Blackwood's Edinburgh Magazine, Volume 59, No. 363, January, 1846 online

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The disappearance from the legal hemisphere of so bright a star as the
late Sir William Follett, cast a gloom, not yet dissipated, over the
legal profession, and all classes of society capable of appreciating
great intellectual eminence. He died in his forty-seventh year; filling
the great office of her Majesty's Attorney-general; the head and pride
of the British Bar; a bright ornament of the senate; in the prime of
manhood, and the plenitude of his extraordinary intellectual vigour; in
the full noontide of success, just as he had reached the dazzling
pinnacle of professional and official distinction. The tones of his low
mellow voice were echoing sadly in the ears, his dignified and graceful
figure and gesture were present to the eyes, of the bench and bar - when,
at the commencement of last Michaelmas term, they re-assembled, with
recruited energies, in the ancient inns of court, for the purpose of
resuming their laborious and responsible professional exertions in
Westminster Hall. It was impossible not to think, at such a time, of Sir
William Follett, without being conscious of having sustained a grievous,
if not an irreparable, loss. Where was he whose name was so lately a
tower of strength to suitors; whose consummate logical skill - whose
wonderful resources - taxed to the uttermost those of judicial intellect,
and baffled and overthrew the strongest who could be opposed to him in
forensic warfare? Where, alas, was Sir William Follett? His eloquent
lips were stilled in death, his remains were mouldering in the
tomb - yes, almost within the very walls of that sacred structure,
hallowed with the recollections and associations of centuries, in which
his surviving brethren were assembled for worship on Sunday the 2d day
of November 1845 - the commencement of the present legal year - at that
period of it when _his_ was erewhile ever the most conspicuous and
shining figure, _his_ exertions were the most interesting, the most
important, _his_ success was at once the most easy, decisive, and
dazzling. Yes, there were assembled his brethren, who, with saddened
faces and beating hearts, had attended his solemn obsequies in that very
temple where was "committed his body to the ground, earth to earth,
ashes to ashes, dust to dust," where all, including the greatest and
noblest in the land, acknowledged, humbly and mournfully, at the mouth
of his grave, _that man walketh in a vain shadow, and disquieteth
himself in vain; he heapeth up riches, and cannot tell who shall gather
them_! Surely these are solemnizing and instructive reflections; and
many a heart will acknowledge them to be such, amidst all the din, and
glare, and bustle of worldly affairs, in the awful presence of Him _who
turneth man to destruction, and sayeth, Come again, ye children of men_!

Sir William Follett has now lain in his grave for six months. During
this interval, the excitement which his death created amongst those who
had been in constant intercourse with him for years, has subsided;
leaving them better able to take a calm and candid view of his
character, acquirements, and position, and form a sober estimate of the
nature and extent of his reputation while living, and the probability of
its permanently surviving him.

When summoned from the scene of his splendid and successful exertions,
he was unquestionably the brightest ornament of the British bar.
Immediately afterwards the press teemed with tributes to his memory:
some of them characterised by great acuteness and discrimination,
several by exaggerated eulogy, and one or two by a harsh
disingenuousness amounting to misrepresentation and malevolence. Nothing
excited more astonishment among those who had thoroughly known Sir
William Follett, than the appearance of these attacks upon his memory,
and the bad taste and feeling which alone could have prompted the
perpetration of them, at a moment when the hearts of his surviving
relatives and friends were quivering with the first agonies of their
severe bereavement; when they had just lost one who had been the pride
of their family, the pillar of their hopes, - and who was universally
supposed to have left behind him not a single enemy - who had been
distinguished for his courteous, mild, and inoffensive character, and
its unblemished purity in all the relations of private life. Certain of
the strictures here alluded to, were petty, coarse, and uncandid; and
with this observation they are dismissed from further notice. Sir
William Follett had undoubtedly his shortcomings, in common with every
one of his fellow men; and, as a small set-off against his many
excellences of temper and character, one or two must be glanced at by
any one essaying to present to the public, however imperfectly, a just
account of this very eminent person. The failing in question formed the
chief subject of vituperation - _vituperation of the dead!_ - by the
ungracious parties to whom brief reference has just been made; and
consists, in short, in the excessive eagerness to accumulate money, by
which it was alleged that the late Sir William Follett was
characterised. This charge is certainly not without foundation; but
while this frank admission is made, an important consideration ought to
accompany it in guiding the judgment of every person of just and
generous feeling; and will relieve the memory of the departed from much
of the discredit sought to be attached to it.

The life of Sir William Follett appears to have been, from the first, of
frail tenure. Could he have foreseen the terrible tax upon his scanty
physical resources which would be exacted by the profession which he was
about to adopt, he would probably have abandoned his intentions, justly
conscious though he might have been of his superior mental fitness for
the Bar, and would have betaken himself to some more tranquil walk of
life, which he might have been at this moment brightly adorning. He
devoted himself, however, to the law, with intense and undivided energy;
and, at a very early period of his professional career, was compelled to
retire for a time from practice, by one of the most serious mischances
which can befall humanity - it is believed, the bursting of a bloodvessel
in the lungs. Was not this a very fearful occurrence - was it not almost
conclusive evidence of the unwise choice which he had made of a
profession requiring special strength in that organ - was it not justly
calculated to alarm him for his future safety? And yet, what was he to
have done? To have abandoned a profession for which alone he had
qualified himself by years of profound and exclusive thought and labour?
What Office would, under such circumstances, have insured the life of
young Mr Follett, who, with such a fatal flaw in his constitution, was
nevertheless following a profession which would hourly attack his most
vulnerable part? Poor Follett! who can tell the apprehensions and
agonies concerning his safety, to which he was doomed, from the moment
of his first solemn summons to the grave, on the occasion alluded to?
What had happened, he too well knew, might happen again at any moment,
and hurry him out of life, leaving, in that case, comparatively
destitute those whom he tenderly loved - for whom he was bound to
provide - his widow and children. And for the widow and children of such
a man as he knew that he had become, he felt that he ought to make a
suitable provision: that those who, after he was gone, were to bear his
distinguished name, might be enabled to occupy the position in which he
had placed them with dignity and comfort. Was such an illegitimate
source of anxiety to one so circumstanced, and capable of Sir William
Follett's superior aspirations? Was it not abundantly justified by his
splendid qualifications and expectations? Why, then, should he not toil
severely - exert himself even desperately - to provide against the direful
contingency to which his life was subject? Alas! how many ambitious,
honourable, high-minded, and fond husbands and fathers are echoing such
questions with a sigh of agony! Poor Follett! 'twas for such reasons
that he lived with an honourable economy, eschewing that extravagance
and ostentation which too often, to men in his dazzling position, prove
irresistible; it was for such reasons that he _rose up early, and went
to bed late, and ate the bread of carefulness_. Had he been alone in the
world - had he had none to provide for but himself, and yet had
manifested the same feverish eagerness to acquire and accumulate
money - had he loved money for money's sake, and accumulated it from the
love of accumulation, the case would have been totally different. He
might then have been justly despised, and characterized as being _of the
earth, earthy_ - incapable of high and generous sentiments and
aspirations - sordid, grovelling, and utterly despicable. Sir William
Follett had, during twenty years of intense and self-denying toil,
succeeded in acquiring an ample fortune, which he disposed of, at his
death, justly and generously; and how many hours of exhaustion, both of
mind and body, must have been cheered, from time to time, by reflecting
upon the satisfactory provision which he was making - which he was daily
augmenting - for those who were to survive him! Who can tell how much of
the bitterness of death was assuaged by such considerations! When his
fading eyes bent their aching glances upon those who wept around his
death-bed, the retrospect of a life of labour and privation spent in
providing for their comfort, must indeed have been sweet and
consolatory! Surely this is but fair towards the distinguished dead. It
is but just towards the memory of the departed, to believe his conduct
to have been principally influenced by such considerations. All men have
many faults - most men have grave faults. Is parsimony intrinsically more
culpable than prodigality? Have not most of mankind a tendency towards
one or the other? for how few are ennobled by the ability to steer
evenly between the two! And even granting that Sir William Follett had a
_tendency_ towards the former failing, it was surely exhibited under
circumstances which warrant us in saying, that "even his failings leaned
to virtue's side."

Connected with and immediately dependent upon this imputation upon the
late Sir William Follett, is another which cannot be overlooked. He is
charged with having made a profit of his prodigious popularity and
reputation, by discreditably and unconscientiously receiving fees from
clients for services which he well knew at the time that he could not
possibly render to them; in short, with taking briefs in cases to which
he had no reasonable hope of being able to attend. This is a very grave
accusation, and requires a deliberate and honest examination. It is a
long-established rule of English law, that barristers have no legal
means of recovering their fees, even in cases of most arduous and
successful exertion, except in the very few instances where a barrister
may consider it consistent with the dignity of his position to enter
beforehand into an express agreement with his client for the payment of
his fees[A]. A barrister's fee is regarded, in the eye of the law, as
_quiddam honorarium_; and is usually - and ought to be invariably - paid
beforehand, on the brief being delivered. A fee thus paid, a rule at the
bar forbids being returned, except under very special circumstances; and
the rule in question is a very reasonable one. As counsel have no legal
title to remuneration, however laborious their exertions, what would be
their position if they were expected or required to return their fees at
the instance of unreasonable and disappointed clients? Where ought the
line to be drawn? Who is to be the judge in such a case? A client may
have derived little or no benefit from his counsel's exertions, which
may yet have been very great; an accident, an oversight may have
intervened, and prevented his completing those exertions by attending at
the trial either at all, or during the whole of the trial; he may have
become unable to provide an efficient substitute; through the sudden
pressure of other engagements, he may be unable to bestow upon the case
the deliberate and thorough consideration which it requires - an
unexpected and formidable difficulty may prove too great for his means
of overcoming it, as might have been the case with men of superior skill
and experience; - in these and many other instances which might be put,
an angry and defeated client would rarely be without some pretext for
requiring the return of his fees, and counsel would be subject to a
pressure perfectly intolerable, most unreasonable, most unfair to
themselves, leading to results seriously prejudicial to the interests of
their clients; and a practice would be introduced entailing great evils
and inconveniences, affecting the credit and honour of both branches of
the legal profession. The rule in question rests upon the above, among
many other valid reasons, and is generally acted upon. No one, however,
can have any practical knowledge of the bar, without being aware of very
many instances of counsel disregarding that rule, and evincing a noble
disinterestedness in the matter of fees, either returning or declining
to accept them, at a severe sacrifice of time and labour, after great
anxiety and exertion have been bestowed, and successfully bestowed. The
rule in question is rigidly adhered to, subject to these exceptions by
eminent counsel, on another ground; viz. for the protection of junior
counsel, who would be subject to incessant importunities if confronted
by the examples of their seniors. Take, now, the case of a counsel who
has eclipsed most, if not every one, of his competitors, in reputation,
for the skill and success of his advocacy - who is acute, ready,
dexterous, sagacious, eloquent, and of accurate and profound legal
knowledge: that is the man whose name instantly occurs to any one
involved, or likely to be involved, in litigation - such an one must be
instantly secured - _at all events, taken from the enemy_ - at any cost.
The pressure upon such a counsel's time and energies then becomes really
enormous, and all but insupportable. As it is of the last importance
either to secure his splendid services, or deprive the enemy of them,
such a counsel - and such, it need hardly be said, was Sir William
Follett - is continually made the subject of mere speculation by clients
who are content to take the _chance_ of obtaining his attendance, with
the _certainty_ of securing his absence as an opponent. When, however,
the hour of battle has arrived, and, with a compact array visible upon
the opposite side, the great captain is _not_ where it had been
hoped - or thought possible that he might have been - when, moreover, no
adequate provision has been made against such a serious
contingency - when the battle has been fought and lost, and great
interests are seriously compromised, or for ever sacrificed - _then_ the
client is apt, in the first smarting agony of defeat, to forget the
_chance_ which he had been content to run, and to persuade himself that
he had from the first calculated as a matter of _certainty_ on the great
man's attendance - and intense is that client's chagrin, and loud are his
complaints. Can it be supposed that this eminent counsel is not
sufficiently aware of the true state of the case? It is but fair to
give him credit for being under the impression, that all which is
expected from him, in many cases, is his best exertions to attend the
trial or hearing - to provide an effective substitute, if unable to
attend - and give due attention to the case at consultation. For counsel
to act otherwise, deliberately to receive a brief and fee, in a case
which he _knows_ that he cannot possibly attend, without in the first
instance fairly intimating as much to the client - to do so, in cases of
importance, and habitually - is surely most foully dishonourable,
dishonest, and cruel; and conduct which there is no pretence for
imputing to the members of the bar. It cannot, however, be denied, that
very serious misunderstandings occasionally arise on such occasions; but
there are many ways of accounting for them, without having recourse to a
supposition involving such serious imputations upon the honour of
counsel - arising out of _bonâ fide_ accident and mistake - the
unavoidable hurry and sudden emergencies of business - misunderstandings
between a counsel and his clerks;[B] between either or both, and the
client - and the perplexity and confusion almost necessarily attending
the movements of very eminent counsel. On such occasions every thing is
usually done which can be dictated by liberality and honour, and fees
are returned without hesitation. If, however, the case can be looked at
from another point of view - if the eager client be fairly apprised by
the clerk, that Sir - - or Mr - - "may not be able to attend" - or,
"there is a _chance_ of his attending" - or "he is very likely to be
elsewhere" - and, aware of the multifarious and conflicting calls upon
the time of Sir - - or Mr - - , will be content to take his "chance,"
and deliver his brief, and pay his fee; in such a case the client will
have had all which he had a right to expect, - viz. the chance, not the
certainty; there will be no pretence for alleging careless
misunderstanding or deception.

If ever there were a member of the English bar who may be said to have
been overwhelmed by the distracting importunities of clients to secure
his services, at all hazards and at any cost, it was the late Sir
William Follett; and how he contrived to satisfy the calls upon him, to
the extent which he did, is truly wonderful. How can one head, and one
tongue, do so much, so admirably? is a question which has a thousand
times occurred to those of his brethren at the bar, who knew most of his
movements, and were least likely to form an exaggerated estimate of his
exertions. The litigant public seemed to feel that every moment of this
accomplished and distinguished advocate's waking hours was their own,
and they were restricting his sleeping hours within the very narrowest
limits. Every one would have had Sir William every where, in every
thing, at once! Whenever, during the last fifteen years of his life,
there was a cause of magnitude and difficulty, there was Sir William
Follett. What vast interests have been by turns perilled and protected,
according as Sir William Follett acted upon the offensive or defensive!
Misty and intricate claims to dormant peerages, before committees of
privileges, in the House of Lords; appeals to the High Court of
Parliament, from all the superior courts, both of law and equity, in the
United Kingdom, involving questions of the greatest possible nicety and
complexity - and that, too, in the law of Scotland, both mercantile and
conveyancing, so dissimilar to that prevailing in other parts of the
kingdom; appeals before the Privy Council, from the judicial decisions
of courts in every quarter of the globe where British possessions exist,
and administering varying systems of law, all different from that of
England; the most important cases in the courts of equity, in courts of
error, and the common law courts in _banc_; all the great cases
depending before parliamentary committees, till he entered the House of
Commons; every special jury cause of consequence in London and
Middlesex, and in any of the other counties in England, whither he went
upon special retainers; compensation cases, involving property to a very
large amount; - in all these cases, the first point was - to secure Sir
William Follett; and, for that purpose, run a desperate race with an
opponent. Every morning that Sir William Follett rose from his bed, he
had to contemplate a long series of important and pressing engagements
filling up almost every minute of his time - not knowing where or before
what tribunal he might be at any given moment of the day - and often
wholly ignorant of what might be the nature of the case he would have to
conduct, against the most able and astute opponents who could be pitted
against him, and before the greatest judicial intellects of the kingdom:
aware of the boundless confidence in his powers reposed by his clients,
the great interests entrusted to him, and the heavy pecuniary sacrifices
by which his exertions had been secured. Relying with a just confidence
on his extraordinary rapidity in mastering all kinds of cases almost as
soon as they could be brought under his notice, and also on the desire
universally manifested by both the bench and the bar to consult the
convenience and facilitate the business arrangements of one, himself so
courteous and obliging to all, and whom they knew to be entrusted at a
heavy expense to his clients, with the greatest interests involved in
litigation; relying upon these considerations, and also upon those
others which have been already alluded to, Sir William Follett
undoubtedly permitted briefs to be delivered to him, _all_ of which he
must have suspected himself to be incapable of personally attending to.
It must be owned that on many such occasions he may not - distracted with
the multiplicity of his exhausting labours - have given that full
consideration to those matters which it was his bounden duty to have
given to them; and his conduct in this respect has been justly censured
by both branches of the high and honourable profession to whom the
public entrusts such mighty interests. Still he turned away business
from his chambers which would have made the fortunes of two or three
even eminent barristers, and has been known to act with spirit and
liberality in cases where his imprudence on the score alluded to had
been attended with inconvenience and loss to his clients. Nor was he
_always_ so fortunate, as latterly, with respect to his clerks; who had,
equally with himself, a direct pecuniary interest[C] on every brief
which he accepted, and consequently a strong motive for listening with a
too favourable ear to the importunities of clients. The necessary
consequence of all this was occasionally the bitter upbraiding of Sir
William Follett's desperately disappointed and defeated clients. Still,
however, he did make most extraordinary efforts to satisfy all the
claims upon his time and energies, and at length sacrificed himself in
doing so; to a very great extent foregoing domestic and social
enjoyments - sparing himself neither by night nor by day, neither in mind
nor body. Crowded with consultations as was almost every hour of the
day not actually spent in open business in court - from the earliest
period in the morning till the latest at night - it was really amazing
that he contrived to obtain that perfect mastery of his ponderous and
intricate briefs, which secured him his repeated and splendid triumphs
in court. Till within even the last eighteen months, or two years, if
you had gone down one morning at half-past nine to Westminster, you
might have heard him opening with masterly ease, clearness, and skill, a
patent case, or some other important matter, before a special jury; and

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Online LibraryVariousBlackwood's Edinburgh Magazine, Volume 59, No. 363, January, 1846 → online text (page 1 of 22)