Four maidens, 8000 ducats: the Saga of Drapers’ Hall

drapers hall mod

Drapers’ Hall today

On 28th July, 1540, Thomas Cromwell, the chief minister of Henry VIII, was led out to the block on Tower Hill and beheaded. This brought to a close a remarkable rise and career, from blacksmith’s son in parochial Putney, “ruffian… in his young days” and his unusual travels in Italy and the low countries, to being a successful member of the bar in London, chief secretary to Cardinal Wolsey and ultimately Master of the Rolls and chief minister of the Tudor state.

The year 1540 also saw the death of a certain merchant called Thomas Hoell, then resident in “Syvill in Spayne”. A man of apparent great wealth, he left in his will the following bequest;

“Item, I comaunde myne executours that I leve in Syvell that incontynent after my deathe , doo send to the citie of London 12,000 duckats of golde by bills of Cambio [bills of exchange], for to delyver to the house called Drapers’ Hall, to delyver theyme to the wardeynes thereof, and the saide wardeynes as sone as they have received the same 12,000 duckats, to bye therewith 400 duckats of rent yerely for ever more, in possession for ever more.

And it is my will that the saide 400 duckats be disposed vnto foure maidens, being orphans, next of my kynne and of bludde, to theire marriage, if they can be founde, every one of theyme to have 100 duckats; and if they cannot be founde of my lynnage, then to be geven to other foure maydens, though that they be not of my lynnage, so that they be orphanes honest and of good fame, and every of theyme 100 duckats, and so every yere, for to marry foure maydens for ever.

And if the saide 12,000 duckats will bye more lande, then the saide 12,000 duckats to be spent to the marriage of maydens, being orphanes, increasing the foure maydens aforesaide, as shall seme by the discretion aforesaide of the master and wardeynes of the saide house of Drapers’ Hall, and that this memoria to remayne in writing, in the booke of memoryes in the saide howse, in suche manner as it shall at no tyme be undon for ever.”

Hoell was leaving a sum of money to be used to buy land which would produce an income that would pay for dowries for orphan maidens, in order to buy them a good marriage. The money was to be applied to orphan maidens of his own lineage, and after paying out to all such women of his lineage, to then be paid to “orphanes honest and of good fame”. They were entitled to a marriage portion of 100 ducats each, or approximately £25.

Determining the modern value of the sum is particularly difficult because of the countervailing tendencies of inflation in the prices of goods and services in Tudor England, alongside deflation in the price of labour. However, I would estimate the £25 to be equal to approximately £50,000 in modern buying power. It would be an amount that could buy a very respectable marriage with perhaps the first son of a moderately prosperous country yeoman or city merchant. It would certainly save these women from a life of destitution. (continued below)

venezia_ducato_1400

Venetian ducat

Hoell entrusted the money to the Drapers’ Company, one of the ‘livery companies’ or guilds of London. The Drapers, the company of wool and cloth merchants, were first formally organised in 1361 and received a royal charter of incorporation in 1438. They are third in the order of precedence of livery companies, just below the Mercers and Grocers and above the Fishmongers and Goldsmiths.

The livery companies were not just fraternal organisations; they had responsibility for regulating the prices, business practices and even moral conduct of their members. They were associated with particular churches in the city where their members would worship. Like most medieval collegiate institutions, the activity of the companies were based around an inn that would include a great hall, a chapel and possibly a library (much like Oxbridge colleges and Inns of Court).

The city government of medieval and early-modern London was dominated by the livery company oligarchy and, in fact, the livery companies continue to enjoy considerable power in the City of London’s mind-numbingly complex electoral system (see short video below for the fascinating details…).

In the event, the Drapers’ received 8,720 ducats from Hoell’s executors. Hoell’s death coinciding with Cromwell’s death in 1540 meant that Cromwell’s property, which had now came on the market, could be snapped up by the Drapers. Austin Frairs, or the monastery of the Augustinian Friars, had rented out property on the southern side of the friary, on Throgmorton Street, to various court notables.

Cromwell was living in the Austin Friars property by the early-1530s and invested considerable sums renovating it and acquiring adjacent properties. He spent over £1,000 building this fifty-room capital mansion, which included large kitchens, a chapel, three courtyards, an acre of gardens, stables, tennis courts and a bowling alley. This property was not merely a house for the Cromwell family but an “an administrative base and urban palace where he could entertain important guests, potentially even the king himself”.

austin_friars_cromwell's_house

Cromwell’s House w/ oriel windows from the Copperplate Map

In 1543, using the money from Hoell’s bequest, the Drapers’ Company purchased the Austin Friars complex (along with a number of other London properties in the attainted Cromwell estate) from the king. When the Drapers purchased the mansion from the king, they covenanted with the king to distribute the clear rents “to and for the marriage of poor maidens, being orphans”.

Instead, the Drapers turned Austin Friars into their livery company hall. While the original Cromwell mansion has long-since (and very sadly) been demolished, Drapers’ Hall remains on the Austin Friars site to this day. (continued below)

austin friars 1

At some point in the 1550s, former maidens related to Hoell learned about the bequest. As they would have been entitled to the £25 or so as their marriage portion, they and their husbands brought a complaint in the Court of Chancery against “William Chestre, knight and alderman of the citie of London and mayster of the … fraternytie … of drapers” along with the wardens of the company. The women bringing the claim were Crysly, Jane, Cristian, Katherine, Margaret, Florence, Anne, Eleanore, Jane and Maude.

They alleged that the Drapers had purchased lands rendering £105 a year in rents but were using the money to their own benefit rather than disbursing it according to the terms of Hoell’s will.

The litigation rumbled on for several years, with the women incurring legal costs, “to commission certeyne men of worshippe and learnyng to travayle for the determinacion and hearing of the same”. During the reign of Queen Mary (1553 – 1558), the Court of Chancery made a ruling, “that the examynacion and order of the premises dyd belong to the iurisdicion of the ecclesiasticall lawes … a supersedeas was dyrected to the said commissioners [plaintiff’s common lawyers] to surcease and no further to procede them”.

34

Crysly v Chester (1559) | C78/16 No.34

The plaintiffs then had to instruct new lawyers, civil lawyers from the Doctor’s Commons who practised in the Roman law church courts; “the said complainants dyd prosecute … the premysses before certeyne commissioners in that behalf authorised by and frome the late lorde cardynall Pole which sute [suit] so farre procedyd that the said mayster and wardens preydyng that sentence therein were near at hande to be gyven”. In other words, judgment was about to be given.

However, the Drapers found a legal argument to prevent proceeding to judgment. They “alledged that because the legacies and thynge testamentory aforeseid by the purchase of the messuage [house] lande and tenemente aforesaid were converted to a mere laye inheritaunce and that the yerely rente revenewes and proffytes appoynted to be payd out of for the same is not examynable or determynable in the ecclesiasticall courte under payne of a praemunire but is merely examynable and determynable in the kyng and quenes majesties courte of recorde … in dede upon consideracion of the premysses it seemeth to most learned men so to be. Whereby the said plaintiffs have been mervelously delayd and impoverisshed as by the bill of complaint remayning of recorde in this honourable courte”.

In 1559 the matter finally came to judgment before Sir Nicholas Bacon, Lord Keeper of the Great Seal (between 1558 and 1579, no Lord Chancellor was appointed and Bacon acted as the head of the Court of Chancery).

Crook, James Wilson, active 1759-c.1789; Sir Nicholas Bacon (1509-1579), Lord Keeper of the Great Seal

Sir Nicholas Bacon, Lord Keeper of the Great Seal

The Drapers argued that to the best of their knowledge they had been giving money to orphan maidens, and than in any case they’d only received 8,720 ducats and that as a matter of law Hoell’s estate should have paid them the full 12,000 before they were under obligation to carry out the terms of the bequest. However, it seems that they knew the game was up and in their pleadings undertook to put the entire amount to the purpose set out in Hoell’s will.

Sir Nicholas ordered that the £84 a year should be paid out to four orphans, £21 each, and £21 apportioned to the maintenance and improvement of the property, and that this should continue “forevermore”. Sir Nicholas also ordered that the plaintiffs should receive their £21 each. In future, the Bishop of Llandaff and his staff were charged with identifying worthy maidens to receive the £21 payment and would issue a certificate upon which the Drapers would pay out the £21, and they would also receive a quitclaim from the Bishop’s staff extinguishing liability for that particular £21 for the year. He also ruled if further ducats were received to make up the 12,000 total, this could be applied to an increase paid out to the maidens but that the amount paid should not exceed £25 each per year.

In researching this case, I wondered about when and how the trust came to an end. I assumed that at some point in the late-19th century, the idea of buying a husband for worthy orphan maidens would become hopelessly anachronistic and that the object of the trust would be frustrated under the cy-pres doctrine and the money would have to be put to a different use. I concluded that while this might have been more difficult prior to the Charities Act 1960, a cy-pres variation of the terms of a trust must have still been possible under non-statutory equitable doctrines by application to the Chancery Division of the High Court (or to the Court of Chancery prior to 1875).

I did a search for relevant cases and found a case heard before the Master of the Rolls in 1843, almost 300 years after the complaint was heard before Sir Nicholas Bacon. While it was not a cy-pres application, it was still very interesting indeed. (continued below)

court_of_chancery_edited

Court of Chancery sitting in Lincoln’s Inn Old Hall in the 19th-century

Upon an information filed by the Attorney-General, on the certificate of the Charity Commission, the Court of Chancery under Lord Langdale MR inquired into Hoell’s bequest. The Charity Commission had noted in an inquiry in the early 1840s that the surplus now produced by Hoell’s bequest amounted to over £2,000 a year. The Drapers were still spending £84 a year on buying husbands for worthy orphans (a fairly modest gift given the inflation of the intervening years) but were applying the surplus to the company’s accounts. While a significant proportion of Drapers’ Company general funds (perhaps the substantial majority) were spent on charitable activities anyway, it was still the conclusion of the Attorney-General and the Charity Commission’s lawyers that the company was obligated to spend the entirety of the revenue arising from Hoell’s bequest on charitable purposes specified in his will. (continued below)

36

Law report for AG v The Drapers’ Company

The Solicitor-General, Mr Pemberton Leigh and Mr Blunt, representing the Attorney-General, argued that under the terms of the will, the company was not entitled to take any benefit. Further, their covenant with the king upon purchase of the Austin Friars mansion and their answer in the 1559 case bound them to apply the entirety of the revenue of the investments to the charitable objects.

Sir Thomas Wilde, Mr Kindersley and Mr Lloyd, for the company, argued that under Sir Nicholas’ decree, the objects of the charity were expressly limited to £100 each year and that it could therefore be inferred that the company was entitled to the surplus. They also argued, “every presumption ought, at this distance of time, to be made in favour of the defendants who were shewn by constant usage to be entitled to the surplus”.

Lord Langdale disagreed with the company’s reasoning, and ruled that the entirety of the surplus should be applied to the charitable object. However, he also ruled that this would apply from the issuing of the information in the Court of Chancery, rather than seeking an account of moneys all the way back to 1559. It would seem that, as of 1843, money was still being expended by the company to purchase husbands for the orphan maidens, but I cannot believe that it continued for much longer after this. While the charitable object of providing a marriage portion was presumably frustrated by changing social mores, it would seem to me that given the company’s fortune was made in large part by Hoell’s bequest, they have a particular duty to apply their wealth to the advancement of working-class women as Thomas Hoell had intended so many years ago.

It would appear that is exactly what is happening, and the Howell bequest still exists as a discrete trust. Today it provides funding to girls schools in North Wales, and has disbursed £2.2 million in the last decade. It’s quite extraordinary to think that an otherwise little-known merchant could be bringing positive change to the lives of beneficiaries half a millennia later.

I leave you with some pictures of Drapers’ Hall courtyard and garden, an oasis in the bustling City of London, but before I do.

***If you enjoyed reading this blog and appreciated others such as A Day in the Life of a 15th-Century Barrister and Litigation by Ambush! Paston v Jenny (1471), I would humbly beseech you to generously consider making a donation to my legal book fund, which will help me to continue blogging about late-medieval and legal history issues.

https://www.gofundme.com/fundraiser-for-legal-history-texts

 

hallcourt

page-12-garden-small-right

 

 

Advertisements

Was Edward VI’s Devise for the Succession lawful?

220px-Circle_of_William_Scrots_Edward_VI_of_England

Edward VI, King of England, Ireland and France

In mid-1553, the teenaged king Edward VI lay dying. The only legitimate son of Henry VIII, he had reigned for six tumultuous years, primarily under the tutelage of powerful regents; first his maternal uncle the Duke of Somerset, then the Duke of Northumberland. Henry VIII had two other children, Princess Mary (daughter of Katherine of Aragon) and Princess Elizabeth (daughter of Anne Boleyn). By the terms of Henry VIII’s will and the Succession Act of 1543, in default of Edward VI and the heirs of his body lawfully begotten, the crown would remainder to Princess Mary and her heirs, and then Princess Elizabeth and her heirs.

Concerned about possible backsliding toward Catholicism under Mary, Edward VI attempted to bypass this succession by promulgating a ‘Devise for the Succession’, backed by letters patent, which purported to displace Mary and Elizabeth from the succession. It  instead enfranchise the heirs of his cousin Lady Frances Brandon, the daughter of Henry VIII’s younger sister. The effect of this devise, if valid, would see Lady Frances’s first daughter Lady Jane Grey inherit the crown. Incidentally, Grey was married to the son of the regent, the Duke of Northumberland.

In the event, upon Edward VI’s death in July 1553, Princess Mary was able to gather sufficient support, and was sufficiently popular, to overthrow Lady Jane Grey’s administration following a 9 day reign.

In a recent, and I might add excellent, episode on the subject, the History of England podcast asserted that the Devise was a valid legal instrument and that Edward VI was entitled to dispose of the crown by letters patent. While this might be an entirely academic debate given the intervening years and the fact Grey was quickly overthrown, the question of the legitimacy of the devise is one that touches on the character of English government and the English constitution in the early modern period. Was England in effect an absolute monarchy, ruled by a caesar whose word was law? Or was it a constitutional monarchy whose sovereigns were bound by the rule of law, as set out in statute, custom and precedent?

In the first instance, one must look to the relevant statute, the 1543 act. It read, in part;

“in case it shall happen the king’s majesty and the said excellent prince his yet only son Prince Edward and heir apparent, to decease without heir of either of their bodies lawfully begotten (as God defend) so that there be no such heir … then the said imperial crown and all other the premises shall be to the Lady Mary, the king’s Highness’ daughter, and to the heirs of the body of the same Lady Mary lawfully begotten, with such conditions as by His Highness shall be limited by his letters patents under his great seal, or by His Majesty’s last will in writing signed with his gracious hand; and for default of such issue the said imperial crown and other the premises shall be to the Lady Elizabeth, the king’s second daughter, and to the heirs of the body of the said Lady Elizabeth lawfully begotten, with such conditions as by His Highness shall be limited by his letters patents under his great seal, or by His Majesty’s last will in writing signed with his gracious hand; anything in the said act made in the said twenty-eighth year of our said sovereign lord to the contrary of this act notwithstanding”

The legal effect of this act was fourfold;

(1) Mary and Elizabeth were reinstated into the line of succession, in default of any heirs of Edward VI, or of Henry with Katherine Parr

(2) Henry VIII was entitled to place conditions on their inheritance of the crown through the promulgation of letters patent to that effect

(3) Henry VIII was entitled to place conditions on their inheritance of the crown in his last will and testament

(4) The provisions of the Succession Act 1536, which displaced Mary and Elizabeth from the succession, were disapplied to the extent they conflicted with the 1543 act

The earlier Succession Act 1536, which displaced Elizabeth from the succession (Mary having been removed by the Succession Act 1534), conferred on Henry the power to dispose of the crown by letters patent or by his last will. This was not a power inherent in the king’s prerogative, as the transmission of the crown would ordinarily pass by automatic operation of succession law according to the rule of male-preference primogeniture (elder sons would inherit in preference to younger sons, sons would inherit in preference to daughters, if there were only daughters, they would inherit in preference to male relations of the collateral line, i.e. in preference to male uncles, cousins, etc).

Furthermore, the disposition of the crown had been controlled by acts of parliament long before the 1530s. It was broadly accepted that acts of parliament were necessary to ratify depositions of kings (as occurred to Richard II, Henry VI, Edward V and Richard III). In the aftermath of Bosworth, when asked why he had fought for Richard III, the Earl of Surrey had responded, “He was my crowned king, and if parliament had set the crown upon a stock, I would have fought for that stock”.

It is a principle of English law that where a statute conflicts with an executive instrument, the statute prevails. This has, in fact, been a principle of English law since the 1400s. There are cases that came before the King’s Bench in that period demonstrating this principle of law. Sir John Fortescue, Chief Justice of the King’s Bench in the 1440s and 1450s enunciated this principle in his works on constitutional law. Fortescue wrote a book called De Laudibus Legum Angliae, or In Praise of the Laws of England, in which he set out his views on the English constitution. Fortescue posited that unlike an absolute monarchy such as France, which he called a dominium regale, or a republican regime like ancient Rome, which he called a dominium politicum, England was a dominium politicum et regale. It was, in effect, a constitutional monarch. He commented that the king cannot make laws or levy taxes without the consent of parliament, and that judges were obliged by oath to follow the law even in the face of a direct order by the king not to do so.

Portrait_of_Sir_John_Fortescue_by_William_Faithorne,_from_Fortescutus_Illustratus_(1663)_by_Edward_Waterhouse

Sir John Fortescue, Chief Justice of the King’s Bench

This is not mere idealism; it was a principle of English law practised in the courts that the king was subject to the rule of law. This can be seen in cases where the courts regularly ruled against the position taken by the king’s attorney. For example, a 1464 case of trespass that came before two justices on circuit, Yelverton JKB and Bingham JKB. The plaintiff was successful in his claim and process issued to execute the judgment against the defendant. Several days later a writ bearing the privy seal arrived ordering the justices to stay process against the defendant. The judges refused, commenting;

“We ought to do as reason and conscience counsel us. It is not honourable for us nor 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 a different judgment in another term”.

Additionally, the fact that parliament (and the Commons as the indispensable component) had the sole authority to levy taxes was, by the 1530s, a long-since accepted constitutional principle. England of the late-medieval and early modern period was not an absolute monarchy, no matter how much the despotic Tudors would have wished it so.

The superiority of statute law in the legal hierarchy of construction can be seen in the fact that the Statute of Proclamations 1539, which conferred on the king’s proclamations the effectiveness of statutes, (although it also provided that such a proclamation could not be used to change the common law, or punish or deprive a person of their goods without due process) had to be enacted at all. That statute was repealed in 1547. This principle was further underlined in the Case of Proclamations in 1610, when all the justices of England confirmed the principle that the king, “cannot change any part of the common law, nor create any offence, by his proclamation, which was not an offence before, without parliament,” and, “The king has no prerogative but that which the law of the land allows him”.

The Succession Act 1536, which gave the king the power to dispose of the crown by will or letters patent, was modified by the Succession Act 1543 which not only provided that Mary and Elizabeth were reinstated into the succession, but that any provision of the prior act which was inconsistent with the 1543 act was disapplied. That means that any provision in letters patent, proclamation or will issued pursuant to that act that sought to displace Mary and Elizabeth from the succession would be disapplied.

Furthermore, it is clear from the wording that the intent of parliament was to confer this power to dispose of the crown on Henry VIII particularly, not on the crown for all time.

In the History of England podcast, David Crowther argued for the legality of the devise on two bases; first, that the king had the inherent power to dispose of the crown by executive instrument, and second, that according to the ordinary principles of common law Mary and Elizabeth were bastards and thus ineligible to inherit. I believe I have, above, made a reasonable argument above as to why the king did not have such a power, and why even if he did, it was disapplied where it conflicted with the clear provision of statute law.

With regard to the second argument, this is in fact the sole argument advanced by Edward VI in his letters patent. Edward VI didn’t merely promulgate the devise, but letters patent were also issued setting out the reasoning for displacing his sisters, which served to give the change the force of an executive instrument. The letters patent, accepting parliament had enacted that Mary and Elizabeth were to be in the succession, advance as their only argument against them that the divorces of their mothers had been valid and they were bastards and therefore ineligible. The letters patent did not cite that the power to change the succession inhered in the king’s prerogative, or that it arose under the 1536 act. It says as follows;

“And for asmuch as the lymytacion of the imperiall crowne of this realme, being lymmited by authorite of parleament as is afforesaid to the said ladie Mary and ladie Elizabeth, beinge illegitimate and not lawfully begotten, forasmuch as the mariage had betweene our said late father and the lady Katherine … was clearly and lawfully undone … and likewise the mariage had betweene our said late father … was also clearely and lawefully undone … whereby as well the said lady Marye as also the said ladie Elizabeth to all intents and purposes are and be clearly disabled to aske, claime, or challenge the said imperiall crowne”

The essence of this argument is that according to the ordinary course of the common law, Mary and Elizabeth would not be able to inherit property. This argument is invalid on several bases. First, we have clear statutory authority for Mary and Elizabeth’s succession. The only body capable of altering the common law was parliament, and they did so in placing Mary and Elizabeth in the succession. Second, the ineligibility of bastards to inherit was according to the automatic operation of law. Prior to Wills Act 1540, the only way to leave land to your children other than according to male-preference primogeniture was to convey it to trustees first, who would then hold it to their use or otherwise convey it directly to them. Failing this, the land would automatically pass upon the death of the individual. The Wills Act 1540 created a significant change in the law whereby a person could devise land to any person using their will, in any proportion they chose. If they wanted to give half to their son and half to their daughter, that was their prerogative. If they wanted to leave everything to their bastard child, that was also their prerogative.

Finally, one might argue that applying the procedures of inheritance for ordinary people to the inheritance of the crown is logically dubious, and I would agree. The transmission of the crown is a matter of high state policy, and thus appealing to the ordinary provisions and procedures of common law inheritance (which had, since 1540, been disapplied anyway), as Edward VI did, is sketchy to say the least. So even if the common law had been as Edward VI’s letters patent asserted, the fact was that parliament had legislated differently. Indeed, there was precedent for such a thing. Edward VI’s grandfather Henry VII had no legitimate royal blood; his descent from Edward III came through the illegitimate Beaufort line.

SirEdwardMontagu

Sir Edward Montaqu, Chief Justice of the Common Pleas

The Chief Justice of the Common Pleas, Sir Edward Montagu, protested against the devise and the letters patent. He said it was not merely illegal, but treasonous. David Crowther implied that Montagu’s objections were pearl-clutching at best, and dishonest and self-interested at worst. But Sir Edward’s analysis of the law was correct. Not only was Mary entitled to the crown if one applied all of the ordinary doctrines of English law (statutes override executive instruments, the king cannot change the common law without parliament, etc), but it actually was treason. The Treason Act 1547 had provided that it was high treason to interfere with the succession as set out in the 1543 act;

“if any of the heires of the king … or any person or persons to whom the crown and dignity of this realm is limited and appointed by act of parliament made in the 35th year of the reign of King Henry VIII… do at any time hereafter usurp the one of them upon the other in the crown of this realm, or demand challenge or claim the same otherwise or in any other form or degree of descent or succession or in any other course form degree or condition but only in such manner and form as is declared in the said statute … that then all and singular offenders their aidders, comforters, abettors, procurors and counsellors therein shall be deemed and ajudged high traitor and shall suffer and incur the pains of death losses and forfeitures as is aforesaid in cases of high treason”

This was passed at the first parliament of Edward VI. It seems to me that the legal position couldn’t be clearer; the Succession Act 1543 was binding in its own right and through the provision in the 1547 act making its usurpation a crime. Any person in the succession who sought to change the succession as laid out in that act, and any person who aided and abetted such conduct, was guilty of high treason. While Edward VI himself couldn’t be guilty of high treason, Lady Jane Grey and every person who aided and abetted in seeking to displace Mary and Elizabeth (excepting Chief Justice Montagu, who was careful to procure a preemptive pardon from Edward VI well-knowing the devise was unlawful), were guilty under the terms of the 1547 act.

Based on the clear terms of the Succession Act 1543 placing Mary and Elizabeth back into the line of succession, the terms of that act disapplying any contrary provisions in the previous statute and any legal instruments arising under the 1536 act that purported to change the succession, given the terms of the Treason Act 1547 and widely-accepted common law principles of statute law overriding executive instruments where in conflict, it seems quite straighforward to say that the devise and the letters patent issued to displace the princesses from the succession were not lawful.

The superbly narrated, and at times hysterically funny, History of England podcast can be accessed at this website: https://thehistoryofengland.co.uk/

 

A Medieval Parliament (Part 1): Dropping the Writs

med parliament

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…)

JamesDeAudley_BrugesGarterBook

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.

Trump, Tresilian and the Merciless Parliament

sir rob

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.

Robert_de_Vere_fleeing_Radcot_Bridge

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

15th century people

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.

parochia

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.

thomas king's

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”.

Arger intro

“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).

Baddesley-Clinton-NT

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)

 

chancery.jpg

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.

Lady Saye

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

midtemp

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.

ImageVaultHandler.aspx

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.

westminster-hall1

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.

king's bench

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.

staple

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.

StPaul'sCross

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.

***If you enjoyed reading this blog and have appreciated others such as Four maidens, 8000 ducats: the 300-year Saga of Drapers’ Hall or Litigation by Ambush! Paston v Jenny (1471), I would humbly beseech you to generously consider making a donation to my legal book fund, which will help me to continue blogging about late-medieval and legal history issues.

https://www.gofundme.com/fundraiser-for-legal-history-texts

State of the ET Lists: Worse than medieval times

midtemp

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.