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

SIR WILLIAM FOLLETT

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 fees1. 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;2 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 interest3 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 immediately after resuming his seat, you would see him go perhaps into an adjoining court of Nisi Prius, in which also he was engaged as leading counsel, and where he would quickly ascertain the exact position of the case – and effectively cross-examine or re-examine a witness, or object to or support the admissibility of evidence; – then if you followed his footsteps, you would find him in the Lord Chancellor's Court, engaged in some equity case of great magnitude and difficulty. Some time afterwards be might be seen hastening to the Privy Council – and by about two or three o'clock at the bar of the House of Lords, in the midst of an admirable reply in some great appeal or peerage case. When the House broke up, Sir William Follett would doff the full-bottomed wig in which alone Queen's counsel are allowed to appear before the House of Lords, and, resuming his short wig, reappear in either – or by turns in both – the Courts of Nisi Prius, where he had left trials pending, having directed himself to be sent for if there should arise any necessity for it. Then he would in a very few moments calmly possess himself of the exact state of the cause, and resume his personal conduct of it, as effectively as if he had never quitted the Court. If he could be spared for a quarter of an hour, he would glide out, followed by one or two counsel and attorneys, to hold one, or perhaps two consultations, in cases fixed for the next day. On the court's rising – perhaps about six or seven o'clock, he would go home to swallow a hasty dinner; then hold one, two, or even three consultations at his own house; read over – as none but he could read – some briefs; and about eleven or twelve o'clock make his appearance in the House of Commons, and perhaps take a leading part in some very critical debate – listened to with uninterrupted silence, and with the admiration of both friends and foes. The above, with the exception of taking part in the debate of the House of Commons, was an average day's work of the late Sir William Follett! And was it not the life of a galley-slave chained to the oar? He had, however, chosen it, and would not quit his seat but at the icy touch of death. Such appears to be a fair and temperate account of the real state of the case, with reference to Sir William Follett's great anxiety to acquire money, and his over-eagerness in accepting briefs. Great allowances ought undoubtedly to be made for him, on the grounds above suggested; and, with reference to the former case, another consideration occurs, which ought to have been already more distinctly adverted to. Sir William Follett had a right to regard his elevation to the peerage as a matter almost of course. Had he lived possibly only a few months longer, he would, in all probability, have become a peer of the realm; and he ought to be given credit for an honourable ambition to avoid the imputation of having inflicted a pauper peerage upon the country. Frail he knew his health to be; and doubtlessly contemplated the necessity of providing suitably for the family whom he was to leave behind him, and which he had ennobled. But what was involved in providing, under such circumstances, "suitably" for a noble family? What ample means would have to be secured by one who had inherited no fortune himself, but was, on the contrary, the sole architect of his fortunes? What prodigious efforts are necessary for a lawyer to realise, by his own individual exertions, an amount which would produce an income of five, four, or even three thousand a-year? And let any one of common sense, and ordinary knowledge of the world, ask himself – whether the highest of those amounts is more than barely sufficient, without undue economy, to provide for a dowager peeress and a young family! That such considerations were not lost sight of by Sir William Follett, but, on the contrary, were stimulants to his intense, unremitting, and exhausting labours, it is easy to understand; and they sprang out of a high, and honourable, and a legitimate ambition. But whatever weight may be attached to these considerations – and generosity and forbearance towards the dead will attach great weight to them – they are no answer to much of the charge brought against the late Sir William Follett, and which ought not to be glossed over and explained away – that, in his excessive eagerness to accomplish his object, he was hurried into an occasional forgetfulness of that nice and high sense of moral principle which ought to regulate every one's conduct – especially those in eminent positions – for the sake of illustrious example, and, in a man's own case, with reference to the awful realities of hereafter: for a man should strive so to pass through things temporal, as not to lose sight of things eternal.