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