The Online Library of Liberty

A project of Liberty Fund, Inc.

• Foreword
• Zane’s Legal Career
• An Appreciation
• Introduction
• Chapter 1: The Physical Basis of Law
• Chapter 2: Law Among Primordial Men
• Chapter 3: The Aryan Law
• Chapter 4: Babylonian Law
• Chapter 5: The Jewish Law
• Chapter 6: Law Among the Greeks
• Chapter 7: A Greek Lawsuit
• Chapter 8: Greek Philosophy of Law
• Chapter 9: The Roman Creation of Modern Law
• Chapter 10: The Greek Compilation of Roman Law
• Chapter 11: Medieval Law In Europe
• Chapter 12: The Origins of English Law
• Chapter 13: English Law—righteous and Unrighteous
• Chapter 14: The Reconciliation of the English Systems of Law
• Chapter 15: The Absolute Reign of Law
• Chapter 16: International Law
• Chapter 17: Conclusion
• Appendix: the Five Ages of the Bench and Bar of England
• Introduction
• The Five Ages of the Bench and Bar of England *
• I.: The Golden Age of the Common Law: From the Norman Conquest to the Death of Bracton 2
• II.: The Silver Age of the Common Law: From the Accession of Edward I. To the Death of Edward III. 6
• III.: The Bronze Age of the Common Law: From the Death of Edward III. To the Death of Littleton 10
• IV.: The Iron Age of the Common Law: From Henry VII. To the Revolution of 1688 16
• V.: The Period of Reform: From William III. To Victoria 24

III.

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:

• Ecce modo mirum, quod femina fert breve regis
• Non nominando virum, conjunctum robore legis.12

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.

[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.”

[12. ]

• ’Tis a marvel indeed that a wife brings her writ,
• Not joining her husband, as law maketh fit.

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.