superbly endowed orator and statesman, would be something akin to literary sacrilege. Edward Law was the chief counsel for Hastings in this memorable trial, and whether his client recompensed him with gifts or honoraria does not appear, but he soon thereafter became the Chief Justice of the King's Bench, was elevated to the peerage and is familiarly known in the political and judicial history of England as Lord Ellenborough.

In the United States, with the single exception of the State of New Jersey, which yet adheres to the English rule on the subject, with but slight modifications, it has long been held that a contract between a lawyer and his client for compensation for his services, is enforceable like any other contract between laymen, and the distinction between solicitors and attorneys, counsel or barristers, does not prevail on the United States as to the right to compensation for services. The employment of counsel in this country is held not to differ in any form as to the incidents, or in the rules governing it, from the employment of an agent in any other capacity or business. The first adjudication in the United States upon this subject, so far as my investigation enables me to speak, is the case of Stevens and Cagger v. Adams, decided by the Supreme Court of Judicature of New York, in January, 1840, and reported in 23rd Wendell, page 57. In that case the plaintiffs were practicing lawyers, and brought their suit against Adams, their client, upon an express contract to pay a reasonable fee for their services. The amount involved was $300. The plaintiffs recovered the full amount sued for, and an appeal was taken from that judgment to the Court of Correction of Errors of New York, as the present Court of Appeals of that State was then styled. The opinion of the lower court was affirmed in 1841 (26 Wendell, 541). It is very interesting to note that the Supreme Court of Judicature consisted of Mr. Justice Cowen, Mr. Justice Nelson and Mr. Justice Greene, and that the court for the Correction of Errors consisted of the great Chancellor, Reu

ben H. Walworth, and these three Justices of the Supreme Court, and the President and all of the thirty-two members of the State Senate. The opinion of the lower court was unanimous, as was the opinion of the Appellate Court. The facts of the case are thust stated in the opinion of the Appellate Court:

"An action was brought by Stevens & Cagger against Adams, for the services of Stevens as counsel in arguing two causes for the defendant, in this court. The case was heard by referees, who made a report in favor of the plaintiffs for $300, which the defendant moved to set aside, on the ground that an action does not lie for the recovery of compensation for services rendered as counsel beyond the fee prescribed by statute, viz., $3.75 in each cause. Messrs. Stevens & Cagger were not the attorneys of Adams in the prosecution of the writs of error, but Mr. Stevens was retained as counsel by Adams to argue the two causes. The Supreme Court refused to set aside the report, and rendered judgment for the plaintiffs."

The question presented to the Appellate Court was whether by the laws of the State of New York a counsellor, who is employed to argue a cause for his client, under an agreement to pay him a greater compensation for his services than the nominal fee prescribed by statute, can maintain an action to recover such compensation. In the very learned and instructive opinion delivered by Chancellor Walworth, speaking for the Appellate Court, Blackstone is cited as stating the established law of England to be that a counsellor cannot maintain a suit for his fees, and he cites the case of Moor v. Row, 1st Reports in Chancery, 38, in the time of Lord Coventry, 1629, where a demurrer was sustained to a bill brought by a counsellor for counsel fees which the client had agreed to pay. Blackstone also refers to the decree of the Emperor Claudius, mentioned by Tacitus, which limited the amount of gratuity, or honorarium, which the advocate, during that Emperor's reign, should be permitted to receive from his client. The same rule was applied to physicians, whose profession was regarded as purely an honorary one. Growing out of this status of the profession at that period, the doctrine of the non-liability

of counsel for malpractice was enunciated in the case of Fell v. Brown, 1st Peake's N. P. Cases, 123. Lord Kenyon delivered the opinion of the court, and for the first time this principle was incorporated into the law of England. This remarkable decision deprived a client of any remedy whatever at law against the grosest neglect of a barrister in conducting his cause before the courts. Where the advocate was guilty of the most inexcusable neglect, or was flagrantly incompetent, the client had no cause of action against him for damages, for the reason, of course, that the advocate's services were without consideration and purely gratuitous. This rule prevails in Great Britain to this day. The doctrine treating the services of barristers and physicians as merely gratuitous, and as not entitling them to any legal claim to compensation, is undoubtedly derived from the civil law.

Among the early institutions of Rome, the relation of patron and client existed between the patrician and plebeian. The patron who had accepted the promise of fidelity from the client, was bound to render him legal service or medical assistance, as the case might be, to sustain him in his litigations, and relieve him when ill, without any other fee or reward than that which the client was bound to render him at all times, in virtue of his general relation of client. The bond which existed between them was somewhat similar to that which existed between master and slave, but as civilization advanced, and these relations of patron and client towards each other had totally changed, when the business of advocating causes in the courts had become a profession, the client paid his advocate a fee, or made him a gift in advance of his services, and this was called a gratuity or honorarium. As this was purely a voluntary recompense, the client was under no legal obligation to pay it. But the result necessarily was that if the usual present or gratuity was not given, the advocate did not consider himself bound in honor to undertake the conduct of his case before the courts.

Chancellor Walworth, in announcing the opinion of the Appellate Court, affirming the judgment of the Supreme Court, took particular pains to say that the court would not express any opinion upon the question whether an advocate could, without an express agreement with his client, maintain an action on an implied promise merely, or could recover anything more than the infinitesimal statutory fees mentioned in the opinion. Of course, this intimation that an advocate or counsellor could not recover for his services, on an implied contract, is no longer pertinent, for in all the States of the Union, with the exception of New Jersey, implied contracts and express contracts for the payment of lawyers' fees are placed on the same footing, and one is as serviceable as the other in all the forums, State and Federal, throughout the United States.

This address would be incomplete without a discussion of the contingent fee-that modern and strictly American form of contract which has been the source of so many conflicting and irreconcilable decisions in the State and Federal jurisdictions of this country. At common law, agreements between attorney and client, for a fee contingent upon the successful issue of the litigation, have always been and are now absolutely void in England, on the ground of champerty. This encroachment upon the ancient and venerated common law was first introduced into genteel society in Kentucky by our Court of Appeals in June, 1836, in the case of Wilhite v. Roberts, 4 Dana, 172. The opinion of the court in that case was delivered by Judge Ephraim M. Ewing. The question involved was, whether or not a contract between a lawyer and his client, by the terms of which the client obligated himself to pay the lawyer, in the event of success, a sum equal to one-half the value of the land in controversy, was in contravention of the Act of 1824, which, with certain modifications, constitutes Sections 209 and 211 of the Kentucky Statutes.

According to Section 209, all contracts made in consideration of services to be rendered in the prosecution of any

suit, by any person not a party of record to such suit, whereby the thing sued for, or any part thereof, is to be paid or received by such person for his services, are declared to be null and void; and under the provisions of Section 211, all contracts to prosecute a suit for the recovery of any lands in this Commonwealth, in the adverse possession of another, for the whole or any part of the profits thereof, shall be null and void. The original of the Act of 1824, of course, is not exactly expressed in this language, but this is the substance of that act. In the case cited, the court expressly held that a contract between a lawyer and client, which provided that the attorney should receive as his compensation for his services an amount equal to one-half the value of the land or other thing in controversy, was not prohibited by the Act of 1824 denouncing champerty. The reasoning of the court in the Wilhite case is very illuminating. Indeed, it is the very refinement of subtlety. Notwithstanding the language of this legislative enactment, the court held in that case, that it was as competent for a litigant to regulate the amount of his attorney's fee by the value, or one-half the value, of the property in controversy, as to regulate it by the value, or one-half the value, of any other piece of property, and further held that whether he regulated it by one, or the other, or whether he agreed to pay a contingent fee in money agreed upon by the parties at the time, he is not subject to the denunciation of the statute, provided he did did not agree to give a part of the very thing itself, or a profit out of the actual thing in contest.

The learned Judge in delivering the opinion of the court in this case, after thus disposing of the question, uses this language:

"Champerty is the most odious species of maintenance and was an offense at common law, and has been denounced by various highly penal statutes, in aid of the common law. It always has been regarded as an offense against the peace of society, the administration of impartial justice, and tending to the encouragement of litigation and the oppres