But if all failed, the _Leges Marchiarum_ had still elaborate
provisions to meet his case. He had a shrewd guess who were his
assailants. The more noted moss-troopers were “kenspeckle folk.”
The very fact that so many had the same surname caused them to be
distinguished by what were called “to-names,” based on some physical
or moral characteristic, which even to-day photographs the man for us.
Such were Eddie Great-legs, Jock Half-lugs, Red-neb Hob, Little Jock
Elliott, Wynkyng Wyll, Wry-crag, Ill Wild Will, Evil Willie, David
the Leddy, Hob the King; or some event in a man’s history provided
a “to-name.” Ill Drooned Geordy, you fancy, had barely escaped a
righteous doom, and Archie Fire-the-Braes was sure a swashbuckler of
the first magnitude. Others derived from their father’s name.
The Lairdis Jok
All with him takis.
Thus, Sir Thomas Maitland, who has preserved some of these appellations
in his _Complainte Aganis the Thievis of Liddisdail_, apparently the
only weapon he–though Scots Chancellor–could use against them.
Other names, the chroniclers affirm, are more expressive still; but
modern prudery forbids their recovery. They were good enough headmark,
whatever their quality; and a harried household had but to hear one
shouted in or after the harrying to know who the harriers were. The
slogan, or war-cry, of the clan would rap out in the excitement, and
there again he knew his men. The cross of St. Andrew showed them to be
Scots, the cross of St. George affirmed them English. A letter sewn
in a cap, a kerchief round the arm, were patent identification. The
chieftain’s banner was borne now and again, even in a daylight foray–a
mode affected by the more daring spirits.
Divining in some sort his spoiler, the aggrieved and plundered
sought legal redress. Now the Laws of the Marches, agreed on by royal
commissioners from the two kingdoms, regulated intercourse from early
times. Thus as early as 1249, eleven knights of Northumberland, and
as many from the Scots Border, drew up a rough code: for the recovery
of debts, the surrender of fugitive bondsmen, and the trial by combat
of weightier matters in dispute. All Scotsmen, save the king and the
bishops of St. Andrews and Dunkeld, accused of having committed a
crime in England, must fight their accuser at certain fixed places on
the Marches; and there were corresponding provisions when the accused
was an Englishman. What seems a form of the _judicium Dei_ appears in
another provision. An animal said to be stolen, being brought to the
Tweed or the Esk, where either formed the boundary, was driven into
the water. If the beast sank the defendant paid. If it swam to the
farther shore, the claimant had him as his own. If it scrambled back
to the bank whence it started, the accused might (perchance) retain
it with a clear conscience. But as to this event the record is silent;
and, indeed, the whole business lacks intelligibility. The combats,
however, were many, and were much denounced by the clergy, who had to
provide a champion, and were heavily mulcted if he lost. The priest
suffered no more than the people; but he could better voice his wrongs.
All such things were obviously adaptations of the trial by ordeal, or
by combat, and the treason duel of chivalry, to the rough life of the
Border. Again, the matter was settled, even in late times, by the oath
of the accused. The prisoner was sworn:–“By Heaven above you, Hell
beneath you, by your part of Paradise, by all that God made in six
days and seven nights, and by God Himself,” that he was innocent. In a
superstitious age this might have some effect; and there was ever the
fear of being branded as perjured. But it can have been used only when
there was no proof, or when the doubt was very grave: when the issue,
that is, seemed as the cutting of a knot, the loosing whereof passed
man’s wit.
In the century preceding the Union of the Crowns, the international
code was very highly developed, and the procedure was strictly defined.
As England was the larger nation, and as its law was in a more highly
developed and more firm and settled state, its methods were followed
on the whole. The injured party sent a bill of complaint to his own
Warden; and the bill, even as put into official form, was simplicity
itself. It said that A. complained upon B. for that–and then followed
a list of the stolen goods, or the wrongs done. It was verified by
the complainant’s oath, and thereafter sent to the opposite Warden,
whose duty was to arrest the accused or at least to give him notice to
attend on the next Day of Truce. [One famous fray (June 17, 1575) is
commemorated in _The Raid of the Reidswire_, a ballad setting forth
many features of a Day of Truce.] The Wardens agreed on the Day, and
the place was usually in the northern kingdom, where most of the
defendants lived. The meeting was proclaimed in all the market towns
on either side. The parties, each accompanied by troops of friends,
came in; and a messenger from the English side demanded that assurance
should be kept till sunrise the following day. This was granted by the
Scots, who proceeded to send a similar message, and were presently
secured by a similar assurance. Then each Warden held up his hand as a
sign of faith, and made proclamation of the Day to his own side (the
evident purpose of this elaborate ritual was to keep North and South
from flying, on sight, at each other’s throats). The English Warden
now came to his Scots brother, whom he saluted and embraced; and the
business of the Day of Truce (or Diet, or Day Marche, or Warden Court,
as it was variously called) began. That business was commerce, and
pleasure, as well as law. Merchants come with their wares; booths
were run up; a brisk trade ran in articles tempting to the savage
eye. Both sides were ready for the moment to forget their enmities.
If they could not fight, they could play, and football was ever your
Borderers’ favourite pastime (from the desperate mauls which mark that
exhilarating sport as practised along the Border line, one fancies
that the “auld riding bluid” still stirs in the veins of the players).
Gambling, too, was a popular excitement. There was much of feasting
and drinking, and sure some Border Homer, poor and old and blind, even
as him of Chios, was there to charm and melt his rude hearers with the
storied loves and wars of other days. The conclave fairly hummed with
pleasure and excitement. Yet with such inflammable material, do you
wonder that the meeting ended now and again in most admired disorder?
For our bill of complaint, it might be tried in more than one way.
It might be by “the honour of the Warden,” who often had knowledge,
personal or acquired, of the case, and felt competent to decide the
matter off-hand. On his first appearance he had taken an oath (yearly
renewed) in presence of the opposite Warden and the whole assemblage
to do justice, and he now officially “fyled” or “cleared the bill”
(as the technical phrase ran) by writing on it the words “foull (or
‘clear’), as I am verily persuaded upon my conscience and honour”–a
deliverance after the method wherein individual peers give their
voice at a trial of one of their order. This did not of necessity end
the matter, for the complainant could present a new bill and get the
verdict of a jury thereon, which also was the proper tribunal where the
Warden declined to interfere. It was thus chosen: The English Warden
named and swore in six Scots, the Scots Warden did the like to six
Englishmen. The oath ran in these terms:–“Yea shall cleare noe bill
worthie to be fild, yea shall file no bill worthie to be cleared,” and
so forth. Warden sergeants were appointed who led the jury to a retired
place; the bills were presented; and the jurymen fell to work. It would
seem that they did so in two sections, each considering complaints
against its own nationality. If the bill was “fyled,” the word “foull”
was written upon it (of course, a verdict of guilty); but how to
get such a verdict under such conditions? The assize had more than a
fellow-feeling for the culprit: like the jury in Aytoun’s story, they
might think that Flodden (then no distant memory) was not yet avenged.
There were divers expedients to this end. Commissioners were sometimes
appointed by the two crowns to solve a difficulty a Warden Court had
failed to adjust. Again, it was strangely provided that “If the accused
be not quitt by the oathe of the assize it is a conviction.” One very
stubborn jury (_temp._ 1596) sat for a day, a night, and a day on end,
“almost to its undoeinge.” The Warden, enraged at such conduct and yet
fearing for the men’s lives, needs must discharge them. I ought to
mention an alleged third mode of trial by vower, who, says Sir Walter
Scott, was an umpire to whom the dispute was referred. Rather was he a
witness of the accused’s own nation. Some held such evidence essential
to conviction; if honest, it was practically conclusive.
Well! Suppose the case too clear and the man too friendless, and the
jury “fyled” the bill. If the offence were capital, the prisoner was
kept in safe custody, and was hanged or beheaded as soon as possible.
But most affairs were not capital. Thus the Border Law forbad hunting
in the other kingdom without the express leave of the owner of the
soil. Just such an unlicensed hunting is the theme of _Chevy Chase_.
Thus:–
The Percy owt of Northumberland,
And a vow to God mayd he,
That he wolde hunte in the mountayns
Off Cheviot within dayes thre,
In the mauger of doughty Douglas,
And all that ever with him be.
Douglas took a summary mode of redress where a later and tamer owner
had lodged his bill. In a common case of theft, if the offender were
not present (the jury would seem to have tried cases in absence), the
Warden must produce him at the next Day of Truce. Indeed, whilst the
jury was deliberating, the officials were going over the bills “filed”
on the last Day, and handing over each culprit to the opposite Warden;
or sureties were given for him; or the Warden delivered his servant as
pledge. If the pledge died, the body was carried to the next Warden
Court.
The guilty party, being delivered up, must make restitution within
forty days or suffer death, whilst aggravated cases of “lifting”
were declared capital. In practice a man taken in fight or otherwise
was rarely put to death. Captive and captor amicably discussed the
question of ransom. That fixed, the captive was allowed to raise it;
if he failed he honourably surrendered. The amount of restitution
was the “Double and Salffye,” to wit, three times the value of the
original goods, two parts being recompense, and the third costs or
expenses. Need I say that this triple return was too much for Border
honesty? Sham claims were made, and these, for that they obliged the
Wardens “to speire and search for the thing that never was done,” were
rightly deemed a great nuisance. As the bills were sworn to, each
false charge involved perjury; and in 1553 it was provided that the
rascal claimants should be delivered over to the tender mercies of the
opposite Warden. Moreover, a genuine bill might be grossly exaggerated
(are claims against insurance and railway companies always urged with
accuracy of detail?). If it were disputed, the value was determined by
a mixed jury of Borderers.
I have had occasion to refer to Border faith. In 1569 the Earl of
Northumberland was implicated in a rising against Elizabeth. Fleeing
north, he took refuge with an Armstrong, Hector of Harelaw, who
sold him to the Regent Murray. Harelaw’s name became a byword and a
reproach. He died despised and neglected; and “to take Hector’s cloak”
was an imputation of treachery years after the original story had
faded. Thus, in Marchland the deadliest insult against a man was to
say that he had broken faith. The insult was given in a very formal
and deliberate manner, called a Baugle. The aggrieved party procured
the glove or picture of the traitor, and whenever there was a meeting
(a Day of Trace was too favourable an opportunity to be neglected) he
gave notice of the breach of faith to friend and foe, with blast of
the horn and loud cries. The man insulted must give him the lie in his
throat, and a deadly combat ensued. The Laws of the Marches attempted
to substitute the remedy by bill, that the matter might not “goe to the
extremyte of a baughle,” or where that was impossible, to fix rules for
the thing itself. Or, the Wardens were advised to attend, with less
than a hundred of retinue, to prevent “Brawling, buklinge, quarrelinge,
and bloodshed.” Such things were a fruitful source of what a Scots
Act termed “the heathenish and barbarous custom of Deadly Feud.” When
one slew his fellow under unfair conditions, the game of revenge
went see-sawing on for generations. The Border legislators had many
ingenious devices to quench such strife. A Warden might order a man
complained of to sign in solemn form a renunciation of his feud; and if
he refused, he was delivered to the opposite Warden till he consented.
In pre-Reformation days the church did something by enjoining prayer
and pilgrimage. A sum of money (Assythement) now and again settled
old scores; or there might be a treaty of peace cemented by marriage.
Sometimes, again, there was a fight by permission of the Sovereign.
(_Cf._ the parallel case of the clan-duel in the _Fair Maid of Perth_.)
Still, prearranged single combats, duels in fact, were frequent on the
Border. Turner, or Turnie Holme, at the junction of the Kirshope and
Liddel, was a favourite spot for them.
And now business and pleasure alike are ended, and the day (fraught
with anxiety to official minds) is waning fast. Proclamation is made
that the multitude may know the matters transacted. Then it is declared
that the Lord Wardens of England and Scotland, and Scotland and England
(what tender care for each other’s susceptibilities!) appoint the
next Day of Truce, which ought not to be more than forty days hence,
at such and such a place. Then, with solemn salutations and ponderous
interchange of courtesy, each party turns homeward. As noted, the Truce
lasted till the next sunrise. As the nations were at peace (else had
there been no meeting), this recognised the fact that the Borders
were always, more or less, in a state of trouble. Also it prevented
people from violently righting themselves forthwith. A curious case in
1596, where this condition was broken, gave rise to a Border foray of
the most exciting kind, commemorated in the famous ballad of _Kinmont
Willie_. A Day of Truce had been held on the Kershope Burn, and at its
conclusion Willie Armstrong of Kinmont, a noted Scots freebooter, rode
slowly off, with a few companions. Some taunt, or maybe the mere sight
of one who had done them so much wrong, was too much for the English
party, and Kinmont was speedily laid by the heels in Carlisle Castle.
Buccleuch was Keeper of Liddisdale. He had not been present at the Day
of Truce; but when they told him that Kinmont had been seized “between
the hours of night and day,” he expressed his anger in no uncertain
terms:
He has ta’en the table wi’ his hand,
He garr’d the red wine spring on hie.
* * * *
And have they ta’en him, Kinmont Willie,
Against the truce of Border tide?
And forgotten that the bauld Buccleuch
Is keeper here on the Scottish side?
Negociations failing to procure redress, Buccleuch determined to rescue
Kinmont himself. In the darkness of a stormy night he and his men stole
up to Carlisle, broke the citadel, rescued Kinmont, and carried him off
in safety, whilst the English lawyers were raising ingenious technical
justifications (you can read them at length in the collection of Border
Papers) of the capture. Those same papers show that the ballad gives
the main features of the rescue with surprising accuracy. But I cannot
linger over its cheerful numbers. The event might once have provoked
a war, but the shadow of the Union was already cast. James would do
nothing to spoil the splendid prize almost within his grasp, and
Elizabeth’s statesmen were not like to quarrel with their future master.
Half a century before the consummation one great cause of discord had
been removed. From the junction of the Liddel and Esk to the Solway
was known as the Debateable Land, a sort of No-Man’s Land, left in
doubt from the time of Bruce. Both nations pastured on it from sunrise
to sunset, but in the night any beasts left grazing were lawful prey
to the first comer. Enclosures or houses on it could be destroyed or
burned without remedy. Apparently the idea was to make it a “buffer
State” between the two kingdoms. It was, however, a thorn in the flesh
to each, for the Bateables, as the in-dwellers were called, were
broken men, and withal the most desperate ruffians on the Border. In
1552 a joint Commission divided the Debateable Land between England
and Scotland. The Bateables were driven out, and a dyke was built as
boundary line. All the same, here was, for many years, the wildest in
the whole wild whirlpool; so that long after the Union, when somebody
told King James of a cow which, taken from England to Scotland, had
broken loose and got home of itself, the British Solomon was sceptical.
It gravelled him, he confessed, to imagine any four-footed thing
passing unlifted through the Debateable Land.
With the death of Elizabeth (1603) came the Union of the Crowns, and
the Scots riders felt their craft in danger, for they forthwith made
a desperate incursion into England, with some idea (it is thought) of
staying the event. But they were severely punished, and needs must
cower under the now all-powerful Crown. The appointment of effective
Wardens presently ceased. In 1606, by the Act 4 Jac. I., cap. 1, the
English Parliament repealed the anti-Scots laws, on condition that the
Scots Parliament reciprocated; and presently a kindred measure was
touched with the sceptre at Edinburgh. The administration of the Border
was left to the ordinary tribunals, and the _Leges Marchiarum_ vanished
to the Lumber Room.
You have no doubt, at some time or other, walked through the Royal
Courts of Justice and admired the Judges in their scarlet or other
bravery. One odd little detail may have caught your eye: a black patch
on the top differences the wig of the present (1898) Master of the
Rolls from those of his brethren. It signifies that the wearer is a
Serjeant-at-Law, and when he goes to return no more, with him will
probably vanish the Order of the Coif. Verily, it will be the “end
o’ an auld sang,” of a record stretching back to the beginning of
English jurisprudence, of an order whose passing had, at one time,
seemed as the passing of the law itself. Here in bare outline I set
forth its ancient and famous history. And, first, as to the name.
Under the feudal system land was held from the Crown upon various
tenures. Sometimes special services were required from the holders;
these were called Serjeants, and a tenure was said to be by Serjeanty.
Special services, though usually military, now and again had to do
with the administration of justice. A man enjoyed his plot because he
was coroner, keeper of the peace, summoner, or what not; and, over
and above the land, he had the fees of the office. A few offices,
chiefly legal, came to have no land attached–were only paid in fees.
Such a business was a Serjeanty in gross, or at large, as one might
say. Again, after the Conquest, whilst the records of our law courts
were in Latin, the spoken language was Norman-French–a fearful and
wondrous tongue that grew to be–“as ill an hearing in the mouth as
law-French,” says Milton scornfully–and indeed Babel had scarce
matched it. But from the first it must have been a sore vexation to
the thick-witted Saxon haled before the tribunal of his conquerors.
He needs must employ a _counter_, or man skilled in the _conter_, as
the pleadings were called. The business was a lucrative one, so the
Crown assumed the right of regulation and appointment. It was held for
a Serjeanty in gross, and its holders were _servientes regis ad legem_.
The word _regis_ was soon omitted except as regards those specially
retained for the royal service. The literal translation of the other
words is Serjeants-at-law, still the designation of the surviving
fellows of the order. The Serjeant-at-law was appointed, or, in form at
least, commanded to take office by writ under the Great Seal. He was
courteously addressed as “you,” whilst the sheriff was commonly plain
“thou” or “thee.” The King’s or Queen’s Serjeants were appointed by
letters patent; and though this official is extinct as the dodo, he is
mentioned after the Queen’s Attorney-General as the public prosecutor
in the proclamation still mumbled at the opening of courts like the Old
Bailey.
Now, in the early Norman period the _aula regis_, or Supreme Court,
was simply the King acting as judge with the assistance of his great
officers of state. In time there developed therefrom among much else
the three old common law courts; whereof the Common Pleas settled the
disputes of subjects, the King’s Bench, suits concerning the King
and the realm, the Exchequer, revenue matters. Though the last two
by means of quaint fictions afterwards acquired a share of private
litigation, yet such was more properly for the Court of Common Pleas.
It was peculiarly the Serjeants’ court, and for many centuries, up to
fifty years ago, they had the exclusive right of audience. Until the
Judicature Acts they were the body of men next to the judges, each
being addressed from the bench as “Brother,” and from them the judges
must be chosen, also until 1850 the assizes must be held before a judge
or a Serjeant of the coif.
A clause in Magna Charta provided that the Common Pleas should not
follow the King’s wanderings, but sit in a fixed place; this fixed
place came to be near the great door of the Hall at Westminster. With
the wind in the north the spot was cold and draughty, so after the
Restoration some daring innovator proposed “to let it (the Court) in
through the wall into a back room which they called the treasury.” Sir
Orlando Bridgeman, the Chief Justice, would on no account hear of this.
To move it an inch were flagrant violation of Magna Charta. Might not,
he darkly hinted, all its writs be thus rendered null and void? Was
legal pedantry ever carried further? In a later age the change was made
without comment, and in our own time the Common Pleas itself has gone
to the Lumber Room. No doubt this early localising of the court helped
to develop a special Bar. Other species of practitioners–barristers,
attorneys, solicitors–in time arose, and the appointment of Queen’s
Counsel, of whom Lord Bacon was the earliest, struck the first real
blow at the Order of the Coif; but the detail of such things is not
for this page. In later days every Serjeant was a more fully developed
banister, and then and now, as is well known, every barrister must
belong to one of the four Inns of Court–the two Temples, Gray’s Inn,
and Lincoln’s Inn to wit, whose history cannot be told here; suffice
it to say they were voluntary associations of lawyers, which gradually
acquired the right of calling to the Bar those who wished to practise.
Now, the method of appointment of Serjeants was as follows: The judges,
headed by the Chief Justice of the Common Pleas, picked out certain
eminent barristers as worthy of the dignity, their names were given in
to the Lord Chancellor, and in due time each had his writ, whereof he
formally gave his Inn notice. His House entertained him at a public
breakfast, presented him with a gold or silver net purse with ten
guineas or so as a retaining fee, the chapel bell was tolled, and he
was solemnly rung out of the bounds. On the day of his call he was
harangued (often at preposterous length) by the Chief Justice of the
King’s Bench, he knelt down, and the white coif of the order was fitted
on his head; he went in procession to Westminster and “counted” in
a real action in the Court of Common Pleas. For centuries he did so
in law-French. Lord Hardwicke was the first Serjeant who “counted” in
English. The new-comer was admitted a member of Serjeants’ Inn, in
Chancery Lane, in ancient times called Farringdon Inn, whereof all
the members were Serjeants. Here they dined together on the first
and last days of term; their clerks also dined in hall, though at a
separate table–a survival, no doubt, from the days when the retainer
feasted, albeit “below the salt,” with his master. Dinner done and
the napery removed, the board of green cloth was constituted, and
under the presidency of the Chief Judge the business of the House was
transacted. There was a second Serjeants’ Inn in Fleet Street, but in
1758 its members joined the older institution in Chancery Lane. When
the Judicature Acts practically abolished the order, the Inn was sold
and its property divided among the members, a scandalous proceeding and
poor result of “the wisdom of an heep of lernede men”!
The Serjeant’s feast on his appointment was a magnificent affair,
_instar coronationis_, as Fortescue has it. In old times it lasted
seven days; one of the largest palaces in the metropolis was selected,
and kings and queens graced its quaint ceremonial. Stow chronicles one
such celebration at the call of eleven Serjeants, in 1531. There were
consumed “twenty-four great beefes, one hundred fat muttons, fifty-one
great veales, thirty-four porkes,” not to mention the swans, the
larkes, the “capons of Kent,” the “carcase of an ox from the shambles,”
and so forth. One fancies these solids were washed down by potations
proportionately long and deep. And there were other attractions and
other expenses. At the feast in October 1552, “a standing dish of wax
representing the Court of Common Pleas” was the admiration of the
guests; again, a year or two later, it is noted that each Serjeant was
attended by three gentlemen selected by him from among the members of
his own Inn to act as his sewer, his carver, and his cup-bearer. These
Gargantuan banquets must have proved a sore burden: they were cut down
to one day, and, on the union of the Inns in 1758, given up as unsuited
to the newer times.
One expense remained. Serjeants on their call must give gold rings to
the Sovereign, the Lord Chancellor, the judges, and many others. From
about the time of Elizabeth mottoes or “posies” were engraved thereon.
Sometimes each Serjeant had his own device, more commonly the whole
call adopted the same motto, which was usually a compliment to the
reigning monarch or an allusion to some public event. Thus, after the
Restoration the words ran: _Adeste Corolus Magnus_. With a good deal
of elision and twisting the Roman numerals for 1660 were extracted
from this, to the huge delight of the learned triflers. _Imperium et
libertas_ was the word for 1700, and _plus quam speravimus_ that of
1714, which was as neat as any. The rings were presented to the judges
by the Serjeant’s “colt,” as the barrister attendant on him through
the ceremony was called (probably from _colt_, an apprentice); he also
had a ring. In the ninth of Geo. II. the fourteen new Serjeants gave,
as of duty, 1409 rings, valued at £773. That call cost each Serjeant
nearly £200. This ring-giving continued to the end; another custom,
that of giving liveries to relatives and friends, was discontinued in
1759. In mediæval times the new Serjeants went in procession to St.
Paul’s, and worshipped at the shrine of Thomas à Becket; then to each
was allotted a pillar, so that his clients might know where to find
him. The Reformation put a summary end to the worship of St. Thomas,
but the formality of the pillar lingered on till Old St. Paul’s and Old
London blazed in the Great Fire of 1666.
The mediæval lawyer lives for us to-day in Chaucer’s famous picture:
A Sergeant of Lawe, war and wys,
That often hadde ben atte parvys,
Ther was also, ful riche of excellence.
Discret he was, and of great reverence:
He semede such, his wordes weren so wise,
Justice he was ful often in assise,
By patente, and by pleyn commissioun;
For his science, and for his heih renoun,
Of fees and robes hadde he many oon.
So gret a purchasour was nowher noon.
Al was fee symple to him in effecte,
His purchasyng mighte nought ben enfecte.
Nowher so besy a man as he ther nas,
And yit he seemede besier than he was.
In termes hadde he caas and domes alle;
That fro the tyme of kyng William were falle.
Therto he couthe endite, and make a thing,
Ther couthe no wight pynche at his writyng;
And every statute couthe he pleyn by roote.
He rood but hoomly in a medlé coote,
Gird with a seynt of silk, with barres smale
Of his array telle I no lenger tale.
How lifelike that touch of the fussy man, who “seemede besier than he
was”! But each line might serve as text for a long dissertation! The
old court hours were early: the judges sat from eight till eleven,
when your busy Serjeant would, after bolting his dinner, hie him to
his pillar where he would hear his client’s story, “and take notes
thereof upon his knee.” The parvys or pervyse of Paul’s–properly, only
the church door–had come to mean the nave of the cathedral, called
also “Paul’s Walk,” or “Duke Humphrey’s Walk,” from the supposed tomb
of Duke Humphrey that stood there. In Tudor times it was the great
lounge and common newsroom of London. Here the needy adventurer “dined
with Duke Humphrey,” as the quaint euphemism ran; here spies garnered
in popular opinion for the authorities. It was the very place for the
lawyer to meet his client, yet had he other resorts: the round of the
Temple Church and Westminster are noted as in use for consultations.
Chaucer’s Serjeant “rood but hoomly” because he was travelling; in
court he had a long priest-like robe, with a furred cape about his
shoulders and a scarlet hood. The gowns were various, and sometimes
parti-coloured. Thus, in 1555 we find each new Serjeant possessed
of one robe of scarlet, one of violet, one of brown and blue, one
of mustard and murrey, with tabards (short sleeveless coats) of
cloths of the same colours. The cape was edged, first with lambskin,
afterwards with more precious stuff. In Langland’s _Vision of Piers
Plowman_ (1362) there is mention of this dress of the Serjeants, they
are jibed at for their love of fees and so forth, after a fashion
that is not yet extinct! But _the_ distinctive feature in the dress
was the coif, a close-fitting head covering made of white lawn or
silk. A badge of honour, it was worn on all professional occasions,
nor was it doffed even in the King’s presence. In monumental effigies
it is ever prominent. When a Serjeant resigned his dignity he was
formally discharged from the obligation of wearing it. To discuss its
exact origin were fruitless, yet one ingenious if mistaken conjecture
may be noticed. Our first lawyers were churchmen, but in 1217 these
were finally debarred from general practice in the courts. Many were
unwilling to abandon so lucrative a calling, but what about the
tonsure? “They were for decency and comeliness allowed to cover their
bald pates with a coif, which had been ever since retained.” Thus
the learned Serjeant Wynne in his tract on the antiquity and dignity
of the order (1765). In Tudor times, if not before, fashion required
the Serjeant to wear a small skull-cap of black silk or velvet on the
top of the coif. This is very clearly shown in one of Lord Coke’s
portraits. Under Charles II. lawyers, like other folk, began to wear
wigs, the more exalted they were the bigger their perukes. It was
wittily said that Bench and Bar went into mourning on Queen Anne’s
death, and so remained, since their present dress is that then adopted.
Serjeants were unwilling to lose sight of their coifs altogether,
and it was suggested on the wig by a round patch of black and white,
representing the white coif and the cap which had covered it. The limp
cap of black cloth known as the “black cap” which the judge assumes
when about to pass sentence of death was, it seems, put on to veil the
coif, and as a sign of sorrow. It was also carried in the hand when
attending divine service, and was possibly assumed in pre-Reformation
times when prayers were said for the dead.
A few words will tell of the fall of the order. As far back as 1755
Sir John Willis, Chief Justice of the Common Pleas, proposed to throw
open that court as well as the office of judge to banisters who were
not Serjeants, but the suggestion came to nothing. In 1834, the Bill
for the establishment of a Central Criminal Court contained a clause
to open the Common Pleas; this was dropped, but the same object was
attained by a royal warrant, April 25, 1834. The legality of this was
soon questioned and, after solemn argument before the Privy Council,
it was declared invalid. In 1846 a statute (the 9 & 10 Vict. c. 54)
to the same effect settled the matter, and the Judicature Act of 1873
provided that no judge need in future be a Serjeant. On the dissolution
of Serjeants’ Inn its members were received back into the Houses whence
they had come.
As for centuries all the judges were Serjeants, the history of the
order is that of the Bench and Bar of England; yet some famous men
rose no higher, or for one reason or other became representative
members. Such a one was Sir John Maynard (1602-1690). In his last
years William III. commented on his venerable appearance: “He must
have outlived all the lawyers of his time.” “If your Highness had not
come I should have outlived the law itself,” was the old man’s happy
compliment. Pleading in Chancery one day, he remarked that he had
been counsel in the same case half a century before, he had steered a
middle course in those troubled times, but he had ever leant to the
side of freedom against King and Protector alike. His share in the
impeachment of Strafford procured him a jibe in Butler’s _Hudibras_,
yet it was said that all parties seemed willing to employ him, and
that he seemed willing to be employed by all. Jeffreys, who usually
deferred to him, once blustered out, “You are so old as to forget
your law, Brother Maynard.” “True, Sir George, I have forgotton more
law than ever you knew,” was the crushing retort. Macaulay has justly
praised his conduct at the Revolution for that he urged his party
to disregard legal technicalities and adopt new methods for new and
unheard-of circumstances. Edmund Plowden (1518-1585) deserves at least
equally high praise. He was so determined a student that “for three
years he went not once out of the Temple.” He is said to have refused
the Chancellorship offered him by Elizabeth as he would not desert
the old faith. He was attacked again and again for nonconformity,
but his profound knowledge of legal technicalities enabled him on
each occasion to escape the net spread for him. He was an Englishman
loyal to the core, and Catholic as he was opposed in 1555 the violent
proceedings of Queen Mary’s Parliament. The Attorney-General filed a
bill against him for contempt, but “Mr. Plowden traversed fully, and
the matter was never decided.” “A traverse full of pregnancy,” is Lord
Coke’s enthusiastic comment. On his death in 1584 they buried him in
that Temple Church whose soil must have seemed twice sacred to this
oracle of the law. An alabaster monument whereon his effigy reposes
remains to this day. A less distinguished contemporary was William
Bendloes (1516-1584), “Old Bendloes,” men called him. A quaint legend
reports him the only Serjeant at the Common Pleas bar in the first
year of Elizabeth’s reign. Whether there was no business, or merely
half-guinea motions of course, or the one man argued on both sides, or
whether the whole story be a fabrication, ’tis scarce worth while to
inquire.
I pass to more modern times. William Davy was made Serjeant-at-law in
1754. His wit combats with Lord Mansfield are still remembered. His
lordship was credited with a desire to sit on Good Friday; our Serjeant
hinted that he would be the first judge that had done so since Pontius
Pilate! Mansfield scouted one of Davy’s legal propositions. “If that be
law I must burn all my books.” “Better read them first,” was the quiet
retort. In recent days two of the best known Serjeants were Parry and
Ballantine, the first a profound lawyer, the second a great advocate,
but both are vanished from the scene.
