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 practitioners 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 circumstances 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 Cheshire, King's Sergeant, made an average annual income of 3241l. 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 1320l. per annum. Mr. Foss, to whom the present writer is indebted for these particulars with regard to Sir John Cheshire'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 shilling 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, 121l. 2nd, 201l.; 3rd and 4th, between 300l. and 400l. per annum; 5th, 700l.; 6th, 800l.; 7th, 1000l.; 9th, 1600l.; 10th, 2500l. Whilst Solicitor General he made 3400l. in 1757; and in the following year he earned 5000l. His receipts during the last year of his tenure of the Attorney Generalship amounted to 7322l. The reader should observe that as Attorney General he made but little more than Coke 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 surpass the revenues of the most successful advocates of the Edinburgh faculty. A hundred and thirty years since a Scotch barrister who earned 500l. 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 assertions 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 quantity 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 shillings. In the other eleven months I got one shilling." 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, 6833l. 7s.; 1787, 7600l. 7s.; 1788, 8419l. 14s.; 1789, 9559l. 10s.; 1790, 9684l. 15s.; 1791, 10,213l. 13s. 6d.; 1792, 9080l. 9s.; 1793, 10,330l. 1s. 4d.; 1794, 11,592l.; 1795, 11,149l. 15s. 4d.; 1796, 12,140l. 15s. 8d.; 1797, 10,861l. 5s. 8d; 1798, 10,557l. 17s. 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. Noblemen 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 Duchess 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 practitioners 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 circumstances 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 circumstances, 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 circumstances 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 classes 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 circumstances 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 illustrating the social condition of legal practitioners. 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 accumulating 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 Éclat 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-practitioners 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.