et elles doivent étre payées par préférence à toute autre dette. Elles ne son! pas aussi faisissables, et sont payées par provision, nonobstant l'appel.

Mr. Butler's Life of the Chancellor de l'Hópital. In Mr. Butler's life of the Chancellor Michel de l'Hôpital there are three chapters upon the Chancellor's wish to reform abuses in the administration of justice.

Ist. The abolition of the sale of law offices.
2nd. The abolition of the custom of making presents by the suitors to

the judges.
3rd. The abolition of fees to counsel.
The second chapter, upon

" the abolition of the custom of making presents by the suitors to the judges," the only important chapter relating to the present subject is annexed.

Chap. X.- The Chancellor l'Hôpital wishes to abolish the Epices. Another reformation in the administration of justice, which l'Hôpital wished to effect, was the abolition of the épices, or presents made, on some occasions, by the parties in a cause, to the judges by whom it was tried.

A passage in Homer, (24 II.) where he describes a compartment in the shield of Achilles, in which two talents of gold were placed between two judges, as the reward of the best speaker, is generally cited to prove, that even in the earliest times, the judges were paid for their administration of justice ; but an attentive reader will probably agree with Mr. Mitford in his construction of this passage, that the two talents were not the reward of the judge who should give the best opinion, but the subject of the dispute, and were to be adjudged to him, who established his title to them by the best arguments.—Plutarch mentions, that, under the administration of Pericles, the Athenian magistrates were first authorized to require a remuneration from the suitors of their courts. In ancient Rome, the magistrates were wholly paid by the public; but Justinian allowed some magistrates of an inferior description to receive presents, which he limited to a certain amount, from the suitors before them. Montesquieu (Esprit des Loix, L. xxviii. ch. 35), observes, that " in the early ages of the feudal law, when legal proceedings were short and simple, the lord defrayed the whole expense of the administration of justice in his court. In proportion as society became refined, a more complex administration of justice became necessary; and it was considered that not only the party who was cast, should, on account of his having instituted a bad cause, but that the successful party should, on account of the benefit which he had derived from the proceedings of the court, contribute, in some degree, to the expenses attending them; and that the public, on account of the general benefit which it derived from the administration of justice, should make up the deficiency." To secure to the judges the proportion which the suitors were to contribute towards the expense of justice, it was provided, by an ordonnance of St. Louis, that at the commencement of a suit, each party should deposit in court the amount of one tenth part of the property in dispute : that the tenth deposited by the unsuccessful party should be paid over to the judges on their passing sentence ; and that the tenth of the successful party should then be returned to him. This was varied by subsequent ordonnances. Insensibly it became a custom for the successful party to wait on the judges, after sentence was passed, and, as an acknowledgment of their attention to the cause, to present them with a box of sweetmeats, which were then called épices, or spices. By degrees, this custom became a legal perquisite of the judges; and it was converted into a present of money, and required by the judges before the cause came to hearing : Non deliberetur donec solventur species, say some of the ancient registers of the parliaments of France. That practice was afterwards abolished; the amount of the épices was regulated ; and, in many cases, the taking of them was absolutely forbidden. Speaking generally, they were not payable till final judgment; and, if the matter were not heard in court, but referred to a judge for him to hear, and report to the court upon it, he was entitled to a proportion only of the épices, and the other judges were entitled to no part of them. Those among the magistrates who were most punctual and diligent in their attendance in court, and the discharge of their duty, had most causes referred to them, and were therefore richest in épices; but the superior amount of them, however it might prove their superior exertions, added little to their fortune, as it did not often exceed 501. and never 1001. a year. The judges had some other perquisites, and also some remuneration from government; but the whole of the perquisites and remuneration of any judge, except those of the presidents, amounted to little more than the épices. The presidents of the parliament had a higher remuneration : but the price which they paid for their offices was proportionably higher, and the whole amount, received by any judge for his épices, perquisites, and other remunerations, fell short of the interest of the money which he paid for the charge; so that it is generally true, that the French judges administered justice not only without salary, but even with some pecuniary loss. Their real remuneration was the rank and consideration which their office gave them in society, and the respect and regard of their fellow citizens. How well does this illustrate Montesquieu's aphorism, that the principle of the French monarchy was honour ! It may be truly said, that the world has not produced a more learned, enlightened, or honourable order in society, than the French magistracy.

Englishmen are much scandalised when they are informed that the French judges were personally solicited by the suitors in court, their families and protectors, and by any other person whom the suitors thought likely to influence the decision of the cause in their favour. But it all amounted to nothing :-to all these solicitations the judges listened with equal external reverence, and internal indifference; and they availed themselves of the first moment when it could be done with decency, to bow the parties respectfully out of the room : it was a corvée on their time which they most bitterly lamented.

Inquiry whether Presents were made to Judges in England.

Before time of James.-21 Henry VI. Receiving presents was a practice neither uncommon among his predecessors in that court, nor, I believe, imputed to them for unrighteousness. This will appear plainly by the curious anecdote that follows; which I myself copied from the original manuscript, in the possession of Henry Wise, Esq. of Hampton Court. (a)

Declarant etiam executores predicti quod ipsi ad speciale rogatum predicti domini Henrici fili docti Domini nuper comitis, quod erat eis ad preceptum, dederunt Domino Cancellario Angliæ, 1 shaving bacyn argenti, quæ erat predicti domini patris sui, viz. Ad excitandum dictum Dominum Cancellarium fore benevolum et benefacientem materiis dicti Domini Henrici in curiis Domini regis pendentibus pretium viri£.

Declarant etiam executores predicti quod ipsi dederant Domini Archi. Cantuariæ Cancellario Angliæ, J. saultauri ad similitudinem Cervi jacentis facti, quod erat dicti domini nuper comitis, appretiatum ad £40. 16s. 8d. ad intentionem ut ipse Dom. Archi. et Canc. suum bonum Dominum et auxilium dictis executoribus favorabiliter ostenderet et faceret in certis materiis que versus eosdem executores ad grave prejudicium et impedimentum debite executionis testamenti et ultime voluntatis dicti Domini nuper comitis subtiliter movebantur; ad valentiam sicut predicitur.

This paper is called, Declaracio Thomæ Huggeford, Nicoli Rody et Willi. Berkswel presbyter. These were executors and feoffees of Richard Beauchamp, Earl of Warwick, and this declaration was made in the 21st year of Henry the Sixth, to account for certain plate, jewels, and so forth, which had come into their hands as his executors.

(a) I copied this some years ago, but I have forgotten from whence.

or whomas Wom

Lie of fir Tomas Wore. His intente ne sufics is safe earts yoved in the einest state of his sousladen en ve Bizei tie mais m deze te wo or three secdotes * rit on lusstrate his art at vis aracter.

der as ail, the art at Fitaire, te amner i tane Baieyte, preferred a omniant wins£ iim 'a te minel or saving aken a are from one Vaughan. Bromas infesses hat e Ta Preven te o mm tie hands of Vaagnan's rite, vt mmessiate y viering te vuiler dil I with wine, le draak to ber, ind when she sad pleclut um, says je, “ = irely as your husband hash riven this cup is ne, ses y Teeny ave i the same to you again, to give io janr husband for us sew year 3 tt.**

Ar znames sime one Gesnam javing a cause tegending in Chancery, seat Sir Thomas - Sar pit cig, he fastuon si which giessert him so weil, that be 63 sort one of sis 1w1, af more paille o be telivered the messenger for his masier aor vond je esave I in any other condic0n.

Pring presenet 19 aty with a pair of loves, and forty pounds in angels in them, ne sau o ler, Mistess, since it were against pood manners to refuse yar sew year's it, I am content to take your poves, but as for the biaing, I perty retise in

Tie Siow aq merstate of More is given by Lord Bacon in bis Essars :A serzna who want a air m Chancery sent 1m two silver tagvos, doe doabling of the aqresa secess of the present. On receiving them, More calied one of his sertats, and 'oid him to til hese two vesseis wis the best wine in his cellar; and unming round to 'ne servant who had presented them, “ Teil your master, Tepi et the intex.ble magistrate, " that it ne approves my wine, I beg he would not spare it."

Presents made temp. Jac.

Sir Angustine Nicholls. Befine the time of Lord Bacon.-In Lloyd's life of Sir Augustine Nicholls, who was one of the judges in the time of james the First, he says, “ He bad szemplary integrity even to the rejection of gratuities after judgment given, and a charge to his forlowers that they came to their places clear handed, and that they should not meridle with any motions to bim ihat be might be secured from all appearance of corruption.

When the charge was made against Lord Bacon, the following observation was made in the House of Commons, as appears in the Journals of Luna 26 Martii, 19° Jacobi – Alford. That the Chancery bindereth commerce at home. Many things propounded about the Lord Chancellor. Thinketh he took gra. tuities; and the Lord Chancellor before, and others before him. Hath a ledgerbook, where 303. given to a secretary, and 101. to a Lord Chancellor, for his prains in hearing a cause. Will proceed from Chancellor to Chancery: will offer hearis, to be considered by a committee. The Chancery to be confined to breach of trust, covin, and accident. Not to have our wills, or gift of lands, questioned, where no fraud.

That before the time of Lord Bacon it was customary to make presents to the Chancellor may, as it seems, be collected from the nature of the charges made against Lord Bacon, from which it appears that presents were made to him within a few hours after he was entrusted with the seals; that they were made publicly, and as a matter of course, by men of eminence who were counsel in the caure, and were made generally after the cause was decided, and by both parties to the suit, and had not any influence upon the judgment. Now as Lord Bacon held the great seals only four years, it is scarcely possible to sup; pose that such a custom could, during this short interval, have originated, and ihus extensively and deeply pervaded the profession.

That they were made openly appears from the following facts.

They were made by counsel in the cause and persons of eminence. In his answer to the 24th, 25th, and 26th charges in which the Chancellor was accused of having received presents from the companies of Grocers and Apothecaries, he says, “If I had taken it in the nature of a bribe, I knew it could not be concealed, because it must be put to the account of the three several companies.” On the 20th of March Sir Richard Young said, in the House of Commons, that, when he attended upon my Lord Chancellor, Sir John Trevor's man brought a cabinet, and a letter to my Lord Chancellor, and entreated me to deliver it, which I did openly; and this was openly done, and this was all I knew of it. Sir Edward Coke said, “ It was strange to him that this money should be thus openly delivered, and that one Gardner should be present at the payment of the £200.”

The Charges. That it was customary for presents to be made by the suitors to the Chancellor in the time of Lord Bacon, may be collected from his lordship’s answers to the charges which were preferred against him.

In the first charge, which was in the case of Egerton and Egerton, the cause was heard by the Chancellor, with the assistance of Lord Hobart, and the present was made some days after the decision was pronounced. Unless it was customary in these times to receive presents, why was the present made after the cause was decided ? His words are: “I do confess and declare, that upon a reference from his majesty of all suits and controversies between Sir Rowland Egerton and Edward Egerton, both parties submitted themselves to my award by recognizances reciprocal in ten thousand marks apiece; thereupon, after divers hearings, I made my award with the advice and consent of my Lord Hobard; the award was perfected and published to the parties, which was in February. Then some days after the £300. mentioned in the charge was delivered unto me. Afterwards Mr. Edward Egerton Aed off from the award ; then in Midsummer term following a suit was begun in Chancery to have the award confirmed, and upon that suit was the decree made mentioned in the article.

The second charge is in the same cause. In the first charge the present was made on behalf of Rowland Egerton, one of the suitors. In the second charge it was made on behalf of Edward Egerton, the other suitor ; and on his behalf the presents were made by men of eminence, Sir George Hastings, and Sir Richard Young, counsel in the cause, and members of parliament. Unless, therefore, it can be supposed that the whole bar could be accessary to crime, and that suitors could be so wild as to imagine that the judgments would be influenced by money presented by both parties, it seems to follow that it was customary to receive presents. It appears also in the Chancellor's answer to this second charge, that the presents were made soon after his coming to the seals, when presents were made by many. His words are: “I confess and declare, that soon after my first coming to the seal, being a time when I was presented by many, the £400. mentioned in the said charge was delivered unto me in a purse, and as I now call to mind from Mr. Edward Egerton, but as far as I can recollect, it was expressed by them that brought it to be for favours past, and not in respect of favours to come.”.

To the third charge, which was the case of Hody and Hody, the present was also made after the decision, and made by Sir Thomas Perrott, who was, I suspect, counsel in the cause, and was a present of gold buttons worth £50. which, even if it had been before the decision, can scarcely be supposed to be the bribe that would be made to influence the judgment in a cause of great inheritance. His words are; “ I confess and declare, that as it is laid in the charge, about a fortnight after the cause was ended it being a suit for a great inheritance there was gold buttons about the value of £50. as is mentioned in the charge presented unto me, as I remember by Sir Thomas Perrott and the party himself.”

In the fifth charge, which was in Sir Thoma Monck's case, the present was made three quarters of a year after the decree, and it was made by Sir Henry Holmes, who was probably one of the counsel for Sir Thomas Monck. His words are: “I confess it to be true that I received a hundred pieces; but it was long after the suit ended, as is contained in the charge."

In the sixth charge, which was in the cause of Trevor and Ascue, the present was made by some person on the part of Sir John Trevor, and after issue directed, and was presented, as seems to have been customary, as a new year's gift. His words are : “ I confess and declare, that I received as a new year's gift £100. from Sir John Trevor; and because it came as a new year's gift, I neglected to inquire whether the cause was ended or depending, but since I find that though the cause was then dismissed to a trial at law, yet the equity is reserved, so as it was in that kind pendente lite.

In the seventh charge, which was in the case of Holman and Young, the present was made either by Mr. Tobie Matthew or by Mr. Young, and made after the cause was ended. Mr. Tobie Matthew was the son of Dr. Matthew, Archbishop of York. He was an intimate friend of Lord Bacon's. He was a lover of intellectual pursuits, and translated Lord Bacon's Essays into Italian. He was a religious and conscientious man. He submitted to great privations for ten years from 1607 to 1617) on account of his religious opinions, having been seduced by Father Parsons to the Catholic religion. He was knighted by King James, 1623.

Is it possible to suppose that such a man would have offered these presents, unless it was in compliance with a general custom ? Is not Bishop Taylor right when, in his Essay on Friendship, he says, “ He that does a base thing in zeal for his friend burns the golden thread that ties their hearts together.”

His words are : “I confess and declare, that as I remember, a good while after the cause ended I received £100. either by Mr. Tobie Matthew, or from Young himself; but whereas I have understood that there was some money given by Holman to my servant Hatcher, to that certainly I was never made privy.”

In the eighth charge, which was in the case of Fisher and Wrenham, a suit of hangings was given by Mr. Shute, who was I conceive counsel in the cause, and after the cause was decided. It was given towards finishing his house, as others, no ways suitors, did about that time present him. His words are: “I confess and declare that some time after the decree passed, I being at that time upon remove to York House, I did receive a suit of hangings of the value, I think, mentioned in the charge by Mr. Shute, as from Sir Edward Fisher, towards the furnishing of my house, as some others, that were no way suitors, did present me with the like about that time.”

The 10th charge, which was in the cause of Vanlore, the fact of a loan of £1000. was so far from being a secret that Lord Bacon wrote 10 a friend about the king, stating that he owed the money, and wished it to be set off against a sum due from him for a fine. His words are : “I confess and declare, that I borrowed the money in the article set down, and that this is a true debt; and I remember well that I wrote a letter from Kew, about a twelvemonth since, to a friend about the king, wherein I desired, that whereas I owed Peter Vanlore £2000. his majesty would be pleased to grant me so much out of his fine set upon him in the Star Chamber.

The eleventh charge, which was in the cause of Scott and Lenthall, the present was made after the decree, by Mr. Shute, whom, as I have before stated, I conceive to have been counsel on behalf of Scott; and in the charge, which was in the same cause, a present was made by his servant Sherborn, on behalf of Sir John Lenthall, who seems not to have been an adverse party, but some third person who was benefited. His words are: “I confess and declare, that some fortnight after, as I can remember, that the decree passed, I received £200. as from Mr. Scott, by Mr. Shute; but precedent, promise, or transaction by Mr. Shute, certain I am I know of none."

The thirteenth charge, which was in the cause of Worth and Manwaring, which was a cause for a valuable inheritance, the present was made by Mr. Worth, some months afte cause was ended, which was ended not after conflict but by consent. His words are: “I confess and declare, that this

« VorigeDoorgaan »