A Book About Lawyers Part 7

The common law chiefs were slow to follow in the Lord Keeper's steps, and many years pa.s.sed 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 embarra.s.sed circ.u.mstances 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 ent.i.tled to a moderate present on appointing to a mastership is certain; that he regarded 2000 as the gratuity which he might accept, without blushing at its publication, may be inferred from the rest.i.tution of 3250 which he made to one of the purchasers for 5250 at a time when he antic.i.p.ated 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 n.o.ble lords present answered, "Guilty, upon my honor." Sentenced to pay a fine of 30,000, 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 pa.s.sions 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 pa.s.sed 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 a.s.sertion 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 p.r.o.neness 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 ill.u.s.trates 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 ill.u.s.trate 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 inst.i.tutions 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 ill.u.s.trations 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 gla.s.s 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: lat.i.tat, 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 pa.s.sed from Oxford to the Middle Temple, raised himself to the honors of the ermine, secured the admiration of ill.u.s.trious 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 pa.s.sed, whereby any peer of the realm or lord of parliament, on a first conviction for robbery, was ent.i.tled 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 mult.i.tude 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 una.s.sailable 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 n.o.ble 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 pa.s.sing 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, a.s.suming 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 8,000 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 30,000 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 250,000 by his decease." Lord Eldon is said to have left to his descendants 500,000; 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 12,000 per annum.

Lord Stowell's personalty was sworn under 230,000, 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 n.o.ble indifference to gain--was inordinately fond of money.