presents was more general or extravagant in the time of Elizabeth than
in previous ages; but the fuller records of her splendid reign give
greater prominence to the usage than it obtained in the chronicles of
any earlier period of English history. On each New Year's day her
courtiers gave her costly presents--jewels, ornaments of gold or silver
workmanship, hundreds of ounces of silver-gilt plate, tapestry, laces,
satin dresses, embroidered petticoats. Not only did she accept such
costly presents from men of rank and wealth, but she graciously received
the donations of tradesmen and menials. Francis Bacon made her majesty
"a poor oblation of a garment;" Charles Smith, the dustman, threw upon
the pile of treasure "two bottes of cambric." The fashion thus
countenanced by the queen was followed in all ranks of society; all men,
from high to low, receiving presents, as expressions of affection when
they came from their equals, as declarations of respect when they came
from their social inferiors. Each of her great officers of state drew a
handsome revenue from such yearly offerings. But though the burdens and
abuses of this system were excessive under Elizabeth, they increased in
enormity and number during the reigns of the Stuarts.
That the salaries of the Elizabethan judges were small in comparison
with the sums which they received in presents and fees may be seen from
the following Table of stipends and allowances annually paid, towards
the close of the sixteenth century:--
L _s._ _d._
The Lord Cheefe Justice of England:--
Fee, Reward and Robes 208 6 8
Wyne, 2 tunnes at L5 the tunne 10 0 0
Allowance for being Justice of Assize 20 0 0
The Lord Cheefe Justice of the Common Pleas:--
Fee, Reward, and Robes 141 13 4
Wyne, two tunnes 8 0 0
Allowance as Justice of Assize 20 0 0
Fee for keeping the Assize in the Augmentation
Court 12 10 8
Each of the three Justices in these two Courts:--
Fee, Reward and Robes L123 6_s._ 8_d._
Allowance as Justice of Assize 20 0 0
The Lord Cheefe Baron of the Exchequer:--
Fee 100 0 0
Lyvery 12 17 8
Allowance as Justice of the Assize 20 0 0
Each of the three Barons:--
Fee 46 12 4
Lyvery a peece 12 17 4
Allowance as Justice of Assize 20 0 0
Prior to and in the earlier part of Elizabeth's reign, the sheriffs had
been required to provide diet and lodging for judges travelling on
circuit, each sheriff being responsible for the proper entertainment of
judges within the limits of his jurisdiction. This arrangement was very
burdensome upon the class from which the sheriffs were elected, as the
official host had not only to furnish suitable lodging and cheer for the
justices themselves, but also to supply the wants of their attendants
and servants. The ostentatious and costly hospitality which law and
public opinion thus compelled or encouraged them to exercise towards
circuiteers of all ranks had seriously embarrassed a great number of
country gentlemen; and the queen was assailed with entreaties for a
reform that should free a sheriff of small estate from the necessity of
either ruining himself, or incurring a reputation for stinginess. In
consequence of these urgent representations, an order of council,
bearing date February 21, 1574, decided "the justices shall have of her
majesty several sums of money out of her coffers for their daily diet."
Hence rose the usage of 'circuit allowances.' The sheriffs, however,
were still bound to attend upon the judges, and make suitable provision
for the safe conduct of the legal functionaries from assize town to
assize town;--the sheriff of each county being required to furnish a
body-guard for the protection of the sovereign's representatives. This
responsibility lasted till the other day, when an innovation (of which
Mr. Arcedeckne, of Glevering Hall, Suffolk, was the most notorious,
though not the first champion), substituted guards of policemen, paid by
county-rates, for bands of javelin-men equipped and rewarded by the
sheriffs. In some counties the javelin-men--remote descendants of the
mail-clad knights and stalwart men-at-arms who formerly mustered at the
summons of sheriffs--still do duty with long wands and fresh rosettes;
but they are fast giving way to the wielders of short staves.
Amongst the bad consequences of the system of gratuities was the color
which it gave to idle rumors and malicious slander against the purity of
upright judges.
When Sir Thomas More fell, charges of bribery were preferred against him
before the Privy Council. A disappointed suitor, named Parnell, declared
that the Chancellor had been bribed with a gift-cup to decide in favor
of his (Parnell's) adversary. Mistress Vaughan, the successful suitor's
wife, had given Sir Thomas the cup with her own hands. The fallen
Chancellor admitting that "he had received the cup as a New Year's
Gift," Lord Wiltshire cried, with unseemly exultation, "Lo! did I not
tell you, my lords, that you would find this matter true?" It seemed
that More had pleaded guilty, for his oath did not permit him to receive
a New Year's Gift from an actual suitor. "But, my lords," continued the
accused man, with one of his characteristic smiles, "hear the other part
of my tale. After having drunk to her of wine, with which my butler had
filled the cup, and when she had pledged me, I restored it to her, and
would listen to no refusal." It is possible that Mistress Vaughan did
not act with corrupt intention, but merely in ignorance of the rule
which forbade the Chancellor to accept her present. As much cannot be
said in behalf of Mrs. Croker, who, being opposed in a suit to Lord
Arundel, sought to win Sir Thomas More's favor by presenting him with a
pair of gloves containing forty angels. With a courteous smile he
accepted the gloves, but constrained her to take back the gold. The
gentleness of this rebuff is charming; but the story does not tell more
in favor of Sir Thomas than to the disgrace of the lady and the moral
tone of the society in which she lived.
Readers should bear in mind the part which New Year's Gifts and other
customary gratuities played in the trumpery charges against Lord Bacon.
Adopting an old method of calumny, the conspirators against his fair
fame represented that the gifts made to him, in accordance with ancient
usage, were bribes. For instance Reynel's ring, presented on New Year's
day, was so construed by the accusers; and in his comment upon the
charge, Bacon, who had inadvertently accepted the gift during the
progress of a suit, observes, "This ring was received certainly
_pendente lite_, and though it were at New Year's tide, yet it was too
great a value for a New Year's Gift, though, as I take it, nothing near
the value mentioned in the articles." So also Trevor's gift was a New
Year's present, of which Bacon says, "I confess and declare that I
received at New Year's tide an hundred pounds from Sir John Trevor, and
because it came as a New Year's Gift, I neglected to inquire whether the
cause was ended or depending; but since I find that though the cause was
then dismissed to a trial at law, yet the equity is reserved, so as it
was in that kind _pendente lite_." Bacon knew that this explanation
would be read by men familiar with the history of New Year's Gifts, and
all the circumstances of the ancient usage; and it is needless to say
that no man of honor thought the less highly of Bacon at that time,
because his pure and guiltless acceptance of customary presents was by
ingenious and unscrupulous adversaries made to assume an appearance of
corrupt compliance.
How far the Chancellors of the sixteenth and seventeenth centuries
depended upon customary gratuities for their revenues may be seen from
the facts which show the degree of state which they were required to
maintain, and the inadequacy of the ancient fees for the maintenance of
that pomp. When Elizabeth pressed Hatton for payment of the sums which
he owed her, the Chancellor lamented his inability to liquidate her just
claims, and urged in excuse that the _ancient fees_ were very inadequate
to the expenses of the Chancellor's office. But though Elizabethan
Chancellors could not live upon their ancient fees, they kept up palaces
in town and country, fed regiments of lackeys, and surpassed the ancient
nobility in the grandeur of their equipages. Egerton--the needy and
illegitimate son of a rural knight, a lawyer who fought up from the
ranks--not only sustained the costly dignities of office, but left to
his descendants a landed estate worth L8000 per annum. Bacon's successor
in the 'marble chair,' Lord Keeper Williams, assured Buckingham that in
Egerton's time the Chancellor's lawful income was less than three
thousand per annum. "The lawful revenue of the office stands thus,"
wrote Williams, speaking from his intimate knowledge of Ellesmere's
affairs, "or not much above it at anytime:--in fines certain, L1300 per
annum, or thereabouts; in fines casual, L1250 or thereabouts; in greater
writs, L140; for impost of wine, L100--in all, L2790; and these are all
the true means of that great office." It is probable that Williams
under-stated the revenue, but it is certain that the income, apart from
gratuities, was insufficient.
The Chancellor was not more dependent on customary gratuities than the
chief of the three Common Law courts. At Westminster and on circuit,
whenever he was required to discharge his official functions, the
English judge extended his hand for the contributions of the
well-disposed. No one thought of blaming judges for their readiness to
take customary benevolences. To take gifts was a usage of the
profession, and had its parallel in the customs of every calling and
rank of life. The clergy took dues in like manner: from the earliest
days of feudal life the territorial lords had supplied their wants in
the same way; amongst merchants and yeomen, petty traders and servants,
the system existed in full force. These presents were made without any
secrecy. The aldermen of borough towns openly voted presents to the
judges; and the judges received their offerings--not as benefactions,
but as legitimate perquisites. In 1620--just a year before Lord Bacon's
fall--the municipal council of Lyme Regis left it to the "mayor's
discretion" to decide "what gratuity he will give to the Lord Chief
Baron and his men" at the next assizes. The system, it is needless to
say, had disastrous results. Empowering the chief judge of every court
to receive presents not only from the public, but from subordinate
judges, inferior officers, and the bar; and moreover empowering each
place-holder to take gratuities from persons officially or by profession
concerned in the business of the courts, it produced a complicated
machinery for extortion. By presents the chief justices bought their
places from the crown or a royal favorite; by presents the puisne
justices, registrars, counsel bought place or favor from the chief; by
presents the attorneys, sub-registrars, and outside public sought to
gain their ends with the humbler place-holders. The meanest ushers of
Westminster Hall took coins from ragged scriveners. Hence every place
was actually bought and sold, the sum being in most cases very high.
Sir James Ley offered the Duke of Buckingham L10,000 for the Attorney's
place. At the same period the Solicitor General's office was sold for
L4000. Under Charles I. matters grew still worse than they had been
under his father. When Sir Charles Caesar consulted Laud about the worth
of the vacant Mastership of the Rolls, the archbishop frankly said,
"that as things then stood, the place was not likely to go without more
money than he thought any wise man would give for it." Disregarding this
intimation, Sir Charles paid the king L15,000 for the place, and added a
loan of L2000. Sir Thomas Richardson, at the opening of the reign, gave
L17,000 for the Chiefship of the Common Pleas. If judges needed gifts
before the days when vacant seats were put up to auction, of course they
stood all the more in need of them when they bought their promotions
with such large sums. It is not wonderful that the wearers of ermine
repaid themselves by venal practices. The sale of judicial offices was
naturally followed by the sale of judicial decisions. The judges having
submitted to the extortions of the king, the public had to endure the
extortions of the judges. Corruption on the bench produced corruption at
the bar. Counsel bought the attention and compliance of 'the court,' and
in some cases sold their influence with shameless rascality. They would
take fees to speak from one side in a cause and fees to be silent from
the other side--selling their own clients as coolly as judges sold the
suitors of their courts. Sympathizing with the public, and stung by
personal experience of legal dishonesty, the clergy sometimes denounced
from the pulpit the extortions of corrupt judges and unprincipled
barristers. The assize sermons of Charles I.'s reign were frequently
seasoned with such animadversions. At Thetford Assizes, March, 1630,
the Rev. Mr. Ramsay, in the assize-sermon, spoke indignantly of judges
who "favored causes," and of "counsellors who took fees to be silent."
In the summer of 1631, at the Bury Assizes, "one Mr. Scott made a sore
sermon in discovery of corruption in judges and others." At Norwich, the
same authority, viz., 'Sir John Rous's Diary,' informs us--"Mr. Greene
was more plaine, insomuch that Judge Harvey, in his charge, broke out
thus: 'It seems by the sermon that we are corrupt, but we know that we
can use conscience in our places as well as the best clergieman of
all.'"
In his 'Life and Death of Sir Matthew Hale,' Bishop Burnet tells a good
story of the Chief's conduct with regard to a customary gift. "It is
also a custom," says the biographer, "for the Marshall of the King's
Bench to present the judges of that court with a piece of plate for a
New Year's Gift, that for the Chief Justice being larger than the rest.
This he intended to have refused, but the other judges told him it
belonged to his office, and the refusing it would be a prejudice to his
successors; so he was persuaded to take it, but he sent word to the
marshall, that instead of plate he should bring him the value of it in
money, and when he received it, he immediately sent it to the prisons
for the relief and discharge of the poor there."
[13] A portion of the oath prescribed for judges in the 'Ordinances for
Justices,' 20 Edward III., will show the reader the evils which called
for correction and the care taken to effect their cure. "Ye shall
swear," ran the injunction to which each judge was required to vow
obedience, "that well and lawfully ye shall serve our lord the king and
his people in the office of justice; ... and that ye take not by
yourself or by other, privily or apertly, gift or reward of gold or
silver, nor any other thing which may turn to your profit, unless it be
meat nor drink, and that of small value, _of any man that shall have
plea or process before you, as long as the same process shall be so
hanging, nor after for the same cause: and that ye shall take no fee as
long as ye shall be justice, nor robes of any man, great or small_, but
of the king himself: and that ye give none advice or counsel to no man,
great or small, in any case where the king is party; &c. &c. &c." The
clause forbidding the judge to receive gifts of actual suitors was a
positive recognition of his right to customary gifts rendered by persons
who had no process hanging before him. It should, moreover, be observed
that in the passage, "ye shall take no fee as long as ye shall be
justice, nor robes of any man," the word "fee" signifies "salary," and
not a single payment or gratuity. The Judge was forbidden to receive
from any man a fixed stipend (by the acceptance of which he would become
the donor's servant), or robes (the assumption of which would be open
declaration of service); but he was at liberty to accept the offerings
which the public were wont to make to men of his condition, as well as
the sums (or 'fees,' as they would be termed at the present day) due on
different processes of his court. That the word 'fee' is thus used in
the ordinance may be seen from the words "for this cause we have
increased the fees (les feez) of the same our justices, in such manner
as it ought reasonably to suffice them," by which language attention is
drawn to the increase of judicial salaries.
[14] Mr. Foss observes: "In 1350, William de Thrope, Chief Justice of
the King's Bench, was convicted on his own confession of receiving
bribes to stay justice; but though his property was forfeited to the
Crown on his condemnation, the king appears to have relented, and to
have made him second Baron of the Exchequer in May, 1352, unless I am
mistaken in supposing the latter to have been the same person."
CHAPTER XV.
GIFTS AND SALES.
By degrees the public ceased to make presents to the principal judges of
the kingdom; but long after the Chancellor and the three Chiefs had
taken the last offerings of general society, they continued to receive
yearly presents from the subordinate judges, placemen, and barristers
of their respective courts. Lord Cowper deserves honor for being the
holder of the seals who, by refusing to pocket these customary
donations, put an end to a very objectionable system, so far as the
Court of Chancery was concerned.
On being made Lord Keeper, he resolved to depart from the custom of his
predecessors for many generations, who on the first day of each new year
had invariably entertained at breakfast the persons from whom tribute
was looked for. Very droll were these receptions in the old time. The
repast at an end, the guests forthwith disburdened themselves of their
gold--the payers approaching the holder of the seals in order of rank,
and laying on his table purses of money, which the noble payee accepted
with his own hands. Sometimes his lordship was embarrassed by a ceremony
that required him to pick gold from the fingers of men, several of whom
he knew to be in indigent circumstances. In Charles II.'s time it was
observed that the silver-tongued Lord Nottingham on such occasions
always endeavored to hide his confusion under a succession of nervous
smiles and exclamations--"Oh, Tyrant Cuthtom!--Oh, Tyrant Cuthtom!"
It is noteworthy that in relinquishing the benefit of these exactions,
the Lord Keeper feared unfriendly criticism much more than he
anticipated public commendation. In his diary, under date December 30,
Cowper wrote:--"I acquainted my Lord Treasurer with my design to refuse
New Year's Gifts, if he had no objection against it, as spoiling, in
some measure, a place of which he had the conferring. He answered it was
not expected of me, but that I might do as my predecessors had done; but
if I refused, he thought nobody could blame me for it." Anxious about
the consequences of his innovation, the new Lord Keeper gave notice that
on January 1, 1705-6, he would receive no gifts; but notwithstanding
this proclamation, several officers of Chancery and counsellors came to
his house with tribute, and were refused admittance. "New Year's Gifts
turned back," he wrote in his diary at the close of the eventful day,
"and pray God it doth me more credit and good than hurt, by making
secret enemies _in faece Romuli_." His fears were in a slight degree
fulfilled. The Chiefs of the three Common Law Courts were greatly
displeased with an innovation which they had no wish to adopt; and their
warm expressions of dissatisfaction induced the Lord Keeper to cover his
disinterestedness with a harmless fiction. To pacify the indignant
Chiefs and the many persons who sympathized with them, he pretended that
though he had declined intentionally the gifts of the Chancery
barristers, he had not designed to exercise the same self-denial with
regard to the gifts of Chancery officers.[15]
The common law chiefs were slow to follow in the Lord Keeper's steps,
and many years passed before the reform, effected in Chancery by
accident or design, or by a lucky combination of both, was adopted in
the other great courts. In his memoir of Lord Cowper, Campbell observes:
"His example with respect to New Year's Gifts was not speedily followed;
and it is said that till very recently the Chief Justice of the Common
Pleas invited the officers of his court to a dinner at the beginning of
the year, when each of them deposited under his plate a present in the
shape of a Bank of England note, instead of a gift of oxen roaring at
his levee, as in ruder times." There is no need to remind the reader in
this place of the many veracious and the many apocryphal stories
concerning the basket justices of Fielding's time--stories showing that
in law courts of the lowest sort applicants for justice were accustomed
to fee the judges with victuals and drink until a comparatively recent
date.
Lucky would it have been for the first Earl of Macclesfield if the
custom of selling places in Chancery had been put an end to forever by
the Lord Keeper who abolished the custom of New Year's Gifts; but the
judge who at the sacrifice of one-fourth of his official income swept
away the pernicious usage which had from time immemorial marked the
opening of each year, saw no reason why he should purge Chancery of
another scarcely less objectionable practice. Following the steps of
their predecessors, the Chancellors Cowper, Harcourt, and Macclesfield
sold subordinate offices in their court; and whereas all previous
Chancellors had been held blameless for so doing, Lord Macclesfield was
punished with official degradation, fine, imprisonment, and obloquy.
By birth as humble[16] as any layman who before or since his time has
held the seals, Thomas Parker raised himself to the woolsack by great
talents and honorable industry. As an advocate he won the respect of
society and his profession; as a judge he ranks with the first
expositors of English law. Although for imputed corruption he was hurled
with ignominy from his high place, no one has ventured to charge him
with venality on the bench. That he was a spotless character, or that
his career was marked by grandeur of purpose, it would be difficult to
establish; but few Englishmen could at the present time be found to deny
that he was in the main an upright peer, who was not wittingly
neglectful of his duty to the country which had loaded him with wealth
and honors.
Amongst the many persons ruined by the bursting of the South Sea Bubble
were certain Masters of Chancery, who had thrown away on that wild
speculation large sums of which they were the official guardians. Lord
Macclesfield was one of the victims on whom the nation wreaked its wrath
at a crisis when universal folly had produced universal disaster. To
punish the masters for their delinquencies was not enough; greater
sacrifices than a few comparatively obscure placemen were demanded by
the suitors and wards whose money had been squandered by the fraudulent
trustees. The Lord Chancellor should be made responsible for the
Chancery defalcations. That was the will of the country. No one
pretended that Lord Macclesfield had originated the practice which
permitted Masters in Chancery to speculate with funds placed under their
care; attorneys and merchants were well aware that in the days of
Harcourt, Cowper, Wright, and Somers, it had been usual for masters to
pocket interest accruing from suitors' money; notorious also was it
that, though the Chancellor was theoretically the trustee of the money
confided to his court, the masters were its actual custodians. Had the
Chancellor known that the masters were trafficking in dangerous
investments to the probable loss of the public, duty would have required
him to examine their accounts and place all trust-moneys beyond their
reach; but until the crash came, Lord Macclesfield knew neither the
actual worthlessness of the South Sea Stock, nor the embarrassed
circumstances of the defaulting masters, nor the peril of the persons
committed to his care. The system which permitted the masters to
speculate with money not their own was execrable, but the Lord
Chancellor was not the parent of that system.
Infuriated by the national calamity, in which they were themselves great
sufferers, the Commons impeached the Chancellor, charging him with high
crimes and misdemeanors, of which the peers unanimously declared him
guilty. In this famous trial the great fact established against his
lordship was that he had sold masterships to the defaulters. It appeared
that he had not only sold the places, but had stood out for very high
prices; the inference being, that in consideration of these large sums
he had left the purchasers without the supervision usually exercised by
Chancellors over such officers, and had connived at the practices which
had been followed by ruinous results. To this it was replied, that if
the Chancellor had sold the places at higher prices than his
predecessors, he had done so because the places had become much more
valuable; that at the worst he had but sold them to the highest bidder,
after the example of his precursors; that the inference was not
supported by any direct testimony.
Very humorous was some of the evidence by which the sale of the
masterships was proved. Master Elde deposed that he bought his office
for 5000 guineas, the bargain being finally settled and fulfilled after
a personal interview with the accused lord. Master Thurston, another
purchaser at the high rate of 5000 guineas, paid his money to Lady
Macclesfield. It must be owned that these sums were very large, but
their magnitude does not fix fraudulent purpose upon the Chancellor.
That he believed himself fairly entitled to a moderate present on
appointing to a mastership is certain; that he regarded L2000 as the
gratuity which he might accept, without blushing at its publication, may
be inferred from the restitution of L3250 which he made to one of the
purchasers for L5250 at a time when he anticipated an inquiry into his
conduct; that he felt himself acting indiscreetly if not wrongfully in
pressing for such large sums is testified by the caution with which he
conferred with the purchasers and the secrecy with which he accepted
their money.
His defence before the peers admitted the sales of the places, but
maintained that the transactions were legitimate.
The defence was of no avail. When the question of guilty or not guilty
was put to the peers, each of the noble lords present answered, "Guilty,
upon my honor." Sentenced to pay a fine of L30,000, and undergo
imprisonment until the mulct was paid, the unfortunate statesman
bitterly repented the imprudence which had exposed him to the vengeance
of political adversaries and to the enmity of the vulgar. Whilst the
passions roused by the prosecution were at their height, the fallen
Chancellor was treated with much harshness by Parliament, and with
actual brutality by the mob. Ever ready to vilify lawyers, the rabble
seized on so favorable an occasion for giving expression to one of their
strongest prejudices. Amongst the crowds who followed the Earl to the
Tower with curses, voices were heard to exclaim that "Staffordshire had
produced the three greatest scoundrels of England--Jack Sheppard,
Jonathan Wilde, and Tom Parker." Jonathan Wilde was executed in
1725--the year of Lord Macclesfield's impeachment; and Jack Sheppard
died on the gallows at Tyburn, November 16, 1724.
Throughout the inquiry, and after the adverse verdict, George I.
persisted in showing favor to the disgraced Chancellor; and when the
violent emotions of the crisis had passed away it was generally admitted
by enlightened critics of public events that Lord Macclesfield had been
unfairly treated. The scape-goat of popular wrath, he suffered less for
his own faults, than for the evil results of a bad system; and at the
present time--when the silence of more than a hundred and thirty years
rests upon his tomb--Englishmen, with one voice, acknowledge the
valuable qualities that raised him to eminence, and regret the
proceedings which consigned him in his old age to humiliation and gloom.
[15] It should be observed that many persons are of opinion that the
Lord Keeper's assertion on this point was not an artifice, but a simple
statement of fact. To those who take this view, his lordship's position
seems alike ridiculous and respectable--respectable because he actually
intended to forbear from taking the barrister's money; ridiculous
because, through clumsy and inadequate arrangements, he missed the other
and not less precious gifts which he did not mean to decline. Anyhow,
the critics admit that credit is due to him for persisting in a
change--wrought in the first instance partly by honorable design and
partly by accident.
[16] The cases of John Scott, Philip Yorke, and Edward Sugden are before
the mind of the present writer, when he pens the sentence to which this
note refers. The social extraction of the English bar will be considered
in a later chapter of this work.
CHAPTER XVI.
A ROD PICKLED BY WILLIAM COLE.
"A proneness to take bribes may be generated from the habit of taking
fees," said Lord Keeper Williams in his Inaugural Address, making an
ungenerous allusion to Francis Bacon, whilst he uttered a statement
which was no calumny upon King James's Bench and Bar, though it is
signally inapplicable to lawyers of the present day.
Of Williams, tradition preserves a story that illustrates the prevalence
of judicial corruption in the seventeenth century, and the jealousy with
which that Right Reverend Lord Keeper watched for attempts to tamper
with his honesty. Whilst he was taking exercise in the Great Park of
Nonsuch House, his attention was caught by a church recently erected at
the cost of a rich Chancery suitor. Having expressed satisfaction with
the church, Williams inquired of George Minors, "Has he not a suit
depending in Chancery?" and on receiving an answer in the affirmative,
observed, "he shall not fare the worse for building of churches." These
words being reported to the pious suitor, he not illogically argued that
the Keeper was a judge likely to be influenced in making his decisions
by matters distinct from the legal merits of the case put before him.
Acting on this impression, the good man forthwith sent messengers to
Nonsuch House, bearing gifts of fruits and poultry to the holder of the
seals. "Nay, carry them back," cried the judge, looking with a grim
smile from the presents to George Minors; "nay, carry them back, George,
and tell your friend that he shall not fare the better for sending of
presents."
Rich in satire directed against law and its professors, the literature
of the Commonwealth affords conclusive testimony of the low esteem in
which lawyers were held in the seventeenth century by the populace, and
shows how universal was the belief that wearers of ermine and gentlemen
of the long robe would practice any sort of fraud or extortion for the
sake of personal advantage. In the pamphlets and broadsides, in the
squibs and ballads of the period, may be found a wealth of quaint
narrative and broad invective, setting forth the rascality of judges and
attorneys, barristers and scriveners. Any literary effort to throw
contempt upon the law was sure of success. The light jesters, who made
merry with the phraseology and costumes of Westminster Hall, were only a
few degrees less welcome than the stronger and more indignant scribes
who cried aloud against the sins and sinners of the courts. When simple
folk had expended their rage in denunciations of venal eloquence and
unjust judgments, they amused themselves with laughing at the antiquated
verbiage of the rascals who sought to conceal their bad morality under
worse Latin. 'A New Modell, or the Conversion of the Infidell Terms of
the Law: For the Better promoting of misunderstanding according to
Common Sense,' is a publication consisting of a cover or fly-leaf and
two leaves, that appeared about a year before the Restoration. The wit
is not brilliant; its humor is not free from uncleanness; but its comic
renderings[17] of a hundred law terms illustrate the humor of the
times.
More serious in aim, but not less comical in result, is William Cole's
'A Rod for the Lawyers. London, Printed in the year 1659.' The preface
of this mad treatise ends thus--"I do not altogether despair but that
before I dye I may see the Inns of Courts, or dens of Thieves, converted
into Hospitals, which were a rare piece of justice; that as they
formerly have immured those that robbed the poor of houses, so they may
at last preserve the poor themselves."
Another book touching on the same subject and belonging to the same
period, is, 'Sagrir, or Doomsday drawing nigh; With Thunder and
Lightning to Lawyers, (1653) by John Rogers.'
Violent, even for a man holding Fifth-Monarchy views, John Rogers
prefers a lengthy indictment against lawyers, for whose delinquencies
and heinous offence he admits neither apology nor palliation. In his
opinion all judges deserve the death of Arnold and Hall, whose last
moments were provided for by the hangman. The wearers of the long robe
are perjurers, thieves, enemies of mankind; their institutions are
hateful, and their usages abominable. In olden time they were less
powerful and rapacious. But prosperity soon exaggerated all their evil
qualities. Sketching the rise of the profession, the author
observes--"These men would get sometimes Parents, Friends, Brothers,
Neighbors, sometimes _others_ to be (in their absence) Agents, Factors,
or Solicitors for them at Westminster, and as yet they had no stately
houses or mansions to live in, as they have now (called Inns of Court),
but they lodged like countrymen or strangers in ordinary Inns. But
afterwards, when the interests of lawyers began to look big (as in
Edward III.'s days), they got mansions or colleges, which they called
Inns, and by the king's favor had an addition of honor, whence they were
called Inns of Court."[18]
The familiar anecdotes which are told as illustrations of Chief Justice
Hale's integrity are very ridiculous, but they serve to show that the
judges of his time were believed to be very accessible to corrupt
influences. During his tenure of the Chiefship of the Exchequer, Hale
rode the Western Circuit, and met with the loyal reception usually
accorded to judges on circuit in his day. Amongst other attentions
offered to the judges on this occasion was a present of venison from a
wealthy gentleman who was concerned in a cause that was in due course
called for hearing. No sooner was the call made than Chief Baron Hale
resolved to place his reputation for judicial honesty above suspicion,
and the following scene occurred:--
"_Lord Chief Baron._--'Is this plaintiff the gentleman of the same name
who hath sent me the venison?' _Judge's servant._--'Yes, please you, my
lord.' _Lord Chief Baron._--'Stop a bit, then. Do not yet swear the
jury. I cannot allow the trial to go on till I have paid him for his
buck!' _Plaintiff._--'I would have your lordship to know that neither
myself nor my forefathers have ever sold venison, and I have done
nothing to your lordship which we have not done to every judge that has
come this circuit for centuries bygone.' _Magistrate of the
County._--'My lord, I can confirm what the gentleman says for truth, for
twenty years back.' _Other Magistrates._--'And we, my lord, know the
same.' _Lord Chief Baron._--'That is nothing to me. The Holy Scripture
says, 'A gift perverteth the ways of judgment.' I will not suffer the
trial to go on till the venison is paid for. Let my butler count down
the full value thereof.' _Plaintiff._--'I will not disgrace myself and
my ancestors by becoming a venison butcher. From the needless dread of
_selling_ justice, your lordship _delays_ it. I withdraw my record.'"
As far as good taste and dignity were concerned, the gentleman of the
West Country was the victor in this absurd contest: on the other hand,
Hale had the venison for nothing, and was relieved of the trouble of
hearing the cause.
In the same manner Hale insisted on paying for six loaves of sugar which
the Dean and Chapter of Salisbury sent to his lodgings, in accordance
with ancient usage. Similar cases of the judge's readiness to construe
courtesies as bribes may be found in notices of trials and books of
_ana_.
_A propos_ of these stories of Hale's squeamishness, Lord Campbell tells
the following good anecdote of Baron Graham: "The late Baron Graham
related to me the following anecdote to show that he had more firmness
than Judge Hale:--'There was a baronet of ancient family with whom the
judges going the Western Circuit had always been accustomed to dine.
When I went that circuit I heard that a cause, in which he was
plaintiff, was coming on for trial: but the usual invitation was
received, and lest the people might suppose that judges could be
influenced by a dinner; I accepted it. The defendant, a neighboring
squire, being dreadfully alarmed by this intelligence, said to himself,
'Well, if Sir John entertains the judge hospitably, I do not see why I
should not do the same by the jury.' So he invited to dinner the whole
of the special jury summoned to try the cause. Thereupon the baronet's
courage failed him, and he withdrew the record, so that the cause was
not tried; and although I had my dinner, I escaped all suspicion of
partiality."
This story puts the present writer in mind of another story which he has
heard told in various ways, the wit of it being attributed by different
narrators to two judges who have left the bench for another world, and a
Master of Chancery who is still alive. On the present occasion the
Master of Chancery shall figure as the humorist of the anecdote.
Less than twenty years since, in one of England's southern counties, two
neighboring landed proprietors differed concerning their respective
rights over some unenclosed land, and also about certain rights of
fishing in an adjacent stream. The one proprietor was the richest
baronet, the other the poorest squire of the county; and they agreed to
settle their dispute by arbitration. Our Master in Chancery, slightly
known to both gentlemen, was invited to act as arbitrator after
inspecting the localities in dispute. The invitation was accepted and
the master visited the scene of disagreement, on the understanding that
he should give up two days to the matter. It was arranged that on the
first day he should walk over the squire's estate, and hear the squire's
uncontradicted version of the case, dining at the close of the day with
both contendents at the squire's table; and that on the second day,
having walked over the baronet's estate, and heard without interruption
the other side of the story, he should give his award, sitting over wine
after dinner at the rich man's table. At the close of the first day the
squire entertained his wealthy neighbor and the arbitrator at dinner.
In accordance with the host's means, the dinner was modest but
sufficient. It consisted of three fried soles, a roast leg of mutton,
and vegetables; three pancakes, three pieces of cheese, three small
loaves of bread, ale, and a bottle of sherry. On the removal of the
viands, three magnificent apples, together with a magnum of port, were
placed on the table by way of dessert. At the close of the second day
the trio dined at the baronet's table, when it appeared that, struck by
the simplicity of the previous day's dinner, and rightly attributing the
absence of luxuries to the narrowness of the host's purse, the wealthy
disputant had resolved not to attempt to influence the umpire by giving
him a superior repast. Sitting at another table the trio dined on
exactly the same fare,--three fried soles, a roast leg of mutton, and
vegetables; three pancakes, three pieces of cheese, three small loaves
of bread, ale, and a bottle of sherry; and for dessert three magnificent
apples, together with a magnum of port. The dinner being over, the
apples devoured, and the last glass of port drunk, the arbitrator (his
eyes twinkling brightly as he spoke) introduced his award with the
following exordium:--"Gentlemen, I have with all proper attention
considered your _sole_ reasons: I have taken due notice of your _joint_
reasons, and I have come to the conclusion that your _des(s)erts_ are
about equal."
[17] Of these renderings the subjoined may be taken as favorable
specimens:--"Breve originale, original sinne; capias, a catch to a sad
tune; alias capias, another to the same (sad tune); habeas corpus, a
trooper; capias ad satisfaciend., a hangman: latitat, bo-peep; nisi
prius, first come first served; demurrer, hum and haw; scandal. magnat.,
down with the Lords."
[18] Even vacations stink in the nostrils of Mr. Rogers; for he
maintains that they are not so much periods when lawyers cease from
their odious practices, as times of repose and recreation wherein they
gain fresh vigor and daring for the commission of further outrages, and
allow their unhappy victims to acquire just enough wealth to render them
worth the trouble of despoiling.
CHAPTER XVII.
CHIEF JUSTICE POPHAM.
One of the strangest cases of corruption amongst English Judges still
remains to be told on the slender authority which is the sole foundation
of the weighty accusation. In comparatively recent times there have not
been many eminent Englishmen to whom 'tradition's simple tongue' has
been more hostile than Queen Elizabeth's Lord Chief Justice, Popham. The
younger son of a gentle family, John Popham passed from Oxford to the
Middle Temple, raised himself to the honors of the ermine, secured the
admiration of illustrious contemporaries, in his latter years gained
abundant praise for wholesome severity towards footpads, and at his
death left behind him a name--which, tradition informs us, belonged to a
man who in his reckless youth, and even after his call to the bar, was a
cut-purse and highwayman. In mitigation of his conduct it is urged by
those who credit the charge, that young gentlemen of his date were so
much addicted to the lawless excitement of the road, that when he was
still a beardless stripling, an act (1 Ed. VI. c. 12, s. 14) was passed,
whereby any peer of the realm or lord of parliament, on a first
conviction for robbery, was entitled to benefit of clergy, though he
could not read. But bearing in mind the liberties which rumor is wont to
take with the names of eminent persons, the readiness the multitude
always display to attribute light morals to grave men, and the
infrequency of the cases where a dissolute youth is the prelude to a
manhood of strenuous industry and an old age of honor--the cautious
reader will require conclusive testimony before he accepts Popham's
connection with 'the road' as one of the unassailable facts of history.
The authority for this grave charge against a famous judge is John
Aubrey, the antiquary, who was born in 1627, just twenty years after
Popham's death. "For severall yeares," this collector says of the Chief
Justice, "he addicted himself but little to the studie of the lawes, but
profligate company, and was wont to take a purse with them. His wife
considered her and his condition, and at last prevailed with him to
lead another life and to stick to the studie of the lawe, which, upon
her importunity, he did, being then about thirtie yours old." As Popham
was born in 1531, he withdrew, according to this account, from the
company of gentle highwaymen about the year 1561--more than sixty years
before Aubrey's birth, and more than a hundred years before the
collector committed the scandalous story to writing. The worth of such
testimony is not great. Good stories are often fixed upon eminent men
who had no part in the transactions thereby attributed to them. If this
writer were to put into a private note-book a pleasant but unauthorized
anecdote imputing _kleptomania_ to Chief Justice Wiles (who died in
1761), and fifty years hence the note-book should be discovered in a
dirty corner of a forgotten closet and published to the world--would
readers in the twentieth century be justified in holding that Sir John
Willes was an eccentric thief?
But Aubrey tells a still stranger story concerning Popham, when he sets
forth the means by which the judge made himself lord of Littlecote Hall
in Wiltshire. The case must be given in the narrator's own words.
"Sir Richard Dayrell of Littlecot in com. Wilts. having got his lady's
waiting-woman with child, when her travell came sent a servant with a
horse for a midwife, whom he was to bring hoodwinked. She was brought,
and layd the woman; but as soon as the child was born, she saw the
knight take the child and murther it, and burn it in the fire in the
chamber. She having done her business was extraordinarily rewarded for
her paines, and went blindfold away. This horrid action did much run in
her mind, and she had a desire to discover it, but knew not where 'twas.
She considered with herself the time she was riding, and how many miles
she might have rode at that rate in that time, and that it must be some
great person's house, for the roome was twelve foot high: and she
should know the chamber if she sawe it. She went to a justice of peace,
and search was made. The very chamber found. The knight was brought to
his tryall; and, to be short, this judge had this noble house, park, and
manor, and (I think) more, for a bribe to save his life. Sir John Popham
gave sentence according to lawe, but being a great person and a
favorite, he procured a _nolle prosequi_."
This ghastly tale of crime following upon crime has been reproduced by
later writers with various exaggerations and modifications. Dramas and
novels have been founded upon it; and a volume might be made of the
ballads and songs to which it has given birth. In some versions the
corrupt judge does not even go through the form of passing sentence, but
secures an acquittal from the jury; according to one account, the
mother, instead of the infant, was put to death; according to another,
the erring woman was the murderer's daughter, instead of his wife's
waiting-woman; another writer, assuming credit as a conscientious
narrator of facts, places the crime in the eighteenth instead of the
sixteenth century, and transforms the venal judge into a clever
barrister.
In a highly seasoned statement of the repulsive tradition communicated
by Lord Webb Seymour to Walter Scott, the murder is described with
hideous minuteness.
Changing the midwife into 'a Friar of orders grey,' and murdering the
mother instead of the baby, Sir Walter Scott revived the story in one of
his most popular ballads. But of all the versions of the tradition that
have come under this writer's notice, the one that departs most widely
from Aubrey's statement is given in Mr. G.L. Rede's 'Anecdotes and
Biography,' (1799).
CHAPTER XVIII.
JUDICIAL SALARIES.
For the last three hundred years the law has been a lucrative
profession, our great judges during that period having in many instances
left behind them large fortunes, earned at the bar or acquired from
official emoluments. The rental of Egerton's landed estates was L8,000
per annum--a royal income in the days of Elizabeth and James. Maynard
left great wealth to his grand-daughters, Lady Hobart and Mary Countess
of Stamford. Lord Mansfield's favorite investment was mortgage; and
towards the close of his life the income which he derived for moneys
lent on sound mortgages was L30,000 per annum. When Lord Kenyon had lost
his eldest son, he observed to Mr. Justice Allan Park--"How delighted
George would be to take his poor brother from the earth and restore him
to life, although he receives L250,000 by his decease." Lord Eldon is
said to have left to his descendants L500,000; and his brother, Lord
Stowell, to whom we are indebted for the phrase 'the elegant simplicity
of the Three per Cents.,' also acquired property that at the time of his
death yielded L12,000 per annum.
Lord Stowell's personalty was sworn under L230,000, and he had invested
considerable sums in land. It is noteworthy that this rich lawyer did
not learn to be contented with the moderate interest of the Three per
Cents. until he had sustained losses from bad speculations. Notable also
is it that this rich lawyer--whose notorious satisfaction with three per
cent. interest has gained for him a reputation of noble indifference to
gain--was inordinately fond of money.
These great fortunes were raised from fees taken in practice at the
bar, from judicial salaries or pensions, and from other official
gains--such as court dues, perquisites, sinecures, and allowances. Since
the Revolution of 1688 these last named irregular or fluctuating sources
of judicial income have steadily diminished, and in the present day have
come to an end. Eldon's receipts during his tenure of the seals cannot
be definitely stated, but more is known about them and his earnings at
the bar than he intended the world to discover, when he declared in
Parliament "that in no one year, since he had been made Lord Chancellor,
had he received the same amount of profit which he enjoyed while at the
bar." Whilst he was Attorney General he earned something more than
L10,000 a year; and in returns which he himself made to the House of
Commons, he admits that in 1810 he received, as Lord Chancellor, a gross
income of L22,730, from which sum, after deduction of all expenses,
there remained a net income of L17,000 per annum. He was enabled also to
enrich the members of his family with presentations to offices, and
reversions of places.
Until comparatively recent times, judges were dangerously dependent on
the king's favor; for they not only held their offices during the
pleasure of the crown, but on dismissal they could not claim a retiring
pension. In the seventeenth century, an aged judge, worn out by toil and
length of days, was deemed a notable instance of royal generosity, if he
obtained a small allowance on relinquishing his place in court. Chief
Justice Hale, on his retirement, was signally favored when Charles II.
graciously promised to continue his salary till the end of his
life--which was manifestly near its close. Under the Stuarts, the judges
who lost their places for courageous fidelity to law, were wont to
resume practice at the bar. To provide against the consequences of
ejection from office, great lawyers, before they consented to exchange
the gains of advocacy for the uncertain advantages of the woolsack, used
to stipulate for special allowance--over and above the ancient
emoluments of place. Lord Nottingham had an allowance of L4000 per
annum; and Lord Guildford, after a struggle for better times, was
constrained, at a cost of mental serenity, to accept the seals, with a
special salary of half that sum.[19]
From 1688 down to the present time, the chronicler of changes in the
legal profession, has to notice a succession of alterations in the
system and scale of judicial payments--all of the innovations having a
tendency to raise the dignity of the bench. Under William and Mary, an
allowance (still continued), was made to holders of the seal on their
appointment, for the cost of outfit and equipages. The amount of this
special aid was L2000, but fees reduced it to L1843 13_s._ Mr. Foss
observes--"The earliest existing record of this allowance, is dated June
4, 1700, when Sir Nathan Wright was made Lord Keeper, which states it to
be the same sum as had been allowed to his predecessor."
At the same period, the salary of a puisne judge was but L1000 a year--a
sum that would have been altogether insufficient for his expenses. A
considerable part of a puisne's remuneration consisted of fees,
perquisites, and presents. Amongst the customary presents to judges at
this time, may be mentioned the _white gloves_, which men convicted of
manslaughter, presented to the judges when they pleaded the king's
pardon; the _sugar loaves_, which the Warden of the Fleet annually sent
to the judges of the Common Pleas; and the almanacs yearly distributed
amongst the occupants of the bench by the Stationers' Company. From one
of these almanacs, in which Judge Rokeby kept his accounts, it appears
that in the year 1694, the casual profits of his place amounted to L694,
4_s._ 6_d._ Here is the list of his official incomes, (net) for ten
years:--in 1689, L1378, 10_s._; in 1690, L1475, 10_s._ 10_d._; in 1691,
L2063, 18_s._ 4_d._; in 1692, L1570, 1_s._ 4_d._; in 1693, L1569, 13_s._
1_d._; in 1694, L1629, 4_s._ 6_d._; in 1695, L1443, 7_s._ 6_d._; in
1696, L1478, 2_s._ 6_d._; in 1697, L1498, 11_s._ 11_d._; in 1698, L1631,
10_s._ 11_d._ The fluctuation of the amounts in this list, is worthy of
observation; as it points to one bad consequence of the system of paying
judges by fees, gratuities, and uncertain perquisites. A needy judge,
whose income in lucky years was over two thousand pounds, must have been
sadly pinched in years when he did not receive fifteen hundred.
Under the heading, "The charges of my coming into my judge's place, and
the taxes upon it the first yeare and halfe," Judge Rokeby gives the
following particulars:
"1689, May 11. To Mr. Milton, Deputy Clerk of the Crown, as per note,
for the patent and swearing privately, L21, 6_s._ 4_d._ May 30. To Mr.
English, charges of the patent at the Secretary of State's Office, as
per note, said to be a new fee, L6, 10_s._ Inrolling the patent in
Exchequer and Treasury, L2, 3_s._ 4_d._ Ju. 27. Wine given as a judge,
as per vintner's note, L23, 19_s._ Ju. 24. Cakes, given as a judge, as
per vintner's note, L5, 14_s._ 6_d._ Second-hand judge's robes, with
some new lining, L31. Charges for my part of the patent for our salarys,
to Aaron Smith, L7, 15_s._, and the dormant warrant L3.--L10,
15_s._--L101, 8_s._ 2_d._
"Taxes, L420.
"The charges of my being made a serjeant-at-law, and of removing myselfe
and family to London, and a new coach and paire of horses, and of my
knighthood (all which were within the first halfe year of my coming from
York), upon the best calculation I can make of them, were att least
L600."
Concerning the expenses attendant on his removal from the Common Pleas
to the King's Bench in 1695--a removal which had an injurious result
upon his income--the judge records: Nov. 1. To Mr. Partridge, the Crier
of King's Bench, claimed by him as a fee due to the 2 criers, L2. Nov.
12. To Mr. Ralph Hall, in full of the Clerk of the Crown's bill for my
patent, and swearing at the Lord Keeper's, and passing it through the
offices, L28, 14_s._ 2_d._ Dec. 6. To Mr. Carpenter, the Vintner, for
wine and bottles, L22, 10_s._ 6_d._ To Gwin, the Confectioner, for
cakes, L5, 3_s._ 6_d._ To Mr. Mand (his clerk), which he paid att the
Treasury, and att the pell for my patent, allowed there, L1, 15_s._ Tot.
L60, 2_s._ 8_d._ The charges for wine and cakes were consequences of a
custom which required a new judge to send biscuits and macaroons, sack
and claret, to his brethren of the bench.
In the reign of George I. the salaries of the common law judges were
raised--the pensions of the chiefs being doubled, and the _puisnes_
receiving fifteen hundred instead of a thousand pounds.
Cowper's incomes during his tenure of the seals varied between something
over seven and something under nine thousand per annum: but there is
some reason to believe that on accepting office, he stipulated for a
handsome yearly salary, in case he should be called upon to relinquish
the place. Evelyn, not a very reliable authority, but still a chronicler
worthy of notice even on questions of fact, says:--"Oct. 1705. Mr.
Cowper made Lord Keeper. Observing how uncertain greate officers are of
continuing long in their places, he would not accept it unless L2,000 a
yeare were given him in reversion when he was put out, in consideration
of his loss of practice. His predecessors, how little time soever they
had the seal, usually got L100,000, and made themselves barons." It is
doubtful whether this bargain was actually made; but long after
Cowper's time, lawyers about to mount the woolsack, insisted on having
terms that should compensate them for loss of practice. Lord
Macclesfield had a special salary of L4000 per annum, during his
occupancy of the marble chair, and obtained a grant of L12,000 from the
king;--a tellership in the Exchequer being also bestowed upon his eldest
son. Lord King obtained even better terms--a salary of L6000 per annum
from the Post Office, and L1200 from the Hanaper Office; this large
income being granted to him in consideration of the injury done to the
Chancellor's emoluments by the proceedings against Lord
Macclesfield--whereby it was declared illegal for chancellors to sell
the subordinate offices in the Court of Chancery. This arrangement--giving
the Chancellor an increased salary in _lieu_ of the sums which he could
no longer raise by sales of offices--is conclusive testimony that in
the opinion of the crown Lord Macclesfield had a right to sell the
masterships. The terms made by Lord Northington, in 1766, on
resigning the Seals and becoming President of the Council, illustrate
this custom. On quitting the marble chair, he obtained an immediate
pension of L2000 per annum; and an agreement that the annual payment
should be made L4000 per annum, as soon as he retired from the
Presidency: he also obtained a reversionary grant for two lives of the
lucrative office of Clerk of the Hanaper in Chancery.
In Lord Chancellor King's time, amongst the fees and perquisites which
he wished to regulate and reform were the supplies of stationery,
provided by the country for the great law-officers. It may be supposed
that the sum thus expended on paper, pens, and wax was an insignificant
item in the national expenditure; but such was not the case--for the
chief of the courts were accustomed to place their personal friends on
the free-list for articles of stationery. The Archbishop of Dublin, a
dignitary well able to pay for his own writing materials, wrote to Lord
King, April 10, 1733: "MY LORD,--Ever since I had the honor of being
acquainted with Lord Chancellors, I have lived in England and Ireland
upon Chancery paper, pens, and wax. I am not willing to lose an old
advantageous custom. If your Lordship hath any to spare me by my
servant, you will oblige your very humble servant,
"JOHN DUBLIN."
So long as judges or subordinate officers were paid by casual
perquisites and fees, paid directly to them by suitors, a taint of
corruption lingered in the practice of our courts. Long after judges
ceased to sell injustice, they delayed justice from interested motives,
and when questions concerning their perquisites were raised, they would
sometimes strain a point, for the sake of their own private advantage.
Even Lord Ellenborough, whose fame is bright amongst the reputations of
honorable men, could not always exercise self-control when attempts were
made to lessen his customary profits, "I never," writes Lord Campbell,
"saw this feeling at all manifest itself in Lord Ellenborough except
once, when a question arose whether money paid into court was liable to
poundage. I was counsel in the case, and threw him into a furious
passion, by strenuously resisting the demand; the poundage was to go
into his own pocket--being payable to the chief clerk--an office held in
trust for him. If he was in any degree influenced by this consideration,
I make no doubt that he was wholly unconscious of it."
George III.'s reign witnessed the introduction of changes long required,
and frequently demanded in the mode and amounts of judicial payments. In
1779, puisne judges and barons received an additional L400 per annum,
and the Chief Baron an increase of L500 a year. Twenty years later,
Stat. 39, Geo. III., c. 110, gave the Master of the Rolls, L4000 a
year, the Lord Chief Baron L4000 a year, and each of the puisne judges
and barons, L3000 per annum. By the same act also, life-pensions of
L4000 per annum were secured to retiring holders of the seal, and it was
provided that after fifteen years of service, or in case of incurable
infirmity, the Chief Justice of the King's Bench could claim, on
retirement, L3000 per annum, the Master of the Rolls, Chief of Common
Pleas, and Chief Baron L2500 per annum, and each minor judge of those
courts or Baron of the coif, L2000 a year. In 1809, (49 Geo. III., c.
127) the Lord Chief Baron's annual salary was raised to L5000; whilst a
yearly stipend of L4000 was assigned to each puisne judge or baron. By
53 Geo. III., c. 153, the Chiefs and Master of the Rolls, received on
retirement an additional yearly L800, and the puisnes an additional
yearly L600. A still more important reform of George III.'s reign was
the creation of the first Vice Chancellor in March, 1813. Rank was
assigned to the new functionary next after the Master of the Rolls, and
his salary was fixed at L5000 per annum.
Until the reign of George IV. judges continued to take fees and
perquisites; but by 6 Geo. IV. c. 82, 83, 84, it was arranged that the
fees should be paid into the Exchequer, and that the undernamed great
officers of justice should receive the following salaries and pensions
on retirement:--
An. Pension
An. Sal. on retirement.
Lord Chief Justice of King's Bench L10,000 L4000
Lord Chief Justice of Common Pleas 8000 3750
The Master of the Rolls 7000 3750
The Vice Chancellor of England 6000 3750
The Chief Baron of the Exchequer 7000 3750
Each Puisne Baron or Judge 5500 3500
Moreover by this Act, the second judge of the King's Bench was
entitled, as in the preceding reign, to L40 for giving charge to the
grand jury in each term, and pronouncing judgment on malefactors.
The changes with regard to judicial salaries under William IV. were
comparatively unimportant. By 2 and 3 Will. IV. c. 116, the salaries of
puisne judges and barons were reduced to L5000 a year; and by 2 and 3
Will. IV. c. 111, the Chancellor's pension, on retirement, was raised to
L5000, the additional L1000 per annum being assigned to him in
compensation of loss of patronage occasioned by the abolition of certain
offices. These were the most noticeable of William's provisions with
regard to the payment of his judges.
The present reign, which has generously given the country two new
judges, called Lord Justices, two additional Vice Chancellors, and a
swarm of paid justices, in the shape of county court judges and
stipendiary magistrates, has exercised economy with regard to judicial
salaries. The annual stipends of the two Chief Justices, fixed in 1825
at L10,000 for the Chief of the King's Bench, and L8000 for the Chief of
the Common Pleas, have been reduced, in the former case to L8000 per
annum, in the latter to L7000 per annum. The Chancellor's salary for his
services as Speaker of the House of Lords, has been made part of the
L10,000 assigned to his legal office; so that his income is no more than
ten thousand a year. The salary of the Master of the Rolls has been
reduced from L7000 to L6000 a year; the same stipend, together with a
pension on retirement of L3750, being assigned to each of the Lords
Justices. The salary of a Vice Chancellor is L5000 per annum; and after
fifteen years' service, or in case of incurable sickness, rendering him
unable to discharge the functions of his office, he can retire with a
pension of L3500.
Thurlow had no pension on retirement; but with much justice Lord
Campbell observes: "Although there was no parliamentary retired
allowance for ex-Chancellors, they were better off than at present.
Thurlow was a Teller of the Exchequer, and had given sinecures to all
his relations, for one of which his nephew now receives a commutation of
L9000 a year." Lord Loughborough was the first ex-Chancellor who
enjoyed, on retirement, a pension of L4000 per annum, under Stat. 39
Geo. III. c. 110. The next claimant for an ex-Chancellor's pension was
Eldon, on his ejection from office in 1806; and the third claimant was
Erskine, whom the possession of the pension did not preserve from the
humiliation of indigence.
Eldon's obstinate tenacity of office, was attended with one good result.
It saved the nation much money by keeping down the number of
ex-Chancellors entitled to L4000 per annum. The frequency with which
Governments have been changed during the last forty years has had a
contrary effect, producing such a strong bevy of lawyers--who are
pensioners as well as peers--that financial reformers are loudly asking
if some scheme cannot be devised for lessening the number of these
costly and comparatively useless personages. At the time when this page
is written, there are four ex-Chancellors in receipt of pensions--Lords
Brougham, St. Leonards, Cranworth, and Westbury; but death has recently
diminished the roll of Chancellors by removing Lords Truro and
Lyndhurst. Not long since the present writer read a very able, but
one-sided article in a liberal newspaper that gave the sum total spent
by the country since Lord Eldon's death in ex-Chancellors' pensions; and
in simple truth it must be admitted that the bill was a fearful subject
for contemplation.
[19] During the Commonwealth, the people, unwilling to pay their judges
liberally, decided that a thousand a year was a sufficient income for a
Lord Commissioner of the Great Seal.
PART IV.
COSTUME AND TOILET.
CHAPTER XIX.
BRIGHT AND SAD.
From the days of the Conqueror's Chancellor, Baldrick, who is reputed to
have invented and christened the sword-belt that bears his name, lawyers
have been conspicuous amongst the best dressed men of their times. For
many generations clerical discipline restrained the members of the bar
from garments of lavish costliness and various colors, unless high rank
and personal influence placed them above the fear of censure and
punishment; but as soon as the law became a lay-profession, its
members--especially those who were still young--eagerly seized the
newest fashions of costume, and expended so much time and money on
personal decoration, that the governors of the Inns deemed it expedient
to make rules, with a view to check the inordinate love of gay apparel.
By these enactments, foppish modes of dressing the hair was
discountenanced or forbidden, not less than the use of gaudy clothes and
bright arms. Some of these regulations have a quaint air to readers of
this generation; and as indications of manners in past times, they
deserve attention.
From Dugdale's 'Origines Juridiciales,' it appears that in the earlier
part of Henry VIII.'s reign, the students and barristers of the Inns
were allowed great licence in settling for themselves minor points of
costume; but before that paternal monarch died, this freedom was
lessened. Accepting the statements of a previous chronicler, Dugdale
observes of the members of the Middle Temple under Henry--"They have no
order for their apparell; but every man may go as him listeth, so that
his apparell pretend no lightness or wantonness in the wearer; for, even
as his apparell doth shew him to be, even so he shall be esteemed among
them." But at the period when this licence was permitted in respect of
costume, the general discipline of the Inn was scandalously lax; the
very next paragraph of the 'Origines' showing that the templars forbore
to shut their gates at night, whereby "their chambers were oftentimes
robbed, and many other misdemeanors used."
But measures were taken to rectify the abuses and evil manners of the
schools. In the thirty-eighth year of Henry VIII. an order was made
"that the gentlemen of this company" (_i.e._, the Inner Temple) "should
reform themselves in their cut or disguised apparel, and not to have
long beards. And that the Treasurer of this society should confer with
the other Treasurers of Court for an uniform reformation." The
authorities of Lincoln's Inn had already bestirred themselves to reduce
the extravagances of dress and toilet which marked their younger and
more frivolous fellow-members. "And for decency in Apparel," writes
Dugdale, concerning Lincoln's Inn, "at a council held on the day of the
Nativity of St. John the Baptist, 23 Hen. VIII. it was ordered that for
a continual rule, to be thenceforth kept in this house, no gentleman,
being a fellow of this house, should wear any cut or pansid hose, or
bryches; or pansid doublet, upon pain of putting out of the house."
Ten years later the authorities of Lincoln's Inn (33 Hen. VIII.) ordered
that no member of the society "being in commons, or at his repast,
should wear a beard; and whoso did, to pay double commons or repasts in
this house during such time as he should have any beard."
By an order of 5 Maii, 1 and 2 Philip and Mary, the gentlemen of the
Inner Temple were forbidden to wear long beards, no member of the
society being permitted to wear a beard of more than three weeks'
growth. Every breach of this law was punished by the heavy fine of
twenty shillings. In 4 and 5 of Philip and Mary it was ordered that no
member of the Middle Temple "should thenceforth wear any great bryches
in their hoses, made after the Dutch, Spanish, or Almon fashion; or
lawnde upon their capps; or cut doublets, upon pain of iiis iiiid
forfaiture for the first default, and the second time to be expelled the
house." At Lincoln's Inn, "in 1 and 2 Philip and Mary, one Mr Wyde, of
this house, was (by special order made upon Ascension day) fined at five
groats, for going in his study gown in Cheapside, on a Sunday, about ten
o'clock before noon; and in Westminister Hall, in the Term time, in the
forenoon." Mr. Wyde's offence was one of remissness rather than of
excessive care for his personal appearance. With regard to beards in the
same reign Lincoln's Inn exacted that such members "as had beards should
pay 12_d._ for every meal they continued them; and every man" was
required "to be shaven upon pain of putting out of commons."
The orders made under Elizabeth with regard to the same or similar
matters are even more humorous and diverse. At the Inner Temple "it was
ordered in 36 Elizabeth (16 Junii), that if any fellow in commons, or
lying in the Louse, did wear either hat or cloak in the Temple Church,
hall, buttry, kitchen, or at the buttry-barr, dresser, or in the garden,
he should forfeit for every such offence vis viiid. And in 42 Eliz. (8
Febr.) that they go not in cloaks, hatts, bootes, and spurs into the
city, but when they ride out of the town." This order was most
displeasing to the young men of the legal academies, who were given to
swaggering amongst the brave gallants of city ordinaries, and delighted
in showing their rich attire at Paul's. The Templar of the Inner Temple
who ventured to wear arms (except his dagger) in hall committed a grave
offence, and was fined five pounds. "No fellow of this house should come
into the hall" it was enacted at the Inner Temple, 38 Eliz. (20 Dec.)
"with any weapons, except his dagger, or his knife, upon pain of
forfeiting the sum of five pounds." In old time the lawyers often
quarrelled and drew swords in hall; and the object of this regulation
doubtless was to diminish the number of scandalous affrays. The Middle
Temple, in 26 Eliz., made six prohibitory rules with regard to apparel,
enacting, "1. That no ruff should be worn. 2. Nor any White color in
doublets or hoses. 3. Nor any facing of velvet in gownes, but by such as
were of the bench. 4. That no gentleman should walk in the streets in
their cloaks, but in gownes. 5. That no hat, or long, or curled hair be
worn. 6. Nor any gown, but such as were of a sad color." Of similar
orders made at Gray's Inn, during Elizabeth's reign, the following edict
of 42 Eliz. (Feb. 11) may be taken as a specimen:--"That no gentleman of
this society do come into the hall, to any meal, with their hats, boots,
or spurs; but with their caps, decently and orderly, according to the
ancient order of this house: upon pain, for every offence, to forfeit
iiis 4d, and for the third offence expulsion. Likewise, that no
gentleman of this society do go into the city, or suburbs, or to walk in
the Fields, otherwise than in his gown, according to the ancient usage
of the gentlemen of the Inns of Court, upon penalty of iiis iiiid for
every offence; and for the third, expulsion and loss of his chamber."
At Lincoln's Inn it was enacted, "in 38 Eliz., that if any Fellow of
this House, being a commoner or repaster, should within the precinct of
this house wear any cloak, boots and spurs, or long hair, he should pay
for every offence five shillings for a fine, and also to be put out of
commons." The attempt to put down beards at Lincoln's Inn failed.
Dugdale says, in his notes on that Inn, "And in 1 Eliz. it was further
ordered, that no fellow of this house should wear any beard above a
fortnight's growth; and that whoso transgresses therein should for the
first offence forfeit 3_s._ 4d., to be paid and cast with his commons;
and for the second time 6_s_ 8d., in like manner to be paid and cast with
his commons; and the third time to be banished the house. But the
fashion at that time of wearing beards grew then so predominant, as that
the very next year following, at a council held at this house, upon the
27th of November, it was agreed and ordered, that all orders before that
time touching beards should be void and repealed." In the same year in
which the authorities of Lincoln's Inn forbade the wearing of beards,
they ordered that no fellow of their society "should wear any sword or
buckler; or cause any to be born after him into the town." This was the
first of the seven orders made in 1 Eliz. for _all_ the Inns of Court;
of which orders the sixth runs thus:--"That none should wear any velvet
upper cap, neither in the house nor city. And that none after the first
day of January then ensuing, should wear any furs, nor any manner of
silk in their apparel, otherwise than he could justifie by the stature
of apparel, made _an._ 24 H. 8, under the penalty aforesaid." In the
eighth year of the following reign it was ordained at Lincoln's Inn
"that no rapier should be worn in this house by any of the society."
Other orders made in the reign of James I., and similar enactments
passed by the Inns in still more recent periods, can be readily found on
reference to Dugdale and later writers upon the usages of lawyers.
On such matters, however, fashion is all-powerful; and however grandly
the benchers of an Inn might talk in their council-chamber, they could
not prevail on their youngsters to eschew beards when beards were the
mode, or to crop the hair of their heads when long tresses were worn by
gallants at court. Even in the time of Elizabeth--when authority was
most anxious that utter-barristers should in matters of costume maintain
that reputation for 'sadness' which is the proverbial characteristic of
apprentices of the law--counsellors of various degrees were conspicuous
throughout the town for brave attire. If we had no other evidence
bearing on the point, knowledge of human nature would make us certain
that the bar imitated Lord Chancellor Hatton's costume. At Gray's Inn,
Francis Bacon was not singular in loving rich clothes, and running into
debt for satin and velvet, jewels and brocade, lace and feathers. Even
of that contemner of frivolous men and vain pursuits, Edward Coke,
biography assures us, "The jewel of his mind was put into a fair case, a
beautiful body with comely countenance; a case which he did wipe and
keep clean, delighting in good clothes, well worn; being wont to say
that the outward neatness of our bodies might be a monitor of purity to
our souls."
The courts of James I. and his son drew some of their most splendid fops
from the multitude of young men who were enjoined by the elders of their
profession to adhere to a costume that was a compromise between the garb
of an Oxford scholar and the guise of a London 'prentice. The same was
the case with Charles II.'s London. Students and barristers outshone the
brightest idlers at Whitehall, whilst within the walls of their Inns
benchers still made a faint show of enforcing old restrictions upon
costume. At a time when every Templar in society wore hair--either
natural or artificial--long and elaborately dressed, Sir William Dugdale
wrote, "To the office of the chief butler" (_i.e._, of the Middle
Temple) "it likewise appertaineth to take the names of those that be
absent at the said solemn revells, and to present them to the bench, as
also inform the bench of such as wear hats, bootes, _long hair_, or the
like (for the which he is commonly out of the young gentlemen's favor)."
CHAPTER XX.
MILLINERY.
Saith Sir William Dugdale, in his chapter concerning the personal attire
of judges--"That peculiar and decent vestments have, from great
antiquity, been used in religious services, we have the authority of
God's sacred precept to Moses, '_Thou shall make holy rayments for Aaron
and his sons, that are to minister unto me, that they may be for glory
and beauty_.'" In this light and flippant age there are men irreverent
enough to smile at the habiliments which our judges wear in court, for
the glory of God and the seemly embellishment of their own natural
beauty.
Like the stuff-gown of the utter-barrister, the robes of English judges
are of considerable antiquity; but antiquaries labor in vain to discover
all the facts relating to their origin and history. Mr. Foss says that
at the Stuart Restoration English judges resumed the robes worn by their
predecessors since the time of Edward I.; but though the judicial robes
of the present day bear a close resemblance to the vestments worn by
that king's judges, the costume of the bench has undergone many
variations since the twentieth year of his reign.
In the eleventh year of Richard II. a distinction was made between the
costumes of the chiefs of the King's Bench and Common Pleas and their
assistant justices; and at the same time the Chief Baron's inferiority
to the Chief Justices was marked by costume.
Henry VI.'s Chief Justice of the King's Bench, Sir John Fortescue, in
his delightful treatise 'De Laudibus Legum Angliae,' describes the
ceremony attending the creation of a justice, and minutely sets forth
the chief items of judicial costume in the Bench and Common Pleas during
his time. "Howbeit," runs Robert Mulcaster's rendering of the 'De
Laudibus,' "the habite of his rayment, hee shall from time to time
forwarde, in some pointes change, but not in all the ensignments
thereof. For beeing serjeaunt at lawe, hee was clothed in a long robe
priestlyke, with a furred cape about his shoulders, and thereupon a
hoode with two labels such as Doctours of the Lawes use to weare in
certayne universityes, with the above described quoyfe. But being once
made a justice, in steede of his hoode, hee shall weare a cloake cloased
upon his righte shoulder, all the other ornaments of a serjeant still
remayning; sauing that a justyce shall weare no partye coloured vesture
as a serjeant may. And his cape is furred with none other than menever,
whereas the serjeant's cape is ever furred with whyte lambe."
Judicial costume varied with the fashion of the day or the whim of the
sovereign in the fourteenth and fifteenth centuries. Subsequent
generations saw the introduction of other changes; and in the time of
Charles I. questions relating to the attire of the common law judges
were involved in so much doubt, and surrounded with so many
contradictory precedents and traditions, that the judges resolved to
simplify matters by conference and unanimous action. The result of their
deliberation was a decree, dated June 6, 1635, to which Sir John
Bramston, Chief of the King's Bench, Sir John Finch, Chief of the Common
Pleas, Sir Humphrey Davenport, Chief of the Exchequer, and all the minor
judges of the three courts, gave subscription.
CHAPTER XXI.
WIGS.
The changes effected in judicial costume during the Commonwealth, like
the reformation introduced at the same period into the language of the
law, were all reversed in 1660, when Charles II.'s judges resumed the
attire and usages of their predecessors in the first Charles's reign.
When he had satisfied himself that monarchical principles were sure of
an enduring triumph, and that their victory would conduce to his own
advantage, great was young Samuel Pepys's delight at seeing the ancient
customs of the lawyers restored, one after another. In October, 1660, he
had the pleasure of seeing "the Lord Chancellor and all the judges
riding on horseback, and going to Westminster Hall, it being the first
day of term." In the February of 1663-4 his eyes were gladdened by the
revival of another old practice. "28th (Lord's Day). Up and walked to
St. Paul's," he writes, "and, by chance, it was an extraordinary day for
the Readers of Inns of the Court and all the Students to come to church,
it being an old ceremony not used these twenty-five years, upon the
first Sunday in Lent. Abundance there was of students, more than there
was room to seat but upon forms, and the church mighty full. One Hawkins
preached, an Oxford man, a good sermon upon these words, 'But the wisdom
from above is first pure, then peaceable.'" Hawkins was no doubt a
humorist, and smiled in the sleeve of his Oxford gown as he told the
law-students that _peace_ characterized the highest sort of _wisdom_.
But, notwithstanding their zeal in reviving old customs, the lawyers of
the Restoration introduced certain novelties into legal life. From Paris
they imported the wig which still remains one of the distinctive
adornments of the English barrister; and from the same centre of
civilization they introduced certain refinements of cookery, which had
been hitherto unknown in the taverns of Fleet Street and the Strand. In
the earlier part of the 'merry monarch's' reign, the eating-house most
popular with young barristers and law-students was kept by a French cook
named Chattelin, who, besides entertaining his customers with delicate
fare and choice wine, enriched our language with the word 'cutlet'--in
his day spelt costelet.
In the seventeenth century, until wigs were generally adopted, the
common law judges, like their precursors for several past generations,
wore in court velvet caps, coifs, and cornered caps. Pictures preserve
to us the appearance of justices, with their heads covered by one or two
of these articles of dress, the moustache in many instances adorning the
lip, and a well-trimmed beard giving point to the judicial chin. The
more common head-dress was the coif and coif-cap, of which it is
necessary to say a few words.
The coif was a covering for the head, made of white lawn or silk, and
common law judges wore it as a sign that they were members of the
learned brotherhood of sergeants. Speaking of the sergeants, Fortescue,
in his 'De Laudibus,' says--"Wherefore to this state and degree hath no
man beene hitherto admitted, except he hath first continued by the space
of sixteene years in the said generall studio of the law, and in token
or signe, that all justices are thus graduat, every one of them alwaies,
while he sitteth in the Kinge's Courts, weareth a white quoyfe of silke;
which is the principal and chiefe insignment of habite, wherewith
serjeants-at-lawe in their creation are decked. And neither the justice,
nor yet the serjeaunt, shall ever put off the quoyfe, no not in the
kinge's presence, though he bee in talke with his majestie's highnesse."
At times it was no easy matter to take the coif from the head; for the
white drapery was fixed to its place with strings, which in the case of
one notorious rascal were not untied without difficulty. In Henry III.'s
reign, when William de Bossy was charged in open court with corruption
and dishonesty, he claimed the benefit of clerical orders, and
endeavored to remove his coif in order that he might display his
tonsure; but before he could effect his purpose, an officer of the court
seized him by the throat and dragged him off to prison. "Voluit," says
Matthew Paris, "ligamenta coifae suae solvere, ut, palam monstraret se
tonsuram habere clericalem; sed non est permissus. Satelles vero eum
arripiens, non per coifae ligamina sed per guttur eum apprehendens,
traxit ad carcerem." From which occurrence Spelman drew the untenable,
and indeed, ridiculous inference, that the coif was introduced as a
veil, beneath which ecclesiastics who wished to practice as judges or
counsel in the secular courts, might conceal the personal mark of their
order.
The coif-cap is still worn in undiminished proportions by judges when
they pass sentence of death, and is generally known as the 'black cap.'
In old time the justice, on making ready to pronounce the awful words
which consigned a fellow-creature to a horrible death, was wont to draw
up the flat, square, dark cap, that sometimes hung at the nape of his
neck or the upper part of his shoulder. Having covered the whiteness of
his coif, and partially concealed his forehead and brows with the sable
cloth, he proceeded to utter the dread sentence with solemn composure
and firmness. At present the black cap is assumed to strike terror into
the hearts of the vulgar; formerly it was pulled over the eyes, to hide
the emotion of the judge.
Shorn of their original size, the coif and the coif-cap may still be
seen in the wigs worn by sergeants at the present day. The black blot
which marks the crown of a sergeant's wig is generally spoken of as his
coif, but this designation is erroneous. The black blot is the coif-cap;
and those who wish to see the veritable coif must take a near view of
the wig, when they will see that between the black silk and the
horsehair there lies a circular piece of white lawn, which is the
vestige of that pure raiment so reverentially mentioned by Fortescue. On
the general adoption of wigs, the sergeants, like the rest of the bar,
followed in the wake of fashion: but at first they wore their old coifs
and caps over their false hair. Finding this plan cumbersome, they
gradually diminished the size of the ancient covering, until the coif
and cap became the absurd thing which resembles a bald place covered
with court-plaster quite as much as the rest of the wig resembles human
hair.
Whilst the common law judges of the seventeenth century, before the
introduction of wigs, wore the undiminished coif and coif-cap, the Lord
Chancellor, like the Speaker of the House of Commons, wore a hat. Lord
Keeper Williams, the last clerical holder of the seals, used to wear in
the Court of Chancery a round, conical hat. Bradshaw, sitting as
president of the commissioners who tried Charles I., wore a hat instead
of the coif and cap which he donned at other times as a serjeant of law.
Kennett tells us that "Mr. Sergeant Bradshaw, the President, was afraid
of some tumult upon such new and unprecedented insolence as that of
sitting judge upon his king; and therefore, beside other defence, he had
a thick big-crowned beaver hat, lined with plated steel, to ward off
blows." It is scarcely credible that Bradshaw resorted to such means for
securing his own safety, for in the case of a tumult, a hat, however
strong, would have been an insignificant protection against popular
fury. If conspirators had resolved to take his life, they would have
tried to effect their purpose by shooting or stabbing him, not by
knocking him on the head. A steel-plated hat would have been but a poor
guard against a bludgeon, and a still poorer defence against poignard or
pistol. It is far more probable that in laying aside the ordinary
head-dress of an English common law judge, and in assuming a
high-crowned hat, the usual covering of a Speaker, Bradshaw endeavored
to mark the exceptional character of the proceeding, and to remind the
public that he acted under parliamentary sanction. Whatever the wearer's
object, England was satisfied that he had a notable purpose, and
persisted in regarding the act as significant of cowardice or of
insolence, of anxiety to keep within the lines of parliamentary
privilege or of readiness to set all law at defiance. At the time and
long after Bradshaw's death, that hat caused an abundance of discussion;
it was a problem which men tried in vain to solve, an enigma that
puzzled clever heads, a riddle that was interpreted as an insult, a
caution, a protest, a menace, a doubt. Oxford honored it with a Latin
inscription, and a place amongst the curiosities of the university, and
its memory is preserved to Englishmen of the present day in the familiar
lines--
"Where England's monarch once uncovered sat,
And Bradshaw bullied in a broad-brimmed hat."
Judges were by no means unanimous with regard to the adoption of wigs,
some of them obstinately refusing to disfigure themselves with false
tresses, and others displaying a foppish delight in the new decoration.
Sir Matthew Hale, who died in 1676, to the last steadily refused to
decorate himself with artificial locks. The likeness of the Chief
Justice that forms the frontispiece to Burnet's memoir of the lawyer,
represents him in his judicial robes, wearing his SS collar, and having
on his head a cap--not the coif-cap, but one of the close-fitting
skull-caps worn by judges in the seventeenth century. Such skull-caps,
it has been observed in a prior page of this work, were worn by
barristers under their wigs, and country gentlemen at home, during the
last century. Into such caps readers have seen Sir Francis North put his
fees. The portrait of Sir Cresswell Levinz (who returned to the bar on
dismissal from the bench in 1686) shows that he wore a full-bottomed wig
whilst he was a judge; whereas Sir Thomas Street, who remained a judge
till the close of James II.'s reign, wore his own hair and a coif-cap.
When Shaftesbury sat in court as Lord High Chancellor of England he wore
a hat, which Roger North is charitable enough to think might have been a
black hat. "His lordship," says the 'Examen,' "regarded censure so
little, that he did not concern himself to use a decent habit as became
a judge of his station; for he sat upon the bench in an ash-colored gown
silver-laced, and full-ribboned pantaloons displayed, without any black
at all in his garb, unless it were his hat, which, now, I cannot
positively say, though I saw him, was so."
Even so late as Queen Anne's reign, which witnessed the introduction of
three-cornered hats, a Lord Keeper wore his own hair in court instead
of a wig, until he received the sovereign's order to adopt the venerable
disguise of a full-bottomed wig. Lady Sarah Cowper recorded of her
father, 1705:--"The queen after this was persuaded to trust a Whigg
ministry, and in the year 1705, Octr., she made my father Ld. Keeper of
the Great Seal, in the 41st year of his age--'tis said the youngest Lord
Keeper that ever had been. He looked very young, and wearing his own
hair made him appear yet more so, which the queen observing, obliged him
to cut it off, telling him the world would say she had given the seals
to a boy."
The young Lord Keeper of course obeyed; and when he appeared for the
first time at court in a wig, his aspect was so grave and reverend that
the queen had to look at him twice before she recognized him. More than
half a century later, George II. experienced a similar difficulty, when
Lord Hardwicke, after the close of his long period of official service,
showed himself at court in a plain suit of black velvet, with a bag and
sword. Familiar with the appearance of the Chancellor dressed in
full-bottomed wig and robes, the king failed to detect his old friend
and servant in the elderly gentleman who, in the garb of a private
person of quality, advanced and rendered due obeisance. "Sir, it is Lord
Hardwicke," whispered a lord in waiting who stood near His Majesty's
person, and saw the cause of the cold reception given to the
ex-Chancellor. But unfortunately the king was not more familiar with the
ex-Chancellor's title than his appearance, and in a disastrous endeavor
to be affable inquired, with an affectation of interest, "How long has
your lordship been in town?" The peer's surprise and chagrin were great
until the monarch, having received further instruction from the courtly
prompter at his elbow, frankly apologized in bad English and with noisy
laughter. "Had Lord Hardwicke," says Campbell, "worn such a uniform as
that invented by George IV. for ex-Chancellors (very much like a Field
Marshal's), he could not have been mistaken for a common man."
The judges who at the first introduction of wigs refused to adopt them
were prone to express their dissatisfaction with those coxcombical
contrivances when exhibited upon the heads of counsel; and for some
years prudent juniors, anxious to win the favorable opinion of anti-wig
justices, declined to obey the growing fashion. Chief Justice Hale, a
notable sloven, conspicuous amongst common law judges for the meanness
of his attire, just as Shaftesbury was conspicuous in the Court of
Chancery for foppishness, cherished lively animosity for two sorts of
legal practitioners--attorneys who wore swords, and young Templars who
adorned themselves with periwigs. Bishop Burnet says of Hale: "He was a
great encourager of all young persons that he saw followed their books
diligently, to whom he used to give directions concerning the method of
their study, with a humanity and sweetness that wrought much on all that
came near him; and in a smiling, pleasant way he would admonish them, if
he saw anything amiss in them; particularly if they went too fine in
their clothes, he would tell them it did not become their profession. He
was not pleased to see students wear long periwigs, or attorneys go with
swords, so that such men as would not be persuaded to part with those
vanities, when they went to him laid them aside and went as plain as
they could, to avoid the reproof which they knew they might otherwise
expect." In England, however, barristers almost universally wore wigs at
the close of the seventeenth century; but north of the Tweed advocates
wore cocked hats and powdered hair so late as the middle of the
eighteenth century. When Alexander Wedderburn joined the Scotch bar in
1754, wigs had not come into vogue with the members of his profession.
Many are the good stories told of judicial wigs, and amongst the best of
them, is the anecdote which that malicious talker Samuel Rogers
delighted to tell at Edward Law's expense. "Lord Ellenborough," says the
'Table-Talk,' "was once about to go on circuit, when Lady Ellenborough
said that she should like to accompany him. He replied that he had no
objection provided she did not encumber the carriage with bandboxes,
which were his utter abhorrence. During the first day's journey Lord
Ellenborough, happening to stretch his legs, struck his foot against
something below the seat; he discovered that it was a bandbox. Up went
the window, and out went the bandbox. The coachman stopped, and the
footman, thinking that the bandbox had tumbled out of the window by some
extraordinary chance, was going to pick it up, when Lord Ellenborough
furiously called out, 'Drive on!' The bandbox, accordingly, was left by
the ditch-side. Having reached the county town where he was to officiate
as judge, Lord Ellenborough proceeded to array himself for his
appearance in the court-house. 'Now,' said he, 'where's my wig?--where
_is_ my wig?' 'My lord,' replied his attendant, 'it was thrown out of
the carriage window!'"
Changing together with fashion, barristers ceased to wear their wigs in
society as soon as the gallants and bucks of the West End began to
appear with their natural tresses in theatres and ball rooms; but the
conservative genius of the law has hitherto triumphed over the attempts
of eminent advocates to throw the wig out of Westminster Hall. When Lord
Campbell argued the great Privilege case, he obtained permission to
appear without a wig; but this concession to a counsel--who, on that
occasion, spoke for sixteen hours--was accompanied with an intimation
that "it was not to be drawn into precedent."
Less wise or less fortunate than the bar, the judges of England wore
their wigs in society after advocates of all ranks and degrees had
agreed to lay aside the professional head-gear during hours of
relaxation. Lady Eldon's good taste and care for her husband's comfort,
induced Lord Eldon, soon after his elevation to the pillow of the Common
Pleas, to beg the king's permission that he might put off his judicial
wig on leaving the courts, in which as Chief Justice he would be
required to preside. The petition did not meet with a favorable
reception. For a minute George III. hesitated; whereupon Eldon supported
his prayer by observing, with the fervor of an old-fashioned Tory, that
the lawyer's wig was a detestable innovation--unknown in the days of
James I. and Charles the Martyr, the judges of which two monarchs would
have rejected as an insult any proposal that they should assume a
head-dress fit only for madmen at masquerades or mummers at country
wakes. "What! what!" cried the king, sharply; and then, smiling
mischievously, as he suddenly saw a good answer to the plausible
argument, he added--"True, my lord, Charles the First's judges wore no
wigs, but they wore beards. You may do the same, if you like. You may
please yourself about wearing or not wearing your wig; but mind, if you
please yourself by imitating the old judges, as to the head--you must
please me by imitating them as to the chin. You may lay aside your wig;
but if you do--you must wear a beard." Had he lived in these days, when
barristers occasionally wear beards in court, and judges are not less
conspicuous than the junior bar for magnitude of nose and whisker, Eldon
would have accepted the condition. But the last year of the last
century, was the very centre and core of that time which may be called
the period of close shavers; and John Scott, the decorous and
respectable, would have endured martyrdom rather than have grown a
beard, or have allowed his whiskers to exceed the limits of mutton-chop
whiskers.
As Chief Justice of the Common Pleas, and subsequently as Chancellor,
Eldon wore his wig whenever he appeared in general society; but in the
privacy of his own house he gratified Lady Eldon by laying aside the
official head-gear. That this was his usage, the gossips of the
law-courts knew well; and at Carlton House, when the Prince of Wales was
most indignant with the Chancellor, who subsequently became his familiar
friend, courtiers were wont to soothe the royal rage with diverting
anecdotes of the attention which the odious lawyer lavished on the
natural hair that gave his Bessie so much delight. On one occasion, when
Eldon was firmly supporting the cause of the Princess of Wales, 'the
first gentleman of Europe' forgot common decency so far, that he made a
jeering allusion to this instance of the Chancellor's domestic
amiability. "I am not the sort of person," growled the prince with an
outbreak of peevishness, "to let my hair grow under my wig to please my
wife." With becoming dignity Eldon answered--"Your Royal Highness
condescends to be personal. I beg leave to withdraw;" and suiting his
action to his words, the Chancellor made a low bow to the angry prince,
and retired. The prince sneaked out of the position by an untruth,
instead of an apology. On the following day he caused a written
assurance to be conveyed to the Chancellor, that the offensive speech
"was nothing personal, but simply a proverb--a proverbial way of saying
a man was governed by his wife." It is needless to say that the
expression was not proverbial, but distinctly and grossly personal. Lord
Malmesbury's comment on this affair is "Very absurd of Lord Eldon; but
explained by his having literally done what the prince said." Lord
Eldon's conduct absurd! What was the prince's?
CHAPTER XXII.
BANDS AND COLLARS.
Bands came into fashion with Englishmen many years before wigs, but like
wigs they were worn in general society before they became a recognized
and distinctive feature of professional costume. Ladies of rank dyed
their hair, and wore false tresses in Elizabethan England; but their
example was not extensively followed by the men of their time--although
the courtiers of the period sometimes donned 'periwinkes,' to the
extreme disgust of the multitude, and the less stormy disapprobation of
the polite. The frequency with which bands are mentioned in Elizabethan
literature, affords conclusive evidence that they were much worn toward
the close of the sixteenth century; and it is also matter of certainty
that they were known in England at a still earlier period. Henry VIII.
had "4 shirte bands of silver with ruffes to the same, whereof one was
perled with golde;" and in 1638 Peacham observed, "King Henry VIII. was
the first that ever wore a band about his neck, and that very plain,
without lace, and about an inch or two in depth. We may see how the case
is altered, he is not a gentleman, or in the fashion, whose band of
Italian cutwork standeth him not at the least in three or four pounds;
yea, a sempster in Holborn told me there are of threescore pound price
apiece." That the fops of Charles I.'s reign were spending money on a
fashion originally set by King Henry the Bluff, was the opinion also of
Taylor the Water Poet, who in 1630 wrote--
"Now up alofte I mount unto the ruffe,
Which into foolish mortals pride doth puffe;
Yet ruffes' antiquity is here but small--
Within this eighty years not one at all;
For the Eighth Henry (so I understand)
Was the first king that ever wore a _band_;
And but a _falling-band_, plaine with a hem;
All other people knew no use of them.
Yet imitation in small time began
To grow, that it the kingdom overran;
The little falling-bands encreased to ruffes,
Ruffes (growing great) were waited on by cuffes,
And though our frailties should awake our care,
We make our ruffes as careless as we are."
In regarding the falling-band as the germ of the ruff, the Water-Poet
differs from those writers who, with greater appearance of reason,
maintain that the ruff was the parent of the band. Into this question
concerning origin of species, there is no occasion to enter on the
present occasion. It is enough to state that in the earlier part of the
seventeenth century bands or collars--bands stiffened and standing at
the backward part, and bands falling upon the shoulder and breast--were
articles of costume upon which men of expensive and modish habits spent
large sums.
In the days of James I., when standing bands were still the fashion, and
falling-bands had not come in, the Inns of Court men were very
particular about the stiffness, cut, and texture of their collars.
Speaking of the Inns of Court men, Sir Thomas Overbury, (who was
poisoned in 1613), says: "He laughs at every man whose band sits not
well, or that hath not a fair shoe-type, and is ashamed to be in any
man's company who wears not his cloathes well."
If portraits may be trusted, the falling-band of Charles I.'s time, bore
considerable resemblance to the falling neck-frill, which twenty years
since was very generally worn by quite little boys, and is still sometimes
seen on urchins who are about six years of age. The bands worn by the
barristers and clergy of our own time are modifications of this antique
falling-band, and like the coif cap of the modern sergeant, they bear
only a faint likeness to their originals. But though bands--longer than
those still worn by clergymen--have come to be a distinctive feature of
legal costume, the bar was slow to adopt falling-collars--regarding them
as a strange and fanciful innovation. Whitelock's personal narrative
furnishes pleasant testimony that the younger gentry of Charles I.'s
England adopted the new collar before the working lawyers.
"At the Quarter-Sessions of Oxford," says Whitelock, speaking of the
year 1635, when he was only thirty years of age, "I was put into the
chair in court, though I was in colored clothes, a sword by my side, and
a falling-band, which was unusual for lawyers in those days, and in this
garb I gave the charge to the Grand Jury. I took occasion to enlarge on
the point of jurisdiction in the temporal courts in matters
ecclesiastical, and the antiquity thereof, which I did the rather
because the spiritual men began in those days to swell higher than
ordinary, and to take it as an injury to the Church that anything
savoring of the spirituality, should be within the cognisance of
ignorant laymen. The gentlemen and freeholders seemed well pleased with
my charge, and the management of the business of the sessions; and said
they perceived one might speak as good sense in a falling-band as in a
ruff." At this time Whitelock had been about seven years at the bar; but
at the Quarter-Sessions the young Templar was playing the part of
country squire, and as his words show, he was dressed in a fashion that
directly violated professional usage.
Whitelock's speech seems to have been made shortly before the bar
accepted the falling-band as an article of dress admissible in courts of
law. Towards the close of Charles's reign, such bands were very
generally worn in Westminster Hall by the gentlemen of the long robe;
and after the Restoration, a barrister would as soon have thought of
appearing at the King's Bench without his gown as without his band.
Unlike the bar-bands of the present time--which are lappets of fine
lawn, of simple make--the bands worn by Charles II.'s lawyers were
dainty and expensive articles, such as those which Peacham exclaimed
against in the preceding reign. At that date the Templar in prosperous
circumstances had his bands made entirely of point lace, or of fine lawn
edged with point lace; and as he wore them in society as well as in
court, he was constantly requiring a fresh supply of them. Few accidents
were more likely to ruffle a Templar's equanimity than a mishap to his
band occurring through his own inadvertence or carelessness on the part
of a servant. At table the pieces of delicate lace-work were exposed to
many dangers. Continually were they stained with wine or soiled with
gravy, and the young lawyer was deemed a marvel of amiability who could
see his point lace thus defiled and abstain from swearing. "I remember,"
observes Roger North, when he is showing the perfect control in which
his brother Francis kept his temper, at his table a stupid servant spilt
a glass of red wine upon his point band and clothes. "He only wiped his
face and clothes with the napkin, and 'Here,' said he, 'take this away;'
and no more."
In 'The London Spy,' Ned Ward shows that during Queen Anne's reign legal
practitioners of the lowest sort were particular to wear bands.
Describing the pettifogger, Ward says, "He always talks with as great
assurance as if he understood what he pretends to know; and always wears
a band, in which lies his gravity and wisdom." At the same period a
brisk trade was carried on in Westminster Hall by the sempstresses who
manufactured bands and cuffs, lace ruffles, and lawn kerchiefs for the
grave counsellors and young gallants of the Inns of Court. "From
thence," says the author of 'The London Spy', "we walked down by the
sempstresses, who were very nicely digitising and pleating turnsovers
and ruffles for the young students, and coaxing them with amorous looks,
obliging cant, and inviting gestures, to give so extravagant a price for
what they buy."
From collars of lace and lawn, let us turn to collars of precious metal.
Antiquarians have unanimously rejected the fanciful legend adopted by
Dugdale concerning the SS collar, as well as many not less ingenious
interpretations of the mystic letters; and at the present time it is
almost unanimously settled that the SS collar is the old Lancastrian
badge, corresponding to the Yorkist collar of Roses and Suns, and that
the S is either the initial of the sentimental word 'Souvenez,' or, as
Mr. Beltz maintains, the initial letter of the sentimental motto,
'Souvenez-vous de moi.' In Mr. Foss's valuable work, 'The Judges of
England,' at the commencement of the seventh volume, the curious reader
may find an excellent summary of all that has been or can be said about
the origin of this piece of feudal livery, which, having at one time
been very generally assumed by all gentle and fairly prosperous
partisans of the House of Lancaster, has for many generations been the
distinctive badge of a few official persons. In the second year of Henry
IV. an ordinance forbade knights and Esquires to wear the collar, save
in the king's presence; and in the reign of Henry VIII., the privilege
of wearing the collar was taken away from simple esquires by the 'Acte
for Reformacyon of Excesse in Apparayle,' 24 Henry VIII. c. 13, which
ordained "That no man oneless he be a knight ... weare any color of
Gold, named a color of S." Gradually knights and non-official persons
relinquished the decoration; and in our own day the right to bear it is
restricted to the two Chief Justices, the Chief Baron, the
sergeant-trumpetor, and all the officers of the Heralds' College,
pursuivants excepted; "unless," adds Mr. Foss, "the Lord Mayor of London
is to be included, whose collar is somewhat similar, and is composed of
twenty-eight SS, fourteen roses, thirteen knots; and measures sixty-four
inches."
CHAPTER XXIII.
BAGS AND GOWNS.