Appendix B2: Men of Law as Members of Parliament
Available from Boydell and Brewer
Men of law as Members of Parliament
In the Parliament of 1372 an ordinance had been passed forbidding the election as knights of the shire of ‘gentz de ley’ engaged in business in the King’s courts on behalf of clients. It had been framed in response to a petition submitted by the Commons, who objected to the way lawyers had been promoting private petitions in Parliament as if they had been sponsored by the House. There is, however, no sign that the ordinance was ever enforced, and only on one subsequent occasion (when Henry IV summoned Parliament to meet at Coventry in October 1404) did the writs of summons explicitly forbid the return of any apprentice-at-law or any other man of law (‘aut apprenticius sive aliquis homo ad legem’). Since it apparently applied to parliamentary burgesses as well as to shire knights, the prohibition of 1404 was more comprehensive than the ordinance, although its effects were limited to that one Parliament.1
The following table shows the number of Members in each Parliament of the period 1386-1421 who have been positively identified as ‘men of law’. However, it should be noted that the figures supplied can only point to a minimum number of lawyers in the Commons at any one time, owing to the difficulties of identifying ‘men of law’ in the late 14th and early 15th centuries. Apart from Lincoln’s Inn, which kept records of its fellows only from 1420 and may not at that date have been long in existence, none of the other inns of court and of Chancery preserved details of their members in this period. Furthermore, the many individuals who studied in the ‘great legal university’ situated in the western suburbs of London did not all go on to make careers practising what they had learned. Later in the 15th century, at least, sons of gentlemen were wont to attend the inns for social purposes or in order to acquire a general education, and although they might well have made use of their brief acquaintance with legal scholarship when required to act in their shires as j.p.s, or to put their own or their friends’ personal affairs in satisfactory order, it was not principally as lawyers that they made their way. Even among those who did earn a living from the law, there was wide diversity in the way they worked. An adequate income might be derived from public office, private practice, or, more usually, a combination of the two. Fees were offered by leading magnates, large religious houses and municipal bodies. Lesser practitioners could become quite affluent by taking on a variety of work on behalf of local gentry and townsmen. Some specialized in advocacy and the professional functions associated with the word ‘counsellor’, including skilled draftsmanship, the giving of advice and acting as arbitrators. Others kept to the more menial tasks associated with attorneyship, clerkship and auditorship.2 In deciding which of our MPs were ‘ gentz de ley’ it is, of course, a simple matter to place in this category the few men of outstanding ability who reached the pinnacles of the profession. In the period under review these included a retired judge, Sir John Wadham, alongside several talented individuals in the early stages of their careers, among them the future chief justices, John Hody and John Fortescue, and their colleagues on the bench, Nicholas Aysshton and William Goodred*. Then too, the names of the select band of serjeants-at-law, with their monopoly of pleading in the court of common pleas, are also relatively easy to obtain. But it is more difficult to identify the apprentices-at-law, who were fully-fledged advocates below the degree of serjeant, unless, like John Barton I and his brother John Barton II, they disobeyed royal injunctions to take the coif. Some MPs are recorded as clerks and officers of the central courts (the King’s bench, common pleas and Exchequer in particular), and others among the individuals employed as legal experts by the duchy of Lancaster. But not many of those retained as counsel by important noble families have been discovered, owing to the widespread loss and dispersal of private estate papers. The identification of members of the legal profession paid by corporate bodies in towns or cities to act on their behalf as attorneys in the central courts or as recorders and town clerks at home, is similarly dependent upon the uneven survival of municipal records. It is especially difficult to track down Members who were not particularly successful in practising law: those engaged on an irregular basis as attorneys at the county assizes or to initiate and conduct litigation in the central courts, whose work as general practitioners is less likely to be recorded in the Exchequer or Chancery. This is because it has not proved possible to search through the enormous quantities of records of the courts of common pleas and King’s bench for all the Members of our period (although a handful of constituencies have been better served than others in this respect). There may have been as many as 200 attorneys active in the courts at Westminster in any one year, and unless a Member was blessed with a distinctive name firm identification is problematic. Nor can it necessarily be assumed that a Member who was regularly employed on a professional basis in the management of a great estate (particularly as a steward, responsible for holding local courts) had received any formal legal training, and thus ought, by virtue of his office, to be included among the ‘gentz de ley’. Moreover, there were parliamentary representatives whose frequent appearance as feoffees-to-uses and executors of wills might well lead us to believe that they had a wider knowledge of the law than was to be expected from men of comparable background and station, but there is no way of knowing if this was indeed the case. Conversely, we should not assume that individuals who studied civil law at Oxford or Cambridge all automatically entered the Church and were thus excluded from Membership of the House of Commons. The careers of certain Members (Sir John Cheyne I is an obvious example) suggest that they had benefited from some such instruction, which contributed to the development of their obvious skills in diplomacy and led to their employment in the courts of admiralty and chivalry.
Owing to the loss of many of the parliamentary returns for this period, especially for Henry IV’s reign and for four of the early Parliaments summoned by Henry V, the percentage figures given in the table may well be deceptive, and should be treated with caution. (To say, for instance, that 21% of the Members in February 1413 were men of law becomes a meaningless statement when it is considered that the names of only 24 MPs, all of them burgesses, are now known.) But if like is compared with like and only Parliaments of relatively full recorded Membership are examined (those with 240 or more known Members), then it is possible to discern a change in the pattern of representation as the period progressed. Whereas in 1386 just 8% and in 1388 (Sept.) a mere 7% of MPs are thought to have been men of law, in other Parliaments of Richard II’s reign (such as those of February 1388, 1393, 1395 and January 1397), a figure of 11% to 13% was more usual. Only about 9% of the individuals who attended the assembly of 1399 which accepted Richard’s abdication and met a few days later as Henry IV’s first Parliament were lawyers (perhaps, in the light of the recent momentous political events the electorate generally preferred to be represented by men of a military persuasion), but in 1406 the percentage rose again to 12%. Thereafter it increased to a marked extent, in 1413 (May) reaching 22% and in the last three Parliaments of the period averaging no less than 20%. Indeed, it is clear that in Henry V’s reign there was usually a higher proportion of lawyers in the Lower House than had previously been the case. There is no ready explanation for this trend, although the absence overseas of very many knights and esquires serving in the royal armies in France, may account in part for some change in the type of person elected by certain constituencies to the Parliaments of 1417 onwards. This view is supported by a comparison of the numbers of ‘gentz de ley’ returned as shire knights, as opposed to burgesses, at the beginning and end of our period, for whereas a mere five have been identified in 1386 and in the Merciless Parliament, there was a minimum of 22 in 1419 and 21 in 1421 (Dec.). But the circumstances of war did not, of course, apply in the spring of 1413, when, as we have seen, the percentage of lawyers was nevertheless abnormally high; and in May 1421 significant numbers of knights and esquires who had returned to England with the King were once more available for election. Evidently, the preoccupation of the military profession with campaigns overseas is not the full answer.
Whatever the percentage of lawyers in the Lower House in relation to the knights and esquires who followed the profession of arms and to the merchants and those engaged in other trades and crafts, it seems likely that they exercised an influence on proceedings quite out of proportion to their numbers. In this context, it should be noted that several of the earliest Speakers were men of law, including Sir James Pickering, William Stourton, Roger Flore, Roger Hunt and Richard Baynard, who were all returned to Parliament during the period under review and clearly impressed their fellows with their ability as advocates.
NUMBER OF LAWYERS IDENTIFIED AS MEMBERS OF PARLIAMENT
|Parliament ||Members known ||Lawyers identified || ||Total ||As a percentage |