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necessary. "It has been in effect urged that the High Court has no power to enforce the prayer for an injunction; but the defendant has not filed any affidavit shewing that he never comes to England; and if the injunction is granted, it can be enforced, whenever he comes within the jurisdiction."

On whichever ground the jurisdiction is to be rested, "it is a jurisdiction which requires to be narrowly watched and exercised with great care; and it is in fact so exercised.3


It thus appears that in most cases where service out of the jurisdiction is allowed by Order XI the jurisdiction of the court to render a judgment is clear, and its judgment will be recognised abroad. There are, however, one or two categories under the Order-where the defendant is an absent resident merely, and where a contract, made abroad by a foreigner, is to be governed by the law of Englandwhere the action of the court would probably not be recognised abroad. If this point were called to the attention of an English court, would it nevertheless, on the ground that it is bound by the rule, grant the order for service outside?

It is doubtful whether after argument such an order would be made, even if the case clearly came within the rule; for the motion is addressed to the discretion of the judge, which should surely so be exercised as to avoid the assertion of a doubtful jurisdiction. But if the judge grants the application, should a court on appeal set the order aside?

The doctrine of the supremacy of Parliament is not involved, and the court is therefore not under any absolute obligation to act. Is it bound by its own rule? On such a question it does not behove an outlander to express an opinion.

1 Brett, M. R., in Tozier v. Hawkins (1885) 15 Q.B.D. 650, 680.

2 Cozens-Hardy, L. J., in Badische Fabrik v. Chemische Fabrik (1903) 88 L.T.R. 490, 496.

Badische Fabrik v. Johnson [1896] 1 Ch. 25; s.c. [1897] 2 Ch. 322; [1898] A.C. 200.

The Training of a Mediaeval Justice



In his Introduction to my little book on Chief Justice Sir William Bereford,1 Sir Henry Duke (now Lord Merrivale) invited me to show "how in the time of the Edwards such a judge as Bereford was produced." In this paper I shall attempt to respond to Lord Merrivale's invitation, and even to do a little more. I shall try to show, as best I can in the lack of anything like complete, or nearly complete, information, not only how "such a Judge as Bereford," and the other Justices of his time were produced, but to set out something, scanty and more or less hypothetical, indeed, so far as it deals with the years immediately succeeding the Conquest, as to the training and qualifications of much earlier Justices than Bereford and his companions in the time of the Edwards. When we get to Bereford's time the final stages of the road to the Bench seem fairly clear, but it is another and more difficult matter to show where the road which led to the Bench as its goal began, and to say something of the country through which it passed. Yet, in a paper of this sort, it seems necessary, if one is seeking to show how the traveller along the road reached his goal, to say something of the point from which he started, and of what happened to him as he journeyed In order to do this I have had to make some explanatory excursions into the history, so far as it is now ascertainable, of the earlier schools of law in England; to say something of the Apprentices and Serjeants, for in Bereford's time, at any rate, the attainment of these degrees, if I may so call them, 1 Cambridge University Press, 1924.


seems to have been successively necessary. I have gleaned one fact here and another there, and have tried to weave them into a coherent story.

And here at the beginning I may premise that there were many kinds of mediaeval Justices. There were the early Justiciars, the Justices of the King's Bench and of the Common Bench or Common Pleas, the Justices in Eyre and other itinerant Justices with more limited commissions, such as the Justices of Assize, of Oyer and Terminer, of Gaol Delivery, of Trailbaston, and of the Forest certainly. In this present paper I propose to deal only with what we may loosely call, adopting modern terminology, the Justices of the High Court, that is, the Justices of the King's Bench and the Common Bench. The date to which I propose to go back as a beginning is that of the fission of the Curia Regis into the Courts of King's Bench and of the Common Bench. It does not seem possible, in the present state of our knowledge, to say anything definite as to earlier times. Up to a date which I will discuss later there does not appear to be any evidence of the existence of anything of the nature of a law school in England; and by a law school I mean an organised system of teaching the Common Law of the land. Learning, such as there was, was the possession of the ecclesiastics, and their legal learning was probably of Ecclesiastical Law mainly, although some of them had the reputation, possibly well earned, of being deeply versed in the principles of the English Common Law. Let me revive the names of some of these earliest English common lawyers. In William I.'s reign there was a strenuous dispute between Archbishop Lanfranc and Odo, Bishop of Bayeux, who was also the King's brother, touching the right to certain estates of land. The ancient manuscript known as the Textus Roffensis gives us some account of the proceedings in the hearing of this dispute at

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Pinenden; and tells us that by the King's command Aselric, Bishop of Chester, a very aged man (antiquissimus), and most deeply versed in the Common Law (sapientissimus legum terrae), was brought thither in a quadriga to discuss and expound those same ancient usages (ad ipsas antiquas consuetudines discutiendas et edocendas).1 In the following reign, one of our early chronicles tells us, Alfwin, rector of Sutton, and several of the monks of Abingdon, were so famous for their knowledge of the law that they were universally consulted, and their opinions generally accepted. This statement by the old chronicler has a special interest beyond the mere facts it relates. It seems to make it fairly certain that there was at this early time some sort of law school in the monastery of Abingdon, and, if at Abingdon, not improbably in other monasteries also. And this appears to be all the more likely from the fact, for which it would naturally account, that the early bench of judges and the early practising advocates were not generally other than ecclesiastics. Dugdale gives us the names of as many as ten canons of St. Paul's alone who were Justices at Westminster Hall in Henry III.'s reign. There is strong proof, too, that at this time the practising advocates were also in the main ecclesiastics. If they had not been it would scarcely have been necessary for Richard Poore, Bishop of Salisbury, formally to prohibit, in 1217, their further appearance in court as advocates, except in cases. to which they themselves were parties, or in defence of miserabilium personarum.3 And we have the regretful statement of William of Malmsbury:" Nullus

1 See Wilkins' Concilia, I., p. 323, quoting the Textus Roffensis. "Sed et alii plures de Anglis causidici per id tempus in abbatia ista habebantur quorum collationi nemo sapiens refragabatur.”—Annals of the Monastery of Abingdon, II., p. 2 (Rolls Series).

3 "Nec advocati sint clerici vel sacerdotes in foro seculari nisi vel proprias causas vel miserabilium personarum prosequentur," Spelman's Concilia, II., p. 140 (A.D. 1217).

clericus nisi causidicus." But from what other sources than ecclesiastical ones could a supply of advocates have been drawn at this time? And it was not for a long time after Bishop Poore's prohibition that Westminster Hall saw the last of the causidici clerici. This prohibition, however, did not extend to the Bench; and ecclesiastics still continued to be appointed thereto. In chronicling the appointment, in 1179, of the Bishops of Winchester, Ely and Norwich, as joint Chief Justiciars of the Kingdom, Ralph de Diceto suggests some reasons for such appointments which are not without their interest: "Transcensis igitur omnibus quae mutabilitati poterant subiacere de facili, rex, ad sanctuarium Dei recurrens, Wintoniensem, Helyensem, Norwicensem episcopos archiiustarios regni, sed certis in locis ea forsan consideratione constituit, ut si caeteri quos longe prius praemiserat ipsum regnantem in terra minus reueriti fuerint, isti saltem Deum regem regum, hominum creatorem, iudicem conscientiarum, operum retributorem, reuererentur attentius et ardentius, ut, nec ad sinistram declinantes vel ad dexteram, nec opprimerent in iudicio pauperem, nec causam diuitis ob acceptionem muneris colorare praesumerent. Itaque si se negotiis saecularibus contra canonum instituta praesules inmiscuerint et ob hoc trahantur in causam, regis instantiam, regis intentionem piam, suam actionem Deo placendam, ab hominibus collaudandam, rigori canonum instanter opponant; sic reatum culpae fraternae caritatis intuitus poterit mitigare."2

When the supply of qualified advocates trained as ecclesiastics in monasterial schools was cut off, the necessity of getting them from somewhere else would naturally lead to a demand for the training of lay people in law and practice. At first, we may

▲ De Gestis Regum Anglorum, Lib. V., sect. 314 (Rolls Series). I., p. 435 (edit. Stubbs in Rolls Series).

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