The Albany Law Journal.

ALBANY, OCTOBER 12, 1872.

LAWYERS' INCOMES.

From time immemorial lawyers have been popularly regarded as an overpaid and greedy set of fellows; and many hard things have been said and written of their avarice and extortion. But as a rule they have never been, and are not now, well paid nor greedy nor avaricious. Much of this evil report has come from the jealousy usually felt by those compelled to do manual labor toward those who labor with their brain. We believe it to be a fact that the majority of those who have won the highest places at the bar have been remarkable for their liberality to their clients, and for carelessness of their own pecuniary interests.

Lord Bolingbroke, in a moment of despondency, said: "There have been lawyers that were orators, philosophers, historians; there have been Bacons and Clarendons, my lord; there shall be none such any more, till in some better age, men learn to prefer fame to pelf, and climb the vantage ground of general science." There is a grain of truth in this, for no lawyer can hope for "fame" or "pelf" either, who neglects to "climb the vantage ground of general science." But is it not asking too much to ask the lawyers to give up the "pelf" when all the rest of the world is racing for it? If they do their work honestly and thoroughly they are worthy of their reward. Fame is of course to be desired. To have our merits appreciated two or three centuries hence, long after what was once our mortal substance is "stopping a beer barrel," is a very pleasant notion to entertain; but one who labors for that alone is not unlike Verdant Green who, in a drunken freak, buried the college plate in the quadrangle "to provide for posterity."

An income of eight or ten thousand a year, argent comptant, carries along with it many solid advantages, and the lawyer who can command this has no reason to consider his a hard lot, because posterity may not assign to him, in the Temple of Fame, so lofty a niche as Milton occupies, who sold his Paradise Lost for £15, or as Rembrandt tenants, who was obliged to feign his own death before his pictures would provide him a dinner. There is a deal of truth in that homely proverb, "Solid pudding is better than empty praise.' The reputation which wins current value during life is more useful to the possessor than honor which comes after death, and which comes as David says in the "Rivals," "Exactly when we can make shift to do without it."

The fees of the lawyers of antiquity were not, it seems, large, unless we go away back to the lucky Isecrates who was said to have received one fee of

twenty talents, about $18,000 of our money, for a speech that he wrote for Nicocles, King of Cyprus; but kingly clients, and such kingly clients, have been exceedingly rare in the world's history. In the year 1500, 3s. 4d. was thought to be a sufficient fee to a sergeant for advice to the corporation of Canterbury regarding their civic interests, and only a little later the wealthy Goldsmiths' Company liberally rewarded a sergeant, "learned in the law," by a fee of 10s. and that for services in an important matter. From the "Household and Privy Purse Expenses of the Le Stranges of Hunstanton," it appears that noble house paid to Mr. Knightly 8s. 11d. "for his fee, and that money yt he layde oute for suying of Simon Holden," and the same lawyer also received at another time, 14s. 3d. "for his fee and costs of sute for iii. termes."

It is recorded of Sir Thomas More that he "gained, without grief, not so little as £400 by the year," and this income, partly made up from the emoluments of his judicial appointments, was said to be a very considerable one, and equaled by but few of the bar. In Elizabeth's reign a fee of ten shillings was the ordinary reward, and the fact that the ten shilling piece was called an "angel," led to that witty saying, then common, that " a barrister is like Balaam's ass, only speaking when he sees the angel." Elizabeth's solicitor-general received but £50 and the king's counsel to James I, only £40 a year, with an allowance for stationery. But these were only a kind of retaining fee, and smaller fees were paid for business done. When Francis Bacon was James' attorney. general, at an annual salary of only £81 6s. 8d., he managed to make £6,000 per year, a princely income indeed in those days.

Maynard, the great parliamentary lawyer of Charles I's time, received on one round of the western circuit £700, which Whitelock, a contemporary, believed was more than any one of our pro

fession got before."

In Charles II's time a thousand pounds a year was considered a good income for a successful practitioner, but the great advocates and leaders made any where from two to four times that amount, and Sir Francis North, attorney-general, received from private and official business nearly seven thousand pounds. He was avaricious and grasping, and made every penny count. In the "Life of Lord Keeper Guildford," Sir Francis' method of gathering his fees is thus, described: 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 cap which he wore when he had leisure to observe his constitution, as I touched before, were now destined to lie in a drawer to receive the money that came in

It is not to be expected that men, who came up from weighing their butter and cheese to a court of justice to weigh the evidence in a complicated case, should always or usually arrive each and every one at the same conclusion, but the necessity of returning a unanimous verdict must, and does, lead to improper compromise among the jurors of their respective opinions. The compromise may not often (though it has been known to be sometimes) be determined by the result of a game of "seven up" or "old sledge," yet, if it be effected against the solemn convictions of any one man, it is in violation of his oath, against the interests of justice, and a gross defeat of the object of requiring unanimity.

There is another potent reason why unanimity ought not to be required. It not infrequently happens as those familiar with courts and juries well know that, despite the safeguards of the law, a friend of one of the contending parties, or at least one actuated by partial motives, succeeds in getting upon the jury, and it is obvious that, under the present system, such a thing must tend to produce a corrupt verdict or an irreconcilable difference.

On the other hand, however, the necessity for unanimity carries with it one most valuable advantage. In the event of any difference of opinion, it secures discussion; it is not possible to come to a conclusion at once, and any one dissenting person can compel the other eleven, fully and calmly to reconsider their opinion.

But there seems to be no good reason why, after a certain period of time sufficiently long to insure reasonable discussion, the jury, if still in disagreement, should not be excused from the necessity of giving a unanimous verdict. The sole object of the present system can be accomplished, and the many objections to it obviated, by providing that a jury shall be kept in deliberation for twelve hours if they cannot sooner agree upon a unanimous verdict; and that, at the expiration of that time, if any nine of them concur in giving a verdict, such verdict shall be received as though it were the verdict of the twelve.

The system of requiring a majority verdict has been thoroughly tried in Scotland, and Lord Neaves, an eminent Scotch judge and jurist, has only recently spoken in high praise of the success of that system. It is time that we gave this matter attention in this country. The interests of justice demand a change of the existing law upon the subject, and we entertain some hope that our legislative Solons will heed it during the coming winter.

THE WORK OF THE STATUTE REVISION COMMISSION.

The commissioners engaged in revising the statute laws of this State have issued another portion of their work "for distribution to the judges and others, for he purpose of receiving suggestions before the final

review of the work by the commissioners, and its submission to the legislature." The part now issued contains four chapters; the fifth, sixth, seventh and eighth, each of which is subdivided into titles. The fifth chapter treats of the "Commencement of and parties to civil actions;" the sixth, of " Pleadings in courts of record, including counterclaims;" the sẽventh, of "Provisional remedies in civil actions generally;" the eighth, of "Miscellaneous interlocutory proceedings and regulations of practice."

This brief synopsis will indicate that this is a very important portion of the commissioners' work, and one of real interest to every practitioner in the State. On a casual perusal of its contents one is apt to be a little startled at the numerous and sometimes important changes they have made in our existing Code of Procedure, but one finds on more careful examination that these changes do not, in the main, vary, to any important extent, the provisions of our present law. The commissioners say in their introductory remarks: "The chapters now published propose more additions to the existing statutes, and greater changes in their structure, than will probably be found in any other portion of the third part of equal length. This remark is particularly applicable to those portions which relate to subjects treated of in corresponding provisions of the Code of Procedure; and a hasty examination of the following pages may lead to the suspicion that the proposed amendments to that statute go beyond the directions of the act under which we were appointed, and the resolutions adopted by the commission in September, 1871, as stated in the majority report made to the last session of the legislature. But we are confident that such a suspicion will vanish upon a careful and unprejudiced examination of the work. This will show that we have scrupulously refrained from proposing any radical changes in the Code; and that, except where its defects were very glaring, our amendments are merely such as were required either to carry out the principles upon which it was framed, by supplying its omissions and imperfections in matters of detail, or to remove the excrescences which have grown around it in consequence of party legislation, or to settle the many vexed questions which have arisen upon particular provisions, or to harmonize its enactments and those of the Revised Statutes, in cases where they relate, either in whole or in part, to the same subject."

Our present Code of Procedure is by no means a model. Being in the beginning nothing more than the incomplete report of the code commissioners, it has been so patched and tinkered by subsequent legislation that its own fathers, were they now to see it for the first time since its adoption, would hardly recognize in it the offspring of their brain. But such as it is, we have got used to it; and this, with that feeling that many entertain against change, good or bad, this "let-well-enough-alone" spirit will lead them to deprecate the well-meant endeavors of this

"It is a singular fact that the Code, which bases its chief claim to superiority over the former system upon its simplicity and freedom from all fictions, not only makes, in many cases, the proper mode of commencing a suit the most perplexing question arising in the course of the litigation, but often compels the practitioner to commence his suit with an unnecessary fiction of its own devising. For in most cases under the second subdivision of section 129, and in many under the first, the summons states an untruth, because it always requires the defendant to serve his answer within twenty days; whereas if no copy of the complaint is served therewith, he is only required to appear and demand a copy of the complaint within that time. Justice to the late commissioners on practice and pleadings requires the statement that this blunder also had its origin in the partial adoption of a scheme which, if not the best that could be devised, was at least consistent and harmonious. See their original report, section 109."

We have given this lengthy extract that the reasons which induced the commissioners to make the change might be fairly presented with their plan. But, plausible as may be those reasons, they have not convinced us that the system now proposed is for the better. By their scheme they allege that "every action is to be commenced by precisely the same kind of summons;" but, if this be an advantage, which we doubt, is it true? Their summons, literally speaking, is the same for all actions, but in certain cases where the complaint is not served with the summons, a notice is to be tacked to, or indorsed upon, the copy of the summons served, and it in effect becomes another kind of summons. It is doing little more than taking out of our present summons for money the specification of the sum demanded, and making it a sort of postscript or addendum. It is true that there has been considerable difficulty in always determining what "an action arising on contract for the recovery of money only" is or is not, but that difficulty could have been obviated by making the first subdivision of section 129 of the Code more explicit.

The commissioners state that their form of summons is "preferable as a matter of taste." We do not so regard it; but, then, de gustibus non est disputandum. Nor are we quite sure that it is never untruthful or deceptive, as the commissioners state. For instance, their form of summons requires the defendant "to appear *** within twenty days *** to answer the complaint," etc.; but by their section 411, if a copy of the complaint is served with the summons, the defendant must demur or answer within the time, wherein the summons only required him to appear. While, according to their showing, our present form of summons may require a defendant to answer within twenty days, when, in fact, he is only obliged to appear and demand a copy of the complaint within that time, the form proposed may require a

man only to appear within twenty days, when, in fact, he is bound not only to appear, but to answer also. This is, of course, merely a technical criticism, but the commissioners have amply justified it by their criticism of the Code.

There is another matter that we would call attention to here. Our present Code requires the summons to state, if a copy of the complaint is not served with it, where the complaint is or will be filed. The completed Code of 1850 required a copy of the complaint to be served with the summons, unless the complaint itself be already on the files of the court, and in the latter case the summons was to state where the complaint was filed. The present revision contains no requirement as to filing complaint. The requirement in our Code, that the summons must state where the complaint is, or will be filed, is a mere nullity, as there is no requirement that the complaint shall be filed; but we should be glad to see incorporated in this revision a requirement similar to that in the completed Code. If the complaint is not served, it should be filed before the summons is served, and the summons should state where. The reason for this is well stated by the code commissioners, and is briefly this: That if the complaint is on file where the defendant may find it, he can determine for himself, in most cases, without the interposition of a lawyer whether there be any occasion for him to make a defense. As the matter rests in the revision before us, if the complaint be not served, and the defendant wishes to see a copy of it, he must employ a lawyer in all cases, as section 471 makes provision for a demand of a copy only by an attorney. This is, of course, good for attorneys, but this revision is made for the people and not for attorneys only.

The code commissioners say, in their report of 1850, "If it be objected that there are cases of great urgency, not admitting of the delay incident to the preparation of a complaint, it is to be answered that such cases are very rare; that an arrest or other provisional remedy cannot, in any case, be had, without an affidavit, which requires as much time as a complaint, and that formerly no serious embarrassment resulted from requiring a bill to be filed before an injunction was issued."

We shall notice some of the other provisions of this revision in a future article; but we take occasion to say here that the work, as now issued, in parts, is only a draft, and that it will be again carefully gone over by the commissioners, and such amendment made as may be required.

It is stated in the newspapers that Oliver Wendell Holmes, Jr., has been selected as one of the lecturers in the Harvard law school. Mr. Holmes has been con

nected, we believe, with the American Law Review from its commencement, and for the last year or more

has been one of its editors.