A Book About Lawyers Part 6

CHAPTER XIV.

JUDICIAL CORRUPTION.

To a young student making his first researches beneath the surface of English history, few facts are more painful and perplexing than the judicial corruption which prevailed in every period of our country's growth until quiet recent times--darkening the brightest pages of our annals, and disfiguring some of the greatest chieftains of our race.

Where he narrates the fall and punishment of De Weyland towards the close of the thirteenth century, Speed observes: "While the Jews by their cruel usuries had in one way eaten up the people, the justiciars, like another kind of Jews, had ruined them with delay in their suits, and enriched themselves with wicked convictions." Of judicial corruption in the reigns of Edward I. and Edward II. a vivid picture is given in a political ballad, composed in the time of one or the other of those monarchs. Of this poem Mr. Wright, in his 'Political Songs,' gives a free version, a part of which runs thus:--

"Judges there are whom gifts and favorites control, Content to serve the devil alone and take from him a toll; If nature's law forbids the judge from selling his decree, How dread to those who finger bribes the punishment shall be.

"Such judges have accomplices whom frequently they send To get at those who claim some land, and whisper as a friend, ''Tis I can help you with the judge, if you would wish to plead, Give me but half, I'll undertake before him you'll succeed.'

"The clerks who sit beneath the judge are open-mouthed as he, As if they were half-famished and gaping for a fee; Of those who give no money they soon p.r.o.nounce the state, However early they attend, they shall have long to wait.

"If comes some n.o.ble lady, in beauty and in pride, With golden horns upon her head, her suit he'll soon decide; But she who has no charms, nor friends, and is for gifts too poor, Her business all neglected, she's weeping shown the door.

"But worse than all, within the court we some relators meet, Who take from either side at once, and both their clients cheat; The ushers, too, to poor men say, 'You labor here in vain, Unless you tip us all around, you may go back again.'

"The sheriff's hard upon the poor who cannot pay for rest, Drags them about to every town, on all a.s.sizes press'd Compell'd to take the oath prescrib'd without objection made, For if they murmur and can't pay, upon their backs they're laid.

"They enter any private house, or abbey that they choose, Where meat and drink and all things else are given as their dues; And after dinner jewels too, or this were all in vain, Bedels and garcons must receive, and all that form the train.

"And next must gallant robes be sent as presents to their wives, Or from the manor of the host some one his cattle drives; While he, poor man, is sent to gaol upon some false pretence, And pays at last at double cost, ere he gets free from thence.

"I can't but laugh to see their clerks, whom once I knew in need, When to obtain a bailiwick they may at last succeed; With pride in gait and countenance and with their necks erect They lands and houses quickly buy and pleasant rents collect.

"Grown rich they soon the poor despise, and new-made laws display, Oppress their neighbors and become the wise men of their day; Unsparing of the least offence, when they can have their will, The hapless country all around with discontent they fill."

In the fourteenth century judicial corruption was so general and flagrant, that cries came from every quarter for the punishment of offenders. The Knights Hospitallers' Survey, made in the year 1338, gives us revelations that confound the indiscreet admirers of feudal manners. From that source of information it appears that regular stipends were paid to persons "tam in curia domini regis quam justiciariis, clericis, officiariis et aliis ministris, in diversis curiis suis, ac etiam aliis familaribus magnatum tam pro terris tenementis redditbus et libertatibus Hospitalis, quam Templariorum, et maxime pro terris Templariorum manutenendis." Of pensions to the amount of 440 mentioned in the account, 60 were paid to judges, clerks, and minor officers of courts. Robert de Sadington, the Chief Baron, received 40 marks annually; twice a year the Knights Hospitallers presented caps to one hundred and forty officers of the Exchequer; and they expended 200 marks _per annum_ on gifts that were distributed in law courts, "_pro favore habendo_, et pro placitis habendis, et expensis parliamentorum." In that age, and for centuries later, it was customary for wealthy men and great corporations to make valuable presents to the judges and chief servants the king's courts; but it was always presumed that the offerings were simple expressions of respect--not tribute rendered, "pro favore habendo."

Bent on purifying the moral atmosphere of his courts, Edward III. raised the salaries of his judges, and imposed upon them such oaths that none of their order could pervert justice, or even encourage venal practices, without breaking his solemn vow[13] to the king's majesty.

From the amounts of the _royal_ fees or stipends paid to Edward III.'s judges, it may be vaguely estimated how far they were dependent on gifts and _court_ fees for the means of living with appropriate state. John Knyvet, Chief Justice of the King's Bench, has 40 and 100 marks per annum. The annual fee of Thomas de Ingleby, the solitary puisne judge of the King's Bench at that time, was at first 40 marks; but he obtained an additional 40 when the 'fees' were raised, and he received moreover 20 a year as a judge of a.s.size. The Chief of the Common Pleas, Robert de Thrope, received 40 per annum, payable during his tenure of office, and another annual sum of 40 payable during his life. John de Mowbray, William de Wychingham, and William de Fyncheden, the other judges of the Common Pleas, received 40 marks each as official salary, and 20 per annum for their services at a.s.sizes. Mowbray's stipend was subsequently increased by 40 marks, whilst Wychingham and Fyncheden received an additional 40 par annum. To the Chief Baron and the other two Barons of the Exchequer annual fees of 40 marks each were paid, the Chief Baron receiving 20 per annum as Justice of a.s.size, and one of the puisne Barons, Almaric de Shirland, getting an additional 40 marks for certain special services. The 'Issue Roll of 44 Edward III., 1370,' also shows that certain sergeants-at-law acted as Justices of a.s.size, receiving for their service 20 per annum.

Throughout his reign Edward III. strenuously exerted himself to purge his law courts of abuses, and to secure his subjects from evils wrought by judicial dishonesty; and though there is reason to think that he prosecuted his reforms, and punished offending judges with more impulsiveness than consistency--with petulance rather than firmness[14]--his action must have produced many beneficial results. But it does not seem to have occurred to him that the system adopted by his predecessors, and encouraged by the usages of his own time, was the real source of the mischief, and that so long as judges received the greater part of their remuneration from suitors, fees and the donations of the public, enactments and proclamations would be comparatively powerless to preserve the streams of justice from pollution. The fee-system poisoned the morality of the law-courts. From the highest judge to the lowest usher, every person connected with a court of justice was educated to receive small sums of money for trifling services, to be always looking out for paltry dues or gratuities, to multiply occasions for demanding, and reasons for pocketing petty coins, to invent devices for legitimate peculation. In time the system produced such complications of custom, right, privilege, claim, that no one could say definitely how much a suitor was actually bound to pay at each stage of a suit. The fees had an equally bad influence on the public. Trained to approach the king's judges with costly presents, to receive them on their visits with lavish hospitality, to send them offerings at the opening of each year, the rich and the poor learnt to look on judicial decisions as things that were bought and sold. In many cases this impression was not erroneous. Judges were forbidden to accept gifts from actual suitors, or to take payments _for_ judgments after their delivery; but on the judgment-seat they were often influenced by recollections of the conduct of suitors who _had been_ munificent before the commencement of proceedings, and most probably would be equally munificent six months after delivery of a judgment favorable to their claims. Humorous anecdotes heightened the significance of patent facts.

Throughout a shire it would be told how this suitor won a judgment by a sumptuous feast; how that suitor bought the justice's favor with a flask of rare wine, a horse of excellent breed, a hound of superior sagacity.

In the fifteenth century the judge whose probity did not succ.u.mb to an excellent dinner was deemed a miracle of virtue. "A lady," writes Fuller of Chief Justice Markham, who was dismissed from his place in 1470, "would traverse a suit of law against the will of her husband, who was contented to buy his quiet by giving her her will therein, though otherwise persuaded in his judgment the cause would go against her. This lady, dwelling in the shire town, invited the judge to dinner, and (though thrifty enough herself) treated him with sumptuous entertainment. Dinner being done, and the cause being called, the judge gave it against her. And when, in pa.s.sion, she vowed never to invite the judge again, 'Nay, wife,' said he, 'vow never to invite a _just judge_ any more.'" It may be safely affirmed that no English lady of our time ever tried to bribe Sir Alexander c.o.c.kburn or Sir Frederick Pollock with a dinner _a la Russe_.

By his eulogy of Chief Justice Dyer, who died March 24, 1582, Whetstone gives proof that in Elizabethan England purity was the exception rather than the rule with judges:--

"And when he spake he was in speeche reposde; His eyes did search the simple suitor's harte; To put by bribes his hands were ever closde, His processe juste, he tooke the poore man's parte.

He ruld by lawe and listened not to arte, Those foes to truthe--loove, hate, and private gain, Which most corrupt, his conscience could not staine."

There is no reason to suppose that the custom of giving and receiving 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:--

_s._ _d._

The Lord Cheefe Justice of England:-- Fee, Reward and Robes 208 6 8 Wyne, 2 tunnes at 5 the tunne 10 0 0 Allowance for being Justice of a.s.size 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 a.s.size 20 0 0 Fee for keeping the a.s.size in the Augmentation Court 12 10 8

Each of the three Justices in these two Courts:-- Fee, Reward and Robes 123 6_s._ 8_d._ Allowance as Justice of a.s.size 20 0 0

The Lord Cheefe Baron of the Exchequer:-- Fee 100 0 0 Lyvery 12 17 8 Allowance as Justice of the a.s.size 20 0 0

Each of the three Barons:-- Fee 46 12 4 Lyvery a peece 12 17 4 Allowance as Justice of a.s.size 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 cla.s.s 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 embarra.s.sed a great number of country gentlemen; and the queen was a.s.sailed 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 a.s.size town to a.s.size 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), subst.i.tuted 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 circ.u.mstances 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 a.s.sume 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 surpa.s.sed the ancient n.o.bility 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 8000 per annum. Bacon's successor in the 'marble chair,' Lord Keeper Williams, a.s.sured 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, 1300 per annum, or thereabouts; in fines casual, 1250 or thereabouts; in greater writs, 140; for impost of wine, 100--in all, 2790; 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 munic.i.p.al 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 a.s.sizes. 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 10,000 for the Attorney's place. At the same period the Solicitor General's office was sold for 4000. 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 15,000 for the place, and added a loan of 2000. Sir Thomas Richardson, at the opening of the reign, gave 17,000 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 a.s.size sermons of Charles I.'s reign were frequently seasoned with such animadversions. At Thetford a.s.sizes, March, 1630, the Rev. Mr. Ramsay, in the a.s.size-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 a.s.sizes, "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 pa.s.sage, "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 a.s.sumption 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 princ.i.p.al 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 n.o.ble payee accepted with his own hands. Sometimes his lordship was embarra.s.sed by a ceremony that required him to pick gold from the fingers of men, several of whom he knew to be in indigent circ.u.mstances. 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 antic.i.p.ated 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 n.o.body 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 G.o.d 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]