Page:The Green Bag (1889–1914), Volume 18.pdf/549

 THE GREEN BAG after the learned clerk from Padua had by his skill and eloquence extricated Antonio from Shylock's grasp: "Antonio, gratify this gentleman; For in my mind you are much bound to him," is cited as illustrating the contemporary tone of thought on the subject. They fur ther allege that a similar custom prevails in some semi-civilized or retrograding coun tries at this day; and that a lingering trace of it may be found among us, in the com pensation of masters, receivers, and other officers appointed by the courts. They adopt as conclusive verity Bacon's asser tion that he had never been governed in his decisions by the gifts tendered him, but had uniformly decided according to justice and equity, no matter whether he was paid much or little, and finally assume that the extortion was principally by his servants and officers, to whom Bacon was confessedly weakly indulgent, and that from weakness and a false magnanimity he assumed the guilt himself. These contentions, as I think I can show, are not supported in law or fact. To take the last item first, Bacon admitted in the twenty-eighth clause of his answers that he had given way to great exactions by his servants, both in respect to private seals and sealing injunctions, which he confessed was a great fault of neglect in him that he looked no better to them. Therefore there was no dispute about this and it need not be mixed up with the twenty-seven other more serious charges. This was a case of what would now be called "graft" pure and simple. That is, public officers of a merely ministerial character exacted from the public additional fees for putting the seals on writs and injunctions for their private emolument. It was not merely a tip, a voluntary gift to an officer, which is the excuse usually made by depu ties and such like, for getting a larger com pensation than the law allows, but a direct exaction or extortion (such as have been

known in our own day and even under pro fessedly reform administrations) without the payment of which the officer refuses to do his duty, and the Lord Chancellor winked at the exaction. Yet Bacon was fully con scious of the iniquity of such practices and of their injury to the Commonwealth. In his "New Atlantis," the description of an ideal state, he treats of this offense under the name of double payment, and praises the rule that no one should be twice paid for one labor, and in that happy Island to be twice paid, even if the double pay ment was voluntary, was accounted dis' graceful and criminal. And in his essay on Judicature, Bacon strongly condemns what he calls "polling and catching clerks and ministers who make the Court a thornbush where the sheep loses his fleece." This was, however, the lightest of the offenses laid to Bacon's charge and by him confessed. As to the supposed custom of gifts by suc cessful suitors to Judges or Chancellors, it is so far as England is concerned absolutely unsupported by evidence. In Sir Robert Phillips' report from the Committee on Abuses it is stated but one precedent had been found of such reception of gifts, which he called frankly corruption, and that case was also of a Lord Chancellor (said by the annotator of State Trials and by Lord Coke to have been Cardinal Wolsey). The instance quoted from the poetical case of Shylock vs. Antonio is not in point, for in that case neither Bellario nor his supposed cousin was a judge, but they were invited as a species of adsessors to advise a tribunal not learned in the law as to what the law was. Such an adsessor not being paid any salary, it might be in the province of the duke or lay judge to provide for his pay ment, by an order on one of the parties, and all Shylock's goods having been taken from him by fine and confiscation, the successful defendant was the only person who could furnish the adsessor 's fee. When in the subsequent practice of Chancery, Masters, etc., have been compensated by fees, it