Justice denied and justice delayed: the trials and tribulations of a Victorian solicitor

Abstract

This paper explores a Victorian cause célèbre, particularly the latter stages, in which a London solicitor, W.H. Barber, battled first to obtain the renewal of his practising certificate and then to claim compensation from public funds for the sufferings he had endured as a result of his wrongful conviction. Barber's misfortunes arose from his unwitting participation in a series of sensational frauds on the Bank of England, leading to his transportation to the penal colony on Norfolk Island in 1844. Pardoned on the basis of confessions from the wrongdoers, his readmission to the profession was unrelentingly opposed by the Incorporated Law Society, and he only prevailed after a series of rebuffs in the courts.

Barber's tribulations, which had first highlighted the defects of the criminal trial, provide an unusual insight into the under-explored and uncertain state of solicitors' professional ethics at this time and the controversial role of the ILS in enforcing them. They also yield valuable information on solicitors' practices and the effects of a royal pardon.

Notes

For a concise recent description of the profession in the nineteenth century see Polden (2010).

Figures given in app.2.42 of Abel (1988) are sparse before 1889. He offers a brief overview at pp. 248–50 and there are short accounts in Kirk (1976) and Sugarman (1996). On the defalcations scandal see Lunney (1996).

As was common, Barber was both an attorney of the common law courts and a solicitor of the court of Chancery. For convenience, he and other members of the profession are described here as solicitors except when quoting contemporary sources. The term attorney was rendered obsolete by the Judicature Act 1873 (c.66) s.87.

NRA, IGI. Another copy gives 8 December 1808, but Barber described himself as thirty-six in April 1844, so the earlier date fits better. The register gives only his mother's name, Margaret.

Michie (1847, p. 1), quoting Barber's memorial to the Home Secretary (also printed in Barber, 1853). But according to Hartung (Bank of England F12) he went there to set up business and Hartung lent him money.

According to the IGI, a Merrick Bircham was baptised at Reopham with Kerdiston on 3 December 1817, but the 1881 census shows him as born 1818 in Hackford. He was admitted in 1840 (Michie, 1847, p. 19, memorial to the Home Secretary; Select Committee, 1857, Peckham q. 1255). Two other Birchams are in the Law List for 1843, but it is not known if they were related.

There is a characteristically readable account of these events and the subsequent trials in Atlay (1899).

Born c.1790 at Deeping Fen, in Market Deeping, son of a farmer. Apprenticed to a surgeon, he set up in practice at Crowland and when he came to London traded as a chemist and druggist in the Old Kent Road and as a general practitioner until moving to Southwark around 1834 (Bank of England, F9/10, ‘statement of facts’).

The terms were 15% and a life policy (Michie, 1847, pp. 19–20). Barber claimed that at the time of the Slack transaction he was probably a net creditor of Fletcher's (Select Committee, 1857, Barber qq. 29, 447–454).

In Little Dorrit (1852–1853), Pancks tracks down an inheritance belonging to William Dorrit and is evidently familiar with the process.

An Act to Authorize the Transfer of Stock … 56 Geo. III c.60 s.1. By the 1840s, and in fact much earlier, it was generally believed that the principle behind the sinking fund was fallacious, but the Commissioners for the Reduction of the National Debt continued to carry out their duties.

According to Christmas's evidence at the Stewart trial (Times, 13 April 1844), he had been a clerk for over fifty years and had been associated with Fletcher for four or five years. He made £100 out of Fletcher's Stewart fraud alone. He escaped prosecution, perhaps to spare the Bank embarrassment, though the Attorney-General felt that he had not made himself liable for fraud (Francis, 1848, p. 181).

The Sydney Law Society later commented that it was unwise to become involved in such business but that “it has been adopted by men of undoubted honour and integrity” (Michie, 1847, p. 42).

For fifteen years according to Sanders' confession (Barber, 1853, p. 9). The only instance uncovered was Hunt in 1838 (see Barber, 1854, pp. 171–183).

Joseph Cuckson's evidence to the magistrates (The Times, 27 January 1844). Cuckson's wife mentioned one “Tucker”, leading to hasty disclaimers on behalf of one solicitor of that name (The Times, 29 January 1844). However, one of the affidavits in ex p. Hunt (see above) was sworn by George Tucker of Kennington.

Stephen (1851, pp. 9–10) said that only a handful of the 10,000–12,000 solicitors had any experience of forgery prosecutions and that Fauntleroy's was the only well known instance of a gentleman committing systematic forgeries.

The earliest guidance from the Law Society to be found in its library is Practice and Usage in the Solicitors' Profession (1898), which contains a selection of opinions. A much expanded version came out in 1909. The Law Society's Handbook (1898) has nothing on etiquette.

The notes of this conversation upon which Freshfield relied in court omitted to mention how angry Barber became at Freshfield's manner, which also annoyed the proctor Wills (Barber, 1853, p. 13; Stephen, 1851, p. 97). Opinion within the profession was divided upon whether Barber was entitled to conceal his client's name, but it was certainly arguable that he was: see the case of Mulhall in Morning Herald, 13 December 1847 quoted in Barber (1853, p. 13).

Extensive reports of the proceedings are in The Times and (with drawings) in the Illustrated London News.

See Michie (1847, p. 22). Wilkins had initially represented another of the defendants, Mrs Dorey, but was disgusted by her duplicity. He took “whatever Barber could afford”. For Wilkins see Robinson (1889, pp. 85–91) and Woolrych (1869, vol. II, pp. 861–88).

There was confusion about its status later (see below), but The Times had headed its account of the first examinations at the Mansion House “Extraordinary Case Upon the Prosecution of the Government” (11 December 1843). The trials are fully covered in The Times and in the Old Bailey Session Papers, t18440408-1058.

Writing to The Times in 1850 when his conduct was noticed during Barber's application for his certificate, Bircham claimed that he was available to the defence had they wanted him, but he made no answer when Barber quoted the affidavit Parry swore detailing the unavailing steps they had taken to find him, as well as the contents of some of his own letters.

Wilkins published his speeches in the case: Speeches of Mr. Wilkins in his Defence of William Henry Barber (London, John Crockford, ?1844). As Atlay suggests (1899, pp. 84–85), Erle strained the facts in his closing speech. It may be that Pollock, more familiar with the other cases, would have been more restrained.

Bramall's illness was probably terminal; he did not appear in The Law List for 1844 and subsequent years.

Sanders alone was tried for the Mary Hunt fraud. He pleaded guilty and was given seven years' transportation.

See Select Committee (1857, Barber q. 215), Correspondence (1847, p. 69, Naylor to Lord Stanley) and Barber (1853, pp. 40–80). Graham left the petition in the office for fourteen months and then laconically dismissed it (Stephen, 1851, p. 77).

HO 18/129/13, Sir G. Grey to A. Stevenson, 10 November 1848. The draft includes a much sterner rebuke, presumably drafted by an official. The pardon is reproduced in Barber (1853, p. 127).

At this time there was strident agitation by some in the profession, especially the Metropolitan and Provincial Law Association, for the repeal of this duty. The Incorporated Law Society was ambivalent, seeing the duty as a desirable discouragement to poorer entrants, especially former clerks, and, as Robert Maugham had written in his Treatise, as a means of preserving respectability.

It is probably no coincidence that this provision was strengthened soon after the Barber application at the instance of the Metropolitan and Provincial Law Association [(1851–1852) 19 Law Times, p. 62]. On relations between these two bodies see Anderson (1992, pp. 29–32).

For Thesiger, later Lord Chancellor Chelmsford, see Atlay (1908, vol. II, pp. 79–126). Bovill was Chief Justice of the court of Common Pleas 1866–1873.

See Barber (1854, p. 32). There were two reports, one on the will forgeries, the other on the new complaints. They were read by the ILS council on 8 November. Neither seems to survive among the Queen's Bench records in the National Archive, but the whole of the former and most of the latter are in (1850) 39 Legal Observer, pp. 258–269 and 40 Legal Observer, pp. 243–246.

The fullest report of the trial (Re Barber) is in Barber (1854), with his own comments interpolated. More accessible are those in (1850) 15 Law Times, p. 500, (1850) 40 Legal Observer, p. 218, and The Times. Except where stated, references are to the Law Times report.

In another of these cases a poor couple named Smith had recovered £1,200.

There was no testimony from any of the clerks, nor from Bircham, and no examination of the office books.

According to its rival the Law Times, the Legal Observer “pursues Mr. Barber in bitterness that seems more of personal than professional feeling” [(1850–1851) 16 Law Times, p. 274].

At least five editions from 1851. For Stephen see ODNB, vol. 52, p. 429. He had become well-known for his anonymous Adventures of an Attorney in Search of a Practice (1839) and later went to the bar. He first wrote on the Barber case in the Law Times.

Reports of the brief judgment are in (1851) 17 Law Times, p. 142, The Times, 5 June 1851 and Barber (1854).

Ibid. Barber complained to The Times (14 June) that their report was inaccurate, but his corrections do not seem important.

Used for example in the five stage scale suggested by Peter Gibson J. in Baden Delvaux v. Societe Generale … [1983] BCLC 325, but later discarded.

In Re Barber (1854) LJR ns Ch.874, at 875. The report in 19 Beav. 378 differs somewhat. The case is also in The Times, 3 July 1854.

Horatio Waddington had become permanent under-secretary in 1848 in succession to S.M. Phillipps and was not therefore personally familiar with the case.

In the case of Lord Cochrane the award (also £5,000) was posthumous and based on a very questionable acceptance of his innocence (Dale, 2006). Home Office fears that this would be cited as a precedent proved to have some foundation. Sir John Eardley Wilmot, son of the governor of Van Diemen's Land, used it, together with an award of £1,000 to an Irishman, Habron, in support of his endeavour to win compensation for Galley in 1881 [PD 1881 (s3) vol. 264, cols. 1005–1018).