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The Origins of the English Legal Profession

Published online by Cambridge University Press:  28 October 2011

Paul A. Brand
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Extract

Shortly after Henry II had succeeded to the English throne, Richard of Anstey commenced litigation against his cousin, Mabel de Francheville. His uncle, William de Sackville, had held a sizeable mesne barony, consisting of at least seven Essex manors and the overlordship of ten knights' fees in Essex and three neighbouring counties. Richard's aim was to secure this property for himself. Mabel claimed that (as William's daughter and heiress) she was rightfully in possession. Richard asserted that she was illegitimate, the issue of a marriage that had been annulled by the Church; and that as Williams's nephew, the eldest son of William's sister, the lands should pass to him, as William's heir. The litigation began in 1158 in the king's court; but once the question of Mabel's status had been raised it was transferred to the Church courts. Her legitimacy was discussed in turn in the court of the archbishop of Canterbury, before papal judges delegate, and finally before the papal court of audience in Rome. The eventual decision was that Mabel was illegitimate. The case then returned to the king's court, and, some five years after the proceedings had begun, the king's court awarded William de Sackville's lands to Richard of Anstey.

Type
Symposium on the History of the Legal Profession and the Judiciary
Information
Law and History Review , Volume 5 , Issue 1 , Spring 1987 , pp. 31 - 50
Copyright
Copyright © the American Society for Legal History, Inc. 1987

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References

1. Barnes, P.M., ‘The Anstey Case’, in Barnes, P.M. and Slade, C.F., eds., A Medieval Miscellany for D.M. Stenton, Pipe Roll Society, new ser., xxxvi (London, 1960) 1–23Google Scholar. Additional material on the case, including an identification of the lands which were at stake in it, will be found in Brand, P.A., ‘New Light on the Anstey Case’, Essex Archaelogy and History xv (1983) 68–83Google Scholar.

2. Stevenson, J., ed., Chronicon Monasterii de Abingdon, 2 vols., Rolls Series (London, 1858) ii:2Google Scholar [hereinafter: Chronicon Monasterii de Abingdon].

3. Searle, E., ed., The Chronicle of Battle Abbey, (Oxford, 1980) 109–10Google Scholar.

4. Ibid, at 211–19.

5. King, E., ‘The Peterborough Descriptio Militum (Henry I)’, English Historical Review lxxxiv (1969) 100CrossRefGoogle Scholar.

6. Hill, J.F.W., Medieval Lincoln (Cambridge, 1948) 48–49.Google Scholar

7. Turner, G.J. and Salter, H.E., eds., The Black Book of St. Augustine's Canterbury, 2 vols. (London, 1924) ii: 462–63Google Scholar; Johnson, C. and Cronne, H.A., eds., Regesta Regum Anglo-Normannorum, 4 vols. (Oxford, 1913–1969) ii: xi–xiiGoogle Scholar.

8. Chronicon Monasterii de Abingdon, supra note 2 at ii: 132–33; Sanders, I.J., English Baronies (Oxford, 2nd ed. 1963) 54Google Scholar.

9. Palmer, R. C., ‘The Origins of the Legal Profession in England’, The Irish Jurist, new ser. xi (1976) 135Google Scholar [hereinafter: Palmer, ‘Origins of the Legal Profession’].

10. Macray, W. D., ed., Chronicon Abbatiae Ramesiensis Rolls Series (London, 1886) 260–61Google Scholar; Holdsworth, C.J., ed., Rufford Charters Thoroton Soc. Record Series, xxx (1974) ii: 289–90Google Scholar; Hunt, W., ed., Two Chartularies of the Priory of St. Peter at Bath, Somerset Record Soc, vii (1893)Google Scholar Lincoln's Inn Manuscript 11; C.G.O. Bridgeman, ‘The Burton Abbey Twelfth Century Surveys’, William Salt Archaelogical Society: Collections for a History of Staffordshire, (1916) 231.

11. Palmer, ‘Origins of the Legal Profession’, supra note 9 at 135.

12. Ross, C. and Devine, M., eds., The Cartulary of Cirencester Abbey 3 vols., (Oxford, 1964–1977) ii: 472 (‘et assistet abbati in placitis ecclesie sive apud Cyrencestriam sive alibi quocumque vocabitur…’).Google Scholar

13. Ibid, at ii: 473 (‘preterea assistet abbati in placitis ecclesie in curia sua sicut alii liberi homines de Hackeburne et Eston’).

14. I will discuss elsewhere in my forthcoming book on the origins and early history of the English legal profession the main features and characteristics of the Edwardian profession.

15. See discussion at 42–44 infra.

16. Stenton, D. M., ed., Pleas before the King or his Justices, 1198–1212, vol III Selden Society, lxxxiii (London, 1966) xxxvi–xlGoogle Scholar, ccxcv–cccxix.

17. Ibid, at ccxcv-cccxix.

18. There was a need for specific regulations against this practice in the London city courts in 1244. Chew, H. M. and Weinbaum, M., eds., The London Eyre of 1244 (London Record Society) vi (1970) 96Google Scholar (no. 236). For possible evidence of John Bucuinte hearing litigation in the Bench earlier in 1220, see Curia Regis Rolls 16 vols. to date (London, 1922—) viii: 322Google Scholar n.6.

19. Pleas before the King or his Justices supra note 16 at xxxviii–xl, cccvii–cccxi. Hassall, W.O., ed., Cartulary of St. Mary, Clerkenwell, Camden Society, 3rd series (1949), lxxxiGoogle Scholar, nos. 170, 180, 181; Riley, H.T., ed., Munimenta Gildhalle Londoniensis, vol. I, Rolls Series (1859) 109Google Scholar; Williams, G.A., Medieval London: from Commune to Capital, (London, 2nd ed. 1970) 20Google Scholar. Another of these men, Matthew of Bigstrup, appears to have been acting as a serjeant by 1228, see note 21 infra, but all the earlier references are to him acting as an attorney or as a county knight.

20. Luard, H., ed., MatthaeiParisiensis Chronica Majora, 7 vols., Rolls Series (1872–1984) iii: 618–20Google Scholar. For evidence that Lawrence was Hubert's steward see ibid at 233. The proceedings as transcribed by Matthew Paris from the plea roll record are edited ibid, at vi: 63–74. This portion of the Chronica Majora may not be exactly contemporary with the events described but had been written up by 1251. Vaughan, R., Matthew Paris (Cambridge, 1958) 60Google Scholar. Matthew Paris also refers to the Serjeants as band narratores in a section of his Gesta Abbatum. John Mansel, one of Henry III's most trusted advisers, is said to have taken steps to ensure that none of them acted for the abbot of St. Alban's in litigation with Mansel's brother-in-law, Geoffrey of Childwick. As a result the abbot was forced to rely on the services of the abbey's cellarer instead. Riley, H. T., ed, Gesta Abbatum Monasterii Sancti Albani, 3 vols., Rolls Series (1867–1869) i:316Google Scholar.

21. The names of a number of Serjeants or possible Serjeants of the first half of the reign of Henry III can be gleaned from the plea rolls. These include: (i) Robert of Sudbury, C.R.R. ix; 41 (amerced in 1220 pro falsiloquio et mendacio); (ii) Stephen of the Strand, C.R.R. ix: 59 (amerced in 1220 pro stultioquio suo (Stephen also appears frequently on the rolls as an attorney and as a pledge between 1219 and 1233)). (iii) Ralph of Bardfield, C.R.R. x: 203 (amerced in 1221 pro stultiloquio and specifically described as having spoken for the tenant in the case); (iv) Matthew of Bigstrup, C.R.R. xiii: no. 1107 (amerced in 1228 because the defendant's attorney had disavowed what he had said (‘deadvocat… dictum Mathei de Bikestrop’) (Matthew is one of the men whom Lady Stenton suggested might have been professional lawyers, see discussion supra at 35–36 and notes 16, 19); (v) John de Planaz, C.R.R. xiii: no. 1194 (amerced in 1228 because the demandant in the case had disavowed his count (‘deadvocat… narracionem Johannis de Planaz advocati sui—; (vi) Alan of Waxham, C.R.R. xv: no. 1026 (amerced in 1234 in king's bench because the person for whom he had spoken disavowed what he had said ('quia… deadvocavit id quod pro eo narravit); (vii) Richard de Hottot, KB 26/132 m. 6. (client amerced in 1244 for avowing a count made by Richard which did not correspond with his writ).

22. The episode is recorded on both memoranda rolls; E 368/42 m. 3d (Lord Treasurer's Remembrancer) and E 159/42 m. 3d (King's Remembrancer), but it is only on the L.T.R. memoranda roll that interlineations in the entry tell us of Robert de Coleville's status as a serjeant of the Bench (‘narrator de banco’) and that the reconciliation was accomplished through the mediation of his colleagues (‘ad instanciam sociorum suorum narratorum’). The entry is printed from the L.T.R. memoranda roll in Madox, T., The History and Antiquities of the Exchequer (London, 1711) 161Google Scholar note k.

23. Some names of Serjeants, or possible Serjeants, of the Bench of the second half of the reign of Henry III can be gleaned from the plea rolls and from other sources. These include: (i) Abel de St. Martin, KB 26/150 m. 22 (1253, king's bench) (amerced and remanded to custody for speaking for the defendant, the bishop of Rochester, to whom he was probably related, but not being avowed (‘narravit pro episcopo et non fuit advocatus’)). Maitland's interpretation of this passage was that Abel was amerced for pleading when ‘he was not a member of the legal profession…’, but this seems to be wrong. Cf. Pollock, F. & Maitland, F., The History of English Law, 2 vols. (Cambridge, 1968) (i) 216Google Scholar n. 3. Abel may not however, have been a professional serjeant. (ii) Nicholas of Lynn, Calendar of Patent Rolls, 1247–58 605 (1257) (described as ‘narrator’, and probably (from other evidence) a Bench serjeant). (iii) Richard (de Ulmis) of Havering, Caldendar of Patent Rolls, 1247–58, 617 (1258) (also described as ‘narrator’, and probably from other evidence, a Bench serjeant). (iv) Giffard, John, Dunham, W.H., ed., Casus Placitorum, Selden Society, lxix (London, 1950) 79–80Google Scholar. (v) John of Pakenham, KB 26/166 m. 2d; KB 26/195, m. 19 (1268), KB 26/196 m. 15 (1270) (sues for king in litigation in the Bench), (vi) William of Thorney Calendar of Patent Rolls, 1266–72 318 (1269) (described as king's serjeant, and other evidence suggests that he was a king's serjeant in the sense of a lawyer acting for the king), (vii) Richard of Boyland, Dunham, ed. Casus Placitorum supra at 79. (viii) John of Houghton, Calendar Patent Rolls, 1266–72 551 (1271) (described as king's serjeant, and other evidence suggests that he was a lawyer).

24. Radulphi de Hengham Summae, p. 34. On the date and authorship of the treatise see Brand, P.A., ‘Hengham Magna a Thirteenth Century English Common Law Treatise and its Composition’, Irish Jurist, new ser. xi (1976) 147–69Google Scholar.

25. Turner, G.J. and Plucknett, T.F.T., ed., Brevia Placitata Selden Society, lxvi (London, 1951) 20Google Scholar, 25–26, 55–56, 59, 60, 64–65, 81–83, 100, 100–102, 103–106, 129, 130–131, 143, 165, etc. On the date of the treatise, see ibid at xviii–xxiv.

26. Pillerton v. Fitz Roger, KB 26/171 m. 35d. The land concerned was only a small holding (one message, an acre and a half of woodland, four acres of arable and two and a half acres of medadow) and the defendant may have been attempting to avoid the expense of employing a serjeant.

27. But note that one of the two attorneys whom Hugh had appointed in Michaelmas term 1261 for this plea was his own son John, KB 26/171 m. 81, and that he appointed another attorney in the plea in Easter term 1262, KB 26/166 m. 40 (his opponent here becomes ‘rex anemalie’ not ‘alemanie’).

28. KB 26/166 m. 35. For earlier and later stages of the same case, KB 26/171 m. 9d; KB 26/172 m. 22; KB 26/173 m. 16d; KB 26/200A m. 26 and for its background, see 2 Calendar of Patent Rolls, 1232–47 11, 164.

29. But see the splendid story of the Peterborough chronicler about the earl of Gloucester's litigation against the abbot of Peterborough in the 1285 Northamtonshire eyre in which the earl was seeking the manor of ‘Biggin’. On the day the case was to be heard the earl took the abbot by the hand (‘per manum accepit’) and sat with him, but this was just a trick to stop him getting a serjeant (‘et fraudulenter hoc fecit ut abbas non haberet serianciam pro negociis suis expendiendis nee ut aliquis pro causa isius abbatis se apponere seu defendere quoquomodo auderet’). The abbot had then to use the services of his sacristan to speak for him, though only after the abbot had asked permission for this from the justices. Fortunately the sacristan was able to find a defect in the earl's writ and so got it quashed. British Library, Additional MS 39758, fol. 99r.

30. There is no whole year around 1260 with a good run of surviving attorney appointment membranes. For the purposes of analysis I have used the attorney membranes of the rolls for Michaelmas term 1258 (KB 26/160 mm. 60–63), Hilary term 1259 (KB 26/162 mm. 43, 44, 46), Hilary term 1260 (KB 26/164 m. 35 only: the other membranes are lost), and Easter term 1260 (KB 26/165 mm. 36–39). The probable professional attorneys of the Bench found on these rolls are (with totals of appointments in brackets): Richer of Colchester (nine and also one appointment in King's Bench as an attorney in Michaelmas term 1259); John of Easton (fifteen); John of Harpley (thirteen); Reginald of St. Alban's (twelve); William of Skutterskelfe (nine, and twice appointed an attorney in the Exchequer in Hilary and Easter terms 1260), John of Wandsworth (seventeen), John son of William (sixteen), and Robert of Wolmerston (ten).

31. The Richard of Glen and Richard Gruys narratores amerced because they were disavowed by John le Paumer and his mother Isabel in the Warwickshire special eyre of 1260, see JUST 1/953 m. 2d, were perhaps professionals: Richard of Glen also appears in the Exchequer of Pleas as an attorney for the abbot of Leicester in 1259–60. E 13/1B mm. 2, 4d. Note also that the Peterborough chronicler, writing about the 1262 Lincolnshire eyre, mentions the great expenses and ‘liberalities’ (‘sumptus amplos et magnas liberalitates’) of the abbot of Peterborough both to the justices and to the Serjeants (‘narratoribus’) as well as to other men of the county: British Library, Additional MS 39758, fol. 90r. The earliest identified Eyre Year-Book reports come from the following Lincolnshire eyre of 1272. One is Cambridge Univ. Library, MS. Dd VII. 14, fols. 370b–371a (report of a case on JUST 1/483 m. 30). The only Serjeants named in this report are (Gilbert of) Thornton and ‘Pageman’ (William de Pakeman or more probably John of Pakenham). The other is the report printed by Dunham in Casus Placitorum, supra note 23 at 65–67 (report of JUST 1/483 m. 40d). In this report no Serjeants are named.

32. The London Eyre of 1244, supra note 18 at 96 no. 236 A similar provision also applied to aldermen of the city who had ‘stood with’, or acted as counsel to, litigants.

33. Stapleton, T., ed., Liber de Antiquis Legibus: Cronica Maiorum et Vicecomitum Londoniarum Camden Society, original series, xxxiv (1846) 42–43Google Scholar.

34. Ibid, at 70. Note that an account roll of the abbot of Ramsey for 1241–42 includes a payment of thirteen shillings and four pence to two Serjeants (narratores) at Norwich, British Library, Additional Roll 34332, m. 4. It is not, however, clear whether they were being paid for services in the city court or some other court.

35. The Serjeants active in the Bench during the 1270s include: Adam de Arderne, Hamon de la Barre, John of Bocking, Robert of Bradfield, John Gifford, John of Houghton, Adam of Kinsham, John of Quy, John of Ramsey, William of Stowe, Gilbert of Thornton and Alan of Walkingham. The Serjeants active in the Bench during the 1280s include: William of Barford (Bereford), Robert of Bradfield, Alexander of Coventry, Richard of Gosfield, Roger of Higham, John de Lisle, William of Kelloe, Hugh of Lowther, Gilbert of Thornton and Nicholas of Warwick. I will be discussing the evidence on which these lists are based in my forthcoming book on the early history of the English legal profession.

36. Most of the surviving reports come from the ‘Northern’ eyre circuit. The Serjeants active on this circuit include: Robert of Bradfield, Richard of Arnesby, Thomas of Fishburn, Richard of Gosfield, William of Kelloe, John de Lisle, John of Ramsey, Roger of Scotter, William of Selby, Gilbert of Thornton. There are a few reports of cases from the ‘Southern’ eyre circuit, see Dunham, ed., Casus Placitorum supra note 23 at 111–12, 114, 130–31, and various manuscripts, but not enough to reach general conclusions about the Serjeants active on the circuit. For further details see my forthcoming book on the early history of the English legal profession.

37. Sayles, G. O., ed., Select Cases in the Court of King's Bench, vol. V Selden Society, lxxvi (London, 1957) xl–xlivGoogle Scholar. Sayles dates the beginning of the regular retaining of Serjeants by the king to 1278. This may well be true, though it should be noted that Alan of Walkingham, one of the king's Serjeants, was paid in 1281 in respect of his services to the king during the previous six years. C 62/57 m. 10. It should also be noted that in 1278 there is a reference to the king's Serjeants (‘narratores regis’) as though to a well-established institution. Rotuli Parliamentorum i: 7. For men described in 1269 and 1271 as king's Serjeants who are known from other evidence, to have been lawyers see note 23 supra.

38. For full references see my forthcoming book on the early history of the English legal profession.

39. The earliest instance seems to be in 1287, though it is not completely certain that the attorney here is professional. CP 40/67m. 47d.

40. CP 40/89 m. 26d.

41. Rotuli Parliamentorwn, supra note 37 at i: 84 (no. 22). For a full discussion of this episode see my forthcoming book on the early history of the English legal profession.

42. In the eyre: Burne v. Watergate, JUST 1/915 m. 39 (1279 Sussex eyre); Motekan v. Ingoldmells et al., CP 40/102 m. 160 (1282 Lincolnshire eyre); In the court of King's Bench: Brettevil vs. Abbot of Tichfield KB 27/94 m. 42d; Calendar of City of London Letter-Book B, p. 216; Calendar of City of London Letter-Book C, pp. 26, 115–16.

43. Munimenta Gildhalle Londoniensis, ii, part i: 280–82.

44. Ibid. More ambiguous is evidence from the 1278 Hertfordshire eyre. A plaintiff lost his case because of a faulty count by his serjeant. His amercement was pardoned because he was poor and because his serjeant had defrauded him (‘…et quia narrator ejus defraudavit eum…’). But no action seems to have been taken against the serjeant. Chepman v. Seriaunt, JUST 1/323 m. 16d.

45. Gernun v. Gernun, CP 40/103 m. 70d.

46. In another case of 1292 a different professional attorney of the Bench, Simon of Stowe, was in trouble for failing to sue the writs required for his client at the proper time. Here it was held that he could not excuse his failure by ignorance, since he had long been a general attorney and knew sufficiently well what he ought to have done (nee…per ignoranciam se potest in hoc casu excusare, eo quod generalis attornatus dudum extitit et sufficienter eruditus ad premissa exequenda si volebat) and that the failure was therefore to be ascribed to deliberate deception. He was therefore sentenced to a year and a day in the Fleet prison. CP 40/95 m. 79d.

47. Statutes of the Realm i: 34.

48. For cases where attorneys were sentenced to a year and a day in the Fleet prison and also disbarred from practising, see CP 40/90 m. 146d (1291-Peter of Luffenham); CP 40/90 m. 57d (1291-Robert of ‘Greshope’); CP 40/108 m. 145d (1295-Thomas de la Bere); CP 40/125 m. 236d (1298-Roger de Plat). For cases where only the term of imprisonment is mentioned, see CP 40/91 m. 210 (1291-Gerin le Lyndraper); CP 40/91 m. 191d (1291-John of Upton); CP 40/95 m. 79d (1292-Simon of Stowe). For an apprentice of the court sentenced to a year and a day in the Fleet and also disbarred from representing litigants (‘et inhibitum est ei ne se immisceat seu intromittat de aliquibus negociis in curia domini regis decetero prosequendo seu defendendo…’) for deception of the court in a case in which he himself was a party, see CP 40/139 m. 106 (1301-Thomas Torel).

49. Statutes of the Realm i:35.

50. For full details see my forthcoming book on the early history of the English legal profession.

51. Downer, L.J., ed., Leges Henrici Primi (Oxford, 1972) 151Google Scholar (42,2), 195 (61, 2), 197 (61, 10).

52. The institution is described in book XI of Hall, G.D.G., ed., Glanvill (London, 1965) 132–36Google Scholar, a treatise written at the very end of the reign of Henry II, but may have come into existence some time before this. The author describes such a representative as a responsalis, but in all except name he is the same as the attorney of the later common law.

53. Ibid, at 133 (XI.I).

54. Close Rolls, 1231–34 551.

55. Leges Henrici Primi supra note 51 at 156–58(46, 4–6; 48, 1–1c), 162 (49,3). It should, however, be noted that Maitland thought that the treatise showed ‘counsel’ able to speak for the litigants at all stages in proceedings: Pollock & Maitland, History of English Law supra note 23 at i: 211–12.

56. The earliest clear reference to a serjeant making a count for a plaintiff—and then being disavowed—seems to be in 1222 C.R.R. xiii: no. 1194. It may also be significant that when Glanvill gives a specimen count for the demandant in the action of right for land, it is in the first person (‘peto…’). Glanvill, supra note 52 at 22–23(11,3). When Bracton gives a similar count it is in the third person, as though spoken for the demandant (‘Hoc ostendit vobis A…’). Thorne, S.E., ed., Bracton, De Legibus et Consuetudinibus Angliae Cambridge, Mass., 1968) iv: 169Google Scholar. Later evidence indicates that third person counts became the standard form.

57. Ibid, at III: xv–xxix.

58. Haas, E. de and Hall, G.D.G., eds. Early Registers of Writs, Selden Society, lxxxvii (London, 1970) xxvii–xxixGoogle Scholar.

59. CP 40/110, m. 239.

60. Williams, Medieval London, supra note 19 at 83–84.

61. A rather crude indication of the scale of this increase is provided by counting the number of membranes required to record one year's business in the Bench. In 1200 forty-nine membranes sufficed; this had more than doubled by 1250 (108 membranes) and almost doubled again by 1260 (207); between 1260 and 1280 it more than doubled again (439) and by 1300 more than doubled once more (1056).

62. Using the same rather crude indication, in 1260 fifty-six membranes sufficed, by 1280 the roll had more than doubled (to 127) and by 1301 more than doubled again (to 273).