then t'other chap, he said, How the duchess will quiz us! The duchess, says he, is such a quiz!”

"He said the duchess was a quiz, did he?"

"Yes, your worship; and they tried to bamboozle us with its being a bet― didn't they, Peter? and they wanted to persuade us that they were two nobs out on a lark - but we wasn't to be done by the likes of them... . .”

"I can swear to him now," said the turnkey, suddenly interrupting Jacob's self-glorification.

"Swear the warden's officer," said the magistrate.

Joe was sworn accordingly, and identified the prisoner of the Fleet in due form.

"Take him away," said the warden to his turnkey. you will put him in the strong-room again."

"Of course

"Stop!" said the clerk; "I don't know that we can give him up so easily. This is a court of criminal jurisdiction, and he is in our custody."

"But he is my prisoner," said the warden.

"He was," rejoined the clerk; "but he is our's now."

"But I will give you precedents for my right to resume possession of him," replied the warden. "There is the case of Gripe

versus Cashless."

"If you wish to argue the point," said the alderman, “I am ready to hear you. Shall you be long?" "I am afraid I cannot make my argument a very short one," replied the warden; "but in the case of Gripe versus Cashless.... "Be so good as to excuse me for a few minutes," said the alderman, "while I have a short consultation with the city solicitor, who is waiting for me in the private room. Officer, you may remove the prisoners, and keep them safe till I come back."

The alderman retired, and Ned and Kitty were removed accordingly; but as Kitty kicked and screamed with the most violent contortions of arms and legs, swearing that she would do for the "vile vagabone" who had dared to personate her so "howdaciously," she was thrust into the common cell apart, and Ned was placed in a more decent place adjacent, but which was equally secure. Dick, in the meantime, finding that he had been forgotten in the interest excited by the examination of the two Kittys, took advantage of the little confusion occasioned by the retirement of the alderman and the removal of the " females," and quietly slipped away, and made off rapidly to his theatre, where he buried himself among the scenery, and began to paint right and left with excessive diligence.

After a rather long absence, the alderman returned, and it was presently seen that he was more favourably disposed to the claim of the warden of the Fleet, so that the case was quickly disposed of, and the prisoner was ordered to be replaced at the bar, in order to be discharged from criminal custody, and restored to the keeping of the civil power. But to the extreme astonishment of the officer, and the warden, and the alderman, no prisoner was to be found!

(To be continued.)

THE BAR OF ENGLAND.

(FROM THE PAPERS OF THE LATE J

(Continued from Vol. IV. p. 521.)

E

A., ESQ.)

BEFORE proceeding, I will mention that one cause (and some may think not too early) of the inconsistencies which are found in the profession of the Bar, is its aristocratical bearing, while it in fact has little or none of the substance of aristocracy. A successful counsel may rise to the highest dignities of the state, but his chances of elevation rest, in the first instance, on the extent of favours shown to him by a rank below him; for a mere barrister, without practice, was certainly never made a peer. The result of this assumption of quality, upon so base a foundation, is a contradictory necessity of conciliating a class which should be otherwise despised. The rules of the Bar are all calculated to impress a belief that attorneys and clients are persons favoured by the acceptance of their briefs and the conduct of their cases; while there is not a single practising barrister who would venture to refuse them, under ordinary circumstances. And why? Because the number and character of his retainers is the measure of his influence, wherever that extends; of his approach - by the state and ceremony which they enable him to maintain-to the circles above him; and, consequently, to the accession of place, profit, and dignity -at which he ceases to require them. The vaunted independence of the Bar, as a body, has thus no real existence. It is spoken of, because the contrary quality is inconsistent with aristocratical pretensions it cannot be because the very assumption of the superior character is dependent for support on the means supplied by those whom the pride of station reputes as of inferior degree. The humble term of client is retained as to the latter, but the noble one of patron is lost; or, speaking according to facts, instead of words, their relation is reversed, the clients being now the acknowledged patrons of the barrister. In short, our profession, while it would fain claim to be akin to that patrician class, created by Romulus, to whom, as Horace says,

when fees were unknown, and forensic pleaders were animated by paternal* interests only,—yet adopts the practice of the adepts in law

The classical reader will recollect that it was the duty of the patron to do every thing for his client that a father would do for his children. Vide Kennet and Adams, "Roman Antiquities;" and Horace again,

undè domo quis,

Cujus fortunæ, quo sit patre, quove patrono.

in the time of the Emperors, when, under the borrowed term of "honorarium," they began to claim the "certam justamque mercedem," the only difference being, that the latter did not receive it until after it was earnt, while we carefully stipulate for its payment before doing anything (that is, if the etiquette of the Bar be strictly observed), and ought not to undertake any business unless it be made*, ay, and kept.

Having alluded to the independence of the Bar, I may here conveniently clear the ground before me, by noticing another distinction claimed by it (especially after giving the above extraordinary advice), that of illustrious honour and integrity. In fact, these virtues are usually spoken of conjointly with the other. Writing conscientiously, however, I cannot concede the Bar any solid right to any special distinction in these respects beyond any other class of society, of whatever degree, whether we refer to their conduct towards the public, or each other. I will not say, nor insinuate, on the one hand, that the profession is totally deficient in moral principles, as our enemies are apt to assert; but neither can I admit, on the other, that we excel in them. Men of noble, ingenuous, and liberal dispositions, and of "exceeding honesty," no doubt adorn it; but as much may be said of every other rank in life; while no one will venture on the proof, unless in the purest spirit of ignorance or rash presumption, that the Bar is exclusively composed of men exempt from the ordinary failings of mankind, until he show that the process which converts the student into the barrister can wholly eliminate, as it were, the evil qualities which previously predominated in him. But, as we have seen, there is no such magic in the operation. There is nothing to change the cunning and artful into the candid and open; the bold, impudent, and disingenuous, into the modest and sincere; nor the mean, cowardly, and sordid, into the dignified, courageous, and generous. If there is any tendency in the practice of the law to alter the usual proportion between the worthy and the unworthy, it is rather to increase the latter; at least so it appears to me, from various facts which have crossed my observation. The silent indifference (not to say contempt) which meets the unfortunate barrister on every side, originating in causes already mentioned, or the patronising politeness, alternating with the rude, dictating, offensive behaviour of his seniors, are more than commonly calculated to "knaw the very inwards" of a young man of education and refinement,

"And, practising upon his peace and quiet,
Even to madness †,"

I was informed by a barrister, now well known, that a short time after his call he received a brief at one of the metropolitan courts to defend a prisoner. Accidentally hearing that the mother, in order to defray the expenses of the trial, had pledged her only bed, and wedding ring, and made other sacrifices, which left her destitute of the means of returning home at a distance in the country, he sent for her privately, and finding, on inquiry, that such was the fact, he immediately handed back the guinea received from her agent, and thus enabled an aged woman to ride when she must otherwise have walked. This act of generosity coming to the ears of one of the leaders, he spoke to my friend on the subject, assuring him that he had done wrong, inasmuch as such conduct was unprofessional!

+ This word is here strictly applicable, as I could prove by lamentable instances. One barrister, who has survived his early difficulties, assured me that, at one period

to drive him to courses which his soul had otherwise disdained, until he find himself "even" with his tormentors. Such circumstances, I say, are rather adverse to the preservation of a high-toned principle of action.

As I would not be accused of being the first to utter any thing so derogatory to the character of our profession as what I have above advanced, I must anticipate the charge, by alluding to the statute passed in 1275, and commonly called the first Statute of Westminster, chap. 29., which tells us that the honour and integrity of the Bar were early impeached, without reference to Lord Coke's distinct annotations on it. By this it is provided, "that if any serjeant-counter* or other do any manner of deceit or collusion in the king's court, or consent to do it in deceit of the court, with intent to cheat the court or the party, and of this be attainted, he shall be imprisoned for a year and a day, and shall not be heard in the king's court to plead for any one; and if he be other than a counter, he shall be imprisoned for a year and a day in like manner. And if the trespass require greater punishment, it shall be at the king's pleasure."† The necessity for this statute is thus stated by Coke:-" Before this statute, in the irregular reign of Henry III., serjeants, apprentices, attorneys, clerks of the king's courts, and others, did practise and put in use unlawful shifts, and devices so cunningly contrived (and especially in the cases of great men) in deceit of the king's courts, as often times the judges of the same were by such crafty and sinister shifts and practices inveigled and beguiled, which was against the common law, and therefore this Act was made in affirmance of the common law, only it added a greater punishment." For hear what the Mirror‡ saith of the serjeant-at-law, what his office and duty was:- "Every serjeant-counter is chargeable by oath§, that he shall not maintain nor defend wrong, nor falsify to his knowledge, but shall plead for his client the best he can according to his understanding. Also that he shall put no false delays into court, no false witnesses, nor move, nor offer neither corruptions, deceits, falsehoods, nor false lies, nor consent to them, but faithfully maintain the right of his client, that he fail not by his folly, negligence or default, nor by any threatening, hint, or villany disturb the judge, serjeant, or any other in court, by which he may hinder the right hearing of the cause."

That I may further exonerate myself from the charge of groundlessly objecting to the Bar assuming the character of universal ex

of his career, he was so overcome by conduct such as that to which I allude, that on one occasion he could scarcely restrain himself from plunging into the water, from Blackfriars Bridge.

* Vide antè, Vol. IV. pp. 143, &c.

This chapter is translated literally from the Norman law French of the period. The ordinary translations make the word counter to signify an ordinary pleader, in contradistinction to serjeant, which I humbly submit to be a mistake, as the ancient of the latter was serjeant-counter, while other pleaders were termed "apprentices," antè, Vol. IV. p. 143. The words "or other" will include the latter, and thus justify the construction put on the Act by Hawkins, that counsellors not sworn like the serjeants are within the Act.

This was "The Booke called the Mirror of Justices," written in old French by Andrew Horne in the reign of Henry II.

§ The barrister is not sworn like the serjeant, as will be explained hereafter.

6

cellence and invariable purity of practice, I must allude also to the statute of 1 Richard II., c. 4., which enacts that none of the king's counsellors, officers, or servants, &c., "shall take or sustain any quarrel by maintenance," under grievous penalties at the king's pleasure, and the various other statutes on the same subject, and on champerty, which are collected in Coke's Institutes, part 2., articuli super Chartas, ch. 11., all of which imply that the Bar was early suspected of not being immaculate. Indeed, that author furnishes a case in point where, after stating that serjeants, apprentices, and attorneys "cannot contract to have any part of the thing in demand after recovery," he mentions, "that in a writ of champerty brought against Penros, for that he had parcel of the land recovered against him [the plaintiff on the writ] at another man's suit,' Penros said that he was of counsel with the party which recovered, and had that land for his wages." The learned writer then adds, "the taking of the state for his wages, after the recovery, could be no champerty, unless there had been a covenant or promise, hinging the plea, on the demandant's part, to make the same after the recovery, which was not alleged, but only the taking of the stake," and concludes with a most significant, though rather inconsistent, remark :-" And we are of opinion that it shall remain for ever a blemish to his reputation as often as it is cited, for quamvis aliquid ex se non malum, tamen si sit mali exempli non est faciendum." But it may be said that I am only disturbing the dusty abuses of an antiquated period-that the modern Bar has advanced far beyond the irregularities on which Coke animadverts. I wish I could conscientiously assent to such an opinion; but to do so is impossible, although I treated the loud clamours even now ringing in my ears, on the dishonest and faithless neglect of clients, as the basest calumny. I have seen and heard too much to allow me to acquiesce in it, as a few anecdotes will show; while, at the same time, they instruct the young barrister, which is the main object of my writing.

66

Many years ago, a counsel, yet living, I believe, and enjoying a pension granted on his retirement from a high office, to which he was subsequently elevated, was a celebrated leader on the circuit. It happened at one of the assizes a cause of ejectment, if I remember rightly-was set down for trial, and the plaintiff's attorney, anxious to secure his assistance, not only sent a special retainer†, but a brief with a satisfactory fee, at least three weeks before the circuit commenced, and consequently while the learned gentleman was in town. He had thus an opportunity, of which he availed himself, to study the plaintiff's case. On his arrival at the assize town, one of the defendant's attorneys called at his lodgings with a brief for the latter,

The unprofessional reader is informed that "maintenance" is the offence of supporting another's quarrels without lawful interest in them, as by advancing money to carry on proceedings at law. Champerty is supporting a quarrel on condition of sharing in the proceeds of a suit if successful.

A retainer, or retaining fee, strictly speaking, is a fee paid to a counsel before delivering a brief, that he may not be engaged on the other side. When paid on account of one case only it is called special; but where a solicitor desires to secure his services at any time, he pays a general retainer of at least five guineas.