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English Legal History
3/3/2009
Outline
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THE ORIGINS AND 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 ofsome the materials that we have in this
room that show what lawyers in the later Middle Ages 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 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, and beginning with Richard II
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. Sometime in the 14th century probably towards the end of
Edward III’s reign, the apprenticeship for pleaders became formalized in
what a later age would call the Inns of Court. 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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d.
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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, but no one would trace it as far back as the
period of the earliest plea rolls. Yet we have already seen that 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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e.
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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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f.
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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 Xesh 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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(For a more formal catalogue of the materials that we will look at click here.
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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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