A Medieval Parliament (Part 1): Dropping the Writs

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Medieval House of Lords. On the woolsacks sit the justices and serjeants-at-law. Peers, bishops and abbots are seated on the long benches. Flanking the king; “Alexander, Rex Scotor[um]”, and “Llewellyn, Princeps Walliae”.

The first in a three-part series examining late-medieval electoral law and parliamentary practices

The abiding image of the middle ages is best evoked with one quasi-derogatory word; ‘feudal’. It brings to mind foreboding castles, cruel and acquisitive nobles, peasants toiling under backbreaking conditions, mud and ploughs and dumpy little villages. And it is fair to say that these images have a basis in reality. But it also fails to capture, at least as far as England is concerned, the sophistication of its political system and its representative institutions.

The civil strife of the 13th-century, which had seen baronial rebellions against King John and his son Henry III, led to the creation of representative institutions involving not only the barons but also representatives of the more modest folk from the boroughs and shires. By the mid 14th-century, this representative body had settled into the form with which we are familiar today; a House of Commons of elected representatives, a House of Lords representing the peerage, and the monarch him/herself.

By the standards of European monarchs, the English kings subsisted in a state of relative poverty and were perpetually broke. They derived income from their feudal lands (the royal ‘demesne’), from customs charges (on wine, wool, etc), from court fines and payments made to the chancery for the issue of pardons, writs, charters and patents. With this revenue they were expected to cover all of the ordinary expenses of the court (food, clothing, servants, transportation, pensions, gifts, and magnificence in general) and government (judicial salaries, sheriffs’ expenses, castle upkeep, diplomatic missions, etc).

It was a constitutional principle, or at least a constitutional ideal, that the king should “live of his own”. In other words, he should make do with the revenues he had from his demesne and other sources without resort to direct taxation, except during wartime or national emergencies. If the king did require additional revenue through direct taxation, he could only secure it by parliamentary grant. By the 15th-century it was an entrenched constitutional convention that the consent of the House of Commons was the indispensable ingredient in grants of taxation. The Commons thereby had the opportunity to bargain their grant in exchange for the king’s agreement to petitions which, following a formal reading in both houses and the king’s consent, became statutes.

Composition and the Franchise

From the 13th-century, the Commons included representatives of the counties, known as ‘knights of the shire’, and representatives of the towns and cities, known as burgesses. In spite of the fact that perhaps no more than 10% to 15% of the population lived in urban areas, there were twice as many burgesses as there were knights of the shire in the House of Commons.

For example, in the 1399 parliament there were 74 knights of the shire and 181 burgesses (along with 49 lords temporal and 47 lords spiritual). Each county chose two knights of the shire, and each town two burgesses. How were these MPs selected? In each borough, the scope of the franchise was a decision for the borough itself and thus varied widely. In some boroughs, every free male householder was entitled to vote. In others, it was based on the property franchise (and there is some limited evidence of women voting under that franchise). In others still, the franchise solely encompassed members of the livery companies or even members of the town council only.

The evidence for the manner of selecting MPs in the shires is quite ambiguous before the late 14th-century. However, a statute passed in the parliament of 1406 enacts a procedure to be followed;

“Item, Prayer of the Commons: Election of knights of the counties. Considering the irregular election of knights of the shires for parliament, which are sometimes made in accordance with the sheriffs’ preferences or in other ways contrary to the form of the writs addressed to the sheriff, to the great disrepute of the counties and the delay of the business of the community of said county.

May it please our lord the king, by the assent of the lords spiritual and temporal, to ordain in this present parliament that henceforth elections of knights shall be carried out in the following manner. Namely, at the next county court to be held after the delivery of the said writ of parliament, proclamation should be made in full county court concerning the day and place of the parliament. And that all those who are there present, both suitors duly summoned for this reason as well as others, shall attend the election of their knights for the parliament; and then let the election be held in full county court, freely and impartially, notwithstanding any request or command to the contrary. And after they have been elected, whether the elected persons are present or absent, let their names be written in an indenture under the seals of all those who elected them and attached to the said writ of parliament. And this indenture thus sealed and attached shall be considered to be the return of the said writ with regard to the knights of the counties.”

An even more consequential statute was passed at the parliament of 1429. It enacted two provisions that were to form the essential basis of English electoral law from the late-medieval period.

“May it please your gracious lordship to consider the foregoing, and to provide and ordain by the authority of this present parliament that the elections of knights of the same counties in your realm of England, to be elected in future to the parliaments to be held henceforth, should be elected in every county by the people living and residing in them who each should have a free tenement worth 40 s . a year at least, in addition to the outgoings; and that those who will be thus elected should be living and residing in the same counties; and those who have the support of the majority of those who are able to spend 40 s . and above a year, as is said above, should be returned by the sheriffs of every county as knights for the parliament by sealed indentures to be made on this between the said sheriffs and the said electors”

The first enactment is to provide for an electoral franchise of those who have an annual landed income of 40 shillings (£2) clear of all charges. While this may seem, from our modern vantage point, a regressive and prejudiced act, it was in fact a very broad franchise by the standards of the day. The income necessary to support the lifestyle of a knight was £40 a year, an esquire £20. A gentleman would ordinarily have lands of at least £10 a year. 40 shillings (or £2 a year) went all the way down to the ranks of the yeoman farmer or prosperous peasant.

The same act also provided for a residency requirement, both as a limitation on the franchise and as an eligibility requirement for election as a knight of the shire.

The ’40 shilling freeholder’ franchise was to survive all the way until the Reform Act 1918, when the property franchise was abolished for men (for women, until 1928 the franchise only covered those over the age of 30 occupying land with a rateable value of £5 or above).

Elections

As set out in the statutes above, the elections were held at the county court. Every four weeks, the sheriff of a county would hold a court to hear pleas for causes below 40 shillings in value, and to deal with certain criminal matters such as receiving indictments and remanding prisoners. The county court was in some ways the administrative heart of English medieval local government. Local gentlemen would assemble to sit on juries and grand juries (with the usual 40 shilling property qualification). On some occasions other county business might be transacted, such as the election of a coroner or a meeting called to facilitate a commission of inquiry or a commission of array. Proclamations and outlawries would also be read out at county courts.

Those in attendance would span the spectrum from ‘belted knights’ with incomes exceeding £100 right down to the prosperous peasant farmer with an income of £2. The richest landowners in the county would often send an attorney as their proxy, and we know that noblewomen, where they were a rich and influential force in the county, might also send their attorney (continued below…)

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A ‘belted knight’, Sir James Audley, from the Bruges Garter Book (c. 1430-1440)

If the writs had been promulgated to hold a parliament, the election of the ‘knights of the shire’ would be held at the next county court. As the 1429 statute provides, the knights were to be chosen by a majority of those in attendance who met the property qualification. But by what procedure?

A Common Pleas case from 1553, Buckley v Rice Thomas (Plowd. 119a), sheds some light on the manner of choosing. Henry IV’s 1406 statute provided that falsely returning a candidate was actionable and made the sheriff liable for £100 to the wronged candidate. In Buckley, a plaintiff was suing the sheriff for falsely returning another candidate. The defendant, Rice Thomas, replied that if Buckley was to assert he was the one truly chosen then he should be able to stipulate precisely how many votes he received, and how many against. The court disagreed, and in deciding the case thankfully provided some insight into the manner of how the candidates were chosen at the county court, before (as the statute above sets out) the writ naming the successful candidates was engrossed by the sealed indentures of the electors, and returned to the chancery.

“As to the second exception, it seems to me that the plaintiff shall not be forced to shew the certain number of the electors; for perhaps he was elected by voices or hands, as hath been said, in which case he could have no certain knowledge of the numbers, although by seeing the Hands or hearing the Voices it might be easily told who had the majority” – Saunders J

Contested elections seem to have been the exception rather than the norm. It appears likely that the local county families would often agree on the candidates before the vote itself. The fact that two candidates were elected might have made such compromises easier. But where the elections were contested, they could be very heated indeed.

A contested election

The election of 1461 occurred at a particularly unsettled time. It was the first parliament called by Edward IV after deposing the Lancastrian monarch, Henry VI. Yorkist and Lancastrian magnates vied for influence and sought to get their candidates returned. Writs were issued on 23rd May for a parliament to be held at Westminster, and after some delay it assembled in November that year.

In this election we find a particularly contentious selection for the county seat of Norfolk. Mid-15th century East Anglia was a place of intense magnate competition, colourfully recounted in the Paston letters. The two major magnates of East Anglia were the Mowbray Dukes of Norfolk and the de la Pole Dukes of Suffolk. That year, the Pastons (an untitled gentry family of moderate wealth, derived in large part from the labours of William Paston, who served as a Justice of the Common Pleas), had two of their properties seized by force. The castle of Caister, inherited from Sir John Fastolf, was taken by retainers of the Duke of Norfolk, while the manor of Dedham was seized by men of the Duke of Suffolk. In July of 1461 the county coroner was murdered.

In the context of this disorder it is unsurprising that that the election for the county seats of Norfolk would be highly contentious. John Paston, the head of the family, was a candidate for the seat, along with three other men. The other candidates were John Berney of Great Witchingham, Henry Grey the younger (son of a Mowbray retainer of the same name who had been returned for Norfolk in the parliament of 1450), and Sir William Chamberlain, another of the Duke of Norfolk’s affinity who had sought unsuccessfully to be elected in 1450.

The election proceeded as follows. For some reason it appears that it took three weeks for the election writ of 23rd May to reach Norfolk, where it was delivered to undersheriff William Pryce on 14th June. On the morning of 15th June the county court met for its normal four-weekly session, and also to transact the business of electing the parliamentary knights. Each of the four candidates brought along their supporters to vote for them. It seems that there was a dispute as to the extent of the electoral franchise and whether certain supporters met the property qualification. The sheriff, Sir John Howard (also nephew of the Duke of Norfolk and later to become Duke of Norfolk himself), alleged that the supporters of John Berney had behaved in a threatening manner, forcing the undersheriff Pryce to abandon the court and slip away under the protection of several local gentlemen.

Pryce wrote to Paston three days later to say that he believed that Grey and Paston had been duly elected and he intended to engross this result on the writ, although ultimately subject to his master, the sheriff. No such writ was returned, however, and as a result of the need to delay the parliament until November new writs were issued out of chancery on 13th June for the election of knights and burgesses.

By early July questions were raised as to whether a new election should be held. According to Sir John Howard, the undersheriff was prevented from holding the next county court on 13th July. The popular mood in Norfolk was increasingly ugly and primarily directed against the undersheriff, particularly by Berney’s supporters. Berney wrote to Paston on 17th July;

“And as for my playn dysposysson towards the undershrewe, I wyll hym no bodyli hurt, nor shalnot be hurt by me nor by no man that I may rewle; but the comynnes throw all the shyer be movyd again him for cause of his lyght demeanyng towardes them for this elexsyon of knygttes of the shyer for the parlement”

By 10th August the second writ had been received and John Howard attempted to hold a new election. According to his account, the 40 shilling freeholders assembled in the shire house elected Henry Grey junior and Sir William Chamberlain, however John Paston arrived on horseback, asserted a claim of a general franchise independent of income and then a mob of he and Berney’s supporters threatened the sheriff. Howard relocated the proceedings to the castle yard where, so Howard claims, Paston and his supporters prevented him from examining the assembled crowd as to their income, and forced him to seal an indenture electing Berney and Paston as knights of the shire.

In the following week, there was an altercation between Paston and Howard, in which Paston was stabbed with a dagger by one of Howard’s retainers. On 7th September the shire court was again assembled, however Howard asserts it was disrupted. No election indenture was returned for Norfolk, and when Howard returned the bundle of indentures for the other constituencies in his bailiwick (the county of Suffolk, for he was also its sheriff, along with the boroughs of Ipswich, Bishop’s Lynn, Dunwich and Great Yarmouth) he returned in place of the Norfolk indenture a report explaining the disruption at the county courts on 15th June, 13th July, 10th August and 7th September.

In mid-November the Lord Chancellor turned the bundle over to the Lord Chief Justice, John Markham, placing it within the rolls of the king’s bench where it remains to this day. All other indentures from that election (and indeed all elections between 1461 and 1523, excepting 1467) have been lost from the Chancery files.

On 17th November a writ of attachment was promulgated in the king’s bench against Paston, Berney and their followers, and on 1st December John Paston appeared in the Court of Exchequer to sue Sir John Howard for failing to make a return. The case report for Paston’s Exchequer claim, for the customary £100 set out in the statute of Henry VI, is extant and can be seen here at the link below.

(http://aalt.law.uh.edu/AALT7/E4/E13no147/aE13no147fronts/IMG_0056.htm).

It reads, in part;

“Johannes Paston, armiger, venit coram baronibus huius scaccarij primo die Decembris hoc termino per Thomam Harryson, attornatum suum, et queritur per billam de Johanne Howard, chivaler, nuper vicecomite comitatuum Norff’ er Suff’, presente hic in curia eodem die super visu compoti sui de officio vicecomitatus comitatum predictorum hic ad scaccarium reddendo per Thomam Depden, attornatum suum, de eo quod predictus nuper vicecomes ei iniuste detinet centum libras argenti quas ei debet”

Or

“John Paston, esquire, comes to the court of the barons of exchequer on the first day of December this term by Thomas Harryson, his attorney, and complains by bill against John Howard, knight, late sheriff of the counties of Norfolk and Suffolk, and is present in court …. the said previous sheriff unjustly detains £100 of silver which he owes”

Election litigation

The 15th-century is said to be the most unsettled and disordered period in English history since the Norman Conquest, and yet we have the outcome of a (if not democratic, then) representative election being litigated in a court of law, to be decided according to statutes enacted by parliament. Paston’s claim in Exchequer is an early, and possibly the first, instance of a long and honourable tradition of election litigation that reaches from the late-medieval all the way to modern cases like Erlam & Ors v Rahman [2015].

In these unsettled times, with the framework and principles of our democratic order under assault by extremists and despots, I think it’s worth remembering just how far back our record of representative government and the rule of law goes.

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Trump, Tresilian and the Merciless Parliament

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Execution of Sir Robert Tresilian, Chief Justice of the King’s Bench – Feb, 1388

On 19th February, 1388, the Sir Robert Tresilian, Chief Justice of the King’s Bench of England, was arraigned for treason at the bar of the House of Lords. Despite having passed the better part of a quarter century as a lawyer and advocate, he was on this occasion dumbstruck and unable to speak. The Lords confirmed the verdict against him and he was drawn on a hurdle to the place of execution at Tyburn where he was strung up and his throat was cut.

Six days previously he had been impeached by the House of Commons. In accordance with the procedure for impeachment of executive officials that has subsisted in the English-speaking world since the 14th century, charges were drawn up by the lower house and remitted to the upper house for judgment.

Sir Robert was accused of treason, corruption and giving aid and counsel to traitors. For the Lords Appellant, the five peers who were the driving force behind the ‘Merciless Parliament’ of 1388, his real crimes were his radical notions of executive privilege and royal prerogative, and the support he had provided to the king in seeking to overthrow the lawful authority of parliament.

Two years previously, at the ‘Wonderful Parliament’ of 1386, the Lords Appellant had wrested control of the government away from the impetuous, arrogant and aggressive 19 year old king Richard II. At the commencement of the parliament, the king’s ministers had demanded that parliament accede to an unprecedented grant of taxation. In the medieval period, parliament granted taxation measures as ‘tenths’ and ‘fifteenths’. Tenths and fifteenths were grants of taxation equal to one-tenth / one-fifteenth of the notional value of all of the moveable goods of households in the kingdom in 1334. A grant of a ‘tenth’ and ‘fifteenth’ rendered approximately £38,500 of revenue.

The grant of one tenth and fifteenth was typical. Richard II’s ministers had demanded the Commons accede to a grant of four fifteenths and tenths, or approximately £155,000. The backlash was instantaneous; the House of Commons immediately drew up articles of impeachment for the Lord Chancellor, Michael de la Pole, Earl of Suffolk. Suffolk was found guilty by the Lords and lost his position as Lord Chancellor. This was the first legislative impeachment in the history of the English-speaking world. The most recent was the impeachment of President Clinton in 1998, which proceeded upon the same fundamental procedure; articles were drawn up by the House of Representatives and remitted to the Senate for judgment.

The Commission

Aside from the impeachment of Suffolk, the parliament of 1386 had imposed on the king a Commission of Government made up of fourteen lords and prelates. They were to control the royal administration for a period of one year, having powers to oversee the king’s household and appoint his household officers and government officials. They also had the authority to receive and disburse government revenues. The House of Commons granted a tenth and fifteenth, and excise taxes on wool and wine, which were conditional on the Commissioners exercising their powers undisturbed for the term of their commission. Undermining or hindering the commissioners was declared a capital offence.

Richard II was temperamentally incapable of accepting such a state of affairs with equanimity. He was an egocentric, bullying, arrogant man with an intense belief in the prerogative rights and executive privileges of the crown. After parliament rose, he and his household left London and decamped to the Midlands, to which he summoned a delegation of justices of the courts of King’s Bench and Common Pleas, headed by Sir Robert Tresilian. He posed to the justices a series of questions about the nature of royal authority, and procured from them legal advice to the effect that Commission of Government was treasonable.

Richard II also planned to seek help from the French to overawe and subdue parliament and the Lords Appellant. He reversed the war policy and sought to collude with the King of France, in effect selling the foreign policy of his country to its ancient enemy in order to buttress his own power. The king then raised an army of 5,000 men, intending to break the power of parliament and the Lords Appellant. He would find, however, that it was his power that was broken.

The royalist army engaged the army of the Lords Appellant at Radcot Bridge, and was routed.

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Robert de Vere, Duke of Ireland and Richard II’s favourite, escapes from Radcot Bridge – 1387

After Radcot Bridge, the lords and parliament had their revenge in the Merciless Parliament of 1388, in which Richard II’s ministers, household officers and allies such as the Earl of Suffolk, the Archbishop of York, Sir Robert Tresilian, Sir Nicholas Brembre (Lord Mayor of London) and his tutor Simon de Burley, were impeached, found guilty and sentenced to death.

Despots and Depositions

Richard II survived the Merciless Parliament and over time rebuilt his power and authority, however when during the late 1390s he gave himself over fully to despotism and oppression, he was deposed and killed, and the Duke of Lancaster became the new king, Henry IV.

Between the 1320s and the 1680s, six English kings were deposed, of which five were deposed in conflicts that arose generally out of despotic conduct and attempts to overturn the English constitutional principle that the king is subject to the law, not above it. This constitutional principle was explicitly set out in the 15th-century by Sir John Fortescue, Chief Justice of King’s Bench from 1442 to 1461. Fortescue asserted in his work De Laudibus Legum Angliae (In Praise of the Laws of England), that unlike continental monarchies, which were “dominium regale”, England was a “dominium politicum et regale”; in other words, royal authority operated under the rule of law as part of a political, representative constitution, rather than a constitution in which the king was effectively an emperor whose word was law.

Since the ‘Glorious Revolution’ of 1688, when James II was overthrown by parliament, the English-speaking world has not suffered a despotism or dictatorship. It has perhaps been the genius of the common law world that the elite of our societies viewed upholding the rule of law and representative government to be in their interests. While pre-20th century English and American societies were by no means democratic or egalitarian, they had representative government and they believed in the rule of law. We simply did not have dictators because untrammeled rule by one person was alien to our political, social and legal norms.

Kavanaugh and Trump

Trump is undoubtedly a break in this constitutional, rule-of-law tradition. Not since James II have we seen a leader in the English-speaking world who was so enamoured of their ‘divine right’ to rule, and of their executive privilege and authority. There is nothing conservative about a leader who would overturn hundreds of years of representative, constitutional norms. In fact, Trump himself is quite reminiscent of Richard II whose solipsistic, childish, bullying character has led some historians to label him as having a personality disorder. That Richard II sought to collude with the King of France really is the ‘cherry’ on top of this analogy.

And like a 21st-century Sir Robert Tresilian, Trump’s nominee for the Supreme Court, Brett Kavanaugh, is peddling a view of presidential authority that sees the president as being like an elected caesar; above the law and subject to nothing but his own judgment and conscience.

In the 1380s, parliament used impeachment to take out the king’s ministers and household officers where deposition of the king himself was not considered desirable. The US congress should not forget that their powers of impeachment include the power to impeach any federal official, including judges and cabinet secretaries. Impeachment has a long and honourable history in the common-law world and even if impeachment of Trump is undesirable for political reasons (it may be better to keep him around as an easy target in 2020), the use of the impeachment power against Trump’s subordinates would be an effective way to tie his hands, discredit his policies and overawe his underlings into fearing congress more than they fear Trump.

Societies do not avoid despotisms and dictatorships through statutes and regulations, and constitutional provisions. They avoid them through political and legal norms, and conventions of behaviour, that accrue over hundreds of years. And such norms can be undermined and even destroyed much more quickly than they develop. Allowing the Trump administration to be normalised helps to destroy those political norms that have been developing since the Wonderful Parliament of 1386. Bringing impeachment back into fashion would be an excellent way to fight this unwelcome development.

Litigation by ambush! Paston v Jenney (1471) and the Flemings

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Serjeant Jenney complains to his friends about Paston, before heading to a wizards convention

Imagine you’re in court representing a client. You’re getting into your stride in your opening submissions when a man comes out of nowhere and slaps a poorly-drafted money claim, written on the back of a napkin, onto the lectern. As your initial surprise wears off you recognise the man. He’s an old nemesis from your university days. You poured itching powder into his bed and he’s never forgiven you for it. In fact, he claimed it prevented him from getting a first and thus ruined a planned career at the commercial bar.

He demands that his claim be heard there and then. Expecting him to be dragged out of the court kicking and screaming, you are astonished when the judge agrees to hear submissions from both sides on the matter. Can you imagine the shock, the sense of outrage, the irritation?

It might be difficult to imagine it because the scene is so outlandish, but there is one person in the history of the bar who would know what it’s like. In 1471, serjeant-at-law William Jenney was pleading a cause in the Court of Common Pleas. His old enemy, Sir John Paston, entered the court and tendered a bill alleging a debt. Paston demanded it be heard immediately. Jenney protested that he was in court to deal with another matter on behalf of a client, but the justices agreed that submissions should be heard.

Sir John’s conduct seems reprehensible but is actually entirely understandable given the problems that inhered in 15th-century litigation. One of the most intractable problems was actually getting defendants to turn up to court. For example, here is a mesne process entry in the plea rolls of the Common Pleas from 1493.

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It says;

“Sussex – Henricus Goodman de parochia Sanctus Egidi extra portam vocat Crepulgate per attornatus suum optulit se quartus die versus Thomam Maynard nuper de [illegible] in comitatu predicto husbandman de placito quod reddat ei quatuor libras quas ei debet et iniuste detinet et ipse non venit et praeceptum fuit vicecomites quod capiat et vicecomites modo mandat quod non est inventus…”

Or;

“Sussex – Henry Goodman of the parish of Saint Giles outside the gate called Cripplegate appeared by attorney on the fourth day of the return day against Thomas Maynard late of [illegible] in the aforesaid county husbandman [Maynard’s profession] in a plea of debt of £4 which he owes and injustly detains, and he did not come, and the sheriff was ordered to bring him, and the sheriff now certifies that he cannot be found”.

A very large number of mesne process entries in the plea rolls are of the “non est inventus” (‘cannot be found’) variety. John Doe against Jane Smith, Jane owes 40 shillings, she did not appear, the sheriff said she couldn’t be found, etc. This what what a writ was for; although it could in some ways be thought of as a medieval N1, its primary function was to ensure the appearance of a defendant, or to order the sheriff of a county to apprehend a defendant and bring them before the court.

While expensive writs recorded in Latin were necessary to litigate in the royal common law courts, litigation in the county courts could be commenced with an informal complaint, or “bill”, written in English. Litigation in the Court of Chancery was also commenced by bill.

The exception to the rule that cases in the King’s Bench or Common Pleas must be originated by writ was when you were litigating against a prisoner who was already in the custody of the court, or against an officer of the court. There was no need to obtain a writ to secure their attendance; they were already there.

It seems that when Paston saw Jenney in court, all his Christmases had come at once. No more faffing about with expensive writs and endless non-appearances. A hastily scrawled bill demanding some invented debt is handed over to the clerks with his issuing fee, and he gets to see Jenney sweat. What a delightful morning’s entertainment.

Jenney’s first pleading was that he was in court to minister to the business of his client, and should not be vexed with suits while representing another person’s interests. This apparently cut no ice with the justices so he then argued that since time immemorial, serjeants-at-law could only be impleaded by original writ. He demanded the court give judgment on whether it would accept jurisdiction of the claim.

Paston’s barrister, Serjeant Fairfax, responded that Jenney had appeared in answer to the bill and pleaded nothing in bar, so he prayed judgment for Paston’s debt, with damages and costs. Fairfax also argued that Jenney could not plead a prescription of the right not to be impleaded by bill as only a body corporate could prescribe, and also that as a putative negative right (not to be impleaded other than by writ), it could not be traversed.

This occasioned much argument and, as with so many medieval cases, we haven’t the foggiest who actually won. But it does serve to provide a good entree into writs and bills. In the 15th-century, something as simple as suing for an unpaid debt could occasion considerable cost and delay due to the arcane procedures of the Court of Common Pleas. Upon being summoned to court a defendant could plead ‘essoins’ or excuses for non-attendance, such as illness or being in the king’s service.

After the defendant had exhausted their three essoins and still not appeared, a writ of attachment would issue ordering the sheriff to seize some of his goods or secure pledges who would be fined in the case of non-appearance. If the defendant still did not appear, a writ of distress would issue for the sheriff to distrain his goods and the profits of his lands.

If still he did not appear to answer the claim, the plaintiff could seek a writ of capias to have the defendant seized bodily and brought before the court. However, the plaintiff would have to proceed through multiple stages of capias writs; testatum capias, alias capiaspluries capias and finally exigi facias after which the contumacious defendant would be declared outlaw. At that point, a capias utlagatum would issue.

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Prisoners seized and brought before the Court of King’s Bench

With each of these stages the plaintiff would have to pay issuing fees and have his attorneys actively pursuing the matter in the courts. And even following outlawry, such a defendant might purchase a pardon from the king. In fact, the close rolls are full of such pardons issued after a fine is “paid into the hanaper”. So why would anyone bother with such a ponderous legal system? The answer is because sometimes it did work, and sometimes issuing a lawsuit was enough to trigger serious attempts at settlement.

However, given the above it’s not surprising that arbitration was extremely popular in late medieval England and many serjeants earned a good living providing this service. The exasperating, cumbersome nature of the Common Pleas and King’s Bench also made the Court of Chancery, with its simple procedures and complaint by bill very attractive indeed.

A good example of this is the 1440s chancery case set out in the bill of Arger v Vaill & Ors. Katherine Arger, “sometyme the wyfe of John Arger, the which John had for my sake grete frienship and availl in the countree of Flaundres, there of I was bore”. Katherine, a Fleming, complains to the Lord Chancellor that “for lakke of kindred and counsaill and for lakke of frienship and little Englysshe nether speke nor understond … it cost me £200 and more”.

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“To the moste worshipfull fader in God, John, Archbisshop of Cauntubery, Chaunceller of Englond” – the opening prayer of Mrs Arger’s chancery bill

Katherine’s husband John had married her in her native Flanders, and retained significant business interests there. He passed away, and Katherine, speaking very little English and having no friends, family or legal counsel, was swindled by, “his attourneys Thomas Vaill and John Binfield”.

The sums in question are very large indeed. For example, Katherine speaks of, “seeing he was dede, they resseyvid an £100 of dette which was had of the enbassatours of Flaundres which was payd in Englond was dewe dette unto hym”. This is at a time when in income of £40 a year was deemed sufficient to support the rank and lifestyle of a knight.

Katherine asserts that John’s “grete goodes [and] riches … the which goodes the day of his deth that is notably knowen to all the worthy men of Norwich”, had not been transferred to her control. As widow, Katherine would be entitled to at least one-third of his goods and stock-in-trade, which she values at £1,054.

Landed property is also unlawfully sold by John’s attorneys, specifically, “A plase in Seynt Laurens parissh the which was sold for £40, besyde all his dettes the which they have knowyng of well and goodes moveable household array to his persone horses [cattle] shepe corn of which goodes I had none but 54 marks” (approx. £35).

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15th-century manor house of the sort Katherine and John may have lived in

The Court of Chancery wasn’t only a venue for the resolution of individual grievances; groups of individuals sometimes tendered bills that amounted to a request for a judicial review. In the 1460s, a group of Flemish weavers in London complained they were being expelled unjustly by the city authorities.

“Besechen mekely all the clothmakers aliene of the subarbes of London… they dwelt in the citee and yf so that the said beseechers myght dwellen within the citee as they did they would well bear now as they did afore but the Chambleyn of the Geldehall, the mairs clerk… will not suffer them to abide within the citee … and hath done arest certain of the said beseechers to their utter undoing but yf they have your gracious help and succour in this case”

European workers being thrown out of London seems a particularly topical case to see in the medieval rolls. But they clearly believed that they could secure justice in the English legal system, and late medieval England was a country that believed in and respected the rule of law. That faith was not misplaced; we have a 1464 case in the Year Books that perfectly embodies that belief and respect.

In 1464 a case of trespass was heard before two King’s Bench justices out on circuit. The plaintiff was successful and writs of capias and exigi facias were issued against the contumacious defendant. Several days later, a writ bearing the privy seal of the king had arrived ordering the justices to stay the process against the defendant. This writ under the privy seal had little legal standing and the king was effectively asking them to unlawfully set aside a judgment. Yelverton JKB and Bingham JKB refused, replying;

“They said that we ought to do as reason and conscience counsel us,  it is not honourable for us nor for this Court, nor for any other court to vary in our judgments, as to give judgment in a matter in one Term, and to give another different judgment afterwards in another Term”

For all Jenney’s frustration at being ambushed in court, he could feel secure in the knowledge that the matter would be decided by argument and disputation before the justices, rather than by wealth or ‘might makes right’. If the decision went against him, he could appeal by a writ of error to the King’s Bench, and thence to the Exchequer Chamber, and finally by bill to the High Court of Parliament.

It seems to me that it’s an enormous relief that whether it’s a question of legal aid or Article 50, we can have the same confidence in our justices on the Queen’s Bench or Chancery Division as the Flemish clothworkers and Katherine Arger did over 500 years ago.

The lady doth protest: Saye v Clifton (1451)

 

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Advocates pleading causes at the bar of the Court of Chancery, mid-15th century.

In 1450, England was shaken by a violent peasant uprising led by Jack Cade. Years of ineffectual rule by the incompetent Henry VI, regressive labour laws designed to put downward pressure on agricultural wages and military defeats in France created a perfect storm of discontent.

5,000 rebels assembled at Blackheath and then stormed the City of London, with Cade declaring himself Lord Mayor. As a placatory measure, Henry VI handed over to the rebels James Fiennes, 1st Baron Saye and Sele, who held the offices of Lord High Treasurer and Lord Chamberlain, along with Lord Saye’s son-in-law, William Cromer. They were hauled before an unlawful tribunal set up in the London Guildhall and sentenced to death, after which they were beheaded and their heads paraded around the city on pikes.

Lord Saye was survived by two children, Elizabeth and William, and his wife Emmeline. Emmeline was the daughter of Sir William Cromer, a wealthy doyen of the Drapers’ Company who had twice served as Lord Mayor of London and was also MP for the City of London in the House of Commons.

Under the common law of England, Emmeline could expect a life estate of one-third of Lord Saye’s landed property. As a widow, she would be a ‘femme sole’ and thus enjoy legal independence; the ability to own property, to sue and be sued in her own name, to exercise legal authority over her tenants and servants, whether male or female. Emmeline did not, however, receive the customary third that would have devolved to her upon her husband’s death. By the mid-15th century, the nobility typically conveyed their property to trustees, known as ‘feoffees-to-use’, to be held in a trust known as a use. They did this for a number of reasons. One was that that it permitted much greater freedom in the testamentary disposition of property, as opposed to allowing their lands pass by automatic operation of common law; i.e. one-third to the wife for life, the rest to the first-born son, or to all daughters equally if there be no sons.

Another reason for conveying land to feoffees is that it permitted the nobility to avoid taxes and other disbenefits associated with holding land directly of the king as a tenant-in-chief, by the land tenure known as knight-service. Knight-service was land that was originally granted by the king, or by a lord, to a feudal vassal in exchange for the vassal’s fealty and their military service when called upon. Knight-service was particularly restrictive compared to other forms of tenure, such as common socage (effectively the only remaining form of land tenure today).

One ‘incident’ of knight-service was the right of the feudal lord, in this case the king, to receive a payment upon the heir succeeding to their lands. Another was the right of the feudal lord to have the wardship of any underage heirs; Littleton points out in his Tenures (1481), “For when such a tenant [holding by knight’s service] dieth, and his heir be within the age of twenty-one years, the lord shall have the land holden of him until the age of the heir of twenty-one years”. Finally, if a tenant-in-chief died without direct heirs their land would revert to the crown.

The nobility could avoid these fees and obligations by conveying their land to a group of trustees to be held in perpetual succession, so that the property would never devolve by operation of common law inheritance. As Milsom said in Historical Foundations of Common Law, in this way “the heir was smuggled in duty-free”.

Partially displacing the old feudal relationship between king and vassal, the nobility created a new set of relationships with their ‘feoffees’; professional advisers like attorneys and advocates, estate managers, their in-laws and their most trusted tenants. The old feudal tie of fealty was replaced by indentures, contracts, bonds and salaries paid out to liveried retainers. This new legal dispensation was an essential characteristic of the ‘bastard feudalism’ of the 15th century.

One possible drawback was that, like in the common law of the 21st century, a trustee or feoffee-to-use was the ‘legal’ owner of the property in question. If the feoffee failed to dispose of the land in the manner intended by the feoffor, they had no remedy at common law. In a 1464 case in the Common Pleas arising from such a situation, Moyle J said,

“These would be good facts in Chancery, for there the defendant shall aver the intention and purpose of such a feoffment… but here, by the course of the common law in the Common Pleas or King’s Bench, it is otherwise; for the feoffee shall have the land, and the feoffor shall not plead a justification against his own feoffment, whether it was on trust or otherwise”

This is precisely the situation in which Lady Saye found herself following the death of her husband. Instead of issuing a writ, in Latin, in the Common Pleas or King’s Bench, the remedy was to tender a ‘bill’, written in English, in the Court of Chancery. We have here the bill tendered by Lady Saye’s attorneys, Thomas Clemens and Thomas Colye of London, to the Lord Chancellor, the Cardinal Archbishop of York, John Kemp.

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Lady Saye’s bill in the Court of Chancery

The bill commences with the formulaic ‘prayer’; “Right meekly beseecheth to your good lordship, Emmeline, Lady Saye, late the wife of James Fiennes, Knight, Lord Saye”. Lady Saye goes on to identify a number of men holding, “in their demesne as in fee all the manors, lands, rents and knight’s fees, advowsons of churches and chantries, with their appurtenances”, which had originally been enfeoffed upon Lord Saye and his professional advisers, Messrs Clifton, Rogger and Fineux.

Lady Saye asserts that this feoffment was to be held to the use of Lord Saye and to “perform the last will of the said James Fiennes the which James Fiennes all the days of his life by virtue of the said feoffment took the profits of the same, and in his last will ordained that the said feoffees after his decease should make an estate of the foresaid manors, lands, rents etc etc to your said beseecher”.

Lady Saye continues; “After which James Fiennes deceased your said beseecher hath oftentimes required the foresaid [Messrs Clifton, Rogger and Fineux] to make her estate in the said manors, lands, etc etc, according to the said last will. Which to do they duly refuse and daily continue to … take all the profits of the same”.

The bill concludes, “Whereupon if it please your gracious lordship.. to grant .. subpoena [requiring] the foresaid [Clifton, Rogger and Fineux] to appear before the kynge in his chauncerie upon a certain day … She shall pray for you”.

Unfortunately the Chancery archives principally contain bills and not the records of Chancery proceedings; we do not know anything further of the procedural history of the case. Lady Saye died the following year, in 1452. I am curious about whether Messrs Clifton, Rogger and Fineux took particular advantage of Lady Saye because she was a woman. I have written before about the sexism that inhered in English law at this time and it is quite possible that she was perceived to be an easy target. Her husband had just died after being thrown to the wolves by the king, and in the aftermath of the Cade rebellion it might have been perceived impolitic for the court to have been seen giving succour to Lord Saye’s wife.

We do know that the 3rd baron was never summoned to parliament; this could occur where a peer was judged too poor to maintain their rank, which hints at the possibility that the family never got that property back.

Having said that, a chancery bill necessarily tells only one side of the story. I would be disinclined to judge a case without hearing both sides, and with the distance of almost 600 years it is impossible to get any real handle on the underlying reality of the matter without seeing more evidence.

However, the barony of Saye and Sele still exists today; the current holder is the 21st baron, and the prolific Fiennes clan includes actors Ralph and Joseph Fiennes, explorer Ranulph Fiennes and author William Fiennes. Whatever the rights and wrongs of the case, it didn’t slow the family down for too long.

 

 

A day in the life of a 15th-century barrister

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Inner Temple and Fleet Street in 1561

There have been calls in recent years to do away with the split legal profession. Proposals for a fused legal profession come with regularity, and attempts have been made made to abolish wigs and gowns.

The English bar of the 1450s is a profession that may be eminently relatable in its attitudes and habits to the modern practitioner. In that vein, I felt a ‘day in the life’ might be interesting insofar as it exhibits the great antiquity of, and continuity in, the English bar and conveys a sense of the uniqueness of its traditions and practices.

Digs

Our barrister is an apprentice-at-law, the medieval equivalent of junior counsel. The medieval equivalent of senior counsel were the serjeants-at-law. There may have been approximately 1,000 apprentices across the four Inns, while there were often as few as half a dozen serjeants and sometimes even as few as three. An apprentice might also be a reader or bencher of his Inn.

In theory, the serjeants had exclusive rights of audience in the Court of Common Pleas, the premier civil court of the realm in which was heard real actions and pleas between subjects. In reality, it seems that apprentices did sometimes plead causes in the Common Pleas and given the court saw around 10,000 cases per year in the 1450s, it seems unlikely a half-dozen men could have appeared in every one.

Our barrister lives in chambers at the Temple during the legal term, while his wife lives in the country at his ancestral manor. Women are not allowed in chambers although it is common enough for members to sneak a lady friend into their room, and to pay a fine if caught. In fact, the records of the Inns register countless fines paid out for infractions; fornicating, blaspheming, gambling with dice, stabbing each other with daggers. In spite of the rambunctious nature of the medieval bar, the Inns are characterised by a great sense of camaraderie. The Temple was described in Elizabethan times thusly;

A place wherein are store gentlemen of the whole realm that repair thither to rule and obey by law, to use all other exercises of body and mind whereunto nature most aptly serveth to adorn by speaking, countenance, gesture and use of apparel, whereby amity is obtained and continued, that gentlemen of all countries in their young years, nourished together in one place with such comely order and daily conference, are knit together by continual acquaintance in such unity of minds and manners as lightly never after is severed.

Chambers is two rooms that our barrister shares with a fellow reader and a pupil; enough space for writing desks, a couple of chairs, straw mattresses, a small fireplace and storage space for documents.

His day begins before dawn and a tap on the window from a professional ‘knocker-up’, or human alarm-clock, is his wake-up call. The central law courts at Westminster Hall sit between 8am and 11am, Monday to Saturday, during the legal term. One is not given a particular time for a hearing; every case is a ‘floater’ so it pays to get there early.

Our barrister loads up his pupil with papers, quills and ink and they walk down to Temple wharf and engage a boatman to take them up-river to the Palace of Westminster. A short journey up-river is far preferable to walking or riding through the filthy, overcrowded streets.

Westminster

Landing at the Palace of Westminster, our barrister would encounter not the singular, neo-Gothic behemoth standing there today but a rambling precinct of buildings of various vintages. The palace is the nerve centre of the medieval English state; the location of the central law courts, a meeting place for parliament, an archive, a royal palace and a storehouse for treasure.

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The palace was focused around Westminster Hall, the home of the courts of King’s Bench, Common Pleas and Chancery. In an adjoining building was the Court of Exchequer and the Exchequer Chamber, the latter being a court of appeal. Adjacent to the Hall was the Painted Chamber, a throne-room in which the House of Lords met during parliaments. The House of Commons had no permanent home as yet but would often meet in the Chapter House of Westminster Abbey.

The courts themselves were situated inside the hall on raised wooden platforms. The southern end of the hall was shared by the King’s Bench and Court of Chancery, while the Common Pleas was situated on the western wall towards the northern end of the hall.

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Along the sides of the hall were vendors selling stationery, legal texts, snacks and ale. The hall could be a cold and draughty place in late Michaelmas and early Hilary, with heat being provided by a number of small coal braziers.

In the morning during legal term, Westminster Hall was a very busy, and noisy, place. Litigants, attorneys and barristers would congregate around the bar of the court waiting for their case to be called. There would also be numerous law students in attendance, for the direct observation of court proceedings was considered to be a most efficacious mode of teaching the practice of law.

The judges sat on a raised platform with their backs to the wall. At their feet were the clerks of the court; they would record the pleas for the plea rolls and legal argument for the Year Books (medieval law reports). Order would be kept by ushers armed with white staffs.

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The white-capped fellows standing at the bar are serjeants-at-law; the spectators at left are law students. The court usher on top of the clerks’ table stands ready to give them a crack over the chops if they misbehave

Our barrister meets with his first client for the day, a prosperous merchant of Guildford who is the plaintiff in a claim of replevin (an action to recover personal property). The defendant is the sub-sheriff of Surrey whom the plaintiff claims has stolen his sheep. The barrister is to represent his client in a preliminary hearing.

This case management hearing is to resolve any issues of law and secure ‘joinder of issue’ so that an issue of fact can be presented to a jury to resolve (trial at nisi prius). That jury trial would then occur in the county court proximate to the controversy, presided over by a judge or judges of the King’s Bench, Common Pleas or Exchequer on circuit.

Some legal academics believe that the medieval barrister’s practice may have been “high-volume / low-fee”. Preliminary hearings at Westminster Hall primarily determined questions of law and could be highly abstract. In preparing for a case, a barrister might spend comparatively little time familiarising himself with the particular facts of his cases and instead focus on building and maintaining his knowledge of caselaw and hypothetical scenarios, and honing his ability to think on his feet and respond to unexpected or novel legal argument. His aim was to ensure that the question the court tendered to the jury was that which was most favourable to the client’s prospects. A 15th-century barrister practising at Westminster Hall might plead causes at the bar day-in, day-out without often seeing a verdict; that could be left to a provincial attorney who would take responsibility for the case once it was referred back to the county court for jury trial at nisi prius.

In the case before them, the defendant sub-sheriff’s counsel argues that two knights were elected to the House of Commons to represent Surrey in the recent parliament, that these knights are entitled by statute to recover their travel and subsistence expenses through an assessment levied on the county and that Guildford’s contribution was 40 shillings. The sheep were taken and sold to cover part of Guildford’s contribution.

Our barrister replies that the sub-sheriff still has the sheep, thus they cannot have been taken for the purposes of sale. The justices are against the plaintiff on this point; it is not a good ‘replication’ to the sub-sheriff’s defence as it does not go to the original issue of liability.

Our barrister then argues that the sheep were taken to satisfy the nonpayment of the levy by others, and not by him. He further argues that Guildford is an ancient borough that sends its own burgess to the House of Commons, and thus he cannot be chargeable for the parliamentary expenses of knights who are not his member of parliament.

The justices reply that statute gives the king the power to take this property to meet the expenses of knights of the shire, and that whatever is within the power of the king is within the power of the sheriff and his agents. The plaintiff’s remedy is, therefore, by way of petition to the king’s council or to parliament.

Our barrister has unfortunately not been able to secure a win for his client; the writ abates and his client’s case ends at this preliminary hearing without proceeding to a jury trial.

Exchequer Chamber

Our barrister moves on to his second case of the day, a matter of exceptional legal importance to be heard in the Exchequer Chamber. He is representing Simon Eyre, a pawnbroker of the City of London, the defendant in a case before the Court of Exchequer that was removed to the Exchequer Chamber in light of its legal implications.

An ‘information’ was laid before the Court of Exchequer by the Keeper of the King’s Jewels alleging that certain of the king’s jewels that had been in the Keeper’s custody came into the possession of the defendant. Process issued against Mr Eyre to answer this information and justify his possession of the jewels, or otherwise return them to the king. The implication is that Mr Eyre has received stolen property.

Our barrister notes that an enormous amount of legal firepower has been assembled by the king; four king’s serjeants (medieval Treasury devils) and the Attorney-General have appeared to argue the king’s case.

In response to the information, Mr Eyre pleads that it is a custom of the City of London that if a person puts goods in pledge for a duty (for example, payment of a debt), he to whom the goods were pledged may keep them until the duty is satisfied. Mr Eyre pleads that another was in possession of the jewels and pledged them to him as security for a loan of £60. He denied that the jewels came into his hands by any other manner, and added that the loan remained unpaid. While he does not formally traverse the king’s pleading that they are his property, he also does not does not admit that they are, points out that they are not marked with any print or arms of the king and says the king should be put to strict proof on the question of ownership.

King’s Serjeant Choke now rises in reply. He argues that the matter pleaded as custom does not lie in custom as it does not have good commencement (evidence of continuous existence since time immemorial) and that it is contrary to reason and common law. He says that if it were so, “I can put all the goods of my master Fortescue (Chief Justice of King’s Bench) in pledge, even though I do not have them in legal possession. It is not reasonable that one will put the goods of another in pledge”.

Choke says that if there were a custom that one can devise land held in fee tail, or land held for life or a term of years, it would be void because it would prejudice those in the reversion or holding in fee simple and thus would be contrary to common law. Likewise, the custom here is in prejudice of him who owns the goods and so it should be likewise void.

In the alternative, Choke argues that even if there were such a custom that had good commencement and was held to lie in cases between subjects, the king would not be bound by it.

Our barrister replies by referencing that in certain parts of the country, inheritance operates by gavelkind in which all males inherit equally, and in other parts inheritance operates according to the custom of ‘Borough English’, where the youngest son inherits. He says also that in the City of London, a ‘feme sole merchant’ may plead or be impleaded separate from her husband. These are contrary to common law and yet held to be good custom. He also says that it could be that the king granted by authority of parliament that the City of London would have such a custom, and that if one can imagine a good commencement, such a thing can lie well enough in custom.

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Staple Inn, opposite Chancery Lane station on High Holborn. Staple Inn was an ‘Inn of Chancery’, which were to attorneys (solicitors) what the Inns of Court are to barristers. Neophyte barristers would first attend an Inn of Chancery to learn about writs and legal procedure. Staple Inn is one of the few non-royal, pre-1600 buildings in London.

King’s Serjeant Hindstone rises and says the matter cannot lie in custom because it is against reason. He says that in a recent writ of nativo habendo before the court, in which the defendant pleaded that it was a custom of London that if a villein resided peaceably in London for a year he will be free, the custom was held void inasmuch as it is contrary to reason and common law because villein is an inheritance. Equally, the custom in the instant case is against common right and in prejudice to others and should likewise be held to be void.

Serjeant Hindstone further says that even if it was good custom, it would not avail against the king. There are vills that hold the tolls of roads and bridges by custom, yet the king does not pay anything for his carriage on these roads and bridges, and so even if the custom were good, the king is not bound by it.

Our barrister responds that a devise justified by custom can have good commencement and be consistent with reason, and contrary to common law, and yet be valid. For example, in various parts of England the custom holds that widows be endowed with half the husband’s estate (rather than the usual one-third), and in some places is held to have as an estate for life the principal mansion house of the husband, and this custom is as well pleaded against the king as against a stranger.

King’s Serjeant Littleton responds that in respect of customs that are contrary to common law, such as ‘Borough English’ whereby the youngest son inherits, they will lie because they are reasonable; the youngest son inherits inasmuch as he is worse able to aid himself, and is as near in blood to the father as the eldest. By contrast, the custom pleaded by the defendant would mean that one can be robbed and his goods pledged, and he would have no legal remedy to secure their return. It is thus contrary to reason and distinguished from customs that are contrary to common law but justified by reason.

It is further distinguished by the fact of the plaintiff being king; if there is a custom of a vill that waifs and strays (lost animals) can be seized by the lord if not claimed within a year and a day, even if 20 years pass the king can take his horse because time does not run against the king (“Nullum tempus occurrit Regis”). Thus the intervening transactions relating to the jewels do not avail the defendant.

The Attorney-General, William Nottingham, now rises to speak. He says that the law could be, between common persons, as our barrister has said. However, where the king is a party it is otherwise. Where the king can demonstrate that such goods were once in his possession and not otherwise alienated, process will issue against any person who has secured physical possession without permission.

AG Nottingham then says that it is against reason that a stranger should have power to put his goods in pledge and that he should have no writ or remedy to effect a recovery.

The justices adjourn to deliberate. Shortly thereafter, they return to the chamber and Prysot CJCP (Chief Justice Common Pleas) gives the following judgment; “A thing cannot lie in custom unless the same thing be reasonable, and if it is reasonable, notwithstanding it be contrary to common law, yet it can lie well enough in custom. The custom pleaded is not reasonable”. The justices have ruled against Mr Eyre. The matter is remitted back to the Court of Exchequer, and Mr Eyre will have to return the jewels or face outlawry.

Building a practice

Our barrister is disappointed not to have prevailed, but feels satisfaction at having taken part in a case of such importance. By now the court proceedings in the hall are winding up and lawyers and litigants are dispersing. Our barrister’s work day is not over yet. If he is to secure new work, he must seek it out.

He leaves the Palace of Westminster, walking through Whitehall, up Strand and back into the City of London. Stopping momentarily to purchase a joint of mutton to gnaw on, he makes his way to the parvis of St Paul’s (the steps fronting the entrance of the cathedral).

The parvis of St Paul’s is where barristers tout for business. The churchyard of the cathedral, also known as St Paul’s Cross, is a very busy place. It is the place at which royal proclamations are made. Heretical books, and sometimes Lollards, are burned in the Cross. Itinerant friars preach here, and people gather for public debates. It is like a medieval London cross between Piccadilly Circus and Speakers Corner at Hyde Park.

If barristers need to meet with a client or attorney for a con, they have space inside the cathedral where they can sit, take notes and dispose of legal business.

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St Paul’s Cross

At the Cross, our barrister sees the attorney of the Worshipful Company of Mercers. The Mercers have regularly instructed him on livery company business, and he makes his way through the crowd to engage him. The attorney informs him that the widow of the former Master of the company has taken possession of one of the Company’s wharves at Queenhithe. The widow is claiming that fee simple title to the wharf was sold to the master and devised to feoffees who hold it to her use. Each time the Mercers have sent their servants to take possession of the wharf, the widow’s henchmen have beaten them up and driven them off the docks.

Our barrister determines that the first step is to secure copies of the conveyances that record the sale, if they indeed exist. If they do not, then a writ of novel disseisin can quite simply be issued in the Common Pleas against the widow and the feoffees-to-use. He sends his pupil to the Rolls House on Chancery Lane to do some research in the archives and attempt to find the Feet of Fine registering the ownership of the wharf.

After a day of toil and industry in the courts and at the cross, our barrister can return to the Temple for dinner (lunch) and an afternoon of mooting, legal readings, dancing and mirth.

Legal education

At 2pm, the Master of the Temple orders a cannon shot be discharged to let the benchers, serjeants and apprentices know it is time to eat. They return to Inner Temple hall, the benchers and any distinguished visitors sitting at high table.

Malmsey wine and venison pasties are served to the benchers and apprentices while the students sing, dance and perform plays to entertain them. Attendance is compulsory and the Butler will search the grounds of the Inn to make sure the students are not eating in their rooms, although a student who makes it to the buttery cannot be forcibly brought to the hall for it has been ajudged sanctuary since time immemorial.

Other dishes like roast beef and boar’s head are served to the assembled members. It is likely our barrister will be sitting at the same table as those he appeared opposite in the Exchequer Chamber, and it is an opportunity to discuss the case and its implications for the practice of money-lending in the City.

At this point, the Master poses a legal question, whether the king can by letters patent grant the wardship of the heir of a tenant-in-chief before the tenant is deceased, and the students divide into teams to moot the question as if before a court. The benchers interject awkward and difficult questions, and then decide who has won.

Once cheese is served, the students are excused from their entertaining and mooting duties and are now free to eat. After dinner, our barrister can repair to the library to do some research about the legal status of self-dealing transactions by the officers of corporations and livery companies. He might seek advice from other barristers in the library on that point, or give advice to his pupil on how to find relevant documents at the Rolls House.

His day ends with the Vespers service in the Temple Church and a modest supper in the hall with his comrades, and then returns to chambers for some light reading by candle-light, and bed.

Back in 2018

With this ‘day in the life’, it’s possible to see from whence came the singular traditions of the bar, such as qualifying sessions, pupillage, moots and its collective character. There have been calls for such traditions to abolished and for the legal profession to be fused. In my opinion, this would be a grave error.

Just like the special apparel of the bar, these traditions confer a special sense of identity and belonging to its members. If the bar’s contribution to the rule of law is partly a function of its independence, then maintaining those practices that set it apart and give it a unique sense of identity and tradition are to be applauded rather than swept away in the name of eliminating heterogeneity and making it less ‘stuffy’ and ‘intimidating’.

There is no other country on earth that possesses a system of legal qualification and practise akin to the English bar and Inns of Court. This is a thing of value, not a vestigial embarrassment, and its continued existence should be supported and protected.

State of the ET Lists: Worse than medieval times

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Inner Temple and Fleet Street in 1561

It was last month that I first heard of an Employment Tribunal liability hearing listing being scheduled more than twelve months hence; a seven-day hearing pushed into 2019 before 2017 had even come to a close. And it’s not just for liability hearings, every kind of listing is becoming more scarce. In February 2017 I made an application on a Wednesday for an urgent telephone hearing; one was listed for Friday afternoon. These days it can take months simply to be given the listing, never mind when the hearing might be.

This is no fault of the tribunal staff or the EJs or lay judges; they are doing the best they can under the pressure of an incredible workload.

I’ve been reliably told that HMCTS does not have a full-house of part-time EJs stashed in their back pocket, and so the situation, such as it is, may last for the foreseeable future; at least, until claim levels come down or HMCTS can train up new EJs. This is a sad state of affairs, not only because of the uncertainty it imposes on claimants, but also because we seem to have gone backwards over the last 600 years.

That is not hyperbole; the Employment Tribunal is now arguably less efficient than English courts of the 15th century. I can already hear the objections.

“Given low levels of literacy and a simple social structure, surely they could not have that much litigation to deal with?”

On the contrary, it is arguable that medieval English people were more litigious than modern Britons. In the 15th century, the Court of King’s Bench would typically hear around 2,500 cases per year, and the Court of Common Pleas around 10,000 cases.

In 2007, the Queen’s Bench and Chancery Divisions of the High Court heard 63,000 cases. Given the population of England in the 1450s was approximately 2 million, the High Court would have to be hearing 300,000 cases a year to reach medieval levels of litigiousness.

“But surely the law was much simpler back then? They probably just sat around under an oak tree dispensing justice according to what seemed ‘fair'”

Not at all. Medieval law was just as complex and sophisticated as modern law. In many cases, it would be entirely familiar to modern practitioners. For example, the 1412 case in the Common Pleas of Lady Lovell v John B. The record of process and pleading is as follows;

[Lady Lovell] sued scire facias out of a fine, and demanded the land as right heir to the remainderman after the tenant in fee tail died without issue

Defendant pleaded that the tenant in fee tail had a son and three granddaughters who remained alive

Plaintiff relied that the tenant’s son was a bastard, and prayed a jury where he was born

Defendant rejoined that the tenant’s son was legitimate, and prayed a jury where the land was

Any chancery practitioner, and indeed anyone with a law degree, should understand exactly what is going on in that case and what the issues are. Another case that evidences the point is Marshal’s Case of  1441. I quote at some length both pleadings and argument by the serjeants (medieval QCs) to show just how familiar were their concepts of law, and modes of disputation, to our own.

Plaintiff counted that defendant undertook at London to cure plaintiff’s horse of a certain disease, and that defendant so negligently and carelessly applied medicines that the plaintiff’s horse died

Defendant pleaded that he undertook at Oxford to cure plaintiff’s horse, and that he sufficiently did so, denying that he undertook at London to cure plaintiff’s horse

Plaintiff replied that defendant must traverse the misfeasance, not the undertaking

Newton CJCP argued that defendant’s plea was good, because without defendant’s undertaking, plaintiff would not have a cause of action

Sjt Markham (for P): Where a carpenter undertakes to build me a good and sufficient house, and never does it, I will not in this case have an action against him, which proves that misfeasance is the cause of action, and this to my understanding must be traversed

Paston JCP: You have not set out he is a common marshal (horse doctor) for curing such a horse

Sjt Fortescue (for D): Sjt Markham has said that if a carpenter undertakes to build me a house and does not do so, I will not have an action against him and this proves that the undertaking is not the cause of action: to this I say that in some cases where one undertakes to do something and does not do it, I will have a good action for his nonfeasance and the traverse will come on the undertaking: say I have a ruinous house and a carpenter undertakes well and sufficiently to mend the house before a certain day, and does not do so and as a result of which the whole house falls down, I will have an action against him

Ayscough JCP: Suppose that I sell you a hundred sarplers of wool with a warranty that they are good and merchantable, and then you find they are full of moths: this warranty is as much a cause of action as the unwholesomeness of the wool, and the traverse may well be taken on this warranty

So what sort of timeframe might a medieval litigant face in bringing their claim? The 1408 case of Clotes v Luter before the Mayor’s Court in the City of London is instructive; on 26th September, 1408 plaintiff John Clotes gave the defendant, John Luter, fifteen semi-precious stones called “serpentyns”(value £6), a table of gold (value £3) and a sword (6 shillings 8 pence). Clotes gave these objects to Luter as payment for curing him of leprosy.

Clotes complained that Luter did not cure him, and demanded damages of £20. The court records Luter’s response and its own judgment;

“[Luter accepted] It was true that John Clotes had come to him, but he had asked him to cure him of a disease in the face called ‘salsefleume’. He agreed to cure him so long as he was not leprous, and the plaintiff assured him that he was not leprous.

The defendant said he knew well that the plaintiff was leprous and told him so, though the plaintiff was willing to swear that he was not. Then the mayor told the defendant that he had taken the plaintiff’s goods fraudulently, deceptively and injuriously.

And afterwards the defendant said that though he had not cured the plaintiff of leprosy, he had taught him how to make balsam and other medicaments, and so he thought he might justly keep the goods”

The cause of action crystallised on 26th September, 1408. The matter was heard before the Mayor’s Court on 5th November 1408 and judgment was given on 15th November 1408. All in all a remarkable performance, approximately 6 weeks from cause of action to judgment, in a period with poor infrastructure and communications.

The City of London’s legal system shows similarly impressive responsiveness for planning issues. On 12th October, 1412, Robert Brown, goldsmith, complained;

“that great damage and injury was being done to his tenement and wharf near Fleet Bridge in Fleet Street by the raising of the pavement on the north side opposite the wharf, as a result of which the watercourse which ran down the middle of the street so flooded the wharf that he lost his profit from it”

A mere four days later, on 16th October;

“The mayor and aldermen went to the tenement and wharf, and … gave orders that the pavements on either side of the street should be of the same height, and that neither of them should in future be so raised higher than the other as to prevent the water having a free course down the middle of the street to the drain at Fleet Bridge”

And what of cases in the ordinary common law courts? The Court of Common Pleas is admittedly less efficient than the London courts, but still impressive given the period. This can be seen in the case Janyns v Atte Water and Larke. Margery Janyns alleged that on 3rd May 1428, Robert atte Water and William Larke broke open a chest she possessed in Norton St Philip, Somerset, and stole £200 cash (for comparison, a day labourer might earn £5 to £10 a year).

It was decreed that the case would be heard as separate claims against Atte Water and Larke, in the Trinity term of 1429; Janyns v Atte Water before Babington CJCP (Chief Justice, Common Pleas) at St-Martin’s-le-Grand in London and Janyns v Larke before John Juyn CBEx (Chief Baron, Court of Exchequer) at an assize in Somerset. Janyns was successful in both cases, and before the end of Trinity term she was back before the Common Pleas at Westminster Hall. It was decided that, to avoid double damages, the Atte Water judgment would stand against both men, and Janyns secured execution of her court judgment.

Counting at least two preliminary hearings and two separate trials, Janyns was able to secure judgment within perhaps a year of the cause of action.

Sir John Fortescue, the 15th century Chief Justice of the King’s Bench, made a virtue of delay in certain chancery cases in his book De Laudibus Legum Angliae;

“In real actions, almost everywhere, the process goes on slow and tedious … by these means the parties are better provided with his proper defence… ‘Judgment is never so safe when the process is hurried on'”

I’m skeptical as to whether such an argument could sensibly be made today in respect of the Employment Tribunal system.

As shown above, those 15th century courts were facing a higher per capita level of litigation, and were dealing with legal issues no less complex, than our own. It seems to me that there is no reason why the Employment Tribunal could not match, or even exceed, the performance of late medieval English courts.

We don’t need to introduce trendy, new-fangled innovations like cases conducted entirely over the internet; all that’s required is a willingness to do what is necessary to bring down the average period between PH and liability hearing.

That would require commitment on the part of the government, and money. Unfortunately I possess little optimism on that front. The recent closure of the Lambeth County Court, after 1,000 years of continuous judicial presence in Lambeth (from the time of Edward the Confessor) is, I fear, indicative of what we can expect. It is only when the government starts to truly value the rule of law, and what it is that judges and lawyers bring to the table, that proper funding of the less glamorous parts of the courts and tribunal system will be a priority.

 

Is Suburra the new Gomorrah?

suburra-netflix

Spadino, scion of the Anacleti crime family

This place hasn’t changed in 2,000 years. Patricians, plebeians, politicians and criminals, whores and priests… Rome”

In 2006, Italian journalist Roberto Saviano released a non-fiction book about the Neapolitan mafia, the ‘Camorra’. It was called Gomorrah, a suitably ominous biblical reference, and it was a sensation in Italy; over 2 million copies were sold. The chiefs of the Neapolitan Camorra clans were not, however, as impressed and Saviano earned their undying enmity. Even today, eleven years later, he lives under 24-hour police protection  in a Carabinieri barracks; the only place where Camorra hitmen cannot get to him.

The book was not simply sensational for what it revealed about the structure and practices of the feuding Camorra clans, but also for what it revealed about a broken and corrupt political system that had permitted organised criminals to operate with near impunity. One business in which the Camorristi were deeply implicated, the large-scale dumping of toxic industrial waste from northern Italy and Germany, led to a waste management crisis in the mid-2000s that paralysed Naples and saw the streets filled with garbage for several years. (cont. below)

naples

Pecunia non olet… at least for the Camorra clans

The dumping of toxins, chemicals and medical waste occurred on such a large scale that a tri-municipal area in Campania is now known as the ‘triangle of death’ due to the abnormally high levels of bladder cancer, brain cancer, CNS disorders and birth defects.

The Neapolitan, and indeed Italian, political class failed in their duty to provide the most basic and fundamental protections to their citizens, and this in what is supposed to be a modern European democracy. It is, therefore, no surprise that the book Gomorrah attracted such intense interest in Italy.

The book was eventually made into a movie, and then finally into Gomorra la Serie. The series follows the trials and tribulations of the Savastano clan, its ruthless leader Don Pietro and his Joffrey-esque son Gennaro, a Clan Savastano soldier Ciro and the various bit-players who inhabit their world. Gomorrah is excellent in the sense that it’s a remarkable invitation into a world few of us will ever know; there’s a definite sense of authenticity in their manner, their clothing, their music, in their setting (the very working-class Secondigliano neighbourhood of Naples).

On the other hand, Gomorrah falls down in the writing. Most of the characters are surly, emotionally-opaque sociopaths whose motivations and actions rarely go beyond the mercenary. This might be authentic insofar as this may well be the type of person attracted to a life of organised crime, but it makes for less engaging television. Furthermore, although the central characters are, with few exceptions, completely unsympathetic and charmless, it’s hard to shake the feeling that the people who made the show may be caught up in the, if not glamour, then excitement of the Camorra lifestyle.

gomorrah-review-ew

Secondigliano is fascinatingly grim, and also a treat for those who dig Brutalism

By contrast, Suburra possesses no such defects. Suburra (a reference to ancient Rome’s red-light district) is a new series, released three weeks ago on Netflix, about crime, corruption and power in Rome. It passes up a purely crime-focused drama in favour of one that explores the murky and complex relationship between three great power centres in the Eternal City; the politicians, the Vatican and the mafia.

The series centres on three very different young men whose involvement in a crime inextricably binds them together. One is Spadino, the son of the head of a Romani (Roma/traveller) crime family, who is unsure of his sexuality and being pressed into a marriage to seal an alliance between mafia clans. The second is Gabriele, a clean-cut university student from the right side of the tracks,  whose affair with a much older (and wealthier) woman, and dabbling in small-scale drug dealing, draw him away from the life his policeman father hoped he would have. Finally there is Aureliano, a quick-tempered soldier in an organisation headed by ‘Samurai’, the most powerful crime lord in Rome. Like the others, Aureliano’s yearning for a different life, set against the powerful gravitational pull of the familiar, are what drives him and perhaps ultimately the show.

Suburra gives an authentic view into the lives of organised criminals in Rome, but it also has interesting, well-written characters that are positively three-dimensional compared to their Gomorrah counterparts. They are criminals, no doubt, but their motivations go beyond the purely mercenary; they are understandable, relateable, human motivations and emotions.

Equally interesting is Suburra’s fascinating exploration of issues of class, race, sexuality and religion in modern Italy, all done without preaching or knocking the viewer over the head with any obvious sort of ‘message’. Yes, we see the murders and the tense meetings between mafia bosses. There are heists and shootings and posturing criminals. But we also see city council meetings, cocktail parties in Rome’s polite society, working-class nightclubs and curial meetings in the Vatican… We discover what drives the denizens of these disparate worlds, how they conceive of themselves, their prejudices and their hopes.

If I were to compare Suburra to a TV-show, it wouldn’t be Gomorrah but The Wire. It tells a story we’ve seen often enough (mafia movies, etc), but in a completely new and engrossing way. Add to all of this beautiful, evocative cinematography that doesn’t merely show off Rome but captures the mood and character of the story.  I cannot recommend it highly enough.

(Suburra is available on Netflix for UK viewers)

Is the Presidential CMO on UNISON v Lord Chancellor applications ultra vires?

emp tribunal

In late July, the Supreme Court issued its decision in UNISON v Lord Chancellor, overturning the Employment Tribunal fees regime that had been in place since 2013. The decision has implications for tens of thousands of litigants who paid issuing or hearing fees since the enactment of the Fees Order.

Quite understandably, the number of claimants seeking a refund necessitated allowing the Ministry of Justice some time and space to put in place an orderly scheme for refunding the unlawfully-imposed fees. However, the more interesting legal question arising from the judgment was whether claims which had been struck out due to non-payment of fees could be reinstated.

There are undoubtedly reasonable arguments both for and against. A struck-out claimant might argue that as the secondary legislation has been found ultra vires, the tribunal had no power to strike-out the claim and therefore the claim must be considered to still be extant (with appropriate, consequential case management directions to give effect to that state of affairs). A respondent might argue that the passage of time would render the reinstatement of such claims highly prejudicial to them, that witness’ memories fade and documents are disposed-of, and that if the claimant has been deprived of their right to a fair trial, their remedy is against the state by way of a human rights claim.

I’m sure there are many more learned and incisive arguments on this question than I’ve managed to articulate here, but the point is that these are difficult questions requiring a sensitive balancing act, and only a court (or parliament by way of primary legislation) can decide it. It is in that context that I draw the reader’s attention to the Case Management Order of the President of the Employment Tribunal on 9 August 2017.

The President orders that;

“1. All claims or applications brought to the Employment Tribunal in England and Wales in reliance upon the decision of the Supreme Court in R (on the application of Unison) v Lord Chancellor [2017] UKSC 51 (26 July 2017) shall be stayed to await decisions of the Ministry of Justice and Her Majesty’s Courts and Tribunals Service in relation to the implications of that decision.

On its face, this order seems highly improper at least insofar as the reinstatement of claims  struck-out for non-payment of fees go. It is not for an executive agency of the government, such as the MoJ or HMCTS, to decide how the courts should deal with any applications to reinstate; this is a purely judicial matter, or a matter for parliament.

Presumably anticipating these objections, the President issues a further CMO on 18 August 2017 reciting;

“(2) The Employment Tribunal and its judiciary are separate from and independent of the Ministry of Justice and Her Majesty’s Courts and Tribunals Service.

(3) The Case Management Order of 9 August 2017 and the present Order are not made by or at the behest of the Ministry of Justice and Her Majesty’s Courts and Tribunals Service. They are judicial Orders made to further the overriding objective and thereby to safeguard the position of parties to actualor prospective Employment Tribunal claims.”

And then;

“(4) Since the Case Management Order of 9 August 2017, the intentions of the Ministry of Justice and Her Majesty’s Courts and Tribunals Service in relation to the practical implications of the decision of the Supreme Court in R (on the application of Unison) v Lord Chancellor [2017] UKSC 51 (26 July 2017) have become clearer. It is expected that they will make an announcement in relation to administrative arrangements in respect of those implications shortly.

(5) As a result, it is apparent that the reimbursement of fees and the reinstatement of claims rejected or dismissed for non-payment of fees will be dealt with administratively and almost certainly without need for judicial intervention or judicial decision.”

The order asserts that reinstatement of claims rejected or dismissed for non-payment of fees will be dealt with “administratively”.

The rights of claimants in the Employment Tribunal arise under statutes enacted by parliament and cannot be overriden by executive fiat. And yet, the position of the President appears to be that this is precisely what will happen. Unless the government intends to compensate those claimants with damages equal to what they might have expected to get had their claim proceeded to trial, this “administrative” solution appears to be nothing less than the deprivation of rights parliament has consciously chosen to accord to UK citizens with nothing more than the stroke of a minister’s pen.

I believe it would be legitimate if the High Court / Court of Appeal / Supreme Court were to conclude, for reasons of policy, that these claims cannot be pursued. But that is an issue that must be played-out judicially, or in parliament.

Procedurally speaking, if a claimant was to nonetheless make an application to set aside a strike-out order and this application was denied on the basis of the Presidential CMO, an appeal to the EAT would be a dead end. Section 21 of the Employment Tribunals Act 1996, which lays out the extent of EAT jurisdiction, provides that an appeal to the EAT shall lie only on a question of law arising from the decision of the tribunal under acts of parliament listed in s21(1) of the act. Section 21(2) expressly prohibits any appeals except those relating to the acts set out in s21(1). The EAT could only ask itself whether the employment judge followed the Presidential CMO, not whether the CMO was proper ab initio.

As the EAT does not appear to have jurisdiction to review a Presidential CMO or any general powers of judicial review, it would seem that the only remedy lies by way of a judicial review in the High Court.

As the Presidential CMO serves to deprive claimants of their statutory rights based on spurious reasoning (that they must await the decision of an executive department when in fact this is a purely judicial matter, unless and until parliament chooses to step in), I would argue it is illegal and improper and that a judicial review of this order should succeed. Unfortunately, the fact that a claimant’s remedy lies only by way of a High Court challenge (with all the time, effort and expense this entails) makes the exercise of their statutory employment rights an even more remote prospect.

The Presidential CMO was issued in August and it is now almost November. Any question of reinstatement will likely turn, at least in some significant respect, on the question of prejudice accruing to a respondent by reason of the passage of time since the strike-out. Therefore, each day the order is in effect and is followed by employment judges lessens a struck-out claimant’s prospects for successful reinstatement of their claim. In light of this, the lack of any apparent sense of urgency from the leadership of the Employment Tribunal and the Ministry of Justice is most disappointing.

There is no doubt that the process of dealing with thousands of applications for reinstatement may be “messy” and administratively taxing. The question of how to strike the right balance between avoiding a ‘floodgates’ situation and not depriving claimants of their statutory rights is indeed a difficult one. But this is a question that surely must be decided in the courts or in parliament, not in some SPAD’s office at the Ministry of Justice, and it should be decided sooner rather than later.

Idle Servants: Employment Law and Access to Justice

fields

In the aftermath of yesterday’s Supreme Court decision to quash tribunal fees, some employers took to the airwaves to bemoan the judgment. One well-known millionaire business-owner referred to claimants as “troublemakers” and “busybodies”, unlike the “average good worker” who presumably does not seek to vindicate their rights in court. This business owner’s message about ‘malicious’ workers rang a bell for me; I thought, “I’ve seen this movie before”.

In the late 1340s and early 1350s, the population of Europe was ravaged by the Black Death. England’s population, which had reached 4.8 million by the mid-1340s, dropped to 2.5 million fifteen years later and indeed kept dropping until it hit a low of 1.9 million in 1450.

Hideous and traumatic as the plague was, the widespread labour shortages it caused meant peasants now had a degree of bargaining power; they could leave the manor to find work as a day-labourer in another manor or else migrate to a town or city. Many seized the opportunity to negotiate with the manorial landowner to lease land in exchange for a cash rent rather than working as a sharecropper. Other peasants simply dropped their ploughs and walked off the land. The shortage of agricultural workers drove many landowners to lease out their land rather than hold it in demesne and farm it themselves.

In the late medieval period there were approximately 9,000 manors in England; some were owned by great lords, held of the king per baroniam as a tenant-in-chief. Such a landowner might hold more than 100 manors in various counties. At the other end of the spectrum, you might have a single manor held as a moiety (part ownership) by two unmarried sisters, this being their only asset. What all these landowners had in common, in the early 1350s, was a sense of rising dread and horror at the ever-increasing cost of labour and the unreasonable (to their mind) demands that accompanied it.

In 1351, parliament enacted the Statute of Labourers, the first employment law statute in English history. It read, in part;

“Whereas lately it was ordained by our lord king and by the assent of the prelates, earls, barons and others of his council, against the malice of servants who were idle and not willing to serve after the pestilence without excessive wages, that such manner of servants, men as well as women, should be bound to serve, receiving the customary salary and wages in the places where they are bound to serve, and that the same servants refusing to serve in such a manner should be punished by imprisonment of their bodies. Every person, able in body and under the age of 60 years, not having enough [land] to live upon, shall be bound to serve him that doth require him, or else be committed to gaol until he shall find surety to serve, and that the old wages shall be given and no more”

Wages were set at a low, pre-plague level. Any person under the age of 60 who did not own sufficient land to provide them with a livable income was bound to work for any person who offered them a job. If they did not accept this “offer” (shades of the DWP and work-capability assessments), they could be prosecuted under the statute and committed to prison.

An example can be found in a case before the Court of King’s Bench in 1365 (Pasch. 39 Edw. 3, Plea Number 2, Folio 6b-7a). A landowner called John brought a case against two “vagrants” who were “out of every service”. John pleaded that he offered them work threshing his grain from the feast of St. Michael until Christmas, and they refused. Under the express terms of the statute, John was entitled to force them into his service. The “vagrants” were fortunate that two serjeants-at-law (medieval QCs) pleaded their case for them; Serjeants Cavendish and Fyncheden argued that the writ was brought against both defendants however one’s refusal to serve could not inculpate the other, and vice-versa, and thus writs should have been brought against each of them individually.

Serjeant Claymond, for the plaintiff, countered that the plaintiff had requested their service together, that they had refused in common and that they were companions and thus the writ was good. However, the justices concluded that there must be separate writs against each defendant and therefore this writ would abate, bringing the case to an end. Despite the inherent unfairness of the statute, we have here an example of the judiciary rendering to these workers their due process; it is indeed fortunate that they were able to find some protection from the depredations of unscrupulous and exploitative employers in the courts.

Another case; in the Michaelmas term of 1429, John Polgrayn sued an action for debt against John Vyncent in the Court of Common Pleas. Polgrayn pleaded that Vyncent engaged him as a labourer on 2nd May, 1428 for one year and thirty six weeks, at the salary of 10 pence per week (low even by late medieval standards). Polgrayn alleged that Vyncent had not paid his wages and owed arrears of 6 shillings and 8 pence (8 weeks wages), and damages of 5 marks. Vyncent’s defence was that he did not owe this sum or any sum of money to Polgrayn, and “put himself on the country” (asked his case be submitted to a jury). Polgrayn likewise put himself on the country. We have no further record of this case, but given the technology of the era it is impressive that an unlawful deduction of wages case could come before the court within 12 months of the employment ceasing. More importantly, in 1429 even a common day labourer was able to access the premier civil court of the realm to secure his unpaid wages.

In the Trinity term of 1445, John Courtenay brought a suit of ‘trespass on the statute’ (of Labourers) against John Hille. Courtenay pleaded that on Michaelmas 1442 he retained Hille to serve him as a valet for five years but that on 8th April 1443, “he left this service without reasonable cause or licence, in contempt of the king, against the form of the ordinance and to his damage of £20”. In response, and with admirable honesty, Hille said he could not deny the charge. The court ordered that Courtenay recover Hille’s service for the remainder of the term, along with 13 shillings 4 pence damages. However, as contravention of the statute was also a criminal offence, Hille was committed to the Fleet Prison.

Subsequently, Hille satisfied the order for damages and asked the court to impose on him a fine, rather than prison, for his contravention of the statute. The court fined him 20 pence “to repair the furnishings of this court” (‘user pays’ indeed). Although the case has a sad character (one can’t help but feel sympathy and admiration for Hille), it also serves to underline that employment law was not considered to be a matter merely affecting the two parties; it was the concern of the realm as a whole, thus the requirement for Hille to make satisfaction both to Courtenay and to the court.

In 1373, a plaintiff sued an action of false imprisonment in the King’s Bench against the Abbott of Walton. The abbott replied that the plaintiff was a vagrant who came to him asking for a job. The abbott claimed he ordered his servant to take the plaintiff into his service, whereupon the plaintiff refused to go into his service, so he had the plaintiff put in the stocks until he submitted. The plaintiff’s replication averred that he owned a house and two acres of land and a cow and a sheep, to the value of £20, thus exempting him from the jurisdiction of the statute (i.e. that he had sufficient property to provide him with a living). The abbott responded that the plaintiff had no land except a cottage, and since he had not sufficient land to provide a living, he was under the jurisdiction of the statute. On this matter issue was joined and the case proceeded to jury determination (from which point we know nothing).

The plaintiff in this action clearly believed the courts were capable of rendering to him impartial justice, despite the fact that an abbott was a powerful and wealthy figure. It is, in any case, always in the interests of employers for workers to be able to resolve their disputes by recourse to the civil courts; the alternative is resolution of disputes by force which is to the benefit of neither employers nor workers.

The Statute of Labourers was not repealed until 1863, and it wasn’t until the 19th century in any case that we saw progress in terms of both the legal rights of workers and their socio-economic status. Throughout the 20th and 21st century, statute employment law has served to buttress the rights of workers and protect them from exploitation rather than entrench the power of employers, as did the Statute of Labourers. Unlike in medieval times, the courts will not now order an unwilling worker to serve an employer. But whatever the legal situation, from the 14th century the sine qua non for the rights of English workers, the basic provision that set them above the status of slavery or serfdom, was their ability to litigate their grievances in the common law courts. As can be seen in Polgrayn v Vincent above, in the 15th century the poorest labourer could count on effective access to even the most exalted of civil courts, the Court of Common Pleas at Westminster Hall.

Even where the underlying system of legal and economic relations is unfair and exploitative, procedural fairness provides its own form of substantive fairness. The Supreme Court was right to identify access to the courts as the vital issue, and to excoriate the Ministry of Justice’s economic analysis whereby the tribunal was deemed only to provide utility to the users, rather than society as a whole.

The introduction of tribunal fees in 2013 restricted access to the courts and deterred workers from seeking to vindicate their rights; the 70% reduction in claims makes this proposition unarguable. This has been accompanied by other ‘reforms’ such as limiting backdated claims for unlawful deduction of wages in the Employment Tribunal to a maximum of two years. The attitude of people like Charlie Mullins certainly has echoes of the Statute of Labourers; the idea that idle, malicious workers are interfering with the right of employers to deal with their employees as they will. As long as workers have access to the courts then they can count on at least a modicum of fairness in the workplace. When that access is restricted, all bets are off. This is why the introduction of tribunal fees was so regressive and why the Supreme Court’s judgment yesterday is so vital.

Into the belly of the beast: My visit to the Bronx Supreme Court

bronx court

“Right before Kramer’s eyes the sun began to light up the other great building at the top of the hill, the Bronx County Building. The building was a prodigious limestone parthenon done in the early thirties in the Civic Moderne style.

Despite everything, the courthouse stirred his soul. Its four great facades were absolute jubilations of sculpture and bas-relief. There were groups of classical figures at every corner. Commerce, Religion, the Arts, Justice, Law and Order and the Rights of Man – noble Romans wearing togas in the Bronx! Such a golden dream of an Apollonian future!

Today, if one of those lovely classical lads ever came down from up there, he wouldn’t survive long enough to make it to 162nd street to get a Choc-o-pop or a blue shark. They’d whack him out just to get his toga.” – Bonfire of the Vanities; Tom Wolfe, 1987.

I don’t think I’ve ever been accused of being a ‘lovely classical lad’ and perhaps that’s why I survived my journey up the Grand Concourse of the Bronx without being thumped on the head and having my toga stolen.

As Tom Wolfe wrote in Bonfire of the Vanities, there’s something stirring about this judicial edifice, and in fact about all such structures I saw in New York City. It has sometimes been claimed that constitutions assign functions based on the ‘efficient’ and the ‘dignified’; in the Westminster system, the monarch is assigned the latter role, parliament the former. Some might argue that a republican form of government relinquishes the ‘dignified’, even the numinous, aspects of government embodied by monarchs. But visiting such buildings, whether the Bronx Supreme Court or the New York Public Library or the Statue of Liberty, you’re left in no doubt you’re present in a republic with an acute sense of its own nobility and grandeur.

The Bronx County Building / Bronx Supreme Court is an absolute monolith of a building, housing the Bronx division of the Supreme Court of New York (which, like the Supreme Court of New South Wales and the High Court of England and Wales, is a high and dignified court of first instance), the New York City Civil Court and the offices of the state District Attorneys.

Upon arrival I was subjected to airport-style security for reasons that would become quite apparent later on. The building is separated into “parts” rather than courtrooms, each part assigned to a particular judge and presiding over a particular area of law or litigation stage, such as “Medical Malpractice Discovery Part 2”, “Discovery Motions Part 3”, “Master Foreclosure Calendar” and “Summary Jury Trial Part 19”. I made myself known to one of the clerks, informed her I was visiting from the UK and on vacation in NYC and interested to observe and discover more about the differences between our two legal systems (“Two nations divided by a common law”?). She said I would probably get maximum ‘bang for buck’ by attending the Commercial Landlord and Tenant part or the small claims part. I opted for the former and made my way up to Commercial Landlord and Tenant part, room 529A presided over by His Honour Judge M.

Arriving just at the end of the lunchbreak, I evaluated the docket noting that there were ten cases for Judge M to deal with in the post-lunch sitting. By 2:10pm the area outside the court was filling up with the calls of lawyers seeking their clients among the assembled parties. We all got called in together; at the front of the courtroom a raised dais for the judge, on his right his senior clerk and on his left the courtroom guard (with gun and bullet-proof vest). (picture below from Foursquare of a similar courtroom)

bronx court 2

I touched base with Judge M’s clerk (they had called up ahead to inform him I’d be attending), and I was directed to take a seat at the back with the other parties. Shortly thereafter, the judge entered the courtroom. I watched him confer with the clerk and he then pointed at me and said, “You! You can step up to the bench”. With some trepidation I approached the bench; Judge M proceeded to offer up his palm and shake my hand. He welcomed me to his courtroom with great courtesy, and for the next ten minutes or so we proceeded to have a discussion about the characteristics of our respective legal systems.

I wasn’t sure what mode of address I should use for Judge M; some of the counsellors in the court called him “judge” which seems rather informal to me. Should I have used the equivalent mode of address for a High Court judge and called him, “My lord”? That might not go down too well in a republic. I opted for “Sir” as it seemed suitably respectful and it’s what I’m more familiar with from the Employment Tribunal (although I discovered after the fact that “Your honour” is the correct form).

One of Judge M’s relatives is doing a training contract at a magic circle firm in London so he had some familiarity with the training contract system and we discussed the contrast between law firms as gatekeeper to the profession, and the putatively more meritocratic system of a state bar exam as gatekeeper.

Judge M told me that after graduating JD from University of Pennsylvania in 1976, he did the New York bar exam the following year and went straight into private, sole practice. He spent 35 years in private criminal practice before being elected a judge on the Democratic Party ticket. Judge M informed me that there wouldn’t be any substantive trials that afternoon; the cases on the docket were preliminary hearings and interlocutory motions, and also allowed parties to make judicially-enforceable ‘stipulations’ for a settlement agreement that would be ordered by the court (and thus failing to comply would place the party in contempt).

Having made me feel very welcome indeed, Judge M gestured for me to return to my seat and the day’s cases commenced. In courtroom 529A the cases proceeded thusly; the clerk of the court would call the parties, and they (or their counsel) would approach. The clerk would find out the status of the case, the nature of the disagreement between the parties and seek agreement on the nature of the issues before the court if settlement undertakings could not be obtained (which would have avoided the need for a trial). Once this had occurred, the parties would be called up to the judge’s bench (as seen in American legal dramas like The Good Wife and Suits; “You may approach the bench”, and all that) and he would adjudicate the issues and make the necessary orders.

While the judge was dealing with that particular case, the clerk would be dealing with the next set of parties at the bar table, and other parties and counsel would be coming in and out of the courtroom throughout and conferring with one another, making for a much busier courtroom than that to which I’m used. Having represented clients in preliminary hearings where it takes an entire day to deal with three applications, I was most impressed by the the judge and his staff in being able to deal with ten cases in a single afternoon. Following the Woolf Reforms the English judiciary is putatively a practitioner of ‘active case management’, but what I saw in this Bronx courtroom was true ‘active case management’ in every sense; judicious, efficient, businesslike and systematic, fair to both parties but particularly to the self-represented.

His honour was determined I should have an opportunity to observe the proceedings in full, and when the next case was called, he asked the parties whether they would consent to allow me to also approach the bench to observe. They gave their concurrence and I was called up to watch stipulations being given and an order being made. The plaintiff was a commercial landlord represented by counsel, the defendant a business owner in rent arrears to the tune of some $16,000. The defendant made stipulations as to payment terms in order to maintain her lease (which had another few years to run), and Judge M wrote into the order a certain minimum notice period following default after which the plaintiff could seek an order for the bailiffs to take possession for the landlord. Throughout this process I had a front-row ‘seat’; I was standing half a foot to the left of the defendant, at the bench as if I were another lawyer in the proceedings.

After this case was over, I returned to my vantage point in the gallery along with the other parties awaiting their call. There was a kerfuffle between two parties, as one defendant said that the plaintiff should be “taken out of here in a box” (by which I presume he meant coffin), but a serious and somber glare from the armed court officer put an end to the backbiting and they proceeded to the clerk for their pre-hearing interview.

The most interesting case was where the plaintiff, a tenant holding a lease on a commercial office premises, sought an order injuncting the defendant against further interference. The landlord / defendant claimed the plaintiff was in significant arrears and they had undertaken possession proceedings in another case. The tenant / plaintiff claimed the landlord had been turning up to their premises and harassing their customers, calling the police to claim they were trespassing, attempting to change the locks.

The landlord / defendant claimed (somewhat incompetently and implausibly) that these were lies and he’d done no such thing. Judge M then discoursed, with great skill and persuasiveness, on the common law’s abhorrence of “self-help”, making it clear to the defendant that a person might be guilty of a criminal offence of trespass and harassment if they behaved in the manner claimed. The judge also pointed out that if he broke the court order requiring him to stay away from the premises while the possession proceedings were underway, he could find himself in contempt and that “There’s a special section on Rikers Island for people who find themselves in contempt of court”.

I found this a most interesting exchange. It has been claimed that the presumption of innocence is the “golden thread” that runs throughout the criminal common law. It might equally be said that the abhorrence of self-help is the golden thread that runs throughout the land law of all common law jurisdictions, in all places and at all times. From the Supreme Court of New York to the Parramatta Magistrate’s Court, from the medieval Court of Common Pleas at Westminster Hall to the Queen’s Bench of Manitoba, the requirement that a party have a court order before turning an individual out of their home/business is universal in the common law world. And this abhorrence of self-help is a civilising impulse; a characteristic of a society that has moved beyond violence and ‘might makes right’ in the settlement of disputes.

It might be said that the writ of novel disseisin is the original writ of the common law; the writ allowing a party to enter back into possession of property of which they have been unlawfully disseised vi et armis (by force). In some ways it is the basis of all property rights, and in medieval times a man might find that a writ of novel disseisin would lie against him if he ejected a party from lands in which they were seised, even if that party was in arrears or had no legal claim to it. The requirement that the courts be involved in any such eviction is a common law tradition that I was comforted to find being practiced even in a court of law that has so many alien features as did this one. And for all the apparent public mistrust of the legal profession, this is what the law is all about; the settlement of disputes by civilised means, by argument and disputation rather than physical compulsion.

At the end of the day’s proceedings I approached the bench and thanked Judge M for his exceptional courtesy and generosity in accommodating my presence in the courtroom. And His Honour’s approach was entirely in keeping with what I experienced of the attitudes of Americans in general; they are a very courteous and polite people. They are genuinely interested in other countries and in people who visit America from overseas. I wondered what kind of reception I might get if I turned up similarly unannounced at court complexes in other parts of the world. I don’t know the answer to this, but I’m certain that only in America could I expect such a warm and generous welcome as a legal “cousin”.