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The Common Lawyers of Pre-Reformation England: Thomas Kebell: A Case Study PDF

566 Pages·1983·8.038 MB·English
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CAMBRIDGE STUDIES IN ENGLISH LEGAL HISTORY Edited by D. E. C. YALE Fellow of Christ's College and Reader in English Legal History at the University of Cambridge THE PUBLISHER WISHES TO THANK THE ISOBEL THORNLEY BEQUEST FUND THE MANAGERS OF THE MAITLAND MEMORIAL FUND AND THE PUBLICATIONS FUND OF THE UNIVERSITY OF BIRMINGHAM FOR THEIR GENEROUS SUBVENTIONS IN SUPPORT OF THE PUBLICATION OF THIS BOOK Downloaded from University Publishing Online. This is copyrighted material IP139.153.14.250 on Thu Jan 26 13:27:28 GMT 2012. http://ebooks.cambridge.org//ebook.jsf?bid=CBO9780511896408 Downloaded from University Publishing Online. This is copyrighted material IP139.153.14.250 on Thu Jan 26 13:27:28 GMT 2012. http://ebooks.cambridge.org//ebook.jsf?bid=CBO9780511896408 THE COMMON LA WYERS OF PRE-REFORMATION ENGLAND THOMAS KEBELL: A CASE STUDY BY E. W. IVES Senior Lecturer in Modern History in the University of Birmingham CAMBRIDGE UNIVERSITY PRESS CAMBRIDGE LONDON NEW YORK NEW ROCHELLE MELBOURNE SYDNEY Downloaded from University Publishing Online. This is copyrighted material IP139.153.14.250 on Thu Jan 26 13:27:28 GMT 2012. http://ebooks.cambridge.org//ebook.jsf?bid=CBO9780511896408 CAMBRIDGE UNIVERSITY PRESS Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, Sao Paulo Cambridge University Press The Edinburgh Building, Cambridge CB2 8RU, UK Published in the United States of America by Cambridge University Press, New York www.cambridge.org Information on this title: www.cambridge.org/9780521240116 Cambridge University Press 1983 © This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 1983 This digitally printed version 2008 catalogue record for this publication is available from the British Library A Library of Congress Catalogue Card Number: 82-1297 ISBN 978-0-521-24011-6 hardback ISBN 978-0-521-07258-8 paperback Downloaded from University Publishing Online. This is copyrighted material IP139.153.14.250 on Thu Jan 26 13:27:28 GMT 2012. http://ebooks.cambridge.org//ebook.jsf?bid=CBO9780511896408 CONTENTS List of figures and tables page vu Preface V111 Abbreviations XU Manuscript sources xxi Table of cases xxv Introduction l PART I THE LEGAL PROFESSION The common lawyers in pre-Reformation England 7 2 Social origins: the Keb ells of Rearsb y 23 Training at the inns of court 36 J. 4 Professional advancement 60 PART II LEGAL PRACTICE 5 The foundations of a legal practice 6 The lawyer and his clients 7 The lawyer and the year books 8 Thomas Kebell as an advocate PART III THE LAWYERS AND THE LAW 9 The legal system lo The crown and the profession l l The interest of the state 12 A changing community PART IV THE PROFESSION AND SOCIETY 13 The rewards of the profession: fees and payments 285 [v] Downloaded from University Publishing Online. This is copyrighted material IP139.153.14.250 on Thu Jan 26 13:27:28 GMT 2012. http://ebooks.cambridge.org//ebook.jsf?bid=CBO9780511896408 CONTENTS VI 14 The rewards of the profession: income and morality 308 15 The rewards of the profession: the estates of Thomas Kebell 330 16 The rewards of the protession: Humberstone Manor 354 17 Social mobility: the Kebells of Humberstone 368 18 Thomas Kebell and the pre-Reformation legal profession 394 Retrospect 418 Appendices The will of Thomas Kebell 425 A The inventory of Thomas Kebell 432 B List of pleaders c. 1518 448 c Serjeants-at-law created 1463 to 1510 451 D Seniormembersofthelegalprofession, 1461-1510 481 E Index Downloaded from University Publishing Online. This is copyrighted material IP139.153.14.250 on Thu Jan 26 13:27:28 GMT 2012. http://ebooks.cambridge.org//ebook.jsf?bid=CBO9780511896408 FIGURES AND TABLES Fig. 1. The Kebells of Rearsby and Humberstone page 27 Fig. 2. Graphs showing the relative movements of hanaper profits for the sealing of judicial writs 21 3, 215 Fig. 3. MapoftheKebellfamilyproperties 331 Fig. 4. Connections oft he Palmer and Catesby families 385 Fig. 5. Connections of the Roper and Fineux families 386 Table A. The social origins of serjeants-at-law created 1463-1521 31 Table B. Appointments as justices of assize etc. 1483-1513 68 Table C. Career patterns of chief justices and chief barons, 1471-1553 88 Table D. Docket roll entries in king's bench, 1444f 5-1557f8, compared with the profits of sealing judicial writs 202 Table E. Fees paid to lawyers on regular retainer, 1422-1534 290 Table F. Analysis of legal costs (Fastolf Mss.) 319 Table G. Analysis of the subsidy assessment of the legal profession, 1523 324 [vii] Downloaded from University Publishing Online. This is copyrighted material IP139.153.14.250 on Thu Jan 26 13:27:28 GMT 2012. http://ebooks.cambridge.org//ebook.jsf?bid=CBO9780511896408 PREFACE 'Divinity, Law and Physick' are, in Joseph Addison's words, 'the three great Professions'. In this century, historians of England have paid much attention to the first but little by comparison to the second. We still have no history of the bar. The only comprehensive study of the judiciary is essentially biographical in interest and is well over a century old. We are still at the stage of exploration where we link a few charted features with plausible but unsurveyed invention. 'Here be dragons!' This neglect is not explained by uncertainty about the common law as a profession. Defined either in terms of status and public esteem or in terms of professional structure and institutions, a legal profession has existed in England from at least the fourteenth century. Nor is there doubt about the importance and influence, perhaps baleful influence, of lawyers. What has held back research has been the nature of the subject -its diffuse documentation, the lack of basic ground­ work, the need to wait upon related studies (especially in legal admi­ nistration), the complexities of litigation and legal work. For the earlier centuries, too, there is the even greater problem of definition. When a cleric or a doctor acts professionally, his action is self-evident. A lawyer, once away from the identifiable contexts of the court-room and the conveyancing desk, may do what is indistinguishable from the help of a friend, an employee or a member of a client's family. Is the lawyer here no longer acting professionally, or are these competitors, in a sense, legal advisers? And if the answer is that legal practice is defined as the work of the legally qualified, who in the days before Edward Coke were the legally qualified? Another deterrent at work, at least over the last twenty-five years, has been fashion. To study the legal profession is to study an elite, and elites are not in vogue. Here is neither the history of the common man, nor the study of class, nor the opportunity for large-scale statistical analysis. But in England, to the Civil War and beyond, the elite group did matter. As the fear and hatred of lawyers expressed by peasants [viii] Downloaded from University Publishing Online. This is copyrighted material IP139.153.14.250 on Thu Jan 26 13:27:28 GMT 2012. http://dx.doi.org/10.1017/CBO9780511896408.001 PREFACE IX and artisans and the reliance of the Commons on its lawyer-members demonstrate equally, contemporaries, widely separated, agreed in seeing the legal profession as a true catalyst, both of immediate events and of longer-term developments. The purpose of this book is to go some way to remedying this neglect for the later fifteenth and earlier sixteenth centuries, the period from roughly the nadir of English government in the 1450s to the 1530s, the crisis decade of the Reformation. It covers the years when the first form of the common-law profession reached its peak of development and influence, before the rise of the barristers, law officers and king's counsel, and the drift of the serjeants-at-law ever further into a professional backwater. The first four chapters examine the role, social origins and the professional dimension of the com­ mon lawyers; Part II explores legal practice; the subject of the next section is the relation between the lawyers, society and the law, and the topic of the final chapters is the profession in society. The book thus sets out to bring within one compass social history and legal history, educational history and economic history, the courts, clients, the crown and the lawyers themselves. This approach is open to the criticism that it is neither completely social history nor completely legal history. This is deliberate. No doubt a narrowly social study would have been able to examine a larger sample of the profession than the leaders of the Westminster bar who are the principal concern here - though there is little to suggest that the sources would have been adequate, or the chance great of reaching different or more sophisticated conclusions. Exclu­ sive concern with legal development in the period would, in the same way, have had value, though this is a path I am not qualified to pursue in detail. But the design of this book expresses the conviction that study of a group such as the lawyers has value only if the totality of its role is considered. It is an attempt to open up the law, and especially the year books, to the concerns and approaches of social history and, at the same time, to look at social history from the point of view of professional interests and legal developments, and only in an effort of this kind is there hope of advancing, not merely multiplying, knowledge.I At an early stage it became clear that there was no possibility of r. Translation from the year books is more idiomatic than would be expected in a legal text book, and as much of the legal technicality has been omitted as is consistent with intelligibility. Downloaded from University Publishing Online. This is copyrighted material IP139.153.14.250 on Thu Jan 26 13:27:28 GMT 2012. http://dx.doi.org/10.1017/CBO9780511896408.001 PREFACE x investigating even a small sample of lawyers to the depth required, partly for lack of time and space and partly because there is adequate and uniform evidence only for the most obvious and unrevealing areas of the subject. There is little profit in the ability to establish the precise proportion of lawyers who were J .P .s, or who sat on commis­ sions of gaol delivery! The solution adopted was to study in particular detail the life and career of one man, Thomas Kebell, and to weave around him a more general examination of the profession as a whole, as far as the sources allow. Kebell, a serjeant-at-law who died in 1500, chose himself by the unique level of documentation which has sur­ vived for him, but he must throughout be seen as an example of, never as a figure to be distinguished from, his fellows.2 And this method had an added, humane, advantage; it presents the group in the person of an individual, not as a sociological print-out. In the course of the time this study has taken I have incurred many debts. The Publications Fund of the University of Birmingham, the Maitland Memorial Fund and the Isobel Thornley Bequest have given the generous financial support so necessary in these days of economic stringency. I am grateful to the Masters of the Bench of Lincoln's Inn, the President and Fellows of Magdalen College, Oxford, and Capt. V. M. Wombwell for permission to consult ma­ terial owned by them, and I acknowledge the kindness of the Mar­ quess of Ailesbury in allowing me to publish the text of Appendix B. To S. T. Bindoff I owed the encouragement to enter what was then little-explored territory, where I found S. E. Thorne a generous pioneer. To Dr C. C. Dyer I owe not only material from the diocese of Worcester but valuable criticism of the social and economic chap­ ters. I gratefully acknowledge the help of Mr J. C. Sainty, who made available to me his findings on the fifteenth-century exchequer. Dr J. H. Baker kindly read the full manuscript, and it was fortunate that, in the final revision, I was able to use his magisterial introduction to Selden Society Volume 94. Another publication which enabled me to avoid late pitfalls was Dr Marjorie Blatcher's study of the court of king's bench which now stands alongside Dr Margaret Hastings' work on common pleas. Although I sometimes differ from these scholars, my debt to them is plain. Miss Helen Miller generously found the time to scrutinise the final text and Mr R. J. Knecht to discuss the project on numerous occasions. Among other historians who have readily The form Kebell has been adopted rather than the modern Keble, as reflecting the 2. overwhelming usage of the period, although the serjeant used the spelling Kebeel. Downloaded from University Publishing Online. This is copyrighted material IP139.153.14.250 on Thu Jan 26 13:27:28 GMT 2012. http://dx.doi.org/10.1017/CBO9780511896408.001

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