Mr. Dove's Opinion
Mr. Thomas Dove, familiarly known among club-men, attorneys' clerks,
and, perhaps, even among judges when very far from their seats of
judgment, as Turtle Dove, was a counsel learned in the law. He was a
counsel so learned in the law, that there was no question within the
limits of an attorney's capability of putting to him, that he could
not answer with the aid of his books. And when he had once given
an opinion, all Westminster could not move him from it,--nor could
Chancery Lane and Lincoln's Inn and the Temple added to Westminster.
When Mr. Dove had once been positive, no man on earth was more
positive. It behoved him, therefore, to be right when he was
positive; and though whether wrong or right he was equally stubborn,
it must be acknowledged that he was seldom proved to be wrong.
Consequently the attorneys believed in him, and he prospered. He was
a thin man, over fifty years of age, very full of scorn and wrath,
impatient of a fool, and thinking most men to be fools; afraid of
nothing on earth,--and, so his enemies said, of nothing elsewhere;
eaten up by conceit; fond of law, but fonder, perhaps, of dominion;
soft as milk to those who acknowledged his power, but a tyrant
to all who contested it; conscientious, thoughtful, sarcastic,
bright-witted, and laborious. He was a man who never spared himself.
If he had a case in hand, though the interest to himself in it was
almost nothing, he would rob himself of rest for a week should a
point arise which required such labour. It was the theory of Mr.
Dove's life that he would never be beaten. Perhaps it was some fear
in this respect that had kept him from Parliament and confined him to
the courts and the company of attorneys. He was, in truth, a married
man with a family; but they who knew him as the terror of opponents
and as the divulger of legal opinions, heard nothing of his wife and
children. He kept all such matters quite to himself, and was not
given to much social intercourse with those among whom his work lay.
Out at Streatham, where he lived, Mrs. Dove probably had her circle
of acquaintance;--but Mr. Dove's domestic life and his forensic life
were kept quite separate.
At the present moment Mr. Dove is interesting to us solely as being
the learned counsel in whom Mr. Camperdown trusted,--to whom Mr.
Camperdown was willing to trust for an opinion in so grave a matter
as that of the Eustace diamonds. A case was made out and submitted
to Mr. Dove immediately after that scene on the pavement in Mount
Street, at which Mr. Camperdown had endeavoured to induce Lizzie to
give up the necklace; and the following is the opinion which Mr. Dove
gave:--
There is much error about heirlooms. Many think that
any chattel may be made an heirloom by any owner of it.
This is not the case. The law, however, does recognise
heirlooms;--as to which the Exors. or Admors. are excluded
in favour of the Successor; and when there are such
heirlooms they go to the heir by special custom. Any
devise of an heirloom is necessarily void, for the will
takes place after death, and the heirloom is already
vested in the heir by custom. We have it from Littleton,
that law prefers custom to devise.
Brooke says, that the best thing of every sort may be an
heirloom,--such as the best bed, the best table, the best
pot or pan.
Coke says, that heirlooms are so by custom, and not by
law.
Spelman says, in defining an heirloom, that it may be
"Omne utensil robustius;" which would exclude a necklace.
In the "Termes de Ley," it is defined as "Ascun parcel des
ustensiles."
We are told in "Coke upon Littleton," that Crown jewels
are heirlooms, which decision,--as far as it goes,--denies
the right to other jewels.
Certain chattels may undoubtedly be held and claimed as
being in the nature of heirlooms,--as swords, pennons of
honour, garter and collar of S. S. See case of the Earl
of Northumberland; and that of the Pusey horn,--Pusey v.
Pusey. The journals of the House of Lords, delivered
officially to peers, may be so claimed. See Upton v. Lord
Ferrers.
A devisor may clearly devise or limit the possession
of chattels, making them inalienable by devisees in
succession. But in such cases they will become the
absolute possession of the first person seized in
tail,--even though an infant, and in case of death without
will, would go to the Exors. Such arrangement, therefore,
can only hold good for lives in existence and for 21 years
afterwards. Chattels so secured would not be heirlooms.
See Carr v. Lord Errol, 14 Vesey, and Rowland v. Morgan.
Lord Eldon remarks, that such chattels held in families
are "rather favourites of the court." This was in the
Ormonde case. Executors, therefore, even when setting
aside any claim as for heirlooms, ought not to apply such
property in payment of debts unless obliged.
The law allows of claims for paraphernalia for widows,
and, having adjusted such claims, seems to show that the
claim may be limited.
If a man deliver cloth to his wife, and die, she shall
have it, though she had not fashioned it into the garment
intended.
Pearls and jewels, even though only worn on state
occasions, may go to the widow as paraphernalia,--but
with a limit. In the case of Lady Douglas, she being the
daughter of an Irish Earl and widow of the King's Sergeant
(temp. Car. I.), it was held that £370 was not too much,
and she was allowed a diamond and a pearl chain to that
value.
In 1674, Lord Keeper Finch declared that he would never
allow paraphernalia, except to the widow of a nobleman.
But in 1721 Lord Macclesfield gave Mistress Tipping
paraphernalia to the value of £200,--whether so persuaded
by law and precedent, or otherwise, may be uncertain.
Lord Talbot allowed a gold watch as paraphernalia.
Lord Hardwicke went much further, and decided that Mrs.
Northey was entitled to wear jewels to the value of
£3000,--saying that value made no difference; but seems to
have limited the nature of her possession in the jewels
by declaring her to be entitled to wear them only when
full-dressed.
It is, I think, clear that the Eustace estate cannot claim
the jewels as an heirloom. They are last mentioned, and,
as far as I know, only mentioned as an heirloom in the
will of the great-grandfather of the present baronet,--if
these be the diamonds then named by him. As such, he could
not have devised them to the present claimant, as he died
in 1820, and the present claimant is not yet two years
old.
Whether the widow could claim them as paraphernalia is
more doubtful. I do not know that Lord Hardwicke's ruling
would decide the case; but, if so, she would, I think,
be debarred from selling, as he limits the use of jewels
of lesser value than these to the wearing of them when
full-dressed. The use being limited, possession with power
of alienation cannot be intended.
The lady's claim to them as a gift from her husband
amounts to nothing. If they are not hers by will,--and it
seems that they are not so,--she can only hold them as
paraphernalia belonging to her station.
I presume it to be capable of proof that the diamonds were
not in Scotland when Sir Florian made his will or when he
died. The former fact might be used as tending to show his
intention when the will was made. I understand that he did
leave to his widow by will all the chattels in Portray
Castle.
J. D.
15 August, 18--.
When Mr. Camperdown had thrice read this opinion, he sat in his chair
an unhappy old man. It was undoubtedly the case that he had been
a lawyer for upwards of forty years, and had always believed that
any gentleman could make any article of value an heirloom in his
family. The title-deeds of vast estates had been confided to his
keeping, and he had had much to do with property of every kind;
and now he was told that, in reference to property of a certain
description,--property which, by its nature, could only belong to
such as they who were his clients,--he had been long without any
knowledge whatsoever. He had called this necklace an heirloom to John
Eustace above a score of times; and now he was told by Mr. Dove not
only that the necklace was not an heirloom, but that it couldn't have
been an heirloom. He was a man who trusted much in a barrister,--as
was natural with an attorney; but he was now almost inclined to doubt
Mr. Dove. And he was hardly more at ease in regard to the other
clauses of the opinion. Not only could not the estate claim the
necklace as an heirloom, but that greedy siren, that heartless snake,
that harpy of a widow,--for it was thus that Mr. Camperdown in his
solitude spoke to himself of poor Lizzie, perhaps throwing in a
harder word or two,--that female swindler could claim it
as--paraphernalia!
There was a crumb of comfort for him in the thought that he could
force her to claim that privilege from a decision of the Court of
Queen's Bench, and that her greed would be exposed should she do so.
And she could be prevented from selling the diamonds. Mr. Dove seemed
to make that quite clear. But then there came that other question, as
to the inheritance of the property under the husband's will. That Sir
Florian had not intended that she should inherit the necklace, Mr.
Camperdown was quite certain. On that point he suffered no doubt.
But would he be able to prove that the diamonds had never been in
Scotland since Sir Florian's marriage? He had traced their history
from that date with all the diligence he could use, and he thought
that he knew it. But it might be doubtful whether he could prove it.
Lady Eustace had first stated,--had so stated before she had learned
the importance of any other statement,--that Sir Florian had given
her the diamonds in London, as they passed through London from
Scotland to Italy, and that she had carried them thence to Naples,
where Sir Florian had died. If this were so, they could not have
been at Portray Castle till she took them there as a widow, and they
would undoubtedly be regarded as a portion of that property which Sir
Florian habitually kept in London. That this was so Mr. Camperdown
entertained no doubt. But now the widow alleged that Sir Florian
had given the necklace to her in Scotland, whither they had gone
immediately after their marriage, and that she herself had brought
them up to London. They had been married on the 5th of September; and
by the jewellers' books it was hard to tell whether the trinket had
been given up to Sir Florian on the 4th or 24th of September. On the
24th Sir Florian and his young bride had undoubtedly been in London.
Mr. Camperdown anathematised the carelessness of everybody connected
with Messrs. Garnett's establishment. "Those sort of people have no
more idea of accuracy than--than--" than he had had of heirlooms, his
conscience whispered to him, filling up the blank.
Nevertheless he thought he could prove that the necklace was first
put into Lizzie's hands in London. The middle-aged and very discreet
man at Messrs. Garnett's, who had given up the jewel-case to Sir
Florian, was sure that he had known Sir Florian to be a married man
when he did so. The lady's maid who had been in Scotland with Lady
Eustace, and who was now living in Turin, having married a courier,
had given evidence before an Italian man of law, stating that she
had never seen the necklace till she came to London. There were,
moreover, the probabilities of the case. Was it likely that Sir
Florian should take such a thing down in his pocket to Scotland? And
there was the statement as first made by Lady Eustace herself to her
cousin Frank, repeated by him to John Eustace, and not to be denied
by any one. It was all very well for her now to say that she had
forgotten; but would any one believe that on such a subject she could
forget?
But still the whole thing was very uncomfortable. Mr. Dove's opinion,
if seen by Lady Eustace and her friends, would rather fortify
them than frighten them. Were she once to get hold of that word
paraphernalia, it would be as a tower of strength to her. Mr.
Camperdown specially felt this,--that whereas he had hitherto
believed that no respectable attorney would take up such a case as
that of Lady Eustace, he could not now but confess to himself that
any lawyer seeing Mr. Dove's opinion would be justified in taking
it up. And yet he was as certain as ever that the woman was robbing
the estate which it was his duty to guard, and that should he cease
to be active in the matter, the necklace would be broken up and the
property sold and scattered before a year was out, and then the woman
would have got the better of him! "She shall find that we have not
done with her yet," he said to himself, as he wrote a line to John
Eustace.
But John Eustace was out of town, as a matter of course;--and on the
next day Mr. Camperdown himself went down and joined his wife and
family at a little cottage which he had at Dawlish. The necklace,
however, interfered much with his holiday.