I may seem to have somewhat unnecessarily laboured the question as to whether "rights" are, as jurists maintain, created by their respective sanctions; but it is a matter of profound and far-reaching importance. If rights are created by their sanction, then there can be no such thing as "a right" which is not sanctioned either by law or some other agency, and if legal rights are nothing but the arbitrary creation of the sovereign political power, it follows that the whole case for justice to any class whatever which cannot secure it by force falls to the ground.

If there is no such thing as an "innate right," what meaning have the words justice and injustice? Even a jurist could not maintain that "just and unjust" are synonymous with the words "legal and illegal."

"Vous avez la foi, Monsieur, à quoi nous sert-elle ?" says one of the characters in a novel by Anatole France. "A pécher, Madame," is the reply.

Not to believe in sin is the lowest depth of the scepticism which turns everything into ashes, and the soul of a community is the same as the soul of an individual. Woe betide the nation whose political creed leaves it bereft of a sense of political sin, for hard will be the lot of the oppressed under rulers who deny allegiance to the sovereignty of Abstract Right.

H. FRANCES PETERSEN.

IN

II. COUNSEL'S FEES.

N the recent case of Sadd v. Griffin1 the Court of Appeal decided that for the purpose of taxation of a solicitor's bill of costs, under the Solicitors Act 1843, "disbursements means actual payments before delivery of the bill, and that consequently any sum claimed as disbursements, e. g., fees 1 L. R. [1908], 2 K. B. 510.

to Counsel, which have not in fact been paid before delivery, must be disallowed. In this case Counsel's fees amounting to £54: 6s. 6d. had not been paid when the bill was delivered before action brought or when the order for taxation was made. The taxation was adjourned in order to give the solicitor an opportunity of paying them, which he did, but the Court of Appeal nevertheless held that they must be disallowed. "It is necessary in the interests of honesty, and in order to remove temptation," said Farwell, L.J., in delivering the judgment of the Court, "that all disbursements should be made before the bill is paid, and it is equally necessary if an action is to be brought."

Thus the rule laid down by Parker, B., that an attorney cannot charge for Counsel's fees which have not been paid was upheld.

Under the new Regulations which came into force on May 1st an attempt has been made to evade the natural consequences of this decision.1

These Regulations provide that in taxation under the Act of 1843, provided the solicitor sets out in a separate column of his bill the unpaid items, and expressly states that they are unpaid, such items may be allowed by the Taxing Master if they are actually paid before the bill is lodged, and are made in discharge of an antecedent liability of the solicitor (including Counsel's fees) properly incurred on behalf of the client.

And where the proceedings for taxation are commenced by the client or a third party, payments made by the solicitor pending such proceedings in discharge of any such antecedent liability so set out in the bill (including Counsel's fees), may be allowed by the Taxing Master if it appears to him that such payments have been properly made and that no injustice is done thereby.

By these Regulations it will be seen that the intentions 1 Order LXV, Rule 27, Regulation 29a.

of the Legislature and the decision of the Court upon the interpretation of the statute have been largely disregarded. The credit system which the statute was designed to check, has received official sanction.

The theory that the services of Counsel are gratuitous, which has prevailed throughout Western Europe, may be traced to the practice of Republican Rome. In these early days the Bar was the road to office, and since the advocates were usually men of wealth and position, pecuniary reward was viewed with indifference and rejected as degrading. With the Empire, however, office had lost its inducements both from a pecuniary and a political point of view. The profession of advocacy began to be followed for the sake of its emoluments, and although the old theory survived as a tradition, the scale of fees was carefully regulated by law. And apparently they could be recovered when earned.1 But if an advocate failed to appear to plead a cause for which he had accepted a fee he was bound to return it, if the absence was due to his own fault but not otherwise.3

When the theory of gratuitous payment was first introduced into this country we do not know. It certainly formed no part of the old Common law. The earliest known instance of fees to Counsel appears to be that of those paid in the celebrated case of Anesty v. Mabel de Franchville in 1158. But these fees are given in the aggregate for services spread over many years, months or days, and are only interesting as showing that they were paid at the time, the money being borrowed by the plaintiff from the Jews. The recognised fee to Counsel for appearing in Court was an angel, i. c., 3s. 4d. One of the earliest instances with which I have met occurs in the account roll of John le Gaunter, Common Clerk of Hereford for the year 1287, viz.: "lib. dvobus attornatoribus coram domino 8 Dig., 19, 2, 38, 1.

1 Dig., 50, 13, 1, 13.

Col., 4, 6, 11.

R. de Hyngham pro communitat, versus episcopum decanum et capitalum VI s. VIII d." The same amount was paid to William Paston and John Martyn for their "good counsel" in 1419, neither of whom at this date were Serjeants.

From the bill sent in to the city treasurer by the Mayor and Aldermen of Canterbury after a visit to London in the year 1500, we derive a good idea of the manner in which and the amount of the fees paid to Counsel and of the relationship between Counsel and the lay client. The first item is 10s. paid to Mr. Frewick, Mr. Kingsmill and Mr. Holton, Counsel, at Serjeants' Inn. On the same afternoon the city representatives saw Mr. Holton, the junior Counsel, in the cloister at St. Paul's, where he corrected a copy of some document, for which he received 3s. 4d. and his clerk 12d. On the following morning 3s. 4d. was paid to each of the three Counsel in Westminster Hall. These fees were repeated on the three subsequent days.

For the examination of sixteen witnesses in the Star Chamber a fee of 3s. 4d. a head was paid to Mr. Roydon. After a day's interval fees were again paid to two of the Counsel and a breakfast given to Sir Matthew Browne. Then as now Counsel had their country houses. Messengers were frequently sent across Tilbury Ferry to "Maister Raimond" who had been retained "to be our counsell" at a fee of 3s. 4d. Master Frewick lived at Finchley, his clients more than once going to see him there. Meeting the Recorder of London on his way to the Temple, the Mayor and Aldermen "besought hym to be good maister to the citie and retaigned hym 6s. 8d. and for his servants brekefast in Flete Street IId. The Recorder, however, was busy, and having kept his clients hanging about the Guildhall all day, it required the payment of another 6s. 8d. to induce him to attend to the matter. Accordingly, next morning at the Temple, the Recorder having "contrived the bill and corrected it," received another 6s. 8d. for his reward.

Master Mordaunt, another Counsel, received as a present a pike purchased at the expense of 3s. 4d.

The earliest instance of a retainer of Counsel by deed. would appear to be that of Parnynge, afterwards Edward III's Chancellor, whilst still an apprentice-at-law. It took the form of an annuity of two marks per annum, together with "a robe suitable for wear among esquires" at Christmas, for advice and services given and to be given to the grantor, John de Haverington, during the grantor's life, against all persons except the king. The indenture is dated Wednesday after the Feast of Easter, 1325.

This form of retainer was evidently quite common. Serjeant Manning cites that given to Serjeant Yaxley dated 16th July, 1501. For undertaking to attend the assizes at York, Nottingham and Derby, and there being "of council with Sir Robert Plompton," the Serjeant was to receive 40 marks, of which £5 was acknowledged as received. In addition Sir Robert agreed to pay "the charges of the said John Yaxley as well at York as at Nottingham and Derby." Clearly a breach of any of the conditions contained in such indentures constituted a good cause of action. But apart from a contract under seal, did an action of debt lie upon a promise to pay Counsel his fees for services rendered? There can be little doubt that it did. Thus, in 1275, in the Fair Court of St. Ives, Serjeant William of Bolton successfully sues for fees for services rendered as Counsel in litigation in this Court;1 and in 3 Henry VI we find a Serjeant bringing a writ of debt and declaring that he had been retained as Counsel for the defendant for two years, taking by the year £10. The judges decided against the Serjeant, apparently upon the ground that he was not compellable to be of Counsel to anyone for a time certain. But if, since he was bound to attend the Court of Common Pleas and to be Counsel to any

1 Pleas in Manorial Courts, ed. Maitland, pp. 155, 159, 160.