Olorn^ll Slam i'rljanl Hibrarg
Cornell University Library
KD 456.C7P98
The Order of the Coif /
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THE
OEDER OF THE COIF,
BY
ALEXANDER FULLING
SEEJEANT-AT-LAW!
LONDON:
WILLIAM CLOWES AND SONS, Limitei>,
27, FLEET STEEET.
1884.
^^Mw
LONDON :
PRINTED BY WILLIAM CLOWES AND SONS, LIMITED,
STAMFORD STftKET AKD CHARING CROSS.
PREFACE.
The subject of this work has been foreshadowed in the
article under the same title in the ' Edinburgh Review '
for October, 1878.
It has been long projected ; the time has arrived when
it is required. In this country we have neither a history
of the Bench or the Bar, and the Order of the Coif was
the first phase of both. Until a comparatively recent
time it included the greater portion of the Judges and
Lawyers of England.
Dugdale, Fortescue, Coke, and Blackstone give us
accounts of the Serjeants-at-law and of the Inns of
Court. Serjeant "Wynne's tract, published in 1765, en-
titled * Observations touching the Antiquity and Dignity
of the Degree of Serjeant-at-law,' is the result of very
useful researches on the subject before us. In the first
Report of the Common Law Commissioners the subject
of Serjeants' Inn and the Inns of Court is minutely
entered on ; and in the " Serjeants' Case," arising out
of the so-called mandate from the Crown issued to the
Judges of the Common Pleas in 1834, we find in the
various arguments of Sir William Follett, Serjeant
Wilde, Sir John Campbell (the then Attorney-General),
Sir R. Rolfe (the Solicitor-Greneral), and Mr. C. Austin,
much learning bearing upon the subject. Serjeant Man-
ning's able and interesting report of this case has very
a 2
IV PREFACE.
elaborate notes, containing extracts from ancient records
more or less relevant.
Since these proceedings took place there have appeared
a number of biographical works which have entered on
the subject of the old Order of Judges and Serjeants of
the Coif.
In Lord Campbell's Lives of the Chief Justices and
Lord Chancellors, there are a great many references to
Judges and Serjeants, with statements occasionally very
inaccurate ; in Mr. Foss's laborious work, containing an
account of all the Judges and Serjeants of the Coif,
there is information far more reliable ; and in two vols,
published by Serjeant Woolrych' in 1869, entitled
' Lives of Eminent Serjeants,' there are special accounts
of eminent Serjeants-at-law who were not raised to the
Bench, so that Serjeant Woolrych supplies information
which Lord Campbell leaves out. The latter objected to
include in his account of the English Bench any below
Chief Justices ; and it must be added that, as a rule, where
in any of his books Lord Campbell had occasion to refer
to the puisne Judges and Serjeants he generally took
the opportunity of doing something more than speak
disrespectfully of them.
It has been long considered an easy and safe task to
disparage the Serjeants-at-law. Their number indeed
seems to have been always small, and in the conflict at
the Bar as to precedence and privileges, the old order
has long been obliged to yield to superior numbers. The
Serjeants-at-law 'have been the victims of endless devices
to their piejudice, and in the scramble for privilege,
' ' Lives of Eminent Serjeants-at-law/ by H. W. Woolrych, S.L., 2 vols. 8vo.
Tiondon, 1869.
rREFACE. V
the Serjeants' place in Westminster Hall was made to
give way without any public advantage being gained.
The suggestions here made for reviving the ancient
order would in days gone by have been welcomed by
all Westminster Hall, and would now probably meet
with the approbation of no insignificant part of the
present Bench and Bar of England, and of all who
respect time-honoured institutions. The venerable Order
of the Coif came with the Common Law of England, and
ought not to be entirely sacrificed without some effort
being made to preserve it.
The antiquity of the old order we have sufficiently
dealt with. Its actual history may interest many of
those who have not given it sufficient consideration.
We will only here say that in the ensuing pages the
reader will find not merely the history of the - old
order, but information upon the subject which must
be a matter of interest not only to lawyers but to the
students of the constitution and history of England.
The arrangement of the subject will be seen in the table
of contents, and our long list of the Judges and Serjeants
of the Coif supplies the reader with the names of over
a thousand men who made their mark in the history
of the Bench and Bar in England. Without regard-
ing the statements of careless writers who have spoken
of the order of Serjeants as if it were now abolished,
we will here simply refer to what is said in our con-
cluding chapter. It is there suggested that it would not
be very difficult to make the Order of the Coif merely a
matter of history, but it would be better and wiser to
look upon the old institution as still having life in it,
and requiring only proper care in order that it may
yet live in the future, as it has done in the past, one of
VI PREFACE.
the most sound and honoured institutions belonging to
the law of England.
The old Order of the Coif were not only Servientes ad
legem but assistants to the Legislature. The names of
Serjeants-at-law figure in the history of the House of
Commons among the most honoured of its members.
During the reigns of Edward YI., Elizabeth, and
James I., the Speaker was almost always a Serjeant-at-
law. Brooke and Dyer, Bell and Popbam, Pickering,
Yelverton, Croke, Hobart, Eichardson, Sir John Glan-
ville, and Sir Heneage Finch, all filled the Speaker's
chair, and were all distinguished Serjeants-at-law ; and
our readers need not be told that Serjeant Maynard and
Serjeant Glynn were certainly so. The Woolsack,
which up to the time of Elizabeth nearly always fell
to the lot of Churchmen, thenceforth was entrusted
generally to members of the Coif; and in 1688, the Great
Seal having to be put in commission, three Serjeants-at-
law were chosen for the purpose — Maynard, Rawlins, and
Keck. In more recent times, as observed in the ' Edin-
burgh Review,' Lord Chancellors have been usually
chosen from the Chancery Bar; but Serjeant Copley
(Lord Lyndhurst), and Serjeant Wilde (Lord Truro), are
certainly above the average of men who have sat on the
woolsack.
The Order of the Coif has always afforded a sufficient
supply of very distinguished men, erudite lawyers,
powerful advocates, great Judges, and masterly writers.
If in more recent times the better places at the Bar have
fallen to the lot of Queen's Counsel, the good name of
the Serjeants-at-law has been well maintained. Whilst
the more modern and more numerous body has supplied
as successors to Bacon and North, such men as Scarlett,
PREFACE. VU
Pollock, Sugden, Follett,- Erie, Cockburn, Eoundell
Palmer, and Cairns, the older order includes a list of
very considerable men, from the days of Plowden
and Coke, Hale and Maynard, to those nearer to our
own time when in Serjeant Williams, Serjeant Copley,
Serjeant Best, Serjeant Wilde, Serjeant Coleridge, Ser-
jeant Talfourd, Serjeant Wrangham, Serjeant Shee, Ser-
jeant Byles, Serjeant Wilkins, and Serjeant Ballautine,
we find men who each in his own proper sphere, has
been facile princeps.
ALEX. PULLING.
3, Ceown Office Row, Temple.
February, 1, 1884.
CONTENTS
INTKODUCTIO^r.
Title of the work — Order of the Coif — Its various designations — The
Parvis of St. Paul's — Serjeant Counters — The ancient Bench and
Bar — History of the Order — Idle conjectures as to origin — Ancient
forensic institutions — L'ordre des avocats in France — The Norman
Conteurs — Coutumier de Normandie and Mirror of Justices — ■
Servientes ad legem — Old ceremony of probation — Ecclesiastics as
men of law — Prevalent ignorance before thirteenth century —
Monastic education — Legal learning — Statements of Dugdale and
William of Mahnesbury — Mistakes occasioned — Clerical tonsure
and the Coif — Ecclesiastical prohibitions disregarded — Coif not a
religious institution — The real badge of the order— The Coif and
the Beretta — Coif mark of rank and dignity — Worn in the King's
presence — ^Formal discharge — Coif on ancient monuments — Judges
and Seqeants — EfBgies of Lyttleton, Gascoigne, Howard, Cockaigne
and others — ^Pictures of Courts temp. Henry VI. — Blunders as to
the Coif— Story of William de Bussy temp. Henry III. and its many
versions— Sir H. Spelman's conjectures — Many careless mis-state-
ments occasioned, e.g. by Lord Campbell and others — Title, rank,
and dignity of Serjeant — Feudal tenure by Serjeantry and its vari-
ous incidents— Various grades of Serjeants by tenure — Blunders
on this subject — Serjeants-at-law — Solemnities observed — Writ
under the Great Seal — Comments by Coke, Selden, and others on the
creation, title, state, and dignity — Oath of ofBce and solemnities
observed — Status et gradus servi'entis ad legem — Eank and permanent
position — Judges of the Coif— King's Serjeants — Common Serjeant,
etc. — Serjeants in Ireland — Arrangement of the subject
CHAPTEE I.
LAVf AND LAWTEES BEFOEE EDWABD I.
Scanty records in early times — Ancient rules as to litigation— Barratry,
Maintenance, and Champerty — Eeal and personal actions — The
Anglo-Saxon Courts — Eecording proceedings — The Norman Con-
CONTENTS.
PAGE
teurs— The Chief Justiciar and the duration of the ofBce and its
discontinuance — Legal position of the Serjeants of the Coif — Their
old position - Intervention of Attorneys — Old and modern rules of
the English Bar 48
CHAPTER II.
THE AULA EEGIA, OUEIA REGIS, AND WESTMINBTEB HALL.
Ancient administration of Justice — ^Petitions for redress of grievances
— Legal business in the Aula Eegia — The old Palace at West-
minster — First erection of Westminster Hall — Its various early
uses .. .. .. .. .. .. .. .. .. ..75
CHAPTEE III.
THE king's justices, THE COMMON BENCH AND THE ASSIZES.
Henry II. as Chief Justiciar — Glanville and A'Becket — Decline of
clerical influence — Distinct benches in Aula Eegia — Provisions of
Magna Charta — Common Pleas at York and at Westminster Hall —
Common Bench tribunal — Eeal actions — Judges always Serjeants
— Old constitution of Court — Conunon Pleas Bar — Exclusive au-
dience fully upheld until 1834 — Singular mandate in that year
— Legal decision in 1839 — Judges of the Circuit — Legal qualifica-
tions — Judicial power of Seijeants .. .. .. ,. .. 85
CHAPTEE IV.
DE ATTORNATIS ET APPEENTICIIS.
Attorneys and Apprentices anciently one class — Eecognition of legal
practitioners — Institution of the Inns of Court — Various grades of
Apprentices — Obligation to take the Coif— Famous apprentices of
the law — Limited number — Division into classes — Attorneys and
Solicitors .. .. .. .. .. .. .. .. .. 106
CHAPTEE V.
THE HOSTELS OP THE JUDGES AND SEBJEANTS — INNS OF COUKT
AND CHANCERY.
Anomalous position of Inns of Court — Their origin — Their ante-
cedents — Hostels at Oxford and Cambridge^ — Inns of the Judges
and Serjeants — Hostels of the Apprentices of the law — Position of
Inns of Court — Schools of Law — Eoyal Grants temp. Edward III. —
Thavie's Inn — Aquisition of property — The Temple — Lincoln's Inn
— Bishop of Chichester — Various leases— Extent of domains — Gray's
CONTENTS. XI
Inn — Its early history — History of Lincoln's Inn — Inns of Court
voluntary societies — Opinions of Coke and Lord Mansfield —
Anomalous position of Inns of Court— Classification as Inns of
Court and Inns of Chancery — The Templars — Domain of Bishop of
Chichester — Numher of memhers of Inns — Accommodation for
members — Buildings in the Inns of Court— Classification of
members — Mootmen — Utter-Barristers, Ancients and Readers, and
Serjeants-at-law — The ruling body — Control over the Inns . . . . 123
CHAPTEE VI.
THE BAR OP THE COURTS AND HtJLES AS TO AUDIENCE AND
PRECEDENCE.
Variety of meanings of words —Mistakes as to expressions Utter-
Barrister and Inner-Barrister — Eules of preaudience not very
old — Barre of the Courts — Bar at Westminster — Seats for Counsel —
Bar of Curia Eegis — Bacon's innovations — King's Counsel and King's
Serjeants — Attorney- and Solicitor-General — Course of appointment
of King's Counsel — Great increase of patents — Lord Eldon's batches
— Patents of precedence — Calling within the Bar — Eegular order of
precedence — ^Serjeants in the Common Pleas and other Courts —
Preaudience of King's Counsel . . . . . . . . . . . . 174
CH PTEE VII.
THE ANCIENT HABITS AND OBSERVANCES OF THE ORDER OF THE COIF
Eegard for old customs — Antiquity of the costume of the order —Old
and modem habiliments — Changes of costume in fourteenth
century — Liveries of retainers — Short robes and gentlemen of the
long robe — Excess of apparel — Serjeants' and Judges' robes — Parti-
coloured dress — The ca] e and hood — The black cap — Ancient and
modem robes — Costume of the seventeeth century — The long wigs
— The Serjeants' Coif and wig- — Disuse of old robes — Forms and
ceremonies of the order — Selection of Serjeants — Ceremonies at
their creation — Address to new Serjeants — Serjeants' Feasts — Where
held — Ely House and Lambeth Palace — Feast temp. Henry VIII. —
Disuse of Serjeants' Feasts — Masks and Eevels — Other festivities
introduced at Inns of Court, &c. — Judges and Serjeants at St.
Pauls. — St. Thomas of Aeons — Serjeants' Eings — Mottoes or Posies —
Judges' and Serjeants' processions on horseback — The old proces-
sions to Westminster Hall— Eevival of procession on horseback and
its result — Direction as to procession in seventeenth century— Eiding
the Circuit — Old directions on this subject — Disuse of equestrian
processions — Modern fashion of Judges on horseback — The in-
cidents relating thereto— anecdotes thereon 208
Xll CONTENTS.
CHAPTEE VIII.
THE CONCLUDING EEMAEKS.
Eetrospect — Legitimate position of the Order of the Coif — Status et
gradus servientis ad legem — Order of Precedence — Knights and Ser-
jeants-at-law — Distinguished members of the Order — ' The Grand-
eur of the Law ' — Descendants of distinguished Serjeants — Seq'eant
Howard and his descendants, Serjeants Cavendish, Littleton, Coke,
and Fortescue — ^Numerous pedigrees through Serjeants-at-law —
Gradual innovations — Appointment of Judges in Wales — Barons of
the Exchequer when not of the Coif — Appointment of Serjeant and
Judge uno saltu — Changes in Circuit Commissions — Innovations as
to King's Counsel — Patents of Precedence — ^Many inconveniences —
Changes in Court of Common Pleas — Design of Chief Justice Willes
in 1755— Of Sir John Campbell in 1834^Proceedings in 1839 : Lord
Campbell's disparagement of the Coif — Eegard for old Order by the
highest Judges on the Bench — Innovations detrimental to the
Order — Its discontinuance very inexpedient — The rank in Ireland
— Prejudicial innovations should be rectified — ^No instance of
English dignities or titles of honour being abolished — Operation
of Judicature Acts — Settled order of precedence desirable . .
ILLUSTRATIONS.
The CotTET of Common Pleas, Temp. Hen. VI. Frontispiece.
Plate I. — ^Mb. Serjeant Pulling .. .. .. .. To face page 12
Plate II. — Effigies of Serjeants Howard, Hatjgh, and
Ptcot .. ., .. .. .. .. „ „ 16
Plate III.^ — Effigies of Sir John Cokain, Serjeant
AND Judge .. .. .. .. .. „ „ 18
Plate IV. — ^Ebom an ancient painted table in the
King's Exchequer, Temp. Hen. VI. .. „ „ 86
Plate V. — Monumental Effigies op Judge Littleton „ „ 124
Plate VI. — Sir Edward Coke , ,, 180
Plate VII. — The Court op Wards and Liveries, Temp.
Elizabeth „ „ 214
SERJEANTS OF THE COIF WITH THE DATE
OF THEIR CREATION.
Abbott, Charles (Lord Ten
terden)
Abney, Thomas
Adair, James . .
Adams, John . .
Adams, Eichard
Agar, Lawrence
Agar, John
Aland, John Tortescne (Lord
Fortescue) . .
Aldeburg, Bichard de
Alderson, Edward Hall
AUen, Eobert ..
Alexander, William . .
AUibone, Bichard
Altham, James
Amherst, Bichard
Amphlett, Bichard Paul
Anderson, Edmund . .
Andrews, Thomas
Arabin, William St. John
Archer, John . .
Archibald, Thomas Dickson
Ardeme, Peter
Arden, Eichard Pepper (Lord
Alvanley) ..
Argentine, Beginald . .
Ashe, Alan de . .
Ashley, Francis
Ashurst, William Henry
Aske, Bichard . .
Askham, Walter
Aspinal, John..
Atoherley, David F. Jones
Athow, Thomas
1816
1740
1774
1824
1753
1700
1736
1717
1829
1830
1845
1824
1687
1603
1623
1874
1577
1827
1824
1658
1872
1443
1801
1201
1340
1617
1770
1649
1411
1763
1827
1614
Atkins, Edward
.. 1640
Atkins, Edward
.. 1679
Atkinson, George
.. 1854
Atkinson, H. Tindal ..
.. 1864
Atkyns, Eobert
.. 1672
Auberville, William de
.. 1182
Audley, Thomas
.. 1531
Ayloff, William
.. 1577
Ayloff, William
.. 1627
Ayscoghe, William ..
.. 1437
Ayshtone, Nicholas de
.. 1443
Babbington, William..
.. 1418
Baber, Edward
.. 1577
Bacon, John ..
.. 1288
Bacon, Thomas
.. 1329
Bacon, Francis
.. 1640
Bailey, John ...
.. 1799
Bain, Edwin S.
.. 1845
Baines, John ..
.. 1724
Baker
.. 1566
Baldock, Eobert
.. 1677
Baldwin, John
.. 1531
Baldwin, Samuel
.. 1669
Ballantine, William ..
.. 1856
Banister, William
.. 1706
Banks, John ..
.. 1641
Barham, Nicholas
.. 1567
Barnard, Eobert
.. 1648
Barker, Eobert
.. 1603
Bamardiston, Thomas
.. 1736
Barrett, Paul ..
.. 1683
Barton, John ..
.. 1669
Barton, John, sen.
.. 1415
Barton, John, jun. ..
.. 1411
XVI
SERJEANTS OF THE COIF, WITH
Basset, Alan
1217
Bond, Nathaniel
1689
Basset, Thomas
1262
Bonithon, Charles
1692
Basset, William
1176
Boone, Gilbert
1636
Basset, William
1337
Bootle, Edward
1736
Bathonia, Henry de ..
1251
Boreham
1264
Bathurst, Henry
1754
Bosanquet, John Bernard ..
1814
Battesford
1307
Bosco, John de
1203
Bawtry, Leonard
1614
Boteler, John . .
1494
Bayley, Jotn
1799
Bourchier or Bousser
1327
Baynard, Eobert
1827
Bovill, William
1866
Bealknap, Eobert
1367
Boyland, Eichard
1279
Beaucliamp
1234
Boynton, John
1679
Beaumont, Francis . .
1589
Brabazon, Eichard de
1287
Bedingfleld, Henry ..
1663
Bracton, Henry de ..
1245
Bedingfield, Thomas ..
1648
Bradbury, George
1606
Beere, George . .
1660
Bradshaw, John
1648
Bekingham, Elias de . .
1275
Brainthwaite, William
1715
Bell, Eobert
1565
Bramston, Francis ..
1678
Bellasis Edward
1844
Bramston, John
1623
Belwood, Eoger
1689
Bramwell, George William
Benfield, John
1715
Wilshii-e (Lord) ..
1856
Benlowes, William ..
1555
Branthwaite, Eichard
1593
Bennet, John
1706
Braybrock, Henry de
1199
Bereford
1309
Brenchesley, William
1390
Berewik
1292
Bretland, Eeginald ..
1692
Berkeley, Maurice de
1190
Brett, William BaKot
1868
Berkeley, Eobert de . .
1200
Brian, Thomas
1463
Berkeley, Eobert
1627
Brerewood, Eobert ..
1640
Bernard, Eobert
1648
Bridgeman, John
1623
Bertie Vere
1675
Bridgeman, Orlando ..
1660
Best, William Draper (Lord
Brigges, Thomas
1478
Wynford)
1800
Brock, Lawrence de . .
1260
Bigot
1220
Broderick, John
1706
Billing, Thomas
1448
Brome, Thomas
1660
Bingham, Eichard
1443
Bromley, Edward
1610
Birch, John
1706
Bromley, Thomas
1540
Birch, Thomas
1730
Brompton
1284
Blackburn, Colin (Lord)
1859
Brook, David . .
1547
Blackstone, William . .
1770
Brooke, Eichard
1510
Blencowe, John
1689
Brooke, Eobert
1552
Blosset
1816
Brown, John
1521
Booland, Geofrey de ..
1218
Browne, Anthony
1555
Boeff, William
1453
Browne, Humphrey ..
1531
Bolland, William
1829
Browne, Samuel
1648
Bolton, James Clayton
1799
Bruce, Eobert de
1262
Bompas, Charles C
1827
Brudenell, Eobert
1504
Bond, George
1786
Bryan, Thomas
1463
DATE OF THEIR CREATION.
xvil
Brydges, William
.. 1715
Choke, Richard
1433
Bucleby, William
.. 1679
Cholmney, Ranulph ..
1558
BuUer, Francis
.. 1778
Cholmney, Roger
1531
Buroli, Edward
.. 1683
Clarke, Charles
1743
Burgh, Lucas de
.. 1335
Clarke, Henry
1636
Burgh, William
.. 1349
Clay, Edmund de
1383
Burke, Peter ..
,. 1860
Clayton, Ralph
1788
Burland, John
.. 1762
Cleasby, Anthony
1869
Burnet, Thomas
.. 1736
Clench, John
1580
Burrough, James
.. 1816
Clerke, John
1648
Burton
.. 1350
Clerke, N. R
1843
Bury, Thomas..
.. 1700
Clerke, Robert
1587
Byles, John Barnard ..
.. 1843
Clive, Edward
1745
Clopton, Walter de ..
1377
Callice or Carris, Robert
.. 1628
Cobbeham, John de . .
1275
Calowe, William
.. 1475
Cockburn, Alex. James
1856
Calthorpe le Strange ..
.. 1675
Cockell, William
1787
Campbell, John (Lord)
.. 1850
Cokayne, John
1440
Cantebrig, John de ..
.. 1329
Coke, Edward
1606
Carter, Lawrence
.. 1724
Coke, William
1547
Carthew, Thomas
.. 1700
Cokefield, John de
1253
Carrell, John ..
.. 1510
Colepeper, John
1402
Carrell, John ..
.. 1540
Coleridge, John Duke (Lord)
1874
Carrell, John ..
.. 1552
Coleridge, John Taylor
1882
Carus, Thomas
.. 1558
Colow, William
1478
Cassy, John ,.
.. 1463
Coltman, Thomas
1837
Catesby, John,.
.. 1464
Comyns, John . .
1706
Catlin, Richard
.. 1552
Coningsby, Humphrey
1494
Catlin, Robert
.. 1555
Coningsby, William ..
1540
Caundish, Robert
.. 1424
Constable, Robert
1494
Cavendish, John de ..
.. 1366
Cooper, John
1589
Chamberlayne, Thomas
., 1614
Copley, John Singleton (Lord
Chambre, Alan
.. 1799
Lyndhurst) ..
1813
ChanneU, William Fry
.. 1840
Corbet, John
1659
Chantrell, William ..
.. 1424
Corbet, Reginald
1558
Chapman, Thomas ..
.. 1648
Corbet, Edward
1727
Chappie, William
. 1724
Cotesmore, John
1418
Charleton, Job
.. 1660
CoTcntry, Thomas ..
1603
Chaleton, Robert de ..
. 1388
Cowper, Spencer
1727
Chauncy, Henry
. 1688
Cox, Edward William
1868
Chaynell, John
. 1312
Crawley, Francis
1623
Cheatham, Henry
. 1706
Cresheld, Richard
1636
Chellerey, Edmund ..
. 1363
Cresswell, Cresswell ..
1842
Cheshire, John
. 1706
Cressy, Hugh de
1177
Cheyne, WilKam
. 1410
Crew, Randulphe
1615
Chibon, John
. 1614
Crewe, Thomas
1623
Chidley, Robert
. 1540
Croke, George
1623
XVlll
SERJEANTS OP THE COIF, WITH
Croke, John 1603
Croke, William .. .. 1547
Crompton, Charles .. .. 1852
Crooke, Eichard .. .. 1675
Crooke, Norton .. .. 1654
Cross, John 1819
Crowder, Eichard B 1834
Cuelworth, William de .. 1244
Cumin, John de .. .. 1174
Cummyns, Eichard .. .. 1724
Cuthbert, John .. .. 1715
Cutler, John 1503
Cutler, William .. .. 1502
Dalison, Charles .. .. 1660
DaUson, William .. .. 1552
Dallas, Eobert .. .. 1813
Dampier, Henry .. .. 1813
Danby, Eobert .. .. 1443
Daniel, William .. .. 1594
Danvers, Eobert . . . . 1443
Danvers, William .. .. 1485
Dany, John 1623
Darnall, John 1714
Davenport, Humphery .. 1623
Davis, John 1606
Davy, William .. .. 1755
De Grey, William .. .. 1771
Denham, John .. .. 1604
Denison, Thomas .. .. 1741
Denman, George
Denman, Thomas (Lord) .. 1832
Denn, Vincent .. .. 1688
Densill, John 1531
Denton, Alexander .. .. 1722
Denum, John de .. .. 1321
Denum, Eobert de .. .. 1329
Denum, William de .. .. 1332
Diggs, Eichard .. .. 1623
Dodd, Samuel 1714
Doderidge, John .. ,. 1603
Dolben, William .. .. 1677
Doresme, Aldred .. .. 1338
Dormer, Eobert .. .. 1706
Dowling, Alfred S 1842
D'Oy ley, Thomas .. .. 1819
Draper, Eichard .. .. 1736
Drew, Edward .. •• 1589
Dyer, James . . . . • • 1552
Edenham, Jeffrey de .. .. 1331
Eliot, Eichard 1503
EUarker, John .. ., 1424
Ellis, William 1669
Eltonhead, John .. .. 1648
Englefleld, Thomas .. .. 1521
Englefield, William de .. 1240
Erie, Erasmus .. .. 1648
Erie, William 1715
Erie, William 1844
Ernie, John 1519
Erskine, Thomas .. .. 1839
Ever, Sampson .. .. 1640
E wens, Matthew .. .. 1598
Eyre, Giles 1689
Eyre, Giles 1724
Eyre, James 1772
Eyre, Eobert .. .. .. 1710
Eyre, Samuel 1692
Eyre, William .. .. 1745
Fairfax, Guy 1463
Fairfax, Thomas .. .. 1521
Fairfax, William .. .. 1504
Farrington, Anthony .. 1683
Fencotes, John de . . . . 1366
Fencotes, Thomas de .. 1343
Fenner, Edward .. .. 1577
Field, William Veneris .. 1875
Finch, Heneage .. .. 1653
Finch, Henry 1614
Finch, John (Lord Finch) .. 1634
Finch, Nathaniel .. .. 1686
Fineux, John 1485
Firth, William .. .. 1817
Fisher, John , I486
Fishide, William de .. .. 1357
Fitz Herbert, Anthony .. 1510
Fitz Hervey, Osbert .. .. 1182
Fitz James, John .. .. 1521
Fitz Peter, Geofrey ., .. 1198
Fitz Ealph, William .. .. 1174
FitzEeinfrid, Eoger .. .. 1176
DATE OF THEIR CEEATION.
XIX
Fitz-Stephen, Ealph . .
1184
Glynn, John ..
.. 1648
Fitz-Stephen, William
1174
Glynn, John ..
,. 1763
Fitz William, Adam .^
1324
Godbolt, John..
.. 1636
Fleetwood, William ..
1580
Goddard, Gibbon
.. 1669
Fletcher, Thomas
1594
Goderede, William ..
.. 1425
Fleming, Thomas
1591
Goodfellow, Christopher
.. 1669
Flint, Thomas
1669
Gooding, Thomas
.. 1692
Fortescne, John
1429
Goulburn, Edward ..
,. 1829
FortescTie, William ..
1736
Gould, Henry ..
.. 1692
Foster, Michael
1736
Gould, Henry ..
.. 1761
Foster, Eobert
1636
Graham, Eobert
.. 1800
Foster, Thomas
1603
Green, Henry de
.. 1346
Foster, James
1757
Green, John ..
.. 1640
Fountain, John
1658
Green, John ..
.. 1700
Fray, John
1435
Gregory, William
.. 1677
Frere, William
1809
Grenefield, Thomas ..
.. 1463
Frisby, William
1401
Grevill, William
.. 1504
Frowyk, Thomas
1494
Griffin
.. 1504
Fuller, Francis
1688
Grose, Nash ..
.. 1774
Fulthorpe, Eoger de ..
1371
Grove, John ..
.. 1706
Fulthorpe, Thomas ..
1424
Grove, William Eobert
.. 1872
Fyncheden, William de
1863
Guldeford, Henry de ..
.. 1305
Gundry, Nathaniel
.. 1750
Gaerst, Hugh de
1179
Gurney, John . .
.. 1832
Gapper, Abraham
1736
Gvv^ii, Eice
.. 1623
Gardiner, Eobert
1587
Garrow, William
1817
Hale, Bernard..
.. 1725
Gascoign, William
1397
Hale, Matthew
.. 1654
Gaselee, Stephen
1824
Hales, James ..
.. 1540
Gaselee, Stephen
1840
Hall, William ..
.. 1700
Gates, Thomas
1648
Hall, William .,
.. 1424
Gatesden, John de
1250
Halls, John
.. 1413
Gawdy, Francis
1577
Halcomb, John
.. 1840
Gawdy, Thomas, sen.
1552
Hal ton, Eobert
.. 1580
Geers, Thomas
1686
Hamond, Thomas
.. 1589'
Gent, Thomas
1584
Hampson, Eobert
.. 1679
Gerard, Gilbert
1558
Hankford, William ..
.. 1390
Gibbons, Thomas
1700
Hanbury, Thomas ..
.. 1715
Gibbs, Vicary
1814
Hannemere, David de
.. 1378
Gifford, Eobert (Lord Gifford)
1824
Hannen, James
.. 1868
Gilbert, Jeffrey
1722
Hardres, Thomas
.. 1669
Girdler, Joseph
1724
Harpur, Eichard
.. 1558
Giselham, William de
1281
Harris, John ..
.. 1540
GlanYll, Eanulph de ..
1179
Harris, Thomas
.. 1589
Glanvile, John
1589
Harvey, Francis
.. 1614
GlauTille, John
1637
Hatsell, Henry
.. 1689
Glover, William
1840
Hatton, Eobert
.. 1648
XX
SEEJEANT8 OF THE COIF, WITH
Hawkins, Williams . .
Hawes or Haugh, John
Hayward, William ..
Hayes, George . .
Headley, Thomas
Heath, George . .
Heath, John ..
Heath, Eichard
Heath, Eobert . .
Heigham, Clement
Hele, John
Eelmeswell, William de
Helynn, Walter de
Henden, Edward
Hengham, Ealph de . .
Herbert, Edward
Herict, Eichard de
Herle, William de
Heron, Edward
Herteipole, Geofrey de
Hertford, Eobert de . .
Hewitt, James (Lord Lifford)
Heydon, Thomas de ..
Heym, Stephen
Hey wood, Samuel
Hicliam, Eobert
Higham, Eichard
Higham, Eichard
Hill, Hugh
Hill or Hull, John ..
Hill or Hull, Eobert ..
Hill, George
Hill, Hugh
Hill, Eoger
Hillary, Eoger
Hobart, Henry
Hodges, Hugh
Hody, John
Hody, William
HoUoway, Charles
Holloway, Eichard ..
Holroyd, George Sowley
Holt, John
Holt, John
Holt, Thomas
Honyman, George
Hoo, John
1724 ]
Eook, John
1700
M86
Hooper, Eichard
1700
1736
Hopkins, Eichard
. 1669
1856
Hopton, Walter de ..
. 1274
1623
Hopton, William de ..
. 1335
1830
Hornby, William
. 1399
1775
Horton, Eoger
. 1415
1683
Hoskins, Edward
. 1660
1631
Hoskins, John..
. 1623
1555
Hotham, Beaumont . .
. 1775
1594:
Houghton, Eobert
. 1603
1297
Howard, William
. 1287
1304
Howel, John ..
. 1669
1616
Huddersfield, John . .
. 1485
1272
Huddleston, John Walter
. 1875
1685
Hullock, John..
. 1816
1195
Hulls or HoUs..
.. 1389
1316
Huscarl, Eoger
.. 1210
1594
Husee, William
.. 1478
1320
Hussey, Thomas
.. 1736
1290
Hutchings, George ..
.. 1686
1755
Hutton, Eichard
.. 1603
1218
Hyde, Frederick
.. 1660
1270
Hyde, Nicholas
.. 1627
1794
Hyde, Eobert ..
.. 1640
1614
Hynde, John ..
.. 1531
1472
Hyndstone, William ..
.. 1453
1494
1858
Elingworth, Eichard..
.. 1462
1382
Inge, John
.. 1331
1395
Inge, William..
.. 1292
1772
Ingleby, Charles
.. 1688
1858
Ingleby, Thomas de ..
.. 1347
1655
Insula, John de
.. 1307
1337
Insula, Simon de
.. 1217
1601
Insula, William de ..
.. 1235
1686
Ivyn, John
.. 1416
1436
1485
Jay, Eichard ..
.. 1485
1660
Jefferson, John
.. 1683
1675
Jeffrey, John ..
.. 1567
1816
Jeffries, George (Lord)
.. 1679
1378
Jekyll, Joseph..
.. 1700
1686
Jenner, Thomas
.. 1683
1677
Jenny, Christopher ..
.. 1531
1873
Jenny, William
.. 1463
1706
Jephson, William
.. 1765
DATE OF THEIR CREATION.
XXI
Jermyn, Philip .. .. 1636
JerYis,Johii 1850
Johnson, George .. .. 1677
Jones, Ateherley .. .. 1827
Jones, Chadwick .. .. 1844
Jones, Herbert George .. 1842
Jones, WiUiam . . . . 1617
Jones, Thomas .. .. 1669
Jwyn or Ivyn John .. .. 1403
Keating, Henry Singer
1860
Keck, Anthony
1759
Keeble, Thomas
1494
Keeble, Richard
1648
Keeble, Walter
1481
Keen, John
1700
Keilweg, Robert
. 1552
Kelleshnll, Richard de
. 1344
KeUy, Fi'tzroy
. 1866
Kelyng, John
. 1680
Kempe, William
. 1772
Kenyon, Lloyd (Lord)
. '1788
Kettleby, R. Johnson . .
. 1736
King, Peter (Lord) ..
. 1714
Kinglake, John Alexander .
. 1844
Kingsmill, George
. 1534
Kingsmill, George
. 1593
Kingsmill, John
. 1494
Kirby, Cranly Thomas
. 1781
Kirketon, Roger de . .
. 1366
Knyvet, John ..
. 1357
Kyme, Simon de
. 1191
Laken, William .. .. 1453
Lane, Richard 1643
Law, Edward (Lord Ellen-
borough 1802
Lawes, Edward .. .. 1827
Lawes, VitruTius .. .. 1819
Lawrence, Soulden .. .. 1791
Le Blanc, Simon . . . . 1787
Lechmere, Nicholas .. .. 1689
Lee, William 1730
Leeds, Edward .. .. 1742
Leeke, William .. .. 1679
Legge, Heneage . . . . 1747
Le Hunt, William .. .. 1688
Leigh, Richard .. .. 1765
Lens, John 1799
Lester, Roger de .. .. 1293
Leuknore, Geofrey de . . 1545
Leying, Timothy .. .. 1636
Levinz, Creswell .. ... 1681
Lewkenor, Richard .. .. 1598
Lexinton, John de .. .. 1248
Ley, James (Earl of Marl-
borough) .. ._, .. 1606
Lindley, Nathaniel .. .. 1875
Littlebere, Martin de . . . . 1261
Littledale, Joseph .. .. 1824
Littleton, William .. .. 1640
Lloyd, Henry 1706
Lloyd, Richard .. .. 1759
Lodington, William . . . . 1410
Lokton, John de .. .. 1385
Lopham, Thomas . . . . 1415
Louther, Thomas de .. .. 1330
Lovelace, William .. .. 1567
Lovell, Salathiel .. .. 1688
Lovetot, John de .. .. 1275
Ludlow 1838
Luke, Walter 1531
Lush, Robert .. .. .. 1865
Lutwiohe, Edward .. .. 1680
Lyster, Richard . . . . 1529
Lyttelton, Edward (Lord) .. 1640
Ly ttleton, Thomas . . . . 1453
Lyttleton, Timothy .. .. 1670
Macdonald, Archibald .. 1792
Malet, Thomas .. .. 1635
Mallore, Peter 1292
Manley, Francis .. .. 1679
Manley, William .. .. 1808
Manning, James .. .. 1840
Mansfield, James . . . . 1804
Man wood, Roger .. .. 1567
Mareschall or Marshall,
Thomas le 1297
Markham, John .. .. 1391
Markham, John .. .. 1444
Marrow, Thomas .. .. 1503
Martin, Lomax .. .. 1755
XXll
SERJEANTS OP THE COIF, WITH
Martin, Samuel
1850
Murdac, Hugh
1179
Martyn, Jolm
1415
Murphy, Francis Stack
1842
Marshall, S
1787
Murray, William (Lord Mans-
Matthews, Eobert
1852
field)
1756
Maule, William Henry
1839
Mutford, John de
1316
Maynard, John
1654
Nares, George
1759
Mead, Nathaniel
1715
Needham, John
1453
Meade, Thomas
1567
Neele, Richard
1463
Mellor, John ..
. 1861
Neve, Philip
1700
Meres or Erketon, Eoger de
1366
Nevil, Edward
1684
Merewether, Henry Alworth .
. 1827
Newbald, Geofrey de ..
1276
Merrifield, John
. 1660
Newdigate, John
1510
Mervin, Edmund
1531
Newdigate, Richard ..
1654
Methwonld, William ..
1611
Newport, John
1510
Metingham, John de ..
. 1275
Newton, Richard
1424
Meynell, Robert
. 1547
Nicholas, Robert
1648
Middleton, Adam de ..
. 1318
Nichols, Augustine ..
1603
Middleton, John de ..
. 1378
Noel, William
1757
Millar, Edward
1715
North, Edward (Lord)
1542
Miller, Robert
1850
North, Francis (Lord Guilford)
1674
Millington, John
1683
Norton, Richard
1406
Milton, Christopher ..
1686
Norwich, Robert
1521
Mil ward, Thomas
1686
Nott, Fettiplaoe
1724
Missenden, James
1540
Nottingham, William
1479
MoHneux, Edmund ..
1542
Notton, William de ..
1346
Monson, Robert
1572
Montague, Edward ..
1581
O'Brien, Michael
1862
Montague, Henry
1611
Onslow, Arthur
1800
Montague, William ..
1676
Ormesby, William de
1296
Montague, James
1714
Owen, Thomas
1589
Montingham, John de
1276
Oxonbridge, Thomas . .
1494
Moore, Francis
1614
Moore, John
1614
Page, Francis
1715
Mordaunt, John
1494
Pakington, John
1531
More, John
1503
Palmer, Arthur
1796
More, Roger
1692
Palmer, Guy
1505
Morgan, Francis
1555
Palmis, Brian
1510
Morgan, Richard
1546
Park, James Alan
1816
Moris
1366
Parke, James (Lord Wensley-
Morley, Thomas
1724
dale)
1828
Morton, William
1660
Parker, John
1648
Moses, William
1688
Parker, Thomas (Lord Mac-
Motelow, Henry de ..
1355
clesfield)
1705
Mowbray, John de ..
1354
Parker, Thomas
1736
Moyle, Walter
1443
Parning, Robert
1335
Muleton, Thomas de ..
1224
Parry, John Humfireys
1856
Munday, James
1700
Passelegh, Edmundus
1310
DATE OF THEIE CEEATION.
XXlll
Paston, William
. 1421
Powtrell, Nicholas ,
.. 1558
PatishuU, Martin de ..
. 1217
Powys, Littleton
.. 1692
Patteson, Jolm
. 1830
Powys, Thomas
.. 1669
Patdet, William
. 1689
Powys, Thomas
,. 1702
Payne, William
. 1858
Praed, William Mackworth .. 1801
Peake, Thomas
.. 1820
Pratt, Charles (Lord Camden) 1761
Peck, Edward ..
. 1673
Preston, Gilbert de .
.. 1242
Peckham, Henry
. 1669
Preston, John de
.. 1416
Peckwell, Eobert Henry
.. 1809
Preston, Eobert de .
.. 1357
PeU, Albert ..
.. 1808
Price, Eobert ..
.. 1702
Pemberton, Francis ..
.. 1675
Pricket, George
.. 1692
Pengelley, Thomas ..
.. 1710
Prideaux, John
.. 1555
Penley, Nicholas
.. 1675
Prime, Samuel
.. 1736
Pepys, Eichard
.. 1654
Prisot, John ..
.. 1443
Percehay, Henry de ..
.. 1370
Probyn, Edmund
.. 1724
Percy, Peter de
.. 1257
Puckering,* John
.. 1580
Perrot, George
.. 1763
Pudsey, George
.. 1683
Perryam, William
.. 1579
Puleston, John
.. 1648
Perryn,Ilichard
.. 1776
Pulling, Alexander .
.. 1864
Persey, Walter
.. 1375
Purly, Francis..
.. 1692
Petersdorff, Charles ..
.. 1858
Phelipps, Edward
.. 1597
Eaby, John
.. 1724
Phesant, Peter
.. 1640
Eainsford, Eichard .
.. 1660
Phillips, Ambrose
.. 1686
Eastall, William
.. 1555
Pigot, Thomas
.. 1503
Eawlings, Thomas
.. 1677
Pigot, Eichard
.. 1463
Eawlinson, William .
.. 1686
Pigott, Gillery
.. 1856
Eaymond, Thomas
.. 1677
Piatt, Thomas James
.. 1845
Eaymond, Eobert (Lo
rd) .. 1724
Plesyngton, Eobert de
.. 1380
Eead, John
.. 1401
Plowden, Edmund
.. 1558
Eead, Eobert ..
.. 1480
Pole, Ealph ..
.. 1443
EeeTe, Edmund
.. 1636
Pole, William ..
.. 1418
EeeTe, Thomas
.. 1733
Pollard, Lewis
.. 1503
Eeynolds, James
.. 1715
Pollard, John ..
.. 1547
Eeynolds, James
.. 1740
Pollexfen, Henry
.. 1689
Eeynolds, James
.. 1727
Pollock, Charles Edward
.. 1873
Eichard, Eichards
.. 1814
Pollock, Frederick ..
.. 1844
Eichardson, John
.. 1818
Poole, David ..
.. 1747
Eichardson, Eichard .
.. 1706
Popham, John..
. 1578
Eichardson, Thomas .
.. 1626
Port, John
.. 1521
Eichardson, William .
.. 1384
Portington, John
. 1440
Eidel, Geofrey..
.. 1117
Portman, William
. 1540
Eigby, Alexander
.. 1649
Poterna, James de . .
. 197
Eigby, Eobert ..
.. 1675
PoTilet, William
1415
Eobinson, Benjamin C
oulson 1865
Powell, John ..
. 1687
Eodes, Francis
.. 1578
Powell, Thomas
. 1683
Eoe, John
.. 1510
Powell, William
. 1648
Eogers, Thomas
.. 1479
XXIV
SERJEANTS OP THE COIF, WITH
Kolfe, Thomas
1418
Shephard, James
1724
Eolfe, Eobert Monson (Lord
Shepherd, Samuel
. 1796
Cranworth) ..
1839
Shirley, John
. 1603
Eokeby, Eadulphus ..
1552
Shirley, John ..
1620
Eokeby, Thomas
1689
Shottindon, Eobert de
. 1254
Eokele, Eobert de
1234
Shute, Eobert . .
. 1577
Eooke, Giles
1781
Shuttleworth, Eichard
. 1584
EoUe, Hemry
1640
Simnnons, William ..
. 1558
Eonbury, Gilbert de ..
1295
Simon, John ..
. 1864
Eose, John William ..
1789
Skinner, Matthew
1725
Eough ..
1808
Skipwith, Thomas
. 1675
Eunnington. Charles ..
1787
Skipwith, William de
. 1335
Eushedon, Thomas ..
1540
Skrene, William
. 1408
Eussell, William Oldnall
1827
Skynner, John
. 1777
Eyder, Dudley
1754
Sleigh, W.Campbell ..
. 1868
Smith, John
. 1700
St. John, Oliver
1648
Smith, Montague Edward .
. 1865
Salkeld, WilHam
1715
Smythe, Sydney Stafford
. 1750
Sargood, Augustine ..
1868
Snagg, ThoTna,s
. 1580
Saunders, Edward
1540
Snigge, George
. 1604
Saunders, Edmund ..
1682
Southcote, John
. 1554
Savile, John
1592
Spankie, Eobert
. 1824
Sayer, Joseph
1761
SpelTTian, John
. 1521
Scarlett, James (Lord Abinger) 1834
Spiguinel, Henry
. 1338
Scotre, Eoger de
1310
Spinks, Frederick Lowton .
. 1862
Scott, John (Lord Eldon) ..
1799
Spurling, John
. 1593
Scott, William
1335
Stanyforth, Thomas ..
. 1757
Scriven, John
1827
Stapleton, Nicholas de
. 1304
Scroggs, William
1669
Starkey, Humphrey ..
. 1478
Scrope, Galfride le ..
1316
Staunford, WiUiam ..
. 1553
Scrope, Henry de
1307
Staunton, Hervey
. 1306
Segrave, Gilbert de ..
1251
Steele, William
. 1654
Segrave, Stephen de ..
1218
Stephen, Henry John
. 1827
Selby, Henry
1683
Stevens, Henry
. 1715
Selby, James
1700
Stevens, Eobert
. 1675
Selby, Ealph de
1393
Steyngrave, Adam de
. 1341
Sellon, John
1798
Stode, George ..
. 1675
Setone, Thomas de ..
1346
Stone, John ..
. 1640
Seys, Evan
1649
Stonore, John de
. 1316
Shaftoe, Eobert
1675
Storks, Henry ..
. 1827
Shardelowe, Eobert de
1228
Stote, Eichard..
. 1675
Shardelowe, John de ..
1382
Stouvord, Jolin de
. 1341
Shareshull, William de
1332
Strangeways, James ..
. 1411
Shaw, John
1677
Street, Thomas
. 1677
Shee, William
1840
Stringer, Thomas
. 1677
Shelley, William
1521
Strode, Thomas
. 1677
Shephard, William ..
1656
Sulyard, John
. 1477
DATE OP THEIR CREATION.
XXV
Sutton, Elias de
1285
Turner, Edward
1671
Sutton, Thomas Manners
Turner, Henry
1700
(Lord Manners)
1805
Turner, John . .
1669
Sydenham, Richard ..
1388
Turner, Timothy
1669
Tumor, Christopher . .
1660
Taddy, WiUiam
1818
Turri, Jordan de
1202
Talford, Thomas Noon
1833
Turri, Nicholas de
1263
Tanfield, Lawrence . .
1603
Turton, John ..
1689
Tate, John
1668
Twisden, Thomas
1654
Taunton, William Elias
1880
Tyrrell, Thomas
1659
Taylor, Richard
1640
Thirning, William
1388
Ufflete, Gillardus de ..
1366
Thomas, Ralph
1852
Urswyke, Thomas
1479
Thompson, William ..
1688
Thomson, Alexander..
1787
Vaughan, Harley
1772
Thomson, S.V
1841
Vaughan, John
1667
Thomson, William ..
1729
Vaughan, John
1799
Thorpe^ Francis
1648
Vaughan, John
1816
Thorpe, Robert de
1346
Vavasour, John
1478
Thorpe, WiUiam de . .
1342
Ventris, Peyton
1689
Thurbane, John
1689
Vernon, George
1627
Thurkelby, Roger de . .
1241
Thyne, Egremont
1623
Wadham, John
1388
Tildeslegh, Thomas ..^
1402
Wakbruge
1371
Tindal, Nicholas Conyngham
1829
Walcot, Thomas
1679
Tirwhit, Kobert
1399
Walerand, Robert
1251
Toller, John
1736
Walker, Thomas
1772
Toutheby, Gilbert de . .
1316
Walkingham, Alan de
1280
Townsend, Robert
1540
Wall, George ..
1558
Townsend, Roger
1477
Waller, Thomas
1659
Towse, William
1614
Wallinger, A. ..
1848
Tozer, John
1858
Walmesley, Thomas ..
1580
Tracy, Robert
1700
Walpole, John..
1555
Travers, John . .
1320
Walsh, John
1559
Tremayle, Thomas ..
1478
Walter, John ..
1625
Tremayne, John
1689
Wangford, William ..
1453
Trenchard, John
1689
Warburton, Peter
1593
Tresulyan, Robert de . .
1378
Warburton, Peter
1649
Trevaignon, John de ..
1335
Ward, Edward
1695
Trevor, Thomas
1625
Ward, Rowley ..
1672
Trevor, Thomas (Lord)
1701
Warenne, Reginald de
1168
Tre w y Lhosa, Simon de
1335
Warenne, William de
1195
Trekingham, Lambert de .._
1299
Warwick, Nicholas de
1293
Trinder, Henry
1688
Watson, William Henry
1856
Trop, Simon de
1252
Webb, Thomas
1706
Trussel, William
1252
Wedderburn, Alexander (Lord
Turner, Arthur
1636
Loughborough)
1780
XXVI
SERJEANTS OP THE OOIP.
Weld, Josepli
1706
Wilmot, John Eardley
1755
Wells, MordauntL...
1856
Wilson, George
1753
West, Edmund
1679
Wilson, John
1786
Westbury, William ..
1418
Wilton, William de ..
1249
Weston, James . . :
1631
Wilughby, Eichard de
1328
Weston, Jolin . .
1424
Winch, Humfrey
1606
Weston, Eichard
1559
Wingfield, Francis ..
1677
Weston, Eichard
1633
Wodestoke, James de
1340
WfistoB, Eichard
1677
Wogan, William
1689
Weston, William
1418
Wood, George
1807
Weyland, Thomas de . .
1275
Wood, Thomas
1485
Weyland, William da
1272
Woolrych, Humphry William
1855
Wheeler, Thomas ..
1863
Wrangham, D. C
1840
WhidJon, John
1547
Wray, Christopher ..
1567
Whitaker, Charles
1700
Wright, Martin
1733
Whitaker, Edward ..
1715
Wright, Nathan
1692
Whitaker, William ..
1759
Wright, Eobert
1679
Whitelock, Bulstrode
1648
Wyatt, Edwin
1683
Whitelock, James
1620
Wychingham, William de ..
1363
Whitfield, Ralph
1634
Wyne, Owen
1683
Wichingham, William de
1361
Wymburn, William de
1276
Widdrington, Thomas
1648
Wyndham, Francis ..
1579
Wightman, William ..
1841
Wyndham, Hugh
1654
Wilde, George
1614
Wyndham, John
1683
Wilde, James Plaisted (Lord
Wyndham, Wadham ..
1660
Penzance)
1860
Wynne, Eichard
1706
Wilde, John
1636
Wynne, William
1736
Wilde, Thomas (Lord Truro)
1824
Wynyard, William ..
1410
Wilde, William
1660
Wythens, Francis
1683
Wilkins, Charles
1845
Wyville, John de
1256
Wille
1318
Willes, Edward
1768
Yates, Joseph
1764
Willes, James Shaw ..
1855
Yaxley, John
1494
Willes, John
1737
Yelverton, Christopher
1586
Williams, David
1594
Yelveiton, Henry
1625
Williams, E. Vaughan
1846
Yelverton, William ..
1440
Williams, John
1834
Yorke, Philip (Lord Hard-
Williams, John
1794
wicke)
1733
Willimot, Nicholas ..
1669
York, Eoger
1531
Willoughby, Thomas . .
1521
Younge, Thomas
1463
THE OEDEE OF THE COIF.
INTEODUCTOEY CHAPTER.
The title of this work, ' The Order of the Coif,' has Explanation
been deliberately chosen. of the title
. -^ 01 this work.
Using the word " order " in its more legitimate and com-
prehensive sense, and not merely as denoting a privileged
body, indebted for its existence to some solemn act of Papal
concession or Royal favour, the title is quite orthodox.
There is hardly any more ancient order to be found,^
[except, perhaps, some of those of a monastic character ;]
certainly there is none with a more authentic history —
more memorable or interesting associations.
The annals of the Coif form an important part of the Antiquity
history of the law of England. They run very far back. „[ [J^ cSf'
The institution had lived at least five hundred years
when the system of appointing King's Counsel Extra-
ordinary was originally introduced. It existed long
■ The Order of the Garter was instituted 1330, of the Bath 1899, of the
Thistle 1540, of St. Patrick 1788. The date of the oldest title in the
English peerage 1181, of the creation of the first Duke 1338, the first
Marquis 1385, the first Viscount 1440.
The degree of Doctor was unknown in England till the beginning of the
thirteenth century, the reign of John or of Henry III. The ofBces of
Attorney-General and Solicitor- General date from 1462, though the appoint-
ment of King's Attorney is mentioned in 1279. The first appointments of
King's Counsel other than the King's Seqeants and the Attorney- and
Solicitor- General were by letters patent from James 1. and, sixty years
after, from Charles 11.
THE ORDER OP THE COIF.
[Intro.
Various
designations
of the order.
Old rendez-
voiis, the
Parvis of
St. Paul's.
before Westminster Hall was first built. It was indeed
already old before tbere were either barristers or soli-
citors. It is very mucli more ancient than the oldest of
our tribunals, for it was called into existence before any
large portion of our law was formed.
The order of men we are speaking of seems to have
been a power in the State as far back as the records of
our law extend. From time to time the Brothers of
the Coif acquired various designations, all referring to
their legal position ; but whether included under the
general term witen, sages gents, lagemanni, men of law,
or loiers, or specially classed as 'counteors, Serjeant
counters, band narratores, Serjeants of the coif, ser-
vientes ad legem, or Serjeants-at-law, they have always
had, in the words of the writ by which they are called,
a fully recognised statum et gradum, constituting a
brotherhood or order, Avith settled rules and usages
and a distinguishing badge,^ like the orders, fraterige,
fellowships,^ guilds, and other foundations originating
in the religion, the chivalry, or the industrial combina-
tions of the Middle Ages.
The Brothers of the Coif, devoted to the profession of
the law, bound by a solemn oath to give counsel and
legal aid to the King's people, were for ages to be found
at their ancient rendezvous in St. Paul's Cathedral, the
Parvis,^ or their allotted pillars there, wearing their
' It must be remembered that the names of most of the monastic orders
are derived from their distinguishing habit or badge, e.g. the Black Friars,
the White Friars, the Grey Friars, the Capuchins, the Crutched Friars, etc.,
and that there is the same identity between name and badge in the case of
our highest order of knighthood, " the Garter."
' Frateria was a name in use as well in reference to riBligious bodies, as
to trade and other societies. Fraterice ieneficiorum Ecclesise S. Pauli is
the subject of a whole division in the Statutes of St. Paul's Cathedral.
* "Paradisus atrium porticibus circumlatum, ante sedes sacras: vulgo
Parvis." — Du Cange, Gloss, voce Parvis.
Intro.] THE SEEJEANT COUNTERS AT ST. PAUL'S. 3
distinctive costume, the robe and the coif, ever ready to
receive those who sought their assistance, to give counsel
pur son donant to the rich, and gratis to the poor suitor,
and to aid when called on in the judicial business of the
King's Courts.
Chaucer so refers to them in the ' Canterbury Tales ': ^
"A Serjeant of the law, ware and wise.
That often hadde ben at the parvis,
Ther was also, full rich of excellence.
Discreet he was and of great reverence.
He semed swiche; his wordes were so wise.
Justice he was ful often in assise,
By patent, and by pleine commissitm ;
For his science, and for his high renonn.
Of fees and robes had he many on."
What the Forum was to the Bar of ancient Eome, old Serjeant
St. Paul's Cathedral was for many ages to the Serjeants- formed the
at-law. As the Roman advocates paced up and down ^^'
the Forum Romanum, waiting for clients, or to respond
to the demand " licet consulere," ^ so the old Serjeant
Counters were to be found at the Parvis of St. Paul's
with the same object, 6r engaged at their allotted pillars
in consultation after the rising of the Courts.
When Chaucer wrote, the Order of the Coif was already
a very ancient institution, with usages dating back from
a remote period. The brothers of the order affording to
all who in the orthodox mode sought their aid, counsel,
" Prologue 9, Tyrwhitt's ed. 1822. The two first lines the reader will
recognise as very often quoted. They are to be found in Cowel's ' Inter-
preter,' and other Law Dictionaries; and they were quoted by Lord
Campbell in giving judgment in Doe d. Bennet v. Bale, 15 Queen's Bench
Eeports, 171, that by the law of England' a barrister is not altogether
precluded from acting as counsel or advocate without being instructed by
an attorney or solicitor — an inevitable decision, and one on which Lord
Campbell appears to have much prided himself See vol. ii. of his Life,
p. 277.
^ Cic. pro Licin. Murena, 13.
' See post, p. 97.
B 2
4 THE ORDER OP THE COIF. [Inteo.
and forensic help ; and being, like the Roman advocate,'
liable at any time to be called in to assist the King's
Court by their counsel,^ indisputably formed the body
Judges from which were exclusively chosen the real Judges
always taken ' '' °
from the of the land, not only the Judges permanently attached
to the King's Courts, but those who were assigned by
the various circuit commissions to hold the assizes,^ a
state of things of which we are reminded by Chaucer's
words —
" Justice he was ful often in assise.
By patent, and by pleine commissiun.
The Order of the Coif grew up with our laws and
constitution. It formed, as it were, part of the old
common law of England, which might otherwise long
since have been swept away, overwhelmed by a thousand
mishaps, the victim of endless sinister devices, expedients,
innovations, contrivances and conceits.
History of The Serjeants-at-law have indeed a grand history.
remarkable. The nucleus of the English Bar, the order embraced for
many ages the entire profession : and continued long
after all mere privilege had ceased, to count among its
Number of members some of the best men in "Westminster Hall, and
members!''"^ at St. Stephen's too— many at least of the most honoured
names in English history, not only judges, jurists,
learned writers, great advocates, but men who rose to
the highest positions in the State — members of the
Legislature, Cabinet Ministers, occupants of the wool-
sack and the Speaker's chair ; the men from whom have
sprung so many of the noble and honoured in the land.*
" Cic. Quinct. 2.
" See post, ch. iv.
' Assizes may be taken before any justices of the one Bench or the other, i
grand and held by " Petty Serjeantry, and the gradual disuse ot the
i&antl-}'!'^' one and the other, long before the time of the Common-
wealth, when the entire institution of feudal tenures was
Large body upset/ The Country Serjeants, as the ordinary tenants
b^ ^tenure ^or ^J Serjeantry came to be called, appear at one time to
country have been a very niimerous body, including as well the
multz vaillants, already referred to,^ as the franklin and
more humble of the King's tenants,^ some of them being
doubtless men of good social rank, and others in a com-
paratively humble position. They seem, however, all to
have held a well-recognised status, about which there
Blunders is little reason for the mistakes occasionally made by the
made by the „,. ri • ■ ^
ignorant in Uninformed, such as that of confounding Serjeants with
^erjmnts ™^ the petty officers called Sergeants.*
with sergents,
' The 12 Car. 2, c. 25, was, for the most part, but a re-enactment of the act
of the Commonwealth in 1652.
^ See ante, p. 25.
' In a subsidy granted in 1379, which assesses the judges, Serjeants, and
great apprentices of the law at sums from 100s. to 20s., the Serjeants and the
franklins of the country are placed in the lowest scale according to their
estate, at 6s. 8d. and lUd.
The franklin is described by Chaucer {Prol. line 333) as if retired from
active life, and enjoying the otium cum dignitate of one of the " landed
gentry."
" A Franklein was in this compagnie.
White was his berde, as is the dayesie.
At Sessions there was he Lord and Sire;
Full often times he was knight of the shire.
An anelace and a gipcier vale of silk
Hung at his girdle white as morwe milk.
A sherive had he been and a couiitoiir,
Was no where swiche a worthy vavasour."
The description here is of a country gentleman who had been in his time.
Coroner, Foreman, or Counter of the jury, and Sheriff. See Tyrrhitt's notes
to Chaucer, ib.
* The resemblance between the word serJeant and seiyent or sergenti has
tenure.
Intro.] SERJEANTS BY TENURE AND SERJEANT OFFICIALS. 27
Long before the old feudal tenures were abolished ^ a Gradual dis-
variety of circumstances had tended to reduce the number of the ser-
jeants by
occasionally caused mistakes and blunders among the ignorant or careless.
The origin as well as the meaning of the two words, however, differ.
Sufficient information will, we hope, be found in the text as to the serJeanU-
at-law, and the Serjeants by tenure of land or office or dignity, but it will
be well in this place to refer to the petty officers known, not only in this
country but in France and Italy, as sergents, sergeants, or sergente.
The army sergent, or sergeant, appears to have been originally the
messenger, or satelles of the Guard — has officier d'infanterie — and in time
came to have defined military duties, next above a corporal. The London
and other police forces, organised in some respects on a military basis, have
also sergeants who rank next above ordinary constables. The petty officers
in corporate towns, usually called sergens or sergeants-at-mace, have the
place of the old satellites, or messengers attending the mayor or sheriffs, the
older word satelles having, for the most part, gone into disuse, except so far as
the term satellites preserves the idea of such hangers-on. There seems
formerly to have been a large band of sergeants-at-mace in attendance on the
mayor and sheriffe of London when acting in their official capacity, and
this was the case also in other corporate towns (see Kitchen on Courts,
143) ; all the justices ni Eyre had attending on them sergeants or tipstaves.
(See Statute of Westminster 1, 3 Edw. I., c. 30.) In the English edition of the
New Testament the word pa/SSoCx"' (lictors in attendance on the magis-
trates, Acts xvi. 88) is translated " Serjeants" both in the old and revised
edition. The ceremonial duties of sergeants-at-mace of the City of London
are made the special subject of regulation in some of the City charters, such
as those authorising the Lord Mayor and Sheriffs to have maces the same as
royal carried before them, and limiting the number of such officials. See
Liber Albus, tit. 1, part 2, c. 2.
An Act of Common Council quoted by Mr. Norton, (Commentaries on
the City of London Charters, 3rd edition, 338), provides that the Sheriffs
retain but three or four sergeants at the most, " that the people be not
oppressed."
The City Sergeants had other and less pleasant duties than attending
Corporation pageants. As Sheriff's officers they had to execute the process
of the Court, whether in levying on the defaulter's goods or arresting him,
and they got the name of Caichpoles. In old plays the system of fraud and
extortion of the City sergents-at-mace is constantly made the subject of
satire. See, amongst others, Davenant's play of 'The Wits,' Middleton's
' Roaring Girl,' etc. ; and Shakespeare makes Hamlet say :
" Had I but time (as this fell sergeant. Death,
Is strict in his arrest) " — Act v., sc. 2.
^ 12 Car. 2, c. 24, which is for the most part but a re-enactment of a
statute of the Commonwealth, the amendment upon the latter being that
the ceremonial part of Grand Serjeantry should be preserved.
28 THE OEDEK OF THE COIF. [Inteo.
of tenants by serjeantry. There was indeed practically no
way of keeping up the number except by constant new
grants. Lands held in serjeantry could not be aliened
without the King's licence. The serjeantry or service
secured on the land remained as long as the grantee or
his heirs continued to hold the land in its entirety, but if
any portion of the land was proposed to be sold or other-
wise aliened, a very special and elaborate arrangement
was required. The serjeantry had to be arrented or
charged exclusively on that part of the land which
remained in the possession of the original grantee or his
heirs ; ^ and in the old book already referred to ^ will be
found a large number of entries of serjeantries arrented, or'
saddled on the portion of the land retained by the actual
Serjeant, after a partial sale or partition.
By this process, in time, the Serjeants by tenure of
land, although not within the Act for the abolition of
military tenures, were practically put an end to ; all that
And the sergente in Italy do not seem to have been a more popular body.
Ariosto, in the ' Orlando Furioso/ canto xxviii., stanza 42, says :
" Perch6 trovata avea la disonesta
Sua moglie in braccio d' un suo vil sergenti."
Daines Barrington, a writer of the last century, not certainly of much
authority, who had a grudge against the Order of the Coif, goes out of his way
in one of his " notes " on the ancient statutes, p. 223, to lug in the above lines,
with no other apparent design than that of having Vil Sergenti misconstrued
into Serjeant-at-law ; but as the same writer in another place displayed his
spite by pretending to identify the Serjeants-at-law with the fratres sei-vientes of
the monasteries, he did not thereby succeed in doing much harm to the old
order or much good to himself. It is a very stale and dull joke often played
by shallow wits to pun upon the words serjeant and sergent, but the notes
just referred to are not written in a fit of pleasantry. They display merely the
ill-humour of the writer — the same Daines Barrington, the ' Welsh Judge '
and Bencher, whose puerile eccentricities are recorded in the account of the
" old benchers " in Charles Lamb's ' Essays of Elia.'
1 See Co. Liti, 108 a, note 116.
^ ' Testa de Neville,' ante, p. 25.
IsTRO.j POSITION OF SERJEANT-AT-LAW. 29
was kept alive out of the old system of serjeantry by
tenure being mere matter of ceremony.
Lord Coke, loyal to his profession, maintained that it
was always a tenure by Grand Serjeantry where the Tenure of
re f 1 1 1,1 legal offices
service or omce oi honour reserved, concerned the by serjeantry.
administration of justice,^ and many instances are given
of such serjeantries. One of them is constantly referred
to by old writers, viz.. The Ushery of the Exchequer.^
This and almost all other offices in Grrand Serjeantry
have now become mere matter of history.
Leaving this subject of Serjeants by tenure, let us now The position
recur to the Serjeants-at-law. of Serjeants-
Designated as Serjeants in accordance with the feudal ^*"^^^-
rules already referred to, but forming certainly a class Meaning of
or order altogether distinct from the ordinary serjeants servhmsad
by ioimrQy Serjeants-at-law seem always to have had rights ^^^em-
1 Co. Litt. 106 a.
^ The office of Ushery or Ushership of the Exchequer, with the appoint-
ment of ushers, criers and attendants at the barriers of the Court, was held
as a serjeantry in gross up to 1470. See 1 Eot. Pari., 426 b. Dyer, 213 b, also
refers to the following memorandum from the records of the Exchequer of
Edward III, Henry IV., Henry VI., and Edward IV. :— " Shewing that
Andrew BilHshe of the county of Lincoln holds by hereditary right the
office of Usher of the Exchequer of our Lord the King, with divers other
offices thereto belonging, viz., offices of ushers and criers in C. B. Marshals,
ushers and criers and barriorum in each of the Eyres of the Chief Justices
itinerant within the kingdom of England, and fivepence to be received
every day in the receipt of the Exchequer of our Lord the King by Grand
Serjeanty, and it is worth annually twenty marks above reprises."
The oath of the Usher of the Exchequer is one of those in the Book of
Oaths. It seems doubtful whether the ushering the Exchequer was
originally a serjeantry in gross. See Manning's 'Serviens ad legem,' p.
301, et seq. An assize was brought in 1335 for the ushery of the Common
Pleas at York. Hind v. Dagworth, M. 7, Edw. III., fol. 57, pi. 47 ; H. 8,
Edw. ni, fol. 16, pi. 47.
The Usher (Huissier) was certainly at one time a very important personage.
The Usher of the Black Eod, like the Serjuant-at-arms, is still so. The
Usher of the Chancery seems formerly to have been the Eeceiver and
Keeper of all money paid into Court till these functions were assumed by
the Masters in Chancery, and at length, in 1726, transferred to the officer
then appointed by the 12 Geo. I., c. 82, called the Accountant-General.
30
THE ORDER OP THE COIF.
[Inteo.
Admission
to the order
a matter of
solemnity.
Call of Ser-
jeants-at-law
by writ
under Great
Seal.
and obligations in the administration of the law independ-
ent of the Crown. In the words of the ' Mirror of Justices'
on the subject of the order, " Counters are Serjeants
skilful in the laws of the realm which serve the common
people to declare and defend actions in judgment for
those who have need of them for their fees." ^ The title
Serjeant Counter or Serjeant of the Coif, continued in
use long after the ' Mirror ' was written, but the proper
formal designation seems by the register of writs and
other authorities to have been " Serjeants-at-law, Servi-
entes ad legem." ^
The admission or call to the Order of the Coif seems
always to have been treated as of much importance, and
to have been accompanied with much state and solemnity.
The ceremonies observed on the occasion form the
subject of elaborate description by writers of authority.
Fortescue, Coke, Dugdale and others dwell on the
solemn forms used in calling ad statum et gradum
servientis ad legem, as each deserving our special
attention — the selection by the Judges de maturiorihus of
the jurisperiti, their formal nomination to the Crown,
their being called by writ of summons under the Great
Seal ex advisamento concilii — the formal oath of office
prescribed for the Serjeants-at-law, and the great form
and ceremony used at their creation.
As far back as we have any reliable information the
admission to the Order of the Coif, the call ad statum
et gradum servientis ad legem, has been by writ of sum-
mons under the Great Seal,^ and we have Lord Coke's
' ' Mirror of Justices,' c. 2, s. 5.
2 In some cases " Servientes inlegibus et consuetudinibus Anglise ex
parte." — Co. Pref to 9tli Rep. xxi.
' The writ is imperative, and cannot be disobeyed with impunity. See
observations of Lord Ellenborongh in Morris v. Burdett, 2 M. L., s. 218,
and cases referred to in Serj. Wynne's Tracts, p. 252.— Com. Dig. brief, a-
Intko.] the SERJEANTS' WRIT OP SUMMONS. 31
authority for it that this writ is as old as the Registrum
brevium (believed to be the most ancient book of forms
known to the common law).^ The form of the Serjeants'
writ of summons given by Coke is taken from that used
in the call of William de Herle, a distinguished member
of the order, of the time of Edward 11.^ The following is
a copy of his writ :
" Rex, &c. Grulielmo Herle salutem : quia de advisa-
mento concilii nostri ordinavimus vos ad statum et grnduvi
servientis ad legem in quindena Sancti Michaelis proxim.
futur. suscipiend., vobis mandamus, firmiter injungentes
quod vos ad statum et gradum prsedictum ad diem
ilium, in forma prsedicta suscipiend. ordinetis, et hoc
subpoena mille librarum, teste me ipso."
This form is substantially the same as that in use at Present form
the present time.^
Issued under the Great Seal by the Queen in Council, it Serjeants'
is stamped with the highest authority, resembling in this peers'' writs,
respect the writ of summons used in the creation of Q^^gn^n
Peers,* or the writs of summons of Bishops to Parliament. Council
•^ ' under Great
' Eegistrum Brev., fol. 287. See Co. Litt. 159, and Preface to 10th Eeport, ^^^^•
xxii., and Champney, ' History of Hertfordshire,' 6, p. 75, and Manning, ' Serj.-
at-law,' p. 35.
^ William de Herle was summoned as Serjeant-at-law to assist Parliament
with his advice and legal services in 1310 and 1312. He was made one of the
King's Serjeants in 1316 and Chief Justice of the Common Pleas in 1328,
retiring, from old age, in 1337, but continuing to aid in the Privy Council.
' The writ I received was in these words : Victoria, by the grace of God,
of the United Kingdom of Great Britain and Ireland Queen, Defender of the
Faith, to our trusty and well-beloved Alexander Pulling, of the Inner Temple,
London, Esq., greeting. Forasmuch as, by the advice of our Council,
we have ordained you to take upon you the state and degree of a Serjeant-at-
law without delay, we strictly enjoining command you to put in order and
prepare yourself to take upon you tho state and degree aforesaid, in form
aforesaid, and this you may in nowise omit under the pain of one thousand
pounds. Witness ourselves at Westminster the ninth day of February, in
the twenty-seventh year of our reign.
* The right of sitting in the House of Lords was anciently confined to those
specially called by the King's writ. See Lord Abergavenny's Case, 12 Co.
32
THE ORDER OP THE COIF.
[Intro.
Comments
by Coke and
others on
form of
Serjeants'
writs.
and a number of other cases of writs calling to high
position in Church or State, including the Chief Justice of
England; and Lord Coke and .other great authorities^ are
careful to explain that the expressions used in the
Serjeants' writ throughout denote dignity, rank, grade,
and position. The words de advisamento concilii nostri
are used in the writs for the creation of Peers and
Serjeants-at-law, and in the ordinary summons to Parlia-
ment of the Lords Spiritual and Temporal, and the ex-
traordinary summons of the Judges and Queen's Serjeants
when Parliament requires their services.^ The same
Eep. 70. The first creation of a peer hj patent was in 1387, when Eiehard 11.
created John Beauchamp Baron of Kidderminster by letters patent. See
12 Hon. State Trials, 1195 ; Co. Litt. 15 b ; Com. Dig. Dignity by Writ, c. 3.
When the eldest son of a Duke, Marquis, or Earl, is called to the Upper
House in his father's lifetime, he is so called by writ of summons. See,
amongst other instances, case of Marquis of Tavistock (Baron Howland) ;
Perry & Knapp, M3, S.C, Cockbnrn & Rowe, 95.
Before the Conquest the appointment of bishops and abbots seems always
to have been by writ under the Great Seal with the advice of the witen. A
number of examples of such writs are to be found in Freeman's ' History of
the Norman Conquest,' vol. ii. p. 573. The bishops who sit in the House of
Lords are always called by writ. The Chief Justice of England was also
made by writ. Coke, 2nd inst. 26, 4 inst. 75. The old form of the writ is
given in the book called ' The Diversity of Courts.' " Eex dilecto et fidel. suo,
T. Fitz James saltern : Quia volumus quod vos sistis capital, justicia noster,
placita coram nobis tenenda, vobis mandamus quod ofScio illi intenditis."
The rest of the Judges have generally been made by patent, their tenure
being up to Wm. III. " habend. et occupant officium qvamdiu nobis placuerit,"
after that time being " quamdiu se bene gesserit."
In the Close Rolls, 14 Hen. III. m. 8, is the enrolment of a writ constituting
Ralph de Norrich (a clerk in orders who had been employed by the King in
Ireland, and otherwise in various ways), Justiciariis de Banco, " et eum aliis
Justiciariis de Banco socium exhibuit, et mandatum est justiciariis de
Banco quod ipsum ad hoc socium admittant ; " and Serjeant Manning in his
notes to the " Serjeants' Case " gives from the Close Rolls of Henry III.
another instance of a puisne judge appointed by writ, but the two appoint-
ments he refers to in the next reign are by patent. See Manning's ' Serv.
ad leg,' p. 282, No. Ixix.
1 See especially Coke's Address to the New Serjeants, and Whitelock's
Address to the New Serjeants in 1648.
^ See Whitelock, ut sup., and ' Memoirs,' 356.
inteo.] status et geadus servientis ad legem. 33
distinction is observed in all these writs in using the vos
and vohis instead of the second person singular, as in
writs addressed to ordinary or official persons,' and the call
by the writ is ad statum et gradum servientis ad legem,
which words we are assured by unquestionable authority Various pro-
certainly denote something more than a mere degree.^ the creation,
Gradus in the language of our law is often used to denote ^"^^"^^""^t
dignity and pre-eminence : and the word ^ degradation the of Serjeants-
loss of such rank, etc.
Selden explains the words status et gradus in the
Serjeants' writ as meaning an " ancient state and degree,"
or title, state, and dignity ; * and such explanations quite
accord with the provisions of various old statutes which
describe the grade of Serjeants-at-law, one of which speaks
of the newly-called member of the Coif taking upon him
the state of Serjeant,^ and another uses the expression,
al creation des Serjeants del ley, etc.®
' This distinction in old times was deemed of much importance. Both in
this conntry and in France the vos or vous instead of the tu and te, and thou
and fhee, always marked social rank, especially in writs and other oificial pro-
ceedings. Even in the writs directed oflacially to the sheriff the second person
singular only was used — venire facias, fieri facias, capias ad resp., etc. ; and
it was on one occasion solemnly decided that such writs addressed in the
second person plural were ba'd. Year-book, 29 Edw. Ill, fol. M.
^ Chief Justice Fortescue observes, that "there never were degrees of
Bachelor or Doctor conferred in the Inns of Court, as in the civil and canon
law by the universities ; but there is there conferred a degree, or rather
an honorary estate, no less celebrated and solemn, called the Degree of a
Serjeant-at-law." See De Laud. Leg. Ang. c. 50, quoting Whitl. M. 347.
Lord Coke's expression is " Serjeant-at-law of the Degree of the Coif," Coke's
4th Inst. 75, 100.
3 See Stat. 13 Car. II., c. 16, and Year-book, 18 Edw. II.
* See Selden's notes to Fortescue, c. 50, and Lord-Keeper Coventry's
speech at the creation of Serjeants, in Whit. M. 397. The mistake referred
to by Selden has often been made ; and even the Judicature Act, framed
with the express object of altering our old common and statute law which
required the Judges to be selected from the Order of the Coif, dispenses with
the degree of Serjeant-at-law.
^ 8 Hen. VI. c. 10. See, as to this, post.
" 8 Edw. IV. c. 2. Coke observes on this that creation is ever applied to
dignity. — Ereface to 10 Co. Eep. xxiii.
34 THE ORDER OP THE COIF. [Intro.
From time immemorial the Serjeants-at-law have taken
an oath of office in conformity with the obligations of
the order and the rules of the common law, so as
to make each member of the order, in the terms of
Oath of the law, Serjeant le Roi jurree.^ This old oath of
office of the ' ■' •'
Serjeant-at- office was always very different from the ordinary
legal effect, promissory oaths of fealty, fidelity, allegiance and
supremacy, which have from time to time been pre-
scribed for persons taking office as a test of loyalty
and good citizenship.^ The old oath of office was the
special security prescribed by our common law for the
due performance of the duties legally devolving on
the officials sworn. The terms of the oath necessarily
varied with the duties prescribed, the one becoming a
test of the other. From the coronation oath down to
the oath of the petty constable, the form prescribed by
our law was always designed to comprehend the chief
duties of the office.
The oaths of the Chancellor, the Judge, the Sheriff, the
King's Privy Councillor, were from old tiiae always in
such a form as to bind each official faithfully to perform
his duty. The oath of these high officers bound them
well and truly to serve the king ; the oath of the Judges,
the King's Serjeants, and some others, e.g. the Master
of the Eolls, faithfully to serve the King and his people,^
whilst the oath of the ordinary Brother of the Coif bound
• This term legally included every Serjeant-at-law. See 14 Edw. m.,
c. 16, and post, ch. iii.
2 See 1 Jac. I., o. 60, 14 ; 1 Geo. I., stat. 2, c. 13 ; 6 Geo. III., c. 53, s. 2. These
promissory oaths are directed to be taken within a prescribed period from
the time of election or entering on the duties of office. See 10 Geo. IV. c. 7.
But the oath of office must always be taken lefore entering on duty. The
Judges, Serjeants, or others for whom an oath of office is prescribed have
no legal power until they are sworn in.
3 See 14 Edw. III., c. 16 ; 18 Edw. III., 14 ; and see Book of Oaths, p. 6.
Intro.] SOLEMNITIES ON OEEATION OF SERJEANTS. 35
him to serve the King's people as one of his Serjeants-
at-law.
The call to the Coif, or creation ' of Serjeants-at-law was Solemnities
,1 , • p f c lA xa. f" i observed on
m the time oi our loreiathers a matter oi very great g, call to the
solemnity. "We have referred to the Serjeants' writ and *^°^^"
oath of office, we shall have hereafter to enter more
minutely on the various other forms and ceremonies
observed on such occasions — the selection by the Judges
* de Maturioribus ' of the learned apprentices of the law,^
for presentation to the Queen, of the ceremony of their
call by the Lord Chancellor,^ of the grand procession to
St. Paul's* and to Westminster,^ the presentation of gold
rings,* the formal and elaborate addresses by way of
congratulation,' the quaint ordeal of counting by way
of probation,* the ceremony of ringing out observed at
the Inn of Court to which the newly-created Serjeant
before belonged," the prescribed rules as to robes and
other costume," and last, though not least, in days gone
by, the grand sumptuous feasts given by the newly-
created Serjeants, as Fortescue observes, like that at
a coronation}^ It must suffice here to say that these
ancient observances have from age to age '^ greatly varied,
and seem now for the most part to have long gone out
of fashion.
The call to the Coif thus made with so much form and Status et
ceremony has ever been treated as deserving of the SerjeTnts-
solemnity observed. The position, status et gradus servi- **' *^'
' See ante, p. 33, and post, p. 36.
^ See^os*, ch. Ti. ' See post, ch. vii.
* See post, p. 67 and ch. vii. ^ See post, ch. vii.
* See post, ch. vii. ' See^osi, ch. vii.
' See post, ch. vii. ' See post, ch. v.
" See post, ch. vii. and ante, p 8. " See Fort. De Laud. c. 50, p. 114.
" As to the solemnities in old times observed at the creation of an Earl,
see Stow's Annals, p. 121.
D 2
36 THE ORDER OP THE COIF. [Intko.
entis ad legem, is legally not merely official, but a
dignity/ carrying with it not only rights, duties, powers
and obligations in the administration of the law, but
social rank and distinction. Of what the ancient and
modern duties legally devolving on the Serjeants-at-law
consist, we shall have occasion to consider in another
place ; ^ what their rank and position is we need hardly
cite authorities to show.
General and The title of the Serjeants-at-law to general and social
social rank of . • t n fii ti • i t t i
Serjeant-at- rank IS entirely free from doubt. In the social ladder the
rank of Serjeant-at-law comes immediately after that of
Knight Bachelor, and not only above esquires of any
degree, but above Companions of the Bath, and a number
of persons of noble birth ^ or official status ; and not only is
this the case, but the precedence of the wife of a Serjeant-
at-law is duly recognised, like that of the wives of Baronets
or Knights.* In former times questions as to precedence
seem to have arisen between the Knights Bachelors and the
Serjeants-at-law ; but the rule as now settled seems to be
observed by those who act on the rule detur digniori. To
use the words of Chief Justice Brooke, " Serviens ad legem
' Com. Dig. Ley, 1 Edw. VI. c. 7, s. 3. " See post, cb. ii.
' See on this Table of Precedence in the Peerages of Burke and Debrett,
where the order of precedence from the Sovereign to the lowest rank of
gentleman is given— the Duke, Archbishop, Marquis, Earl, Viscount, Baron,
Bishop, Knight, Justice of either Bench or Serjeant-at-law, being classified in
1 Edw. VI., c. 7, s. 3, with grades declared by express statute or settled
by law to be next in rank to Serjeants, e.g. Masters in Chancery and
Masters in Lunacy, 8 & 9 Vict. c. 100 ; Companions of the Bath, eldest
sons of the younger sons of Peers, eldest sms of Baronets, or of Knights of the
Garter or St. Patrick, Knights Bannerets, &c., &c. All of these certainly '
appear to have, outside the High Courts of Justice, rank and precedence
before all Esquires, even having patents as Queen's Counsel, etc.
* In these Tables the Precedence of wives of Seijeants-at-law accords with
that of their husbands, e.g. they take precedence of the wives of all Esquires,
and also of the wife of a Companion of the Bath, of the grand-daughters of a
Peer, or the daughters of a Baronet, or even the wife of the eldest son of a
Knight of the Garter.
Intro.] PERMANENT EANK OP SBBJEANT-AT-LAW. 37
is character indebilis, which no mere addition of office,
dignity, or honour destroys." ^
The ordinary rule as to official promotion is diflferent. Permanent
The acceptance of any office from the Crown generally oonfened.
vacates that previously held ; and it seems pretty clear
that the acceptance of a judgeship by H. M.'s Attorney-
G-eneral, Solicitor-General, or other of H. M.'s Counsel
vacates the former appointment, but a Serjeant-at-law
appointed one of the Queen's CounseP or a Judge
remains still a member of the old Order of the Coif,
and his rights, duties, and powers as a Serjeant-at-law
continue after such official appointment ceases. There ^^s^^ op^'^-
are remarkable instances of the operation of this rule case.
with regard to the Coif. Sir Matthew Hale, who took Sir Matthew
the Coif in 1653, practised as Serjeant-at-law for many
years. He was made a Judge during the Commonwealth,
but soon retired^ from the Bench, and went back to
Westminster Hall to practise as Serjeant Hale, and sat
in Parliament under that designation till his return to
the Bench after the Restoration.*
Sir Greorge Hutchins, whose writ as Serieant-at-law was Sir George
IT 11- -rr- , n ■ Hutchins.
dated 1686, and his patent as Kings Serjeant 1689,
was next year appointed one of the Commissioners of
the G-reat Seal ; and on being discharged from that high
official position, set up his claim still to be King's
Serjeant : but it was held in accordance with several
' Brooke, Abr. tit. Nosme, 5 (e) ; a KnigM continues so though createij a
Peer. See Norris v. Somerset, 35 Hen. VI. fol. 55.
^ i.e. Queen's Serjeant.
' He was M.P. for Gloucestershire, and afterwards for Oxford as ' Serjeant
Hale.' See Com. Journals passim.
* Called to the Coif in 1653 his name occurs as Serjeant Hale in the
reports for some years after, e.g. in Styles, Eep. 49. Hardres, Rep. 16. On the
Restoration writs were issued again, calling to the coif Hale, Maynard, and
several others who had been Serjeants in the time of the Commonwealth.
See 1 Siderfin, Rep. 3, Dug. Chron. Series, 113.
38 THE ORDER OP THE COIF. [Intko.
authorities that Sir Greorge Hutchins' acceptance of office
extinguished ^ his place of King's Serjeant though he still
remained Serjeant-at-law.
On a recent occasion, in consequence of the insufficient
number of the Judges for the circuits, it was desired to
find a fit person to act as Special Commissioner on the
Northern circuit. The selection was made of Sir John
Mellor, who, having been made a Queen's Counsel in 1851,
and a Serjeant-at-law and Judge in 1861, had retired
from the Bench in 1881. Sir John Mellor was duly-
appointed, the only qualification he still retained for the
purpose being that of a Serjeant-at-law.
Rules as to Up to a very few years ago the Coif had been an
Commissions, indispensable qualification for those who had to administer
justice under the Circuit Commissions. The positive
regulations on this subject are laid down by the statute of
Edward III., but the principles that govern them are
of a much earlier date.
Rule as to The regular Judges of the land have for more than
Judges being g*^ hundred years always been Serieants-at-law.^ We
chosen from j j j
the Serjeants, have the authority of Coke for it that such was the
rule of the Common Law," and it is certain that it was
in old times always deemed an abuse of the power of
the Crown to appoint other than Serjeants-at-law to be
Judges.
F.vasion of We shall See how, under the Norman rule, the judicial
IS ru e. office was continually conferred on men of influence and
■ Sir George Hutchins' case, 5 LeTinz, 351. The office of King's Serjeant
■was afterwards restored to him by patent in 1693.
^ No one, be he ever so ■well read and practised in the law, can be made a
Judge in the Courts of Bang's Bench or the Common Pleas, which are the
superior ordinary Courts of the kingdom, unless he be first called to be a
Serjeant-at-law. — Fort. De Laud. c. 1. p. 116.
= See Coke's 4 Inst. 75, 100; Preface to 10 Go. Rep. 24; 2 Rot. Pari
331 b.
IntrqJ innovations ON THE OLD INSTITUTIONS. 39
power in ciiurch and state, without a legal training/ and
how constant were the complaints, received np to the
thirteenth century, of the judicial office being intrusted
to such men, and how often, during the time just referred
to, the promise was extorted from the Crown to make
Judges always of such as were conversant with the
law. There seem to have been generally on the Bench
with the untutored G-randees trained lawyers known
as Pallatii Causidici,^ and at last the law made it im-
perative that the Judges of the land, both at West-
minster Hall and on circuit, should be men learned in
the law, and prohibited the assizes being taken except
before Justice del un Bank ou del autre ou Serjeant le
Roy jurree?
For ages, in the event of a vacancy among the Judges,
the practice was rigidly adhered to of the King in
Council appointing the new Judge from the practis-
ing Serjeants-at-law. It was only by a course of gradual Gradual
innovation that this rule was departed from, and the ™°°^^'i°°'
provisions of the old law evaded ; the King's Ministers
selecting Judges from others than those belonging to the
Order of the Coif, the selected Judge being first called by
writ ad statum et gradum servientis ad legem and soon
afterwards appointed to the judgeship by letters patent
describing him as Servientem ad legem.*
It would seem as if the departure from the old rule
of our constitution was for a long time considered by the
' See preamble to 14 Edw. III., c. 16.
^ See Seidell's note to Fortescae, De Laud. c. 51.
3 13 Edw. 1. c. 3 ; 14 Edw. 111. c. 16. See Fort. Ub. i. p. 117, &c. " When any
of the Judges dies, resigns, or is superseded, the King, with the advice of his
Council, makes choice of one of the Serjeants-at-law, whom he constitutes a
Judge by his letters patent in the room of the Judge so deceased, resigning,
or superseded."
* See post, ch. vii.
40 THE ORDER OF THE COIF. [Intro.
Courts at Westminster as one to be very strictly watched,
any irregularity in the writ making it illegal.'
Such innovation had also to be propped up . by a
variety of special Acts of Parliament. Thus an act was
required to enable the selected Judges to go through the
formality of being called to the Coif in vacation ;^ another
special Act of Parliament to authorise the names of
Queen's Counsel, as well as those of Serjeants-at-law, to
be inserted in the commissions of assize,^ and now
without any public advantage, with small gain to the
Bench or the Bar, and certainly with no prayer for
the change from any one, or any argument adduced
for the innovation, the old safeguard provided by our
law against abuse in the appointment of Judges has
been swept away by a short clause in one of the new
Judicature Acts.''
Appointment From the general body of the Serjeants-at-law there
Serjeants. were, Until a very few years ago, always appointed
a certain number as counsel to the Crown, who acted
like the Attorney-General, not only as the legal adviser,
or Counsel of the Sovereign, but as "the Crown advocates,
or public prosecutors, their designation being King's
Serjeants, Servientes Regis ad legem, or Narratores Eegis.*
A passage in Spelman is sometimes referred to as showing
that there was one of these in every county.® It may
' See Sir Harbottle Grimston's introd. to Cro. Car. p. 7. Sir W. Jones,
Rep. 63, where it is reported that objections as to the date of the return, etc.,
were upheld.
^ 59 Geo. III. c. 113.
' 13 & 14 Vict. c. 25.
* " No person appointed a Judge of either of the said Courts shall hence-
forth be required to take or to have taken the degree of Serjeant-at-law." —
36 & 37 Vict. c. 66, s. 88.
» Bracton. 157 b. The old records and forms always call the King's Ser-
jeants Servientes Domini Regis ad legem. See Manning's Serviens ad legem,
app 260.
" See Gloss, voo. Serviens ad legem.
Inteo.] SERVIENTES EEGTS AD LEGEM. 41
possibly admit of doubt whether this was really so ;
but it would seem clear from the old form of proclama-
tion at the assizes, that in every county the King's
Serjeant had at least all the power which the Attorney-
General now has.
It is worthy of note that in every one of the counties Serjeants-at-
palatine there has always been a high law officer counties
called the Queen's Serjeant,^ and in the form of pro- paia^me.
clamation, still in general use, on an arraignment of
prisoners, the Queen's Serjeant is spoken of as the chief
public prosecutor.^
' In the Oounty Palatine of Lancaster the head of the Bar is the Queen's
Attorney and Serjeant, usually called Attorney-General. In the Duchy Court
of Lancaster the office is that of Queen's Serjeant. In Chester the Serjeants-
at-law were appointed by letters patent, with an allowance of two marks
with robes — afterwards of fiye marks. See Rolls of Pari. vol. i. 392 b ; vi.
p. 364 a, 366 a, 378 a.
""'If any one can inform my Lords the Queen's Justices, the Queen's
Attorney-General, or the Queen's Serjeant, of any treasons, murders, felonies
or misdemeanour done or committed by the prisoners at the Bar, let him
come forth and he shall be heard, for the prisoners now stand upon their
deliverance." — 5 Edw. III. c. 13.
The Attorney-General was formerly always named after the King's Serjeant.
The Order in Council of 1814, as we shall see, gave the precedence to the
Attorney-General.
The name of the King's Serjeant was always mentioned before the
Attorney-General. — 5 Edw. III. c. 13; and see Proclamation on a traverse
taken to an inquisition requiring information to be given to the King's
Serjeants. — ^Eastell, ent. Enquest, 268 a, Tear Book, M. 16, H. 7 Rot. 5. See
also the proceedings in outlawry, Quare impedit, Rastell's entries, 302 ; and on
a petition of right in Parliament, 1 Rot. Pari. 332 b, 345 b, 346 b; 2 Rot.
Pari. 438 b.
The following form was used in making the present Sir John Byles
Queen's Serjeant in 1857 : —
ViOTOEIA BT THE GeACE OP GOD
of the United Kingdom of Great Britain and Ireland Queen Defender of the
Faith To all to whom these presents shall come Greeting Know Ye that We
of our especial grace certain knowledge and our mere motion have con-
stituted our trusty and well-beloved John Barnard Byles Serjeant at law
to be one of our Serjeants at Law during our pleasure We Will also and
by these presents grant to the said John Barnard Byles that he may
and shall have these our letters patent duly made and sealed under the
great seal of our United Kingdom of Great Britain and Ireland without
42
THE ORDER OP THE COIF.
[Inteo,
Appointment
by patent.
Serjeants-at-
law in free
cities.
In every court of oyer and terminer and gaol
delivery the King's Serjeant had at least the full
power which now belongs to the Attorney-Greneral ;
and in civil proceedings affecting the Crown the King's
Serjeant seems to have had a similar position and power.
The appointment of King's Serjeants has always been
by patent, the oath of office being "well and truly to
serve the King and his people, as one of his Serjeants-
at-law." The number of King's Serjeants has varied
at different times, and to secure due seniority it was
the custom by special patent to appoint one as the
King's premier Serjeant, whilst another was called the
King's Ancient Serjeant.
Whatever may be said as to the appointment of
Servientes Eegis ad Legem for every county, ' there
appears to have been occasionally a municipal officer
fine or fee, great or small, to be for the same in any manner rendered done
or paid to us in our hanaper or elsewhere to our use although express
mention of the certainty of the premises in these presents is not made
or any other thing cause or matter whatever to the contrary notwith-
standing In Witness whereof we have caused these our letters to be made
patent Witness Ourself at Westminster the twenty-seventh day of February
in the twentieth year of our reign.
By the Queen Herself. . C. Eomillt.
The following is the form of the summons of the Queen's Serjeants to
Parliament : —
Victoria by the Grace of God of the United Kingdom of Great Britain and
Ireland Queen Defender of the Faith To our trusty and well- beloved John
Barnard Byles one of our Serjeants at Law Greeting Whereas our par-
liament for certain arduous and urgent affairs concerning Us the State and
defence of our said United Kingdom and the Church is now met at our City
of Westminster and there with the Prelates Nobles and Peers of our said
United Kingdom to confer and treat We strictly enjoining command you
that all other things laid aside you be personally present at our said par-
liament with Us and with others of our Council to treat of the aforesaid
affairs and to give your advice and this you may in no wise omit Witness
Ourself at Westminster the twenty-seventh day of February in the twentieth
year of our Reign. C. Eomilly.
' See Wynne, 235.
Intbo.] common SERJEANT OP LONDON. 43
resembling the King's Serjeant. Thus in the city of City of
Norwich the King's Serjeant-at-law is said to have
been the chief law officer of the Crown presiding in the
Courts there ^ until 1152, when the citizens obtained a
charter to choose law officers of their own. In many of
the ancient free cities of Europe there seems to have been
an old officer called the Defensor^ whose duty it was to
protect the general interests of the community and to
prosecute all those who offended ; and it is not im-
probable that the- office of Common Serjeant was based
on this old institution. This ancient officer is quite
distinct from the Order of the Coif and the Queen's instances of
Serjeants-at-law chosen from that order, but in accordance uv? not of^ '
with and to some extent in imitation of the older institu- ^^^ ^"^*^"
tion, there have been from an early period Serjeants-at-
law specially appointed not only for the counties pala-
tine, but for the cities of London and Norwich ; and the
office of Common Serjeant is referred to very far back
in the City Records under the name of Common Counter,
or Communis Serviens ad Legem, like the Communis
Defensor in free cities ; and although the designation
may have been altered, the office has probably come down
from a very distant age.
The Common Serjeant of the City of London seems for Common
many years to have stood in the same relation to that city of* °*
London.
' Braoton, 157 b, and ante, p. 40. See Spelman, Gloss. Serjeant. Ser-
jeant Wynne's Tracts, Serjeant-at-law, p. 235. By a charter in 1201, King
John granted to William de Braiosa, that no sheriff or Serjeant of the King
should enter into any lands of him or his heirs pertaining to the honour
of Braiosa, to do any part of his office there, but that William de Braiosa's
own Serjeant should summon the pleas of the Crown. Madon, 103, 150 ;
Wynne, 238. WiUiam de Braiosa had held imder Henry II. and John
many various offices in England and Ireland. See Lord Ly ttelton's Hen. II.,
111-339.
^ This seems to have been the case in many of the free cities of France.
See Guizot's ' Civilization in France,' lect. 2, p. 297.
44
THE ORDER OP THE COIF.
[Intbo.
Position of
Common
Serjeant.
community as the King's Serjeant in old times did
towards the Crown. The Common Serjeant is mentioned
in the civic records as early certainly as the beginning of
the fourteenth century, being designated at various times as
the Common Counter, Common Serjeant-at-law, Communis
Serviens ad Legem, Communis Narrator, Communitatis
Narrator, etc.* It was provided by articles contained in
a charter granted by Edward II, to the City in 1319.,^
that this officer should be chosen by the commonalty,
and by old usage the appointment rested with the Court
of Common Council, under certain restrictions as to those
who were eligible.^
In all the ancient City Courts and assemblies the Common
Serjeant seems to have been called on to act less in a
judicial capacity, than as advocate or representative of
the whole civic community; speaking on behalf of the
commonalty in the Common Hall and in the Courts of
Law; prosecuting at one time ^ pro domino rege et civitate
' See Liber Albus, lib. 1, part 1 ; Ub. 3, part 2 ; fol. 42 and 269 of Mr. Riley's
edition.
2 Rot. Pari. 12 Edw. II. p. 2, m. 2, set forth in Stow's London, Kb. 5,
p. 363.
' The custom at Guildhall was for the senior of the Common Pleaders, in the
Mayor's Court, to be elected Common Serjeant. In 1824:, however, the then
senior Common Pleader, Mr. Bolland (afterwards Mr. Baron Bolland)
was passed over, and the late Lord Demnan was chosen, he having been
one of the counsel for Queen Caroline at her trial, and believed to be unfairly
shut out from promotion as long as George IV. was on the throne. This
event gave rise to much discussion, the Common Council being proud of
their Common Serjeant. Lord Lyndhurst, then Serjeant Copley, who was
engaged at the Queen's trial as counsel for the Crown, being made Solicitor-
General and soon after Attorney-General, one of the caricatures of the
day, entitled the "The dashing white Serjeant," represented Denman
complaining that he was only a Common Serjeant whilst Copley was made
A General.
* " Rd. de Edenor sive scrivener attach, fuit ad respond, tam Domino Regi
quam Johanni de Wentbrigge Communi Servienti civ. Lond. qm pro Dom.
Rege et civitate sertuitur de div. falsif." etc. — City Letter Book, g. fol 189 41
Edw. III.
Intbo.] SERJEANTS-AT-LAW IN IRELAND. 45
for various offences, at another for the protection of the
City orphans.*
Like the King's Serjeant in old times, or the Attorney-
General subsequently, the Common Serjeant of the City pro-
ceeded when occasion required by information ex-officio.''
By the Central Criminal Court Act and other statutes
relating to London, a variety of judicial duties have been
imposed on the officer we are speaking of, and for some
years his judicial duties seem to have absorbed the greater
part of his official time and attention ; but in old times
the City Common Serjeant was often a lawyer of good
position in Westminster Hall. By the order of precedence
adopted there, he was junior to members of the Order of
the Coif, but had precedence of ordinary barristers.
Within the counties palatine the Serjeants-at-law Appoint-
seem by special concession to have had the same position, counties
power, and authority as King's Serjeants. In Chester this ^* ^ ^°^'
continued until 1543, and in Durham until a later time ;
and in the County Palatine of Lancaster the appointment
is still made of the Queeris Attorney and Serjeant^ whilst in
the Duchy of Lancaster there are separate appointments of
Queen's Serjeants and Queen's Counsel.
In Ireland there were Serjeants-at-law certainly as early Serjeants-at-
as the thirteenth century: for the ordinance of 1302,* irdand.
pro Statu Hihernim, speaks of the servientes in curiis nostris
' " Johannes Weston communis narrator Civ. Lond., ad cujus offlcium de
ratione pro parte Orphanorum dictse cmtatis, bona sibi qualiter cunque per-
tinentia prosequi monstravit."— Thomas Eauconer, Majori, etc. Letter Book
1 fol. 17, 26 Hen. IV.
^ In a volume published in 1782 by the Liverymen of London is contained
a report of the proceedings in the Court of St. Martin's le Grand on appeal
from the Mayor's Court on an information in 1776 by the Common Serjeant
of the City against the Warden of the Goldsmiths' Company for disobeying
the precept of the Lord Mayor to summon the Livery to a meeting at the
Common Hall.
' 31 Edw. I. c. 4.
46 THE ORDER OP THE COIF. [Intbo.
ibidem placitantes as if of old standing : and from the
entry in the patent Eoll it would seem there was ap-
pointed* a chief or King's Serjeant for every county.
A petition to Parliament in 1320 seems further to show that
the selection of Judges was obliged to be from that class ; ^
and in an Act of Parliament in 1413 the Irish Serjeants
and apprentices at law as a class are specially referred to.^
The Serjeants-at-law in Ireland are at this day ap-
pointed by letters patent ; they have precedence over all
the Bar except the Attorney and Solicitor-GreneraL*
The Serjeants-at-law in Ireland are deemed to hold an
office under the Crown, but in the letters patent, the
person appointed is called merely Serjeant-at-law.
Thus far it has been deemed right to go by way of
introduction to the subject before us. This subject must
now be fully dealt with, in the order most convenient for
the purpose of embracing all that legitimately belongs to
it. The great space of time — more than eight hundred
years — through which the annals of the Coif extend,
necessitates our entering on a very large range of
matter pertinent to the subject.
There is so much in the "Order of the Coif" to
interest Englishmen, that no mere law book or dry
' Eex concessit Thorn. Chambre Rot. Pari. 236, (among other offices in the
cOTinty of Cork) officium Capitalis Serj. See Rot. Pat Hib. 236.
'' See petition in 1 Rot. Pari. 386, complaining of appointment of Judges
of the Common Pleas in Ireland who were not men of law : and answer that
the treasurer of Ireland should see proper and sufficient Justices appointed.
' 14 Rot. Pari. 13, Act for banishing Irishmen from England, except,
amongst others, Serjeants and apprentices at law.
* In the calendar of the Irish Patent Rolls in 1551 there is the appoint-
ment of John Bath of Athcarn to the office of Serjeant-at-law, vice Palsner
Barnewall, to hold for life. — 4 Edw. VI. memb. 25, and then memb. 26 ; and
the appointment of Serjeant Bath to office of Sol. General, to hold during
pleasure — ib. Appoint, of Edw. Lofft to office of Serjeant-at-law during
pleasure in as ample a manner as Bath and Barnwell held the same. —
Irish Pat. 466.
Intro.] AERANGEMENT OP THE SUBJECT. 47
history of the order, or biographical account of its
distinguished members would suffice to do it justice
It has, after full consideration, been deemed best not Airangement
to follow a strict chronological course ; and the reader will subject.
find that, after the early history of law and lawyers in
this country has been entered on, there are separate
chapters specially devoted to subjects near akin to, if not
directly forming part of, the history of the old Order of
the Coif — the Aula Regis and Westminster Hall, and
the early position of the Serjeants-at-law there — the
King's Court of Common Pleas, Justices, the Circuits,
and the administration of the law of real property
(with which the Serjeants-at-law were for so many ages
specially identified); the apprenticii ad legem, and
the Attorneys and Solicitors; the hostels, or Inns of
Court and Chancery ; and the Benchers, Readers, and
Ancients, Utter Barristers and Inner Barristers, etc. ;
the appointment of King's Counsel extraordinary, the
old and modern rules of precedence and preaudience,
and professional etiquette ; the course of selecting
Judges, and those to be included in judicial commissions ;
the ceremonies, feasts, revels and moots of the Inns
of Court ; the solemnities and observances at St. Paul's
and at Westminster on the creation of Serjeants-at-
law, etc., the costume of the order^ and of the Bench
and the Bar ; on the more distinguished members of the
Order of the Coif, and the noble •families descended from
them ; the gradual innovations on the salutary provisions
of our old Common Law, and the various attempts, as yet
unsuccessful, for some object neither yet made intelligible,
or shewn to be justifiable, reasonable, or expedient, to
terminate the existence of the Order of the Coif.
48
THE ORDER OP THE COIF.
[Chap. I.
CHAPTER I.
Scanty re-
cords of
lawyers
under the
Anglo-
Saxons.
THE LAW AND THE LAWYERS BEFORE THE TIME OP
EDWARD I.
The reign of Edward I. — the last quarter of the
thirteenth century — is the period during which, as we
are emphatically told by Sir Matthew Hale, the actual
work of forming the law of England was effected. Until
the accession to the throne of this enlightened Sovereign,
our English Justinian,^ the records of law and lawyers
in this country are few and indistinct. Memorable as
were the events in English history associated with the
growth of our laws and constitution, from the days of
Alfred to the date of Magna Charta, we have little real
information as to the actual course of the law the pro-
ceedings of the Courts, and Judges, and the position of
the professional lawyers.
The early history of the legal profession here is
necessarily meagre. Indeed it may admit of reasonable
doubt whether we have much valuable information as to
the actual state of the old law of England before the
' " We come now to the time of Edward I., who is well styled our English
Justinian, for in Ms time the law, quasi per saltum, obtained a very great
perfection. . . . The laws did never in any one age receive so great and
sudden an advancement ; nay, I think I may safely say, all the ages since
his time have not done so much in reference to the orderly settling and
establishing of the distributive justice of this kingdom as he did within a
short compass of the thirty-five years of his reign, and especially about the
first thirteen years thereof." — Hale's 'History of the Common Law of
England,' p. 152 of Serjeant Runnington's edition.
Chap. I.] THE ANGLO-SAXON CODES. 49
Conquest. In Coke/ Lambard,^ and Dugdale,^ we find the
laws of Ethelbert and Ina, Alfred and Edward the
Confessor, spoken of as if they existed in the form of
authentic codes, but a very learned and polished writer
has thrown great doubt on all this. He observes :
" Our English lawyers, prone to magnify the antiquity Haliam's re-
like the other merits of their system, are apt to carry up ™*' ^^"
the date of the Common Law, till, like the pedigree of an
illustrious family, it loses itself in the obscurity of ancient
time. Even Sir Matthew Hale does not hesitate to say
that the origin of our Common Law is as undiscoverable
as that of the Nile. But though some features of the
Common Law may be distinguishable in Saxon times,
while our limited knowledge prevents us from assigning
many of its peculiarities to any determinable period, yet
the general character and most essential parts of the
system were of much later growth. The laws of the
Anglo-Saxon kings are as different from those collected
by Grlanvile as the laws of different nations." *
Thus rejected as evidence, the compilations of what we Unauthentic
have been accustomed to treat as the Anglo-Saxon laws
serve no useful purpose in explaining what was really
the state of lawyers here in the Anglo-Saxon times ; and
Hallam seems to think that the several compilations to
which we have already referred as the Codes of Ina and
of Alfred and Edward the Confessor, are none of them
much antecedent to the date of 1180, when Glanvile
wrote.^
Neither in these nor any other collection of Anglo-
' 10 Rep. procEm.
' • De priscis Anglorum legibus/ 126 b.
' Orig. Jur., p. 6.
■* Hallam, ' Constitutional History of England,' chap, viii., part ii., p. 546.
" Hid., p. 547; see also Madox, Exch. p. 122.
50
THE OEDBR OP THE COIF.
[Chap. I.
The old laws
do not refer
to legal
practitioners.
Legal
maxims in
restraint of
litigation.
Appearance
in person in-
dispensable
Laws in dis-
couragement
of litigation.
Offences of
barratry,
Saxon laws is there any special reference to professional
lawyers, or to the legal qualifications or positive duties
or obligations of the Judge, the Pleader, or Counsellor.
The times of our Anglo-Saxon forefathers were not
fruitful in materials for the history of the legal pro-
fession. The inartificial institutions, and simple forms
then in use ofiered small encouragement to professional
lawyers, who were in most cases hardly needed. Rules
and maxims, strictly adhered to in those days, as a part
of our Common Law, operated in a variety of ways to
restrict litigation.
To use Lord Coke's words " by the policy of the
Common Law cum lites potius restringendoe sunt quam
laxandce, both plaintiff and defendant, demandant and
tenant, in all actions, real, personal, and mixed, did
appear in person."^
The law in those times really looked to every one, in
his own proper station, to perform, in person, the various
duties of citizenship. Whether in the capacity of an
actual litiganl, or in discharge of the ordinary duties of a
suitor, (owing suit and service to the Court,) personal
attendance was indispensable. The litigant could resort
to and retain the nmn of law, who might lawfully stand
by ^ him as his counsellor, but vicarious authority was
not legally recognised. Attorneys and solicitors were
not known, and all the forms of law, all the responsi-
bilities of the litigation devolved on the suitor in propria
persond.
To promote or to aid legal controversies was altogether
against the provisions of our old common law, which,
under the names of barratry, maintenance, and champerty,
treated almost every kind of such meddling or inter-
iCo.Litt. 429. 2 See i5os<, p. 7L
Chap. I.] MAXIMS AGAINST LITIGATION. 51
ference as an offence. The first in the list of these offences maintenance,
consisted in the stirring up suits and quarrels between pgfty. ^^'
the King's subjects ; ^ the second, in officiously inter-
meddling in any suit without sufficient warrant or
justification, or aiding or maintaining the litigants by
money or services or otherwise ; ^ and the third, that of
sharing in the subject-matter of the suit.* The field of
litigation was thus narrow enough, and lawsuits were
almost unknown.
Beal Actions — those relating to land — were of rare Limitation of
occurrence, for property in land was rarely bought or actions.
sold, and personal property consisted chiefly of farming Sop^rsom-
stock and crops, and the field of litigation was again ^ismoritur^
^ _ ° ° cum persona.
narrowed by the operation of the old rule of the common Law as to
law, against personal rights of action surviving the original g^dion"'
owner, and against the assignment of any right or claim
which could be deemed a chose in action.
Taking all this into account we may well believe that Small scope
the amount of work entrusted to the lawyers here before practftioners.
the Conquest was inevitably small. From the little we
really know of the Anglo-Saxon Tribunals, we may be
sure that the course of proceeding was of the most
simple form. The Shiremote, Hustings,* or County Court,
where the most important lawsuits were disposed of,
hardly required, in ordinary cases, the presence of trained
' See Serjeant Hawkins' ' Pleas of the Crown/ 243.
' See Com. Dig., Maintenance A 5.
' Campum partire, to share in the land in controversy.
* The ordinary judicial title of the ruler of the shire under the Anglo-
Saxons was Earl or Alderman ; in after times Comte or Comes, his assistant
or substitute being the Shire-reeve, Viscount or ViceoomeB. The military
title of the ruler of the shire seems to have been Heretoch, Hertzog, Due, or
Dux. The use of the expression Viscount, as applied lo the sheriff, was
discontinued iu the fifteenth century, when Edward IV. conferred a new
hereditary title of nobility in the case of Viscount Beaumont.
E 2
52 THE ORDER OF THE COIF. [Chap. I.
lawyers. Usually presided over by the Bishop and the
Earl, Alderman or Count, or his Deputy, the Vice comes,
Viscount or Shire-Reeve,^ the Tribunal was generally
relieved from difficult questions of law, and offered small
encouragement to lawyers.
Proceedings We may take as a sample of the proceedings in the
s°axon "^°' Anglo-Saxon Courts, without the presence of pro-
County fessional lawyers, the following case, in the time of
Canute, in the County Court of Hereford, at which
presided the Bishop and the Earl ; there being present,
Edwin, the son of the Earl, with two other persons of
position, Thurcilus Albus and Tofigius Comptus, .with
the Yice comes, and all the liberi homines of the county.
The cause seems to have been between Edwin and his
mother Enmawne concerning a parcel of land. The case
being stated, and Thursigus appearing for Enneawne, the
Court commissioned three of the Thanes present, Leofwen,
Olgelsigus and Thursigus, from the village where
Enneawne lived, to wait on her, and learn from her own
mouth what right she had to the lands that were claimed
by the son ; ^ upon their applying to Enneawne, she
declared, with many expressions of anger towards her
son, that he had no right whatever to the lands he
claimed, and added that it was her intention to leave, at
her death, all her lands, gold, garments, and whatever she
had, to her kinswoman, who was sitting by her side,
[Leofleda,the wife of Thurcilus,] and to disinherit her son.
At the same time she begged them to carry back this
message to the Court, and to beg all the Thanes there
present to he witnesses to this her donation.
On their return to the Court, the Thanes communicated
the result of their inquiries, when Thurcilus arose, and
' See note 4, ante, p. 51. ^ See Hicks' Thesaurus, Appendix, Diss. 3.
Chap. L] ANGLO-SAXON -LAWSUITS. 53
prayed the Court to adjudge these lands to his wife,
Leofleda, according to the intention of Enneawne the
donor.
All who were present did as Thurcilus desired; upon
which he mounted his horse, and, riding to the monastery
of St. ^thelbert, he caused the judgment to be enrolled
in the " Book of the Gospels."
Dr. Hicks supplies us with the report of a case * in the Proceedings
reign of Ethelred, where the proceedings are by way of fromfcmmty
appeal from the County Court to the King's Court, in a suit xin^Vcow^t
respecting certain land at places then called Haceburn and
Bradenfield ; and, on the hearing of the appeal, Wynfleda,
the appellant, proved by her witnesses the Archbishop, the
Bishop, and Alderman who had presided at the County
Court, and others, that ^Ifric the Alderman sold to the
appellant Wynfleda the land in question. The king
then sent them to the Eespondent Leofwin to declare
to him what the Archbishop and the other witnesses testi-
fied ; but he would not give up the land until the matter
was heard in the County Court. Wherefore the king
sent bis seal (or simply his sign, as Dr. Hicks supposed)
by the Abbot Alverc to the Court, which was held at
Aloshloewal, greeting all the witen or wise men there
assembled, and commanding them to do right between
Wynfleda and Leofwin. Sigeric, the Archbishop, and
Ordbyrht, the Bishop, also sent their testimony ; which
being read, the Appellant Wynfleda was desired to set
forth her claim. This she did, and moreover supported
it by the testimony of many other noble men and women.
The Court gave judgment in her favour, but declined
putting the Eespondent Leofwin to the oath, lest, if he
were convicted of perjury, he should be compelled to pay
' Hicks' Diss. Epist. 7.
54
THE ORDER OF THE COIF.
[Chap. I-
Antiquity of
written
records.
Oral records.
Custom
among the
Northern
tribes.
the penalty of that offence, besides making restitution to
the Complainant.
English Lawyers, so long used to the notion of parch-
ment Rolls and Eecords, are apt to confine the idea of
"Eecord" to that which is in writing, whereas in old times
it really meant what was remembered or recorded by those
present, and so certified in solemn form. Men of great
learning and research inform us that in this country the
usage of having a regular written record of judicial pro-
ceedings cannot be traced back further than the end of
the twelfth century,' and we may well assume that
before there were written records what was formally said
and done in Court had to be orally proved. Among the
unlettered Northern tribes, from whose primitive institu-
tions much of our Common Law was derived, competent
Recorders certainly seem to have formed an important
part of the constitution of the legal tribunals. By the
homely forms then in use, without parchment rolls or
written records, what was solemnly done or decided had to be
recollected, or recorded by those specially called on for the
purpose, and every solemn act or form to be gone through
in the presence of the Judges, or other steadfast witnesses,
in whose memory it had to rest, in order to be recorded
and certified when afterwards required.
In the ancient laws of the Scandinavians,^ and the
collection of laws and customs more familiar to the English
lawyer, the Coutumier de Normandie and the assizes de
Jerusalem we everywhere find directions for the recording
' Sir F. Palgrave fixes this time as the reign of Richard I., and suggests
that the old rule as to that period being the limit of legal memory, really
originated in the fact that before that time either there were no records or
they were lost.
2 See on this a learned and interesting account in the ' Edinburgh Review '
for August 1820, vol. xxxiv.
Chap. I.] ANCIENT DUTIES OP EECOKDERS. 55
of legal proceedings, and the decision and judgment of the
Court by the oral testimony of those who were in atten-
dance ; the true and " steadfast " witnesses who were to
recollect, in whose memory it was to dwell, and who would
thereafter be cited as the Recorders. In the assizes de
Jerusalem, already referred to,' the suitor is told, in order
to preserve a sufficient record of the decision of his case,
to assemble in Court as many competent persons as
possible " to hear well and recollect well, in order to be
able to record the plea when need shall require ; " ^ and
in the Grand Coutumier de Normandie there is express
definition of the duties and powers of the Recorder. A
judgment pronounced by the king, sitting as Duke of
Normandy was recorded by his testimony added to that of
one witness, or the royal judge might substitute three
other witnesses in his stead, whilst seven witnesses were
required for a record of the Exchequer or of the Assize.^
Some traces of the ancient system of recording judicial Trace of
decisions, and verbally certifying the same, in order to system of re-
have them entered of record in the superior Courts, may ^he practice
even still be traced in the elaborate formalities observed °^'^®
' See ante, p. 54.
^ S. 4. " Qui veult tost son plait attendre, il doit faire estre en la Court
tant de ses amis com il pora, et prier les que ilz soient ententes as paroles
qui seront dites as plais, et bien entendre et retenir et que il sache bien le
recorder asegars et as connoissances se metier li est." — Assizes de Jerusalem,
c. 45.
' " Le Kecord de Court est record des cboses qui sont faites devant le Koy.
Toutes les choses qui sont fait devant le Eoy pourtant qu'il y en ait une autre
avec luy, ont record, le record peult 11 faire soy et aultre, et s'il ne le veult
faire, il peult estre faict par trois autres. . . . Eecord d'Eschiquier doit
estre faiot au moins par sept personnes creables, a qui I'oa doibt enjoindre
qu'ilz diront verite par le serment, qu'ilz ont fait au roi. Et si ilz n'ont
faict serment au roi ilz doibvent jurer que ilz recorderont et diront verite.
. . . Le record pent en des choses qui sont faites et dictes ou ottroyes
en I'Esohiquier. . . . Eecord Assize est fait en la maniere comme celiii
d'Eschiquier. . . . Tout record doibt estre faict de ce que a ete diet et
ouy." — Le Grand Coutumier de Normandie, c. 102, 3, 4, 7.
58
THE ORDER OF THE COIF.
[Chap. I.
Recorder of by tlii3 Recorder of London, when the ancient customs of
certffy^ng ^^^ ^■'^^1 have to be certified by him ore tenus — a practice
City customs, formerly observed also in appeals from the City Court
of Hustings ^ to the Court of Appeal at St. Martin's-le-
Grand ; and quite in accordance with this was the old
writ for the removal of a plaint from the County Courts
to the superior Courts, where the directions to the Sheriff
were " recordari facias loquelam," so that all that was
required iziight be done in order duly to record the
proceedings.^
y_. . , „ The persons who were habitually called in as Recorders
corders of the were of course those best versed in the matters to be
recorded, whether judicial proceedings or ancient laws, and
local customs ; and it may well be that such recorders were
included among the witen, sapientes or sages gents so often
mentioned here before the Conquest. The official
Recorder of a city or borough must, from his erudition,
* The functions of the Recorder of London are described in the old
Coutniiiier of the City, liber albus, as follows : " Always to be seated at the
mayor's right hand when holding pleas and delivering judgments ; and by
his lips, records and processes holden before the Mayor and Aldermen at
St. Martin's-le-Grand in presence of the Justiciars assigned for the correct-
ing there of errors, ought orally to be recorded. And further, the Mayor
and Aldermen have been accustomed commonly to set forth all other matters
touching the City in presence of his Lordship the King and his Council,
as also in all the Royal Courts, by the mouth of such Recorder, as being
a man more especially imbued with knowledge, and conspicuous for his eloquence."
— Liber albus, c. xv., lib. i., part i., p. 38 of Mr. Riley's translation. As to the
functions of the City Recorder, and especially with reference to the certi-
fying city customs, &c., see Pulling's ' Laws of the City of London,' p. 4.
In the Recorder's eulogistic speech in Westminster Hall on the 9th of
November, in presenting the Lord Mayor elect, when the merits of the
rising city luminary are sung, and generally surprising accounts given of
his claim to grand if not noble lineage, the City Recorders have for many
years much distinguished themselves. The performances of the late Hon.
C. E. Law on some of these occasions were very remarkable ; that learned
Recorder certainly then showed himself in the words of the old City book
— " more especially imbued with knowledge, and conspicuous for his
eloquence."
^ See on this 3, Blackstone's ' Commentaries,' 31.
Chap. I.] LAWYERS BEFORE THE CONQUEST. 57
always have been a person of importance, and, from acting
in his original character of a mere Recorder ^ he naturally
became the instructor of the less erudite presiding Judges,
then the Assessor of the Court, and at length the actual
Judge, as the Recorders of our Borough Courts now are.
Though under the Anglo-Saxon system of judicature Position of
the position of the lawyers here could not have been a England
very profitable one, there is, in the collections of laws Gorman ^
already referred to,^ just sufficient reference to the witen or Conquest.
sages gents, and to the lawmen and pleaders, to shew that
litigation was not, even in those days, carried on without
professional lawyers being occasionally called in. That
the Recorders, as already suggested, were, for the most
part, from a very early period, generally lawyers there is
little doubt. Who were the pleaders never appears on the
reported proceedings ; nor are we able to speak with any
certainty as to the actual position in the case which the
pleader took ; whether he openly advocated the case, and
appeared as the substitute of the suitor, or merely stood
by ^ him as his counsel, to prompt and suggest. We know
that there were regular men of law and pleaders as far
back as it is possible to search ; that William the Con-
queror, in order to have an authentic record of the laws
and customs of England called together a body of
English nobles, and erudite English lawyers, to faithfully
report on the subject; * that the old Order of the Coif was,
' Ante, p. 49. 2 Seepost, pp. 67-71.
' " Consilio Baronum suorum, fecit summouiri, per universos Anglic con-
sulatTis, Anglos nobiles, sapientes et sua lege eraditos, ut eorum leges et
vitam et consuetudines, ab ipsis audiret. Electi ergo de singulis patriee
comitatibus viri xii. jurejurando coram rege primum confirmaverunt •
ut quoad posseat recto tramite, neque ad dextram neque ad sinistram diver-
tentes, legum veritatem suarum et consuetudinum sibi patefacerent nil
prsetermittentes, nil addent«6, nil pravaricantes, nil mutantes," &c.— Dugd.
Orig. 5, quoting Gerv. Tilb. c. 32.
58
THE ORDER OF THE COIF.
[Chap. I.
after the Conquest, largely recruited from the Norman
lawyers who then came over here ; that the old English
word pleader then gave way to the Norman word conieur,
and that, when the legal profession here came to be
placed under systematic regulations, it is treated as
chiefly consisting of the conteurs, and learned men of
the law.^
Effect of the After the Norman Conquest, a state of things arose
Conquest on very different from that which previously prevailed.
the legal
profession.
'J'he position
of the Qrand
Justiciar or
The Anglo-Saxon rules, which required every suitor, to
a great extent, to be his own lawyer^ became altogether
impracticable when the battle of Hastings placed the
Normans in power ; and justice had to be administered in
a form as well as a language unknown to the native
suitor.
On the accession of William the Conqueror the Anglo-
Saxon laws and usages were not openly done away with.
On the contrary, we have proof of the elaborate pro-
visions made with the professed object of preserving them ; ^
but much of the old course of proceedings was altogether
altered, the old usages ignored, and all property in land
subjected to the heavy incubus of the feudal system
which the new dynasty brought with them. With such
changes the rules of law and the practice of the legal
tribunals were to tlje native English a sort of mystery,
and the aid of skilled lawyers became to the suitor not a
mere matter of prudence, but an absolute necessity.
The course of law and justice for nearly two cen-
turies after the Norman Conquest was very materially
' Nest mye a entendu que home ni poit aver consaile de contvurs et de
sayes gentz pur soen. domint. 28 Edw. I. c. ii. (articuli super Chartas)
made at Westminster 1300. Com. Dig. Maintenance A 5. See 3 Edw. I.
c. 29, Westminster 1.
^ See ante, p. 57.
OnAP. I.] THE CAPITALIS JUSTICIARIUS ANGLI.E. 59
affected by the establishment of the oifice of Grand Oapitalis
Justiciar. This high office carried with it the full
authority of the Sovereign, as the fountain of justice,
and seems to have been usually conferred on the person
possessing for the time being the most influence and power
in the state, were he ecclesiastic, soldier, or politician.
Legal knowledge, if deemed at all a recommendation,
was certainly treated as a matter of secondary con-
sideration.
The Chief Justiciar — Justitia or Justitiarius Anglice — Position of
was not so much the Chief Judge as the mighty Minister Justiciar.
of Justice, the great Potentiary with whom seems to
have rested not only the government of the Courts and
Judges, but the administration of the affairs of the
state, and, in the absence of the Sovereign, the entire
rule of the kingdom as Regent or Viceroy.^
Dugdale gives us a list, from the time of the Conquest The Chief
to the end of the reign of Henry III., of some five-and- rarely of the
twenty grandees who held the position of CapitaUs fef^jon."^""
Justiciarius Anglice,^ and Lord Campbell has introduced
most of these into the first chapter of his ' Lives of the
Chief Justices ; ' ^ but, with the single exception of
Glanvile, none of these Capitales Justitiarii seem really
to have occupied the position of Judges, or even pre-
tended to any special knowledge of law.
The names of Odo, Bishop of Bayeux, William Fitz 'Jhe Chief
Osborne, of William Earl of Warrenne, of Flambard, iomfh?
Hugh de Bocland, Hubert de Burgh, and Hugh Bigod SbattiVof
1 Justiciarius— that is. Viceroy.— 3 Selden, 1468. Evesham.
^ Dugdale Orig. Jur. Chron. ser. 1 to 18.
3 ' Lives of the Chief Justices of England, from the time of the Norman
Conquest to the death of Lord Mansfield,' by John Lord Campbell. London •
Murray. 1849. In 4 Inst. Coke gives (from Rot. Cur. 45 H. 3, 13th cent.)
the patent of Philip Basset, the last of the Chief Justiciars, where he is
called Justitiarius Anglias.
60
THE ORDER OP THE COIF.
[Chap. I.
Flambard
spoken of as
Chief
Justiciar.
have all a place in the history of England, but not
properly among the Judges. Odo, half-brother of
William the Conqueror, seems on more than one occasion
to have made his mark both as a soldier and a states-
man, but to have been alike unfit for the judicial as
for the episcopal offices which he filled. The Con-
queror's companions in the battle-field, Fitz Osborn and
de Warrenne successively held the high office of Chief
Justiciar — with certainly no greater pretensions to
judicial aptitude,' and far less apology can be made for
Flambard (the boon companion of the profligate William
Rufus), who is included in the chronica series of Dugdale,
and occupies a place among the Chief Justiciars in Lord
Campbell's ' Lives of the Chief Justices.' ^
' The powers and duties of the ofBce of Chief Justiciar in the south of
England devolved on Odo, whilst in the north, they devolved on William
Fitz Osborn, the Conqueror's Commander-in-chief. William Earl of
Warrenne was second in command at the battle of Hastings, and his col-
league in the ofiSce of Chief Justiciar, Eichard le Bene/acta de Troubridge,
was the son of a i^owerful Norman Earl.
^ Ealf Flambard seems to have come over with the Conqueror in the
capacity of chaplain, and so continued under William Kufus, the caterer
to his royal extravagancies, whom one historian designates as " summus
regiarum procurator opum," others "placitator et exactor totius Anglias,"
and " procurator Regis." Flambard continued to supply the royal wants by
getting hold of the Church revenues, and, having obtained for himself the
bishopric of Durham in 1099, paid to his royal master £1000 for this advance-
ment. He is supposed to be the same Ranulphus who is spoken of by William
of Malmsbury as one of the ecclesiastics of the time known as invictus cau-
sidicus. Flambard's name appears in Dugdale's list ' Justiciarium Anglise ; '
but Mr. Foss, 'Judges of England,' tit. Flambard, shews by reference to the
writers quoted by Dugdale that there is small authority for this. Lord
Campbell, however, not only includes Flambard among the Chief Justiciars
(' Lives of Chief Justices,' vol. i., p. 15), but among the Chancellors (' Lives
of the Chancellors,' vol. i., ch. 2), and actually goes on to tell us how he was
the first judge who ever took his seat in Westminster Hall after it had been
built by William Rufus. " This being completed at Whitsuntide 1099, the
Chief Justiciar Flambard sat here in the following Trinity Term; and the
superior Courts of Justice have been held in it for seven hundred and fifty
years," (i.e. ever since). We shall have occasion hereafter to show the re-
markable inaccuracy of this statement so far as relates to the judicial
sittings in Westminster Hall, see iiost, p. 78, and Mr. Foss shows the
Chap. L] HENRY II. AND GLANVILLE. 61
These lists of Chief Justiciars inchide, not only the Hemy Duke
names of men distinguished in the battle-field or the
councils of the nation, but of one who was afterwards
King of England. In 1253 an arrangement was come
to between King Stephen and Prince Henry, the ac-
knowledged heir to the throne, that the latter should
at once be Chief Justiciar ; and he held that high post
accordingly until he succeeded Stephen on the throne twelve
months afterwards as Henry H. He was then only just
of age, and it can hardly be said, notwithstanding state-
ments to the contrary, that Henry H. had ever really
presided as Chief Justiciar.'
From the institution of the office of Chief Justiciar Gianville
at the Conquest to its abolition soon after the battle of justiciar.
Evesham, the calendar contains the name of one only
who was a lawyer. Ranulph de Gianville, the first
in the list of great writers on the laws of England,
" Cujus sapientia," to use the words of Hoveden,'^ " condit?e
sunt leges subscriptsSj quas Anglicanas vocamus."
inaccuracy of Lord Campbell's account of Flambard, who is called by the
old chroniclers not Jtistkiarius Anglice, hui placitator et exactor totius Anglio'.
See Foss' ' Judges of England/ title Flambard.
' Henry, Duke of Normandy, became Capitalis Justiciarius Anglise in
1153, and on the death of Stephen the year following, became King of
England. He was born in 1133, and was therefore only twenty years of age
when he was made summus Justiciarius Anglice, having moreover abundant
avocations to preclude him even making his appearance in that capacity.
Lord Campbell, however, has not only given a place in his book to this
Royal Justitiarius, but described the sittings and judgments of his Court,
gravely saying, in reference to Henry II., " I shall not attempt to rival Lord
Lyttleton by attemptiag a history of this Chief Justiciar from his cradle to
his grave ; I must content myself with saying that he held the ofBce above a
year. During the first six months he actually presided in the Aula Begis, and
with the assistance of the Chancellor, the other great officer of state, decided the
causes civil and criminal which came before this high tribunal." — ' Lives of the
Chief Justices,' 1st vol. p. 17.
^ Hist. 600. Gianville clearly belonged to the legal profe.-ssion. Lord
Campbell, without citing any authority for the notion, says, " From his
62 THE ORDER OF THE COIF, [Chap. I.
However obtained, the office of Chief Justiciar carried
with it as long as it lasted, far greater powers than
those of a merely judicial character. As already stated
the Capitalis Justiciarius was really at the head of the
state, in the king's absence the actual Regent.
Presiding in the Aula Regis, writs being issued and
other proceedings carried on in his name, he was the
head of the judicial staff, but it would seem as if that
staff was chiefly selected by himself. Such appears to
have been the case with respect to the circuit judges.^
Pleas of the To the Chief Justiciar specially belonged the power
of deciding in all matters, directly affecting the Crown,
Crown.
knowledge of practice, and also the forms of procedure, there seems reason
to think that he must sometime have acted as Prothonotary or Olerh of the
Court " (' Lives of Chief Justices,' vol. i. p. 19, note). There is much greater
reason to believe him to have been a regular member of the Order of the
Coif. He appears not only to have served as one of the Justices itinerant
before 1180, when he was selected for Chief Justiciar, but Madox gives
his name with five others as " Justitise in curia regis constituti ad audi-
endum clamores populi." — Exch. I. 77. This was apparently the old office of
Triers and Receivers of petitions, so often entrusted to the Judges and
Serjeants, see post, p. 76. Glanville was of noble birth — vir praeclarissimus
genere — as Lord Coke describes him (Pref. to 8th Report, xxi.) — was neither
a clerk in orders, or likely to have served in the capacity suggested by Lord
Campbell.
Glanville's career was altogether remarkable. Like almost every one in
power in those rough days, he seems to have been ever ready to draw his
sword at the call of honour or duty. When Sheriff of Yorkshire in 1164 it
was his lot to have a personal encounter with the Scottish King, William
the Lion, whom he took prisoner, and carried in triumph to his royal
master. And further, after he had filled the high post of Grand Justiciar,
he again buckled on his armour, shared the fortunes of war with Coeur de
Lion in the Holy Land, and lost his life at the siege of Acre in 1190.
1 " We, or our Chief Justiciar, if we should be in England, will send
Justiciaries into every county once in the year, who, with the Knights of
each county, shall hold in the county, the aforesaid assizes, and those things
which, at the coming of the aforesaid Justicers being sent to take the said
Assizes, cannot be determined, shall be ended by them in some other place
on their circuit ; and those things which, for difficulty of some of the articles,
cannot be determined by them, shall be determined by our Justicers of the
Bench, and there shall be determined.'"— Magna Charta, 9 Hen. 3, xiii. 14-15.
Chap. I.] THE ITER OF THE CHIEF JUSTICIAR. 63
and tlie supreme jurisdiction in pleas of the Crown.
When one of the early charters of London gave to the
citizens the power to elect and appoint their own
Justiciar independent of the Crown, it conferred on
them within their own territory an actual independence
not possessed by any other class.^
The summus Justiciarius, assisted by subordinate The iter of
. the Chief
Justices, seems regularly to have made his iter, or justiciar.
circuit for enquiring into matters affecting the Crown,
and it was to the King's Justiciar that the persons
elected as Mayors, and Justices of London, were required
to be presented.^
The procedings of the King's Justices on their iter TheJusti-
mi • -r -7 All 1 •! ±^ ciars at the
were very formal. The city Liber Alous describes the Tower.
manner and order in which the citizens ought to behave
towards the King and his Justiciar when it should please
the King to hold the pleas of the Crown at the Tower of
London, as to attachments and misadventures that had
taken place in that city ; and some of the directions and
precautions on the part of the city are certainly remark-
1 " The said citizens shall appoint such person as Justiciar from among
themselves as they shall think proper, to keep the pleas of the Crown, and
to hold snch pleas ; and no other person shall be Justiciar over the said men
of London."— Charter of Henry I. to City of London.
The title of Justiciar is stated in one of the Guildhall records to have
been borne by the head of the civic body long before he acquired the name
of Mayor at the end of the 12th century, see Liber Albus, b. i. pt. 1, p. 13,
fol. 2 a, quoting another city book ' Liber Custumarum,' fol. 187.
2 The City Charter, granted by John, 9 May, A. E. 16, 1215, directed the
Mayor to be presented to the King or his Justiciar. When, at the latter
end of the reign of Henry III., the Justiciar's ofiBce and power were on the
wane, the presentation came to be before the Barons of the Exchequer, in case
of the absence of the King himself from London or Westminster, the person
chosen to be again presented to the King on his return. — Charter to City
of London, 37 Henry III. The ancient practice of presenting the Lord
Mayor of London to the Chief Justiciar became gradually changed into the
merely formal ceremonial that now takes place every November before the
Lord Chancellor. See on this Norton's ' Commentaries on the City of
London,' ed. 3, p. 318.
64 THE ORDER OP THE COIF. [Chap. I-
able, for they embrace not only the work of providing
good seats in the Great Hall at the Tower, for everybody
concerned, from the King and his Justiciar to the alder
men and citizens,^ but in accordance with City manners,
plans for conciliating the Justiciars, and courting their
favour and good will " by making ample presents to
them."^
Discontinu- The great power of the Chief Justiciar seems ever
office of Chief to have been an object of anxiety to the Crown and
Justiciar. terror to the country. We need not remind the
reader of old conflicts between King and Barons on
the subject of the office of Chief Justiciar,^ and how,
• " By common assent of the City, injunctions should be given to the two
Aldermen whose "Wards are nearest to the Tower of London, to the effect
that, upon the third day before the Pleas of the Crown are holden, they
mnst enter the Tower for the purpose of examining the benches in the Great
Hall to see if they are sound ; and if they should happen to be broken^
they must cause the same, at the costs and charges of the City, to be well
and strongly repaired. In like manner also they must have a strong bench
in the middle of the hall, with seats for three, the same to stand in the
middle of the hall, opposite the great seat of his lordship the King ; and
upon this the Mayor and Barons of the City are to be seated, when making
answer unto his lordship the King and his Justiciars, as to matters which
pertain unto the Crown."—' Liber Albus,' b. i., p. 2, c. xvii. p. 53, of Mr.
Riley's edition.
^ " Seeing that it is quite impossible for the Barons and the body of citizens
of London to do otherwise in the Pleas of the Crown than pass through the
hands of the King and his Justiciars, it is matter of necessity that the
Barons and all the citizens should court their favour and good will; by
making ample presents to them., that is to say, and to their clerks ; seeing that
the ancestors of the barons and citizens of London, who, in their day, so man-
fully and so strenuously ruled and defended the City, and the liberties and
customs of London, were wont to do the same. And therefore, forasmuch as
it is no dishonour or disgrace for us to follow in the footsteps of our ancestors
who in former times showed such tact, it can only be to our advantage to do
the same as they did ; to the end that by objections raised by such persons
the citizens may not be molested and distui-bed ; but rather, on the contrary,
in the enjoyment of their liberties may be peacefully maintained." — ' Liber
Albus,' b. i., pt. 2, c. xviii., p. 53.
s Hubert de Burgh, who had held the oflSce, off and on, from the time of
King John, was in 1227 appointed for life, and on his death the place seems
to have been one continued subject of contest between the Barons and the
Crown until it was abolished.
Chap. I.] THE LAST GEAND JUSTICIAR. 65
at the latter end of the reign of Henry TIL, the office
was aboHshed.
Who may really be called the last Oapitalis Justi- Philip Basset
ciarius must be a matter of discussion, but it is pretty justiciars.
clear that, except for a mere temporary purpose, the
oflSce came to an end in 1261. Dugdale names Philip
Basset^ as the last, and though, according to Lord
Campbell, there is some ground for including among
the Capitales Justitiarii, the names of the great English
lawyer, Henry de Bracton, and the Scottish magnate,
Eobert de Brus, who are both placed among the
Chief Justiciars, in the first volume of Lord Campbell's
work, Dugdale's account will probably be the safest
to rely on,^ as Bracton's oflGce clearly was that of
Chief Justice of the King's Bench rather than Chief
Justiciar; and De Brus, after holding the rank, power,
and profits of the office of Chief Justiciar during the four
years that intervened till the death of Honry HL, seems,
even by Lord Campbell's account, not only to have been
quite unfit for the office, but to have hardly exercised it
so far as concerned the administration of justice, never
certainly with credit to himself, or advantage to the
community.
On the death of Henry III. Robert de Brus was not Position of
reappointed. Even Lord Campbell is compelled to Brus.
remark that "there is reason to fear that he was not
much better qualified for the office than the military
1 45 H. 3, A.D. 1261.
2 Dugdale says, " Of those who had the office of Chief Justiciar, Philip
Basset was the last, the King's Bench and Common Pleas having afterwards
one in each Court."— Grig. Jur., ch. 7, p. 20. Philip Basset ceased to be Chief
Justiciar after the battle of Lewes in 1265, when he was taken prisoner with
his royal master. The time when Bracton could have been Chief Justiciar
was within the succeeding two years, as he died in 1267. The name of
Eobert de Brus appears as Chief Justice of the King's Bench in 1288.
66
THE ORDER OP THE COIF.
[Chap. I.
Legal posi-
tion of the
Serjeants-at-
law during
the period
emhraced in
this chapter.
chiefs who had presided in the Aula Regis, before the
common law of England was considered as secure. He
was so much mortified by being passed over that he
resolved to renounce England for ever; and he would
not even wait to pay his duty to Edward I. ; " and we are
told that " the Ex-Chief Justice posted off for his native
country, and established himself in his Castle of Loch-
naber, where he amused himself by sitting in person in
his Court Baron, and where all that he laid down was
no doubt heard with deference, however lightly his law
might have been dealt with in Westminster Hall." ^
It is not altogether easy to describe the exact position
of the Order of the Coif at the early period embraced in
this chapter. The records left us of the proceedings in
the Anglo-Saxon Courts, and the Curia Regis, are very
meagre. They rarely give the names even of the
Judges, never of the pleaders ; but such omissions little
justify the inference that the law was then or at any other
time administered without the lawyers ; and usages and
customs carefully kept up for so many ages, serve to show,
from a date sufficiently remote, what was the ancient and
legitimate position of the Serjeants of the Coif.
The old order, so long in existence here,^ and rein-
forced from the Conteurs, who, at the Norman Conquest,
' ' Lives of Chief Justices/ toI. i. p. 66. Lord Campbell, as a set-off against
De Brus' bad law, makes out that he was of the blood royal, for he says
Brus " was the head of a great Norman baronial house ; he had in his
veins the blood of the Kings of Scotland; he enjoyed large possessions
in that kingdom; he was in succession to a throne; he actually became
a competitor for it. His grandson, after giviivj the English the severest
defeat they ever sustained, swayed the sceptre with glory and felicity, and
our gracious Queen Victoria, in tracing her line to the Conqueror and to
Cerdic, counts the Chief Justiciar among her ancestors." — 'Lives of Chief
Justices,' vol. i. p. 64.
" Ante, p. 2. Coke's preface to 10 Eep. X. ' Mirror of Justices,' lib. ii. c.
des Loiers.
Chap. I.] THE SERJEANTS AT ST. PAUL'S. 67
came over here from Rouen, constituted, it is certain,
for many ages, the English Bar, performing all the duties
and obligations belonging to that position : always to be
found at their post by those who sought their aid;
standing by the litigant — claimant or deforciant, suitor or
defendant, prosecutor or prisoner — in the hour of trial,^
in loyal accordance with the spirit of the ancient oath
— " truly to serve the King's people" and truly and loyally
to counsel and aid their clients without delay or deceit.^
The Serjeant Counters assembled in the Forum of JJ^^^^^J^f
London — the Parvis of Old St. Paul's Cathedral' — en- St. Paul's.
gaged each at his allotted pillar, in legal consultation,
hearing the facts of the clients' case and taking notes of
the evidence, or pacing up and down like the advocates
in the Forum Romanum, are equally well recorded by
chronicler and by poet.*
The assembling of the Roman Jurisperiti at early morn The Roman
° i ./ lawyers in
the Forum.
' See post, p. 71.
z « Yon shall swear well and truly to serve the King's people as one of the
Seqeants-at-law ; and you shall truly counsel them that you be retained
with, after your cunning ; and you shall not defer, or delay their causes
willingly, for coTetousness of money, or other thing that may turn you
to profit, and you shall give due attendance accordingly; so help you
God."
3 Chaucer's description of the Serjeant-at-law at the Parvis has already
been referred to. See ante, p. 3.
* Sir John Fortescue, writing in 1466, tells his royal pupil : — " The
Judges of England do not sit in the King's Courts above three hours in
the day, that is from eight in the morning till eleven. The Courts are not
open in the afternoon. The suitors of the Court betake themselves to the
Pervise, and other places to advise with the Serjeants-at-law, and other their
counsel, about their affairs." — De Laud. leg. Angl. c. li., p. 120. Sir "William
Dugdale, writing in 1666, a few months before the Great Fire of London,
when Old St. Paul's and the Parvis and the ancient pillars were all destroyed,
refers to the old custom when " at St. Paul's each lawyer and Serjeant at his
pillar heard his clientu' cause and took notes thereof upon his knee as they do at
Quildhall at this day," and goes on to say, that, " after the Serjeant«'/eas<
ended, they do still go to Paul's in their habits, and there choose their pillar
whereat to hear their clients' cause (if any come), in memory of that old
custom."— Orig. Jur. 142.
F 2
68 THE ORDER OF THE COIF. [c!hap. I.
" sub galli cantum," ^ and their peripatetic exercise up
and down the Forum, in actual consultation, or ready to
confer with the consultores or clients, is described by
Horace and many other writers,^ and such gatherings of
lawyers in the " market places " seem to have been usual
almost always.^
What the Roman Forum was in the days of Mutius
Scsevola and Cicero, the Parvis at St. Paul's seems for
many ages to have been to the lawyers here. The Parvis,
or Paul's Walk,* was, in days long gone by, the great place
of general resort, and the reader may, perhaps, call to
mind descriptions of the scenes occurring there, given by
historian, antiquary, and novelist.'
The use made of Paul's Walk seems long to have been
deemed a desecration, but certainly so far as concerns the
assembling of lawyers, we have abundant proofs of
St. Paul's not being the only church ^ where lawyers and
" Agricolam laudat juris legumque peritus
Sub galli cantum consultor ubi ostia pulsat." — Horat. Sat. I. i. v. 9.
' See on this Sir Patrick Colquhoun's ' Civil Law/ and Niebuhr's ' Lectures,'
ii. 18.
' We have some reminiscence of the olden custom in the practice of the
Members of the Faculty of Advocates parading the Parliament House in
Edinburgh in Term time ready to be retained or consulted; and see
post, p. 69.
* Parvis strictly meant only the church porch, but in the case of St.
Paul's clearly comprehended the nave or middle aisle of the old Cathedral,
or Paul's Walk. See post, p. 69.
^ The middle aisle in Old St. Paul's is continually referred to by writers of
the sixteenth and seventeenth century as Paul's Walk. It is described in
the plays of Decker as in the sermons and writings of Bishop Earle, not
only as the rendezvous of lawyers and their clients, but as a sort of public
market-place or exchange ; and moreover a political synod, a fashionable
promenade, a regular place for all kinds of assignations. In Mr. Harrison
Ainsworth's novel of ' Old St. Paul's,' several scenes are laid in this well-
known place of public resort.
° The Court of Arches, with jurisdiction not only in ecclesiastical cases but
in all the range of civil business which the Ecclesiastical Laws embraced,
was so called from its having been originally held under the arches of the
church of St. Mary-le-Bow in Cheapside. See Strype's ' London,' lib. i. p. 153.
Chap. I.] LEGAL PROVINCE— EEAL ACTIONS. 69
clients used to attend a consultation and dispose of law-
affairs.^
The range of legal work of the Serjeants of the Coif Range of
was sufficiently comprehensive. It included, according to Counters.
the ' Mirror of Justices,' criminal as well as civil business,^
but there certainly seems to have been at all times
abundant occupation for the old Order of Serjeants of the
Coif without their having to attend the Criminal Courts
as counsel for prisoners.
It must be borne in mind that real actions — those The Ser-
. jeants-at-law
which related to real property —v^Qxe chieny ii not in cases re-
entirely disposed of in the Court of Common Pleas, or property."'''
^ Before the building of the Palais de Justice at Eouen, the lawyers
usually met, and all the Courts of law were held in the Cathedral. In
consecrating a new church it was not unusual in this country for the bishop
to pronounce a curse upon all who " should make a law court of it." As late
as the time of James I., we are told that the Round of the Temple Church
" was used as a place where lawyers received their clients, each occupying his
own particular post, like a merchant upon change."— Peter Cunningham's
'Handbook of London,' vol. ii. p. 391. Ben Jonson in the 'Alchemist'
refers to such business appointments in the Bound of the Temple Church.
This agrees with the passage in Middleton's ' Father Hubbard's Tales,' " and
for advice twixt him and us he had made choice of a lawyer, a mercer, and a
merchant, who that morning were appointed to meet him in the Temple
Church."
^ "Because the people commonly know not all the exceptions in pleadings.
Counters are necessary who know how to advance and defend their clients'
causes according to the rules of law and the customs of the Realm, and the
more needful are they to defend them in indictments and appeals of felony,
than in personal or venial causes." — ' Mirror of Justices,' cap. 3, s. 7. 4 Bl.
Com. 355. This passage is very remarkable, inasmuch as it suggests that at
the time from which the work dates, prisoners tried for felony were allowed
what, until the passing of the Prisoners' Counsel Act in 1836 (6 & 7 Wm. IV.
c. 114), was long denied them, "to make full answer and defence by
counsel." Blackstone speaks of the restriction in question as not being
a part of our ancient law, and in proof quotes the above passage from the
' Mirror.' 4 Com. 355. Some writers trace this innovation to the laws of
Henry I., which (c. 7) provide that " de causis criminalibus vel capitalibus
nemo quserat consilium." Doubts have been thrown on this point, but it is
clear that for ages before the Prisoners' Counsel Act, the restriction which
that Act removed, was regarded by the best English Judges altogether as
an anomaly.
Courts.
70 THE ORDER OP THE COIF. [Chap. I.
the Common Bench of the King's Justices in the Aula
Eegis,^ and that from time immemorial the practice in this
tribunal and generally in matters affecting landed property
devolved on the old order — the Serjeants-at-law, who had
also on their hands other work of rather a different
character, perhaps occupying more of their ordinary time,
and deserving especial notice here.
The local Nearly up to the end of the thirteenth century a great
deal of the ordinary business of litigation took place in the
local Courts ; and even the old Saxon institution, the
County Court, continued to exist with much of its original
jurisdiction ; and the oldest of the tribunals of the City of
London, the Court of Hustings, continued long afterwards
to occupy a very important position, having original
jurisdiction in pleas of land and common pleas to any
extent, if the cause of action arose within the local
boundary — affording sufficient employment for the legal
profession ; and in other places there were ancient local
Courts with corresponding powers and jurisdiction.^ In
some of such local Courts, especially those of the City of
London, the services of the Brothers of the Coif were no
doubt very often called in ; and taking into account the
duties of the Serjeants-at-law as Members of the Court of
Common Bench or Common Pleas,^ and their various
other avocations — their duties in aid of the established
Judicature as of the Legislature — there can be little
doubt that their hands were sufficiently full.
' .Co. 4 Inst. 98. See post, p. 93. The unprofessional reader must be
reminded that until the middle of the 15th century actions relating to land
were all called real actions or actiones in rem. The forms adopted in the
procedure from the writ original to the conte, and the subsequent pleading
to the judgment, with the forms in the assize, de Novel disseisin, mart
d'ancestor, &c., &c., were models of conciseness.
'' There were old Courts of Hustings at York, Winchester, Bristol, and Exeter.
' Side post, chapter iii.
Chap. I.] THE SERJEANTS AND THEIR CLIENTS. 71
At the period we are now speaking of, the lawyer's Ordinary
, , . , . , . 1 , practice of
work was certainly carried on in a manner somewhat the Serjeants
different from that now in vogue. The modern English oft^eCoif.
Bar recognises no Clients but solicitors. The ancient
order knew not attorney, or solicitor, or middle man.
Every member of the order communicated directly with
the suitor who sought his aid. In his own chambers, at
his wonted pillar in the Parvis, in the Aula Eegis, or
the Hustings, or at the local Courts, civil or criminal,*
or wherever else he could be most serviceable, the old
Serjeant Counter was at the proper time always to be
found at his post. As Counsel, as Advocate, or merely
as Draftsman he was accessible to all.
The learned Brother of the Coif, duly retained, gave,
as he was bound to do, his legal aid to his client, and
stood by hiin^ in the hour of trial. It would seem from
the old cases as if the Serjeant Counter had no choice in
this matter. Duly retained pur son donant, by the
ordinary suitor, he could not throw up his case, and even
if he refused to accept a retainer or to act with and for a
poor suitor, the Court would peremptorily compel him to
do so.^
' In one of the learned notes of Serjeant Manning to his report of the
Serjeants' Case in 1834, there is given from the Harleian MSS. in the British
Museum (298, fol. 56) the entry of a plea pleaded by Serjeant le Mareschall
in an action in the King's Bench, sitting at Oxford in 1297, arising out of
some previous proceedings where he had been counsel, and the Serjeant
pleaded that he was a Common Serjeant Counter, Coram Justitiariis et alibi
ubi melius ad hoc conduci poterit, and that he, in the case referred to, stood
with the said John before the said Justices, and assisted him therein as
much as he could, tanquam Serviens suus et sicut talibus scrvientibus in
hujusmodi casibus licet.
'^ It appears anciently in Scotch civil cases that the Advocate stood by the
side of the party, per Campbell, Lord Chief Justice, in Doe dem Bennett v.
Hale, 15 Q. B. Eep. 177.
' See on this Vuier's ' Abridgment,' Pauper D. The power of the Superior
Courts to order counsel to act for paupers has existed from a very early
period. Long before the statute relating to suits in forma pauperis,
72
THE ORDER OP THE COIF.
[Chap. I-
Old law as
to interven-
tion of
Attorneys.
With reference to the ancient practice of the Serjeants-
at-law it must be borne in mind that up to the beginning
of the thirteenth century there was no general right to
appear by attorney or substitute in an action or suit ; and
that the clients or suitors had no alternative but each to
select and retain his own counsellor, and throughout the
legal business always to communicate with and duly
instruct him personally.
The rule of Bar etiquette to which we have referred
Bar^etiquette. certainly has not old observance to recommend it ; but
seems rather to be of very recent growth. There is
hardly any trace of it before the beginning of the last
century. It had no existence in the days of Sir Matthew
Hale ^ and Lord Keeper Guilford ; ^ and the pictures we
Recent
growth of
1 1 H. VII. c. 12, 1495, it was laid down by the Justices of the Court of
Common Pleas that if a Serjeant-at-law, on being assigned by the Court as
Counsel refused to act, they could compel him to act whether he was willing
or not. See Paston v. Genney, Year-book, 11 Edw. IV. fol. 2, pi. 4 (cited by
Sir William FoUett in arguing the ' Serjeants' Case,' 1834, Manning's Report,
p. 41).
* Roger North says of Hale that " he did not take the proiits that he might
have had by his practice, for in common cases when those who came to ask
his counsel gave him a piece he used to give back the half, and to make
ten shillings his fee in ordinary matters." — ' Life of Lord Keeper GuUford,'
i. 117. Bishop Burnet tells us that " many had so abused Hale's goodness as
to mix base money among the fees given him," p. 52.
^ Roger North says of Lord Keeper Guilford that " soon after his call to
the Bar he began to feel himself in business, and as a fresh young man of
good character had the favour of divers persons ; that out of a good will went
to him, and some near relations," and that when asked if he took fees from
them, said, " Yes ; they come to me to do me a kindness, and what kindness
have I if I refuse their money? " Lord Guilford's biographer tells us that
" one thing was principally his care, which was to take good instructions in
his chamber." He " perused all the deeds, if it were a title ; and not seldom
examined the witnesses if it were a fact ; " and, to use the words of Roger
North, " nor can I say upon my memory how many families of nobility and
others having once made use of his advice, made him afterwards arbiter of
their concerns." — North's ' Life of Guilford,' p. 55. In the case of Cutts v.
Pickering (reported in 1 Ventris, 197, without the names of counsel) Lord
Guilford appears to have been placed in a very remarkable position.
Pickering had admitted to a solicitor he had consulted that a certain inter-
Chap. I.] RULE AS TO INTERVENTION OF SOLICITORS. 73
have of legal life by Wycherley ' and Sir Richard Steele ^
show very distinctly Gentlemen of the Long Robe
acting as counsel and advocates, wholly untrammelled
by "instructions " from attorneys and solicitors ; and
Hogarth and other artists of the last century have left
us pictures of barristers in consultation with, and
professional attendance on their clients in all kinds of
legal business, without the presence of solicitors.^
Thirtv vears aa:o a barrister who had long waged Case of Doe
'' . „° . , . , . 1 dem Bennett
war against professional etiquette, having appeared as v. Hale.*
Counsel on the trial of an action instructed directly
by one of the parties, without the intervention of an
attorney, and the learned Judge having refused to hear
lineation in the will ia question was made by himself. He had then gone to
North (Lord Guilford), with whom he was connected by marriage, but was
not on the most satisfactory terms, for, according to Roger North, " he never
had the civility to offer a fee or to ask his lordship to be of counsel with him
in general or particular, or on any account whatever. I remember one
night his lordship came out from his study, having just parted with him in
a great pet, wishing mortally that his adversary would come and retain him, that
he might shake off so trovhlesome a fellow ; and the next day Mrs. Cutis came
Viith much apology for the presumption in tendering a retainer in her case against
Mr. Pickering, fearing he might be under engagements to him. His
lordship told her no, and took her fee and wrote her down in the hook of
retainers, 60 she went away satisfied, and well she might be, for that
moment's work saved the estate."— North's ' Life of Guilford,' p. 59.
^ In Wycherley's ' Plain Dealer,' the second scene in the third act is in
" Westminster Hall — a crowd of people, Serjeants, Counsellors and Attorneys
walking briskly about," and the widow Blackacre, who has a cause in almost
every Court, is personally instructing Mr. Serjeant Plodder and Counsellors
Quillet and SpKtcase. Wycherley, who was brought up in the Temple and
iatended for the Bar, drew his pictures from actual life.
^ In Steele's ' Conscious Lovers,' Serjeant Target and Counsellor Bramble
meet in Mrs. Sealand's house to arrange the terms of settlement on a
projected marriage between their clients. Sir Richard Steele was the son of
a barrister of high position, and in his caricatures would not lose sight of
the original characters.
' In Hogarth's ' Marriage a la Mode,' the Counsellor in bis wig and gown
is shown in attendance on the affianced bride and bridegroom, taking in-
structions for the marriage settlement.
* Doe dem. Bennett v. Hale, 15 Q. B. Rep. 171.
74
THE OEDER OF THE COIF.
[Chap. I.
Comparative
advantages
of ancient
and modem
rules of the
Bar.
him, the Court of Queen's Bench granted a new trial on
the ground that such a mode of conducting a case was
in no way illegal; and Lord Chief Justice Campbell in
giving judgment went fully into the old legal rules and
cases on the subject, which have already been referred to
here. Lord Campbell seems certainly to have attached
some importance to this case, for he referred to it after-
wards as " the only memorable judgment he pronounced
during that term!' '
It has been sufficiently shown that the innovations on
the ancient usages of the English Bar — on the inarti-
ficial rules of the Conteurs et sages gents of old times — are
for the most part of recent growth ; and according to
some accounts of the present usages and practices at the
Bar, arising from the competition of more recent times
said to prevail among a certain class of members of the
profession, and of the questionable expedients sometimes
resorted to by unscrupulous practitioners, the modern
rules of etiquette are certainly not more efficacious in
checking abuses, or really upholding the honour of the
Bar, than the homely discipline of the old Brothers of
the Coif.
' " The only memorable judgment which I pronoiinced during this term
was very interesting to the profession, as it discussed the question, ' whether
a barrister may hold a brief in a civil suit without the intervention of an
attorney?' 1 traad the history of advocacy in England, introducing —
" ' The Serjeant of the law, wary and wise,
That often had y-heen at the Parvise.'"
• Life of Lord Campbell,' vol. ii. p. 277.
( 75 )
CHAPTER 11.
THE AULA REGIA, CURIA REUIS, AND WESTMINSTER HALL.
These subjects are here thrown together, though many
of the topics we have to enter on are somewhat distinct
from one another.
" Curia Regis " was really the name given after the
Conquest to the great assembly periodically called
together in the Aula Regia of the Palace where the King
resided at the time.^ Like the old witenagemote,^ which
it superseded, the Curia Regis was presided over by the
King, or his Lieutenant or Viceroy, the Justiciarius An-
glice.^ The Court was attended by the King's ministers
and great officers of State, the Chancellor, the Constable,
the Marshall, the Lord Steward, and the Chamberlain, as
well as by the Barons of the Realm, and the sages of
the law, the Justicers, or Judges and Serjeants, and for
upwards of two centuries after the Conquest this Curia
Regis constituted the great Tribunal of the Kingdom,
like the Parlement de Paris, invested with functions
and powers, both judicial and legislative, a jurisdiction
in civil as well as criminal cases, and in reference to
1 See Bracton, lib. 3, tit. 1, de actionibus, p. 161 of the edition by Sir
Travers Twiss, quoted more at length, post, p. 77.
'' The -witenagemote seems to have been not only a gathering of the witen
for the affairs of the state, but for redress of private grievances, forming the
chief tribunal in both civil and criminal matters. See Lambard, Arch.
57, Madox, Exch. 7.
' See on this 3 Blackstone's Com. 37, May's ' Law of Parliament,' c. 19.
76
THE OEDER OP THE COIF.
[Chap. II.
Ancient
petitions for
redress of
grievances.
legislation, the duty of dealing with the petitions for
redress of grievances, and recording the ordinances
made on the occasion.^
We have evidence of the recognition of the powers of
the great Tribunal we are speaking of, in several of the
ancient statutes which are expressed to be made in Curid
Regis,^ and in reference to the work of legislation we
have in the practice of appointing Receivers and Triers
of petitions, a vestige of the ancient functions of the
Curia Eegis, and its legal officials, the Justicers and
Serjeants.'
The ancient petitions to the Curia Regis seem generally
to have been for the redress of private wrongs ; and the
work of receiving and trying such petitions might
perhaps be deemed of a judicial rather than a legislative
character. When the appointment had been duly made
of the Receivers and Triers of petitions, proclamation
was made inviting all petitioners to resort to the
Receivers (the clerks of the Chancery and others), who,
sitting in some public place accessible to the people,
received the complaints and transmitted them to the
Auditors or Triers (chosen from the Prelates, Peers, and
Judges, assisted by the Lord Chancellor, the Lord
Treasurer, and the Serjeants-at-law), and, after due
examination, the Petitioners were left to their ordinary
legal remedy, or the matter was dealt with as one for
legislative relief.*
' The French Parlement dating back its judicial powers to Pepin le Bref,
in the beginning of the eighth century, early acquired as a special attribute,
the authority of registering or recording the Eoyal Edicts, ordinances, and
letters patent.
2 The statute of Merton in 1236 expressly states that it was made in
Curia Domini Begis [which was then being held at Merton Abbey],
" See post, p. 79.
' See on this May's ' Law of Parliament,' c. xix., Coke's 4th Inst. 11,
Elsynge, c. 8. Sir Erskine May obseryes, " The functions of receivers and
Chap. II.] AULA EEGIS AND WESTMINSTER HALL. 77
It is quite beside our purpose to enter on the subject Arrangement
of the practice of the Aula Eegis before that great nessmthT''
Tribunal was, six centuries ago, divided into the several '^* ®^^®'
Benches at Westminster Hall, so recently dealt with and
reconstituted the Supreme Court of Judicature. Madox
tells us how regularly in the early days of Westminster
Hall the Justicers formed themselves into separate
Courts as occasion required, how when they sat in the
Hall they were a Court Criminal, and when up the stairs
a Court of Revenue,^ &c. In the arrangement of these
Courts, the times and places for the sittings of the Judges,
and the allotment of their work the procedure rules of
the thirteenth century do not really seem to have been
very much more impracticable than some of more recent
contrivance.
The expression A.ula Regia is used by Bracton as if Bracton's
• .1 .^ . r-, . , T ,1 T 1 reference to
synonymous with Curia Jxegis, and the ordinary law the Aula
student is quite accustomed to Aula Regia meaning ^^'''''
Westminster Hall, and to look upon Westminster Hall as Identity of
originally designed for the great purposes to which it HalfwiSfthe
was at least for five centuries so well devoted — a mis- ■^"^* ^"S^^'
taken notion originating in the rather indistinct way in
which the subject is treated by writers of repute.^ And
triers of petitions have long since given way to the immediate authority of
Parliament at large : but their appointment at the opening of every Parliament
has been continued by the House of Lords without interruption. They are
still constituted as in ancient times, and their appointment and jurisdiction
are expressed in Norman-French." ' Law of Parliament,' c. xix. See 73 Lords
Joum. 579, 80 ib. 13.
^ Mad. Exchequer, c. 9.
■'= " Habet enim plures curias in quibus diversse actiones terminantur, et
illarum curiarum habet curiam propriam sicut Aulam Begiam."— Bracton', de
Actionibus, lib. 3, tit.
= In speaking of the clause in Magna Charta directing common pleas
to be held "in aliquo certo loco," Blackstone says « this certain place was
established in Westminster Hall, the place where the aula reyis originally
Bate when the king resided in that city " (3 Bl. Com. 37).
78
THE ORDER OP THE COIF.
[Chap. II.
The Aula
Regia not
exclusively
Westminster
Hall.
even the late Lord Campbell seems to have been entirely
misled ; for he not only speaks of William Rufus having
built the Westminster Hall now in existence, but fixes
the very date of its being opened for the Law Courts as
Trinity Term, 1099.'
This is certainly not correct. Though the designation
of Aula Regia applied to the hall of every palace where
the sovereign of the time being held his court,^ there is
little proof that Westminster Hall was, until at least
two centuries after it was built, ordinarily used for the
Curia Regis, or specially regarded as the regular Aula
Regia for legal purposes.
' " Lives of the Chief Justices," vol. i. p. 15, published iu 1849, where, after
referring to the erection of the Palace of Westminster, which he tells us
" was enlarged and beautified by Edward the Confessor, but was still mean
compared with the s'.ately structure erected hy the Normans at Souen," Lord
Campbell goes on to say, " The Conqueror, although he observed that it
contained no hall in which the great council of the nation could assemble,
or in which justice could conveniently be administered, had been too much
occupied with graver matters to supply the defect ; but William Rufus
built, adjacent to the palace at Westminster, the magnificent hall which is
looked upon with such veneration by English lawyers, and which is the
scene of so many venerable events in English history, this being completed at
Whitsuntide 1099 the chief justiciar Flamhard sat here in the following Trinity
Term ; and the Superior Courts of Justice have been held in it for 750 years."
This passage is really a fair sample of the misleading statements to be
found in Lord Campbell's works. The writer having been Lord Chief
Justice and Lord Chancellor, it is difficult to excuse the many gross
anachronisms perceptible throughout his account : — " The magnificent
hall, which is looked upon with such veneration by English lawyers," was
not, as Lord Campbell so solemnly asserts, completed at T\hitsuntide 1099.
It was not really in existence till under Edward III. and his famous
minister William of Wykeham, the present hall was erected on the ruins of
the old. It was completed in 1378, see post, p. 79. Of the Palais de Justice, at
Eouen with which, according to Lord Campbell, so unfavourable a comparison
of the old palace at Westminster was being made in the time of William
Eufus, it is simply the fact that no portion of that " stately structure " was
completed till 1493, one hundred years after the reconstruction of West-
minster Hall, of which it always reminds the English traveller ; for the
Palais de Justice at Eouen is evidently a copy on a smaller scale of the
Westminster Hall of 1378, certainly not the prototype of the Hall of Urifus
erected in 1099. ' See jMst, p. 79.
Chap. II.] HISTORY OP WESTMINSTER HALL. 79
The actual history of Westminster Hall shows it to Age of the
TlTPSPTlt
have been originally designed not for a Hall of Justice, Westminster
but for a banqueting hall ; that it was so used for ages ^ '
after it was first erected, in the time of William Rufus,
that Rufus' building was destroyed and an entirely new
hall built before the Courts of Law were fixed there, and
that the existing Westminster Hall dates back, not to the
days of William Rufus, but of Richard II.
There is no doubt that the Palace at Westminster was The old
used as one of the royal residences in the days of Edward Westminster.
the Confessor, William the Conqueror, and William
Rufus, and that each of these kings wore his crown there ^
alternately, with Grloucester and Winchester or Windsor
at the orthodox feasts of Christmas, Easter, and Whit-
suntide, and that such assemblies in the Aula Regia
constituted the Curia Regis for the transaction of the
affairs of the State and the sittings of the Justices of the
Supreme Court.
The practice of shifting the royal quarters at
Christmas, Easter, and Whitsuntide continued under
William Rufus, who at the great feasts wore his crown at
Gloucester, Winchester, Salisbury, or Windsor, as often
as at Westminster,^ and for two centuries after West-
^ William the Conqueror, at Easter, A. E. 6, held his Court at Winchester,
and in the Aula Regis there was heard the great dispute between Lanfranc and
Thomas, Archbishop of York. At Whitsuntide, the Aula Regis was at
Windsor when the same cause was heard and determined. At Christmas
1092, William the Conqueror held his Court at Gloucester ; at Easter at
Winchester; Whitsuntide, London; 1093, the Aula Regis was at Gloucester.
William the Conqueror was a very magnificent prince ; he wore his crown
three times a year ; Easter at Winchester ; Whitsuntide at Westminster ;
Christmas at Gloucester.
^ William Rufus, at the beginning of his reign, wore his crown and held
his Court in London. Christmas, 1094, at Gloucester; Easter, 1095, at
Winchester ; Whitsuntide at Windsor ; Christmas, 1096, again at Windsor ;
Easter at Salisbury ; when, amongst other incidents, we have the record of
a trial by battle, with some sickening details of the result. Gosfrey
80
THE ORDER OP THE COIF.
[Chap II.
First erection
of West-
minster Hall.
minster Hall was built, the Curia Regis was held/ and
the members of the legislature generally assembled in the
Aula Regia of some other palace.
There is no doubt that the first erection of Westminster
Hall dates back to the days of the lavish William Eufus
and his reckless minister and Summus Justiciarius,
Flambard, but it was merely an appendage to the royal
palace, a costly banqueting hall,^ built with small design
for its future use as a Hall of Justice, and, as it would
seem, with small scruple as to the mode of defraying the
cost, and we are told that the royal spendthrift told
his assembled guests that this banqueting house was
intended merely as the commencement of a more costly
structure.^
The early history of Westminster Hall consists merely
of accounts of the magnificent festivities and stately
Bainard accuses William de Ou, the King's kinsman, of treason in the
King's Court, and the Saxon chronicler goes on to say "duello cum eo
decertavit, eumque prselio simplici vicit, et postea superato jussit Eex oculos
erui ac deinde testiculos abscindi : et illius Dapiferum Willelmum nomine,
filium amitffl illius, jussit Eex in crucem tolli." Madox, Ech. c. i. p. 8,
note; Saxon Chron. 1096; Hoved. pp. 1, 466. See Madox, c. i. Christmas,
1099, the King spent in Normandy, and coming to England he wore his
crown in Nova Aula of the Palace at Westminster.
' In 1235 the Curia Regis sat in the abbey of Merton, when the statute of
Merton, 20 Henry III., was passed, expressly stated to be made m Cnrid
Begis. The Court and Parliament sat at Oxford in 1247, and 1258 at
Marlebridge ; in 1267, the next year, at Kenil worth ; at Gloucester in 1278 ;
at the Eoyal Palace in the City of London in 1311 ; at York in 1235, and on
many subsequent occasions, certainly at other. places than Westminster
Hall, such as Lincoln, Northampton, Nottingham, Windsor, &c.
^ The old Chroniclers describe William Eufus' costly building operations at
the Tower of London, and the Palace at Westminster as going on at the
same time, and speak of the loud complaints of the way in which he pilled
and shaved the people with tribute to raise the ivhcmvitlnd.
' Roger of Wendover and Matthew Paris state that when the royal guests
expressed their admiration of the luxurious hall, in which they were being
entertained, William Eufus told them it was not big enough by one-half,
and but a chamber compared with what he intended to erect. See also
Seymour, ' London,' lib. 5, p. 627.
Chap. II.] FESTIVITIES IN WESTMINSTER HALL. 81
receptions given there by the Norman kings, who seem
to have entertained, as occasion served, poor as well as
rich, in a style of Oriental splendour.
Stow and Fabian furnish us with many an animated Early use of
report of the festive proceedings in Westminster Hall Hail for*^^ ^'
before the lawyers appropriated it, of the feeding six purp^ggg
thousand of the poor here by Henry III, in 1236, and
the sumptuous feasting of the Pope's Legate and other
grandees in 1241 ; ^ how in 1243 a magnificent banquet
was given here in honour of the marriage of the king's
brother, Richard, Earl of Cornwall, and how the
festivities were being kept up at Whitsuntide, 1315,
when the royal banquet was disturbed by the untoward
apparition, of an unwelcome, if not an unearthly visitor,
with a letter of evil omen, greatly interfering with the
hilarity of the evening.^
Westminster Hall for ages after the times we liave More recent
been just referring to, and long after it had become Westminster
the English Forum, and the fixed place for holding ^*^-
the law Courts, continued on great occasions to main-
tain its original character for festivity and gorgeous
display.
Here in the winter of 1S98-9, after the present Hull
had been built by William of Wykeham, a most royal
Christmas was kept by Richard II., whose prodigality
in entertainments, like that of William Rufus, seems to
have been boundless, and whose deposition was the
first public act of the Parliament assembled in the same
' Entertaining, as it is asserted, 10,000 guests, who partook of 30,000
dishes. Fabian's ' Chronicle,' 685.
^ "Whilst the King was sitting royally at the table wilh his peers about
him, there entered a woman, adorned lilte a minstrel, sitting on a great horse
duly caparisoned, who rode round about the tables, showing pastime and
at length came up to the King's table and laid before him a letter of
complaint from his discontented knights, and then departed."— /ci ib
«2 THE ORDER OF THE COIP. [Chap. II.
Hall a 'few months after,' Here in 1494, Henry VII.
entertained the citizens on twelfth day in right royal
style,^ and here for ages afterwards his successors gave
grand entertainments, the last of which was at the coro-
nation of George IV., and here twenty-seven years ago,
under the auspices of Lord Brougham, was a lively
assemblage of a somewhat different character.^
Disasters of Whilst Westminster Hall has so often been the scene
Westminster ^^ festivity, its disasters have been certainly frequent, and
it would require much exploring now to make out even
the traces of the work begun under William Rufus.
According to reliable accounts, the Hall of William Rufus
came to grief vrithin eighty years after its first erection,
and in 1163 when Henry II. was on the throne, we are
told that the whole Palace of Westminster was ready to
' The daily provender at Christmas, 1399, is said to have amouDted to
26 oxen, 300 sheep, besides fowl without munber. The King wore a gown of
gold, garnished with precious stones, the concourse of people, 10,000. See
Seymour's ' London,' lib. v. c. 8, 628. Richard II. seems to have rivalled
William Rufus in his extravagant expenditure at Westminster Hall, and in
his lawless proceedings to raise the funds for keeping it up. Shakespeare
makes his enemy say,
" The Commons hath he pilkd with grievous taxes, and lost their hearts.''
— Shakespeare, Richard II.
2 Fabian says, that here Henry VII., holding his royal feast of Christmas
at Westminster, on the twelfth day feasted Ralph Audrey, then Mayor of
London, and his brethren, the Aldermen, with other commoners in great
number ; and after dinner, dubbing the Mayor Knight, caused him, with his
brethren, to stay and behold the disguising and other disports in the night
following, showed in the great hall, which was richly hanged with arras, and
staged about on both sides ; which disports being ended in the morning, the
King, the Queen, the ambassadors and other estates being set at a table of
stone, sixty knights and esquires served sixty dishes to the King's mess, and
as many to the Queen's (neither flesh or fish), and served the Mayor with
twenty-four dishes to his mess of the same manner, with sundry wines in
most plenteous wise, and finally the King and Queen being conveyed with
great lights into the palace, the Mayor, with his company, in barges
returned and came to London by break of the next day.
' The Social Science Congress, 1856.
Chap. II.] REBUILDING OF WESTMINSTER HALL. 83
have fallen down " had he not directed it to be repaired
and renovated."'
In 1236 and in 1242 the Hall was inundated by floods. Destruction
In 1263 and in 1299 fire seems to have destroyed all of William
that was combustible there, and when this was remedied ^"'^"^•
the place was reduced to ruins by another fire in 1386,
and as we shall see again rebuilt. Though the greater
part of the Old Palace of Westminster was entirely
destroyed by fire in 1512, Westminster Hall escaped
the conflagration, and with the offices adjoining was
again put in repair.
Such being the history of Westminster Hall, we may Date of the
feel assured that the greater part of the present building building
is the work of the end of the fourteenth century, when, as
appears hy contracts fully recorded,^ the last work of
rebuilding was completed. This seems to have been
carried out under the superintendence of the accomplished
William of Wykeham.
It still retains the unmistakeable mark of his taste and Architecture
skill, and the style just then introduced, which architects minster llall.
call the perpendicular Gothic — with the stately roof, the
hammer-headed beams, and angels' heads. ^
On solemn occasions a royal feast, a state trial, a Coronation
gathering of the magnates of the nation, Westminster feasts.
* Matthew Paris says that a diligent searcher might find out the
foundation of the HaU which William Eufus was supposed to have built.
The date of this renovation under Henry II. was just the period when the
quarrels between that monarch and his ambitious chancellor, Thomas a
Becket, began.
2 See Eymer, ' Fcedera,' vii. 548-794.
' This corresponds for the most part with the Flamboyant of continental
architects, many examples of which are to be found in Normandy, as at
Honfleur, and that which so strongly reminds the English traveller of
Westminster Hall— the Palais de Justice at Eouen- a building which was
first erected in 1493, one hundred years after Westminster Hall was rebuilt,
and nearly four hundred after the, date of the original Hall of 1099.
O 2
84 THE ORDER OP THE COIF. [Cuap. II.
Hall seems for all purposes (when the King held his
Court at Westminster) to have been the recognised Aula
Regis. There at the high table at the upper end of the
Hall in his marble chair for a throne ^ sat the King at his
coronation dinner, or meeting of the assembled Peers;
and -when the Sovereign retired from the Hall, the
The marble Chancellor took his seat in the marble chair, which then
^^^^'' served, like the woolsack^ did in aftertimes, for the
allotted place of honour of the great official.
Ancient The table and marble chair at the end of Westminster
the' Courts of Hall Seem to have been removed some time in the
and Common fourteenth ccntury, to make room for the erections there
Pleas. made for the Courts of Chancery and King's Bench. Old
pictures show that there was a similar erection for the
Common Pleas nearer the entrance of Westminster Hall ;
and it is probable that the place has been generally
used for holding the superior Courts ever since. Such
certainly was not the rule before the fourteenth century.
' At the upper end of Westminster Hall was a long marble stone of
twelve feet in length and three feet in breadth, and there also was a marble
chair where the Kings of England formerly sat at their coronation dinners,
and at other solemn times the Lord Chancellor. This was afterwards built
over by the two Courts of Chancery and King's Bench. At this marble
stone divers matters of importance used to be transacted, the swearing in of
high oflScers, &c. See Stow, lib. 5, ch. 3, 628. Henry de Cliff was so sworn
as Master of the Rolls in 1325.
2 The woolsacks served in the House of Lords for seats for the Chancellor
and Judges when ordinary peers were not so luxuriously accommodated.
Dean Stanley, in referring to the marble chair in his admirable work on
Westminster Abbey, speaks of it as the King's Bench, "from which the title
of the Chief Court was derived." (' Historical Memorials of Westminster
Abbey,' ed. 4, p. 56.)
( «5 )
CHAPTER III.
THE king's justices, THE COMMOV BENCH, AND
THE ASSIZES.
It is hardly necessary to remind our readers that the
subject now before us extends over a long space of time,
and that the Supreme Court of Judicature constituted
anew by the series of statutes commencing in 1873,^ is
really founded on institutions the growth of at least
seven centuries ; dating back not merely to Edward I.
or to Magna Charta, but to the time when regularly
trained Judges were first appointed in the Aula Regia,
calling to mind names and events prominent in the
history of law and lawyers in this country — Henry II.,
Thomas a Becket, and Grlanville, the Constitutions of
Clarendon, the angry conflicts between Church and State,
and the permanent provisions at length made for the
administration of law and justice by the Judges of the
one Bench or the other, or under circuit commissions.
It so happened that Henry II., before he became king, Legal ex-
was actually Summus Justiciarius Anglioe, the only Royal ^^eJTryTl."^
Prince so appointed, and certainly the youngest man ; for
he was barely twenty-one when he ascended the throne ;
and he had been Chief Justiciar for twelve months before.^
It was the good fortune of Henry II. to have as his
coadjutor in the work of administering law and justice
• 36 & 37 Vict. c. 66 ; 38 & 39 Vict. c. 77. ' Sec ante, p. 61.
THE ORDER OP THE COIF.
[Chap. III.
Glanville.
Thomas i
Beoket.
Troubles of
Henry II.
tlie first in the list of English lawyers, Ranulphiis de
Glanville. It was his fate to live in an age of ignorance
and superstition, and to have as ruling minister one
of the most ambitious and unscrupulous of ecclesiastics,
determined to make everything give way to the absorbing
interests and the encroaching claims of the Church, to
oppose all measures, legislative or administrative, which
interfered with them.
The work of laying the foundation of our judicial
system was commenced under difficult and painful cir-
cumstances. The life of Henry II. from his cradle to his
grave seems to have been one of almost continual trouble
and endurance. The high character given him by
historians was not unmerited, and the " learned in the
law " have ever held him in just esteem. To Henry II.
and his coadjutors we owe not only the emancipation
of the law from ecclesiastical control, but the actual
foundation of our system of judicature, the appointment
of legally trained Judges to administer law and justice.
For three centuries after his death usages and ceremonies
originating in the painful events of his time were
religiously observed by the sages of the law ; and we still
read with interest the accounts of the solemn processions
in old times of the Judges and Serjeants of the Coif, and
in commemoration of the events of the reign of Henry II.,
their pious devotions, before assembling at the Parvise at
St. Paul's, in the chapel dedicated to Thomas a Becket.^
' The chapel dedicated to Thomas JiBecket, or Thomas of Acres or Aco7is,
or Thomas the Martyr, on the site of the Mercers' Chapel in Cheapside, seems
to have been originally founded in the time of Henry II. by a Becket's sister
soon after his death in 1190.
The meetings at St. Thomas of Acres and solemn processions from thenco
to St. Paul's on great occasions are referred to by many writers. Dugdale
gives us the following account of the processions of the Judges and Serjeants,
on the creation of now Serjeants : —
PLATE IV.
TAKEN FROM ANCIEKT PAINTED TABLE IN THE KINg's EXCHEQUER, TEMP.
HEN. VII.
Chap. III.] CHURCH AND STATE DISSENSIONS. 87
When Henry IT. was king the secular power of the Decline of
Church was ah-eady on the dech'ne, and the assumed jjuence,
privileges of the clergy in ordinary legal proceedings
were very freely dealt with ; and it was not long after-
wards that the secular Courts in this country got rid of
the tonsured Judge and Pleader, and the principle was
fully recognised that the law of Ihe land could be and
ought to be administered without monkish aid, by the
sages of the Common Law.^
Bishops and Abbots and others of the clergy, no doubt,
acted as Judges in the secular Courts here long after the
time of Henry II., but we then find regular Judges who
were not ecclesiastics acting as permanent Justices in
"And when the seid newe Serjaunts have dyned, they goo in a sober
maner with ther seid offycers and servaunts into London, oone the est
side of Chepesyde, one to Seynt Thomas of Aeons, and ther they offer, and
then come down on the west syde of Chepesyde to Fowles, and ther offer at
the Kode of the North door, at Seynt Erkenwald's shrine, and then goo
down into the body of the Chirche, and ther they be appoynted to ther
Pyllyrs by the Styward and Countroller of the feste, which brought them
thidder with the oder ofiHcers." — Dugdale, Orig. Cap. xliv. p. 117.
These solemn observances at St. Thomas of Aeons were not coniined to
the Judges and Serjeants-at-law. The new Lord Mayor of London, after
being sworn in, used to meet there with the aldermen, and proceed together
to St. Paul's, and after certain prayers and offerings there, to go back to
St. Thomas of Aeons, where, we are told, mayor and aldermen offered each
a penny. — See Seymour's Hist, of London, lib. 2, ch. 3, p. 539. These ancient
ceremonies seem to have ceased when Henry VIII. seized the possessions of
the order of St. Thomas of Aeons in 1538, and gave the chapel and adjoining
property to the Mercers' Company. The Judges and Serjeants of the Coif
thenceforward continued the state processions to St. Paul's, but their place of
meeting was changed to Serjeants' Inn, until the operation of the Judicature
Act put an end to that rendezvous.
' See ante, pp. 10 and 20, where the various constitutions and ordinances
on the subject are referred to.
The beginning of the reign of Henry HI. is generally referred to as the
date of the ecclesiastical constitutions prohibiting clerks in orders and priests
from appearing as advocates in the ordinary courts here ; such constitutions
))eing made in 1218 by Kichard Poer, Bishop of Salisbury, see Dugd. Orig. 21,
but the voluntary secession of the ecclesiastics from the secular courts was
going on much earlier, %nte, p. 10, et seq.
88
THE ORDER OF THE COIF.
[Chap. III.
Distinct
Benches in
Aula Re''ia.
The Common
Bench of the
Aula Regia.
Early dis-
tinction be-
tween the
Benches of
Justiciars.
Age of the
Court of
Common
Pleas.
Curia Regis, as well as Justiciarii itinerantes from time to
time, Glanville's name appearing in both capacities, with
others of whom express mention is made.
The Justices in the Aula Regia seem to have early
formed distinct Benches, the " Justices of the one Bench
and the other " being spoken of in records as early
as the time of Henry I. : and Communis Bancus was the
proper designation of the Bench of Justices which had to
dispose of common pleas — actions real and personal
between subject and subject, or party and party — as
distinct from placita coronce, which belonged to the King's
Bench, in those days presided over by the King himself
or his locum tenens, the Summus Justiciarius Anglice.
This marked distinction between the two Benches of
Justiciars in the Aula Regia may be traced back to a very
early date ; when records, yet existing, refer to the
"Justices of the one Bench or the other," ^ or separately to
the " King's Bench " — coram me ipso — and the Common
Bench — coram Justiciarils meis — and to the proceedings
of the former as placita Coronce or placita Regis^ and of
the latter as placita de Banco.
There is such a general concurrence of opinion as to
the Court of Common Pleas having, together with its
ancient rights, offices, powers, and privileges, a legal
existence from time immemorial, that we need hardly
say it did not begin with Magna Charta, or any period
subsequent to the reign of Richard I. ^
' Dugdale refers to a charter from Henry I. granting to the Abbot of B.
conusance of all pleas, " so that neither the Justices of the one Bench or of
the other should meddle," &c. Oiig. Jur. ch. 18. This same expression of
Justices of one Bench or the other is used in the 16 Edw. 3, statute 1, c. 16,
as to holding assizes, which also speaks of the King's Bench and Common Bench.
^ " Bicardus iilius Aluredi Pincern debet XV. marcas argenti utsederetcum
Radulfo Burser ad placita Regis." — Record cited in Madox, Exch. ch. 2, 63.
= Co. Litt. 71, b; Hargrave and Butler's note 30; Coke's, 4th. Inst. 72, 75
Chap. III.] JUSTICES OP THE BENCH. 89
Madox^ quotes a number of records relating to the Old recorfs
Common Bench in that reign, and Coke refers to others ot the Common
an earlier date,' shewing that the Court of Common Pleas
was even then a separate and distinct Court, its Judges
being constantly referred to as Justiciar de Banco,
Justices en banc, &c., and thus known long before Magna
Charta.
Such authorities quite refute the idea of those who The Court
■*• - . , . anterior to
speak of the Court of Common Pleas as created m the time Magna
of Edward I., or originating in the clause of Magna ^''*"^-
Charta, which provided for its sittings being in aliquo
certo loco? The words of this clause in Magna Charta
have evidently led to a variety of mistakes with reference
to the Common Pleas.
The evil which was designed to be dealt with by the Operation of
. . , , • 1 1 • J.T. 1 tlie clause in
clause in question, was the continual change in the place Magna
of sitting of the Courts. Incidentally no doubt it had ^''*'''*-
the effect in time of bringing about the establish-
ment at Westminster Hall of not only the Court of
Common Pleas but the other Courts which grew out of
100. The old ofSces of Exigenter and Prothonotary, in the Common Pleas
dated from time immemorial : see Vin. Abr. xviii. 110 ; Com. Dig. Courts, c. 4 ;
Dyer's Eeports, 150 b. ; so the office of Ushery of the Common Pleas.
By the statute 3 Edw. I. c. 39, the limit of time immemorial was the
return of Eichard I. from the Holy Wars.
' XIX. Division of Courts, 789.
2 See Preface to 8 Co. Rep. 26.
^ Lord Campbell in his life of Hengham (Chief Justiciar temp. Henry III.
and Edw. I.) says, " Magna Charta had enacted that civil actions should be
tried always sitting in the same place, so that the suitors might not be
compelled to follow the king in his migrations to the different cities in his
dominions : and the section of the Aula Eegis which had subsequently sat at
Westminster now leoame the Court of Common Pleas." — 'Lives of Chief
Justices,' vol. i. p. 71.
In order the more to disparage the Court, the Judges, and the Coif,
Lord Campbell, in his Index, distinctly refers to " its creation hy Edward I."
side by side with his other misleading references to the " monopoly of the
Serjeants," and the " easy duties of the Judges," &c. See vol. iii. p. 365.
90 THE ORDER OF THE COIF. [Chap. III.
the old Aula Regia, but it is free from dispute that for
ages after Magna Charta, as well the Common Pleas as
the King's Bench and Exchequer were held in a variety
of places and were certainly not de facto aut nomine
what in modern times they became, " H.M.'s Courts at
Westmin6ter." They were each of them in their
turn held at Winchester, Gloucester, Windsor, Lincoln,
or York as much as at Westminster, and neither of
the places named could therefore exclusively be called
the certus locus in which Ihe Courts were obliged to be
held.
Discretion of According to the best opinions it was in the discretion
fixing the of the Crown to fix and appoint the cerium locum for
tb?rof 'the' sittings of the Court from time to time as occasion arose,*
Common y,nd if proper arrangements were made for fixing on such
place, common pleas might legally be heard and tried and
disposed of in York Castle as well as at Westminster Hall ;
and the Rolls of Parliament of 1298 contain an express
ordinance making arrangements for both the Common
Pleas and Exchequer sittings at York Castle."^ There are
numerous records of the time of Edward III. of the
proceedings both of the Courts of King's Bench and
Common Pleas sitting at York ; and the Year-books
1334 and 1336 contain reports of cases there decided.^
Sittings of In 1364, more than a century after the date of Magna
y'ifU etc. Cliarta, among the Parliamentary petitions is one com-
plaining of the great inconvenience arising from the
uncertainty of the sittings of the Courts, and instead of
' " VoillomB que Justices demurrent continualement a Westminster ou
aileur."
^ " Ordinatum est quod scaccai-ium ct Bancus sint apud Ebonim post
fostum sancte Trinitatis, videlicet scaccariumin crastiiio Trinitatis, et Bancus
infra Uadellum."—! Rot. Pari. 143 ; 26 Edw. I.
=> 7 Edw. III. 57; 11. 8 Edw. Ill, 16, pi. 1 See also M. 1 Edw. IV. b.
Chap. III.] COMMON PLEAS AND WESTMINSTER HALL. 91
the royal assent is tbe surly answer that "the King
would order such sittings where he pleased as should be
best in ease and quiet of his people ; " ' and in 1392 the
sheriffs were directed to return to the Common Pleas at
the City of York, all writs, original or judicial, made
returnable in the Common Pleas at Westminster on or
before the morrow of St. John the Baptist.*
It will thus be seen that the idea of the sittings of the Association
Court of Common Pleas being permanently fixed at West- commoa
minster Hall by xMagna Charta is altogether wrong— as ^^'/t^^^t^r
inaccurate indeed as many of the tedious tales put HaU.
forward in the Law Dictionaries, and afterwards dressed
up by book compilers, regardless of what is actually true
or untrue, e.g., the story of William Rufus having built
the existing Westminster Hall, and of the Law Courts
having been held there ever since,^ or the twattle of
Eoger North, in reference to Sir Orlando Bridgman,
seriously teUing his readers that that learned Judge legally
objected to any structural alteration of the actual area
' " Inasmuch as tte Bench of our Lord the King is wandering from
county to coimty through all the realm, and in the counties in which the
said Bench is, all the commons of the counties are made to come, and to
remain hefore the Justices of the said Bench, for one cause or for another, to
the great destruction and costs of the said commons, whereof the King takes
little advantage ; and also many persons are thrown back (sus diet) defeated
and destroyed for want of wise counsel, whereof they can find none in that
Court by reason of the uncertainty of the place ; the Commons pray that the
said Bench may remain in certain at Westminster or at York, where the
Common Bench remains, that a man may have counsel of one Court or of
the other, bo that no man be thrown back (sus diet) for want of wise counsel,
and by the uncertainty of the place." Answer : " The King neither will nor
can renounce ordering his Bench when he shall please : but he will order
thereupon in such manner as shall be best in ease and quiet of his people."
—2 Hot. Pari. 20.
^ See 3 Eot. Pari. 406a. These writs are tested at Stamford, but, as
observed by Mr. Serjeant Manning, it does not follow that the king was there,
the usage being as a mark of honour to the Lord Chancellor to test original
writs from his place of residence instead of the Eoyal Abode.— Notes to the
Report of the Serjeants' Case, 180, note d.
^ See ante, p. 78.
92 THE OEDER OF THE COIF. [Chap. III.
of the old Court of Common Pleas, as a violation of the
provision of Magna Charta that communia placita tene-
antur in aliquo certo loco}
Illustration The illustration in the frontispiece* represents the
Court of old Court of Common Pleas in the middle of the
P°eT°° fifteenth century, when it usually, if not always, sat at
Westminster Hall. The picture represents the Judges, then
seven in numher, in the full judicial costume of the senior
Brothers of the Coif, whilst the coifs and the party-coloured
robes of the Pleaders show them to be Serjeants-at-law
of junior standing, in the robes of the day.
The Common Coke describes the Court of Common Bench as " the
chief common lock and key of the common law,"^ and such description
n una . certainly can hardly be treated as careless or inappropriate.
The Common Bench, the great Court for the adjudication
of Common Pleas, had not only for each occasion to
administer common justice, but for general guidance
to lay down the rules of the Common Law ; and it is to
the decisions of the Common Bench before its jurisdiction
was encroached upon by the Judges of the other Courts,
that we must look back for the authentic. version of those
principles and doctrines, which in time came to form
' " The Court, answering the title of Common Pleas, was placed next the
hall door that suitors and their train might readily pass in and out, but the
air of the great door when the wind is in the north, is very cold, and if it
might have been done the Court had been moved into a warmer place. It
was once proposed to let it in through the wall to be carried upon arches
into a back room which they call the Treasury, but the Lord Chief Justice
Bridgman would not agree to it, as against Magna Charta, which says that
the Common Pleas shall be held in a certain place, with which the distance
of an inch from that place is inconsistent, and all the pleas would be
coram non Judice.''' — North's ' Life of Lord Keeper Guilford,' vol. i. p. 199.
" The illustration is one of those already reierred to, ante, p. 18. It is of
especial value, not only with reference to the costume of the order, on which
see post, ch. vii., but the constitution of the Coui-t and the position of the
Serjeant Counters, the officials, and the actual litigants.
» Coke, 4 Inst. 99.
Chap. III.] REAL ACTIONS, ETC. 93
the actual law of real property in England. We may go
further, and safely rely on the fact that there are few titles
to landed estates in this country which have not, at one
time or other, been based on a Common Bench record, the
record of a judgment actually given in matters litigated,
or of a fine levied in a suit for land settled by final
concord, or of a common recovery by default.
We must bear in mind that in old times the only mode Eeal actions
of proceeding for the recovery of land was by real action, common
in which the Common Bench, or Court of Common Pleas, ^^^'■'•
had exclusive jurisdiction ; and that in comparison with
this ancient course of law, the clumsy proceedings in use
for the same object by way of ejectment, and the ordinary
formulae of proceedings adopted before the Judicature The action of
, I j_ * Gjcctrncnt.
Acts came into operation, were mere recent contrivances.
The action of ejectment, which was substituted for the
real action, and was based on a succession of fictions,
seems ever since it was invented to have been the subject
of animadversion on the part of the more grave of our
legal authors,^ and of ridicule on the part of humourists
who revelled in the nonsense of the verbose forms of the
action of ejectment, and the tedious performances of
John Doe and Eichard Roe.'^
' Coke tells us that "The neglect of assizes and real actions hath
produced two inconTeniences in the Commonwealth, and a third is (if not
stept on already) like to ensue : 1. The multitude of suits in personal
actions, wherein the realty of freehold and inheritance is tried, to the
intolerable charge and vexation of the subject. 2. Multiplicity of suits in
one and the same case ; wherein oftentimes there are divers verdicts on the
one side, and divers on the other, and yet the plaintiff or defendant can
come to no finite end, nor can hold the possessions in peace though it be
often tried and adjudged for either party." — Coke's Pref. 8 Eep. xxvii.
'^ The absurd old action of ejectment was the easy subject of caricature by
writers of legal novels. The readers of the late Mr. Samuel Warren's ' Ten
Thousand a Year ' will remember the form of proceeding which is set out
at length in his famous action of ejectment, Doe on the demise of Titmouse
versus Aubrey, a production designed to rival in legal absurdity the case of
Bardell v. Pickwick, in Dickens's immortal work.
94 THE ORDER OF THE COIP. [Chap. III.
The remedy by ejectment for recovering the aclual
possession of land in lieu of a real action appears to have
been first estabhshed in the time of Edward IV/
Legal fictions enabled all the Courts at Westminster,
the Court of Exchequer as well as the King's Bench, to
deal with common pleas and claims and titles to land.
The exclusive jurisdiction of the Justices of the Common
Bench in such cases, which ^ began to give way in the
reign of Edward TIL, was abandoned in the time of
Henry VII., and from that time the Court of Common
Pleas practically became only one of the three superior
Courts at Westminster.
Long after the old and peculiar jurisdiction of the
Common Bench had become mere matter of history the
Court continued to hold ground at all events as one of
the great Tribunals of Westminster Hall, especially in
actions relating to real property, and certainly not the
least of the reasons of this high character of the Court
was to be found in the learning and ability of the Bench
and the Bar, always chosen from the Order of the Coif :
and for the most part from those who had already gained
distinction as Serjeants-at-law.
Judges of "pijg Justices of the Common Bench were always chosen
Oorumon _ ''
Beuch always from the Serjeants-at law. Coke, Fortescue, and Dug-
dale clearly establish that in the case of the Common
Pleas Judges this rule existed from time immemorial,^
' In the Year-book 7 Edw. IV., 6, Fairfax, J., says, " si home ' port ejectione
finna3,' le plaintiff recovera son terms qui est arrere si bien come en
' quare ejecit infra terminum ' : et si nul soit arrere donque toiit en damages."
" See on this Reeves' ' History of the English Law,' toI. iii. p. 390, and
7ol. iv. p. 165.
' See Coke's 4th Inst. 72, 75, 100 ; Com. Dig. Courts; Fortescue, De Laud
Augl. c. 50; and argument of Sir William Follett in "the Serjeants' Case"
reported by Serjeant Manning, p. 73. The legal necessity of all the Judges
at the assizes being Serjeants-at-law arose ti-om the statutes quoted, ante,
Chap. III.] REASONS FOR THE OLD RULE. 95
and that the rule was gradually extended to all the
Judges of the Common Law Courts at Westminster.'
For a long- time after the Conquest there were very Special
111 xtri, 4.1, reasons for
urgent reasons for this rule being adhered to. When the judges to bo
Crown, or the Chief Justiciar, attempted to infringe on "f ti^^ order,
it by appointing to the Judicial Bench Court favourites,
or those who were not "recognised men of law," the
outcry was generally so great as to bring about reform.
From the days of Edward III. to the passing of the
Judicature Acts the law had been respected — even when
the selected Judge was only created a Serjeant-at-law
immediately before he was called to the Bench 5 ^ and so
distinctly was the rule deemed a part of the constitutional
law of this country that it was most carefully observed
even during the Commonwealth,^ and never legally
altered previous to the provisions of the Judicature Act,
made apparently to meet merely an exceptional state of
things and not altogether to alter the old law.*
p. 4, which provided that assizes might be taken before the Jmtkes of the one
Bench or the other or Serjeant le Eoijurree.
' As late as Coke's time the Barons of the Exchequer, with the exception of
the Chief, were of inferior grade to the Judges of the one Bench and the
other, inasmuch as they were not of the Coif. Coke refers to this in speaking
of the legitimate position of Serjeants-at-law, in his preface to the 10th
Report, where he says : " Of these Serjeants, as of the seminary of Justice,
are chosen Judges ; for none can be a Judge, either of the Court of King's
Bench, or of the Common Pleas, or Chief Baron of the Exchequer, unless he
be a Serjeant ; neither can he be of either of the Serjeants Inns, unless he
hath been a Serjeant-at-law ; for it is not called Judges or Justices Inn, but
Serjeants Inn ; for I have known Barons of the Exchequer (that were not of
the Coif, and yet had judicial places and voices) remain in the houses of
Court whereof they were fellows, and wore the habit of apprentices of the
law." — ^xxiv.
''■ See on this, post, ch. viii.
^ See ante, p. 39, and address to the new Serjeants called 18th November,
1648.— Whitelock's Memoir, 356.
* No person appointed a Judge of either of the said Courts shall hence-
forth be required to take or to have taken the degree of Serjeant-at-law,
36 & 37 Vict. c. 66, s. 8. The alleged reason for this clause was that other-
wise all the Equity Judges would at once have had to be made Serjeants-at-law.
96 THE ORDER OP THE COIF. [Guap. 111.
Ancient con- The precise constitution of the Common Bench of the
stitution of . - . , . . , , -r\ ^ ^ •
the Common Aula Eegia does not distinctly appear, but Uugdale gives
us lists in the time of Eichard I. of Justices in Curia
Regis apud Westminster, before whom fines were levied.'
When the regular sittings of the Court at Westminster
Hall had been fixed, the work of the Judges seems to have
much increased. A Chief Justice was appointed in 1274,^
and in 1310 the number of the Justices was increased to
six, (two Courts sitting at the same time,^) was again
increased in 1313, a seventh Judge being appointed;
and in the succeeding reign, that of Edward III., the
number of Judges varied — sometimes as many as nine
being appointed, sometimes seven.* For nearly a century
afterwards the number of the Common Bench Judges
was five, but in the time of Henry YI. there was again
a more numerous Bench of Justices, the number in that
reign and the next varying from five or six to seven or
eight ; and the salaries of the Justices seem to have varied
very much, probably depending on the increase or
decrease of business, the Chief Justice of the Common
Pleas in 1362 and for a long time afterwards being
allowed double the amount of the salary paid to the Chief
Justice of the King's Bench.*
In the picture in the frontispiece of the Court of
' Orig. Jut. Chron. series, suban. 1196.
"^ Gilbert de Preston, Dugd. Chron. 1274, of whom see Foss, Dictionary,
p. 537.
' " Et covient que taunz y soient, pur ceo q'il coTent aver deus places pour
le multitude des plez, que plus est ore que unques ne fust en nuly temps."
Glaus 3, Ed. 2, in dorso m. 21, cited in Dugd. Orig. 39.
* Dugd. Orig. 39.
" In 1279 the salary of Thomas de Weyland, Chief Justice of the Common
Pleas, was only £40 per annum, and the other Justices there 40 marks. This
continued in proportion in both Benches till 1362, 25 Edw. III., when the
salary of the Chief Justice of the King's Bench fell to 50 marks, while that
of the Chief of- the Common Pleas was raised to 100 marks. Dugd.
Orig. 204.
Chap. III.] THE BAE OF THE COMMON PLEAS. 97
Common Pleas in the time of Henry VT. it will be seen
there are seven Judges on the Bench.*
The sittings of the Courts, in the age we have been just Time of
referring to, were not of long duration, generally occupy-
ing about three hours, the Courts not being open in the
afternoon, the Judges usually sitting from eight in the
morning till eleven ; thus carefully attending to the in-
junctions against keeping their Courts open at unlawful
hours,^ whilst the suitors were left free to get timely counsel ^
and the Judges to improve the occasion by innocent
mental relaxation.*
The Common Pleas Bar, thus constituted, formed from The advan-
the first an institution not only based on sound principle old Common
but practically unobjectionable. So far as it was exclu- ^"^ '"^"
sive, it really accorded with usages always deemed con-
ducive to the general good — those which helped every one
fairly to secure the most effective aid in every emergency.
The rule which confined the advocate's work in the
Common Pleas to those of the rank and degree of the
Coif, was certainly no more unreasonable than the
excluding altogether from the ordinary practice of the
law all persons not duly called to the Bar, or admitted
^ Sometimes one of the Judges of the Common Bench was appointed to
act as Chief Baron of the Exchequer, performing the duties of both offices.
This was the case with John Ivyn or Ireyn in 1423. Acts Priw Council,
111, 71.
" As to the Horae Juridicse, see 1 Coke's Inst. 185 a, 2nd Inst. 264, 5.
"It is an abuse that pleas are holden upon Sundays, or other days
forbidden, or before sun-rising, or in the night time."—' Mirror of Justices,'
c. T. § 1, art. 3.
' " The suitors of the Court betake themselves to the Pervise to advise
with the Serjeants-at-law and other their counsel about their affairs."
— Fortescue, De Laud. Leg. Angl. c. li. p. 120.
* " The Judges when they have taken their refreshments spend the rest of
the day in the study of the laws, reading of the Holy Scriptures, and other
innocent amusements at their pleasure. It seems rather a life of contempla-
tion than of much action. Their time is spent in this manner free from
care and worldly avocations."— Fort. De Laud. c. li. p. 121.
missioners.
98 THE ORDER OP THE COIF. [Chap. III.
as solicitors ; ^ or confining the practice on circuit or at
sessions to those specially from the Circuit or Sessions
Bar ; or those other regulations of a necessarily restrictive
character made by the Bar, or the leading members-
practising only in particular Courts, with the view not
merely to their own convenience, for the practice has
been well proved to operate pro bono publico.
Report of the The Common Law Commissioners very distinctly
Law'com- pointed this out in their report in 1834, where it is
stated that the privilege so enjoyed by the Serjeants was
in every way unobjectionable : the public being pro-
tected from the evils which attend monopoly, whilst the
advantage of a distinct Bar in the Court of Common Pleas
was secured — avoiding the inconvenience of the atten-
tion of Counsel being distracted with engagements in
two places at the same time, thereby causing many
disasters and much disappointment, and cost of time and
money.
No writer on legal subjects, with one single exception,
ever suggested a doubt as to the immemorial existence of
the practice of the Common Pleas, and of the privileges of
the Serjeants-at-law — the legitimate Bar of the Court —
the ancient Bar of England. Lord Campbell however,
in one of his biographical volumes, goes out of his way
' See 6 & 7 Vict. c. 73. A species of monopoly — conducive to the
interests of the Bar as well as the pubUc — exists in the Circuit system, which
confines Barristers to one Circuit, and excludes from practice aU who
are not duly admitted members, or specially retained. Eules of a similar
character apply to Quarter Sessions, and it is not a very long time
since, in some Courts of Quarter Sessions, this " Bar monopoly," if it can be
so called, was first established. Lord Campbell took great credit to himself
for establishing the Bar monopoly at the Monmouthshire Quarter Sessions,
soon after he joined the Oxford Circuit. [See his own statement arguendo
in the Serjeants' Case. Manning's Report, p. 125], and there are many
instances of such exclusive audience being established in more recent times,
e.fj., in Cornwall, in Wales, at Oxford, &c. See Manning, ubi su^.
Chap. III.] VAEIOUS ATTACKS ON THE SERJEANTS. 99
distinctly to assert that the Serjeants-at-law unwarrantably
obtained their monopoly in the Common Pleas in the
time of Edward I.'
In 1775 a Chief Judge of the Common Pleas, not Attacks on
perhaps of the highest stamp, and with a lurking feeling leges of thJ''
of enmity to the Serjeants-at-law who practised before S^^'J^^^'^s.
him, projected a scheme for taking away their privileges
by Act of Parliament, and seems actually to have
prepared a bill for the purpose, studiously concealing
his scheme from the Serjeants. The rest of the Judges
at Westminster Hall set their faces against the proposed
change, and the bill was withdrawn from public at-
tention,^
In 1834 there was a very remarkable proceeding on Royal man-
the part of the then law oflficers of the Crown. An i834. ^"
attempt was suddenly made to alter the ancient consti-
' In the life of Ralph deHengham, a Judge of the time of Edward I., Lord
Campbell, after making a variety of misstatements, to which attention has
already been directed (see ante, p. 10, note 1,), adds in a note the following :
" It was to conceal the want of the clerical tonsure that the Serjeants-at-law,
who soon monopolised the practice of the Court of Common Fleas, adopted the
coif, or black velvet cap, which became the badge of their order." — ' Lives
of Chief Justices,' vol. i. p. 72. As Lord Campbell had in the ' Serjeants'
Case 'in 1834 (see ^os<, p. 101) such ample refutation of his misrepresen-
tations respecting the Order of the Coif, it is, to say the least of its
remarkable that he should have adhered to them in Ms book published
afterwards.
^ Sir John Willes, was Chief Justice of the Common Pleas from 1737
to 1762, during the whole of which time he appears, according to Mr. Foss,
to have been hankering after the great seal (see Foss, ' Judges of England,'
p. 738). Long under the patronage of Sir Robert Walpole, he had the benefit
of that politician's favour. Obtaining very early the appointment of one of
the King's Counsel, then getting a seat in Parliament and a Welsh Judge-
ship, he obtained as a reward for his party services in Parliament, (the
defence of the Septennial Bill,) the place of Attorney-General, and' thus
he became Chief Justice of the Common Pleas. Sir John Willes, even ac-
cording to the account of his friend Horace Walpole, seems no't to have
been of a very high moral character. See Walpole's Mem., vol. i. p. 77,
and there is ample evidence of his tricky schemes and intrigues' to' get
advancement and obtain advantages for himself at the cost of others See
Harris' ' Life of Lord Hardwicke,' vol. iii. p. 139.
H 2
100 THE OEDER OP THE COIF. [Chap. III.
tution of the Court of Common Pleas by a Eoyal mandate
under the sign manual,' dated 24tli April, 1834, and
1 This document was dated 24tli April, 1834, having the King's sign
manual, but neither seal or official signet of any kind, and it was the next
day sent through the Lord Chancellor to the Chief and other Judges of the
Court of Common Pleas, and the succeeding day, 25th April, openly read in
open Court and then entered of record. The form was as follows : —
" William E.
" Whereas it hath heen represented to us, that it would tend to the
general dispatch of the business now pending in our several Courts of
Common Law at Westminster, if the rights of counsel to practise, plead, and
to be heard, extended equally to all the said Courts ; but such object cannot
be effected so long as the Serjeants-at-law have the exclusive privilege of practis-
ing, pleading, and audience, during term time in our Court of Common
Pleas at Westminster : We do therefore hereby order and direct that the right
of practising, pleading, and audience in our Court of Common Pleas,
during term time, shall upon and from the first day of Trinity Term now
next ensuing, cease to he exercised exclusively by the Serjeants-at-law, and that
upon and from that day Our counsel learned in the Law and all other
Barristers-at-Law shall and may according to their respective rank and
seniority, have and exercise equal right and privilege of practising, pleading,
and audience in the said Court of Common Pleas at Westminster with the
Serjeants-at-Law : And We do hereby will and require you to signify to Sir
Nicolas Conyngham Tindal, Knight, our Chief Justice, and his companions.
Justices of our said Court of Common Pleas, this our royal will and pleasure
requiring them to make proper rules and orders of the said Court, and to
do whatever may be necessary to carry out this our purpose into effect.
" And whereas We are graciously pleased, as a mark of our royal favour, to
confer upon the Serjeants-at-Law, hereinafter named, being Serjeants of
this present time in actual practice in Our said Court of Common Pleas
some permanent rank and place in all Our Courts of Law and Equity : We
do hereby further order and direct that Vctruvius Lawes, Thomas D'Oyley,
Thomas Peake, WiUiam St. Julian Arabin, John Adams, Thomas Andrews,
Henry Storks, Ebenezer Ludlow, John Scriven, Henry John Stephen,
Charles Carpenter Bompas, Edward Goulburn, George Heath, John Taylor
Coleridge, and Thomas Noon Talfourd, Serjeants-at-Law, shall, from hence-
forth, according to their respective seniority amongst themselves, have rank,
place, and audience, in all our Courts of Law and Equity, next after John
Balguy, Esq.,* one of our Counsel learned in the Law. And We do
hereby will and require you, not only to cause this our direction to be
observed in our Court of Chancery, but also to signify to the Judges of
our several other Courts at Westminster that it is our express pleasure
that the same course be observed in all our said Courts. Given at Our
Court of St. James, this 24^ Bench or Common Pleas) could at no time have
had so much work to dispose of when actually sitting in
Banco as when performing the work of the Justiciarii
Itinerantes, or sitting at Nisi Prius.
Arduous Those who were appointed to make their iter, or,
labours of the . ■ 7 7 yr • i i j.i
Judges. to use the old expression, to ride the Circuit, had the
most serious labours of the Judicature to perform. The
itinera extending to every assize town in the king-
dom, must, when travelling was accompanied with so
many difficulties and dangers, have generally been a
serious undertaking,^ and the responsibility of the Judge
on whose personal ruling the trial was inevitably depen-
dent, was necessarily greater than when he was sitting in
Banco with other Judges.
The legal To effectually carry out the principle of bringing home
qualifications . , . , , ■, , ii i
required. justice to every mans own door — to secure the due
administration of the law in itinere as on the one Bench
or the other it was a sine qua non that the circuit judges
should be appointed from the ordinary judicial staff or
from the old and recognised order of Lawyers, the Ser-
jeants of the Coif: and' until a comparatively modern
time the circuit commission could not be opened, the
assizes taken, the nisi prius causes tried, or the judicial
business performed without the Judges assigned were
Justices del un Banc ou del autre ou Serjeant le Roy
it gave to all the Bar free right to appear in the Conunon Pleas in New Trial
cases, preseryed for the most part the ancient privileges of the Coif; but the
law officers of the Crown seem to have discouraged these measures, and they
fell to the ground.
' Chief Justice Dyer, addressing the newly created Serjeants in 1579,
advises them " to be discreet, to ride with six horses and their sumpter on long
journeys, to wear their habit most commonly in all places at good assemblies,
and to ride in a short gown." — Order for making of new Serjeants created
and made in an. 19 & 20 Eliz., Dugdale's Orig, 119.
Chap. III.] SERJEANTS IN THE CIRCUIT COMMISSIONS. 103
jurree ;^ and from the first institution of Circuit Judges
— the Justiciarii itinerantes under the law reforms of
Henry II., and the Commissioners of Assize, Nisi Prius,
Oyer and Terminer, etc., regulated by subsequent statutes,
the services of the Serjeants-at-law were always called in
to act in aid or substitution of the ordinary Judges.
Chaucer's oft-quoted lines about the Serjeant-at-law being
Justice of Assize,^ shows that such was the usual practice
in his time ; and our old poet was able to speak with
accuracy, for he was actually a member of the Inner
Temple in 1340. Some of the circuit commissions
seem to have had no other names in the quorum except
Serjeants, who on such occasions were the only Justices
of Assize.^
Notwithstanding all the innovations made- in our
judicial system by the Judicature Acts, they have not
' Ante, pp. 38, 39. The words of the 14 Edw. III., c. 16, are, " S'il averque
qe mil des Justices del un Bank ne del autre ne puisse vener en pais la
ou enquestes et jurrees sont aprendre adonques soit le Nisi Prius grante
devant le Chief Baron del Exchequer s'il soit homme de ley et eit am tieu
poair come les Justices del un Bank ou del autre ont par cest estatut. Et
en cas qe mil des Justices del un Bank ne del autre ne le Chief Baron del
Exchequer qi soit homme de lei ne vienne en pais ou les enquestes et
juiree sbnt ou serront apprendre par le Nisi Prius adonq soit le Nisi
Prius grante devant Justices assignes a les assizes prendre en celle parties
issiut toutes foitz qe xm des ditz Justices assignez soit Justici del un Bank
ou del autre ou Serjant le Eoy jurree et que mesmes les Justices, autieu
poais come devants e'st del des Justices del un Bank et del autre. — M Edw.
III., c. 16.
^ " Justice he was ful often in assise ;
By patent, and by pleine commissiun."
' Canterbury Tales,' quoted, ante, p. 3.
' The Chronica series of Dugdale affords ample evidence of this, e.g. in
1310 the only Judges of Assize spoken of are Roger de Scotre and Edmundus
Passelegh, Servientes ad legem, and not long after one of the order, who is
designated by Coke as " a man of singular judgment in the laws of the realm,"
appears for many years successively as Judge of Assize, with no other
qualification than that of Serviens ad legem. Robert de Thorpe, the Serjeant
referred to, became Chief Justice of the Common Pleas in 1356 and Lord
Chancellor in 1371, but for many years before he had a seat on the Bench
at Westminster Hall he was Judge of Assize.
104 THE ORDEB OF THE COIP. [Chap. III.
really abolislied either the Order of the Coif, or the
qualifications of Serjeants-at-law to be appointed ordinary-
Judges or Justices of Assize. The names of Serjeants-
at-law are still to be placed in the assize commis-
sions, as in ancient times, when the law required the
Quorum in the assize commissions to be constituted of
members of the Coif; and on a very recent occasion it
was found most convenient for the public service, under
an unlooked for emergency, to specially appoint a Judge
of Assize whose personal qualifications and position
eminently fitted him for the appointment, but who
derived his legal qualification for the appointment from
his being a Serjeant-at-law.^
Province of The business of the Serjeants-at-law on the circuits was
the Serjeants p , /•t,,i- ^ p -i-
or circuit. oi course not connned to their work oi assisting m a
judicial capacity. Standing as they did for so many ages
as the leaders of the Bar, their duties as advocates fully
compensated them for their arduous and costly labours.
Even up to the early days of the writer of this work,
not only was there on nearly every one of the circuits a
Serjeant-at-law indisputably the leader, but one whose
services were estimated at a higher rate than the most
famous of the ordinary leaders of the Bar.^ Changes,
however, have indisputably taken place, and we must be
' In tMs case, that of Sir John Mellor, already referred to, ante, p. 38, it
■will be seen that the appointment of Judge of Assize was made from those
who had retired from the Bench, had ceased of course to be Queen's Counsel,
but legally remained Serjeants-at-law.
'^ In 1834, when the case of Small v. Attwood was pending, and Sir Edward
Sugden, the retained leader in that famous case, returned his brief on being
made Lord Chancellor of Ireland, Serjeant Wilde was after some negotia-
tion engaged as leader in his place. The careful clerk of this famous
Serjeant, finding that an engagement in the case would preclude his at-
tending circuit, returned his brief, marked with the handsome fee pro-
posed to be given to Sir Edward Sugden, explaining that it could not be
accepted without detriment to the Serjeant's position on circuit, and with
the full concurrence of all concerned, the fee was increased accordingly.
Chap. III.] PEOVINCE OP SEEJEANTS ON OIECUIT. 105
content with the change, for better or for worse — tempora
mutantur, nos et mutamur in illis.
Serjeant Wilde, who Lord Tenterden spoke of as having
industry enough to succeed without talent and talent
"enough to succeed without industry," was not the only
learned Brother of the Coif who in modern times led his
circuit, and was the great card to get. We need only
mention the late Serjeant Byles, Serjeant Shee, Serjeant
Talfourd, Serjeant Wilkins and Serjeant Parry ; and
Serjeant Ballantine, who is still amongst us, to call to
mind names not likely to be forgotten on their several
circuits or in the Law Courts, or in the legal world.
106
THE ORDER OP THE COIF.
[Chap. IV.
CHAPTER IV.
Oidinance of
20 Edw. I.
Attorneys
and appren-
tices dealt
with as one
class.
DE ATTORNATIS ET APPRENTICIIS.
Attached to the Parliament Eollof 1292 is an ordinance
with the above heading, directing the Justices of the
Common Bench to select a certain number from every
county de melioribus et digniorihus et libentius addiscenti-
bus, as they might deem most suitable for the public
advantage and the service of the King's Court, to attend
to the business there, to the exclusion of all others ; the
King and his Council suggesting the number of seven
score of such persons ; but giving the Justices power to
increase or diminish the number at their discretion.^
Attornati et apprenticii are here dealt with, if not as
altogether forming one class, at least as forming one single
subject for legal regulation ; the attornati being placed
foremost. We shall see how, in the course of time, the
attorneys and apprentices of the law came to form two
very distinct classes, the class of apprenticii ad legem
coming first, and gradually embracing not only the learners
but the learned, the sages gentz, the counsellors, the
^ " De attomatis et apprenticiis Domiims Rex injunxit I. de Mettingham et
sociis suis, quod ipsi, per eonim discretionem, proTideant et ordinent certuin
numerum de quoHbet comitatu, de meUoribus et dignioribus et libentius
addiscentibus, secundum quod intellexerint, quod curise suae et populo de
regno melius valere poterit et majus commodi fuerit ; et quod ipsi, quos ad
hoc elegerint, curiam sequantur, et se de negotiis in efi.dam curifi intro-
mittant et alii non. Et videtur Regi, et ejus concilio, quod septies viginti
sufflcere poterint ; apponant tamen prsefati justiciarii plures, si -riderint esse
faciendum, vel numerum anticipent. Et de aliis remanentibus, fiat, per
discretionem eorundem Justiciariorum," etc. — 1 Rot. Pari. 84.
Chap. IV.] POSITION OF APPRENTICII AD LEGEM. 107
apprenticii ad Barros, who constituted with the older
order of the Serjeants, the Bar, whilst the attornati came
to occupy a prominent place for many ages subordinate
to the Bar, and, governed by no system of regulation,
except those which from time to time special statutes, or
the reguloB generales of the Judges, prescribed. We have
to consider these various regulations as they gradually
came into operation, reversing the order adopted in the
ordinance, and giving the first place to the apprentices
of the law.
The ordinance de attornatis et apprenticiis seems to be The appren-
. - , . •PI • /• 7 1 tice of the law
the first authentic notice of the apprentices of the taw, notpre-
as legal practitioners. What the class then consisted of Jecogmsed
it is of course not easy now to say. The date of the P™ctitioner.
precept is long before the institution of the Inns of
Court, and it may be that by the " apprentices " were
meant the advanced students or learners of the law who,
as pupils or assistants of the Serjeants of the Coif, had
obtained an insight into practice, and perhaps also there
were included the more irregular followers of the law —
the dilettante practitioners and Cleri Causidici, already
referred to as continuing to follow the law in the
secular Courts in spite of repeated prohibitions and
objections.^
At the time of the publication of the ordinance relating Institution of
to the apprentices of the law, apprenticeship was be- ship.
coming an indispensable qualification for nearly every
calling, and the guilds and trade associations in every
city and town were gradually prescribing rules for
enforcing the system. We shall see how the Lawyers'
'The prohibitions against the clergy practising as advocates in the
Secnlar Courts date back to 1164 ; but it was more than a century before
these irregular practitioners were got rid of. See ante, p. 10.
108
THE ORDEE OP THE COIF.
[Chap. IV.
Restrictive
rules.
The class of
apprentices
of the law.
guilds or societies in their hostels or Inns acted on the
principle of the guilds of traders in keeping up a sort
of monopoly, and shutting out intruders by very re-
strictive rules as to admission and the duration of the
legal apprenticeship ; how the ancient usage of seven
years' term of apprenticeship was strained in the case of
the apprentices of the law, so as to make the required
period at least twice, and in some instances thrice, as
long as the more ancient custom prescribed ; how many
years it took before the apprentieius ad legem became the
apprenticius ad Barros,^ how many years before the
latter could be elected Eeader, and what were the rules
as to the Readers and Double Readers whose lucuhrationes
viginti annorum at last made them eligible to be created
Serjeants-at-law and Judges.
The apprentices of the law were no doubt a well-
known class long before the existence of the Lawyers'
Hostels, and obviously before the time of the Ordinance
de Attornatis et Apprenticiis, but they were probably
' See on this subject a note by Selden to c. 8 of rortescue, (de laudibus,)
p. 15, note (2), where he quotes the following lines from an old copy of
Home, ' Mirror of Justices,' in the library of Corpus Cantab. : —
" Hanc legum summam, si quis vult mera tueri,
Perlegat, et sapiens si vult orator haberi.
Hoc apprenticiis ad Barros ebore munus
Gradum juridicis utile mittit opus.
Horn mihi cognomen, Andreas est mihi nomen."
These lines certainly tend to make both the writer and the apprenticios ad
barros appear ridiculous. The graduating among the apprentices in the
Hostels was, according to Coke (Preface to 3rd Eeport) and Dugdale
(Orig. 144) very slow. The Tyros after about eight years' continuance as
mootmen (three of such years attending exercises in the Hall) were eligible to be
included in the annual call of Utter Barristers, who had still to wait three
years before they could presume to appear at the Bar in "Westminster Hall
(Dugdale, Orig. 318). Only Utter Barristers of twelve years' standing were
eligible to be Benchers ; and these, when of ten years' standing, might be
chosen Eeaders and Double Eeaders, from which latter class alone the
Attorney-General and the Law OfiBcers of the Crown and the Serjeants-at-
law were selected. — Dugdale, 320, 321.
Chap. IV.] RECOGNISED LEGAL PRACTITIONERS. 109
regarded rather as tyros than experts, non eruditi sed
studentes,^ and are so mentioned in the ancient record of
Thavies Inn, which Coke was in the habit of referring
to ; ^ and quite in conformity with this we find the
apprentices en hostels for many ages after the institu-
tion of the Inns of Court looked upon, not as qualified
legal practitioners, but as learners, confining their practice
to the scholastic meetings and exercises in the Hall of
their Inn.^
The apprentices of the law are nowhere recognised or Recognition
expressly referred to in our statute book as authorized practitioners.
legal practitioners, like the Serjeants-at-law or the
Attorneys-at-law or the modern " Barristers " and
Solicitors. Apprentices of the law were in time held
to come within the very general words used in the old
statute relating to malpractice,* and the words sages
' In Barrington's ' ObserTations on the Ancient Statutes/ p. 311, apprentice
en ley is pedantically said to be a corruption otappris en ley. We have before
had occasion to remark on other conceits of the Honourable Daines Barrington,
see ante, p. 28, and it is hardly necessary to discuss this attempt to make
apprentice pass for appris. As to the yarious kinds of legal apprentices, see
further, post, p. 111.
^ The will of John Tavye is recorded in the Court of Hustings, in the City
of London, in 1249, where the property devised is called " illud hospitium
in quo apprenticii ad legem habitare solebant." In Coke's Preface to lOfch
Report he cites this will to shew how long the place had been an Inn for
law students.
An amusing writer of the seventeenth century — Sir George Buc — tells us
how Lord Coke shewed him the transcript in his possession of the will of
the honest citizen and armourer of the time of Edward III., grandly
describing his Inn in Holborn as the place then occupied by the apprentices
or students of the law. — Sir George Buc in Howes, p. 1074, ed. 1631.
= In a case in the Tear books under date of 11 Edw. II., 1318, we find on
an exception taken at the Bar of the Common Bench, Ingleby, one of the
Serjeants, he was answered by two others, Wille and Skypwith, that such
an exception had never been taken there, but that they heard it ofttimes
entres les apprentices en hostels.— Year-book, Edw. II.
* If any Serjeant Counter or other do deceipt or collusion, he shall be
imprisoned for a year and a day, and never after be heard to plead. 3 Edw. I.
C.29.
110 THE OEDER OF THE COIP. [Chap. IV
gentz ' in the statutes relating to champerty and main-
tenance of suits passed a few years after the ordinance
de attornatis et apprenticiis, but there is small ground
for assuming that apprentices of the law formed a
regular class of practitioners in 1300 ; nor any cause,
or justification, for taking literally Fabian's statement,
carelessly quoted by Dugdale and others, about the
ordinance of Edward III.^ requiring the Serjeants and
Prentyses at law to plead their pleas in their mother
tongue. In Fabian's version of the ordinance was a
translation of the word " pledours " in the ordinance of
1362, into the word prentyses, the word in common use
when Fabian wrote.
Gradual Though it is thus very clear that the term apprentice was
changes • i i i p • • ^ • •
among the in the legal profession, as m other cases, originally used
thekw!°^^° to designate learners, and that such was its legitimate
meaning when the Inns of Court and Chancery were
first established, yet no long time afterwards we find
the more advanced and distinguished apprentices of the
law forming a class of themselves, fully recognised at
Westminster Hall and by the Legislature.
Effect of the The institution of the Inns of Court ^ tended altogether
Inns of Court, to raise the position of the apprenticii ad legem, who
^^'^' towards the end of the fourteenth century appear to have
become a body of considerable importance, the great
apprentice at law ranking next after the Serjeant-at-law,
^ " Nest mie a entendre qe home ne poet aver consail de Contours et des sages
gentz pur son donant." 28 Edw. I. c. 11. Coke says that the provisions
of this Act extended to apprentices of the law (when they came to act as
Counsellors), but this cannot in any way be quoted to shew that the appren-
tices of the law acted as Counsellors in 1300.
^ The Statute 36 Edw. III. c. 15, speaks of Serjeants et autres pledours, and
Fabian, who wrote two centuries afterwards, when it was the fashion to call
all pleaders learned apprentices of the law, so designates the pledours of
his time.
' See next chapter.
Chap. IV.] VARIOUS aRADES OP LAWYERS. Ill
the apprentices being divided into three classes : — (1) the
great apprentices of the law, or noUliores ; (2) other ap-
prentices following the law ; and (3) apprentices of less
estate, and attorneys.^
And this classification of the apprentices of the law Various
seems to have been well known in the fifteenth century, apprentices of
Selden's explanation of the expressions "grandes ap- ^ *^*
prenticii " and " apprenticii nobiliores " is that they were
the members of the higher Inns — the Inns of Court
as distinguished from those of the Inns of Chancery.^
These apprenticii nobiliores seem to have long enjoyed
special distinction in the City of London, one of the
sacred books of the Guildhall, Liber Albus,' laying it
down that the Eecorder of the City of London should
be, and of usage has been, one of the most skilful and
most virtuous apprentices at law in the whole king-
dom ; ^ and the high position of these apprentices of
the law seems to have subjected them to the special
dislike and outrage of the lawless mob in times of civil
disorder.*
Dugdale speaks of the apprentices of the law as if the Apprentices
term then always meant a pleader/ However this may practitioners.
' See 3 Eot. Pari. 58, 1379, where there is an entry of a subsidy granted,
with an assessment of the legal profession classified as follows :
Judges.
s. d.
Every Serjeant and great apprentice at law . . . each 40
Other apprentices who follow the law . . . . „ 20
Also all the other apprentices of less estate, and
Attorneys „ 6 8
—3 Eot. Pari. 58, 1879.
= Note (c) to Fortescue, de 1. d. c. xUx. 111.
' Liber Albus, by Riley, 38.
* See post, -p. 112, n. 3.
° The words of the old writer, Thomas of '^alsingham, in describing the
attack of the rebels on the Inner Temple in 1381, were " etiam locum qui
vocatur Temple Bar, in quo apprenticii 'jwis morabantur nobiliores irruerunt."
" The word apprentice doth signify a pleader only ; as it doth also (I think)
112 THE ORDER OP THE COIF. [Chap. IV.
be, it is clear that it had such a meaning in the fifteenth
century, if not before,^ and that " learned apprentices of
the law" was then used to designate some of the most
distinguished men of law ; certain it is that the term
" apprentice of the law " during the fifteenth century had
acquired a meaning different from that which before
belonged to it. To be a " learned apprentice of the law "
was to occupy a very important position, and we find
the expressions most learned, most famous, or most
skilful, or most virtuous apprentices of the law, applied to
distinguished members of the profession not only whilst
in actual practice, but on being raised to the Bench, or
taking the coif,^ or holding important offices, such as
Eecorder of London,^ or the King's Attorney-Greneral.*
Position of The position of a famous apprentice of the law in the
prenticerof fifteenth century was no doubt a very good one, and
the law.
in Mich. 2 H. 6, fol 5a, where it is said, " Une apprentice Tient en la Com-
mune Banke." — Orig. c. 55, p. 143. Dugdale's authority on this subject will
hardly weigh against Selden, already quoted.
' In 5 Rich. II., 1381, the Commons pray that two justices, two Serjeants,
and four apprentices at law, be appointed to inquire into grievances from
delays in law, etc., (cC) and at the same Parliament it was ordered that " as
well the Clerks in Chancery of the two principal degrees (e), justices and
Serjeants, and all the barons and great officers of the Exchequer, and also
certain persons of the best apprentices of the law, shall be charged by their
allegiance and by oatfi, each degree by itself to advise themselves diligently
of the abuses, wrongs, and defaults, etc., done or used in their respective
' places,' and in the King's Courts, and also in the Courts of other lords
throughout the realm, etc. (/).
^ In 1416-^ Hen. V. — Serjeants' Inn, Chancery Lane, was demised under
the name of Farringdon Inn, Chancellors' Lane to Bogero Eorton et Will.,
Oheyne Just, et Walter AsJiham, apprentices legis, though they were all
Serjeants-at-law. See Dugdale's chron. ser. 57.
' " The Recorder of the City of London should be, and of usage has been,
one of the most skilful and virtuous apprentices at law in the whole king-
dom." — Liber Albus, p. Ill ; c. xv. p. 38.
* William Babington, the King's Attorney-General in 1414, was one of the
grave and famous apprentices of the law mentioned in the Parliament Roll
of 1416 as required to take the state and degi-ee of Serjeant-at-law. See
post, p. 113.
Chap. IV.] COMPULSORY CALL OF SERJEANTS. 113
would perhaps be reluctantly given up altogether for a
judgeship, the tenure of which in those days was merely
durante bene placito, and we have in a record of the reign
of Henry Y. a remarkable proof of this state of things.
In 1415, whilst the King was occupied in the French Obligation lo
war, and his brother John, Duke of Bedford, was Eegent
or Protector here, there were five grave and famous
apprentices of the law who had writs of summons directed
to them in due form to serve the King's people by taking
on them the state and degree of Serjeants-at-law, and,
having in vain tried to excuse themselves from giving up
their more profitable and securer position as apprentices
of the law, they were cited to attend the Parliament to
explain their conduct, and at last were induced to take
the coif by the persuasion of Parliament and of the
imperious Regent, as little accustomed to be disobeyed in
England as in France.^
' The Parliament Roll of 5 Hen. V. n. 10, has the following entry : —
"L'ASSUEANOB OB CEUX QI SONT NOMBZ d'ESTEE SeEJEANTS DB LA LeT.
" Fait assavoir, qe combien sur grande compleinte fait a nostre tressoverain
seiynieur le Roy, de ceo qe les gentz de Boialme en lour suites, mutiers, et causes
moevez et pendantz en les Courtz n'eussent si bene esploit come ils soleient avoir,
per cause de si petit nombre qe y fuJit des Serjeantz de la Ley, a tres grande
de sayse, meschef, et damage de son people. Mt nestre dit soverain Seigneur
voillant oustier tieux meschiefs et damages, per advis de son conseil, fist appeller
longe temps passee, certeins Apprentices de la Ley, et lour fist enj'oindre es-
troifement de prendri Vestat de serjant pur I'ayse et seurtee de toutz ceux
(favoient affaire en ses courtz, avanditz ; cest assavoir John Martyn, William
Babington, William Pole,. WiUiam Westbury, John Ivyn, and Thomas
Rolfe ; nient mains ne ont- ils par ceo mys en execution, come Vonourable et
puissant Prince, le Due de Bedford, Lieutenant du Roy ud, per vraie en-
formMion ore entendu ; mesme le Lieutenant eiant a tout ceo consideration, del
assent des seigneurs Espirituelx et Temporelx assemblez en ceste present Par-
liament, fist venir devant eux illeoques en Parlement le xxiiii. jour de i^uvemhre,
qefuit le via. jour de mesme le Parlement, les dits Apprentices et eux enjoint de
per le Roy sur grande jieine, de lour haster u, la prise de tiel estat sanz ascun
dtlaie. Mt puis cest assavoir le quint jour de Becembre, qe fuit le xx. jour du
dit Parlement, viendrent mesmes ceux Apprentices devant les diiz Lieutenant et
seigneurs en Parlement, et prierent de grace quils purroieiit estre respitez cette
partie, tanq, a le Terme de la.tresseinte Trinite procliein avenir, et promistrent
114
THE ORDER OF THE COIP.
[Chap. IV
Plowden and
other famous
apprentices
of the law.
Disuse of the
term appren-
tices of the
law.
Apprenticius
ad Bairos.
The great lawyer, Serjeant Plowden/ who was called
to the Coif in 1558,^ rejoiced in his older designation of
the learned apprentice of the law, and such designation
seems always to have been adhered to by his family, and
to have been used on the title-page of ' Plowden's
Commentaries,' published during his life ; ^ and other
famous apprentices of the law continued to be so called
long after they were raised to the Coif.
By the time that such famous apprentices of the law had
made that designation an enviable one, it had very much
changed from its original meaning, and had become
almost synonymous with Pleader or Counsellor, the
junior apprentices only being regarded as learners,
whilst the Apprenticius ad Barros gradually got the name
first of Utter-Barrister,* and then Barrister-at-law ; those
not called to the Bar being counted merely as students,
and the older name of apprentice of the law got into
et asseurerent de la perfourmer a celle temps sanz outre, delate ou excusation
geconq ; sur quay et bone deliheratione suz certeins causes et matiers, per mesntes
ceux ApprenticfS, devant eux monstrez et declarez, le dit Lieutenant, del assent
avant dit, Pavoit admys et gi-auntee come ils ont desirez, issint q'ils esterront
a le grace de Roy, s'ils ne le perfourment come ils cnt promys et asseurez."
These famous Apprentices de la Ley thus found more than their match in
the famous John, Duke of Bedford, a Eegent who ruled in Englajid with a
rod of iron and, to use a French king's words, "pendant sa vie faisoit
trembler, tous les Francois." All of the famous apprentices seem in after
life to have made their mark as Judges or otherwise. See Coke's 2nd
Institute, p. 214 ; Dugdale's Grig. c. xli. ; Chron. ser. 58. Some of the
proceedings appear in Cotton's Eecords, 353, and Eot. Glaus., 2 H. Vm.
Hot. Pari, 5 H. V., n. 10.
• Miss Strickland correctly so calls him, vol. iii. p. 544; and in the in-
scription of the portrait prefixed to one edition of his Commentaries,
published in 1761, said to have been taken from an old monument in the
Temple Church, he is properly called Edmund Plowden, Serjeant-at-law.
' The date of his Serjeant's writ was 27 April, 5 & 6 Philip & Mary.
' Serjeant Woolrych quotes from the history of Shrewsbury a reference
to Mr. Sandford, who is called "brother-in-law to Mr. Ploden learned in
the lawes." — ' Lives of Eminent Serjeants,' vol. i. p. 124.
* The 21 Jac. I. c. 23, s. 6, refers to Utter-Barristers of three years'
standing.
Chap, IV.] COUNSELLORS AND BARRISTERS. il5
disuse, the Serjeants, the Benchers and ancients, and
Barristers being again all called, as in old times,
" Counsellors," and together constituting the English Bar.
The number of men called to the Bar at the Inns of Restrictioua
Court under the old regulations in comparison with the number of
practice of modern times was indeed verj small. The 2»'^'i^*«'s-
regulations as to attendance during term time, and
performing exercises, prevented the call of idle or
incompetent men, and the order of the Judges even in
the seventeenth century still more prevented the over-
crowding the ranks of the Bar.*
' "By the orders of the Judges duly empowered for the purpose in
November, 1550 — 1 Eliz. — exhortation was to be given to the Utier Bar that
none should come to any Bar at Westminster, and specially to the Chancery
or Whitehall, under ten years' continuance." — Dugdale, Orig. p. 311. And
further orders, still more restrictive, were made in 1574 and 1594. See
Dugdale's Orig. c. 70. And by general arrangement of the Judges and
Benchers, made at Serjeants' Inn on the 20th of June, 1596, it was
provided :
" That none be admitted to the Barr, but only such as be at the least
seven years' continuance, and have kept the exercises within the House,
and abroad in Innes of Chancery, according to the orders of the House.
" Item, that there be in one year only four U(ter-B'!rristers called in any
Inne of Court (that is to say), in Easter Term, two ; and in Michaelmas Term,
two ; where by the orders of the House the Benchers call Utter Barristers
and where the Headers by the order of House do call, then only two by the
Summer Header in his Beading, and two by the Lent Header in his Beading."
—Dugdale, Orig. c. 70, p. 316.
The orders for the reformation and better government of the Inns of
Court and Chancery made in November, 1624, were in the same direction :
" For that the over-greate multitude in any vocation or Profession does
but bring the same into contempt; and that an excessive number of
lawyers may have a farther inconvenience, in respect of multiplying of
needless suits ; it is therefore ordered that there shall not be called to the
Barr in any one year, by Beaders or Benchers in any one Society, above the
number of eight, or according to that proportion, being of continuance and
having done the exercises, according to the Orders of the several Houses.
" For that the over-early and hasty practice of Utter-Barristers doth make
them less grounded and sufficient whereby the Law may be disgraced and
the Clyent prejudiced; therefore it is ordered, that for the time to come, no
Utter- Barrister begin no practice publickly at any Bar at Westminster until
be hath been three years at the Bar; except such Utter- Barristers that
have been Readers in some Houses of Chancery." — Dugdale, Orig. c. Ixx.
pp. 117, 318.
T 2
116
THE ORDER OF THE COIF.
[Chap. IV.
How far the Long before the term apprentice of the law had come
acteTa?^'' into disuse, a separation had taken place between the
attorneys. apprentices and the attorneys. What had been the
precise position in old times of apprentices entitled to
practise : whether they acted only as advocates and
Counsel, or merely as attorneys; or usually in both
capacities, it is not at this distance of time easy
to say.
Serjeant Manning quotes a record of 1337* to prove
that the apprentices of the law then usually practised as
attorneys, and were privileged in that character ; but this
Case of John record hardly proves the statement. John de Codyngton,
ton.° ^"^" in the record cited, no doubt appears to have been both
an apprentice of the law and attorney, but he may well
have had the latter position from holding office under
the Crown or otherwise, for he appears to have been at
one lime in a high official position,^ and could hardly be
counted among the common attorneys in the old ordinary
sense of that term, i.e., attorney for any who would
engage him.
' " To our Lord the King and his Council, shews John de Codyngton, an
apprentice of the Court of our Lord the King and Attorney, that whereas the
said John has no lands or tenements, and never was armed for peace or
for war, Sir (Monsieur) John de Eos, Admiral of our Lord the King, by
procurement, has commanded him that he be weU and completely (bien et
nettement) armed and apparelled as a man at arms, at Orewell, on Wednes-
day the 17th day of March ; and that, upon pain of being hanged ; and if he
come not, to proclaim that he is a rebel, and so cause him to be attached
and sent to the next gaol ; which would be in disherison of his clients for
whom he is attorney, and in destruction of himself, whereof he prays
remedy."
Answer. — "Inasmuch as it is testified before the Council that he is an
attorney, let it be commanded to Sir (Monsieur) John de Ros, or his lieu-
tenant, that they surcease from the demand which they make against him,
and from the distress which they do to him, for this cause."— Petitions in
Parliament, 11. Edw. III. of Rol. of Parliament, 966; Ryle, p. 658.
* At the time referred to, 1350, John de Codyngton was actually Clerk of
Parliament, and may have been the special attorney or common attorney
(i.e. Attorney- General) of the Crown, or of some grandee or corporate body.
Chap. IV.] APPRENTICES AND ATTORNEYS. 117
The expression "common attorney" instead of being, Common
as it originally was, an honourable designation,* came * "'^^^y^-
to be a disparagement, and at the beginning of the
fifteenth century those who usually practised as attorneys increase in
, , 11' 11 1 • i the number
appear to have largely increased, and according to a of attorneys.
statute of 1403, damages and mischiefs had ensued to
divers persons of the realm by reason of the great
number of attorneys ignorant and not learned in the law
as they were wont to be before that time.'* The directions
given to the Judges by the ordinance of 1292,^ to select
" de melioribus et dignioribus et libentius addiscentibus,"
had in the course of the intervening century evidently
been much neglected ; and the evil of the multitude of
attorneys, their ignorance, carelessness, and misconduct
are constantly referred to by Lord Coke and others.
The expression " common attorney " coming to be a Distinction
term of reproach, the attorneys and apprentices of the law apprentices
formed distinct classes. However it might have been in °^ *^® ^^'"^
the early history of the Inns of Court, there was in time
a great distinction between apprentices of the law who
were bona fide students, or had after their proper exer-
cises attained the position of Apprenticii ad Barros^ and
apprentices of a lower degree who followed the law, and
apprentices of still less estate, who practised as attorneys;*
» Common attorney was at one time really synonymous with Attomey-
Oeneral. Such, was the old designation of the Town GUrlc or Common Clerk,
just as the ancient Pleader for the City of London got the name of Common
Serjeant or Common Counter.
« 4Hen. IV. 0. ]8.
^ Ordinance de attornatis et apprenticiis. See ante, p. 106.
* See ante, p. 114 ; and Coke's 2nd Inst. 563.
» See oMte, p. IW. In an ofBcial report on the Fellowship or Society of
the Middle Temple (temp. Hen. VIII.), it is said that " for lack of funds, for
allowances, and exhibitions, many a good witt is compelled to giTe over and
forsake study before he have any perfect knowledge in the law, and to fall
to practising and become a typler in the law."— Dugdale, Orig. c. 61, p. 193.
118
THE ORDER OP THE COIP.
[Chap. IV
Exclusion of
attorneys
from the
Inns of
Court.
Attorneys
became
officers of the
Courts.
Old statutes
and orders
relating to
attorneys.
and it came to be the practice of the higher societies,
the Inns of Court, to prohibit their members from
practising as attorneys^ under pain of expulsion, and
thus excluded from the Inns of Court, the attor-
neys had no alternative but either to go to the in-
ferior Inns of Chancery, which practically had no
control over them, or to keep altogether free from
any of the Societies ; and for many ages the attorneys
and solicitors were subject to no proper system of control
or regulation.
An act of Henry IV. directed the attorneys to be
placed on a roll of the Courts, and regulations followed,
aimed more at the reduction of the number of practi-
tioners than at their education or legal regulation. An
Act of 1455 reciting that in times past there had not been
more than seven or eight attorneys in Norwich, Norfolk,
and Suffolk, and in consequence great tranquillity
prevailed, with little tribulation on account of vexatious
suits and proceedings, whereas there were then upwards
of eighty attorneys gaining their living by paltry stirring
up suits to the detriment of the whole community, it
' By an order of the Inner Temp'e in 1558, 23rd of May, 3 & 4 P. & M.,
quoted in Dugdale, Orig. 147, no attorney or common solicitor was to be
admitted into that House without the assent and agreement of the Parlia-
ment ; and one of the orders made by the Judges by command from the
King in Council in 1635 altogether prohibited common attorneys or solicitors
from being thereafter admitted of any of the four Inns of Court.— Dugdale,
Orig. p. 192 ; see also p. 343.
The following is to be found among the orders for the government of
the Inns of Court and Chancery in 1614, confirmed in 1630 : —
"For that there ought alwaies to be preserved a difference between a
Councellor at Law, which is the principal person next unto Serjeants and
Judges in administration of justice ; and Attoumeys and SoUicitors, which
are but ministerial persons, and of an inferiour nature; therefore it is
ordered, that from henceforth no Common Attorney or SoUicitor shall be
admitted of any of the four Houses of Court."— See Dugdale Orig. pp.
317, 320.
.Chap. IV.] RESTRICTION OP NUMBRR OF ATTORNEYS. 119
was directed that henceforth there should be but seven
common attorneys in either of the said counties, and two
in Norwich.^
' The statute, 33 Hen. VI. c. 7, entitled
"How MANY AtTOENIES MAT BE IN NORPOLK, HOW MANY IN SUFFOLK,
AND IN NOKWIOH.
" Item cum de tempore a diu non elapso infra civitatem Norwici & comi-
tatus Norfolcie & Suffolcie nisi sex vel octo communes attornati ad cur
Domini Regis Divertentes ad maximum extitissent quo tempore magna tran-
quUlitas in dictis civitate & comitatibus regnabat parvaque tribulatio seu
vexatio per sectas minus veras vel forinsecas habebatur Jamque ita est quod'
in dictis civitate & comitatibus quater viginti attornati vel plures existunt
majore parte ipsorum non habente aliquod aliud vivere set solummodo
lucrum suum per dictam occupatiouem attornat ac etiam majore parte
ipsorum non existente de sufficiente scientia efifendi attornat qui ad unam-
quamque seriam mercatum & alia loca ubi populi congregatio existit
declinant populum exortantes procurantes movantes & excitantes ad sectas
minas veras sectas forinsecas sectas pro parvis transgressionibus parvis
offensis & parvis summis de debito capiendis quorum actiones sunt triabiles
& determinabiles in curiis baronum unde quamplures secte potius ex mala
voluntate & maKtia quam ex rei veritate procedunt in dictorm inhabitan-
tium civitatis & comitatuum predictorum vexationem multiplicem damp-
naque non modica necnon omnium curiarum baronum in dictis comitatibus
diminutionem perpetuam nisi de remedio in hac parte congruo provideatur.
Prefatus Dominus Rex premissa considerans de avis avisamento assensu &
auctoritate predictis ordinavit & stabilivit quod totis temporibus futuris
sint nisi sex communes attornati in dicto comitatu Norffolcie & sex com-
munes attornati in dicto comitatu Suffolcie & duo communes attornati in
dicta civite Norwici fore attornat in cur de recordo & quod omnes predict!
quatuordecim attornati sint electi & admissi per duos Capitales Justitiarios
Domini Regis pro tempore extentes de magis suflcientibus & optime
instructis juxta discretiones suas et quod electio & admissio omnium attor-
natorum qui erunt electi & admissi per dictos Justiciaries pro tempore
existentes ultra dictum numerum in comitatibus predictis sint vacuo & de
nulla actoritate neque recordo et si sit aliqua persona vel persone que
presumit vel presumunt aut usurpant vel usurpat super ipsas fore attornatos
in curiis de recordo in dictis comitatibus vel civitate aliter quam superius
specificatur & hoc sic invento per inquisitionem captam coram Justitiariis
pacts in dictis civitate sive comitatibus qui virtute istius ordinationis
potestatem inquirendi inde in sessionibus suis habebunt aut aliquo alio
modo legittime probate quod tunc ipsa vel ipse que sic presumit vel pre-
sumunt se ipsa inde legittime set convict foris faciat viginti libras totiens
quotiens tarn ad usum ipsius que proinde prosequi velit & quod ipse que
proinde velit possit habere actionem in eadem quales jacent in actiono
de ebito ad communem legem super obligatione. Proviso semper quod
ordinnatio predicta incipiat & prime sumat effectum ad sextum pasclie
120
THE OEDER OF THE COIF.
[Chap. IV.
Increasing
distinction
between the
Attornati
and Appren-
ticii.
Common
solicitors.
Course of
legislation as
to barristers
and solicitors.
The distinction between Counsellors-at-law, whether oi
the old* order of Serjeants, or of the modern Barris-
ters (Apprenticii ad Barros), and who were then classed
first in the Ordinance de Attornatis, became in course of
time still greater, and it is remarkable that this disparity
was specially relied on at the time of the Commonwealth.
The rules of etiquette already referred to, which gradu-
ally prevented the Bar from acting for suitors without
intervention of attorneys had not then come into opera-
tion. The Barristers of those days seem to have been
as free to afford them counsel as the old Serjeants-at-law at
the Parvis,^ though for general convenience the work
of preliminary inquiry, collecting the evidence, and in
fact getting up the case, was often done by persons
accustomed to such work, who in those days were called
common solicitors.
In 1654 general orders of the Judges required that
covimon solicitors should not be allowed to practise
unless duly admitted on the Rolls as attorneys ; and in
order to be so admitted it was made necessary to have
previously served for five years as a common solicitor, or
as clerk to some Judge, Serjeant-at law practising coun-
sellor, attorney, clerk or officer of one of the Courts at
Westminster.
The course of positive legislation in this country with
proximo futurum & non ante si ordinatio ilia Justiciariis videatur
rationabilis."
This statute was not actually repealed till 1843, when the 6 & 7 Vict,
c. 73, included it in the schedule of repealed statutes. What steps were
ever taken to enforce it does not appear. It is hardly necessary to refer to
the labours of those writers who have speculated on explanation of this or
the profoujTd remark of Mr. Daines Barrington (' Observations on Annulled
Statutes,' p. 414) as to " the ignorance of the Parliament exceeding that of the
Attorneys"
' Ante, Introduction. s See ante, p. 8.
Chap. IV.] ANCIENT AND MODEEN SOLICITOES, 121
reference to the legal profession has helped little really to
improve Practitioners or benefit the community. We
have already referred to the old statutes as to deceipt
malpractice, and maintenance and champerty. Subsequent
Acts of Parliament carefully provided for the heavy
taxation of lawyers and legal proceedings, the latter
being from time to time grievously burthen ed ; so that
the legal profession, Students, articled clerks, Barristers,
and Solicitors have been made to contribute towards
the public revenue in a manner altogether out of propor-
tion to the rest of the community. Since those times
there have been many very beneficial changes, and some
progress has been made in legal education. It is suffi-
cient here to say that the present provisions on this
subject are very minute, and the Council of the Inns of Progress of
Court have effectually aided the Council of legal educa- tion.
tion in this work ; and it is but fair to say that the
second branch of the legal profession — the Solicitors, as
they are now all called — have, by means of their very
vigilant societies, obtained, with the sanction of Parlia-
ment and the concurrence of the Judges, a system of
regulations affecting their body, certainly of no less prac-
tical importance than the regulations of the Inns of
Court affecting Barristers and Students ; ^ and in the
same spirit of exceptional legislation the Solicitors have
been in some way recompensed for the large burthen thus
imposed, by having conferred on them a legal monopoly
' These remarks will be found on investigation to be completely borne
out. The Stamp Acts, from the Revolution till our own days, appear to
have been formed with the object of enabling the Exchequer to get from
every service as much as it was practicable to exact, and almost every legal
document has had in its time imposed on it an exorbitant stamp dutyi
whilst the table of duties shew that the taxation of the lawyers' articled
clerks, of members of Inns of Court, barristers, solicitors, special pleaders,
and conveyancers, has been simply oppressive.
122 THE ORDER OF THE COIF. [Chap. IV.
out of all comparison with any recognised in our time by
the law of England.^
Reforms in Reforms recently effected are certainly calculated to
tion. ^ "°*" produce improvement in the legal Profession. The new
system of legal education and examinations is likely to
raise the character of both branches of practitioners to
prevent incompetent men being promoted to Judicial and
other offices on the false test of a certain number of years
standing at the Bar, or unworthy practitioners being
allowed to follow the law to the prejudice and annoyance
of the community at large.
' See on this, C & 7 Vict: c. 73, s. 35, and Pnlling's Law of Attorneys and
Solicitors, 3rd Ed.
( 123 )
CHAPTER V.
THE HOSTELS OR IiS"XS OF THE JUDGES AND SERJEANTS,
AND THE INNS OF COURT AND CHANCERY.
The history of these institutions , is directly connected imperfect
with our subject ; but the information afforded by our usually '°°
law books and law reports is very meagre. Of the origin ^PPi'^*^-
and constitution of the Inns of Court very little can
be learned from legal writers, and even less from the
Judicial dicta of Westminster Hall, when the law
relating to the subject has been called in question.
Having before them the solemn utterances from the Anomalous
Judges with respect to the Inns of Court — that " their the\nns'of
" original institution noiohere distinctly/ appears " — that ^°^^*'-
" the?/ are voluntary societies which for ages have submitted
to government like other seminaries of learning" — and
that they are not amenable to the ordinary Courts of
law even in the exercise of their very large control over
the legal profession, people are apt to believe that the
institution is something very like an anomaly.
How far this is true we shall have occasion hereafter to Various
consider. At present our attention must be confined theTnn7°
to what is actually proved — with reference as well to the
Inns of the Judges and Serjeants, as also to the Inns of
the Apprentices of the law. The early accounts of the
two institutions are closely connected. Their object and
124 THE OEDER OP THE COIF. [Chap. V.
destination, their constitution and character, were alto-
gether different; and it is hest to deal with the two
classes of institutions as quite distinct — the Inns of the
Judges and Serjeants of the Coif, fixed on and changed
from time to time, entirely as it suited the personal con-
venience of the members ; and the Inns of Court originally
also mere voluntary associations, but under circumstances
altogether different, gradually formed into public institu-
tions, invested with important powers and duties, deriving
therefrom large revenues, and clothed with distinct
trusts. The two classes of institutions thus essentially
differed, whilst they altogether contrasted in point of
numbers.
The whole body of Judges and Serjeants of the Coif
hardly ever exceeded forty, and their Inns were of
their own choosing, with full liberty of retiring and
rejoining, as in a private club ; so that the Serjeants'
Inns were really private institutions, whilst the Inns
of Court and Chancery counted among their members
the whole of the legal profession, Students, Apprentices,
Barristers, and Counsellors, as well as in old times all the
Clerks of the Chancery, and all the Attorneys and
Solicitors, and were altogether jowSZic institutions.
Origin of the The actual origin of these institutions seems easy
etc^^"^^"^"^*' enough to understand. We must bear in mind that at the
period when they are first mentioned, the word hostel, or
Inn, had not the narrow meaning attached to the Hotel
Inn or Tavern of modern times. In London, as in Paris
and elsewhere, "hostel" formerly meant the grand mansion
of Prince or Grandee, or the hospitium of some holy
order, or the chamber of some municipal body.^ The
The old French interpretation of hostel is grande maison d'un Prince on
d'lm grand Seigneur — I'hotel Richelieu and I'hotel Mirabeau were the mansions
PLATE V.
i •
I ' '^ 1
TT
■4
U/7£rruep(^tr/uturc^IwdefLitdctontnc. famous €'m/ts^Mmrer'
Chap. v.] first hostels of the lawyers. 125
expression Inn or Hotel for taverns or public-houses of
reception of travellers in this country hardly dates back
beyond the fifteenth century.^
The name of several of the Inns of Court and Antecedents
n 1 • 1 • • 1 of the Inns of
Chancery serves to recall the time when it was either Court, etc.
" I'hotel d'un grand Seigneur " or " I'hospice d'un ordre
fameux."
The Temple was until 1326 the hospitium of the
Knights Templars, who had removed there from Holborn
a century and a half before. Lincoln s Inn bears the
name of the mansion of a famous Earl of Lincoln, who in
the time of Edward II. built his hostel there or thereabouts.
G-ray's Inn, Clifford's Inn, and Furnival's Inn were
certainly the Inns of so many noble families in days long
since gone by.
Others of these ancient Inns record names and events
dating back from a remoie time, though with no such
grand associations.
Thavie's Inn, the oldest of the hostels of the apprentices Thavie's Inn.
of the law was so called after its owner, John Thavie or
Tavy, citizen of London and Armourer, who in the time
of Edward III., received an association of Apprentices of
the Law as his tenants or lodgers. Others of such Inns,
as we shall see, have an equally humble origin.
Whilst the Inns of Court and Chancery all retained the The Inns of
the Judges
. and Serjeants,
of grandees not only living at different times, but filling very different
positions. Even at this day many a private mansion in Paris of com-
paratively humble pretensions is called I'Mtel de monsieur.
" Common hostelers or keepers of public hostels are certainly referred to
in the old books of the City of London before the time of Edward IV.,
when (1473) the hostelers obtained an order from the Court of Aldermen to
change their name to Innholders. See Liber Albus, IV., tit. Hostelers and
Hffrbergeours.
In 1302, Edward I. lodged in a chamber of the Archbishop of York's
hostel, near Westminster.— Rot. Clans. 30 Edw. I., m. 8.
126 THE ORDER OP THE COIF. [Chap. V.
name of the ancient owners or occupiers, a diflFerent
course was followed with the Inns occupied by the Judges
and Serjeants of the Coif. Each of these has always
thenceforth been called honoris causa " Serjeants' Inn,"
whatever its previous name or history.
Serjeants' Serjeants' Inn in Chancery Lane appears to have been
eery Lane.' the hostel of Judges and Serjeants of the Coif for more
than four centuries, — having been let to certain brothers
of the order in 1416, its older name Faringdon Inn having
been abandoned.^
Serjeants' Inn in Fleet Street was in like manner the
hostel of other Judges and Serjeants of the Coif from
1443 to 1758, when it was given up to the freeholderSj
the Dean and Chapter of York,^ the place being still
^ This Inn was described in a deed in 1394, as tenementum Dom Johann
Sharle, and a few years afterwards as Faryndon's Inn ; but it seems even then
to have been occupied by Judges and Serjeants on whose behalf Sharle and
Faryndon appear to have held the lease, and it was in 1416 let to the
Justices and Serjeants-at-law who had previously lodged there, and the name
Faryngdon Inn was at once altered to Serjeants' Inn, which it has ever since
retained. The tenure was by lease only, which was renewed on payments of
fines sometimes complained of as very exorbitant. In 1758 the rest of the
members of the order, who were then lodged in Serjeants' Inn, Fleet Street,
joined the Inn in Chancery Lane. In 1834 the members of this Inn raised by
way of mortgage a sum 6f money among themselves to purchase the free-
hold from the See of Ely, making a very large outlay; and ihe encum-
brances thus occasioned were being gradually paid off by fixed contributions
from the old and new members, when, in 1877, by the operation of the Judica-
ture Acts, the accession of new members was practically put an end to. See
the clause, ante, p. 95, providing that the old law of England requiring
the judges to be of the degree of the Coif should no longer be continued. In
this change of the law, the old Inn of the Serjemts was at once consigned
to destruction. The Judges and Serjeants took the only course open to them,
sold their property, paid off all charges, and woundup their corporate affairs
in due course. Though the corporate existence continues, and the status et
gradus of the Brothers of the Coif are in no way personally affected, yet for
reasons already sufficiently explained, unless there is some remedial pro-
vision, the time-honoured Order of the Coif will ere long also cease to exist.
^ In a lease from the Dean and Chapter of York, October 21, H. 6., to
William Antrous, it is described as " unum mess, cum gardeno in parochia S.
Dunstane quod nvper fait Johannis Eote et in quo Johann. Ellerkar et alii
servientes ad legem nuper inhabitarunt ; " and Dugdale surmises that the
Uhap. v.] SERJEANTS' INNS AND INNS OF COURT. 127
called " Serjeants' Inn," though with the exception of the
famous Serjeant Wilde (Lord Truro), no member of the
order has since had chambers there.
These two Serjeants' Inns are really the only hostels of
the Judges and Serjeants-at-law of which we have
reliable information, but previous to the fifteenth century
there were probably other Serjeants' Inns.^
The hostels of the apprentices of the law, or as they The hostels
came to be called, the Inns of Court and Chancery, are prentices of
institutions which seem to have been in existence for
more than five hundred years, a,nd during all that time
have been immediately identified with the Bench and the
Bar, if not the whole of the legal profession in this
country ; and yet, as already stated, their warrant, accord-
ing to the view taken of them by those of the highest
the law.
new lease was only granted to Antrous in trust for the Serjeants, and it is
certain that Judges and Serjeants held it by lease renewed from time to time
under the name of Serjeants' Inn, Fleet Street, till 1666, when it was
destroyed by the great fire, and entirely rebuilt at the Serjeants' cost. They
then had fresh leases, the last of which expired in 1758, when it was not
deemed advisable to ask for a fresh lease. Serjeants' Inn in Fleet Street
thus destroyed in the great fire of London in 1666, was rebuilt by the
Serjeants from funds entirely raised among themselves on a very equitable
plan, set forth in Dugdale's, Orig. 327 (a course imitated by the members of
Serjeants' Inn, Chancery Lane, in 1834, in adjusting the cost of rebuilding that
Ion). When their lease expired in 1758, the members of Serjeants' Inn in Fleet
Street joined the Inn in Chancery Lane and thenceforward constituted one
Jnn. Under the private Act, in 1834, for sanctioning the sale of the freehold
of this Inn to the Society by the See of Ely, the Society was constituted a
corporation, and this incorporated Society still continues, though without
worldly property, for its accounts have all been wound up. Its only
remaining possessions, the interesting old pictures, have been presented to
the National Portrait Gallery, and now form part. of that collection.
" ' One of these is spoken of by London antiquaries as being over
against the Church of St. Andrew's, Holborn, and an inquisitio post
mortem at Guildhall, before the Lord Mayor as Escheator, in 1497, found
that Lord Scrope of BoIIoq died seised (by feoffment of Sir Guy Fairfax,
one of the King's Justices) of one house or tenement late called Serjeants'
Inn, situate against the Church of S. Andrew in Oldbourne, in the City of
London, with two gardfns and two messuages to the same building. See
S'ow's 'Survey of London,' tit. Scrope's Inn.
128
THE ORDER OP THE COIF.
[Chap. V.
Lord Mans-
field's obser-
vations.
Blackstone's
account of
the Inns of
Court.
The actual
origin of the
Tnns of
Court.
authority in Westminster Hall, rests on the most insecure
basis; for, in the words of Lord Mansfield,* so often
quoted by writers on the subject,' " the original institu-
tion of the Inns of Court nowhere precisely appears ; but
it is certain that they are not corporations, and have no
charter from the Crown. They are voluntary societies,
which for ages have submitted to Government, like that of
other seminaries of learning,"
Sir William Blackstone is less indistinct but certainly
more regardless of actual facts and dates. After referring
to the revived study of the civil law in the twelfth century,
and the various prohibitions of law schools in London, and
the fixing the Court of Common Pleas at Westminster by
Magna Charta, he speaks of " the professors of the
common law being thus brought together, and the lucky
assemblage * falling into a kind of collegiate order directly
bringing about the establishment of a new university — that
composed of the Inns of Court."
It is necessary to remind the reader that the various
matters thus strung together were really not coincident ;
' See Rex v. Gray's Inn, Douglas, 354.
^ See 6th Report of Common Law Commissioners.
' " In consequence of this lucky assemblage they naturally fell into a kind
of collegiate order, and being excluded from Oxford and Cambridge, found
it necessary to establish a new university of their own. This they did by
purchasing at various times certain houses (now called the Inns of Court and
Chancery} between the City of Westminster, the place of holding the King's
Courts, and the City of London ; for advantage of ready access to the one,
and plenty of provisions in the other. Here exercises were performed,
lectures read, and degrees were at length conferred in the Common Law,
as at other universities in the Canon and Civil. The degrees were those of
barristers ; first styled apprentices, from apprendre, to learn, who answered
to our bachelors ; as the state and degree of a Serjeant, Servientes ad legem,
did to that of Doctor." 1. Bl. Com. 23, and Blackstone goes on to say that
" ITie Crown seems to have soon taken under its protection this infant seminary
of common law ; and the more effectually to foster and cherish it, King Henry
the Third, in the nineteenth year of his reign, issued out an order directed
to the Mayor and Sheriffs of London commanding that no regent of any law
schools within that city should for the future teach law therein."—! Bl. Cora 23.
Chap. V.] SCHOOLS OF LAW PROHIBITED. 129
for they occurred at dates very distant from one anotlier :
and Sir William Blackstone's anchronisms peep out in
spite of his polished sentences, leaving his readers still to
rest on Lord Mansfield's indecisive judgment and most
cautious statement that "the original constitution of the
Inns of Court nowhere precisely appears."
The schools of law attempted to be set up in the City Prohibitioti
of London in the time of Stephen certainly have no law.
connection with the institution of the Lms of Court : for
according to the views of the old chroniclers, these schools
were designed only for the studying and debating questions
of civil and canon law : ^ and the account we have from
Fitzstephen ^ of the character of the schools established at
that time shows that they were hardly calculated to
promote real learning of any kind, and we certainly have
little reason for identifying the law schools referred to in
' In one of Selden's learned notes to Fortescue, reference is made to this
asserted proclamation of Stephen and the opinion of Friar Bacon, who
speaks of it as intended to apply only ' allatis legibus Itah'ss in Angliam/
and the statement of John of Salisbury that the proclamation applied only
to the canon law ; neither of those great authorities even suggesting that
the apprenticii ad legem were in any way concerned or affected, and the
account of the schools of that time do not include law schools.
'' William Fitzstephen, the Canterbury monk, who wrote the life of
Thomas k Beckett, tells us that "in the reign of King Stephen and of
Henry IL there were in London three principal churches, which had famous
schools, either by privilege and ancient dignity, or by favour of some parti-
cular persons, as of doctors which were accounted notable and renowned
for knowledge in philosophy. And there were other inferior schools also.
" Upon festival days the masters made solemn meetings in the churches,
where their scholars disputed logically and demonstratively ; some bringing
enthimems, others perfect syllogisms ; some disputed for shew, others to trace
out the truth ; cunning sophisters were thought brave scholars when they
flowed with words; others used fallacies; rhetoricians spake aptly to
persuade, observing the precepts of art, and omitting nothing that might
serve their purpose ; the boys of diverse schools did cap or pot verses, and
contended of the principles of grammar; there were some which on the
other side with epigrams and rymes, nipping and quipping their fellowes,
and the faults of others, though suppressing their names, moved thereby
much laughter among their auditors." — Fitzstephen, description of London.
K
130 THE ORDER OF THE COIF. [Chap. V.
the Royal proclamations of the twelfth century with the
Inns of Court and Chancery or the orthodox apprentices
of the law. The law schools attempted to be set up at
this early period were, according to the best authorities,
designed, not for teaching the law of the land, but in-
culcating by means of clerical teaching the paramount
rules of the canon law, or as far as practicable the
doctrines of the civilians.^
Whilst the professors of the civil and canon law were
so energetic in their efforts to inculcate their rules and
doctrines, there seems for a long time to have been no
corresponding alacrity in teaching the common law of
England. Even long after the date of Magna Charta, when
the Court of Common Pleas was fixed at Westminster, we
have no trace of any regular institution designed for the
purpose of educating students or practitioners. The
attempt^ in 1244, to set up schools of law in London was
solemnly opposed, and the law schools suppressed ; ^ and
when half a century afterwards the Judges were directed
to select " de maturioribus et legalioribus addiscentibus
certum numerum de attornatis et apprenticiis," we have
^ It is easy to account for the zeal of the clergy in the twelfth century
for teaching the rules of the canon and civil law. After the finding of the
Pandects at Amalfl in 1130, copies seem to have been sought for in every
monastery. Extracts served as a sort of school-book, and the rising genera-
tion were all able to obtain a smattering of the civil law, and in an ignorant
age eagerly turned it to account. In the Courts of Common Law it was
for the most part ignored, and by its general adoption here the clergy would
be at a premium as legal practitioners, and be able materially to advance the
interests of the Church. In France the monks were prohibited from
studying the civil law, and a decretal about this time prevented its being
taught in the University of Paris. Jones, French Bar, 59.
^ " Commandment is given to the Mayor and Sheriffs of London, that they
cause proclamation to be made throughout the whole City, and firmly to
enjoin that no man should set up schools of the laws in the said city, and
teach the laws there for the time to come; and if any man should set up
such schools there, that they cause them to cease without d^lay. "Witness
the King at Basing," 11 Dec, 28, Hen. 23. See Strypes' Stow, vol. i. p. 121.
Chap. VJ HOSTELS TEMP. EDWABD III. 131
nothing but conjecture to help us as to the school where
these legaliores apprenticii could have been educated. It
is quite certain that neither of the existing Inns — Inns Age of the
of Court or Inns of Chancery — can trace back its history com't. ^'''' "'^
to a period earlier than the reign of Edward III., when
we first hear of " les apprentices en hostels" ^ etc., without
any information as to their rules and regulations.
The reign of Edward III. was remarkable for the num- Numerous
ber of collegiate institutions, corporations, and privileged da°tions,temp.
associations established for educational or municjipal or ■'^'^^^" ^^^'
other purposes.^ The charters of most of the more
ancient of the City companies, five out of six of the older
colleges at Cambridge,^ and two, at all events, of the
Oxford colleges,* date back to this period.
Previous to the formation of colleges at Oxford and Hostels at
Cambridge the students seem to have taken up their Cambridge.
quarters at hostels or inns specially devoted to the pur-
pose. Such appears certainly to have been the case at
Cambridge in the time of Edward III. ,^ and at Oxford to a
' In a real action in the Common Bench in 1355, 29 Edw. 111. (a quod
ei deforceat after recovery suffered), an exception being taken, it was answered
by the Chief Justice de Willoughby and Serjeant Skipwith, that such
exception was not good in that Court, though they had often heard the
same for an exception amongst the apprentices en les hostels — ^Year Book, 29
Edw. III., f. 476.
^ In Chapter xiii. of Madox, History of the Exchequer, there is a very
long account of fines for royal concessions running over a wide range —
fines for charters of privileges, for leave to hold or to give up offices, for
licenses of various kiads, for the King's favour, for his protection, and for
his mediation, etc.
' Clare Hall, Pembroke, Gonville and Caius, Corpus Christi, and Trinity
Hall. * New College and Trinity.
° Peterhouse originally consisted of two hostels appropriated by Hugh de
Balsam to the use of students in 1257. Trinity Hall was at first a hostel of
the same character, erected into a college by license from Edward III. in
1350. Corpus was established by the union, in 1351, of two of such hostels
belonging to the guilds Corporis Christi et beatce Maries Virginis, and part of
Gonville and Caius, founded in 1348, consists of an older institution called
Ffyswyhes Hostel, One portion of Trinity College is still called Bishops Hostel.
K 2
Thavie's rnn.
132 THE ORDER OP THE COIF. [Chap. V
much later time.^ Whatever houses or hostels were used
in common by the apprentices of the law before the time
of Edward III,, no trace of them could be found by
Dugdale.^ Thenceforth, however, there are very full
records of these Hostels or Inns of the apprentices of the
law, whicb came in time to be called the Inns of Court.
Story ot ^ Thavie's Inn in Hoi born is spoken of by Coke and
many other writers as the first of these hostels of which
there is any reliable record ; and the will of John Thavie,
the worthy citizen and armoxirer who died in the middle of
the fourteenth century, serves to show that his Inn near
the Church of St. Andrew's, Holborn, had then for some
time been the abode of apprentices of the law. The will of
John Thavie, or Tavie, is constantly referred to by Coke.
It is set out in the Preface to his 10th Book of Reports ;
and we see how the good citizen gave all his tenements in
" St. Andrews, Olborne," to his wife Alice for life, and then
to be applied for the repairs of the church ; and the testator
directed that " all that hostel in which the apprentices of
the law were wont to dwell should be sold, and out of the
produce a proper chaplain found to pray for the souls of
himself and his wife." ^ John Thavie's old hostel is thus
^ Pechvater, now the Quadrangle at Christchurch, was the Inn or hostel
■which stood at the south-east corner of the present Court, belonging to
Eichard Peckwater as far back as the time of Henry III.
^ Dugdale, f peaking of the ordinance de attornatis et apprenticiis of 1292,
obserTes ".that soon afterwards, though we have no memorial of the direct
time or absolute certainty of the places, we may safely conclude that they
settled in certain hostels or Inns, which were thenceforth called Inns of
Court, because the students in them did there not only study the laws, but
use such other exercise that might make them more serviceable to the King's
Court ... so that these hostels became nurseries or seminaries of the Court,
taking their denomination of the end wherefore they were so instituted
were called therefore the Inns of Court." — Dujidale, Orig. c. Iv. p. MI.
^ John Thavie's will was proved and enrolled in the Hustings Court of
the City of London in 1350, and among the Hustings records at Guildhall it
may still be seen : " Inter communia placita tenta in Hustingo London . die
Lunse in fssto sancti Clementis Papse, anno regni E. 3 post Conquestum 23.
Chap. V.] THAYIE'S IKN. 133
shown to have been used by the apprentices of the law as
an Inn of Court more than five hundred years ago.
viz. die JotIs proxime ante festtim Sancti Gregorii Papse, anno Domini
1348. Ego Johannes Tavie Armiger lego animam meam Deo, &tc. Item
lego omnia tenementa mea cnm omnibus pertinentiis quss habeo in parti
australi in parochia sancti Andress &to. AliciES uxori mem ad totum
terminum vitee snse ; et qtiod post decessum prsedictae Alioise, totum illud
Hospitium in quo Apprenticii legis habitare solebant per executores meos,
si superstites fuerint, &tc. vendatur, et quod de pecuni^ inde percepts unus,
Capellanns idoneus pro animd meA, &tc. celebrand. dummodo pecunia ilia
perseveraverit inveniatur. Item lego totum illud tenementum in quo
inhabito cum tribus shopis, post decessum ipsius Alicise, ad fabricam
ecclesiae Sancti Andrese." Coke's remarks on this are : " Out of this record
I observe three things ; first, for the antiquity of apprentices of the law,
that the house of ChanGery in Holborn now called Tavies Inn, had been of
ancient time, before the three and twentieth year of E. 3, (which is about
two hundred sixty and four years past) a house of Court wherein the
apprentices of the law were wont to inhabit. 2. For the antiquity and true
name of the House of Chancery, rightly called Tavies Inn. 3. Thit upon
this will the case in 21 K. 2. Tit. Devise, Fitzh. 27. was adjudged, that the
remainder of the house devised to the said Alice for life, belonged to the
Parson of the church of Holborn and his successors. And in 39 Ed. 3. fol.
47, b. in a Quod ei deforceat, Ingleby Serjeant, of counsel with the tenant,
took this exception ; this writ (saith he) is founded upon a record precedent,
and therefore we pray, that the demandant may put the record (whereupon
this writ dependeth) in certain, and in case of attaint and scire facias
(which depend upon records) the tenant shall have oyer of the record :
Wilby and Skipwith. " This was never any exception in this place, but we
have heard it oftentimes amongst the apprentices in houses of Court." —
Coke's 10 Eep. Prooem. xxiii. Plac. de Hust. Lond. die Lun. in festo St. Clem.
23 Edw. 3. Coke seems to have been so much struck with this record of
Thavie's will, that he kept by him a transcript which he was in the
habit of showing to those who were interested in such subjects. Sir George
Buc, a literary man of Coke's time, in commenting on the account of the
houses of Court in Howe's edition of Stow, says : " I must and v, ill begin with
Thavie's Inn, for besides that at my first coming to London I was admitted
for probatim into that good house, I take it to be the oldest Inn of Chancery,
at the least in Holborn. It was before the dwelling of an honest citizen
called John Thavie, an armourer, and was rented of him in the time of King
Edward 3 by the Chief Professors then of the law, viz. apprentices, as it is
yet extant in a record in the Hustings, and whereof my Lord Coke showed
to me the transcript." — Sir George Buc in Howe's Stow, 1074, ed. 1631.
John Thavie designed by his will to have his property applied to pious uses,
probably to benefit only the Church, but the lawyers seem certainly to have
had some advantages from it as well as the clergy. The property appears
to have been the subject of litigation at an early period, as may be seen by
the case above quoted from the Year-books, and a great deal of subsequent
134 THE OIIDER OF TPIB COIF. [Chap. V.
Early history The pogsession of most of the smaller hostels or Inns
seems to have been originally acquired by the appren-
tices of the law in somewhat the same way as Thavie s
Inn, viz. by mere hiring from the actual owners : this
temporary possession being in aftertimes made permanent
by lease or purchase.
Thus Clifford's Inn was so acquired in the time of
Edward III.^ Furnival's, temp. Henry lY.,^ Lion's
Inn^ and Staple Inn* temp, Henry V., Barnard's
litigation is referred to in the Report of the Charity Commissioners in 1834.
The income of the Thavie estate is now very considerable, and the parish of
St. Andrew, Holborn, benefited in proportion. The freehold of Thavie's
Inn came in course of time to Gregory NichoUs, citizen and hozier, who in
the time of Edw. VI, granted it to the Benchers of Lincoln's Inn and their
successors for the use of the students of the law, and the Benchers seem at
once to have demised it to the Principal and Fellows of Thavie's Inn, with
special provisions as to the students becoming members of Lincoln's Inn.
^ Clifford's Inn was in 1309 Crown property, and granted by Edward II.,
at a rent service of one penny, to Robert de Cifford, whose widow, Isabell
Lady de Clifford, in 1345 demised it Apprenticiis de Banco at a yearly rent
of £10, which lease was from time to time renewed. It was sold to
Nicholas Sulyard for £600 and £4 per annum. — Dugdale, Orig. 187.
2 See Dugd., Orig. 270, where he carries back to 1408, the occupation of
Furnival's Inn by the law students under the Lords de Furnival, whose
descendant George Earl of Shrewsbury, in 1546 sold the freehold for £120 to
Edward GryfiBn the Solicitor-General and two other Governors of Lincohi's
Inn for the use of that society, who have since sold it ; so that in 1854 the
owners reported merely to the Commission of Inquiry into the Inns of
Court, " This is not an Inn." See Report, p. 260.
^ "That this was an Inn of Chancery in K. Henry 5 time the old
books of the stewards' accounts do show, but how long before is uncertain."
— Dugd. Orig. c. 60, p. 187. Before, it had the sign of the Black Lion till the
time of Henry VII. It is now regarded as private property, and was so
represented, in evidence of Mr. T. Tyrrell, to the Inns of Coui-t Inquiry
Commissioners in 1854.
* Dugdale refers to an ancient MS. written temp. Henry V. containing
orders and constitutions of the Society of Staple Inn which appeai-s to have
originally belonged to the English merchants of the Staple. These orders
treat Staple Inn as an Inn of Chancery, but the first reliable record is in
1529, when the freehold was conveyed to the ancients of Gray's Inn, as
" all that messuage or Inne of Chancery commonly called Staple Inne." See
Dugdale, Orig. Jur. 310, referring to Regist. Hosp. Grayensis, fol. 218. Sir
George Buc, in 1631, said, " I cannot choose but make report and much to
the praise and commendation of the Gentlemen of this house, that they have
Chap. V.] THE INNS OF COURT. 135
Inn' temp, Henry YI., Clement's Inn and New Inn
temp. Edward IV.^
The records of these Hostels or Inns previous to the
fifteenth century are but few, and afford little evidence of
their real constitution. We have proof enough of their
actual existence, and in many instances of the dates of
their establishment, varying from the time of Edward III.
to that of Henry YIIL, but, excepting the statements
made in the already quoted dissertation "de laudibus
legum Anglige," we know little else about them, and we
certainly have no records of their constitution until
long after Fortescue's death, and the orders of Philip and
Mary and Elizabeth placed them under a system of
government.
The story of the greater Inns — the Inns of Court as The inns of
they came in time to be exclusively called — does not
essentially differ from that of the lesser Inns, Their
possessions, being larger, were obtained in a more solemn
bestowed great cost in now building a fayre Hall of brick and two parts of the
outward courtyards besides other lodging in the garden and elsewhere and
have thereby made it the fayrest Inne of Chancery in this Universitie."
— Sir George Buc, Howe's Stow, 1065.
^ Barnard's Inn, formerly Mackworth's Inn, called after Mackworth Dean
of Lincoln, temp. -Henry VI., who left it pro salute animoe to the Dean and
Chapter of Lincoln, derived its present name from their lessee, Lionel
Barnard, who let it to students and apprentices of the law, chieily mentioned
in connection with a London Town and Gown uproar in 1454, the Principals
of this Inn, with those of Clifford's Inn and Furnival's Inn, being committed
to Hertford Gaol. See Stow's Annals, 32 Henry VI.
- Clement's Inn seems to have been first acquired by men of law and
counsellors in the time of Edward IV. See Dugdale, Orig. c. 59, quoting
the book of entries Eec. M. 19 Edward IV, where it is called hospitium
hominum Curiae Eegis temporalis, necnon hominum Consiliariorum legis.
The inheritance falling to the Earls of Clare it continued to be held by
apprentices of the law. See Dugdale, c. 59, p. 187.
New Inn seems to have been a common Inn or tavern called " Our Ladys
Inn," with the sign of the Virgin Mary, till 1500, when it was purchased or
hired by Sir John Fineaux, the Chief Justice, for the use of certain law
students who came from St. George's Inn.
136
THE ORDER OF THE COIF.
[Chap. V.
Acquisition
of property
by the Inns
of Court.
Acquisition
of the
Temple.
form, but the account of their title and early constitution
is of a similar character. From the first all the Inns were
voluntary associations, and it was only by slow degrees
that they first acquired wealth and influence, and then
exercised a control deviating from the general law.
These societies of the Inns of Court, like those of the
lesser Inns, came into possession as tenants or lodgers, and
at last they became sole proprietors ; but it is a remarkable
circumstance that each of these greater hostels, before
falling to the lot of the apprentices of the law, had become
ecclesiastical property. The Temple was first demised to
the lawyers by the religious body known as the Knights
Hospitallers,^ Lincoln's Inn,^ by the Bishops of Chichester,
and Gray's Inn by the Monastery of Shene. The Knights
Templars, whose London hospitium was originally in
Holborn, seem to have changed their quarters at their
own pleasure and convenience ; and at the end of the
twelfth century we find them removed from this place
(afterwards called the " Old Temple ") southwards to the
banks of the Thames, where they built their New Temple,
their Church, and their Hall, and became in every sense a
power in the state. Their pride and insolence even then
caused Matthew Paris to recall the time of the ancient
parade of poverty and humility.
The first substantial acquisition of property made by
the apprentices of the law seems clearly to have been this
' See post, p. 137.
^ The Knights Templars seem to have removed from their London
hospitium in Holborn to the New Temple at the end of the twelfth century,
and fifty years afterwards the order was in its greatest pride and glory;
so much so that their foolish ostentation was giving general offence, and
Matthew Paris speaks of the contrast between their behaviour then and their
early humility, pretending be so poor as to have only one horse to serve two of
them (as denoted on their seal luith two men riding on one horse), and all of a
sudden becoming so insolent that they disdained other orders, and sorted
themselves with noblemen. — Matthew Paris, 1245.
Chap. VJ THE LAWYERS IN TflE TEMPLE. 137
London hospitium of the Knights Templars, or the New
Temple,^ which fell into the haads of the Crown at the
beginning of the fourteenth centurj^,^ and not long after-
wards fell to the lot of the learned apprentices of the law.
This prize having already, under the weak administration
of Edward II., been granted successively to court favourites,
was, on reverting to the Crown by forfeiture, granted in
accordance with a settled plan to the Knights Hospitallers
of St. John of Jerusalem, in order to be let to approved
lessees, and in or about the year 1324 this arrangement
was duly carried out ; the Knights Hospitallers, after
obtaining the King's grant of the New Temple,^ letting
the property to " divers apprentices of the law that came
from Thavie's Inn in Holborn," * at a rent of £10.
* How the riches of the Templars tempted the King to rob the Master of the
New Temple, and how in less than sixty years after the time of their
greatest glory they came to grief here, as indeed throughout Europe, we need
not now dwell on. In 1308 the fate of the Knights Templars was sealed
in England, as it was about the same time in France and other countries.
" In 1313 the whole of the property of the order in the New Temple was
very soon seized by Edward II. and made a subject of Court favour, and
after Aimes de la Valence and Hugh Despencer had successively held the
property and forfeited the same to the Crown, it was granted, by a charter
from Edward III. to the Knights Hospitallers, and from them to the
apprentices of the law.
3 When the suppression of the order of Knights Templars through-
out Europe was effected by the Council of Vienna it was at once resolved that
their property should go to the Knights Hospitallers of St. John of Jerusalem ;
and at a Parliament held at Westminster in 1324 it was arranged as
follows : — " The military order of Templars having ceased, and being
dissolved it pleases the King, magnates and others, for the health of their
souls, that their lands shall be assigned to other men of religion, it is there-
fore agreed, proclaimed, and enacted, by the King, Prelates, Earls, Barons,
' et alios Proceres,' that all the lands shall be assigned and delivered to the
order of the Hospital of St. John of Jerusalem," etc. — Pari. Writs, 11 ; 17
Edward II. st. 1.
* Dugdale, Grig. c. 57, p. 145.
Although Dugdale relies only on tradition with respect to this arrange-
ment having been made, yet in many points the tradition is very closely
borne out by records. When at the beginning of the fourteenth century the
order of the Knights Templars was suppressed, and their possessions were
legally made over to the Knights Hospitallers of St. John of Jerusalem, the
138 THE ORDER OP THE COIF. [Chap. V.
We shall see hereafter how the first society became in
course of time divided into the two societies of the " Inner
Temple " and the " Middle Temple," ^ which by Koyal con-
cession acquired the full proprietorship of the possessions
of the Knights Templars.^ The title-deeds by which the
latter, whose hospitium in Smithfield already sufllced for their requirements,
had no alternative but to let out what had been occupied by the Knights
Templars, and within a Tery few years of the statute already referred to,
ante, note 3, the New Temple was actually occupied by apprentices of the
law — one of such famous apprentices being Geoffrey Chaucer himself, whose
recollections of the days when he hept his terms in the Temple enabled him
to speak of the profitable office of the Purveyor there more than five
hundred years ago.
" A manciple there was of the Temple,
Of which all catours might taken ensemple,
For to been wise in buying of vitaile ;
For whether he payed or tooke by taile,
Algate he wayted so in his ashate
That he was aye before in good estate.
Now is not that of God a full faire grace.
That such a leude man's wit shall pace,
The wisdome of an heape of learned men.
Of masters had he mo than thrice ten,
That were of law expert and curious."
Prologue Cant. Tales, Manciple.
A more familiar story about the early residence of the apprentices of the
law in the Temple is that of Wat Tyler's rebellion in 1381, when old historians
speak of "le Temple de Apprentices de la ley," and when the chroniclers
of the period record the mischief done to " le Temple de Apprentices de la
ley," and how the mob " satis malitiose locum qui vocatur Temple-barr in
quo apprenticii Juris morabantur, nobiliores deruerunt."— Thomas of Wal-
singham sub ann. 4 Ric. II., and Dugdale, Orig. c. 57, p. 145.
' The precise time of the separation of the apprentices of the Temple into
two societies is not distinctly shown. Chaucer, who was himself a student in
the Temple, it will be seen, speaks of " the manciple (or steward) of and Lord
Mansfield.
This useful provision of tlie Benchers of Lincoln's Inn might with great
advantage have been imitated by the other Societies. In more than one
instance in the Inns of Court are very ostentatiously displayed, the names
and coats of arms of the Treasurer of the year in which some special building
was completed or restored, with no apparent purpose whatever except that
of gratifying the personal vanity of the possessor of the name and arms, not
only at some expense to the Society in point of money, but to their discredit
in point of taste.
The wits of the Inns of Court have sometimes in a playful mood re-
venged themselves on these conceits. An inscription on a renovated building
having some years ago appeared with the grand words "restoravit et
adomavit Thesaurarius," a junior scribbled underneath, "impensis
suis." The Treasurer thus corrected had the inseription altered into " Kes-
torata et adornata Thesaurario."
Probably in these days it would not be practicable on the rebuilding or
renovating portions of an Inn of Court for the Treasurer to imitate Sir
Thomas Lovell, by foolishly displaying his own arms on the gateway, but
we have record of conceits approaching that of Lovell. The Middle Temple
gateway, taken down in 1684, had on the outside Cardinal Wolsey's hat,
badge, cognizance, and other devices set up in 1515 in a very glorious manner
by Sir Amias Pawlet, an involuntary lodger over the gateway from 1515 to
1521, dandng attendance, as it is said, on the Cardinal, with reference to an
awkward incident of his younger days ; and Pawlet's ornamentation of the
Temple gateway was intended as incense to appease the proud Wolsey's ire.
With a humour superior to Lovell's or Pawlet's, and in proud defiance of
accuracy as to time or place, the enterprising tradesman whose hair-cutting
saloon is over the Inner Temple gateway, invites custom by a bold notice
in large letters that it was "formerly the Palace of Henry VIII. and Cardinal
Wolsey." See post, p. 161, note 4
' On a field or a lion rampant purpure.
* See Cotton Eecords, Vitellius C 9.
150
THE ORDER OF THE COIF.
[Chap. V.
We may certainly rely on Coke's assumption that no sucli
institutions could be upheld by a modern title/ and Lord
Mansfield's assurance that such powers as the Inns of
Court possess over the Bar, they have really derived from
the Judges.^ These powers have so rarely been called
in question that they may justly be regarded as not
unwisely placed.*
Whilst almost every other collegiate institution in this
country is regulated by prescribed legal provisions,
express statute, or governing charters, the Inns of Court,
founded on and fostered by no royal bounty or state
concession,* have lived for so many centuries, honourable
and learned Societies, the only recognised guardians
of the honour and independence of the English Bar,
Exempt from practically exempted from the orders, jurisdiction, or
jurisdiction
of the Courts.
• Rex V. Gray's Inn.- — Dougl., 354
^ Per Lord Mansfield, ib.
• At a well-attended meeting of the Bar in the Inner Temple Hall on
Saturday, 5th May, 1883, a committee was formed for devising a more
effectual protection of the Junior Bar. This movement seems to have
originated in no antagonism to the Benchers on any of the matters to be
discussed. ^Yhat will come of it has yet to he seen.
• The recital of the patent of James I. in reference to the Temple, refers
to the property as being " two out of those four colleges the most famous of
all Europe, as always abounding with persons devoted to the study of the
law, and experienced men, have been by the free bounty of our Progenitors
Kings of England for a long time limited to the use of the students and
professors of the said laws," etc. — Letters Patent of the Inner and Middle
Temple to Sir Julius C£esar and others, 13th August, 6 Jac. I., set out in
Report of Commissioners on Inns of Court, 210, Appendix B. This free
bounty of King James really consisted in a title derived, not,from King James's
Royal Progenitors, but from ecclesiastical leases renewed from time to time
for good consideration, and on which Sir Julius Ctesar and others had also
for good consideration laid out their money in building. See Dugd. 147.
In like manner Lincoln's Inn was derived by private purchases from the
Bishops of Chichester through the Sulyard family for valuable consideration
to all concerned, see ante, p. 143 ; and the same kind of dealing took place
with reg;ard to the acquisition of Gray's Inn.
In neither case was there really much royal bounty to speak of, or dealings
very materially diiferent from those so commonly effected by virtue of the
combinations of church leases and building leases.
CHAr. v.] LAW AFFECTING INNS -OP COURT, 151
interference of the Courts, and allowed to constitute, on
all occasions of dissension or irregularity, a sort of domestic
forum, wliose conduct has in almost every known case
been fully acquiesced in as lawful and right. The
decisions of the Courts at Westminster ^ with reference to
the Inns of Court have always been based on the pre-
sumption that such institutions are in a legal sense
voluntary societies, over which the ordinary, tribunals
have no jurisdiction, as in the case of corporations or
colleges.^
This remarkable feature in the constitution of the Inns How far this
of Court is no doubt to a great extent anomalous, and if ^^ ^°' ™^
it has rarely produced the usual evils of anomalous in-
stitutions, it is only fair to attribute this happy escape to
the prudent conduct of these honourable and learned
societies in the management of their affairs, and the main-
tenance of government and discipline.
SirWilliam Dugdale has carefully compiled from various Various
sources full information as to orders and regulations as to the inns
in any way relating to the Inns of Court, their order
of government, and duties and powers, both in regard
to legal education, the admission and rejection of
members, and the preserving proper discipline among
them ; and none of such regulations dates back beyond
the seventeeth century. No ordinance with reference to
these institutions emanating from the Crown or the
' Eex V. Gray's Inn, 1 Dongl. Eep. 354, was a case where a student who had
kept his terms at Gray's Inn applied to the Benchers to call him to the Bar,
but the Benchers refused him on some exceptions to his private character.
He then applied for a mandamus, and the Court of King's Bench refused to
interfere. Lord Mansfield observing that " though the original institution of
the Inns of Court nowhere precisely appears, it is certain they are not
corporations, and are without charters from the Crown, being voluntary
societies which for ages have submitted to government, analogous to that of
other seminaries of learning."
^ See Eex v. Benchers of Lincoln's Inn, 4 B. & C. 855.
of Court.
152
THE OEDEH OF THE COIF.
[Chap. V.
Return temp.
H. VIII.
Classification
as Inns of
Court and
Inns of
Chancery
modern.
Privy Council, the Judges or the Benchers, has an earlier
date than the reign of Philip and Mary ; ' and the Inns of
Court are not even mentioned in any Act of Parliament
before the next reign.^ There is no reference in any law
report before that time, to the Inns of Court as legally
constituted institutions;^ and a sort of return made to
the Crown in the time of Henry YIII. on this subject
seems very distinctly to show that there was not any
reliable previous account of the Inns of Court or their
system of rule.*
The classification of the Inns, their division into
greater and lesser houses, and houses of Court and houses of
Chancery, certainly formed no part of the older system of
the hostels of the apprentices of the law, which were
all known alike as Inns or houses of Court!"
' See these set forth in Dugdale's Orig. o. 64, p. 343 ; c. 70, pp. 310-321.
The Catalogus Ovibernatorum, in the first volume of the Registry of Lmcoln's
Inn, begins in 1425, 3 H. 6, an evident compilation of mnch more modem
date ; for there is continually & blank for the christian names, even that of
Fortescue not being given. The same volume of the Eegister gives the oath
of admittance, and the oath of the Governors under the date of 1439, 18 H. 6,
which seems on the face of it to have been then first introduced. See Dugd.
342. The list of Eeaders begins in 4 Edw. IV., and is as defective as that
of the Governors.
^ 5 Eliz. c. 1, which, enumerating persons required to take the oath of
supremacy, includes persons " taking any degree of learning in or at the
common laws of this realm, as well Utter Barristers as Benchers, Eeaders,
or Ancients in any house or houses of Court ; " and directs the Act to be
read once every year in all the Inns of Court and Chancery.
' The Judges' and Serjeants' remarks, referred to ante, p. 131, about
I'apprentices dans les hostels, temp. Edw. III., can hardly be cited to prove
that the Inns of Court were then legally regarded as of much importance or
consideration.
* In the Cott MS. Vitellius C 9, pp. 319 b-321 b, is the description given
to Henry VIII. " of the Inns of Court and the manner of study and preferment
therein." This MS. was much damaged in the fire that took place some
years ago, but Dugdale, p. 193, gives all that relates to the Middle Temple.
It is not easy to make out, from what remains of the MS. what this informa-
tion was as to the other Inns. See also Faustina, E. V. 29.
' The mootings and readings were from the first chiefly held in the lesser
Inns, where the Juniors of the Bar of the days of Edward III. are recorded
Chap. V.] FORTESCUE'S ACCOUNT INTERPOLATED. 153
It is long after the complete establishment of the Inns
of Court — long subsequent to the days of Fortescue —
that we hear of any settled order among them — any dis-
tinction between greater and lesser houses, or the division
into or classification of Inns of Court and Inns of Chancery.
The four houses of Court and the houses of Chancery are
made the subject of express regulation by the Privy
Council and Judges in 1557, 1559, and 1574; ' but except
these orders, and the return, already referred to, in the
time of Henry VIII., we have really very little proof of
the actual constitution of the Inns of Court even at this
period: and we have simply nothing to rely on as to their
previous state, except the very questionable chapter in the
work Ve laudibus leguin Anglice, published after that period Account in
on "■ the four famous Colleges," presented to the reader as if De laudibus
actually forming part of the work written by Chief Justice An"iL.
Fortescue in the days of Henry YI.,^ though the account
to have sometimes propounded rules of law which served to amuse if not to
instruct the graybeards of the coif. See Year Book, 29 Edw. III., fol. 47b.
In the report these Inns are called hospitia curiae, and Coke tells us how
Thavie's Inn, then a house of Chancery, had been from an early date a house
of Ouurt, wherein the apprentices of the law were wont to dwell. — 10 Coke,
Eep. xxin.
^ " Orders made and agreed upon to be observed and kept in all the four
Inns of Court," 22nd June, 3 & 4 Philip and Mary. — Dugdale's Orig. Orders
made All Souls' Day, 1 Eliz. Orders necessary for the government of the
Inns of Court established by commandment of the Queen's Majesty with the
advice of her Privy Council and the Justices of her Bench, and the Common
Pleas at Westminster in Easter Term, 16 Eliz. 1574, set out in Dugdale's
Orig. 311-312.
^ The first appearance in print of the work ' De laudibus legum Anglise '
was in the time of Henry VIII., when copies of the writings of Chief Justice
Fortescue were iu much request, and there were said to be copies in " divers
hands." An edition in 16mo. by E. Whitchurch is spoken of early in this reign,
and in 1599 Robert Mulcaster published an English translation. An early
editor speaks of the treatise having " long lain hid in obscurity under a bad
translation and other imperfections." — Pref. to ed. of 1741, p. 3. There are
MS. copies with other titles, e.g. De legibus et consuetudinibus Anglise and
Bibl. Cott. Otho E. 12 ; and Waterhouse, one of the editors, boldly asserts that
the copy he had was actually transcribed by Sir Adrian Fortescue on paper
154
THE ORDER OF THE COIF.
[Chap. V,
Accuracy ot
acoouut then
given.
Ascendancy
of the greater
Inns, pro-
gressive.
thus given of the Inns of Court bears on the face of
it evidence of being composed just before the date of
publication and many ages after the days of Fortescue ;
containing statements that Fortescue could not have made,
e.g. as to the number of the Inns,^ and their use as places of
abode,^ of study and of diversion ; ^ but the accounts quite
accord with the days of Elizabeth and Chancellor Hatton.
In the case of the Inns of Court, as in other institutions,
their ascendancy was heard rather by a continued course
of wise policy, than by any strict legal right or express
concession. The twelve grand livery companies for ages
counted only as so many out of the eighty or ninety
guilds in the City of London ; but when in course of time
containing a great variety of chapters. — Waterhouse, 215. Looking to the fact
that the modem version of Fortescue is so little to be relied on, we
may take the liberty of rejecting most of the observations on the chapters on
the Inns of Chancery and the Inns of Court, as spuiious additions made
more than a century after Fortescue's death.
^ Though this chapter (49) speaks distinctly of " ten lesser Inns,'' and
sometimes more, called the Inns of Chancery, and the Inns of Court properly
so called, four in number," yet the previous chapter speaks of there being one
place of study " a private place separate and distinct by itself, in the suburbs
near to the Courts of Justice." — 48, p. 109. In Fortescue's time there could
only be three greater Inns : the Society of the Middle Temple was not in
existence, the division of the Temple into Inner Temple and Middle Temple
not having been made till the time of Henry VII. See ante, p. 138. The
account of the lesser Irms, too, is certainly not in accordance with the state
of things in the time of Henry VI. either as to the number of the houses or
their subordination to the Inns of Court.
" About the very time that Fortescue wrote the actual abode of the
apprentices of the law seems to have been more in the lesser Inns than
Lincoln's Inn or the Temple. When in 1454, 32 Hen. VI., one of the many
Town and Gown riots occurred, a conflict between the Inns of Court men
and the citizens of London, during which there was serious mischief, we
find that members of Clifford's Inn, Furnival's Inn, and Barnard's Inn were
called to account, and the Principals of those three Inns sent to prison, but
no mention is made of the Temple, Lincoln's Inn or Gray's Inn.
' " There is, both in the Inns of Court and the Inns of Chancery, a sort of an
academy or gymnasium fit for persons of their station, where they learn
singing, and all kinds of music, dancing, and such other accomplishments
and diversions, which are called Revels, as are suitable to their quality, and
such as are usually practised at Court." — Fort. De laud. leg. Angl. c. 49, p. 3.
Chap. V.] THE FOUE INNS OP COURT. 155
these thriving societies distanced their competitors in the
race for superiority, they were received at Gruildhall as
the wisest and most sufficient of the mysteries}
The Inns of the apprentices of the law in like manner
seem long to have remained on an equal footing. The
old established hostels, the houses of Chancery as they came
to be called, had comparatively humble accommodation,
but ranked equally with Lincoln's Inn and Glray's Inn ;
and neither in those two learned institutions, nor in the
Temple, does there seem, until the sixteenth century, to
have been any recognised pre-eminence or precedence of
one . Inn over another, or any special privilege legally
conferred on the members of any of the Inns, or any
special powers on their governing bodies ; but when in
the course of time the fortunate occupiers of the Temple
and the two other great Inns flourished, we find them
recognised as "the four most famous colleges of law,"
taking the exclusive title of Inns of Court, and having
the lesser Inns subjected to their dominion and control.^
The sixteenth century was the real period when the
Inns of Court were first regularly constituted, there
being no books, or records, or reliable chronicles showing Absence of
that there were before that period,^ even in the greater
' See Herbert's History of the City Livery Companies, London 1838, and
2nd Eeport of the Municipal Corporation Commissioners.
" See post, p. 172 ; and Dugd. Orig. 322.
' See ante, p. 144. Writers on legal antiquities constantly refer to the
destruction of tie old records of the Inns of Court by fire and robbery ; and
special reference is made to the mischief done by the rebels in the time of
Eichard II. See p. 156. Though these lawless men, however, may
really have made a bonfire in the Temple, as Shakespeare depicts, in 1381,
and burnt all the records then existing, we have from that time a whole
century during which there is no record in either of the Inns in any
way relating to their affairs. There does not appear to be a single
reliable record of the Inns of Court of the days of Eichard II., Henry IV.,
or Henry V., or even Henry VI., or for several ages after the calamity
referred to.
156
THE ORDER OP THE COIP.
[Chap. V.
Precarious
tenure of
Inns of
Court.
Inns of
Court not
exclusively
occupied by
the lawyers.
Inus, either governors, treasurers, or readers,^ or indeed
any regular order of government.
Before the sixteenth century neither of the four Inns
of Court really belonged to the societies of the students
or apprentices of the law, either as owners or even as
sole occupiers. They were held on a somewhat pre-
carious tenure, involving various obligations and liabilities,
together with rent and other charges, the real owners
having not only the power to evict, but right of residence
whenever required for themselves, treating the ap-
prentices of the law more as lodgers than ordinary
tenants.
The Knights Hospitallers kept up their abode in the
Temple for ages after the lawyers had their lodgings
there,^ and the new Temple seems to have been up to
the time of the dissolution of the monasteries, the head-
quarters of the master of the order,^ who kept up a large
' See ante, p. 144. In Lincoln's Inn and the Temple the earliest appomt-
ments were of Governors, the catalogue beginning in the Temple in 1506,
and Lincoln's Tnn as early as Henry VI., though imperfect. See Dugd.
Orig. 172, 257. The chief officer in the Middle Temple and Gray's Inn was
always the treasurer, the earliest Middle Temple entry being in 1501,
see Dugd. 221, whilst no such officer was appointed in Gray's Inn
until 1531, when we find a distinct entry of Will. Walsingham primus
Thesaurarius. — Dugd. Orig. 298, quoting ex Eegistro Hosp. Grayensis, vol. i.
fol. 115 a.
" The Knights Hospitallers, as well as their predecessors the Knights
Templars, seem to have kept up their stately abode, the New Temple, with
no niggard hand. It was here that Royal visitors were entertained, and
sometimes a Parliament held, and when the rioters devastated the New
Temple in 1381 we are assured very soon after by a reliable authority,
Thomas of Walsingham, that it was done, not as the popular story had it, to
spite the lawyers, but the unpopular ecclesiastics who were the lords of the
place, "satis maliciose etiam locum qui vocatur Temple barr, in quo
apprenticii juris morabantur nobiUores diruerunt ob iram quam conceperant
contra Robertum de Hales Magistrum Hospitalis Sancti Johannis." Thomas
of Walsingham, in an. 1381. Dugd. Orig. 145.
' Records of the date of Henry VII. show that there was then a regular
establishment of priests in the Temple, with the hall and lodgings assigned
to them. See Dugdale, Orig. 173.
Wilton.
Chap. V.] OCCUPATION BY LAWYERS. 157
establishment there as well for religious purposes/ as not
unfrequently in order to entertain the grandees of the
land.*
The Inn of the Bishops of Chichester, long known as Lincoln's
Chichester Inn ^ before it got the name of Lincoln's Inn/ by's'ishoprof
seems to have been the Bishops' ordinary town residence, Winchester.
and to have been so used until 1536, when, having
granted to the law students a long lease, the Bishops at
last parted with their entire interest.^
The Lords Gi-rey de Wilton kept up Gray's Inn, with Gray's inn
its belongings, the manor and chapel of Portpole, until Giey of
the beginning of the sixteenth century ; there being, as
it seems, small accommodation for the apprentices of the
law until 1507, when the Society acquired the property
^ The clerical establishment of the Master of the Temple, long after the
dissolution of the monasteries, consisted of four stipendiary priests and a
clerk. See StoVs Survey, p. MO, 762-3.
2 In the famous scene in the Temple Gardens in Shakespeare's Henry VI.,
the grandees of the two factions of the Eoses appear to have had command
not only of the garden, but the hall.
" Within the Temple hall we were too loud ;
The garden here is inore convenient."
First Part of King Henry VI., act ii., so. 4.
' See ante, p. 143. The " Chichester " Inn is referred to in numerous records
going back to the days of Edward I., when John Briton, Custos of London,
interfered with the obstructions and annoyances caused in the road to the
Bishop's Inn called Chancellor's Lane.
* Lacy, Earl of Lincoln, died in 1310, in a mansion he had himself built
in or near the Bishop of Chichester's land.
' There were leases from the Bishops of Chichester to the students of the
law, reserving rent and lodgings for the Bishops, on their repairing to
London: and one of these leases (granted temp Henry VII. to Francis
Sulyard) only expired in 1535, when it was renewed by a lease to William
Sulyard, also a Bencher, for 99 years, see Dugd. 231; and by subsequent
arrangements made through the Sulyard family, who had bought up the
interest of the Bishop of Chichester, the Inn became the freehold property of
the Society under the name of Lincoln's Inn, to hold of the Lord Prior of St.
John of Jerusalem, chief lord of the fee by the services thereupon due and
of right accustomed. See the copy of the deed, Eeport Commrs. Inns of
Court, 242.
158
THE ORDER OP THE COIF.
[Chap. V,
from the Prior and Monks of Shene, who purchased it
from the Grey family.^
Number of AccordinsT to the doubtful version already referred to,
members of p /^ » • i j_ j_- j
Inns of Court, of the chapter "on the Inns oi Court in the treatise de
laudibus legum Anglise, there were even in the time of
Henry YI. upwards of eighteen hundred students in the
various Inns;^ but this account serves to confirm the
doubts of the accuracy, and indeed the authenticity,
of this chapter as Fortescue's own writing. There were
not such a number even in Coke's time ;^ and a reliable
writer in the latter part of the reign of Elizabeth shows
from the books of the Inns that there could not have
been before that time a third of the number spoken
of in the edition of Fortescue ; * and so late as 1596
there was so little room for the members already ad-
mitted that it was necessary to prevent new admissions
' The deeds, wbicli are dated 1506-7, and set out by Dugdale, show the
conveyance to Hugh Dennys and others as trustees for the Society of Gray's
Inn. The trustees do not seem to have been members of the Society of
Gray's Inn. Serjeant Pigot, from the Inner Temple, and Serjeant Brooke,
from the Middle Temple, being two of them.
^ " There belong to it (the legal university) ten lesser Inns and sometimes
more, which are called the Inns of Chancery, in each of which there are an
hundred students at the least, and in some of them a far greater number,
though not constantly residing . . . after they have made some progress
here and are more advanced in years they are admitted to the Inns of Couit
properly so called ; of these there are four in number. In that which is the
least frequented there are about two hundred students. Fort. c. xlix. 3 Eep.
Pref.
' See Feme, Glory of Generosity, p. 24, Lond. 1586, and Dugd. Orig. p. 143.
The first printed edition of Fortescue was about the same time. See Preface
to 2nd ed. p. 52.
* Imprimis that no more in number be admitted from henceforth than the
chambers of the house will receive after tiuo to a chamher, nor that any more
chambers shall be builded to increase the number, saving that in the
Middle Temple they may convert their old hall into chambers not exceeding
the number of ten chambers. " Orders necessary for the government of the
Inns of Court established by commandment of the Queen's Majesty with the
advice of her Privy Council and the Justices of her Bench and Common
Pleas at Westminster, ann. 16 Eeginro Elizabethse 1574."
Chap. V.] SCANT SUPPLY OF CHAMBERS. 159
in any of the Inns of Court until chambers were
vacant.^
It seems clear that previous to the legal arrangements Aocommoda-
„,,.. p,. , ,-r ™ tion for law
01 the begmnmg oi the sixteenth century, the Inns oi students in
Court had neither of them accommodation for the per- court.
manent abode of any large number of apprentices of the
law. If we look even at the map of London published at
the beginning of the reign of Elizabeth, we shall see how
small a portion of the present area of the Inns of Court
was then at all built on. Immediately adjacent to the
highway of Holborn will be observed in these maps the
hall and contiguous buildings ; of Grray's Inn on the
north side, and the hall gateway and other buildings in
Lincoln's Inn on the south ; but these buildings in
Lincoln's Inn and Gray's Inn hardly include a fiftieth
part of the area of either Inn ; the rest of the area
consists of mere fields, or garden-land, or avenues of
trees just as they were when the ancient lordly or
ecclesiastical owners were the occupiers. The same Old buildings
remark will apply to the Temple. The old map shows Temple.
the gates, the church, and the old hall, with some very
limited range of adjacent tenements ; but the pro-
portion of uncovered ground is quite as great as in
the twa other Inns.
The account we have of the course of building in Proaressof
building in
the Inns of Court serves to show how very recently, tbe inns of
in comparison with the received dates of the settle-
ment there of the several societies of lawyers, proper
accommodation was made for their reception — how very
few chambers there were in the Temple or Lincoln's
' At Serjeants' Inn 20tli of June, 38 Eliz., agreed by all the Judges, by the
assent of the benchers of the four Inns of Court, that hereafter none should be
admitted into Inns of Court till he may have a chamber within the house
and in the meantime to be of one of the Inns of Chancery."
160 THE ORDER OP THE COIP. [Chap. T,
Inn in the time of Henry VIII., or even of Elizabetli ^ —
bow distinctly the work of building is to be traced to
a date long subsequent.
Slow progress In the Temple, with the exception of the church,
hi the ^^^ the cloisters, the hall, and other ecclesiastical or
■temple. monastical siructures, there was at the time just
referred to hardly a building of any large dimensions.
There really was none of any long standing, throughout
the Inn. There was indeed at that time the most
scant houseroom for the members, the poorest ac-
commodation for the purposes of legal study or legal
practice. The Hound of the Temple church, like the
Pervis of St. Paul's,^ was for ages professionally resorted
to and used both by students and practitioners of the law,^
From the old maps as well as from other proofs there
does not appear to have been a single building south
of the terrace from "Whitefriars to Essex House ; * for
it must be remembered that it was hardly practicable to
build below that line until 1525, when the river wall
was first made.^ Long after that time the course of
building operations was but slow. We hear of Paking-
» See anU, pp. 142, 152.
' See aute, p. 3.
' The legal meetings and attendances and consultations, in the " Round "
of the Temple Church are referred to by Ben Jonson in the ' Alchemist,'
and Samuel Butler in ' Hudibras,' part 3, o. 8.
The old cloister walks and their use by the students, for legal disputations,
or " putting cases," and the policy of rebuilding them after the fire of
London, are referred to by Roger North, ' Life of Guilford,' vol. i. 27.
* The old map already referred to distinctly shows this. From White-
friars Gate to Arundel House in the Strand there is not a single building
below the line of the Inner Temple Hall, whilst there is open space
immediately above the Hall, and Elm Court still marks where the large
trees grew, and the rookery that lasted to the days of Goldsmith.
" " The wall betwixt the Thames and the garden was begun in 16 H. 8, Mr.
John Pakington (afterwards Serjeant-at-law) and Mr. Rice being appointed
overseers of the work."— Dngd. Orig. 146, quoting Reg. Int. Tempi., vol. i.
fol. 68 b
Chap. V.] BUILDINGS IN THE TEMPLE. 161
.ton's rents/ as well as Barington's rents and Bradshaw's
rents, called after Treasurers of the time of Henry VIII.,
but it was not till the seventeenth century had begun
that any considerable progress had been ' made, the
place properly enclosed, and a system of building under
a sort of building lease introduced. At the end of
Elizabeth's reign, when the Temple Grardens were en-
closed,^ we hear of rough lodgings being provided for the
students between the church and HalP by Sir Julius
Caesar, who was then Treasurer, and a few years after was
instrumental in obtaining the grant of the Temple from
James I. The present Inner Temple gate only dates back
to 1610,* soon after which the chambers in Inner Temple
Lane and other building operations were carried out.^
' " Serjeant Pahington was Treasurer here in 20 H. 8, and caused the Hall
to be seeled. He also built divers chambers between the Library and
Babington's rents (built not long before), and gave ten pounds to the
treasury ; for which respect it was ordered by the Society, February 1534,
that those new chambers should be called Pakington's rents. The lodgings
in that court now known by the name of Tanfield Court (by reason of
Sir Lawrence Tanfield, Chief Baron's residence there) were first erected by
Henry Bradshaw, Treasurer, in 26 H. 8, whence they were long afterwards
called Bradshaw's rents." — Dugdale, 146.
^ " In 31 Eliz. two sides of the gardens were enclosed with a brick wall,
and the postes whereon the 12 celestial signes are placed, then set up,
Eobert Golding being at that time Treasurer." — Dugd. 147.
' "In 38 Eliz. there were divers lodgings in rough-cast work built
between the church and the Hall on the east part of that court. Towards
the charge thereof Sir Julius Caesar, then Master of the Kolls, gave £800, in
consideration whereof he had power to admit any gentleman into the
Society during his life : which buildings are still called Caesar's Buildings." —
Dugd. 147.
* " In 8 Jac. John Benet, Esq., then one of H. M.'s Serjeants at arms, built
the gate called the Inner Temple Gate."- — Dugd. 147, quoting from the
Eegister of the Inn for 1610. The rooms over this gateway, which are
elaborately ornamented, have^ long been used with great advantage for
a hair-cutting saloon, and large letters on the outside tell the visitors that
it was the palace of Henry VIII, and Cardinal Wolsey — an opposition story
to that fastening on the old gate of the Middle Temple about Cardinal
Wolsey and Sir Amias Paulet. See ante, p. 149 and post, p. 162.
^ Dugd. ib., e.g. King's Bench Walks, Paper Buildings, and Crown Office
Kow were all built about this time.
31
162 THE OEDEB OF THE COIF. [Chap. V.
Middle If we turn to the Middle Temple we find the famous
buMings. Hall built by Plowden in 1562-1572, and various sets of
chambers built within the century ensuing ; but previous
to the building of the Middle Temple Hall the Lawyers
seem to have had there but a scant supply of chambers
or lodgings.^ The gateway from the Middle Temple
into Fleet Street, fantastically ornamented by Sir Amias
Paulet in 1516,^ appears as the chief structure formerly
existing.
ThechamlDers The accommodation for Barristers or law students in
Inn. Lincoln s Inn, before or since it acquired that name,* seems
to have been even as little provided for as in the Temple.
The building of the gatehouse, in the time of Sir Thomas
Lovell, is said to have taken up thirteen years * and the
erection of the hall and chapel many more, but the work
of providing chambers or lodgings for the Barristers or
students was apparently disregarded. The old maps show
no buildings at all, except the north end of the Inn. The
part now called Old Buildings dates back only to 1602.
1 The return made to Henry VIII. as to the Middle Temple stated that
there were no lands nor revenues belonging to the house, Dugd. 193 ; and
speaks of the Treasurer gathering a tribute or pension of 3s. Ad. a head, and
the value of certain chambers or lodgings, to pay the rent of £10 due to
the " Lord of St. John's," and the wages of officers and servants, which then
amounted to about the same sum. See Dugd. p. 196.
^ The accounts of this gateway vary. Tho old story makes out that
Paulet, against whom Cardinal Wolsey had an ancient grudge, was an
involuntary occupant of the Temple, and having assigned to Mm as his
residence the gateway of the middle house, he set to work to rectify
and improve it, and, by way of a peace-offering to Wolsey, he decorated the
outside with the Cardinal's hat and coat-of-arms, etc., and other devices,
which Wolsey's biographers especially mention. As a fact the famous
decorator of the Middle Temple gateway was at the time Treasurer of the
Society. He appears in the Catalogus Thesaurariorum as Amistus Poulet
Miles, 12 H. 8. See Dugdale, Orig. 221. The gate with its quaini decorations
continued up to Dugdale's time, but it was pulled down in 1684, and the
present gate substituted.
' Vice Chichester Inn, Haverhill Inn. etc. See ante, p. 157.
* 23 Hen. VII. till 12 Hen. VIII.— Dugd., 232.
Chap. V.] LINCOLN'S INN AND GEAY'S INN. 163
The rest of the Inn consisted of garden or grass land with
plenty of trees, and, as it would seem, a good supply of
rabbits.^ The larger part of that now built on was most
of it acquired at a much later date.^
Long after its being counted among the four famous Gray's inn.
Inns of Gourt, Gray's Inn seems to have afforded but
poor lodging accommodation for the members and
students of the law. Dugdale describes the chambers as
ill-constructed, slender, mean, and disagreeably incommo-
dious ; ^and even up to the time of Bacon we hear less of
the amelioration of this state of things than of Bacon's
work of planting elm-trees, and laying out the walks
and gardens.*
' The conveyance of the Inn by the Bishop of Chichester to the Suljards
in 1536 describes it as " all that great messuage commonly called Lincoln's
Inn, with the courts and curtilages, gardens and the garden called the
connygrath formerly called the Cotterell garden." Deed poll from Eichard
Bishop Chichester to William and Constance Sulyard, dated 1 July,
28 Hen. YIII. set forth in Appendix to Eeport of the Inns of Court Com-
missioners of Inquiry, p. 242; and the students attending the readings were
by old orders strictly prohibited from hunting or shooting the rabbits.
^ The New Square was acquired by means of purchase from the Series
in 1682. See ante, p. 143, n. 4.
* Even the ancients of the house were necessitated to lodge double ; for at
a pension held here 9 Julii, 21 Hen. VIIL, John Hales, then one of the Barons
of the Exchequer, produced a letter directed to him from Sir Thomas Nevile
to acquaint the Society that he would accept of Mr. Attorney-General (viz..
Sir Christopher Hales) to be his bed-fellow in his chamber here, and that
entry might be made thereof in the book of their rules. — Grig. c. 67, p. 273.
* " I next come to the walks, which are very large and beautiful. Of these
the first mention that I find is in 40 Eliz. Mr. Bacon (viz., he who was
afterwards Sir E. Bacon Knight Lord Verulam and Chancellor of England)
having upon his account made in 4 Jac allowed the summe of £7 14s. to be
laid out for planting elm trees in them, of which elms some died as it seems ;
for at a pension held here 14 Nov. 41 Eliz. there was an order made for a
present supply of more young elms in the places of such as were decayed ;
and that a new rayle and quickset hedges should be set upon the upper
long walk at the discretion of the same Mr. Bacon and Mr. Wilbraham : which
being done, amounted to the charge of £10 6s. 8d. as by the said Mr. Bacon's
account allowed 29 April 42 Eliz. appeareth." — Eeg. Hosp. Grayensis, vol. 1,
fol. 246 a, quoted by Dugd. Orig. 273. Verulam Buildings were erected more
than two centuries after Bacon's death.
M 2
164 THE OEDER OF THE COIF. [Chap. V.
Classification Sir E. Coke' describes the ordinary gradation of mem-
of members. ^^^^ ^^ ^^^^ Mootmen ov Students;^ secondly, Utter Bar-
risters;' thirdly, Ancients;* fourthly, Eeaders and Double
Readers;' and fifthly, the Serjeants-at-law, the King's
Serjeants, and the Judges,*
In each of the Inns of Court this classification seems
to have been nearly as Coke describes it, viz., beginning
with the Juniors, came first the ordinary members of the
house, the Students or Mootmen,' sometimes called
1 3 Co. Eep. Procem.
^ Mootmen are those that argue Eeaders' cases in the houses of Chancery,
both in Terms and in Grand Vacation. — 8 Co. ib.
s Out of the Mootmen, after eight years' study or thereabouts, are chosen
Utter Barristers.
The status of Utter Barrister could be obtained even up to the
end of the sixteenth century in the lesser Inns or Inns of Chancery, as
■well as in the greater Inns. Thus it was provided by orders made at
Lincoln's Inn in 1568 that the Utter Barristers of Furnival's Inn of a year's
continuance, and so certified and allowed by the Benchers of Lincoln's Inn,
shall pay no more than four marks apiece for their entrance into that
Society.— Dugd. c. 65, p. 276, quoting Eegist. 5, Hosp. Line. fol. 8. And by
an entry made in the same Eegister in the next year of the rules of
Furnival's Inn, it is provided that every fellow of this Inn, who hath been
allowed an Utter Barrister here (Furnival's Inn) and that hath mooted here
two Vacations at the Utter Barr, shall pay no more for their admissions into
the Society of Lincoln's Inn than I3s. id., though all Utter Barristers of any
other house of Chancery excepting Thavies Inn should pay 20s. — 21 Jao. 1,
c. 23 s. 6.
^ Out of Utter Barristers, after they have been of that degree twelve years
at least, are chosen Benchers or Ancients. — 3 Co. Procem.
* Of the Ancients, one that is of the puisne sort reads yearly in Summer
Vacation ; and one of the Ancients that hath formerly read, reads in Lent
Vacation, and is called a Double Eeader, it being commonly between his
first and second reading about nine or ten years : out of which Double
Eeaders the King makes choice of his Attorney and Solicitor General, his
Attorney of the Court of Wards and Liveries, and his Attorney of the
Duchy. — Ib.
* " Of these Eeaders Serjeants are elected by the King ; and out of these
the King electeth two or three as he pleaseth to be his Serjeants ; and out of
these are the Judges chosen."— Ib.
' Coke describes Mootmen as those that argue Eeaders' cases in the houses
of Chancery both in Term and Grand Vacation. — 3 Eep. Preface by the
arrangement of the halls of the four of the Inns of Court there seem formerly
to have been three distinct divisions. The lower part was environed by a
bar of wood or iron below which came the ordinary members, the students
Chap. V.] EULING BODY IN INNS OF COURT. 165
Gentlemen under the Bar or Inner Barristers, corres-
ponding with the undergraduates of the Universities;
secondly, those of eight years' standing who had performed
the prescribed exercises, passed the Bar, and become Utter
Barristerii or Apprenticius ad Barros, corresponding with
University graduates.
How the ruling body in the Inns of Court was originally The ruling
constitu^ted does not very distinctly appear. In all of inns^of
them, as in the case of the old guilds and fraternities, *^°'"*'
seniority or ancientry doubtless afforded the ordinary
qualification for a seat on the Bench, or place of authority ;
and \kiQ position of Ancients in this respect may be easily
traced back in the books of the various Inns, the title
" Principal and Ancients " belonging, as it would appear, to
the ruling body in all the Inns, as it has continued to this
day in the lesser Inns.^ Such appears certainly from old
records to have been the legal description of the ruling
bodies of Gray's Inn,^ as well as of the Middle Temple ; and
or mootmen, who were called sometimes Under Barristers, sometimes Inner
Barristers. — Dugd. 243. The second part of the hall was reserved for those
who after sufficient standing in the lower grade were called to the Bar, and
thenceforward denominated Titter Barristers. The higher division was on a
raised floor and bench, where sat the ruling body, the Governors, Headers,
Ancients, and other Benchers of the Inn, with the Serjeants elect who
had writs to be called to the Coif, but were not yet created Serjeants. Whilst
the last, therefore, had the highest plan, and the Utter. Barristers came
next, the junior position was that of Under or Inner Barrister, whose place
was within the Bar, in exactly an opposite sense from the calling within the
Bar of the Courts.
' The constitution of the Inns of Chancery was always made up of the
Ancients and Students or Clerks, the Principal or Treasurer being yearly
chosen &om the Ancients; and in 1488 the Principals of Clifford's Inn,
rumival's Inn, and Barnard's Inn, were alllsummarily dealt with for a tumult
between the gentlemen of the Inns of Court and the citizens. See Dugdale,
Grig. Jur., 310.
^ The inheritance of Staple Inn is stated in the Gray's Inn Eegister to
have been granted in 1529 to the Ancients of Gray's Inn, who from time to
time passed the freehold to other Ancients their successors ; e.g. Sir Francis
Bacon, Lord Verulam and others, as such Ancients, so passed the inheritance in
1622. See Dugd. Grig. c. 68, p. 310, quoting Eeg. Hosp. Grayensis, fol. 218.
and Benchers.
166 THE OEDER OF THE COIF. [Chap. V.
the position of the Ancients is certainly recognised at all
events in the records of all the Inns.*
Gk)vernors In Lincoln's Inn and the Inner Temple we find, up to
the early part of Elizabeth's reign, two, three, or more
annually appointed Governors,^ but the offices or places of
Benchers or Masters of the Bench probably existed at the
same time with that of Governors : for the Benchers of all
the four Inns are spoken of in the " orders for the regula-
tion of the Inns of Court and Chancery," at a much earlier
period.^ The Benchers seem to have consisted of those
who had served the office of Header,^ or those seniors
among the Utter Barristers who had been excused from
the labour of reading, and got the name of Ancients.^
' Each of the four greater Inns has for many ages in all formal proceedings
been described as if incorporated, the constitution of the Society not being
stated, e.g. " The Honourable Society of the Inner Temple " included the whole
body of members. In old times a different rule prevailed. " The Honourable
Society of Gray's Inn" is described as of "the Benchers, Ancients
Barristers, and Students of Gray's Inn." In the Middle Temple the term
" Ancients " applied to those who by seniority should have been chosen
" Readers " but were not so elected.
' The Catalogus Oviernatorum of Lincoln's Inn, which is very imperfect,
commences with a few names, temp. Hen. VI. and ceases in 17 Eliz., when the
number was thirteen, and then these names reappear as Benchers. See
Dugd. 261. The Inner Temple Cat. Gub. extends from 21 Hen. VII. to 8 Eliz.,
and the number never exceeds four.— Id. ib. 172.
^ See orders temp. Philip and Mary.
* See Dugdale, Grig. 193, quoting Cotton MS. 320, Vitellius C. 9. In 1558
an order was made that every man called to the Bench of the Inner Temple,
should keep some learning vacations both after his calling to and
coming to the Bench. The Catalogus Oubernatorum Hosp. Int. Temp,
given by Dugdale begins in 1506 and ends in 1566, when the title of Guber-
natores gave way to that of Benchers. — Dugd. Grig. c. 70, p. 315.
^ The " Ancients " of the Inns of Court form the subject of one of the
essays in Charles Lamb's ' Elia.' In " The Old Benchers of thelnner Temple "
he pictures a number of eccentric characters, describing the pomposity of
Thomas Coventry, the pensive gentility of Samuel Salt, and of a contemporary
who, as Lamb tells us, was subordinate to them, " Daines Barrington, another
oddity," burly and square, in imitation of Coventry. " When the account of
his year's treasurership came to be audited, the following singular charge
was unanimously disallowed by the Bench : ' Item disbursed. Mr. Allen, the
gardener, twenty shillings, for stuff to poison the sparrows by my orders."
Some account of Mr. Daines Barrington has already been given. See ante, p. 28.
Chap. VJ
BENCHERS ANJD READERS.
167
meeting.
Different designations describe the assembly of the Place of
ruling body of the various Inns. The meeting of the
Benchers and Ancients of Gray's Inn has been always
called a Pension} In Lincoln's Inn the Benchers' meeting
is called a Council, whilst in the two Inns of the Temple
the assembled Masters of the Bench constitute a Parlia-
ment, the ordinary place of meeting being called the
Parliament Chamber?
The number of Benchers does not appear to have been
fixed by any order or rule. The course, no doubt, as old
members died or ceased to belong to the Inn, was to
advance all the Readers and most deserving of the Ancients,
or perhaps those who had most influence.^
The Bench was thus in each of the Inns of Court in
due order filled by those who were Readers, or had
Election
of new
Benchers.
^ The Principals and Ancients of New Inn call their meetings Pensions
and their place of meeting Pension Rooms. The name Pension is also the
designation of the Inns for the annual payments of members of the house to
the Inn, and members when in arrear for pensions are by the old orders liable
to peremptory legal proceedings, and when the pension writ has been
issued members were to be excluded from commons till payment of the
arrears of pensions.
^ These distinctions between the deliberative assemblies of the different
Inns were formerly very strictly observed; e.g. the Orders of the Privy
CouncU in 1664 for the government of the Inns of Court and Chancery,
providing " none to be called to the Barr by Readers, but by the Bench at
Parliaments Councells and Pensions." — Orders 18 June, 16 Car. 2, § 7.
See Cromp. Jur. 1.
The meeting in Common rooms in convents was called Parliamentum.
Matt. Paris speaks of the Abbot of Croyland as in the habit of calling a
Parliament of the monks to consult about the affairs of the monastery.
At one time the call to the Bar was by the Readers immediately after the
moots.
^ Francis Bacon was elected Bencher of Gray's Inn in February, 1586, at the
age of 26 ; but then Lord Burleigh was his uncle. He had been made an Utter
Barrister in 1582, before his proper time ; but one of the most famous of
former Treasurers of the Inn was Sir Nicholas Bacon, who, we are told by
a quaint old writer, was " a man of a gross body, but of great acuteness
of wit, of singular wisdom, of great eloquence, of an excellent memory, and
a pillar as it were of the Privy Council. He was, in a word, a father of his
country and of Sir Francis Bacon." — David Lloyd, State Worthies, 472.
Call to the
Bench on
receipt of
Serjeants'
writ.
168 THE ORDER OF THE COIF. [Chap. V.
performed the exercises of learning belonging to that
office. The titles lector and duplex lector seem to attach
to the majority of the names in the old lists. These were
a] so admitted with the Ancients of the Inn, who were
excused from filling the office of Eeader ; but it was a
well-settled rule that any Serjeant elect or member of
the Inn who received a writ to become Serjeant,
whether or not at the time Eeader or past Reader,
took his seat on the Bench immediately on receiving
his writ,^ and continued Benchers till the return of
the writ ^ and the ceremony of the creation of Serjeants
being completed, he was admitted to one of the
Serjeants' Inns, and then left the Inn of Court in due
state and form, to return on all grand occasions as a visitor
or guest of the house.*
^ With, regard to the call to the Bench of the Inn, it was quite immaterial
whether or not the Serjeant elect was about to be made Judge.
* "If any member of this house receive a Serjeant's writ, he is then
forthwith placed at the upper end of the Bench table above all other
Readers, as being a Serjeant elect, though not complete ; and notwithstanding
such his writ he continues still a Bencher and in commons until the day of
Bolenmity and receiving of the Coif." — Dugd. Orig. 211.
This was the case in the Middle Temple, where the first four on the list
of Readers are recorded as Serjeants, Dugdale, 215 ; and it clearly was the
general practice. Thus Dugdale gives from the Oatalogus Lectorum of Gray's
Inn, 1577, the name of Eob. Shute, duplex Lector, electus quia ad gradum Serj.
ad legem vocatus, Orig. Jur. 294, and in 1580 Thomas Snagg under the same
circumstances. Previous to the 59 Geo. 3, c. 113, enabling the Crown to
create Serjeants-at-law in Vacation, the writ was always returnable on some
day certain in Term. See form, ante, p. 31.
^ This seems clearly to have been the recognised rule. The ancient
practice of the Inns of Court presenting a purse or glove of money by way
of honorarium or de regardo to the Serjeant elect, and taking part in the
ancient ceremonies observed at his creation is thus explained by Dugdale : —
" When any Serjeant-at-law of this Society (the Middle Temple) is made
a Judge, he is accompanied to Westminster Hall by all the fellows of the
house, as being a fellow member with him : and being a Judge, the Bench
resort unto him often times for his advice and assistance in matters
touching the governance of the house." — Dugd. Orig. 211.
The ancient observance of the retaining donant of the new Serjeant-at-law
is kept up in some of the Inns of Court to this day. See Report of Com-
missioners of Inns of Court, 1853, Appendix, p. 236-7.
Chap. V.] INCREASE OF KING'S COUNSELLOES. 169
The King's ordinary Counsellors in the law, in The call to
addition to the King's Serjeants, e.g. the Attorney- of Queen's
and Solicitor-G-eneral, the King's Attorney of the Court ^^omsd.
of Wards and Liveries, the King's Attorney of the
Duchy of Lancaster, etc., were probably from the first
made Benchers of their Inns, if not already so qualified
by having been Readers ; and Dugdale's Catalogus
Lectorum of each of the four Inns certainly contains the
names of men holding these and other high law offices.^
But as will be seen hereafter, the " Queen's Counsel," in
the modern sense of the term, were not then known.
The practice just referred to of at once calling to the claim of
Bench of the Inns of Court the law officers of the Crown counsel to be
on their being appointed, seems at various times to ha^e ?^ii°iiers de
caused much trouble. In the case of the first patent
of King's Counsel, no question of admission to the Bench
arose. Sir Francis Bacon had already been a Bencher of
Gray's Inn eighteen years before he got his patent as
one of H.M. Counsel. In the second instance, however,
the case was different. Francis North, unlike Francis
Bacon, was not already a Bencher when in 1668 he
obtained his patent to be one of H. M's Counsel, and
at the Parliament of the Middle Temple the Benchers
demurred to his claim to be admitted among their
number. Those were not times when it was thought
wise for the Bar to act in opposition to the King's patent,
or the King's Judges, and the Benchers of the Middle
Temple, we are told, were severely reprimanded in
^ There are a number of instances in Dugdale : and in 1552 we find as the
Treasurer elected for Gray's Inn, the name of Bacon's father, ' Nich. Bacon,
arm. Attomatus Dom. Eegis in curia sua Wardorum.' — lb. 298.
Many of the Treasurers and Eeaders are described as being subsequently
de Concilio Beg. in partibus -Borealibus. We need hardly suggest that there
Is no pretence for mistaking these for Queen's Counsel in the North.
170
THE OEDER OP THE COIF.
LChap. V.
Westminster Hall by the Judges, who refused to hear any
of them in Court until they had elected Mr. North} The
Judges having resorted to this lawless expedient, the
Benchers of the Middle Temple gave in, and Mr, North
was duly received as one of the Masters of the Bench.
Rule as to It at- length became the practice at each of the Inns of
Queen's r-t r t-» • t ^ • ■\
Counsel being Oourt, for every Barrister, as soon as he obtained a patent
Bench. to be One of H. M's. Counsel, to send his patent to the
Treasurer of the Inn ; and up to the year 1845, it was
the custom to elect the newly-made Queen's Counsel as
one of the Benchers at once. The number of Queen's
Counsel had enormously increased, there being, in fact,
no limit to the number, no prescribed qualification for
the appointment ; ^ and the Bench table of two at least
of the Inns of Court was almost exclusively occupied
by gentlemen thus eligible. In the words of a late
Vice-Chancellor, "the multitudinous and indiscriminate
' Eoger North gives us an account of this incident in his brother's career
in his usual style. He says, "The rulers of the Society called Benchers
refused to call his Lordship after he was King's Counsel, up to the Bench ;
alleging that if young men by favour so preferred, came up straight to the
Bench, and hy their precedence stopped the rest of the ancient Benchers,
it might in time destroy the government of the Society. Hereupon his
Lordship forebore coming into Westminster Hall for some short time,
hoping they would be better advised ; but they persisting, he waited upon
the several Chiefs, and with modesty enough acquainted them with the matter,
and that as to himself he would submit to anything : hut as he had the honour to
he H. M.'s servant he thought the slight was upon the King, and he esteemed it his
duty to acquaint their Lordships with it, and to receive their directions how
he ought to behave himself, and that he should act as they were pleased to
prescribe. They all wished him to leave this matter to them, or to that effect.
The very next day in Westminster Hall when any of the Benchers appeared
at the Courts they received reprimands from the Judges for their insolence ;
as if a person whom his Majesty had thought fit to make one of his
Counsel Extraordinary was not worthy to come into their company ; and
so dismissed them unheard, with a declaration that until they had done
their duty in calling up Mr. North to their Bench, they must not expect to
be heard as Counsel in his Majesty's Courts." This was English ; and that
evening they concurred, Mr. North was made a Bencher, and the Judges
were appeased.
' Seeijosi, p. 193.
Chap. V.] H. M.'S COUNSEL EXTEAORDINAEY. 171
creation of Queen's Counsel has made tlie number of
Benchers in the two most considerable of the Inns of
Court too unwieldy for the proper government of those
Societies." ^
At length, in 1845, a gentleman belonging to the Mr. Hay-
.^,^ ., ward's case.
Inner Temple, oi unquestionable character and social
position, having obtained H. M.'s patent creating him
" one of her Counsel learned in the law," applied to the
Benchers of the Inner Temple to admit him to the
Bench, and on their refusal appealed to the Judges at
Serjeant's Inn. The Judges after fully hearing the case,
dismissed the appeal, holding that it was entirely with
the Benchers to choose who should be called to the
Bench.^
The Inns of Court being legally deemed voluntary BeBohers
societies,^ and the ruling body being, as we have seen, control.
in a manner self-elected, without any vote on the part of
the ordinary members or their having any voice, the
Benchers seem always to have been subjected to super-
vision and control on the part of the Judges. In the oldest
records we have of any appeals from the acts of the
Benchers, the appeal was not to the whole Judicial Bench,
but only to those who previously had been members of
the particular Inn about which the matter in dispute
arose, but gradually the tribunal came to consist of all
the Judges of the Coif, being usually confined to the
Judges of the Common law Courts ; * and this domestic
' Keply of Vice-Chancellor Stuart, Inns of Court Report, 202.
" See Eeport of the proceedings before them as Visitors of the Inns of
Court on the appeal of A. Hayward, Esq., Q.C., privately printed and
published. London : Benning & Co., 1848.
' See ante, p. 123.
* It never included any others, e.g., the Equity Judges, etc. What may
be the course to be taken in future may be a question.
The practice of making the tribunal of appeal from the decision of
172
THE ORDER OP THE COIF.
[Chap. V.
Control over
the Inns of
Chancery.
forum has suflSced in most cases to ensure justice being
really done, whether the controversy has been about the
conduct of individual members of the Inn, or the action
of the Benchers in questions of election, or in the manage-
ment of affairs of the Inn.
The regulations of the Inns of Chancery are far away
from the subject of this work. These hostels doubtless
once formed part of the general system of the Inns of
Court. We have seen how closely their history is con-
nected ; and if we turn to the sixteenth century, when
the greater Inns rose to the rank of the " four most
famous Colleges," we shall see that it was solemnly
ordained that the Inns of Chancery should be subject
to the rule and government of the Benchers of the Inns
of Court ; ' but this rule and governance of the lesser
Benchers consist of tlie Judges that had been members of the Inn im-
mediately concerned, seems to have prevailed certainly till the end of the
seventeenth century.
In January, 1689, Mr. Fry, an Ancient of Gray's Inn, having been passed
over in the call to the Bench, applied to Chief Justice Holt, Baron Nevile,
Mr. Justice Gregory, and Baron Newton, who were all Judges taken from
Oray's Inn, and complaining that he had been pretermitted in two several
calls to the Bench wherein several of his puisnes had been called, and his
subsequent application for admission refused ; and the Visitors having met
at Chief Justice Holt's, rejected Mr. Fry's appeal on the ground that the
power of Benchers was discretionary. A contemporary book in Gray's Inn
containing an entry of this proceeding was used by Serjeant Talfourd in
Mr. Hayward's case.— Report, p. 89.
^ " 1. That the Innes of Chancery shall hold their Government subordinate
to the Benchers of every of the Innes of Court to which they belong : and
that the Benchers of every Innes of Court make Laws for governing them ;
as to keeping Commons, and attending and performing Exercises according
to former usage : And in case any Attorney, Clarke, or Officer of any Court
of Justice, being of any of the Innes of Chancery, shall withstand the
directions given by the Benchers of the Court, upon complaint thereof to the
Judges of the Court in which he shall serve, he shall be severely punished,
either by forejudging from the Court, or otherwise as the case shall deserve.
" 2. That the Benchers of every Innes of Court, cause the Inns of Chancery
to be surveyed, that there may be a competent number of Chambers for
Students ; and that every year an exact survey be taken, that the Chambers
allotted for that purpose, be accordingly employed." See Dugd. Grig. Jur. p. 322.
Chap. V.] THE INNS OF CHANCERY. 173
Inns seems very soon to have been found impracticable.
There is little trace of any exercise of the Benchers'
power over the Inns of Chancery, even with reference
to the ancient moots and exercises ; and it must now
sufi&ce to refer to the Eeport on the Inns of Court in
1855 to show that the control of the Inns of Court
over the Inns of Chancery is now become mere matter
of history. The Eeport of the Inns of Court Com-
missioners shows that the old Inns of Chancery have
long ceased to be merely legal institutions, and are now
claimed altogether as private property belonging to
private associations.^
^ See on this subject pp. 259, 260, 261, of the Eeport on the Inns of
Court, 1855.
174
THE ORDER OF THE COIP.
[Chap. VI.
CHAPTER VI.
Variety of
meanings of
" Bar " and
" Prece-
dence."
Mistakes as
to Bar and
Barristers,
etc.
THE BAR OF THE COURTS AND THE RULES AS TO AUDIENCE
AND PRECEDENCE.
The words " Bar " and " precedence "
have in the Enghsh language, and
especially in legal phraseology, on
different occasions, both of them very
different if not altogether opposite
meanings : so much so as to create
confusion, not only among the un-
initiated, but apparently sometimes
even among the learned in the law.
With regard to " precedence," it is
hardly surprising that misunderstand-
ings have arisen, when we see how
eagerly claims of that character have
generally been put forward, how unwarrantable, if not
frivolous, sometimes are their grounds, and how frequent
the mistakes they have given rise to.
Legal writers seem to have fallen into some confusion,
not only with regard to precedence,^ but many other
matters affecting the profession. The whole topic of the
Bar indeed, with its memorable history and belongings,
seems constantly to have given occasion to very re-
' 1 Bl. Com. 273. " Granting place or precedence to any of his subjects as
should seem good to his royal wisdom," quoting 31 Hen. VIII. c. 10.
Chap. VI.] WITHIN AND WITHOUT THE BAR, ETC. 175
markable mistakes, hardly warrantable in lawyers, how-
ever excusable in the case of the mere tyro, puzzled by
the strange vicissitudes of meaning in legal expressions
such as "Trial at Bar," " Called to the Bar," "Prisoner
at the Bar," "Gentlemen of the Bar," "Utter Barrister,"
" Inner Barrister," " Within the Bar," " Under the Bar "
" The Side Bar," ^ etc., and much more so puzzled by
expressions being used to convey two meanings — not
only quite distinct, but exactly opposite, such expressions
having generally very distinct derivations, e.g. the harres
in the old halls of the Inns of Court and the bar of the
Courts of Law.
From old time in the Inns of Court the Utter-Barrister utter Barris-
was the advanced apprentice of the law, who had passed innerBarris-
the harre of the hall of his Inn ^ and become one of the i®"^^ °^/J^ ^
Inns of Court.
apprenticii ad barros,^ or Grentlemen of the Bar : whilst the
Junior class, or Students,* were kept within the barre and
denominated apprenticii infra barras. Inner Barristers, or
• Enles of Court obtained by attorneys without counsel had the name of
Side Bar Rules, because they were in ancient times applied for at the Side
Bar of the Court. Roger North speaks of the Side Bar as the place where
the Judges heard the Attorneys' wrangle about matters of practice. — ' Life of
Guilford,' p. 240.
'^ " Utter-Barristers are such that for their learning and continuance are
called by the Readers to plead and argue ia the said house doubtful cases
and questions, which among them are called Motes, at certain times pro-
pounded and brought in before the said Benchers or Readers, and are called
Utter-Barristers, for that they, when they argue the said motes, sit uttermost
on the formes, which they call the Barr." — Return made to Henry VIII. by
Denton, Nicholas Bacon, and Gary, set out in Waterhouse's note to Fortescue,
543-4.
= Ante, p. 114.
* " All the residue of learners are called Inner Barristers which are the
youngest men, that for Ixich of learning and continuance are not able to argue
and reason in their motes." Waterhouse in Fort, ut infra.
It is quite unnecessary to suggest that gentlemen practising " under
the Bar " as Special Pleaders have not in our time been noted "for lack of
learning and continuance," or for not being able to argue and reason moot
points.
176 THE ORDER OP THE COIF. [Chap. VI.
Gentlemen under or below the Bar ' — a designation applied
to them even when, after years of study, they practised
as Draftsmen, Conveyancers, or Special Pleaders/
On the other hand, by a curious transition, the expres-
sion " within the Bar," obtained in Westminster Hall and
elsewhere, out of the Halls of the Inns of Court, an exactly
"Within the Opposite meaning — the more advanced of the apprentices
minster Hall, of the law being in due form called from the Outer Bar,
etc.
by special favour,^ and generally referred to in the Courts
as the Gentlemen of the Inner Bar, whilst those not so
distinguished or privileged had been usually called the
" Gentlemen of the Outer Bar." *
The existing usages of precedence and preaudience at
the English Bar are not of great antiquity. The Royal
1 " Inner Barrister " and " Student " are used as synonymous in all the
old orders relating to the Inns previous to the 17th century, e.g. the orders
of the Privy Council and Judges, E. 16 Eliz. 1574 ; Dugd. Orig. 312; 3 Eot.
Pari. 58a, 583a.
^ The apprenticii infra harros, though precluded from appearing as
advocates at the Bar of the Courts — see post, p. 179, — seem formerly to have
been under no restriction as to setting up as men of law : and common
assurances, written pleadings, and other legal papers generally were drawn by
such junior members of the Inns. The Stamp Acts of the beginning of this
century imposed an annual tax on certificates of members of the Inns of
Court so practising. — 44 Geo. III. c. 99 ; 55 Geo. III. c. 184, Sched., Part I. ;
and certificated Conveyancers, &c., being occasionally complained of, especially
by the Solicitors, as sometimes very objectionable competitors for professional
business, the rule which now prevails was made in all the Inns, restricting
members from so practising until actually qualified to be called to the Bar,
and a select number of Gentlemen below the Bar now only appear in the
Law List as so certificated.
3 " The Benchers also do come within the Bar at the chapel of the Rolls, and
sit there promiscuously amongst the Serieants-at-law and the King's and
Queen's Counsel learned. They are Kkewise heard by the Master of the Rolls,
in course, and before all Utter Barristers, leivg called in hy him from the
Utter Bar, so soon as he first hath notice of their being called to the bench
in their respective Societies." — Dugd. Orig. 210. It is hardly necessary to
say that the King's and Queen's Counsel here mentioned by Dugdale were the
King's Serjeants and the King's and Queen's Attorneys-General, etc. " King's
Counsel " of the modern grade were not known till long after that time.
See post, p. 181.
* See post, p. 205.
Chap. VI.J THE BARRE OP THE COURTS. 177
mandate by which the Attorney- Greneral was the appointed
head of the Enghsh Bar really dates back only to 1814.' Existing
The system by which special privileges of audience and audience, etc.,
place at the Bar have been personally given to about 200 ^°^ ^'"^^ ° ' "
Barristers by royal patents, is even of much more recent
growth, though the system commenced with the patents
from the Crown made in the days of the Stuarts. If we
go back beyond these remarkable innovations we find
a very different order of precedence and preaudience at
the Bar.
The actual bar of the Courts, of which we have already ^^^n^'^'^f °^
spoken, and which, like the harre de Palais de Justice"^ ia.
France, gave a designation to the whole order of advocates,
appears formerly to have been always sufficiently distinct :
and the rules and observances relating to its custody in
old times were very strictly enforced — the ancient office
of Keeper of the Barre or Usher, being one of no small
importance ; ^ and it is remarkable that to this day in both
Houses of Parliament the words " Bench " and " Bar " have
to a great extent the same meaning as when the High
Court of Parliament constituted the Curia Regis, with
its different Benches,'^ and the suitors or applicants for
' See ante, p. 41, and the Order of Precedence, 14th December, 1814, which
after reciting that the Attorney- and Solicitor-General then had place and
audience in the Courts next after the two ancientest of the King's Serjeants-
at-law, ordered that thereafter the Attorney- and Solicitor-General should
have place and audience before all the King's Serjeants.
^ The old French word larre was regarded as " terme de Palais," and had
nearly the same meaning as in Westminster Hall. The President or head of
the Bar in France was described as hors ligne.
' See as to these old ofBces and the appointment of Marshals, Ushers,
and Barriorum, ante, p. 20 and notes. Like the Euissiers of the French
tribunals, the Ushers were entrusted with the custody of the lars, and the
keeping good order in Court during its sittings.
^ Sir Francis Palsgrave speaks of the different Benches of the Curia Regis
as if occupied by distinct sections of the Court.— Hist. Comm. 291 ; and
we have even at this day very distinct Benches in the High Court of
N
178 THE ORDER OP THE COIF. [Chap. V.
justice, or the accused offender, came, with their Counsel
standing beside them,' to be heard at the Bar; this har
being always on such occasions drawn out with great
ceremony,^ to prevent improper intrusion on either of
the Benches.
The w in The har of the old Courts at Westminster seems to
It Wes?"'*' have been guarded and kept with the same forms as
minster. -^ ^^^ ^^^^ ancient Curia Regis? In the pictures and
illuminations already referred to we see the Judges on the
different Benches, the officials at the tables below, and the
litigants with their Counsel, the Serjeants of the Coif,
standing by them at the Bar} The picture of the King's
Bench, in addition to what we see in that of the Common
Pleas, shows us the Prisoner at the Bar with his Counsel
standing by him : and in other representations of the old
Courts we have ample proof of the old use of the bar as
the proper place for the pleader, the litigant, and the
prisoner.
Parliament —Ministerial or Opposition — occupied by distinct sections of the
august Assembly. — House of Lords or Commons.
> Seeanie, 34. See also May, Law of Parliament, cb. 3; 77 Lords' J., 737;
33 Com. J., 594. The standing at the Bar in the case of any offender against
the authority and privileges of the House of Commons was directed by a
resolution 16th March, 1772, in place of an older rule that required prisoners
to receive judgment " on their knees " at the Bar. This was discontinued in
consequence of Lord Mansfield, then Mr. Murray, refusing to kneel when
brought up to the Bar of the House of Commons on 4th February, 1750.
'^ The tar of the House of Lords in ordinary judicial business is in the
keeping of special officers as in the old days of the Curia Regis : and the special
observances with regard to the bar of the House of Commons, have been so
recently made familiar to the ordinary reader, that it is only necessary to
remark that the traditions as well as the practical use of the bar of the High
Court are in both Houses identical.
' The proclamation of the Chief TJsher and Crier of the old Court of
King's Bench on the sitting and rising of the Court, always called on strangers
to " void the bar."
* This illumination describes six prisoners in the dock waiting to be put
to the Bar for trial ; see p. 3 of Mr. Corner's work published by Nicholls,
1865.
Chap. VI.] SITTING AND STANDING AT THE BAB. 179
The accommodation of seats at tbe bar of the Courts ap- No seats for
pears but a modern contrivance. In the old picture of the Courts! ^^
Court of Common Pleas just referred to, there appears no
seat for any of the Serjeants, only standing room for the
Serjeants engaged in the case, and others whose business
broiight them to the bar. The expression sitting within the
bar was certainly not known before the seventeenth
century ; and it is probable that the accommodation of
seats for Counsel' had not been really made long before.^
Who were usually heard first at the bar of the several Right of
Courts, we may not be able very distinctly to show ; but the bar.
it is clear that in all matters relating to audience at the
bar — the appearing or pleading as advocate, or standing
by the litigant or accused as his Counsel, the records
of our Courts show that regulations more or less re-
strictive have always been observed.^ It is quite un-
necessary to repeat that for ages this right of audience
really belonged only to the recognised order of pleaders,
the Serjeants of the Coif^ who in ancient times alone were
legally qualified to come to the Bar of the Aula Regis : a
right they continued for many ages exclusively to retain
in the high tribunal formed out of the chief legal Bench
' It has been stated that the merit of procuring seats for Counsel in
waiting at the bars of the Courts of Chancery and King's Bench is due to
Mr. Cavendish Weedon of Lincoln's Inn, one of the earliest inhabitants of
New Square, formerly Serle's Place. According to the biographers of Mr.
Weedon this point was gained for the Bar about the year 1700 ; see Lane's
Student's Guide to Lincoln's Inn, 219, 4th edition. It is clear, however,
that ieati within the lar were in existence when North had his patent as
King's Counsel : see the note in Siderfin's Eeports, 365, and Eoger North's
' Life of Guilford,' p. 38. It seems most likely that some sort of sitting
accommodation was provided for the Serjeants, Barristers, and others of the
legal profession long before that time.
^ See ante, p. 7, note 2.
' " The degrees I mention in our profession are Serjeant-at-law, Bencher,
and Utter Barrister."— Wynne's Eunomtis, p. 283.
N 2
180
THE ORDER OP THE GOIP.
[Chap. VI.
Ordinary pre-
cedence and
preaudience
in the otlier
Courts of
Westminster
Hall.
The bar of
the Curia
Regis.
of the Aula Eegis, the Common Bench or Court of Com-
mon Pleas.
In the other Courts of Westminster Hall the prece-
dence or preaudience in ordinary business, certainly up
to the seventeenth century^ was according to the ancient
degrees, 1. Serjeants-at-law, 2. Benchers, 3. Utter Bar-
risters.^
The bar of the old Curia Regis in this manner
separated those who legally constituted the Court (with
its official staff") from those who were not thus belonging
to it, but came as litigants, suitors, or pleaders, or as
witnesses, defendants, or prisoners. The Judges and
other members of the tribunal sat on the Benches, whilst
the litigants and advocates stood at the bar.^ The
separation was not merely imaginary. It was made by g,
substantial barrier of iron or wood.
There was certainly no attempt to disturb this
system before the time of Bacon, who seems to have had
small scruple about ancient institutions which stood in the
way of his own plans, and moreover appears, for some
private reason, to have had a special enmity against the
old Order of the Coif. We have already referred to
Bacon's attempt, when Attorney-General, to ignore the
ancient legal position of the Serjeants-at-law, and to the
way in which this was defeated by Coke. Three years
after, when Bacon got his seat on the Woolsack, he took
the opportunity of indulging in what he himself called
' " A reader was wont to have that respect abroad as to be heard in the
King's "Bench and other Courts of Justice before others " (Utter Barrister.)
■ — Dugdale, Orig. Jur. 212.
' See ante, p. 178. In the cases already referred to of Thomas le Marshall
and William de Helmeswell, Serjeants-at-law temp. Edw. I., the statement
by each was " quod est communis advocatus et stetit cum predicto WUlielmo
pro suo dando ; " see the record quoted by Serjeant Manning, p. 170, from the
Harl. MSS. 298, and Plac. Abbrev. 295 b.
PLATE VI.
/era.
Effi
g
s Vi
icries Viri
EcruUis aurati nuper
id PJa-cita, 'coram
ickrirs.EDQ\RDI COKt
Capitalis lufticiarij
Reoctenenaa aGionati
Chap. VI.] PEEAUDIENCE AND PRECEDENCE. 181
a fancy, in order to upset the old order of precedence
and preaudience.^
This device of Bacoa to upset the ancient order of Effect of
precedence and preaudience at the Bar met with as novations'!"
little success as many others of his projects in the
same direction, though they doubtless had the intended
effect of introducing much laxity in the practice hitherto
prevailing in Westminster Hall — to the gain of fa-
voured individuals to the prejudice of the Serjeants
and Benchers, who were the legitimate leaders of the
Bar.
In business affecting the Crown — the King's business The King's
as it was called— the Couns^el and law officers of the SSimsei.
Crown had always preaudience, and on that ground and
to that extent precedence.^ There must of course have
been from the earliest times a staff of law officers and
Counsel in the Courts, to represent the King in matters
affecting the Crown ; and reference is made on many
occasions to the King's Counsel in the law — an expres-
sion which meant simply the King's Serjeants,^ who with
^ " And since I am upon the point whom I will hear, your Lordships will
give me leave to tell you a fancy. It falleth out that there be three of us
the King's servants in great places that are lawyers by descent : Mr. At-
torney, sou of a Judge, Mr. Solicitor, likewise sou of a Judge, and myself,
a Chancellor's son. Now, because the law roots so well in my time, I
will water it at the roots thus far, as besides these great ones I will
hear any Judge's son he/ore a Serjeant, and any Serjeant's son before a Reader,
if there he not many of them." — Bacon's speech on taking his seat as Lord
Keeper.
"^ The expression used in Bacon's patent is preesidentiam, etc., quae ad
unum consiliariorum ad legem spectant aut pertinent, etc. ; and the pre-
cedence and preaudience conceded in the innumerable patents of our
time can legally go no farther, whatever pretensions indiscreet holders of
such patents may think proper to set up.
^ See infra. Wherever in our law books we meet with King's Council,
by that name are to be understood either the Privy Council, the Judges,
or the Serjeants, sometimes the Parliament itself.— Cokes' 3rd Inst. 125,
1st Inst. 164
182
THE ORDBE OF THE COIF.
[Chap. VI.
Precedence
ami pre-
audience of
the King's
Serjeants.
the Attorney- and Solicitor-Greneral' were the only King's
Counsel until the seventeenth century.
We have already had occasion to refer to the high
office and position of the King's Serjeants, or regular'
Counsel in the law, the Servientes Regis ad legem, or
Servientes domini Regis ad legem^ who really exercised
most of the powers of the Attorney-Greneral of moderu
times, including the proceedings by information ex officio
and the duty of giving legal aid and advice to the Crown.^
The King's Serjeants were in every way the chiefs
of the Bar. The reader must be reminded that until
recently the King's Serjeants always took precedence of
the Attorney-General and every one else as the King's
Counsel in the law and chief law officers ; * and it is cer-
tainly remarkable that in this, as in almost every other
matter affecting the coif, the innovation on the ancient
and legitimate order was brought about by no general or
direct provision for the amendment of the law, by no
general statute or ordinance, but by an exceptional pro-
vision, made for personal considerations, on the alleged
' The Attorney of the Court of Wards and the Attorney of the Duchy
of Lancaster were not usually described like the Attorney-General of
England, as of the King's Counsel in the law.
^ See ante, p. 40. See Eastal, 268 a. Dngdale, Grig. Jur. 35, gives from
the liberate Eolls, in a series commencing in 1276, the names of the King's
Serjeants, and there seems proof enough of such appointments long before,
even if we are not to rely on Bracton, § 157 b, that the King had his
Serjeant in every county.
In Serjeant Wynne's -tract, p. 211, " On the antiquity and dignity of the
degree of Serjeant-at-law," it is stated that the earlier liberate Bulls are lost,
but an old official of the Eecord Gflice, the late Mr. W. H. Black, has pointed
out that such is not the fact, there being many such Eolls in existence.
' We have seen how the King's Serjeants have always been summoned to
Parliament like the Judges, to give advice and assistance in legal business.
See ante, p. 4.2. Sir John Byles, the survivor of those who held the high
office of Queen's Serjeant, died on the 3rd of February, 1884. His patent and
summons to Parliament will be seen (oite, p. 40.
* See statute 5 Edw. III. c. 13.
Chap. VL] THE KING'S SERJEANTS. ]83
ground of expediency} This will be found to apply
both to the change made in the reign of James I.
granting the Attorney-General precedence over all the
Serjeants except the two ancientiest,^ and the second change,
in 1814, during the regency of George Prince of Wales ;
when, Garrow being Attorney-General, and Serjeant
Shepherd, the King's ancient Serjeant, made Solicitor-
General, it was arranged, in order to accommodate all those
immediately concerned, without regard to the future, that
' This change has a little history of its own. It appears to have been
brought about soon after the place of Attorney-General was obtained by
Francis Bacon, described by the poet as " the wisest, brightest, meanest of
mankind."
^ Bacon, whose incessant schemes for self-aggrandisement are matter of
history, succeeded in 1604 in inventing for himself the new appointment to be
of the King's Counsel extraordinary : see post, p. 186 ; and when in 1613 he got
the high position of Attorney-General, he appears to have been greatly
mortified at finding that even then in many cases he had to give place to
the Serjeants-at-law. A case reported in Bulstrode's Eeports (vol. iii. p. 32)
concludes with the note of a discussion between Bacon, then Attorney-
General, and Coke, then Chief Justice.
Sir Francis Bacon, Attorney-General, being to move, a Serjeant-at-law
having a short motion offered to move before him, at which he was much
moved, saying, that he marvelled he would offer this to him. But per Coke
Chief Justice — " No Serjeant ought to move before the King's Attorney, when
he moves for the King, but for other motions any Serjeant-at-law is to move
before him, and when I was the King's Attorney I never offered to move
before a Serjeant, unless it was for the King." Sir William Follett referred
to this note in Bulstrode's Eeports with great effect in arguing the Serjeants'
Case before the Privy Council in 1839, to show the legal right of preaudience
and precedence of the Serjeant-at-law. Coke's ruling, though not affecting
the right of preaudience of the Attorney-General in Crown business, seems
at once to have brought about the change in the order of precedence of the
King's Serjeants and the Attorney- and Solicitor-General [referred to hereafter,
see post, p. 184,] by which the Attorney-and Solicitor-General had thenceforth
place and audience in the King's Courts next after the two ancientest of the
King's Serjeants. This partial forbearance of Bacon in favour of the King's
ancient Serjeants may be well accounted for, considering that the then ancient
Serjeant, Doderidge, had in 1607 resigned the ofilce of Solicitor-General, in
which he had greatly distinguished himself— see State Trials, 2, 566 — in order
to make room for Bacon. Gratitude, however, was not one of Bacon's
weaknesses, for he contrived afterwards to malign Doderidge. See Bacon's
' Works, xii. 125.
184 THE ORDER OP THE COIF. LChap. VI.
the Attorney-General should take the precedence, and the
old Order of the Coif again be thus permanently deranged.^
TheAttorney- The ofiScBs of Attorney- and Solicitor-Greneral are, as
GeteS'*""" already observed, a modern substitute for that of King's
Serjeant,^ — Attornati Regis are constantly mentioned
in legal proceedings as early as 1279 ^ and for nearly
two centuries afterwards. We then find a permanent
law officer called the King's Attorney-Greneral,^ and
' Order of the Prince Regent for establishing the precedency of the
Attorney- and Solicitor-General : —
" In the name and on the behalf of His Majesty, George P.R.
" Whereas Our Attorney and Solicitor General now have place and audience
in our Courts next after the two ancientest of Our Serjeants at Law for the
time being, and before Our other Serjeants at Law : We, considering the
weighty and important affairs in which Our Attorney and Solicitor General
are employed, and in which the Attorney and Solicitor General of Us Our
heirs and successors, may hereafter be employed, do hereby order and direct
that at all times hereafter the Attorney and Solicitor General of Us Our heirs
and successors shall have place and audience as well before the said two
ancientest of Our Serjeants at Law as also before every person who now is
one of Our Serjeants at Law or hereafter shall be one of the Serjeants at Law
of us. Our heirs or successors ; and We do hereby will and require you, not
only to cause this Our direction to be observed in Our Court of Chancery, but
also to signify to the judges of all Our other Courts at Westminster, that it
is Our express pleasure that the same course be observed in all Our said
Courts. Given at Our Court at Carlton House the 14th day of December
in the 54th year of His Majesty's reign. By command of His Royal Highness
the Prince Regent in the name and on behalf of His Majesty. — Sidmoxjth.
To the Right Honourable John Lord Eldon, Our Chancellor of Great Britian."
In this case the matter could more easily have been arranged at once without
recourse to questionable expedients, by Serjeant Shepherd resigning his own
patent ofiSce of King's ancient Serjeant before he took office as Solicitor-
General, as was done by Serjeant Fleming in 1595. See on this Dugdale,
Orig. 140.
2 When William de Gisilhan is so described in a placitum before the
Justices in Eyre and Gilbert de Thorndon in a quo warranto. Such appoint-
ments of Attornatus Regis specially for particular proceedings are referred to
in the old book of Entries. Rastall, Debt, 192, p. 4 ; Cessavit 114 b, pi. 3 ; Quare
Impedit, 527 b, pi. 1.
" Besides the ordinary Attornati Regis, there were the King's Attorney
of the Court of Wards and Liveries, and the Attorney of the Duchy of
Lancaster. Both of them appear to have been grand appointments. Nicholas
Bacon was Attorney of the Court of Wards and Liveries when in 1559 he was
made Lord Chancellor: and the Attorney of the Duchy of Lancaster in
more modern times frequently rose to the highest offices in it.
Chap. VI.] ATTOENEY-GENEEAL AND KING'S COUNSEL. 185
up to the seventeenth century there were no other
King's Counsel recognised in the Courts than the King's The King's
Serjeants and the Attorney- and SoHcitor-Grenerah The traordinary
first deviation from this rule was made by the contrivance
of Sir Francis Bacon, the originator of so many other
innovations, who succeeded, for special purposes, in
1604, in getting himself appointed King's Counsel extra-
ordinary without being either a Serjeant-at-law or one
of the ordinary staff of law officers, or even being retained
in any cases for the Crown. Bacon thus afforded a pre-
cedent for a system of Royal patronage and promotion
at the Bar which is altogether opposed to its ancient
traditions and the public interest — a system admitted
to be properly described as an anomaly. There have
been many mistakes and misstatements made as to
Bacon's appointment — as to the fact of his having
really been the first of the modern class of King's
Counsel. The more usual mistake is that based on Bacon's
own version of his conduct, inducing even Blackstone
to believe that the place Bacon held was merely honoris
causA, and that North was the first of the modern class
we are referring to; ^ whilst Lord Campbell, equally
wrong, speaks of such appointments as known many
years before Bacon's time.^
There is abundant proof of what really took place. Bacon's
patent as
King's
Counsel.
' Blackstone says that Bacon was made Queen's Counsel " honoris causa
without either patent or fee, so that the first of the modern orJsr (who are now
the standing servants of the Crown with a standing salary) eeems to have
been Sir Francis North."— 3 Com. 27. As to this mistake, see infra, note.
' In his life of Egerton (Lord Chancellor EUesmere) Lord Campbell speaks
of Queen Elizabeth making him " one of her Counsel, whereby he was entitled
to wear a silk gown, and to have precedence over other barristers "— ' Lives of
Chancellors,' ch. xlvii. ; but the appointment really conferred on Egerton
was that of Solicitor-General, which he got in 1381— Dugdale, Chron.
Series, 97, quoting Pat. 23 Eliz. p. 1 ; and silk gowns came in long afterwards.
186 THE ORDER OF THE COIF. [Chap. VL*
Francis Bacon, who after great importunity/ obtained from
Queen Elizabeth the promise that he should be engaged
as one of Her Majesty's Counsel extraordinary, never set
up that this was in any way a binding engagement, or
more than a post conferred honoris causa ; ^ but after Eliza-
' Francis Bacon Lord Verulam, Viscount St. Albans, the son of Sir Nicholas
Bacon and nephew of the grand Lord Burleigh, aft«r an obscure uni-
versity career, began to keep his terms in Gray's Inn in 1578, and from
all accounts, the favours shown him were many, and certainly not unsolicited.
The Lansdowne MSS. 51, art. 6, show that as soon as he was called to the
Bar he was pushed on to place and profit and unfair precedence in his Inn,
being made a Bencher at 26. See notes of Lord Burleigh appended to the
order stated in the Lansdowne MSS. Bacon speaks of this promotion as " a
late motion of mine own, wherein I sought an ease in coming within Bars
— not any extraordinary or singular note of favour." — Bao. Works, xii 473.
He had already obtained the reversion to a sinecure ofiBce of £1600 a year,
and hesitated not to beg for promotion and office rather than work, as others
were obliged to do. In a letter to Lord Burleigh in 1591 he says he was
then one-and-thirty years old, and threatens, if bis Lordship "will not
carry him on," to sell his inheritance and purchase some sinecure office and
so become a sorry bookmaker. Though a briefless Barrister, his friends at
court, urged by his importunity, endeavoured in 1593 to get him made
Attorney-General. Bacon's letters at the time betrayed his underhand
efforts in every way to disparage Coke, the Solicitor-General and proper
successor to the office. See Bacon's Works, xiii. 74, 75—78, 85. Most
writers agree that this conduct of Bacon's is but a sample of his system
of obtaining advancement in 1594. On Coke becoming Attorney-General,
and Serjeant Fleming Solicitor-General, Bacon's importunities at last
procured from Queen Elizabeth an irregular retainer or appointment as
Counsel for the Crown on extraordinary occasions, one of these being the
trjal of Essex in 1601, in which Bacon did certainly not raise his own
character as a lawj er or a gentleman. See Jardine's Crim. Trials, i. 385 ;
see Bacon's Works, vi. 299.
2 Bacon's original appointment was certainly indefinite enough as
" Queen's Counsel extraordinary," and he represented to King James that his
title was the promise of Queen Elizabeth. He himself called the office a vague
appointment without patent or fee, a sort of individuum vagum. — Birde's
' Letters of Bacon,' 256. But Bacon was not a man likely to seek work without
pay. The mode of his payment was very remarkable. In Catesby's case, in
1601, Bacon got £1200, sharing with Gorges and Carpenter the £4000 paid
by Catesby for his pardon. See Counc. Eeg. xvii. 336. Until he was reap-
pointed by James I., Bacon was not really a law officer, or the retained
Counsel of the Crown. His letters show that he hardly got a single retainer
without begging for it. He was not employed in the trial of Sir Walter
Ealeigh, Serjeant Heal and Serjeant Phillips being retained with the Attorney-
General : the chief Crown prosecutions in the time of Elizabeth and James I.
being conducted by the Queen's Serjeant and King's Serjeant respectively.
Chap. VI.] BACON AS KING'S COUNSEL. 187
beth's death, and James I. had become her successor, Bacon,
after much more importunity and solicitation, (and some
adroit misrepresentation of what had before taken place,)
at last obtained his formal appointment from King James
by letters patent making him '' consiliarium nostrum ad
legem, sive unum de consilio nostro erudito in lege." It
will be seen the tenure was " quamdiu ipse se bene gesserit"
but an annuity of forty pounds a year, by no means
inconsiderable in those days, was reserved to the impe-
cunious philosopher for his life. The official duties,
whatever they were, ceased as Bacon obtained higher
offices, and on his becoming Attorney-General ; but the
pay remained, together with that from another Royal
grant, apparently made without consideration.'
' To preyent any mistake on this subject we now give a copy of the actual
appointment which appears in Eymer's ' Foedera,' xvi., fol. 596 :
" De Concessione ad Vitam pro Francisco Bacon.
" Bex omnibus ad quos &c. Salutem. Sciatis quod nos,
" 1 am in consideratione boni iidelis & acceptabilis servitii ; pe* Dileotum
servientem nostrum Franciscum Bacon militem prsestiti & impensi, quam pro
diversis aliis causis & considerationibus ad hoc nos specialiter moventibus,
" De Gratia nostra speciali ac ex certS, scienti^ & mero motu nostri con-
stituimus ordinayimus & appunctuavimus, ac, per Praesentes, pro nobis
Haeredibus & successoribus nostris, constituimus ordinamus & appunctua-
mus praefatum Franciscum' Bacon Consiliarium nostrum ad Legem, sive
unum de Consilio nostro erudito in Lege,
" Dedimus etiam & concessimus &, pro Nobis Hseredibus & Successoribus
nostris, damus & concedimus, per Praesentes, praefato Francisco Locum
& Proesidentiam in Curiis nostris vel alibi & Praeaudientiam, necnon omnia
& singula Proficua Advantagia, Emolumenta Jura Praeeminentia con-
fidentias, seu alia quaecunque quss ad unum Consiliarium nostrum ad
Legem, ut Consiliario hujusmodi, & minime ratione alicujus specialis Officii,
spectant aut pertinent, aut spectare aut pertinere consueverunt aut de jure
debent,
" Volumus etiam & concedimus, pro Nobis Haeredibus & Successoribus
nostris, quod prssfatus Franciscus Bacon habeat plenam & sufficientem
Potestatem & Auctoritatem ad omnia & singula praestanda exequenda &
perimplenda, quae quivis alius de Consilio nostro erudito in Lege ut unus
de Consilio nostro prasdicto, & minimi ratione specialis alicujus Officii possit
exequi & perimplere,
"Habenda & tenenda gaudenda percipienda & exercenda Potestatem
authoritatem Proficua, ac omnia & singula praeconcessa sive expressa
188
THE ORDER OF THE COIF.
[Chap. VI.
Bacon's
jiatent as
K.O. ceases
on his be-
coming
Solicitor-
General.
Bacon's appointment as King's Counsel seems to have
been treated as altogether ceasing when in 1607 he was
prssfato Francisco quamdiu ipse se bene gesserit in executione'& exercitio
Muneris Authoritatis & Potestatis Praedictarmn, in tain amplis modo &
forma quam aliquis alius de Consilio nostro erudito in Lege, vel ipse
Francisous, ratione Verbi Regii EUzabethoe nuper antecessoris nostri vel
ratione Warranti nostri sub Signa1;ura nostra Eegia habuit tenuit gavisus
est vel ezecutus est, nichilominus nolumus quod hsec concessio nostra
deroget aliqui officio antehac, per nos aut antecessores nostros dato vel
concesso.
"Et ulterius, de uberiori gratia nostra pro exercitio servitii Prsedicti
dedimus & concessimus, ac per Prsesentes, pro nobis Haeredibus &
Successoribus nostris, damus & concedimus prsefato Francisco Bacon
Vadium & Feodum Quadraginta Librarum bonse & legalis monetje Anglise
per annum, solvendam annuatim eidem Francisco Bacon ad Festa Sancti
Michaelis Arcbangeli & Pascbse per sequales Portiones, de Thesanro
nostro Hasredum & successorum nostrorum, per Manus Thesaurarii &
Camerariorum ibidem pro tempore existentium, prima solutione inde incipi-
enda ad Festum Festorum Prsedictorum proximo post Datam Prsesentium
" Habendum & tenendum gaudendum & percipiendum Vadium & Feodum
prsedictum, durante Vitfi, naturali preedicti Franoisci Bacon.
" In cujus rei &c.
" Teste rege apud Harfrild vicesimo quinto Die Augusti. A° 160t, A. E. 2.
" Per Breve de Private Sigillo."
If any proof were wanting of the mercenary character of the arrangement
with the Crown by Bacon, it is afforded by the document set forth in Eymer's
'Foedera' immediately after Bacon's patent as King's Counsel, granting him
an additional pension of sixty pounds a year for some undescribed services
jointly or severally rendered by Bacon and his deceased brother. This remarkable
document is as follows : —
" Pro eodem Francisco Bacon Milite.
" Eex omnibus ad quos &c. Salutem. Sciatis quod nos,
" Tam in consideratione boni fidelis & acceptabilis servitii, per nuper
dilectum nostrum Antonium Bacon Armigerum defunctum, Fratrem
germanum Franoisci Bacon Milites servientis nostri, ac etiam per dilectum
servientem nostrum prffidictum Franciscum Bacon Militem pr^stiti &
impesi, quam pro diversis aliis causis & considerationibus ad hoc nos
specialiter moventibus,
"De Gratia nostra speciali, ac ex certa scientia & mero motu nostris,
dedimus & concessimus, ac per Prsesentes, pro nobis Hseredibus" & successo-
ribus nostris, damus & concedimus pr£efato Francisco Bacon quandam
annualem Pensionem Sexaginta Librarum bonte & legalis Monet® Anglise
per annum, solvendam annuatim eidem Francisco Bacon ad Festa Sancti
Michaelis Arcbangeli & Paschse per sequales Portiones, de Thesauro nostro
Hseredum & Successorum nostrorum, per Manus Thesaurarii & Came-
rariorum ibidem pro tempore existentium, prima solutione inde incipienda
ad Festa Festorum prtedictorum proximum post datum PrsEsentium
Chap. VI.] KING'S COUNSEL BY PATENT. 189
made Solicitor-Greneral ; so that his tenure of office of
King's Counsel was less than, three years.'
Such is th.e authentic account of the appointment of
the first of the class of King's Counsel, and we hear of
no other such appointment^ until 1668, when Francis
North (afterwards Lord Keeper Gruilford), following the
precedent established by Bacon, obtained a patent as
" King's Counsel " without being either Serjeant-at-law or
one of the King's ordinary legal staff, such as Attorn ey-
or Solicitor-G-eneral, and hife promotion, which North's
very partial biographer tells us "had the effect of a
"Habendam et tenendam gaudendam & percipiendam anrraalem Pen-
sionem prsedictam, durante VitS, naturali prsedicti Francisci Bacon.
" In cnjus rei &c.
" Teste Kege apud Harfrild vicesimo quinto Die Augnsti.
" Per Breve de Privato Sigillo."- — Eymer, ' Eoedera,' vol. xvi. p. 597.
A.D. 1604, 2 Jao. 1.
A.D. 1604, Pat. 2, Jac. 1, p. 12, m. 15.
' The entries in Dugdale's Chron. Series are : 1607. Franciscus Bacon Miles
constit Solicitator Eegis General. 1613. Attornatus E. Gen. pat. 11 Jac.
p. 5. 1616. Francisc. Bacon eqnes anr. et Attornatus Eegis Generalis
habuit custodiam magni Sigilli sibi commissum 7 Martii claus. 16 Jac. in
dorso part 15. 1617. Claus. 16 Jac. in dorso part 15 idem Franciscus
Baro Verulam constit Cancellarius Anglise 4 Jan. Parliament, -whicli
had not met for nearly seven years, sat on the 30th January 1621, and
Bacon, after getting a further advance of dignity by being made Viscount
St. Alban's (Eymer xvii. 289) for his many faithful services to the King
(in doing so long without a Parliament), on March 15 was formally charged
by the House of Commons with systematic corruption, and on the 24th
April he made a general confession of guilt ; and Dugdale's memorandum is
abdicatus ob coruptelas 3 Maii 1621.
2 The entry in Siderfin's Eeports is thus : " Easter 20, Car. 2. 2 fue.r
fait de Counsel dd Roy."
" Auxy c terme Mr. North (mon contemp) de Mid. Temple et Mr. Miller
de Lincoln's Inn fuer fait de Counsel del Eoy et veigne deins les Barres, et
apres ascun dispute."
" Mr. North ad lieu al Bar de Mid. Temple de les Lecturers, mes names de
Sir Pet. Ball Attorney al Eoin Mother, nest de Mr. Montague Attorney al ore
Eoyne coment ceux second ne fuer de Councel de Eoy." — Sid. 865. The
name " Miller '' in Siderfin's memorandum is evidently a mistake for
" Turner," who was at that same time made Solicitor-General.
190
THE ORDER OF THE COIP.
[Chap. VI.
Reputation
of the second
King's
Counsel.
trumpet to his fame," ' certainly appears to have caused
very considerable disgust throughout Westminster Hall,
where the only King's Counsel then recognised were the
King's Serjeants,'^ Attorney- or Solicitor-General ; and
where no one else had precedence or preaudience but the
ordinary Serjeants-at-law and the Readers and Benchers.
North though he got his place failed to establish his good
name/
The second King's Counsel, North, though he secured a
good place, failed to establish a good name in "Westminster
Hall. His yrofessional and unprofessional manoeuvres are
described by his biographer, Roger North, with fraternal
admiration and a pardonable amount of colouring,*
' This had the effect of a trumpet to his fame; for the King had no
counsel then except Serjeants. — North's 'Life of Guilford/ p. 38.
^ The expression King's Counsel, as we have seen, really applied to the
King's Serjeants ; and Sir Henry Montague, one of the grantees of the
Temple, is so called in the patent from James I., but he was King's Serjeant ;
and when up to the eighteenth century we hear of King's Counsel, we may
assume they were either King's Serjeants, or the Attorney- or Solicitor-
General.
' As the Benchers of the Middle Temple refused to call North to their
Bench, North again resorted to the expedient of using the influence of his
friends at court, and the result was that the Judges used a sort of force to
compel the Benchers to admit Mr. North. When any of the Benchers came
into Court the Judges refused them audience "imtil they had done justice
to Mr. North ; '' and after a few days of such unseemly behaviour the
Benchers gave in, and Mr. North was recognised as King's Counsel and made
a Bencher. Francis North appears to have been a man not likely to be
deterred by delicacy of feeling from taking any advantage.
* Roger North snys that his brother was a wonderful artist at "watching a
Judge's tendency to make it serve his turn, and yet never failed to pay the
greatest regard and deference to his opinion, for so they get credit, because
the Judge, for the most part, thinks the person the best lawyer that respects
most his opinion. I have heard his Lordship say that sometimes he hath
been forced to give up a cause to the Judge's opinion when he (the Judge)
was plainly in the wrong, and when more contradiction had but made him
more positive, and besides that in so doing he himself had weakened his
own credit with the Judge and thereby been less able to set him right when
he was inclined to it, as good opinion so gained often helps at another time
to good purpose, and sometimes to ill purpose, as 1 heard it credibly reported
of Serjeant Maynard, that being the leading Counsel in a small fee'd cause.
Chap. YL] NORTH, KING'S COUNSEL. 191
but spoken of with much horror by the Lite Lord
Campbell, who, whatever his own irregularities, was
sufficiently severe on the irregularities of others ; ' and
Bishop Burnet, whose account is in the nature of living
testimony, makes the second holder of the office of King's
Counsel extraordinary appear in anything but a favour-
able light, representing him, though guiltless of such
offences as those brought home to Bacon, quite his equal
in meanness and subterfuge, almost as much his superior
in sinister manoeuvres, as his inferior in mental acquire-
ments.^ North's public services, on which his claim to
preferment rested, seem, like those of Bacon, to have been
of a somewhat indefinite and equivocal character,^ and
closely following Bacon's course of advancement, he
would give it up to the Judge's mistake, and not contend to set him right,
that he might gain credit to mislead him in some other cause in which he
was well fee'd." — ' Life of Lord Keeper Guilford,' vol. i. p. 71.
1 "These gentlemen of the long robe ought to have changed places in
Court with the highwaymen they were retained to prosecute." — ' Lives of the
Chancellors,' c. 94, p. 287, ed. 5. Lord Campbell, speaking of North's road
to promotion, says, " nothing pleased him so much as to get on by personal
favour. Lord Chief Justice Hyde generally rode the Northern Circuit, and
so conrpletely had North taken the measure of his foot that my Lord called
him ' cousin ' in open Court, which was a declaration that he would take it
for a respect to himself to bring him causes." — Id. ib.
2 In Bishop Burnet's ' History of his own Time,' p. 84, Francis North, Lord
Guildford is described as " a crafty, designing man, despised and ill thought
of by the whole nation." He obtained the nick-name of " Slyboots " from
being so called in a libellous publication of the day. — Id. ib., note.
' See North's 'Life of Lord Keeper Guilford,' p.. 37. The occasion of
North's preferment, according to Eoger North, was his arguing Hollis's case
in the House of Lords in 1668. This was an appeal from the decision of the
King's Bench against the five members who in 1629 kept the Speaker of the
House of Commons under restraint. Francis North got (through his great
ally. Sir Jeffrey Palmer, the Attorney-General) the brief for the Crown,
and he lost the cause ; bat, as Eoger North says, although " the Commons
carried the cause " he was thereupon made of the King's Counsel, which
gave him the privilege of preaudience and coming within the bar. Eoger
North adds, " this action and its consequences had the eflfect of a trumpet to
his fame; for the King had no Counsel then except Serjeants " p. 37.
192
THE ORDER OF THE COIP.
[Chap. VI.
Subsequent
course of ap-
pointments
of King's
Counsel.
succeeded in making the vague appointment of King's
Counsel a stepping-stone to the more substantial place of
Solicitor-General,^ which, like Bacon, North adroitly ac-
quired three years after the date of his patent as King's
Counsel, justifying the remark of his contemporaries, that
under any circumstances Francis North would generally
contrive to find a way for himself.^
The appointment of King's Counsel extraordinary con-
trived by Francis Bacon in 1604 and revived by Francis
North in 1664, seems not to have been conferred on, or
even to have been applied for, by other members of the
Bar for a long time after. The rules followed at the Revo-
lution in 1689 greatly checked the granting of patents,
the creation of new offices of any kind, and the increase
of legal officials ; and no such appointment as Kings
Counsel extraordinary seems to have been made in the
reigns of William and Mary, or Anne. The Judges and
regular law officers of the Crown, if not of the order of
the Coif at the time of appointment, were certainly not
selected from those who held indefinite appointments as
King's Counsel without being so employed.^ In the last
' North obtained his patent as King's Counsel in 1668, and the office of
Solicitor-General in 1671. There was just the same interyal between
Bacon's patent as King's Counsel and his appointment as Solicitor-General.
See ante, p. 187.
' Hale, who had no great admiration for Francis North, observing
him waiting in the passage of the Court, apparently unable to get through
the crowd, is said to have called out, " Pray make way for the little gentle-
man, for he will soon make a way for himself." Hale's frequent personal
remarks on North seem to have driven him from the King's Bench Bar to
the Court of Chancery, where he continued exclusively to practise for several
years after being made Solicitor-General — at that time a very unusual thing
for the Solicitur-0 eneral to do.
' Holt, Parker (Lord Macclesfield), Pratt, and other Chief Justices of
Queen Anne's time, were selected in the orthodox way from the practising
Serjeants-at-law, and the puisne Judges also from the order, or those specially
called for the purpose. Lord Raymond, Lord Hardwicke, Sir Dudley Ryder,
Chap. VI.] KING'S COUNSEL AS A DISTINCT CLASS.
193
century we do not find King's Counsel referred to as a
distinct class or order. Their whole number never ex-
ceeded twenty, consisting partly of those who were
actually retained by the Crown, and partly of the mere
nominees of the Government of the day, holders of offices
of minor importance, and certainly not in the first
position at the Bar.
The earliest Law List we have — that published in 1775 Great in-
— gives the names of the then King's Counsel, the number of
number being fourteen, less than the number of the counsel
Serjeants-at-law,^ at that time ; and not a third of such
" King's Counsel " seem to have been in actual practice in
Westminster Hall, though the whole English Bar then
consisted of a comparatively small number.*
At the time just referred to, the appointment of King's
Counsel was treated in Westminster Hall as an office
and Lord Mansfield were only King's Counsel as Attorneys- and Solicitors-
General, but very few of the Judges before the time of George III. ever
held patents as King's Counsel extraordinary ; and Chief Justice Lee, who
had been King's Counsel temp. George II. is made the especial subject of
Lord Campbell's pleasantry. See the ' Liyes of the Chief Justices,' vol. ii.
p. 213.
' The names given include the Queen's Attorney- and Solicitor-General,
and Ambler, Bearcroft, James Mansfield, Skynner, and Wallace, all men of
note at the Bar, on the Bench, or in Parliament ; but the rest of these King's
Counsel were unknown in Westminster Hall, unless we take the case of Daines
Barrington, who, though he never made any position at the Bar, got a WeUh
Judgeship and several other appointments such as Deputy-Keeper of the
Wardrobe, Secretary to Greenwich Hospital, etc. ; and, amongst a large
number of literary productions, left us ' An Account of some Fish in Wales,'
• Observations on the Ancient Statutes,' Essay on the probability of reaching
the North Pole, etc., and personally aflforded material for Charles Lamb's
amusing account of the Old Benchers in the ' Essays of Eliai.'
'^ At the time referred to the number of Serjeants-at-law was fourteen,
four of them holding the high position of King's Serjeants, and all were men
of high repute in the profession.
The Law List referred to gives the names of the whole of the Bar at that
time other than the Serjeants and King's Counsel, amounting altogether to
165, considerably less than the number of Queen's Counsel at present.
194
THE ORDER OP THE COIF.
[Chap. VI.
Disqualifica-
tion of King's
Counsel.
Patents of
precedence.
Lord Eldon's
appoinlments
of King's
Counsel.
under the Crown, however indefinite its duties and
obHgations. Not only was every one so appointed pre-
cluded, like the Advocati Fisci, from acting as Counsel
against the Crown or the Grovernment, but a member of
Parliament, on taking office under such an appointment
vacated his seat: and in order to obviate these conse-
quences an expedient was resorted to, which Blackstone
very distinctly mentions,^ of occasionally substituting for
the patent of appointment of King's Counsel what came
to be called a patent of precedence,-wh.\eh, without fettering
the patentees with the disabilities of King's Counsel, gave
them equal rights of precedence and preaudience in
Court. Such were the patents obtained by Erskine and
Scott (Lord Eldon),'' all under rather extraordinary and
remarkable circumstances.
When Lord Eldon came to the Woolsack a few years
afterwards he seems to have contrived during his long
innings to concede as little as possible the right of pre-
cedence or preaudience, even to the most able or most
^ " A custom has of late years prevailed of granting letters patent of
precedence to such barristers as the Crown thinks proper to honour with
that mark of distinction : whereby they are entitled to such rank and pre-
cedence as are assigned in their respective patents, sometimes next after the
King's Attorney- General, but usually next after his Majesty's Counsel then
being."- 3 Bl. Com. 28.
2 On the formation of the Coalition Ministry in 1783, Lord Thurlow gave
up the Great Seal, which was put in commission, with Wedderbum (Lord
Loughborough) as Chief. The Lords Commissioners, as we are told in Lord
Eldon's life " were authorised by the new Government to call within the Bar
a few of the most eminent among the junior Counsel; and Mr. Scott
received a message from the Duke of Portland, through the Lords Com-
missioners, offering to include him in this promotion, and Mr. Scott, with
his habitual prudence, took time to deliberate." — Twiss, 'Life of Lord
Eldon,' vol. i. p. 141. At first the silk gown was accepted, but when Scott
found that Erskine and Pigott, who were his juniors, had already received
patents of precedence, he contrived to have their patents altered and fresh
patents of precedence granted, so as to place himself senior to Erskine and
Pigott, whose patents had just before given them the seniority. — Id. ib. 143.
Chap. VI.] KINQ'S COUNSEL EXTRAORDINARY. 195
distinguished members of the Bar, and to withhold
either patents of precedence or as " King's Counsel " from
those politically opposed to the Government. Such pro-
motion was denied to Scarlett (Lord Abinger) until a
quarter of ,a century after his call to the Bar, when he
changed his politics, and left the ranks of the Liberal
party ; ^ whilst Brougham and Denman, who, as Queen Treatment of
Caroline's Attorney- and Solicitor-General, had received and^Denman.
the distinction of silk gowns and the right to seats within
the Bar, were on the Queen's death, by the paltry conduct
of George lY. and his faithful henchman on the Wool-
sack, deliberately degraded and forced, in defiance of
public opinion,^ to give up their silk gowns, etc., and to
take their place in the back rows of Westminster Hall,
behind men altogether their inferiors, who had patents as
King's Counsel.*
' Scarlett was made a King's Counsel after Easter Term 1816, being called
within the Bar by Lord Ellenborough, at Nisi Prius, the first time such a
ceremony had ever been so performed (there being no Bar at Nisi Prius), and
the proceeding was deemed irregular, and for some time the Benchers of the
Inner Temple refused to admit to the Bench table either Scarlett or Sir
Charles Wetherall, made a King's Counsel at the same time. See per
Pollock, Chief Baron, Hay ward's Case, 82.
" How Denman's ill-treatment by George IV. induced the Corporation of
London to elect him Common Serjeant, see ante, p. 44.
^ In the law books of that time the announcement was simply that " upon
her late Majesty's death, the gentlemen bearing the ofiSces of her Attorney-
and Solicitor-General respectively, assumed less distinguished robes, and
returned to their standing as Utter Barristers." See 18th edition of Black-
stone's Commentaries, vol. iii. p. 28, note. What actually took place was
not so announced ; but in the published letters of Lord Eldon it is evident
that George IV. and his Chancellor took especial delight in the loss of
" Mr. Brougham's silk gown ; " fee Twiss's ' Life of Lord Eldon,' vol. iii. p. 2 ;
and what occurred with respect to both Brougham and Denman show how
easily the patronage of the Bar by the Crown may be turned to a bad
account. Both Brougham and Denman unjustly suffered seven years' degra-
dation in Westminster Hall for having been the advocates of George IV.'s
hated Queen; and when, on Lord Lyndhurst's becoming Chancellor, the
tardy justice was done them of restoring their precedence and preaudience,
Eldon and his Royal master were driven to equivocation in order to excuse
their conduct. Brougham received his patent of precedence in May, 1827, soon
2
196
THE OEDEB OF THE COIF.
[Chap. VI.
Lord Eldon s
hatches of
King's
Counsel,
Lord Eldon, according to Horace Twiss, his eulogistic
biographer, procrastinated even the appointment of
King's Counsel till the number of applications had ac-
cumulated so as to require serious consideration, and
then came oiit what he designated a "batch of silk
o-owns : " ' and Mr. Horace Twiss, who had been included
in one of these batches, was, " in the interests of the state,"
desirous that in future the batches should be less heavy
and less frequent. The large number of King's Counsel
had even then become a matter of frequent animadversion,
not very long after we find a Judge, who had himself
been one of the body, speaking of the multitudinous and
after Serjeant Copley became Lord Chancellor Lyndhurst, and is described
by Lord Campbell as keeping his patent in his pocket and acting without
the Bar in his stnff gown, until informed what course was to be taken with
Denman. — Letter 2Qd June, 1827 — ' Life of Lord Campbell,' vol. i. p. 145.
' "When at last the Chancellor did make up his mind to create what is
called ' a batch of silk gowns,' he found himself obliged, from the interme-
diate accumulation of claims, to constitute so many, that a few more or
less appeared hardly a matter of moment. Among the numerous candidates
that poured in, but a few were able to secure even business enough for a fair
trial ; and the Inner Bar was swamped by an influx which, if the stream
had been more gradual, might possibly have been absorbed. The fashion of
making King's Counsel in great batches has indeed been productive of
serious evil, in all ways. It has transferred that which ought to be the
patronage of the Crown to the hands of the solicitors, and through the
competition of numbers within the Bar, has tended to divest the leading
counsel of that control which they ought always to have power as well as
disposition to exercise over the tempers and appetites of keen practitioners.
" It has lowered the value and character of professional honours by the
wide distribution of them. And by forcing a premature emulation for rank,
it has given a false stimulus to much ability and learning, which would
have worked more safely and more usefully to the community, if left to a
less sudden development. On several of these brevets it would probably
have been better even for the candidates themselves (to say nothing of the
general credit of the Bar on almost any principle not involving actual
injustice), that only one in three or four of them should have been singled
out, than that so many should have had their requests conceded. They
have but helped to illustrate the position of Juvenal —
nocitura toga, nocitura petuntur,
— Miiitil"
Horace Twiss, ' Life of Lord Eldon,' vol. iii. p. 469.
Chap. VI.] INCREASE OF QUEEN'S COUNSEL. 197
indiscriminate creation of Queens Counsel as a serious
evil.^ Since that time the number of " Queen's Counsel "
has become at least three times as large, out of all pro-
portion to the exigencies of the public or of the legal
profession,^ and directly militating against the sound
principles on which the institution of the English Bar is
based — independence of the Crown, State influence or
control. The practice of appointing so large a portion
of the Bar as Counsel to the Crown, giving to them pre-
cedence and preaudience in all legal proceedings whether
or not the Crown is immediately concerned, can hardly be
justified by any sound principle or constitutional doctrine;
and the contrivance by which the Queen's Counsel were
appointed without pay has tended to place such appoint-
ments certainly on no sounder footing.*
1 " The multitudinous and indiscriminate creation of Queen's Counsel has
made the number of Benchers in the two most considerable Inns of Court too
unwieldy for the proper government of those societies."— Eeply of Vioe-
Chancellor Sir John Stuart to the Inns of Court Commissioners of Inquiry,
1854, Appendix to Report, p. 262. Sir John Stuart was made a Queen's
Counsel in 1839, when the number of Queen's Counsel was about seventy,
more than two-thirds of them very eminent men. The number now exceeds
200, of whom hardly one-third appear to be in actual practice as Counsel for
Her Majesty or for any of her subjects.
^ The whole number of Queen's Counsel appearing by the Law List to be at
present in actual practice in any of the law courts, or on any of the circuits,
or before Parliamentary Committees, does not exceed seventy. The Law List
includes among the Queen's Counsel not only those in actual practice, but
the names of gentlemen who have retired from the Bar, or have vacated the
position of Queen's Counsel by holding inconsistent judicial appointmenta
See ante, p. 188.
^ When Bacon's importunities had secured for him the first patent as
King's Counsel, the forty pounds a year thereby secured to him (see ante,
p. 188) seems to have formed no unimportant part of the consideration.
Forty pounds a year was, in the time of James I., by no means an insignifi-
cant salary. The value of money has since greatly decreased, and the
King's Counsel's salary came to form but a petty part of the value of his
appointment ; and soon after Lord Campbell came into ofBce as Attorney-
General the Treasury was relieved from the payment. Lord Campbell as
well as his predecessors, as King's Counsel, had received it, but their
successors had to give it up.
198 THE ORDER OP THE COIF. [Chap. YI.
Precedence According to the best authorities the actual order of
audience. audience, the precedence or preaudience in the diiierent
Courts, has really been settled from time to time less
by any direct authority from the Crown than by the
regulations of the Judges ; and grave doubts have been
entertained whether any right of precedence or pre-
audience can be derived merely from a Royal Patent or
personal concession.^ The regulations and usages of the
Court from the earliest times seem to bear out this
proposition ; and it is unnecessary to repeat what has
been already said on this subject. Questions relating to
the right of audience as Advocates, and the order of
precedence and preaudience at the Bar, have always been
deemed to belong to the presiding Judges, to dispose of
in accordance as far as possible with long usage and the
ancient constitution of the Courts.^
Form of The various innovations on this salutary rule of the
the^Bar?' ° ^^'^ of England have always met with just resistance ; and
the forms, carefully kept up as fresh " batches of silk
gowns " were introduced into Westminster Hall, show that
from the first it has been by the Judges, and not merely
by the Crown, that the right of preaudience is really
conferred.^ Out of proper regard for the business of the
Crown, the King's Attorney-General and the King's
Counsel have in such business always had precedence and
preaudience. When Patents of precedence and preaudience
• " Whether the Judges would be bound to obey an order from the Crown
to hear one Counsel before another is a question. The Crown may exercise
a prerogative that is consistent with the usage of the Court." Per SirWilliam
Follett's arguendo in the Serjeants' Case. — Manning's Rep. 25.
' See ante, p. 5 ; and see Collier v. Hicks. 2 B. (>« Ad. H73.
' See post, p. 199. The usage has always been, before any one of Her
Majesty's Counsel takes his seat in Court, for the presiding Judge to formally
call him within the Bar. This form is really the chief part of the ceremony
in admitting a " new batch of silk gowns."
Chap. VI.] PRECEDENCE OF COUNSEL FOR THE CROWN. 199
came to be given to others than those appointed King's
Counsel, the further innovation was not generally heeded
by the Bench or the Bar. The patents had simply
no operation in the old Court of Common Pleas,^ and
certainly out of Westminster Hall they conferred no
personal precedence.^
The position of the Queen's Counsel is exceptional, Precedence of
but by the usage of Westminster Hall for many ages thrcTown^
preaudience has been always given to the King's
Attorney-General, on the assumption that he is engaged
on behalf of the Crown. This is obviously the ground
on which such preaudience was from the first given, and
it seems clear that the claim of preaudience of any one of
the King's Counsel was based on the assumption that the
business of the Crown was actually concerned.
The rights and privileges granted to members of the Eights de-
Bar not being even nominally in the service of the patents of
Crown, by special patents of precedence^ are certainly P'^^<'^'is"<=«-
more exceptional, if they do not altogether constitute
an anomaly. The precedence and preaudience in the
Courts at Westminster which Bacon and North derived
from their patents as King's Counsel seem to have been
' See ante, p. 181.
" The mistakes often made on the subject of precedence render it necessary
to observe that neither the patents we are referring to or those of Queen's
Coxmsel, grant precedence or place otherwise than as Counsel in legal proceedings
"in our Courts." The Attorney- and Solicitor-General have the front
" place and audience in our Courts," see order of Prince Regent, 14th
December, 1814, antf, p. 484 ; and the precedence and preaudience granted by
the patents of Queen's Counsel, etc., clearly extend no further than the " Royal
Courts of Justice." General or social precedence is legally regulated by
general statutes and ordinances, ancient custom, etc., 31 H. 8, c. 10 ; SelJ. tit.
Hon. II. 5, 45, II. 11, 3 ; Camden's Britannia, tit. Ordines ; and it is not with in
the power of special letters patent to alter this order. Such letters patent
could not place a Marquis above a Duke, a Baronet above a Baron, an
Esquire above a Knight or a Serjeant-at-law, even though having "place in
our Courts." " See ante, p. 194,
200 THE ORDER OP THE COIF. [Chap. VI.
confined to matters in which they actually appeared in
Court on behalf of the Crown,* and the Judges, out of
regard to the King's business, gave them precedence.
Long after the first appointment of King's Counsel ex-
traordinary this innovation was followed by the other,
which appears certainly altogether less warrantable, the
conferring by Royal letters patent, on the grantee, not
any office under the Crown, but personal preaudience
and precedence in the King's Courts altogether uncon-
nected with the business or service of the Crown. Such
patents are now unusual. They were at first confined
to the case of members of the House of Commons, who
if appointed to office under the Crown as King's Counsel
would have vacated their seats. The utility of such
patents now does not appear. The Judges of the King's
Bench and Exchequer always conceded to the holders
of such patents the privileges of precedence and pre-
audience and sitting within the Bar just as if their patents
had appointed them to be " of His Majesty's Counsel."
The legality of such mere patents of precedence and pre-
audience has never really been called in question, though
it seems not very easy to reconcile such concessions
with the rules and principles of our law, which treats
the whole power and authority over the proceedings
and practice of the Courts as having been for ages given
up by the Crown to the Judges.^
' See ante, p. 199.
^ See on this. Coke's Ith Inst., 71. In the instances in which patents of
])rece(ience were at first obtained in lieu of appointments as King's Counsel,
the position under the former had many advantages over the latter, which
not only precluded the grantee from being Counsel against the Crown, but
if obtained by a member of the House of Commons, at once vacated his seat,
lor these reasons Mansfield, Erskine, Eldon, and Brougham held patents of
precedence instead of being made King's Counsel. The patents of precedence
obtained by Serjeants-at-law have alway been sought for out of other
considerations. See post, c. viii.
Chap. VI.] QUESTION OP SEllJEANTS' PRECEDENCE. 201
As regards the members of the old Order of the Coif Present
the operation of patents thus conferring special prece- the' Serjeants
dence and preaudience on such a crowd of holders has cedencr'
been very prejudicial, and the course adopted with regard
to the precedence of the Serjeants-at-law has been pro-
ductive of very gross injustice.
We have seen how the Serjeants-at-law formed an
essential part of the constitution of the Court of Common
Pleas at the time even when that ancient Court was
composed of the Common Bench of the Aula Eegia, and
during the many ages when it constituted the chief
tribunal known to the common law of England. What-
ever may have been the justification for first placing the
Bar of the Court of Common Pleas on the same footing as
the Bar of the other Courts of Westminster Hall, and
ultimately altogether merging the ancient Court of Com-
mon Pleas by the Judicature Acts, there seems at all
events hardly an excuse for placing the Serjeants-at-
law, by the effect of these changes, altogether on a
worse footing throughout Westminster Hall. The injury
done to the time-honoured Order of the Coif by the
change was evidently never seriously contemplated, and
few of the present generation of lawyers are aware of the
wrong which was thus unhappily occasioned.
Under the old system at Westminster Hall it must be Effect of the
recollected the Serjeants-at-law not only had the pre- i834 on the
cedence and preaudience, but constituted the whole Common Serjeants. ^
Pleas Bar — for the most part confining their practice to
that Court, though having, with the rest of the Bar, the
full right of audience in the other Courts. When in
1834 the late King's name was illegally used to alter the
ancient constitution of the Court of Common Pleas,^ the
' See ante, p. 99,
202 THE OBDER OF THE COIF. [Chap. VI.
contrivers of that remarkable proceeding, after the shabby
fashion of leaving a shilling to the heir by way of
disinherison, adopted the device of giving to the fifteen
Serjeants of the hour ^ valueless personal rights of audience
throughout Westminster Hall, as the small coin by which
the whole Order of the Coif was to be deprived altogether
of its ancient inheritance. The history from its cradle to
its grave, of this most irregular and unwarrantable pro-
ceeding of the law officers of the Crown has been already
given,'' and we need not here recur to it further than to
say that these designs have not altogether succeeded,
and that neither the famous mandate against the old
Order of the Coif illegally issued in the King's name
in 1834, nor any of the several Acts of Parliament since
passed for reconstituting the old Court of Common Pleas,
have really destroyed the ancient and legitimate pre-
cedence of the Serjeants-at-law, or affected their position
at the Bar or otherwise. The legitimate place and rank
which belonged to the order when the Court of Common
Pleas formed the Common Bench of the old Aula Regia
continued to belong to the order during the many centuries
■when it formed a distinct Court, and can hardly be deemed
to be confiscated, forfeited, or lost when the Court of Com-
mon Bench or Common Pleas has come again to form as it
' Lawes, D'Oyley, Peake, Arabin, Adams, Andrews, Storks, Ludlow,
Scriven, Stephen, Bompas, Goulbum, Heath, Coleridge, and Talfouid,— most,
if not all of them, eminent Serjeants, some of them very distinguished both
at the Bar and on the Bench — not one of them certainly would have asked
for the equivocal advantage of a "patent of precedence."
2 This curiously worded mandate states that " we are graciously pleased as
a mark of our Eoyal favour to confer upon the Serjeants-at-law hereinafter
named, being Serjeants at this present time in actual practice in our said
Court of Common Pleas, some permanent rank and place in all our Courts of
Law and Equity," and then goes on to order and direct that the above fifteen
Serjeants shall from henceforth, according to their respective seniority among
themselves, have rank, place, and audience in all our Courts of Law and
Equity Lext after John Balguy, Esq., one of our Counsel learned in the law."
Chap. VI.] CALLING WITHIN THE BAR. 203
were a part of the older institutioD, and to be absorbed in
the modernised Curia Eegia/ Her Majesty's Supreme
Court of Judicature. The innovations on the old position
at the Bar of the Serjeants-at-law seem to be without legal
warrant, and unjustifiable on any ground of expediency.^
The changes which have from time to time been made Calling
, T T T - , 1 within the
as to audience, preaudience, and precedence have very Bar.
materially altered without improving the ancient consti-
tution of the Courts of Westminster ; and the modern
practice of calling within the Bar seems hardly to be
founded on any sound principle.^ In the ancient days of
Westminster Hall, it appears clear that whilst all duly
' 36 & 37 Vict. c. 66.
' The Serjeants, who formed the only Bar of the Aula Eegia, continued,
when that great Court was broken up, to hold their old position in the chief
tribunal, the Common Bench or Court of Common Pleas — with exclusive
avdience. In the King's Bench the ordinary King's Counsel had legal pre-
audience in Crown matters and by courtesy in other cases. When the three
Courts were merged into one, the question of audience not being expressly
dealt with by the Legislature, the legitimate claim of the Serjeants was, at all
events in common pleas (or ordinary business), to have equal rights of audience
with the Queen's Counsel, according to their respective seniority. Had this
just arrangement been at once recognised, much of the confusion caused by
patents of precedence would have been saved. The peculiar injustice of the
mandate of 1834 with reference to the ancient rights of the Serjeants was,
that while it professed to take away from the whole order the exclusive
audience in the Common Pleas, it in no way settled the general question of
preaudience and precedence in Westminster Hall, dealing only with the case
of the fifteen Serjeants then in existence ; see ante, p. 100. The whole order
was arbitrarily degrad,ed, and the mockery of compensation for this wrong
awarded to the fifteen Serjeants of the day. When eleven years afterwards a
special statute was passed to make up for this lawless proceeding of 1834,
the question of the future preaudience and precedence of the Serjeants was
not dealt with. Many very eminent men had been in the interim admitted
to the order ; and when in 1845 the Court of Common Pleas was legally
opened to all the Bar, the Serjeants-at-law found themselves suddenly placed
as well in the Common Pleas as in the other Courts, with preaudience given
them next after the junior of the long list of Queen's Counsel, and positively
with no provision made for giving them protection against endless encroach-
ments by new patents.
' This practice would seem wholly unknown before the present century.
See ante, p. 176.
204
THE ORDER OP THE COIF.
[CuAP. VI
In the
Common
Pleas.
qualified apprentices of the law were admitted to plead at
the Bar, the special privilege of a place within the Bar
belonged only to those engaged on the part of the Crown,
or enjoying some other high distinction.^
In the oldest of the Courts, the Common Bench, the
Serjeants being the only recognised order of advocates
had place and preaudience according to seniority. In
intheQueens' the two Other Commou Law Courts, the King's Bench
Exchequer, and Exchequer, the Serjeants did not ordinarily attend ; *
and when the practice was adopted in those two Courts
of formally calling within the Bar King's and Queen's
Counsel extraordinary, the Serjeants would of course
not be among the number of those so distinguished.
The power of calling within the Bar was always in the
presiding Judges f the distinction seems to have been
at first conferred only on the Attorney-General and the
other recognised Counsellors of the King, the Queen,
and the Prince of Wales. It was then extended to the
Readers,* and at one time to all the Benchers of the Inns
of Court, and at length to those appointed by letters
patent to be the King's Counsel, on the assumption that
they were Benchers elect.*
The Serjeants-at-law were not so called within the Bar
of the Courts of King's Bench or Exchequer, for the
plain reason that they were considered not to form a part
of the ordinary Bar of those Courts, being under an
' See ante, p. 176. ^ See ante, p. 97.
' See ante, p. 203.
* The names of such as have read double shall be given to the Judges, who
have promised to give them pre-eminence of hearing after Serjeants and Her
Majestie's learned Counsel [i.e. the Attorney- and Solicitor General]. — Orders
of the Judges and Benchers 36 Eliz., Dugd. Orig. 313.
^ It must be remembered that from the time of Francis North in 1668,
already referred to, see ante, p. 189, to that of Mr. Hayward in 18i5, every
King's Counsel or Queen's Counsel wei'Q generally all elected Benchers of their
Inns.
Serjcants-at-
law in Court
of King's
Bench, etc.
Chap. VI.] RULES OF PREAUDIENCE. '^ 205
ancient obligation " to keep the Common Pleas Bar." ^
"When in 1839 the Common Pleas Bar was by Act of
Parliament placed on the same footing as that of the two
other Common Law Courts, there was at once a clear
right on the part of the Serjeants to be admitted like the
Queens Counsel within the Bar of these other Courts, as
they always were in the Common Pleas as well as in
the Court of Chancery;^ but strange as it may seem,
this obvious concession was only made to them after the
lapse of a number of years.^
In the changes made in the practice of the Supreme improve-
Court much improvement on the old procedure has doubt- rules as to
less been made. In days not long gone by the rules ad- P[^^"<^i™<=«'
hered to with regard to the hearing of motions amounted
sometimes to a denial of justice. Gentlemen within the
Bar could, by virtue of their right of preaudience, secure
for themselves something very like exclusive audience ; for
even in Lord Mansfield's time it was felt that in appli-
cations to the Court of King's Bench by motion it was
almost impossible to obtain a hearing unless a King's
Counsel within the Bar was retained ; and much that we
hear of the evils of that time from the law's delay may be
ascribed to the special privileges of King's Counsel.
In hearing motions, the old course at "Westminster Preaudience
Hall was to begin with the senior Counsel within the Bar, a practicX
and give audience to him as long as he had cases for ™°°op°iy-
' Ante, p. 96.
' The Seqeants-at-law always sat within the Bar of the Chancery Courts
and at Nisi Prius, etc-
' This concession was at last made when the presiding Judges in
Westminster Hall were Cockburn, Erie, and Pollock. Having myself taken
an active part at Serjeants' Inn in the proceedings which led to this very just
concession, I can fully vouch for the cordial and graceful manner in which
it was made by the Judges of Westminster Hall to their Brothers of the
Coif.— A. P.
206 THE ORDER OF THE COIF. [Chap. VI.
hearing, and then to call on the next senior, and bo on
daily, as long as the Court eat, whatever cases might
be from day to day kept waiting the turn for audience
of other Counsel in the Court. This course being
thought hard on the Junior Counsel, and found to be
much harder on their clients, some reforms were intro-
Lord Mans- duced by Lord Mansfield which were less popular with
the Gentlemen within the Bar, than Gentlemen of the outer
Bar} The new practice allowed each Counsel to move
once only before the other Counsel were heard in their
turn ; and Blackstone and other writers give much praise
to Lord Mansfield for his new practice of going through
the Bar. A further reform of more questionable advan-
tage gave on the last days of term the preaudience not
to the gentlemen within the Bar, but to those in the last
row behind, who passed off as the most junior, but often
included some of the most experienced gentlemen behind the
Bar.'
Preaudience The tendency of modern improvement in the practice
tively°^irme of the Law Courts is very much to neutralise the effect of
effect, arbitrary privileges of preaudience. The system is now
being adopted of placing all contested proceedings and
even some motions for rules nisi on lists to be disposed
of in regular order, independent of any arrangements
interfering with the due administration of justice. The
exceptional precedence and preaudience professed to be
given therefore by the letters patent from time to time
obtained from the Crown seem in a fair way of being
limited to a very small area of operation.
' See 1 Burrow's Reports, vol. 1, p. 57.
' This special reform of Lord Mansfield has been very often referred to. It
certainly had more to recommend it than Bacon's " fancy," ante, p. 181,
n. 1, about giving preaudience to sons of Judges, etc.
Chap. VI.] PRECEDENCE OF SEEJEANTS DE JURE. 207
We have already had occasion more than once to refer Course as to
to the innovations on the old rule of constitutional law poinTments
in this country, which required the Judges to be selected g^^g''"™™'^'
from the Order of the Coif, and to show how deeply
rooted this principle was, for our forefathers regarded
it as a necessary precaution against the administration of
the law being entrusted to others than the men of the lav).
A. memento of this ancient rule is still preserved in the
Serjeants-at-law being always included in the Circuit
Commissions — indeed placed first in the quorum after
Her Majesty's Judges.
208 THE ORDER OF THE COIF. [Chap. VIT.
CHAPTER VII.
THE ANCIENT HABITS AND OBSERVANCES OF THE ORDER
OP THE COIF.
The subject of this chapter has already engaged our
attention, and in recurring to it our chief point must be
to present in its proper light (divested of the confusion
caused by the mistakes and misstatements of careless or
prejudiced writers), what must always be of moment to
those interested in the history of the Bench and the Bar.
Regard of the The ancient customs, usages and habits of the Judges
customs. and Serjeants of the Coif, like the immemorial forms of
our Common Law, have always been respected, and the
most sensible of law reformers have been careful to hold
them in regard, and to prevent such relics of the past,
such landmarks in the history of our legal institutions,
being altogether lost sight of. "Where ancient forms and
observances are altogether ignored, the administration of
justice is apt to get out of its course, and such has
generally been the case when the ancient usages and
traditions of Westminster Hall are forgotten. Even in
the most unsettled times in this country it has been
deemed expedient to retain the ancient forms and cere-
monies belonging to the law and its administrators so
sedulously kept up by our forefathers.^
' In the address to the new Serjeants appointed by the Parliament of the
Commonwealth in 1648, Lord Commissioner Whitelock said, " It hath pleased
the Parliament, in commanding these writs to issue forth, to manifest their
Chap. VII.] ANTIQUITY OP COSTUME. 209
The " habits " of the Judges and Serjeants of the Coif Antiquity of
are for the most part sufficiently old. The coif itself we S the oS
have seen dates so far back as greatly to puzzle and mis-
lead those who have attempted to trace its origin : and
the robes of the order are referred to by Chaucer in the
fourteenth century as already of ancient fashion.^ They
seem to have been, from an early time, the subject of strict
regulation. The custom of the Serjeants-at-law going to
St. Paul's in their habits, is one of the oldest on record.*
Fortescue describes the coif as " the chief insigne of The ancient
habit " of Serjeants-at-law,* but he gives also a special order.
account of the proper robes and habits of the order,* and
in all the forms of discharge " a statu et gradu servientis
ad legem " we find a formal release from the obligation
to wear the coif or the other habits of the Serjeant-
at-law.^
Among the State papers at the end of the reign of
James I., is one noting tie proper robes and apparel of
constant resolution to continue and maintain the old and settled form of
government and laws of this kingdom." See the address, Whitelock's
Memorials, 352.
^ "For his science, and for his high renoun,
Of fees and robes had he many on."
— Chaucer's ' Canterbury Tales,' Prologue ' the
Serjeant of the lawe,' 9, ante, p. 3.
" See Fort. De Laud. c. 51.
' Ante, p. 8.
* See post, c. vii.
" The discharge of Serjeant Kokeby of the ofBce, state, and degree of
Serjeant-at-law, on being appointed in 1555, 2 & 3 P. & M., one of the Justices
and Commissioners in the North, after releasing him from all attendance
and service as a Serjeant-at-law, goes on to say — " and also we release and
discharge you by these presents of and from wearing any quayf commonly
called a Serjeant's quayf, and of and for wearing all other apparel, garments,
vestures and habits that by the laws and customs of this our Eealm ye
should or ought to wear or use for that he be Serjeant-at-law; " and nearly
the same form was adopted in the discharge of Serjeant Fleming, who in 1595
was made Solicitor-General by patent, 5th Nov. 37 Eliz. p. 9, Dugd. Chron.
Ser. 99. See ante, p. 16.
210 THE ORDER OF THE COIF. [Chap. VII.
the Judges and Serjeants-at-law/ and ten years after
there was a solemn decree with special regulations made
as to the robes to be worn both by Serjeants and Judges,
in order to establish certainty and uniformity for the
future.^
Ancient and In the existing costume of the Bench and the Bar in
forrask tl^is country, it is not very difficult to trace the course of
habiliments, innovation — to mark the old and genuine stamp, the
judicial and forensic insigne of habit well known in
W.estminster Hall, for so many ages, and the habiliments
capriciously introduced there in accordance with the pre-
vailing fashion of the hour, and adhered to long after
they had become altogether outre.
Great change Up to the fourteenth century changes in the fashions of
the'fouXenth See ante, p. 168.
^ Stow gives an account of the call to the Peerage of Sir Arthur
Plantagenet, Sir Maurice Berkeley, Sir William Sandys, and Sir Nicholas
Vaux, and of the " solemnity of their creation being kept in April, 1523, at
the King's Eoyal Palace at Bridewell."
236
THE ORDER OP THE COIF.
[Chap. VH.
"Where feast
held.
Feast at Ely
House in
1464.
occasion of a call of new members to the order.^ They
were not mere jubilant banquets given by the newly-
called Serjeants, but commemorative festivities in full
state by all the Judges and Serjeants of the Coif, which
continued to be held in great respect long after Fortescue's
time. Neither of the halls of the Serjeants' Inns, or of
the Inns of Court as they were even in the sixteenth
century,^ aiforded suflBcient accommodation for such a
purpose, and the Serjeants' feasts were usually held at
Ely House ^ or Lambeth Palace, or St. John's Priory*
where the large and commodious rooms were all well
suited for the occasion. We have in the old chronicles
full accounts of many of these feasts. Some of them
are certainly memorable.
The Serjeants' feast in 1464 was held at Ely House,
where the preparations were on the usual grand scale, and
the guests, the elite of the nobility, the church, the law,
' On the grand day the newly-called Serjeants had not completed all the
Bolemnities of the call, and seem sometimes to have not appeared at the
banquet, but to have dined with their wives in their own chambers. See
Dugdale, Orig. 128.
' See ante, p. 160
' The Bishop of Ely's Inn in Holborn, belonging to the See of Ely from
1297, was used as the Episcopal Palace up to 1500; and the Bishop's
garden with its excellent strawberries is described by Hollinshed, and will
be remembered by the account of Richard III. at the Council in the Tower
asking the Bishop to send for some of them.
" My Lord of Ely, when I was in Holborn
I saw good strawberries in your garden there ;
I do beseech you send for some of them."
Shakespeare, Richard III., act It., sc. 4.
Serjeants' Inn in Chancery Lane was held for many ages under the Bishops
of Ely, see ante, p. 126, and hence the Brothers of the Coif were always per-
mitted to hold their /eas< at Ely House.
• The Priory of St. John of Jerusalem (the order which succeeded to the
possessions of the Knights Templars) was situated near Smithfleld, and from its
foundation in 1100 to its dissolution, temp. Hen. VIII., seems to have been a
lordly abode — the scene of many a feast and many a commotion. See Stow's
Survey of London — " Priory of St. John," and sea ante, p. 137.
Chap. VIL] SERJEANTS' FEASTS. 237
and the City, but the chief incident recorded is of an
unsuccessful effort of the Lord Mayor to have at the feast
precedence of the Lord High Treasurer of England (also
a guest at Ely House), this Palace being within the City
limits.^
Another Serjeants' feast, also at Ely House, is recorded Other feasts
in 1495, where there was less confusion : the Serjeants yii.
being again honoured with the presence of King and
Queen, and " all the chief Lords of England ; " ^ another
at Lambeth Palace in 1504, where Henry YII. and the
nobility again attended, and also the Mayor and SheriflFs
of London in full state ^ and in good condition.
Henry VHI., like his father, honoured the Serjeants' The Ser-
jeants' feasts
temp. Hen.
' " In the yeare 1464, 4 Edw. 4". in Michaelmas Terme, the Serjeants at yili.
Law held their Feast in this House ; to the which amongst other Estates
Mathew Philip Mayor of London, with the Aldermen, Shireeves, and Com-
mons of Divers Crafts being invited, did repaire: but when the Mayor
looked to keep the State in the Hall, so it had been used in all pieces within
the City and Liberties (out of the King's presence) the Lord Grey of Euthin,
then Lorde Treasurer of England, unwitting the Serjeants and against
their Wills (as the saide) was first placed. Whereupon the Mayor, Aldermen,
and Commons departed home ; and the Mayor made the Aldermen to dine
with him. How beit he and all the Citizens were displeased that he was so
dealt with ; and the newe Serjeants and others were right sorry therefore ;
and had rather than much good (as they said) it hed not so happened. —
2 Stow's ' Survey of London,' title Ely House.
' Hollinshed, Chron. p. 779, a.d. 1495. " The King to honour the feast,
was present with his Queen at the dinner ; being a Prince that was ever
ready to grace and countenance the Profession of the law ; having a little of
that " that as he governed his subjects by his laws, so he governed his laws
by his lawyers." — Bacon's ' History of Henry VII.' p. 82.
° " In the 19th of Henry 7th, 19th November, the Serjeant's Feast was
holden within the Palace of the Archbishop of Canterbury at Lambeth,
where dined the King and all his Nobles ; and upon the same day, Thomas
Granger, newly chosen Shireeve of London, was presented before the Barons
of the King's Exchequer, there to take his oath ; and after went with the
Mayor unto the same Feast, which saved him money in his purse : for if
that day the Feast had not been kept, he must have feasted the Mayor,
Aldermen, and other Worshipful of the City. This Feast was kept at the
chardge of ten learned men; Eobert Brudnell, William Grevill, Thomas
Marrow, George Edgore, John More, John Cutler, Thomas Elliot, Lewis
Pollard, Guy Palmer, and William Fairfax."— Dug. Orig. p. 127.
238 THE ORDER OP THE COIF. [Chap. VII.
feasts with his presence, and they appear to have been kept
up in due state. On one of these occasions, the creation
of eleven Serjeants, in 1531, we find the King and Queen
Catharine of Arragon were both present. The proceedings
for dissolving the marriage between King and Queen
Catharine were going on, and His Majesty was already
privately married to the fair Anne Boleyn, one of the
maids of honour. Queen Catharine came in state to the
Feast, but we are told that King Henry and Queen
Catharine occupied separate apartments, though it is not
stated in which of them the fair Anne Boleyn took her
place.^
Decline of The Serjeants' feasts gradually lost their importance. In
the Serjeants'
' On Monday, 13th November, " which was their principal day. King Henry
and Queen Catharine dined there, but in two chambers, and the foreign am-
bassadors in a third chamber." See Stow's ' Survey of London,' Ely House
p. 426* and Hughson's ' London,' 110.
Stow, in describing the feast, says, "It were tedious to set down the
preparations of Fish, Flesh, and other victuaUs spent in this Feast, it would
seem almost incredible ; and (as to me it seemeth) wanted little of a Feast a
a Coronation. Nevertheless a little I will touch, for declaration of the change
of prices.
feasts.
3) ten
There were brought to the slaughter house twenty-
four great beefes at :
From the Shambles on Carcass of an Ox
One hundred fat Muttons at
Fifty-one great Veales at .
Thirty-four Porkes ....
Ninety-one Pigs ....
Capon of Greece of one Poulter (for they had
dozen at .... .
Capons of Kent nine doz. and six at .
Cocks of grose seven doz. and nine
Cocks course, xiiii. doz. a,t8d. and three pence i
Pullets, the best ....
Other Pullets
Pidgeons, 37 dozens at . . .
Swans, xiiii. dozen .
Larkes, 340 dozen at 5d. the dozen.
Edward Nevill was Senescall or Steward, Thomas Ratcliffe, Controller,
Thomas Wilden, Clerk of the Kitchen."— Dug. Orig. p. 128.
a piece.
01?. 06s. 08d. the piece.
01 04 00
00 02 10 a piece.
00 04 08 a piece.
00 03 03 a piece.
00 00 06 a piece.
00 01 08 the piece.
00 01 00 a piece.
00 00 08 a piece.
00 00 02
00 00 02
00 00 10 the dozen.
Chap. VII.] MASKS AND BEVELS. 239
the time of Edward YI., Mary, Elizabeth, and James, we
read of such celebrations (comparatively small gatherings),
but they were in the Hall of Serjeants' Inn, or of the Inns
of Court, to which the Serjeants elect belonged. Kings
and Queens ceased to attend the banquet on Grand day ;
the Royal patronage of lawyers' entertainments being
diverted in favour of the masques and revels at the Inns The lawyers'
"^ masques and
of Court, which had become the order of the day,' and revels in the
were more attractive to courtiers than the grave banquets
of the Judges and Serjeants. These entertainments in the
Inns of Court had begun early in the sixteenth century,'
and the masques and revels of the gentlemen of the Temple
and G-ray's Inn served at all events to afford gratification
as well as amusement to the Court of Queen Elizabeth and
James I., the apprentices of these inns vying with each
other in their endeavours to carry off the palm, and
keeping up an association which was at one time stronger
than that with both of the other two Inns.^ We hear little
' In HaU's Chronicle there is a record of one of these as early as 1525, when
we are told of a goodly disguising played at Gray's Inn, compiled by John
Eoe, Serjeant-at-law ; and the play so set forth with rich and costly apparel
and with strange devices of masks and morrishes, that it was highly favoured
by all men except by Cardinal Wolsey who imagined that the play was
devised of him. In a great fury he sent for Serjeant Koe, and took from him
his coif and sent him to the Fleet, and afterwards he sent for the young
gentlemen that played in the play and highly rebuked and threatened
them and sent one of them to the Fleet; but by means of friends
Master Eoe and he were delivered at last. This play sorely displeased the
Cardinal, and yet it was never meant for him, wherefore many wise men
grudged to see him take it so to heart ; and even the Cardinal said that the
King was highly displeased with it and spoke nothing of himself, and Fox,
in his 'Arts and Monuments,' says that "Simon Fish," a gentleman of
Gray's Inn newly settled in London, undertook to play the part of the play
" which touched the said Cardinal," when none other durst attempt it to the
Cardinal's great displeasure insomuch as he being pursued by the said
Cardinal, the same night that this tragedy was played was compelled of
force to avoid his own house and so fled over sea to Tindal." — Gray's Inn, 64.
^ The famous entertainments in the Middle Temple Hall are sufficiently
recorded; but there had long been a special alliance for this purpose
between the Inner Temple and Gray's Inn, This association is shown in
240
THE ORDER OF THE COIF.
[Chap. VII.
The lawyers'
feasts discon-
tinued.
The last of
the " Ser-
jeants' feasts.'
afterwards of the Serjeants' feasts. James I., unlike the
ancestor through whom he came to the throne, was not
" a Prince ever ready to grace and countenance the Pro-
fession of the law," ^ and on the contrary appears to have
been especially pleased with the play of ' Ignoramus,'
where Judges, Serjeants, and Counsellors were all made
the subject ot buffoonery by the undergraduates at
Cambridge,^ After the sixteenth century we find newly-
created Serjeants were welcomed in a less stately fashion
in the Hall of their Inn or in Serjeants' Inn, Chancery
Lane. Two only of these modern Serjeants feasts are
described — the one in 1674, when Francis North was
called to the Coif and made Chief Justice of the Common
Pleas,^ and the other in 1736, when fourteen new Serjeants
were created,* and the feast was held in Middle Temple
Hall.
At length, soon after the accession of Greorge III., when
Beaumont and Fletcher's ' Masques of the Inner Temple and Gray's Inn,' and
' Grays Inn and the Inner Temple/ performed at Whitehall in 1612 ; and the
strict alliance which ever was between the two houses is also mentioned
in an old pamphlet entitled ' Gesta Grayorum,' in which Bacon is said to
have assisted. See Spedding's ' Life and Letters of Bacon/ vol. i. p. 342. The
performances of the gentlemen of Gray's Inn in the masques in 1588 is said
to have been so successful that they were called on to repeat the enter-
tainment before Queen Elizabeth at Greenwich, and in commemoration of
this exploit the toast still given on Grand Day in Gray's Inn is ' the glorious,
pious, and immortal memory of good Queen Bess.' — Notes on Gray's Inn, by
W. B. Douthwaite, Librarian, 1876.
' Bac. Hist, of Hen. VII. p. 82
^ See supra.
' North's call to the Coif is recorded in the London Gazette, 23rd January,
1674 ; and in Serjeant Wynne's account of it, showing how he entertained
the Lord Keeper, nobility, and all the Judges at dinner in Serjeants' Inn,
Chancery Lane (Tracts, p. 302).
* This call is minutely described by Serjeant Wynne, who was one of the
fourteen men called. See Wynne's Tracts, 325. The feast was in the Middle
Temple Hall, and we find the Lord Chancellor and Lord President, and nobility
present with the Judges and Serjeants and ofiGlcials of the Courts, etc. See
also^os*, p. 241. The City, as usual on these occasions, lent their fine gilt plate.
Chap. VII.] CITY AND EEADEES' FEASTS. 241
the two Societies of Judges and Serjeants had become
united/ it was unanimously resolved by the whole order
of the Coif that the Serjeants feasts were unsuitable to
the altered state of things, and should henceforth be dis-
continued. The, Judges had by successive reforms been
made wholly independent of the Crown. ^ The other
members of the Coif had come to hold with the King's
Counsel but a divided empire. Westminster Hall and
the Serjeants' feasts, which in days long gone by had been
deemed worthy of a place in the chronicles of England,
were wisely considered unsuitable to the altered state
both of the Bench and the Bar.^
It was an old usage for the Judges and Serjeants of the Attendance
Coif to attend in state at the banquet at Gruildhall on Serjeants of
the Coif at
' See ante, p. 12fi. other feasts.
2 The accession of George III. is continually referred to as the period when
the dignity and independence of the Judges of the Superior Courts was
legally secured : and the orthodox Blackstone so lays it down (1 Bl. Com. 267) ;
but the change in the law then made was really to carry out the n^re
important reform effected in the time of William III. The ancient position
of the Judges was very precarious. They were subject to removal at any
moment if the King thought proper to dismiss them. At the end of the
reign of William III. this arbitrary power of the Crown was restrained, and
the Judges' commission was described as lasting quamdiu se bene gesserit,
12 & 13 W. 3, c. 2, s. 3, but on the accession of Queen Anne the next year, it
was found that every one of the Judges' patents required renewal, being
voidable by the new Queen : and two of the Judges, Mr. Justice Turton and
Mr. Baron Hatsell, with five of the King's Serjeants' and three of the King's
Counsel, were actually superseded. See Lord Eaym. Eep. 769 ; Thos. Jones'
Eep. 43. And on the two next occasions of the demise of the Crown the evil
of the system appears to have been felt, every judicial appointment then
legally expiring, and its renewal left to depend merely on Court favour.
The Act of 170O (1 Geo. 3, c. 28), therefore, which provided that all such
commissions should continue notwithstanding the demise of the Crown, was
not only in form but in substance very important, and George III. seems to
have personally taken an interest in the matter, as before it became law His
Majesty gave orders for renewing all the patents of the Judges, King's
Serjeants, and King's Counsel, without any alteration. See Wynne's ' Serjeant-
at-Law,' p. 348.
2 The last Serjeants' feast was held in Lincoln's Inn Hall on Gth February,
1759, when Mr. Henry Gould, afterwards Mr. Baron Gould, was admitted to
the order.
242 THE ORDER OF THE COIF. [Chap. VII.
Lord Mayor's Day, and at the Sheriff's dinner, in June, as
well as at the Readers' feasts in the Inns of Court. As
a rule, the interchange of civility and hospitality between
the members of the Coif and the City magnates has been
well maintained. To use the words of the ' Edinburgh
Review'^ in 1877, "The authorities at Guildhall, no
doubt in accordance with the old system of hospitality,
have from time immemorial included among their most
honoured guests, on Lord Mayor's Day,and at other state
feasts, the Judges and Serjeants-at-law, who attend in full
dress. A certain number of the Judges and Serjeants
still go in state to the Guildhall banquet, and are, or
rather were till the Judicature Act came into operation,
escorted by the Corporation officers."
Dugdale ^ speaks of feast-days at the Inns of Court,
when the Judges and Serjeants were entertained at the
Halls of the Inns to which they respectively belonged.
Judges and From time immemorial the Judges and Serjeants of
St. Paul's. the Coif have been very distinctly identified with St.
Paul's Cathedral.* The parvis there, we must remember,
was the ancient Forum Anglicanum, where the Serjeants of
the Coif had each their allotted pillar : * and the religious
observances of the Judges and Serjeants seem, (as befitted
them.) to have been always sufficiently methodical. When
Allotment of Fortescue's treatise ' De laudibus legum Angliae ' was
Yilhai. ^ written every Judge and Serjeant had, in his turn at all
• ' Edinburgli Review/ No. 300, p. 446.
^ Orig. Jur. p. 205. With reference to the Guildhall banquet as to the
dinners in the City, there -were settled rules as to the dress of the Judges
and Serjeants : see ante, p. 217 ; and Dugdale tells us that " When the Judges
go to any Readers' feast, they go upon the Sunday or Holy Day in Scarlet :
upon other days in Violet, with Scarlet Casting-Hoods, and the Serjeants go in
Violet, with Scarlet Hoods."— Dugd. Orig. p. 102,
' See ante, pp. 2, 3, 4,
* See ante, pp. 3, 97, and post, p. 243.
Chap. VII.] JUDGES AND SEEJEANTS AT ST. PAULS. 243
events, stood by his pillar at St. PauVs, allotted to him at
the time of his admission to the order ; and the ancient
ceremony of allotting the Serjeants' pillars ^ was repeated
at every call of Serjeants.
The religious rites and ceremonies observed by the Devotions of
learned Judges and Serjeants of the Coif in connection and Serjeants
with their visits to St. Paul's seem at this day hardly
credible — usages hallowed by the religious observances
of ages required visits, oiferings, and devotions at the
shrine or monument of saints and martyrs specially
associated with the City, the churchy or the law.
To the time of the Eeformation the most marked of St. Thomas
these observances was in memory of Thomas a Becket,
gradually translated into a saint, at whose shrine thousands
periodically appeared : and high and low poured in their
offerings for the benefit of the Church, and in devout
acknowledgment of the miracles vouched for by holy
friars, and reported by them to have been worked by
the departed spirit of St. Thomas of Canterbury, or as
the citizens of London preferred calling him, St. Thomas
of Acons.^
The Judges and Serjeants of the Coif were wont to Procession to
go to the chapel of St. Tliomas of Aeons to make their cimpei.
offerings before meeting at St. Paul's and going through
other formalities at the Rode of the North door, and the
shrine of St. Erkenwald.^
' See ante, p. 87, and post, p. 2M.
^ See ante, p. 87. The alias given to St. Thomas of Canterbury of St. Thomas of
Acre was in memory of the miracle said to have been performed by his Spirit
at the siege of Acre. The foundation by a Becket's sister temp. Henry II.,
(on the site of the present Mercers' Chapel) in Cheapside, was, according to
Stow, called the Hospital of St. Thomas of Acars or St. Thomas of Aeons.
See Stow's London, ' Cheap Ward,' Hospital of St. Thomas of Aeons.
" " And when the said new Serjeants have dined, then they goo in a sober
maner with their said off^ cers and ser vaunts into London oone the Est side of
R 2
24-1
THE ORDER OP THE COIF.
[Chap. TIL
Abolition of When Henry VIII. fell out with the Pope and the
superstitious • xi j i i •
ceremonies at priesthood and their cumbersome hagiology, the adora-
tion of a Bechet as St. Thomas of Canterbury or Acres or
Acars or Aeons, had become a gross abuse, a source of
much gain to the monks and friars, a cause of great scandal
to the law and the Cliurch :^ and Henry VIII. seems to
have taken a special interest in degrading the saint who
had caused so much trouble in days gone by. The Reforma-
tion took down the idol from its pedestal, and the Judges
and Serjeants thenceforth altogether ignored it. The
visits to St. Paul's were however continued ; the ancient
practice of allotting the Serjeants pillars remained till old
St. Paul's was burnt down ; ^ and the religious observances
of the Order of the Coif, sobered down by the utihtarian
Chepesyde, one to Seynt Thomas of Acres &nA. there they offer, and then come
down on the west syde of Chepesyde to Powles, and ther offer at the Rode of the
North door, at St. Erkenwald's shrine, and then goo down into the body of
the Chirche, and ther feast, they be appoynted to their pillyrs by the Styward
and CountroUer of the feste which brought them thider with the oder
officers.
" Ajid after that doone, they goo hoome ageyne to the place of the feaste,"
etc.— Dugd. Orig. c. 44, p. 117.
The similarity between this procession to St. Paul's of these Judges and
Serjeants and that of the Mayor and Corporation of London is very re-
markable. The City Liber Alius describes, among other usages and observances
of the Mayor on certain days, a procession after dinner to the Church of
St. Thomas of Aeons, to meet the Aldermen and those of the Mayor's livery,
with the substantial men of the mysteries, duly arrayed, and then going
in state to St. Paul's to hear vespers and complines. See ' Lib. Albus,' p. 1,
ch. viii. fol. 66.
' The absurd extravagances of the offerings of the devotees, and the
miracles worked at the shrine of St. Thomas are well described by Hume,
History of England, vol. 1, ch. viii. p. 147. In Chaucer's immortal ' Canter-
bury Tales,' written 500 years ago, we have the pilgrimage to Canterbm-y
so described as to charm the readers of this day.
^ Dugdale, writing in 1666, a few months before the great fire, when old
St. Paul's and the ancient pillars were all destroyed, refers to the ancient
custom of the Serjeants at the Parvis, and goes on to say that " after the
Serjeants' feast ended they do still go to St. Paul's in their habits, and there
choose their pillar, whereat to hear their clients cause (if any come) in
memory of that old custom." — Dugd. Org. Jur. 142
Chap. VII.] SERJEANTS' EINGS. 245
machinery of the Reformation of the Church and of the
Judicature, continue to our dav, in the attendance of
"H.M.'s Judges at St. Paul's:" whether or not they
belong to the old order with whom the association
originated.
Among the ceremonies and observances on the creation Serjeants
of Serjeants-at-law, one of the most ancient is that of the
presentation of gold rings to the Sovereign, the Lord
Chancellor, and others /rfei symholo} Sir John Fortescue
particularly speaks of these fidelity rings on the call of
Serjeants — the custom in his time being not only to give
rings to the King, but " so that the Prince, the Duke and
Archbishop, and every Earl and Bishop, and all the
Judges, Abbots, and Knights present, and all the officers
serving in the King's Courts, especially the Common
Pleas, received a ring suitable to his degree, besides other
rings presented to friends." ^
The usage of giving a ring jidei symbolo is certainly Others,
very old. It has been always observed at the coronation
of our Queens and Kings as at the marriage or betrothal ^
of ordinary folk ; and at the installation of Knights of
the Garter the solemnity has always been accompanied
by the presentation of rings.*
The ancient custom of the Serjeants presenting rings
is one of the few that have been kept up to our time.
Serjeants' rings are specially mentioned in the regula-
tions for the general calls to the Coif, temp. Henry YIII.
' Sir Henry Spelman says, " Donatmr Serviens ad legem annulo aureo sed
alios donat fidei symbolo, nam sic in coronatione Eex annulo donatux quasi
jam disponsus Eeipublicse."— Spelman's Gloss, tit. Serviens ad legem ■ Dugd.
Org. 120.
2 Fort. De Laud. Leg. Ang. c, 80.
" See on this an ingenious work published in 1877, by William James
F.S A., entitled ' Ring Lore.'
* See on this Asbmole's ' History of the Most Noble Order of the Garter.
246
THE ORDER OF THE COIF.
[Chap. VII.
Ring Mottoes
or posies.
Giving of
liveries, etc.
and Elizabeth, and not forgotten even during the Common-
wealth.^
Mo1;toes on the Serjeants' rings, or posies as they were
called, though spoken of by Dugdale as then usual, do not
appear to have been adopted till the middle of the reign
ofEHzabeth.''
The practice at one time was for the same motto to be
adopted by all the Serjeants included in the call. At first,
as a learned brother of the order observes, these mottoes
were rather barbarous in their style, e.g. Lex, Rex, Chrex, but
afterwards kept pace with the taste of the age.^ The law-
worshipping Coke, on taking the coif in 1606, took for
his motto " Lex est tutissima cassis." The motto on the
Serjeants' rings at the call just after the Restoration was
'• adest Carolus," after the " prsesens divus Augustus "
of Horace. The motto of the time-serving Jeffreys
was " a Deo Rex, a Rege lex." The Serjeants who were
made in 1842, after Sir John Campbell's ineffectual attempt
to destroy the order, was " Honor nomenque manebunt." *
One of the ancient ceremonies observed at the creation
of Serjeants-at-law was the giving liveries to retainers and
friends. The usage is expressly referred to in the statutes
relating to liveries,^ and was only discontinued in 1759,
' On the occasion of the call to the Coif in 1648, a debate arose in the
house whether the new Serjeants should send a ring to the King: hut put off.
-See Whitl. Mem. 35i).
' It is not mentioned in Chief Justice Wray's remarks about the rings of
the Serjeants called in 1578, 19 & 20 EUz., but their rings certainly had a
motto, Bex Regis proesidium, which Serjeant Wynne saj s was the first motto
he had met with.
' Serjeant Wynne's Tracts, p. 362. Sometimes one motto was adopted by all
the Serjeants included in the same call — at other times each of them adopted
a distinct motto.
* This call included Serjeants Manning, Channell, Shee and Wrangham,
all of whom were well known as Queen's Seijeants, two in after years as
excellent Judges.
° See ante, p. 214.
Hall.
Chap. VII.] OLD PROCESSIONS. 247
The Judges and Serjeants in old times appear always Judges and
to have gone to the Courts on horseback with a retinue of going'toVe
men in livery. They are always described as riding the {^orYgtaok.
circuit/ and the addresses to the newly-created Serjeants
give them advice as to the number of horses they should
keep and how they should dress when riding circuit.^
At the opening of the Courts at Westminster Hall the The old pro-
Judges and Serjeants had been long accustomed to attend Westminster
in regular procession. The Judges up to the middle of
the sixteenth century seem, on these occasions, usually to
have gone on mules, like the old bishops and abbots.
Serjeant Whiddon, wlio was made a Judge of the Common
Pleas in 1553, has the credit of getting this ancient
observance changed, the Judges going to Westminster
on horseback ; ^ and the cavalcade, we are told, was some-
times very imposing, the Lord Chancellor or Lord
Keeper and great officers of State, with the Judges
and leaders of the Bar and many of the nobility going
on horseback in full state. Such was certainly the case
when Bacon got the Great Seal in 1617.^ Pepys
mentions his meeting the Lord Chancellor and Judges
' See ante, p. 102, and address to Lord Keeper. Dyer, id. ib., n. 1.
" " It is reported that John Whiddon, a Justice of the Court in 1 Mariae,
was the first of the Judges who rode to Westminster HaU on horse or
gelding, for before that time they rode on mules." — Dug. Orig. 38. The
Mayor's procession to Westminster up to 1454 was always on horseback.
^ " As to the formal proceeding of this great officer unto Westminster
Hall after he is advanced to that dignity, I shall give this only instance of
Sir Francis Bacon Knight, who (being the King's Attorney General) having
received the Great Seal upon the seventh March, 14 Jac. Regis, upon the
first day of Easter Term then next ensuing, went thus — 1st the clerks and
inferior officers of the Chancery ; secondly, young students of the law ; thirdly,
the gentlemen of his own family ; fourthly, the Serjeant at Arms and the
bearer of the Seal (all on foot) ; then the Lord Keeper himself on horseback
in a gown of purple satin betwixt the Lord Treasurer and the Lord Privy
Seal, divers Earls Barons and Privy Coimsellors, as also the Judges and many
gentlemen of note following after." — Ex. Annal. Regis Jacob, per W. Camden
MS. ; Dug. Orig. c. 16.
248 THE ORDER OF THE COIF. [Chap. VH.
riding on horseback to Westminster Hall on the first day
of Michaelmas Term^ 1660.'
Result of re- The gaj minister of Charles II., Anthony Ashley
oHprocession Cooper, Earl of Shaftesbury/ on obtaining the Great
on horseback, ggg,!, sought during his short tenure of office as Lord
Chancellor to make the judicial cavalcade on the first day
of term as showy as in the time of Bacon.
Roger North tells us, " His Lordship (Lord Shaftes-
bury) had an early fancy, or rather freak, the first day of
the term (when all the officers of the law, King's
Counsel and Judges, used to wait upon the Great Seal to
Westminster Hall) to make this procession on horseback,
as in old time the way was when coaches were not so rife.
And accordingly the Judges were spoken to to get
horses, as they and all the rest did by borrowing or
hiring, and so equipped themselves with black foot-
cloaths in the best manner they could ; and diverse of the
nobility, as usual in compliment and honour to a new
Lord Chancellor, attended also in their equipments.
Upon notice in town of this cavalcade, all the show
company took their places at windows and balconies,
with the foot guard in the streets, to partake of the fine
sight, and being once settled for the march, it moved, as
the design was, statelily along. But when they came to
1 " In my way thither I met the Lord Chancellor with the Judges riding on
horseback, it being the first day of the term." — Pepys' Diary, vol. i. p. 80.
^ The first Earl of Shaftesbury was on the woolsack from 17th Nov. 1672
to 9th Nov. 1673, succeeding Sir Orlando Bridgeman, without ever having
practised the law or gained other experience than that derived from active
service during the Civil War and attendance at Court since the Restoration.
He seems to have had little respect for the judicial office, sitting on the bench,
as we are told, in an ash-coloured gown, silver laced and full-bottomed
pantaloons displayed without black garb of any kind, setting all rules of
Westminster Hall at defiance. He will be remembered as the Achitophel of
Dryden (the Lord Ashley, who, with Clifford, Buckingham, Arlington, and
Lauderdale, constituttd the famous Cabal.)
Chap. VII.] JUDGES AND SERJEANTS ON HORSEBACK. 249
straights and interruptions, for want of gravity in the
beasts, or too much in the riders, there happened some
curvetting which made no little disorder.
" Judge Twisden, to his great affright, and the conster-
nations of his grave brethren, was laid along in the dirt,
but all at length arrived safe, without loss of life or
limb in the service. This accident was enough to divert
the like frolic for the future, and "the very next term after
they fell to their coaches as before."
In a paper undated of the time of Charles II., and found
among the muniments of a noble family numbering a
Lord Chancellor in the ancestral roll, and tVierefore
supposed to be authentic, there is a document entitled
'* How the Lord Chancellor goes to Westminster on the
First Day of Term." '
1 " The TisTial manner of the Lord High Chancellor, his goeing to
Westminster the first day of every terme, whither on horse or in coach, and
how attended." His Lordship the first day of every terme, about eight of the
clock in the morning is attended att his owne house by the Lorde Cheife
Justice, the Master of the Rolles, the Chiefe Justice of the Common Please, and
the Cheife Baron of the Exchequer, together with all the Judges, the Attorney,
and Solicitor Generall, and the rest of the Kinge and Queen's Councill, and
the Serjeants at Law with all the OflScers belonginge to the High Court of
Chancerye, where they are treated with biscuit wafers, round cakes, and
macaroons, and with brewed and burnt wyne, served after this manner —
Thirdly, the brewed wyne in a faire, great cupp, conteyninge a gallon,
brought in by the Usher of the great Chamber, and presented to the Lord
Chancellor, who drinkes to the Mr. of the Rolles, and Lord Chiefe Justice of
the Common Please, and soe goes about to the Judges and the rest of the
Officers in that roome.
" Which ceremony ended, his Lordship sets forward for Westminster Hall
in manne followinge : — If his Lordshipp goes in a coach, then the Master of
the Rolles sits in the coach by him, and the 2 Lord Cheife Justices sitts at
the other end of the coach. The Serjeant at Armes, sitts alone in one boot,
and the seale bearer alone, the other boot. The Lord Cheife Baron and the
rest of the Judges, King's Councilles and Serjeants at Lawe, placed before the
Barr of that Court, and Officers of the Chancery, follows in their coaches,
every one in their order and degree, to Westminster Hall doors, where his
Lordshipp takes leave of the Cheif Justice and the rest, and soe passing by
the Court of Common Please, there finds the Serjeants at Lawe placed before
the Barr of that Court, presenting themselves to his Lordshipp. Accordinge
250
THE ORDER OP THE COIF.
[Chap. VII.
Riding the
circuit.
Modem
fashion of
Judges on
horseback.
The Judges and Serjeants in the Circuits were obliged
in old times to travel on horsebach, and were said therefore
to ride the Circuit, and we find continual reference to
their escort to the assize town by the Sheriff of the
County with his retainers and javelin men, etc. ; and in
the formal addresses in Westminster Hall to the newly-
made Serjeants in the sixteenth century we find direc-
tions given as to the number of horses they were to
keep, and how they were to ride the Circuit.^
More recently, when the Judges have ridden the Circuit
or gone to the Law Courts on horseback, they have done so
for their own pleasure, and their risks and mishaps have
been of their own courting. Though the Bar could
probably supply, if called upon, a sufiBcient number of
goodly cavaliers, yet it must often happen that its
successful members become equestrians at an advanced
period of lile, and there are many good old Westminster
Hall stories told of the adventures of members of the
to their seniority, his Lordshipp shaking them by the hand as he passes along ;
which ceremony ended, his Lordshipp goes upp to the Chancery Court.
But, if his Lordshipp rides on horseback, four footmen goes beside his
Lordshipp, two on one side of his Lordshipp's horse, and two on the other ;
he rides foremost alone, with a small wand in his hand, and his gentlemen
of his horse walkes by his stirrups. Next his Lordshipp rides the Cheif
Justice, and the Master of the Rolles, etc., etc. But before his Lordshipp
there first walkes the Serjeant at Armes and the Seale bearer, and first Gent.
Usher ; before them, his Lordshipp's Secretary and all the rest of his retinue
in order, all bare ; next before them walkes the officers of the Chancerye in
their orders and degree, all covered. Before all goe the Tipstaves of the
Court and the Constables, who cleare the way for his Lordshipp's passage
through the streets to Westminster Hall door, where his Lordshipp
alighting, delivers his wand to his Gentlemen of the Horse, and takes leave
of the Lords Cheife Justice as before, and receives the Serjeants at Lawe at
the Common Please Barr, and so goes to the Chancery."
' Chief Justice Dyer, after various other suggestions to the seven Serjeants
called in March, 1577, tells them " to ride with six horses and their sumpter
in long journeys, to wear their habit most commonly in all places at good
assemblies, and to ride in a short gowne."— Dug. Orig, 120.
Chap. VH.] JUDGES AND SEEJEANTS ON HORSEBACK. 251
Bench and the Bar, and their feats on horseback ; about Various inci-
the Charger of ' General ' Watson,^ and how it was rudely anecdotes
depreciated by Chief Justice Jervis, and about " Byles thereto.
on Bills," ^ with the droll misgivings of Chief Justice
Tindal as to taking the Attorney-Greneral's advice
respecting the safety of the horse he was in the habit of
riding.^ Such disasters have been less frequent than
might have been expected among men whose riding
lessons were first taken when they had at all events
attained middle age. Sir Cresswell Cresswell's death was
' Baron Watson, when at the Bar, used to ride a horse of such antiquity,
that he spoke of it as having been his charger at Waterloo, when he was a
cornet of dragoons. Arguing in the Court of Common Pleas on the
provisions of the Statute of Frauds as to contracts of the value of £10, he is
said to have very prosily reiterated the words, " Suppose, my Lords, that I
contract to sell my horse," until he was, to the extreme amusement of the
Court and the Bar, interrupted by the Chief Justice Jervis with the remark :
" But you must make it out to be of the value of ten poTinds."
« Sir John Byles, so long known in Westminster Hall as Serjeant and
Judge, and before that time as the author of the famous work on the law of
Bills of Exchange, was long in the habit of counteracting the effects of his
sedentary pursuits by horse exercise.
A horse which, for many years, carried him to Westminster Hall and the
Temple and on Circuit, got the name of ' Bills,' and had become so used to his
rider's methodical habits that he would stop opposite his Chambers in the
Temple, and remain unattended until the Serjeant was ready to go to West-
minster. The well-known figure of both master and horse got the name of
' Byles on Bills,' and punctually at half-past ten their arrival opposite the
private entrance to the Common Pleas might be noted. When on one
occasion the learned Serjeant was detained, and the business of the Court
of Common Pleas was delayed in consequence, the Judges not being able to
proceed with the business, a question was asked what the Judges were
waiting for, whether for Coke upon Littleton, or the Term Eeports ? A sly
old barrister suggested that it was neither for one nor the other, but for
Byles on Bills.
' The late Chief Justice Tindal used to tell a sly story of Campbell, when
Attorney-General, meeting him on horseback on the road to Westminster,
and praising the Chief Justice's horse, was informed by him that the groom
had reported unfavourably of the animal — that he had a habit of stumbling.
Campbell, however, continued to praise the beast, intimating that it would
be difficult for the Chief Justice to be suited better. Sir N. Tindal in
telling the story afterwards slyly added, that he thought it best, after such
advice coming from the Attorney-General, to at once get rid of his horse.
252 THE OEDER OF THE COIP. IChap. VH.
occasioned by a fall from his horse in Hyde Park, when
that lamented Judge was seventy years of age. Lord
Campbell, who was four years older, attained the Chief
Justiceship,^ and, returning from Gruildhall, was thrown
from his horse, and was reported to have been killed, but,
as he himself reports, was at half-past nine next morning
again upon the Bench at Gruildhall, to the great surprise
and dismay of Mr. Attorney- General, who for a space had
considered himself Chief Justice,
^ See ' Life of Lord Campbell/ by his daughter, the Hon. Mrs. Hardcastle,
vol. ii. p. 308.
( 253 )
CHAPTER VIII.
COJICLUDINa REMAKKS.
In the foregoing pages we have seen the origin and Ketrospect.
history of the Order of the Coif, and how the institution
flourished here for so many centuries, forming, as it were,
a part of our common law. In our retrospect we have
witnessed the old order in the earlier days referred to
by Chaucer, when the Parvis of Old St. Paul's served as
the English Forum/ and we have looked back on the
ancient Aula Hegia, with the Justices of the one Bench
and the other ^ sitting there, and the old Conteurs or
Narratores Band standing by, and we have seen these
Judges and Serjeants of the Coif constituting the only
recognised Bench and Bar in this country. We have
also gone back to the actual history of Westminster Hall
from the time of its first occupation by the lawyers to
their recent removal to the new Law Courts under a
newly constituted system of judicature.
The Order of the Coif, as we have seen, formed from Legitimate
the earliest period of our legal records, a distinct and thror°der.
recognised body, with a permanent position in reference
to the law. From their body were chosen the regular
' See ante, p. 3. The Parvis of St. Paul's, for a century before the fire of
London, was the designation of the middle aisle, or Paul's Walk, where the
wits and gallants and newsmongers met, and the Serjeants were to be found
ready to receive their clients.
' See ante, p. 88.
254
THE ORDER OP THE COIF.
[Chap. Vni.
Legitimate
status et
gradus of
Serjeants-at-
law.
Judges and higher law officers of the Crown ; not only
the Attorney-Greneral, but the Servientes Regis ad legem,
and the Chief and other Justices of the various Benches,
appointed from time to time, and removable from Court
to Court, and discharged as the Crown might direct
retaining always their position and station as Serjeants-
at-law.
We have already said sufficient as to the legal and
social grade of the Order of the Coif. Until a compara-
tively modern time no questions ever arose on this
subject, and the Serjeant-at-law, like the possessor of
any other title of honour, noble or commoner, took place,
rank and precedence according to a settled table,' and
the status et gradus servientis ad legem always implied a
legal and general position, and, unlike municipal or
professional rank, not confined to some special locality
or occasion, but, as the higher titles of honour, was
indisputably permanent. In the language of Chief
Justice Brooke,^ serviens ad legem est nosme de dignite
comme Chevalier," etc., and it is character indelibilis ; no
accession of honour or office, or remotion from them,
takes away this dignity, but he remains a Serjeant still.
' See on this, ante, p. 36.
By 1 Edw. VI. c. 7, it is enacted (s. 3) : " That albeit any demandant
or plaintiff in any manner of action, bill or suit, shall fortune to be made or
created a duke, archbishop, marquess, earl, viscount, baron, bishop, knight,
justice of the one bench or the other, or Serjeant- at-the-law, depending the
same action, bill or suit, yet no writ, action or suit shall, for such cause, in
anywise be abatable or abated." And (s. 4), "That albeit any person or
persons being justice of assize, or being in any other of the kings commission
whatsoever, shall fortune to be made or created duke, archbishop, marquess,
earl, viscount, baron, bishop, knight, justice of the one bench or the other,
serjeant-at-law, or sheriff, yet he and they shall remain justice and com-
missioner, and have full power and authority to execute the same in like
manner and form, as he or they might or ought to have done before the
same."
" See Brooke's Abridgment, title Nosme 5, ante, p. 37.
Chap. VIIL] QUESTIONS OP PRECEDENCE. 255
The rules and regulations by which rank and pre- Established
cedence are settled in this country come to us from the precedence.
common law, which has been at different periods
expounded by the high officers to whom such _ power
legally belongs, and in some cases the legislature has
specially disposed of questions that have arisen on the
subject.^
These rules, as we have seen, fix the proper place of
every one from the duke downwards, and the position
of the Serjeant-at-law in the social ladder comes above
an esquire by office or otherwise, not having special
rank conferred on him.^ Serjeants-atJaw are placed in
the table of precedence above officers in the army and
navy, even of the rank of Admiral or General, or a
Commander of the Bath, etc., and the precedence of
the wife of a Serjeant-at-law is as well established as
that of the wives of the nobility or of Baronets or
Knights.^
Questions gradually grew up in former times between Question of
T)rGCGQ.CIlCG
the order of the Coif and Knights Bachelors, as to pre- between the
cedence. Serjeants-at-law being under obligation to dis- law'tnd*^'^'
charge their duties in the Courts, were assumed to be ^i^shts.
' See 31 Hen. VIII., c. 10, how the Lords are to be placed.
" Seqeants are without controversie above esquiors, and never written or
called esquiors, because that is drowned in the state of a Serjeant-at-lawe,
beinge more worthy ; whereof it foUowes that Serieants being above all
that are Knight inferiors, they stand in equalitie with Knights, and therefore
betweene them and Knights standinge in tearmes of equalitie with Knights,
there is no other reason of precedencie but senioritie as it is betweene Knights
amonge themselves. Memorial to James I. respecting Knighthood : see post,
p. 257.
The designation of Esquire properly belongs to the younger sons of Peers,
the eldest sons of Baronets, Knights, and Serjeants-at-law; to ofiScers in
H. M. S. designated in their commissions or patents, e.g. Justices of the
Peace, oflcers in the Army and Navy, Queen's Counsel, and Barristers-at-
law, etc.
' See cmte, p. 36.
256
THE ORDER OF THE COIF.
[Chap. VIII.
Exemption
of Serjeants-
at-law from
obligation to
be knighted.
Questions
arising when
knighthood
was conferred.
Formal en-
quiry in
1161.
exempt from liability to be made Knights ; and Serjeant
Eolfe in 1431 successfully resisted the attempt to compel
him to receive knighthood/ and none of the degree
of Serjeant-at-law were Knights before 1535, when
Willoughby and Baldwin, the King's Serjeants-at-law
were knighted, and the record states that this was
the first occasion when Serjeants-at-law had been so
made.^
The lavish distribution of titles of honour has ever
been a practical evil, more especially when knighthood
was made to serve as a source of revenue to the Crown.
Those who could honourably escape the obligations
imposed by custom generally claimed exemption, and
the Serjeants of the Coif were among them. When
knighthood became less burthensome and objectionable,
Serjeants-at-law had no longer reason for refusing the
honour. Other questions arose on this subject. It was
from the first stated that a Serjeant-at-law being knighted
did not thereby take precedence of other Serjeants,^ and it
had been long a matter of dispute whether any Knights
Bachelors took precedence of Serjeants-at-law.
In 1611 this latter question was submitted to the
Crown,* but after some discussion the controversy came
^ See Dugd. Orig. c. 51.
'^ Memorandum, quod Term. Trin. 26 Hen. VIIL, Thomas Willoughby et
Johannes Balwin Serjeant le Roy, furont faits Ohivaliers et que nul tielz
Serjeaunts devant fuere unq; faitz Chivaliers." — MS. of Clem. Spelman
cited by Dugdale, Orig. cli. p. 137.
^ See ante, p. 36, and post, p. 257. And the reasons given in the Serjeant's
memorial to James I. as to their precedence, one of which is that —
" If Serieants be made Knights, they doe not preeeede or take place of any
other Serieants, who are not knights, beinge their aupcienes. And by the
death of the late Queen's Mat'° all the Judges were but Serieants until
againe they were made Judges by the King's L'res Patents."
'' See Serjeant Manning's appendix to the report of the Serjeants' Case,
1840, p. 263, where the following petition to the Crown and answer are
set out : —
Chap. VIII.] SEEJEANTS-AT-LAW AND KNIGHTS. 257
to an end, leaving the relative position of the Knight and
the Serjeant-at law exactly where it was,' both James I;
and Charles I. apparently taking advantage of the
Question of Precedence between Serjeants and Knights.
To our most Gracious Soveraigne Lord, James, by the Grace of God, of
England, Scotland, France, and Ireland, Kinge.
The humble peticon of the Surieant at Lawe.
Humbly beseecheth your Highness your supplyants, the Serieants at Lawe,
That where there is some diflference and question of precedence and place
betwixt your supplyants in their degree of Serjieants at Lawe, and such
Knights as have been made since they were called to be Serieants by Your
Highness ; and the rather, for that the degree of KnighthoDd is bestowed
upon divers Utter Barristers and professors of the Lawe. And whereas,
ToTu: supplyants have been Suitors to Your Highness honourable Commis-
sioners for causes determinable in the Earle Marshall's Court, for the
determinacon of the same ; but as it seemeth, they are not like to receive any
resolucon there by reason of the difficultie and consequence thereof without
some direcon from Your Majie. in beinge pleased to signifie Your Eoyale
opinion what Your Highnesse shall thinke convenient to bee done in a
cause of this nature :
Their humble suit is. That Your Highnesse would be graciouslie pleased,
for the avoiding of further iuconveniencies, which are like hereby to the
p'judice of Yo' Mat'" publique service in all Your Highnes Counties of the
Kealme of England, to consider of the Eeasons here within written, and to
vouchsafe to deliver Your Mat'"' opinion, or to give such order or direction
to Your Mat'" said Commissioners therein, as in Your princelie Wisedome
shall be thought fitt and convenient ; and Yo' supplyants will hold them
selves well satisfied with whatsoever Yo' Highness shall determyne therein,
and dailie prey for Yo' Majesties longe and prosperouse Kaigne over us.
At the Court of Eoyston, the 20th of October, Anno 1611, the King's
Mat'" beinge well pleased, that the Serieants at Lawe shoulde retayne their
right and ancient reputacon doth appointe some of the peticoners to attend
the saide Lord Commissioners with this peticon, not doubtinge but that
their Lordshipps will either determyne this controversie or acquaint His
Mat" with the difficulties ; whereupon His Highnes may declare His Eoyal
pleasure therein. Eog. Wilbrahem.
' In the I Edw. VI., c. 7, referred to ante, p. 254, Knights are placed
not only before Serjeants, but before Justices of the one Bench and the
other.
James I. seems to have made money by the creation of Serjeants, the
fifteen Serjeants called in 1623 having paid the King £500 a-piece : see Foss's
Judges and Serjeants, vol. vi., p. 31, and ' Judges of England,' tit. Sir John
Branston quoting the learned Judge's autobiography, where his acquit-
tance from the King for the £500 is referred to.
It was made a charge against Charles I. that he exacted money from
the newly-made Serjeants.
S
258 THE OEDEE OP THE UOIP. [Chap. VIII.
opportunity to exact heavy contributions on both the one
and the other.
Limited It is remarkable that the Order of the Coif never included
the order. but a Small number/ Not only were the Judges appointed
few in number, but the order itself, from which the Bench
and the Bar exclusively came, was always restricted —
the whole number seldom exceeding forty or forty-five?
a fact free from doubt, though there is no authentic list
of Serjeants' writs before the time of Edward II.
Tables and In the table of Serjeants of the Coif already given in
Serjeants and this work there will be recognised the names of men
^u_geso e f^Wy bearing out the description in our Introduction.
Many at least of the " most honoured names in English
history, not only Judges, Jurists, learned writers, great
advocates, and men who rose to the highest position in the
State ; members of the Legislature, Cabinet Ministers,
occupants of the woolsack, and the Speaker's chair." ^
Distin- There have sprung from lawyers in this list the
members of families of not a few of the noble and honoured in this
the order. country.
The 'gran- Fortescue, Coke, and Dugdale, each in his own way,
bear testimony to what more modern writers have desig-
nated the " G-randeur of the law." Sir John Fortescue,^
in speaking of the Judges, says : " It has been observed
as an especial dispensation of Providence that they have
' In the reign of Henry VIII. the number of members of the Order of the
Coif was only thirty-three, whether Judges or Pleaders ; and at that time
the old rule was strictly followed of choosing the Judges from the practising
Serjeants : and, as may be remembered, there were not till a century after-
wards, any King's Counsel, except the King's Serjeants and the Attorney- and
Solicitor-General. In the reign of George IV. the whole number of the
Judges and Serjeants was forty, whilst twenty-six King's Counsel only were
appointed during the whole reign.
During the reign of William IV. the addition to the Coif was by Judges
only, whilst fifty new King's Counsel were added to the Ust.
' See ante, page 4. ^ De Laud. Leg. Angl., ch. 51., p, 123.
deur of tlie
law.'
Chap. VIII.] GRANDEUR OF THE LAW. 259
been happy in leaving behind them immediate descen-
dants in a right line, 'thus is the man blessed that
feareth the Lord ' ; and I think it no less a peculiar
blessing — that from amongst the Judges and their off-
spring more peers and great men of the realm have risen
than from any other profession or estate of men what-
soever who have rendered themselves wealthy, illustrious,
and noble by their own application, parts and industry."
Dugdale's Chron. series sets out in order of time during
four centuries^ the names of Judges and Serjeants in
the service of the Crown, and he gives us a reason for
this in his Preface, that it might shew what eminent
lawyers were contemporaries and pupils, how so many
great and noble families originated with the Order of the
Coif, " be seen how the most famous men for knowledge
in our laws stood contemporary,^ through all ages since
the Norman Conquest, partly also what great and noble
families (as well of those which are gone out in heirs
female or otherwise as such who still continue) have
sprung from those roots."
• 1 Edw. I. to 11 Cao-. I.
^ ' Or at least be much advanced by such their ancestors, whose rise was
from this excellent study and profession : and lastly to rectify those common
and ordinary mistakes, which pass for good and current amongst divers
young studpnts; who, finding in the Year-books frequent authorities for
opinions ; either do take all of them to be Judges of old, or, at least, are not
able to distinguish between the Judge and the Pleader, and not only so ; but
which is worse : viz., in not being well acquainted with the true names of
the Judges ; and principel lawyers of those times, do take those abbreviations
of their names, there found, to be their very genuine and proper appelations.
Id est Mutt, for Mutford ; Shard, for Shardelowe ; Scorb. for Scorburghe ;
Aldeb. for Aldeburghe; Malb. for Malberthorpe ; Hepp. for Heppescotes;
Cant, for Cantebrigge ; Loved, for Loveday ; Trev. for Trevanignon ; Parn.
for Paming : Stouff. for Stouford ; Bank, for Baukewell ; Keif, for Kelleshill ;
Scott, for Scotere ; Sad. for Sadington ; Hill for Hillarie ; Toud. for Toudeby ;
Frisk, for Friskenye, with the like : by which means, not only their right and
true names ; but consequently their so well and deserving memorie (where-
unto much honour is due) is utterly buried in the depth of oblivion.~Dug.
Orig., Preface.'
s 2
260
THE ORDER OP THE COIF.
[Chap. VIH.
Grandeur of
the law.
Serjeant
Howard,
temp. Edw. I.
William
Howard.
In a work entitled ' The Grrandeur of the Law,'
published in 1684, is a list of great families owing their
position to their founder's success in the legal profession ;
we have further information in Mr. Foss's work published
in 1843,^ under the same title.^ The Dukes of Norfolk
and Devonshire, as well as the Dukes of Montague and
Manchester, the Marquises of Winchester, Townsend and
Camden, the Earls of' Guilford, Buckinghamshire, Sand-
wich, Winchelsea, Cadogan, with a very large number of
other Peers, all derive title from Serjeants-at-law, and the
list which we have already given contains the names of
the founders of their families.
The ancestors of " all the Howards " was the William
Howard or Haward appearing in our table as a Serjeant
of the law of the time of Edward I., and who " often
hadde ben at the par vis" and stood by his client at the Bar
of the Common Bench, and, like the learned brother
described by Chaucer,
" Justice he was ful often in assise ;
By patent, and by pleine commissiun ; " '
for the records expressly mention him,* and he rose to be
one of the regular Judges of the Aula Regia, having a seat
on the Common Bench from 1297 to 1309.' And William
Howard appears from the Rolls of Parliament ° to have
' ' Grandeur of the Law,' H. Philips.
* ' The Grandeur of the Law, or the Legal Peers of England,' by Edward
Poss, Esq., F.S.A. London, Spettigue, 1843
' Ante, p. 3.
■* See claus. Ebor. Northumberl., etc., 1293, cited in Dugd. Chron. ser. 31.
^ See Liberates 27 Edw. I. (2 claus. 1 Edw. II., in dorso m. 19, cited
Dugd. Chron. series 34.
« I Rot. Pari. 178, 218.
In 1308 the names of the Justiciarii in Banco appear as Ead. de Henghem,
Will. Haward, and three others. Claus. 1 Edw. II. in dorso m. 19. The
inscription on the portrait of Serjeant and Justice Howard in Long Melford
Church, already referred to (ante,^. 17), is said to have described him as in a
Chap. VIII.] SERJEANT HOWAED'S DESCENDANTS. 261
attended like-the other Judges and Serjeants in aid of the
Legislature to act as one of the Triers and Receivers of
Petitions, but the statement that he was Chief Justice of
England appears more than questionable.
The ancestors of Serjeant and Justice Howard, as the Descendants
Howard Memorials ^ tell us, were of honourable but not Howard!"
noble pedigree ; his lineal descendants became Dukes of
Norfolk,^ and in the present House of Peers the line of
Howard is represented by the Earldom of Suffolk and
the Earldoms of Carlisle and Effingham, and tLe barony
of Howard of Walden ; and from the same stock came
several other peerages now extinct.^ And the inter-
higher grade " orate p. a. Gulmi. Howard Cheff Justis of England ; " but
inasmuch as in 1308, he was clearly only a puisne Judge, Ealph de Henghem
being Chief Justice, and Sir William Howard died in 1308 whereas the
memorial in Long Melford was erected nearly a century afterwards the
statement about Cheff Justisse is clearly a mistake. This inscription is said
to have been in existence as late as 1688, but is now lost. The portrait of
this Sir WiUiam Howard is engraved in the privately printed memorials of
the Howards edited by the late Mr. Howard of Corby. Long Melford
Chuich was restored circa 1450-95, the painted glass windows being filled
with portraits of the family and kinsfolk of John Clopton of Kentwell Hill,
the Squire of Long Melford whose family intermarried with the Howards.
When Dugdale wrote, the three figures referred to, ante, p. 17, were placed
together ; but many years ago Howard and Pygot were placed together in
the east window, and Serjeant Hough in the south-west window, as they are
now, no trace of the words Cheff Justisse being visible.
' In this work, prepared and privately printed by Mr. Henry Howard of
Corby Castle, Ap. XL., they are described as " what we should call " private
gentlemen of small estate, probably of Saxon origin, living at home, inter-
marrying with their neighbours, and witnessing each others' deeds of convey-
ance and contracts.
^ Sir Eobert Howard, the lineal descendant of the Judge, married Margaret,
the daughter of Thomas Mowbray, Duke of Norfolk and co-heir of John
Mowbray, fourth Duke. Their son, John Howard, was simimoned to Parlia-
ment as Baron Howard by Edw. IV. in 1470, and was created Earl Marshall
and Duke of Norfolk by Eich. III. in 1485, being the famous Jocky of
Norfolk mentioned by Shakespeare.
' E.g., The Viscounty oi Bindon, 1559 to 1619. The Earldom of Nottingham,
1597 to 1681. The Earldom of Northampton, 1604 to 1614. Barony of
Howard of Escrick, 1628 to 1714. The Earldom of Norwich, 1672 to 1777.
The Earldom of Stafford, 1688 to 1762. Earldom of Bindon, 1706 to 1722.
262
THE ORDER OP THE COIF.
[Chap. VIII.
Descendants
of Serjeant
Cavendish.
Other fami-
lies belong-
ing to the
order.
marriages of members of this noble line have contiectecj
it with the best and highest in the land.
The name of another famous Brother of the Coif
belongs to the English peerage and the history of our
country^ — John de Cavendish,^ who in the time of
Edward III. is mentioned in the Year-books as a prac-
tising Serjeant Counter, and rose to be Chief Justice of
England, and fell by the lawless hands of the rebels.^
His descendants were ennobled long after his death ; ^
two Dukedoms with numerous other titles fell to their lot,
and the lineage of many noble famiUes come through the
good blood of John de Cavendish servientem ad legem.
To enumerate all those among the upper classes in thig
country who can find the names of their ancestors in our
list of Serjeants-at-law would be to take largely from the
works of Burke and Debrett. The English peerages and
baronetcies existing, dormant, or extinct, the pedigrees of
our great commoners and landed gentry, and of the chief
families of the United Kingdom include many of those
names.
' The name of John de Caundish or Cavendish appears in the Year-books
as early as 21 Edw. III., 1347; his first appearance as a Judge was 40
Edw. III., when we find him mentioned in the Year-books as such, and in
50 Edw. III. we find a case in the Year-books where Caundish, Justice, in
reference to a lady's age is made to say — " II n'ad nul home en Engletere
que puy adjudge a droit deins age ou de plein age car ascun femes que sent
de age de trent ans voilent appeler d'age de 18 ans." — Year-book 50 Edw. III.,
fol. 6, pi. 12.
^ In the insurrection the venerable Judge fell into the hands of the rebels,
who dragged him into the market-place of Bury St. Edmonds, and after a
mock trial he was ruthlessly beheaded.
' William Cavendish, great grandson of the Judge, who was gentleman
usher and companion of Cardinal Wolsey, and wrote his life, was elevated to
the peerage in 1605 as Baron Cavendish of Herdwicke, and made Earl of
Devonshire in 1618, and in 1694 William, the fourth Earl, was made
Marquis of Hartington and Duke of Devonshire. Another descendant of
the Judge was in 1620 created Viscount Mansfield, to which title was after-
wards added the Earldom, Marquisate, and Dukedom of Newcastle — all of
which titles became extinct in 1691.
Chap. VIII.] DESCENDANTS OP LITTLETON.. 263
Let us take two other names from the list .of Brothers Littleton and
of the Coif, more regarded in the Law Courts than ^°^®-
Howard or Cavendish-— viz., Littleton and Coke — and we
shall see how well they bear out the idea of the " grandeur
of the law."
Thomas Littleton practised as Serjeant Counter, wrote
his famous law book, and sat on the Bench as a Justice
in the fifteenth century/ and Coke,^ the great com-
mentator on Littleton, gained renown both as Judge and
Serjeant, and exponent of the law a century afterwards,
gaining distinction as apprentice of the law, Recorder,
chief officer of the Crown, and Chief Justice of England,
and then going back and gaining still more legal renown
as Serjeant and lawyer both at Westminster Hall and
in Parliament.
Both the families of Littleton and Coke were, like those
of Howard and Cavendish, ennobled ; not merely one, but
various titles of honour were bestowed on their descen-
dants. Lineage of
other de-
From Thomas Lyttleton ^ came not only the Lord scendants of
Littleton.
' Thomas Littleton was called to the Coif in 1453, having been previously
Lector of the Inner Temple; his public reading there on the Statute of
Westminster, 'de donis conditionalibus ' being especially commended. He
practised as Serjeant Littleton until 1466, when he was made a Judge of
the Common Bench.
^ Coke was called to the Bar at the Inner Temple in 1578. In the next
term his name appears in a case in the Queen's Bench : see 4 Coke, Eep. 14.
In 1585 he was chosen Eecorder of Coventry, the next year of Norwich, sxxd.
in 1591 of London. In 1592 he was made Solicitor-General, in the next yeaj
M.P. for Norfolk, being chosen Speaker of the House of Commons, and in
April, 1594, he became Attorney-General, which office he held till June,
1606, when he was called to the Coif and made Chief Justice of the Common
Pleas : see 2 Croke, Eep. 125 ; and in 1613 he was Chief Jitstice of the King's
Bench, being, three years after, like so many other Judges, dismissed from
office. After leaving the Bench he returned to the Bar, like Hale, as a
Serjeant-at-law. In Parliament, during the seven years that he was member,
afterwards, his status et gradus servientis ad legem was alv/ays respected.
' Thomas Lyttelton, grandson of John Lyttelton of I'rankley, married
Elizabeth, the daughter and co-heir of Sir Gilbert Talbot, and grand-
264
THE ORDER OP THE GOIF.
[Chap. VHI.
Descendants
of Coke.
The Fortes-
cue family.
Lyttletons of Frankley, but the Lords Hatherton, as well
as Lord Lyttelton of Motmslow, whose peerage died with
him in 1 646 : and directly descended from the famous
lawyer and Serjeant/ came the Lords Lilford, taking
their family name, Littleton Powys, in part from Thomas
Lyttelton, and in part from their ancestors, the Powys,
one of whom, Thomas Powys, was also a Brother of the
Coif (created Serjeant-at-law in 1669). ^
The descendants of Coke as well as of Littleton were
destined to belong to the nobility. Sir Thomas Coke of
Holkham, fourth in descent, was in 1728 made Baron
Lovel, and afterwards Viscount Coke of Holkham, and
Earl of Leicester, and these titles expiring in 1759, they
were renewed in 1837 in the person of the well-known
Thomas William Coke of Holkham, the seventh in
descent from Sir Edward Coke, the famous lawyer,
Serjeant, and Judge.
We have referred to Howard and Cavendish, Littleton
and Coke, and we must not omit here the case of another
famous Brother of the Coif, Sir John Fortescue, Serjeant-
at-law, and Chief Justice under Henry YI., and
daughter maternally of John of Gaunt, and his immediate descendants were
Knights and M.P.'s for the county of Worcester. Sir Thomas Lyttelton in
July, 1618, being created a Baronet, and the fifth Baronet in succession. Sir
George Lyttelton, was in 1757 made Baron Lyttelton of FranMey. This
peerage expired in 1779. The present peer was created in 1794.
' The descendants of Edward Littleton, the grandson of the Serjeant, were
Knights and M.P.'s for Staffordshire. The first descendant was created
Baronet 1627, and the Baronetcy expiring, the heir and representative of the
family was created Lord Hatherton.
^ See on this Burke's Peerage, title Lilford. The Powys family trace back
to the Coif. Thomas Powys, who was Reader of Lincoln's Inn in 1667, and
made Serjeant-at-law in 1669, was descended from the Princes of Powysland
through the Barons of Main-ynmeifod ; he married Ann, daughter of Sir A.
Lyttelton, a descendant of the celebrated Littleton, and had two sons who
were both Serjeants-at-law and Judges, viz., Sir Littleton Powys and Sir
Thomas Powys, whose grandson Thomas was raised to the peerage as Baron
Lilford in 179i.
Chap. Vm.] GRADUAL INNOVATIONS. 265
memorable to us on account of his disquisition " De
laudibus legum Anglise," and his earnest testimony
therein " de laudibus Servientumad legem." Loyal to his
Sovereign, to his profession, and his order, it was the lot
of Sir John Fortescue to leave behind him a line of
worthy representatives, whose alliances with the best
families in this country are sufficiently recorded, the
head of the house of Fortescue being admitted into the
peerage. Sir Hugh Fortescue, ninth in descent from
him, was created Baron Fortescue, whose grandson
became Viscount Ebrington and Earl Fortescue.
It would be altogether going beyond the limits of this Numerous
work if we specified all the honoured descendants of throug^h^
those in our list of Judges and Serjeants of the Coif. It Se^Jeants-at-
must suffice to say that whilst so many with just cause
are proud of that distinction and of seeing in their ancestors
a part of the Grandeur of the Lmo, it is difficult to imagine
even the most " studious of genealogical advantages,"
thinking it a discredit to find his ancestor in our list and
to look back to a Serjeant-at-law as the founder of the
family.
The damage to the Order of the Coif has for the most Gradual
part been brought about by very irregular, if not sinister,
contrivances. The Order of the Coif stood its ground for
more than five centuries against all kinds of open
adversaries and systematic plans for its injury, or destruc-
tion, but it was for the most part defenceless against
assailants actuated by merely personal considerations
and working at the same time in Westminster Hall and
St. Stephen's, and hardly pretending that their innova-
tions were for the public good. If the time-honoured
institution of the Coif has really received its death-blow,
it has come after long-continued ill-usage.
566
THE OEDEE OF THE COIF.
[Chap. VHI.
Appointment
of Judges for
Wales.
The Welsh
Judges
abolished.
As early as 1542, a departure was made from the rule
requiring the Judges of the superior Courts to be taken
from the Serjeants-at-law. The Judges for the Welsh
Circuits being by the statute then passed ^ not required
to have the qualification of the Coif like the Judges of
Westminster Hall, and though we find these "Welsh
Judges cried up by that great innovator Bacon,^ yet their
appointments seem to have been made the especial subject
of improper arrangement and abuse.^
The Welsh Judgeships were only put an end to in
1830 ; * the old Judges of the Principalities being in the
habit of occasionally attending as barristers in West-
minster Hall where they were treated, according to all
accounts, with anything but deference by some of the
Bar who attended the old Courts of Great Sessions.*
1 See Si & 35 Hen. VIII. c. 26.
' " The Judges of the four circuits in Wales, though they are not of the
first magnitude nor need be of the Coif, yet are they considerable." — Bacon's
advice to ViUiers.
' An appointment to a Welsh Judgeship, with another patent to be one
of the King's Counsel extraordinary, seems during all the last century to
have been commonly given away to briefless barristers having a seat in
Parliament, or relations of parliamentary influence. In the list of Justices
of the Grand Sessions in Wales for 1785, we find eight names, three of them.
Sir E. P. Arden and A. Macdonald and Serjeant Williams, being men of
position, the other five having no position, except the nominal rank of K.C.
In 1800, of the eight Welsh Judges, James Mansfield and Thomas Manners
Sutton only had any position at the English Bar; in both lists will be
found the name of the Hon. Daines Barrington, to whom we have several
times referred, who though he made a very poor figure in the legal profession,
was successively promoted to be one of the King's Counsel and a Welsh
Judge, which appointments he kept till his death in 1800. Though not
celebrated as a lawyer, Mr. Barrington is known by a number of literary
productions of not a very high character, already referred to, and enjoyed
several other Government appointments, including the Commissioner of
Stores at Gibraltar, which he also retained to his death.
' 11 Geo. IV. and 1 Wm. IV.
' Some of Maule's sly flings in Westminster Hall at Mr. Nolan, then a
briefless Barrister, resting his reputation upon his book on Poor Laws, but in
Brecon, Glamorganshire and Badnor one of the Judges of assize, served
greatly to amuse the Bar.
Chap. VIIL] APPOINTMENT OP JUDGES NOT OP THE COIP. 267
Like the Judges of the PrincipaHty of Wales, the Baron of the
Barons of the Exchequer were, as a rule, not of the state n.^'^of tlir
and degree of the Coif, and were excluded from the ^°^^-
table of precedence of Henry VIII., which specially
recognised the rank of Judges and Serjeants-at-law,^
and were disqualified from riding the circuit or otherwise
exercising full judicial authority like the Judges and
Serjeants of the Coif.^
They were sometimes holders of other offices in the
Exchequer. They continued in their original Inn of Court
after becoming Barons, and held an inferior grade to the
Judges of the one bench or the other and the Serjeants-
at-law.
Serjeant Shute, who was called to the Coif in 1577, Serjeant
was the first Serjeant who was raised to the Bench of first of the
the Exchequer as Puisne Baron, and iu his patent it is ""^p^i^s^e ^
ordered that he shall be reputed and be of the same Baron.
order, rank, estimation, dignity and pre-eminence to all
intents and purposes as any Puisne Judge of either of
the two other Courts.^
The seventeenth century certainly witnessed enough
of legal changes in this country. We then find the
system established of making the apprentice of the law
to be Serjeant and Judge uno saltu. The first instance A Serjeant's
of this occurred in 1572, when Robert Monson was judge's
so appointed by Queen Elizabeth ; * but the practice was same date.
1 3 Hen. VIIL, c. 10, ante, p. 255. = See ante, p. 95.
3 See 255.
* Eobert Monson was in Michaelmas term 1572 elected Serjeant-at-law per
speciale mandatum Keginse. Cod. niger Hosp. Line. 14 Elizabeth, and on
31st October of the same Michaelmas term he was made Judge of the Common
Pleas, see Pat. 14 Eliz. 8. See Dug. Chron. ser. 96.
This Judge did not remain long on the Bench. He seems to have given
offence to the Crown, and had to change his seat on the Bench for less
comfortable quarters in the Tower. See on this Foss's Judges of England,
p. 448.
268
THE ORDER OP THE COIF.
[Chap. VHI.
Changes in
the Circuit
Commissions.
Innovation
by the Judi-
cature Acts.
Gradual in-
novation as
to patents as
King's
Counsel.
Patents of
precedence.
afterwards gradually adopted in Westminster Hall,
though it gave rise to several legal objections.
In 1850 the old law was further relaxed in the case of
the Circuit Commissions. By the provisions of Magna
Charta and the Act of Edw. III.^ the assizes could only be
taken before a Judge or Serjeant of the Coif; by the Act
of 1850^ the commissions might be directed to Queen's
Counsel not being of the rank of the Coif, and so the law
remained until the passing of the Judicature Acts, when
the further innovation was introduced of allowing all the
Judges to be appointed without being or having been
Serjeants-at-law.^
We have already referred * to the innovations of the
seventeenth century with regard to precedence and
preaudience at the Bar ; how Francis Bacon obtained an
appointment from Queen Elizabeth, her Counsel extra-
ordinary, without fee or reward, and with no definite
duties devolving upon him — ^how in 1607 he managed
on the faith of this to get from James I. a second
express patent as King's Counsel with a fixed salary —
how in 1668 Francis North contrived to get a similar
appointment from Charles II., and how after many
other unimportant patents of the same character had
been made, the practice grew up of appointing a large
staff of King's Counsel who were only nominally so.^
A further innovation more anomalous in its character
was made in the last century by the introduction of
patents of precedence to those who were not Counsel for
the Crown, Lord Mansfield is usually stated as the author
of this innovation, and when Lord Eldon had obtained a
" 14 Edw. III., c. 16.
« 36 & 37 Vict. c. 66, s. 8.
^ See ante, p. 192.
2 See ante, p. 94, 95
* See ante, p. 186.
Chap. VIII.] NUMBER OF PATENTS. 269
good position at the Bar he succeeded in getting Lord
Thiirlow to direct letters patent of precedence to himself
as well as to Erskine and Pigott in such order as to give
Scott the advantage.*
The full history of the office of King's Counsel, of the
hatches made by Lord Eldoii when on the woolsack, of
the partial distribution of patents among the Bar during
this time have caused great dissatisfaction.
The appointments of Queen's Counsel have now become Number of
so numerous that the rule of precedence and preaudience Q^uem's^*"
at the Bar constitutes a mere anomaly, producing public Counsel,
inconvenience and destroying the old distinction of pre-
eminence at the Bar, whilst the old and legitimate Order
of the Coif is being destroyed.
The various patents fix their precise order at the date Many incon-
of the patents ; and in addition to the wrong thereby done these"''^^ "
to the body of Serjeants whose precedence and pre-
audience were by such patents from time to time shifted
and made to come after the newly appointed Queen's
Counsel : there is this other inconvenience, that the
order of precedence and preaudience in the Law Courts is
incessantly disturbed. Even the Attorney- and Solicitor-
General, who when in office hold the highest place at
the Bar, have on going out of office to go back to their
former place, taking their place below the Queen's Counsel
whose patents of appointment date previous to theirs.^
In the intrusions on the position of the Serjeants-at-law Growino-
up to the middle of the last century we trace only the ti'°nTby
ordinary course of professional competition, and of means of
•' ■, . . . concessio'
attempts on the part of the junior barristers to usurp the from the
places of their seniors. The old privileges of the
Serjeants-at-law at Westminster Hall stood in the way
' See ante, p. 194. ^ See ante, p. 195.
270
THE ORDER OP THE COIF.
[Chap. VIII.
Changes in
. Court of
Common
Pleas.
Justice
Willes'
attempt in
1755.
Course of
proceedings
in 1H34.
The mandate
of April,
1834.
of ordinary barristers, and not infrequent attempts were
made to encroach, on these privileges. We have referred ^
to what took place in the previous century, and up to
the time to which we are now referring there was
no serious innovation on the position of the Serjeants ;
the number of the King's Counsel extraordinary was very
small, and most of these were officially engaged elsewhere
than in Westminster Hall ; and in the Court of Common
Pleas the Serjeants alone were entitled to practise.
Attempts were, however, very deliberately made to take
away the Serjeants' privileges. In 1755 such a plan was
taken in hand by Chief Justice Willes, but all the
Judges at Westminster Hall and the best of the Bar set
their faces against this plan. Exactly half a century ago,
however, the same scheme was revived.
It was the period of extensive law reforms ; the position
of the Serjeants had been brought under the notice of
the Common Law Commissioners, and they had reported
that the institution of the Serjeants was essentially
a good one, and that even their exclusive practice in
the Court of Common Pleas worked for the public
advantage. Attempts, however, had been made by the
law officers of the Crown to take away the Serjeants'
privileges by express special legislative provision, clauses
for that purpose were inserted in several bills submitted
to the Legislature, which otherwise had nothing to do
with either the Serjeants or the Court of Common
Pleas.'
In April, 1834, however, the more deliberate plan
already referred to was adopted, by which it was
attempted to destroy the position of the Serjeants by
a mere mandate from the Crown, without the sanction
' See ante, p. 99. " See ante, p. 101.
Chap. VIIL] THE ILLEGAL MANDATE. 271
of Parliament. Sir John Campbell who had become
Attorney-Greneral without securing his seat in Parliament,
caused the mandate in question to be suddenly issued;
and for the time obedience was paid to it by the Judges
of the Court of Common Pleas, but after giving full
time for considering the character of the mandate the
Serjeants brought the matter before the Privy Council,
it being already shown that the benefit of the greater
despatch of business expected to accrue to the public
from the alteration had not been realized. The mandate,
as we have seen, was entirely deficient in the proper form
and solemnities necessary to give it legal efi'ect,^ merely
bearing the King's sign manual ; and without any
counter-signature or any mark of its having passed
through any public office of registry it was made public,
without the apparent sanction of the ordinary responsible
law officers of the Crown. After long discussion before
the Privy Council it was abandoned as illegal, and in
Michaelmas Term, 1839, the Court of Common Pleas,
after a very able argument from Serjeant Wilde on behalf
of the Serjeants, decided that the ancient practice of the
Court should be revived, and that the privileges of the
Serjeants should remain intact.
This illegal attempt to do away with the Serjeants-at- Lord
law was thus entirely defeated, and the animus exhibited ditpara^e-*
by its promoters was very great. In the attempt pre- p ®.^' °^ *^®
viously made, (eighty years before,) by Chief Justice Willes
to effect the same object^ by legal means, there was no
disguising the fact that the real object was to destroy
^ 2 Instit. 555, 6 (Artie, super chartas), ib. 186 ; "Vin. Ab., Prerogative (F. b.)
(G. b.), pi. 10 ; Com. Dig. Patent A. B. C. 7. — Attorney-General v. Vernon
and others, 1st Vernon's Eeports, 370, 391 ; Vernon v. Benson, 9 Mod. 47 ;
2 Black. Com. 346 ; 27 Hen. VIII. c. 1]
2 See anU, p. 99.
272 THE OEDER OP THE COIF. [Chap. VIII.
altogether the ancient Order of the Coif. The proceed-
ings to which we have just now referred were taken
when the Attorney-Greneral who promoted them was,
for some unexplained reason, personally inimical to the
old order. Sir John Campbell appears in his writings,
as well as in his official proceedings, to have been
actuated by a strong feeling of dislike to the Order
of the Coif; his misrepresentations and misstatements
with reference to the old order are sufficiently shewn.
Over and over again Judges referred to in his books
who were practising Serjeants are deliberately stigmatised
without any reason; and even the famous old Serjeant
Maynard,' who practised with so much honour and credit
during the time of the Commonwealth and after the
Restoration, is held up to public censure by Lord
Campbell, for conduct of which there is not a particle
of proof.
Regard for Very great Judges in recent times, who were only
by^the Mgh- made Serjeants at law in order to qualify them for the
the Benclf ""^ Beuch, have expressed themselves in very different terms
1 John Maynard was called to the Bar in 1626, made Bencher of the
Temple in 1648, called to the degree of the Coif in 1654, made Serjeant of the
Commonwealth, 1658, appointed King's Serjeant at the Restoration; and
being present with the peers, prelates, and lawyers at the Privy Council on
the arriyal of the Prince of Orange, the Prince is said to have observed
" that he had outlived all the men of law of his time," when he answered
that he had liked to have outlived the law itself if his Highness had not
come over. Maynard was First Commissioner of the Great Seal, but Lord
Campbell chose to disparage him. The statement made by Campbell,
that acting under the authority of the Comnonwealth with Sir Harry
Vane, he took part afterwards in Vane's trial, is, as Mr. Foss points out, entirely
without foundation, since Maynard's name does not appear in it. Maynard,
even in his old age, was more than a match for ill-disposed Judges. When
Judge Jeffries, who had availed himself fully of his great legal knowledge,
remarked that Maynard's argument against his own judicial dictum was bad,
and that he " had grown so old as to forget his law," retorted, " 'Tis true, Sir
George. I have forgotten more law than you ever knew." — Woolrych's
Jeffries, p. 81.
Chap. VIII.] EEASONS FOR PRESERVING THE OLD ORDER. 273
with regard to the old order. Denman , Cockburn, Pollock,
and Erie, all concurred in the opinion that it would
be most injudicious to destroy the old Order of the
Coif; and even now, when recent legislation has gone so
far in this direction, there is still a strong feeling existing
both among the Judges and the Bar that the order should
not be put an end to by indirect, any more than by direct,
means. If there are any regulations which interfere
directly or indirectly with the continuance of the old
order, would it not be better that these regulations
should be altered than that the ancient institution of the
Coif should be altogether destroyed ?
It is quite clear that but for innovations of very recent Order would
. . . , at once
growth the dignity of the Coif would still be a great object revive if
of ambition to the Bar in England. Such innovations vations dealt
stand directly in the way of those who would otherwise '' '
gladly accept the rank of Serjeant-at-law. That old rank
and position would still be sought after if it had the same
just advantages as it formerly brought.
As observed in the ' Edinburgh Review,' " In the legal 9t>sei-vations
profession at present there is really after all but an turgh
insufficient substitute for the old honour of the Coif High
office can fall to the lot of but a few among the immense
crowd struggling for fame and position at the Bar. The
distinction of mere successful practice is inevitably
evanescent, and it can hardly be said that to become
merely one of a staff of two hundred Queen's Counsel is
at this day a sufficient inducement for a sacrifice of any
substantial advantages." ^
In Ireland far more respect is paid to the ancient rank. J^'^ ^^^''^ °^
Serjeant-at-
The Serjeants-at-law there rank above all the Queen's law in
Counsel, and occupy a position which is the object of
1 See ' Edin. Rev.' Vol. 146, No. 300, p. 454.
274 THE ORDER OF THE COIF. [Chap. VHI.
ambition to the whole Bar. If the members of the
Serjeants old Order in England were not subject to have their
should no i •,• , i t i i i • *
longer be legitimate place disturbed by incessant appointments of
their position ii^'w Queen's Counsel with patents of precedence, this
awayby^™ would be the case also in England. It would be easy
special to make regulations to rectify the present anomalous
pflp tents,
state of things, by which the Serjeants-at-law are subject
to incessant change of position under incessant new
patents conceded by the Crown. Even those who have
held the high offices of Attorney- and Solicitor-Greneral go
back on a change of ministry to the position which
their patents as Queen's Counsel originally conferred upon
them.^
No order con- The Order of the Coif came into existence before the
ofTonour^has oldest title in the English peerage,^ and centuries before
^bor h*^ d ^^^ order conferring a title of honour was in existence
in England.* Though new orders of distinction have
been created in modern times in very rare instances, and
new titles of honour conferred,* yet it has not happened
that any such order or title of honour has been put an
' There are few members of the profession who cannot call to mind
occasions, where the change of ministry or other accident causing the
ex Attorney-General or ex Solicitor- General as law ofBcers to change
their rank, inconvenience has not been produced even in pending pro-
ceedings. Perhaps the most memorable instance of such derangement of
the order of seniority was that of Lord Denman and Lord Brougham:
Holding the places of Attorney- and Solicitor-General to Queen Caroline,
they both lost that position by her death, and then had to go back to the
Bar with the position below all Queen's Counsel of the day, (indisput-
ably their inferiors in every way,) and were, as we have seen, even refused
palehts of precedence to prevent others of their juniors jumping over their
heads.
2 The first Duke wa