Mr. Doves Opinion by Anthony Trollope Lyrics
Mr. Thomas Dove, familiarly known among club-men, attorneys' clerks, and, perhaps, even among judges when very far from their seats of judgment, as Turtle Dove, was a counsel learned in the law. He was a counsel so learned in the law, that there was no question within the limits of an attorney's capability of putting to him, that he could not answer with the aid of his books. And when he had once given an opinion, all Westminster could not move him from it,—nor could Chancery Lane and Lincoln's Inn and the Temple added to Westminster. When Mr. Dove had once been positive, no man on earth was more positive. It behoved him, therefore, to be right when he was positive; and though whether wrong or right he was equally stubborn, it must be acknowledged that he was seldom proved to be wrong. Consequently the attorneys believed in him, and he prospered. He was a thin man, over fifty years of age, very full of scorn and wrath, impatient of a fool, and thinking most men to be fools; afraid of nothing on earth,—and, so his enemies said, of nothing elsewhere; eaten up by conceit; fond of law, but fonder, perhaps, of dominion; soft as milk to those who acknowledged his power, but a tyrant to all who contested it; conscientious, thoughtful, sarcastic, bright-witted, and laborious. He was a man who never spared himself. If he had a case in hand, though the interest to himself in it was almost nothing, he would rob himself of rest for a week should a point arise which required such labour. It was the theory of Mr. Dove's life that he would never be beaten. Perhaps it was some fear in this respect that had kept him from Parliament and confined him to the courts and the company of attorneys. He was, in truth, a married man with a family; but they who knew him as the terror of opponents and as the divulger of legal opinions, heard nothing of his wife and children. He kept all such matters quite to himself, and was not given to much social intercourse with those among whom his work lay. Out at Streatham, where he lived, Mrs. Dove probably had her circle of acquaintance;—but Mr. Dove's domestic life and his forensic life were kept quite separate.
At the present moment Mr. Dove is interesting to us solely as being the learned counsel in whom Mr. Camperdown trusted,—to whom Mr. Camperdown was willing to trust for an opinion in so grave a matter as that of the Eustace diamonds. A case was made out and submitted to Mr. Dove immediately after that scene on the pavement in Mount Street, at which Mr. Camperdown had endeavoured to induce Lizzie to give up the necklace; and the following is the opinion which Mr. Dove gave:—
There is much error about heirlooms. Many think that any chattel may be made an heirloom by any owner of it. This is not the case. The law, however, does recognise heirlooms;—as to which the Exors. or Admors. are excluded in favour of the Successor; and when there are such heirlooms they go to the heir by special custom. Any devise of an heirloom is necessarily void, for the will takes place after death, and the heirloom is already vested in the heir by custom. We have it from Littleton, that law prefers custom to devise.
Brooke says, that the best thing of every sort may be an heirloom,—such as the best bed, the best table, the best pot or pan.
Coke says, that heirlooms are so by custom, and not by law.
Spelman says, in defining an heirloom, that it may be "Omne utensil robustius;" which would exclude a necklace.
In the "Termes de Ley," it is defined as "Ascun parcel des ustensiles."
We are told in "Coke upon Littleton," that Crown jewels are heirlooms, which decision,—as far as it goes,—denies the right to other jewels.
Certain chattels may undoubtedly be held and claimed as being in the nature of heirlooms,—as swords, pennons of honour, garter and collar of S. S. See case of the Earl of Northumberland; and that of the Pusey horn,—Pusey v. Pusey. The journals of the House of Lords, delivered officially to peers, may be so claimed. See Upton v. Lord Ferrers.
A devisor may clearly devise or limit the possession of chattels, making them inalienable by devisees in succession. But in such cases they will become the absolute possession of the first person seized in tail,—even though an infant, and in case of death without will, would go to the Exors. Such arrangement, therefore, can only hold good for lives in existence and for 21 years afterwards. Chattels so secured would not be heirlooms. See Carr v. Lord Errol, 14 Vesey, and Rowland v. Morgan.
Lord Eldon remarks, that such chattels held in families are "rather favourites of the court." This was in the Ormonde case. Executors, therefore, even when setting aside any claim as for heirlooms, ought not to apply such property in payment of debts unless obliged.
The law allows of claims for paraphernalia for widows, and, having adjusted such claims, seems to show that the claim may be limited.
If a man deliver cloth to his wife, and die, she shall have it, though she had not fashioned it into the garment intended.
Pearls and jewels, even though only worn on state occasions, may go to the widow as paraphernalia,—but with a limit. In the case of Lady Douglas, she being the daughter of an Irish Earl and widow of the King's Sergeant (temp. Car. I.), it was held that £370 was not too much, and she was allowed a diamond and a pearl chain to that value.
In 1674, Lord Keeper Finch declared that he would never allow paraphernalia, except to the widow of a nobleman.
But in 1721 Lord Macclesfield gave Mistress Tipping paraphernalia to the value of £200,—whether so persuaded by law and precedent, or otherwise, may be uncertain.
Lord Talbot allowed a gold watch as paraphernalia.
Lord Hardwicke went much further, and decided that Mrs. Northey was entitled to wear jewels to the value of £3000,—saying that value made no difference; but seems to have limited the nature of her possession in the jewels by declaring her to be entitled to wear them only when full-dressed.
It is, I think, clear that the Eustace estate cannot claim the jewels as an heirloom. They are last mentioned, and, as far as I know, only mentioned as an heirloom in the will of the great-grandfather of the present baronet,—if these be the diamonds then named by him. As such, he could not have devised them to the present claimant, as he died in 1820, and the present claimant is not yet two years old.
Whether the widow could claim them as paraphernalia is more doubtful. I do not know that Lord Hardwicke's ruling would decide the case; but, if so, she would, I think, be debarred from selling, as he limits the use of jewels of lesser value than these to the wearing of them when full-dressed. The use being limited, possession with power of alienation cannot be intended.
The lady's claim to them as a gift from her husband amounts to nothing. If they are not hers by will,—and it seems that they are not so,—she can only hold them as paraphernalia belonging to her station.
I presume it to be capable of proof that the diamonds were not in Scotland when Sir Florian made his will or when he died. The former fact might be used as tending to show his intention when the will was made. I understand that he did leave to his widow by will all the chattels in Portray Castle.
J. D.
15 August, 18––.
When Mr. Camperdown had thrice read this opinion, he sat in his chair an unhappy old man. It was undoubtedly the case that he had been a lawyer for upwards of forty years, and had always believed that any gentleman could make any article of value an heirloom in his family. The title-deeds of vast estates had been confided to his keeping, and he had had much to do with property of every kind; and now he was told that, in reference to property of a certain description,—property which, by its nature, could only belong to such as they who were his clients,—he had been long without any knowledge whatsoever. He had called this necklace an heirloom to John Eustace above a score of times; and now he was told by Mr. Dove not only that the necklace was not an heirloom, but that it couldn't have been an heirloom. He was a man who trusted much in a barrister,—as was natural with an attorney; but he was now almost inclined to doubt Mr. Dove. And he was hardly more at ease in regard to the other clauses of the opinion. Not only could not the estate claim the necklace as an heirloom, but that greedy siren, that heartless snake, that harpy of a widow,—for it was thus that Mr. Camperdown in his solitude spoke to himself of poor Lizzie, perhaps throwing in a harder word or two,—that female swindler could claim it as—paraphernalia!
There was a crumb of comfort for him in the thought that he could force her to claim that privilege from a decision of the Court of Queen's Bench, and that her greed would be exposed should she do so. And she could be prevented from selling the diamonds. Mr. Dove seemed to make that quite clear. But then there came that other question, as to the inheritance of the property under the husband's will. That Sir Florian had not intended that she should inherit the necklace, Mr. Camperdown was quite certain. On that point he suffered no doubt. But would he be able to prove that the diamonds had never been in Scotland since Sir Florian's marriage? He had traced their history from that date with all the diligence he could use, and he thought that he knew it. But it might be doubtful whether he could prove it. Lady Eustace had first stated,—had so stated before she had learned the importance of any other statement,—that Sir Florian had given her the diamonds in London, as they passed through London from Scotland to Italy, and that she had carried them thence to Naples, where Sir Florian had died. If this were so, they could not have been at Portray Castle till she took them there as a widow, and they would undoubtedly be regarded as a portion of that property which Sir Florian habitually kept in London. That this was so Mr. Camperdown entertained no doubt. But now the widow alleged that Sir Florian had given the necklace to her in Scotland, whither they had gone immediately after their marriage, and that she herself had brought them up to London. They had been married on the 5th of September; and by the jewellers' books it was hard to tell whether the trinket had been given up to Sir Florian on the 4th or 24th of September. On the 24th Sir Florian and his young bride had undoubtedly been in London. Mr. Camperdown anathematised the carelessness of everybody connected with Messrs. Garnett's establishment. "Those sort of people have no more idea of accuracy than—than—" than he had had of heirlooms, his conscience whispered to him, filling up the blank.
Nevertheless he thought he could prove that the necklace was first put into Lizzie's hands in London. The middle-aged and very discreet man at Messrs. Garnett's, who had given up the jewel-case to Sir Florian, was sure that he had known Sir Florian to be a married man when he did so. The lady's maid who had been in Scotland with Lady Eustace, and who was now living in Turin, having married a courier, had given evidence before an Italian man of law, stating that she had never seen the necklace till she came to London. There were, moreover, the probabilities of the case. Was it likely that Sir Florian should take such a thing down in his pocket to Scotland? And there was the statement as first made by Lady Eustace herself to her cousin Frank, repeated by him to John Eustace, and not to be denied by any one. It was all very well for her now to say that she had forgotten; but would any one believe that on such a subject she could forget?
But still the whole thing was very uncomfortable. Mr. Dove's opinion, if seen by Lady Eustace and her friends, would rather fortify them than frighten them. Were she once to get hold of that word paraphernalia, it would be as a tower of strength to her. Mr. Camperdown specially felt this,—that whereas he had hitherto believed that no respectable attorney would take up such a case as that of Lady Eustace, he could not now but confess to himself that any lawyer seeing Mr. Dove's opinion would be justified in taking it up. And yet he was as certain as ever that the woman was robbing the estate which it was his duty to guard, and that should he cease to be active in the matter, the necklace would be broken up and the property sold and scattered before a year was out, and then the woman would have got the better of him! "She shall find that we have not done with her yet," he said to himself, as he wrote a line to John Eustace.
But John Eustace was out of town, as a matter of course;—and on the next day Mr. Camperdown himself went down and joined his wife and family at a little cottage which he had at Dawlish. The necklace, however, interfered much with his holiday.
At the present moment Mr. Dove is interesting to us solely as being the learned counsel in whom Mr. Camperdown trusted,—to whom Mr. Camperdown was willing to trust for an opinion in so grave a matter as that of the Eustace diamonds. A case was made out and submitted to Mr. Dove immediately after that scene on the pavement in Mount Street, at which Mr. Camperdown had endeavoured to induce Lizzie to give up the necklace; and the following is the opinion which Mr. Dove gave:—
There is much error about heirlooms. Many think that any chattel may be made an heirloom by any owner of it. This is not the case. The law, however, does recognise heirlooms;—as to which the Exors. or Admors. are excluded in favour of the Successor; and when there are such heirlooms they go to the heir by special custom. Any devise of an heirloom is necessarily void, for the will takes place after death, and the heirloom is already vested in the heir by custom. We have it from Littleton, that law prefers custom to devise.
Brooke says, that the best thing of every sort may be an heirloom,—such as the best bed, the best table, the best pot or pan.
Coke says, that heirlooms are so by custom, and not by law.
Spelman says, in defining an heirloom, that it may be "Omne utensil robustius;" which would exclude a necklace.
In the "Termes de Ley," it is defined as "Ascun parcel des ustensiles."
We are told in "Coke upon Littleton," that Crown jewels are heirlooms, which decision,—as far as it goes,—denies the right to other jewels.
Certain chattels may undoubtedly be held and claimed as being in the nature of heirlooms,—as swords, pennons of honour, garter and collar of S. S. See case of the Earl of Northumberland; and that of the Pusey horn,—Pusey v. Pusey. The journals of the House of Lords, delivered officially to peers, may be so claimed. See Upton v. Lord Ferrers.
A devisor may clearly devise or limit the possession of chattels, making them inalienable by devisees in succession. But in such cases they will become the absolute possession of the first person seized in tail,—even though an infant, and in case of death without will, would go to the Exors. Such arrangement, therefore, can only hold good for lives in existence and for 21 years afterwards. Chattels so secured would not be heirlooms. See Carr v. Lord Errol, 14 Vesey, and Rowland v. Morgan.
Lord Eldon remarks, that such chattels held in families are "rather favourites of the court." This was in the Ormonde case. Executors, therefore, even when setting aside any claim as for heirlooms, ought not to apply such property in payment of debts unless obliged.
The law allows of claims for paraphernalia for widows, and, having adjusted such claims, seems to show that the claim may be limited.
If a man deliver cloth to his wife, and die, she shall have it, though she had not fashioned it into the garment intended.
Pearls and jewels, even though only worn on state occasions, may go to the widow as paraphernalia,—but with a limit. In the case of Lady Douglas, she being the daughter of an Irish Earl and widow of the King's Sergeant (temp. Car. I.), it was held that £370 was not too much, and she was allowed a diamond and a pearl chain to that value.
In 1674, Lord Keeper Finch declared that he would never allow paraphernalia, except to the widow of a nobleman.
But in 1721 Lord Macclesfield gave Mistress Tipping paraphernalia to the value of £200,—whether so persuaded by law and precedent, or otherwise, may be uncertain.
Lord Talbot allowed a gold watch as paraphernalia.
Lord Hardwicke went much further, and decided that Mrs. Northey was entitled to wear jewels to the value of £3000,—saying that value made no difference; but seems to have limited the nature of her possession in the jewels by declaring her to be entitled to wear them only when full-dressed.
It is, I think, clear that the Eustace estate cannot claim the jewels as an heirloom. They are last mentioned, and, as far as I know, only mentioned as an heirloom in the will of the great-grandfather of the present baronet,—if these be the diamonds then named by him. As such, he could not have devised them to the present claimant, as he died in 1820, and the present claimant is not yet two years old.
Whether the widow could claim them as paraphernalia is more doubtful. I do not know that Lord Hardwicke's ruling would decide the case; but, if so, she would, I think, be debarred from selling, as he limits the use of jewels of lesser value than these to the wearing of them when full-dressed. The use being limited, possession with power of alienation cannot be intended.
The lady's claim to them as a gift from her husband amounts to nothing. If they are not hers by will,—and it seems that they are not so,—she can only hold them as paraphernalia belonging to her station.
I presume it to be capable of proof that the diamonds were not in Scotland when Sir Florian made his will or when he died. The former fact might be used as tending to show his intention when the will was made. I understand that he did leave to his widow by will all the chattels in Portray Castle.
J. D.
15 August, 18––.
When Mr. Camperdown had thrice read this opinion, he sat in his chair an unhappy old man. It was undoubtedly the case that he had been a lawyer for upwards of forty years, and had always believed that any gentleman could make any article of value an heirloom in his family. The title-deeds of vast estates had been confided to his keeping, and he had had much to do with property of every kind; and now he was told that, in reference to property of a certain description,—property which, by its nature, could only belong to such as they who were his clients,—he had been long without any knowledge whatsoever. He had called this necklace an heirloom to John Eustace above a score of times; and now he was told by Mr. Dove not only that the necklace was not an heirloom, but that it couldn't have been an heirloom. He was a man who trusted much in a barrister,—as was natural with an attorney; but he was now almost inclined to doubt Mr. Dove. And he was hardly more at ease in regard to the other clauses of the opinion. Not only could not the estate claim the necklace as an heirloom, but that greedy siren, that heartless snake, that harpy of a widow,—for it was thus that Mr. Camperdown in his solitude spoke to himself of poor Lizzie, perhaps throwing in a harder word or two,—that female swindler could claim it as—paraphernalia!
There was a crumb of comfort for him in the thought that he could force her to claim that privilege from a decision of the Court of Queen's Bench, and that her greed would be exposed should she do so. And she could be prevented from selling the diamonds. Mr. Dove seemed to make that quite clear. But then there came that other question, as to the inheritance of the property under the husband's will. That Sir Florian had not intended that she should inherit the necklace, Mr. Camperdown was quite certain. On that point he suffered no doubt. But would he be able to prove that the diamonds had never been in Scotland since Sir Florian's marriage? He had traced their history from that date with all the diligence he could use, and he thought that he knew it. But it might be doubtful whether he could prove it. Lady Eustace had first stated,—had so stated before she had learned the importance of any other statement,—that Sir Florian had given her the diamonds in London, as they passed through London from Scotland to Italy, and that she had carried them thence to Naples, where Sir Florian had died. If this were so, they could not have been at Portray Castle till she took them there as a widow, and they would undoubtedly be regarded as a portion of that property which Sir Florian habitually kept in London. That this was so Mr. Camperdown entertained no doubt. But now the widow alleged that Sir Florian had given the necklace to her in Scotland, whither they had gone immediately after their marriage, and that she herself had brought them up to London. They had been married on the 5th of September; and by the jewellers' books it was hard to tell whether the trinket had been given up to Sir Florian on the 4th or 24th of September. On the 24th Sir Florian and his young bride had undoubtedly been in London. Mr. Camperdown anathematised the carelessness of everybody connected with Messrs. Garnett's establishment. "Those sort of people have no more idea of accuracy than—than—" than he had had of heirlooms, his conscience whispered to him, filling up the blank.
Nevertheless he thought he could prove that the necklace was first put into Lizzie's hands in London. The middle-aged and very discreet man at Messrs. Garnett's, who had given up the jewel-case to Sir Florian, was sure that he had known Sir Florian to be a married man when he did so. The lady's maid who had been in Scotland with Lady Eustace, and who was now living in Turin, having married a courier, had given evidence before an Italian man of law, stating that she had never seen the necklace till she came to London. There were, moreover, the probabilities of the case. Was it likely that Sir Florian should take such a thing down in his pocket to Scotland? And there was the statement as first made by Lady Eustace herself to her cousin Frank, repeated by him to John Eustace, and not to be denied by any one. It was all very well for her now to say that she had forgotten; but would any one believe that on such a subject she could forget?
But still the whole thing was very uncomfortable. Mr. Dove's opinion, if seen by Lady Eustace and her friends, would rather fortify them than frighten them. Were she once to get hold of that word paraphernalia, it would be as a tower of strength to her. Mr. Camperdown specially felt this,—that whereas he had hitherto believed that no respectable attorney would take up such a case as that of Lady Eustace, he could not now but confess to himself that any lawyer seeing Mr. Dove's opinion would be justified in taking it up. And yet he was as certain as ever that the woman was robbing the estate which it was his duty to guard, and that should he cease to be active in the matter, the necklace would be broken up and the property sold and scattered before a year was out, and then the woman would have got the better of him! "She shall find that we have not done with her yet," he said to himself, as he wrote a line to John Eustace.
But John Eustace was out of town, as a matter of course;—and on the next day Mr. Camperdown himself went down and joined his wife and family at a little cottage which he had at Dawlish. The necklace, however, interfered much with his holiday.