Front Page Titles (by Subject) II.: The Silver Age of the Common Law: From the Accession of Edward I. to the Death of Edward III. 6 - The Story of the Law
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II.: The Silver Age of the Common Law: From the Accession of Edward I. to the Death of Edward III. 6 - 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 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.
[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.