A Curious Miscellany of Items Philosophical, Historical, and Literary

Manus haec inimica tyrannis.

Friday, May 12, 2017

The British Moralists: Introductory

In the many university philosophy courses I took in my time — undergraduate and graduate — there were interesting figures who, for whatever reason, got left out of the canon. I went through my entire education without hearing the names of Thomas Reid or the Earl of Shaftesbury uttered in class. These are two figures who ended up having an important influence on my thinking, but about whom I had to learn for myself. Regular readers of this blog will know that the latter was beyond influential for me; without exaggeration, I can say that he was life-changing. So it is perhaps understandable that I feel I was shortchanged when it comes to my formal philosophical education.

Now, Western philosophy has a 2,500-year-old history, so perhaps we can be charitable and accept that the neglect of certain figures is inevitable; not everybody can be fit into the curriculum. But it is also true that that curriculum is itself partly a product of the whims, fancies, and tenure-seeking aspirations of a given generation of professional philosophers. The teachers of my generation unfortunately seemed to have been obsessed with Rawls, Wittgenstein, and Hume. Most of Rawls is really just obvious stuff, pilfered from other disciplines, mixed with some over-processed Kant, and packaged in the fashionable liberalism of mid-20th century America. Wittgenstein truly was a genius, but that genius was sadly wasted on a narrow set of philosophical problems that seems to outsiders a bit lacking in real-world relevance. And Hume, well, as a philosopher he was presented to me stripped of all philosophical or historical context except for his relation to Berkeley and Locke. His moral philosophy especially was therefore distorted beyond all recognition, because the people teaching it had no familiarity with Shaftesbury, Butler, or Wollaston (nor with Fielding, Richardson, or Johnson, for that matter).

These three names — Shaftesbury, Butler, Wollaston — demonstrate that sometimes it is not just isolated figures but entire movements and traditions that get left off philosophy’s curriculum. This is less excusable. The extraordinary flowering of moral philosophy in Britain between, say, 1650 and 1800 to me deserves to be considered almost as important an achievement as that more famous eruption of philosophical activity that occurred in ancient Athens. Hume was a Johnny-come-lately to that flowering, and frankly of lesser importance when set in his place within the tradition. In terms of their influence on thought, on literature, and on the arts of the long 18th century, certainly Shaftesbury and Bernard Mandeville must be rated the more important moralists. And yet, neither of these latter names was ever heard in a philosophy course that I attended. Instead, we were stuffed to overflowing with Hobbes and Hume.

(Why? I'm not sure. Perhaps the deep scepticism and non-cognitivism of these two men accorded more with the temper of mid- to late 20th-century academic moral philosophy.)

It was not always thus. There was still much interest in this heterogeneous group of philosophical moralists when L. A. Selby-Bigge published his two-volume anthology British Moralists in 1897. By 1969 they were still of enough importance that a new two-volume collection was thought to be warranted, The British Moralists, 1650-1800, edited by D. D. Raphael. Since then, there have been occasional monographs published on the subject, most prominent of which perhaps is Stephen Darwall’s 1995 book The British Moralists and the Internal ‘Ought’: 1640-1740. However, Darwall’s is characteristic of many of these, at least of the ones written by philosophers, which tend to present these thinkers as modern philosophers, using modern philosophical concepts to engage in modern philosophical debates, and stripped of their close connections to the broader artistic and literary context of their times.

I have commonplace books full of notes on these British moralists, and I have decided that I would like to make some use of them in this blog. I shall therefore periodically profile some of these people under the label “British moralists”. I will not bother with such figures as Hobbes and Hume, since they are not neglected in the schools and stand in no need of resurrection; in any case, I have nothing to say about them that hasn’t been said already. Instead I will profile the unsung heroes, such as David Fordyce, John Brown, Richard Cumberland, and the Cambridge Platonists. In doing so, I hope to be able to show that I am not engaging in hyperbole when I compare this flowering of philosophy to that of ancient Athens. I also hope to demonstrate what philosophy may be when (i) it deigns to engage with the real world, and (ii) when it does so in elegant literary prose, for many of these philosophers were also writers of real merit.

If this topic bores you, I promise that these posts will be only occasional, and I envision them being fairly brief.

Tuesday, May 2, 2017

Ricardian Law (Part II)

A serjeant-at-law, c. 1400

This is the second and final part of my paper, English Law in the Age of Richard III, a shorter version of which was delivered almost exactly one year ago to a meeting of the Richard III Society of Canada. This second part, in my opinion, is more challenging for the reader, in that it deals with material that is more complex and technical than that found in the first part.

At the end, you will find the notes for this part of the paper, as well as a list of references for both parts.

*          *          *          *          *

Contract Law

The action of trespass leads us to an area that was of growing importance in Ricardian times. During the lawlessness and violence of the 15th century, the action of trespass became a flexible tool for redressing many kinds of wrong not originally contemplated by the framers of the writ of trespass quare clausum fregit. From this unlikely beginning in tort law grew that very important branch of law now known as contract.

In the beginning there was no contract law as such. Roman law had it, English law did not. So what recourse did a plaintiff have when a defendant had breached a contract? Well, if the breach consisted of not paying for goods, there was an action of debt for money owed. If the breach consisted of not delivering goods paid for, there was the action of detinue for the detaining of goods belonging to another. If the breach consisted of breaking an agreement made under seal, there was the action of covenant. If the breach consisted of not returning goods lent, there was an action of replevin. This, then, sounds very much like there was an effective law of contract, even if it wasn’t called such. However, these actions had serious shortcomings, the most important of which was that they allowed for wager of law. [1] Another problem was that in order to bring an action of debt or detinue, for instance, a plaintiff had to prove intentional deceit, which was absent in many breach of contract situations, or at least hard to demonstrate.

To avoid these problems, plaintiffs began to bring actions of trespass instead. The advantage of trespass was that it didn’t allow wager of law. The problem, though, was that trespass was a tort, requiring that the wrong in question involve some kind of force or violence, the two most common writs of trespass being vi et armis (“force and arms”) and the already mentioned quare clausum fregit (“breaking of one’s close”). Again, these don’t really describe the circumstances of most breaches of contract. However, during the 15th century King’s Bench (the normal venue for trespass suits) began stretching this concept, by allowing some actions of trespass that didn’t obviously involve force or violence. These actions were called trespass “on the case”, so-called because the facts of the particular case would simply be inserted into the writ of trespass. [2] At some point people began suing for trespass on the case rather than for debt. This practice must have begun during the reigns of Edward IV or Richard III, though the earliest example I have found where an action of trespass on the case has been clearly allowed for what we call non-performance of a contract is Orwell v. Mortoft (1505). [3] From then on we have a line of cases culminating in Slade’s Case (1602), in which it was finally determined that (i) every executory contract implies a promise, or “assumpsit” in Latin, and that (ii) although on such a contract a plaintiff has an action of debt, he may also have an action of trespass on the case for the assumpsit. This new action came to be called simply “assumpsit” and forms the basis of the modern law of contract. [4]

It must be kept in mind that there were self-interested reasons for the court to allow such actions. The various courts were as much money-making enterprises as they were dispensers of justice. The various clerks and officials survived on fees. Therefore, the more cases that could be brought into a court, the more fees that court’s officials stood to gain. The Court of King’s Bench saw an opportunity to attract more business by allowing these very expansive writs of trespasses on the case. Sometimes a court made business for itself at the expense of another court. For example, the Court of Exchequer concerned itself with matters touching the King’s revenue. It was a tax court. However, its relatively simpler and faster procedures were attractive to other kinds of litigants. A person might bring his suit for debt to eth Exchequer on the dubious fiction that the unpaid debt made him less able to pay his taxes. It then became a revenue matter with which the Exchequer could concern itself. The Exchequer countenanced this practice because it brought the court new business and fees. This competition between courts for business could lead to substantive legal change. We have just seen an example of this in the development of contract, where the King’s Bench, in striving to attract business away from other courts, inadvertently invented what was to become a central branch of the law.

From what we have seen so far, we can make some general observations on the nature of medieval English law. One of the most striking features of it to modern eyes is how procedural it really is. We tend to think of “the law” as a system of rules that grant us certain rights and impose certain duties, along with the means to enforce these. We think, for instance, of the statute, which commands us to do or not do certain things, and lays out a penalty for violation. Most tellingly, we refer often to “the justice system”.

You will look in vain for any term corresponding to “justice system” in the medieval records. There are references to “the King’s justice”, but the system itself was viewed more as a system of formal methods and procedures to be used, abused, and manipulated in order to accomplish one’s goals. The “law” was no more than the forms and procedures as they were administered in the royal courts, and the “rules” of law were simply recognized ways of summoning, drafting, and pleading in order to get an estate conveyed, a title restored, or a debt repaid. “The Common Law was not so much a system attempting to bring justice as it was a conglomeration of procedures designed, in more and more cases, to achieve solutions to disputes.” [5] “Justice” described process, not outcome.

We tend to think that for every wrong there is (or ought to be) a remedy in the law and that obtaining a remedy is mostly a matter of convincing a court that you have suffered a wrong. For a medieval plaintiff, this way of thinking would be a disastrous mistake. For him there was no wrong unless there was a writ on the register to remedy it. If you couldn’t fit the facts of your case more or less exactly into one of the existing forms of action, you had no case, no matter how unjustly you had been treated. At best, you might find a very clever lawyer who could come up with a way to use a fiction to make some existing writ do what you wanted. The emphasis on procedure and formality encouraged litigants to be creative in using fictions and other devices to make the law serve their ends. This will become evident when we turn to fines and common recoveries.

There was also considerable overlap between existing forms of action, but with just enough subtle procedural difference between them to create pitfalls for the unwary litigant who chose the wrong one. A large part of a medieval lawyer’s expertise was exercised in advising a client which action to initiate. Choose the wrong one and you could waste many years and much money pursuing a dead cause, while a different writ might have achieved a better outcome.

The Legal Profession

Who were these lawyers? [6] As long as there were royal courts administering justice, there must have been men who had more knowledge than others of how those courts worked and what kinds of redress one could seek there, and such men might offer their services to litigants for a fee. Once the courts settled at Westminster, these men learned in the law would naturally wish to settle and do business somewhere near the court. They settled in inns. Besides serving as residences and offices, the inns also served as colleges, in which law students were trained. Today there are four inns of court: Gray’s Inn, Lincoln’s Inn, the Middle Temple, and the Inner Temple. In Richard’s time there was also Serjeants’ Inn (1416-1877). Originally, these were common law inns. There would also have been the inns of Chancery: Clifford’s Inn, Thavie’s Inn, Clement’s Inn, Lyon’s Inn, Furnival’s Inn, Strand Inn, New Inn, and Barnard’s Inn. [7] These were smaller establishments and fell into decay by the 19th century. Finally, there was also Doctors’ Commons, an inn of court for practitioners of the civil law used in the ecclesiastical and admiralty courts. [8]

Senior members of an inn in good standing were called “benchers”. A student of the law was known as an “apprentice”. He would spend his time in the inn reading whatever literature was available, usually in the form of plea rolls or the reports of cases circulating in manuscript taken down by lawyers and students. He would listen to “readings” by benchers. He would also attend the courts, and observe proceedings. If he intended to make his career in law, he would do this for many years — sixteen at least — until, assuming he was diligent and clever enough, he was lucky enough to be admitted as a serjeant-at-law. The admission of a serjeant was accompanied by much ceremony, feasting, and giving of gold rings, an interesting description of which was given by Sir John Fortescue, Chief Justice under Henry VI. [9]

The serjeants were the elite of the legal profession. They were the only lawyers allowed to plead before the court of Common Pleas and they were the only ones allowed to approach the bar before the judges; hence, becoming a serjeant-at-law meant being “called to the bar”. If you walked into the court of Common Pleas in Richard’s time, you likely would have seen a group of serjeants at the bar arguing over a case; they didn’t necessarily have to be representing a client in order to do so.

The serjeants also wore a distinctive white silk coif or skull cap, which led to their being referred to collectively as “the order of the coif”, while becoming a serjeant was referred to as “taking silk”. According to Fortescue, serjeants were not required to remove the coif even in the presence of the King, thus symbolizing that the serjeants obeyed a higher law.

The serjeants were the class from which the judges were drawn. Their exclusiveness is indicated by the fact that over the course of the entire 16th century, only 89 serjeants were created. In the beginning they would congregate and seek clients in front of St. Paul’s Cathedral. However, their small number led over time to their becoming extremely busy, and an early 17th-century serjeant was embarrassed to admit that there once was a time when his class had to solicit business like common tradesmen. [10] In Richard’s time, as now, barristers did business from their chambers when not in court.

Because the serjeants were so busy, another kind of lawyer arose, what today we would call the solicitor. He did not plead before a court. Instead, he did the necessary work to usher a suit through court. He advised clients, drafted and filed the necessary paperwork, and paid fees to court officials. He was also responsible for preparing his client’s brief, that is, the summary of all the pertinent facts and issues of a case, and for finding a serjeant to plead it in court.

The serjeants pled cases in Common Pleas, which originally was the busiest and most profitable court. This allowed for other lawyers to find work in the other courts as barristers. Since over time many types of cases were transferred to other courts (especially King’s Bench and Exchequer), the power of the serjeants’ order began to decline. This process had already begun in Richard’s time. As the elite of the legal profession, the serjeant was replaced by the figure of the King’s Counsellor.

In the Middle Ages, “maintenance” — the intermeddling of an outside third party to encourage a lawsuit — was illegal. This made it difficult for a lawyer to ply his trade and especially to do so for money. To get around this difficulty, lawyers accepted their fees in the form of a retainer, to hire his services for a period of time. This fiction effectively treated the lawyer as a paid servant of his client; as such he could be considered part of the client’s household and therefore no longer an outside third party. [11] His services on behalf of his client were no longer technically maintenance. And since the lawyer couldn’t sue a client for non-payment without again running afoul of the laws against maintenance, the retainer was always paid up front. Another advantage to the practice of paying a retainer was that, with a limited number of skilled serjeants, a client could obtain the services of a particular serjeant before his opponent did. The accepted retainer for a lawyer in Richard’s time was half an angel (about 3 s. 4 d.) or multiples thereof, which gave rise to the saying that a serjeant-at-law was like Balaam’s ass, which did not speak until it had seen an angel. [12] Then as now, the lawyer was not a popular figure.

We will now proceed to look at two institutions that were a growing and changing part of the law in Richard III’s time: uses and entails.

III. Uses and Entails


A “use” roughly corresponded to what today we would call a trust. A grantor conveyed lands to a grantee to be held “to the use of” a beneficiary, called the cestui que use (“he for whom” the use is made). [13] There were in medieval times many reasons someone might want to do this. For example, a married man wanting to make sure his wife was provided for after his death might wish to transfer some of his land to himself and his wife; however, since the law didn’t allow transfers to oneself, the practice became to transfer it to a third party, usually a friend (what we would call a trustee), on the understanding that he was to reconvey it to him and his wife. Or, rather than have the estate re-conveyed to him, he might leave it in the trustee’s hands, on the understanding that he and his wife were to continue to receive the benefits of it. This was essentially a separation of enjoyment from title.

There was an obvious problem with this scheme: What happened if you had a falling-out with the trustee? Or what happened if there was some radical misunderstanding regarding expectations? You technically had no recourse, because the trustee was now the owner of the property, at least as far as the law was concerned. It was all a matter of trust, and sometimes trust breaks down. However, because they were a matter of trust, and of hence of conscience, the job of enforcing uses fell into the hands of Chancery. This is because, as we saw, Chancery was conceived as a sort of court of conscience, responsible for dispensing substantive justice, and presided over — in the form of the Lord Chancellor — by a man of the cloth. Eventually Chancery would treat as an implied use any conveyance made without consideration, i.e. without either an exchange of money or an existing familial relationship between the parties. This Chancery jurisdiction was established by the 1420s, and by the time Richard III came to the throne a large portion of its business dealt with uses.

The attitude of the law towards uses was always ambivalent. On the one hand, they served many needs. On the other hand, they produced many pernicious effects. For instance, such trusts could be used to put lands out of reach of creditors: you couldn’t give up to creditors lands that weren’t yours, but you could still enjoy all the benefits of ownership. [14] Also, since under feudalism real property was not devisable by will, uses enabled owners to pass it on to whomever they wished, simply by passing title to a trustee during life. This had the consequence of cheating the feudal lord of his relief. Indeed, by Richard’s time, uses were seen as a way of cheating lords of their feudal dues and of getting around the laws against mortmain.

As a consequence of the Wars of the Roses, uses became popular because they protected lands from possible forfeiture in the uncertainty of the times. The risk of being executed for coming out on the wrong side of the struggles made landholders wish to secure their property for widows and children. From the Crown’s point of view, this too was a problem.

Another problem of uses in Richard’s time had to do with the muddying of title caused by having so many lands in the hands of trustees who had little to do with them. It was often unclear who had title, since uses could be transferred without livery of seisin. [15] Purchasers were in danger of being passed bad titles (or titles with hidden conditions) from mere beneficiaries rather than the trustees. Legislation of Richard III’s sought to solve this problem by allowing a beneficiary to pass good title even against his own trustees. [16] This “remarkable measure”, as one eminent legal historian referred to it, had the effect of removing cases from Chancery to the common law courts, since the beneficiary now had a true property interest in the land, called a ius usus or “title to use”. [17] Legislation of Henry VII and Henry VIII transferred existing titles from trustees to beneficiaries and prohibited the creation of further uses.


It is almost proverbial that among the English gentry, fathers do not trust their sons. In order to keep lands together in the family and protect them from irresponsible sons, the practice of entailing estates was developed. Here, instead of saying “to Richard and his heirs”, the grant of lands would say something like “to Richard for life, remainder to the heirs of his body”. What’s the difference? Well, technically speaking, the word “heir” would simply refer to whomever the estate was to pass to after Richard’s death. In the normal case this would be his eldest son, but the specific identity would only determine upon Richard’s death. Until then, there was no heir with a vested interest in the estate. But if the grant specifies, say, “heirs of his body”, then so long as Richard has living children, the word “heir” is determinable; his successor has a vested interest in the estate — called a “remainder” — which prevents Richard from alienating it to others. If Richard tries to alienate the land, or if he commits waste, the “remainderman” or tenant in remainder has an action in law against him. In the meantime, Richard, the tenant in fee tail, has no more than a life estate. Keeping lands together in this way could be very important in an age where land was the primary source of power and family prestige. However, there was tension: an entail locked up land that a tenant in fee tail might want to use to borrow money against. Also, a tenant in fee tail still had the power to charge the estate with an annuity to, say, support a widow, thus burdening the estate for his successors in remainder. By the 17th century, such charges on entailed estates became a problem, leaving many gentry rich in land but financially debt-ridden. Entails, as a matter of policy, tended to be unpopular among the merchant and banking class, because it kept too much land locked up and out of economic circulation. We will now look at two ways in which entails could be broken. [18]

IV. Fines and Common Recoveries

Much of the time, entails satisfied both their creators and their heirs, since normally the entail was set up in such a way as to follow the regular line of intestate succession, while at the same time making sure that it couldn’t be fragmented or alienated by an improvident heir. However, entailed estates could also become a way for the dead to tyrannize over the living. There were obvious ways in which an entail could be inconvenient for a tenant in tail. There was no way that the creator of an entail could foresee every situation that might arise in future generations: As with Downton Abbey, one’s lands might through the vagaries of procreation and succession, end up in the hands of strangers; one might need to mortgage one’s land as security to raise capital, or sell it to pay debts. Entails tied the hands of owners, as they were intended to do. Was there any way to recover an estate from entail?

There were two main ways to bar an entail: the fine and the common recovery. These were both collusive actions that used a fictitious title to exploit existing legal procedures to convey land. Fines and recoveries were rapidly developing areas of the law in the late 15th century, so they’re worth looking at in more detail.

We will begin with the fine, since it was the older of the two methods, going back to the 12th century, and since it is also a bit easier to wrap one’s head around than the common recovery. [19] In essence it was quite simple. If land was adjudged to me by due process in a court of record, it was duly noted in the court roll. If the judgment took the form of a settlement or compromise between two parties in a suit, the details of the agreement were also duly noted in the roll. This record in the court roll was deemed to be, with very few exceptions, irrevocable and unquestionable, and could thus function as the equivalent of a deed. If that judgment said that an estate was fee simple rather than fee tail, the entail was effectively barred.

Let’s say Alfred is tenant in tail of Blackacre. He would begin a fictional lawsuit against Baldric, a colluder in the action. [20] They would then settle, with Alfred ceding title to Baldric, with the settlement noted in the roll and a chirograph provided by the court to Alfred and Baldric, which would serve the latter for a deed. Since for all intents and purposes Baldric was now tenant in fee simple, he would convey the land back to Alfred in fee simple, following the normal process of conveyance. Alfred now held in fee simple and the entail was barred. The process was called a “fine” because of the standard opening words of the chirograph: Haec est finalis concordia (“This is the final agreement”).

It’s easy to see how the fine might be abused. What’s to stop two colluders with no legal claim whatsoever to the estate from obtaining title by fine to someone else’s lands? They could use this fictional process to take ownership of any tenant’s land, so long as they could keep their process a secret from him. A partial remedy was provided by legislation stipulating that the colluders must at least have some connection to the lands they were recovering; they could not be complete strangers to the property. [21]

Another remedy was provided, one which is of special interest to Ricardians. In 1531 was printed Christopher St. Germain’s dialogue work, Doctor and Student, a book that remained a core legal textbook well into the 19th century. In it we find the following passage:

STUDENT: Yf a fine with proclamacyon be leuyed accordynge to the statute and no clayme made within v. yeres &c. whether is the right of a straunger extyncted therby in conscience, as it is in the law. DOCTOR: Upon what consyderacyon was that statute made. STUDENT: that the right of lands and tenements, myght be the more certaynly knowen and not to be so uncertayne as they were byfore that statute. [22]

In plainer English, according to a statute, the person wronged by a fraudulent fine now had five years within which to challenge the fine before it became irrevocable, instead of the year and a day previously allowed. Now, what is this statute to which the doctor and the student are referring? St. Germain himself didn’t say. One of his 18th-century editors, William Muchall, claimed that it was a statute of Henry VII. [23] This is not entirely true. The great 20th-century legal scholar, Theodore Plucknett, pointed out that the statute was actually Richard III’s, but was re-enacted by Henry VII. As Plucknett noted, “the Tudors usually got credit for Richard III’s reforms”. [24] St. Germain’s neglecting to cite the specific statute is strange, for he certainly has no hesitation about naming other statutes. I would like to think it an indication that he knew this statute was really Richard’s rather than Henry’s, but that writing in 1531, it was unsafe to credit the former for it. Rather than mislead, St. Germain chose instead to pass over it in silence.

The common recovery was a newer process, coming into its own during the reign of Edward IV. It was more complicated and required more parties to the transaction. [25] In the simplest version of this scheme, there are four parties:

            A: the tenant in tail, called the vouchee.
            B: tenant in praecipe (usually A’s lawyer).
            C: the demandant, another colluder, usually the
                 heir of A.
            D: the common vouchee, a straw man, usually a
                 poor court clerk.

First, A conveys Blackacre to B (which of course he has no right to do with an entailed estate). C then comes along and sues B for title. In his defense, B claims he acquired Blackacre from A. A, now called the vouchee, is called upon to vouch for his title. A then claims he acquired his title from D. D is called to vouch in his turn but fails to appear in court, or else he dashes out of court. This amounts to a contempt of court, and judgment is therefore given that C should recover Blackacre, and D should compensate B with land of equal value. All of this is duly entered on the court roll. Of course, D has no land; he is a straw man, usually a minor officer of the court. The end result is that the judgment against D is not executed, while A has in a roundabout way conveyed Blackacre to C. C can then convey back to A, who becomes tenant in fee simple. The entail is barred. [26]

In the fine, the court was a passive agent of fraud. In the common recovery, it took an active role, which must have required the Crown’s tacit approval of the practice. Why? It is interesting that though there are beginnings of the practice in the early 15th century, the common recovery really assumes its classical form in the reign of Edward IV. [27] Here is Blackstone’s explanation for this:

About two hundred years intervened between the making of the statute de donis [establishing the practice of entailed estates], and the application of common recoveries to this intent, in the twelfth year of Edward IV: which were then openly declared by the judges to be a sufficient bar of an estate-tail. For though the courts had, so long before as the reign of Edward III, very frequently hinted their opinion that a bar might be effected on these principles, yet it never was carried into execution; till Edward IV observing (in the disputes between the houses of York and Lancaster) how little effect attainders for treason had on families, whose estates were protected by the sanctuary of entails, gave his countenance to this proceeding, and suffered Taltarum’s case to be brought before the court… [28]

Taltarum’s Case was decided in 1472. Much like the practice of uses, entails were protecting estates from forfeiture in the political uncertainty of the times. According to Blackstone’s account, Edward IV encouraged the common recovery in order to discourage entails that were protecting the lands of families disloyal to the Crown.


Richard III’s reign came during a transitional period of rapid legal change. I will conclude by summarizing some of these changes.

Many of them were consequences of the disruption of the Wars of the Roses: the Crown was giving its sanction to common recoveries to bar entails in order to seize estates of those disloyal to the King. Landholders resorted to uses in order to protect their estates from forfeiture, while at the same time, discontent with the resulting confusion of titles and the evasion of feudal dues led to Richard’s first piece of legislation, which clamped down on the practice. The disorders of the Wars of the Roses saw the tort actions of trespass and ejectment become more prominent features of the law, sweeping aside older forms of action to recover property such as the original writs of right and praecipe and the possessory writs of novel disseisin and mort d’ancestor. [29] In particular, trespass on the case proved flexible and adaptable enough to give rise to the branch of law we now call contract law.

The first half of the 15th century saw a tremendous expansion of Chancery business at the expense of the King’s Bench and Common Pleas. However, by Richard’s reign, the tide had begun to turn, and his legislation regulating uses accelerated this process.

Despite all this change, and despite the upheavals of civil war, a later age would view the 15th century as a time of legal stability in comparison with the Tudor period, at least when it came to litigiousness. Chief Justice Coke felt compelled to remark on the common view that the Tudor courts were busier with disputants than the preceding age had been. Coke doesn’t deny this, instead assigning six causes for it. [30] Among them is the rather paradoxical one that

In the reigns of Edw. 3. Ric. 2. Hen. 4. Hen. 5. And part of the reign of Hen. 6. in respect of the wars in France, &c. and in the residue of the reign of Hen. 6. and in the reign of Edw. 4. in respect of the bloody and intestine wars, and in almost continuall alarums within the bowels of this kingdome, between the houses of Lancaster and York, there could not be so many suits in law, as since this kingdome hath enjoyed peace…. Peace is the mother of plenty… and Plenty the Nurse of suits. [31]

Civil war brought with it the blessing of legal peace — rather a sad commentary on the supposed role of law as a force for order.


[1] St. Germain, Doctor and Student (1531), ch. 18, folio 42: “Yf the defendaunte wage his lawe in an accyon of dette broughte upon a trewe dette the pleyntyfe hath no meanes to come to his dette by way of compulsyon neyther by sub pena nor other wyse, and yet the defendaunt is bounde in conscyence to pay hym.” See also Blackstone, Commentaries, III. 151,154, 345; Hobbes, Dialogue, p. 87.

[2] Blackstone, Commentaries, III.122. Actions “on the case” roughly correspond to what in Roman law were known as actions in factum (“on the facts”). Both are “analogous” actions, in that they are allowed by their analogy with known and accepted actions.

[3] Baker and Milsom, pp. 407-411; Baker, “New Light on Slade’s Case,” p. 57. It is worth mentioning that in the fourth year of Edward IV it was decided that one could bring an action of trespass on the case instead of novel disseisin, which by that time had become a slow and inefficient process: Baker, “New Light,” ibid.

[4] On the development of assumpsit, see also Blackstone, Commentaries, III.347.

[5] David and Brierley, Major Legal Systems in the World Today, p. 295.

[6] For an interesting Ricardian-period account of the legal profession, see Fortescue, On the Laws and Governance of England. For a modern account, see Baker, “Counsellors and Barristers: An Historical Study”.

[7] There was also Staple Inn, but it wasn’t established until Tudor times.

[8] In the ecclesiastical courts an advocate was the equivalent of a common law serjeant or barrister, while a proctor was equivalent to a common law solicitor.

[9] Fortescue, In Praise of the Laws of England, ch. 50.

[10] Baker, “Counsellors and Barristers,” p. 208.

[11] Note the similarity between this practice and the hiring of retainers (the retinue) more generally under bastard feudalism.

[12] Baker, “Counsellors and Barristers,” p. 211. For the story of Balaam’s ass, see Numbers 22:27-30.

[13] For a good overview of uses, see Baker, Introduction, pp. 248-258. See also Maitland, Equity.

[14] This problem was address by legislation, beginning in the 1370s, and especially by 15 Ric. II c. 5.

[15] Livery of seisin was an archaic conveyancing ceremony whereby transfer of property was made from seller to purchaser by way of a public handing over of something associated with the property, such as a clod of earth, or else by formally leading the purchaser onto the lands.

[16] 1 Ric. III c. 1.

[17] Baker, Introduction, p. 251.

[18] On fee tail, see Coke on Littleton, 2.13ff.

[19] For more detail on fines, see Blackstone, II.350ff. Recovery by fine was abolished in 1833.

[20] In practice, Baldric would usually be Alfred’s heir.

[21] Blackstone, II.356; Coke on Littleton, 373a.

[22] St. Germain, Dyalogues in Englysshe betwyxt a Doctoure of Dyuynyte and a Student in the Lawes of Englande (1531), First Dialogue, ch. 25, folio 55.

[23] Muchall (ed.), Doctor and Student (1787), p. 68n: “That is the statute 4 H. 7 c. 24. by which the common law which gave only a year and a day to strangers, to make their claim is altered.”

[24] 1 Ric. III c. 7; Plucknett, A Concise History of the Common Law (1929), p. 391; Blackstone, II.352: “By 1 Ric. III. c. 7. confirmed and enforced by 4 Hen. VII. c. …”; Simpson, An Introduction to the History of the Land Law, p. 117; Baker, An Introduction to English Legal History, p. 282.

[25] For common recoveries, see Blackstone, II.357ff; Spinosa, “The Legal Reasoning behind the Common, Collusive Recovery: Taltarum’s Case (1472),” especially pp. 75-76; Simpson, An Introduction, pp. 117-124.

[26] The procedure could get more complicated. For instance, sometimes it was necessary to bar not only the heir in tail, but someone else, perhaps his trustee. In that case, another common vouchee, E, in addition to D would be necessary: A would allege he acquired Blackacre from E, and E would claim he got it from D. One might need three or four vouchees.

[27] The main precedent being Taltarum’s Case (1472), for which, see Baker and Milson, p. 68.

[28] Blackstone, II.117.

[29] “But the Times of Hen. 6. as also of Edw. 4. Edw. 5. and Hen. 7. were Times that abounded with Learning and excellent Men…. In the Times of those Three Kings Hen. 6. Edw. 4. and Hen. 7. the Learning seems to be much alike. But these Two Things are observable in them, and indeed generally in all Reports after the Time of Edw. 3 viz. First, That Real Actions and Assizes were not so frequent as formerly, but many Titles of Land were determined in Personal Actions…” Hale, The History of the Common Law of England, p. 110.

[30] “Now that we may here say somewhat to a vulgar objection of the multiplication of suits, in law both in this Court, and other of his Majesties Courts at Westm’ more then hath been in the reigns of Edw. 3. Ric. 2. Hen. 4. Hen. 5. Hen. 6. Edw. 4. and R.3. It is to be observed, that there be six causes of the increase of them, whereof two be generall, the other four particular. The generall be Peace, and Plenty: The particular, 1. The dissolution of so many Monasteries, Chanteries, &c. and the dispersing of them into so many severall hands. 2. The swarm of Informers. 3. The number of Concealors. 4. The multitude of Atturnies.” Coke, Institutes, Fourth Part, ch. 7 (in Selected Writings, Vol. 2, p. 1181).

[31] Ibid. pp. 1181-1182.


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