The Rise of the Barristers: A Social History of the English Bar, 1590-1640

457 Pages·1986·16.084 MB·English

by  Wilfried R. Prest

THE RISE OF THE
BARRISTERS
A SOCIAL HISTORY OF THE
ENGLISH BAR 1590-1640
WILFRID R. PREST
CLARENDON PRESS • OXFORD
1986
Oxford University Press, Walton Street, Oxford 0X2 6DP
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© Wilfrid Prest 1986
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British Library Cataloguing in Publication Data
Prest, Wilfrid R.
The rise of the barristers: a social history of
the English bar, 1590-1640.
1. Lawyers—England—History— 16th century
2. Lawyers— England— History— 17th century
1. Title
344.2'002 5 KD463
ISBN 0-19-821764-1
Library of Congress Cataloging in Publication Data
Prest, Wilfrid R.
The rise of the barristers.
Bibliography: p.
Includes index.
I. Lawyers—Great Britain—History. I. Title.
KD463.P74 1986 340'.02 3'42 86-2238
ISBN 0-19-821764-1
Set by Latimer Trend & Company Ltd, Plymouth
Printed in Great Britain
at the University Printing House, Oxford
by David Stanford
Printer to the University
TO MY MOTHER
AND
IN MEMORY OF MY FATHER

PREFACE
‘What made English history in the seventeenth century was the legal
profession.’
Ernest Barker, foreword to I. D. Jones,
The English Revolution (1931).
‘The social history of the bar ... has never been written.’
G. Sawer, Law In Society (Oxford, 1965), 121.
Historians often acknowledge, if only in passing, the remarkable
all-round prominence of common lawyers in early modem England.
Yet we still lack adequate biographical accounts of such central
figures as Edward Coke, Thomas Coventry, and John Selden, let
alone much sense of how far these eminent individuals were typical
of their professional colleagues at large. Even a preliminary explora¬
tion of that theme must come to terms with both the internal and
external histories of the bar. In other words, it must consider not
only the various roles which barristers played out of court, but also
the nature and patterns of their working lives, at a time when the
legal profession was growing rapidly, and undergoing profound
structural change. Ideally, one would also like to show how these
two histories were interrelated.
This book is a sequel—albeit somewhat delayed—to The Inns of
Court under Elizabeth I and the Early Stuarts, 1590-1640, which I
published in 1972. That work did not attempt a sustained account of
the lawyer-members of the inns, an obvious deficiency which I
envisaged supplying quite promptly. Now slightly older and a little
more experienced in historical research, I have come to realize that a
comprehensive study of the English bar in the half-century before
the Long Parliament could easily take several lifetimes.
Although something of a renaissance in legal-historical studies
has occurred over the last two decades, we still lack thorough,
archivally based studies of most central courts, and know only in
broad outline the body of rules and doctrines which they adminis¬
tered. The most serious and challenging deficiency, however, is in
viii Preface
our understanding of the ways in which the law and its institutions
affected and were used by ordinary people. Although a start has
been made on filling some of these gaps, they all urgently require
more single-minded attention than I have been able to give them
here.
Considering the current vogue for micro-history, fine-grained
interpretative reconstructions of particular individuals and small
communities, a study which is national in scope, not rigidly confined
to a nominal fifty-year span, and based on the quantitative analysis
of a large set of biographical data may seem to require a word or two
of methodological justification. By concentrating on the barristers
of, say, two or three counties at one or two given points in time, or
indeed on a handful of particularly well-documented individual
counsellors, it might well have been possible to achieve greater depth
and thoroughness. On the other hand, a narrow focus, by definition,
includes only part of the total view; this may not matter much if the
general outlines are fairly clear, or the particular detail more or less
self-contained, but neither condition holds in the present case. The
broad conclusions advanced below obviously will not provide full or
final answers to all the questions historians might conceivably ask
about early modern common lawyers; but I hope that they may
prove to be of some general interest, as well as constituting a
reasonably firm point of departure for future investigation of what is
still potentially a very fruitful field of research. In any case, the
history of the bar in the later sixteenth and early seventeenth
centuries is surely of sufficient significance to warrant at least an
initial overview.
With the aim of countering the tendency towards excessive
statistical abstraction inherent in the prosopographical approach, as
well as making it easier for readers to follow and check my workings,
abbreviated biographical outlines with full supporting references for
all the lawyers in my sample groups appear as appendices. Unfortu¬
nately, it is almost impossible to eliminate error from such compila¬
tions, and I can only hope that I have corrected more from other
sources than I have passed on or perpetrated myself. These last
would have been far more numerous without the kind assistance of
Mr J. P. Ferris and his colleagues from the History of Parliament
Trust, as well as a number of specialists on particular families,
groups and places—none of whom, however, should be held respon¬
sible for any remaining mistakes or omissions. Mass-biographical
Preface ix
research is a peculiarly frustrating activity; one can rarely claim to
have exhausted all possible lines of inquiry, especially when dealing
with the more obscure individuals. Although I have worked in more
than seventy record offices and archival repositories during the
twelve years it has taken to write this book, there can be no doubt
that I have still overlooked relevant material, especially among
papers in private hands and those held by municipal corporations.
A lot of people have helped put this book together, and while I
cannot mention each one by name, I thank them all nonetheless. My
prime debt is to Irene Cassidy, who has once again enabled an
Adelaide historian to pursue a project based on distant sources;
without her assiduous and informed aid this book simply could not
have been written. Research assistance, for which I am also grateful,
was given in Adelaide by Gillian Erskine and Cherry Walker, with
support from departmental and university funds. The initial phases
of the project were supported by the Australian Research Grants
Committee (as it then was), and I acknowledge with thanks travel
funds provided by the Australian-American Educational Founda¬
tion and the Myer Foundation.
Over the past decade I have held visiting fellowships at All Souls
College, Oxford; the Huntington Library, San Marino, California;
the Shelby Cullom Davis Center for Historical Study at Princeton
University; the Humanities Research Centre of the Australian
National University; and Clare Hall, Cambridge. I thank all those in
and around these institutions who encouraged and facilitated my
work, especially John Simmons, Mary Robertson, Lawrence Stone,
Ian Donaldson, and Geoffrey Elton. Archivists, librarians, and
computing scientists in England, North America, and Australia
helped me to gather and analyse the manuscript and printed sources
on which this book is based; it is impossible to enumerate all their
individual acts of kindness, but I should like to express particular
gratitude to Miss M. Cash, formerly Hampshire County Archivist,
Mr P. I. King, Chief Archivist at Delapre Abbey, Northampton, and
the staff of the Barr Smith Library, University of Adelaide, and the
Institute of Historical Research, University of London.
Many scholars have been good enough to encourage me with
questions, references, and other incentives to persevere; I thank
them all most warmly, and trust they will find their specific
contributions appropriately acknowledged. I am also grateful to the
editors of the La Trobe University journal Law in Context for
X Preface
permission to reproduce in Chapter Six material which first
appeared in that publication; to the various owners who have
allowed me to consult their manuscripts, especially the Marquess of
Bath, the Rt. Hon. Lady Lucas, Mrs H. Henderson, and Mr J. L.
Jervoise; and to the authors of the unpublished theses cited in
Appendix I, from whose work I have learnt a great deal.
Finally, I should like to express my thanks to several generations
of colleagues, secretaries, and students at the University of Adelaide;
to my sons Richard and James, who have lived with this book most
of their lives; and to John and Veronica Baker, Tom and Jeanne-
Marie Barnes, Chris and Sharyn Brooks, Trish Crawford, Sabina
Flanagan, Chris and Amanda Helm, Christopher Hill, and Keith
Thomas, for their friendship and many kindnesses.
W. R. P.
CONTENTS
List of Tables xii
Abbreviations xiii
1 Introduction i
2 The Business of the Bar 11
3 Demand and Supply 49
4 Group Portrait 83
5 Advancement 127
6 Lawyers and Letters 184
7 Religion 209
8 Government and Politics 234
9 Law, Lawyers, and Litigants 283
Appendices
A Measuring the Early Modern Bar 327
b Favourites and the Hearing of Suits 329
c Counsel in Exchequer and King’s Bench 331
D Biographical Tabulation of Bar Sample 333
E Biographical Notes on Benchers 339
F Exclusions from Benchers’ Sample 407
G Geographical Origins of Samples 412
H Sherfield’s Interview with Noy 414
1 Theses Consulted 415
Index 417
LIST OF TABLES
1.1 Bar Calls 1518-1639 (decennial totals) 7
2.1 Henry Sherfield’s Fees, 1608-10 32
2.2 Arthur Turner’s Practice; Venues and Fees, 1642-51 38
3.1 Counsel Appearing in English-bill Courts, Easter
Terms 1616 and 1638 59~f>1
3.2 Chancery Counsel, Signers and Pleaders, Easter Term
1615 69
4.1 Social Origins of Bar and Bench Samples 89
4.2 Gentry and Unknowns: Geographical Origins 92
4.3 Birth Order 93
4.4 Comparative Regional Origins 96
4.5 Migration and Urbanization 102
4.6 Regional Destinations 103
4.7 Higher Education 112
4.8 Marriage 116
5.1 Benchers Called 137
7.1 Religious Affiliations 215
8.1 Civil War Alignments of Bar Sample 275
8.2 Civil War Alignments of Bench Sample 275
8.3 Regional Distribution of Royalists and
Parliamentarians 277