 |
| 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
Uses
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.
Entails
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.
Conclusion
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.
Notes
[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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