Until comparatively recent times, judges were dangerously dependent on the king's favor; for they not only held their offices during the pleasure of the crown, but on dismissal they could not claim a retiring pension. In the seventeenth century, an aged judge, worn out by toil and length of days, was deemed a notable instance of royal generosity, if he obtained a small allowance on relinquishing his place in court. Chief Justice Hale, on his retirement, was signally favored when Charles II. graciously promised to continue his salary till the end of his life—which was manifestly near its close. Under the Stuarts, the judges who lost their places for courageous fidelity to law, were wont to resume practice at the bar. To provide against the consequences of ejection from office, great lawyers, before they consented to exchange the gains of advocacy for the uncertain advantages of the woolsack, used to stipulate for special allowance—over and above the ancient emoluments of place. Lord Nottingham had an allowance of £4000 per annum; and Lord Guildford, after a struggle for better times, was constrained, at a cost of mental serenity, to accept the seals, with a special salary of half that sum.[19]
From 1688 down to the present time, the chronicler of changes in the legal profession, has to notice a succession of alterations in the system and scale of judicial payments—all of the innovations having a tendency to raise the dignity of the bench. Under William and Mary, an allowance (still continued), was made to holders of the seal on their appointment, for the cost of outfit and equipages. The amount of this special aid was £2000, but fees reduced it to £1843 13s. Mr. Foss observes—"The earliest existing record of this allowance, is dated June 4, 1700, when Sir Nathan Wright was made Lord Keeper, which states it to be the same sum as had been allowed to his predecessor."
At the same period, the salary of a puisne judge was but £1000 a year—a sum that would have been altogether insufficient for his expenses. A considerable part of a puisne's remuneration consisted of fees, perquisites, and presents. Amongst the customary presents to judges at this time, may be mentioned the white gloves, which men convicted of manslaughter, presented to the judges when they pleaded the king's pardon; the sugar loaves, which the Warden of the Fleet annually sent to the judges of the Common Pleas; and the almanacs yearly distributed amongst the occupants of the bench by the Stationers' Company. From one of these almanacs, in which Judge Rokeby kept his accounts, it appears that in the year 1694, the casual profits of his place amounted to £694, 4s. 6d. Here is the list of his official incomes, (net) for ten years:—in 1689, £1378, 10s.; in 1690, £1475, 10s. 10d.; in 1691, £2063, 18s. 4d.; in 1692, £1570, 1s. 4d.; in 1693, £1569, 13s. 1d.; in 1694, £1629, 4s. 6d.; in 1695, £1443, 7s. 6d.; in 1696, £1478, 2s. 6d.; in 1697, £1498, 11s. 11d.; in 1698, £1631, 10s. 11d. The fluctuation of the amounts in this list, is worthy of observation; as it points to one bad consequence of the system of paying judges by fees, gratuities, and uncertain perquisites. A needy judge, whose income in lucky years was over two thousand pounds, must have been sadly pinched in years when he did not receive fifteen hundred.
Under the heading, "The charges of my coming into my judge's place, and the taxes upon it the first yeare and halfe," Judge Rokeby gives the following particulars:
"1689, May 11. To Mr. Milton, Deputy Clerk of the Crown, as per note, for the patent and swearing privately, £21, 6s. 4d. May 30. To Mr. English, charges of the patent at the Secretary of State's Office, as per note, said to be a new fee, £6, 10s. Inrolling the patent in Exchequer and Treasury, £2, 3s. 4d. Ju. 27. Wine given as a judge, as per vintner's note, £23, 19s. Ju. 24. Cakes, given as a judge, as per vintner's note, £5, 14s. 6d. Second-hand judge's robes, with some new lining, £31. Charges for my part of the patent for our salarys, to Aaron Smith, £7, 15s., and the dormant warrant £3.—£10, 15s.—£101, 8s. 2d.
"Taxes, £420.
"The charges of my being made a serjeant-at-law, and of removing myselfe and family to London, and a new coach and paire of horses, and of my knighthood (all which were within the first halfe year of my coming from York), upon the best calculation I can make of them, were att least £600."
Concerning the expenses attendant on his removal from the Common Pleas to the King's Bench in 1695—a removal which had an injurious result upon his income—the judge records: Nov. 1. To Mr. Partridge, the Crier of King's Bench, claimed by him as a fee due to the 2 criers, £2. Nov. 12. To Mr. Ralph Hall, in full of the Clerk of the Crown's bill for my patent, and swearing at the Lord Keeper's, and passing it through the offices, £28, 14s. 2d. Dec. 6. To Mr. Carpenter, the Vintner, for wine and bottles, £22, 10s. 6d. To Gwin, the Confectioner, for cakes, £5, 3s. 6d. To Mr. Mand (his clerk), which he paid att the Treasury, and att the pell for my patent, allowed there, £1, 15s. Tot. £60, 2s. 8d. The charges for wine and cakes were consequences of a custom which required a new judge to send biscuits and macaroons, sack and claret, to his brethren of the bench.
In the reign of George I. the salaries of the common law judges were raised—the pensions of the chiefs being doubled, and the puisnes receiving fifteen hundred instead of a thousand pounds.
Cowper's incomes during his tenure of the seals varied between something over seven and something under nine thousand per annum: but there is some reason to believe that on accepting office, he stipulated for a handsome yearly salary, in case he should be called upon to relinquish the place. Evelyn, not a very reliable authority, but still a chronicler worthy of notice even on questions of fact, says:—"Oct. 1705. Mr. Cowper made Lord Keeper. Observing how uncertain greate officers are of continuing long in their places, he would not accept it unless £2,000 a yeare were given him in reversion when he was put out, in consideration of his loss of practice. His predecessors, how little time soever they had the seal, usually got £100,000, and made themselves barons." It is doubtful whether this bargain was actually made; but long after Cowper's time, lawyers about to mount the woolsack, insisted on having terms that should compensate them for loss of practice. Lord Macclesfield had a special salary of £4000 per annum, during his occupancy of the marble chair, and obtained a grant of £12,000 from the king;—a tellership in the Exchequer being also bestowed upon his eldest son. Lord King obtained even better terms—a salary of £6000 per annum from the Post Office, and £1200 from the Hanaper Office; this large income being granted to him in consideration of the injury done to the Chancellor's emoluments by the proceedings against Lord Macclesfield—whereby it was declared illegal for chancellors to sell the subordinate offices in the Court of Chancery. This arrangement—giving the Chancellor an increased salary in lieu of the sums which he could no longer raise by sales of offices—is conclusive testimony that in the opinion of the crown Lord Macclesfield had a right to sell the masterships. The terms made by Lord Northington, in 1766, on resigning the Seals and becoming President of the Council, illustrate this custom. On quitting the marble chair, he obtained an immediate pension of £2000 per annum; and an agreement that the annual payment should be made £4000 per annum, as soon as he retired from the Presidency: he also obtained a reversionary grant for two lives of the lucrative office of Clerk of the Hanaper in Chancery.