Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/698

 684 V. BENCH AND BAR common classes are not able to bear so great a cost, while the mercantile people rarely desire to deplete their capital by such an annual burden. " Whence it happens that there is hardly a skilled lawyer who is not a gentleman by birth, and on this account they have a greater regard for their character, their honor and good name." After a barrister had been called, he generally practised on the circuit. Fortescue himself traveled the western cir- cuit. He narrates how he saw a woman condemned and burned for the murder of her husband, and at the next assizes he heard a servant confess that he had killed the husband and that the wife was entirely innocent. From this occurrence Fortescue draws a justification for the law's delay. " What must we think," he says, " of this precip- itate judge's prickings of conscience and remorse, when he reflects that he could have delayed that execution.* Often, alas, he has confessed to me that he could never in his whole life cleanse his soul from the stain of this deed." In an- other place Fortescue makes the remark that has been so often quoted : " Indeed one would much rather that twenty guilty persons should escape the punishment of death, than that one innocent person should be executed." The barrister after sixteen years' service may be called upon to take the degree of serjeant at law. Then he dons a white silk cap, which a serjeant does not doff even while talking to the king. After much solemn and stately cere- monial and feasting, the new serjeant is assigned his pillar at the Parvis of St. Paul's, where he consults his clients and attorneys. The orthodox rule, which became a custom in England, that it is unprofessional for a barrister to re- ceive his instructions or fee from the client, did not then exist. Even in much later times Wycherly, who had been a law student, sees no incongruity in the client consulting a bar- rister. In his exceedingly filthy, but witty play. The Plain- dealer, the litigious Widow Blackacre is consulting her coun- sel, Serjeant Ploddon, and says to him: "Go then to your Court of Common Pleas and say one thing over and over again ; you do it so naturally, that you will never be sus- pected for protracting time."