CHAPTER XII.

FEES.

XII. 1. 1. To see why the threat of prosecution so deeply disturbed Egerton, and how easy it may be for unscrupulous men to frame a charge of corruption against his successor, a reader who is not a lawyer should remind himself of the state of society in the days of James the First.

1620. Nov.

There is no civil list. Few men in the court or in the Church receive salaries from the Crown; and each has to keep his state and make his fortune out of fees and gifts. The King takes fees. The archbishop, the bishop, the rural dean take fees. The Lord Chancellor, the Lord Chief Justice, the Baron of the Exchequer, the Master of the Rolls, the Attorney-General, the Solicitor-General, the King's Serjeant, the utter barrister, all the functionaries of law and justice, take fees. So in the great offices of state. The Lord Treasurer takes fees. The Lord Admiral takes fees. The Secretary of State, the Chancellor of the Exchequer, the Master of the Wards, the Warden of the Cinque Ports, the gentlemen of the Bedchamber, all take fees. Everybody takes fees, everybody pays fees.

2. In some public offices and courts the amount to be paid is fixed, either by ancient usage or by such a common understanding as in modern times controls a railway or steamboat fare. In some, particularly in the courts of justice, it is open. Bassanio may present his ducats; three thousand in a bag. The judge may only take a ring.

1620.

Νον.

A fee is due whenever an act is done. The occasions on XII. 2. which, by ancient usage of the realm, the King claims help or fine are many: the sealing of an office or a grant—the knighting of his son-the marriage of his daughter-the alienation of lands in capite-his birthday-New Year's Day-the anniversary of his accession or his coronation; indeed, at all times when he wants money and finds men rich enough and loyal enough to pay. In like manner the clergy levy tithe and toll; fees on christenings, fees on churchings, fees on marriages, fees on interments; Easter offerings, free offerings; charities, church reparations, church extensions, pews, and rents.

In the government offices it is the same as in the palace and the church. If the Attorney-General, the Secretary of State, the Lord-Admiral, or the Privy Seal puts his signature to a sheet of paper, he takes his fee. Often it is his means of life. To wit, the retaining fee paid by the King to Cecil, as premier Secretary of State, is a hundred pounds a-year. But the fees from other sources are

enormous. These fees are not bribes.

The Bar is

3. The same at the Bar and on the Bench. a free profession: a member of the Temple or of Lincoln's Inn being bound to plead, as the knights whose swords are rust were bound to fight, in love and faith, taking no purse nor scrip. It is an order of courtesy and chivalry; its members the soldiers of justice, pledged to protect the weak, to help the needy, to defend the right. Now, all this service is by law and usage free. A barrister may not ask wages for his toil, like an attorney or a clerk, nor can he reclaim by any process of law, as the clerk and the attorney can, the value of his time and speech. If he lives on the gifts of grateful clients, these gifts must be perfectly

1620.

Nov.

XII. 3. free. This theory of a counsel's hire, though old as our language and our institutions, is of course a sham. No junior on the Oxford circuit dreams of succouring damsels from love of Dulcinea, or freeing galley-slaves from the obligations of knighthood. No guineas, no speech. The shifts by which lax attorneys are tickled into passing the fees which no law compels them to pay are droll as anything in the immortal laws of Barataria.

4. Now, the rules which continue under Victoria to govern the Bar, under James the First governed the Bench. The Lord Chief Justice or the Lord Chancellor, like the Secretary of State, is paid by fees. The King's judge is neither in deed nor in name a public servant: he receives a nominal sum as standing counsel for the Crown; and for the rest he depends on the income arising from his hearing of private causes. These facts appear in a comparison of the amounts paid by the Crown to its great legal functionaries, with the estimated profits of each particular post. Thus, the Seals, though the Lord Chancellor had no proper salary, were in Egerton's time worth from ten to fifteen thousand pounds a-year. Bacon valued his place as Attorney-General at six thousand a-year; of which princely sum (twenty-five thousand a-year in coin of Victoria) the King only paid him eighty-one pounds six shillings and eight pence. Yelverton's place of Solicitor brought him three or four thousand a-year, of which he got seventy pounds from James. The judges had enough to buy their gloves and robes, not more. Coke, when Lord Chief Justice of England, drew from the State twelve farthings less than two hundred and twenty

five pounds a-year. When travelling circuit, he was allowed thirty-three pounds six shillings and eight pence

1620.

Nov.

for his expenses. Hobart, Chief Justice of the Common XII. 4. Pleas, had twelve farthings less than one hundred and ninety-five pounds a-year; Tanfield, Lord Chief Baron of His Majesty's Court of Exchequer, one hundred and eightyeight pounds six shillings a-year. Yet each of these great lawyers had given up a lucrative practice at the Bar. After their promotion to the Bench, they lived in good houses, kept a princely state, gave dinners and masques, made presents to the King, accumulated goods and lands. Their wages were paid in fees by those who resorted for justice to their courts.

5. These fees were not bribes. If the satirists, from Latimer to Nashe, described the Bench of Bishops and the Bench of Judges as taking bribes, it was only in the vein common to lampooners in every age of the world; the vein in which Boccaccio describes his Friars, and Jonson his Justice Overdos. Serious men made no complaint. Judicial corruption was not a grievance in 1604. In 1606 an attempt to reduce the fees in one department of Chancery business was rejected by the popular party in the House of Commons.

In the Great List of Grievances, drawn up in 1604, we find complaints that Cecil lives in adultery, that Parliament is packed with courtiers, that the Forest Laws have been revived, that pardons are sold to cutthroats and felons, that monopolies are granted to duns, and patents bestowed on extortioners and pimps; not that the great lawyers are thought corrupt, or that justice is supposed to be bought and sold.

Nor is such a grievance felt though undescribed. In the List of Grievances there is one charge against the Lord

5. Dom. Papers James First, i. 68, S. P. O.

1620. Nov.

XII. 5. Chancellor Egerton. Had there been a second, it would certainly have been named. In 1604 the charge which law reformers made against Egerton was that he held the two offices of Master of the Rolls and Keeper of the Great Seals. It never occurred to these men to complain that he took his wages in the shape of fees.

6. In 1606 a bill was laid before the Commons, by a disappointed jobber, to reduce some of the fees for copies in the Court of Record. In the debates on this bill Bacon assumed a leading part. The argument of counsel was against the interference of Parliament, in the unfair fashion of the bill, with what Bacon called the freeholds of the officers in that Court. The notes of his speech, which are in the Bodleian Library, and have not been printed, put the case as it appeared to the best minds in England in 1606, a year before he held any office under the Crown. Bacon showed that the bill to reduce the fees for copies originated in a spirit, not of reform, but of revenge; that a similar bill had, in years gone by, been promptly rejected by the House; that such a law to cut down fees was unprecedented; that the bill was retroactive, against all law and justice; that a man's right in his fees was sacred as his right in his goods and lands. Remembering all that is to follow, with how much curiosity one reads these nineteen heads of a discourse against the bill!

SIR FRANCIS BACON'S SPEECH.

First: It hath sprung out of the ashes of a decayed monopoly by the spleen of one man; that, because he could not continue his new exactions, therefore would now pull down ancient fees.

6. Tanner MSS. 169, fol. 42; Com. Jour., i. 259, 268, 279.