. For powerful, polished and easy speech 
 he had no equal, and he was withal a very effective 
 hand at cross-examination. Here, too, might sometimes 
 be seen a serjeant perhaps more widely known than 
 Parry, Ballantine, to wit, a man of great possibilities. 
 His speeches lacked that finish which marked his learned 
 brother's orations, but their practical value was at least 
 as great, and we should fancy there was not much 
 differefice in the two men's fee lists. Another brilliant 
 speaker and busy lawyer, oftener at Guildhall than either 
 of the foregoing, was Sir Hardinge Giffard (now Lord 
 Halsbury) an impetuous Rupert-like leader, seeking to 
 sweep all before him with a rush, and proving himself 
 just as good a solicitor-general as he had in his early 
 career been a good Old Bailey lawyer. A conspicuous 
 contrast to all these, and a more successful man than 
 any of them, was Sir John Holker, Disraeli's favourite 
 attorney-general. A rough though easy speaker and an 
 unostentatious cross-examiner, his whole demeanour was 
 that of a jolly Yorkshire farmer. But like the Yorkshire 
 farmer. Sir John was " canny ; " no unguarded admission 
 ever fell from his lips, no indiscreet question brought a 
 damaging reply. He might not say a great deal, but 
 he never said too much, and what he said was sure to 
 be pungent ; and so it gradually came to pass that this 
 plain man became notorious for his constant success, 
 and more showy men wondered at that success and 
 
At guildhall • iv 
 
 called it luck. One case of his we remember, tried in 
 the very Exchequer Court at Guildhall of which we are 
 now writing, in which he especially showed his quiet 
 skill. It was the suit of Rubery v. Grant & Sampson. 
 The plaintiff was an unknown adventurer ; the defend- 
 ants were the notorious Baron Grant, then at the zenith 
 of his fortune, and the city editor of the Times. With 
 a weak case, a doubtful client, and an adverse judge, 
 Holker triumphed over the united powers of the Thund- 
 erer and the financier. The Times very honourably 
 reported the whole case verbatim, and upon its conclu- 
 sions, got rid of Mr. Sampson ; but the defeat was none 
 the less a heavy blow to its commercial influence. 
 
 The superior courts of common law were not the only 
 legal tribunals at Guildhall. Their visits were only 
 occasional, being in fact the Civil Assizes for the city of 
 London ; but the Lord Mayor's Court had its permanent 
 abode there. This was a peculiar jurisdiction, extending 
 not only through the city, but also, by a legal fiction 
 liberally interpreted, to all causes of action that could 
 by any possibility be construed to have arisen therein. 
 Its procedure was simple and convenient, its judges, the 
 Recorder and Common Serjeant (in my time, Sir Rus- 
 sell Gurney and Sir Thomas Chambers) were able men, 
 and it had, in addition, a very unusual but useful practice 
 known as " foreign attachment, " by which in many 
 cases the defendant could be compelled to give security 
 for debt and costs immediately upon the service of the 
 writ, so that with all these advantages it was not surpri- 
 sing that the Mayor's Court should be greatly resorted 
 to by suitors in small matters. A number of smart 
 juniors constituted its ordinary bar, and altogether it 
 was a very satisfactory and business-like affair. 
 
18 AT GUILDHALL 
 
 Our concern being merely with the legal aspect of 
 Guildhall, we cannot dwell upon its fine library, well 
 selected and magnificently housed, in which we passed 
 many happy hours stolen from lunch-time and half-holi- 
 days ; its common council meetings with their unmitig- 
 ated noise and riot ; and its great annual feast, when 
 the Cabinet and the judges, and all the men of most 
 note in political, professional, or mercantile life assem- 
 ble to honour the incoming mayon But we must not 
 leave Guildhall Yard without remembering the pet 
 pigeons that, in all the confidence of wonted security, 
 hop around our feet, and the attenuated horse waiting 
 in yonder corner for some mysterious fate. Every place 
 has its secret, and the secret of Guildhall to us was the 
 invariable presence at all hours in the day of an ema- 
 ciated horse waiting in the accustomed corner for some 
 one who never seemed to come. We believe there was 
 a police court hard by, but we never understood the 
 connection between the police court and the horse, 
 
SENTENCED TO DEATH 1« 
 
 SENTENCED TO DEATH— A SCENE IN AN 
 ENGLISH COURT. 
 
 The prisoner in the dock would not, under ordinary 
 Circumstances, attract attention. Shambling, undersized, 
 and listless, one may see dozens of his type hanging 
 around the pit banks any Saturday afternoon, hungry, 
 lazy loafers, whose sole object is to drag through an 
 animal existence with as little work as possible. Whe- 
 ther the repeated sight of the weekly arrival of the pay 
 clerk with his bags of yellow sovereigns acted as a cumul- 
 ative temptation to this man's vaguely brooding mind, 
 or whether impelled by some sudden onslaught of the 
 devil, we cannot tell, but one Saturday morning he was 
 noticed lounging near the bank of the neighbouring 
 town, and when poor Meredith, little suspecting how 
 short a span of life remained for him, emerged therefrom, 
 laden as usual with the colliery wages, the prisoner 
 quietly followed and in broad day light, on a well fre- 
 quented highway, almost in sight of the passers-by, shot 
 him and decamped with the coveted bags. 
 
 So bungling was the execution of the crime that 
 detection and arrest were quick and easy, and now 
 some two months after that fatal morning this common- 
 place criminal stands here to receive his wage and have 
 his own span of days exactly meted out. The promis- 
 
20 SENTENCED TO DEATH 
 
 ing junior, assigned by the formal humanity of our law 
 for his defence, has made the most of a hopeless case, 
 resting principally upon a possible insanity of which 
 there has been some faint evidence given, but the judge 
 has covertly destroyed his slender plea, telling the jury 
 that if such excuses are to be taken, our prisons may at 
 once be turned into lunatic asylums. Mere empty clap 
 trap this, but when delivered from judicial lips by that 
 incarnation of wisdom to rustic jurors, a judge on Cir- 
 cuit, it is abundantly sufficient to seal the prisoner's fate, 
 and so after a quarter of an hour's retirement, for decency's 
 sake, the twelve have delivered their verdict. 
 
 Is there no one here, besides ourselves, who feels a 
 sickening doubt of the justice of the dreadful sentence 
 just impending ? Look at that wretched specimen of 
 humanity, not a muscle of whose face or hands betrays 
 what is passing in his dim brain. To the damning 
 evidence, to his counsel's appeal, to the judge's summing 
 up, to the verdict itself he has listened disconnectedly 
 with that indolent lack of interest characteristic of his 
 stupid class, himself the least concerned spectator in the 
 densely crowded court ; and now, as the low tones of 
 the judge pronouncing sentence strike on his ear, he 
 looks up at him with a slight vague speculation in his 
 eyes, evidently noting with dull surprise, the black cap 
 which has suddenly appeared on the judicial wig. It is 
 clear the judge is far too case-hardened to feel any 
 qualms such as are troubling our less ancient conscience. 
 Behind the expression of decorous pity on his face lurks 
 an irrepressible self complacency which receives from 
 the tremendous power he is now exercising, a gratifica- 
 tion unowned, but real and deep. His well-modulated 
 
SENTENCED TO DEATH 21 
 
 voice, bated to a theatric whisper, is under excellent 
 control, and the lace handkerchief in his hand shows 
 not the slightest quiver. This is his first circuit, pro- 
 bably his first murder case, and his hard self control 
 does much to explain his personal unpopularity with 
 the bar. 
 
 But why does the keen and zealous B. down there, 
 who as magistrate's clerk has been the main instrument 
 of conviction, bite his moustache and look anywhere 
 but at the dock ? We know his kindly nature too well 
 to ihave suspected him of gratification at the success of 
 his well arranged proofs, but we did not expect that 
 such success would cause him positive disquiet. Perhaps 
 the prisoner's demeanour and appearance have impressed 
 him, as they have ourselves, and he regretfully thinks of 
 those little circumstances pointing to insanity which no 
 one followed up, because in fact no one was paid to do so. 
 However the strain of the present moment will soon 
 pass off, and when we dine together at the " Hop-pole" 
 this evening our friend will be himself again. 
 
 Look now during this interval of hushed attention, 
 when even the " irresponsible frivolity " of the junior 
 bar is silent, at the expression of all these faces whose 
 eyes converge upon the prisoner. If instead of an 
 English court of justice, the scene were a Roman amphi- 
 theatre, the act, a gladiator's death, the general expres- 
 sion of animal excitement might be more intense, but 
 it is still sufficiently prominent to be painful. The same 
 passion is being ministered to, and we feel it with the 
 rest. Two persons only have their thoughts elsewhere. 
 That young and handsome barrister, gazing abstractedly 
 
22- SENTENCED TO DEATH 
 
 at the skylight, is the prisoner's counsel, who, his duty 
 done, has at his tongue's end hosts of brilliant expres- 
 sions and striking appeals which come unbidden now 
 they are no longer needed ; and that poor woman weep- 
 ing bitterly in the distant corner, — who can speak 
 her griefs ? 
 
 At length the judge has finished his formal sentence 
 and not less formal platitudes. The convict, passionless 
 to the last, is hustled down the trap door to the cells 
 below. In three weeks time he will pass through another 
 trap door and " justice will be vindicated ! " How the 
 account will stand in better balanced books than ours, 
 nor you nor we can tell, but the general rush from the 
 court room scatters our dissatisfied reverie, and we 
 return to the civil side where our interminable mining 
 suit is dragging its slow length along. No danger that 
 there slight indications in the evidence will be left 
 unworked, for that is an issue involving money ! 
 
AN ENGLISH COUNTY COURT 23 
 
 AN ENGLISH COUNTY COURT. 
 
 It is County Court day at D., and the local practi- 
 tioners are all at their offices at 9 sharp, waiting for the 
 last stray fish that may come to the net. I have a jury 
 case with S., " Mr. Attorney-General," as we have 
 dubbed him, and two or three smaller matters against 
 less dangerous antagonists, but these are all prepared 
 and will cost me no trouble this morning. I have seen 
 my witnesses, looked up my cases and am ready for the 
 fray. What I now await is the visit of the country 
 folk, who, after having made up their minds to rely upon 
 their own unaided eloquence, will surely lose heart at 
 the last moment and run to the lawyer. And here 
 comes the first batch tumbling up stairs, a dirty "butty" 
 collier, who has not even taken the pains to wash him- 
 self for court day, his burly, masterful wife, and his wit- 
 nesses, two pitmen, one of whom rejoices in the name 
 of " Killers " Grant. As none of the party can either 
 read or write I have to make a wild guess and dub my 
 man Achilles, which classic cognomen he accepts without 
 compunction. Twenty minutes suffice to dispatch this 
 batch, for I hear the noise of many voices below. The 
 needful guinea is duly paid and party No. i adjourns 
 to the court to make room for No 2, and so on, till at 
 10 : 30 comes a lull, and I take a final look at my papers 
 
24 AN ENGLISH COUNTY COURT 
 
 and fix myself up for the court-room. At the last 
 moment a belated litigant rushes in, and half past eleven 
 strikes from the church tower before I find myself out- 
 side the office and on the way to battle. 
 
 The registrar has of course been sitting since lo, and 
 has by this time disposed of all the undefended causes, 
 so that I have scarcely donned my gown and entered 
 court when the judge's door opens, and with a quick 
 resolute step, Sir Rupert moves to his bench, bobs to 
 the bar, and the first case is called. 
 
 The first case happens also to be my friend H 's first 
 appearance, and he is sadly overweighted by the griz- 
 zled veteran on the other side. The judge however, 
 with his usual kindness to beginners, helps H. through, 
 and if he does not exactly score a victory, yet he does 
 not suffer a thorough-going defeat, and as he confesses 
 to us afterward, " it wasn't half so terrible after all, 
 you know." 
 
 And now it is noon, the hour fixed for juries. In 
 five minutes the seven jurors are sworn, and " Mr. 
 Attorny-General " is opening for the plaintiff. S. is a 
 self-made man ; beginning as an office boy he has made 
 his way by force of ability ; he owes every thing to the 
 County Court, for it is the reputation acquired there 
 which has built up for him a practice now second to 
 none in the county. Personally he is not popular with 
 his brethren, but the plain truth is that he has been 
 too successful to be popular. They look at him and 
 think of clients lost. Having no old grudges against 
 him myself, I can judge him more fairly. I esteem him 
 a model advocate, and a good man to deal with. To-day 
 
AN ENGLISH COUNTY COURT 25 
 
 he will probably earn 30 or 40 guineas, for it may safely 
 be assumed that he is engaged in at least three-fourths 
 of the cases on the list. 
 
 Now let us take a look at the judge. Stout, with a 
 grizzled beard, a broad forehead, and eyes that almost 
 speak, Sir Rupert is a terror to bogus witnesses and all 
 the other frauds who haunt a court-house. He is hardly 
 less dreaded by the slow coaches of the bar who cannot 
 keep up with his intellectual pace. But he is beyond 
 all question the right man in the right place. 
 
 Thoroughly acquainted with the staple trades of the 
 district and their intricate customs and rules, and a 
 warm but honest friend of the working man, his deci- 
 sions are accepted with general content, seldom appealed 
 and still seldomer reversed. His patience with begin- 
 ners is exhaustible for a time, but after a certain period 
 he evidently considers their novitiate passed, and 
 thenceforth they must take their chances with the rest. 
 One thing he hates — prolixity. Before him an advocate 
 must be quick, willing to take points without labouring 
 them, and economical of speech. But whilst we are 
 discussing the judge, our trial is going rapidly on. 
 
 In an hour S has opened his case and called his 
 evidence and my turn has come. Ten minutes suffices 
 for my opening, half an hour for my three witnesses, 
 and then in accordance with our usual practice we 
 waive our further speeches and leave the case with the 
 court. Sir Rupert sums up carefully and fully, with a 
 distinct intention of showing the jury which side ought 
 to win, and at ten minutes after two the jury are ready 
 
26 AN ENGLISH COUNTY COURT 
 
 with a verdict, and the case, involving a question of 
 some ;^4o, is decided. The total expense of the action 
 to the losing party will probably be about £"] or £?, 
 taxed costs of the other side, and £\o to his own 
 attorney, and from the inception of the suit to its final 
 decision not six weeks have elapsed. It is in this way 
 and in tribunals such as these, that the great bulk of 
 English litigation is disposed of. No wonder the 
 County Courts are popular. 
 
 The jury are no sooner out of the box than the next 
 case is begun. The judge takes his chocolate and bis- 
 cuits on the bench, and the attorney who wants his 
 lunch must get it as best he can, for the court waits for 
 no man. One cumbersome account case is relegated to 
 the registrar, two or three ai'e settled by consent, every 
 one works with a will, and by five o'clock we see the 
 list conquered and the judgment summonses reached. 
 By six, the court-room is silent and deserted, and 
 County Court day is over. 
 
 As it is a fine evening we may rely upon meeting 
 most of our confreres on the cricket field, and accord- 
 ingly thither we repair and close the day with " beer 
 and skittles." 
 
ODDS AND ENDS 21 
 
 ODDS AND ENDS. 
 
 A name now almost forgotten by the public is that 
 of Sir John Karslake. Yet in his day — less than fifteen 
 years ago — he was by common consent the first man at 
 the English common-law bar. The brilliant attorney- 
 general of a brilliant government, learned, eloquent and 
 upright, with a physical presence that well supple- 
 mented his intellectual gifts, Sir John was the beau 
 ideal of a great advocate. No other man within my 
 recollection had such weight with the judges, and his 
 certain destiny appeared to be either the chief justice- 
 ship, or if he remained in politics, the woolsack itself. 
 But sudden blindness struck him, and amidst the uni- 
 versal regret of his confreres, he was forced to retire alike 
 from professional and parliamentary life. 
 
 He was succeeded by another Sir John, whose career 
 has since been closed by death. Sir John Holker's 
 forensic art was the art that conceals itself. Outwardly 
 rough, heavy and listless, his list of victories spoke for 
 him, and to no one would the attorneys more readily 
 intrust an apparently hopeless case than to this " man 
 from the provinces," as a supercilious critic once called 
 him. In Parliament he achieved a success much beyond 
 that of the average attorney-general. The miscella- 
 
?8 ODDS AND ENDS 
 
 neous body that represents the British Commons is 
 usually somewhat impatient and incredulous of lawyers. 
 They talk too much and too readily to suit its tastes, 
 but Holker soon gained and kept a place as one of the 
 most valuable debaters in Disraeli's staff. He had a 
 broad way of looking at things, and a certain easy frank- 
 ness that made his suspicious hearers forget the wig 
 and gown he had left outside. Although a vehement 
 Tory, and a vigorous denouncer of the Liberals and all 
 their ways, yet he made such an impression on Mr. 
 Gladstone that after the fall of the Beaconsfield govern- 
 ment he was offered a lord justiceship by his quondam 
 opponent. As a lawyer, Holker was not learned, but 
 he had a way of getting at the pith of a thing that 
 made his opinion valuable. His special virtue as an 
 advocate was hit off by Serjeant Parry, who said that 
 he, better than any other man, knew when to be silent. 
 
 But let us leave now the neighbourhood of Westmin- 
 ster, and imagine ourselves in, the quiet and beautiful 
 city of Worcester. The Worcester courts are an excep- 
 tion to the ordinary dingy, crowded and inodorous 
 abode of justice, being large, lofty and well ventilated. 
 The learned gentleman in the pit arrayed in the neatest 
 of wigs, the most immaculate of frills, and the glossiest 
 of silks, who is just opening his case to the solid, jolly- 
 looking jurors, is Huddleston, the leader of the Circuit, 
 and as good a man at Nisi Prius as any in England. 
 His legal knowledge is not very great — not more than 
 sufficient to serve his turn — and his opponent, the keen, 
 quiet-looking man beside him, has probably forgotten 
 more than he ever knew ; but " Huddy " is an advocate 
 all over, and before a jury he will play second fiddle to 
 
ODDS AND ENDS 29 
 
 none. Matthews has his revenge in banc. There Hud- 
 dleston's law is listened to with polite indifference 
 mixed with a little of the amusement known at the bar 
 as baiting the badger, whilst Matthews receives the 
 attention his learning deserves. It is, however, strange 
 to observe the immense advantage Huddleston has 
 over all his opponents before a jury. Matthews is no 
 stick ; he is iluent and persuasive in speech, severe in 
 cross-examination, and attentive to the jury. Yet, some- 
 how or other, Huddleston's cases are half won before 
 they are begun. Does "personal magnetism" make 
 the difference ? Huddleston is now on the bench, and 
 no doubt makes a good practical judge of the Baron 
 Martin stamp. 
 
 We need not stop to discuss any of the half-dozen 
 Q. C. s who are on the Assize, and amongst the crowd 
 of juniors, Jelf, the tall young man with the single 
 eye-glass, and Motteram, the burly old fellow, just 
 rising to examine the first witness, are the only ones 
 worth notice. Motteram's career has been one of 
 misfortune pluckily met, and now he is County Court 
 judge of Birmingham, and boats of clearing off his 23,000 
 cases per annum without arrears ! Jelf was undoubtedly 
 the leading junior of the Circuit, a first-rate lawyer and 
 a clever advocate, but a year or two of this tired him 
 out, as it does most men, and he was glad to seek the 
 comparative ease of silk. What with giving opinions, 
 advising on evidence, drawing pleadings, running small 
 cases alone, and prompting his leader in big ones, the 
 leading junior's lot is indeed " all work and no play." 
 Once arrayed in silk, the drudgery of chamber work is 
 past. A glance at his brief over night (and very often 
 
30 ODDS AND E,NDS 
 
 not even that), a five minutes' consultation with the 
 attorney, in which the big man listens condescendingly 
 to the poor fellow's nervous suggestions, and dismisses 
 him with a " Well, Mr. A., I dare say we'll pull it 
 through, but it 's a weak case," and then into court he 
 goes, and very likely opens for a reference. The judge 
 is ready enough to meet him, for has he not a heavy 
 list and only two days to clear it in ? and before the 
 astonished attorney can say Jack Robinson, the case is 
 referred to Mr. Blank, the learned Q. C. walks off with 
 his forty or fifty guineas, and the junior attends the 
 reference. 
 
 This is bad enough, but worse often happens in Lon- 
 don, where, owing to the multiplicity of courts, counsel 
 is sometimes bound to be in two places at once, and not 
 being Sir Boyle Roche's bird, the result is that one 
 cause loses his assistance altogether. The fees must be 
 paid all the same, for the theory is that these are paid 
 for reading the brief, whilst, as if to add insult to injury, 
 this same brief, so dearly paid for, and with all its 
 wealth of legal disquisition and argument, in which 
 probably the attorney has felt a secret pride as the 
 result of much and arduous labor, comes back to his 
 hands unannotated, unread, nay, even unopened. 
 
AN ARTICLED CLERK'S DA V IN LONDON 31 
 
 AN ARTICLED CLERK'S DA Y IN LONDON. 
 
 Turning out of Fleet street, just on the city side of 
 Temple Bar (for be it premised we are speaking of days 
 when the old Bar retained its local habitation), we find 
 ourselves in a long, narrow, dirty street, from which the 
 sunlight is excluded by grimy buildings crowded 
 together on each side, and we notice at once a change 
 in the character of the busy folk who hustle us on the 
 narrow pavement. There is an indescribable shabbiness 
 of apparel, a prevalence of garments which have long 
 since seen their best days, and now produce a tout- 
 ensemble of threadworn rustiness, matching-well with the 
 colorless, hard ground faces of their wearers. We do 
 not need the sight of yonder barrister scuttling along 
 under full sail, with gown distended balloon-wise, and 
 an ancient umbrella protecting a still more ancient wig, 
 or of this pert clerk with an armful of papers, and an 
 expression of latent excitement on his worried face, to 
 tell us that we are now amongst the lawyers, and that 
 this is Chancery Lane. On our left rises the forbidding 
 portico of the Incorporated Law Society building, which 
 we pass not without a twinge of doubtful anticipation 
 of the fast approaching day when we must mount the 
 dreaded stairs and undergo the agonies of our " final," 
 and diving under the archway on our right we scurry by 
 
32 AN ARTICLED CLERK'S DA V IN LONDON 
 
 the historic Rolls Chapel, stumble up the steps skirting 
 the desolate "' garden " (oh, much enduring word), and 
 enter that Pandemonium of noise and confusion known 
 as " Judges' Chambers." All round the room, behind 
 the desks, are ancient and not too civil clerks, pursuing 
 their several routine duties, with accustomed disregard 
 of the shouting throng who occupy the large, central 
 space, and straightway we add our tribute to the din, 
 and begin howling in our loudest tones " Field and 
 Roscoe ! " " Gregory ! ', " De Gex ! " & so on through 
 the list of opposing firms with whom we have business 
 this morning. 
 
 Do not suppose from the sudden rush to yonder 
 corner, and the general scrimmage ensuing, that a 
 football has been surreptitiously introduced into these 
 strictly business precincts. Oh, no ! The judge of the 
 day has just come, and the fight is to get before him. 
 A powerful porter guards the door leading to the lumin- 
 ary's presence, and cautiously opens that portal from 
 time to time to let in those who have fought- their way 
 to the front. Our athletic training stands us in good 
 stead here, and after a short, but lively struggle, we 
 rush triumphant over a fat solicitor, and heedless of 
 his objurgations soon find ourselves inside. The judge, 
 whom, not being in the glory of his judicial attire, we 
 regard as a rather testy old gentleman, soon knocks off 
 our little matters, and whilst we are still busy explain- 
 ing, scribbles a few words on our summonses, hands 
 them back to us, and we emerge as unceremoniously - 
 as we entered. The formal orders are soon made out, 
 and stamped with the undecipherable blot which is 
 supposed to represent the judge's signature, and now 
 
AN ARTICLED CLERK'S DA V IN LONDON 33 
 
 we are free of chambers for the day. Heated and 
 excited, we turn into the Rolls to look at the cause 
 list, and take a hurried glance at Jessel disposing of 
 motions at express pace, not without casting an envious 
 glance on Chitty's pile of briefs. That learned gentle- 
 man's minutes must indeed be golden this morning ; 
 and who would recognize in the dry, old barrister of 
 to-day the genial umpire of the 'Varsity' boat race 
 to-morrow ? 
 
 Now for Mr. W.'s chambers. We cross the lane, 
 enter the really noble gateway of Lincoln's Inn, and 
 make for our learned adviser's abode in the New Square. 
 He is, we find, in the Lord Justices' Court, and thither 
 we follow him. Half a dozen barristers, a couple of 
 solicitors, one old woman, probably insane, and a 
 score of so of that insignificant but necessary class 
 known as suitors, constitute the audience before whom 
 the burly, vigorous Lord Justice James is carrying on 
 an animated discussion with a learned but sorely 
 aggrieved Queen's counsel, whilst his colleague, Mellish, 
 sits by in dignified silence, perhaps cogitating Bacon's 
 dictum that " it is no grace in a judge first to find out 
 that which he might have heard in due time from the 
 bar, or to show quickness of conceit in cutting off 
 counsel too short." Certainly Bacon is no authority 
 in James's estimation. The gentleman we are in search 
 of speedily joins us, and receiving a blank sheet, with 
 the indispensable fee marked thereon, patiently listens 
 to our verbal instructions, and promises an opinion in 
 time for to-night's post. 
 
 Our next destination is Somerset House, that huge 
 pile of desolate quadrangles and interminable corridors. 
 
34 AN ARTICLED CLERK'S DA Y IN LONDON 
 
 wherein the Inland Revenue Department houses its 
 enormous staff. Our business is with the Legacy and 
 Succession Duty Division, where we have to pass an 
 account, a task to all others most distasteful to our 
 souls. Every estate in the kingdom comes under the 
 scrutiny of this inexorable bureau, and so complete and 
 far reaching is its network that sooner or later the 
 smallest and most obscure succession gets captured 
 therein. And not only must the accounts of all, from 
 the Duke of Westminster down to Jones, the little 
 country shop-keeper in Northumberland, pass and pay 
 toll, but these accounts must all be conformed to certain 
 Procrustean forms, and vouched throughout. It is a 
 matter of perfect indifference to yonder bland and 
 smiling clerk whether item 6 of schedule X is a matter 
 oi £^ or ;£'S,ooo. All he knows is that it is not "in 
 form." His politeness is only exceeded by his firmness, 
 and he is bound to win in the long run, so we can only 
 make a careful note of his requirements, and send them 
 down to our country client for him to comply with as 
 best he can. 
 
 We have one more call to make before we leave the 
 building, and we make our way across to the probate 
 office in the southeastern corner. Here we have to 
 search a will, nor are we the only persons on a like 
 errand bent. Observe these two women poring with 
 blank countenance over the closely written pages of 
 yonder ponderous folio. They will probably pass the 
 whole day here, and makb life miserable for the unhappy 
 attendants, who, conscious of impending fate, are all 
 furtively watching the pair, and casting about for some 
 means of escape. Vain hope ! The stern glances of the 
 
AN ARTICLED CLERK'S DA V IN LONDON 35 
 
 elder female fix upon yon unoffending youth ; she sum- 
 mons him to her side, and the investigation commences. 
 Her first demand is for " the man who wrote out that," 
 and as it is evident that nothing short of the production 
 of the original will and its collation on the spot with the 
 transcript, will satisfy her doubts, we leave poor Jackson 
 in her clutches, reflecting that after all a berth in the 
 civil service may have its drawbacks. Never did we 
 visit this well-hidden office without finding there a 
 more or less numerous gathering of legacy hunters, but 
 how they get there remains a mystery. Other public 
 offices lie open and conspicuous to the passer-by, but 
 are never invaded by the profane feet of the laity. 
 This one, huddled away down a pair of back stairs in 
 an obscure corner of an inner quadrangle, seeks privacy 
 
 And now, at last, for Westminster. We pass the 
 Horse Guards v/ith its glittering troopers, the less obtru- 
 sive Admiralty, and the splendid mass of the new 
 Treasury, and crossing the grand old Hall, with its 
 usual throng of applewomen, witnesses, lawyers and 
 policemen, enter the Court of Exchequer, where Kelly, 
 last of the chief barons, presides, patriarchal and gar- 
 rulous. You will notice that the learned gentleman 
 who happens to be addressing the court at the present 
 moment occupies a little pen all to himself instead of 
 being mixed with the general throng of his compeers. 
 He is Mr. Webster, the present " tubman " of the court, 
 and by right of his mysterious title occupies his " tub. " 
 Have the Judicature Acts swept away even this old 
 custom .'' 
 
36 A DAY IN A COUNTRY SOLICITOR'S OFFICE 
 
 Our object being to see the list for to-morrow, which 
 is not yet ready, we have half an hour to spare, and 
 where can we spend it better than in the Abbey, just 
 across the street ? In three minutes we epitomize many 
 a great lawyer's career, passing from Westminster Hall 
 through St. Stephen's into the Abbey, and con for the 
 hundredth time the familiar inscriptions. A half hour 
 quickly passes. Returning to the court we find the 
 cause list ready, and resigning ourselves to the 
 sulphurous discomfort of the undergound railway, we 
 are soon back in the city, where the gas-lights gleam 
 confusedly through the fast thickening fog. An hour's 
 letter writing finishes the office day, and we make 
 tracks homeward to resume with what spirit we can 
 our study of " Haynes' Equity." 
 
 A DAY IN A COUNTRY SOLICITOR'S OFFICE. 
 
 It still wants a few minutes to nine o'clock, when I 
 enter the office to open and read the morning's corres- 
 pondence. I am speedily joined by our principal, a 
 stout, ruddy, middle-aged man, genial, shrewd, and 
 sensible. The letters read, we light the matutinal pipes 
 and start off together for our usual stroll in the bosky 
 glades of the castle grounds that almost adjoin the 
 office doors. It is a bright spring morning, and the air 
 is perfumed with the scent of the white hawthorn trees. 
 
A DAY IN A COUNTRY SOLICITOR'S OFFICE 37 
 
 and melodious with the carol of the cheerful thrush ; 
 but our conversation is principally occupied with busi- 
 ness, the day's work is laid out, and when we re-enter 
 the office we know precisely what each has on hand, 
 and I have had the advantage of my senior's experience 
 and advice in a quiet consultation, undisturbed by clients 
 and the constant distractions of a busy day. 
 
 It is now half-past nine, and the well worn, old- 
 fashioned desks are each occupied by their accustomed 
 tenants. Over there in the corner, apparently oblivious 
 of all external affairs, is old B., the copying clerk, bent 
 over a huge sheet of parchment, on which he is engross- 
 ing a lengthy conveyance. For thirty years the old 
 man has occupied the same place, and passed his days 
 in the same routine, and long habit has almost con- 
 verted him into a human machine. What you give 
 him to copy will be copied, without any allowance for 
 the frailties of human nature, and if in haste you have 
 omitted a sentence or a word, the omission will surely 
 reappear in his transcription. Only the other day he 
 gravely described a lot of land some three acres in 
 extent as " surrounded by a paling forty feet high, " 
 and justified himself to his own perfect satisfaction by 
 appealing to the draft, in which something that might 
 be taken for the superfluous zero undeniably appeared. 
 Facing him is the cashier and book-keeper, a smart, 
 quick fellow, full of " go," and by far the best man on 
 our staff. On the other side of the room is a clerk 
 whose duties are miscellaneous, including all such copy- 
 ing as does not rise to the dignity of an engrossment, 
 process-serving, county court collections, and, in shorty 
 " general utility." Behind him is the office boy, a 
 
38 A DAY IN A COUNTRY SOLICITOR'S OFFICE 
 
 "broth of a lad," as office boys generally are. Of the 
 two rooms opening from the outer office, one is occupied 
 by the conveyancing clerk, and the other is the sanctum 
 of the two articled pupils, young gentlemen who have 
 no small idea of their own importance, and the measure 
 of whose work is their inclination to do it. At the 
 present moment, they are earnestly engaged in the 
 discussion of a disputed point of cricketing law, which 
 arose in the course of yesterday's match. 
 
 Mounting upstairs to my own room, my first business 
 is to attend to our London agent's letters. An affidavit 
 is required in a chancery suit, those accursed accounts 
 of the Telford estate are again stopped in their slow 
 progress through Somerset House ; but, as some com- 
 pensation, the judge .in chambers has ordered the 
 district registrar to review that taxation which so griev- 
 ously reduced our bill of costs in Doe v. Roe. The registrar 
 being not quite au fait in Judicature practice, is sure to 
 go from one extreme to the other, and be as unreasonably 
 liberal on the second taxation as he was unreasonably 
 parsimonious on the first. Whilst still engaged in 
 touching up the much disputed bill of costs for its final 
 appearance, the boy comes up to tell me that the trap 
 is at the door ; so, taking one of the articled hobbede- 
 hoys with me, I start on my drive to Upton, a colliery 
 village about four miles off, where I have to attend a 
 police court case at eleven. Although our district is a 
 perfect net-work of railways, with stations at every 
 mile, we have found by experience that time is saved 
 by driving to our appointments, when possible. We are 
 sure to meet clients on the road, and seldom return 
 from one of these expeditions without having picked up 
 
A DAY IN A COUNTRY SOLICITORS OFFICE 39 
 
 Some new business or advanced some matter already in 
 hand. This morning proves no exception to the rule, 
 for I am not half way on my journey before I overtake 
 the very man I want for the chancery affidavit, get his 
 instructions and arrange an appointment for him to be 
 sworn in the afternoon. 
 
 The police court case is soon disposed of, and our next 
 destination is the Halford County Court, where an 
 interim injunction in liquidation has to be made absolute. 
 Twenty minutes suffices for this, and I am free to return 
 to the office ; but now that I am so near over, I may as 
 well go a couple of miles out of the way to see Jones 
 the iron master, whose suit comes up for argument in 
 appeal next week. He is a good client and will be 
 pleased at my attention in calling on him, an attention, 
 by the bye, which will constitute a 13s. 4d. item in his 
 uext account. A chat with him introduces a new 
 business in the shape of a little dispute with the Mines 
 Drainage Commissioners, which he wants us to look 
 after for him, and when at 1.30 I get back to the office, 
 I am yv^ell satisfied with my morning's work. 
 
 The first thing to be done after lunch is to draw the 
 affidavit, and by the time this is in the copyist's hands, 
 it is three o'clock, and I join the principal in his room, 
 a large handsome chamber, well lined with books, 
 where a first meeting of creditors is about to be held. 
 This is exactly the kind of business for which the " old 
 man " is best fitted. It is no easy task to bring fifteen 
 or twenty creditors, some of whom are sure to be indig- 
 nant and eager for bankruptcy, into accepting a compo- 
 sition which shall neither be SO hard on our actual 
 
40 A DAY IN A COUNTRY SOLICITORS OFFICE 
 
 client, the debtor as to discourage him, nor, on the 
 other hand, so light as to disgust the creditors, some of 
 whom are clients also. .This requires all the senior's 
 tact and experience, and my only business in the room 
 is to look after the multifarious forms and papers required 
 under the act, and keep the procedure straight, so that 
 he may be perfectly free for the real work. The meeting, 
 like most such meetings, is protracted, but after the first 
 half hour, I have little to do and am able to slip out to 
 see occasional clients and write my letters. The affidavit 
 is duly sworn, and dispatched to agents ; a small con- 
 veyance comes up from the conveyancing clerk and is 
 settled ; the vouchers needed at Somerset House are 
 put in hand ; and when, at half-past five, the creditors 
 disperse, leaving the principal jubilant at his success in 
 bringing them to reason, there is nothing left but to 
 enter up the day's charges in my diary and cast a pre- 
 paratory glance over the work for to-morrow. Altoget- 
 her, the day has been a satisfactory one, and the " old 
 man " remarks on leaving : " If business keeps up as 
 brisk as this, M., I shall take the family to Switzerland 
 in the autumn. Nellie has never seen the Alps, and I 
 need a good holiday myself." 
 
MY FIRST CASE 41 
 
 MY FIUST CASE 
 
 A SKETCH AT THE MANSION HOUSE 
 
 Buried in the twilight of an underground den, known 
 as Mr. W's office, Guildhall, I was regretfully ruminating 
 over the fate which had transferred me^ a lad of seven- 
 teen, from the pleasant leisure of a country town, with 
 abundant cricket and no drudgery, to my present 
 quarters, where circumstances were exactly reversed, 
 when the sudden appearance of the lively Captain C. 
 woke me up. This gentleman, ever jovial and impec- 
 unious, was a 'fine specimen of the " promoter " class, 
 and the pen of Dickens alone could have done justice 
 to that natty, blithe exterior and that frank insouciant 
 address which had so long enabled their adroit pos- 
 sessor to live upon his wits and the British public. On 
 this occasion he was even livelier than usual, being, as 
 he quickly informed me, about to appear in a new role, 
 that of defendant at the Mansion House police court, 
 on a charge of defrauding a railway company. His face 
 fell somewhat when he learned that Mr. W. was at 
 Westminster and not likely to return till the afternoon, 
 but as the summons was for eleven o'clock, and that 
 hour was already past, there was no time for deliberation, 
 and after a minute's pause, he asked me to accompany 
 him and as he expressed it, " cheek the thing through 
 somehow. " Accordingly off we went together arm-in- 
 
42- MY FIRST CASE 
 
 arm, stopping on our way to adorn ourselves with flowers, 
 in approved city style. The facts of C.'s offence were 
 very simple. On arriving at his office a week or so 
 before, he had found a telegram there, summoning him 
 out of town for some days. He sent a commissionaire to 
 his wife at his suburban home, with a note to explain 
 his absence, and, thinking no harm, gave the man the 
 return half of his railway ticket. Now the commissionaires, 
 who, be it explained, are a corps of old soldiers, uni- 
 formed, organized in semi-military style, and much used 
 in London as quick and thoroughly reliable messengers, 
 are not in the habit of indulging in first-class carriages, 
 and the circumstance of this messenger riding in such 
 style attracted the ticket collector's attention, who took 
 down his employer's name and addre$s. The gallant 
 captain, on his return to town, found a letter awaiting 
 him from the solicitors of the railway company, stating 
 that by giving away his ticket, he had broken the by- 
 law printed thereon and laid himself open to a penalty, 
 C. wrote a sensible letter in reply, explaining that it 
 was an inadvertence on his part which should not occur 
 again, and he felt justly indignant, when, with no further 
 ceremony, he was served with the present summons. 
 Unfortunately he had kept no copy of his letter. 
 Arrived at court, we were by no means pleased to see 
 the venerable but strict Sir Robert Garden on the 
 bench, in the place of the genial Stone, who at the time 
 occupied the civic chair. Sir Robert, too, was evidently 
 in a tantrum and was just galopping, spurs and all, down 
 the throat of an unfortunate and nervous lawyer who 
 seemed unable either to contradict him with firmness 
 or to yield with grace. My courage was fast ebbing out 
 at my shoes, when a keen looking man, with a single 
 
MY FIRST CASE 43 
 
 eye-glass, whom I instantly recognized as the famous 
 George Lewis, the hero of the criminal courts, courteously 
 made room for me beside him in the lawyer's pen. To 
 him I made bold to explain my predicament and in a 
 few words he put me right. " Don't plead guilty, let 
 them prove their case and call for the letter. If you get 
 hold of that, you're all right. No one will ask you if 
 you are admitted. " 
 
 In a few minutes our case was called. The company's 
 lawyer, after a short speech, which had the good effect 
 of annoying Sir Robert, who seemed to be in a great 
 hurry, put the commissionaire and the collector in the 
 box. My mind was relieved when he handed me the 
 letter, saying in an aside, that " he didn't want the full 
 fine — only an example ". When my turn came, I simply 
 read the letter and asked the alderman if he did not 
 think it rather hard that a gentleman should be brought 
 into a police court for a mere inadvertence such as any 
 one might commit ; especially after such a fair and 
 reasonable letter. The old man eyed C. for a moment, 
 and then went for the company in a manner perfectly 
 refreshing. Their lawyer tried to expostulate and made 
 matters worse — " Outrageous piece of oppression " — 
 " abominable pettifogging " — such were some of the 
 judicial utterances, and he closed by saying that the 
 defendant left the court with the sincere regret of the 
 bench that he should ever have been brought there. 
 Mr. Lewis turned to me with a pleasant smile and a 
 pleasant wish that my first case might be the commence- 
 ment of many successes, a wish that unfortunately has 
 not been fulfilled. 
 
44 THE GREA T RED PEPPER CASE 
 
 For the rest of that day I imagined myself a second 
 Cicero, and the climax of my pleasure was reached, 
 when in the evening W. came back from Westminster, 
 roaring with laughter, and showed me the " Echo " 
 where, under the heading " Attempt at extortion by a 
 railway company," the magistrate's remarks appeared 
 in full, and the closing sentence was, " the defendant 
 and his youthful solicitor left the court amidst applause, 
 which was speedily suppressed. " C, like a good fellow, 
 took me out to dinner at Blanchard's, and a jolly 
 evening celebrated the lucky termination of my first 
 case. 
 
 THE GREAT RED PEPPER CASE. 
 
 Underdale was in a frenzy of excitement. A dastardly 
 outrage had been committed in the very midst of that 
 usually quiet but somewhat dirty village, and there 
 could not be the slightest doubt that the hand of a 
 political agitator had worked the crime. That mystery 
 of iniquity, the radicalism of Birmingham had penetrated 
 even into these parson and squire-ruled precincts, and a 
 political meeting, which the said parson and squire had 
 deigned to honor with their presence, and at which the 
 
THE GREA T RED PEPPER CASE 45 
 
 pompous and portly member for the county was to 
 have explained to the admiring rustics the glories and 
 benefits of the Tory administration, had been nipped in 
 the bud. In the twinkling of an eye the orderly and 
 expectant concourse had been turned into a disorganized 
 mob, and amidst one long and universal sneeze, the 
 school-room was abandoned to the demon of suffocation, 
 who seemed suddenly to have arisen therein. The 
 parson, (who was decidedly " high church ") had his 
 cassock torn from his shoulders, the county member's 
 gouty toe was stamped on three several times, and the 
 squire emerged from the crush with an unmistakable 
 black eye. 
 
 The physical cause of the catastrophe was plain and 
 patent — some' one had thrown a huge dose of cayenne 
 pepper on the stove. Nor was there much doubt in 
 anyone's mind as to who the culprit was. A certain 
 semi-professional agitator, known as "the Colonel" and 
 dwelling in the large neighboring town of Wardley, a 
 hot bed of radicalism and dissent, had been present at 
 the meeting. But no one had observed a suspicious 
 movement on his part. He was not even near the stove, 
 and he certainly appeared to be one of the most violent 
 sufferers. That he had immediately made tracks for 
 home on gaining the open air could not fairly be 
 regarded as an evidence of guilt on his part, as he must 
 have known that his character and record would expose 
 him to vehement suspicion, and however innocent, he 
 could not be expected to wait till the crowd had finished 
 their nasal performances and were free to use their 
 hands. After mature deliberation, therefore, the parson 
 and squire determined to make no charge against him 
 
46 THE GREAT RED PEPPER CASE 
 
 for want of sufficient evidence. The village folk regist- 
 ered many a deep vow of vengeance against the artful 
 villain if he should ever again appear amongst them, 
 but it is needless to say that he displayed no sort of 
 intention of revisiting Underdale till popular opinion 
 had changed. 
 
 And here the whole matter appeared about to drop. 
 Decent people condemned with sincere indignation the 
 mean trick of a worthless loafer, though, if of the Liberal 
 persuasion, they could hardly repress a quiet smile at 
 the thought of the summary discomfiture of the rustic 
 big-wigs. One man, however, was determined that the 
 crime should not go unpunished and that he, personally, 
 would chastise the son of Belial. This heroic individual 
 was the village school-master, a very David, of diminu- 
 tive stature and flaming zeal. He resolved to beard the 
 Philistine in his den, and, proceeding to Wardley, 
 attempted to horsewhip the " Colonel " on his native 
 heath. His enterprise was not a brilliant success. The 
 whip was quickly plucked from his feeble hands and he 
 was packed off home, not without one or two slight 
 bruises, the unavoidable results of a personal encounter 
 with a man twice his size. Hereupon he instantly took 
 out a summons for assault and battery and the seat of 
 war was transferred from the remote precincts of 
 Underdale to the more metropolitan locality of Wardley. 
 
 The judicial authority of Wardley was vested in the 
 hands of some fifteen or twenty borough magistrates, 
 who sat in regular rotation, five together, three times a 
 week. They were honest, respectable men of impartial 
 intentions, where politics were not concerned — but all 
 
THE GREAT RED PEPPER CASE 47 
 
 Tories. The oldest inhabitant could scarcely remember 
 the day when a Tory sat as member for Wardley, and 
 yet the borough bench still remained the exclusive pro- 
 perty of that party, partly through the negligence of 
 Liberal governments, who bestowed little attention on 
 a constituency too faithful to resent neglect, and partly 
 from the fact that the Liberal strength lay principally 
 amongst the working classes and the lesser trades- 
 people, small fry, not heavy enough to bear the sub- 
 stantial dignity of a J. P. on their shoulders. When, 
 therefore, the school-master determined to lay his griefs 
 before the local magistracy, he had little reason to 
 doubt a final triumph. When it was further announced 
 that the Conservative Association had taken up his 
 case and had retained the most formidable attorney in 
 the district to prosecute, the Liberal began to feel that 
 the affair was getting very like a persecution, and whilst 
 by no means proud of their man, yet determined to see 
 him through. Their secretary therefore placed the 
 defence in the hands of a young lawyer who was fast 
 becoming known as a successful advocate and who had, 
 moreover, the qualities essential in such a case as this, 
 of unlimited "nerve" and great irreverence for constituted 
 authorfty. To escape conviction was impossible. Five 
 average Wardley Tories, or, for the matter of that, five 
 average Wardley Liberals, would find Abel guilty of 
 the murder of Cain, if politics were involved, and here 
 was a matter were even an impartial man might find 
 grounds to convict. The only thing to be done was to 
 make as much political capital out of the affair as 
 possible and compel the magistrates either to listen to 
 some very plain talk about Tories in general and local 
 Tories in particular, or to lay themselves open to the 
 
48 THE GREAT RED PEPPER CASE 
 
 denunciations of the borough press for having "gagged 
 the defendant's advocate," " stifled Hberty of speech," 
 etc., etc. We may remark by way of parenthesis, that 
 an English attorney always feels very independent and 
 masterful before a borough bench. As a professional 
 man, he is the equal in social standing of any of the 
 men before whom he is pleading, and, unless they happen 
 to be his personal friends, cares not one straw for their 
 good will or their anger. 
 
 On the appointed day, the police court was of course 
 crowded. On the bench the magistrates whose term of 
 duty it was, were supported by most of their brethren ; 
 one or two county magistrates were also present, amongst 
 them the Underdale squire. He took occasion to remark 
 that he was not there with the intention of acting 
 judicially, to which he received the curt retort from the 
 Liberal lawyer, that, as he had no jurisdiction in the 
 borough, he had no business on the bench, and, in fact 
 would have shown more decency in staying away. 
 This, of course, led to a preliminary wrangle, and had 
 the result of making all the magistrates very ferocious. 
 The prosecuting attorney himself, old hand as he was, 
 got a little angry and consequently examined his client 
 with rather less than his wonted skill. In cross-examin- 
 ation, the little school-master completely broke down. 
 He admitted that he commenced the affray by a 
 premeditated attack and that the defendant only used 
 sufficient force to drive him away, closing with a pictur- 
 esque account of the red pepper incident, so dolefully 
 given that one or two of the magistrates even could not 
 repress a smile and the crowd in the court house roared 
 with delight. Cheered by this unexpected success, the 
 
THE GREAT RED PEPPER CASE 49 
 
 defendant's attorney suddenly changed his tactics, and, 
 instead of the red hot speech he had prepared, addressed 
 the bench in a quiet matter of fact way, pointing out, 
 what could not be gainsaid, that there was absolutely 
 no case made out and that the defendant was entitled 
 to an immediate acquittal. To close the whole affair, he 
 declared that he would put the defendant himself in 
 the box and his learned friend could cross-examine 
 him to his heart's content. But his learned friend by no 
 means appreciated the proffered privilege and strenu- 
 ously objected that the defendant was not competent 
 to give testimony. He knew the " Colonel " to be a 
 keen, unscrupulous and practised witness and felt that 
 even his searching questions would be rained in vain 
 upon such an old intriguer. After much debate, the 
 bench, on the advice of their clerk, though sorely 
 against their will, decided to admit the evidence. They 
 could not, in fact, do otherwise, as time and again 
 defendants had been heard without objection in cases 
 of assault. Accordingly the " Colonel " mounted the 
 witness stand, and after a short examination upon the 
 actual facts of the case, was handed over to the tender 
 mercies of his opponent. S. was in a dilemma. Had he 
 possessed any definite information on which to work, 
 any specific facts upon which he could hope afterwards 
 to catch his man in perjury, he would undoubtedly 
 have attacked him with all his accustomed vigour and 
 skill ; but failing this, he chose discretion as the better 
 part of valour, and declared he had no questions to ask, 
 adroitly insinuating that it would be a mere waste of 
 time to question a man whom nobody would believe. 
 
 The case being ended, the magistrates of course did 
 
50 THE GREAT RED PEPPER CASE 
 
 their part of the work, convicting the defendant and 
 imposing upon him the heaviest fine in their power, — 
 forty shillings if we remember rightly. The paltry sum 
 was instantly paid, and the Liberals retired jubilant at 
 the admirable specimen of magisterial injustice thus 
 provided for denunciation and at the large political 
 returns which the few pounds spent on the trial would 
 bring in. The poor school-master got more kicks than 
 halfpence, being roundly abused by his own party for 
 his failure in the witness-box. A course of reflection 
 upon the ingratitude of political friends subsequently 
 converted him into a Liberal, a conversion which some- 
 how coincided with his removal from Underdale to a 
 mastership in a dissenting school at Wardley, whilst 
 the " Colonel ", by accounts received only the other 
 day, is now reaping a golden harvest as a conservative 
 registration agent and stump speaker, in view of the 
 approaching elections. 
 
HOW MR. H. BECAME A JUDGE 51 
 
 HO W MR. H. BECAME A JUDGE. 
 
 Mr. H., Q. C. was a very successful but a very dis- 
 contented man. Beginning as an attorney's office boy, 
 his first ambition was to become an attorney. When he 
 had gained this point, he yearned to be a barrister. 
 The wig assumed, he straightway was eager for the silk 
 gown. This donned, he wanted a fortune. The fortune 
 made, he wanted a position in " society " and married 
 accordingly. And now, all else gained, his restless 
 ambition desired a seat on the bench. For more years 
 than he cared to remember he had led his circuit. For 
 at least ten years he had been recognized as one of the 
 half dozen leading advocates at the bar. Hard work 
 had been his lifelong habit, and the regular and impar- 
 tial ease of judicial routine appeared by comparison a 
 haven of rest, for which he could well afford to make 
 the sacrifice of income involved in promotion to the 
 bench. So it came to pass that on the clear October 
 morning with which our story commences,- the subject 
 of Mr. H's reflections, as he walked down to chambers, 
 was " how shall I become a judge ? " 
 
 None of the ordinary obstacles to promotion stood in 
 his way. His reputation as a great advocate was, as we 
 have said, established. After a long " outing " his political 
 friends were again in power, and though he had never 
 sat in parliament, yet he had thrice carried the Conserv- 
 
52 HOW MR. H. BECAME A JUDGE 
 
 ative colours through hot battle to honorable defeat in 
 a perversely Radical constituency. He had spent much 
 money for the party, and he had friends in high places 
 who would not let his merits be forgotten. But (there 
 is always a fatal " but " in these cases) the chancellor 
 was a great lawyer, and a most conscientious man. He 
 never had appointed, he had repeatedly said, he never 
 would appoint, any man to the bench who was not a 
 thdrough lawyer. Now, Mr. H., Q. C, was not even an 
 average lawyer. His practical mind had always abhorred 
 studies which bore no immediate, evident fruit. No 
 attorney would ever have thought of briefing the 
 " learned " gentleman in a case where much law was 
 required. He was pre-eminently a nisi prius man, irres- 
 istible with a jury, weak before the court "in banc". 
 How should this difficulty be got over ? This was 
 troubling his mind, and as he entered chambers his 
 ancient clerk at once perceived that the " old man " was 
 not in the best of humours. 
 
 On Mr. H.'s desk lay a new and bulky brief. He 
 glanced first at the fee, and then at the title, and mut- 
 tering " that confounded Fraser case again ! " turned to 
 his letters, one of which particularly interested him. It 
 was from his firm friend, the attorney-general, and con- 
 tained the news, received at first hand, that old Judge 
 Jones had definitely made up his mind to take his pen- 
 sion and retire at the end of the year. How was Mr. H. 
 to step into the old judge's shoes ? Whilst still ponder- 
 ing over this problem, Mr. H.'s eyes fell upon the Fraser 
 brief, and as with a flash of light he saw his way clear. 
 This " Fraser v. Jackson " case, it must be explained, 
 was a cause belonging to that difficult class of which 
 
HOW ma: H. became a judge 53 
 
 " Fletcher v. E.ylands " may be taken as an example. 
 Mr. H. had led for the plaintiffs at Assizes. The case 
 had then gone to a referee, and now came up again 
 upon the referee's findings for argument before the full 
 court. The brief " in banc " would assuredly never have 
 been intrusted to Mr. H., but for the fact that the plain- 
 tiffs were already so exhausted by the prolonged litiga- 
 tion that their solvency was becoming doubtful, and the 
 attorney, one of H's oldest cHents, felt that he could 
 rely upon H. (who, with all his defects, had a somewhat 
 higher standard of professional honor than most leaders 
 at the bar) to overlook the smallness of the fee, and do 
 the .best he could. " H. knows, " said the attorney to 
 his factotum, when the question was discussed between 
 them, " that I always give him liberal fees when I can, 
 and I think he is man enough to take small allowance 
 for once. " It is possible that the attorney might have 
 reckoned without his host but for the happy coincidence 
 that the case furnished H. with the very chance he 
 wanted. Here was a purely legal argument of the high- 
 est kind, in which several public and private Acts of 
 Parliament had to be reconciled with each other, and 
 had all to be brought into subordination to one of the 
 most subtle of legal principles. It was a case, too, of 
 great commercial importance ; one that would be sure 
 to enlist the careful attention of the judges, and if H. 
 could only play his part well, and appear in the new 
 character of a genuine lawyer, the chancellor's ban might 
 be lifted, and the coveted ermine attained. 
 
 Filled with this hope, H. settled down to read his 
 brief He found it diffuse, full and careful. Cases 
 were cited by the dozen, and no point or difficulty 
 
54 HOW MR. H. BECAME A JUDGE 
 
 seemed to be overlooked. Next day H. deliberately, 
 and to the extreme surprise of his clerk, abandoned a 
 sensational divorce suit, and spent his time in the 
 Temple library. For a week he studied as he had 
 never studied before, and at last he felt the glow of 
 conscious mastery, and knew that he had the whole case 
 at his finger's ends. 
 
 When the day of hearing arrived both the junior 
 counsel (a man as old as H. himself, and a better lawyer) 
 and the attorney were surprised alike at H's fluency and 
 confidence in consultation, and at his extreme urbanity. 
 The attorney, unaccustomed to compliments from 
 queen's counsel, almost blushed when H. told him the 
 brief was the best he had ever read, and the junior 
 speedily perceived that for once he would not have to 
 coach his leader. At length the argument commenced. 
 The chief justice and Blackburn started off as usual with 
 interruptions, but the chief, who could listen quietly 
 when he once felt sure that the speaker was worth 
 listening to, soon became silent, and treated Blackburn 
 to a neat snub that had the desired effect. H. was at his 
 best that day. All the eloquence and skill of the mere 
 advocate were subdued and unobtrusively employed to 
 render lucid an unbroken and logical argument, which 
 seemed to demonstrate itself. For nearly three hours 
 he held the close attention of the court. His opponent 
 was a far superior lawyer, but he was altogether unpre- 
 pared for such an attack. When the argument was 
 finished it was evident that the court was strongly with 
 the plaintiffs, though the complexity and importance of 
 the case demanded a " C. A. V. " and written opinions. 
 Time to consider being duly taken, at the end of two 
 
HOW MR. H. BECAME A JUDGE 55 
 
 months (an extraordinary delay in an English court) 
 judgment was given for the plaintiffs. ■ The opinions 
 alone occupy more than one hundred pages of the Law 
 Reports, but no case was cited and no point advanced 
 by any of the judges which had not been taken by Mr. 
 H. in argument. 
 
 On his way home after the hearing, H. was overtaken 
 by the chief, who paid him a warm compliment, adding 
 with a little sub-acid smile, that the argument had sur- 
 prised him as much as thunder out of a clear sky. The 
 chancellor of course heard from friendly sources all 
 about H.'s thorough mastery of mining law, and when 
 old Jones, true to his word, retired, Mr. H., Q. C, 
 became Sir W. H., one of her majesty's judges. He still 
 ornaments the judicial bench, of which he is one of the 
 most useful members, and the only peculiarity remarked 
 about him by the critics of the bar is the frequency with 
 which he fetches in " Fraser v. Jackson, " head and 
 shoulders, to illustrate any and every disputed point of 
 law. 
 
56 A FEUDAL LAWSUIT 
 
 A FEUDAL LAWSUIT. 
 
 The bishop of Cahors, in Southern France, was a high 
 and mighty ecclesiastical potentate in his day, a tem- 
 poral count, having amongst his vassals the neighboring 
 baron of Cessac. On the day of the installation of each 
 bishop, the baron for the time being had to perform a 
 part of conspicuous humiliation. It was his duty, and 
 the tenure upon which he held his fief, to meet his epis- 
 copal master without the city walls, and bareheaded, 
 barefooted, minus his mantle, to lead the bishop's mule 
 to the cathedral. The day's proceedings closed with a 
 banquet at the palace where the baron waited at table, 
 receiving as his due the buffet or sideboard used at the 
 feast, and the mule. 
 
 Mgr. de Popian however, who became bishop of 
 Cahors in 1604, not content with the accustomed 
 humiliation, increased the indignity and compelled his 
 reluctant vassal to lay aside his sword and girdle. He 
 also — and this was " real mean " on his part — added 
 injury to insult, and instead of the silver-gilt buffet 
 usually decorating the episcopal feasts, and which was 
 a substantial balm to the wounded feelings of his lordly 
 vassal, tried to palm off on him a second-hand affair, 
 picked up perhaps in some pawn-shop. This proved the 
 
A FEt/DAL LAMTSUn^ 57 
 
 proverbial "last straw." De Cessac straightway brought 
 suit, and on May loth in the same year got a judgment 
 from the court of first instance sitting at Toulouse by 
 which the bishop was condemned to deliver to him a 
 buffet of the accustomed magnificence or in default to 
 pay its value. This was subsequently fixed by experts 
 at the sum of 3123 livres. For some reason not appear- 
 ing in the records, the bishop backed down and accepted 
 the judgment. Doubtless when singing the Magnificat 
 in after days, the "deposuit potentes et exaltavit kumiles," 
 had a somewhat personal sound in his lordship's ears. 
 
 His successor however, Pierre de Habert, instituted 
 in 1627, was in no mind to be amerced in 3,000 livres 
 for the sake of an empty ceremony. He therefore 
 dispensed with any formal entry into his see, and not 
 having called upon De Cessac for any homage thought 
 himself safe. But the baron was just as practical a man 
 as the bishop, and being poor, was quite willing to put 
 his pride in his pocket for a day, for the sake of a 
 handsome addition to his revenues. He sued the bishop, 
 offering his homage and demanding a recompence, and 
 again was victorious, recovering a judgment for the 
 value of the buffet ascertained as above, subject to the 
 liability to perform his homage when called upon. 
 
 The Bishop now appealed, not only from the present 
 judgment but also from the previous decision of 1604, 
 and a great wrangle of lawyers arose. It , would be 
 wearisome to go through all the arguments as reported 
 in the Arrets de Toulouse, but we cannot avoid noticing 
 the skill and ingenuity displayed on both sides, and 
 the wealth of classical learning by which so dry a 
 
58 A FEUDAL LAWSUIT 
 
 subject was adorned and illuminated. Virgil, Pliny, 
 Seneca, Plutarch, Juvenal, are only some of the 
 authorities quoted. The origin of the custom of uncov- 
 ering the head in token of reverence is, as the French 
 say, " approfondi ", and we are shown that the '' cap of 
 liberty " derives its significance from this very custom. 
 The incident of the conspirators who after the death of 
 Caesar ran into the forum with caps on their pikes is 
 appositely cited in this connection. A great deal of 
 curious information about homage, and many interesting 
 historical points can also be found scattered through the 
 yellow pages of the old book, but we must pass these 
 over and content ourselves with recording the final 
 result, which was in favor of the baron, the principle of 
 the decision being that the duties of baron and vassal 
 were reciprocally binding, and the lord could no more 
 dispense with homage and its incidental recompence, 
 than the vassal could refuse service. 
 
A LEGAL ROMANCE 59 
 
 A LEGAL ROMANCE, OR THE SWINFEN CASES 
 
 Some thirty years ago there dwelt in Staffordshire 
 an old country gentleman named Sam Swinfen, the 
 possessor of an estate valued at between ;^6o,ooo and 
 ;£^7o,ooo. He had inherited his property somewhat 
 unexpectedly, and was accustomed to complain of the 
 ruinous condition in which he found it, the Manor 
 House, Swinfen Hall, being so dilapidated as to be 
 almost uninhabitable, and the most valuable article 
 therein being, as he averred, a half barrel of sour beer 
 in the cellar. This state of things he ascribed to the 
 extravagance of his predecessor in the title, and for 
 many years he and his wife passed a secluded life in 
 two rooms of the old mansion — on her death in 1848, 
 however, he invited his only son, H. I. Swinfen, to take 
 up his abode with him. This the younger man did, 
 bringing with him his wife, with whom he had con- 
 tracted a romantic marriage against his father's approval. 
 The old sore was healed, and a complete reconciliation 
 took place. The son set about improving the estate, 
 with marked success, and all went well till the latter's 
 sudden death in 1854. The father was now eighty years 
 of age, and in a state of physical, and as it was then 
 thought, mental paralysis. In fact, friends of the family, 
 writing in the widow's behalf in answer to letters of 
 
60 A LEGAL ROMANCE 
 
 condolence, stated that " old Mr. Swinfen was happily 
 spared the shock, being incapable of understanding the 
 loss he had sustained, " Under these circumstances the 
 widow, who, let us state at once, is the heroine of our 
 tale, actually took some steps to test his sanity, but the 
 doctors differing, nothing was done. 
 
 The old gentleman, in fact, was not insane. He knew 
 that in default of a will the estate would pass to the 
 heir-at-law and representative of his predecessor, Cap- 
 tain Swinfen, of the Sixth Dragoon Guards, and after 
 due consideration he gave instructions for, and executed 
 a will, whereby he devised the whole property to the 
 widow. The will was made on July 7, 1854, and on the 
 26th of the same month the testator died. 
 
 Thereupon, Captain Swinfen cast about for means of 
 upsetting the testament, and invoked to his aid the old 
 familiar friend of lawyers — "mental incapacity." He filed 
 a bill in Chancery, and by consent an issue devisavit vel 
 non was sent down for trial, and came on for hearing 
 before Creswell, J., and a special jury at Stafford Assizes 
 on Saturday March 15, 1856. For the widow, plaintiff 
 on the issue, Sir F. Thesiger, afterwards Lord Chan- 
 cellor Chelmsford, was specially retained to lead, and 
 on the other side appeared the famous Chief Justice 
 Cockburn, then attorney-general. 
 
 On the first day's hearing the ladies who had written 
 the letters after the son's death were called, and in 
 cross-examination admitted their previous statements 
 as to the old man's incapacity to recognize his loss, he 
 having actually stated to one of them that the person 
 
A LEGAL ROMANCE 61 
 
 dead was Mrs. Swinfen. Other damaging points also 
 were made against the will, and Thesiger was so 
 impressed that he sent for the widow to his lodgings, 
 and strongly urged her to leave the matter in his 
 hands to settle as best he could. It appears the judge 
 had privately intimated to Thesiger his opinion that 
 the case was going against him, and Thesiger led the 
 widow to understand that the defendant offered to 
 settle on her an annuity of .^1,000 if she would give up 
 the estate. This, with the courage and pertinacity she 
 showed from beginning to end of the litigation, she 
 absolutely refused. She was ultimately prevailed upon 
 to take the night to think the matter over, but next 
 morning saw no change in her determination, and she 
 telegraphed to Thesiger "offer refused." We may judge 
 then her astonishment, when on arriving at court on 
 Monday morning, she was met by her counsel leaving 
 the court room, and coolly informed that he had done 
 the best he could for her, and had settled the matter 
 on the terms originally proposed. Sir H. Burrard was 
 with her, and demanded of Thesiger by whose authority 
 he had acted. " By yours, " replied Thesiger. " The 
 deuce you did ! " exclaimed Sir Harry. Thesiger, how- 
 ever, marched off, and the widow was left to digest the 
 situation as best she could. 
 
 But if the heir had a verdict, the widow had possession, 
 and to possession she clung. From the beginning she 
 had asserted that she would stand or fall by the will, 
 and at this crisis she rose to the occasion like Maria 
 Theresa, and, abandoned by all, she quietly returned to 
 the Hall, and awaited events. Speedily possession was 
 demanded and refused. The heir's next step was to 
 
62 A LEGAL ROMANCE 
 
 take a rule nisi for attachment against her. This was 
 quashed on the ground of insufficient proof of disobe- 
 dience {Swinfen v. Swinfen, L. J. R, 25 C. P. 303), 
 but the court, consisting of Cresswell, Williams, and 
 Willes, J. J., all seemed to agree that the compromise 
 was binding. 
 
 Another rule accordingly was taken out {Swinfen v. 
 Swinfen, L. J. R., 26 C. P. 97), in answer to which 
 Mrs. Swinfen made an affidavit setting out all the facts. 
 Fortunately for her, Crowder, J. happened to be sitting 
 this time, and he held distinctly that the mere relation- 
 ship of counsel and client did not give a general power 
 to compromise, and that there was no special authority 
 shown, but on the contrary an emphatic repudiation. 
 The other judges held to their previous views, but the 
 practice of the court being to confirm rules for attachment 
 only when the judges were unanimous, the rule fell 
 through, and the widow escaped as by fire. 
 
 The heir, who evidently had more confidence in the 
 verdict already obtained than in the result of a fresh 
 trial, went to chancery with a supplemental bill for a 
 decree for a specific performance of the compromise 
 {Swinfen v. Swinfen, 27 L. J. R. Eq. 35), and now,a 
 fresh actor appeared upon the scene, in the person of 
 Kennedy, a provincial barrister practising at Birming- 
 ham, who had taken up the forlorn widow's cause, and 
 who proved a champion very different from Thesiger. 
 The Master of the Rolls, Romilly, in an able and 
 exhaustive judgment, rejected the compromise, taking 
 the same view as Crowder, that counsel had no power to 
 give estates away at his own discretion He instanced 
 
A LEGAL ROMANCE 63 
 
 with approval a case within his own knowledge where a 
 great advocate had in open court refused to consent to 
 a compromise actually agreed to by his client, on the 
 ground that the client did not understand the sacrifice 
 he was making, and refusing the specific performance 
 prayed, he ordered a new trial. 
 
 This' judgment was the first crumb of comfort that 
 had fallen to the widow's lot, but was, of course, far 
 from pleasing to the heir, who appealed — only to get 
 an excoriation from the lords justices [Swinfen v. Swin- 
 fen, 27 L. J. R. Eq. 69). Knight Bruce observing that 
 the heir's attempt was only a pis aller, and varying the 
 Master of the Rolls' decision in the widow's favor, so 
 far as to give her costs of the suit. 
 
 The new trial accordingly came on at Stafford in 
 March 1858. The evidence of the letters remained, but 
 a mass of other evidence was put in, all tending to 
 show that the testator's mental faculties, if impaired at 
 all, were not so damaged as to deprive him of testa- 
 mentary competency. The judge summed up against 
 the widow, but the jury were not influenced by his lord- 
 ship, and returned a verdict establishing the will, a 
 result due principally to the able advocacy and thorough 
 mastery of the case displayed by Kennedy. 
 
 ■ The heir was not yet shaken off however. He went 
 to the Master of the Rolls for a new trial {Swinfen v. 
 Swinfen, 28 L. J. R. Eq. 849), but far from getting it 
 the Master stated that had the verdict been otherwise 
 he would have sent the case down again. In the course 
 of argument Kennedy went far and wide for instances 
 
64 A LEGAL ROMANCE 
 
 of physical imbecility combined with mental competency. 
 Many eminent characters in history were referred to, 
 amongst others the great Marlborough, who stricken 
 with paralysis, his mouth awry, unable to articulate, 
 was yet competent to make a most important codicil 
 just before his death. Lord Eldon, the famous chancellor, 
 Sir Herbert Jenner Fust, who suffered from the very 
 disease which affected the testator, and a recent judge 
 (not named) who, though struck with hydrocephale, yet 
 performed his duties "with transcendant ability" to the 
 very last. The whole report, in fact, is well worth read- 
 ing by the student of medical jurisprudence. 
 
 The writer ventures to think, from his limited obser- 
 vation of human nature, that the desire for vengeance 
 is usually stronger with the fair sex than with their 
 soi-disants lords and masters. Mrs. Swinfen was no 
 exception to this rule. Flushed with victory, she now 
 entered the lists against her late counsel, the august 
 chancellor himself, and sued Lord Chelmsford for dam- 
 ages for a "fraudulent" compromise against instructions. 
 Swinfen v. Chelmsford, L. J. N. S. Fxch. 383. This, 
 however was a little too much, and the court unanim- 
 ously dismissed her suit, and settled by its decision the 
 powers and responsibilities of counsel. And here, if this 
 were a novel, and not a statement of facts, would come 
 the obvious and happy conclusion, viz. : the marriage 
 of the plucky widow to her devoted advocate, and the 
 usual notice in the Times, " St. George's Hanover 
 Square — Swinfen to Kennedy. No cards. " But unfor- 
 tunately the affairs of mankind seldom end correctly. 
 Mrs. Swinfen did not become Mrs. Kennedy, but she 
 did become Mrs. Brown, and thereupon followed another 
 
A LEGAL ROMANCE 65 
 
 great suit, viz : the leading case of Kennedy v. Brown 
 and wife, 32 L. J. R. C. P. 137. Kennedy alleged that 
 having given up his other practice, and devoted himself 
 wholly to the advocacy of the widow's rights, both at 
 the bar and by writings and pamphlets, " designed to 
 render her cause popular, " she had agreed in return to 
 pay him a fee of ;^2o,ooo in the event of success, and 
 for this sum he sued. Upon the argument English 
 common lawyers became civilians for the nonce, and 
 went deep into the mysteries of the " lex cincia, " and 
 the old usages of the Roman patrons and advocates. 
 Erie C. J. presided, and delivered perhaps his finest judg*- 
 ment, settling what in fact had hardly before been 
 seriously doubted, that an English barrister's fee is an 
 honorarium, and cannot be made the subject of a legal 
 claim. He was terribly hard on poor Kennedy, but as 
 a specimen of judicial eloquence his deliverance can 
 hardly be surpassed, and we cannot resist the tempta- 
 tion of quoting therefrom the following description of a 
 model advocate; "We are aware that in the class of 
 " advocates, as in every other numerous class, there will 
 " be bad men taking the wages of evil and therewith 
 " also for the most part, the early blight that awaits 
 " upon the servants of evil. We are aware also that 
 " there will be many men of ordinary powers perform- 
 " ing ordinary duties without praise or blame ; but the 
 " advocate entitled to permanent success must unite high 
 " powers of intellect with high principles of duty. His 
 " faculties and acquirements are tested by a ceaseless 
 " competition, proportioned to the prize to be gained, 
 " that is, wealth and power and honor without, and ac- 
 " tive exercice for the best gifts of mind within. He is 
 
66 A LEGAL KOMA-NCE 
 
 " trusted with interests and privileges and powers almost 
 " to an unlimited degree. His client must trust to him 
 " at times for fortune and character and life. The law 
 " trusts him with a privilege, in respect of liberty of 
 " speech, which is in practice, bounded only by his own 
 " sense of duty, and he may have to speak on subjects 
 " concerning the deepest interests of social life, and the 
 " innermost feelings of the human soul * * * If an ad- 
 " vocate with these qualities stands by the client in the 
 " time of his utmost need, regardless alike of popular 
 " clamour and powerful interest, speaking with a bold- 
 " ness which a sense of duty can alone recommend, 
 " we say the service of such an advocate is beyond all 
 " price to the client, and such men are the guarantees 
 " to communities of their dearest rights, and the words 
 " of such men carry a wholesome spirit to all who are 
 " influenced by them. Such is the system of advocacy 
 " intended by the law ; requiring the renumeration to be 
 " by gratuity. " And he then proceeds with little diffi- 
 culty to show, from a long course of precedent, that such 
 an action as the present could not lie. 
 
 After this nothing was left for Kennedy but ruin, to 
 which he added disgrace, by certain unsavory statements 
 made in the bitterness of despair. He was discommoned 
 for six months by the Benchers, and died broken- 
 hearted, perhaps the only instance of a lawyer who 
 saved his client and ruined himself. 
 
 As for Mrs. Swinfen, she may, for all the writer 
 knows, still be living full of years and honours at 
 Swinfen Hall, but if so, she is the sole survivor of the 
 dramatis personoe in the " Swinfen cases. " Thesiger, 
 
A FORGOTTEN TRAGEDY 67 
 
 Cockburn, Romilly, Knight Bruce, Erie, and all the 
 other erst famous advocates and judges who figured in 
 this long litigation, have now passed to a world where, 
 it is to be presumed, briefs and special retainers are 
 unknown, and new trials are not allowed. 
 
 A FORGOTTEN TRAGEBY. 
 
 In these days when dissatisfaction with the slow, 
 oftimes halting course of American criminal law is so 
 generally and loudly expressed, it may be worth our 
 while to look back to the annals of the past, and 
 examining its long and ghastly record of judicial mur- 
 ders, to pause and see if the old saw " better that nine 
 guilty should escape than that one innocent ^ should 
 perish " is not, after all, exactly true. It is not by the 
 famous instances which are every-day citations that we 
 can judge of the number of victims that have been 
 immolated on the altar of a hasty vengeance, miscalled 
 justice, but by those long forgotten tales of wrong that 
 lie hidden in the dusty recesses of English archives. 
 
68 A FORGOTTEN TRAGEDY 
 
 Let us drag one such story to light, a story strange in 
 all its circumstances, but singular not so much in its 
 terrible injustice as in the completeness with which that 
 injustice was afterward revealed — too late for human 
 redress. This is no cause celebre, but the tragedy of a 
 quiet country side, one sample of hundreds long since 
 forgotten by mankind. 
 
 On Thurday, August i6, 1660 (Car. II, D. G. Rex)i 
 William Harrison, a man seventy years of age, and the 
 trusted steward of Lady Campden, of Campden Hall, 
 Gloucestershire, went from the Hall to the village of 
 Charringworth, about two miles distant, to collect rents. 
 He did uot return at his usual hour, and, night approach- 
 ing, his wife sent a man servant, one John Perry, to 
 meet him and escort him home. Neither master nor 
 servant reappearing, Edward Harrison, the steward's 
 son, started very early next morning for the village, 
 and on his way met Perry, who told him he had made 
 inquiries at Charringworth, but Mr. Harrison was not 
 there. Thence they went to Ebrington, and after various 
 inquiries found a poor old woman, who whilst out 
 "leasing" (gleaning), had picked up the missing man's 
 "hat, band and comb," hacked with a knife and covered 
 with blood, in the highway. A general search now took 
 place throughout the district, but no further traces of 
 the murder could be found, nor was the body discovered. 
 
 Perry's absence from the Hall over night caused sus- 
 picious to attach to him, and he was brought before a 
 justice of the peace and examined. He stated that after 
 starting for Charringworth he grew afraid of the dark- 
 ness, and meeting William Reed turned back with him 
 
.4 FORGOTTEN TRAGEDY 69 
 
 as far as the Hall gate, where they parted. After this 
 one Pearce came along, and he started a second time 
 with him, but his heart failing him, he again re- 
 turned and went into the hen-roost, where he lay for 
 about an hour, but slept not, and on the clock striking 
 at mid-night he rose and started a third time for 
 the village. He lost his way in a fog, and spent the 
 night under a hedge. Before day-break he resumed his 
 journey, and after calling at a house there, started back, 
 and met his master's son, as before narrated. Reed and 
 Pearce corroborated his statements as to their meeting 
 him. Being asked " how he, who was afraid to go at 
 nine, became so bold as to go at twelve ? " he answered 
 that at nine it was dark, but at twelve the moon shone. 
 Asked again " why, returning twice home, he went not 
 into the house to know whether his master were come 
 home before starting a third time ? " he answered that 
 he knew he was not come home, because he saw a light 
 in his chamber window, which never used to be there so 
 late when he was at home. His explanation however 
 was not considered satisfactory enough to clear him, 
 and he remained in custody till the following Friday, 
 August 24th, when he stated " that if he were again 
 carried before the justice he would discover to him what 
 he would discover to nobody else." He was accordingly 
 again placed before the rural Solon, and stated that 
 Harrison had been murdered, but not by him. Being 
 urged to speak out, he said that it was his (Perry's) 
 mother and brother who had committed the murder. 
 Aghast at this, the magistrate cautioned him earnestly 
 to beware what he said, but he persisting, his confession 
 was ultimately received. He said that ever since enter- 
 ing Harrison's service his mother and brother had urged 
 
70 A FORGOTTEN TRAGEDY 
 
 him to help them to money, and had finally suggested 
 that he should give them notice when Harrison went 
 to receive the rents, and they would waylay and rob 
 him. On the morning of the murder he met his brother, 
 and told him of his master's journey, and in the evening 
 when sent to meet Harrison he found his brother lying 
 in wait. They walked together to the church-yard, a 
 short distance from the Hall gates, and there parted 
 John going through the yard, and his brother, following 
 the highroad which bent around the church. At the 
 other side they met again, and kept company till they 
 reached a gate leading into the Coneygre grounds, 
 through which was a short cut to the Hall for those 
 having a key. Approaching, they saw some one pass 
 through the gate, and concluding it was his master he 
 left his brother to enter the Coneygre alone, and walked 
 up and down a short while. Then entering the enclosure 
 he saw Harrison on the ground, his brother, Richard 
 Perry, kneeling on him, and his mother, Joan Perry 
 standing by. Harrison was not then dead, but his 
 brother strangled him, and took a baj of money out of 
 his pocket. They carried the corpse into the garden, 
 and after consulting what to do with it, agreed to throw 
 it " into the great sink by Wallington's mill, behind 
 the garden." The prisoner however went up to the 
 house to guard against interruption, and he did not see 
 either his mother or brother again that night. It was 
 after all this that he returned to the Hall gate and met 
 Pearce. The hat, band and comb, he had slashed with 
 his knife, and thrown into the highway to raise a false 
 scent. 
 
 Upon so circumstantial a confession as this, John and 
 Richard Perry were of course arrested, and brought up 
 
A FORGOTTEN TRAGEDY 71 
 
 for examination the following day. Both stoutly denied 
 the charge, but in their presence, and in the face of 
 their denials and appeals, John Perry adhered to his 
 statement, which, to the excited minds of the rustic 
 bystanders, derived corroboration from the following 
 incident. On the return from the justice's house "Richard 
 " Perry, following a good distance behind his brother 
 " John, pulling a clout out of his pocket, dropped a ball of 
 " inkle, which, one of the guard taking up, he desired him 
 " to restore, saying ' it was only his wife's hair lace,' but 
 " the party opening it, and finding a slip-knot at the end 
 " went and showed it to John, who was then a good 
 " distance before, and knew nothing of the dropping and 
 " taking up of this inkle, but being showed it, and asked 
 " whether he knew it, shook his head, and said ' yea, to 
 " his sorrow, for that was the string his brother strangled 
 " his master with'." But a still more damning proof was 
 to follow. Next day, " being the Lord's Day," the pri- 
 soners were brought to church, the parson doubtless 
 thinking that his persuasive powers might succeed where 
 the rigours of the law had failed, and on their way they 
 were met by two of Richard Perry's children, who, 
 running to meet him, " straightway both their noses fell 
 a bleeding," a circumstance which, the chronicler tells 
 us " was looked upon as ominous." Doubtless after this 
 the guilt of all three was an accepted fact in the neigh- 
 bourhood, which it would have been impiety to question. 
 
 And as if murder were not enough, a fresh crime was 
 laid to their charge. In the previous year £\A^o had 
 been stolen out of the Hall, under circumstances which 
 showed a concerted plan between some inmate and 
 parties outside. The robbery Perry now confessed to 
 
71 A FORGOTTEN TRAGEDY 
 
 as being arranged and carried out between himself and 
 his fellow-prisoners, and for this, as well as the principal 
 offence, they were all committed to stand their trial at 
 the approaching Assizes. 
 
 The corpus delicti however was still missing. The 
 pool mentioned by Perry, and all other possible and im- 
 possible hiding places in the neighborhood were 
 searched, but no body could be found. 
 
 In September the assizes were held. The presiding 
 judge refused to try the charge of murder in the absence 
 of any evidence of the disposal of the body, but to the 
 charge of robbery all three pleaded guilty. They 
 claimed and obtained the benefit of the Act of Oblivion, 
 passed on the occasion of the king's restoration, and 
 their plea of guilty was probably entered with a view to 
 this, but none the less, it remained a most damaging 
 fact against them, as they found afterward to their cost. 
 It should also be noted that on this occasion John Perry 
 persisted in his confession of the murder. 
 
 They remained in custody till the spring Assizes, 
 when they were again arraigned on the capital charge, 
 and pleaded " not guilty." John Perry said he was mad 
 when he made his confession, and knew not what he 
 said. It was however put in evidence, and they were 
 actually convicted, and in due course executed on Broad- 
 way Hill, in sight of Campden Hall. The mother was 
 the first to suffer, " being reputed a witch, and to have 
 so bewitched her sons they could confess nothing while 
 she lived." Richard's turn came next, and he died 
 imploring his brother " for the satisfaction of the whole 
 
A FORGOTTEN TRAGEDY 73 
 
 world, and his own conscience, to declare what he knew." 
 Last John mounted the gallows, " with a dogged and 
 surly countenance." his dying statement being that " he 
 knew nothing of his master's death, but they might 
 hereafter possibly hear." The victims were hanged in 
 chains, Harrison's son standing at the foot of the gibbet 
 the while, and then the three corpses were left, in sum- 
 mer's heat and winter's frost, till the grinning skeletons 
 and clanking fetters made the hill a place of dread. 
 Truly our ancestors had no figurative conception of 
 " the terrors of the law." 
 
 Some two years after these events the country-side 
 was astonished by the return of William Harrison him- 
 self — no ghost, but a living, human being. His account 
 of his disappearance was strange in the extreme. He 
 stated that he had been waylaid, and having only £22, 
 with him, his captors, disgusted with the smallness of 
 their booty, had carried him off and sold him to a sea 
 captain at Deal for ;^7. By the captain he was sold to 
 Turkish slave-dealers, and ultimately became the prop- 
 erty of a physician at Smyrna, in whose service he 
 remained nearly two years. His master, being on his 
 death-bed, freed him, and gave him a silver goblet. In 
 exchange for this he procured a passage for Lisbon. 
 There he found some Englishmen, who, in pity for his 
 sufferings, provided him with a passage to Bristol, and 
 thus, at last, he regained his long lost home. What- 
 ever might be the truth of this story, two facts were 
 indisputable : One, that on the day of his disappearance 
 he had only received £2T), this having been thoroughly 
 investigated, and proved on the trial of the Perrys. And 
 the other, that at the same time he had in his house a 
 
74 A FORGOTTEN TRAGEDY 
 
 much larger sum of money. There was no irregularity- 
 whatever in his accounts, and in fact, he resumed his 
 accustomed stewardship, and discharged his duties with 
 exact fidelity till his death some years afterwards. He 
 reduced an account of his abduction and travels into 
 writing, in the shape of a letter to Sir Thomas Overbury 
 (descendant of the more famous Overbury), and the 
 curious may consult the letter itself, which appears in 
 extenso in the document from which we have taken our 
 narrative. 
 
 We find ourselves unable to suggest any solution 
 which answers to all the facts of this case, nor indeed 
 are we greatly anxious to do so. We have simply 
 wished to furnish a practical example of the old-fashioned 
 system of " rough and ready justice," of which some 
 traces are still left in the criminal procedure of England, 
 and to which, in the United States the adherents of 
 Judge Lynch have furnished, it is to be feared, many a 
 close parallel. 
 
 It only remains to quote our authority. It will be 
 found in the well-known and reliable Harleian Collection, 
 Vol. Ill (4th ed.), in a paper entitled " A true and 
 perfect account of the examination, confession, trial, 
 condemnation and execution of Joan Perry and her two 
 sons, John and Richard Perry, for the supposed murder 
 of William Harrison, Gent ; being one of the most 
 remarkable occurrences which hath happened in the 
 memory of man ; sent in a letter by Sir T. O. (Thomas 
 Overbury) of Burton, in the county of Gloster, Knight, 
 and one of his majesty's justices of the peace, to T. S. 
 (Thomas Shirley), . Doctor of Physick in London. 
 
A FORGOTTEN TRAGEDY 75 
 
 Likewise, Harrison's own account, how he was conveyed 
 into Turkey, and there made a slave for about two years, 
 and then his master, which brought him there, dying, 
 how he made his escape, and what hardship he endured ; 
 who, at last, through the providence of God, returned to 
 England, while he was supposed to be murdered ; here, 
 having seen his man-servant arraigned, who falsely 
 impeached his own mother and brother as guilty of the 
 murder of his master, they were all three arraigned, 
 convicted and executed on Broadway Hills, in Gloster- 
 shire." (London : printed for Rowland Reynolds, next 
 Arundel Gate, over against St Clement's Church, in the 
 Strand, 1676.) 
 
76 THE CASE 0J< THE NINE MEMBERS 
 
 THE CASE OF THE NINE MEMBERS. 
 
 March 2, 1629, was a memorable day in parlia- 
 mentary history. On that occasion Speaker Finch, 
 vainly endeavoring to leave the chair in pursuance to a 
 royal command, was forcibly held therein, whilst 
 an exasperated Commons passed resolutions against 
 " Popery and Arminianism, Tonnage and Poundage," 
 and Sir John Elliott, in tumultuous debate, declared 
 that " whosoever goeth about to break parliaments will 
 break him ! " Thus we find that the first attempt at that 
 systematic obstruction with which the Irish party have 
 lately been so vehemently reproached, was made by a 
 servile speaker, and was nipped in the beginning by a 
 resort to physical force. A similar expedient was clearly 
 out of the question on the later occasions, it being one 
 thing to effect a forcible detainer on the person of an 
 ancient lawyer, and quite another to carry out a forcible 
 ejectment against some scores of lustry Hibernians. 
 The king however in his turn resorted to " vis major" 
 and nine of the most prominent members of the House, 
 to wit, the said John Elliott, and Hollis, Hobart, 
 Hayman, Selden, Coriton, Long, Stroud and Valentine, 
 speedily found themselves ensconced in prison. In due 
 course they sued out their writs of habeas corpus, to 
 which their jailor returned as his authority for their 
 imprisonment, two warrants, one signed by twelve lords 
 
THE CASE OF THE NINE MEMBERS 77 
 
 of the Privy Council, and alleging no cause, and the 
 other under the king's sign manual. The latter specified 
 their incarceration to be " for notable contempts by 
 them committed against ourself and our government, 
 and for stirring up sedition against us." 
 
 In Easter Term the first writs, those taken out by 
 Long and Stroud, came on for argument before a full 
 court of King's Bench, presided over by Hyde, C. J. Ask 
 appeared for Stroud, and had little trouble in disposing 
 of the Privy Council warrant, the want of cause therein 
 being clearly against the petition of right. Upon the 
 second, his preliminary contention was that the king him- 
 self could not imprison any man, and in support of this he 
 cited Markham and Fortescue, " De Laudibus Legum 
 Anglice'' His pretension was that every man wrongfully 
 imprisoned had a right to an action for false imprison- 
 ment, but no such action would lie against the king, 
 who, according to the old maxim, could not be a wrong- 
 doer, ergo the king could not imprison. Thus he 
 ingeniously endeavored to turn the most despotic maxim 
 of our books against the despot. From this he proceeded 
 to his main argument, viz., that the cause assigned was 
 too general and uncertain, and here we have, anticipated, 
 the well known case of the general warrants under Geo. 
 HI. He strongly urged that so far from " sedition " 
 being an offence known to the law, the word itself in 
 a substantive form was not to be found in any statute 
 or precedent, and quoted many authorities uppn the 
 vice of generahty. He was follow;ed by Mason, after- 
 ward recorder of London, who did little but reiterate 
 Ask's able argument. 
 
■78 THE CASE OF THE NINE MEMBERS 
 
 For the king, Berkley, Serg't, answered successfully 
 the objection that the sovereign could not imprison, but 
 calling to his aid the ancient writers, Bracton and 
 Britton, he went dangerously far, and sought to establish 
 a general coercive power, laying it down that " in 
 " matter of government, to avoid commotion, the king 
 " ought to use his coercive power against those that are 
 " enraged." " It is a case well known," he said, "that if 
 " a house be set on fire every man may pull down the 
 " next house for prevention of a greater mischief, so it 
 " seems concerning the incendiaries of state, they ought 
 " to be restrained lest others should be stirred up by them 
 " to the same combustion." Upon the generality of the 
 return, he drew a distinction between the certainty 
 needed in a return and in an indictment, and cited the 
 ordinary return upon certain writs, the very names of 
 which amaze our modern ears, such as " the taking of 
 " an apostate, the amoving of a leper, the burning of an 
 " heretic, and the burniug of an idiot" and finally, return- 
 ing to his high coercive notions, he urged that the 
 prisoners should be restrained of their liberty, that the 
 common wealth might not be damnified. Sergeant 
 Davenport followed in the same strain, and upon the 
 close of the argument the case stood over till Trinity 
 Term. 
 
 On the first day of Trinity the writs of the other 
 prisoners came up, and for them Littleton (who after- 
 ward became chief justice of the Common Pleas, and 
 who, as solicitor general, argued for the crown in the 
 Ship Money case) appeared. Admitting the king's power 
 to commit he preceded to state, as the main ground on 
 which he relied, a proposition which is now, we 
 
THE CASE OF THE NINE MEMBERS 79 
 
 apprehend, the fundamental principle in habeas corpus 
 cases, viz., " that no freeman that is imprisoned only for 
 " misdemeanor before conviction may be detained in 
 " prison without bail, unless it be in some particular cases 
 " in which the contrary is ordained by any particular 
 " statute." From this he proceeded to examine whether 
 the return disclosed any thing more than a bailable 
 misdemeanor, and at once fell foul of that unlucky word 
 " sedition." In a lengthy disquisition as to the true 
 meaning of this term he quoted Livy, Tacitus, a host of 
 passages from the Bible, and Bacon's Essay " of 
 Seditions and Tumults," " which whole essay," he 
 kindly says, " deserves the reading," and arrived at the 
 conclusion that sedition was merely a synonym for 
 discord. He next showed, at still greater length, that 
 the word had no different signification in law, and 
 herein bore hardly upon Bracton and his fellows, whom 
 he termed obsolete authors, good for ornament but of 
 no binding authority, and (most fatal objection of all) 
 too prone to follow the civil law. He granted that the 
 cause in the return was not traversable upon the present 
 occasion, but contended and cited the reports to prove 
 that there must at least be so much in the return as if 
 false would give the party aggrieved an action on the 
 case. Of Berkley's coercive power be made short work, 
 and as to the house-on-fire illustration " observe the 
 " true consequence of this argument — if my house be on 
 " fire my neighbour's must be pulled down. Mr. Selden 
 " is seditious, ergo Mr. Herbert, his neighbour, must be 
 " imprisoned." Finally to the Statute of Westminster, 
 with its provision that a man taken by commandment 
 of the king should not be replivisable, he replied, " as 
 " oft as that statute is cited I will always cry out the 
 
80 THE CASE OF THE NINE MEMBERS 
 
 " Petition of Right ! The Petition of Right! As the king 
 " of France cried out, nothing but France ! France ! when 
 " all the several dominions of the king of Spain were 
 " objected to him." No one followed Littleton, the 
 counsel for the other prisoners being content to rely 
 upon his argument. 
 
 A few days after the attorney-general, Sir Robert 
 Heath, replied for the king, but signally failed to rebut 
 Littleton's learned and convincing discourse. After 
 boldly claiming that the Petition of Right, being simply 
 a confirmation of the ancient rights and liberties of the 
 subject, did not in any way affect or help the prisoners' 
 case he endeavored to rehabilitate the battered word 
 " sedition." Referring, amongst his other quotations, 
 to the town clerk of Ephesus, " who knew not how to 
 answer for this day's sedition," he observed, in passing, 
 " that he wished the greater ones, to-day, were as 
 " circumspect as he was," a remark, which read in the 
 light of the king's ultimate fate, has an application 
 some what different from that intended by the learned 
 gentleman. Ultimately flying to his last resort, the 
 pretended coercive power, he closed in this wise : " If 
 any danger appear to you in the prisoners' bailment I 
 am confident that ye will not bail them, but first ye will 
 consult with the king, and he will show you where the 
 danger rests." 
 
 The court, to their credit, did not act in accordance 
 with Mr. Attorney's suggestion. Timid they undoubt- 
 edly were, as the sequel will show, but neither so servile 
 nor corrupt as certain historians have since represented 
 them. Had they then held their patents, as now. 
 
THE GASE OF THE NINE MEMBERS 
 
 qitanidiu se bene gesserini, we are inclined to think there 
 would be little fault to find with their decisions, and till 
 we are ourselves perfectly indifferent to considerations 
 of place and income, we ought to have a little charity 
 for their moral cowardice. They fixed a day for judg- 
 ment, and there seems to have been little doubt what 
 their decision would be. The king at any rate felt 
 uneasy, and resorted to the expedient of transferring 
 the prisoners to the Tower, sending an explanatory 
 letter to the judges. In this he told them that he 
 purposed that none of the accused should come before 
 them '' until we have cause given us to believe they will 
 " make a better demonstration of their modesty and 
 " civility, both toward us and your lordships, than at their 
 " last appearance they did." Beneath this velvet sheathing 
 the trembling justices felt the impending sword, and, on 
 the appointed day, no prisoners of course appearing, 
 they refused to give judgment, alleging that it would be 
 to no purpose to do so, as the prisoners, being absent, 
 could neither be bailed, delivered or remanded. Accord- 
 ingly the nine members remained in durance throughout 
 the long vacation. 
 
 Toward Michaelmas the king sent for the chief justice, 
 who attended by one of his puisne justices, the distin- 
 guished Whitlock, waited upon him, and in reply to his 
 pressing questions informed him that the judgment of 
 the court would be to bail the prisoners, subject to their 
 giving security for their good behaviour. Although not 
 too well pleased, Charles put on a smiling face, telling 
 them that " he would never be offended with his judges, 
 " so they dealt plainly with him, and did not answer him 
 " by oracles and riddles." 
 
,S2 THE CASE OF THE NINE MEMBERS 
 
 On the first day of term, Mason, of counsel for the • 
 members, moved for judgment, and was informed of the 
 decision of the court. The prisoners however were now 
 in the mind of St. Paul at Philippi, and by no means 
 willing to secure their liberty by compromise. Mr. 
 Selden, speaking for all, demanded to be bailed in point 
 of right, " if it be not grantable of right we do not 
 demand it," said he. Serg't Ashley offered his own 
 bail for his son-in-law, HoUis, but Hollis refused to join 
 in the bond, and Long, whose sureties for good behaviour 
 were actually in attendance, discharged them and cast 
 in his lot with his brethren. Thus they all cheerfully 
 returned to prison, esteeming loss of liberty a lighter 
 thing than voluntary surrender of their rights. The 
 victory was theirs, and although some died in prison, 
 none were conquered. Doubtless they looked for speedy 
 deliverance from Parliament, but for ten years no 
 Parliament was summoned. Their captivity became 
 gradually relaxed, and at length merely formal, and 
 when at length the king was compelled to call his 
 commons together, and the famous Long Parliament 
 met, their turn came. That Parliament forgot, no old 
 scores, and in the midst of all its pressing labours found 
 time to recompense the sufferers of 1629. Each survivor 
 received ;£^S,ooo, and to the deceased Sir Miles Hobart 
 a monument was erected. The noble freedom which 
 our race on both sides of the Atlantic enjoys to-day 
 remains the common monument of all its builders, 
 amongst whom are numbered our nine members. 
 
THE KING'S TRIAL. 83 
 
 THE KINGS TRIAL. 
 
 The Commons having resolved that " the people are, 
 " under God, the original of all just powers," and 
 deducing therefrom the inference that themselves, as the 
 people's representatives, were supreme in the nation, 
 and that their enactments had the force of law without 
 consent of king or peers, proceeded to apply their 
 authority in the punishment of those guilty of the long 
 troubles which had culminated in the civil war. The 
 head and front of the offenders was the king himself, 
 and with him they began. 
 
 On January 4, 1649, an ordinance was passed erecting 
 a High Court of Justice for his trial. Whether this 
 precedent was in the minds of the framers of the 
 Judicature Acts of our own time we cannot say, but 
 designedly or not, the old title has been revived, and 
 the High Court of Justice is to-day the style of the 
 English court of first instance. 
 
 Many names are to be found on the list of the 135 
 commissioners, who were constituted the king's judges, 
 which have still a place in history. The roll commences 
 with Oliver Cromwell, first in place as well as fame. 
 
84 THE KING'S TRIAL 
 
 Next comes the sturdy Ireton, whilst Waller, Skippon, 
 Pride and Ludlow, remind us of the recent battles from 
 which they came, hot with victory, to sit in judgment 
 on their adversary. Amongst the men of the long robe 
 we find Bradshaw, Thorp and Nicholas, all Serjeants at 
 law, and two names are there, which to our ears have 
 oddly incongruous associations, to wit, Richard Ingold- 
 sby and R. Tichborne. Not all the commissioners 
 participated in the proceedings of the court, Fairfax and 
 Whitlocke being the most notable absentees, but the 
 majority were far from shrinking from responsibility. 
 They knew their duty, and were willing to perform it. 
 
 Moreover, they were determined to carry out their 
 task in the most public and solemn manner. Many 
 were the meetings and committees, elaborate were the 
 preparations, but at length all was complete, and on 
 January 20th the court assembled in Westminster Hall. 
 Careful precautions had been taken against tumult and 
 conspiracy. The vaults under the Painted Chamber 
 had been searched to provide against a possible gun- 
 powder plot. Guards were mounted upon the very 
 leads of the roof. All privy means of access to the Hall 
 were blocked up, including the " doors from the house 
 " called Hell" and " Mr. Squibb's gallery." The presi- 
 dent, Mr. Serjeant Bradshaw, by way of extra safeguard, 
 had provided himself with a thick, high-crowned beaver 
 hat, lined with steel, to ward off blows, and stout 
 barriers were erected between the seats of the court and 
 the space reserved for the public. The Hall was hung 
 with scarlet, and before the president lay the mace and 
 sword of state. 
 
THE KING'S TRIAL 85 
 
 The judges being in place, the king was brought in, 
 amongst a confused murmur from the populace, which 
 showed the divided state of pubhc feeling. Looking 
 around with a stern countenance, and not deigning to 
 remove his hat, he listened indifferently to the reading 
 of the ordinance, and the call over of the commissioners' 
 names. At the mention of Lord Fairfax, however, a 
 woman's voice from the gallery cried out " he had more 
 " wit than to be here," a remark not forgotten doubtless 
 by some of the commissioners, when after the restoration 
 they found themselves arraigned as regicides. 
 
 For the commonwealth Cook rose to open the charge. 
 The king, laying his cane on the counsel's shoulder, bid 
 him hold, but at the order of the president he proceeded, 
 simply making the formal complaint which had been 
 previously settled by the commissioners themselves. 
 After reciting that the king had, contrary to his limited 
 power to govern for the good and benefit of the people, 
 and with a design to erect a tyrannical power, levied 
 war against the parliament, the principal battles of the 
 struggle were specified. The prisoner was charged with 
 having acted " against the public interest, common 
 " right, liberty, justice and peace of the people of this 
 " nation, by and for whom he was intrusted with power." 
 Finally he was impeached as " a tyrant, traitor, murd- 
 " erer, and public and implacable enemy to the common- 
 " wealth of England," at which words he laughed. 
 
 ■ The president now called upon him for his answer, 
 upon which he demanded by what lawful authority the 
 court sat. Being referred to the authority of the people 
 of England, by whom he was elected king, he promptly 
 
86 THE KING'S TRIAL 
 
 denied the certainly novel proposition of his elected 
 sovereignty, and after some short passages of words the 
 court adjourned till Monday, Bradshaw telling him that 
 he would then be required to give his final answer. 
 
 At the opening of the court on Mortday, Cook moved 
 that in default of a positive answer the charge might 
 be taken pro confesso. The president, without dealing 
 with the motion directly, called upon the king for his 
 answer to the charge, telling him " we do expect you 
 " should either confess or deny it ; if you deny it, it is 
 " offered in behalf of the kingdom to be made good 
 " against you ; our authority we do avow to the whole 
 " world, that the whole kingdom are to rest satisfied in, 
 " and you are to rest satisfied with it. And therefore 
 " you are to lose no more time, but to give a positive 
 " answer thereto." The king however stood to his 
 objection, and proceeded to give reasons, in which he 
 was interrupted by the president, who told him that no 
 court would submit to have its authority disputed, to 
 which the king replied that though he was no lawyer 
 professed, yet he knew as much law as any gentleman 
 in England (a saying which popular tradition has 
 changed into the expression " that he knew as much 
 " law as any gentleman should know "), and that, by 
 any law that he had ever heard of, delinquents might 
 put in demurrers against any proceedings as illegal, 
 " and I demand to be heard with my reasons ; if you 
 " deny that you deny reason." 
 
 President — " Sir, it is not for prisoners to require." 
 
 King — " Prisoners ! Sir, I am not an ordinary pri- 
 " soner." 
 
THE KINGS TRIAL 87 
 
 President — " The court hath considered of their 
 " jurisdiction, and they have already affirmed their 
 " jurisdiction. If you will not answer we shall give 
 " order to record your default." 
 
 King — " You never heard my reasons yet." 
 
 President — " Your reasons are not to be heard against 
 " the highest jurisdiction." 
 
 King — ■' Show me that jurisdiction where reason is 
 not to be heard." 
 
 After a little more discussion of this sort, Bradshaw, 
 finding himself getting considerably the worst of the 
 encounter, cut the matter short by ordering thesergeant- 
 at-arms to take away the prisoner, and the court 
 adjourned. 
 
 Next day Cook renewed his motion. The same old 
 ground was fought over, but the king was not to be 
 entrapped, and the court at length ordered default to be 
 recorded against him, much doubtless to Cook's disap- 
 pointment, who having prepared a long-winded speech 
 in anticipation of a plea of " not guilty," now found his 
 chance of oratorical display gone. In this predicament 
 he resorted to an expedient which has in later times 
 been adopted by various congressmen, and caused his 
 great undelivered oration to be printed, thus preserving 
 to posterity the most extraordinary specimen of bombast 
 and bathos it has ever been our ill fortune to peruse. 
 In the midst of an opening passage of tremendous sound 
 and fury occurs an execrable pun — " Anglia hath been 
 
T'HE KINGS TRIAL 
 
 " made an Akeldama, and her younger sister, Ireland, a 
 " land of ire and misery." * * * •■ Yet what heart but 
 " would cleave if it were a rock, melt if it were ice, break 
 " if it were a flint, or dissolve if it were a diamond, to 
 " consider, etc." Truly, here is a notable selection from 
 " the alms-basket of words," made by a puritan Holo- 
 fornes. 
 
 No further proceedings occurred in open court till the 
 following Saturday, but sitting in the Painted Chamber, 
 the commissioners took the depositions of several wit- 
 nesses, " ex abundanti only," as they expressed it. These 
 were mostly soldiers, present at the various engagements 
 of the war, and simply proved the sufficiently notorious 
 fact that the king had borne arms in t^e recent struggle. 
 At length they resolved on the death sentence, and 
 having settled the form thereof adjourned into open 
 court. 
 
 On Saturday, accordingly, January 27th, the last 
 session of the court was held. As the king was brought 
 into the Hall a cry was raised of " Execution ! Justice! 
 " Execution ! " Silence being restored, the king desired 
 that before sentence were passed he might be heard in the 
 Painted Chamber before lords and commons, having 
 something to say which concerned both. This was 
 denied, the president, in the course of his refusal stating 
 that the charge against the prisoner was made by the 
 people of England. The same voice which had been 
 heard on the first day exclaimed " no, nor the hun- 
 " dredth part of them." This time the offender was 
 detected, and proved to be no other than Lady Fairfax, 
 who was summarily ejected. 
 
THE KING'S TRIAL 89 
 
 After some further discussion, aud a short adjourn- 
 ment, Bradshaw proceeded to pass sentence. He made 
 a lengthy speech, telling the king that " as the law is 
 " your superior, so, truly sir, there is something that is 
 " superior to the law, and that is the parent or author 
 " of the law, and that is, the people of England." He 
 quoted Bracton, " rex habet superiorem, deum et legem, 
 " etiam ei curiam ; debent ei ponere froenum — they ought 
 '• to bridle him." And cited again from the same author 
 " that parliaments were they that were to adjudge the 
 " plaints and wrongs done of the king and the queen." 
 From this he passed to the long intermission of parlia- 
 ments under the king, " and truly, sir, in that you did 
 " strike at all ; that had been a sure way to have 
 " brought about your intention to subvert the funda- 
 " mental laws of the land, for the great bulwark of the 
 " liberties of the people is the parliament, and to subvert 
 " and root up that, which your aim hath been to do, 
 " certainly at one blow you had confounded the liberties 
 " and property of England." Had he stopped here his 
 argument would have been forcible, and befitting the 
 occasion, but lawyer like, he must needs seek for 
 precedents, even upon so unprecedented an occasion, 
 and accordingly he adduced the depositions of Edward 
 n, Richard H, and the king's own grandmother, Mary 
 Queen of Scots, and by these ill examples sought to 
 fortify a position which found its true and only justifica- 
 tion in the broad principle of public right, with which 
 he had commenced. After referring to the recent war 
 he closed in high puritan strain, reminding the king 
 that his sins were of so large dimension that if he did 
 but seriously think of them they would drive him to a 
 
flO THE KING'S TRIAL 
 
 sad consideration, and might improve in him a serious 
 repentance. He then ordered the sentence to be read. 
 
 This was a full recital of the proceedings, fairly 
 engrossed on parchment, and closing with the stern 
 operative part, " for all which treasons and crimes this 
 " court doth adjudge that the said Charles Stuart as 
 " tyrant, traitor, murderer and public enemy, shall be 
 " put to death by the severing his head from his body." 
 The reading being finished, the whole court rose whilst 
 Bradshaw declared it to be their unanimous judgment. 
 
 The king now demanded to be heard, but was 
 peremptorily refused, and forcibly removed from the 
 court, exclaiming " I may speak after the sentence. By 
 " your favor, sir, I may speak after the sentence, ever. 
 " By your favor! Hold the sentence, sir! I say, sir, I 
 " do — I am not suffered to speak — expect what justice 
 " other people will have ! " 
 
 Short respite was given between sentence and 
 execution. On the following Tuesday, a cold, dull day, 
 the king stepped through a window of the Banqueting 
 House on to the scaffold, which was surrounded by such 
 a force of soldiers that his voice could not be heard by 
 the people. Addressing himself therefore to the 
 bystanding officials, he made a short and dignified 
 speech, closing with the declaration that he died a 
 Christian according to the profession of the Church of 
 England. He told the executioner not to strike till he 
 should give a sign by stretching out his hands. Taking 
 off his George, he handed it to Bishop Juxon with the 
 one word, " Remember^ Then, settling his neck on the 
 
THE KING'S TRIAL 91 
 
 block, he passed a few moments in silent prayer, and 
 stretching out his hands gave the signal, at which the 
 axe fell with one effective blow, and the tragedy was 
 over. Certainly, nothing in Charles's life lecame him 
 so well as his manner of leaving it. 
 
 For moral upon the whole matter we close with the 
 famous reply of the old Scotch laird to that zealous 
 Tory, Doctor Johnson : 
 
 Doctor Johnson — " What did Cromwell do? " 
 
 Auchinleck — " Cromwell do ! God, sir ! He garr'd 
 " kings ke7t there wj.^ a lith in tJwir necks ! " 
 
92 THE TRUE STORY OF OPHELIA 
 
 THE TRUE STORY OF OPHELIA, OR THE 
 DEATH OF MISS STOUT. 
 
 Passing over for the present the period of the last two 
 Stuarts, so rich in important and picturesque poHtical 
 trials, we find our attention arrested by a case which at 
 the time excited public feeling throughout England to 
 an unusual degree. Had it occurred in our own days it 
 would have filled the newspapers with sensation, and 
 might even have been deemed worthy of notice in the 
 very throes of an election, 
 
 At the elose of the seventeenth century there dwelt 
 in the little town of Hertford a young Quaker gentle- 
 woman named Mistress Sarah Stout. Her means were 
 good ; her father, who had amassed considerable wealth, 
 having made her his sole executrix , and given her the 
 greater part of his personal estate. She lived with her 
 mother, and passed, to all outward appearance, a quiet, 
 happy, retired life But beneath this veil of humdrum 
 monotony a constant struggle was going on between the 
 strict principles of the sect in which she had been 
 brought up, and which she lacked sufficient strength of 
 mind to break away from, and those impulses toward 
 innocent pleasure and freedom, natural to a young, well . 
 educated girl. The few letters written by her which 
 
THE TRUE STORY OF OPHELIA 93 
 
 have come down to us are couched in the easy, graeeful 
 style of a refined woman, and we can judge of the repug- 
 nance with which she received the tirades of a certain 
 '' Theophilus, a watchman," who on one occasion at least 
 preached in her mother's house, and before an audience 
 of some twenty or thirty people pointedly addressed 
 himself to her backslidings, telling her that " her 
 " mother's falling outwardly in the flesh should be a 
 " warning to her that she should not fall inwardly," 
 From such " canting stuff," as she termed it, she turned 
 with pleasure to the only congenial society that seems 
 to have been open to her, that of the Cowpers, a neigh- 
 boring county family. Sir William Cowper and his 
 eldest son were members for the borough, which was 
 far from being a pocket one, aud the steady support 
 they had received in their election struggles from Miss 
 Stout's father had been the origin of a friendship long 
 since ripened into intimacy. When in London, whither 
 business connected vvith her investments sometimes 
 called her, she was a welcome guest at the house of 
 William Cowper, jr., and his younger brother Spencer 
 Cowper, both barristers in good and increasing practice. 
 The elder brother in fact was a king's counsel, leader of 
 the circuit, and afterward, as lord chancellor, played a 
 great and honorable part in the public affairs of the 
 nation. {Vtdehis life in Campbell's well-known Lives 
 of the Chancellors.) The younger brother was frequently 
 pressed by Miss Stout to stay at her mother's house 
 when the assizes brought him to Hertford, but he 
 preferred sharing the lodgings of his brother. 
 
 On one occasion however, that of the spring Assizes, 
 1699, the elder Cowper was detained in town, and 
 
94 THE TRUE STORY OF OPHELIA 
 
 Spencer, with the natural desire of a young barrister to 
 save himself needless expense, accepted her invitation. 
 Arrived at Hertford he found that his usual lodgings 
 had been kept for him, so that there was nothing to be 
 done but to take them. He dined with the Stouts, 
 explained to them the unavoidable disappointment, and 
 returned to their house in the evening for the purpose 
 of paying the young lady some interest upon an invest- 
 ment he had made for her. As the evening passed on, 
 the mother left the room. About eleven Miss Stout 
 ordered her maid to warm Mr. Cowper's bed, to which 
 he made no objection, and the servant accordingly went 
 upstairs. In a quarter of an hour's time she heard the 
 front door slam, and after an uncertain interval spent in 
 dawdling after the manner of maidservants, she came 
 down to find the parlor empty. Neither Miss Stout 
 nor Mr. Cowper returned, but the mother seems to have 
 felt no great uneasiness, and like a thundershock came 
 the news in the morning that her daughter's body had 
 been found floating in the mill-pond. 
 
 On the same day a hurried inquest was held, and an 
 open verdict returned. Cowper, without again visiting 
 the mother's house, left the town with the rest of the 
 bar, and at first the whole matter seemed likely to blow 
 over. But as we all know, tongues in a country town 
 will wag, and it was not long before scandalous stories 
 got afloat affecting the poor girl's reputation. Mrs. Stout 
 too had her dormant suspicions roused, when on 
 examination of her husband's affairs, she found the 
 estate deficient by ;^i,ooo of the figure at which she 
 had estimated it. The Quakers loudly protested that 
 it was an impossibility that one possessed of " the inner 
 
THE TRUE STORY OF OPHELIA 95 
 
 " light," although a backslider, should commit suicide, 
 and the conjoint influence of all these causes led to an 
 exhumation of the body on April 28th, at which six 
 medical men were present. Five of these unhesitatingly 
 agreed that the deceased was not drowned, but was 
 dead before being thrown into the water, and as the 
 dissentient happened to be Sir William Cowper's family 
 surgeon, his refusal to join in his colleagues' opinion 
 only increased the burden of suspicion. At this point 
 another circumstance came to light. It appeared that 
 on the very night of Miss Stout's death three strangers 
 took lodgings in the town, and were overheard talking 
 of the young lady, one of them saying that she had 
 thrown him over, but a friend of his would be even with 
 her by this time. These men were seen in Cowper's 
 company next day, and it further came out that they 
 had spent the whole of the previous afternoon in the 
 town, although they only went to their lodgings a little 
 before midnight, and one of them was then heated by 
 exertion and covered with dirt. These mysterious 
 visitors were traced, and turned out to be Marson and 
 Stephens, two London attorneys, and one Rogers, a 
 scrivener. 
 
 And now the whole town was aflame with an 
 excitement which rapidly spread throughout the king- 
 dom, and to which the political passions, so violent at 
 that epoch, added fuel. The Cowper family stood in 
 the front rank of Whiggism, and were consequently, in 
 the opinions of their Tory and Jacobite opponents, 
 capable of any crime. An unfortunate liaison in which 
 William Cowper was involved extended its prejudicial 
 eff'ect to his brother, and, we may remark in passing, 
 
96 THE TRUE STORY OF OPHELIA 
 
 subsequently gave Voltaire occasion to assert in his 
 " Philosophical Dictionary " that the chancellor of 
 England both practised and defended polygamy ! From 
 every side arose an outcry for inquiry, and Spencer 
 Cowper, Marson, Stephens and Rogers were arrested, 
 examined before Holt, C. J., and committed for trial. 
 Finally on July i6th they were duly arraigned for 
 murder at the Hertford assizes before Baron Hatsell. 
 
 Jones for the prosecution opened his case more 
 strongly than his subsequent proofs warranted. The 
 unexplained movements of Cowper, the position of the 
 body when found, the unhesitating statements of the 
 medical witnesses, and the strange actions of the three 
 lesser prisoners however made a heavy case of suspicion, 
 and it is evident that at the commencement of the case 
 the judge was prejudiced against the defence. 
 
 An initial point of some interest was raised. The 
 prosecution having challenged certain jurors, Cowper 
 called upon them to show legal cause for their challenges. 
 Jones contended that he had the same right of peremp- 
 tory challenge as the prisoners, but Cowper quoted 
 Hale's Pleas of the Crown, page 259, and a statute of 
 33 Edward I, where it is expressly enacted that the 
 king shall not challenge without cause, and the judge 
 held with him that the prosecution had no right of 
 peremptory challenge. Cowper however waived the 
 point, and the jury being sworn, the first witness called 
 was the deceased's maidservant, Sarah Walker. The 
 material part of her evidence has already been given. 
 In cross-examination Cowper elicited the fact that she 
 had on two previous occasions bought poison for her 
 
THE TRUE STORY OF OPHELIA 97 
 
 misstress, but she cleared this up by showing that it had 
 been used to poison an unruly dog. 
 
 Next came the witnesses as to the finding of the 
 body. Of these there were no less than ten who all 
 agreed that the corpse was floating in water some five 
 feet deep, portions of the dress being above the surface, 
 and the whole body being only just submerged. The 
 head and right arm were entangled in the stakes of the 
 mill-dam, and there were various bruises around the 
 neck, but only such as might easily have been produced 
 by friction against the wood. No water was in the 
 body, and only a little froth oozed from the nostrils. 
 
 After some minor and irrelevant testimony, five of 
 the doctors who had assisted at the exhumation were 
 called. The body had been found in a remarkable 
 state of preservation, and all agreed with great positive- 
 ness that deceased could not have been drowned, basing 
 their opinion on the ground that if she had come by her 
 death in that manner her inner parts would have at 
 least some water in them, and would consequently have 
 putrefied. The opinion of Doctor Woodhouse may be 
 taken as summarizing their united views : " My opinion 
 is that no person is drowned by water but he must have 
 a great deal of water within him, a great deal of water 
 in the stomach, and some in the lungs." — Hatsell B. — 
 " Pray let me ask you a question ; some of the witnesses 
 " said that if a person be drowned, and lies dead a 
 " great while, the inwards will be putrified — what is 
 your opinion of it ?" Doctor Woodhouse — " No doubt, 
 " my lord ! " 
 
98 THE TRUE STORY OF OPHELIA 
 
 As to the point of the floating of the body, which the 
 prosecution alleged was a sure sign of death before 
 immersion, the doctors were not so positive, but they 
 agreed that they had never met with a case of the body 
 of a drowned person floating so soon after death. Upon 
 this the judge remarked that Doctor Browne " has a 
 " learned discourse in his ' Vulgar Errors ' upon this 
 " subject, concerning the floating of dead bodies. I do 
 " not understand it myself, but he hath a whole chapter 
 " about it." 
 
 Pat upon the quotation of Vulgar Errors, Edward 
 Clement, an old sailor, stepped into the box and varied 
 the proceedings by a narration of his experiences in the 
 battle off" Beachy Head when he saw several thrown 
 overboard during the engagement, particularly one that 
 was his friend and killed by his side, the whole result 
 being that all that were so killed and thrown overboard 
 floated. He also instanced the well known practice of 
 tying shot to the feet of those who are buried at sea. 
 For the reverse fact, he quoted the shipwreck of the 
 Coronation, and at the risk of a little irrelevancy we 
 will let the old salt tell his own tale. " Have you seen 
 " a shipwreck ? A. Yes, the Coronation in 1691. I was 
 " then belonging to the Duchess, under the command 
 " of Captain Clement. We looked out and see them 
 " taking down their masts ; we saw the men walking up 
 " and down on the right side and the ship sink down 
 " and they swam up and down like a shoal of fish one 
 " after another ; and I see them hover one upon another 
 " and see them drop away by scores at a time ; and 
 " there was an account of about nineteen that saved 
 " themselves, some by boats and others by swimming ; 
 
THE TRUE STORY OF OPHELIA 
 
 " but there was no more saved out of the ship's 
 " complement which was between five hundred and six 
 •' hundred, and the rest I saw sinking downright, some 
 " twenty at a time." Clement was succeeded by another 
 tar, one Richard Gin (most appropriate name for a grog- 
 loving mariner), and ultimately the prosecution pro- 
 ceeded to the case against the other three prisoners, the 
 substance of which has already been stated. Here the 
 prosecution rested, 
 
 Cowper opened his defence at some length, first 
 pointing out that the whole case amounted merely to 
 suspicion, then dealing with the medical evidence, 
 giving a full account of his own actions on the night in 
 question, and attributing the prosecution to the combined 
 malice of the Quakers and of his family's political 
 opponents. He referred to certain letters of the deceased, 
 which he should produce and which would afford a key 
 to the whole mystery, protesting however that if he 
 stood there singly in the case of his own life he would 
 not do so, but the consideration of the three innocent 
 men arraigned with him compelled him to adopt this 
 course. Closing in a somewhat rhetorical strain, he was 
 told by the judge " not to flourish too much." 
 
 The first batch of his witnesses were the constable and 
 other parish officials present at the taking of the body 
 out of the water, but their testimony substantially 
 agreed with that already given for the crown. 
 
 Next came the doctors for the defence, nine London 
 physicians and the distinguished anatomist William 
 Cowper, who, though bearing the same name, was no 
 
100 THE TRUE STORY OF OPHELIA 
 
 relation to the prisoner. This gentleman gave a full 
 exposition of the whole process of drowning, pointing 
 out the important distinction between those voluntarily 
 and involuntarily drowned. The latter class, in their 
 struggle for life, will invariably swallow a considerable 
 amount of water, but the suicide, keeping his breath for 
 a speedy suffocation, may, with sufficient resolution, 
 attein his end without swallowing any water whatever. 
 As to the sinking of bodies, he detailed various experi- 
 ments he had made with dogs, with a view to the trial, 
 resulting in the conclusion that dead bodies necessarily 
 sink if there be no distention to bring them up, but that 
 distention may happen either before or after death, so 
 that no inference can be drawn from the fact of a body 
 floating or sinking. The reason of fastening weights to 
 those deceased at sea he explained to be not so much 
 to sink them, as to prevent their rising afterward. 
 Another witness, Dr. Crell, being interrupted by the 
 judge whilst referring to some ancient authors, retorted 
 that he saw no reason why he should not quote the 
 fathers of his profession in the case " as well as you 
 " gentlemen of the long robe quote Coke or Littleton 
 •' in others ; " a remark which shows that even so late 
 as the close of the seventeenth century the medical 
 profession looked rather to books than experiment for 
 their knowledge, and had the same odd custom of 
 valuing authorities by age, which still prevails amongst 
 " the gentlemen of the long robe." 
 
 The defence then called witnesses to prove deceased's 
 melancholy state of mind, and in this they had great 
 success, more than one person proving that she had 
 expressed an intention of drowning herself and had 
 
THE TRUE STORY OF OPHELIA 101 
 
 confessed that she was in love with one she could not 
 marry. This point Cowper clenched home, producing 
 the promised letters, in which her unfortunate passion 
 for himself was only too clearly expressed, her last 
 letter, written four days before her death, containing the 
 words " I won't fly for it, come life, come death, I am 
 " resolved never to desert you." As to this also the 
 future chancellor gave evidence showing that his brother 
 had used all reasonable means to disenchant Miss Stout 
 of her unrequited affection. 
 
 The mystery was now sufficiently solved, Cowper's 
 movements after leaving the house were fully accounted 
 for. His financial relations with the deceased had not 
 been referred to by the prosecution, but for the more 
 complete clearing of his name he showed that his only 
 dealing of this kind had been to find a mortgage 
 security for a small sum, the interest of which he had 
 paid her on the eventful evening. The case against the 
 other three prisoners, consisting in merely loose expres- 
 sions grossly exaggerated by ignorant and malevolent 
 witnesses, was dissipated, it being clearly proved that 
 they were in town on assize business, and the very 
 frankness of their conversation with respect to Miss 
 Stout, whom one of them had previously unsuccessfully 
 courted, was inconsistent withtheir guilt. The exhum- 
 ation, which had placed the lives of the prisoners in 
 such jeopardy, had had the one good result of establish- 
 ing the poor girl's chastity, and when the case for the 
 defense was closed there could be no doubt what the 
 verdict would be. The judge, a weak, fatuous man, 
 summed up shortly and generally, excusing himself 
 from going into the details of the evidence on the score 
 
102 THE TRUE STORY OF OPHELIA 
 
 of faintness, and, after half an hour's consideration, the 
 jury returned a verdict of " not guilty." 
 
 Thus ended a case which we have very imperfectly 
 summarized. Some subsequent proceedings were taken 
 in chancery, the heir suing out a writ of appeal (a pro- 
 cedure abolished by a statute of George IV), but they 
 came to nothing and the war of pamphlets, in which 
 the heated contestants on either side cooled off their 
 feelings, gradually ceased. Among these transient 
 feuilletons, one entitled " Reply to. the Hertford Letter " 
 is worth noting as containing a full and apparently 
 sound examination of the whole subject of drowning. 
 It may be found in Howell's State Trials (ed. 1816) vol. 
 13, p. 12 18, and there, too, the reader curious for more 
 details may consult in exienso the whole proceedings 
 upon the trial, occupying more than 140 closely printed 
 columns. He may also, if he pleases, find in the once 
 famous novel, the " New Atlantis," written by Swift's 
 friend, Mrs. Manley, a mahcious presentation of the 
 worst hypothesis of the whole affair, Cowper being 
 •' Moses " and Miss Stout " Zara." 
 
 Spencer Cowper subsequently made a distinguished 
 mark in life, becoming a judge of the Court of Common 
 Pleas. We are told, and may well believe, that he was 
 ever cautious and merciful in trials for murder, nor was 
 the character of " Ophelia," to him, a mere creature of 
 the poet's imagination. 
 
THE TRIAL OF LORDS WARWICK AND MOHUN 103 
 
 THE TRIAL OF LORDS WARWICK AND MOHUN 
 FOR THE MURDER OF CAPTAIN COOTE. 
 
 Famous cases usually derive their celebrity either 
 from the importance of the issue or the intricacy and 
 mystery of the facts, but there is a third class in which 
 the interest arises from the sudden and powerful side- 
 light they throw upon life and manners in by-gone 
 times. Of such is the trial which we have now to sketch, 
 Thackeray, with the instinct of a great master, has not 
 failed to avail himself of its strong colours in " Esmond," 
 to our thinking the most perfect of his works, and no 
 part of that exquisite tale is more striking than the 
 chapter in which he describes the duel between Castle- 
 wood and Mohun. Although taking the principal 
 incidents from our present trial, he has used the novelist's 
 license to mix them with circumstances drawn from the 
 subsequent encounter between Mohun and the Duke of 
 Hamilton ; a license which is, of course, not open to us 
 in our more humble capacity of chroniclers of facts. 
 
 In the spring of 1699 the House of Lords assembled 
 in solemn conclave to try two members of their august 
 body, the Earl of Warwick and Lord Mohun, for the 
 murder of Captain Coote. Mohun was the most notorious 
 " hard case " of an age prolific in rakish scoundrels. 
 
104 THE TRIAL OF LORDS WARWICK AND MO HUN 
 
 Once before he had appeared at the same bar on a 
 similar charge. Whilst attempting with a worthy 
 associate to abduct the famous actress, Mrs. Bracegirdle, 
 her protector, Captain Mountford, had been run through 
 the body, but as Mohun had not actually dealt the fatal 
 blow, his peers, by a vote of sixty-nine to fourteen, 
 acquitted him of the crime, and he was restored to a 
 society of which he was the pest. 
 
 Warwick had not attained an equal distinction of 
 infamy in public estimation, but there was, if our reading 
 of the facts be correct, little to choose between them. 
 Both were emphatically " men about town," and passed 
 the greater part of their waking hours at the card table, 
 in the bagnio, or running amuck through the streets of 
 London with the notorious and dreaded Mohocks. 
 Amongst their chosen associates was one Coote, an 
 admirable specimen of the " led captain," familiar to the 
 reader of the novels of that day ; a genus represented 
 amongst ourselves by the toady and tufthunter. Coote 
 was Lord Warwick's particular parasite, and as we have 
 said, it was for his death that these two worthy noble- 
 men found themselves arraigned. On March 28, 1699, 
 the lords filed in stately procession into Westminster 
 Hall, duly attended by clerks, masters in chancery, 
 sergeant-at-arms, ushers and the common law judges ; 
 the lord chancellor, Somers, Macaulay's great favourite 
 (whp was also lord high steward for the nonce), following 
 in solitary dignity in the rear. All standing Uncovered, 
 the royal commission was read, and after a long perusal 
 of official records in barbarous Latin, the Earl of War- 
 wick was brought to the bar. The lord high steward 
 shortly addressed him, informing him that he stood 
 
THE TRIAL OF LORDS WARWICK AND MOHUN 105 
 
 indicted by the grand jury of Middlesex, and that 
 whilst he could not, as the law then stood, have the 
 assistance of counsel upon matters of fact, no evidence 
 would be received against him but such as was warranted 
 by law, no weight would be laid upon the evidence but 
 such as was agreeable to justice, and that he might 
 assuredly promise himself throughout the whole trial to 
 find all the candour and compassion consistent with 
 impartiality. " Beyond that nothing is to be expected ; 
 their lordships can never so far forget themselves as to 
 depart from what is right, and to draw the guilt of blood 
 upon their own heads ; but if your lordship is inno- 
 cent, you are safe." The indictment was then read in 
 English, and the prisoner pleaded not guilty, electing to 
 be tried in the usual form — " by God and by his peers." 
 
 For the Crown, Serjeant Wright opened the plead- 
 ings, and the attorney-general (Sir T. Trevor) stated 
 the evidence briefly and clearly. The first witness was 
 Samuel Cawthorne, the " drawer," or in modern par- 
 lance, bar-tender, of the Greyhound Tavern in the 
 Strand. He proved that on the night of Saturday, 
 October 29, 1698, Warwick and Mohun were in com- 
 pany at the tavern with four officers. Captains Coote, 
 French, Dockwra and James. Coming down stairs 
 about midnight they called for sedan-chairs to go home. 
 Witness went to fetch chairmen, and on his return to 
 the house heard swords clashing. Entering the bar- 
 room, he found the revellers divided into equal parties on 
 each side of the bar, Warwick, Mohun and Coote form- 
 ing one faction, and the other three opposing them. 
 He heard Coote say, with a vigorous expletive, that 
 " he would laugh when he pleased, and frown when he 
 
106 THE TRIAL OF LORDS WARWICK AND MOHUN 
 
 pleased," but on witness's entry the swords were put up. 
 Coote, violently excited, was hot for fighting, but War- 
 wick and Mohun threatened to send for a file of- musk- 
 eteers. They ultimately persuaded him to get into a 
 chair, and each of them also taking chairs, the three 
 started off together. The other three quickly followed, 
 Dockwra exclaiming " they did not care a farthing for 
 them at any time." Cawthorne gave his evidence in a 
 most confused and contradictory manner, and got 
 roughly handled on all sides, especially by the lord 
 high steward. 
 
 The next proof was that of the chairmen, the first 
 being Browne, who carried Coote. He deposed that 
 Coote gave orders to be taken to Leicester Square. 
 Warwick and Mohun protested, and begged him to go 
 home with them, and " leave it alone till the morning," 
 but he would not hear them. On their way, Mohun 
 stopped the chairs, and again resumed his endeavours to 
 pacify Coote, but whilst they were talking, the chairs 
 of the other three passed by, and Coote instantly 
 ordered his bearers to take up and hurry to the square, 
 threatening to run them through if they went no faster. 
 Arrived at the square Mohun paid the fares, and the 
 three comrades entered the enclosure. Honest Browne 
 filled and lighted his pipe, and was just ready to wend 
 his peaceable way homeward when he heard a cry for 
 chairs. With much ado getting his cumbrous vehicle 
 over the railings, and making for the spot whence the 
 cry proceeded (it being a veiy dark night and impossi- 
 ble to see) he found two men holding up Coote in their 
 arms, and crying out " My dear Coote ! My dear 
 Coote ! " Coote was covered with blood. They end- 
 
THE TRIAL OF LORDS WARWICK AND MOHUN 107 
 
 eavoured to put him in the chair, promising Browne 
 ;^ioo to make amends for his ruined sedan, but Coote 
 would not be put in, and in the course of their struggles 
 the chair was broken. Then the watch was called, who 
 strictly following Dogberry's time-hallowed advice, 
 " would not come near, for they said it was out of their 
 "watch;" "so" continued Browne, "I staid about 
 half an hour with my chair broken, and afterward I was 
 laid hold upon, both I and my partner, and we were 
 kept till next night eleven o'clock, and that is all the 
 satisfaction I have had for my chair and everything." 
 Of one thing Browne was very certain, viz. : that War- 
 wick was not one of those holding Coote up. Amongst 
 the other chairmen, we need only notice the evidence of 
 Applegate, who, after carrying Mohun to the square, 
 heard the second call for chairs, and took up Captain 
 French, desperately wounded. Him they carried to 
 the bagnio in Long Acre, Warwick following in another 
 chair. When they got to the bagnio, French was so 
 weak with loss of blood that he fell to the ground. 
 
 Next came Pomfret, the servant at the bagnio, who 
 let Warwick and French in. He deposed that War- 
 wick's sword, which he still held in his hand, was cov- 
 ered with blood, whilst French's sword was clean. The 
 surgeon was called up to dress French's wounds, and 
 Warwick gave strict orders that none should be admitted 
 to the house, and that he should be denied all inquirers, 
 but in about half an hour, James and Dockwra arriving, 
 Warwick himself let them in. As to the sword, it 
 appeared pretty clear that Warwick's was the only 
 one bloody, and also that it was the only broad sword, 
 though it must not be forgotten that nothing was seen 
 
108 THE TRIAL OF LORDS WARWICK AND MOHUN 
 
 of Mohun after the affray, nor was his sword ever 
 accounted for. 
 
 The surgeon who examined Coote's body after death 
 deposed to finding two wounds, one on the breast about 
 one-half inch wide and five inches deep, and the other 
 under the ribs, made from behind, and about one inch 
 wide and six inches deep, but though much pressed, he 
 would not say that the difference in breadth denoted 
 that the latter wound had been made by a broad 
 sword. 
 
 Some minor evidence closed the case for the crown, 
 and Warwick opened his defence. He alleged the fatal 
 quarrel to have arisen from an unprovoked insult given 
 by Coote to French, and charged the death on the 
 latter. He referred to the trial of French, James and 
 Dockwra at the old Bailey, when they were convicted 
 of manslaughter only, and dwelt with somewhat suspi- 
 cious emphasis upon his long friendship with the 
 deceased, and the many favours he had conferred upon 
 him, amongst others lending him a hundred guineas 
 towards buying an ensign's place in the guards. His 
 evidence consisted merely of witnesses to prove this 
 intimacy, such as that he used constantly to pay Coote's 
 reckoning, and once settled the tailor's bill when that 
 irate tradesman had arrested the gallant captain. From 
 such an expensive intimacy he might be well content to 
 be delivered, but it does not seem to have occured to 
 the prisoner that the evidence could be looked at from 
 this point of view. 
 
 When however Warwick proposed to called Captain 
 
THE TRIAL OP LORDS WARWICK AND MOHUk 109 
 
 French, a battle royal arose amongst the lawyers. The 
 objection of the crown was that a man convicted of 
 felony, and not pardoned, was incompetent to testify, 
 and that his having the benefit of clergy did not remove 
 this disability. The point was most elaborately and 
 learnedly argued by Sir Thomas Powys for the prisoner, 
 and by the attorney-general for the crown, and the 
 peers calling for the advice of the judges the lord chief 
 justice, Treby, delivered a long 'opinion, going into the 
 whole subject of benefit of clergy, and concluding 
 eigainst the competency 9f the witness. Another point 
 then arose, Warwick submitting that he being on 
 Coote's side in the affray could not be held guilty in 
 an equal degree with those who where his opponents, 
 but this was too flimsy, aud soon fell through. 
 
 Ultimately the prisoner submitted his whole defence 
 without further comment, and the solicitor-general (Sir 
 John Hawley) rose to reply. His voice was too weak 
 to be heard by the more distant peers, and there were 
 calls for some one else to sum up, especially for Mr. 
 Cowper (whose acquaintance we made in our last 
 sketch), Mr. Solicitor howev^er did not suffer himself 
 to be sat upon, and acquitted himself of his task very 
 sufficiently. After succinctly reviewing the evidence he 
 referred to the nature of the wounds and the state of 
 the 'prisoner's sword, and threw cold water upon the 
 David and Jonathan business, observing that the pri- 
 soner appeared much more concerned for Captain 
 French, who, as he now alleged, had killed his friend, 
 than for that friend, whom he had abandoned, dying, on 
 the field. Upon the law, he insisted that, no satisfactory 
 evidence having been given by whose hand the fatal 
 
no THE TRIAL OF LORDS WARWICK AND MOHUN 
 
 blow had been struck, Warwick, being present and 
 participating in the fighting, must incur an equal share 
 of the guilt of murder. 
 
 At the close of the Solicitor-General's speech the 
 lords retired to their house. After two hours' delibera- 
 tion they returned to the hall and gave their verdict, 
 each peer rising in order of precedence, from the puisne 
 baron upwards, and uncovered, with his right hand 
 upon his breast, pronouncing his judgment thus : "Not 
 guilty of murder, but guilty of manslaughter, upon my 
 honour." The lord high steward then demanded of the 
 prisoner what he had to say why judgment of death 
 should not be pronounced against him according to law, 
 upon which Warwick claimed the benefit of his peerage, 
 according to the statute of Edward VI. This was 
 allowed him, and with a gentle reprimand from the lord 
 high steward, who reminded him that he could not 
 have the benefit of peerage twice, Warwick was dis- 
 charged, and the house adjourned. 
 
 Next day Mohun was put upon his trial, but the pro- 
 ceedings being a mere recapitulation of the case against 
 Warwick need no detailed mention. We only notice 
 that the very fact of his disappearance immediately 
 after the duel, so suspicious in itself, turned out in his 
 favor, for there being no evidence to prove that he 
 entered the square and shared in the fight, he escaped 
 any condemnation whatever, being unanimously found 
 not guilty either of murder or manslaughter. Thus the 
 greatest scoundrel unhung in England escaped scot- 
 free. 
 
THE TRIAL OF LORDS WARWICK AND MOHUN 111 
 
 Upon his acquittal he made a short speech, prom- 
 ising the lords that he would make it the business of 
 the future part of his life to avoid all things that might 
 bring him into such a position again. He kept this 
 promise which such fidelity that a few years after he 
 forced the Duke of Hamilton, a comparatively respect- 
 able man, into a duel, and falling mortally wounded, 
 retained sufficient malice in the moment of death tg 
 shorten his sword, and drive it through his noble oppo- 
 nent's heart. Thus the devil got his own after all.* 
 
 Upon the principal case ; whilst the verdict of the 
 lords was only what might be excepted from a miscell- 
 aneous body of men in those times, and such as would 
 to-day be rendered in similar circumstances by a Kent- 
 ucky jury, our own hypothesis of Coote's death is that 
 he was stabbed from behind either by Warwick or 
 Mohun, both glad of a convenient opportunity to rid 
 themselves of an expensive and turbulent hanger-on. 
 For further information upon the whole matter our 
 readers may consult Swift's letters to Stella, Burnet, 
 Hamilton, the State trials, in short every contemporary 
 work of history or memoirs. 
 
 *NoTE — It is fair to state that there is another account of Hamilton's 
 death which attributes it to Mohun's second. Macartney, who, seeing his 
 principal killed, came up and stabbed Hamilton as he stood over the 
 dead body. We have given the one which appears to us best authen- 
 ticated. 
 
112 LAW IN QUEBEC 
 
 LAW IN QUEBEC. 
 
 American lawyers have not far to go to find a con- 
 trast, more marked perhaps than any furnished by the 
 trans-Atlantic nations usually visited by tourists, to that 
 vigorous, rushing, ultra-modern species of civilization 
 which is all included and described in the word 
 " American." They have only to tajce the short journey 
 to Montreal, or better still, to Quebec, and they will 
 instantly be in the midst of a people which, in race, in 
 religion, in customs, in short, in its whole social condi- 
 tion, presents a complete antipodes to the surrounding 
 tribes. In no point, perhaps, is the contrast more strongly 
 marked than in the matter of laws and jurisprudence, 
 nor is the contrast, as Americans often assume, wholly 
 in their favour. It is by no means a case of progress 
 and enlightenment on the one hand, as against conser- 
 vatism and stupidity on the other. When, for instance, 
 Americans have a code which has borne and success- 
 fully answered the test of years ; when they have a 
 system of costs, based on business principles, fair to 
 the client and not unjust to the lawyer; when they can 
 truly say that every member of their bar is a well 
 educated man ; then, perhaps, they may allow ourselves 
 to triumph over the civilians in the North. In the 
 
LA W IN QUEBEC 1 13 
 
 meantime they will do well to remember that many 
 good things can come out of Nazareth, even though 
 the Pharisees dwell to the south, in Jerusalem, (or New 
 York). 
 
 The Civil Code of the Province of Quebec or Lower 
 Canada, is indeed a work meriting, as a whole, very 
 high praise for clearness, consistency and completeness. 
 Although the principles of the common law have in 
 some respects gained a footing therein, notably in com- 
 mercial matters, still the spirit of the civil law pervades 
 the mass, and the best Quebec lawyers are (if we may 
 express our personal opinion, without being charged 
 with arrogance) somewhat out of their element when 
 dealing with a point of common law, pure and simple. 
 Trained and grounded in a system which is nothing if 
 not logical and distinct, they find the common law a 
 maze of detail and look in vain for the clear, well 
 written sign-posts to which they are accustomed in 
 their own proper territory. The question of the respect- 
 ive merits of the two rival jurisprudences is sometimes 
 hotly discussed by the partisans of either, but, as the 
 disputants generally know only their own side of the 
 case, and, to tell the truth, are more usually actuated 
 by prejudices of race and habit than by any real desire 
 to deal with the merits of the controversy, these dis- 
 cussions are, as a rule, more amusing than instructive^ 
 About the same average amount of injustice is probably 
 perpetrated under the shades of Pothier and Sirey as 
 in the precincts sacred to Coke and Blackstone, and an 
 assiduous cultivation of technicalities will produce very 
 much the same result, whether the litigation be in 
 Montreal or New York. 
 
114 LAW IN QUEBEC 
 
 The praise which we have given to the Civil Code 
 cannot be justly applied to the Code of Procedure, 
 which, owing to the haste with which it was compiled, 
 and a well meant but unsuccessful attempt on the part 
 of its authors to combine the merits of the French and 
 English systems of practice, abounds with inconsisten- 
 cies and faults. It has been amended time and again 
 by the legislature, and now presents a blotched and 
 disfigured appearance, strongly suggestive of a patient 
 suffering under an aggravated attack of small-pox. As 
 a result of this, the natural tendency of legal proceedings 
 everywhere to run into a tangle is greatly increased in 
 Lower Canada and the time of the judges is taken up 
 to a very unnecessary extent with points of practice 
 and informalities. The evil, however, is slowly remedy- 
 ing itself, and some of the recent amendments to the 
 code are calculated to have a very beneficial effect, 
 notably the one which enables a party to a suit to 
 examine his opponent as a witness. The step from 
 this to the perfect admission of litigants as competent 
 witnesses is not a very broad one, and, let us hope, 
 will soon be taken. 
 
 Cases are usually tried, in the first instance, before a 
 judge alone, jury trials being seldom resorted to. The hear- 
 ing may be either at Enquete and Merits, in which the 
 evidence is given and counsel are heard at the same sitting, 
 according to the English and American way ; or else, 
 the evidence is taken first, at Enquete, and the argu- 
 ment is subsequently made upon the written depositions 
 at Merits. The sole plea that can be advanced for the 
 latter plan is its convenience for lawyers, who may 
 bring their witnesses up by instalments and at different 
 
LAW IN QUEBEC 115 
 
 times, thus saving unnecessary attendance at Court and 
 considerable expense in producing evidence ; but, on 
 the other hand, it is obviously unreasonable upon a 
 hearing at first instance, to ai^ue a cause before a judge 
 who not only has not seen the witnesses, but has not 
 even read a word of the depositions. The necessary 
 consequence is that the court has to take the record 
 and read up the evidence at its leisure, and hence fol- 
 lows the principal blot upon Quebec's procedure, the 
 inevitable delibere, or " C. A. V. " The judges have 
 become so habituated to this dilatory vice that it is a 
 rare thing, even at Enquete and Merits, for a case to be 
 decided immediately upon the close of the trial. An 
 interval of a month between argument and judgment is 
 almost de rigueur ; the interval not unfrequently extends 
 itself to six months ; and sometimes a year, and even 
 more, elapses before judgment is given. Even a police 
 magistrate must have his delibere, and frequently deli- 
 vers an elaborate judgment upon a question of com- 
 mitting a prisoner for trial. 
 
 But if the judges are slow, it must in fairness be 
 admitted that they are thorougR. Every document in 
 the record undergoes careful scrutiny, and when, at 
 last, the judgment does come, it usually bears the 
 stamp of conscientious work, and the lawyer seldom 
 has cause to say that his points have been overlooked 
 by the court. In the old French books, whose ponder- 
 ous covers and yellow pages dignify the Advocate's 
 Library and gladden a bookworm's heart, we find judg- 
 ments which bear the same relation to modern decisions 
 as the cathedral of Reims does to the last Gothic 
 church built in New York. The whole case on both 
 
H6 LAW IN QUEBEC 
 
 sides is examined, discussed, compared and balanced, 
 and the final conclusions seems to grow out of the pre- 
 ceding dissertation by irrefutable logic. These are the 
 models which the French Canadian judges seem always 
 to keep before them for imitation. Isolated by their 
 system of law from the rest of the continent, and 
 deprived consequently af any hope of general renown 
 — for who ever heard of a Quebec decision being cited 
 outside of the province ? — they work steadily 
 on, and, as a whole, do their duty as thoroughly 
 and satisfactorily as if their decisions, like those of their 
 American and English compeers, lay open to the critic- 
 ism and formed precedents for the guidance of the 
 united bar of the great Republic and the British 
 Empire. 
 
 Passing over the Court of Appeals, and the criminal 
 law (which is entirely English, but, somehow, has in 
 practice a queer mixed flavour), let us close with a 
 word about the bar. As a body, the Quebec bar are 
 better lawyers than advocates, according to the American 
 notions of advocacy. As we have said, jury trials are 
 comparatively rare, aird so the tricks of the forum — 
 readiness in reply, plausible speeches, well disguised 
 flattery of the twelve good men and true, count for 
 very much less in the contest for success than thorough 
 preparation and a careful attention to the completeness 
 of the record. Cross-examination as an art has not 
 attained that pitch of refinement which it has reached 
 amongst the common lawyers, for it does not bring so 
 full a recompence of reward. Learning rather than 
 eloquence tells here, and the term jurisconsult is not a 
 misnomer when applied to a good Lower Canadian 
 
7 HE ENGLISH SOLICITOR 117 
 
 lawyer. Finally, a certain old-fashioned professional 
 courtesy still exist amongst the long robed "confreres," 
 as they delight to style each other ; a courtesy, however, 
 which, in our opinion, has evil effects in practice. Too 
 many mutual concessions are made, by which deJay is 
 encouraged, and clients sometimes suffer. 
 
 THE ENGLISH SOLICITOR. 
 
 We have heard the English solicitor described as a 
 "lawyer without law," but, accurately as this description 
 hits the great mass of London solicitors and a large 
 number of the country practitioners, there is still tcijbe 
 found in the "lower branch of the profession" a propSars 
 tion of sound and stable advisers, well versed nottoriiyi 
 in the practice but the theory of the law. Thesd areS 
 mostly congregate in the country towns and ditiasriof 
 the second class, and have a family practice caiapSBsS 
 principally of conveyancing, varied with an occagioislal 
 heavy suit. Removed from easy access to couln^ttlKsy 
 have formed habits of independent thought arid "fetiWj^ 
 and are undoubtedly the most learned/ ^atrbafaghathe 
 least obtrusive section of their guild. jaiici bnB ,mift 
 
118 THM ENQLISH SOLICITOK 
 
 The London solicitor or his brother of the large pro- 
 vincial cities is quite another species. Compelled by- 
 dire necessity, as an articled clerk, to "cram" some few 
 law books prior to his "final," he dates his emancipa- 
 tion from the day when he received his certificate, and 
 has since thrown books, like physic, to the dogs. He 
 is purely and wholly a man of business, and pays his 
 counsel for law exactly as he pays his clerks for copying. 
 If ever, by chance, he finds himself cornered and com- 
 pelled to give a legal opinion offhand, he remembers 
 that good sense is generally good law, and following 
 this rule he seldom errs.' But though his legal resources 
 may not be great, his knowledge of the commercial 
 world and its ways is surprising. The promoter and the 
 stockbroker understand the stock exchange, the mer- 
 chant knows the secrets of trade, the banker feels the 
 pulse of capital, but the solicitor, like Lord Bacon, takes 
 all knowledge for his province, and will give you points 
 on any subject you like, from mines to horse-racing. 
 
 Another distinct and fast increasing type of solicitor 
 is the advocate. In London he has little scope, and 
 with a few brilliant exeeptions, the metropolitan advo- 
 cates are no credit to their confraternity, but in the 
 country there is a large class of business open to him. 
 The local county courts and police courts are the fields 
 where he wins his spurs, and many a, man has thus 
 formed the nucleus of a first-rate business. The soHcitor 
 who gees in for advocacy must of course keep up a little 
 reading, but as a rule, a perusal of the weekly notes 
 and of the few professional journals answers every pur- 
 pose. Gradually his name gets known, clients flock to 
 him, and bring not only county court cases but Supreme 
 
THE ENGLISH SOLICITOR- 1 1 9 
 
 Court actions and conveyances. The old stagers, who at 
 first regarded him as an interloper, are compelled to get 
 off their high stilts and accept him as their equal. 
 Next he adds to his practice the emoluments of some 
 local office — a town clerkship, registrarship, or what 
 not. Getting older and staider he hands over the advo- 
 cacy to his junior or quietly drops it. Long before his 
 death he has become one of the institutions of the town, 
 knowing and known by everybody, and when at last 
 he joins the majority, the corporation will walk behind 
 the hearse, and folk will say, "another landmark gone !" 
 The practice he built up will support the incompetence 
 of his successor for a generation, and the mere stick 
 who forty or fifty years hence will be laid by his 
 father's side will have figured for a lifetime as a lawyer 
 in good practice upon the merits of his father's name. 
 Such are the slow but sure rewards of professional suc- 
 cess in a country where the relations of client and 
 attorney often merge into those of lifelong friendship 
 and esteem. 
 
 No sketch, however hasty, of the English solicitor 
 would be complete without some notice of his relations 
 with counsel. The three necessary thorns in his life 
 are clients, clerks and counsel, and the greatest of these 
 is counsel. The half yearly fee lists of his standing 
 junior cut huge cantles out of his profits, but these are 
 well earned and cheerfully paid. It is against the big 
 men, the haughty silken Q. C.s, that he sometimes 
 feels bitter. He has been too often left in the lurch by 
 these dignified frauds to. join in those magniloquent 
 eulogiums on the purity, the disinterestedness, the 
 devotion to clients, and in short, the general moral 
 
120 THE ENGLISH SOLICITOR 
 
 grandeur of the English bar, which are so frequently 
 pronounced by the members thereof. He remembers 
 poor Smith's case, which he feels certain was lost 
 because the leader was absent, and the junior was sulky 
 at his double burden, and he has suffered so often in 
 this way that he knows the old excuse " detained in 
 another court " cannot always be true, but is, like 
 charity, made to cover a multitude of sins. Be it remem- 
 bered that for all these shortcomings he is the vicarious 
 sufferer ; he has to face the wrath and hear the com- 
 plaints of the justly indignant suitor, and we cannot 
 wonder that his appreciation of the "higher branch of 
 the profession " is somewhat .modified by these facts. 
 Our readers may rest assured that it is as true of the 
 English bar as of most other institutions, that "distance 
 lends enchantment to the view." 
 
A SHOUT PLEA FOR A CODE 121 
 
 A SHORT PLEA FOR A CODE. 
 
 Of laws " the most to be desired are those that are 
 the most rare, the most simple and general ; and I am 
 further of opinion that we were better to have none at 
 all than to have them in so prodigious number as we 
 have." Thus concluded old Montaigne. It is hardly 
 necessary to observe that were he living to-day he 
 would see no reason for changing his opinion. He knew 
 that " there is little relation between our actions that 
 are in perpetual mutation and fixed and immobile laws," 
 and he expresses with his usual pungent quaintness the 
 futility of the attempt to provide for all contingencies 
 by statute and by precedent. It is like trying to hold 
 quicksilver. It is, in short, unscientific, and this is to our 
 mind the fatal objection to the common law in its 
 present state. We think that the supporters and advo- 
 cates of a code are, in effect, seeking to adopt in law 
 the same method that prevails in every other branch 
 of human knowledge— to strip away the scaffolding, 
 and show the actual state of the structure. 
 
 If, in any of the physical sciences, the workers of the 
 present day had at their command only the accumulated 
 undigested experiments of their predecessors, what 
 progress could they make ? It is by method that they 
 advance. Each man's discovery or experiment becomes 
 
.12-2 :4 SHORT PLEA FOR A CODE 
 
 part of a distinct and definite whole, so that the trained 
 specialist can state precisely the position up to date of 
 his particular science. Why should law alone be 
 exempted from this process ? Because, we are told, law 
 is not a science. Most assuredly amongst ourselves at 
 present it is not, but if it is wished by the assertion to 
 convey that it is intrinsically incapable of being made 
 a science, we have proof positive that the assertion is 
 wrong. Wherever a code exists there law has assumed 
 the rank and dignity of science ; there jurists and juris- 
 consults exist in fact as well as name, and the study of 
 the law is a truly liberal study, Law is the essence of 
 all other sciences, and shall it be unscientific only when 
 applied to human affairs, its most immediate function ? 
 Can we not all discern with more or less distinctness the 
 fundamental principles which underlie the endless 
 mutations of our cases ? Often misapprehended and 
 misapplied, still the principles are there, just as capable 
 of exact and definite statement as the laws of gravita- 
 tion or molecular force. 
 
 Take one simple instance. Sic utere tuo ut alienum 
 non ladas is one of the bottom truths, as old as the hills, 
 which must have been recognizable as a principle of 
 right by the first judge who ever tried a case. And yet 
 where is it in our law ? (*) We must go and dig it out 
 of Fletcher v. Rylands or some similar case, and acconi- 
 pany it with a long train of distinctions and collateral 
 authorities, and thus waste time in getting rid of a heap 
 of super-incumbent material, useful enough perhaps in 
 
 (*) Note.— It will be remembered that this paper was written for and 
 first published in an American periodical, The Albany Law Journal 
 
A SHOKT.PLEAFQR ACOX)E .123 
 
 other connections, but just superfluous rubbish for the 
 purpose we have in hand. We would laugh at the 
 savant, who having to call to his aid the law of gravita- 
 tion, should for that purpose remount to Newton's 
 original experiments, and work his way from them 
 downward to the matter in hand, and yet this is .What 
 we are doing every day of our lives. Further, is it not 
 probable that if our scientific men persued this round- 
 about course they would go wrong in many an observa- 
 tion, simply for want of having the necessary law right 
 to their hands ? The length and difficulty of the refer- 
 ence would lead to many an oversight of the law. And 
 so here, if this old maxim, couched in fair, modern 
 terms, formed part of a handy, well conned code, would 
 not its force be invoked in many a case where it is now 
 passed over in inadvertent silence ? 
 
 Nor let it be objected that what we ask for is simply 
 a new version of the Decalogue. In the best sense it 
 is a modern Decalogue we ask for. " For there are in 
 nature certain fountains of justice whence air civil laws 
 are derived, but as streams, and like as waters do take 
 tinctures and tastes from the soils through which they 
 run, so do civil laws vary according to the regions and 
 governments where they are planted, though they pro- 
 ceed from the same fountains. " (Advancement of 
 Learning.) We believe that the constant tendency of 
 modern law is toward union with morality. Hard cases 
 do not make bad law, it is bad law that makes the 
 hard cases. The perfect consonance of law and con- 
 science is no impossibility. The goal is still far off, but 
 how much nearer than fifty years ago! Already iji 
 England, equity and common law "have met and kissed 
 
124 A SHORT PLEA FOR A CODE 
 
 each other," and "Meeson and Welsby" slumber in dis- 
 used oblivion. Now what hinders that we should put 
 on record the exact present state of our corpus juris, so 
 that we may see where we stand ? Will not defects be 
 more quickly remedied when they stare us in the face 
 in black and white, challenging the attention of every 
 reader ? 
 
 Nor do we think it reasonable to fear that the mere 
 fact of codification would tend to arrest reform. The 
 day of reverence for authority, as authority, has gone 
 by. We are not at all likely to sit down and worship 
 the idol our own hands have made. The danger, if any, 
 lies in a contrary direction — that of too hasty and ill- 
 considered attempts to remove apparent blemishes. 
 
 In one respect the law would gain in authority, viz., 
 in public estimation, and how much such a gain is 
 needed no American requires to be told. Just as much 
 as the reproach of obscurity is removed from our "juris- 
 prudence" (save the mark !) just so much will that 
 jurisprudence gain in moral influence. Who can respect 
 a shifting umbra that its very professors cannot define ? 
 The influence of the lawyer to-day is still something 
 like that of the magicians of times gone by. He is a 
 professor of a black art, and his pleas and demurrers, 
 his instructions and exceptions, correspond to the penta- 
 gons and aspects, the houses and cadalabadra of old 
 Paracelsus and his mates, That this anticipation of 
 increased authority is not purely theoretical may be 
 seen by a comparison of the public esteem in which the 
 civil law is held in the countries under its rule, with the 
 total indifference of our own people to the common law 
 
.4 SHORT PLEA FOR A CODE 125 
 
 as a distinctive system. It is not that the civil law is 
 better than the common law, but it is presented in a 
 better shape, a shape more comprehensible by the laity. 
 In a word, it is more scientific. 
 
 The vulgar error that codification would reduce or 
 appreciably affect the amount of litigation is hardly 
 worth notice. Litigation is the application of law to 
 facts, or, and more frequently, the decision of disputes 
 as to what are facts ; our quarrel is upon the law itself 
 "We give the authority of law to infinite doctors, infinite 
 arrests, and as many interpretations, yet do we find 
 any end of the need of interpreting ?" We believe not. 
 Let us then have something definite to interpret. Let us 
 endeavour to make of our profession not a mere empiric 
 trade, carried on almost by rule of thumb, but a science, 
 distinct, clear and eonsistent. For this a code is the 
 first requisite, and, without it, all must remain in ever- 
 changing confusion, and the term "jurist" or "juriscon- 
 sult," as applied to an American or English lawyer, 
 must be a ridiculous misnomer. 
 
126 ON EASEMENTS 
 
 ON EASEMENTS. 
 
 Mr. Gale and others are supposed to have already 
 treated this branch of the law "fully and exhaustively." 
 How true in every sense of the word the latter epithet 
 is needs not to be explained to the fatigued law student, 
 but we are surprised that it should have been left to 
 so insignificant a lawyer as the present scribe to point 
 out at this late date a very important class of easements, 
 to which the professed writers on the subject have paid 
 no attention, an omission the more singular as the 
 easements to which we refer are especially connected 
 with the legal professsion and are, moreover, peculiarly 
 susceptible of light and interesting treatment. These 
 easements are the lawyer's own easements, the little 
 oasis that brighten his weary journey, and console him 
 in some degree for his task of dusty drudgery amongst 
 labyrinthine procedure and interminable reports. Now, 
 as no pioneer in an unexplored field can be supposed to 
 map out the whole region of his survey beforehand, 
 but, at best, can only point out the road his successors 
 shall follow, we need make no apology for unsystematic 
 treatment, but take at once the first easement that 
 comes to hand. 
 
 Let us then examine the subject of costs, regarded 
 as an easement. The whole body of costs does not fall 
 
ON EASEMENTS 1 2 7 
 
 under this term. Far be it from us to call the hard 
 earned rewards of daily work, an easement. The ordin- 
 ary costs of suits, consultations, etc., are mere wages, 
 seldom equal to our deserts, never to our wishes. But 
 there are certain items, retainers and special fees for 
 instance, which do partake of the nature of easements, 
 which not only reward but please usv What memory 
 in a lawyer's life is greener than that of his first retainer ? 
 Then he felt that he had begun to establish a reputa- 
 tion, to make a name, to stand forth from the common 
 crowd, i successful, solid man. And in what a nice 
 round sum the retainer comes, its size not spoiled by 
 division into miserable little items, but standing bodily 
 forth in pleasant dignity, the earnest of other fees to 
 come, the token of a client's confidence. We suppose, 
 though we speak not from experience, that even retain- 
 ers pall somewhat on the palate after frequent repetition, 
 and ultimately lose much of their original refreshing 
 flavour, but still they must always remain easements, 
 and easements of the most interesting kind. 
 
 Another easement, to the country lawyer at least, is 
 a journey to New York on business — what lawyer has 
 not felt the pleasure of telling some confrere that he 
 goes up to town to-morrow on an important case ? He 
 will not on any account own to this pleasure. He will 
 grumble about leaving his office — but none the less he 
 knows he is going to have a good time and he takes 
 care to have it. Of course, the further he is from the 
 metropolis and the rarer his visits the greater his con- 
 tent, but we think that even the Albany or New Jersey 
 practitioner does not look upon a trip to town as mere 
 fatigue, but manages to suck a little juice out of the 
 
128 ON EASEMENTS 
 
 orange of pleasure on most such occasions, frequent as 
 they may be. And then, sometimes there comes along 
 the big easement, a trip to Europe. We do not envy 
 our Canadian brethren many things, but we confess we 
 do sometimes cast a wistful eye on the distant Privy 
 Council, which so often furnishes them with a conve- 
 nient and substantial holiday from which they come 
 back gainers in health, in pocket, and in experience. How 
 nice it would be if the stars and stripes floated over 
 London, or, better still, over Paris, and our Supreme 
 Court held its sessions there. But, even as things are, a 
 journey to Europe on business is an easement that most 
 lawyers of the first class enjoy at one time or another, 
 and it shall go hard if they can not manage to work 
 it into the long vacation or in some manner contrive to 
 add a couple of weeks' sight-seeing for themselves to 
 the strict business time required. 
 
 The mention of long vacation brings that, too, before 
 us an ancient and well established easement, but one 
 which has suffered many attacks and encroachments in 
 recent days, and is fast becoming as doubtful and 
 unsettled a quantity as the easement of access of light, 
 which the judges and text-writers have conspired toget- 
 her to befog so wonderfully. The time was when long 
 vacation was a distinct, determined relief; now it has 
 become an illusive hope, or, at best, a precarious enjoy- 
 ment. Still, most of us do manage to get our holidays 
 somehow, and what a refreshing servient tenement the 
 sea-beach or the Adirondacks make ! How truly domin- 
 ant we feel as we breathe the fresh air, smoke the tran- 
 quil cigar and think about nothing. Great is the ease- 
 ment of vacation time ! 
 
ON kASEMENTS 129 
 
 Now, besides the three classes of easements we have 
 mentioned, there are other easements of an accidental 
 kind that turn up now and again, and which every man 
 must remember for himself. Last year we had occasion 
 to cross the border to take the evidence of a gentleman 
 who had suddenly found his natal atmosphere uncon- 
 genial to his health. After being rowed in an Indian 
 canoe by genuine redskins for some miles, we met our 
 man and, time pressing, we held our impromptu court 
 then and there, under the shadow of a great tree by 
 the wayside. Reclined beneath the tree lay the com- 
 missioner, the stenographer squatted himself on a little 
 pile of stones, the opposing lawyers availed themselves 
 of nature's seat, and in the midst the witness stood, 
 and before a rustic audience, to wit, an ancient farmer, 
 who had left his work in the adjacent field and watched 
 us all with ever-increasing amazement, examination 
 and cross-examination proceeded. The lawyers engaged 
 were neither of them unknown to fame (to avoid all 
 suspicion of arrogance, let us say that our own capacity 
 was that of commissioner), and the legal tilt was about 
 as close and vigorous a one as was ever fought out in a 
 more formal court. As our canoe gently glided home- 
 ward in the glorious evening light through the broad 
 glittering river, we all agreed that the day had proved 
 a genuine easement for us. Such sudden flashes of 
 pleasure as this must now and then come in the way 
 of most lawyers, and widely varying in their individual 
 circumstances, can all be grouped together under the 
 heading of "accidental easements." 
 
 We think we have now said enough to point the way 
 to our successors. If any gentleman of competent learn- 
 
130 SHAKESPEARE'S LAWYERS 
 
 ing thinks fit to take up our theme and reduce our new 
 species of easements to methodical order, "illustrating" 
 each branch with all the authorities, good, bad, and 
 indifferent, in approved text-book style, he is perfectly 
 welcome to the idea, which we now make public pro- 
 perty. If he wishes to acknowledge our prior title of 
 discovery, he may do so by an appropriate, but not too 
 fulsome, dedication. We cheerfully resign to him all the 
 profits he is likely to make from his adventure. 
 
 SHAKESPEARE'S LA WYERS. 
 
 Lord Justice Bram well's recent discussion of the legal 
 aspect of Shylock's bond set us to passing in mental 
 review the various members of the long robe who are 
 indebted to Shakespeare for existence, and for fame far 
 wider and more enduring than that of the most learned 
 chancellors and judges of actual life. The remarkable 
 familiarity and accuracy of Shakespeare's legal allusions 
 has induced some to infer that the great master was 
 himself a lawyer, but there is no need to have recourse 
 to a hypothesis wholly unsupported by evidence and 
 intrinsically improbable. From time whereof the 
 
SHAKESPEARE'S LAWYERS 131 
 
 memory of man runneth not to the contrary, the 
 English stage and the English bar have been close 
 friends. The young Templar is usually a man about 
 town, proud of his acquaintance with the greater and 
 lesser lights of the stage, and not wholly ignorant of the 
 mysteries of the green room. The contrast between the 
 two professions is so great that the lawyer, wearied with 
 the hard matter-of-fact drudgery of his chambers, and 
 the student, painfully plodding through the intricate 
 and undigested mass of the common law, naturally turn 
 with delight to that world of fancy and unreality which 
 lies behind the footlights. Justice Shallow, in his green 
 old age, remembered nothing of the musty folios that 
 had once bewildered his poor noddle, and " wrote him- 
 self armigero in any bill, warrant, quittance or obliga- 
 tion," but time had only magnified the memory of his 
 purple days when he ran about London, a lusty little 
 Templar, and got his head broken by John of Gaunt. 
 He was then "Sir Dagonet in Arthur's show," a fool's 
 part well fitted to a fool ; and yet withal a kindly fool, 
 for whom, we confess, we have always had a lurking 
 partiality. And not to dwell upon the past and repeat 
 the list of briefless barristers who have become more or 
 less successful dramatists, we may see the old friendship 
 still existing to-day. Was not Gilbert a barrister ? Who 
 is a better judge of good acting than the present Chief 
 Justice of England ? Does not the memory of the last 
 of the Chief Barons, Sir Fitzroy Kelly, remain green in 
 the heart of the actors' guild ? And so, doubtless 
 Shakespeare had many legal friends to give him a point 
 and see that his law was technical and correct. Let us 
 now call up the phantoms to whom the great dramatist 
 has given " a local habitation and a name, " and amuse 
 
132 SNA KESPEARE'S LA WYEMS 
 
 ourselves for a few minutes in watching them pass 
 across our imaginary stage. 
 
 Portia, of course, claims the place of honour, but her 
 legal existence was so transitory and unauthorized that 
 we must look rather at the master than the pupil, and 
 as lawyers, take more interest in Dr. Bellario than in 
 his temporary student. Portia furnished the eloquence, 
 the native eloquence of woman, but the point of law, 
 which non-suited Shylock, a point in its absoluteness 
 of technicality worthy to be ranked with "the rule in 
 Shelley's case" or the '■'sciutilla jurist' came from the 
 brain of the old professor, and the convenient statute 
 which clenched Shylock's defeat, reduced him to beg- 
 gary and put his own life in jeopardy in place of 
 Antonio's, must have been ferreted out after "we turned 
 o'er many books together" (see Bellario's letter). We 
 can fancy Portia's messenger arriving at the lawyer's 
 house with the "case for opinion," the old man's long 
 night's work amongst his books, and the complacent 
 smile on his face when his task finished, he muttered to 
 himself, "I fancy we've got the rascal now." Like a 
 thorough lawyer, he was not satisfied with knocking 
 his opponent down, but must needs kill him too. The 
 whole case forcibly illustrates the advantage of having 
 a double team of lawyers, and furnishes a striking and 
 perhaps solitary instance in which the leader did all 
 the work and the junior got all the glory — perhaps the 
 learned lawyer would not have been so self denying if 
 his junior had been a mere male like himself. 
 
 Now the scene changes from the Venetian court-room 
 to the Temple Gardens. A party of "great lords and 
 
SHAKESPEARE'S LA IVYERS 
 
 gentlemen " have adjourned in the midst of a weighty 
 legal discussion from the " Temple hall " to this more 
 convenient retreat. A weighty discussion indeed it is, 
 and one whose issue was fraught with woe for the 
 England of that day. The " great lords " admit their 
 own incompetency. Suffolk, with true aristocratic con- 
 tempt, declares that he has been a truant to the law and 
 never yet could frame his will to it, and unconsciously 
 laying down the principle upon which much judge- 
 made law has been built, adds that therefore he frames 
 the law unto his will. Warwick, subsequently the 
 "King Maker," admits that if it were a question of 
 hawks or dogs, swords, horses or girls, he might per- 
 haps have some authority as a critic, "but in these nice 
 " sharp quillets of the law, good faith, I am no wiser than 
 " a daw," and so, at last, it comes down to the lawyers' 
 verdict. We may imagine the suspense of Somerset 
 and Plantagenet as Vernon steps up to the rose bush 
 saying, "Now for the truth and plainness of the case, I 
 " pluck this pale and maiden blossom here, giving my 
 " verdict on the white rose side" — and is followed by the 
 other lawyer : — "Unless my study and my books be 
 " false, the argument you (Somerset) held was wrong in 
 " you : In sign whereof I pluck a white rose too." Somer- 
 set instantly goes back on the arbitration to which he 
 had just submitted and not only swears at the court, 
 but appeals to another arbritration, that of the sword. 
 The Wars of the Roses follow, and after the people of 
 England liave been decimated, the sword confirms the 
 lawyer's decision. 
 
 Again the scene changes. A new King is on the 
 throne, and we see the audience chamber at Westmin- 
 
134 SHAKESPEARE'H LAWYERS 
 
 ster, where the manly sons of the wise Henry IV await, 
 with mixed feelings, the approach of their brother, the 
 erratic Henry, now "by the grace of God" Henry V of 
 England. To them enters the venerable Gascoigne, 
 Lord Chief Justice. They discuss their prospects under 
 the new reign and all agree that it promises to be a 
 remarkably cold day for the chief He spurns the sug- 
 gestion of making friends at court by speaking Sir John 
 Falstafif fair ; 
 
 "Sweet princes, what I did, I did in honour, 
 Led by the impartial conduct of my soul ; 
 And never shall you see that I will beg 
 A i;agged and forestall d remission — 
 If truth and upright innocency fail me 
 I'll to the King my master that is dead, 
 ■ And tell him who hath sent me after him. " 
 
 The King enters and with affected indignation reminds 
 Gascoigne of the time when he rated, rebuked and 
 roughly sent to prison him, " the immediate heir of 
 England," " Was this easy ? " " May this be washed in 
 lethe and forgotten ? " How full and able is the chief 
 justice's reply ! " How he vindicates " the majesty and 
 power of law and justice ! " With what bold integrity 
 does he conclude and challenge censure ! 
 
 "As you are a King, speak in your state 
 What I have done that mis became my place, 
 My person, or my liege's sovereignty." 
 
 In another place Shakespeare shows us the same man 
 displaying the same qualities on a less conspicuous 
 occasion. (Hy. ~IV, Pt. II, Act II, Sc. 1.) The rebuke of 
 Sir John Falstafif is conceived in the very spirit of a 
 
TIVO LEGAL PICTURES 135 
 
 vigorous judge who will stand no nonsence, and is per- 
 haps just a trifle gouty and choleric. "It is not a confi- 
 " dent brow, nor the throng of words that come with 
 " such more than impudent sauciness from you, can thrust 
 "me from a level consideration," It is a pleasure to remem- 
 ber that this bluff chief justice is not a merfe creature of 
 the imagination, but a historic personage, and the plea- 
 •sure becomes greater when we reflect that the English 
 bench has not, on the whole, been unfaithful to the 
 character of fearless honesty, which Gascoigne was one 
 of the first to imprint upon it. 
 
 TWO LEGAL PICTURES. 
 
 It is diflScult to understand why the two fathers of 
 English literature. Chancer and Spenser, have been 
 condemned to share the faint praise of universal respect 
 with the actual injustice of almost universal neglect. 
 Particularly is this to be wondered at in the case of 
 Chaucer, — one would have thought that the warm 
 humanity which breathes with such cheery vigour 
 from the pages of his writings would have induced 
 every English speaking man with the slightest genuine 
 
136 TWO LEGAL PICTURES- 
 
 taste to take the small pains necessary to master his 
 archaic diale,ct and to enjoy those hearty creations 
 which still speak to us across the lapse of centuries, 
 which still, like Esau's raiment of old, retain "the smell 
 of the field." With Spenser, indeed, the case is differ- 
 ent. Hallam's criticism upon "Lycidas" preeminently 
 applies to all Spenser's poems. They may be taken as 
 " good tests of real feeling for wliat is peculiarly called 
 " poetry ; " and we have good authority for saying 
 that the cultivation of a taste for good poetry is pecu- 
 liarly beneficial to the lawyer, immersed in " legal 
 " studies and practice, which sharpen indeed, but, like 
 " a grinding stone, narrow whilst they sharpen." More- 
 over, it is a fact to which not a single exception 
 can be found, that all the great masters of judicial and 
 forensic eloquence both in modern and ancient times, 
 have been men of thorough literary education and taste. 
 
 However, not to prolong our preamble, let us turn at 
 once to Chaucer and, see there the first picture extant 
 of a common lawyer, and then to Spenser and note the 
 earliest report of a state trial. If our sketch shall induce 
 any one of our legal readers to take the Faerie Queen 
 on the Canterbury Tales for his vacatioi; companion, it 
 will not have been written in vain. 
 
 First then for our lawyer. No pert junior is he, but 
 "a Serjeant of law, ware and wise," of such acknow- 
 ledged position that he is often joined in the commission 
 of assize, as is still the case with the leading counsel on 
 the various English circuits. He is a master, moreover 
 of the intricacies of conveyancing. "His purchasing 
 " might not be suspect." What those intricacies were 
 
TtVO LEGAL PICTURES 1 37 
 
 can only be vaguely surmised by us moderns. The 
 English conveyancer is accustomed to look back regret- 
 fully to the times when statutory forms of short deeds 
 and the Torrens system were unheard of, but what 
 must have been the beauties of a deed in days when 
 the Statute of Uses was not, and the Statute Quia 
 Emptores was recent and unsettled law ? — Of course, 
 our Serjeant was a busy man, " nowhere so busy as he 
 " there was " and yet, — here is a touch that makes us 
 think Chaucer knew something of the inside of a 
 lawyer's office himself, — "he seemed busier than he was" 
 
 His case law went back to a period further than our 
 present limit of "time whereof the memory of man run- 
 " neth not to the contrary," for he could quote prece- 
 dents from the time of the Conqueror, and as for the 
 Statutes, he knew them all by heart ! — "Every statute 
 " could he plead by rote." — His fees of course are men- 
 tioned with becoming respect for their magnitude — 
 what layman could ever speak of a lawyer without 
 thinking of his fees ? — but nothing definite is told us 
 as to their precise amount and we are left in ignorance 
 as to whether he counted them in, marks or nobles. 
 His gown is mentioned, but not his wig. That modern 
 innovation was unheard of his time. In one conspicuous 
 respect this old lawyer differed from his successors. He 
 was careless about his dress. " He rode but homely in a 
 "muddled coat." Good lawyers, now-a-days, are rather 
 particular about their personal appearance. 
 
 So much for Chaucer's picture of a common lawyer 
 under Edward HI. Now let us turn to Spenser. The 
 
138 7W0 LEGAL PICTURES 
 
 fifth book of the Faerie Queen is devoted to the legend 
 of Justice : — 
 
 "Most sacred virtue she of all the rest, 
 "Resembling God in his imperial might : 
 "Whose sovereign power is herein most expressed, 
 "That both to good and bad he dealeth right, 
 ' 'And all his works with Justice hath bedight." 
 
 In the ninth canto, the trial of Mary Queen of Scots 
 is allegorized and narrated in Spenser's richest manner, 
 and we soon forget the byeplay of personal flattery 
 which tainted Spenser and all the Elizabethan writers, 
 in the splendid descriptions and imagery of the poet. 
 It is, however, impossible to quote any special passages 
 for Spenser is the most unquotable of writers. His 
 pictures are mosaics and each part depends for its effect 
 upon the whole. Let my readers go to the original and 
 judge for themselves. 
 
 Whilst I am among the old writers, I think I cannot 
 do better than close this rambling gketch with old 
 Hooker's magnificent apostrophe to law. Familiar 
 as it is, it can naver be trite. " Wherefore, that here 
 " we may briefly end : of law there can be no less 
 " acknowledged than that her seat is the bosom of 
 " God, her voice the harmony of the world ; all things 
 " in heaven and earth do her homage, the very least as 
 " feeling her care, and the greatest as not exempted 
 " from her power, both Angels and men and creatures 
 " of what condition soever, though each in different sort 
 " and manner, yet all, with uniform consent, admiring 
 " her as the mother of their peace and joy." 
 
A WRIT OF ELICIT 139 
 
 A WRIT OF ELEGIT. 
 
 We had our judgment, but what were we going to 
 do with it ? The few sticks of furniture that garnished 
 the defendant's domicile were covered by a bill of sale, 
 duly registered and hopelessly unassailable. There was 
 something mysterious about the whole affair. From 
 our letter of application down to the present moment 
 the debtor had made no sign. Our process-server had 
 never seen him ; none of the neighbours knew any thing 
 about him. Upon the statements of his wife and daugh- 
 ter, palpable, contradictory Hes, we had procured subs- 
 tituted service, and no reasonable man could have read 
 the affidavits upon which the order for such service was 
 granted without coming to the conclusion that here was 
 a plain case of wilful evasion of the writ within the 
 meaning of the act. We took the unusual course of 
 notifying the defendant by letter that judgment had 
 passed against him, and would have been glad to come 
 to almost any kind of arrangement, but still he kept 
 silence. 
 
 Things rested thus for some weeks, when one day 
 the plaintiff came to us with the welcome news that 
 there was a row of cottages in a neighbouring village, 
 the rents of which were weekly collected by the debtor's 
 
140 A WRIT OF ELEGIT 
 
 wife. An examination of the assessment-roll confirmed 
 our client's statement. The houses stood in the defend- 
 ant's name, and he paid the taxes. A writ of elegii 
 was quickly taken out and sent down to the sheriff at 
 the county town. For reply, came a polite intimation 
 that a considerable deposit (;£'2o, if we remember right) 
 was required by that functionary before taking any 
 steps. This sent us to our books, and we found that we 
 were embarking on a voyage of discovery amongst 
 shoals of technicalities heretofore unexplored by any 
 local practitioner. None of our friends could give us 
 any assistance, for none of them had ever had occasion 
 to pursue a writ of elegit through its regular and lengthy 
 career. However, our client was determined to see the 
 thing through, and we made the deposit. 
 
 It was now for the sheriff to appoint a day, and sum- 
 mon a jury to decide the issue whether or not the lands 
 and hereditaments described in our writ were in the 
 true and lawful seisin of the defendant. The day being 
 fixed, we subpoenaed the rate collector of the parish to 
 attend with his books, and, as an extra safeguard, we 
 took along the clerk to the assessors. These two wprth- 
 ies, average specimens of the rustic parochial official, 
 were in a state of great trepidation at what they con- 
 sidered our most high-handed and unprecedented pro- 
 ceedings, but by dint of vigourous threats, combined with 
 a liberal allowance of conduct money, we got them into 
 line, and on the appointed day we all set off together 
 for S., to go through a performance which, as the head 
 of our firm declared, was as novel to us as if it had 
 been an action in Japan. 
 
A WRIT OF ELEGIT 141 
 
 Arrived at the county town we found the acting 
 sheriff absent, and his place supplied pro tern, by the 
 most old fashioned attorney we ever had the good for- 
 tune to encounter. To look at him was to go back to 
 the days when George the Third was king —tall, gaunt 
 and ancient, his neck was enveloped in voluminous folds 
 of not immaculate neck cloth. A veritable frill, worth 
 three times its market value for the South Kensington 
 Museum, protruded from his breast, and shone in strong 
 relief against the dress-coat of rusty black, which com- 
 pleted his outward attire. His manner was a strange 
 blending of dignified courtesy and nervous timidity. A 
 poor, proud foolish old man was he, but undeniably a 
 gentleman. Whilst we were busy arranging our papers 
 the jurors began to arrive by ones and twos. Most of 
 them seemed rather bewildered. It was neither assize 
 nor quarter sessions — what then were they wanted for? 
 Where were the judge, the prisoner, the barristers, the 
 audience .? Each looked at his friend, and saw his doubts 
 reproduced in his fellow's face. 
 
 As soon as the necessary twelve were present, our 
 ancient friend ascended the bench, and with an air that 
 would have done credit to my lord chief justice, directed 
 his clerk to swear the jury. This done, we opened our 
 case, briefly explaining the purpose of our assembly, and 
 proceeded to call our witnesses. Very strict and formal 
 was the temporary judge, but every thing was complete, 
 and in a quarter of an hour we were ready for the ver- 
 dict. Not so our worthy patriarch. It was not every 
 day that he sat in the seat of the judges of the land, and 
 accordingly he favored us with a most elaborate oration 
 disguised as a summing up, going into the whole history 
 
l42 A WRIT OF ELEGIT 
 
 of the writ of elegit, and quoting statutes by the yard. 
 The jury were evidently getting befogged, and when at 
 last D. ceased, we should not have been surprised had 
 they returned a verdict of accidental death, or any other 
 irrelevant absurdity, such as usually close mock trials at 
 sea. The clerk however kept them straight, putting the 
 verdict, word for word, into the foreman's mouth, and so, 
 after paying a few more fees, and cracking a bottle with 
 the quondam judge, we got the sheriff's return, and 
 started home. 
 
 Our client was now the legal owner of the property. 
 Had it become necessary to transmute that legal owner- 
 ship into actual possession, we should have been com- 
 pelled to go to chancery, and the papers actually went 
 up to counsel to draw the petition, but in the meantime 
 the defendant appeared on the scene, and the mystery 
 was solved. The notices sent by us to the tenants to 
 pay their rents into our hands broke the spell, and 
 it appeared that this was the first intimation the poor 
 fellow had ever received of the action. Old, bedridden 
 and illiterate, he had, months before the account was 
 given us for collection, sent his wife and daughter with 
 the cash to pay our client. It was the only debt left 
 outstanding from his former business, and he lived happy 
 in the thought that he owed no man. But his wife and 
 daughter shamefully deceived him. They kept the 
 money for their own purposes, and when our legal mis- 
 siles began to rain upon them they artfully contrived to 
 keep the old man in ignorance of every thing. It never 
 crossed their stupid minds that the real property could 
 be attached. The original debt was ;^i2o ; our costs 
 amounted to nearly as much more, and in the end our 
 
THE OLD LONDON BANKRRUPTCY COURT 143 
 
 client paid our bill, and took a mortgage on the property 
 (which was of ample value) to cover the whole amount. 
 Thus ended the struggle between the women and the 
 law ; our first and last experience with a writ of elegit. 
 
 THE OLD LONDON BANKRUPTCY COURT. 
 
 In a narrow, tortuous street, in the heart of the city 
 of London, a stone's throw from Guildhall, stands, or 
 rather stood at the time whereof we write — some twelve 
 years ago — a large and massively built stone edifice 
 whose lofty, well proportioned chambers and commodious 
 staircases seemed to brood in silent dinginess over the 
 ghost of a prosperous and jovial past. Once these 
 chambers had been clothed with rich hangings and deep- 
 piled carpets ; these staircases had been trodden by 
 merchant princes ; the whole place had been redolent of 
 solid wealth and substantial commerce, and the very 
 name of Basinghall had the same golden flavour which 
 still belongs to Lombard street or Capel Court. Now 
 all was changed. The resort of merchants had become 
 the habitation of the London Bankruptcy Court. Com- 
 
lU THE OLD LONDON BANKRUPTCY COURT 
 
 merce had abandoned the spot to the mercy of the 
 lawyers, and dusty and interminable records filled the 
 vaults once sacred to bullion and merchandise. 
 
 Yet it was still a busy place. All day long, counsel 
 and attorneys, clerks and insolvents hurried through the 
 corridors, filing petitions and accounts, moving for in- 
 junctions and orders, searching records, paying fees. 
 Little by little, by motions, by affidavits, by searches, by 
 attendances, the lawyers' bills mounted up, and even 
 the final taxation added something to the pile. Here 
 was the paradise of red tape, the native home of six-and- 
 eight pences. Litigation and conveyancing hid their 
 heads in shame before the colossal profits of a bank- 
 ruptcy practice. Not only were the gains large, but 
 they were quick and sure, for the certificate of taxation 
 instantly opened as by magic the trustee's pocket. 
 
 The presiding genii of the place were the registrars, 
 six in number, whose duties were divided between 
 Basinghall street and the liquidation office in Portugal 
 street, near Lincoln's Inn. Mild inoffensiveness was 
 the common characteristic of them all. Hazlitt, Broug- 
 ham, Pepys, were respectable names, and seemed to 
 cast a certain literary halo round their possessors, but a 
 couple of hardheaded, suspicious, old attorneys would 
 have been far better fitted to get through the work, and 
 to choke off" the rogues and blacklegs who infested every 
 nook and corner of the building, than these quiet, elderly 
 gentlemen who were evidently and consciously out of 
 their proper sphere. So little influence did the registrars 
 exert, and so little individuality was there about them 
 that at the present moment we have not a recollection 
 
THE OLD LONDON BANKRUPTCY COURT 145 
 
 of their personal appearance even,, except as to Hazlitt, 
 whose ruddy face and military white moustache always 
 suggested the idea of an old East Indian officer, presi- 
 ding over a court-martial. Yet it is not too much to 
 say that had the registrars, aided by the chief judge in 
 bankruptcy, been equal to the not very difficult task of 
 working out an admirably drawn Act of ParHament (for 
 the Bankruptcy Act of 1869 was, in our opinion, a 
 model of skillful draughtmanship) a really efficient in- 
 solvency system might have been established that would 
 have given general satisfaction. The fault of the system 
 lay in the costs, which were far too liberal, and yet it 
 was in this very matter of costs that the least supervi- 
 sion was exercised. 
 
 Next to the registrars, in his own estimation, came the 
 officer for administering oaths. His only function was 
 to sit in an easy-chair all day and swear affidavits. By 
 a careful cultivation of natural ferocity he had reduced 
 his work to its smallest possible compass, and woe betide 
 the wight who came to him with an affidavit interlined 
 or erased. His signature, he held, was all he was bound 
 to give, and why should he be expected to waste his 
 valuable time initialling alterations ? Once however we 
 saw him moved, and will record the occasion, to his 
 credit. A timid, country lad approached the dread chair 
 in all the security of ignorance, and handed in an affidavit 
 more like a newspaper map than a legal document. 
 Something in the paper caught the old man's eye and 
 he paused to read the contents. The affidavit was an 
 identification by a son of the body of his father, a bank- 
 rupt and a suicide. Old S. blew his nose very hard, 
 and initialled the affidavit in silence, and bidding the 
 
146 THE OLD LONDON BANKRUPTCY COURT 
 
 lad wait, went behind a screen, from which he emerged 
 in a few moments with something in an envelope. This 
 he handed to the boy, telling him not to open it till he 
 got home, and then, turning to ourselves, who were next 
 in turn, vented his superfluous feeling in some very- 
 uncomplimentary remarks about our papers, in which 
 he professed to detect something wrong. For the only 
 time in our experience we did not feel like kicking him. 
 
 There were many other officials and departments 
 scattered throughout the building, in varying degrees of 
 inefficiency. Perhaps the official auditor should be 
 exempted from the general condemnation, for, as far as 
 he could, he checked the trustees' accounts, and some- 
 times managed to make life a burden to them. The 
 worst den was the record office, a horrible little room in 
 the cellarage, reeking with gas and mustiness, and it was 
 here that some of the grossest frauds were committed. 
 Occasionally whole files (as tlje records were usually 
 called) were stolen ; more frequently a single important 
 sheet, a resolution of creditors, or an order of the court, 
 was surreptitiously removed. The technicalities of bank- 
 ruptcy procedure, and the illegitimate profits so easily 
 made by an unscrupulous man attracted to the court 
 some of the very worst class of practitioners, men quite 
 capable of picking pockets. Our first introduction to 
 bankruptcy practice made us acquainted with one of 
 these fellows, a man who had sacrificed a flourishing 
 practice to drink, and ultimately, a few years afterward, 
 ended in the penitentiary. Our principal had to unravel 
 the thread of a very old and complicated insolvency, and 
 bring it to an issue. This man held all the clues in his 
 hands, and it was our business for several days to accom- 
 
THE OLD LONDON BANKRUPTCY COURT 14T 
 
 pany him to the different offices simply to pay the neces- 
 sary fees on the papers, for he could not be trusted with 
 a shilling. When the business was finished he received 
 a liberal fee, and in less than a fortnight he was in the 
 Holloway jail, a judgment debtor. 
 
 FINIS. 
 
 THE OEBHAHOT-BERTHIAUME UTH. A PRINT. CO., MONTREAL.