MR. KENNEDY AND MS JUDGES.
MR. Kennedy has so far challenged an expression of public opinion, and his actions have excited so much public interest, and have raised so many questions with which the public are more or less concerned, that journalists are in a manner compelled to devote their attention to a not very pleasant subject. Our own remarks will be mainly directed to pointing out the fact that there are two very dis- tinct codes of morality under which he comes up to receive judgment,—the code of professional and the code of general morality. They are related, but by no means the same, and it is not quite fair for writers in the newspapers to combine the indignation which many of them probably feel as bar- risters with their feelings as ordinary- men, and to heat the breath of their denunciations at two fires without an accurate discrimination between their grounds of censure. The professional objections to Mr. Kennedy's conduct reduce themselves to two, that of being guilty of " chatn- perty," and that of blending the characters of attorney and barrister. It will be as well to consider both of these, and to what they really amount. Champerty is a misdemeanour at common law, but the rules, as forbidding that which has nothing immoral or dishonest in it per se, are purely conven- tional, and in particular cases work great hardship. We believe that the present case was one of the cases of hard- ship. Here was Mrs. Swinfen threatened with the loss of large estates, which she asserted to be hers both legally and morally. Before the first case was tried, no one, least of all those who were obliged to see with the eyes of one party only, could say that she was wrong, and a jury ultimately held that she was right. While the trial was yet pending, Sir F. Thesiger, out of court, had a hint from the presiding judge, Sir Cresswell Cresswell, in the shape of the remark, "I think Cockburn is damaging your female witnesses," a hint which caused a laugh when its form came out in evi- dence. Thereupon Sir F. Thesiger, acting no doubt upon what he conceived to be for his client's interest, and not going beyond the discretion which eminent counsel had often assumed, compromised the case without sufficient authority. Mrs. Swinfen at this came out as the full blown heroine in whom a British jury delights, said that her character was at stake, and that she would have her full rights or nothing. But if her difficulties had been great before, they were largely increased now, except so far as she could depend upon the feeble impulses of popular feeling. She had first to enter upon a legal controversy, in which the feelings of the bar and the bench were against her, in order to set aside the compromise. She had then to go before another jury with the prejudice to her case which was necessarily attendant upon so able and respected an advocate as Sir F. Thesiger having deemed it prudent to compromise. At this point Mr. Kennedy came upon the stage. It does not appear by the report in the Times that Mrs. Swinfen attempted unsuccessfully to proceed again in the usual manner, but it may be assumed that this was the case. If ever there was a fair occasion for a partnership in risk, this was the occasion, and the available partners were few indeed. It was necessary to secure the services of a man of high attainments, courage and genius, with something of the paladin and something of the gambler in his composition, and such a man Mrs. Swinfen found in Mr. Charles Bann Kennedy. It is unnecessary to inquire into the causes of his previous ill-success at the bar. The extreme indiscretion and heat with which he turned a legal question into a per- sonal attack upon Sir F. Thesiger and Mr. Justice Cress- well, while he was labouring to set aside the compromise, sufficiently account for it. Whatever the reason may have been, one of the first scholars in England, and a man of great general vigour and ability, had been, for years doing a local business of 8001. or 9001. a year in the Birmingham courts, instead of struggling for the great prizes of the world in the arena of Westminster Hall. He was fifty, or near it, but with all the passions and energies of a younger man, inten- sified by repression. From the first there can be no doubt that the relations of the parties "savoured of chatnperty ; " in fact, whatever the law may ultimately hold respecting their arrangements, Mr. Kennedy was to win the cause, and was to be richly remunerated out of what he won. Visions of a silk gown, and a seat in Parliament, of confessed genius, and social pre-eminence floated before him. For these hopes he gave up an obscure and respectable competence, although he had children dependent upon him, and staked his life upon the great Swinfen cause. He "says, and a jury have believed, that Mrs. Swinfen promised him 20,0001. Then she gave him the estate itself after her death, subject to a charge of legacies, and of 10,0001. for her debts. This deed she now says was obtained by fraud, and she and her present husband seek to set it aside. She has married a Mr. Broun, and Mr. Kennedy sues Mr. Broun for 20,0001., offering to give up the claim if Mr. and Mrs. Broun will confirm the gift of the estate. They refuse to do so, and the jury have found for Mr. Kennedy ; but this finding is subject to the point of law reserved by the judge—whether a contract by a barrister with a client for his remuneration for professional services is sustainable at law. The foregoing statement sufficiently indicates that Mr. Kennedy was to be something more than an advocate in court, and any one in the least acquainted with the exist- ing position and maxims of the English bar will easily understand the professional dissatisfaction which his con- duct has excited. In theory, and to a great extent in fact, the barrister stands above both the client and his solicitor, and between them and the Court. He is looked on as a person, if not belonging to, at all events subject to the traditions of, an aristocratic social class, independent of the coarse contentions in which he represents one side, and bound to exercise a quasi-judicial discretion in his proceedings, and to observe a scrupulously impartial and honourable tone in all statements which he assumes to make in his own per- son. Probably no one out of the profession would readily understand the difference which it would make in the whole course of legal procedure if barristers were as a habit to ex- change their present position for that of interested parties, fighting for their fees, and sustaining causes, like Messrs. Dodson and Fogg, " on spec." " The licence of advocacy," at best the source of many difficulties, would be an absolute nuisance if as a rule the personal interests of barristers entered into the game. Whatever Mr. Kennedy's claim to undertake the direct conduct of the suit he worked on spec, and his proceedings seem to be an entire departure from the etiquette of the bar. He must abide the consequences, whatever they may be ; but that is no reason why he should personally be placed on the footing of a man like Mr. Edwin James. Under the pressure of no ordinary temptations, and in a case in which the sense of natural justice affords no ordinary palliations, the man has broken salutary rules. So far it may stand there. It is probable, too, that he has placed an extravagant price upon his services, but we see no reason to think that his shrewd client was deceived; and, after all, the estimation of the risks run is a matter full of doubtful elements. He was not bargaining for an ordinary fee. He was willing to exchange a certain, though obscure competence, for the chance of a brilliant position, and (in foro conscientite) he and Mrs. Swinfen might well be left to settle the terms between them. The transaction between them was not of the kind which legislators have had in view in providing for the taxation of attorneys' bills, though it may be necessary to adhere to the general rule in this case, as in others, with- out regard to the exceptional nature of the circumstances. In bringing his action we do not believe that he was actuated by any sordidly mercenary motives. There is strong reason to think that he might have had 10,0001., or, at all events, a large sum, if he had consented to withdraw it ; and, after his previous success, he would have returned to the ordinary exercise of his profession with prospects im- proved instead of injured. He must have well known the legal difficulties which would stand between him and the actual fingering of what the jury might award. Neither do we see any sufficient ground for believing that after dissuading Mrs. Swinfen from seeking to overturn the com- promise, he used undue influence to urge her forward. The wish to be the hero of a great case may have influenced him, but the éclat of such a position would have been gone if he had failed ; and, most likely, reflection and study convinced him more and more that the chances of success were such as to warrant the struggle. But the case has another aspect. The business relations between adviser and client are alleged by Mr. Kennedy to have been mingled with personal relations of a more tender kind. He tells us that he has been entrapped and seduced by the arts of a siren; and that the real reason why it is sought to deprive him of the remuneration to which he looked, is that the mistress has become the wife of another man. She could not have been his own wife. He was and is married, although he intimates that there are excuses too sad to be publicly stated for his having acted as though he were not restrained by the marriage tie. We acquit this unfortunate man of having played with the afieo- tions of a woman for mercenary objects. In common with the rest of the world, we cannot withhold our con- demnation of the barbarous malignity and rage into which his unhallowed passion has curdled. t By his own account, the first bitterness of the desertion and ingratitude, of which he accuses Mrs. Swinfen, maddened him into the determi- nation to blast her character with his own by a libellous publication. Happily for him wiser counsels restrained this unmanly and ungenerous outpouring of wrath. But having once had time to reflect, no earthly consideration should have led him to bring the terrible story into the recent proceed- ings. His evidence in chief pointed to it too much, and although it is quite true that his broader statements were wrung from him by the rash act of the lady's counsel, who fairly flung the unpublished and repented pamphlet in his teeth, Charles Rann Kennedy should have bitten off his tongue, rather than made any other answer than this, "You well know, Mr. Macaulay, that I was maddened by injuries which have no connexion with this litigation ; but that I have a reply which you dare not ask for." Mrs. Swinfen might not have stood higher before the world, but Mr. Kennedy would have stood immeasurably higher than he did as the denouncer of a woman for seducing him when he was fifty years old. We wish to judge him as fellow-sinners should judge a man of violent passions sorely tried, but our desire to do him full justice must not be mistaken for a wish to see wholesome professional rules relaxed, and still less for sympathy with a spirit which is as repulsive to us as to the rest of the world.
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