The Crown consists of diamonds, pearls, rubies, sapphires, and emeralds, set in silver and gold; it has a crimson velvet cap with ermine border, and is lined with white silk. Its gross weight is 39 oz. 5 dwts. troy. The lower part of the band, above the ermine border, consists of a row of one hundred and twenty-nine pearls, and the upper part of the band a row of one hundred and twelve pearls, between which, in front of the Crown, is a large sapphire (partly drilled), purchased for the Crown by His Majesty King George the Fourth. At the back is a sapphire of smaller size, and six other sapphires (three on each side), between which are eight emeralds.
Above and below the seven sapphires are fourteen diamonds, and around the eight emeralds one hundred and twenty-eight diamonds. Between the emeralds and sapphires are sixteen trefoil ornaments, containing one hundred and sixty diamonds. Above the band are eight sapphires surmounted by eight diamonds, between which are eight festoons consisting of one hundred and forty-eight diamonds.
In front of the Crown, and in the centre of a diamond Maltese cross, is the famous ruby said to have been given to Edward Prince of Wales, son of Edward the Third, called the Black Prince, by Don Pedro, King of Castile, after the battle of Najera, near Vittoria, A.D. 1367. This ruby was worn in the helmet of Henry the Fifth at the battle of Agincourt, A.D. 1415. It is pierced quite through after the Eastern custom, the upper part of the piercing being filled up by a small ruby. Around this ruby, to form the cross, are seventy-five brilliant diamonds. Three other Maltese crosses, forming the two sides and back of the Crown, have emerald centres, and contain respectively one hundred and thirty-two, one hundred and twenty-four, and one hundred and thirty brilliant diamonds.
Between the four Maltese crosses are four ornaments in the form of the French fleur-de-lis, with four rubies in the centres, and surrounded by rose diamonds, containing respectively eighty-five, eighty-six, and eighty-seven rose diamonds.
From the Maltese crosses issue four imperial arches composed of oak-leaves and acorns; the leaves containing seven hundred and twenty-eight rose, table, and brilliant diamonds; thirty-two pearls forming the acorns, set in cups containing fifty-four rose diamonds and one table diamond. The total number of diamonds in the arches and acorns is one hundred and eight brilliants, one hundred and sixteen table, and five hundred and fifty-nine rose diamonds.
From the upper part of the arches are suspended four large pendent pear-shaped pearls, with rose diamond caps, containing twelve rose diamonds, and stems containing twenty-four very small rose diamonds. Above the arch stands the mound, containing in the lower hemisphere three hundred and four brilliants, and in the upper two hundred and forty-four brilliants; the zone and arc being composed of thirty-three rose diamonds. The cross on the summit has a rose-cut sapphire in the centre, surrounded by four large brilliants, and one hundred and eight smaller brilliants.
The following is the summary of jewels comprised in the Crown:—
| 1 | Large ruby, irregularly polished. |
| 1 | Large broad-spread sapphire. |
| 16 | Sapphires. |
| 11 | Emeralds. |
| 4 | Rubies. |
| 1363 | Brilliant diamonds. |
| 1273 | Rose diamonds. |
| 147 | Table diamonds. |
| 4 | Drop-shaped pearls. |
| 273 | Pearls. |
It is difficult to declare what is the precise value of the jewels in the Queen’s crown; but it is confidently affirmed that, unlike most other princely crowns in Europe, whether of kings, emperors, or grand dukes, all the jewels in the British crown are really precious stones; whereas in other state crowns valuable stones have been replaced by coloured glass, and the consequence is that their estimated value is far beyond what such crown jewels are really worth.
The Queen’s foreign-service Messengers are fifteen in number. The first three for service are obliged to be in attendance at the Foreign-office. Formerly there was no distinction between them and the home-service messengers; they were all under the Lord Chamberlain, and their connexion with his office is said to be the origin of the silver greyhound pendent from their badge. At a later period they were transferred to the Secretaries of State, and took journeys abroad indifferently in their turn, but in 1824 there was a separation into home and foreign service. Lord Malmesbury reduced the number of foreign-service messengers from eighteen to fifteen; and these are found quite sufficient, owing to the greater speed with which journeys are now performed, and the introduction of the electric telegraph rendering many journeys unnecessary. The Queen’s messengers formerly had very small salaries, only 60l. a year, but made large profits by mileage and other allowances when employed. The situation was worth 800l. or 900l. a year; it has been altered to a salary of 525l. and the travelling expenses. This was considered by the messengers too great a reduction of their income. Earl Russell has introduced a new plan, giving them salaries of 400l. a year and 1l. a day for their personal expenses while employed abroad, besides their travelling expenses. Queen’s messengers are treated with great kindness and consideration abroad; they are usually invited to the Minister’s table. They are examined on appointment by the Civil Service Commissioners: the qualifications required are an age between twenty-five and thirty-five, some knowledge of French, German, or Italian, and ability to ride on horseback. The home-service messengers occupy a very inferior position.
The resolution of the Royal Family to decline all presents was conveyed, in 1847, to a gentleman at Sheffield, in the following official letter from Sir Denis Le Marchant:—“Whitehall, Oct. 5, 1847: In the absence of Secretary Sir George Grey, I have to acknowledge the receipt of a small box, containing a gold bijou, sent by you to the Queen, as a present for his Royal Highness the Prince of Wales; but, in consequence of the very great number of presents of this nature which have been offered to her Majesty, it has been found absolutely necessary, to avoid the possibility of giving individual offence, that her Majesty should decline presents generally, and the box is therefore declined.” [This rule is not, however, invariably observed.]
Again, it is contrary to established rule for the Lord Chamberlain to receive any letter addressed to Her Majesty, if the same be sealed.
Sir C. B. Phipps explains in a letter the absence of her Majesty’s name from the subscription-list for the widow of the late Captain Harrison, of the Great Eastern. He states: “It is contrary to established rule for her Majesty the Queen, or the Prince Consort, to join a subscription for a private individual.”
It will be recollected that, in 1815, the Duke of Wellington received the grant of Prince of Waterloo, which was understood to have been given to his Grace and to his direct descendants. After the death of the Duke in 1852, the question of succession to the title was discussed in the Belgian House of Representatives, when, in reply to a request for information upon the subject, M. Frère-Oban stated that, upon inquiry, he had learned that the direct line of the Duke of Wellington was not extinct; for although the rights claimed by his son were contested, because at the time of his birth the system of registration was imperfect or irregular, yet it had subsequently been proved by other means, and particularly by an inscription in a family Bible, that the present Duke was the legitimate offspring of the first Prince of Waterloo, and as such was entitled to be recognised as one of the direct lineal descendants who were included in the original grant.
It may not be generally known that the See of London was archiepiscopal in the time of the ancient Britons, before the mission of Augustine. In the thousand years which intervened between his era and that of the Reformation, the See of London numbered no less than eighty prelates, the most distinguished of whom were St. Dunstan, Warham, Courtenay, and Bonner, the last of whom was deprived by King Edward VI., and again, after his temporary restoration under Queen Mary, by Elizabeth. The reformed list commences with Bishop Ridley, who was burnt at Oxford under Queen Mary; and from whom the present occupant of the See, Dr. Tait, is twenty-eighth in descent. Among those prelates occur the names of Grindal, Bancroft, Abbott, Laud, Juxon, and Sheldon, all of whom were eventually promoted to archbishoprics—Grindal to York, and the rest to Canterbury. One prelate before the Reformation, Bishop Tonstal, and one since that time, Bishop Montaigne, were translated from London to the wealthier See of Durham; but from Dr. Sheldon, who held the See after the Restoration, down to Dr. Howley, the immediate predecessor of Bishop Blomfield, not a single instance occurs either of a translation from the See of London, or of a direct appointment to the bishopric, except by translation from another see. The Diocese of London, until the last few years, comprised the counties of Essex and Middlesex. By a recent enactment, however, the former county has been transferred to the diocese of Rochester, in exchange for the parishes of Charlton, Woolwich, Deptford, Greenwich, and other suburban districts in the county of Kent. To these at the next avoidance of the See of Winchester will be added the whole of Southwark, Lambeth, Clapham, Wandsworth, Tooting, and Battersea, together with one or two adjoining districts in the county of Surrey.
The fees chargeable on a Baronetcy in the Heralds’-office are reported by Sir C. G. Young, Garter King-at-Arms, to amount to 21l. 2s. 3d. (payable to the Heralds’ College), besides which there is a sum of 15l. 2s. 4d., “incidental to the creation of a baronet,” and payable for the necessary certificate of his arms and pedigree registered in the college, so that the sum total payable to the Heralds’-office is 36l. 4s. 7d. The newly-created baronet, it would appear, is further mulcted by the Crown-office in the sum total of 257l. 9s. 1d., of which 120l. is for stamps, nearly 58l. for the royal household, and 21l. for the heralds.
The Knight Bachelor is required to pay a fee of 9l. 8s. 3d. if the dignity is conferred by the Sovereign; 9l. 13s. 6d. if it is conferred by patent; and 18l. 15s. 2d. when the knighthood is conferred prior to the admission into the Order of the Bath as a G.C.B. This is in the Heralds’-office. In the Crown-office a sum of 155l. 12s. 10d. is exacted, of which 30l. is for stamps and 69l. 19s. 4d. for the royal household. As regards the Order of the Bath, there are no fees chargeable by the Heralds’ College, except on the preliminary grade of common Knighthood already described.
The robes, collars, and badges for the Knights of the several Orders are also very costly. The sum of 4625l. 10s. 7d. was charged for items, including four silver boxes for the great seal of the Order of the Garter for the Sultan and the King of Sardinia, repairs of collars, ribands, stationery, &c. The complete robes, of the Order of the Garter for the King of Sardinia cost 346l., and the same for the Sultan (excepting the silver under-dress), 279l. Two mantles of the Garter and one of the Thistle cost 190l. The banner of the King of Sardinia in St. George’s Chapel is charged by the herald painter at 27l. 17s. 6d. The goldsmith charges 2378l. for 140 new military companions’ badges, at 16l. 9s. 9d. each; 195l. for fifteen new civil commanders’ badges, at 13l. each; 302l. for 130 new civil companions’ badges at 10l. 1s. 9½d. each; 157l. for nine new silver enamelled stars (G.C.B.), at 17l. 10s. each; 261l. for eighteen new military K.C.B. stars, at 14l. 10s.; and 295l. for re-enamelling and “making as new” twelve collars and eighty-eight badges, besides other items. These honours have, on some occasions, been made as profitable to the Sovereign as to his officers of State. James I. became the subject of much ridicule, not quite unmerited, for putting honours to sale. He created the order of baronet, which he disposed of for a sum of money; and it seems that he sold common knighthood as low as thirty pounds, at least it was so reported. In the old play of Eastward Hoe, one of the characters says: “I know the man well: he is one of my thirty-pound knights.”
Mr. Lothair Bucher, in the Transactions of the Philological Society, Berlin, 1858, writes:
“One may safely affirm beforehand that the word ARISTOCRACY has been part and parcel of the English language from a very early period. But the Attorney-General in Horne Tooke’s trial (1795) in enumerating the new opinions propagated by the friends of the accused, and the new terms in which they conveyed those opinions, says—‘To the rich was given the name Aristocracy;’ and in considering this application of the term as a new one, he is evidently quite correct.”
“Now,” writes a critic in the Saturday Review, “Aristocracy is the name of a particular form of Government; it is an abuse of language to apply it to a class of people. Yet, when one says—‘the Government of Berne was an aristocracy,’ it is a very slight change to speak of ‘the aristocracy of Berne,’ meaning the patrician order, or its members. The word was doubtless brought into use in England because the class which it was intended to stigmatize as an ‘aristocracy’ was a class more extensive than the ‘nobility,’ in the English use of that word. Now the name has ceased to be a stigma. The words ‘aristocrat,’ ‘aristocratic,’ ‘aristocracy,’ are often used in a complimentary way. But, to our taste at least, there is always a smack of vulgarity about them.”
To the readers of the reports of parliamentary debates, in the newspapers, it may be useful to state, upon the authority of Mr. May, that “in the Commons no places are particularly allotted to members; but it is the custom for the front bench on the right hand of the (Speaker’s) chair to be appropriated for the members of the Administration, which is called the Treasury or Privy Councillors’ Bench. The front bench on the opposite side is usually reserved for the leading members of the Opposition who have served in high offices of State; but other members occasionally sit there, especially when they have any motion to offer to the House. And on the opening of a new Parliament, the members for the city of London claim the privilege of sitting on the Treasury or Privy Councillors’ Bench.”—May, on the Practice and Law of Parliament.
The smaller boroughs having been from the earliest period under the command of neighbouring peers and gentlemen, or sometimes of the Crown, were first observed to be attempted by rich capitalists in the general elections of 1747 and 1755: though the prevalence of bribery in a less degree is attested by the statute-book, and the journals of Parliament from the Revolution, it seemed not to have broken the flood-gates till the end of the reign of George II., or rather perhaps the first part of the next. The sale at least of seats in Parliament, like any other transferable property, is never mentioned in any book that the writer remembers to have seen of an earlier date than 1760. The country gentlemen had long endeavoured to protect their ascendancy by excluding the rest of the community from Parliament. This was the principle of the Bill, which, after being repeatedly attempted, passed into a law during the long administration of Anne, requiring every member of the Commons, except those for the Universities, to possess, as a qualification for his seat, a landed estate, above all incumbrance, of 300l. a-year. The law was, however, notoriously evaded; and was abolished in 1858, by the Act 21 Vict. cap. 26.
In 1694 a bill passed both Houses “touching free and impartial proceedings in Parliament,” against the eligibility of Placemen. On its discussion Mr. Harley, afterwards Earl of Oxford, remarked, that “in the 1st of James I., the Chancellor, studious of the good of the kingdom, sent down to the House of Commons a list of the members in office, and they were turned out of the House, and new members chosen.” King William, however, refused his sanction to this Act. “A Dutchman (says Mr. Burgh) comes over to Britain on pretence of delivering us from slavery, and makes it one of his first works to plunge us into the very vice which has enslaved all the nations of the world that have ever lost their liberties. When the Parliament passed a bill for incapacitating certain persons who might be supposed obvious to Court influence, our glorious Deliverer refused the royal assent.”
Nothing is more plausible than to talk of strengthening an order by making it more popular in its constitution, &c.; but practically, we know that in early days in England nothing was so unpopular as a batch of bran-new potentates. The proofs are abundant. When James I. began scattering coronets (“crownets,” they called them in old times), a wag issued a pamphlet which professed to teach people “How to remember the names of the Nobility.”—Hannay.
Hereditary likeness is one of the commonest phenomena in the world, and is an index of the moral resemblance which makes character of a particular class run through a line, and thus, in free countries like ours, produces hereditary politics and affects the fortunes of the State, as was the case at Rome. “A Russell,” says Niebuhr, very justly, “could not be an absolutist; the thing would be monstrous.” This conviction is, no doubt, one excellent reason why Liberals glorify the race with such constancy.—Hannay. [Is not this the reason why Lord John Russell, when raised to the Peerage in 1861, preferred to the Earl of Ludlow the title of Earl Russell? He would not part with the glory.]
The obtaining of the same ends by opposite means is exemplified as follows:—Jack Cade, when he wanted to be popular, called himself a Mortimer, and said his wife was a Lacy! The great Napoleon, to win the Continent, on the contrary, professed that he belonged to the canaille, though he knew, and his brother Joseph, and all of them well knew, that the Buonapartes were good Italian nobility.—Hannay.
The term “Union-jack” is one which is partly of obvious signification, and in part somewhat perplexing. The “Union” between England and Scotland, to which the flag owed its origin, evidently supplied the first half of the compound title borne by the flag itself. But the expression “jack” involves some difficulty. Several solutions of this difficulty have been submitted, but, with a single exception only, they are by far too subtle to be considered satisfactory. A learned and judicious antiquary has recorded it as his opinion, that the flag of the Union received the title of “Union-jack” from the circumstance of the union between England and Scotland having taken place in the reign of King James, by whose command the new flag was introduced. The name of the king in French, “Jaques,” would have been certainly used in heraldic documents: the union flag of king “Jaques” would very naturally be called after the name of its royal author, Jaques’ union, or union Jaques, and so by a simple process we arrive at union-jack. This suggestion of the late Sir Harris Nicolas may be accepted without any hesitation; and the term “jack” having once been recognised as the title of a flag, it is easy enough to trace its application to several flags. Thus the old white flag with the red cross is now called the “St. George’s jack;” and English seamen are in the habit of designating the national ensigns of other countries as the “jacks” of France, Russia, &c.
We quote this sensible view from the Art Journal. The paper by Sir Harris Nicolas above referred to will be found in the Naval and Military Magazine for 1827; and with engravings, in Brayley’s Historic and Graphic Illustrator.
The title of Field-Marshal is one of comparatively modern date, having been first created only so far back as the reign of George I. In the London Gazette for the month of January, 1736, we find it announced that “His Majesty has been pleased to erect a new post of honour, under the title of Marshal of the Armies of Great Britain, and to confer the same on the Duke of Argyll and the Earl of Orkney, as the two eldest generals in the service.” The corresponding title up to that time would seem to have been that of “captain-general,” which was subsequently revived, as a distinction, in the person of William Duke of Cumberland, just previous to the Rebellion of ’45, and again in that of the late Duke of York in 1799. The title of field-marshal has been but sparingly conferred—only about thirty individuals, exclusive of royalty, having been gazetted as field-marshals during upwards of 120 years.
The usage at the Home Office in dealing with applications for Change of Name has been thus stated by the Secretary, Sir George Grey, there being no written law on the subject:
“About two hundred years ago, the practice of applying for permission to change names arose; and in 1783, in consequence of the frequency of the request, it was deemed necessary to put some check on it. A regulation was, therefore, made that all cases should be referred to the College of Arms. That reference is not, however, necessarily decisive, as it is intended only for the information of the department. That usage has been universally adopted, subject to the modification introduced by Sir Robert Peel, that where there are no plausible grounds for an application, and it is obviously the mere result of whim or caprice, it should be at once declined, without any reference to the College of Arms, leaving it to the applicant to change his name on his own responsibility.”
Now, Sir Robert Peel died in 1850, in which year a gentleman named Laurie obtained two royal licences to change his name; first to Northdale, and then to Nuthall, “in compliance with the will of the late Catherine Jack, spinster, of Sloane-street.” In 1851 a lady named Braham was permitted by royal licence to assume the name of Medows, on the plea that she was “the co-heiress expectant” of her aged grandmother, who was so called. In 1852 a gentleman named Rust was granted a royal licence to assume his wife’s maiden name, D’Eye, “out of respect to her memory.” In 1853 a Mr. Penny was allowed to assume the name of Harwood, “by wish of his mother, out of respect to his grandmother.” In 1854 Thomas Clugas, of Guernsey, was permitted by royal licence “to use his paternal name of Clucas.” In 1855 a Miss Galston was allowed to assume the name of Stepney, “out of respect to her maternal ancestors in general.” It is difficult to conceive more trifling grounds than these on which royal licences have been granted in the above-quoted instances.
The authorities are, however, divided in their opinions. The Lord Chancellor (in 1863) refused to recognise officially a change of name, because the applicant had not obtained the royal licence to bear that name, and the arms connected with it; while, on the other hand, the Secretary of State for the Home Department has declared that such a licence is unnecessary, and that a name can be legally assumed without it. But the claim to the new name assumed can only be established “by usage of such a length of time as to give the change a permanent character,” a reservation which has clogged the undoubted right of every Englishman to assume any name he pleases, provided the assumption be made bonâ fide, and with reasonable publicity, while it has the effect of placing everybody at the mercy of any ill-conditioned official who may take pleasure in obstructing him and opposing him.
Reference to the London Gazette proves that Royal licences have hitherto been constantly issued from capricious motives, and on no fixed principle whatever. Doubtless, in many cases, they have been granted in furtherance of testamentary conditions connected with property; but they have been quite as often granted merely to enable applicants to avoid names which were distasteful to them, and to assume others which were more agreeable to them.
As the qualification which Sir George Grey and the Lord Chancellor appear desirous of affixing to the right to change name, without the assistance of a Royal licence, virtually cancels that right altogether in a vast number of cases, it becomes, in consequence, highly important that the rules by which those indulgences are obtainable, and the amount of the fees which must be paid for them, should be exactly made known.
A Parliamentary Return states that since 1850 415 applications have been made for royal licence for a change of name, and 398 licences have been granted. There is a stamp duty of 50l. on every such licence if the change of name is made in compliance with the injunction of any will or settlement, and of 10l. if the application is voluntary. The fees payable are stated to be 10l. 2s. 6d. on a change of name only; 13l. 12s. 6d. on a change of name and arms; and 1l. 7s. 6d. for every additional name inserted in a licence; which fees are paid into the Exchequer. But the return is described as being made only “so far as relates to the Home Secretary’s office,” and therefore does not appear to include fees at the Heralds’ College.
To conclude—it does not appear that the Queen either claims or exercises any special prerogative whatever connected with the subject of change of surname; or that a Royal licence is anything more than the recognition in the highest quarter of a voluntary act already accomplished. Its recipient is not even compelled to bear for a day the surname which it authorizes him to assume; nor are other people enjoined by it to recognise him by that name, if they are not inclined to do so. The case of the Right Hon. R. C. Dundas, who in 1836 obtained a Royal licence, in compliance with the conditions of a Will by which he inherited a considerable estate, to bear the name of Christopher only, and who, in spite of that licence and without either procuring its revocat on or obtaining the grant of a fresh one, has since sat in Parliament under the surname of Nisbet, and who now bears the surname of Hamilton, assumed proprio motu, completely establishes this point.
Lord Chancellor Westbury, in the House of Peers, in the Session of 1863, made the following statement with reference to the revision and expurgation of the Statute Law, from the earliest commencement of our legislation down to the beginning of the 17th century—the legislation, in fact, of about 500 years.
The Laws are divided into Written and Unwritten law. The written is the statute law, and the decision of the judges constitutes the unwritten law of the land. The Statute Law[5] is in a great measure supplemental to the Common Law, and a knowledge of the common is necessary in order to enable a man to read and understand the statute law. The Common Law is only traditionary—it is supposed to reside in the breasts of the judges; accordingly, when it is necessary to ascertain it in the House of Lords, their lordships require the attendance of the judges, who are called upon to declare what that law is. In like manner, in the great court of equity to which belongs that large portion of natural justice which is repudiated by the common law, the judges have the power of determining what constitutes the rudiments of that law. This is, undoubtedly, a dangerous and a difficult trust. It is little less than legislative power, because the sources of common law are of the most varied character. It is probably derived in a great measure from customs and usages, recorded only in the memory of man; it is partly derived, no doubt, from old rules embodied in acts of which no record now exists. It is partly made up of relics of the old Roman jurisprudence which remained so long throughout the land; and it is partly the result of customs and maxims, handed down from one generation to another. The sources were so varied in ancient times that the custom of declaring the law also varied. In the old time it was impossible to know what the law was. The judges were not only legislators, but the worst of legislators—legislators ex post facto. Accordingly, at an early period, it became necessary for the protection of liberty, in order to get some kind of approach to uniformity, constancy, and regularity in the law, that the grounds and reasons of the judges’ decisions should be given. At first an attempt was made to do so by entering the reasons for the judgments in the rolls of the court; and our court rolls, preserved from the time of Richard I., contain repeatedly the reasons for the decisions and sentences. At the latter end of the reign of Edward II., or in the beginning of the reign of Edward III., the practice of reporting the decisions of the judges began, and from that period down we have a series of judicial reports of those decisions. That was a great security for the people, because it was an approach to certainty in the law. The origin and reason of it was a distinctive peculiarity in the English mind—namely, the love of precedent, a love of appealing to precedent rather than indulging in abstract reasoning. This was the only mode in which the law was recorded, and the only mode in which it became known. These reports were kept for a considerable period of time under the superintendence of the judges themselves, and great care was taken in sifting and ascertaining the grounds of the decision. The evil was, therefore, comparatively little; but in course of time, as the reports multiplied and as the personal superintendence and care of the judges were withdrawn, great complaints began to arise; and so much inconvenience was felt that, as early as the time of Lord Bacon, it became a subject of general dissatisfaction which attracted his attention, and led to his compiling and publishing his celebrated book for the amendment of the law of England. The Lord Chancellor, in his revision and expurgation, proposed to do little, if anything at all, more than revive the proposal of Bacon. “The wisdom and excellence of that proposal has been admitted from age to age; and the fact that nothing has been done to give effect to it we must attribute to the singular inertia that characterized the English Legislature.”
Most people have a confused idea that as new laws are made old ones are repealed; and that the Statute-Book, bulky as it is, contains nothing but what every Englishman is bound to know and observe. Such, however, is not the case: for the old laws, instead of being cleared away to admit the new ones, have been allowed to remain, so that nine-tenths of this Statute-Law is really not law at all; and if the Statute-Book were freed from the enactments which have become obsolete, or ceased to be in force without being specifically repealed, it would be reduced from forty to four or five volumes. Enough of confusion, prolixity, and repetition would still remain within this compass to exercise the wits and fill the pockets of the lawyers; but the perusal of it would no longer occupy a lifetime, and this excuse for our ignorance of it would be very much weakened.
To show the necessity of the revision of our Statute-Book, we shall quote from the schedule of the Bill presented by the Lord Chancellor to the House of Lords in the Session of 1863, a few samples of useless or inoperative enactments, to show how curiously the history of a bygone age is reflected in its legislation.
Here in the midst of provisions confirming or modifying feudal privileges and liabilities is, “The Sentence of Curse given by the Bishops against the Breakers of the Charters.” No less out of place in the Statute-book, according to modern notions, is “The Award made between the King and his Commons at Kenilworth.” Next, we light upon enactments prescribing “The Remedy if a Distress be impounded in a Castle or Fortress,” and prohibiting the custom of distraining upon one foreigner for the debt of another. By the famous Statute Circumspectè Agatis laymen are restrained from laying violent hands on a clerk, while other Acts warn “men of religion” against aggression on their lay neighbours. Then we come to a whole series of sumptuary laws, and laws for the encouragement or discipline of particular trades. Bread and ale are placed under special protection; butchers and cooks are forbidden to buy flesh of Jews, and sell the same to Christians; exporters of wool are to give surety to import silver in return; iron is not to be exported at all; “no shoemaker shall be a tanner, nor any tanner a shoemaker;” yet (by a later Statute) “shoemakers may tan leather till the next Parliament;” all merchandises of a certain kind are to be carried to Calais; gowns and mantles are to be worn of a specified length; salmon, herring, and eels are to be packed in a specified manner; long-bows are not to cost more than a specified sum; calves are not to be killed at the will of their owners; the “breade of horsys” is subjected to State control; and “the stuffynge of feather-bedds” does not escape the vigilance of Parliament. Most of these Acts, and a very large per-centage of all those which are proposed for repeal, have reference to a state of society which has little in common with our own. Instead of enacting that “every one may put his child to school,” we debate now-a-days as to whether he should not be compelled to do so; and, instead of fixing the rate of workmen’s wages by Act of Parliament, we tolerate a liberty of combination which sometimes enables them to exact more than the market value of their labour. If the habit of “telling slanderous Lyes of the Great Men of the Realm” is not quite extinct, it is no longer checked by penalties, and we are content to leave “fonde and fantasticale Prophesies” to refute themselves.
The expurgation by which it was proposed to rid the Statute-book of this lumber was originated some 250 years ago, by Bacon, as stated in pp. 104-105; but the statutes which he marked, before the Restoration or the Revolution, before the Union of Scotland or Ireland, before the abolition of the feudal tenures, before the passing of the Habeas Corpus Act, still encumber the Statute-book; and the plain, sensible, and unanswerable suggestions which he threw out for the heroic work of consolidating the statutes have remained without effect. Each succeeding generation has employed itself in adding something more to that mass of evil which the great philosopher felt and denounced. If the mind of Bacon was shocked at the tangled labyrinth of our Statute Law in the reign of James I., if Sir Matthew Hale occupied his mind with the same subject in the reign of Charles II., what would they have said could they have foreseen the 10,000 statutes passed in the reign of George III., and the Ossa which the industry of the last forty-five years has piled upon the shoulders of that mighty Pelion?
Sir Thomas Buxton relates that he once asked Sir James Scarlett what was the secret of his pre-eminent success as an advocate. He replied that he took care to press home the one principal point of the case, without paying much attention to the others. He also said that he knew the secret of being short. “I find,” said he, “that when I exceed half an hour I am always doing mischief to my client; if I drive into the heads of the jury important matter, I drive out matter more important that I had previously lodged there.”
To remove certain doubts of very recent growth (cast upon a matter previously deemed plain enough), the following statement is the result of a very careful inquiry:—Queen’s serjeants are sworn to “serve and counsel the Queen and duly to minister the Queen’s affairs, and sue the Queen’s process after the course of the law and after their cunning, and they are to take no fee of any one against the Queen.” Queen’s counsel, as distinguished from Queen’s Serjeants, are appointed by Letters Patent under the Great Seal, giving them precedence “in our courts as elsewhere.” The oath administered to Queen’s counsel is precisely the same as the oath administered to Queen’s serjeants. Next after Queen’s counsel come serjeants-at-law, who, on taking their degree, swear that they shall “serve the Queen’s people and truly counsel them that retain them, after their cunning.” Sometimes a serjeant-at-law applies for a “Patent of Precedence,” which gives him precedence next after the last of the Queen’s counsel previously appointed. No oath is administered on the grant of a patent of precedence, as it implies no special service or duty to the Crown.
Apart from the heavy expenses which must, even under the most favourable circumstances, attend the introduction of a youth into the legal profession, the fact must never be lost sight of that the examination which articled clerks are now called upon to pass before they can be admitted is of such a rigorous nature that perhaps not one in ten of the established practising attorneys could undergo the ordeal. Then, if we consider that the legal profession is at the present moment vastly overstocked, and reflect upon the fact of numbers of clever young men, who finding it impossible to beat out a connexion for themselves, either make for one of the colonies, or settle down at home in managing clerkships, at salaries scarcely equal to the remuneration paid to skilled mechanics, there is quite enough to make us hesitate before placing our sons in law offices. Nor must the fact be overlooked, that the tendency of our legislation has been, and will continue to be, to simplify legal procedure as much as possible; to lower the scale of fees payable to attorneys and solicitors, and even to dispense in many instances, with the necessity for employing professional men at all.—S. Warren, Q.C.
The proper constitution of the Supreme Court of Appeal justifies the utmost solicitude of the legislature and the country. The difficulties surrounding its reconstruction were found too great to admit of solution during the session of 1856, unexpectedly complicated as they were by the creation of that very distinguished judge, Baron Parke, a peer for life only, as Lord Wensleydale. The greatest constitutional lawyers in the House of Lords, supported by a considerable majority of peers, declared that the Crown had no power to create a peer for life only, with a right to sit and vote in that house; that such an act was illegal, and that the very essence of the British peerage consisted in its hereditary character. Issuing out of these discussions a Bill for reconstructing the appellate jurisdiction was sent down from the Lords to the Commons, but so late in the session that they declined then to entertain it. Whatever may be the ultimate fate of this measure, it is still practicable, even without adopting its special machinery, to preserve the appellate jurisdiction of the House of Lords—itself an object of the highest importance—by providing for more assistance from the legal and equitable judicial force of the country. In the meantime a well-earned hereditary peerage was conferred on Lord Wensleydale, under which he took his seat before the session closed.—Blackstone’s Commentaries, edited by Warren.
In 1863, Chief Justice Erle gave judgment in the case of Kennedy v. Broun, which involved the right of the plaintiff, a barrister, to recover the sum of 20,000l., alleged to have been promised by Mrs. Broun, then Mrs. Swinfen, for professional services rendered in the matter of the Swinfen estates; the trial at Warwick having been compromised by Lord Chelmsford, then Sir Frederick Thesiger. An action was brought by Mr. Kennedy to recover the 20,000l. in question, and a verdict was given in his favour. A rule was obtained to set aside that verdict and enter it for the defendant. The Chief Justice, in a most elaborate judgment, said that the relation of the parties, as advocate and client, incapacitated the latter from making any promise of remuneration which could be recovered as a debt. The payment to an advocate was as honorarium not merces—and the opinion of all the judges, from the days of Justinian to the present time, supported that view. The rule for a new trial to enter the verdict for the defendants was therefore absolute. This of course quashed Mr. Kennedy’s claim.
“The term ‘Utter-Barrister’ occurs for the first time in the reign of Henry VIII. It is mentioned in the ‘Orders and Customs’ of the Middle Temple, where it is applied to one who, having continued in the house for five or six years, and profited in the study of the law, has been called by the benchers ‘to plead, argue, and dispute some doubtful matter before certain of the benchers,’ which ’manner of argument or disputations is called motyng; and this making of Utter-Barristers is as a preferment or degree given him for his learning.’”
Fifty years ago no junior barrister presumed to carry a bag in the Court of Chancery, unless one had been presented to him by the King’s counsel, who, when a junior was advancing in practice, took an opportunity of complimenting him on his increase of business, and giving him his own bag to carry home his papers. It was then a distinction to carry a bag, and a proof that a junior was rising in his own profession.
From a period of very remote antiquity down to the passing of the Common Law Procedure Act, 1852, the pleadings in our Law Courts were of a highly artificial character, and had been elaborated, by the care of judges and practitioners during many successive centuries, into a regular system or science, called pleading, or more properly, special pleading, which constituted a distinct branch of the Law, with treatises and professors of its own. It was a system highly rated by our ancient lawyers, and had at least the merit of developing the point in controversy with the severest precision. But its strictness and subtlety were a frequent subject of complaint; and one object of the Common Law Procedure Act, 1852, was to relax and simplify its rules. Whether the effect of this will be to impair its value or not in other respects, experience alone can decide.—Stephen’s Commentaries, note.
Lord Campbell studied, at Lincoln’s Inn, the mysteries of special pleading, under the guidance of Mr. Tidd, through whom he traced his legal pedigree up to the celebrated Tom Warren, father of this wondrous art. Tom Warren begat Serjeant Runnington, Serjeant Runnington begat Tidd, Tidd begat Campbell, and Campbell begat Dundas and Vaughan Williams. “Tidd,” writes his grateful pupil, “lived to see four sons sitting together in the House of Lords—Lord Lyndhurst, Lord Denman, Lord Cottenham, and Lord Campbell. To the unspeakable advantage of having been three years his pupil, I chiefly ascribe my success at the bar.”
Mr. Stephen, in his able Treatise on the Criminal Law of England, gives the follow definitions of Evidence: