the odious judge of the Bloody Circuit, was a successful gallant. Tall,
well-shaped, and endowed by nature with a pleasant countenance and
agreeable features, Jeffreys was one of the most fascinating men of his
time. A wit and a _bon-vivant_, he could hit the humor of the roystering
cavaliers who surrounded the 'merry monarch;' a man of gallantry and
polite accomplishments, he was acceptable to women of society. The same
tongue that bullied from the bench, when witnesses were perverse or
counsel unruly, could flatter with such melodious affectation of
sincerity, that he was known as a most delightful companion. As a
musical connoisseur he spoke with authority; as a teller of good stories
he had no equal in town. Even those who detested him did not venture to
deny that in the discharge of his judicial offices he could at his
pleasure assume a dignity and urbane composure that well became the seat
of justice. In short, his talents and graces were so various and
effective, that he would have risen to the bench, even if he had labored
under the disadvantages of pure morality and amiable temper.
Women declared him irresistible. At court he had the ear of Nell Gwyn
and the Duchess of Portsmouth--the Protestant favorite and the Catholic
mistress; and before he attained the privilege of entering Whitehall--at
a time when his creditors were urgent, and his best clients were the
inferior attorneys of the city courts--he was loved by virtuous girls.
He was still poor, unknown, and struggling with difficulties, when he
induced an heiress to accept his suit,--the daughter of a rural squire
whose wine the barrister had drunk upon circuit. This young lady was
wooed under circumstances of peculiar difficulty; and she promised to
elope with him if her father refused to receive him as a son-in-law.
Ill-luck befell the scheme; and whilst young Jeffreys was waiting in
the Temple for the letter which should decide his movements, an
intimation reached him that elopement was impossible and union
forbidden. The bearer of this bad news was a young lady--the child of a
poor clergyman--who had been the confidential friend and paid companion
of the squire's daughter.
The case was hard for Jeffreys, cruel for the fair messenger. He had
lost an advantageous match, she had lost her daily bread. Furious with
her for having acted as the _confidante_ of the clandestine lovers, the
squire had turned this poor girl out of his house; and she had come to
London to seek for employment as well as to report the disaster.
Jeffreys saw her overpowered with trouble and shame--penniless in the
great city, and disgraced by expulsion from her patron's roof. Seeing
that her abject plight was the consequence of amiable readiness to serve
him, Jeffreys pitied and consoled her. Most young men would have soothed
their consciences and dried the running tears with a gift of money or a
letter recommending the outcast to a new employer. As she was pretty, a
libertine would have tried to seduce her. In Jeffreys, compassion roused
a still finer sentiment: he loved the poor girl and married her. On May
23, 1667, Sarah Neesham was married to George Jeffreys of the Inner
Temple; and her father, in proof of his complete forgiveness of her
_escapade_, gave her a fortune of L300--a sum which the poor clergyman
could not well afford to bestow on the newly married couple.
Having outlived Sarah Neesham, Jeffreys married again--taking for his
second wife a widow whose father was Sir Thomas Bludworth, ex-Lord Mayor
of London. Whether rumor treated her unjustly it is impossible to say at
this distance of time; but if reliance may be put on many broad stories
current about the lady, her conduct was by no means free from fault. She
was reputed to entertain many lovers. Jeffreys would have created less
scandal if, instead of taking her to his home, he had imitated the pious
Sir Matthew Hale, who married his maid-servant, and on being twitted by
the world with the lowliness of his choice, silenced his censors with a
jest.
Amongst the love affairs of seventeenth-century lawyers place must be
made for mention of the second wife whom Chief Justice Bramston brought
home from Ireland, where she had outlived two husbands (the Bishop of
Clogher and Sir John Brereton), before she gave her hand to the judge
who had loved her in his boyhood. "When I see her," says the Chief
Justice's son, who describes the expedition to Dublin, and the return to
London, "I confess I wondered at my father's love. She was low, fatt,
red-faced; her dress, too, was a hat and ruff, which tho' she never
changed to death. But my father, I believe, seeing me change
countenance, told me it was not beautie, but virtue, he courted. I
believe she had been handsome in her youth; she had a delicate, fine
hand, white and plump, and indeed proved a good wife and mother-in-law,
too." On her journey to Charles I.'s London, this elderly bride, in her
antiquated attire, rode from Holyhead to Beaumaris on a pillion behind
her step-son. "As she rode over the sandes," records her step-son,
"behind mee, and pulling off her gloves, her wedding ringe fell off, and
sunk instantly. She caused her man to alight; she sate still behind me,
and kept her eye on the place, and directed her man, but he not guessing
well, she leaped off, saying she would not stir without her ringe, it
being the most unfortunate thinge that could befall any one to lose the
wedding-ringe--made the man thrust his hand into the sands (the nature
of which is not to bear any weight but passing), he pulled up sand, but
not the ringe. She made him strip his arme and put it deeper into the
sand, and pulled up the ringe; and this done, he and shee, and all that
stood still, were sunk almost to the knees, but we were all pleased that
the ringe was found."
In the legal circle of Charles the Second's London, Lady King was
notable as a virago whose shrill tongue disturbed her husband's peace of
mind by day, and broke his rest at night. Earning a larger income than
any other barrister of his time, he had little leisure for domestic
society; but the few hours which he could have spent with his wife and
children, he usually preferred to spend in a tavern, beyond the reach of
his lady's sharp querulousness. "All his misfortune," says Roger North,
"lay at home, in perverse consort, who always, after his day-labor done,
entertained him with all the chagrin and peevishness imaginable; so that
he went home as to his prison, or worse; and when the time came, rather
than go home, he chose commonly to get a friend to go and sit in a free
chat at the tavern, over a single bottle, till twelve or one at night,
and then to work again at five in the morning. His fatigue in business,
which, as I said, was more than ordinary to him, and his no comfort, or
rather, discomfort at home, and taking his refreshment by excising his
sleep, soon pulled him down; so that, after a short illness, he died."
On his death-bed, however, he forgave the weeping woman, who, more
through physical irritability than wicked design, had caused him so much
undeserved discomfort; and by his last will and testament he made
liberal provision for her wants. Having made his will, "he said, I am
glad it is done," runs the memoir of Sir John King, written by his
father, "and after took leave of his wife, who was full of tears; seeing
it is the will of God, let us part quietly in friendship, with
submissiveness to his will, as we came together in friendship by His
will."
CHAPTER IX.
"CICERO" UPON HIS TRIAL.
A complete history of the loves of lawyers would notice many scandalous
intrigues and disreputable alliances, and would comprise a good deal of
literature for which the student would vainly look in the works of our
best authors. From the days of Wolsey, whose amours were notorious, and
whose illegitimate son became Dean of Wells, down to the present time of
brighter though not unimpeachable morality, the domestic lives of our
eminent judges and advocates have too frequently invited satire and
justified regret. In the eighteenth century judges, without any loss of
_caste_ or popular regard, openly maintained establishments that in
these more decorous and actually better days would cover their keepers
with obloquy. Attention could be directed to more than one legal family
in which the descent must be traced through a succession of illegitimate
births. Not only did eminent lawyers live openly with women who were not
their wives, and with children whom the law declined to recognize as
their offspring; but these women and children moved in good society,
apparently indifferent to shame that brought upon them but few
inconveniences. In Great Ormond Street, where a mistress and several
illegitimate children formed his family circle, Lord Thurlow was visited
by bishops and deans; and it is said that in 1806, when Sir James
Mansfield, Chief Justice of the Common Pleas, was invited to the
woolsack and the peerage, he was induced to decline the offer more by
consideration for his illegitimate children than by fears for the
stability of the new administration.
Speaking of Lord Thurlow's undisguised intercourse with Mrs. Hervey,
Lord Campbell says, "When I first knew the profession, it would not
have been endured that any one in a judicial situation should have had
such a domestic establishment as Thurlow's; but a majority of judges had
married their mistresses. The understanding then was that a man elevated
to the bench, if he had a mistress, must either marry her or put her
away. For many years there has been no necessity for such an
alternative." Either Lord Campbell had not the keen appetite for
professional gossip, with which he is ordinarily credited, or his
conscience must have pricked him when he wrote, "For many years there
has been no necessity for such an alternative." To show how far his
lordship erred through want of information or defect of candor is not
the duty of this page; but without making any statement that can wound
private feeling, the present writer may observe that 'the
understanding,' to which Lord Campbell draws attention, has affected the
fortune of ladies within the present generation.
That the bright and high-minded Somers was the debauchee that Mrs.
Manley and Mr. Cooksey would have us believe him is incredible. It is
doubtful if Mackey in his 'Sketch of Leading Characters at the English
Court' had sufficient reasons for clouding his sunny picture of the
statesman with the assertion that he was "something of a libertine." But
there are occasions when prudence counsels us to pay attention to
slander.
Having raised himself to the office of Solicitor General, Somers, like
Francis Bacon, found an alderman's daughter to his liking; and having
formed a sincere attachment for her, he made his wishes known to her
father. Miss Anne Bawdon's father was a wealthy merchant, styled Sir
John Bawdon--a man proud of his civic station and riches, and thinking
lightly of lawyers and law. When Somers stated his property and
projects, the rental of his small landed estate and the buoyancy of his
professional income, the opulent knight by no means approved the
prospect offered to his child. The lawyer might die in the course of
twelve months; in which case the Worcestershire estate would be still a
small estate, and the professional income would cease. In twelve mouths
Mr. Solicitor might be proved a scoundrel, for at heart all lawyers were
arrant rogues; in which case matters would be still worse. Having
regarded the question from these two points of view, Sir John Bawdon
gave Somers his dismissal and married Miss Anne to a rich Turkey
merchant. Three years later, when Somers had risen to the woolsack, and
it was clear that the rich Turkey merchant would never be anything
grander than a rich Turkey merchant, Sir John saw that he had made a
serious blunder, for which his child certainly could not thank him. A
goodly list might be made of cases where papas have erred and repented
in Sir John Bawdon's fashion. Sir John Lawrence would have made his
daughter a Lord Keeper's lady and a peeress, if he and his broker had
dealt more liberally with Francis North. Had it not been for Sir Joseph
Jekyll's counsel, Mr. Cocks, the Worcestershire squire, would have
rejected Philip Yorke as an ineligible suitor, in which case _plain_
Mrs. Lygon would never have been Lady Hardwicke, and worked her
husband's twenty purses of state upon curtains and hangings of crimson
velvet. And, if he were so inclined, this writer could point to a
learned judge, who in his days of 'stuff' and 'guinea fees' was deemed
an ineligible match for a country apothecary's pretty daughter. The
country doctor being able to give his daughter L20,000, turned away
disdainfully from the unknown 'junior,' who five years later was leading
his circuit, and quickly rose to the high office which he still fills to
the satisfaction of his country.
Disappointed in his pursuit of Anne Bawdon, Somers never again made any
woman an offer of marriage; but scandalous gossip accused him of immoral
intercourse with his housekeeper. This woman's name was Blount; and
while she resided with the Chancellor, fame whispered that her husband
was still living. Not only was Somers charged with open adultery, but it
was averred that for the sake of peace he had imprisoned in a madhouse
his mistress's lawful husband, who was originally a Worcester tradesman.
The chief authority for this startling imputation is Mrs. Manley, who
was encouraged, if not actually paid, by Swift to lampoon his political
adversaries. In her 'New Atalantis'--the 'Cicero' of which scandalous
work was understood by its readers to signify 'Lord Somers,'--this
shameless woman entertained quid-nuncs and women of fashion by putting
this abominable story in written words, the coarseness of which accorded
with the repulsiveness of the accusation.
At a time when honest writers on current politics were punished with
fine and imprisonment, the pillory and the whip, statesmen and
ecclesiastics were not ashamed to keep such libellers as Mrs. Manley in
their pay. That the reader may fully appreciate the change which time
has wrought in the tone of political literature, let him contrast the
virulence and malignity of this unpleasant passage from the New
Atalantis, with the tone which recently characterized the public
discussion of the case which is generally known by the name of 'The
Edmunds Scandal.'
Notwithstanding her notorious disregard of truth, it is scarcely
credible that Mrs. Manley's scurrilous charge was in no way countenanced
by facts. At the close of the seventeenth century to keep a mistress was
scarcely regarded as an offence against good morals; and living in
accordance with the fashion of the time, it is probable that Somers did
that which Lord Thurlow, after an interval of a century, was able to do
without rousing public disapproval. Had his private life been spotless,
he would doubtless have taken legal steps to silence his traducer; and
unsustained by a knowledge that he dared not court inquiry into his
domestic arrangements, Mrs. Manley would have used her pen with greater
caution. But all persons competent to form an opinion on the case have
agreed that the more revolting charges of the indictment were the
baseless fictions of a malicious and unclean mind.
CHAPTER X.
BROTHERS IN TROUBLE.
In the 'Philosophical Dictionary,' Voltaire, laboring under
misapprehension or carried away by perverse humor, made the following
strange announcement:--"Il est public en Angleterre, et on voudroit le
nier en vain, que le Chancelier Cowper epousa deux femmes, qui vecurent
ensemble dans sa maison avec une concorde singuliere qui fit honneur a
tous trois. Plusieurs curieux ont encore le petit livre que ce
Chancelier composa en faveur de la Polygamie." Tickled by the
extravagant credulity or grotesque malice of this declaration, an
English wit, improving upon the published words, represented the
Frenchman as maintaining that the custodian of the Great Seal of England
was called the _Lord Keeper_, because, by English law, he was permitted
to keep as many wives as he pleased.
The reader's amusement will not be diminished by a brief statement of
the facts to which we are indebted for Voltaire's assertions.
William Cowper, the first earl of his line, began life with a reputation
for dissipated tastes and habits, and by unpleasant experience he
learned how difficult it is to get rid of a bad name. The son of a
Hertfordshire baronet, he was still a law student when he formed a
reprehensible connexion with an unmarried lady of that county--Miss (or,
as she was called by the fashion of the day Mistress) Elizabeth Culling,
of Hertingfordbury Park. But little is known of this woman. Her age is
an affair of uncertainty, and all the minor circumstances of her
intrigue with young William Cowper are open to doubt and conjecture; but
the few known facts justify the inference that she neither merited nor
found much pity in her disgrace, and that William erred through boyish
indiscretion rather than from vicious propensity. She bore him two
children, and he neither married her nor was required by public opinion
to marry her. The respectability of their connexions gave the affair a
peculiar interest, and afforded countenance to many groundless reports.
By her friends it was intimated that the boy had not triumphed over the
lady's virtue until he had made her a promise of marriage; and some
persons even went so far as to assert that they were privately married.
It is not unlikely that at one time the boy intended to make her his
wife as soon as he should be independent of his father, and free to
please himself. Beyond question, however, is it that they were never
united in wedlock, and that Will Cowper joined the Home Circuit with the
tenacious fame of a scapegrace and _roue_.
That he was for any long period a man of dissolute morals is improbable;
for he was only twenty-four years of age when he was called to the bar,
and before his call he had married (after a year's wooing) a virtuous
and exemplary young lady, with whom he lived happily for more than
twenty years. A merchant's child, whose face was her fortune--Judith,
the daughter of Sir Robert Booth, is extolled by biographers for
reclaiming her young husband from a life of levity and culpable
pleasure. That he loved her sincerely from the date of their imprudent
marriage till the date of her death, which occurred just about six
months before his elevation to the woolsack, there is abundant evidence.
Judith died April 2, 1705, and in the September of the following year
the Lord Keeper married Mary Clavering, the beautiful and virtuous lady
of the bedchamber to Caroline Wilhelmina Dorothea, Princess of Wales.
This lady was the Countess Cowper whose diary was published by Mr.
Murray in the spring of 1864; and in every relation of life she was as
good and noble a creature as her predecessor in William Cowper's
affection. Of the loving terms on which she lived with her lord,
conclusive testimony is found in their published letters and her diary.
Frequently separated by his professional avocations and her duties of
attendance upon the Princess of Wales, they maintained, during the
periods of personal severance, a close and tender intercourse by written
words; and at all other times, in sickness not less than in health, they
were a fondly united couple. One pathetic entry in the countess's diary
speaks eloquently of their nuptial tenderness and devotion:--"April 7th,
1716. After dinner we went to Sir Godfrey Kneller's to see a picture of
my lord, which he is drawing, and is the best that was ever done for
him; it is for my drawing-room, and in the same posture that he watched
me so many weeks in my great illness."
Lord Cowper's second marriage was solemnized with a secrecy for which
his biographers are unable to account. The event took place September,
1706, about two months before his father's death, but it was not
announced till the end of February, 1707, at which time Luttrell entered
in his diary, "The Lord Keeper, who not long since was privately married
to Mrs. Clavering of the bishoprick of Durham, brought her home this
day." Mr. Foss, in his 'Judges of England,' suggests that the
concealment of the union "may not improbably be explained by the Lord
Keeper's desire not to disturb the last days of his father, who might
perhaps have been disappointed that the selection had not fallen on some
other lady to whom he had wished his son to be united." But this
conjecture, notwithstanding its probability, is only a conjecture.
Unless they had grave reasons for their conduct, the Lord Keeper and his
lady had better have joined hands in the presence of the world, for the
mystery of their private wedding nettled public curiosity, and gave new
life to an old slander.
Cowper's boyish _escapade_ was not forgotten by the malicious. No sooner
had he become conspicuous in his profession and in politics, than the
story of his intercourse with Miss Culling was told in coffee-rooms with
all the exaggerations that prurient fancy could devise or enmity
dictate. The old tale of a secret marriage--or, still worse, of a mock
marriage--was caught from the lips of some Hertford scandal-monger, and
conveyed to the taverns and drawing-rooms of London. In taking Sir
Robert Booth's daughter to Church, he was said to have committed bigamy.
Even while he was in the House of Commons he was known by the name of
'Will Bigamy;' and that _sobriquet_ clung to him ever afterwards. Twenty
years of wholesome domestic intercourse with his first wife did not free
him from the abominable imputation, and his marriage with Miss Clavering
revived the calumny in a new form. Fools were found to believe that he
had married her during Judith Booth's life and that their union had been
concealed for several years instead of a few months. The affair with
Miss Culling was for a time forgotten, and the charge preferred against
the keeper of the queen's conscience was bigamy of a much more recent
date.
In various forms this ridiculous accusation enlivens the squibs of the
pamphleteers of Queen Anne's reign. In the 'New Atalantis' Mrs. Manley
certified that the fair victim was first persuaded by his lordship's
sophistries to regard polygamy as accordant with moral law. Having thus
poisoned her understanding, he gratified her with a form of marriage, in
which his brother Spencer, in clerical disguise, acted the part of a
priest. It was even suggested that the bride in this mock marriage was
the lawyer's ward. Never squeamish about the truth, when he could gain a
point by falsehood, Swift endorsed the spiteful fabrication, and in the
_Examiner_, pointing at Lord Cowper, wrote--"This gentleman, knowing
that marriage fees were a considerable perquisite to the clergy, found
out a way of improving them cent. per cent. for the benefit of the
Church. His invention was to marry a second wife while the first was
alive; convincing her of the lawfulness by such arguments as he did not
doubt would make others follow the same example. _These he had drawn up
in writing with intention to publish for the general good, and it is
hoped he may now have leisure to finish them._" It is possible that the
words in italics were the cause of Voltaire's astounding statement:
"Plusieurs curieux ont encore le petit livre que ce Chancelier composa
en faveur de la Polygamie." On this point Lord Campbell, confidently
advancing an opinion which can scarcely command unanimous assent, says,
"The fable of the '_Treatise_' is evidently taken from the panegyric on
'a plurality of wives,' which Mrs. Manley puts into the mouth of Lord
Cowper, in a speech supposed to be addressed by Hernando to Lousia." But
whether Voltaire accepted the 'New Atalantis,' or the _Examiner_, as an
authority for the statements of his very laughable passage, it is
scarcely credible that he believed himself to be penning the truth. The
most reasonable explanation of the matter appears to be, that tickled
by Swift's venomous lines, the sarcastic Frenchman in malice and gaiety
adopted them, and added to their piquancy by the assurance that the
Chancellor's book was not only published, but was preserved by
connoisseurs as a literary curiosity.
Like his elder brother, the Chancellor, Spencer Cowper married at an
early age, lived to wed a second wife, and was accused of immorality
that was foreign to his nature. The offence with which the younger
Cowper was charged, created so wide and profound a sensation, and gave
rise to such a memorable trial, that the reader will like to glance at
the facts of the case.
Born in 1669, Spencer Cowper was scarcely of age when he was called to
the bar, and made Comptroller of the Bridge House Estate. The office,
which was in the gift of the corporation of London, provided him with a
good income, together with a residence in the Bridge House, St. Olave's,
Southwark, and brought him in contact with men who were able to bring
him briefs or recommend him to attorneys. For several years the
boy-barrister was thought a singularly lucky fellow. His hospitable
house was brightened by a young and lovely wife (Pennington, the
daughter of John Goodeve), and he was so much respected in his locality
that he was made a justice of the peace. In his profession he was
equally fortunate: his voice was often heard at Westminster and on the
Home Circuit, the same circuit where his brother William practised and
his family interest lay. He found many clients.
Envy is the shadow of success; and the Cowpers were watched by men who
longed to ruin them. From the day when they armed and rode forth to
welcome the Prince of Orange, the lads had been notably fortunate.
Notwithstanding his reputation for immorality William Cowper had sprung
into lucrative practice, and in 1695 was returned to Parliament as
representative for Hartford, the other seat for the borough being filled
by his father, Sir William Cowper.
In spite of their comeliness and complaisant manners, the lightness of
their wit and the _prestige_ of their success, Hertford heard murmurs
that the young Cowpers were _too_ lucky by half, and that the Cowper
interest was dangerously powerful in the borough. It was averred that
the Cowpers were making unfair capital out of liberal professions: and
when the Hertford Whigs sent the father and son to the House of Commons,
the vanquished party cursed in a breath the Dutch usurper and his
obsequious followers.
It was resolved to damage the Cowpers:--by fair means or foul, to render
them odious in their native town.
Ere long the malcontents found a good cry.
Scarcely less odious to the Hertford Tories than the Cowpers themselves
was an influential Quaker of the town, named Stout, who actively
supported the Cowper interest. A man of wealth and good repute, this
follower of George Fox exerted himself enthusiastically in the election
contest of 1695: and in acknowledgment of his services the Cowpers
honored him with their personal friendship. Sir William Cowper asked him
to dine at Hertford Castle--the baronet's country residence; Sir
William's sons made calls on his wife and daughter. Of course these
attentions from Cowpers to 'the Shaker' were offensive to the Tory
magnates of the place: and they vented their indignation in whispers,
that the young men never entered Stout's house without kissing his
pretty daughter.
While these rumors were still young, Mr. Stout died leaving considerable
property to his widow, and to his only child--the beauteous Sarah; and
after his death the intercourse between the two families became yet more
close and cordial. The lawyers advised the two ladies about the
management of their property: and the baronet gave them invitations to
his London House in Hatton Garden, as well as to Hertford Castle. The
friendship had disastrous consequences. Both the brothers were very
fascinating men--men, moreover, who not only excelled in the art of
pleasing, but who also habitually exercised it. From custom,
inclination, policy, they were very kind to the mother and daughter;
probably paying the latter many compliments which they would never have
uttered had they been single men. Coming from an unmarried man the
speech is often significant of love, which on the lips of a husband is
but the language of courtesy. But, unfortunately, Miss ('Mistress' is
her style in the report of a famous trial) Sarah Stout fell madly in
love with Spencer Cowper notwithstanding the impossibility of marriage.
Not only did she conceive a dangerous fondness for him, but she openly
expressed it--by speech and letters. She visited him in the Temple, and
persecuted him with her embarrassing devotion whenever he came to
Hertford. It was a trying position for a young man not thirty years of
age, with a wife to whom he was devotedly attached, and a family whose
political influence in his native town might be hurt by publication of
the girl's folly. Taking his elder brother into his confidence, he asked
what course he ought to pursue. To withdraw totally and abruptly from
the two ladies, would be cruel to the daughter, insulting to the mother;
moreover, it would give rise to unpleasant suspicions and prejudicial
gossip in the borough. It was decided that Spencer must repress the
girl's advances--must see her loss frequently--and, by a reserved and
frigid manner, must compel her to assume an appearance of womanly
discretion. But the plan failed.
At the opening of the year 1699 she invited him to take up his quarters
in her mother's house, when he came to Hertford at the next Spring
Assizes. This invitation he declined, saying that he had arranged to
take his brother's customary lodgings in the house of Mr. Barefoot, in
the Market Place, but with manly consideration he promised to call upon
her. "I am glad," Sarah wrote to him on March 5, 1699, "you have not
quite forgot there is such a person as I in being: but I am willing to
shut my eyes and not see anything that looks like unkindness in you, and
rather content myself with what excuses you are pleased to make, than be
inquisitive into what I must not know: I am sure the winter has been too
unpleasant for me to desire the continuance of it: and I wish you were
to endure the sharpness of it but for one short hour, as I have done for
many long nights and days, and then I believe it would move that rocky
heart of yours that can be so thoughtless of me as you are."
On Monday, March 13, following the date of the words just quoted,
Spencer Cowper rode into Hertford, alighted at Mrs. Stout's house, and
dined with the ladies. Having left the house after dinner, in order that
he might attend to some business, he returned in the evening and supped
with the two women. Supper over, Mrs. Stout retired for the night,
leaving her daughter and the young barrister together. No sooner had the
mother left the room, than a distressing scene ensued.
Unable to control or soothe her, Spencer gently divided the clasp of her
hands, and having freed himself from her embrace, hastened from the room
and abruptly left the house. He slept at his lodgings; and the next
morning he was horror-struck on hearing that Sarah Stout's body had been
found drowned in the mill-stream behind her old home. That catastrophe
had actually occurred. Scarcely had the young barrister reached the
Market Place, when the miserable girl threw herself into the stream from
which her lifeless body was picked on the following morning. At the
coroner's inquest which ensued, Spencer Cowper gave his evidence with
extreme caution, withholding every fact that could be injurious to
Sarah's reputation; and the jury returned a verdict that the deceased
gentlewoman had killed herself whilst in a state of insanity.
In deep dejection Spencer Cowper continued the journey of the circuit.
But the excitement of the public was not allayed by the inquest and
subsequent funeral. It was rumored that it was no case of self-murder,
but a case of murder by the barrister, who had strangled his dishonored
victim, and had then thrown her into the river. Anxious to save their
sect from the stigma of suicide the Quakers concurred with the Tories in
charging the young man with a hideous complication of crimes. The case
against Spencer was laid before Chief Justice Holt, who at first
dismissed the accusation as absurd, but was afterwards induced to commit
the suspected man for trial; and in the July of 1699 the charge actually
came before a jury at the Hertford Assizes. Four prisoners--Spencer
Cowper, two attorneys, and a law-writer--were placed in the dock on the
charge of murdering Sarah Stout.
On the present occasion there is no need to recapitulate the ridiculous
evidence and absurd misconduct of the prosecution in this trial; though
criminal lawyers who wish to know what unfairness and irregularities
were permitted in such inquiries in the seventeenth century cannot do
better than to peruse the full report of the proceedings, which may be
found in every comprehensive legal library. In this place it is enough
to say that though the accusation was not sustained by a shadow of
legal testimony, the prejudice against the prisoners, both on the part
of a certain section of the Hertford residents and the presiding judge,
Mr. Baron Hatsel, was such that the verdict for acquittal was a
disappointment to many who heard it proclaimed by the foreman of the
jury. Narcissus Luttrell, indeed, says that the verdict was "to the
satisfaction of the auditors;" but in this statement the diarist was
unquestionably wrong, so far as the promoters of the prosecution were
concerned. Instead of accepting the decision without demur, they
attempted to put the prisoners again on their trial by the obsolete
process of "appeal of murder;" but this endeavor proving abortive, the
case was disposed of, and the prisoners' minds set at rest.
The barrister who was thus tried on a capital charge, and narrowly
escaped a sentence that would have consigned him to an ignominious
death, resumed his practice in the law courts, sat in the House of
Commons and rose to be a judge in the Court of Common Pleas. It is said
that he "presided on many trials for murder; ever cautious and
mercifully inclined--remembering the great peril which he himself had
undergone."
The same writer who aspersed Somers with her unchaste thoughts, and
reiterated the charge of bigamy against Lord Chancellor Cowper, did not
omit to give a false and malicious version to the incidents which had
acutely wounded the fine sensibilities of the younger Cowper. But enough
notice has been taken of the 'New Atalantis' in this chapter. To that
repulsive book we refer those readers who may wish to peruse Mrs.
Manley's account of Sarah Stout's death.
A distorted tradition of Sarah Stout's tragic end, and of Lord Cowper's
imputed bigamy, was contributed to an early number of the 'European' by
a clerical authority--the Rev. J. Hinton, Rector of Alderton, in
Northamptonshire. "Mrs. Sarah Stout," says the writer, "whose death was
charged upon Spencer Cowper, was strangled accidentally by drawing the
steenkirk too tight upon her neck, as she, with four or five young
persons, were at a game of romp upon the staircase; but it was not done
by Mr. Cowper, though one of the company. Mrs. Clavering, Lord
Chancellor Cowper's second wife, whom he married during the life of his
first, was there too; they were so confounded with the accident, that
they foolishly resolved to throw her into the water, thinking it would
pass that she had drowned herself." This charming paragraph illustrates
the vitality of scandal, and at the same time shows how ludicrously
rumor and tradition mistell stories in the face of evidence.
Spencer Cowper's second son, the Rev. John Cowper, D.D., was the father
of William Cowper, the poet.
CHAPTER XI.
EARLY MARRIAGES.
Notwithstanding his illustrious descent, Simon Harcourt raised himself
to the woolsack by his own exertions, and was in no degree indebted to
powerful relatives for his elevation. The son of a knight, whose loyalty
to the House of Stuart had impoverished his estate, he spent his
student-days at Pembroke, Oxford, and the Inner Temple, in resolute
labor, and with few indulgences. His father could make him but a slender
allowance; and when he assumed the gown of a barrister, the future
Chancellor, like Erskine in after years, was spurred to industry by the
voices of his wife and children. Whilst he was still an undergraduate of
the university, he fell in love with Rebecca Clark, daughter of a pious
man, of whose vocation the modern peerages are ashamed. Sir Philip
Harcourt (the Chancellor's father) in spite of his loyalty quarrelled
with the Established Church, and joined the Presbyterians: and Thomas
Clark was his Presbyterian chaplain, secretary, and confidential
servant. Great was Sir Philip's wrath on learning that his boy had not
only fallen in love with Rebecca Clark, but had married her privately.
It is probable that the event lowered the worthy knight's esteem for the
Presbyterian system; but as anger could not cut the nuptial bond, the
father relented--gave the young people all the assistance he could, and
hoped that they would live long without repenting their folly. The match
turned out far better than the old knight feared. Taking his humble
bride to modest chambers, young Harcourt applied sedulously to the study
of the law; and his industry was rewarded by success, and by the
gratitude of a dutiful wife. In unbroken happiness they lived together
for a succession of years, and their union was fruitful of children.
Harcourt fared better with his love-match than Sergeant Hill with his
heiress, Miss Medlycott of Cottingham, Northamptonshire. On the morning
of his wedding the eccentric sergeant, having altogether forgotten his
most important engagement for the day, received his clients in chambers
after his usual practice, and remained busy with professional cares
until a band of devoted friends forcibly carried him to the church,
where his bride had been waiting for him more than an hour. The ceremony
having been duly performed, he hastened back to his chambers, to be
present at a consultation. Notwithstanding her sincere affection for
him, the lady proved but an indifferent wife to the black-letter lawyer.
Empowered by Act of Parliament to retain her maiden-name after
marriage, she showed her disesteem for her husband's patronymic by her
mode of exercising the privilege secured to her by special law; and many
a time the sergeant indignantly insisted that she should use his name in
her signatures. "My name is Hill, madam; my father's name was Hill,
madam; all the Hills have been named Hill, madam; Hill is a good
name--and by ----, madam, you _shall_ use it." On other matters he was
more compliant--humoring her old-maidish fancies in a most docile and
conciliating manner. Curiously neat and orderly, Mrs. Medlycott took
great pride in the faultlessness of her domestic arrangements, so far as
cleanliness and precise order were concerned. To maintain the whiteness
of the pipe-clayed steps before the front door of her Bedford Square
mansion was a chief object of her existence; and to gratify her in this
particular, Sergeant Hill use daily to leave his premises by the kitchen
steps. Having outlived the lady, Hill observed to a friend who was
condoling with him on his recent bereavement, "Ay, my poor wife is gone!
She was a good sort of woman--in _her_ way a _very_ good sort of woman.
I do honestly declare my belief that in _her_ way she had no equal.
But--but--I'll tell you something in confidence. If ever I marry again,
_I won't marry merely for money_." The learned sergeant died in his
ninety-third year without having made a second marriage.
Like Harcourt, John Scott married under circumstances that called forth
many warm expressions of censure; and like Harcourt, he, in after life,
reflected on his imprudent marriage as one of the most fortunate steps
of his earlier career. The romance of the law contains few more pleasant
episodes than the story of handsome Jack Scott's elopement with Bessie
Surtees. There is no need to tell in detail how the comely Oxford
scholar danced with the banker's daughter at the Newcastle assemblies;
how his suit was at first recognised by the girl's parents, although the
Scotts were but rich 'fitters,' whereas Aubone Surtees, Esquire, was a
banker and gentleman of honorable descent; how, on the appearance of an
aged and patrician suitor for Bessie's hand, papa and mamma told Jack
Scott not to presume on their condescension, and counseled Bessie to
throw her lover over and become the lady of Sir William Blackett; how
Bessie was faithful, and Jack was urgent; how they had secret interviews
on Tyne-side and in London, meeting clandestinely on horseback and on
foot, corresponding privately by letters and confidential messengers;
how, eventually, the lovers, to the consternation of 'good society' in
Newcastle, were made husband and wife at Blackshiels, North Britain. Who
is ignorant of the story? Does not every visitor to Newcastle pause
before an old house in Sandhill, and look up at the blue pane which
marks the window from which Bessie descended into her lover's arms?
Jack and Bessie were not punished with even that brief period of
suffering and uncertainty which conscientious novelists are accustomed,
for the sake of social morals, to assign to run-away lovers before the
merciful guardian or tender parent promises forgiveness and a liberal
allowance, paid in quarterly installments. In his old age Eldon used to
maintain that their plight was very pitiable on the third morning after
their rash union. "Our funds were exhausted: we had not a home to go to,
and we knew not whether our friends would ever speak to us again." In
this strain ran the veteran's story, which, like all other anecdotes
from the same source, must be received with caution. But even the old
peer, ever ready to exaggerate his early difficulties, had not enough
effrontery to represent that their dejection lasted more than three
days. The fathers of the bride and bridegroom soon met and came to
terms, and with the beginning of the new year Bessie Scott was living in
New Inn Hall, Oxford, whilst her husband read Vinerian Lectures, and
presided over that scholastic house. The position of Scott at this time
was very singular. He was acting as substitute for Sir Robert Chambers,
the principal of New Inn Hall and Vinerian Professor of Law, who
contrived to hold his university preferments, whilst he discharged the
duties of a judge in India. To give an honest color to this indefensible
arrangement, it was provided that the lectures read from the Vinerian
Chair should actually be written by the Professor, although they were
delivered by deputy. Scott, therefore, as the Professor's mouth-piece,
on a salary of L60 a year, with free quarters in the Principal's house,
was merely required to read a series of treatises sent to him by the
absent teacher. "The law-professor," the ex-Chancellor used to relate
with true Eldonian humor and _fancy_--"sent me the first lecture, which
I had to read immediately to the students, and which I began without
knowing a single word that was in it. It was upon the statute (4 and 5
P. and M. c. 8), 'of young men running away with maidens.' Fancy me
reading, with about 140 boys and young men all giggling at the
Professor! Such a tittering audience no one ever had." If this incident
really occurred on the occasion of his 'first reading,' the laughter
must have been inextinguishable; for, of course, Jack Scott's run-away
marriage had made much gossip in Oxford Common Rooms, and the singular
loveliness of his girlish wife (described by an eye-witness as being "so
very young as to give the impression of childhood,") stirred the heart
of every undergraduate who met her in High Street.
There is no harm done by laughter at the old Chancellor's romantic
fictions about the poverty which he and his Bessie encountered, hand in
hand, at the outset of life; for the laughter blinds no one to the
genuine affection and wholesome honesty of the young husband and wife.
One has reason to wish that marriages such as theirs were more frequent
amongst lawyers in these ostentatious days. At present the young
barrister, who marries before he has a clear fifteen hundred a year, is
charged with reckless imprudence; and unless his wife is a woman of
fortune, or he is able to settle a heavy sum of money upon her, his
anxious friends terrify him with pictures of want and sorrow stored up
for him in the future. Society will not let him live after the fashion
of 'juniors' eighty or a hundred years since. He must maintain two
establishments--his chambers for business, his house in the west-end of
town for his wife. Moreover, the lady must have a brougham and liberal
pin money, or four or five domestic servants and a drawing-room well
furnished with works of art and costly decorations. They must give state
dinners and three or four routs every season; and in all other matters
their mode of life must be, or seem to be, that of the upper ten
thousand. Either they must live in this style, or be pushed aside and
forgotten. The choice for them lies between very expensive society or
none at all--that is to say, none at all amongst the rising members of
the legal profession, and the sort of people with whom young barristers,
from prudential motives, wish to form acquaintance. Doubtless many a
fair reader of this page is already smiling at the writer's simplicity,
and is saying to herself, "Here is one of the advocates of marriage on
three hundred a year."
But this writer is not going to advocate marriage on that or any other
particular sum. From personal experience he knows what comfort a married
man may have for an outlay of three or four hundred per annum; and from
personal observation he knows what privations and ignominious poverty
are endured by unmarried men who spend twice the larger of those sums
on chamber-and-club life. He knows that there are men who shiver at the
bare thought of losing caste by marriage with a portionless girl, whilst
they are complacently leading the life which, in nine cases out of ten,
terminates in the worst form of social degradation--matrimony where the
husband blushes for his wife's early history, and dares not tell his own
children the date of his marriage certificate. If it were his pleasure
he could speak sad truths about the bachelor of modest income, who is
rich enough to keep his name on the books of two fashionable clubs, to
live in a good quarter of London, and to visit annually continental
capitals, but far too poor to think of incurring the responsibilities of
marriage. It could be demonstrated that in a great majority of instances
this wary, prudent, selfish gentleman, instead of being the social
success which many simple people believe him, is a signal and most
miserable failure; that instead of pursuing a career of various
enjoyments and keen excitements, he is a martyr to _ennui_, bored by the
monotony of an objectless existence, utterly weary of the splendid
clubs, in which he is presumed by unsophisticated admirers to find an
ample compensation for want of household comfort and domestic affection:
that as soon as he has numbered forty years, he finds the roll of his
friends and cordial acquaintances diminish, and is compelled to retire
before younger men, who snatch from his grasp the prizes of social
rivalry; and that, as each succeeding lustre passes, he finds the chain
of his secret disappointments and embarrassments more galling and heavy.
It is not a question of marriage on three hundred a year without
prospects, but a marriage on five or six hundred a year with good
expectations. In the Inns of Court there are, at the present time,
scores of clever, industrious fine-hearted gentlemen who have sure
incomes of three or four hundred pounds per annum. In Tyburnia and
Kensington there is an equal number of young gentlewomen with incomes
varying between L150 and L300 a year. These men and women see each other
at balls and dinners, in the parks and at theatres; the ladies would not
dislike to be wives, the men are longing to be husbands. But that
hideous tyrant, social opinion, bids them avoid marriage.
In Lord Eldon's time the case was otherwise. Society saw nothing
singular or reprehensible in his conduct when he brought Bessie to live
in the little house in Cursitor Street. No one sneered at the young
law-student, whose home was a little den in a dingy thoroughfare. At a
later date, the rising junior, whose wife lived over his business
chambers in Carey Street, was the object of no unkind criticism because
his domestic arrangements were inexpensive, and almost frugal. Had his
success been tardy instead of quick and decisive, and had circumstances
compelled him to live under the shadow of Lincoln's Inn wall for thirty
years on a narrow income, he would not on that account have suffered
from a single disparaging criticism. Amongst his neighbors in adjacent
streets, and within the boundaries of his Inn, he would have found
society for himself and wife, and playmates for his children. Good
fortune coming in full strong flood, he was not compelled to greatly
change his plan of existence. Even in those days, when costly
ostentation characterized aristocratic society--he was permitted to live
modestly--and lay the foundation of that great property which he
transmitted to his ennobled descendants.
When satire has done its worst with the miserly propensities of the
great lawyer and his wife, their long familiar intercourse exhibits a
wealth of fine human affection and genuine poetry which sarcasm cannot
touch. Often as he had occasion to regret Lady Eldon's peculiarities--the
stinginess which made her grudge the money paid for a fish or a basket of
fruit; the nervous repugnance to society, which greatly diminished his
popularity; and the taste for solitude and silence which marked her
painfully towards the close of her life--the Chancellor never even hinted
to her his dissatisfaction. When their eldest daughter, following her
mother's example, married without the permission of her parents, it was
suggested to Lord Eldon that her ladyship ought to take better care of
her younger daughter, Lady Frances, and entering society should play the
part of a vigilant _chaperon_. The counsel was judicious; but the
Chancellor declined to act upon it, saying,--"When she was young and
beautiful, she gave up everything for me. What she is, I have made her;
and I cannot now bring myself to compel her inclinations. Our marriage
prevented her mixing in society when it afforded her pleasure; it
appears to give pain now, and why should I interpose?" In his old age,
when she was dead, he visited his estate in Durham, but could not
find heart to cross the Tyne bridge and look at the old house from
which he took her in the bloom and tenderness of her girlhood. An
urgent invitation to visit Newcastle drew from him the reply--"I
know my fellow-townsmen complain of my not coming to see them; but
_how can I pass that bridge?_" After a pause, he added, "Poor Bessie!
if ever there was an angel on earth she was one. The only reparation
which one man can make to another for running away with his daughter,
is to be exemplary in his conduct towards her."
In pecuniary affairs not less prudent than his brother, Lord Stowell in
matters of sentiment was capable of indiscretion. In the long list of
legal loves there are not many episodes more truly ridiculous than the
story of the older Scott's second marriage. On April 10, 1813, the
decorous Sir William Scott, and Louisa Catharine, widow of John,
Marquis of Sligo, and daughter of Admiral Lord Howe, were united in the
bonds of holy wedlock, to the infinite amusement of the world of
fashion, and to the speedy humiliation of the bridegroom. So incensed
was Lord Eldon at his brother's folly, that he refused to appear at the
wedding; and certainly the Chancellor's displeasure was not without
reason, for the notorious absurdity of the affair brought ridicule on
the whole of the Scott family connexion. The happy couple met for the
first time in the Old Bailey, when Sir William Scott and Lord
Ellenborough presided at the trial of the marchioness's son, the young
Marquis of Sligo, who had incurred the anger of the law by luring into
his yacht, in Mediterranean waters, two of the king's seamen. Throughout
the hearing of that _cause celebre_, the marchioness sat in the fetid
court of the Old Bailey, in the hope that her presence might rouse
amongst the jury or in the bench feelings favorable to her son. This
hope was disappointed. The verdict having been given against the young
peer, he was ordered to pay a fine of L5000, and undergo four months'
incarceration in Newgate, and--worse than fine and imprisonment--was
compelled to listen to a parental address from Sir William Scott on the
duties and responsibilities of men of high station. Either under the
influence of sincere admiration for the judge, or impelled by desire for
vengeance on the man who had presumed to lecture her son in a court of
justice, the marchioness wrote a few hasty words of thanks to Sir
William Scott for his salutary exhortation to her boy. She even went so
far as to say that she wished the erring marquis could always have so
wise a counsellor at his side. This communication was made upon a slip
of paper, which the writer sent to the judge by an usher of the court.
Sir William read the note as he sat on the bench, and having looked
towards the fair scribe, he received from her a glance and smile that
were fruitful of much misery to him. Within four months the courteous
Sir William Scott was tied fast to a beautiful, shrill, voluble
termagant, who exercised marvellous ingenuity in rendering him wretched
and contemptible. Reared in a stately school of old-world politeness,
the unhappy man was a model of decorum and urbanity. He took reasonable
pride in the perfection of his tone and manner; and the
marchioness--whose malice did not lack cleverness--was never more happy
than when she was gravely expostulating with him, in the presence of
numerous auditors, on his lamentable want of style, tact, and
gentlemanlike bearing. It is said that, like Coke and Holt under similar
circumstances, Sir William preferred the quietude of his chambers to the
society of an unruly wife, and that in the cellar of his Inn he sought
compensation for the indignities and sufferings which he endured at
home. Fifty years since the crusted port of the Middle Temple could
soothe the heart at night, without paining the head in the morning.
PART III.
MONEY.
CHAPTER XII.
FEES TO COUNSEL.
From time immemorial popular satire has been equally ready to fix the
shame of avarice upon Divinity Physic, and Law; and it cannot be denied
that in this matter the sarcasms of the multitude are often sustained by
the indisputable evidence of history. The greed of the clergy for tithes
and dues is not more widely proverbial than the doctor's thirst for
fees, or the advocate's readiness to support injustice for the sake of
gain. Of Guyllyam of Horseley, physician to Charles VI. of France,
Froissart says, "All his dayes he was one of the greatest nygardes that
ever was;" and the chronicler adds, "With this rodde lightly all
physicians are beaten." In his address to the sergeants who were called
soon after his elevation to the Marble Chair, the Lord Keeper Puckering,
directing attention to the grasping habits which too frequently
disgraced the leaders of the bar, observed: "I am to exhort you also not
to embrace multitude of causes, or to undertake more places of hearing
causes than you are well able to consider of or perform, lest thereby
you either disappoint your clients when their causes be heard, or come
unprovided, or depart when their causes be in hearing. For it is all
one not to come, as either to come unprovided, or depart before it be
ended." Notwithstanding Lingard's able defence of the Cardinal, scholars
are still generally of opinion that Beaufort--the Chancellor who lent
money on the king's crown, the bishop who sold the Pope's soldiers for a
thousand marks--is a notable instance of the union of legal covetousness
and ecclesiastical greed.
The many causes which affect the value of money in different ages create
infinite perplexity for the antiquarian who wishes to estimate the
prosperity of the bar in past times; but the few disjointed data, that
can be gathered from old records, create an impression that in the
fourteenth, fifteenth and sixteenth centuries the ordinary fees of
eminent counsel were by no means exorbitant, although fortunate
practitioners could make large incomes.
Dugdale's 'Baronage' describes with delightful quaintness William de
Beauchamp's interview with his lawyers when that noble (on the death of
John Hastings, Earl of Pembroke, _temp._ Richard II., without issue),
claimed the earl's estates under an entail, in opposition to Edward
Hastings, the earl's heir-male of the half-blood. "Beauchamp," says
Dugdale, "invited his learned counsel to his house in Paternoster Row,
in the City of London; amongst whom were Robert Charlton (then a judge),
William Pinchbek, William Branchesley, and John Catesby (all learned
lawyers); and after dinner, coming out of his chapel, in an angry mood,
threw to each of them a piece of gold, and said, 'Sirs, I desire you
forthwith to tell me whether I have any right or title to Hastings'
lordship and lands.' Whereupon Pinchbek stood up (the rest being silent,
fearing that he suspected them), and said, 'No man here nor in England
dare say that you have any right in them, except Hastings do quit his
claim therein; and should he do it, being now under age, it would be of
no validitie.'" Had Charlton, the Chief Justice of the Common Pleas,
taken gold for his opinion on a case put before him in his judicial
character, he would have violated his judicial oath. But in the earl's
house in Paternoster Row he was merely a counsellor learned in the law,
not a judge. Manifest perils attend a system which permits a judge in
his private character to give legal opinions concerning causes on which
he may be required to give judgment from the bench; but notwithstanding
those perils, there is no reason for thinking that Charlton on this
occasion either broke law or etiquette. The fair inference from the
matter is, that in the closing years of the fourteenth century judges
were permitted to give opinions for money to their private clients,
although they were forbidden to take gold or silver from any person
having "plea or process hanging before them."
In the year of our Lord 1500 the corporation of Canterbury paid for
advice regarding their civic interests 3_s._ 4_d._ to each of three
sergeants, and gave the Recorder of London 6_s._ 8_d._ as a
retaining-fee. Five years later, Mr. Serjeant Wood received a fee of
10_s._ from the Goldsmiths' Company; and it maybe fairly assumed, that
so important and wealthy a body paid the sergeant on a liberal scale. In
the sixteenth century it was, and for several generations had been,
customary for clients to provide food and drink for their counsel. Mr.
Foss gives his readers the following list of items, taken from a bill of
costs, made in the reign of Edward IV.:--
_s._ _d._
For a breakfast at Westminster spent on our counsel 1 6
To another time for boat-hire in and out, and a
breakfast for two days 1 6
In like manner the accountant of St. Margaret's, Westminster, entered in
the parish books, "Also, paid to Roger Fylpott, learned in the law, for
his counsel given, 3_s._ 8_d._, with 4_d._ for his dinner."
A yet more remarkable custom was that which enabled clients to hire
counsel to plead for them at certain places, for a given time, in
whatever causes their eloquence might be required. There still exists
the record of an agreement by which, in the reign of Henry VII.,
Sergeant Yaxley bound himself to attend the assizes at York, Nottingham
and Derby, and speak in court at each of those places, whenever his
client, Sir Robert Plumpton--"that perpetual and always unfortunate
litigant," as he is called by Sergeant Manning--required him to do so.
This interesting document runs thus--"This bill, indented at London the
18th day of July, the 16th yeare of the reigne of King Henry the 7th,
witnesseth that John Yaxley, Sergeant-at-Law, shall be at the next
assizes to be holden at York, Nottin., and Derb., if they be holden and
kept, and there to be of council with Sir Robert Plumpton, knight, such
assizes and actions as the said Sir Robert shall require the said John
Yaxley, for the which premises, as well as for his costs and his
labours, John Pulan, gentleman, bindeth him by thease presents to
content and pay to the said John Yaxley 40 marks sterling at the feast
of the Nativetie of our Lady next coming, or within eight days next
following, with 5 li paid aforehand, parcell of paiment of the said 40
marks. Provided alway that if the said John Yaxley have knowledg and
warning only to cum to Nottin. and Derby, then the said John Yaxley is
agread by these presents to take only xv li besides the 5 li aforesaid.
Provided alwaies that if the said John Yaxley have knowledg and warning
to take no labour in this matter, then he to reteine and hold the said 5
li resaived for his good will and labour. In witness hereof, the said
John Yaxley, serjeant, to the part of this indenture remaining with the
said John Pulan have put his seale the day and yeare above-written.
Provided also that the said Robert Plumpton shall beare the charges of
the said John Yaxley, as well at York as at Nottingham and Derby, and
also to content and pay the said money to the said John Yaxley comed to
the said assizes att Nott., Derb., and York. JOHN YAXLEY."
This remarkable agreement--made after Richard III. had vainly endeavored
to compose by arbitration the differences between Sir Robert and Sir
Robert's heir-general--certifies that Sir Robert Plumpton engaged to
provide the sergeant with suitable entertainment at the assize towns,
and also throws light upon the origin of retaining-fees. It appears from
the agreement that in olden time a retaining fee was merely part
(surrendered in advance) of a certain sum stipulated to be paid for
certain services. In principle it was identical with the payment of the
shilling, still given in rural districts, to domestic servants on an
agreement for service, and with the transfer of the queen's shilling
given to every soldier on enlistment. There is no need to mention the
classic origin of this ancient mode of giving force to a contract.
From the 'Household and Privy Purse Expenses of the Le Stranges of
Hunstanton,' published in the Archaeologia, may be gleamed some
interesting particulars relating to the payment of counsel in the reign
of Henry VIII. In 1520, Mr. Cristofer Jenney received from the Le
Stranges a half-yearly fee of ten shillings; and this general retainer
was continued on the same terms till 1527, when the fee was raised from
L1 per annum to a yearly payment of L2 13_s._ 4_d._ To Mr. Knightley was
paid the sum of 8_s._ 11_d._ "for his fee, and that money yt he layde
oute for suying of Simon Holden;" and the same lawyer also received at
another time 14_s._ 3_d._ "for his fee and cost of sute for iii termes."
A fee of 6_s._ 8_d._ was paid to "Mr. Spelman, s'jeant, for his counsell
in makyng my answer in ye Duchy Cham.;" and the same serjeant received
a fee of 3_s._ 4_d._ "for his counsell in putting in of the answer."
Fees of 3_s._ 4_d._ were in like manner given "for counsell" to Mr.
Knightley and Mr. Whyte; and in 1534, Mr. Yelverton was remunerated "for
his counsell" with the unusually liberal honorarium of twenty shillings.
From the household book of the Earl of Northumberland, it appears that
order was made, in this same reign, for "every oone of my lordes
counsaill to have c's. fees, if he have it in household and not by
patent." After the earl's establishment was reduced to forty-two
persons, it still retained "one of my lordes counsaill for annswering
and riddying of causes, whenne sutors cometh to my lord." At a time when
every lord was required to administer justice to his tenants and the
inferior people of his territory, a counsellor learned in the law, was
an important and most necessary officer in a grand seigneur's retinue.
Whilst Sir Thomas More lived in Bucklersbury, he "gained, without grief,
not so little as L400 by the year." This income doubtless accrued from
the emoluments of his judicial appointment in the City, as well as from
his practice at Westminster and elsewhere. In Henry VIII.'s time it was
a very considerable income, such as was equalled by few leaders of the
bar not holding high office under the Crown.
In Elizabeth's reign, and during the time of her successor, barristers'
fees show a tendency toward increase; and the lawyers who were employed
as advocates for the Crown, or held judicial appointments, acquired
princely incomes, and in some cases amassed large fortunes. Fees of
20_s._ were more generally paid to counsel under the virgin queen, than
in the days of her father; but still half that fee was not thought too
small a sum for an opinion given by Her Majesty's Solicitor General.
Indeed, the ten-shilling fee was a very usual fee in Elizabeth's reign;
and it long continued an ordinary payment for one opinion on a case, or
for one speech in a cause of no great importance and of few
difficulties. 'A barrister is like Balaam's ass, only speaking when he
sees the angel,' was a familiar saying in the seventeenth century. In
Chancery, however, by an ordinance of the Lords Commissioners passed in
1654, to regulate the conduct of suits and the payments to masters,
counsel, and solicitors, it was arranged that on the hearing of a cause,
utter-barristers should receive L1 fees, whilst the Lord Protector's
counsel and sergeants-at-law should receive L2 fees, _i.e._, 'double
fees.'
The archives of Lyme Regis show that under Elizabeth the usage was
maintained of supplying counsel with delicacies of the table, and also
of providing them with means of locomotion. Here are some items in an
old record of disbursements made by the corporation of Lyme
Regis:--"A.D. Paid for Wine carried with us to Mr. Poulett--L0 3_s._
6_d._; Wine and sugar given to Mr. Poulett, L0 3_s._ 4_d._; Horse-hire,
and for the Sergeant to ride to Mr. Walrond, of Bovey, and for a loaf of
sugar, and for conserves given there to Mr. Poppel, L1 1_s._ 0_d._; Wine
and sugar given to Judge Anderson, L0 3_s._ 4_d._ A bottle and sugar
given to Mr. Gibbs (a lawyer)."
Under Elizabeth, the allowance made to Queen's Sergeants was L26 6_s._
8_d._ for fee, reward, and robes; and L20. for his services whenever a
Queen's Sergeant travelled circuit as Justice of Assize. The fee for her
Solicitor General was L50. When Francis Bacon was created King's Counsel
to James I., an annual salary of forty pounds was assigned to him from
the royal purse; and down to William IV.'s time, King's Counsel received
a stipend of L40 a year, and an allowance for stationery. Under the last
mentioned monarch, however, the stipend and allowance were both
withdrawn; and at present the status of a Q.C. is purely an affair of
professional precedence, to which no fixed emolument is attached.
But a list of the fees, paid from the royal purse to each judge or crown
lawyer under James I., would afford no indication as to the incomes
enjoyed by the leading members of the bench and bar at that period. The
salaries paid to those officers were merely retaining fees, and their
chief remuneration consisted of a large number of smaller fees. Like the
judges of prior reigns, King James's judges were forbidden to accept
_presents_ from actual suitors; but no suitor could obtain a hearing
from any one of them, until he had paid into court certain fees, of
which the fattest was a sum of money for the judge's personal use. At
one time many persons labored under an erroneous impression, that as
judges were forbidden to accept presents from actual suitors, the honest
judge of past times had no revenue besides his specified salary and
allowance. Like the king's judges, the king's counsellors frequently
made great incomes by fees, though their nominal salaries were
invariably insignificant. At a time when Francis Bacon was James's
Attorney General, and received no more than L81 6_s._ 8_d._ for his
yearly salary, he made L6000 per annum in his profession; and of that
income--a royal income in those days--the greater portion consisted of
fees paid to him for attending to the king's business. "I shall now,"
Bacon wrote to the king, "again make oblation to your Majesty,--first of
my heart, then of my service; thirdly, of my place of Attorney, which I
think is honestly worth L6000 per annum; and fourthly, of my place in
the Star Chamber, which is worth L1600 per annum, and with the favor and
countenance of a Chancellor, much more." Coke had made a still larger
income during his tenure of the Attorney's place, the fees from his
private official practice amounting to no loss a sum than seven
thousand pounds in a single year.
At later periods of the seventeenth century barristers made large
incomes, but the fees seem to have been by no means exorbitant. Junior
barristers received very modest payments, and it would appear that
juniors received fees from eminent counsel for opinions and other
professional services. Whilst he acted as treasurer of the Middle
Temple, at an early period of his career, Whitelock received a fee from
Attorney General Noy. "Upon my carrying the bill," writes Whitelock, "to
Mr. Attorney General Noy for his signature, with that of the other
benchers, he was pleased to advise with me about a patent the king had
commanded him to draw, upon which he gave me a fee for it out of his
little purse, saying, 'Here, take those single pence,' which amounted to
eleven groats, 'and I give you more than an attorney's fee, because you
will be a better man than the Attorney General. This you will find to be
true.' After much other drollery, wherein he delighted and excelled, we
parted, abundance of company attending to speak to him all this time."
Of course the payment itself was no part of the drollery to which
Whitelock alludes, for as a gentleman he could not have taken money
proffered to him in jest, unless etiquette encouraged him to look for
it, and allowed him to accept it. The incident justifies the inference
that the services of junior counsel to senior barristers--services at
the present time termed 'devilling'--were formerly remunerated with cash
payments.
Toward the close of Charles I.'s reign--at a time when political
distractions were injuriously affecting the legal profession, especially
the staunch royalists of the long robe--Maynard, the Parliamentary
lawyer, received on one round of the Western Circuit, L700, "which,"
observes Whitelock, to whom Maynard communicated the fact, "I believe
was more than any one of our profession got before."
Concerning the incomes made by eminent counsel in Charles II.'s time,
many _data_ are preserved in diaries and memoirs. That a thousand a year
was looked upon as a good income for a flourishing practitioner of the
'merry monarch's' Chancery bar, may be gathered from a passage in
'Pepys's Diary,' where the writer records the compliments paid to him
regarding his courageous and eloquent defence of the Admiralty, before
the House of Commons, in March, 1668. Under the influence of half-a-pint
of mulled sack and a dram of brandy, the Admiralty clerk made such a
spirited and successful speech in behalf of his department, that he was
thought to have effectually silenced all grumblers against the
management of his Majesty's navy. Compliments flowed in upon the orator
from all directions. Sir William Coventry pledged his judgment that the
fame of the oration would last for ever in the Commons; silver-tongued
Sir Heneage Finch, in the blandest tones, averred that no other living
man could have made so excellent a speech; the placemen of the Admiralty
vied with each other in expressions of delight and admiration; and one
flatterer, whose name is not recorded, caused Mr. Pepys infinite
pleasure by saying that the speaker who had routed the accusers of a
government office, might easily earn a thousand a year at the Chancery
bar.
That sum, however, is insignificant when it is compared with the incomes
made by the most fortunate advocates of that period. Eminent speakers of
the Common Law Bar made between L2000 and L3500 per annum on circuit and
at Westminster, without the aid of king's business; and still larger
receipts were recorded in the fee-books of his Majesty's attorneys and
solicitors. At the Chancery bar of the second Charles, there was at
least one lawyer, who in one year made considerably more than four times
the income that was suggested to Pepys's vanity and self-complacence. At
Stanford Court, Worcestershire, is preserved a fee-book kept by Sir
Francis Winnington, Solicitor-General to the 'merry monarch,' from
December 1674 to January 13, 1679, from the entries of which record the
reader may form a tolerably correct estimate of the professional
revenues of successful lawyers at that time. In Easter Term, 1671, Sir
Francis pocketed L459; in Trinity Term L449 10s.; in Michaelmas Term
L521; and in Hilary Term 1672, L361 10s.; the income for the year being
L1791, without his earnings on the Oxford Circuit and during vacation.
In 1673, Sir Francis received L3371; in 1674, he earned L3560;[8] and in
1675--_i.e._, the first year of his tenure of the Solicitor's
office--his professional income wars L4066, of which sum L429 were
office fees. Concerning the Attorney-General's receipts about this time,
we have sufficient information from Roger North, who records that his
brother, whilst Attorney General, made nearly seven thousand pounds in
one year, from private and official business. It is noteworthy that
North, as Attorney General, made the same income which Coke realized in
the same office at the commencement of the century. But under the
Stuarts this large income of L7000--in those days a princely
revenue--was earned by work so perilous and fruitful of obloquy, that
even Sir Francis, who loved money and cared little for public esteem,
was glad to resign the post of Attorney and retire to the Pleas with
L4000 a year. That the fees of the Chancery lawyers under Charles II.
were regulated upon a liberal scale we know from Roger North, and the
record of Sir John King's success. Speaking of his brother Francis, the
biographer says: "After he, as king's counsel, came within the bar, he
began to have calls into the Court of Chancery; which he liked very
well, because the quantity of the business, _as well as the fees_, was
greater; but his home was the King's Bench, where he sat and reported
like as other practitioners." And in Sir John King's memoirs it is
recorded that in 1676 he made L4700, and that he received from L40 to
L50 a day during the last four days of his appearance in court. Dying in
1677,[9] whilst his supremacy in his own court was at its height, Sir
John King was long spoken of as a singularly successful Chancery
barrister.
Of Francis North's mode of taking and storing his fees, the 'Life of
Lord Keeper Guildford' gives the following picture: "His business
increased, even while he was Solicitor, to be so much as to have
overwhelmed one less dexterous; but when he was made Attorney General,
though his gains by his office were great, they were much greater by his
practice; for that flowed in upon him like an orage, enough to overset
one that had not an extraordinary readiness in business. His skull-caps,
which he wore when he had leisure to observe his constitution, as I
touched before, were now destined to lie in a drawer to receive the
money that came in by fees. One had the gold, another the crowns and
half-crowns, and another the smaller money. When these vessels were
full, they were committed to his friend (the Hon. Roger North), who was
constantly near him, to tell out the cash, and put it into the bags
according to the contents; and so they went to his treasurers, Blanchard
and Child, goldsmiths, Temple Bar."[10] In the days of wigs, skull-caps
like those which Francis North used as receptacles for money, were very
generally worn by men of all classes and employments. On returning to
the privacy of his home, a careful citizen usually laid aside his costly
wig, and replaced it with a cheap and durable skull-cap, before he sat
down in his parlor. So also, men careful of their health often wore
skull-caps _under_ their wigs, on occasions when they were required to
endure a raw atmosphere without the protection of their beavers. In days
when the law-courts were held in the open hall of Westminster, and
lawyers practising therein, were compelled to sit or speak for hours
together, exposed to sharp currents of cold air, it was customary for
wearers of the long robe to place between their wigs and natural hair
closely-fitting caps, made of stout silk or soft leather. But more
interesting than the money-caps, are the fees which they contained. The
ringing of the gold pieces, the clink of the crowns with the
half-crowns, and the rattle of the smaller money, led back the barrister
to those happier and remote times, when the 'inferior order' of the
profession paid the superior order with 'money down;' when, the advocate
never opened his mouth till his fingers had closed upon the gold of his
trustful client; when 'credit' was unknown in transactions between
counsel and attorney;--that truly _golden_ age of the bar, when the
barrister was less suspicious of the attorney, and the attorney held
less power over the barrister.
Having profited by the liberal payments of Chancery whilst he was an
advocate, Lord Keeper Guildford destroyed one source of profit to
counsel from which Francis North, the barrister, had drawn many a capful
of money. Saith Roger, "He began to rescind all motions for speeding and
delaying the hearing of causes besides the ordinary rule of court; and
this lopped off a limb of the motion practice. I have heard Sir John
Churchill, a famous Chancery practitioner, say, that in his walk from
Lincoln's Inn down to the Temple Hall, where, in the Lord Keeper
Bridgman's time, causes and motions out of term were heard, he had taken
L28. with breviates only for motions and defences for hastening and
retarding hearings. His lordship said, that the rule of the court
allowed time enough for any one to proceed or defend; and if, for
special reasons, he should give way to orders for timing matters, it
would let in a deluge of vexatious pretenses, which, true or false,
being asserted by the counsel with equal assurance, distracted the
court and confounded the suitors."
Let due honor be rendered to one Caroline, lawyer, who was remarkable
for his liberality to clients, and carelessness of his own pecuniary
interests. From his various biographers, many pleasant stories may be
gleaned concerning Hale's freedom from base love of money. In his days,
and long afterward, professional etiquette permitted clients and counsel
to hold intercourse without the intervention of an attorney. Suitors,
therefore, frequently addressed him personally and paid for his advice
with their own hands, just as patients are still accustomed to fee their
doctors. To these personal applicants, and also to clients who
approached him by their agents, he was very liberal. "When those who
came to ask his counsel gave him a piece, he used to give back the half,
and to make ten shillings his fee in ordinary matters that did not
require much time or study." From this it may be inferred that whilst
Hale was an eminent member of the bar, twenty shillings was the usual
fee to a leading counsel, and an angel the customary honorarium to an
ordinary practitioner. As readers have already been told, the angel[11]
was a common fee in the seventeenth century; but the story of Hale's
generous usage implies that his more distinguished contemporaries were
wont to look for and accept a double fee. Moreover, the anecdote would
not be told in Hale's honor, if etiquette had fixed the double fee as
the minimum of remuneration for a superior barrister's opinion. He was
frequently employed in arbitration cases, and as an arbitrator he
steadily refused payment for his services to legal disputants, saying,
in explanation of his moderation, "In these cases I am made a judge, and
a judge ought to take no money." The misapprehension as to the nature of
an arbitrator's functions, displayed in these words, gives an
instructive insight into the mental constitution of the judge who wrote
on natural science, and at the same time exerted himself to secure the
conviction of witches. A more pleasant and commendable illustration of
his conscientiousness in pecuniary matters, is found in the steadiness
with which he refused to throw upon society the spurious coin which he
had taken from his clients. In a tone of surprise that raises a smile at
the average morality of our forefathers, Bishop Burnet tells of Hale:
"Another remarkable instance of his justice and goodness was, that when
he found ill money had been put into his hands, he would never suffer it
to be vented again; for he thought it was no excuse for him to put false
money in other people's hands, because some had put it into his. A great
heap of this he had gathered together, for many had so abused his
goodness as to mix base money among the fees that were given him." In
this particular case, the judge's virtue was its own reward. His house
being entered by burglars, this accumulation of bad money attracted the
notice of the robbers, who selected it from a variety of goods and
chattels, and carried it off under the impression that it was the
lawyer's hoarded treasure. Besides large sums expended on unusual acts
of charity, this good man habitually distributed amongst the poor a
tithe of his professional earnings.
In the seventeenth century, General Retainers were very common, and the
counsel learned in the law, were ready to accept them from persons of
low extraction and questionable repute. Indeed, no upstart deemed
himself properly equipped for a campaign at court, until he had recorded
a fictitious pedigree at the Herald's College, taken a barrister as well
as a doctor into regular employment, and hired a curate to say grace
daily at his table. In the summer of his vile triumph, Titus Oates was
attended, on public occasions, by a robed counsel and a physician.
[8] In his 'Survey of the State of England in 1685,' Macauley--giving
one of those misleading references with which his history abounds--says:
"A thousand a year was thought a large income for a barrister. Two
thousand a year was hardly to be made in the Court of King's Bench,
except by crown lawyers." Whilst making the first statement, he
doubtless remembered the passage in 'Pepys's Diary.' For the second
statement, he refers to 'Layton's Conversation with Chief Justice Hale.'
It is fair to assume that Lord Macauley had never seen Sir Francis
Winnington's fee-book.
[9] In the fourth day of his fever, he being att the Chancery Bar, he
fell so ill of the fever, that he was forced to leave the Court and come
to his chambers in the Temple, with one of his clerks, which constantly
wayted on him and carried his bags of writings for his pleadings, and
there told him that he should return to every clyent his breviat and his
fee, for he could serve them no longer, for he had done with this world,
and thence came home to his house in Salisbury Court, and took his
bed.... And there he sequestered himself to meditation between God and
his own soul, without the least regret, and quietly and patiently
contented himself with the will of God.--_Vide Memoir of Sir John King,
Knt., written by his Father._
[10] The lawyers of the seventeenth century were accustomed to make a
show of their fees to the clients who called upon them. Hudibras's
lawyer (Hud., Part iii. cant. 3) is described as sitting in state with
his books and money before him:
"To this brave man the knight repairs For counsel in his law affairs,
And found him mounted in his pew, With books and money placed for shew,
Like nest-eggs, to make clients lay, And for his false, opinion pay: To
whom the knight, with comely grace, Put off his hat to put his case,
Which he as proudly entertain'd As the other courteously strain'd; And
to assure him 'twas not that He looked for, bid him put on's hat."
Under Victoria, the needy junior is compelled, for the sake of
appearances, to furnish his shelves with law books, and cover his table
with counterfeit briefs. Under the Stuarts, he placed a bowl of spurious
money amongst the sham papers that lay upon his table.
[11] In the 'Serviens ad Legem,' Mr. Sergeant Manning raises question
concerning the antiquity of _guineas_ and half-guineas, with the
following remarks:--"Should any cavil be raised against this jocular
allusion, on the ground that guineas and half-guineas were unknown to
sergeants who flourished in the sixteenth century, the objector might be
reminded, that in antique records, instances occur in which the
'guianois d'or,' issued from the ducal mint at Bordeaux, by the
authority of the Plantagenet sovereigns of Guienne, were by the same
authority, made current among their English subjects; and it might be
suggested that those who have gone to the coast of Africa for the origin
of the modern guinea, need not have carried their researches beyond the
Bay of Biscay. _Quaere_, whether the Guinea Coast itself may not owe its
name to the 'guianois d'or' for which it furnished the raw material."
CHAPTER XIII.
RETAINERS GENERAL AND SPECIAL.
Pemberton's fees for his services in behalf of the Seven Bishops show
that the most eminent counsel of his time were content with very modest
remuneration for advice and eloquence. From the bill of an attorney
employed in that famous trial, it appears that the ex-Chief Justice was
paid a retaining-fee of five guineas, and received twenty guineas with
his brief. He also pocketed three guineas for a consultation. At the
present date, thirty times the sum of these paltry payments would be
thought an inadequate compensation for such zeal, judgment, and ability
as Francis Pemberton displayed in the defence of his reverend clients.
But, though lawyers were paid thus moderately in the seventeenth
century, the complaints concerning their avarice and extortions were
loud and universal. This public discontent was due to the inordinate
exactions of judges and place-holders rather than to the conduct of
barristers and attorneys; but popular displeasure seldom cares to
discriminate between the blameless and the culpable members of an
obnoxious system, or to distinguish between the errors of ancient custom
and the qualities of those persons who are required to carry out old
rules. Hence the really honest and useful practitioners of the law
endured a full share of the obloquy caused by the misconduct of venal
justices and corrupt officials. Counsel, attorneys, and even scriveners
came in for abuse. It was averred that they conspired to pick the public
pocket; that eminent conveyancers not less than copying clerks, swelled
their emoluments by knavish tricks. They would talk for the mere purpose
of protracting litigation, injure their clients by vexations and
bootless delays, and do their work so that they might be fed for doing
it again. Draughtsmen find their clerks wrote loosely and wordily,
because they were paid by the folio. "A term," writes the quaint author
of 'Saint Hillaries Teares,' in 1642, "so like a vacation; the prime
court, the Chancery (wherein the clerks had wont to dash their clients
out of countenance with long dashes); the examiners to take the
depositions in hyperboles, and roundabout _Robinhood_ circumstances with
_saids_ and _aforesaids_, to enlarge the number of sheets." 'Hudibras'
contains, amongst other pungent satires against the usages of lawyers,
an allusion to this characteristic custom of legal draughtsmen, who
being paid by the sheet, were wont
"To make 'twixt words and lines large gaps,
Wide as meridians in maps;
To squander paper and spare ink,
Or cheat men of their words some think."
In the following century the abuses consequent on the objectionable
system of folio-payment were noticed in a parliamentary report (bearing
date November 8, 1740), which was the most important result of an
ineffectual attempt to reform the superior courts of law and to lessen
the expenses of litigation.
More is known about the professional receipts of lawyers since the
Revolution of 1688 than can be discovered concerning the incomes of
their precursors in Westminster Hall. For six years, commencing with
Michaelmas Term, 1719, Sir John Cheshire, King's Sergeant, made an
average annual income of 3241_l._ Being then sixty-three years of age,
he limited his practice to the Common Pleas, and during the next six
years made in that one court 1320_l._ per annum. Mr. Foss, to whom the
present writer is indebted for these particulars with regard to Sir John
Cheshire's receipts, adds: "The fees of counsel's clerks form a great
contrast with those that are now demanded, being only threepence on a
fee of half-a-guinea, sixpence for a guinea, and one shilling for two
guineas." Of course the increase of clerk's fees tells more in favor of
the master than the servant. At the present time the clerk of a
barrister in fairly lucrative practice costs his master nothing.
Bountifully paid by his employer's clients, he receives no salary from
the counsellor whom he serves; whereas, in old times, when his fees were
fixed at the low rate just mentioned, the clerk could not live and
maintain a family upon them, unless his master belonged to the most
successful grade of his order.
Horace Walpole tells his readers that Charles Yorke "was reported to
have received 100,000 guineas in fees;" but his fee-book shows that his
professional rise was by no means so rapid as those who knew him in his
sunniest days generally supposed. The story of his growing fortunes is
indicated in the following statement of successive incomes:--1st year of
practice at the bar, 121_l._ 2nd, 201_l._; 3rd and 4th, between 300_l._
and 400_l._ per annum; 5th, 700_l._; 6th, 800_l._; 7th, 1000_l._; 9th,
1600_l._; 10th, 2500_l._ Whilst Solicitor General he made 3400_l._ in
1757; and in the following year he earned 5000_l._ His receipts during
the last year of his tenure of the Attorney Generalship amounted to
7322_l._ The reader should observe that as Attorney General he made but
little more than Coke had realized in the same office,--a fact serving
to show how much better paid were Crown lawyers in times when they held
office like judges during the Sovereign's pleasure, than in these latter
days when they retire from place together with their political parties.
The difference between the incomes of Scotch advocates and English
barristers was far greater in the eighteenth century than at the present
time, although in our own day the receipts of several second-rate
lawyers of the Temple and Lincoln's Inn far surpass the revenues of the
most successful advocates of the Edinburgh faculty. A hundred and thirty
years since a Scotch barrister who earned 500_l._ per annum by his
profession was esteemed notably successful.
Just as Charles Yorke's fee-book shows us the pecuniary position of an
eminent English barrister in the middle of the last century, John
Scott's list of receipts displays the prosperity of a very fortunate
Crown lawyer in the next generation. Without imputing motives the
present writer, may venture to say that Lord Eldon's assertions with
regard to his earnings at the bar, and his judicial incomes, were not in
strict accordance with the evidence of his private accounts. He used to
say that his first year's earnings in his profession amounted to
half-a-guinea, but there is conclusive proof that he had a considerable
quantity of lucrative business in the same year. "When I was called to
the bar," it was his humor to say, "Bessie and I thought all our
troubles were over, business was to pour in, and we were to be rich
almost immediately. So I made a bargain with her that during the
following year all the money I should receive in the first eleven
months should be mine, and whatever I should get in the twelfth month
should be hers. That was our agreement, and how do you think it turned
out? In the twelfth month I received half-a-guinea--eighteenpence went
for charity, and Bessy got nine shillings. In the other eleven months I
got one shilling." John Scott, be it remembered, was called to the bar
on February 9, 1776, and on October 2, of the same year, William Scott
wrote to his brother Henry--"My brother Jack seems highly pleased with
his circuit business. I hope it is only the beginning of future
triumphs. All appearances speak strongly in his favor." There is no need
to call evidence to show that Eldon's success was more than respectable
from the outset of his career, and that he had not been called many
years before he was in the foremost rank of his profession. His fee-book
gives the following account of his receipts in thirteen successive
years:--1786, 6833_l._ 7_s._; 1787, 7600_l._ 7_s._; 1788, 8419_l._
14_s._; 1789, 9559_l._ 10_s._; 1790, 9684_l._ 15_s._; 1791, 10,213_l._
13_s._ 6_d._; 1792, 9080_l._ 9_s._; 1793, 10,330_l._ 1_s._ 4_d._; 1794,
11,592_l._; 1795, 11,149_l._ 15_s._ 4_d._; 1796, 12,140_l._ 15_s._
8_d._; 1797, 10,861_l._ 5_s._ 8_d_; 1798, 10,557_l._ 17_s._ During the
last six of the above-mentioned years he was Attorney General, and
during the preceding four years Solicitor General.
Although General Retainers are much less general than formerly, they are
by no means obsolete. Noblemen could be mentioned who at the present
time engage counsel with periodical payments, special fees of course
being also paid for each professional service. But the custom is dying
out, and it is probable that after the lapse of another hundred years it
will not survive save amongst the usages of ancient corporations. Notice
has already been taken of Murray's conduct when he returned nine hundred
and ninety-five out of a thousand guineas to the Duchess of
Marlborough, informing her that the professional fee with the general
retainer was neither more nor less than five guineas. The annual salary
of a Queen's Counsel in past times was in fact a fee with a general
retainer; but this periodic payment is no longer made to wearers of
silk.
In his learned work on 'The Judges of England,' Mr. Foss observes: "The
custom of retaining counsel in fee lingered in form, at least in one
ducal establishment. By a formal deed-poll between the proud Duke of
Somerset and Sir Thomas Parker, dated July 19, 1707, the duke retains
him as his 'standing counsell in ffee,' and gives and allows him 'the
yearly ffee of four markes, to be paid by my solicitor' at Michaelmas,
'to continue during my will and pleasure.'" Doubtless Mr. Foss is aware
that this custom still 'lingers in form;' but the tone of his words
justifies the opinion that he underrates the frequency with which
general retainers are still given. The 'standing counsel' of civic and
commercial companies are counsel with general retainers, and usually
their general retainers have fees attached to them.
The payments of English barristers have varied much more than the
remunerations of English physicians. Whereas medical practitioners in
every age have received a certain definite sum for each consultation,
and have been forbidden by etiquette to charge more or less than the
fixed rate, lawyers have been allowed much freedom in estimating the
worth of their labor. This difference between the usages of the two
professions is mainly due to the fact, that the amount of time and
mental effort demanded by patients at each visit or consultation is very
nearly the same in all cases, whereas the requirements of clients are
much more various. To get up the facts of a law-case may be the work of
minutes, or hours, or days, or even weeks; to observe the symptoms of a
patient, and to write a prescription, can be always accomplished within
the limits of a short morning call. In all times, however, the legal
profession has adopted certain scales of payment--that fixed the
_minimum_ of remuneration, but left the advocate free to get more, as
circumstances might encourage him to raise his demands. Of the many good
stories told of artifices by which barristers have delicately intimated
their desire for higher payment, none is better than an anecdote
recorded of Sergeant Hill. A troublesome case being laid before this
most erudite of George III.'s sergeants, he returned it with a brief
note, that he "saw more difficulty in the case than, _under all the
circumstances_, he could well solve." As the fee marked upon the case
was only a guinea, the attorney readily inferred that its smallness was
one of the circumstances which occasioned the counsel's difficulty. The
case, therefore, was returned, with a fee of two guineas. Still
dissatisfied, Sergeant Hill wrote that "he saw no reason to change his
opinion."
By the etiquette of the bar no barrister is permitted to take a brief on
any circuit, save that on which he habitually practises, unless he has
received a special retainer; and no wearer of silk can be specially
retained with a less fee than three hundred guineas. Erskine's first
special retainer was in the Dean of St. Asaph's case, his first speech
in which memorable cause was delivered when he had been called to the
bar but little more than five years. From that time till his elevation
to the bench he received on an average twelve special retainers a year,
by which at the minimum of payment he made L3600 per annum. Besides
being lucrative and honorable, this special employment greatly augmented
his practice in Westminster Hall, as it brought him in personal contact
with attorneys in every part of the country, and heightened his
popularity amongst all classes of his fellow-countrymen. In 1786 he
entirely withdrew from ordinary circuit practice, and confined his
exertions in provincial courts to the causes for which he was specially
retained. No advocate since his time has received an equal number of
special retainers; and if he did not originate the custom of special
retainers,[12] he was the first English barrister who ventured to reject
all other briefs.
There is no need to recapitulate all the circumstances of Erskine's
rapid rise in his profession--a rise due to his effective brilliance and
fervor in political trial: but this chapter on lawyers' fees would be
culpably incomplete, if it failed to notice some of its pecuniary
consequences. In the eighth month after his call to the bar he thanked
Admiral Keppel for a splendid fee of one thousand pounds. A few years
later a legal gossip wrote: "Everybody says that Erskine will be
Solicitor General, and if he is, and indeed whether he is or not, he
will have had the most rapid rise that has been known at the bar. It is
four years and a half since he was called, and in that time he has
cleared L8000 or L9000, besides paying his debts--got a silk gown, and
business of at least L3000 a year--a seat in Parliament--and, over and
above, has made his brother Lord Advocate."
Merely to mention large fees without specifying the work by which they
were earned would mislead the reader. During the railway mania of 1845,
the few leaders of the parliamentary bar received prodigious fees; and
in some cases the sums were paid for very little exertion. Frequently it
happened that a lawyer took heavy fees in causes, at no stage of which
he either made a speech or read a paper in the service of his too
liberal employers. During that period of mad speculation the
committee-rooms of the two Houses were an El Dorado to certain favored
lawyers, who were alternately paid for speech and _silence_ with
reckless profusion. But the time was so exceptional, that the fees
received and the fortunes made in it by a score of lucky advocates and
solicitors cannot be fairly cited as facts illustrating the social
condition of legal practitioners. As a general rule, it may be stated
that large fortunes are not made at the bar by large fees. Our richest
lawyers have made the bulk of their wealth by accumulating sufficient
but not exorbitant payments. In most cases the large fee has not been a
very liberal remuneration for the work done. Edward Law's retainer for
the defence of Warren Hastings brought with it L500--a sum which caused
our grandfathers to raise their hands in astonishment at the nabob's
munificence; but the sum was in reality the reverse of liberal. In all,
Warren Hastings paid his leading advocate considerably less than four
thousand pounds; and if Law had not contrived to win the respect of
solicitors by his management of the defence, the case could not be said
to have paid him for his trouble. So also the eminent advocate, who in
the great case of Small _v._ Attwood received a fee of L6000, was
actually underpaid. When he made up the account of the special outlay
necessitated by that cause, and the value of business which the
burdensome case compelled him to decline, he had small reason to
congratulate himself on his remuneration.
A statement of the incomes made by chamber-barristers, and of the sums
realized by counsel in departments of the profession that do not invite
the attention of the general public, would astonish those uninformed
persons who estimate the success of a barrister by the frequency with
which his name appears in the newspaper reports of trials and suits. The
talkers of the bar enjoy more _eclat_ than the barristers who confine
themselves to chamber practice, and their labors lead to the honors of
the bench; but a young lawyer, bent only on the acquisition of wealth,
is more likely to achieve his ambition by conveyancing or
arbitration-business than by court-work. Kenyon was never a popular or
successful advocate, but he made L3000 a year by answering cases.
Charles Abbott at no time of his life could speak better than a
vestryman of average ability; but by drawing informations and
indictments, by writing opinions on cases, he made the greater part of
the eight thousand pounds which he returned as the amount of his
professional receipts in 1807. In our own time, when that popular common
law advocate, Mr. Edwin James, was omnipotent with juries, his income
never equalled the incomes of certain chamber-practitioners whose names
are utterly unknown to the general body of English society.
[12] Lord Campbell observes: "Some say that special retainers began with
Erskine; but I doubt the fact." It is strange that there should be
uncertainty as to the time when special retainers--unquestionably a
comparatively recent innovation in legal practice--came into vogue.
CHAPTER XIV.
JUDICIAL CORRUPTION.
To a young student making his first researches beneath the surface of
English history, few facts are more painful and perplexing than the
judicial corruption which prevailed in every period of our country's
growth until quiet recent times--darkening the brightest pages of our
annals, and disfiguring some of the greatest chieftains of our race.
Where he narrates the fall and punishment of De Weyland towards the
close of the thirteenth century, Speed observes: "While the Jews by
their cruel usuries had in one way eaten up the people, the justiciars,
like another kind of Jews, had ruined them with delay in their suits,
and enriched themselves with wicked convictions." Of judicial corruption
in the reigns of Edward I. and Edward II. a vivid picture is given in a
political ballad, composed in the time of one or the other of those
monarchs. Of this poem Mr. Wright, in his 'Political Songs,' gives a
free version, a part of which runs thus:--
"Judges there are whom gifts and favorites control,
Content to serve the devil alone and take from him a toll;
If nature's law forbids the judge from selling his decree,
How dread to those who finger bribes the punishment shall be.
"Such judges have accomplices whom frequently they send
To get at those who claim some land, and whisper as a friend,
''Tis I can help you with the judge, if you would wish to plead,
Give me but half, I'll undertake before him you'll succeed.'
"The clerks who sit beneath the judge are open-mouthed as he,
As if they were half-famished and gaping for a fee;
Of those who give no money they soon pronounce the state,
However early they attend, they shall have long to wait.
"If comes some noble lady, in beauty and in pride,
With golden horns upon her head, her suit he'll soon decide;
But she who has no charms, nor friends, and is for gifts too poor,
Her business all neglected, she's weeping shown the door.
"But worse than all, within the court we some relators meet,
Who take from either side at once, and both their clients cheat;
The ushers, too, to poor men say, 'You labor here in vain,
Unless you tip us all around, you may go back again.'
"The sheriff's hard upon the poor who cannot pay for rest,
Drags them about to every town, on all assizes press'd
Compell'd to take the oath prescrib'd without objection made,
For if they murmur and can't pay, upon their backs they're laid.
"They enter any private house, or abbey that they choose,
Where meat and drink and all things else are given as their dues;
And after dinner jewels too, or this were all in vain,
Bedels and garcons must receive, and all that form the train.
"And next must gallant robes be sent as presents to their wives,
Or from the manor of the host some one his cattle drives;
While he, poor man, is sent to gaol upon some false pretence,
And pays at last at double cost, ere he gets free from thence.
"I can't but laugh to see their clerks, whom once I knew in need,
When to obtain a bailiwick they may at last succeed;
With pride in gait and countenance and with their necks erect
They lands and houses quickly buy and pleasant rents collect.
"Grown rich they soon the poor despise, and new-made laws display,
Oppress their neighbors and become the wise men of their day;
Unsparing of the least offence, when they can have their will,
The hapless country all around with discontent they fill."
In the fourteenth century judicial corruption was so general and
flagrant, that cries came from every quarter for the punishment of
offenders. The Knights Hospitallers' Survey, made in the year 1338,
gives us revelations that confound the indiscreet admirers of feudal
manners. From that source of information it appears that regular
stipends were paid to persons "tam in curia domini regis quam
justiciariis, clericis, officiariis et aliis ministris, in diversis
curiis suis, ac etiam aliis familaribus magnatum tam pro terris
tenementis redditbus et libertatibus Hospitalis, quam Templariorum, et
maxime pro terris Templariorum manutenendis." Of pensions to the amount
of L440 mentioned in the account, L60 were paid to judges, clerks, and
minor officers of courts. Robert de Sadington, the Chief Baron, received
40 marks annually; twice a year the Knights Hospitallers presented caps
to one hundred and forty officers of the Exchequer; and they expended
200 marks _per annum_ on gifts that were distributed in law courts,
"_pro favore habendo_, et pro placitis habendis, et expensis
parliamentorum." In that age, and for centuries later, it was customary
for wealthy men and great corporations to make valuable presents to the
judges and chief servants the king's courts; but it was always presumed
that the offerings were simple expressions of respect--not tribute
rendered, "pro favore habendo."
Bent on purifying the moral atmosphere of his courts, Edward III. raised
the salaries of his judges, and imposed upon them such oaths that none
of their order could pervert justice, or even encourage venal practices,
without breaking his solemn vow[13] to the king's majesty.
From the amounts of the _royal_ fees or stipends paid to Edward III.'s
judges, it may be vaguely estimated how far they were dependent on gifts
and _court_ fees for the means of living with appropriate state. John
Knyvet, Chief Justice of the King's Bench, has L40 and 100 marks per
annum. The annual fee of Thomas de Ingleby, the solitary puisne judge
of the King's Bench at that time, was at first 40 marks; but he obtained
an additional L40 when the 'fees' were raised, and he received moreover
L20 a year as a judge of assize. The Chief of the Common Pleas, Robert
de Thrope, received L40 per annum, payable during his tenure of office,
and another annual sum of L40 payable during his life. John de Mowbray,
William de Wychingham, and William de Fyncheden, the other judges of the
Common Pleas, received 40 marks each as official salary, and L20 per
annum for their services at assizes. Mowbray's stipend was subsequently
increased by 40 marks, whilst Wychingham and Fyncheden received an
additional L40 par annum. To the Chief Baron and the other two Barons of
the Exchequer annual fees of 40 marks each were paid, the Chief Baron
receiving L20 per annum as Justice of Assize, and one of the puisne
Barons, Almaric de Shirland, getting an additional 40 marks for certain
special services. The 'Issue Roll of 44 Edward III., 1370,' also shows
that certain sergeants-at-law acted as Justices of Assize, receiving for
their service L20 per annum.
Throughout his reign Edward III. strenuously exerted himself to purge
his law courts of abuses, and to secure his subjects from evils wrought
by judicial dishonesty; and though there is reason to think that he
prosecuted his reforms, and punished offending judges with more
impulsiveness than consistency--with petulance rather than
firmness[14]--his action must have produced many beneficial results. But
it does not seem to have occurred to him that the system adopted by his
predecessors, and encouraged by the usages of his own time, was the
real source of the mischief, and that so long as judges received the
greater part of their remuneration from suitors, fees and the donations
of the public, enactments and proclamations would be comparatively
powerless to preserve the streams of justice from pollution. The
fee-system poisoned the morality of the law-courts. From the highest
judge to the lowest usher, every person connected with a court of
justice was educated to receive small sums of money for trifling
services, to be always looking out for paltry dues or gratuities, to
multiply occasions for demanding, and reasons for pocketing petty coins,
to invent devices for legitimate peculation. In time the system produced
such complications of custom, right, privilege, claim, that no one could
say definitely how much a suitor was actually bound to pay at each stage
of a suit. The fees had an equally bad influence on the public. Trained
to approach the king's judges with costly presents, to receive them on
their visits with lavish hospitality, to send them offerings at the
opening of each year, the rich and the poor learnt to look on judicial
decisions as things that were bought and sold. In many cases this
impression was not erroneous. Judges were forbidden to accept gifts from
actual suitors, or to take payments _for_ judgments after their
delivery; but on the judgment-seat they were often influenced by
recollections of the conduct of suitors who _had been_ munificent before
the commencement of proceedings, and most probably would be equally
munificent six months after delivery of a judgment favorable to their
claims. Humorous anecdotes heightened the significance of patent facts.
Throughout a shire it would be told how this suitor won a judgment by a
sumptuous feast; how that suitor bought the justice's favor with a flask
of rare wine, a horse of excellent breed, a hound of superior sagacity.
In the fifteenth century the judge whose probity did not succumb to an
excellent dinner was deemed a miracle of virtue. "A lady," writes Fuller
of Chief Justice Markham, who was dismissed from his place in 1470,
"would traverse a suit of law against the will of her husband, who was
contented to buy his quiet by giving her her will therein, though
otherwise persuaded in his judgment the cause would go against her. This
lady, dwelling in the shire town, invited the judge to dinner, and
(though thrifty enough herself) treated him with sumptuous
entertainment. Dinner being done, and the cause being called, the judge
gave it against her. And when, in passion, she vowed never to invite the
judge again, 'Nay, wife,' said he, 'vow never to invite a _just judge_
any more.'" It may be safely affirmed that no English lady of our time
ever tried to bribe Sir Alexander Cockburn or Sir Frederick Pollock with
a dinner _a la Russe_.
By his eulogy of Chief Justice Dyer, who died March 24, 1582, Whetstone
gives proof that in Elizabethan England purity was the exception rather
than the rule with judges:--
"And when he spake he was in speeche reposde;
His eyes did search the simple suitor's harte;
To put by bribes his hands were ever closde,
His processe juste, he tooke the poore man's parte.
He ruld by lawe and listened not to arte,
Those foes to truthe--loove, hate, and private gain,
Which most corrupt, his conscience could not staine."