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appendix: The Five Ages of the Bench and Bar of England - John Maxcy Zane, The Story of the Law 
The Story of Law, 2nd ed., Introduction by James M. Beck. New Foreword, Annotations, and Bibliographies by Charles J. Reid, Jr. (Indianapolis: Liberty Fund 1998).
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The Five Ages of the Bench and Bar of England
This essay was solicited by John Wigmore for inclusion in Select Essays in Anglo-American Legal History, a three-volume collection of essays, the first volume of which appeared in 1907.1 Zane’s effort would lead Wigmore to describe him to others as “the most learned man in America on the traditions of bench and bar and many other things pertaining to the history of the law.”2
The “five ages” to which Zane refers is intended as an allusion to classical literature: “The fable of the ancients, which school boys read in Ovid’s Metamorphoses, divided the history of the world into a golden, a silver, a bronze, and an iron age.” But Zane does not follow the classical periodization slavishly; while Ovid’s history of the world had four ages and ended in irreversible decay, Zane’s account of the English bar consists of five ages and closes with the promise of law reform and the restoration of a bench and bar marked by a renewed sense of professionalism and integrity.
Zane chose 1066 as the commencement of the golden age of English law because that year featured the Norman Conquest of England by William the Conqueror. The Anglo-Saxon regime that William overthrew was, in Zane’s estimation, a “barbarous” one, entirely devoid of lawyers and law.
In advancing this chronology, Zane boldly challenged the deeply cherished status the Anglo-Saxon past held in the minds of generations of Anglophile historians and political writers. English law and constitutional order had their roots, according to this older line of thought, in the primitive folk assemblies of the Teutonic peoples who conquered Britain after the Romans departed. The Norman Conquest subjected this happy warrior culture to a tyrannous yoke, but this oppression eventually resulted in the forging of a great people and the creation of a great legal system.
Zane implicitly rejected this school of thought when he attributed the origin of English law to Norman practices and institutions. The monarchy William established was stronger than anything the Anglo-Saxons experienced, and a series of powerful kings—William himself, Henry II, Edward I, Edward III—knew how to make use of lawyers and advisers trained in the law and thereby created a system of law capable of rendering justice.
“Five Ages” is a recounting of the signal events and important personages in the history of the common law from 1066 down to the Victorian Age and the enactment of that age’s procedural and judicial reforms. It is a story that is told in a lively fashion and with all of the passion of The Story of Law. Zane’s ability to present always fascinating vignettes of the personalities involved in the shaping of the law (see, for example, his account of Lord Eldon) enlivens what would have been, in lesser hands, a dull recitation of biographical detail. It is a worthy complement to the larger work.
C. J. R., Jr.
The Five Ages of the Bench and Bar of England*
by john maxcy zane1
It is a singular fact that but two races in the history of the world have shown what may be called a genius for law. The systems of jurisprudence, which owe their development to those two races, the Roman and the Norman, now occupy the whole of the civilized world. Our common law is peculiarly the work of the Norman element of the English people. There is no English law, nor English lawyer, before the Norman Conquest. Just as the Saxons with their crude weapons and bull-hide shields broke before the Norman knights at Senlac, so their barbarous system of wer, wite, and bot, their ridiculous ordeals in the criminal law, their haphazard judicial tribunals, and their methods of proof, which had no connection with any rational theory of evidence, were certain to yield to the Norman organization, its love of order and of records, its royal inquisition for establishing facts, its King’s Court to give uniformity to the law. The Norman Conquest was more than a change of dynasty. It produced a revolution in jurisprudence.
The history of our legal development furnishes ample proof of this. Our huge mass of legal literature is a treasure that no other race possesses. Our records and reports of cases, many of them still imperfectly known, carry our legal history back almost to the Conquest. There the law can be seen in its growth, taking on new forms to meet new conditions. The genius of the Norman lawyer has developed our legal system from one precedent to another. Beginning with the barbarous legal ideas of the Anglo-Saxon, the Norman in the course of two centuries produced a rational coherent system of law, and a procedure capable of indefinite expansion. The growth and changes in our law have followed Lord Bacon’s rule: “ It were good, therefore, that men in their innovations would follow the example of time itself; which, indeed, innovateth greatly, but quietly, and by degrees, scarce to be perceived.” The further fact, that this system of law has been applied by practically but one court, has rendered the common law uniform. It represents the slow and patient work of generation after generation of able men. To use a fine figure of Burke’s, our legal system has never been at any one time “old, or middle-aged, or young. It has preserved the method of nature; in what has been improved, it was never wholly new; in what it retained, it was never wholly obsolete.” Like some ancient Norman house, “it has its liberal descent, its pedigree and illustrating ancestors, its bearings and ensigns armorial, its gallery of portraits, its monumental inscriptions, its records, evidences, and titles.”
The design of these essays is to survey “the gallery of portraits” that belongs to the English law. It will not be possible to advert to legal doctrines further than may be necessary to illustrate the acts of eminent lawyers. An attempt will be made to describe the men who have assisted in the growth and development of our jurisprudence. Unlike France, England has never had a noblesse of the robe. Lawyers have found their rewards in the same honors that England has given to her admirals and her generals. The peerage is a fair standard by which to judge of the honors that have been attained by excellence in the law. While great soldiers are represented in the House of Lords by the Dukes of Marlborough and Wellington, the Marquis of Anglesey, Viscounts Hardinge, Wolseley and Kitchener, and Lords Napier of Magdala and Raglan, while great admirals are represented by Earl Nelson, the Earl of Effingham and Earl Howe, Viscounts Exmouth, St. Vincent, Bridport, and Torrington, and Lords Rodney and Vernon, the representatives of lawyers almost fill the benches of the Lords. Lord Thurlow’s famous reply to the Duke of Grafton asserted: “The noble duke can not look before him, behind him, or on either side of him, without seeing some noble peer who owes his seat in this House to his successful exertions in the profession to which I belong.” The King himself is king of Scotland through his descent from Lord Chief Justice Bruce. The Dukes of Beaufort, Devonshire, Manchester, Newcastle, Norfolk, Portland, Northumberland, Rutland and St. Albans are all descended from English judges. Chief Justice Catlin was an ancestor of the Spencer, who married the Marlborough title. The Marquises of Abergavenny, Ailesbury, Bristol, Camden, Ripon and Townsend, the Earls of Aylesford, Bathurst, Bradford, Buckinghamshire, Cadogan, Cairns, Carlisle, Cottenham, Cowper, Crewe, Eldon, Egerton, Ellesmere, Fortescue, Guildford, Hardwicke, Harrowby, Leicester, Lonsdale, Macclesfield, Mansfield, Sandwich, Selborne, Shrewsbury, Suffolk, Stamford, Verulam, Westmoreland, Nottingham and Winchelsea, and Yarborough, represent names great in English law. Other titles among the barons, such as Abinger, Bolton, Brougham, Erskine, James of Hereford, Le Despencer, Mowbray and Segrave, Northington, Redesdale, Romilly, St. Leonards, Campbell, Tenterden, Walsingham, Thurlow, and many others, were gained by great lawyers.
The fable of the ancients, which school boys read in Ovid’s Metamorphoses, divided the history of the world into a golden, a silver, a bronze and an iron age. The golden age “sine lege fidem et rectum colebat.” This is in a measure true of the common law. Its first age, without statutes, out of its own ample powers, gave a remedy for every wrong. There followed a silver age, “auro deterior,” when new remedies could be devised only by statute. Then a bronze or plastic age, by fictions, bent old remedies to suit new conditions. Later, an iron age, harsh and rigid, owing to the jury system, left a large part of jurisprudence to the courts of chancery. The golden age ends with the death of Bracton; the silver age is that of the three Edwards; the bronze age covers the Lancastrian and Yorkist kings to the death of Littleton; the iron age ends with the Revolution of 1688. Then a period of improvement and reform, slowly feeling its way by statutes of jeofails to the great reforms of our century, began; the end of that great effort is now almost attained, and perhaps the golden age is about to return.
The Golden Age of the Common Law: From the Norman Conquest to the Death of Bracton2
The period of the Norman kings is one of gradual growth. The Norman lawyers, building upon what they found, made no violent changes. The Conqueror, under the wise guidance of Lanfranc, made no attempt to change existing laws and customs. Beyond taking ecclesiastical matters out of the jurisdiction of the county court, and protecting his Norman followers by special laws and tribunals, his reign was occupied in establishing the king as the ultimate owner of the conquered land and in the division of the spoil. But even in that troubled time, one capable man rose to eminence as a lawyer. The Italian Lanfranc, Archbishop of Canterbury, learned in the civil law, by his study of Anglo-Saxon laws prevailed in the one great lawsuit of this reign. The Domesday Survey, which enumerated all the lands in England, and ascertained the status of each subject, and the ownership of the land with its burdens and the rents and the services due from tenants of the land, was probably superintended by this great lawyer.
William Rufus had for his chief minister a man whom the annalist calls “invictus causidicus,” an ever successful pleader. This Ranulf Flambard was learned in the civil and the canon law, and is the first of that long line of trained lawyers, whose duty it was to fill the royal treasury. He worked out the legal principles of relief and wardship. Ecclesiastic though he was, he laid his hands upon the broad lands of the church. All church lands held of the king devolved, upon the death of bishop or abbot, according to Ranulf, upon the king as feudal lord. The great revenue to be derived from farming out these lands was an obvious temptation, but Flambard devised a further improvement. Since the bishop or abbot could not be inducted into office without the king’s consent and the payment of a relief, the candidate for high clerical honors was compelled to wait a number of years before receiving his office and at the same time was compelled to pay an ample relief before he received investiture of the lands. It is needless to say that the monkish chroniclers have loaded Ranulf’s memory with a mass of obloquy.
In Rufus’ time an event occurred which every lawyer recalls with peculiar interest. The King contemplated a new palace at Westminster, but only that part of it which constitutes Westminster Hall was built. It is true that the Hall has been twice rebuilt, once in Henry III.’s reign, and again under Richard II., but the Hall itself, saving for its higher roof, its windows, and higher walls, is what it was when finished in 1099. In this Hall the courts of England were held for many centuries. As soon as the Court of Common Pleas was fixed in certo loco, it continuously sat there. Later the King’s Bench took a portion of it. At one end of the Hall was fixed the marble seat and table of the Chancellor, where his court was held. Thus it happened that for centuries the courts of England were in plain sight of each other. When Sir Thomas More was being inducted as chancellor under Henry VIII., he stopped in his progress to the marble chair and knelt to receive a blessing from his father, a judge sitting in the Common Pleas. There is but one other building in the world that offers such a flood of legal memories. The old Palais de Justice in Paris has been the scene of many a great legal controversy, but Westminster Hall has listened to the judgments of Pateshull and Raleigh and Hengham. Here Gascoigne, Fortescue, Brian, Littleton, Dyer, Coke and Bacon sat. Here Hale and Nottingham, Hardwicke and Mansfield did their work for jurisprudence. The great forensic contests of England, the arguments in the case of Ship-Money, the trial of the Seven Bishops, Erskine’s perfect oratory in Hardy’s case, and Brougham in the Queen’s case, are among the memories that make this solid Norman edifice to lawyers the most interesting spot in England.
In the reign of Henry I., a man splendidly educated for that time, surnamed Beauclerk, the Scholar, we begin to see the growing interest in the law. Wearied of the oppressions of the Conqueror and Rufus, men looked back to the good old times of the Saxon. The King had married a princess of the Saxon royal house. Himself a usurper he looked to his Saxon subjects for support. They won for Stephen the Battle of the Standard against the Scotch, celebrated by Cedric in Ivanhoe. In the Saxon enthusiasm a large crop of Saxon laws appeared, some of them actual translations from old laws, some of them palpable forgeries. The King even promised to restore the old local courts of the Saxons; had he done so, we should have had no common law. It was by this time apparent that the king’s court was supplanting the old tribunals. The great lawsuits, being among the magnates, necessarily came before the king’s courts. That court was stronger than any other, and suitors instinctively would turn to it. The criminal jurisdiction of the king’s court was growing. Its jurisdiction was extended to suitors in civil causes first as a matter of favor. The bishop had been taken out of the county court and given a separate jurisdiction in ecclesiastical matters, among which were numbered the administration of estates of decedents and matters of marriage and divorce. Now under Henry I. began the practice of sending trained lawyers throughout the realm to take pleas of the crown and to hear civil causes. At the same time Roger of Salisbury, who was the legal adviser of Henry I., developed the exchequer portion of the king’s court. A group of men, some of them trained lawyers, gathered in the exchequer tribunal. They did incidental justice in civil controversies and traveled the circuit. Indeed, Pulling in his “Order of the Coif” dates his first serjeant at law from 1117; but this must be a printer’s error. Otherwise, Pulling’s first serjeant is as wild a piece of history as Chief Justice Catlin’s descent from Lucius Sergius Catiline.
Besides Roger of Salisbury we know of one very celebrated lawyer in this reign—a man then renowned in the law, named Alberic de Vere. He is described by William of Malmesbury as causidicus and homo causarum varietatibus exercitatus. Where he gained his legal education is not known. He was a son of one of the Conqueror’s chief barons, the Count of Guynes, in Normandy. One of the chiefs of that house marched with Godfrey of Bouillon to the rescue of the Holy Sepulchre. The lists of the men who acted as judges in the king’s courts show the names of many well-known Norman families during this reign. The educated lawyers were generally churchmen, yet the Norman barons had a natural taste for litigation. After a hundred years, scions of the great houses were to become the trained lawyers of the profession; but at this time the ecclesiastics did most of the technical legal work. They issued the writs from the chancery; they were needed to keep whatever records were kept. Alberic de Vere was not an ecclesiastic like Roger or Nigel of Salisbury, yet he was high in the confidence of Henry I., who granted to him and his heirs the dignity of Lord Great Chamberlain of England—the only great office of state that by a regular course of inheritance has descended to its present holder.
When Henry I. died, the interregnum caused by the contest between Henry’s daughter Matilda and his nephew Stephen covered the land with misgovernment and oppression. Roger of Salisbury’s son, euphemistically called his nephew—and it was by no means an uncommon thing for bishops to have sons in those days—became chancellor, but he soon fell under the displeasure of King Stephen, and in consequence the aged Bishop Roger and his family received the harshest treatment. The churchmen complained of the King’s conduct, and a great council was called by the Bishop of Winchester to examine into the matter. King Stephen selected Alberic de Vere to represent him at the council. Alberic seems to have successfully defended the King, and either he or his son was rewarded with the earldom of Oxford.
Coke, following a saying of Fortescue, makes the quaint observation that “the blessing of Heaven specially descends upon the posterity of a great lawyer.” Certainly the high position of the posterity of Alberic de Vere may be adduced as proof of the saying. Earls of Oxford of the house of Vere were great figures in English history until after the Revolution of 1688. The third earl was one of the barons who extorted Magna Charta from King John. The well-known seal of the Earl of Oxford is on the charter. The next earl, who had as a younger son been brought up as a lawyer, was head of the Common Bench under Henry III. The seventh earl was in high command at Crecy under Edward III. and at Poitiers under the Black Prince. The ninth earl was a favorite of Richard II. and became Marquis of Dublin and Duke of Ireland. Although his honors were forfeited by Parliament, his uncle, another Alberic (or Aubrey) regained the earldom and the estates under Henry IV. The thirteenth earl was the chief of the party of the Red Rose and during the Yorkist reigns wandered over the continent. Scott’s romance, Anne of Geierstein, tells his story while in exile. He came back with Henry VII. and led the Lancastrians at the battle of Bosworth. The seventeenth earl, a courtier and poet, at the court of Elizabeth, did not disdain to introduce gloves and perfumes into England. When the eighteenth earl died without issue, a noted lawsuit ensued over the Oxford peerage; the judgment of Chief Justice Crewe3 is an oft quoted specimen of judicial eloquence:
“I have laboured to make a covenant with myself, that affection may not press upon judgment; for I suppose there is no man, that hath any apprehension of gentry or nobleness, but his affection stands to the continuance of so noble a name and house, and would take hold of a twig or twine thread to uphold it. And yet, Time hath his revolutions. There must be a period and an end of all temporal things—finis rerum—an end of names and dignities and whatsoever is terrene; and why not of De Vere? For, where is Bohun? Where’s Mowbray? Where’s Mortimer? Nay, which is more, and most of all, where is Plantagenet? They are entombed in the urns and sepulchres of mortality.”
But the end of the house was not yet. The nineteenth earl died on the continent while fighting for Protestantism. The twentieth earl, “the noblest subject in England,” man of loose morals though he was, was too much a Protestant to follow James II. in his attempt to restore Roman Catholicism. When this twentieth earl died, the male posterity of Aubrey de Vere was extinct; but his daughter and heiress, Diana, was married to Nell Gwynn’s son by Charles II., the Duke of St. Albans. This son had been given the name of Beauclerk, and until recently the name of this family was de Vere Beauclerk. Topham and Lady Di Beauclerk will be remembered as friends of Dr. Johnson. But the present holder of the title seems to wish to forget his name Beauclerk and is well content to be simply de Vere. Heraldry, which is called “the short-hand of history,” shows this descent in the coat of arms of the St. Albans family; in the first and fourth quarters are the royal arms, debruised by a baton sinister to show illegitimate descent, while in the second and third quarters is the ancient cognizance of the Earls of Oxford, indicating a marriage with the heiress of the Veres.
Another stout judicial baron of this time is Milo of Gloucester, whose estates enriched in after times the house of Bohun. His exploit in marching to the relief of the widow of Richard de Clare, besieged in her castle by the Welsh after the murder of her husband, may have furnished Sir Walter Scott with his story of “The Betrothed,” where he tells of the succor of the Lady Eveline Berenger in the Garde Doloreuse. In fact, if we may judge from Ivanhoe, Scott must have taken many of his names from the judicial barons. Fronteboeuf, Grantmesnil and Malvoisin are names on the rolls of the courts. Segrave, a noted lawyer in Henry III.’s reign, was, like Ivanhoe, a Saxon who attained high position.
In the reign of Henry II., who succeeded Stephen, we begin to get a glimpse of an organized legal profession. This king was a great organizer and lawyer. His statutes of novel disseisin and mort dancester, his assize utrum and of last presentment were drawn by lawyers. In his reign the royal inquisition took a great step toward the modern jury. All litigation about land was thrown into the king’s courts. Many new writs and forms of action were invented. A fixed court made up of trained lawyers sat at Westminster. At the same time the country was divided into circuits, itinerant justices traveled the circuit and adapted the county court to the regular progresses of the king’s judges. The grand jury was now brought into form, and all the important criminal business came before the royal justices.
In the king’s court Henry himself often sat. He is surrounded by his council, but every now and then he retires to consult with a special body. The judges take sides and on one occasion the King orders Geoffrey Ridel, who seems too zealous for one party, from the room. The King peruses the deeds and charters, and when certain charters are produced we hear him swearing that “by God’s eyes” they cost him dearly enough. On another occasion two charters of Edward the Confessor, wholly contradictory, are produced. The King, nonplussed, says: “I don’t know what to say, except that here is a pitched battle between deeds.”
Now began the keeping upon parchment of the records of cases. The best picture of a lawsuit in this reign is the extraordinary litigation of Richard de Anesty. He claimed certain lands as heir of his uncle. An illegitimate daughter of the uncle was in possession. The question was as to her legitimacy and that depended for solution upon the issue of marriage or no marriage. Richard begins by sending to the King in Normandy for a writ of mort dancester. Then the issue of marriage must be directed by writ from the king’s court to the ecclesiastical court. The war in France intervenes, and Richard follows the King to France for a writ to order the court Christian to proceed. Three times he appeared in the latter court. Then he appealed from that court to the Pope, and for this he needed the King’s license. Finally the Pope decided in his favor. Thereupon Richard came back and followed the King until two justices were sent to hear his case, and at last he had judgment. Everywhere he had lawyers in his pay. His friends and advocates, among them Glanville, appeared for him in the secular court. In the ecclesiastical courts and before the Pope he hired lawyers, who were canonists, some of them learned Italians. After many years he obtained his uncle’s lands; but by that time, as he pathetically writes, he had become a bankrupt.
There are noted names among the king’s judges in this reign. Richard Lucy, Henry of Essex, William Basset, and Reginald Warenne were among the judges who went the circuit. Roger Bigot and Walter Map, the satirist, were of the itinerant judges. Ranulf Glanville and the three famous clerks, Richard of Ilchester, John of Oxford, and Geoffrey Ridel, sat at Westminster. The zeal with which the Norman barons attended to their judicial duties is amazing. The list of judges is almost an index of the great baronage. Marshalls, Warennes, Bigots, Bohuns, Bassets, Lucys, Laceys, Arundels, Fitz Herveys, Mowbrays, Ardens, Bruces, de Burghs, Beaumonts, Beauchamps, Cantilupes, Cliffords, Clintons, Cobbehams, de Grays, de Spensers, Fitz Alans, de Clares, Berkeleys, Marmions, de Quinceys, Sackvilles and Zouches are all among the itinerant judges.
The lawyers of this reign include both priests and laymen. Here begin the serjeants at law. Of the thirteen whom Pulling ascribes to this reign, are Geoffrey Ridel and Hugh Murdac, both priests, and such names as Reginald Warenne, William Fitz Stephen, William Basset and Ranulf Glanville, all laymen. It is a matter worthy of notice that the date at which each of the thirteen serjeants received the degrees of the coif is the date at which he began service as a judge. It is probable that the “status et gradus servientis ad legem,” in the writ calling a serjeant, was merely a nomination of the man to be a king’s justice. The matter is too obscure to admit of positive statement. But there must have been some reason for the rule that obtained for so many centuries, that no man could become a judge until he had been called to the degree of serjeant.
The first name among these lawyers is Glanville’s. Whether he wrote our first law book, which is called Glanville, is sharply debated. But he was at any rate a great judge with considerable legal learning. He probably received his legal training in the exchequer. But he was no less a warrior. As sheriff of Yorkshire he gathered an army and defeated the Scottish King and took him prisoner. King Henry entrusted to Glanville the custody of his wife, Elinor, whom he guarded for sixteen years. When in 1179 most of the King’s justices were removed, Glanville was continued in office and took his place in the court at Westminster. In the next year he became Chief Justiciar. One slanderous story of his judicial conduct has come down to us, but it is no more than idle gossip. Under Richard the Lion Hearted, Glanville took the vow of a crusader and preceded King Richard to the Holy Land, where he died under the walls of Acre.
It may be that Glanville did not write the book that passes under his name. Perhaps Hubert Walter, his nephew, a learned civil lawyer, who became Archbishop of Canterbury, put it together. It shows traces of the Roman influence, and Glanville was no partisan of Rome. There is on record a writ of prohibition issued by Glanville against the Abbot of Battle. On the hearing Glanville said to the priests: “You monks turn your eyes to Rome alone, and Rome will one day destroy you.” The prophecy came true after three hundred years.
Far more noted in this reign is the name of Becket. He was a trained lawyer educated in the canon and the civil law at Paris. He may very well have devised some of Henry’s statutes upon legal procedure, while he was chancellor. In the struggle that went on between the warring jurisdictions of courts ecclesiastical and secular courts, he boldly espoused the clerical side. The Chief Justiciar before Glanville, Richard Lucy, drew up the constitutions of Clarendon, which defined the jurisdiction of the king’s courts over priests, and brought on the struggle between Henry II. and Becket. Lucy was twice excommunicated by Becket, but he does not appear to have been seriously affected; yet, singularly enough, at the end of his life, he founded an abbey and assuming the cowl of a monk retired to the cloister and passed his remaining years in the works of piety.
The King, astute lawyer that he was, fought the Archbishop with the very best weapons. The chronicler records that Henry II. kept in his pay a gang of “bellowing legists” (ecclesiastical lawyers) whom he “turned loose” whenever he was displeased at an Episcopal election. In his controversy with Becket, Henry used the expert clerks, John of Oxford, Richard of Ilchester, and Geoffrey Ridel. John received as his reward the see of Norwich, Geoffrey was made bishop of Ely. Both of them, priests though they were, admirably served their royal client. They represented the King upon appeals to the Pope. Becket used a weapon against them that would hardly be in the power of a modern chancellor. Both lawyers and judges were excommunicated by the sainted archbishop. But the curse of Heaven and the reprobation of the faithful did not avail. At last, the murder of Becket ended the controversy, and while the victory remained with the King, it gave to Becket the peculiar honor of being one of the only two English chancellors who are numbered as saints in the canon of the church.
When the Conqueror took the bishop out of the county court and established church tribunals for ecclesiastics (a step which was taken at the demand of the priests), it could not have been foreseen what a tremendous influence this regulation would exert upon the history of English law. Yet the struggle which soon began between these warring jurisdictions is probably the real reason why the Roman law exerted so little influence upon the common law or its procedure. At Oxford there was a school of the civil and the canon law. Ecclesiastics educated under that system were constantly filling high judicial positions, yet these men were all faithful to the king’s courts and hostile to the ecclesiastical procedure. Practically all the trained lawyers were priests, yet they uniformly upheld the English law. In after times the canon law was to mold the procedure in the chancery courts; but the secular courts were not affected. No doubt the rational conceptions learned by these ecclesiastical lawyers from the civil law had no little effect upon the substance of their decisions; but the Roman law never affected the secular courts’ procedure.
An interesting figure among clerical judges is that noted Abbot Samson of St. Edmund’s Bury, who was made one of Henry II.’s justices. The priestly chronicler records with pride that a rich suitor cursed a court where neither gold nor silver could confound an adversary. The same chronicler tells us that Osbert Fitz-Hervey, a serjeant at law, the ancestor of the Marquises of Bristol, who was twenty-five years a judge at Westminster, said: “That abbot is a shrewd fellow; if he goes on as he begins, he will cut out every lawyer of us.” In a case where the Abbot was a party, Jocelyn says that five of the assize (jury) came to the Abbot to learn how they should decide, meaning to receive money, but the Abbot would promise them nothing, and told them to decide according to their consciences. So they went away in great wrath and found a verdict against the abbey. The juror who regards his place as an opportunity for pecuniary profit seems to be as old as the common law.
The intractability of the academic theorist in the person of Walter Map, the celebrated writer, crops out in his judicial experience. He once went the circuit, but was not called upon the second time, since he insisted on excepting from his oath to do justice to all men, “Jews and white monks,” both of which classes he detested. So he went back to his more congenial work of denouncing the whole body of the clergy, from Pope to hedge priest, as all of them busy in the chase for gain. But while that work is forgotten, we still are delighted by his tales of King Arthur and his knights and table round.
Under Richard and John, sons of Henry II., the regular enrolled records of the courts begin. Soon two sets of records are developed, those of the regular tribunal sitting at Westminster and those made in the presence of the king. The first are the records of what became the court of Common Pleas, the second of what became the King’s Bench. In John’s reign and that of his son Henry III. the learned lay lawyer appears in increasing numbers. First among them is Geoffrey Fitz Peter, who appears in the famous scene in the first act of King John, where the Faulconbridge inheritance is in question. Shakespeare cites the oldest English case on the orthodox rule of the English law, pater quem nuptiae demonstrant. Chief Justice Hengham in the next reign cites this case in the Year Book. It is needless to say that if Shakespeare had had the legal knowledge which has been by some lawyers ascribed to him, he could never have made the flagrant errors as to procedure which are found in King John.
Geoffrey Fitz Peter was the son of an itinerant justice of Henry II.’s reign, who had well upheld the dignity of civil justice against the church tribunals. A certain canon of Bedford was convicted of manslaughter in a bishop’s court, and was sentenced merely to pay damages to the relatives of the deceased. In open court the judge denounced the canon as a murderer; the priest retorted with insulting words, whereupon the King ordered the priest indicted. Perhaps at this time contempts of court were not punished by the court itself in a summary way. Geoffrey Fitz Peter inherited from his father, the judge, large possessions. With his wife he obtained the title and part of the estates of the Mandeville Earls of Essex. He was a learned lawyer, if we may believe Matthew Paris. He made a ruling which probably had the most far-reaching effect of any judicial decision. The last Mandeville earl, when he found that death was approaching, attempted to atone for a somewhat oragious life by devising a large portion of his lands to the church. Fitz Peter as the husband of one of the co-heiresses was directly interested in the case. Yet he is said to have ruled that a will of lands was invalid. From that day to the passage of the Statute of Wills, a devise of lands was impossible, except by virtue of some local custom. And so it is to-day that the realty devolves upon the heir, the personalty upon the executor. Fitz Peter served as a justice itinerant; he was a serjeant at law and upon John’s accession became Chief Justiciar. He held the place of head of the law for fifteen years, and with Hubert Walter, the chancellor, was able to keep King John under some restraint. The King joyfully exclaimed when he heard of his death: “He has gone to join Hubert Walter in hell. Now, by the feet of God, I am, for the first time, king and lord of England.” John at once entered upon the course that brought him into conflict with his baronage and ended with Magna Charta.
The long reign of John’s son, Henry III., may fairly be claimed as the golden age of the common law. The regular succession of the judges is now settled. John had promised in Magna Charta that he would appoint as judges only those men who knew the law. The judges whom the rolls show as sitting at Westminster establish the character of the court. The judges are promoted in regular order. The head of the court during the first years of this reign was William, Earl of Arundel; then for two years it is Robert de Vere, Earl of Oxford; then for seven years Pateshull, who had been a puisne, was head of the court. He is succeeded by Multon, who served for a long term. Raleigh, the second man in the court, followed Multon. In regular order follow Robert de Lexington, Thurkelby, Henry de Bath, Preston, and Littlebury. Thus it appears that the character of this court, a tribunal filled with trained lawyers, has become fully established.
The Earl of Arundel, who was Henry III.’s Chief Justiciar, belongs to a legal family whose successive marriages with other great legal families form a curious study in history. In the days of Henry I. a certain William de Albini was the son of the king’s butler or pincerna. He married Queen Adeliza, the young widow of Henry I., and with her obtained the castle and earldom of Arundel, the only earldom by tenure. The heiress of the de Albinis in the time of Henry II. married the son of John Fitz Alan, a judge in the king’s court, and thus the earldom and castle of Arundel passed to the Fitz Alans. Later, in the time of Edward III., the then Earl of Arundel by marriage acquired the title of Earl of Surrey and the estates of the Norman family of Warenne, whose first chief was the companion of the Conqueror and one of his chief justiciars. The great Earl of Arundel, who went to the block in Richard II.’s time, was the head of this mighty house. Still later the heiress of the Arundels married the Howard Duke of Norfolk. Singularly enough the Howards were descended from William Howard, a celebrated English serjeant at law, who, when the Year Books open, was in large practice in the courts. He rose to the bench (though he was not, as his tombstone records, a chief justice). His descendant, Sir Robert Howard, married the heiress of the Mowbrays, who held the Earl Marshalship of England hereditary in the Marshals. The sons of the great regent William Marshal, Earl of Pembroke, dying without male heirs, the dignity passed by marriage to the Bigots, Earls of Norfolk. From them by a special deed of the lands under the then new statute De Donis, these estates and dignities became vested in Edward I.’s son, Thomas of Brotherton. His heiress married a Mowbray; the heiress of the Mowbrays married Sir Robert Howard; and when the Howards obtained by marriage the titles and estates of the Arundel family in the reign of Elizabeth, all these honors of Warennes, de Albinis, Fitz Alans, Plantagenets, and Mowbrays had become united in the Howards. Perhaps we may credit this remarkable acquisitiveness through judicious marriages to the legal strain in the Fitz Alan Howards. Not only the Duke of Norfolk, premier peer of England, but the Earl of Suffolk and Berkshire, the Earl of Effingham, the Earl of Carlisle, and Lords Howard de Walden and Howard of Glossop, thus represent to-day the serjeant at law of Edward I.’s reign.
To return to the judges of Henry III.’s reign. Two of them, Pateshull and Raleigh, have been canonized by Bracton’s treatise. Bracton cites these two judges’ decisions almost as his sole authority. Other well-known judges of the time he notices merely to remark that they committed error—not by any means a failing confined to mediaeval judges. The greatest of these lawyers, Martin de Pateshull, was a priest—as was indeed Raleigh also, and Bracton himself. Pateshull’s origin was humble, but he became a justice itinerant in John’s reign and for many years he vigorously performed his duties. One of his brother justices in a letter to the King plaintively begs to be excused from going the York circuit, “for,” he says, “the said Martin is strong and in his labor so sedulous and practiced that all his fellows, especially William Raleigh, and the writer, are overpowered by the work of Pateshull, who labors every day from sunrise until night.” The Raleigh just spoken of was Bracton’s master. He managed to survive Pateshull, and succeeded him as head of the court. He first served as Pateshull’s clerk; his high character is shown by his election over the King’s uncle to the rich see of Winchester. Raleigh was ingenious in devising many new writs, and his name is of frequent occurrence in the Register of Writs.
The bravery of these judges in the performance of their duties is shown by a characteristic story. Fawkes de Breauté, a powerful baron and noted swashbuckler of the time, had so oppressed his neighbors that they proceeded against him in the king’s court. Three judges, Pateshull, Multon and Braybroc, went up from London to try the cases at Dunstable. Thirty verdicts were found against Fawkes and large fines imposed in all the cases. He was so incensed that he sent his followers under his brother’s leadership to seize the judges. He captured and imprisoned one of the court; but this conduct called out the royal power, then wielded by Hubert de Burgh. The brother and thirty of Fawkes’ retainers were hanged, but he himself escaped to lifelong exile.
Other judges like Hubert de Burgh, Thomas de Multon, Hugh Bigot, Earl of Norfolk, Humphrey de Bohun, Earl of Hereford, must be passed over. But Robert de Bruce deserves more than a passing mention. The first Robert de Bruce had come over with the Conqueror and had received ninety-four lordships as his share of the spoil. A cadet of the house, a grandson of the first Robert, had gone to the court of the Scottish King and had married the heiress of the lordship of Annandale. The fourth Robert in Scotland was Robert the Noble, lord of Annandale, the husband of a daughter of Prince David (the Knight of the Leopard in Scott’s Talisman).
The fifth Robert, a son of the princess, though a Scotch magnate, was educated for the law at Oxford. He practiced in Westminster Hall. He became Chief Justice and held the office until Henry III.’s death. Edward I. passed him by, and he retired in disgust to Scotland. But when the daughter of Alexander III. of Scotland died, the heirs to the throne were the descendants of Prince David’s daughters. This Robert, the Chief Justice, preferred his claim. He argued his own case before Edward I., the referee, but the decision on good legal grounds was given for John Balliol. But Robert’s grandson, another Robert, the national hero of Scotland, made good his title at Bannockburn.
Other judges of this reign are interesting figures—like the Percy, whose family is the one so celebrated in ballad and story as the Percys of Northumberland, or like Gilbert Talbot, who married a Welsh princess, and whose descendant was the stout warrior John Talbot, the first of the Earls of Shrewsbury, among whose descendants appeared Lord Chancellor Talbot in the reign of George II. But the real lawyer of this reign is the man whom we know as Bracton. His book on the laws and customs of England is the finest production of the golden age of the common law. Bracton’s father was vicar of the church at Bratton, of which Raleigh was the rector. The rector took an interest in the boy. There is a tradition that he put him to school at Oxford. When Raleigh became a judge, he made Bracton a clerk. In due time Bracton was promoted to a justiceship in eyre, when he became in 1245 a serjeant at law. From 1245 to 1265 he traveled the circuit, but part of that period he sat at Westminster with Henry de Bath, Thurkelby and Preston. During this time he made a large collection of precedents (known as his Note-Book) out of the decisions of Pateshull and Raleigh. A fortunate inference by Vinogradoff, confirmed by the lamented Maitland, has identified this collection of precedents with a manuscript in the British Museum, and the work of Bracton, long considered a mere attempt to apply the civil law to our common law, has been shown to be a careful statement of the decisions of the notable judges, who preceded him.
That the general conceptions, the arrangement, and the classification of Bracton’s work should have been taken from a writer on the civil law is not at all strange. There was no other source to consult. The Roman and the canon law had been taught by Vacarius in England, and he had written a book for his students. Manuscripts of the Roman law no doubt were brought to England. The flourishing school “utriusque juris” at Oxford must have had many scholars. Ricardus Anglicus, an Englishman, gained celebrity in the law in Italy. Italian lawyers came to England, and the King had in his service the renowned Hostiensis. Simon Normannus, Odo de Kilkenny, Roger de Cantilupe, and Alexander Saecularis belonged to this band of “Romish footed” legists of the King. English students went to Bologna and studied under Azo, “lord of all the lords of law.” Azo’s book Bracton had constantly with him as he was writing his “De Legibus et Consuetudinibus Angliae.” Yet the substance of Bracton’s book is a careful statement of the actual law administered by the courts. A priest himself, he everywhere shows his loyalty to the secular tribunals. Like Henry de Bath, he was dismissed from the king’s court on account of his leanings toward the party of the barons; yet he continued a justice in eyre. The barons at one time sent him on a judicial errand to redress grievances. Perhaps Bracton had felt the rough edge of the King’s tongue. We are told that to William of York, a distinguished predecessor of Bracton, the King said: “I raised you from the depths, you were the scribbler of my writs, a justice and a hireling.” Bracton well knew the great patriot Simon de Montfort, and no doubt sympathized with his cause. We know not what he was doing when the Barons’ War was raging, but it is probable that he was quietly attending to his judicial duties.
In Bracton’s book we find that the rules of law are fixed and settled. They bind even the king. The sympathies of Bracton with the party of freedom and progress here and there appear. “While the king does justice,” says Bracton, “he is the vicegerent of the Eternal King, but when he declines to injustice, he is the minister of the devil.” He had a noble ideal of the office of the lawyer and the judge. Using the phrase of the Digest he says of his profession, namque justitiam colimus et sacra jura ministramus, “We are the ministers at the altar of justice and feed its sacred flame.”4
The greatness of Bracton’s work is best proven by the reflection that five centuries were to pass away before another English lawyer, in the person of Blackstone, was to appear, competent to write a treatise upon the whole subject of English law. Fortescue’s De Laudibus is a panegyric, Littleton’s Tenures covers a small field, Coke’s Institutes are so poorly arranged and badly written as to be unfit to rank with the clear, precise, and flowing language of Bracton or of Blackstone.
The long period from the Conquest in 1066 to Bracton’s death in 1267 had been a period of marvelous growth. It began with a varied assortment of local courts lacking settled rules, and ends with a highly organized system of courts administering a settled and rational system of law. It begins with a barbarous procedure, and ends with a rationalized method of ascertaining the facts. In the criminal law it begins with a system where the criminal makes redress to the injured party or his kin, it ends in a direct punishment of crime for the benefit of the whole society. Succeeding ages have merely amplified and glossed the distinctive rules of Bracton. The common law by its very form was made capable of indefinite expansion.
In addition, the general progression of the justices, holding the assizes through the different counties, distributed the royal justice throughout the country. The different local tribunals were subjected to a close scrutiny. In fact, the holding of an eyre was regarded by the inhabitants rather as an oppressive thing. The justices inquired into all the affairs of the counties and into all the acts of the local tribunals, into the enforcement of the criminal law and into the judgments rendered in civil causes. The numerous fines imposed made royal justice the source of an imposing revenue.
About this time the clergy were forbidden by the Pope to study the temporal law, and were inhibited from sitting in lay tribunals. The lawyer ecclesiastics, like Raleigh, Pateshull, William of York, Robert de Lexington, and Bracton, were soon to pass away. While ecclesiastical chancellors remained for centuries, the common law was about to become the heritage of laymen. The lay lawyers are learned men. Fitz Peter, Segrave, Braybroc, Multon and Thurkelby are all cases in point. But the most noticeable thing is that a class of advocates, who practice in the courts, has grown up, and that the judges are uniformly selected from among the profession. The serjeants at law and the apprentices at law now form a distinct body of men, devoting themselves solely to the practice. This separate class needed but schools of law to make it a closed body of men, admission to which required special attainments. This want was soon to be supplied by the Inns of Court, where the common law was taught as at a university. Everywhere the need of retaining good lawyers was felt. This is enforced by the judges. In one of the first Year Books, the reporter makes the Chief Justice say: “B loses his money because he hadn’t a good lawyer.” A few remarks of this sort from the bench would soon prevent an appearance in court by any one except a trained lawyer.
The division of the profession into barristers and attorneys had already appeared—a distinction that endures to our own day in England.5 The barrister appears only for a client already present in court by himself or by an attorney. The effect of this division in the profession may be indicated in a later place. At present it is enough to note the influence that is bound to be exerted by the body of professional lawyers. Their judgment upon legal matters is sure to be of controlling importance, and their influence upon the selection of judges has invariably caused in England the promotion to judgeships of men who have proved their ability by the attainment of leadership in the practice. The great advantage of appointive judges over elective is that the influence of professional opinion can be more easily brought to bear upon the appointing power than upon an untutored electorate.
But the growing power of Parliament was making itself felt upon the growth of the law. Perhaps the conservatism of the profession assisted. It was now no longer possible to devise new writs to meet new conditions and to offer new remedies. Parliament was insisting that the grant of new writs and the creation of new remedies was the making of new laws, a power which belonged to the nation’s representatives in Parliament. Thus the growth of the law was hindered by the growth of representative government. The English law is now ready to enter upon its second period, which began with the legislative activity of Edward I.’s reign.
The peculiar feature of the development of the common law is that its moving force did not come from the mass of the people, but was imposed upon a population constantly demanding a return to old and barbarous methods. The universal jurisdiction of the king’s courts, the most valuable institution in the history of the law, was looked upon with the greatest jealousy. The extinction of the old ordeals—a measure which began with the sneers of William Rufus and was finished under John—was not demanded by any large portion of the nation. The palladium of our liberties, that jury which grew out of the royal inquisition, was wholly foreign to the English race, and was imposed upon the nation by the Norman and Angevin kings. The grand jury in its inception was to most of the people little better than an engine of royal oppression.
The Norman baronage represents the element of power among the makers of this jurisprudence. In spite of individual exceptions who were cruel and oppressive, the mass of the Normans insisted upon law and order. They demanded men learned in the law for judges, and insisted that the judges should be independent of royal dictation. They asked for their own rights, but in Magna Charta insisted upon the rights of their humblest followers. In the years when the baronage was fighting John or Henry III., when civil war was distracting the land, practically the same judges went on holding court at Westminster, uninfluenced by the varying fortunes of barons or of king. Many a tale has been told to the discredit of the Normans; the jus primae noctis superstition is still an article of faith. But the legal historian knows that English liberty and law, even representative government, was the work of the Norman. William, Earl of Pembroke, well answered the king in the spirit of the Norman lawyer: “Nor would it be for the king’s honor that I should submit to his will against reason, whereby I should rather do wrong to him and to that justice, which he is bound to administer towards his people; and I should give an ill example to all men in deserting justice and right in compliance with his mistaken will. For this would show that I loved my worldly wealth better than justice.” It was not until the Norman baronage was broken by the wars of the Roses that England was ready to submit to the tyranny of the Yorkist and Tudor sovereigns—a tyranny that found its support in the mass of the nation. And when the struggle was resumed against the Stuart kings, the words of Bracton and of William of Pembroke were eagerly cited to prove that the king himself was not above the law of the land.
The Silver Age of the Common Law: From the Accession of Edward I. to the Death of Edward III.6
The succession of Edward I. in 1272 was practically contemporaneous with Bracton’s death in 1268. A dictum of Sir William Herle, Chief Justice under Edward III. (delivered from the bench), asserts that, “he (Edward I.) was the wisest king that ever was.” Hale and Blackstone have repeated this language, and have called him the English Justinian. But Edward was no codifier or founder of legal institutions. He simply had the singular good judgment always to keep at hand the best legal advice, and to follow it. He had constantly by his side a very great Italian lawyer, Francis of Accursii. His closest friend was his chancellor, the English lawyer, Robert Burnel.7 The leading advocates of the bar were kept in his service. Burnel drew the code of laws called the Statute of Wales, which projected the English law over Wales. Chief Justice Hengham (whom Coke calls Ingham) drew the Statute De Donis and the provision that created the bill of exceptions. Other noted advocates like Inge, Lowther, and Cave drew the other well-known statutes, such as Quia Emptores, Coroners, Merchants, etc., which supplied the deficiencies of the existing law and procedure.
During his reign the reports of cases, called Year Books, open. There was for centuries a tradition that the Year Books were official. Plowden guardedly says that he had heard that four reporters were originally appointed by the king. Bacon is somewhat more positive. Coke swallows the tradition entire, and says that “four discreet and learned professors of the law” were appointed by the king. He even asserts that they were “grave and sad men.” Blackstone knows all about them, who they were, how they were paid, and how often the reports were published. But this is simply a growing legal myth. The reports show that they were not official. The reporter chooses among the cases as he pleases. Statements of well-known counsel are inserted as authority. The rulings of the judges are frankly criticized. One decision is said to have been “for the King’s profit rather than in accordance with law.” In another place the reporter contemptuously says of a judge’s dictum: “This is nothing to the purpose.” Even the dicta of Chief Justice Hengham are condemned as wrong. Of one ruling the reporter says that the court held the contrary at the Michaelmas term (this practice the courts have continued until the present day). The reporter makes certain judges say that a decision cited was obtained by favor and therefore was not authority. Finally, the reporter nicknames a precipitate judge, Hervey the Hasty. It is, of course, ridiculous to call such reports official, but they are all the more valuable.
The Year Books show us the legal profession in full bloom. The leaders of the bar are the serjeants, but they have not as yet a monopoly of the Common Pleas practice. Other counsel appear in the reports. There is the body of students of law, attending upon the courts; they are sometimes referred to by the judges. The leaders of the bar are few in number, but the weight of professional opinion is apparent. The reporter does not hesitate to say that the opinion of the serjeants against any decision is sure proof that it is erroneous.
The very fact that the Year Books appear shows the influence of professional opinion. The dry Latin records of the cases were sufficient for Bracton, but now there was a demand for the many things which never got on the record—the arguments of counsel, the remarks of the judges during argument, the skilful plea of the one lawyer, the adroit shift of the other, in fact, the whole picture of the lawsuit as it progressed.
These Year Books were written in Norman French, the language of the courts and lawyers. One of the manuscripts shows us what was probably a lawyer’s library in the early thirteen hundreds. Besides the reports of cases, it contains a number of statutes of Edward I. and Edward II., Bracton’s treatise, another treatise on quashing writs, another on the duties of justices, another on pleas of the crown, Metingham’s work on Essoins, and Hengham’s treatise called Magnum and Parvum. These works, with Britton and the Register of Writs, would be an ample legal library; and all these books could be tied together in one manuscript volume.
The influence of the profession is apparent in the legislative activity of the opening years of Edward I. The statutes then passed were all remedial. Wherever a case was unprovided for, wherever a remedy was defective, wherever the law seemed insufficient, the existing law was supplemented by statutes. Take the statute creating the bill of exceptions. It enjoined upon the trial judge the duty of sealing a bill of exceptions tendered to any of his rulings, and made the bill a part of the record, which could be examined upon error. We know, without any proof of the fact, that this statute was procured by professional opinion. It brought all rulings to the supreme test of an appellate tribunal. Henceforth there could be but one rule of law for all Englishmen. The fact that these statutes, such as Westminster II. and Westminster III., are still law in almost every state in this Union, is the best proof of the sagacity of those long forgotten lawyers of Edward’s reign. Nowhere is better shown the wise conservatism of the true lawyer, whose instinct is not to commit waste upon the inheritance, but to repair the splendid edifice of which he is but the life tenant.
Still another indication of the growing influence of the profession is given by the impeachment of all the judges before Parliament in the year 1289. Some of the judges impeached bore honored names in the profession. Ralph de Hengham, Chief Justice of the King’s Bench, upon trivial charges was fined in a small sum, dismissed from office, and not reinstated until ten years had passed. Weyland, Chief Justice of the Common Bench, after a prosperous career as a lawyer and a long service as judge, was found guilty of heinous offenses and abjured the realm. But with lawyer-like skill he had made his wife and children co-foeffees of several of his manors, which were not forfeited. Other judges were fined in large amounts ranging from 4,000 to 2,000 marks—immense sums, when we reflect that a Chief Justice’s salary was then but forty pounds. Lovetot, Rochester, and Sadington are not heard of again. Boyland busied himself in building a splendid mansion and left a large fortune. Hopton and Saham returned to the practice. It will be seen that only after a bitter experience did England learn the necessity of paying large salaries to judges.
Two judges were “faithful found among the faithless”—Elias de Beckingham and John de Metingham. The latter was promoted to the headship of the common bench. There he presided for twelve years. His memory is kept alive by the prayer directed to be made at Cambridge pro animo Domini John de Metingham, as one of the benefactors of the University. He was a learned and just judge. His treatise on Essoins was a valued law book. He in one of his opinions cites Porphyrius to a definition of surplusage, as something “which may be present or absent without detriment to the subject.” Once he ruled against the opinion of all the serjeants, putting his decision on the ground of convenience. In another case he ruled in Mutford’s favor, and the gratified counsel burst forth with a quotation from Holy Writ: “Blessed is the womb that bare thee.” In another case he patiently listened to many objections to a verdict and then dryly said: “Now it is our turn,” and made short work of the objections. A counsel, not a serjeant, who had pleaded badly and lost his client’s case, he addresses pityingly as “My poor friend,” and explains to him his hopeless error. Metingham in another case thought it no objection to a verdict that the prevailing party had entertained the jury at a tavern. We are reminded that the jury has hardly as yet attained a judicial function.
Hengham came back to the bench as the successor of Metingham. He was also a legal author. His treatise was a work on the method of conducting actions, divided into Magnum and Parvam. His predecessor in the King’s Bench, Thornton, had written an abridgment of Bracton. Britton and Fleta belong very close to this period, and it is plain that there was a demand for law books. Hengham is a great authority on writs, and issues instructions to the clerks from the bench. He sometimes delivers long dicta, but the reporter adds in one case that Hengham is wrong. He was firm with the lawyers. In one case he said to Friskeney and his associates: “We forbid you to speak further of that averment on pain of suspension,” and, adds the reporter, “they obeyed.” Sometimes Hengham lost his judicial poise, as when he says to pertinacious counsel: “Leave off your noise, and deliver yourself from this account.” One of his rebukes is on a much higher plane. To a lawyer who offered a plausible but unsound argument Hengham said: “That is a sophistry, and this place is designed for truth.”
But the greatest character on the bench is William de Bereford, who succeeded Hengham as Chief Justice of the Common Bench. He served thirty-four years as a judge. We can sit in court and hear Bereford’s oaths, “By God” and “By Saint Peter.” He says to an absurd plea: “In God’s name, now, this is good!” One day he was sitting with Mutford and Stonor, associate judges. Stonor held a lively debate with counsel. Mutford then said: “Some of you have said a good deal that runs counter to what has hitherto been accepted as law.” “Yes,” interjected Bereford, “that is very true and I won’t say who they are.” The reporter naively adds, “Some thought he meant Stonor.” Bereford is sometimes cutting to counsel: “We wish to know,” he once exclaimed, “whether you have anything else to say, for as yet you have done nothing but wrangle and chatter.” One day Serjeant Westcote disputed Bereford’s law: “Really,” Bereford sarcastically rejoined, “I am much obliged to you for the challenge, not for the sake of us who sit on the bench, but for the sake of the young men who are here.” He despised the ridiculous Anglo-Saxon wager of law. “Now God forbid,” he says from the bench, “that any one should get to his law about a matter of which the jury can take cognizance, so that with a dozen or a half dozen rascals, he could swear an honest man out of his goods.” He even corrects in open court statements of his fellow judges as to the law. One day he corrects a ruling of Hervey the Hasty in spite of that judge’s protests. He is sharp with the lawyers. To Malberthorpe, counsel in great practice, he says: “You talk at random.” To Passeley, a leader of the bar, he says in an action to quiet title: “There are forty fools here who think that, as soon as one has in such case acknowledged, there is nothing more to do, although he claims more than he has. Answer by what title you claim in fee.” He sometimes jokes from the bench. The law was that a villein who had gone to a city and remained there for a year became free, but Metingham had ruled that if the villein returned to his villein tenement again he lost his freedom. Bereford illustrates this point by a joke. “I have heard tell of a man who was taken in a brothel and hanged, and if he had stayed at home, it would not have happened. So here, if he was a free citizen, why didn’t he remain in the city?” Some of Bereford’s jokes are too broad for quotation. Even if the reporters were “grave and sad men,” as Coke says, they always record Bereford’s highly seasoned anecdotes with apparent zest.
Hervey de Staunton, who is called the Hasty, is quick to answer. Mutford, a leader of the bar, asserted that a female serf who became free by marrying a free man, returned to her servile status as soon as her husband died. “That is false,” said one judge. “Worse than false, it is a heresy,” added Staunton. In another case a younger lawyer was reproved by Staunton for a poor plea, and was told to go and seek advice of counsel. Instead of being angry, the lawyer went out and came back with two eminent counsel, Willoughby and Estrange. But this is the ordinary thing. Whenever an attorney or a young lawyer attempts to plead without a serjeant, he is quickly detected in an error and told to go out and get counsel. On the circuit Staunton is reproved by his fellow judges for making a ruling before he consulted them. The retorts of the judges are quick enough. “Why,” asks Asseby, “did the other side plead that they were seized?” “Because they are rather foolish,” said Hertford, Justice, shortly, “answer over.” Berewick, a judge, says to the great Howard: “If you wish to cite a case, cite one in point.” One almost forgets in reading this that he is back in the Middle Ages. Sometimes a lawyer is fined for contempt. Lisle paid a fine of 100 shillings, yet soon afterward was made a justice of assize.
The most striking phenomenon is the smallness of the bar in active practice. A few names are constantly recurring. The fees of a leader must have been enormous. Most of them died rich. The case of William Howard, from whom flows “all the blood of all the Howards,” has been already instanced in describing the first period. Another great lawyer, a rival of Howard’s, is Hugh de Lowther. He is king’s serjeant, and appears in quo warranto proceedings, which Howard often defends. He was of an ancient family in Westmoreland. His lineal descendant became Viscount Lonsdale in 1689, and Lowther Castle (where the present Earl of Lonsdale so magnificently entertained the German Emperor) stands in the midst of the widespread domain of 35,000 acres which Edward I.’s attorney-general left to his descendants.
The largest fee of that day paid to a lawyer was £133 6s. 8d., paid by Edward II. to Herle, the king’s serjeant, and this was supplemented by a seat on the bench. After a long service on the bench Herle was permitted to retire; and it may be of interest to note that the permission spoke of “his approved fidelity, the solidity of his judgment, the gravity of his manner, and his unwearied service in his office.”
One of the names that often recurs is that of John Stonor. As a serjeant in large practice, and then as king’s serjeant, he no doubt made a fortune. He first served in the Common Pleas, then in the King’s Bench, then he was returned to the Common Pleas. Later he was chief Baron of the Exchequer, then Chief Justice of the Common Pleas, superseding Herle; but later Herle was reinstated, and Stonor took second place, but became Chief Justice again. Such is the remarkable record of this judicial maid-of-all-work. The one decision for which he is noted is a holding that an act of Parliament was invalid.
Throughout the Year Books of the three Edwards, it is noticeable that the judges are uniformly selected from the leaders of the bar. If a serjeant appears in large practice, he is almost certain to appear later on the bench. So noticeable is this that there are few great lawyers who do not reach a judicial position. Simon de Trewithosa was evidently a Cornishman. He was in immense practice, was a serjeant at law, but was never a judge. His statements of law are found in the Year Books quoted as of evident value. Another lawyer named Pole did not reach the bench. His practice was very large, and the singular fact is that he was not made even a serjeant at law. But such names as Howard, Lowther, Heyham, Hertford, Inge, Herle, Estrange, Westcote, Warrick, Passeley, Lisle, Touthby, Willoughby, Malberthorpe, Mutford, the two Scropes, Friskeney, Scotre and many others, show that professional eminence found a sure reward in a judgeship. No lawyer is elevated to the higher courts who is not a counsel in large practice.
The judges are no respecters of persons. Magnate and serf are equal before the law. Beauchamp, Earl of Warwick, pleading his own case and showing considerable technical knowledge, is treated like an ordinary counsel. Roger Bigot, Earl of Norfolk and Earl Marshal, son-in-law of the King, receives the same treatment as the humblest suitor. A poor man wrongly seized as a villein is given £100 damages, a verdict equal to ten thousand dollars at the present day. Yet we see the law’s delay, for four years elapsed between the awarding of the venire and the verdict.
The judges are skilful, tactful men. In a case where the plaintiffs failed in detinue of a charter on a variance, Berewick, the justice, said to the defendant: “What will this avail you? they can bring a new action and get it, so you may as well give it up,” and the charter was surrendered. In another case Howard has reached a difficult place and refuses to plead, but Berewick, the judge, calls up the client, takes him away from his counsel, and questions him so as to get replies which are taken as pleadings. Pleading was at that day a voluntary act. A criminal trial showed one of these judges at his best. Hugh, a man of importance, is arraigned upon an indictment for rape. He asked for counsel. “You ought to know,” the Judge replies, “that the king is party here ex officio, and you cannot have counsel against him, though if the woman appealed you, you could.” The prisoner’s counsel were then ordered to withdraw and did so. Hugh was then called upon to plead. Hugh replied that he was a clerk (a priest), and ought not to answer without his bishop. Then he was claimed for the bishop as a clerk. Thus it appears that the bishop had his representative sitting in court ready to claim the trial of any one who said he was a clerk. But the Judge was evidently informed, for he replied: “You have lost your clergy, because you married a widow.” Under the statute De Bigamis a priest who had married twice or had married a widow lost his right to be tried in the ecclesiastical court. “Answer,” said the Judge, “whether she was a widow or a virgin, and be careful, for I can call upon the jury here to verify your statement.” We note that a jury is sitting in court ready to decide, by the knowledge of its members, controverted questions of fact. Hugh replies: “She was a virgin when I married her.” The Judge calls upon the jury, who say that she was a widow. Then the Judge rules that he must answer as a layman, and asks him to consent to a jury trial. It is noticeable that the defendant in a criminal case must consent to a jury, a reminiscence of which is the question, and the answer of the prisoner, for centuries to come: “How will you be tried?” “By God and my country,” i.e. by the jury. But the prisoner objected that he was accused by the jury. (It is curious to note that the same jurymen acted as grand and petty jurors.) He further claimed that he was a knight, and the prisoner added: “I ought to be tried by my peers.” The Judge gave him a jury of knights, who were called, and the defendant was asked if he had any challenges. But Hugh still refused to consent to a jury trial, and the Judge warned him of close confinement on bread and water, if he did not consent. So Hugh consented, and asked that his challenges be heard. The Justice: “Freely, read them.” Then Hugh makes a slip: “I don’t know how to read.” The Justice: “How is this, you claim the privilege of clergy, and don’t know how to read?” Then the prisoner stands much confused; but the Judge calls on a bystander to read the challenges to the prisoner, who speaks them. The challenged jurors are excused. Then the judge states the charge to the jury and the jury say that the woman was ravished by Hugh’s men. The Justice: “Did Hugh consent?” The jury: “No.” The Justice: “Did the woman consent?” The jury: “She did,” and thereupon Hugh was acquitted. But who can say whether he was acquitted because the woman consented, and yet would have been considered liable criminally for the acts of his servants?
The counsel, however eminent, cannot wheedle the judges. In one case, Howard and Lowther on the same side urged a certain form of judgment. To Howard, Berewick replied: “We tell you that you never saw any other judgment under these circumstances, and you will get no other judgment with us.” Then Lowther argued with the Court, but Berewick was firm: “You will get no other judgment from us.” Again, Howard is on the bench, and Asseby says: “I think you would not give judgment in this wise, if you were in the case,” but Howard mildly replies: “I think you are wrong, wherefore answer.” But sometimes indulgence is shown. To a count challenged as bad, the Court say: “It would have been formal to have done this, but we will forgive him this time; but let everyone take care in the future, for whoever shall count in this manner, his writ shall abate, for it behooves us to maintain our ancient forms.”
In those days the counsel stated the proposed pleadings orally, and if held good by the Court they were reduced to legal form by the clerks. To the present day our pleadings still speak as if the party were in open court stating his pleadings. At this earlier stage of the common law the pleadings were necessarily all true. Whenever counsel in his pleading reaches a point as to which he is not advised, he imparls and seeks his client or the attorney for further information. The advocates show acuteness and ingenuity. The pleading is technically correct. All pleas must follow in their regular order—pleas in abatement before pleas to the merits; there was, however, no such rule as (for example) that the judgment upon a plea in abatement was quod recuperet. At this sensible stage of the law there was no need for statutes to allow pleading over. Sometimes counsel get stubborn and refuse to plead further, and then say that they will do so merely to oblige the court. Touthby, a very good lawyer, in one case tries to plead without binding his client, Isolde. “I say for Gilbert de Touthby but not for Isolde,” he begins. Whenever the pleadings come to a point where the party whose turn it is to plead cannot deny or avoid, judgment is given at once. The clerks enter up the technical forms of pleadings. The glorious absque hoc is present in large numbers. In an action of assault the counsel says orally, in answer to a justification: “He took him of malice and not as he has said, ready, etc.” The clerk enters this up as the regular replication de injuria sua propria absque tali causa, etc.
In almost every case there are two counsel on each side. In some cases there is a great array. Thus Heyham, Hertford, Howard, and Inge are for the defendant and Lisle and Lowther for the plaintiff. No one seems to lead, but all speak. Sometimes different counsel appear at different terms. In a great case of replevin, Estrange, Scrope, and Westcote are for the defendant and Herle and Hertepol for the plaintiff at one time. At the next term Westcote and Huntingdon are for the defendant and Herle and Hertepol for the plaintiff. At the next term Westcote and Huntingdon are for the defendant, while the plaintiff has Kyngesham, Warrick, and Passeley. The lawyers who are practicing at Westminster are also found on the circuit at the assizes. These men must have kept in mind an enormous amount of procedural rules. There were four hundred and seventy-one different original writs, each showing a different form of action and requiring its own special procedure.
The useful law book was Britton, a sort of epitome of Bracton. Chief Justice Prisot in Henry VI.’s time said that Britton was written under the orders of Edward I., and fixes its date as 1275. It supplanted Bracton, so that judges in after ages would say with singular fatuity that Bracton was never accepted as an authority in English law. Certainly Bracton’s Roman law was not understood by his immediate successors; for in Britton the actio familiae herciscundae of the Roman law has become an action about the lady of Hertescombe, who probably had estates in Devonshire. Yet Passeley, one of these lawyers, was a civilian, for the judge says to him from the bench: “Passeley, you are a legist, and there is a written law that speaks of this subject,” quoting from the Code.
It is noteworthy that no complaints are heard of the practitioners in the higher courts. There is a single case of a lawyer being bribed by the opposing counsel. But the leading lawyers were faithful and zealous. Even against the king they fought well for their clients. Both Edward I. and Edward III. made determined assaults upon the private jurisdictions of various lordships, and in all the cases the defendant’s counsel was zealous against the king. But in the lower courts, municipal, local and seigniorial, the legal “shyster” was as brazen and disgraceful as he is to-day. In 1280 the mayor and aldermen of London lamented the ignorance and ill manners of the pleaders and attorneys, who practiced in the city courts. It was ordained that no advocate should be an attorney; and thus it is apparent that the separation of the two branches of the profession, which happily endured in England, was at that early time in full effect. The city fathers were compelled to threaten with suspension the pleader who took money from both sides or reviled his antagonist.
There is an occurrence in the Abbot of Ramsey’s court for the fair at St. Ives, which shows the local pettifogger at his worst. William of Bolton is the name of the “shyster.” He was lurking around the fair, looking for victims. Simon Blake of Bury was charged with using a false ell for measuring cloth. William, eager for business, rushed in and became surety for Simon’s appearance. Then to make certain of his fee he induced Simon’s friend John Goldsmith to retain him to defend Simon, and to promise him four shillings as a fee. William agreed to defend, provided Simon would swear that he got the false ell from a merchant of Rouen. Although Simon did so state and vouched the Rouen merchant to warranty, yet he withdrew his voucher of the Rouen merchant. The scheme, of course, was to fleece the rich foreign merchant; but Simon lost heart or was bought off. Then William had the effrontery to sue John Goldsmith for the four shillings retainer and ten pounds damages because John had induced Simon to withdraw the said voucher of the said merchant of Rouen, “out of whom,” William brazenly avers, “the said William had hoped to get a large sum of money.” The damages arose because the pettifogger was deprived of an opportunity for levying blackmail. Surely William was thrown away on that early time. He belonged to the “justice shop” of one of our large cities.
The evils of these local courts are manifest. In one case Bereford asks Malberthorpe, “Why did you not plead this exception in the county court?” “Because,” replied the counsel, “we thought it would have more chance before you than in that court.” In the same year Margery brought a writ of false judgment against the suitors of the court baron of Fulk Fitz Warin, lord of the manor, for failing to record her plea against Fulk in his own court. The suitors appeared in the king’s court before Bereford to answer the writ. Bereford, Justice: “Good people, Margery brings her writ, etc. What have you to say?” Heydon, retained for the suitors: “I will tell you all about the business.” Bereford: “You shall not say a word about it, but they out of their own mouths shall record it.” The suitors then said that they feared to record the woman’s plea out of fear of Fulk, who had beaten one of them and overawed them by force, so that they were compelled to come to the king’s court under protection. Bereford: “Go aside by yourselves and take a clerk with you and have him write down your record, taking care that Robert Heydon comes not near you.” Bereford was determined to get at the exact truth and that the suitors should make their record without the aid of counsel. The record made, Bereford issued a writ against Fulk. The king was far wiser than his subjects when he attempted by his writs of quo warranto to destroy these local courts.
The greatest lawsuit of this reign was not tried in any of the regular courts; for the Kingdom of Scotland was at stake, and the litigants were the claimants of the throne. The contestants referred the matter to the arbitration of Edward I. But Edward at once set his lawyers at work to devise by means of this arbitration some method by which he could extend his sovereignty over Scotland. Burnel, the chancellor, and Roger le Brabazon, a skilled lawyer and one of the puisne judges of the King’s Bench, prepared the case. Out of the records and the monkish chronicles, acts of fealty by former Scottish sovereigns were produced, especially that of William the Lion to Henry II. after his capture by Ranulf Glanville. They were careful to suppress Richard Coeur de Lion’s cancellation of his rights over Scotland for a large sum of money. Soon a parliament of English and Scotch was convened at Berwick. Brabazon opened the proceedings by a speech in which he adduced his proofs, and required, as a preliminary, that the contestants and all the Scotch swear fealty to Edward as their feudal suzerain. The contestants of course could not offend the court. The Scottish nobles murmured, but after seeing Brabazon’s proofs acquiesced. The Scottish commons, however, refused. A trial was then had, and Burnel, for the King, correctly adjudged the throne to Balliol. Then the King tried to extend the jurisdiction of his courts over Scotland. But Wallace, and afterwards Robert the Bruce, kept alive the resistance, until under Edward II. the crushing defeat of the English at Bannockburn ruined Edward I.’s dream of a kingdom of Great Britain. Brabazon, as Chief Justice of the King’s Bench, lived to see the fugitives from Bannockburn.
One of the results of the years of warfare was to scatter over England lawless characters called trailbaston men. To suppress these marauders special justices, fearless knights and barons, were sent throughout England. One of these justices in 33 Edward I. was John de Byrun, a lineal descendant of the Norman Ralph de Burun of the Domesday survey. In regular descent from the justice came Sir John Byron, the devoted adherent of Charles I., who was made Lord Byron. His descendant, the sixth Lord Byron, was the poet, who next to Shakespeare has been the greatest intellectual force in English literary history. Byron’s friend, the poet Shelley, was descended from William Shelley, a justice of the Common Pleas under Henry VIII. Even Shakespeare belongs on his mother’s side to the Norman Ardens, who furnished at least three justices under the Plantagenets; while Francis Beaumont, the collaborator of Fletcher, was the son and grandson of English judges belonging to the Norman Beaumonts.
The troubles of Edward II.’s reign had little effect on the courts. Malberthorpe, Chief Justice of the King’s Bench, pronounced sentence of death on the Earl of Lancaster. When Edward II. was seized by his wife Isabella and her paramour Roger Mortimer, and put to death, Malberthorpe was brought to trial for his judgment against the Earl of Lancaster; but he proved by prelates and peers the fact that he gave that judgment by command of the King, whom he dared not disobey. Such is the disgraceful entry upon his pardon. But Malberthorpe was removed and went back to the practice. We pass by the two Scropes; Bourchier, who founded a distinguished family; and Cantebrig, who gave most of his property to endow that great institution which is now Corpus Christi at Cambridge. They were all great lawyers.
The most celebrated lawyer of Edward III.’s reign, however, was Robert Parning. The Year Books show him to be a man of remarkable erudition. He came to the Common Pleas as a judge at a rather early age. In a remarkable case Parning is sitting with Stonor, Shareshulle and Shardelowe. He takes issue with Shareshulle and a great debate is held between the judges on the bench, which is accurately reported. In the end Parning was overruled, but a few months later he became Chief Justice of the King’s Bench and then Chancellor.
This is the first instance of a great common lawyer attaining the marble chair. By reference to the Register, it will be found that in his two years’ service he provided a number of new remedies. Had the chancellors continued to be professors of the common law, there would have been no separate chancery system. But after Parning’s death the chancellorship was again bestowed upon an ecclesiastic. The growing opposition to the church is shown, however, by the Commons’ petition to the king in 1371 that only laymen should be appointed to the higher offices. Thereupon Robert de Thorpe, Chief Justice of the Common Pleas, was made chancellor. On his death John Knivet, Chief Justice of the King’s Bench, succeeded to the head of the chancery; but he remained for only five years, when the office was given to an ecclesiastic. No other layman held the office until Sir Thomas More. It is interesting to note that Parning, after he became chancellor, would return to sit in the law courts, and in 1370 there is the following entry in the Year Book: “Et puis Knivet le chanc. vyent en le place, et le case lui fuit monstre par les justices et il assenty.”8
Some of the happenings of the time give us some light on contemporary manners. Chief Justice Willoughby in 1331 was captured by outlaws and compelled to pay a ransom of ninety marks—more than one year’s salary. Seton, a judge under Edward III., sued a woman who called him in his court “traitor, felon and robber.” The inference is that he had decided a case against the lady, but had not impressed her with the correctness of his decision. He recovered damages, but he was given a jury of his peers, that is, a jury of lawyers. The quaint simplicity of those times is shown by Thorpe and Green, two judges, going in state to the House of Lords and asking them what was meant by a statute lately passed. It would not occur to our judges to seek for such an explanation of an absurd law. Green once pronounced judgment against the Bishop of Ely for harboring one of the latter’s men who had committed arson and murder. For this judgment the Judge was cited before the Pope, and on his refusal to appear he was excommunicated. About this time there was considerable friction between the lawyers, called “gentz de ley,” and the churchmen, called “gentz de Sainte Eglise.” The “gents of law” probably instigated the petition that only laymen should be chosen to hold such offices as chancellor. But in the next Parliament the “gents of Holy Church” retorted by obtaining a petition from Parliament praying that henceforth “gentz de ley,” practicing in the king’s courts, who made the Parliament a mere convenience for transacting the affairs of their clients, to the neglect of public business, should no longer be eligible as knights of the shire. It is likely that the real ground of hostility to the church was its great possessions. Just as to-day the mass of people look with hatred and envy upon the possessors of great fortunes, so then many people turned to the broad lands of the church for relief against the taxation growing out of the French wars.
But the reign of Edward III. produced a ministerial ecclesiastic worthy to rank with Lanfranc, Flambard, Roger of Salisbury, and Robert Burnel. The career of William of Wykeham is one of the glories of the English church. Of humble birth, educated at Winchester, he attracted the attention of the bishop, who employed Wykeham’s truly wonderful architectural talents in the improvements of Winchester cathedral. Here he took the clerical tonsure. A little later he entered the service of the king, and at Windsor, on the site of an old fortress of William the Conqueror, he built the keep and battlemented towers, which are yet the noblest portion of one of the magnificent royal residences of the world. He was rapidly advanced to the bishopric of Winchester and the chancellorship. His declining years were taken up with the foundation of Winchester School, and with the far greater endowment of his college of St. Mary at Oxford, now called New College. Wykeham’s foundation still renders it a wealthy institution. After the lapse of five hundred years the buildings remain as they were designed by this greatest of art-loving prelates.9
It is sad to turn to the closing years of the king, whose reign began with the triumph of Cressy. He had had a long and in many ways glorious reign. His court had been the most splendid in Europe. The pageantry of knighthood had thrown its glamour over his reign. The spoil of France had enriched his people. But the ravages of the plague had almost ruined the nation. In the domain of law the prospect was dark. The king’s mistress, Alice Perrers, openly intrigued to influence the court’s decision. She caused a general ordinance against women attempting the practice of the law. The heavy fees charged for writs in the chancery were the cause of bitter complaint. The royal council was accusing men and trying them without indictment. Justice was delayed by royal writs. The very judges of the land, it was charged, condescended to accept robes and fees from the great lords. One judge was convicted of taking bribes in criminal cases. The inefficacy of appeals was a crying evil, and it was complained that the judges heard appeals against their own decisions. All these various evils were to cause a grim reckoning in the next reign. But here we must close the period which began with the legislation of Edward I. and ended in such ignominy with his grandson’s death in 1377.
The Bronze Age of the Common Law: From the Death of Edward III. to the Death of Littleton10
The period in legal history that reaches from the death of Edward III., in 1377, to the death of Littleton in 1481, may be called the age of bronze, on account of the efforts which the law was making to mold itself to fit new conditions. The amplification of the action of trespass, the invention of common recoveries, the dawning action of ejectment, were phenomena that characterize this age. The common law was showing little indication of its coming helplessness in the next age, when the developed jury system was to render it incapable of granting any relief but a sum of money or the recovery of specific real or personal property. And in the realm of constitutional law this Lancastrian age reached higher ground than the law was to again occupy for two hundred years.
The reign of Richard II. opens with a frightful tragedy. The effects of the great plague in 1349, the unrest caused by the repressive statutes, the insistence of the landholders upon the villein-services, and the growth of the renting system, resulted in a widening chasm between farmer and laborer, which culminated in Wat Tyler’s rebellion. The populace rose over England, and mobs marched on London. The demand was that all serfdom be abolished, and that all vellein services and rentals be commuted for four pence per acre. In London the mob burst into the Tower and murdered the chancellor, Archbishop Sudbury, one of the greatest scholars of his time. But the bitterness was deepest against the lawyers, on account of the parchment records and the actions that had forced many a villein to perform his services. The Temple, the new school of the lawyers, was sacked and its records destroyed. In Shakespeare’s Henry VI., Dick the Butcher cries: “The first thing we do, let’s kill all the lawyers.” Cade: “Nay, that I mean to do. Is not this a lamentable thing, that of the skin of an innocent lamb should be made parchment; that parchment being scribbled o’er should undo a man.” It is, perhaps, needless to say that Shakespeare is here completely astray in chronology, for this hatred of lawyers belongs to the revolt of Wat Tyler in 1381, not to Cade’s rebellion in 1450.
Out in Suffolk was living the venerable Chief Justice Cavendish. The mob attacked his domain, and finding the Chief Justice, they dragged him forth, gave him a mock trial, and then beheaded him. This fine old lawyer was from the Norman house of De Gernum. Under the name Candish he was in immense practice in the Year Books of Edward III., along with Belknap, Charlton, and Knivet. After serving as a puisne in the Common Pleas he became Chief Justice of the King’s Bench. One of his dicta from the bench is a gallant utterance upon the appearance of women: “Il n’ad nul home en Engleterre,” he says in barbarous French, “que puy adjudge a droit deins age ou de plein age, car ascun femes que sont de age xxx ans voilent apperer de age de xviii.”11 When he was murdered he had just been made Chancellor of the University of Cambridge, after a service on the bench for over ten years, with a great reputation for learning and fair dealing. His descendants in the elder line were Earls of Devonshire, now Dukes of Devonshire. Another descendant in the younger line was the celebrated commander in the Civil War, who became Marquis and Duke of Newcastle; but the estates of this line now belong to the Dukes of Portland, who are Cavendish-Bentincks.
The successor of Chief Justice Cavendish was Robert Tresilian. He had sat as Cavendish’s only puisne; and when he held the assizes after Wat Tyler’s rebellion, he made a record that was never equaled until Jeffreys held the “Bloody Assizes” after Monmouth’s rebellion. Later in the reign of Richard II., Tresilian became involved in the political troubles. Parliament had practically supplanted the King, by appointing eleven commissioners to administer the government. The King at first tried to elect a more favorable parliament. When the election proved unfavorable, Tresilian called the judges together, among them Belknap, Chief Justice of the Common Pleas, Fulthorpe, Burgh, and Holt (Skipwith excused himself), and by violent threats induced the judges to sign a series of prepared answers, holding the act of Parliament invalid. Poor Belknap as he signed the paper said: “Now here lacketh nothing but a rope, that I may receive a reward worthie for my desert.” This is an early instance of a practice that became common under the Stuarts, and was put into use as late as 1792 by Lord Eldon; while it has often been used in some of our States. Fulthorpe, one of the judges, at once communicated the matter to Parliament. The judges were appealed of high treason. Tresilian was beheaded, and the other judges were banished. Belknap had been a great advocate and an excellent judge; but he lacked courage, for in 1381 when he went the circuit, the rioters broke up his court and made him swear to hold no more sessions. His banishment caused a very remarkable ruling. Gascoigne held that Belknap’s wife could be sued as a feme sole, although her husband was living. The decision was certainly wrong. Chief Justice Markham at a later time made a rhymed couplet over this decision:
Belknap was allowed to return, the judgment against him was reversed, and his property that had not been alienated was restored.
The year 1388, when the judges were banished, was, of course, marked by a total change in the courts—the first instance in English history when the whole bench was changed for political reasons. Even in 1399, when Henry of Bolingbroke supplanted Richard II. and the reigning king was compelled to sign an abdication, there was no change in the judiciary. The whole proceeding was in strict legal form, for Chief Justice Thirning yielded up the fealty, homage, and allegiance of all the English people, declared the King deposed, and announced Henry IV. to be his successor. The deposition took place in the midst of a splendid pageant in Westminster Hall. The Hall had just been remodeled in the last two years of the King’s reign. The Chancellor’s court and the King’s Bench, toward the end of Edward III.’s reign, had joined the Common Pleas in the Hall. King Richard, who had a keen appreciation of architectural beauty, had restored and remodeled the Hall after designs by William of Wykeham. The walls were built higher, the pillars in the hall were removed, and the magnificent timber roof, still one of the wonders of architecture, was thrown over the wide hall. Sadly enough, the first use made of the King’s structure, after he had rendered it so imposing, was the coronation of his usurping kinsman, Henry IV.
Revolutions or changes in dynasty in England have rarely affected the courts. The two Chief Justices and their colleagues continued to sit in the courts after the new King’s accession. One judge, Rickhill, was called upon to answer for a share in the murder of the late King’s uncle, the Duke of Gloucester, while in prison at Calais. But Rickhill proved that he had no part in the murder, and was allowed to resume his seat upon the bench. This judge, in attempting to draw his own deed, made some memorable law, which is still common learning. By his deed he attempted to anticipate the law by two centuries, and to settle his lands upon his sons successively in tail, but added a contingent limitation that if any son aliened in fee or in tail, the same lands should go over to the next son in tail. The contingent limitation was held bad as the creation of a remainder, which did not await the natural devolution of the preceding estate, but cut it short by the creation of a freehold beginning in futuro. English law was to await the Statute of Uses before such a limitation became good in a deed, and the Statute of Wills before it became possible by will.
Clopton, Chief Justice of the King’s Bench, vacated his seat to become a friar of the Minorites, and his successor was the celebrated William Gascoigne, whose surname the ingenious scribes of that day were able to spell in twenty-one different ways. The legend as to his firmness in committing the Prince of Wales for contempt of court is wholly mythical; but it is true that when, in 1405, he was commanded by the king to pronounce sentence of death upon Archbishop Scrope and the Earl Marshal, rebels taken in battle, he resolutely refused, saying: “Neither you, my Lord, nor any of your subjects, can, according to the law of this realm, sentence any prelate to death, and the Earl has a right to be tried by his peers.”
Throughout this period the regular succession from eminence at the bar to a judgeship was a constantly recurring process. In the Year Books we notice some interesting interpolations. Thus Hull, a judge, “said secretly,” of a decision of Chief Justice Thirning, “that it was never before this day adjudged to be law.” Another judge, Hill, passing upon a “stayout” agreement, where a dyer had bound himself by a bond not to pursue his trade for half a year, ruled that the covenant was against the common law, adding: “And by God, if the plaintiff was here, he should go to prison till he paid a fine to the King.” The learned Foss thinks this the only reported oath on the bench, but he is greatly in error. Bereford, Brumpton, Staunton and other judges in the older Year Books frequently invoke the Almighty. Henry II.’s favorite oath while sitting on the bench was, “by God’s eyes”; King John swore “by God’s feet”; and the Conqueror’s favorite oath was “by the splendor of God.” Archbishop Arundel, who as Chancellor presided in 1407 over the trial of a Lollard priest, William Thorpe, accused of heresy, swore freely from the marble chair, “by God” and “by St. Peter.” The accused priest upon this trial made a most felicitous Biblical quotation in answer to the Archbishop; the latter having said that God had raised him up even as a prophet of old to foretell the utter destruction of the false sect of the priest, the priest retorted with the words of Jeremiah: “When the word that is the prophecy of a prophet is known and fulfilled, then it shall be known that the Lord sent the prophet in truth.”13
But the most curious circumstance of that age is a performance of Judge Tirwhit, who affords ample proof that no man, not even a judge, can be his own lawyer. Tirwhit had brought an action against the tenants of the manor of Lord de Roos. Both sides were afraid to trust a jury, so the cause was referred to the arbitration of Chief Justice Gascoigne. The Judge thereupon appointed a day, called in the record somewhat cynically, “a loveday,” for the parties to come before him with their evidences, limiting the witnesses to a few friends of either party. But Tirwhit assembled four hundred men, who lay in wait for Lord de Roos to do him “harme and dishonure.” Lord de Roos avoided the ambuscade, but complained to the king. Tirwhit was arraigned before Parliament and acknowledged that “he hath noght born him as he sholde have doon.” The suit, by the award of the Archbishop of Canterbury and Lord de Grey, the Chamberlain, was again referred to Gascoigne, while Tirwhit was required to send two tuns of Gascony wine to Melton Roos, the manor-house of Lord de Roos, and to take there “two fatte oxen, and twelfe fat sheepe to be dispensed in a dyner to hem that there shall be,” and Tirwhit was to attend the feast with all “the knights and esquires and yomen” that had made his forces on the “forsaid loveday.” There he was to offer a full speech of apology, which concluded: “forasmuche as I am a justice, that more than a comun man scholde have had me more discreetly and peesfully, I know wele that I have failed and offended yow, my Lord the Roos, whereof I beseke yow of grace and mercy and offer you 500 mark to ben paid at your will.” But Lord de Roos was to refuse the 500 marks and forgive the judge and all his party. What happened at the feast, how much of the two hogsheads of heady wine were consumed, whether heated with the good cheer the parties fell to fighting over the legal issue, and how many good men fell (under the table) in the great hall of Melton Roos, history has not told us. But an archbishop who could prescribe a feast and two hogsheads of wine as a peace offering certainly cannot be accused of any prejudice in favor of sobriety.14
This was the age of noted lawyers. Such names as Hankford, Markham and Danby, Norton, Prisot, Hody, Moyle, Choke and Brian are great names in the Year Books. Hody, according to Coke, was “one of the famous and expert sages of the law.” He and Prisot, a Chief Justice of the Common Pleas, are said to have greatly assisted Littleton in writing his work on Tenures. Hody tried and condemned Roger Bolingbroke, “a gret and konnyng man in astronomye,” for attempting “to consume the king’s person by way of nygromancie.” The unfortunate scientist was sentenced to death and executed. Markham furnishes the first instance, for generations, of the removal of a judge for an unsatisfactory decision. It happened in this wise: Sir Thomas Cooke, lately Lord Mayor of London, was possessed of vast landed wealth. The Yorkists in 1469 brought him to trial for loaning money to Margaret of Anjou, the wife of the deposed king, Henry VI. The cormorants surrounding Edward IV., the hungry relatives of his wife, had condemned Cooke beforehand and considered his estate as their lawful prey. But Markham charged the jury that the act proven was merely misprision of treason, and thus the Lord Mayor was saved from forfeiture of his estate. Markham was immediately superseded as Chief Justice.
Another name celebrated in the Year Books is that of Skrene. He is a favorite with the reporters, for many of his deliverances are noted with the same approval as those of the judges. In later times such men as Coke deemed all statements of law as of equal value, and cited indiscriminately the arguments of counsel and the words of the judges, as entitled to equal credit. Skrene never attained a judicial position, but he left a fine estate called Skrenes which was many years afterwards purchased by Chief Justice Brampston.
Both Brian and Danby are sages of the law often cited by Coke as high authority. Choke, a contemporary, served on the bench for many years. His contribution to the law is composed of two erroneous and troublesome dicta. One asserts that if land be granted to a man and his heirs so long as John A’Down has heirs of his body, and John A’Down dies without heir of his body, the feoffment is determined. John Chipman Gray, with an amplitude of learning that has been wasted on a perverse generation, has demonstrated that Coke and Blackstone are in error in following Choke’s deliverance. Not less erroneous is Choke’s second dictum as to the reversion of the property of a corporation upon its dissolution, but the courts have long disregarded this latter proposition.
Another judge, Walter Moyle, who sat through the wars of the Roses, is notable as the progenitor of a most distinguished legal family. His granddaughter and heiress married Sir Thomas Finch, descended from an old Norman family. Their son, Henry Finch, was a celebrated serjeant at law. His son, John Finch, was Attorney General, then Chief Justice of the Common Pleas, and later Lord Keeper under Charles I., as Lord Finch of Daventry. Another grandson of the Moyle heiress was Heneage Finch, a celebrated lawyer. His son, another Heneage, was the celebrated chancellor, Lord Nottingham, the Father of Equity and the author of the Statute of Frauds. His son, a third Heneage, became celebrated by his valiant defence of the Seven Bishops and was made Earl of Aylesford. Three earldoms, Winchelsea, Nottingham, and Aylesford, were the rewards of this legal family.
About the middle of the fourteen hundreds, just before the wars of the Roses, it became apparent that the salaries paid to the judges were wholly inadequate. In 1440 William Ascough, who was rapidly advanced, was appointed a justice in the Common Pleas. He petitioned the king representing that “ere he had been two years a serjeant, he was called by your Highness to the bench and made justice, whereby all his earnings, which he would have had, and all the fees that he had in England, were and be ceased and expired to his great impoverishment, for they were the substance of his livelihood.” He modestly requested, since he was the poorest of the justices, a life estate in lands of £25 12s. 10d. per year. Even the summons to serjeantcy was sometimes refused, since it might result in an elevation to the bench. It is certain that prior to this time the serjeants had a monopoly of the Common Pleas, for in 1415, William Babington, John Juyn, John Martyn, and William Westbury were called to the degree of the coif. These four with several others declined to qualify and thereupon complaint was made in Parliament that there was an insufficiency of serjeants to carry on the business of the courts. Parliament responded by imposing a large penalty upon any one who refused a summons to become a serjeant. So the persons called assumed the degree, and the four named above afterwards became judges.
A judge who served under Henry VI. in the trying time of Cade’s rebellion has served for centuries to add to the gayety of nations. Sir John Fastolf, who held the Kent assizes in 1451, was a gallant soldier and a lover of learning. For some reason Shakespeare pictured him, under the name of Falstaff or Fastolfe, in his Henry VI., as a contemptible coward and craven. Later, in his Henry IV., when he changed the name of the fat knight Oldcastle so as not to offend Puritan prejudices, Shakespeare substituted the name of the character in his older play. In this way the blameless Fastolf has been handed down by the plays of Henry IV. and the Merry Wives of Windsor as the richest comic character in dramatic literature. The real man left a will, of which Judge Yelverton was an executor. It is said in the Paston letters that in a suit over the will Yelverton came down from the bench and pleaded the matter!
But this extraordinary conduct of Yelverton was surpassed by that of Serjeant Fairfax. On one occasion he was employed to prosecute certain defendants; but he declared at the bar that he knew that the men were not guilty, that he would labor their deliverance for alms, not taking a penny, whereupon the prosecutor naturally retained other counsel. It is to be hoped that this professional betrayal was not common at that day, though doubtless the foolish people who prate about the iniquity of a lawyer’s advocacy of a bad cause would find in such conduct much to approve. This Fairfax’s great-great-grandson was made Lord Fairfax in 1637, and in still later times the then Lord Fairfax, smarting under some court beauty’s disdain, buried himself in the Virginia wilderness, and added to history by befriending the young surveyor, George Washington. Washington was sent to survey his friend’s vast domain beyond the Blue Ridge, and there gained the knowledge that gave him his first military employment.
The fame of all the Lancastrian and Yorkist lawyers is eclipsed by that of Fortescue and Littleton. Both of them were legal authors and very successful practitioners. Fortescue, the Lancastrian judge, survived Littleton, the Yorkist judge, and will therefore be noticed after him.
Thomas Littleton came of a family that since the days of Henry II. had occupied an estate at South Littleton in Worcestershire. Although he was the eldest son he was bred to the bar at the Inner Temple. He became reader for his Inn, and the subject of his public reading, the Statute De Donis, shows the early tendency of his legal studies. He was in practice as early as 1445, for in that year a litigant named Hauteyn petitioned the Lord Chancellor to grant him Littleton as counsel in a case against the widow of Judge Paston, for the reason that none of the men of the court were willing to appear against the widow of a judge and her son, who was an advocate. This would seem to indicate that Littleton’s practice lay in the chancery and not in the law courts. In 1452 Littleton received a handsome fee, the grant of a manor for life pro bono et notabili consilio. In 1453 he became a serjeant, and in the next year was made king’s serjeant. In 1460 he was one of the king’s serjeants who successfully evaded an answer to the question asked by Parliament as to whether the Lancastrian King Henry or the Yorkist Duke Richard had the better title to the throne. In fact, from 1455 to 1466 Littleton practiced his profession, refusing to mingle in the political disputes. He even took the lawyer-like precaution in 1461, when Edward IV. supplanted Henry VI., to sue out a general pardon for acts done under the deposed monarch. In 1466 he was made a justice of the Common Pleas, and so remained, even under the short return of Henry VI. He died a judge in 1481. He assisted in fixing the legal landmark of Taltarum’s case, which held that a common recovery suffered by a tenant in tail barred not only the issue in tail, but also any remainder limited thereafter, as well as the reversion in fee. His tomb, in the form of an altar of white marble, still remains in Worcester Cathedral. His will, among other curious bequests, gallantly provides for prayers to be said for the good of the soul of his wife’s first husband. Gentle sarcasm has little in common with the treatise on Tenures; but it may be that, after an experience with the widow of the deceased, Littleton felt that the unfortunate man deserved the prayers. The will shows Littleton to be a pious soul fully persuaded of the efficacy of prayers to prevent the “long tarying” of the soul in purgatory.
While Littleton’s treatise was put into its final form in the latter part of his life, it is probable that the Tenures is an amplification of his reading on De Donis and represents the collected work of a lifetime. It is a marvel to find a work on the law into which no apparent error has crept. This book has remained the classic treatise on estates, and its words to-day are cited as the undoubted common law. Following Fortescue’s saying that “from the families of judges often descend nobles and great men of the realm,” it may be noted that Littleton’s eldest son married one of the coheiresses of Edmund Beaufort, Duke of Somerset, and by right of that descent, Littleton’s descendants, who are Viscounts Cobham, quarter the royal arms of the house of Lancaster. The descendant of Littleton’s second son is Lord Hatherton, while the great-grandson of Littleton’s third son was Lord Lyttleton, Lord Keeper under Charles I. Another descendant was a baron of the Exchequer under Charles II.
The traditional portrait of Littleton is unfortunately not authentic. He is shown wearing the collar of SS, still worn by the Lord Chief Justice of England, but absolute discredit is thrown on the portrait by the portcullis of the Tudors, next to the clasp of the collar, which was not introduced until Henry VII.’s time. The Elizabethan ruff is hardly the attire we should expect in the Yorkist age. Coke, however, who knew nothing about it, says that the picture is a very good likeness. But the monumental effigy of Littleton, possibly authentic, shows a kneeling figure. Out of his mouth issues the motto ung dieu et ung roy, and the face has the smooth look of a Yorkist courtier, but indicating the keenness of intellect required for the systematizer of the nice discriminations of the law of real estate.
Littleton was simply a great lawyer and judge, but his greatest contemporary was more than a great lawyer and judge; he was an enlightened statesman, a gallant soldier, a writer of transcendent merit upon constitutional law, and a scholar whose words upon his profession possess a peculiar charm even for men wholly unacquainted with legal lore. John Fortescue was a lineal descendant of the knight (Le Fort Escu) who bore the shield of William the Conqueror at Hastings. Educated at Exeter College, Oxford, Fortescue was trained for the bar at Lincoln’s Inn, of which he was a governor from 1425 to 1429. In the latter year he was made a serjeant, and is shown in the Year Books as in immense practice, until in 1442 he became Lord Chief Justice of the King’s Bench. His salary in that office was £120 a year, with an allowance of two robes and two tuns of Gascony wine per year. His yearly salary was afterwards increased to £160. He served as Chief Justice until 1461. During his term occurred Cade’s rebellion, and one of the charges against Fortescue and Prisot, the Chief Justices, was that of “falseness.” No sooner suppressed was this rebellion, where Cade took the significant name of Mortimer, than the Duke of York set up his claim to the throne, as descended through the Mortimers from the third son of Edward III. The judges, the king’s counsel, the serjeants at law, were all asked for legal opinions on the title to the throne, but all declined to give an opinion. Both parties took up arms. Chief Justice Fortescue vindicated his descent from a long line of knightly ancestors by taking the field. He was in almost every one of the battles; and after Towton, the bloodiest battle in English history, he went into exile with the Lancastrians. He returned and fought at Tewkesbury, the last battle of the war, and was taken prisoner.
During his exile he had written the work which we call De Laudibus Legum Angliae. The book was written to instil into the young Prince of Wales, Henry VI.’s son, whose education was entrusted to Fortescue, a proper knowledge of English institutions. The book is invaluable as showing not only a profound appreciation of the free and liberal principles of the common law, but also the condition of the English law at that epoch. Fortescue also wrote a tract in support of the Lancastrian title to the throne, which he based upon the solemn declaration of Parliament and the nation’s acceptance. When Fortescue found that the Lancastrian cause was ruined, he prayed for a pardon from the Yorkist king. There had been little change in the bar or the courts during Fortescue’s exile. Fortescue himself had been succeeded by Markham, and Prisot, another avowed Lancastrian, was displaced by Danby; but all the other judges had remained. The courts had gone on in regular fashion during the fierce wars, and the bar was composed of many of the men who had practiced before Fortescue. Billing, a subservient wretch who had succeeded Markham, although one of the first of a long line of the disgraceful judicial tools of Yorkist, Tudor and Stuart kings, kept up the traditional kindliness of the English bar by intervening strongly for Sir John Fortescue, and obtained for him a pardon with the restoration of his estates. But by a curious whim of Edward IV., Fortescue was required to write, in favor of the Yorkist title, a refutation of his book demonstrating the validity of the Lancastrian title to the throne. The two treatises appear in Fortescue’s works, and each of them constitutes the best argument for the respective opposing claims.
If one were asked to name in English law an equal to Fortescue, he could point to but three names—Bacon, Somers and Mansfield. Just as Bacon and Somers were impeached, and Mansfield bitterly denounced, so we find, here and there in the Paston letters, hints that Fortescue was an object of hatred. A correspondent during Cade’s rebellion says: “The Chief Justice hath waited to be assaulted all this sevennight nightly in his house, but nothing come as yet, the more pity.” It is not uncommon for Fortescue to be represented as more of a politician than a lawyer; but the Year Books of Henry VI. show him to be a consummate master of the common law, whom even Coke mentions with reverence. One decision of his, in the case of Thorpe, Speaker of the House of Commons, is written in our Federal and all our State constitutions.
In his books “De Laudibus” and “Monarchy” he shows that he is the first of England’s great constitutional lawyers. He points out to his young prince that the Roman maxim, “quidquid principi placuit, habet legis vigorem,” has no place in English law; that the king’s power is derived from the people and granted for the preservation of those laws, which protect the subjects’ persons and property; that the king cannot change the laws without the consent of the three estates of the realm, the baronage, clergy and commons; that the Parliament has power because it is representative of the whole people; that the king’s power of pardon and the whole domain of equity is the king’s for the good of his subjects; that the limitations upon kingly power are not a humiliation to, but for the glory of the king; that righteous judgment is his first duty, that the courts of law are his, but he does not act personally in judgment; that the laws of England are better than those of France, because they recognize no torture, because they provide the institution of the jury, carefully regulated courts, a legal profession trained in the great legal university, the Inns of Court, and because all men’s rights are equally protected by law. Certainly no nobler picture of a constitutional system has ever been put forth by any English lawyer. It is the precocious development of the three Henries, a system far ahead of the times; under a strong king like Henry V., England was the first power in Europe; but a weak king like Henry VI., kindly, just, temperate, humane, gentle in his methods, pure and upright of life, the best man who ever sat on the English throne, found himself ruined and dethroned. The nation which voluntarily abandoned this system deserved the Yorkist, Tudor, and Stuart tyranny. And every step that since was gained in England was obtained by restoring some principle of this theory of government so boldly sketched by Fortescue.
It is a pleasure to know that the manor which the Chief Justice bought and transmitted to his posterity gave a title to his descendants as Viscounts Ebrington, and that the head of the family, as Earl Fortescue, sits in the House of Lords, while three Fortescues since his time have sat as judges in Westminster Hall.
Here at this period, when modern history is just beginning, when the use of printing was about to multiply books and legal treatises, when the law itself was passing through a great transformation, when the growth of the chancellor’s jurisdiction by means of conveyances to uses was to suffer a great expansion, when chancery was to gain its control over common law actions by injunctions, when land was to become again alienable, when the actions of ejectment, of trespass, of trover and of assumpsit were developing and the older actions passing away, when the jury was becoming a body of men which heard evidence only in open court under the control of the judge, when the great advocate with his skill in eliciting evidence and in addressing the jury now first found a place in the practice, and all court proceedings, except formal declarations, were transacted in the English tongue, we have in Fortescue’s work a picture of the English legal system. But the most interesting portion of his work is the description of the system of legal education at the Inns.
The origin of the Inns of Court is lost in antiquity; but it is practically certain that there was a body of law students older than any of the Inns. One set of students in Edward II.’s reign, or soon thereafter, obtained quarters in the Temple and soon divided into the Middle and the Inner Temple. Another body of students probably obtained from that ill-starred woman, the heiress of the deLacys, the town-house of the Earls of Lincoln, and became Lincoln’s Inn. Still later another body obtained the mansion of the Lords Gray de Wilton, and became Gray’s Inn. Connected with the larger Inns were ten smaller Inns of Chancery, having no connection with the court of chancery, but so called because they were the preparatory schools where the students studied the original writs, which were issued out of the chancery.
But there was, of course, some reason why, on the edge of the city, just beyond the city wall, all these students should have found a lodging place. Fortescue explains that the laws of England cannot be taught at the university, but that they are studied in a much more commodious place, near the king’s court, where the laws are daily pleaded and argued and where judgments are rendered by grave judges, of full years, skilled and expert in the laws. The place of study is near an opulent city, but in a spot quiet and retired, where the throng of passers-by does not disturb the students, yet where they can daily attend the courts.
In the smaller Inns the nature of writs is studied. The students come there from the universities and grammar schools, and as soon as they have made some progress they pass into the larger Inns. At each of the smaller Inns are about a hundred students, while none of the larger Inns has less than two hundred. These four larger Inns were wholly voluntary institutions. The older and better known barristers of an Inn became the benchers, and they were self-perpetuating. They alone had and still retain the exclusive privilege of calling to the bar, but upon their refusal an appeal lay to the judges. In these four Inns the students studied the cases in the Year Books, the legal treatises called Fleta and Britton, read the statutes, and attended at court in term time.
Instruction was given by arguing moot cases before a bencher and two barristers sitting as judges, and by lectures called readings delivered by some able barrister belonging to the Inn. These readings were often cited as authority. Littleton’s was on De Donis, Bacon’s was on the Statute of Uses, Dyer’s upon the Statute of Wills, Coke’s upon the Statute of Fines. It was a high honor to be selected as reader, and the expense of readers’ feasts at the Inns became very great. After a student had studied for seven years (afterwards reduced to five), he was eligible to be called to the bar. The barristers before becoming serjeants were probably called apprentices, although that term was sometimes applied to the students. Whether an examination was required is problematical, but possibly that part of the ceremony of instituting a serjeant, which requires the serjeant to plead to a declaration, points to an examination of some perfunctory sort.
While the students were pursuing their studies in the law, they were instructed in various other branches of learning, if we may believe Fortescue. Singing, all kinds of music, dancing, and sports were taught to the students in the same manner as those who were brought up in the king’s household were instructed. The revels and masques of the law students became a great feature of court life. On week days the greater part of the students devoted themselves to their legal studies, but on festival days and Sundays after divine service, they read the Holy Scriptures and profane history. In the Inns of Court every virtue is learned and every vice is banished, says Fortescue; the discipline is pleasant, and in every way tends to proficiency. Such is the reputation of these schools that knights, barons, and the higher nobility put their children here, not so much for the purpose of making them lawyers as to form their manners and bring them up with a sound training. The constant harmony among the students, the absence of piques or differences or any bickerings or disturbances, which Fortescue asserts, taxes our credulity. But he claims that an expulsion from an Inn was feared more by the students than punishments are dreaded by criminals.
The high social position of the students, a phenomenon that is always noticeable in the English barrister, is warmly commended by Fortescue. The expense of the residence at an Inn, which is twenty-eight pounds a year (equal to almost twenty times that amount at present money values), restricts the study of the law to the sons of gentle folk. The necessity of a servant doubles this expense, and the poor and common classes are not able to bear so great a cost, while the mercantile people rarely desire to deplete their capital by such an annual burden. “Whence it happens that there is hardly a skilled lawyer who is not a gentleman by birth, and on this account they have a greater regard for their character, their honor and good name.”
After a barrister had been called, he generally practised on the circuit. Fortescue himself traveled the western circuit. He narrates how he saw a woman condemned and burned for the murder of her husband, and at the next assizes he heard a servant confess that he had killed the husband and that the wife was entirely innocent. From this occurrence Fortescue draws a justification for the law’s delay. “What must we think,” he says, “of this precipitate judge’s prickings of conscience and remorse, when he reflects that he could have delayed that execution. Often, alas, he has confessed to me that he could never in his whole life cleanse his soul from the stain of this deed.” In another place Fortescue makes the remark that has been so often quoted: “Indeed one would much rather that twenty guilty persons should escape the punishment of death, than that one innocent person should be executed.”
The barrister after sixteen years’ service may be called upon to take the degree of serjeant at law. Then he dons a white silk cap, which a serjeant does not doff even while talking to the king. After much solemn and stately ceremonial and feasting, the new serjeant is assigned his pillar at the Parvis of St. Paul’s, where he consults his clients and attorneys. The orthodox rule, which became a custom in England, that it is unprofessional for a barrister to receive his instructions or fee from the client, did not then exist. Even in much later times Wycherly, who had been a law student, sees no incongruity in the client consulting a barrister. In his exceedingly filthy, but witty play, The Plaindealer, the litigious Widow Blackacre is consulting her counsel, Serjeant Ploddon, and says to him: “Go then to your Court of Common Pleas and say one thing over and over again; you do it so naturally, that you will never be suspected for protracting time.”
As in after times, the judges were selected only from the serjeants. Fortescue describes the oath which the judges take—to do justice to all men, to delay it to none, even though the king himself command otherwise, that he will take no gift or reward from any man having a cause before him and will take no robes or fees except from the king. Lovingly Fortescue tells of the life of leisure and study of the judges, how the courts sit only in the morning, from eight until eleven. Then the judges go to their dinner. At Serjeants’ Inn the judges dined and met the serjeants there. Fortescue himself had chambers in the old Serjeants’ Inn.15 From Clifford’s Inn one may now enter the old building where Fortescue lodged, but it is no longer used by the serjeants, for that ancient order is extinct. After their dinner the judges spent the rest of the day in the study of the laws, reading of the Scriptures, and other studies at their pleasure. It is a life rather of contemplation than of action, says Fortescue, free from every care and removed from worldly strife. Proudly he tells his prince that in his time no judge was found that had been corrupted with gifts or bribes.
Fortescue’s De Laudibus is the unique production of that age. Here we see the legal system set forth, from the day the student enters an Inn of Chancery through his studies in an Inn of Court, his service at the bar, until his elevation and work upon the bench. It is fully described by one of the greatest of common lawyers, “this notable bulwark of our laws,” as Sir Walter Raleigh calls Fortescue. But we ought not to part from this great lawyer without remarking his serene and steadfast faith in God’s direct government of the world—that wonderful faith of the Middle Ages. Fortescue feels that the good man is blessed. The fact that upright judges leave behind them a posterity is to him one of God’s appropriate blessings upon just men. It is a fulfillment of the Prophet’s word that the generation of the righteous is blessed, that their children shall be blessed, and that their seed shall endure forever. Perhaps Fortescue, after the fatal field of Tewkesbury, when he lay a prisoner in the Tower, found consolation in the promise of the Psalmist: “The steps of a good man are ordered by the Lord; though he fall, yet shall he not be utterly cast down, for the Lord sustaineth him with his hand.” For once at least the promise came true. Fortescue lived his last years in peace and honor. He saw the bloody tyrant, Richard of Gloucester, on Bosworth field, pay the penalty of his many crimes, and when the great Chief Justice passed away, a Lancastrian king was in undisturbed possession of the throne.
The Iron Age of the Common Law: From Henry VII. to the Revolution of 168816
The Yorkist kings had betrayed a tendency to use the courts for the furtherance of tyrannical ends; but Henry VII., who had been trained in the Lancastrian tradition of the independence of the judiciary, made absolutely no change in the judges after his victory at Bosworth. The avarice of this king was, however, so great that we have an instance of a melancholy practice which became common under the Stuarts. The king sold to Robert Read, a very good lawyer, the chiefship of the Common Pleas, for four thousand marks.
There are no names of great lawyers in this reign. The worthy Fineux, who became Chief Justice, had an immense practice. He was steward to 129 manors and counsel for 16 noblemen. His industry was marvelous, for he left 23 folio volumes of notes of 3,502 cases that he had managed. The growing importance of the mercantile class is shown by the elevation of Frowick, a member of a London family of goldsmiths. He succeeded Brian as Chief Justice of the Common Pleas. Thomas Whittington, a baron of the Exchequer, was a grand nephew of the famous Richard Whittington, who walked to London and who while sitting discouraged at the foot of Highgate Hill heard the prophecy of Bow Bells, and lived to become the banker of kings and the greatest of merchant princes.
Another celebrated lawyer of this time was Richard Kingsmill. A letter still extant says: “For Mr. Kingsmill it were well doon that he were with you for his authority and worship, and he will let for no maugre, and yf the enquest passe against you he may showe you summ comfortable remedy, but, sir, his coming will be costly to you.” The childlike confidence in the high-priced lawyer is touching. But the fees seem ridiculously small. We know that the Goldsmiths’ Company of London paid a retainer of ten shillings. “A breakfast at Westminster spent on our counsel” cost one shilling sixpence. Serjeant Yaxley’s retainer from the litigious Plumpton for the next assizes at York, Notts, and Derby, was five pounds, and a fee of forty marks, if the Serjeant attended the assizes.
Two interesting features of this time are the beginning of our modern law of corporations, as applied to merchant guilds and trading corporations, and the growth of law book printing. Caxton printed no law book; but Wynken de Worde printed Lynwoode’s Provinciale, and Lettou and Machlinia, trained under Caxton, printed in 1480 Littleton’s Tenures, an edition supposed to have been superintended by the author. This book was most frequently reissued; and two famous printers, Pynson and Redman, got into a savage dispute over the merits of their respective editions. In a few years the demand for law books caused the printing of some of the Year Books, and the publication of the Abridgments or Digests of Statham and Fitzherbert. The New Natura Brevium, St. Germain’s Doctor and Student, Fitzherbert’s Diversity of Courts, and Perkins’ Profitable Book, soon appeared. The Year Books grow more and more scrappy, until under Henry VIII. they pass away. But in these latter years they are sad productions. The reporters have lost their French. Such words as “hue and cry,” “shoes,” “boots,” and “barley,” are not turned into French. The law French degenerated until it resembled modern phonetic script. A learned lawyer wrote in this wise: “Richardson, C. J. de C. B., at Assizes at Salisbury in summer 1631, fuit assault per prisoner la condemne pur felony; que puis son condemnation ject un brickbat a le dit justice que narrowly mist. Et pur ceo immediately fuit indictment drawn pur Noy envers le prisoner et son dexter manus ampute et fixe al gibbet sur que luy mesme immediatement hange in presence de court.” The matter of reporting, however, was now taken up by well-known lawyers and judges. Anderson, Dyer, Owen, Dalison, Popham, Coke, Plowden, Bendloe, Keilway, and Croke have left valuable reports, all in Norman French.
The evidence all points to a complete breakdown in the jury system at this time. The Star Chamber court merely continued a jurisdiction long existent in the king’s council; but some portion of the jurisdiction, such as that over corruptions of sheriffs in making jury panels and in false returns, over the bribery of jurors, and over riots and unlawful assemblies, was now put into statutory form. Yet the court would not allow even Serjeant Plowden to argue that it was confined in its jurisdiction by the words of the statute. The court was at first a most excellent engine for particular cases, and filled a great public necessity, but under the later Tudors and the Stuarts it became an engine of tyranny.
This period was characterized in the criminal law by most shameless oppression in all political cases. The unrestrained rule of Henry VIII. and Elizabeth shows many a cruel instance of judicial sycophancy. Yet it is a fact that both these rulers were always popular among the lawyers. Even to-day, on every state occasion at Gray’s Inn, “the glorious, pious, and immortal memory” of Queen Elizabeth is toasted by the benchers, the barristers, and the students rising, three at a time, and taking up the toast in succession. Yet it was Henry VIII. who reduced to an infallible system the art of murder by the forms of law. The judges certified Anne Boleyn to be guilty of high treason, because she was reported to have said the king never had her heart. A jury found the Earl of Surrey guilty of high treason, because he quartered the arms of Edward the Confessor; it is needless to say that Edward never had a coat of arms. The grey-haired, blameless Countess of Salisbury was executed, because her son Reginald Pole had become a Roman cardinal. The king adopted the ingenious methods of Chinese justice, by which, if the offender is not available, his nearest relative suffers in his stead. The judges certified that Catherine Howard, Henry’s fifth queen, was guilty of high treason, because she was not a virgin when she espoused the elderly and battered rake. Cromwell, Earl of Essex, committed high treason, because he had not warned Henry that Anne of Cleves, the king’s fourth bride, was hideously ugly.
Even torture was resorted to in criminal trials. Fox, in his Book of Martyrs (which is embellished by numberless falsehoods), says that Sir Thomas More tortured a prisoner. Elizabeth ordered Campion the Jesuit to be put upon the rack; and Chief Justice Wray presided over the trial. Throgmorton was convicted on confessions obtained by threats of torture. The evidence, where any was taken, was often worthless hearsay. The trial of Sir Thomas More was a travesty on justice. But the conviction of Fisher, Bishop of Rochester, stamps the judges with infamy. In that trial it appeared that Bishop Fisher, mindful of the act of Parliament which made it high treason to dispute the king’s headship of the Church, had steadily refused either to admit or deny the king’s supremacy. At last the Attorney General, Richard Rich, who by the most degrading subserviency to the humors of the king had gained preferment, was sent to Fisher in the Tower. He told the Bishop that he came from the King, who desired to know for his own information Fisher’s real opinion upon the disputed point. The Bishop spoke of the danger arising from the act of Parliament, but Rich assured him that no advantage would be taken of him and gave him the promise of the King that his answer would never be divulged. Thereupon, the Bishop stated that he thought an act of Parliament could no more declare the King head of the church than it could declare that God was not God. Fisher was at once brought to trial; Rich gave the sole evidence against him; and the judges allowed the Bishop to be convicted and executed. It is said that the judges shed tears when the saintly old man was condemned; but that conduct simply adds to their infamy. Sir Thomas More was convicted and brought to the block upon the very same kind of testimony.
Yet during this whole period the law provided even-handed justice as between one private citizen and another. The reports of Chief Justice Dyer, Chief Justice Anderson, and Serjeant Plowden, during the reign of Elizabeth, abundantly prove the fact. In ordinary criminal trials the law was growing much more lenient. It was only when the government was urging the prosecution that the tyranny of the Tudors and Stuarts left the individual no hope against the Crown. Judicial tenure became dependent upon subserviency to the wishes of the executive. Judicial appointments were given solely to those who pledged themselves to the royal designs. The real history of the law is found in the bloody records of the State Trials. The processes of law are used by the government with almost cynical indecency. The baronage was destroyed, and the great mass of the people, the cities and the country gentry, eagerly supported the royal authority.
Before passing from the reign of Henry VIII. we should notice Lord Chief Justice Montague, who founded a powerful family, and is now represented by the Duke of Manchester, the Earl of Sandwich, and the Earl of Wharncliffe. Another of Henry VIII.’s judges was John Spelman, the grandfather of the celebrated antiquary, Henry Spelman. He is not specially noted for his judicial utterances, but he became by one wife the father of twenty children.
Under Elizabeth, those unfortunate gentlemen upon whom the Queen had showered her favors were in peculiar peril. Anyone of her numerous lovers who had the temerity to take a furlough suffered for high treason. The Earl of Hertford was so misguided as to marry a wife. Although he prudently went abroad, the bride was thrown into the Tower, and when the Earl returned, he also was imprisoned. The Queen had the marriage declared void, and fined the Earl fifteen thousand pounds. The young Earl of Arundel had a similar but more trying experience, when he became reconciled to his wife after having been Elizabeth’s favorite. He was condemned to death, but was saved by the Queen’s ministers. Hatton, who became chancellor through the graces of his person, had the good sense to remain unmarried; and the Earl of Leicester kept his royal mistress’ favor by forgetting his duties as a husband. The Duke of Norfolk was convicted because he was suspected of a desire to marry the Queen of Scots. That Queen was executed after an absurd trial before the judges. The Secretary Davidson, who at the command of Queen Elizabeth had issued the warrant for the execution of the Queen of Scots, was savagely prosecuted and imprisoned for life.
The religious controversies fanned the cruel instincts of the age. Under Henry the faithful Catholics suffered the worst oppressions. The chief tool of Henry VIII. in these matters was Thomas Audley, who was a trained lawyer and succeeded More as Lord Chancellor. He devised those laws which imposed upon every man’s conscience the most contradictory oaths. It was a penal offence to acknowledge the Pope, yet it was no less penal to deny a single article of the Romish faith. Whoever was for the Pope was beheaded and whoever was against him was burned. The legislation that plundered the church was Audley’s work, and he selected for himself a rich portion of the spoil. The priory of Christ Church in Aldgate became his town house. He claimed the wealthy monastery of Walden, representing that he had sustained great damage and infamy in serving the King. On the ruins of that abbey his grandson Thomas Howard erected the stately Elizabethan mansion of Audley End.
When the Catholics returned to power under Mary, the Protestants in their turn suffered the penalties of heresy. One trial, however, stands out in this reign as the only instance where, under the Tudors, a prosecution for high treason resulted in a verdict of not guilty. Sir Nicholas Throckmorton was prosecuted by the learned Dyer, then Attorney General. The defendant completely outtalked the Attorney General, and made him appear something of a simpleton. He modestly compared himself to the Savior, and pictured Dyer in the character of Pilate. His self-confidence enabled him to interrupt Chief Justice Bromley’s charge to the jury. Throckmorton craved “indifferency” from the judge, and helped out the judge’s poor memory by his own recital of the facts. The jury that acquitted Throckmorton was imprisoned and heavily fined.
The judges, who were Protestants, on the accession of Mary conveniently became Roman Catholics; one of them, Sir James Hales, had scruples but was induced by his associate, Judge Portman, to recant. This act so worked on Hales’ conscience that he drowned himself. The coroner’s jury returned a verdict of suicide; and in two cases17 a number of hair-splitting subtleties were uttered by the court as to the effect of the suicide in forfeiting the Judge’s estates. Shakespeare makes the learned gravediggers in Hamlet discourse over Ophelia in words that are almost a literal parody on the arguments of the judges.
Elizabeth’s reign produced one very great judge. James Dyer was really appointed to the bench under Mary, but the most of his judicial service was under Elizabeth. He presided in the Common Pleas for twenty-three years. He took no part in the disgraceful political trials of this reign, but directed his court with efficiency and learning. The poet Whetstone has these lines upon Dyer:
John Popham offers a remarkable contrast to Dyer. Of high birth, educated at Oxford, he fell into evil ways while at the Middle Temple. He even resorted to the calling of a highwayman to replenish his purse. He reformed, however, and became a consummate lawyer; he was made Solicitor General and Speaker of the House of Commons. In regular order he became Attorney General, and as such took the lead in many state trials. He prosecuted Tilney, and caused Chief Justice Anderson, one of the greatest lawyers of the reign, to charge the jury on wholly insufficient evidence that the defendant was guilty of an attempt upon the Queen’s life. He attempted to prosecute Mary Queen of Scots; but Hatton, the Chancellor, took the work out of Popham’s hands. Both Elizabeth and Hatton were violently inflamed against the Stuart Queen, on account of the ridicule she had heaped on the love affair of the Virgin Queen and her Chancellor. Even the learned but apologetic Foss is compelled to say that the warmth of Elizabeth’s letters to Hatton “would be fatal to the character of a less exalted female.” On the trial of Knightley, a Puritan, who in temperate language had published some observations on the due observance of the Sabbath, Popham contended that the defendant, though guilty only of a technical violation of a royal proclamation and for that reason not guilty of an indictable offence, could yet be prosecuted in the Star Chamber. He sagely observed as to the defendant’s excuse for publishing his pamphlet: “Methinks he is worthy of greater punishment for giving such a foolish answer as that he did it at his wife’s desire.” When Popham became Lord Chief Justice he showed his prejudice against his former calling by an unexampled severity against highwaymen. On the trial of Essex he curiously mingled the functions of witness and judge, and in his summing up out of his own knowledge furnished the jury with statements of fact that had not been testified to by any witness. By his exertions at the bar he accumulated an immense estate amounting to ten thousand pounds a year; but it was all squandered by his son, another John Popham.
One court—the Court of Requests—that fulfilled a very important function during this period has long been forgotten. It was a court for civil causes—a companion court to the Star Chamber (which devoted itself to criminal cases). Its duty was to hear the causes of those suitors who were denied justice in the common law courts. Wolsey established one branch of the court at Whitehall, while another branch followed the sovereign. Wolsey’s fame as a churchman has wholly obscured his high reputation as a judge. In the court of chancery, in spite of his manifold duties as Prime Minister, he was regular and punctual, and his decrees were invariably sound. He made the Court of Requests emphatically a court to redress the injustice of jury trials. Those who failed before juries on account of the corruption of the panel or the power of their adversaries found themselves protected in the Court of Requests, which followed the chancery practice and was not hampered by a jury. Here the tenants of land appealed for justice against their landlords, here the copyholders sought relief against the enclosures of the commons and waste lands of the manors. The Protector Somerset owed his fall to his active intervention against the landholders; and the strict impartiality of Wolsey’s justice and the sternness with which he repressed the lawlessness of powerful nobles aided in his destruction. The Court of Requests was in continual collision with the common law courts. Coke invented certain imaginary judgments in order to destroy it. But the court held on, and in 1627 Henry Montague, a grandson of the Chief Justice, a very able lawyer, came to preside in this court, and gave it such a high reputation that it had almost as many suits and clients as the chancery. Blackstone18 tells us that this court was abolished in 1640; but he is mistaken, for in 1642, in sixteen days’ sittings, the court made 556 orders. It passed away in the turmoils of the civil war.
The jealousy of the common law courts toward the chancery culminated in Henry VIII.’s Statute of Uses, which attempted to convert every use or trust in land into a legal estate in the beneficiary; this was followed by the Statute of Enrollments requiring all conveyances of freehold by bargain and sale to be recorded in a public office. But the chancery judges and lawyers soon “drove a coach and four” through this act of Parliament; and by means of a bargain and sale for a lease, which the statute executed, followed by a release, which did not require recording, they abolished livery of seisin, as well as the recording of deeds. The Statute of Uses also abolished all uses to be declared by the feoffor’s will. The uses declared in the will had been sedulously protected by the chancery court. But when this method of devising lands was abolished by the Statute of Uses, it became necessary to pass the Statute of Wills. Both Coke and Bacon thought that the Statute of Uses abolished all devises except those that would have been good at common law as conveyances. But the statute was construed otherwise, and the chancery lawyers imported into wills all these conveyances to uses, and thus let in the various kinds of executory devises—estates that in wills rendered nugatory all the common law rules as to remainders. All this history shows the futility of attempting to control a natural development, by means of statutes.
In many ways the years of the first two Stuart kings are the saddest in the history of the law. The servility of the judges was no less marked than under the Tudors. As an added evil, judicial offices were openly made the subject of bargain and sale. Henry Montague gave to Buckingham’s nominee the clerkship of the court, worth four thousand pounds a year.19 Coventry paid Coke two thousand angels for his influence in securing a judicial appointment. The chiefship of the Common Pleas cost Richardson seventeen thousand pounds. Sir Charles Caesar paid fifteen thousand pounds for the mastership of the rolls. Henry Yelverton gave the King four thousand pounds for the office of attorney-general—a place for which Ley, afterwards Chief Justice, vainly offered ten thousand pounds. Judge Nichols refused to pay for his place, and James I. always referred to him as “the judge that would give no money.” The fifteen serjeants called in 1623 each paid the King five hundred pounds. Under Cromwell, the pious Lord Chief Justice St. John had the granting of all pardons to delinquent lawyers, which netted him forty thousand pounds; nor did he scruple to receive bribes for places under the Protector. Under James II., the young daughters of the leading citizens of Salisbury, who had strewed flowers before the rebel Monmouth, being technically guilty of high treason, obtained pardons by paying money to the Queen’s maids of honor, to whom the King had given the pardons. That great and good man William Penn acted as the agent of the needy ladies in collecting the tribute.
The tone of adulation used by lawyers and judges toward the sovereign is almost incredible. Rich compared Henry VIII. “for justice and prudence, to Solomon; for strength and fortitude, to Samson; and for beauty and comeliness, to Absalom.” Bacon in a learned treatise felicitates James I. (who was little better than a drooling idiot), upon the deep and broad capacity of his mind, the grasp of his memory, the quickness of his apprehension, the penetration of his judgment, his lucid method of arrangement, and his easy facility of speech. The virtuous Coke claimed that King James was divinely illuminated by the Almighty. But this was the tone of the age. To Shakespeare, Elizabeth was “a fair vestal” and “a most unspotted lily.”
The vices of the age are summed up in the rivalry of its two greatest lawyers, Bacon and Coke—the latter, the most learned of lawyers, but narrow, cruel, and unscrupulous; the other, of large insight, capacious intellect, but also little troubled by scruples.
Coke, the elder of the two men, was Solicitor-General, with a large practice and ample fortune, when Bacon, with his great family advantages, tried to gain the office of Attorney-General against him. Coke stood in the line of preferment. He bitterly resented Bacon’s nickname of the “Huddler”—not an undeserved name for the author of a book like Coke upon Littleton. Next they became rivals for the hand of the widow of Sir William Hatton, a beautiful woman, only twenty years old, with an immense fortune and great pretensions to fashion. The old and wrinkled Coke, a six months’ widower, prevailed. But while the lady was willing to marry Coke, she refused to espouse such an elderly scarecrow at a church wedding. So Coke married her in a private house, and thereby violated the law. His plea when prosecuted was ignorance of the statute. Perhaps this is the real reason for Coke’s oft quoted statement as to statute law. But Bacon made a fortunate escape, and had the satisfaction of enjoying Coke’s domestic infelicities. Lady Hatton refused, after several quarrels, to live with Coke; she further refused to take his name, which she insisted on spelling “Cook.” She refused even to let Coke see the daughter she had borne him, and turned him away from her door.
Then Essex’s trial came on. Coke surpassed even himself in brutality, while Bacon deserted his benefactor. The two men soon had a public altercation in the Exchequer Court. To curry favor with the new king, James, Coke prosecuted Raleigh so savagely that even the judges sickened. The remorseless Popham protested, and such a sycophant as Lord Salisbury rebuked Coke. Thereupon Coke sat down in a chafe and sulked, until the judges urged him to go on. Lord Mansfield said long afterwards: “I would not have made Sir Edward Coke’s speech against Sir Walter Raleigh to gain all Coke’s estate and reputation.” When Coke prosecuted the Gunpowder Plot conspirators, he showed to the full his cowardly method of insulting the prisoners. Other trials were no less disgraceful. Yet, all through, worse than Coke’s brutality, is his pharisaical self-satisfaction, his pitiable, snivelling, hypocritical piety. The best excuse for Bacon is that he was engaged in a rivalry with such a man.
Coke became Lord Chief Justice of the Common Pleas in 1606, and used his place to humble and coarsely insult Bacon. But Bacon’s suppleness was ingratiating him with the King. Coke had become so puffed up that he was growing independent. Bacon induced James to put Coke at the head of the King’s Bench. Coke bitterly reproached Bacon, who replied: “Ah, my Lord, you have grown all this while in breadth; you must needs grow in height, or else you would be a monster.” Coke on the bench was fully as brutal as at the bar. In one case he told the jury that the defendant, Mrs. Turner, had the seven deadly sins—that she was a whore, a bawd, a sorcerer, a witch, a papist, a felon and a murderer.
At last Coke engaged in his famous controversy with Lord Chancellor Ellesmere, over the power of the Chancery to enjoin proceedings at law, and drew forth the masterly opinion in the famous case of the Earl of Oxford.20 Coke threatened to imprison everybody concerned; but Bacon persuaded the King that Coke was in the wrong, and the King’s Bench submitted. Bacon finally caused Coke to be suspended from office, and to be ordered to correct his book of reports, “wherein be many extravagant and exorbitant opinions set down and published for positive and good law.”
Bacon now succeeded Ellesmere as Lord Chancellor. But Coke, at the age of sixty-six, was not yet defeated. He had a young and pretty daughter; her he offered as a bride to Sir John Villiers, the brother of Buckingham. Coke’s wife fled with her child; but Coke pursued her, tore the child from her mother’s arms, and carried her off to London. Bacon was unable to help Lady Hatton. The mother in prison was compelled to submit, and the child, after a splendid marriage, was handed over to Sir John Villiers. The marriage turned out as might have been expected. The young wife eloped with Sir Robert Howard. Her only son was declared illegitimate, and did not receive the name of Villiers.
Coke received no reward for his unexampled baseness. He tried to make his peace with the King by a number of disgraceful judgments in the Star Chamber. But when his efforts met no return, he had himself returned to Parliament as a patriot. Dr. Johnson must have had Coke in mind when he made his famous definition of patriotism as “the last refuge of a scoundrel.” Thirsting for revenge on Bacon, Coke caused his impeachment and ruin. Coke lived on to be a very old man. Lady Hatton lent humor to the situation by constantly complaining of her husband’s good health. At last he died, watched over by his unfortunate daughter. He made an exceedingly pious end—thus exhibiting his total unconsciousness of his own true character.
Under Charles I., some ably conducted trials took place over the King’s attempt to raise a revenue without recourse to Parliament. The bar was independent enough to hold out against the power of the Crown. The judges ruled that a commitment specifying no offense was bad. Another decision prohibited torture of prisoners. The rules of evidence were not yet settled; but in the ordinary criminal trials, a defendant was now held not bound to give evidence against himself. Shakespeare seems to think the rule a bad one, not to be followed in the Court of Heaven; for
In the famous Ship Money case of Hampden there was a great forensic display. The Solicitor General spoke for three days, the defendant’s leader spoke four days, Oliver St. John for the defense took two days, and the Attorney General replied in three days. St. John’s argument was considered the finest that had ever been heard in Westminster Hall. But this speech was soon surpassed by the noble and pathetic plea of Strafford in his own behalf. At last the King himself was put upon trial. The leading Parliamentary lawyers, Rolle, St. John, and Whitelock, refused to sit in the court. Bradshaw, an able lawyer, was made Lord President of the illegal tribunal. The King’s line of defense was laid out for him by Sir Matthew Hale. Bradshaw tried to bully the King, but was overwhelmed by acute reasoning, a royal dignity, and a noble presence, by the King’s liberality of thought and real eloquence. In other trials, such as those of the Duke of Hamilton, the Earl of Holland, Lord Capel, and Sir John Owen, the defendants were convicted by conduct as arbitrary as anything under the Tudors. Serjeant Glyn at the trial of the gallant Penruddock rivalled Coke at Sir Walter Raleigh’s trial. The Protector Cromwell cared little for courts or law. The very men who had declaimed against ship money saw Cromwell’s arbitrary taxation. Chief Justice Rolle and the judges attempted to try the legality of such a tax; but Cromwell sent for them and severely reprehended their license, speaking with ribaldry and contempt of their Magna Charta. He dismissed the judges, saying that they should not suffer lawyers to prate what it would not become them to hear. Serjeant Maynard, who had argued against the tax, was committed to the Tower, while Prynne suffered a fine and imprisonment. Sir Matthew Hale was threatened by Cromwell’s government for his strong defense of the Duke of Hamilton and Lord Capel, but Hale replied that he was pleading in support of the law, was doing his duty to his clients, and was not to be daunted by threatenings. During the Cromwellian ascendancy, Hale, at the solicitation of the Royalist lawyers, accepted a judgeship. On the circuit he tried and condemned one of Cromwell’s soldiers for the murder of a Royalist, and had the prisoner hanged so quickly that Cromwell could not grant a reprieve. He quashed a panel of jurors when he found that it had been returned at Cromwell’s orders. The Protector, on Hale’s return to London, soundly berated him, telling him that he was not fit to be a judge.
Many legal reforms were projected during the Commonwealth, but they came to naught at the Restoration. An attempt was made (among others) to substitute the law of Moses for the common law. There was an earnest attempt to abolish the Court of Chancery, but it was frustrated by St. John. An act was passed regulating chancery practice, but it was found to be impracticable. Most of the better class of lawyers were Royalists and ceased court practice. Confiscation and seizures were the order of the day. But the Royalist conveyancers, Orlando Bridgman and Jeffrey Palmer, while they would not appear in court, enjoyed an immense chamber practice and by their new devices of family settlements, superseding entails, preserved many a Royalist estate.
The Inns of Court during the Tudor and earlier Stuart reigns had continued to enjoy great prosperity. From Fortescue’s time to Charles I., it is almost impossible to point to a single lawyer of standing who had not been preliminarily educated at Oxford or Cambridge. In the reign of Queen Mary attorneys and solicitors were forever excluded from the Inns. Henceforth only barristers were trained in those institutions, and attorneys became objects of contempt. In fact, in an order in 16 Charles II., an attorney is called “an immaterial person of an inferior character.” The instruction in the Inns continued to be the same as in Fortescue’s time. The law was now all case-law. Fitzherbert says that the whole Court agreed that Bracton was never taken for an authority in our law. In social entertainments the Inns shone. Costly feasts, magnificent revels, masks, and plays, where the royal family attended, the splendid celebrations of calls of serjeants, the feasts given by the readers, are all fully described in contemporary annals. We read of “spiced bread, comfits and other goodly conceits, and hippocras,” and the bill of supply of one of the feasts, comprising “twenty-four great beefs,” “one hundred fat muttons,” “fifty-one great veales,” “thirty-four porkes,” “ninety-one piggs,” through endless capons, grouse, pigeons and swans to three hundred and forty dozen larks, shows that the vice of the time was gluttony.
It was found necessary during this period to restrain the students. Some of the regulations are curious—the prohibition of beards of over a fortnight’s growth, of costly apparel, of the wearing of swords; and the restraints on sports point to unruly members in the Inns. It was found necessary to make attendance at the moots compulsory. The standard of attainment was raised. Ten years’ attendance was required before a call to the bar; this was afterwards put back to five years, and then raised to seven; and for three years after his call, a barrister was not permitted to practice before the courts at Westminster.
The Commonwealth time was almost destructive of the Inns, but at the Restoration they started on a new career of splendor. All the old ceremonies and practices were revived. Heneage Finch, afterwards Lord Nottingham, revived the readers’ feasts of former days. He saved the Temple walk from being built upon; and his daily consumption of wine offered an admirable example to the deep drinking young blades of the Restoration.
The two great lawyers of Charles II.’s reign were almost exact opposites. Finch, born of an ancient family, of ample fortune, living in magnificent style, princely in his expenditures, a genuine cavalier, was the very antithesis of the Puritanism of Hale. His is one of the noted names on the roll of Christ Church at Oxford. He is the second of our great forensic orators. Ben Jonson has told us of Bacon’s impressive and weighty eloquence, but it could not be compared with the silver-tongued oratory and the graceful gestures of the “English Roscius.” Finch passed through the grade of Solicitor-General, to the Attorney-General’s place, and then became Lord Chancellor, with the title of Lord Nottingham. He was a model of judicial decorum, calm and patient in hearing, prompt in the business of his court, sitting to decide cases while racked with the pain of gout. Careful in the framing of his judgments, and at the same time, a finished man of the world, he stands unrivaled except by Lord Mansfield.
When he came to the marble chair, equity jurisprudence was a confused mass of unrelated precedents. While he invented nothing new, he introduced order into the chaos and settled the great heads of equity in their enduring form.
He settled, finally, the restraint upon executory interests, by his great ruling in the Duke of Norfolk’s case.21 It has been forgotten that Nottingham overruled the three chiefs of the common law courts—North, Pemberton and Montague—sitting with him. North, becoming Chancellor, reversed the case, but the House of Lords, at the instance of Lord Jeffreys (as great a lawyer as Nottingham), restored the first ruling, and reëstablished the rule against perpetuities.
Sir Matthew Hale is not such an engaging figure. He was rather a Puritan, and for thirty-six years never missed attendance at church on Sunday. He was Lord Chief Baron after the Restoration, and then Lord Chief Justice. In mere learning he was without a rival. Lord Nottingham has generously spoken of Hale’s “indefatigable industry, invincible patience, exemplary integrity, and contempt for worldly things,” and Nottingham adds, in his stately way: “He was so absolutely a master of the science of law, and even of the most abstruse and hidden parts of it, that one may truly say of his knowledge in the law what Saint Augustine said of Saint Jerome’s knowledge of the divinity—“Quod Hieronymus nescivit, nullus mortalium unquam scivit.” Hale’s preface to Rolle’s Abridgment contains the most helpful words ever addressed to students of law. The criticism, however, was urged against him that he dispatched business too quickly. And it is almost incredible that he believed in witchcraft with the utmost ignorant superstition, and tried and caused to be executed two poor old women, whom a foolish jury under his direction convicted of diabolical possession.22 It was but a few years later that another woman was tried for witchcraft before Judge Powell, a merry and witty old gentleman. Her offence was that she was able to fly. “Can you fly?” asked the judge. The crazy woman replied that she could. “Well, then,” he said, “you may, for there is no law against flying.” And so ended the trial.
A character of those times was the learned Prynne, an able lawyer, a great antiquarian authority. He assaulted everything, from long hair and actresses to bishops. First he lost his ears, then he was disbarred and condemned to the pillory. Again he lost what little of his ears had been left from the first shaving. He attacked the Quakers, then he suffered imprisonment under Cromwell; next he advocated the proceeding against the regicides, even against those who were dead, and at last rounded out his career as keeper of the records in the Tower. Equal to Prynne in fearless constancy was Judge Jenkins, the author of Jenkins’ Centuries—a most curious series of reports.
It is customary to represent the succession of judges under James II. to the time of the Revolution of 1688 as a most ignorant, depraved, and worthless set of men. But this picture is badly overdrawn. It is true that the stately and dignified Cavaliers, like Lord Clarendon or Nottingham, were passing away, and that their successors were hardly their equals. Scroggs, the first Chief Justice, owed his elevation to his ability as a forensic orator. Once from the bench he told the listening mob that “the people ought to be pleased with public justice, and not justice seek to please the people. Justice should flow like a mighty stream, and if the rabble, like an unruly wind, blow against it, the stream they made rough will keep its course.” And so Scroggs rolled out his periods, making a splendid plea for judicial independence. It is a sign of the times that high prerogative rulings, which seemed perfectly natural under Elizabeth, should arouse such violent public resentment. Scroggs lost all influence with juries; so he was dismissed, and Francis Pemberton took his place. This man, born to a large fortune, had squandered it within a few years after attaining his majority, and awoke one day to find himself imprisoned under a mass of judgments. But in his five years’ imprisonment he made himself a consummate lawyer. He obtained a release from prison, and soon acquired eminence and wealth at the bar.
But not long after Pemberton’s elevation to the bench, it was determined to forfeit the charters of the City of London, so as to gain control of the panels of jurors, who were selected by a sheriff, elective under the charters. This advice had been given to the King by the noted special pleader, Edmund Saunders. This remarkable man had had a singular career. Born of humble parents, he had run away from home, drifted to London, and found shelter as an errand boy at Clement’s Inn. He learned to write, became a copying clerk, and in this way gained an insight into special pleading. The attorneys induced him to enroll himself at an Inn of Court. In due time a barrister, he made himself the greatest master of common law pleading that system has ever known. He had no political opinions, nor did he seek riches or advancement. Witty, genial and gay, he had always around him a crowd of students, with whom he was putting cases, answering objections and debating abstruse points. His physical appearance was repulsive. Brandy was his constant drink, varied by a pot of ale always near him. Drunkenness and gluttony had caused a general decay of his body. Hideous sores and an offensive stench made his presence an affliction. Yet the government had such need of his services that North, the Lord Keeper, actually asked him to dinner. Saunders drew the pleadings in the great Quo Warranto case, and caused the attorneys for the City of London to plead upon a point where they were sure to be defeated. Thereupon Saunders drew up an ingenious replication, to which the city demurred. Just as the cause was about to be argued Pemberton was removed and Saunders was appointed, and (incredible as it may seem) he then heard argument upon his own pleadings. The cause was argued for two terms, but when, at the third term, judgment was delivered, Saunders lay dying in his lodgings. His best memorial is his book of reports, the most perfect specimen of such work in our legal literature.
Saunders was succeeded, after an interval, by the noted Jeffreys, popularly considered the worst judge that ever sat in Westminster Hall. But this popular belief cannot be taken in place of the sober facts. He was of an ancient family in Wales. He received the usual education of his time, and attended at Trinity College, Cambridge. He studied at the Middle Temple, and was admitted to the bar at the age of twenty. He at once leaped to a commanding position. He was made Common Serjeant, and later Recorder of London. This was due to his splendid legal talents. He had one of those rare minds which under great masses of evidence seize upon the real issue. He had a marvelous skill in advocacy, and a flowing, impassioned, magnetic eloquence. Added to this was an overwhelming bitterness of denunciation that sometimes appalled his hearers. We know that Sir Matthew Hale was a good judge of lawyers, and we are told that Jeffreys gained as great an ascendancy over Hale as ever counsel had over a judge.
To his intellectual gifts, Jeffreys added a noble and stately presence. There are three portraits of him; the first represents him when thirty years old, the next is of Jeffreys in his full robes as Lord Chief Justice, the last shows us the man in his robes as Chancellor. It is a very noble, delicate, and refined face that looks out from Kneller’s canvas. There is birth, breeding, distinction in every line. He must have been a great lawyer; for to Hale’s testimony we may add that of the accomplished judge, a confirmed Whig, Sir Joseph Jekyll; of Speaker Onslow, who bears testimony to his ability and uprightness in private matters; of Roger North, who hated Jeffreys but was forced to admit: “When he was in temper and matters indifferent came before him, he became his seat of justice better than any other I ever saw in his place.” But best witnesses of all are his recorded judgments. The incomparable stupidity of Vernon, the reporter, has destroyed the value of Eustace vs. Kildare and of Attorney General vs. Vernon;23 but his decision in the East India Company’s case is admitted by all lawyers to be a marvel of close legal reasoning. In the House of Lords he saved the Duke of Norfolk’s case, and even his political enemies after the Revolution did not reverse his cases. A master of the common law, he was yet a great chancellor. He promulgated a set of rules in chancery, the best since Bacon’s time. Other of his decisions can be found in the reports of Sir Bartholomew Shower, an excellent lawyer.
No doubt Jeffreys was a hard drinker. So was Lord Eldon, so were many able lawyers in our own country. He was no doubt savage and overbearing at times. He rode roughshod over defendants and their counsel. He hated Puritans and all their works. He was often cruel and remorseless. But even Lord Hale enlivened trials by breaking forth upon witnesses: “Thou art a perjured knave, a very villain! Oh, thou shameless villain!” Jeffreys’ “Bloody Assizes” is the greatest stain on his memory; but no innocent person was punished in those trials. The worst that can be said of Jeffreys may be read in Macaulay’s History. Much of it is true; some of it is untrue; but it all belongs to the spirit of that age of savage disputes and rancorous political hatreds. Yet, after all, Jeffreys was but one of the five judges who sat together on that circuit.
To see Jeffreys at his best, we should see him in the trial of Lord Grey de Werke. Jeffreys’ skill and adroitness in putting in the evidence against the great Whig lord, the brazen seducer of his own wife’s sixteen-years-old sister; his gentleness and exquisite suavity toward his witnesses, his few words of apology to the court for the tears of the victim’s mother, are models of forensic decorum. In his tact, his delicate management, never a word too much, now and then putting a question to bring out some point that had been overlooked, Jeffreys shows throughout the skill of the master.
He prosecuted Lord William Russell and convicted him. His great arts of advocacy simply overwhelmed the defendant; for Russell had a fair trial, and the jury was calmly charged by Pemberton. Jeffreys as judge tried Algernon Sidney, who was convicted upon evidence. Nothing in Jeffreys’ career can compare with Coke’s conduct at Raleigh’s trial, or with Glyn’s when he judicially murdered Penruddock. Even in Lady Lisle’s case, she was condemned on actual, credible testimony, offered in accordance with the rules of evidence.
When Jeffreys returned from his campaign in the west he was made Lord Chancellor and given a peerage. Wright succeeded as Lord Chief Justice, and before him came on the famous trial of the Seven Bishops. The besotted King attempted to abolish the Test Acts by proclamation. Both dissenters and churchmen united against a declaration which would tolerate Roman Catholics. The bishops remonstrated, and the King, against Jeffreys’ advice, caused the bishops to be indicted. The trial came on before the King’s Bench. The defense mustered a great array of counsel. Pemberton, a cashiered chief justice, Levinz, another dismissed judge, who had gone the bloody circuit with Jeffreys, Heneage Finch, son of Lord Nottingham, and Somers, afterwards the great Chancellor, appeared for the defense. Such a throng never appeared again at a trial in Westminster Hall, until Warren Hastings came back from India to meet an impeachment. The bishops were acquitted, and Wright and his fellows were disgraced.
The King filled up his court again; and the legality of martial law in the army then came on for trial before Chief Justice Herbert. At that day in England, in case of a desertion or mutiny, the army officers were powerless, unless they called in the sheriff. But Chief Justice Herbert refused to yield to the King’s wishes, and held that the army could not be governed by martial law. Again the King cleaned out his court. One of his new tools was Christopher Milton (a brother of the poet). The King called upon his judges to hold that the King by proclamation could dispense with acts of Parliament. Jones, the Chief Justice, refused. He told the King that he was mortified to think that his Majesty thought him capable of a judgment which none but an ignorant or dishonest man could give. The King said that he was determined to have twelve lawyers for judges, all of his way of thinking. Jones replied: “Your Majesty may find twelve judges of your mind, but never twelve lawyers.” But the King had now exhausted the public indulgence and he was soon in flight to France.
It would perhaps seem, from the record of this period, that little good could have been accomplished in the development of the law. But this inference would be an error. We have noticed, at the opening of this epoch, a general feeling that jury-trial was worthless. The work accomplished by this age was to improve the methods of jury trials so as to make them promotive of justice. The first thing done in this later period was to make the jury independent, by establishing the rule that they could not be fined or imprisoned for what was conceived to be a false verdict. The second improvement was to give the courts power to grant new trials, and thus to place the verdict under the control of the judge. The final improvement was to establish the rules of evidence. These rules were so framed and moulded as to exclude from the jury all testimony which would improperly influence them, or which did not depend for its credibility upon the veracity of a sworn witness. Above all, the jury was required to proceed solely upon evidence offered in open court, which had been subjected to the test of a cross-examination. It was in the bad times of the Stuarts that these rules were settled. Singularly enough, the first case that is authentic, in excluding hearsay, is a decision by Lord Jeffreys. Although the rules of evidence were amplified by Lord Mansfield, they have not been changed, except by statute, from that day to this. The greatest of forensic orators said in Hardy’s case: “The rules of evidence are founded in the charities of religion, in the philosophy of nature, in the truths of history, and in the experience of common life.” Surely, a generation of lawyers which created and formulated these rules is entitled to some grateful remembrance, and of that generation, the greatest common lawyer was, undoubtedly, the outlawed Jeffreys.
The Period of Reform: From William III. to Victoria24
As soon as the judges who had served under James II. had been removed, after the Revolution of 1688, a return was made to the old Lancastrian doctrine that judges hold their office during good behavior, not during the pleasure of the crown. Some of the judges who had refused to obey the mandates of the King, and in consequence had suffered dismissal, were now restored. Since the Revolution there has never been a removal of a judge by the executive power, nor a single known instance of a corrupt decision. The overwhelming importance of the House of Commons has since 1688 given the great prizes of the profession to lawyers who have been useful to their party in Parliament. The regular preferment for an able lawyer has been from a seat in the Commons to the solicitor-generalship, then to the attorney-general’s place, and finally to the chiefship of one of the law courts or to the office of Lord Chancellor. But the professional and political preferment has invariably come as the reward, not the cause, of professional eminence. Lord Somers, Sir John Holt, Lord Talbot, and Lord Hardwicke were very great lawyers before they received any political reward. Later Mansfield, Thurlow, Eldon, Erskine, Loughborough, Melville, and Ellenborough had become leaders of the bar, before they entered upon a parliamentary career. In the last century, Lyndhurst, Brougham, Tenterden, Cottenham, Denman, Campbell, Westbury, Cockburn, Selborne, Cairns, Coleridge, and Russell all gained their professional and judicial preferment by great legal attainments. The office of Master of the Rolls has been considered one of the great professional rewards; but the puisne judges in the various common law courts, and later the vice-chancellors, and still later the lords justices of appeal, have not had any immediate connection with parliamentary life.
The wealth of information which we have in regard to lawyers and judges after the Revolution enables us to see far more clearly than in the case of the older judges the characters of the various great lawyers.25 But no doubt the same phenomena are noticeable in the preferment of lawyers to the bench that we should find in the earlier centuries if we had more accurate information. The race has not always been to the swift nor the battle to the strong. Often a leather-lunged, heavy-witted mediocrity, distancing brilliant competitors, has gained a seat upon the bench. Among the judges and lawyers, the same traits we notice to-day were prevalent in these former times. The jealousies among lawyers, the favoritism of judges toward some chosen member of the bar, are continually appearing. A mediocre individual, uttering dull wooden platitudes from the bench, has gained the reputation of a great judge, because his mind was on a level with that of a majority of the bar, although to the ablest lawyers his stupidity has been a constant irritation. The celebrated advocate, on the other hand, in certain instances, when he has reached the bench, has known too much law for the ordinary practitioner; he has been too quick, has leaped to conclusions, has taken one side or the other, and, unconscious of partiality, has been practically unfit to properly weigh conflicting evidence or authorities. The laborious lawyer, who has attained the bench, has often begun a hunt for foolish and irrelevant matters, and has impeded business by a morbid inability to formulate his own conclusions. The haughty, impatient, arbitrary, and overbearing judge, insolent to the bar and savage toward the witnesses, has not been wanting. The judge who has proclaimed his desire for less law and more justice, who has brayed about the people’s and the poor man’s rights, and has violated settled principles and become a judicial demagogue, has needed the rebuke and correction of higher tribunals. Through all judicial history, it is apparent that the true judicial mind, which hears the whole case before it decides, which is capable of suspending judgment until in possession of every consideration of value, which is absolutely unaffected by mere temporary or irrelevant matters, which looks at every case both from the standpoint of the general, fixed, and settled rules of law, but at the same time with an acute sense for right and a real desire to advance justice, is the rarest type of the human intellect.
But one fact about lawyers is a noticeable one. For centuries the common-law lawyers had been a race of men who took little interest in any science outside the common law itself. Noticing this narrowness of mind joined to acute understanding and wide learning in their own field, the great scholar Erasmus had remarked of the lawyers of Henry VII. and Henry VIII., that they were “doctissimum genus indoctissimorum hominum.” So far as we can ascertain, few of them knew anything of any other system of law. But a change was beginning to appear. Chief Justice Vaughan in Charles II.’s reign was once sitting in his court between his two puisnes, when a question of canon law arose. Both puisnes with some pride at once disclaimed any knowledge of that learning, but the Chief Justice, holding up his hands, exclaimed: “In God’s name, what sin have I committed, that I am condemned to sit here between two men, who openly admit their ignorance of the canon law?” Lord Nottingham had illustrated many of his decisions by references to the civil law. Holt obtained the reputation of enormous learning, by his knowledge of the Roman law. In short, from the Revolution onwards it will be found that the greatest of English lawyers are turning to the Roman jurisprudence and grafting its rules upon the indigenous law. Even Bracton comes into his own again, as the one worthy writer upon our jurisprudence.
As we have noted in preceding essays, the law had hitherto attempted its own reform. Without the aid of statutes, the immense array of common-law actions had been transformed into the few actions which we have in contract, in tort, and for the recovery of specific property. The whole chancery system was a natural, not a legislative growth. Even where statutes had attempted some interference with the law, they had produced little result. A fact that is most difficult for the lay mind, or for the inadequately informed legal mind, to comprehend, but is proven by the history of the law, is that the distinctions between law and equity, the distinctions between forms of action, inhere in the very nature of duties and rights and cannot be obliterated by legislation. While the procedure may be generalized, while the forms of actions may be reduced to one general form, while but one tribunal may be provided for applying to a controversy all the relevant rules furnished by the law, nevertheless we must still talk of contract and tort, of law and equity, of damages and specific relief.
The Revolution produced no changes in the legal procedure, except two. The first gave to persons charged with high treason the benefit of counsel and the right to produce witnesses; but as to all defendants prosecuted for felony the age was content to believe that the government would produce all the witnesses and that the presiding judge would act as counsel for the prisoner. The second was a statute of jeofails proposed by the new Chancellor, Lord Somers. Many of the original provisions of the bill were cut out by amendments, but as it passed it contained some improvements. It required a special demurrer to reach errors of form, but the procedure was practically already in that condition. It saved the statute of limitations from running in favor of persons absent from the realm. It gave the creditor the right to sue upon the bond given to the sheriff for the release of the debtor. It prohibited the issuance of process in chancery until the filing of the bill. This last requirement merely enacted a chancery rule of Lord Jeffreys. But a really important feature of the new law was that a defendant was given the right to plead to the declaration as many pleas as he had defences. Another provision enabled the grantee of land to sue a tenant in possession without proving an attornment. There were other provisions of the law, but the foregoing show its general scope. After its passage the energies of reform were exhausted, and all future changes and improvements, until the Benthamite agitation, were made by the judges themselves.
The new Chief Justice, Sir John Holt, had carefully studied the civil law. He was able to introduce much of the law merchant under the guise of custom. Holt’s decisions became a part of the common law, although the form in which the change was made rendered it necessary in many of our States to provide by statute for the rights of the indorsee of negotiable paper. Under other heads of the law, the same judge was able to assist the narrow rules of the common law by the enlightened distinctions of the civil law. In Coggs vs. Bernard26 the mediaeval law of assumpsit, shown in the opinions of the puisnes, met the civil law in the opinion of Holt, and Bracton was rehabilitated by the Chief Justice as an authority in the English law.
The beginnings of a law of agency are apparent in the decisions upon the new business of banking. During the Middle Ages and up to the Restoration, the strong boxes of the merchants and landowners and their bailiffs provided the only banking facilities; but the practice adopted by goldsmiths of keeping the money of depositors, and the use of orders upon goldsmiths, which are our modern bank checks, came into vogue. The notes of goldsmiths began circulating as money, while the Bank of England, which was founded soon after the Revolution, began to issue its notes. The Childs’ banking house, originally a goldsmith’s shop, still remains as the oldest banking business in England.
The earlier cases27 treat all questions of agency in the terms of the law of master and servant. Historically, of course, it is impossible to separate the law of servants from that of agents; yet we now recognize the plain distinction in legal usage that the word “servant” is used only in regard to a liability in tort, while the word “agent” is used as to a liability arising out of a contract or its correlative, deceit. The word “agent,” borrowed from the continental jurisprudence, gradually came into common use, but the manner of the development of the law of agency has much to do with the confusion which arises even to-day from the failure to discriminate between an agent and a servant, in the above sense.
In 1733, during the chancellorship of Lord King, the lawyers were finally compelled to use their mother tongue. The record now spoke in English instead of in Latin, and the declaration and subsequent pleadings entered upon the roll now became literal translations of the old Latin forms. The advocates of the bill were forced to overcome a strong opposition from the judges. Lord Chief Justice Raymond on behalf of all the judges opposed the change. In later times both Blackstone and Ellenborough regretted the Act. Ellenborough asserted that it had a tendency to make attorneys illiterate; but surely a man must be misguided, indeed, who considers “law Latin” a literary language.
The influence of the civil law was constantly increasing. Lord Talbot, the best beloved of all the English chancellors, was learned in the civil law. Lord Hardwicke studied the Corpus Juris Civilis and the Commentaries of Vinnius and of Voet. Lord Camden pursued the same systematic study of the civil law. Many of Thurlow’s judgments are adorned by illustrations taken from the civil law; though it is said that those portions of his opinions were supplied by the learned Hargrave, who acted as Thurlow’s “devil” for some years.
Yet none of these men did anything for law reform. Hardwicke, as great a chancellor as Nottingham or Eldon, never proposed a single reform. Henry Fox, speaking of Hardwicke, said: “Touch but a cobweb of Westminster Hall, and the old spider of the law is out upon you, with all his younger vermin at his heels.” Lord Camden spent his energies in an attempt to make the jury judges of both law and fact in prosecutions for libel. In our helplessness in the presence of unjustifiable libels on every sort of person, we are to-day much inclined to regret his work and the subsequent legislation. Camden’s insistence upon punitive damages has made a large figure in the subject of our damage law. Lord Thurlow invented and perfected the equitable doctrine as to the separate estate of married women, which is the basis of to-day’s married-women statutes. Lord Loughborough’s attitude toward law reform is defined by his undisguised horror of Bentham; while Lord Eldon steadily set his face against every proposal of reform.
The eighteenth century in Europe was the age of a benevolent autocracy in politics and a cultivated optimism in literature. The latter trait is markedly apparent in England in the legal sphere.
The great mass of the nation and of the lawyers was amply satisfied with the English constitution and its laws. The language used by the worshippers of our own constitution is apparently borrowed from the older worship of the English constitution. Blackstone delivered his famous lectures at Oxford in 1763, and published them from 1765 to 1769. In a broad and comprehensive way, with ample learning, he sketched the whole field of the law. The literary charm of his easily flowing periods made his Commentaries general reading among even laymen. Criticism had not demonstrated any of Blackstone’s errors or fallacies. Englishmen, reading the lectures, swelled with pride to hear that “of a constitution, so wisely contrived, so strongly raised, and so highly finished, it is hard to speak with that praise, which is so justly and severely its due.” After a description of its solid foundations, its extensive plan, the harmony of its parts, the elegant proportion of the whole, Blackstone with impressive eloquence exhorted his countrymen: “To sustain, to repair, to beautify this noble pile, is a duty which Englishmen owe to themselves, who enjoy it, to their ancestors, who transmitted it, to their posterity, who will claim at their hands this the best birthright and the noblest inheritance of mankind.”
But even as Blackstone was writing these sonorous periods, two great reformers were at work. One of them, Lord Mansfield, was working by the slow and careful method of judicial legislation. The other, Jeremy Bentham, was storing up that great supply of reforming material, which was to supply Brougham and Romilly in the next generation. Mansfield’s work is not found in the statutes; it is recorded in the law reports. Bentham derided the judge-made law, and maintained that all the law should be written on the statute books. Mansfield followed the traditional practice of the English lawyer; Bentham turned to the continental codifiers. Mansfield extended and transformed old principles, building up whole branches of the law by the expansion of accepted rules. Bentham’s idea of a change was to wipe out all existing law, by a set of codes whose words should be the sole rule of decision.
William Murray, the first Earl of Mansfield, was born in 1705. The fates conspired to make him the greatest of lawyers. His family was almost the oldest in Scotland. Compared with these de Moravias or Murrays, the Bourbons, the Hapsburgs, and the Hohenzollerns are things of yesterday; even the house of Savoy is not older. A younger branch of the Murray family had the title of Viscount Stormont, and the Chief Justice was a younger son of that house. Early in life he was sent to England, to be educated, and Dr. Johnson always accounted for his marvellous capacity by saying that “much may be made of a Scotchman, if he is caught young.” The youth was carefully educated at Winchester School, and then at Christ Church, Oxford. He was entered at Lincoln’s Inn, and while there carefully studied the civil law; he always maintained it to be the foundation of jurisprudence. He studied with no less care the common law, but he had no particular reverence for it. Its oracle, Coke, he disliked; but he took pleasure in Bracton and Littleton. He was thoroughly conversant with the commercial code of France. His knowledge of ancient and modern history was singularly accurate and profound. At the same time he cultivated his literary taste by intimate association with men of letters. His physical constitution became robust and enabled him to sustain great labor. His mental faculties were acute and well-trained, his industry untiring, his memory capacious. When we add to these qualifications a marvellous talent for oratory and a voice of silvery clearness, we have described the best qualified man who ever undertook the profession of law.
Eminence at the bar was assured. He rapidly achieved the highest professional and pecuniary success. He passed from the office of Solicitor General to that of Attorney General, and became leader of his party in the House of Commons. He chose as his reward in 1756 the post of Lord Chief Justice, and held the place until his retirement in 1788. His career upon the bench is common knowledge. The law of shipping, of commerce, and of insurance was molded by him. The common-law action of assumpsit was expanded until it embraced a recovery upon almost every sort of pecuniary obligation. The law of evidence he amplified and illustrated, leaning strongly to the view that objections to testimony went rather to the credibility than to the competency of witnesses. By one decision he created the whole law of res gestae in evidence. His broad cultivation gave him a singularly free and open mind. He could not endure the laws against dissenters or Roman Catholics. He would not permit a priest to be convicted of celebrating the mass. In the “no popery riots” his mansion was burned by a Protestant mob. Yet Lord George Gordon, who was tried for high treason in assembling the mob, voluntarily chose to be tried before Lord Mansfield. His calm, colorless charge to the jury, no less than Erskine’s defense, caused the prisoner’s acquittal.
As a trial judge, his demeanor was blameless. His keenness of mind, his great experience, his firm but courteous manner, his great patience, his impartial treatment of all lawyers, his want of passion and enthusiasm, his power of dispatching business, his absolute freedom from all influence, made him an ideal judge. His decisions, with their fine literary finish, combining the polish of the scholar with the learning of a profound lawyer, make the reports of Burrow and Douglas the great repository of leading cases. In the thirty-three years he served on the bench, no bill of exceptions was ever tendered to one of his rulings; counsel being perfectly satisfied that when the motion for a new trial came before the full bench, the evidence would be fairly stated. Another singular fact is that he had but two judgments reversed, either in the Exchequer Chamber or in the House of Lords. Most rarely, too, did he allow a reargument of a case, and generally his decisions were made upon the conclusion of the arguments.
Lord Mansfield was singularly free from one fault that has characterized some of the greatest judges. He showed neither favoritism nor envy toward any of the leaders of the bar. Sir Matthew Hale had Jeffreys for his favorite, while he hated such men as Scroggs and Wright. Jeffreys, while he had no favorite, displayed violent antipathies. Lord Macclesfield took under his patronage Philip Yorke, afterwards Lord Hardwicke, and made his fortune at the chancery bar. Lord Kenyon had his fortune made by Thurlow, for whom he acted as “devil,” and by Dunning, many of whose opinions he signed in Dunning’s name. Kenyon while Lord Chief Justice was completely under the sway of Erskine, who induced him to charge the jury in one case that the question of libel or no libel was for the jury. Kenyon hated Law (afterwards Lord Ellenborough), and did whatever he could to oppose and humiliate that most accomplished advocate. Law retorted by sneering at Kenyon’s bad Latin, his cheap clothes, his parsimonious habits and general lack of gentlemanly accomplishments. Law delighted in addressing Latin quotations to Kenyon on the bench, and the judge, not understanding the Latin, was always in a quandary, whether to be gratified at the tribute to his learning or to resent the quotation as ridiculing some of his defects. Ellenborough while Lord Chief Justice reserved his most caustic utterances for Campbell; but Campbell revenged himself by writing a life of the judge. Lord Eldon had no favorite, but his kindest demeanor was shown, singularly enough, toward Romilly. Lord Tenterden made Scarlett an especial recipient of his favors, and lost no opportunity to put down Copley (afterwards Lord Lyndhurst). Lyndhurst on the bench was without any partiality or enmity among the lawyers. Brougham, himself never any judge’s favorite, hated Sugden, afterwards Lord St. Leonards, and missed no opportunity to sneer at his prosiness.
Had there been a succession of judges like Mansfield, the law would not have needed much statutory reforming. But Mansfield was succeeded by Kenyon, a very narrow-minded lawyer, while in the chancery court Lord Eldon was soon to rule supreme. Both of them were accustomed to talk slightingly of the “late loose notions” that had prevailed in Westminster Hall. Not the least debt the profession owes to Mansfield is his persuasion of Blackstone to deliver his lectures at Oxford. Afterwards Mansfield secured Blackstone a place in the Common Pleas. Yet even Blackstone was the chief factor in the Exchequer Chamber in reversing Mansfield’s ruling, where he laid his reforming hand upon the ark of the covenant of the real-estate lawyers, and attempted to make the rule in Shelley’s case yield to the clearly expressed intent of the testator.
It was after Mansfield’s retirement that the echoes of the French Revolution caused those State prosecutions which furnished the opportunity to Erskine to demonstrate his greatness as a forensic orator. It is a singular fact that the greatest English judge and the greatest English advocate were both Scotchmen of high descent. Erskine was a member of the house of the earls of Mar, the oldest title in Europe which has survived to our times. But he had not the fine training of Mansfield. The poverty of his father, the Earl of Buchan, caused Erskine at an early age to enter the army, and it was not until he was twenty-seven that he turned to the law. Again the profession has Mansfield to thank for his advice to the young subaltern. The uninterrupted career of Erskine at the bar justified Mansfield’s judgment. Perhaps the world may see again as perfect a forensic orator, but doubtless up to our time the Roman Cicero is the only advocate who can be found to rank with Erskine.
While Mansfield was on the bench, Jeremy Bentham had been writing his epoch-making works. He was the son and grandson of attorneys, members of the inferior grade of the profession. He was educated at Westminster School and at Queen’s College, Oxford. At twenty-five he entered Lincoln’s Inn. He attended the court of King’s Bench and listened, as he tells us, with rapture to the judgments of Lord Mansfield. He heard Blackstone’s lectures at Oxford, but he says that he immediately detected the fallacies underlying those smooth periods. Fortunately, he was the possessor of an ample fortune which gave him leisure for study. Becoming disgusted with the profession, and willing to disappoint the wishes of his father, who had hoped that his son’s great talents would at last place him in the marble chair, Bentham voluntarily relinquished all effort to take an active part in life, either as a lawyer or legislator, and devoted himself to the study of the subjects upon which legislation ought to act and the principles upon which it ought to proceed. His ample means to employ secretaries saved him from a life of drudgery. He gathered around him a small but brilliant company; prominent among his circle were Romilly, Mackintosh, and Brougham, the exponents of his views of legal reform.
Bentham’s legal reforms were but a small part of his activity. He was a philosopher, who claimed by his one principle to have solved the puzzle of human life and destiny. His utilitarian formula of the greatest happiness of the greatest number is but a restatement of the tenet of a Grecian school of philosophy. The lawyers for centuries had been applying the principle under the form of their maxim, “salus populi est suprema lex.” It was this dogma that gave a practical aspect to Bentham’s views of law reform. He is one of the few reformers of law who was widely read and instructed in the matter he was trying to reform. He had the capacity of the jurist to grasp legal principles, but with keen logic and inventive mind, he threw a flood of new light upon old stock notions in the law. Having mastered the practical doctrines of the law he took (in Brougham’s phrase) “the mighty step of trying the whole provisions of our jurisprudence by the test of expediency.” He tested its rules and arrangements by the circumstances of society, the wants of men, and above all by the promotion of human happiness.
Long years of study are contained in Bentham’s writings on legislation. In 1776, at the age of thirty-two, he published his Fragment on Government, of which Lord Loughborough said that it formulated a dangerous principle. His Principles of Morals and Legislation came out in 1789. His Art of Packing was published in 1821. His Rationale of Judicial Evidence saw the light in 1827, when he was seventy-nine. These works give but a small part of his labors on the law; bold and hardy indeed is the man who will undertake to read all that Bentham wrote upon the deficiencies of our legal system.
He had little respect for the law as he found it. The separate jurisdictions of law and equity were to him an absurdity. A bill in chancery he characterized as a volume of notorious lies. The technical common law procedure and the occult science of special pleading were relics of barbarism. He assaulted the rules excluding the testimony of parties and interested witnesses. His zeal to moderate the criminal law was a matter of humanity. The jury system did not meet his entire approval. He advocated local courts presided over by a single judge trained to judicial work, without a jury, except when specially demanded, and then only as a security against class feeling, governmental oppression or corruption. At first he was ignored by the profession as a foolish and visionary man, who put his ideas in very bad English. He did manage to secure an act against cruelty to animals, and this was all. Yet when he died in 1832 he was revered as the founder of modern legislation.
His disciples devoted themselves to his practical reforms on the side of the most important part of the law—the means which it provides for the enforcement of rights and the redress of wrongs.28 Easily accessible courts, a cheapening of legal remedies, and the prevention of delays, were proposed as matters of the first moment. Judicial evidence was to be regulated, so that it would be certain that all the testimony could be heard. Pleadings were to be curtailed and simplified, fictions were to be abolished, sham pleadings made impossible, and all distinctions in forms of actions and in the jurisdiction of courts were to be swept away. For “glittering generalities” Bentham’s mind had no tolerance. He dissected with more or less severity the fallacies of our Declaration of Independence. He refuted the so-called self-evident truths that all men are created equal, that they are endowed with certain inalienable rights, among them the right to life, liberty, and the pursuit of happiness.
The struggle for reform had been initiated by Sir Samuel Romilly, in his effort to mitigate the penal code. Year after year Romilly passed his bill through the Commons; but it always failed in the Lords before the opposition of Eldon and Ellenborough. Eventually he must have succeeded, but his wife’s death in 1818 plunged him into such profound grief that in a moment of madness he took his own life. His practice at the bar was solely in the chancery court. The favor of Lord Eldon made him the leading chancery barrister. We have preserved to us the substance of his argument in a great leading case.29 Lord Cottenham, afterwards, speaking from the bench30 of Romilly’s celebrated reply, said: “From the hearing of it, I received so much pleasure, that the recollection of it has not been diminished by the lapse of more than thirty years.” Romilly’s winning personality, his charming manners, his uprightness and love of humanity, his really marvellous eloquence, make him one of the most interesting figures at the English bar. His son Lord Romilly, the well-known Master of the Rolls, has made the name a noted one in the judicial records.
A greater than Romilly now took up the burden of reform. Henry Brougham was, perhaps, at certain times, the most effective orator of the first half of the nineteenth century; but he was never a close and accurate lawyer. He had nothing like the success at the bar of Law, the defender of Warren Hastings, or of Erskine. He had neither steadiness nor application in ordinary practice. But he was the foremost figure in the most celebrated trial of the century. When George IV. attempted to rid himself of his wife, Caroline of Brunswick, by a bill of pains and penalties, she was defended by Brougham, Denman, and Wilde, while John Singleton Copley assisted in the prosecution. All of them attained the highest honors; three of them were chancellors and one a lord chief justice. Both Brougham and Denman on that trial made splendid speeches, but the finest argument from a lawyer’s standpoint was Copley’s.
Romilly, Brougham, and Mackintosh found the greatest obstacle to their work for law reform to be the presence of Lord Eldon in the House of Lords. Eldon himself had smarted under the attempts to reform his own court of chancery. His long chancellorship had witnessed a great increase in the business of the chancery court. His excessive deliberation clogged the calendar with unheard cases. Many suitors in despair abandoned their cases. Even when a cause had been heard, the decision was long in coming, while the vast expense of chancery proceedings was frightfully oppressive. Regularly, at the opening of each Parliament, Michael Angelo Taylor made his motion for an investigation of Eldon’s court. After Taylor gave up the fight, a barrister named John Williams took up the annual motion. In the debates the chancery court was roughly handled, although Eldon, as a judge, received every man’s praise. Lord Eldon was much annoyed at the complaints, but he resolutely opposed all change in his own court as well as in the common law courts. It perhaps is to his credit that he actually concurred in abolishing trial by battle; but he contested the statute taking away the death penalty for larceny. He opposed all changes in the law of real property. He lamented the bill abolishing fines and common recoveries, and even Sugden, the great authority on real-estate law, pronounced the new plan impossible. The bill abolishing sinecure offices in the chancery and simplifying certain chancery proceedings caused Eldon such anguish that he wrote that he would not go down to Parliament again. Railroads he denounced as dangerous innovations. The abolishment of rotten boroughs was to him a shocking invasion of vested rights. He exclaimed over the Reform bill: “‘Save my country, Heaven,’ is my morning and evening prayer, but that it can be saved, cannot be hoped.” The proposal to abolish the difference between wills of real and personal property excited Eldon’s greatest alarm. He frustrated the efforts of Romilly to mitigate the penal code. He resented reforms in the common law procedure as encroachments upon equity. In the general domain of politics Eldon was the same sort of obstructionist. He bitterly opposed the repeal of the Test Act, and when it was proposed to remove the disabilities of Roman Catholics, he declared in the House of Lords: “If I had a voice that would sound to the remotest corner of the Empire, I would re-echo the principle that, if ever a Roman Catholic is permitted to form part of the legislature of this country, or to hold any of the great executive offices of the government, from that moment the sun of Great Britain is set forever.” Such was the attitude toward reform of the man who, if we look alone at the substance of his decisions, must be called the greatest English chancellor.
After Brougham had quarreled with his party, the burden of passing the bills for the promised legal reforms fell upon Sir John Campbell. The ablest opponent of many of these measures was the Conservative leader, Lord Lyndhurst. This great man was born in Boston just before the Revolution. His father was the painter Copley, his mother a daughter of that unfortunate Boston merchant whose cargo of tea was dumped into Boston harbor.31 Lyndhurst was taken to England, educated at Cambridge, and called to the bar from Lincoln’s Inn; he slowly worked his way to the head of the profession. On the Queen’s trial he summed up the evidence in a speech which as a piece of legal reasoning far excels Brougham’s or Denman’s. As a judge he demonstrated that he was gifted with the finest judicial intellect that England can show in the nineteenth century. We are interested here solely in his attitude toward reforms in the law.
When Attorney General he had proposed a bill for reforming the chancery court, which as all parties were compelled to admit, stood in need of reform. In 1826 he made a great speech against allowing counsel for the accused in trials of felony to address the jury; but a few years later he concurred in such a change in the law. It should be remembered that Justice Park threatened to resign if a bill allowing counsel to the accused were passed, and that twelve of the fifteen judges strongly condemned the enactment. Most of the judges opposed the provision allowing defendants in criminal cases to produce witnesses.
In the debates on the Reform Bill there appears a practice in one of the rotten boroughs which throws a curious light on prevalent political morality. Lyndhurst, amidst the laughter of his hearers, read that part of the evidence which showed that Campbell, the eminent reformer, had paid for his election by the Stafford constituency, to five hundred and thirty-one out of five hundred and fifty-six electors, the sum of three pounds ten shillings for a single vote, and six pounds for a plumper. Campbell’s defence was that, “this could not properly be called bribery, for he had simply complied with the well-known custom of paying ‘head money,’ and the voter received the same sum on whichever side he voted.” During another debate Lyndhurst condemned the practice of chancery counsel in going from one court to another, and being actually engaged in carrying on causes of importance in two courts at the same time. But this sort of evil was no less marked in the common law courts.
Lyndhurst opposed the original county court bill, which after many changes and improvements has proved of such value in England; yet Lyndhurst appointed both the commission to enquire into the law of real property and another commission to investigate common law procedure. In 1852, when the Common Law Procedure Act was under discussion, both Lyndhurst and Brougham opposed the bill because it did not sweep away all written allegations. As a general rule, Lyndhurst was a friend to reasonable changes in the law, and most of the later reforms had his able advocacy.
Gradually the chancery court was reformed. Its fees and expenses were first reduced. In accordance with the report of a Chancery Commission composed of such lawyers as Lord Romilly, Turner, James, Bethell, and Page-Wood, the masters in chancery were abolished. Later, issues of law were done away with, and the evidence was required to be taken orally before examiners. Finally, examiners were abandoned for a system of evidence given in the form of affidavit for certain proceedings, or given orally before the judge.
As early as 1843 the law of evidence was changed by Lord Denman’s act so as to permit interested witnesses to give testimony. In 1851 a party, as well as the husband or wife of a party, became a competent witness in a civil case. All the common law judges and the Chancellor, Lord Truro (better known as the barrister, Wilde, who appeared with Brougham and Denman for Queen Caroline), opposed the bill. Even Lord Campbell, who gave the act its first trial, said: “It has made a very inauspicious start; one party, if not both parties, having hitherto been forsworn in every cause.” Finally, in 1898, the defendant in a criminal case was made a competent witness on his trial.
The original changes in the rules of pleading at common law were made under rules formulated by the judges. In 1860 all common law courts were given equity powers as to all questions at issue before them. This bill was violently opposed by Lord St. Leonards, but was supported by all the common law judges. Power was given to all the common law courts to examine witnesses de bene esse, to order the discovery of documents, and to compel an examination of a party by his opponent. In this way the whole distinctive auxiliary jurisdiction of equity was swept away.
Finally, the Judicature Commission made its report, and the two great lawyers, Lord Selborne for the Liberals and Lord Cairns for the Conservatives, proposed and carried the Judicature Act of 1873. All the historical courts of England were combined in a single High Court of Justice. It was given a Chancery Division, a King’s Bench Division, a Probate, Divorce and Admiralty Division.32 Above the High Court of Justice was constituted a Court of Appeal, and from the Court of Appeal a further appeal lay to the House of Lords. All branches of the High Court of Justice were given power to administer both legal and equitable relief, and wherever there was any conflict between the rules of equity and the rules of law, equity was to prevail. Power was given to transfer a cause from one division to another, so that Lord Cairns could say:33 “The court is not now a court of law or a court of equity, but a court of complete jurisdiction.” The result of the Act, it was asserted, “has been in the highest degree satisfactory, and has resulted in flexibility, simplicity, uniformity, and economy of judicial time.” The final result of the legislation is said by Lord Bowen to be, “that it is not possible in the year 1887 for an honest litigant in her Majesty’s Supreme Court to be defeated by any mere technicality, any slip, any mistaken step, in his litigation.” It is curious to note that the learned Foss mournfully recorded the Judicature Act. He deplored it as a restoration of the old Norman Aula Regis.
Thus we see that practically the whole of the Benthamite series of reforms has been carried out. In the course of a century, step by step, the whole face of the formal portion of the English law has been changed. And yet, as one looks back on the history of the law, he is compelled to admit that at any given time the system of law was fully as good as was merited by the people whom it governed. The highest and best index to the steady progression of the race is the continued improvement in jurisprudence. To the formalism of the old law we owe it that our substantive law is what it is. The growing rigidity of the common law procedure produced that equity system which borrowed so heavily from the Roman jurisprudence. To the differing jurisdictions of law and equity we are indebted for a progress which was achieved by the careful weighing of the one system against the other. Even the rules of evidence which excluded the testimony of interested witnesses and of parties to the litigation have borne their full fruit in assisting in the growing veracity of our race. The cruelties of the criminal law did their work in making our criminal law the most mercifully administered system of public punishment.
It is more than a coincidence that the reorganized procedure should begin its career in a new home. In 1882 Westminster Hall was finally abandoned for the new Courts of Justice. The lawyer who loves the traditions of his profession cannot refrain from regret when he parts with Westminster Hall, or when he sees the extinction of that ancient Order of the Coif which had endured for seven hundred years. Appropriately enough the new Courts stand in the midst of the ancient legal university. To the north rise the towers of Lincoln’s Inn, and across the Strand to the south stand the Middle and Inner Temple. Surrounded by so many legal memories, dense, indeed, must be the lawyer who is not moved to be worthy of that science of administering justice which has written the most glorious pages of English history.
bibliography of the works of john maxcy zane
selected bibliography on legal history
Ancient Near Eastern Law, Biblical Law, and Post-Biblical Jewish Law
Classical Greek and Roman Law
Early Medieval and Germanic Law of the Fifth Through Eleventh Centuries
Canon and Civil Law of the Twelfth Through Fifteenth Centuries
Continental Law Since 1500
renaissance and humanist jurisprudence
English Law Since 1066
constitutional and legal history
treatises and textbooks
constitutional and legal history
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[1. ]The case for this collection was argued by John Wigmore at the 1905 meeting of the Association of American Law Schools. The essays were collected and edited by a committee of scholars designated for this task by the Association. Such eminent names as Frederic Maitland, Frederick Pollock, Joseph Beale, and William Holdsworth grace its pages. The history of the decision by the AALS to produce this collection and the efforts that were expended in assembling it are reviewed in the Harvard Law Review’s book review of Select Essays. See Harvard Law Review 21 (1908): 640–41.
[2. ]Letter of John H. Wigmore to Robert P. Goldman, December 9, 1920, Wigmore Papers, Northwestern University School of Law.
[* ]Hitherto unpublished, except that the first part appeared in the Illinois Law Review, volume II, p. 1, June, 1907. All five parts were publicly read as lectures, in February and March, 1906, in the Law School of Northwestern University.
[1. ]Lecturer on Legal History and Biography in Northwestern University, 1905–1906. A. B. Michigan University, 1884; admitted to the bar in Salt Lake City, Utah, 1888; Reporter of the Supreme Court of Utah, 1889–1894; Member of the Chicago Bar since 1899; Lecturer on Mining Law in the University of Chicago, since 1902.
[2. ]The authorities for this period, beside the well-known works of Pollock and Maitland, Foss, Lord Campbell, Stubbs, Hallam and the other historians, include Bigelow’s Placita Anglo-Normannica, Freeman’s William Rufus, Burke’s Dormant and Extinct Peerages, Dugdale’s Baronage, Maitland’s Domesday, Pollock’s King’s Justice (12 Harv. L. Rev.), Pollock’s King’s Peace (13 Harv. L. Rev.), Foss’ Memories of Westminster Hall, Hall’s Court Life Under the Plantagenets, Mrs. Green’s Henry II., Pulling’s Order of the Coif, Beale’s Introduction to his edition of Glanville, Maitland’s Register of Writs (3 Harv. L. Rev.), Maitland’s Introduction to Bracton’s Note Book, Maitland’s Bracton and Azo, Select Pleas of the Crown (Selden Society), Select Civil Pleas (Selden Society), and numerous sources of general history, such as William of Malmesbury, Matthew Paris, etc.
[3. ]W. Jones Rep. 101.
[4. ]The above free translation is more than a reminiscence of Coleridge’s lines.
[5. ]The origin of this distinction, taking us back to the more primitive Germanic ideas and the contrast between an attornatus or anwalt and a vorsprecher, causidicus, or conteur, has been once for all set forth in Professor Heinrich Brunner’s essay on “Die Zulässigkeit der Anwaltschaft im französischen, normannischen, und englischen Rechte des Mittelalters,” first printed in the Zeitschrift für vergleichende Rechtswissenschaft, I, 321, and afterwards abbreviated in § 100 of his Deutsche Rechtsgeschichte (1892, vol. II).
[6. ]General references for this period: The Year Books of Horwood and of Pike; Maitland’s Year Books of Edward II, Selden Society; the Liber Assisarum; Maitland’s Conveyancer in the Thirteenth Century; Select Pleas in Manorial Courts (Selden Society); Placita de Quo Warranto; Mirror of Magistrates (Selden Society); Thayer’s Preliminary Treatise on Evidence; Ames’ History of Assumpsit (3 Harv. L. Rev.); Maitland’s Register of Writs (3 Harv. L. Rev.); Baldwin’s Introduction to his edition of Britton; Fleta; Burke’s Dormant and Extinct Peerages; Jenks’ Edward I; Pike’s History of Crime; the works of Foss, Campbell and Stubbs; Reeves’ History of English Law is reliable only in regard to the statute book.
[7. ]The last English Papal bishop who left a family of acknowledged children.
[8. ]“And then Knivet the Chancellor came into the court and the case was explained to him by the judges and he concurred.” The words of the last entry show that knowledge of French is passing away. About this time was passed the statute which required all pleadings and judgments in the courts to be couched in English. But the lawyers calmly ignored the statute until the middle of the seventeen hundreds. The reporter of Edward II.’s Year Book was a much better French scholar than the men who reported under Edward III. Serjeant Maynard said that Richard de Winchester reported under Edward II. but he tells us no fact in regard to him, and the name nowhere else appears.
[9. ]New College is equalled by Merton at Oxford, founded by Walter de Merton, Henry III.’s chancellor. Its exquisite chapel and noble hall are the work of that chancellor. Even Christ Church, which was long the most splendid college foundation in the world, is the work of Henry VIII.’s chancellor, Cardinal Wolsey. Magdalen, too, the loveliest of them all, is the work of William of Waynflete, “the right trusty and well beloved clerk and chancellor” of Henry VI. To these may be added Wadham at Oxford, founded from the estate left by a celebrated English judge, and Corpus Christi at Cambridge.
[10. ]The Year Books for this period must be read in the Norman French (so called). Bellewe’s Reports are Richard II.’s Year Books so far as printed. Stubbs, Campbell and Foss are, of course, necessary reading. Further general references are: Select Cases in Chancery (Selden Society), Wambaugh’s edition of Littleton’s Tenures, Plummer’s Introduction to Fortescue’s Monarchy, Lord Clermont’s Fortescue’s De Laudibus, Pulling’s Order of the Coif, Herbert’s Antiquities of the Inns of Court, Pierce’s Inns of Court, Douthwaite’s Gray’s Inn, Loftie’s Inns of Court and Chancery, Dillon’s Laws and Jurisprudence, Kerly’s Equitable Jurisdiction, Ames’ History of Assumpsit, Thayer’s Preliminary Treatise, Wigmore on Evidence. Ames’ Notes to De Laudibus may be read in addition. Reeves now becomes more reliable. Dugdale’s Origines Juridiciales has much curious information. Walsingham’s Chronicle is valuable. Mr. Holdsworth is to write on The Legal Profession in the 14th and 15th centuries, in the Law Quarterly Review for 1907.
[11. ]“There is no man in England who can tell whether she is within age or of full age, for some women who are thirty years old will appear to be only eighteen.”
But the learned Markham was mistaken. The wife did not bring the writ; she was made defendant.
[13. ]Our version has it: “When the word of the prophet shall come to pass, then shall the prophet be known, that the Lord hath truly sent him.” Jer. 28:9.
[14. ]The grandson of a noted lawyer of that time, by name Rede, afterwards endowed Jesus College at Oxford with a fellowship and a brewery. The brewery for the use of undergraduates is a startling commentary on our Puritanical practices.
[15. ]The serjeants at law had their lodgings in the Old Serjeants’ Inn, which stands in Chancery Lane. But it is likely that the lodgings were occupied only during term time. The Paston Letters tell us how the good wife at home sent up from the country hams, chickens and cheese. But as soon as court adjourned for the long vacation the serjeants and judges hurried to their homes in the country. The arrangement of the terms with the long vacation at harvest time proves the country residence of the judges and lawyers.
[16. ]General references for this period: Foss and Campbell now become much fuller in detail. The State Trials are invaluable for the whole period. Besides these may be named: Fitzherbert’s Abridgement, New Natura Brevium and Diversity of Courts, Lynwoode’s Provinciale, St. Germain’s Doctor and Student, Select Cases from the Court of Requests (Selden Society), Select Cases from the Star Chamber (Selden Society), Reeves’ History of English Law, Spedding’s Life of Bacon, Anderson’s, Dyer’s, Popham’s and Plowden’s Reports, Pollock’s Land Laws, Dugdale’s Origines, Staunforde’s Pleas of the Crown, Coke upon Littleton, Coke’s Institutes, Coke’s Reports with the Introductions, Whitelocke’s Memorials, Hale’s Introduction to Rolle’s Abridgement (in Hargrave’s Collecteana Juridica), Saunders’ Reports, North’s Life of Lord Keeper North, Irving’s Life of Jeffreys, Roscoe’s Lives of Eminent Lawyers. Hale’s Pleas of the Crown and History of the Common Law are not critical. For the historical development of the rules of evidence consult Wigmore on Evidence under the particular rule.
[17. ]Bishop of Chichester v. Webb, 2 Dyer 107; Lady Hales v. Pettit, Plowden 253.
[18. ]3 Com. 50.
[19. ]Perhaps we ourselves have as yet no right to condemn this, when we still see in some regions masterships in chancery turned over to the successful political party to be filled.
[20. ]2 White and Tudor Lead. Cas. Equity 601.
[21. ]3 Ch. Cas. 1.
[22. ]6 State Trials 647.
[23. ]1 Vernon 419, 369.
[24. ]The authorities for this period are too numerous to be named here. Lord Campbell’s Lives, both of Chief Justices and of Lord Chancellors, are very full. His lives of Mansfield and Eldon are excellent; but his Brougham and Lyndhurst are pitiable. Foss is reliable. Welsby’s Lives of Eminent English Judges, Roscoe’s Lives of Eminent Lawyers, Cooksey’s Life of Somers, Twiss’ Life of Eldon, Brougham’s Autobiography, Arnould’s Memoir of Denman, Martin’s Life of Lyndhurst, Atlay’s Victorian Chancellors, and Woolrych’s Lives of Eminent Serjeants, may be consulted. A Century of Law Reform summarizes the changes made in the law, while Dicey’s Law and Opinion in England shows the spirit underlying the legal changes. There are, of course, endless other authorities for this period, including almost innumerable magazine articles. Bowring’s edition of Bentham’s works, with his Memoirs prefixed, is valuable.
[25. ]No attempt will be made here to do anything more than indicate the attitude of great lawyers toward reforms in the law.
[26. ]Ld. Raym, 909.
[27. ]Ward vs. Evans, 2 Salk. 442; Thorald vs. Smith, 11 Mod. 71, 87; Nickson vs. Brohan, 10 Mod. 109.
[28. ]One change in the law, which once seemed a very important matter in England, had been made before the reformers set to work. The judges of England had uniformly held that in a prosecution for libel the jury passed upon the facts, the court upon the law. The construction of the written document, whether it was libellous or not, was according to well-settled principles a question for the court. The matters of fact, as to whether the defendant had published the libel and whether its references were to the persons and things stated in the indictment or information, were for the jury. But as long as the jury rendered a general verdict of not guilty, there was presented a chance to the jury to find a verdict of not guilty, upon the ground that, although the publication was found and the innuendoes proven, the document was in fact no libel. The judges had tried to escape this dilemma by putting to the jury the question of publication and of the truth of the innuendoes, but Fox’s Libel Act provided, in effect, that the jury should pass upon both fact and law.
[29. ]Hugenin vs. Baselee, 14 Ves. 273.
[30. ]Dent vs. Russell, 4 Myl. & Cr. 277.
[31. ]This act of larceny is usually described as an outburst of patriotism.
[32. ]The two additional Divisions of the original Act, Common Pleas and Exchequer, were shortly afterwards abolished.
[33. ]7 App. Cas. 237.