Front Page Titles (by Subject) RECORDS OF THE HONOURABLE SOCIETY OF LINCOLN'S INN 1 - The Collected Papers of Frederic William Maitland, vol. 3
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RECORDS OF THE HONOURABLE SOCIETY OF LINCOLN’S INN 1 - Frederic William Maitland, The Collected Papers of Frederic William Maitland, vol. 3 
The Collected Papers of Frederic William Maitland, ed. H.A.L. Fisher (Cambridge University Press, 1911). 3 Vols. Vol. 3.
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RECORDS OF THE HONOURABLE SOCIETY OF LINCOLN’S INN1
There is, perhaps, no more serious gap in the history of mediaeval England than that which should be filled by the tale of the Inns of Court. They have a fair claim to be the most purely English of all English institutions, and the influence that they exercised over the current of our national life could not easily be overrated. For let us ask, What was it that saved English law when the day of strain and trial came in the sixteenth century? Why was there in England no “reception” of Roman law? We ought to pause before we answer these questions. We ought to look not only at Germany, but also at France and Scotland. The danger was very great. In “the new monarchy,” as Mr Green called it, the monarch must often have felt that his legal tools were clumsy, and there were plenty of people to tell him where to look for apter instruments. As it was, our common law had a bad time under Henry VIII. In all directions its province was being narrowed by the new courts, the Star Chamber, the Court of Requests, the Council of the North, and so forth. There comes a moment when the stream of law reports, which has been flowing ever since the time of Edward I, seems to be on the very point of running dry. Reginald Pole, the highly educated young man who is not far from the throne, is saying that the time has come for Roman law; every well-ruled nation is adopting it. The Protector Somerset is keenly interested in getting a great “civil law college” founded at Cambridge. To praise “the civil law” is a mark of enlightenment, and sometimes of advanced protestantism, for your common lawyer is apt to be mediaevally and even popishly inclined.
But there was a difference between England and other countries. For a long time past English law had been taught; it had been systematically and academically taught in and by certain societies or “fellowships” of lawyers. Did not that mark it off from every other mass of legal rules with which it ought to be compared? Roman law had been taught and canon law had been taught; they had been taught in England, as elsewhere; but had German or French or Scotch law been taught, taught systematically and academically? If the answer to this is No, then surely we have here a difference of the first importance. The taught system will be very much tougher than the untaught. In England the struggle is not between doctrine and traditional practice, but between doctrine and doctrine, and when the tyranny is overpast English mediaeval doctrine has its wonderful renaissance in the Elizabethan courts and the pages of Sir Edward Coke.
If this or anything like this be true, then every scrap of information that we can obtain about these Inns of Court should bear a high value in the eyes of all who care for English history. Happily at this moment the rulers of more than one society seem disposed to do all that in them lies towards stimulating and satisfying our reasonable curiosity. A sumptuous volume comes to us from Lincoln’s Inn1 It is edited by Mr J. Douglas Walker and Mr W.P. Baildon, and their work has been well done. We must not omit to say that this book contains an enormous mass of miscellaneous information bearing on the life and manners of the fifteenth and sixteenth centuries. Merely as a record of prices and wages it would be valuable, and there are instructive and amusing anecdotes. But the main matter is that we can now know pretty thoroughly the constitution of this honourable fellowship of Lincoln’s Inn as it was between the years 1422 and 1586. In a careful preface Mr Walker has said almost everything that can as yet be said with any certainty. During this period the framework of the society remains marvellously stable. What it was in the days of Elizabeth it had been in the first year of Henry VI, when it suddenly appears before us in the first of its Black Books. “The system of government,” says Mr Walker, “remains unaltered; admissions are made more regular, education more effective, but the changes are slight, so that it is possible from the casual notices to say that the constitution which existed in 1422 was in force in 1586.” This being so, we shall agree with Mr Walker in thinking it “safe to infer that so early as the former year the constitution had become well suited to the wants of the society, and that this completeness had been the growth of many years of use and wont.” On the other hand, there is a limit beyond which we must not carry even the embryonic history of this or any kindred society. As a prerequisite we must have granted to us a considerable number of professional lawyers. Nor only that, for these societies consist not of fully graduated lawyers (if that phrase may pass), but of apprenticii. The “benchers” of these inns who give degrees (vel quasi) by calls to their bars and their benches are themselves mere apprentices. The full-blown servientes have an inn of their own; and would that its history were known! All this seems to imply a demand for and supply of professional pleaders and advisers such as we should scruple to postulate for any reign earlier than Edward II’s, or at earliest Edward I’s.
Mr Walker holds out a little hope that about the time before 1422 he may have something to tell us in a future volume. He is postponing an account of the site, the local habitation, of the society, and it may be that there are leases or conveyances of land and buildings which will lighten the darkness. At present we end with a difficult problem. In 1422 we see a highly organised society. What has been its model, or to what other institutions may we liken it?
We are impelled to ask some such question, for the absolutely new grows rarer the more we read. It would be folly to rush in where Mr Walker has declined to tread, but it seems to me that we are more likely to find the germinal idea in the gild than in the college or in the university. Lincoln’s Inn is acephalous; it has no head, no master, or warden, or provost; it has four annually elected “governors” or “rulers.” In this it is unlike a college, but not unlike some gilds. The gild, though often it has a single “alderman” as its head, has often four, just four, elected skevins (scabini). If the primary object of the association is that of providing lawyers with a common hall and common meals, and with chambers in which they can live cheaply, and for the time being celibately—they do not bring their wives to town—then a certain resemblance to the college seems to follow of necessity, and it is increased by the common store of books and the chapel. And then in the gild of the craft or “mastery” there seems to be an element which is potentially educational, and which may become academic if the craft in question is a craft rather of the head than of the hand. The gild seeks to regulate apprenticeship. It assumes the duty of protecting the public against bad work and its own members against undue competition. Moreover there was a good deal of gild-like festivity in the inn. Its “revels” were prolonged and its records are tinged with the roseate hue of good wine. Apparently it knew of no “founder,” of no foundation charter or founder’s statutes. It seems to have made its rules as it went along. Also it was unendowed; it held the site upon lease; it was self-supporting; it lived from hand to mouth; there was no corporate revenue to be divided among fellows. But it is easy to make wrong guesses, and after all it is only for points of connexion that we can ask, for the honourable fellowship is not a craft gild, and the corporation (vel quasi) which begins to teach English law by means of “readings” and “moots” does something that is very new and very important. Perhaps nothing so important was done by any mediaeval parliament.
That vel quasi is one of the oddest points in the whole story; the “fellowship” or “society” never becomes corporate. It is as if English lawyers had said, “We will show you how all this can be done without any of your Italian trickery: we have no need of ’incorporation’; we can get all that we want by means of our own home-grown trust.” One would think that at times the unincorporatedness of the inn must have occasioned difficulties and expense, but I suppose that lawyers knew how to avoid litigation, and, in the days when quo warranto was a terror, an inn may have been the safer because of its impersonality.
Be this as it may, the honourable society of Lincoln’s Inn never acted more worthily of its illustrious past than when it decided to publish its records. We may hope that it will not be weary of well-doing and that we may soon know all that can be known of one at least of the Inns of Court.
This volume is to the full as interesting as its predecessor, and does credit to those who have been concerned in its preparation, namely, Mr Douglas Walker and Mr Baildon1 The student of life and manners will find in it many stories which will be to his liking, and every now and again there is an entry that bears on the grand struggles that were taking place in church and state. But the main value of the book consists in the light that it pours upon the continuous life of one of the most English of English institutions, the technically unincorporate society or fellowship of lawyers, which is practically performing public functions, since it controls the admission of advocates to the courts, but which none the less secures for itself almost as much autonomy as would be allowed to any private club.
“The lawyers of Lincolne’s Inne were not incorporate, neither by Act of Parliament nor by any Letters Pattents from the King’s Majestie.” That was said to Charles I by Richard Montague, bishop of Chichester, whom we know in other contexts. He had determined to make a vigorous onslaught against the title by which the lawyers held their inn. Then there was a scene well worthy of the full account of it that the lawyers put into their Black Book (p. 332). Charles himself sat to hear the bishop’s complaint. He sat at Whitehall on 23 Nov. 1635, “in the withdrawing room next the bed chamber.” Laud was there, and so were the secretaries of state and some other ministers. Three masters of the bench appeared on behalf of the society, and took no exception to the king’s hearing and deciding in his proper person what really was a suit for the recovery of land; perhaps they knew that even Charles could not decide that suit against them. Montague spoke a little evil of lawyers. He recalled that good old writ in which Edward I declared that sevenscore apprentices and attorneys would be enough for all England. He said that he would argue his own cause, hinting that since lawyers had become divines a divine might become a lawyer. Then he told how land had been given to his predecessor Ralph Neville by Henry III, how thereon a house had been built for the bishops of Chichester, how various leases of the house were granted to the benchers of the society, the last (it had lately expired) being a lease granted in 1535 by Bishop Sherborne for ninety-nine years at a rent of 16l. 13s. 4d. It then appeared, however, that in the next year Sherborne’s successor, Bishop Sampson, sold the reversion for 200l., and conveyed the freehold to two Syliards who were trustees for the society. The technical objections that Montague could bring against this transaction were not very formidable, and one after another they were overruled by Charles, who is represented as showing some skill in legal argument. Montague, however, told a discreditable tale of Sampson, suggesting that he got his bishopric by means of the influence of Eustace Syliard, one of the ushers of King Henry’s bed chamber, and that the grant in favour of the society was part of a simoniacal bargain. In the end the lawyers were triumphant, and when Montague, abandoning legal claims, begged that the king’s influence might secure for the bishops of Chichester a right to lodge in the inn that had once belonged to their see, he was told that since the conveyance the lawyers had spent 40,000l. in improvements. So with a Liberavi animam meam Montague desisted. But when he mentioned the unincorporate character of the society he was touching a curiously important point. What we know as our English “liberty of association” was rendered legally possible by the law or the equity about uses and trusts, which enabled a body of men to perpetuate itself and in effect to own property, while a screen of feoffees or trustees protected it from the inquisitive scrutiny of the state. If we look abroad we may fairly doubt whether our own lawyers of the fifteenth and sixteenth centuries would have permitted this arrangement, which, besides impairing the practical operation of the statutes of mortmain, allows something that can hardly be distinguished from corporateness to be acquired without any authoritative act, had it not been that they themselves were bred in societies that just were not corporations. It is surely an easily excusable slip of which Mr Walker, himself a master of the bench, is guilty when he says (p. xxiv) that “legal education largely occupied the attention of the benchers in their individual and corporate capacity.”
As to legal education, we may witness the decline of the old system. It had proceeded on the mediaeval theory, which was breaking down in the universities also—namely, the theory that the man who has taken a full degree is licensed to teach, can teach, and ought to teach, and may rightly be coerced into teaching. The publication of numerous law books, especially Coke’s, must have decreased the demand for the somewhat rough and haphazard instruction that would be given by a reader who was merely taking his turn at the work. Unfortunately these ancient societies were slow to put anything more modern in the place of this outworn plan.
English Historical Review, Oct. 1898 and April, 1900.
The Records of the Honourable Society of Lincoln’s Inn. The Black Books, vol. 1. 1422-1586. 1897.
The Records of the Honourable Society of Lincoln’s Inn. The Black Books, vol. 11. 1568-1660. 1898.