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

566 Pages·1983·8.038 MB·English

by  E. W. Ives

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
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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
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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
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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
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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
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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]
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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
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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.
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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.
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