A Book About Lawyers Part 5

This remarkable agreement--made after Richard III. had vainly endeavored to compose by arbitration the differences between Sir Robert and Sir Robert's heir-general--certifies that Sir Robert Plumpton engaged to provide the sergeant with suitable entertainment at the a.s.size towns, and also throws light upon the origin of retaining-fees. It appears from the agreement that in olden time a retaining fee was merely part (surrendered in advance) of a certain sum stipulated to be paid for certain services. In principle it was identical with the payment of the s.h.i.+lling, still given in rural districts, to domestic servants on an agreement for service, and with the transfer of the queen's s.h.i.+lling given to every soldier on enlistment. There is no need to mention the cla.s.sic origin of this ancient mode of giving force to a contract.

From the 'Household and Privy Purse Expenses of the Le Stranges of Hunstanton,' published in the Archaeologia, may be gleamed some interesting particulars relating to the payment of counsel in the reign of Henry VIII. In 1520, Mr. Cristofer Jenney received from the Le Stranges a half-yearly fee of ten s.h.i.+llings; and this general retainer was continued on the same terms till 1527, when the fee was raised from 1 per annum to a yearly payment of 2 13_s._ 4_d._ To Mr. Knightley was paid the sum of 8_s._ 11_d._ "for his fee, and that money yt he layde oute for suying of Simon Holden;" and the same lawyer also received at another time 14_s._ 3_d._ "for his fee and cost of sute for iii termes."

A fee of 6_s._ 8_d._ was paid to "Mr. Spelman, s'jeant, for his counsell in makyng my answer in ye Duchy Cham.;" and the same serjeant received a fee of 3_s._ 4_d._ "for his counsell in putting in of the answer."

Fees of 3_s._ 4_d._ were in like manner given "for counsell" to Mr.

Knightley and Mr. Whyte; and in 1534, Mr. Yelverton was remunerated "for his counsell" with the unusually liberal honorarium of twenty s.h.i.+llings.

From the household book of the Earl of Northumberland, it appears that order was made, in this same reign, for "every oone of my lordes counsaill to have c's. fees, if he have it in household and not by patent." After the earl's establishment was reduced to forty-two persons, it still retained "one of my lordes counsaill for annswering and riddying of causes, whenne sutors cometh to my lord." At a time when every lord was required to administer justice to his tenants and the inferior people of his territory, a counsellor learned in the law, was an important and most necessary officer in a grand seigneur's retinue.

Whilst Sir Thomas More lived in Bucklersbury, he "gained, without grief, not so little as 400 by the year." This income doubtless accrued from the emoluments of his judicial appointment in the City, as well as from his practice at Westminster and elsewhere. In Henry VIII.'s time it was a very considerable income, such as was equalled by few leaders of the bar not holding high office under the Crown.

In Elizabeth's reign, and during the time of her successor, barristers'

fees show a tendency toward increase; and the lawyers who were employed as advocates for the Crown, or held judicial appointments, acquired princely incomes, and in some cases ama.s.sed large fortunes. Fees of 20_s._ were more generally paid to counsel under the virgin queen, than in the days of her father; but still half that fee was not thought too small a sum for an opinion given by Her Majesty's Solicitor General.

Indeed, the ten-s.h.i.+lling fee was a very usual fee in Elizabeth's reign; and it long continued an ordinary payment for one opinion on a case, or for one speech in a cause of no great importance and of few difficulties. 'A barrister is like Balaam's a.s.s, only speaking when he sees the angel,' was a familiar saying in the seventeenth century. In Chancery, however, by an ordinance of the Lords Commissioners pa.s.sed in 1654, to regulate the conduct of suits and the payments to masters, counsel, and solicitors, it was arranged that on the hearing of a cause, utter-barristers should receive 1 fees, whilst the Lord Protector's counsel and sergeants-at-law should receive 2 fees, _i.e._, 'double fees.'

The archives of Lyme Regis show that under Elizabeth the usage was maintained of supplying counsel with delicacies of the table, and also of providing them with means of locomotion. Here are some items in an old record of disburs.e.m.e.nts made by the corporation of Lyme Regis:--"A.D. Paid for Wine carried with us to Mr. Poulett--0 3_s._ 6_d._; Wine and sugar given to Mr. Poulett, 0 3_s._ 4_d._; Horse-hire, and for the Sergeant to ride to Mr. Walrond, of Bovey, and for a loaf of sugar, and for conserves given there to Mr. Poppel, 1 1_s._ 0_d._; Wine and sugar given to Judge Anderson, 0 3_s._ 4_d._ A bottle and sugar given to Mr. Gibbs (a lawyer)."

Under Elizabeth, the allowance made to Queen's Sergeants was 26 6_s._ 8_d._ for fee, reward, and robes; and 20. for his services whenever a Queen's Sergeant travelled circuit as Justice of a.s.size. The fee for her Solicitor General was 50. When Francis Bacon was created King's Counsel to James I., an annual salary of forty pounds was a.s.signed to him from the royal purse; and down to William IV.'s time, King's Counsel received a stipend of 40 a year, and an allowance for stationery. Under the last mentioned monarch, however, the stipend and allowance were both withdrawn; and at present the status of a Q.C. is purely an affair of professional precedence, to which no fixed emolument is attached.

But a list of the fees, paid from the royal purse to each judge or crown lawyer under James I., would afford no indication as to the incomes enjoyed by the leading members of the bench and bar at that period. The salaries paid to those officers were merely retaining fees, and their chief remuneration consisted of a large number of smaller fees. Like the judges of prior reigns, King James's judges were forbidden to accept _presents_ from actual suitors; but no suitor could obtain a hearing from any one of them, until he had paid into court certain fees, of which the fattest was a sum of money for the judge's personal use. At one time many persons labored under an erroneous impression, that as judges were forbidden to accept presents from actual suitors, the honest judge of past times had no revenue besides his specified salary and allowance. Like the king's judges, the king's counsellors frequently made great incomes by fees, though their nominal salaries were invariably insignificant. At a time when Francis Bacon was James's Attorney General, and received no more than 81 6_s._ 8_d._ for his yearly salary, he made 6000 per annum in his profession; and of that income--a royal income in those days--the greater portion consisted of fees paid to him for attending to the king's business. "I shall now,"

Bacon wrote to the king, "again make oblation to your Majesty,--first of my heart, then of my service; thirdly, of my place of Attorney, which I think is honestly worth 6000 per annum; and fourthly, of my place in the Star Chamber, which is worth 1600 per annum, and with the favor and countenance of a Chancellor, much more." c.o.ke had made a still larger income during his tenure of the Attorney's place, the fees from his private official practice amounting to no loss a sum than seven thousand pounds in a single year.

At later periods of the seventeenth century barristers made large incomes, but the fees seem to have been by no means exorbitant. Junior barristers received very modest payments, and it would appear that juniors received fees from eminent counsel for opinions and other professional services. Whilst he acted as treasurer of the Middle Temple, at an early period of his career, Whitelock received a fee from Attorney General Noy. "Upon my carrying the bill," writes Whitelock, "to Mr. Attorney General Noy for his signature, with that of the other benchers, he was pleased to advise with me about a patent the king had commanded him to draw, upon which he gave me a fee for it out of his little purse, saying, 'Here, take those single pence,' which amounted to eleven groats, 'and I give you more than an attorney's fee, because you will be a better man than the Attorney General. This you will find to be true.' After much other drollery, wherein he delighted and excelled, we parted, abundance of company attending to speak to him all this time."

Of course the payment itself was no part of the drollery to which Whitelock alludes, for as a gentleman he could not have taken money proffered to him in jest, unless etiquette encouraged him to look for it, and allowed him to accept it. The incident justifies the inference that the services of junior counsel to senior barristers--services at the present time termed 'devilling'--were formerly remunerated with cash payments.

Toward the close of Charles I.'s reign--at a time when political distractions were injuriously affecting the legal profession, especially the staunch royalists of the long robe--Maynard, the Parliamentary lawyer, received on one round of the Western Circuit, 700, "which,"

observes Whitelock, to whom Maynard communicated the fact, "I believe was more than any one of our profession got before."

Concerning the incomes made by eminent counsel in Charles II.'s time, many _data_ are preserved in diaries and memoirs. That a thousand a year was looked upon as a good income for a flouris.h.i.+ng pract.i.tioner of the 'merry monarch's' Chancery bar, may be gathered from a pa.s.sage in 'Pepys's Diary,' where the writer records the compliments paid to him regarding his courageous and eloquent defence of the Admiralty, before the House of Commons, in March, 1668. Under the influence of half-a-pint of mulled sack and a dram of brandy, the Admiralty clerk made such a spirited and successful speech in behalf of his department, that he was thought to have effectually silenced all grumblers against the management of his Majesty's navy. Compliments flowed in upon the orator from all directions. Sir William Coventry pledged his judgment that the fame of the oration would last for ever in the Commons; silver-tongued Sir Heneage Finch, in the blandest tones, averred that no other living man could have made so excellent a speech; the placemen of the Admiralty vied with each other in expressions of delight and admiration; and one flatterer, whose name is not recorded, caused Mr. Pepys infinite pleasure by saying that the speaker who had routed the accusers of a government office, might easily earn a thousand a year at the Chancery bar.

That sum, however, is insignificant when it is compared with the incomes made by the most fortunate advocates of that period. Eminent speakers of the Common Law Bar made between 2000 and 3500 per annum on circuit and at Westminster, without the aid of king's business; and still larger receipts were recorded in the fee-books of his Majesty's attorneys and solicitors. At the Chancery bar of the second Charles, there was at least one lawyer, who in one year made considerably more than four times the income that was suggested to Pepys's vanity and self-complacence. At Stanford Court, Worcesters.h.i.+re, is preserved a fee-book kept by Sir Francis Winnington, Solicitor-General to the 'merry monarch,' from December 1674 to January 13, 1679, from the entries of which record the reader may form a tolerably correct estimate of the professional revenues of successful lawyers at that time. In Easter Term, 1671, Sir Francis pocketed 459; in Trinity Term 449 10s.; in Michaelmas Term 521; and in Hilary Term 1672, 361 10s.; the income for the year being 1791, without his earnings on the Oxford Circuit and during vacation.

In 1673, Sir Francis received 3371; in 1674, he earned 3560;[8] and in 1675--_i.e._, the first year of his tenure of the Solicitor's office--his professional income wars 4066, of which sum 429 were office fees. Concerning the Attorney-General's receipts about this time, we have sufficient information from Roger North, who records that his brother, whilst Attorney General, made nearly seven thousand pounds in one year, from private and official business. It is noteworthy that North, as Attorney General, made the same income which c.o.ke realized in the same office at the commencement of the century. But under the Stuarts this large income of 7000--in those days a princely revenue--was earned by work so perilous and fruitful of obloquy, that even Sir Francis, who loved money and cared little for public esteem, was glad to resign the post of Attorney and retire to the Pleas with 4000 a year. That the fees of the Chancery lawyers under Charles II.

were regulated upon a liberal scale we know from Roger North, and the record of Sir John King's success. Speaking of his brother Francis, the biographer says: "After he, as king's counsel, came within the bar, he began to have calls into the Court of Chancery; which he liked very well, because the quant.i.ty of the business, _as well as the fees_, was greater; but his home was the King's Bench, where he sat and reported like as other pract.i.tioners." And in Sir John King's memoirs it is recorded that in 1676 he made 4700, and that he received from 40 to 50 a day during the last four days of his appearance in court. Dying in 1677,[9] whilst his supremacy in his own court was at its height, Sir John King was long spoken of as a singularly successful Chancery barrister.

Of Francis North's mode of taking and storing his fees, the 'Life of Lord Keeper Guildford' gives the following picture: "His business increased, even while he was Solicitor, to be so much as to have overwhelmed one less dexterous; but when he was made Attorney General, though his gains by his office were great, they were much greater by his practice; for that flowed in upon him like an orage, enough to overset one that had not an extraordinary readiness in business. His skull-caps, which he wore when he had leisure to observe his const.i.tution, as I touched before, were now destined to lie in a drawer to receive the money that came in by fees. One had the gold, another the crowns and half-crowns, and another the smaller money. When these vessels were full, they were committed to his friend (the Hon. Roger North), who was constantly near him, to tell out the cash, and put it into the bags according to the contents; and so they went to his treasurers, Blanchard and Child, goldsmiths, Temple Bar."[10] In the days of wigs, skull-caps like those which Francis North used as receptacles for money, were very generally worn by men of all cla.s.ses and employments. On returning to the privacy of his home, a careful citizen usually laid aside his costly wig, and replaced it with a cheap and durable skull-cap, before he sat down in his parlor. So also, men careful of their health often wore skull-caps _under_ their wigs, on occasions when they were required to endure a raw atmosphere without the protection of their beavers. In days when the law-courts were held in the open hall of Westminster, and lawyers practising therein, were compelled to sit or speak for hours together, exposed to sharp currents of cold air, it was customary for wearers of the long robe to place between their wigs and natural hair closely-fitting caps, made of stout silk or soft leather. But more interesting than the money-caps, are the fees which they contained. The ringing of the gold pieces, the clink of the crowns with the half-crowns, and the rattle of the smaller money, led back the barrister to those happier and remote times, when the 'inferior order' of the profession paid the superior order with 'money down;' when, the advocate never opened his mouth till his fingers had closed upon the gold of his trustful client; when 'credit' was unknown in transactions between counsel and attorney;--that truly _golden_ age of the bar, when the barrister was less suspicious of the attorney, and the attorney held less power over the barrister.

Having profited by the liberal payments of Chancery whilst he was an advocate, Lord Keeper Guildford destroyed one source of profit to counsel from which Francis North, the barrister, had drawn many a capful of money. Saith Roger, "He began to rescind all motions for speeding and delaying the hearing of causes besides the ordinary rule of court; and this lopped off a limb of the motion practice. I have heard Sir John Churchill, a famous Chancery pract.i.tioner, say, that in his walk from Lincoln's Inn down to the Temple Hall, where, in the Lord Keeper Bridgman's time, causes and motions out of term were heard, he had taken 28. with breviates only for motions and defences for hastening and r.e.t.a.r.ding hearings. His lords.h.i.+p said, that the rule of the court allowed time enough for any one to proceed or defend; and if, for special reasons, he should give way to orders for timing matters, it would let in a deluge of vexatious pretenses, which, true or false, being a.s.serted by the counsel with equal a.s.surance, distracted the court and confounded the suitors."

Let due honor be rendered to one Caroline, lawyer, who was remarkable for his liberality to clients, and carelessness of his own pecuniary interests. From his various biographers, many pleasant stories may be gleaned concerning Hale's freedom from base love of money. In his days, and long afterward, professional etiquette permitted clients and counsel to hold intercourse without the intervention of an attorney. Suitors, therefore, frequently addressed him personally and paid for his advice with their own hands, just as patients are still accustomed to fee their doctors. To these personal applicants, and also to clients who approached him by their agents, he was very liberal. "When those who came to ask his counsel gave him a piece, he used to give back the half, and to make ten s.h.i.+llings his fee in ordinary matters that did not require much time or study." From this it may be inferred that whilst Hale was an eminent member of the bar, twenty s.h.i.+llings was the usual fee to a leading counsel, and an angel the customary honorarium to an ordinary pract.i.tioner. As readers have already been told, the angel[11]

was a common fee in the seventeenth century; but the story of Hale's generous usage implies that his more distinguished contemporaries were wont to look for and accept a double fee. Moreover, the anecdote would not be told in Hale's honor, if etiquette had fixed the double fee as the minimum of remuneration for a superior barrister's opinion. He was frequently employed in arbitration cases, and as an arbitrator he steadily refused payment for his services to legal disputants, saying, in explanation of his moderation, "In these cases I am made a judge, and a judge ought to take no money." The misapprehension as to the nature of an arbitrator's functions, displayed in these words, gives an instructive insight into the mental const.i.tution of the judge who wrote on natural science, and at the same time exerted himself to secure the conviction of witches. A more pleasant and commendable ill.u.s.tration of his conscientiousness in pecuniary matters, is found in the steadiness with which he refused to throw upon society the spurious coin which he had taken from his clients. In a tone of surprise that raises a smile at the average morality of our forefathers, Bishop Burnet tells of Hale: "Another remarkable instance of his justice and goodness was, that when he found ill money had been put into his hands, he would never suffer it to be vented again; for he thought it was no excuse for him to put false money in other people's hands, because some had put it into his. A great heap of this he had gathered together, for many had so abused his goodness as to mix base money among the fees that were given him." In this particular case, the judge's virtue was its own reward. His house being entered by burglars, this acc.u.mulation of bad money attracted the notice of the robbers, who selected it from a variety of goods and chattels, and carried it off under the impression that it was the lawyer's h.o.a.rded treasure. Besides large sums expended on unusual acts of charity, this good man habitually distributed amongst the poor a t.i.the of his professional earnings.

In the seventeenth century, General Retainers were very common, and the counsel learned in the law, were ready to accept them from persons of low extraction and questionable repute. Indeed, no upstart deemed himself properly equipped for a campaign at court, until he had recorded a fict.i.tious pedigree at the Herald's College, taken a barrister as well as a doctor into regular employment, and hired a curate to say grace daily at his table. In the summer of his vile triumph, t.i.tus Oates was attended, on public occasions, by a robed counsel and a physician.

[8] In his 'Survey of the State of England in 1685,' Macauley--giving one of those misleading references with which his history abounds--says: "A thousand a year was thought a large income for a barrister. Two thousand a year was hardly to be made in the Court of King's Bench, except by crown lawyers." Whilst making the first statement, he doubtless remembered the pa.s.sage in 'Pepys's Diary.' For the second statement, he refers to 'Layton's Conversation with Chief Justice Hale.'

It is fair to a.s.sume that Lord Macauley had never seen Sir Francis Winnington's fee-book.

[9] In the fourth day of his fever, he being att the Chancery Bar, he fell so ill of the fever, that he was forced to leave the Court and come to his chambers in the Temple, with one of his clerks, which constantly wayted on him and carried his bags of writings for his pleadings, and there told him that he should return to every clyent his breviat and his fee, for he could serve them no longer, for he had done with this world, and thence came home to his house in Salisbury Court, and took his bed.... And there he sequestered himself to meditation between G.o.d and his own soul, without the least regret, and quietly and patiently contented himself with the will of G.o.d.--_Vide Memoir of Sir John King, Knt., written by his Father._

[10] The lawyers of the seventeenth century were accustomed to make a show of their fees to the clients who called upon them. Hudibras's lawyer (Hud., Part iii. cant. 3) is described as sitting in state with his books and money before him:

"To this brave man the knight repairs For counsel in his law affairs, And found him mounted in his pew, With books and money placed for shew, Like nest-eggs, to make clients lay, And for his false, opinion pay: To whom the knight, with comely grace, Put off his hat to put his case, Which he as proudly entertain'd As the other courteously strain'd; And to a.s.sure him 'twas not that He looked for, bid him put on's hat."

Under Victoria, the needy junior is compelled, for the sake of appearances, to furnish his shelves with law books, and cover his table with counterfeit briefs. Under the Stuarts, he placed a bowl of spurious money amongst the sham papers that lay upon his table.

[11] In the 'Serviens ad Legem,' Mr. Sergeant Manning raises question concerning the antiquity of _guineas_ and half-guineas, with the following remarks:--"Should any cavil be raised against this jocular allusion, on the ground that guineas and half-guineas were unknown to sergeants who flourished in the sixteenth century, the objector might be reminded, that in antique records, instances occur in which the 'guianois d'or,' issued from the ducal mint at Bordeaux, by the authority of the Plantagenet sovereigns of Guienne, were by the same authority, made current among their English subjects; and it might be suggested that those who have gone to the coast of Africa for the origin of the modern guinea, need not have carried their researches beyond the Bay of Biscay. _Quaere_, whether the Guinea Coast itself may not owe its name to the 'guianois d'or' for which it furnished the raw material."

CHAPTER XIII.

RETAINERS GENERAL AND SPECIAL.

Pemberton's fees for his services in behalf of the Seven Bishops show that the most eminent counsel of his time were content with very modest remuneration for advice and eloquence. From the bill of an attorney employed in that famous trial, it appears that the ex-Chief Justice was paid a retaining-fee of five guineas, and received twenty guineas with his brief. He also pocketed three guineas for a consultation. At the present date, thirty times the sum of these paltry payments would be thought an inadequate compensation for such zeal, judgment, and ability as Francis Pemberton displayed in the defence of his reverend clients.

But, though lawyers were paid thus moderately in the seventeenth century, the complaints concerning their avarice and extortions were loud and universal. This public discontent was due to the inordinate exactions of judges and place-holders rather than to the conduct of barristers and attorneys; but popular displeasure seldom cares to discriminate between the blameless and the culpable members of an obnoxious system, or to distinguish between the errors of ancient custom and the qualities of those persons who are required to carry out old rules. Hence the really honest and useful pract.i.tioners of the law endured a full share of the obloquy caused by the misconduct of venal justices and corrupt officials. Counsel, attorneys, and even scriveners came in for abuse. It was averred that they conspired to pick the public pocket; that eminent conveyancers not less than copying clerks, swelled their emoluments by knavish tricks. They would talk for the mere purpose of protracting litigation, injure their clients by vexations and bootless delays, and do their work so that they might be fed for doing it again. Draughtsmen find their clerks wrote loosely and wordily, because they were paid by the folio. "A term," writes the quaint author of 'Saint Hillaries Teares,' in 1642, "so like a vacation; the prime court, the Chancery (wherein the clerks had wont to dash their clients out of countenance with long dashes); the examiners to take the depositions in hyperboles, and roundabout _Robinhood_ circ.u.mstances with _saids_ and _aforesaids_, to enlarge the number of sheets." 'Hudibras'

contains, amongst other pungent satires against the usages of lawyers, an allusion to this characteristic custom of legal draughtsmen, who being paid by the sheet, were wont

"To make 'twixt words and lines large gaps, Wide as meridians in maps; To squander paper and spare ink, Or cheat men of their words some think."

In the following century the abuses consequent on the objectionable system of folio-payment were noticed in a parliamentary report (bearing date November 8, 1740), which was the most important result of an ineffectual attempt to reform the superior courts of law and to lessen the expenses of litigation.

More is known about the professional receipts of lawyers since the Revolution of 1688 than can be discovered concerning the incomes of their precursors in Westminster Hall. For six years, commencing with Michaelmas Term, 1719, Sir John Ches.h.i.+re, King's Sergeant, made an average annual income of 3241_l._ Being then sixty-three years of age, he limited his practice to the Common Pleas, and during the next six years made in that one court 1320_l._ per annum. Mr. Foss, to whom the present writer is indebted for these particulars with regard to Sir John Ches.h.i.+re's receipts, adds: "The fees of counsel's clerks form a great contrast with those that are now demanded, being only threepence on a fee of half-a-guinea, sixpence for a guinea, and one s.h.i.+lling for two guineas." Of course the increase of clerk's fees tells more in favor of the master than the servant. At the present time the clerk of a barrister in fairly lucrative practice costs his master nothing.

Bountifully paid by his employer's clients, he receives no salary from the counsellor whom he serves; whereas, in old times, when his fees were fixed at the low rate just mentioned, the clerk could not live and maintain a family upon them, unless his master belonged to the most successful grade of his order.

Horace Walpole tells his readers that Charles Yorke "was reported to have received 100,000 guineas in fees;" but his fee-book shows that his professional rise was by no means so rapid as those who knew him in his sunniest days generally supposed. The story of his growing fortunes is indicated in the following statement of successive incomes:--1st year of practice at the bar, 121_l._ 2nd, 201_l._; 3rd and 4th, between 300_l._ and 400_l._ per annum; 5th, 700_l._; 6th, 800_l._; 7th, 1000_l._; 9th, 1600_l._; 10th, 2500_l._ Whilst Solicitor General he made 3400_l._ in 1757; and in the following year he earned 5000_l._ His receipts during the last year of his tenure of the Attorney Generals.h.i.+p amounted to 7322_l._ The reader should observe that as Attorney General he made but little more than c.o.ke had realized in the same office,--a fact serving to show how much better paid were Crown lawyers in times when they held office like judges during the Sovereign's pleasure, than in these latter days when they retire from place together with their political parties.

The difference between the incomes of Scotch advocates and English barristers was far greater in the eighteenth century than at the present time, although in our own day the receipts of several second-rate lawyers of the Temple and Lincoln's Inn far surpa.s.s the revenues of the most successful advocates of the Edinburgh faculty. A hundred and thirty years since a Scotch barrister who earned 500_l._ per annum by his profession was esteemed notably successful.

Just as Charles Yorke's fee-book shows us the pecuniary position of an eminent English barrister in the middle of the last century, John Scott's list of receipts displays the prosperity of a very fortunate Crown lawyer in the next generation. Without imputing motives the present writer, may venture to say that Lord Eldon's a.s.sertions with regard to his earnings at the bar, and his judicial incomes, were not in strict accordance with the evidence of his private accounts. He used to say that his first year's earnings in his profession amounted to half-a-guinea, but there is conclusive proof that he had a considerable quant.i.ty of lucrative business in the same year. "When I was called to the bar," it was his humor to say, "Bessie and I thought all our troubles were over, business was to pour in, and we were to be rich almost immediately. So I made a bargain with her that during the following year all the money I should receive in the first eleven months should be mine, and whatever I should get in the twelfth month should be hers. That was our agreement, and how do you think it turned out? In the twelfth month I received half-a-guinea--eighteenpence went for charity, and Bessy got nine s.h.i.+llings. In the other eleven months I got one s.h.i.+lling." John Scott, be it remembered, was called to the bar on February 9, 1776, and on October 2, of the same year, William Scott wrote to his brother Henry--"My brother Jack seems highly pleased with his circuit business. I hope it is only the beginning of future triumphs. All appearances speak strongly in his favor." There is no need to call evidence to show that Eldon's success was more than respectable from the outset of his career, and that he had not been called many years before he was in the foremost rank of his profession. His fee-book gives the following account of his receipts in thirteen successive years:--1786, 6833_l._ 7_s._; 1787, 7600_l._ 7_s._; 1788, 8419_l._ 14_s._; 1789, 9559_l._ 10_s._; 1790, 9684_l._ 15_s._; 1791, 10,213_l._ 13_s._ 6_d._; 1792, 9080_l._ 9_s._; 1793, 10,330_l._ 1_s._ 4_d._; 1794, 11,592_l._; 1795, 11,149_l._ 15_s._ 4_d._; 1796, 12,140_l._ 15_s._ 8_d._; 1797, 10,861_l._ 5_s._ 8_d_; 1798, 10,557_l._ 17_s._ During the last six of the above-mentioned years he was Attorney General, and during the preceding four years Solicitor General.

Although General Retainers are much less general than formerly, they are by no means obsolete. n.o.blemen could be mentioned who at the present time engage counsel with periodical payments, special fees of course being also paid for each professional service. But the custom is dying out, and it is probable that after the lapse of another hundred years it will not survive save amongst the usages of ancient corporations. Notice has already been taken of Murray's conduct when he returned nine hundred and ninety-five out of a thousand guineas to the d.u.c.h.ess of Marlborough, informing her that the professional fee with the general retainer was neither more nor less than five guineas. The annual salary of a Queen's Counsel in past times was in fact a fee with a general retainer; but this periodic payment is no longer made to wearers of silk.

In his learned work on 'The Judges of England,' Mr. Foss observes: "The custom of retaining counsel in fee lingered in form, at least in one ducal establishment. By a formal deed-poll between the proud Duke of Somerset and Sir Thomas Parker, dated July 19, 1707, the duke retains him as his 'standing counsell in ffee,' and gives and allows him 'the yearly ffee of four markes, to be paid by my solicitor' at Michaelmas, 'to continue during my will and pleasure.'" Doubtless Mr. Foss is aware that this custom still 'lingers in form;' but the tone of his words justifies the opinion that he underrates the frequency with which general retainers are still given. The 'standing counsel' of civic and commercial companies are counsel with general retainers, and usually their general retainers have fees attached to them.

The payments of English barristers have varied much more than the remunerations of English physicians. Whereas medical pract.i.tioners in every age have received a certain definite sum for each consultation, and have been forbidden by etiquette to charge more or less than the fixed rate, lawyers have been allowed much freedom in estimating the worth of their labor. This difference between the usages of the two professions is mainly due to the fact, that the amount of time and mental effort demanded by patients at each visit or consultation is very nearly the same in all cases, whereas the requirements of clients are much more various. To get up the facts of a law-case may be the work of minutes, or hours, or days, or even weeks; to observe the symptoms of a patient, and to write a prescription, can be always accomplished within the limits of a short morning call. In all times, however, the legal profession has adopted certain scales of payment--that fixed the _minimum_ of remuneration, but left the advocate free to get more, as circ.u.mstances might encourage him to raise his demands. Of the many good stories told of artifices by which barristers have delicately intimated their desire for higher payment, none is better than an anecdote recorded of Sergeant Hill. A troublesome case being laid before this most erudite of George III.'s sergeants, he returned it with a brief note, that he "saw more difficulty in the case than, _under all the circ.u.mstances_, he could well solve." As the fee marked upon the case was only a guinea, the attorney readily inferred that its smallness was one of the circ.u.mstances which occasioned the counsel's difficulty. The case, therefore, was returned, with a fee of two guineas. Still dissatisfied, Sergeant Hill wrote that "he saw no reason to change his opinion."

By the etiquette of the bar no barrister is permitted to take a brief on any circuit, save that on which he habitually practises, unless he has received a special retainer; and no wearer of silk can be specially retained with a less fee than three hundred guineas. Erskine's first special retainer was in the Dean of St. Asaph's case, his first speech in which memorable cause was delivered when he had been called to the bar but little more than five years. From that time till his elevation to the bench he received on an average twelve special retainers a year, by which at the minimum of payment he made 3600 per annum. Besides being lucrative and honorable, this special employment greatly augmented his practice in Westminster Hall, as it brought him in personal contact with attorneys in every part of the country, and heightened his popularity amongst all cla.s.ses of his fellow-countrymen. In 1786 he entirely withdrew from ordinary circuit practice, and confined his exertions in provincial courts to the causes for which he was specially retained. No advocate since his time has received an equal number of special retainers; and if he did not originate the custom of special retainers,[12] he was the first English barrister who ventured to reject all other briefs.

There is no need to recapitulate all the circ.u.mstances of Erskine's rapid rise in his profession--a rise due to his effective brilliance and fervor in political trial: but this chapter on lawyers' fees would be culpably incomplete, if it failed to notice some of its pecuniary consequences. In the eighth month after his call to the bar he thanked Admiral Keppel for a splendid fee of one thousand pounds. A few years later a legal gossip wrote: "Everybody says that Erskine will be Solicitor General, and if he is, and indeed whether he is or not, he will have had the most rapid rise that has been known at the bar. It is four years and a half since he was called, and in that time he has cleared 8000 or 9000, besides paying his debts--got a silk gown, and business of at least 3000 a year--a seat in Parliament--and, over and above, has made his brother Lord Advocate."

Merely to mention large fees without specifying the work by which they were earned would mislead the reader. During the railway mania of 1845, the few leaders of the parliamentary bar received prodigious fees; and in some cases the sums were paid for very little exertion. Frequently it happened that a lawyer took heavy fees in causes, at no stage of which he either made a speech or read a paper in the service of his too liberal employers. During that period of mad speculation the committee-rooms of the two Houses were an El Dorado to certain favored lawyers, who were alternately paid for speech and _silence_ with reckless profusion. But the time was so exceptional, that the fees received and the fortunes made in it by a score of lucky advocates and solicitors cannot be fairly cited as facts ill.u.s.trating the social condition of legal pract.i.tioners. As a general rule, it may be stated that large fortunes are not made at the bar by large fees. Our richest lawyers have made the bulk of their wealth by acc.u.mulating sufficient but not exorbitant payments. In most cases the large fee has not been a very liberal remuneration for the work done. Edward Law's retainer for the defence of Warren Hastings brought with it 500--a sum which caused our grandfathers to raise their hands in astonishment at the nabob's munificence; but the sum was in reality the reverse of liberal. In all, Warren Hastings paid his leading advocate considerably less than four thousand pounds; and if Law had not contrived to win the respect of solicitors by his management of the defence, the case could not be said to have paid him for his trouble. So also the eminent advocate, who in the great case of Small _v._ Attwood received a fee of 6000, was actually underpaid. When he made up the account of the special outlay necessitated by that cause, and the value of business which the burdensome case compelled him to decline, he had small reason to congratulate himself on his remuneration.

A statement of the incomes made by chamber-barristers, and of the sums realized by counsel in departments of the profession that do not invite the attention of the general public, would astonish those uninformed persons who estimate the success of a barrister by the frequency with which his name appears in the newspaper reports of trials and suits. The talkers of the bar enjoy more _eclat_ than the barristers who confine themselves to chamber practice, and their labors lead to the honors of the bench; but a young lawyer, bent only on the acquisition of wealth, is more likely to achieve his ambition by conveyancing or arbitration-business than by court-work. Kenyon was never a popular or successful advocate, but he made 3000 a year by answering cases.

Charles Abbott at no time of his life could speak better than a vestryman of average ability; but by drawing informations and indictments, by writing opinions on cases, he made the greater part of the eight thousand pounds which he returned as the amount of his professional receipts in 1807. In our own time, when that popular common law advocate, Mr. Edwin James, was omnipotent with juries, his income never equalled the incomes of certain chamber-pract.i.tioners whose names are utterly unknown to the general body of English society.

[12] Lord Campbell observes: "Some say that special retainers began with Erskine; but I doubt the fact." It is strange that there should be uncertainty as to the time when special retainers--unquestionably a comparatively recent innovation in legal practice--came into vogue.