The Life of Thomas More (12 page)

The evidence of judicial procedure could also be found at first hand. It became the custom for the
apprenticii
to attend the morning hearings of the various courts in Westminster Hall. Here they would listen to the ‘pleadings’ which were at the heart of the judicial process; there was no written evidence, only the oral submissions and the subsequent arguments between bench and bar. Reports of these conversations are to be found in the Year Books: ‘Shame to him who pleaded this plea … This is not the first time we have heard a plea of this kind … That is a sophistry and this is a place designed for the truth.’
¹¹
These verbatim records bring us as close to the people of the period as we are ever likely to be permitted, and for a moment we can stand with the
apprenticii
behind the bars or barriers of the court and listen to them talking. ‘My client is a poor man and knows no law,’ an attorney pleads, to which the judge replies, ‘It is because he knows no law that he has retained you.’ Another judge notes the stupidity of a plaintiff but adds, rather marvellously, ‘He will have a remedy here in Chancery, for God protects the simple.’ And so we hear their voices again, after five hundred years. ‘Leave off your noise and deliver yourself from this account … It will go to the winds, as does the greatest part of that which you say … Are not the tallies sealed with your seal? About what would you tender and make law? For shame.’
¹²
There was even an occasion when a reporter noted how a judge winked at a lawyer to convey ‘the best procedure for him to follow’.
¹³

When they returned from Westminster to New Inn, the
apprenticii
would debate the arguments and procedures raised by the cases which they had heard. They were instructed both in theory and in practice,
therefore, and learned the principles ‘whereupon the lawe of England is grounded’.
¹⁴
What is the nature of equity? What is meant by the phrase
ex aequo bonoque?
What are the boundaries of judicial discretion and written statute? These were just some of the questions that exercised law students of the period, all of them being resolved or elaborated by means of oral teaching and disputation; More’s education, from school and university to the Inn, was in that sense of a piece. He was learning how to plead, and in the process discovering the rules of confirmation and confutation, of dilatory pleas and pleas in bar, of special traverse and general traverse. More himself, in later work, recalled the oral and judicial exercises to which he applied himself; in the course of an elaborate legal argument with one opponent, he ‘waxen me thought a yong man agayn and semed set at a vacacyon mote with hym in some Inne of the chauncery’.
¹⁵

Each evening, at dinner in the hall of the Inn, a report on some legal topic or actual court case was placed beside the salt cellar; no one was allowed to know its contents but, after the meal was over, two junior barristers were required to argue on either side of the legal matter presented to them. This was known as ‘putting the case’ or ‘putting case that’, a phrase which More often uses in his polemical writings against heretics—writings that are the work of a lawyer rather than of a theologian. If the senior members of the Inn found the issues arising from this ‘case’ debatable or ‘mootable’, then in Law French more senior barristers would analyse the themes and questions further. This was the ‘mote’. It was the single most important formal instruction in pleading and procedure that the student received, and inculcated lessons in argument which More used to the end of his life.

His advanced legal training, however, began when he left New Inn after two years and entered Lincoln’s Inn. This was the Inn of which his father was a senior member, and More would have been enrolled here as a matter of familial propriety and obligation. He was admitted on 12 February 1496, just after his eighteenth birthday, and according to the register of the Inn he was excused four vacations at the instigation of John More; the ‘vacations’ were, paradoxically, the time of the most intensive study and it may be that Thomas More’s proficiency allowed him to move rapidly and easily through the established stages of learning. It may, however, simply have been a favour to John More; on the
same day he arranged the admission of another member of his extended family, a future son-in-law, with a similar dispensation.

Lincoln’s Inn was across the fields from New Inn. Its history was obscure but, by the time of More’s arrival, it was already prosperous; there was an excellent library, and a new hall had recently been constructed in that red and damson brick so characteristic of late fifteenth-century buildings. The Inn had more than a hundred members and, at some point, More shared chambers or
cubicula
with a student named Edward Arnold, who was acquainted with Erasmus. Nothing is known of this intriguing connection. More’s earliest biographer does not allude to his contemporaries, mentioning only that he was kept at Lincoln’s Inn on ‘a very small allowance’ from his father and remained there until he became an ‘utter barrister’.
¹⁶
The term itself has now fallen out of use, but it reflects one stage of the career upon which More had now embarked. The Inn was governed by a formal hierarchy and, in order to understand it properly, it may be better to begin at the beginning of More’s own life here. He had begun as an apprentice of the law, from which lowly degree he now proceeded to the rank of ‘inner barrister’. He was still a student of the law and his title meant only that during his tuition he sat upon an inner row of
barrae
, the late Latin word for seats or benches. He would be obliged to sit here, for example, to be exercised in the art of ‘bolting’ when he was examined by his seniors on various hypothetical cases or points of law. After several years of this preparatory training—estimates range from four to eight years and it must have depended to a large extent upon individual ability—he was then eligible for the rank of utter or outer barrister. In the customary phrase he was called ‘to the Bar’—he was no longer sitting ‘under the Bar’ with the inner barristers. More’s legal education would already have lasted at least six years, but he would not have been allowed to practise law in Westminster for a further three years. Eventually he joined the ‘apprentices-at-law’ there, and could plead in most of the courts of the country. But it was a protracted training, lasting on any actuarial basis almost a quarter of an adult’s life in the period.

From the ranks of the utter barristers were then chosen the readers, who lectured upon the law during the ‘learning vacations’, and the benchers who made up the governing body of the Inn. From these in turn were picked the most senior lawyers in England, the serjeants-at-law
and the judges. Elaborate ceremonials, both religious and secular, attended the election of these most important officers; when Thomas More’s father was appointed a serjeant in 1503, there would have been seven days of celebration culminating in a great feast. John More was given a white silk coif, like a skull-cap, which he was not permitted to remove even in the presence of the king; he wore long multi-coloured robes with vertical stripes, to distinguish his order from the diagonal stripes of the barristers. The colours of these gowns changed over the decades, but in the early sixteenth century we might surmise the stripes to be of that mulberry and blue which became standard issue by 1521. In addition, serjeants were expected to wear seasonal liveries of scarlet or violet or green. Again, the emphasis is upon display, hierarchy, precedent and ceremony.

The diurnal life of Lincoln’s Inn manifested similar characteristics. It was a life in which all the members of the body ate, worshipped, disputed and celebrated together. Members of the various degrees and ranks, from clerk to bencher, lived in close proximity and thereby created a ‘tight professional community’.
¹⁷
Of course it would be misleading, as well as false to any notion of common sense, to idealise or even to over-emphasise the extent of this ‘community’. Not all of the law students fulfilled their course with the same punctiliousness as Thomas More; some left early and returned to less prestigious practice as country lawyers, while others must have found the prolonged period of study too exacting or demanding. Recent research has suggested a ‘drop-out’ rate (including early death, a factor which must always be introduced in such calculations of late fifteenth-century life) of ‘nearly twenty per cent in three years’.
¹⁸
Even though the students were obliged to attend the Inn for only half of the year, between twenty-three and twenty-eight weeks, there were still fines being levied for neglecting moots or readings. Sir John Fortescue described the Inn as a
gymnasium
or academy for the noble arts; he mentioned singing and dancing among them, but there is no evidence for such diversions from any other source. It is more likely that dancing and singing schools—not unlike those of eighteenth-century London—sprang up beside these communities of young men on the borders of the city. Youthful lawyers, in such a situation, were also likely to neglect their studies from time to time; there are records of punishments for dicing, harlotting, fighting
and drunkenness. A brothel in Holborn, ‘John Hasylrykke’s House’, was known to the authorities; there was also a famous inn in the vicinity, the White Hart, where swords were drawn on more than one occasion.

Here, then, is one of the expected contraries of late medieval society—the appetite for order and hierarchy is matched only by the tendency towards disorder or violent disruption. These opposing forces were held together by bringing them both within the rituals of display and seasonal ceremony. That is why the Inns of Court, at the centre of the education of a new generation, placed so much emphasis in their internal administration upon revels and feasts of misrule. In Lincoln’s Inn a lord of misrule supervised the festivities of Christmas, which included masques and plays of the kind in which Thomas More had participated at Lambeth Palace. But there were other revels on different occasions of the year, and we read of a ‘Jack Straw’ and a ‘king of Cockneys’ as well as of ‘splendid shews, notable pastimes, and costly feastings’.
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Yet there can be seasonal misrule only within a prevailing architecture of order, just as the debates and disputations of the late medieval period are possible only within the context of an assured and absolute truth which governs humankind.

During the festivities marking the election of a serjeant-at-law the new serjeant presented rings to his colleagues, marked with a legend and design of his own choosing. It was a sacred ritual, no doubt deriving from the ancient rites of coronation when the monarch was given a ring as one of the symbols of divine ordination. The religious element of the ceremony did not go unnoticed by contemporary theorists. Fortes-cue himself quoted with approval Justinian’s remark that judges were ‘priests of the law’,
²⁰
and John Wycliffe compared the white silk coif of the serjeant to the religious head-dress of the Jewish priests. A medieval Italian jurist, Baldus, also claimed that doctors of law ‘discharge the office of priesthood’.
²¹
These allusions might be taken to infer that law was seen to be part of religion, or even religion to be part of law; but the central and important point is that both were conceived to be visible aspects of the same spiritual reality. The common metaphor, of the temporal and spiritual jurisdictions as being two edges of the same sword, puts the matter more starkly; and the implications are clear enough. Common law was believed to be ‘grounded upon the lawe of
reason and the lawe of God’, and Fortescue paraphrased the words of the Old Testament king Jehoshaphat in declaring that ‘All judicial sentences are the judgements of God.’
²²
Religion and law were not to be considered separately; they implied one another. That is why law was considered to be perfect in itself, undamaged by the bad judgments of individual practitioners; the same argument, on the merits of the Mass as opposed to the virtue of the priest who offered it, was at the heart of Catholic eucharistic belief. That is why the law was also considered to be permanent; it was what was known to be true, withstanding change or decay. It is possible to see how in its theoretical state it became the image and explanatory model for all areas of human activity: it stood upon the ground which we are now accustomed to call politics, for example, and marked out the very nature of society itself. There were laws of custom and the law of nature. ‘If there were no Law,’ says one judge quoted in a Year Book, ‘there would be no King and no inheritance.’
²³
That is why it is misleading to separate ‘social’ from ‘political’, ‘legal’ or ‘religious’ matters in this period; they represent the same central concern of fallen man, which lay in understanding and organising his temporary sojourn upon the earth.

The attitude More adopted towards the primacy and authority of law governed all his subsequent actions. It is of the greatest significance in understanding his behaviour, for example, to realise that he wrote about the law in precisely the same way he described the Church. There was, for him, no essential or necessary difference. That is why he understood at once the nature of Martin Luther’s heresy, when the German monk spoke of judgement ‘according to love … without any law books’. When Luther emphasised the importance of the ‘free mind’, as opposed to the tenets of ‘the law books and jurists’,
²⁴
More recognised instinctively that he was mounting an attack upon the whole medieval polity as constituted by the Catholic Church; when Luther argued that law was written within the heart of man, and that judges should ignore matters of precedent and tradition, he was assaulting the principles by which More’s life and career were guided. More defended the law, in turn, by emphasising the importance of
‘consensus’
and
‘usus’
, and by invoking the common feeling and customary usage of the Christian world.
²⁵
In his description of this general authority, he distinguishes between formal statutes or laws and the oral tradition which is handed
down by generation upon generation of English judges and is embodied in the Year Books as precedent or commentary. This is perhaps not worthy of remark, except that More comes to define the Catholic Church in precisely the same language, even to the extent that he distinguishes the written scriptures from the oral tradition conveyed from the lips of the apostles down the ages. In his recognition of the identity of Church and Law, we come closer to More’s general sense of life and to that particular self-awareness with which he conducted himself.