Part 9

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.

The Serjeant-at-Law

The Black Patch on the Wig--A King’s Serjeant--The Old English Law Courts--The Common Pleas--Queen’s Counsel--How Serjeants were Created--Their Feasts--Their Posies--Their Colts--Chaucer’s Serjeant-at-Law--The Coif--The Fall of the Order--Some Famous Serjeants.

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 barrister, 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 barristers 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.