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English
Legal History
4/3/2009
Outline
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THE DEVELOPMENT OF THE ENGLISH LEGAL PROFESSION
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1.
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So far we have been discussing the development of the institutions of
English law and governance without any explicit reference to the
development of the legal profession. I want to remedy that deficiency today
making use of some the materials that we have in this room that show what
lawyers in the later Middle Ages and early modern periods used to do their
jobs. But first a word or two about origins.
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2.
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The origins of the English legal profession are controversial, so let us
begin with a few points about which everyone is agreed.
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a.
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Today the English legal profession today is divided between barristers
and solicitors. Barristers have the right of audience in the central royal
courts; solicitors are office lawyers. Virtually everyone is agreed is that
the barristers are virtually the direct descendants of the serjeants of the
Middle Ages who had the exclusive right of audience in the Common Bench and
who had the right of audience in the court coram rege, but here it was not exclusive; it was shared with
apprentice serjeants and perhaps with others as well. Virtually everyone is
also agreed that the modern solicitor is at least in part the descendent of
the attorney of the Middle Ages. These people could not plead before the
central royal courts, but they could and did enter appearances.
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b.
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Everyone is also agreed that there was an order of serjeants by the
middle of the 14th century. Regular calls of serjeants can be posited from
at least the latter part of the reign of Edward III (1327–1377), and
beginning with Richard II (1377-1399) we can reconstruct who virtually all
of them were. From this period to the end of the 19th century, when the
order of serjeants died out, there are approximately 1000 known names, half
of which are from the 19th century. Think about that number.
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c.
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The middle of the 14th century is also the period in which we can be
sure that serjeants were being trained with formal moots and readings. Approximately
at this time or perhaps a little later, but certainly before the end of the
14th century, these training sessions were taking place in the four inns of
court, which exist to this day. These were not the only inns. There were
inns of chancery, which were attended not only by aspiring pleaders but
also by aspriring chancery clerks. There was a serjeants’ inn, where the
lawyers who had become serjeants went.
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d.
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A professional literature developed that was narrow and technical, far
from the learned sweep that characterizes some of the passages in Bracton.
The pleader was trained first in the writs; in short, he began in the inns
of chancery with those aspiring to be chancery clerks. Then he learned the
counts. The first books of counts appear late in the reign of Henry III, a
date that suggests that training pleaders began earlier than the mid-14th
century date we’ve been discussing. Novae
Narrationes is the most famous. It went through a number of editions in
the late 13th and early 14th centuries. As the art of pleading--of
answering the counts--developed, books came to be devoted to this topic.
The most important are the Yearbooks. They record first counts, then pleas,
in actual cases. The pleas turn out to be critical as the counts ossify.
Yearbooks in a moment are our most important source for this period. And
Yearbook style reporting continues well beyond the period when the YBB as
such end in Henry VIII’s reign.
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e.
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But if we are sure that the basic outlines of the English legal
profession existed by the middle of the 14th century, it is considerably
less certain how far back we can trace it. Many today would push it back
into the reign of Edward I (1272-1307), but no one would trace it as far
back as the period of the earliest plea rolls (c. 1195). There were men as
early as the earliest plea rolls surrounding the central royal courts, who were in some sense specialists in its proceedings.
The author of Glanvill was
certainly one of these; the authors of Bracton
were others. But these men are judges or judges’ clerks, not representatives
of parties. There are also attorneys in the earliest plea rolls, but most
of these men are clearly not professionals. Hugh Polstead Sr. and Jr.
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f.
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In order to understand how we get professionals out of this group, we
need to understand a bit more about the development of procedure in the
13th century. The pattern of the ancient law suit. Claim, denial, judgment,
proof. Writ or bill, count, denial,
judgment, proof. Then proof, judgment. But proof before an assize or jury
requires a hiatus.
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g.
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The first half of the 13th century is a period of multiplication of
writs and refinement of counts. Even in the early 13th century we hear of
counters who may have been professionals, but they do not identify
themselves as a professional group. A sense of cohesion and discipline
probably does not begin until early in Edward I’s reign. With the
multiplication writs we need some kind of mechanism to keep track of them
and to teach others about them. The
development of the register of writs and the inns of chancery.
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3.
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The Yearbooks
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a.
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Who wrote the YBB? beginning in reign of Edward
I--3d year law students.
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b.
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What interests them? What can disrupt
the ancient pattern of law suit: the pattern of count, denial, judgment, proof. When the jury intervenes in lieu of the
ordeal, the issue is when will the def. be allowed
to plead something other than a general denial. The answer is “not often”.
The ancient pattern has a firm grasp on men’s minds, but sometimes,
fortunately, the system allowed one to try out pleas without formally
making them. So the YBB normally record the proffer of plea and the
arguments about whether it should be allowed. Over time a large number of
issues surface and if we work hard we can see the development of
substantive law. But it is substantive law only in the sense that the plea
will be allowed or not allowed. We should avoid, on the one hand, thinking
that the general denial always means what it says, and on the other
thinking that when the plea is allowed or discussed that the participants
are thinking in substantive terms.
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4.
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Paris v. Page, (Mats. p. VII–1).
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a.
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Simon of Paris brought a writ of trespass against Walter Page, bailiff of
Sir Robert Tony and various others. Here’s the writ. And complained [here’s
the count] that on a certain day they took and imprisoned him etc. wrongfully
and against the peace, etc.
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b.
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Passeley for all, except the
bailiff, answered that they had done nothing against the peace. A general
denial. We have no idea what was going on here. And for the bailiff he
avowed [a strange word in this context, normally used in replevin] the
arrest for the reason that Simon is the villein of Robert, whose bailiff
Walter is, and was found at Necton in his nest [which would, under certain
circumstances, justify the seizure] and Walter tendered to him the office
of reeve [which only a villein could have] and he refused and would not
submit to justice etc.
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c.
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Toudeby rehearsed the avowry
and said that to this avowry he ought not to be answered, for that Simon is
a free citizen of London and such has been these ten years [a year and a
day] and has been the king’s sheriff in the said city and has rendered
account at the Exchequer; and this we will aver by record; and to this very
day he is an alderman of the town, and we demand judgment whether they can
allege villeinage in his person. [There’s no triable issue of fact here
because the contrary appears as a matter of record.]
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d.
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Herle [senior serjeant, about
to become chief justice]. With what they say about his being a citzen of
London we have nothing to do [essentially he admits the allegation], but we
tell you; but we tell you that from granddam and granddam’s granddam he is
the villein of Robert, and he and all his ancestors, grandsire and
grandsire’s grandsire, and all those who held his lands in the manor of
Necton; and Robert’s ancestors were seised of the villein services of Simon’s
ancestors, such as ransom of flesh and blood, marriage of their daughters,
tallaging them high and low, and Robert is still seised of Simon’s brothers
by the same father and same mother. And we demand judgment whether Robert
cannot make avowry upon him as upon his villein found in his nest. Pleading
in the right of villeinage. Can’t I make this avowry?
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e.
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Toudeby. We are ready to aver
that he is a free man and of free estate, and they not seised of him as of
their villein. Backs off, he concedes that the avowry may be proper under
certain circumstances. Mentions this strange word ‘seisin’.
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f.
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Bereford. I
have heard tell that a man was taken in a brothel and hanged, and if he had
stayed at home no ill would have befallen him. So here. If he was a free
citizen, why did not he remain in the city? It looks like he’s going to go
the other way. Typical Bereford remark. The 3d year law students loved it. But
it’s misleading. The court refuses to decide, and adjourns.
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g.
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The next exchange is hard to follow. Let me assert to you that the way Bereford
sets it up, there’s no way that Walter can win. And he doesn’t as the record
tells us. It took four years to get the jury, and by the time they get it,
Sir Robert Tony is dead, and his heir is perhaps an infant. But the jury came
in and rendered a verdict on behalf of Simon for 100 pounds, a huge sum.
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5.
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My story so
far has said little about the attorneys. Their origins as a profession are
hotly disputed between two of the best younger medieval legal historians
today. Let me give you two theories and suggest that they are not mutually
incompatible.
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a.
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Attornies start off as local lawyers who work for lords. They
serve as stewards of their manorial courts; they sit in for them as suitors
in the county court. When the lord has business with the central royal
courts, he sends them to Westminster to
engage a serjeant and do what they can do to keep the costs down. These
attornies get quite good at manipulating the processes of the central royal
courts to their clients’ advantage, and they bring what they learn back to
the local courts, so that the local courts become more and more like the
central royal courts.
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b.
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The attornies begin in the central royal courts. They are basically
local men with a local clientele, but what happens is that the lords invite
them back to the local area to serve as suitors for them in the county
court and sewards of the manor court. Hence, the practice of the central
royal courts penetrates that of the local courts.
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c.
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I’m not sure that we have enough evidence to decide whether as a general
matter the attornies work from the bottom up or the top down,
particularly since the end result is the same on both theories. And since
the end result is the same, it’s quite possible that both processes were at
work.
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1.
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Manor Rolls.
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2.
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Letters patent.
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3.
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Corpus juris civilis: Codex cum glossis et tabula.
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4.
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Ranulf de Glanvill. Tractatus de legibus et consuetudinibus regni
Angliae.
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5.
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Henry de Bracton. De legibus et consuetudinibus Angliae.
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6.
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Magna Carta cum statutis.
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7.
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Magna Carta cum statutis.
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8.
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Registrum brevium.
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9.
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Registrum brevium and Novae narrationes.
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10.
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Year books 4–11 Edward III (1329–1337).
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11.
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Year books 7–13 Edward III (1332–1338).
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12.
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Novae narrationes and Abridgement of the year books.
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13.
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Year book 9 Edward IV (1469)
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14.
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Thomas Littleton. Tenores novelli.
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15.
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Anthony Fitzherbert. La graunde abbregement de le ley.
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16.
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Henry de Bracton. De legibus et consuetudinibus Angliae.
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17.
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Les reports de Serjeant Bendlowes.
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18.
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William Chapple. Notebook.
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19.
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The proceedings at the Sessions of the Peace, and Oyer and Terminer, for
the city of London and county of Middlesex on Thursday the 14th, Friday the
15th, and Saturday the 16th of May... Number V for the year 1741.
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