For the past few months I have been transcribing and cataloguing MS17, ‘Cases at Nisi Prius’, containing nominate reports of cases at Nisi Prius. The manuscript belonged to Sir Vicary Gibbs (1751-1820), and may have been written by him. The cases date from the 1760s to 1810s and vary in nature, from libel charges and indictments of fraud, to actions of trover and bills of exchange. I came across several insurance claims for ships that had been damaged at sea. In most of these cases, the contents of the cargo were not specified. One which caught my attention was a case brought by the slaver named Rohl in 1796, where two significant details of the circumstances of the claim are provided: at one point during the voyage there was a slave insurrection, resulting in the death of eight enslaved Africans, and the ship was “destroyed by destructive worms that infest the River of Africa” (folios 128-129). Both factors were integral in determining the success of the insurance claim in court.
1. Rohl’s voyage from Saint Barthélemy to Cape Coast (original map from www.freeworldmaps.net)
On 1st September 1792, the Zumbee sailed from St Bartholomew (Saint Barthélemy) to the River Gombroon on the coast of Africa [1]. Here, it was reported, a slave insurrection resulted in the loss of eight slaves (seven were killed and one died from falling) out of a total of forty-nine. The report claimed that the ship then struggled to get to Cape Coast because the bottom had been “taken by the worm”, likely to be toredo worms/shipworms, which were a common cause of damage to wooden ships in this period. At Cape Coast, the ship was “condemned as irreparable” and sold.
2. Rohl v Parr, folio 128 with ‘worms’ in the margin
The insurance claim was predicated on the policy of damage due to ‘peril at sea’. However, Lord Kenyon and the special jury agreed that the destruction by shipworms, being “an animated substance moving to destroy [the ship]” rather than “an inanimate substance striking against the ship’s bottom”, did not meet the terms of the ‘peril at sea’ policy. Consequently, the counsel for the plaintiff tried instead to recover the partial loss of the enslaved cargo resulting from the slave insurrection. Luckily for Rohl this was granted, as the loss was calculated as more than 5% at the time when the slaves were killed.
3. Figure 2 Rohl v Parr, folio 129
The transatlantic slave trade witnessed the forced transportation of over twelve million enslaved African men, women and children from Africa across the Atlantic to the Americas. Portugal, Brazil, Britain, France, the Netherlands, Spain, Uruguay, the United States of America and Denmark were all involved. One way we are able to catch a glimpse of the mechanisms underpinning the transatlantic slave trade is through legal records like those in the Gibbs manuscript. The records documenting these horrific and treacherous voyages have been made accessible to the public by the SlaveVoyages initiative [2].
This case of Rohl and Parr does not shed much light on the lives of the individuals who were enslaved and travelled on board the Zumbee; the horrors they must have experienced can only be imagined. The case does make clear, however, the financial risks involved for slavers who embarked on the voyage across the Atlantic to Africa. The underlying threat of insurrection was always on the horizon. Yet it would be the workings of the ‘destructive worms’ that rendered slavers like Rohl defenceless both at sea and in the English courtroom.
Citations
[1] Rohl v Parr, Saturday, Feb. 27th 1796, 1ESP.444., Reports of Cases Argued and Ruled at Nisi Prius.
One of the bigger projects that I worked on during my time at Middle Temple Library involved the House of Lords Appeal Cases. This was a range of dockets for cases heard in the House of Lords ranging from 1695- 1853. While many of the documents are interesting, one name was mentioned particularly frequently. This was Simon Fraser, who was also known as Lord Lovat. Lovat’s cases were frequent from 1715 to 1740, due to Lovat’s questionable decisions in life.
1. Simon Lord Lovat. Appellant. Kenneth Mackenzie, and the creditors of Alexander Mackenzie, respondents. The appellant’s case.
Simon Fraser was born January 1667 in Scotland to Thomas Fraser of Beaufort. The Fraser-Beauforts have connections to Lord Lovat, the chief of their clan Fraser, so when the 9th Lord Lovat died, he was succeeded by Simon’s father Thomas. This claim was largely supported, except for the Murray family, who were suspicious of Simon’s future aspirations.
The Murrays were right to be suspicious of Simon Fraser. In order to solidify his claim to the next Lord Lovat title, Simon Fraser forcibly married Amelia Fraser, the widow to Hugh Fraser (the 9th Lord Lovat). Allegations of rape were also made but were not presented in Simon’s later trial. Because of this, both the Privy Council and the Court of Session in Scotland issued “Letters of communing” that isolated Simon from others, and also issued an order that Simon and his father could be captured “dead or alive”. This would only be the start of the tension between Simon and his enemies.
While still on the run, Thomas Fraser died, and Simon inherited the title of 11th Lord Lovat but had no means to claim the land and estates that came with the title. He still managed to command the loyalty of his clan, largely due to the violence that the Murrays had inflicted on members of the Clan Fraser that were seen to show support for Simon. However, he still was unable to claim his estate. Urged on by the Duke of Argyll, the chief of Clan Campbell, Simon went to the king, William III, and was granted a pardon. At the time, William III was more concerned with the fighting in France and wanted peace in Scotland.
Simon’s relatively good fortune was not meant to last. When William II died, he was succeeded by Queen Anne who favoured the Murrays rather than the Frasers. It did not help that Amelia Fraser’s daughter (also named Amelia) married Alexander Mackenzie, who became Alexander Mackenzie of Fraserdale. This meant that their first son would inherit the title of Lord Lovat instead of Simon’s future heirs.
It is important to note the historical context for Simon’s story: during this time the Jacobite cause was in full force, and unrest was only rising between the English monarchy and the supporters of James II (and later James III). After the marriage of Amelia and Alexander Mackenzie, Simon escaped to France to the court of the Jacobites for 15 years. During this time, he attempted to convince the French King to send support to Jacobites in Scotland. Unconvinced, Louis XIV ordered Simon to return to Scotland and gain written support that the Scottish Highlanders would revolt against the crown.
When Simon arrived in Scotland, he was quick to learn that the Highlanders were not as inclined to rebel as he had previously thought. Anxious to increase his own power and prestige, Simon betrayed the Jacobite cause and used blank letters signed by Lord Murray (thought to be added by Simon himself) to reduce his political enemy’s power. Having achieved this, Simon returned to France in 1703 to explain why his previous plan had not succeeded.
While he initially succeeded in convincing the Jacobite court of the success of a Jacobite rebellion, it was not long before news of his betrayal reached the French shore. Simon was “imprisoned” by Louis XIV in France from 1707 to 1714.
When Queen Anne died in 1714, she was succeeded by the first of the Hanoverians, George I. Simon was encouraged by his clan to return to Scotland, where the Highlanders were engaged in a rebellion against the crown. Seeing his opportunity to further his own prestige, Simon joined the royalist cause and secured the imprisonment of the Earl of Seaforth (a title held by the Mackenzie Clan) and Alexander Mackenzie, his longtime rival for the title of Lord Lovat. Because of his role against the rebellion, Simon was awarded his title and estate back, and granted the ability to receive money from those on his estate.
Middle Temple Library’s collection of dockets from the House of Lords dockets date to this period, with the cases being between Simon, Lord Lovat and Kenneth Mackenzie, on behalf of Alexander Mackenzie. The dockets make mention of the “horrid rebellion” of the previous year, and that Alexander Mackenzie had been in prison for a year until being released. These cases were largely focused on the dispute between who had the rightful claim to the estate and Castle Dounie (the seat of Lord Lovat).
On the 23rd of July 1745, Charles Edward Stuart (“Bonnie Prince Charlie”) landed in Scotland, setting in motion the last phase of the Jacobite Rebellion. While Simon himself did not participate in the uprising, he sent Clan Fraser and his own son to support that cause in the Battle of Culloden (April 1746). Culloden ended in Scottish defeat, and Simon was persecuted by the monarchy for his role in supporting the Jacobite cause. He was eventually found hiding in a hollowed-out tree on an island in Loch Morar.
In my opinion, the last years of Simon Fraser’s life are the most amusing. After his capture, he was transported to London for his trial. At a stop at St. Albans he was sketched by William Hogarth, who portrayed Simon as an overweight and scheming man who looked like he did not regret the backstabbing choices that defined his life.
During his trial, Simon is quoted as saying “as I was for twelve years in Germany, and almost every day in conversation with His Majesty and his family,” yet he spent no time in Germany while he was in Europe, and most certainly had no interaction with the future Hanoverian court. Not unexpectedly, Simon was determined to use any means necessary to survive. When he was finally sentenced to death for treason against the crown, he is quoted as saying “[To the Lords] We shall not meet all in the same place again, I am sure of that.” Even in the face of the traitor’s death of hanging, drawing, and quartering, he was sure to have the last word.
On the day of his execution (which had been commuted to beheading by guillotine), spectator stands had to be built to accommodate the crowd who had come to see the end of this traitor. One of the stands collapsed, killing 9 spectators. This tragedy is rumoured to have greatly amused Simon, who found it amusing that this many spectators had been so desirous to see the end of an old man. Simon Fraser would be the last man to be beheaded in England, the sentence being carried out the 9th of April 1747.
“The common sense of mankind demands that law shall not stop with the punishment of petty crimes by little people. It must also reach men who possess themselves of great power and make deliberate and concerted use of it to set in motion evils which leave no home in the world untouched.”
These words were spoken exactly 75 years ago by one of the prosecutors – Robert H. Jackson – in his opening statement at the start of the Nuremberg trials. This particular quote arguably sets out to some extent the ethos of those trials which took place in the German city of Nuremberg between 1945 and 1949.
The main trial of 24 political and military leaders of the Nazi Germany regime before the International Military Tribunal (IMT) was held between 20 November 1945 and 1 October 1946. Among the defendants was Hermann Göring, the second-highest-ranked member of the Nazi Party and Hitler’s designated successor, Interior Minister Wilhelm Frick and Albert Speer, Hitler’s favourite architect. They were accused of conspiracy, crimes against peace, war crimes and crimes against humanity. The term genocide appeared for the first time in the indictments. Twelve of the accused were sentenced to death.
The main trial was followed by twelve subsequent trials before U.S. military tribunals. One hundred and seventy seven physicians, judges, industrialists, policemen, military personnel, civil servants and diplomats were put on trial, 24 of whom were given a death sentence.
Despite the controversies regarding, among others, the conduct of the process (‘victor’s justice’) and the utilisation of ex post facto criminal law, the Nuremberg trials had a profound effect on the development of international law. The legacy of the trials continued partly with the ad hoc establishment of international criminal tribunals, with the IMT in Nuremberg serving as a model for the International Criminal Court which was founded in 2002.
British judges at the Nuremberg trials
Two barristers, both members of Inner Temple, were among the judges at the Nuremberg Trials: Sir Norman Birkett and Sir Geoffrey Lawrence (Lord Oaksey).
Middle Temple Library has a biography of Norman Birkett, written by H. Montgomery Hyde (1964). This book also includes a chapter on Birkett’s involvement in the Nuremberg trials. It contains a quote from a letter to a friend in which Birkett reflected on the ongoing trials:
“The thing that sustains me is the knowledge that this trial can be a very great landmark in the history of International Law. There will be a precedent of the highest standing for all successive generations, and aggressor nations great and small will embark on war with the certain knowledge that if they fail they will be called to grim account. To make the trial secure against all criticism it must be shown to be fair, convincing and built on evidence that cannot be shaken as the years go past. That is why the trial is taking so much time and why documents are being piles on documents.”
The Library does not have a biography of Lord Oaksey; however, we do keep the Presidential Address which he gave as the President of the Holdsworth Club to the students of the Faculty of Law at the University of Birmingham in 1947. In his address he questioned: “whether the jurisdiction conferred upon the International Military Tribunal by the Charter of August 8th, 1945 was valid according to International Law; and, What is the result, in International Law, of such an assertion of jurisdiction.’
In one of his concluding remarks he said: “We may think that our individual influence is insignificant; but who can tell how far the influence of a great act or a great decision of an unknown individual will carry. Read the citations of the man who have won the V.C. Conflicts between what you believe to be right, and what the law permits, occur in the lives of most of us just conflicts occurred in the lives of German soldiers between the orders of Hitler and International Law. International Law is not yet backed by force, but surely we should not rest until it is accepted by the world without the necessity of force.”
The picture depicts from left to right: General Ion Nikitchenko (Russian judge), Sir Norman Birkett, Sir Geoffrey Lawrence, and Francis Biddle (United States judge). Credit: Alexander, Charles Office of the United States Chief of Counsel. Harry S. Truman Library & Museum
Books in the Library
Middle Temple Library holds several books and series related to the Nuremberg trials. This includes:
Report of Robert H. Jackson, United States representative to the International Conference on Military Trials, London, 1945 (U. S. Government Printing Office 1949)
A documentary record of negotiations of the Representatives of the United States of America, the Provisional Government of the French Republic, the United Kingdom of Great Britain and Northern Ireland, and the Union of Soviet Socialist Republics, culminating in the agreement and charter of the International Military Tribunal.
The trial of German major war criminals. Proceedings of the International Military Tribunal sitting at Nuremberg (Published under the authority of H.M. Attorney-General by His Majesty’s Stationery Office, 1946-49)
49 volumes of the International Military Tribunal trial records in English. The first volume contains basic, official, pre-trial documents together with the Tribunal’s judgment and sentence of the defendants. In the following volumes the Trial proceedings are published in full from the preliminary session of 14 November 1945 to the closing session of 1 October 1946.
Nazi conspiracy and aggression – various volumes (1946-1948)
A series of books which include a collection of documentary evidence and guide materials prepared by the American and British prosecuting staffs for presentation before the International Military Tribunal at Nuremberg. This series was donated to the Library by the US Chief Prosecutor, Justice Robert Jackson in April 1948.
Wilbourn E. Benton and Georg Grimm (eds.), Nuremberg. German views of the war trials (Southern Methodist University Press 1955)
The book consists of twelve essays or extracts from speeches by leading German jurists and statements, some of whom acted as defence counsel at the trials in Nuremberg.
Airey Neave, Nuremberg. A personal record of the trial of the major Nazi war criminals (Hodder and Stoughton 1978)
An account of the events at the Nuremberg trials given by soldier, lawyers and politician Airey Neave. He was a war organised of MI9 and the first English person to escape from Colditz Castle. He served with the IMT both by investigating and reading the indictments to the Nazi officials which were stood accused.
Philippe Sands, East West Street. On the origins of genocide and crimes against humanity (Weidenfield & Nicolson 2017)
Part historical detective story, part family history, part legal thriller, Philippe Sands guides us between past and present as several interconnected stories unfold in parallel. The first is the hidden story of two Nuremberg prosecutors who discover, only at the end of the trial, that the man they are prosecuting may be responsible for the murder of their entire families in Nazi-occupied Poland, in and around Lviv. The lives of these three men lead Sands to a more personal story, as he traces the events that overwhelmed his mother’s family in Lviv and Vienna during the Second World War. At the heart of this book is an equally personal quest to understand the roots of international law and the concepts that have dominated Sands’ work as a lawyer.
Thomas Morris Chester was born in Pittsburgh in 1834, the son of campaigners for the abolition of slavery. After his schooling, he travelled to Liberia in 1853, a country which had been partly founded by the black diaspora, a community of freed men and women and free-born individuals.
Credit: New York Public Library collections
It was not long before hostilities broke out in the American Civil War. Chester hastened back to the United States, where he found work as a recruiter of black troops to the Union army fighting against the slavery-supporting Confederate states to the south. He was in part responsible for the raising of the predominantly black 54th and 55th Massachusetts Infantry Regiments.
Later in the war, faced with widespread distrust of armed African-Americans, he made his way to the front line as a war correspondent, sending frequent despatches and making much of the heroism of those with whom he marched.
Following the war’s conclusion in 1865, he crossed the Atlantic to travel Europe, spending time at the court of Tsar Alexander II in St Petersburg, meeting Alexandre Dumas in Paris (whose forebears included both slaves and noblemen), before arriving in London in 1867. Here he was admitted as a student of the Middle Temple, moved into chambers, and enrolled in private classes to support his studies. In 1869, he twice petitioned to be Called to the Bar early in order to return to Liberia on urgent business for the President.
Image of Thomas Chester’s Admission to Middle Temple (Credit: Middle Temple Archive)
This keenness to leave London was perhaps in part a result of an apparently prejudiced response from some of his fellow Middle Templars. In April 1869, he was issued with an order to vacate his chambers, following the accusation by a Mr Yelverton, who lived on the same staircase, that he had had unsavoury women visit his chambers. In response, Chester denied this allegation forcefully, pointing to his respectable associations, and the fact that he had spent much of the time in question not in the Inn at all, but enjoying the hospitality of the royal and imperial courts of Europe.
He declared that ‘in no way has my deportment been inconsistent with the dignity or respectability of a member of the Middle Temple’, ascribing Yelverton’s accusation to ‘personal spite’, and concluding that ‘identified with a race whose whole history has been one of suffering and injustice, I feel that however sensibly this ordeal may affect me, a consciousness of my innocence will enable me to greet it with becoming fortitude’.
Parliament read his letter in May: while no decision is recorded, a note in the ledger records that he did vacate the chambers in June. Nonetheless, he was the following year Called to the Bar, becoming the first African-American at the English Bar. Returning to the US in 1871, he set up a legal practice and also involved himself in local educational and industrial affairs.
Barnaby Bryan, ArchivistThis biography is featured at the Library exhibition at Middle Temple Library – “Becoming a barrister. Overcoming barriers on the path to the Bar” (Jan – Apr 2020)
Patel was born between October 1875 and May 1876 (31 October 1875 was used in official documents) in Nadiad in the state of Gujarat. He grew up in a village together with his five siblings. Their parents had no formal education.
Patel visited several schools including a private English school. He was keen to learn English. ‘Socially, the language had already become a status symbol; but, more importantly, it had opened the gates to higher employment in service for Indians, or a more respectable and lucrative position in one of the newly thrown open professions – particularly the legal.’ He moved to Nadiad to finish his studies. Even though Patel did not pass his Matriculation for the first time, he succeeded a year later at the age of 22.
Patel started his legal career as a pleader in 1900 because he had neither higher education, nor the money to become a barrister straight away. He studied for three years to achieve this qualification. Then he and his wife moved to Godhra and, with borrowed money, Patel set up his first practice. After surviving bubonic plague, he moved to Borsad where he practiced criminal law. He kept his dream to become a barrister alive and worked hard to save money for his journey to England.
When he had saved enough, an unfortunate event happened. His passport and travel documents were sent by mistake to his brother. His brother, being older, took the opportunity to go to England to become a barrister first. Patel postponed his departure until his brother had returned from England, and finally left India in 1909 when he was already 34 years old, his wife having died in the meantime. He never married again and raised his two children with the help of his family.
After his arrival in England, he joined Middle Temple and allegedly studied at least 11 hours a day. Because he was not able to afford books, he used the services of the Middle Temple Library where he spent most of his days. He finished his exams in 1912 and was called to the Bar on 27 January 1913.
He returned to India in February 1913 and set up his practice in Ahmedabad. Patel was later involved in politics and joined Mahatma Gandhi in the Indian Independence movement. He became one of the leaders of the Indian National Congress and, because of his political activities, he was imprisoned several times.
After WWII, he was ‘a critical figure […] in the final negotiations with the British concerning the transfer of power, in the deliberations of the constituent assembly, and in the first government of independent India’. After India gained independence in 1947, he served as Minister of Home Affairs and the first Deputy Prime Minister. He was also known as Sardar (headman) Patel and ‘Iron Man of India’. He died after suffering a heart attack on 15 December 1950.
Recommended books
Balraj Krishna, Sardar Vallabhbhai Patel. India’s Iron Man (Rupa Publications India 2005)
Rajmohan Gandhi, Patel. A Life (Navajivan Publishing House, 1991)
This biography is featured at the Library exhibition at Middle Temple Library – “Becoming a barrister. Overcoming barriers on the path to the Bar” (Jan – Apr 2020)
John Edward Bankole Jones was born on 1 September 1936 in Essex as the child, as he puts it in his book, of ‘a white English unmarried mother and an African unmarried father from Sierra Leone’. He spent his early childhood in England. However, his mother did not acknowledge him publicly as her child and arranged for him to be placed in foster families and even in an orphanage. She paid for his care and visited him occasionally. Throughout his childhood, he called his biological mother ‘Aunt Winnie’ as he did not know that she was in fact his mother.
After the end of the Second World War, Jones was introduced to his real father who took him to Sierra Leone where Jones lived with him and his new wife. He attended various schools in Freetown and Bo. Adapting to living in a different country was challenging enough, but the fact that he was of mixed race made matters even more complicated. In England he was black, in Sierra Leone he faced the opposite problem: “I was half African, half English, a Creole boy from Freetown and sufficiently fair skinned to be called white man by many of them! This angered me, as I so wanted to be accepted as an African.”
He ran away from one of the boarding schools which his father selected for him and did not manage at first to get to the college of his dreams. It was his father who decided that his first son should study law and follow in his footsteps as he was himself a very successful lawyer in Sierra Leone. Before Jones could afford to embark on his journey to England, he had to raise some money, and so worked as a clerk in a hospital for two years.
He moved to England in 1960 where he started studying law and joined Middle Temple. He also met with his mother again. In his book, he describes his experience of Middle Temple, lectures, dining sessions (including one in which he met his future wife), and meeting fellow students from various parts of the Commonwealth. He also referred to many difficulties which he had to face, for example, finding suitable accommodation was complicated by the fact that, at the time, people of colour and Irish nationals were openly discriminated against on the rental market.
Jones was Called to the Bar in November 1963. While in London he also worked as a freelance journalist for the BBC. Even though he was not initially that keen on studying law and was merely fulfilling his father’s wishes, it determined his future life and career. Jones worked in the Sierra Leonean Foreign Ministry as a career diplomat and a practising lawyer. He returned to England in the late 1980s where he took a post at the Crown Prosecution Service before retiring in 1996.
Recommended book
John Edward Bankole Jones, A mother’s dilemma. An English mother. An African father. England, 1936 (Novum Pro 2018)
This biography is featured at the Library exhibition at Middle Temple Library – “Becoming a barrister. Overcoming barriers on the path to the Bar” (Jan – Apr 2020)
Anthony Patrick Babington was born on 4 April 1920 into an Anglo-Irish family in County Cork, and grew up in India and England. His father committed suicide as a result of alcoholism and poor financial decisions. Babington was 10 years old when his family suddenly found itself penniless and was forced to sell the estate.
Because of the changed family circumstances, he went to Reading School instead of Eton. During the Second World War, he served with the Royal Ulster Rifles and the Dorset Regiment and in 1944, he was severely injured in the Battle of Arnhem. Babington lost the use of all his limbs and the power of speech, seemingly ending his dream of becoming a barrister.
However, thanks to a speech therapist, he gradually learnt to speak again. Except for his right arm, his limbs became semi-functional and he used his left-hand for writing. He was later awarded the Croix de Guerre for his war service. Despite his long-term disability, Babington persevered and did everything to overcome the difficulties on the path to become a barrister. He took his Bar examinations using an amanuensis from the Bar Council, who sat next to his bedside in hospital taking his answers to questions.
Just as he passed the Final Examination, another misfortune struck – he was diagnosed with tuberculosis. He had to spend months in hospitals and a sanatorium. He recovered and returned to the Bar. However, after he secured a place in chambers, he suffered a pleurisy attack which required more long-term treatment and resulted in the removal of half of his lung.
He was finally called to the Bar by Middle Temple in 1948. He later became a stipendiary judge and then a circuit judge. In 1977, Babington was made a Bencher of Middle Temple and in 1995, an Honorary Bencher of King’s Inn in Dublin. He also had a career as a writer. ‘His most notable successes were his studies of courts-martial in the First World War. Books such as For the Sake of Example (1983) and Shell Shock (1997) did much to change public and official thinking about issues of alleged cowardice and desertion.’ Babington died on 10 May 2004 in London.
Recommended books:
Anthony Babington, Shell-shock. A history of the changing attitudes to war neurosis (Cooper 1997)
Anthony Babington, For the sake of example. Capital courts martial, 1914-1920 (Cooper 1993)
Anthony Babington, An uncertain voyage. An autobiography (Barry Rose Law 2000)
Anthony Babington, No memorial. The story of a triumph of courage over misfortune and mind over body (Cooper 1988)
This biography is featured at the Library exhibition at Middle Temple Library – “Becoming a barrister. Overcoming barriers on the path to the Bar” (Jan – Apr 2020)
Students Called to the Bar at the Middle Temple have, for centuries, come from all walks of life and all corners of the globe. Many have overcome significant challenges and defied the most daunting of odds to get there. The greatest barriers have related to individuals’ religion, ethnicity, nationality, educational background or social status.
Religion
Throughout the centuries in England and the United Kingdom, religious divergence from the established Anglican Church presented barriers of various kinds in numerous professional, political and cultural spheres, and the law was no exception. From Elizabethan persecution and distrust of Roman Catholics to the incompatibility of barristers’ wigs with traditional Sikh headwear, hurdles abounded for aspiring and practicing barristers of different religious faiths.
Ethnicity & Nationality
The barriers, hurdles and injustices prevalent in society arising from ethnicity, nationality and country of origin have been felt at the Middle Temple as everywhere else in public and private life in English and British society. From early in its history, the Inn was home to students from overseas, many of whom became figures of note both at home and in England and the United Kingdom.
While often welcomed and encouraged, nonetheless many difficulties and barriers remained for these young men and women on their journey to the Bar, from the segregation of Irishmen in Hall in the 18th century to certain Benchers’ persistent concerns over numbers of ‘non-European members’ in the 1920s, via the difficulties of the English climate and suspicious neighbours.
Education
Educational background and qualifications have often presented difficulties for prospective barristers. In the earliest centuries of the Inn’s history, there was no specific requirement for any educational background before admission. Later, Oxford and Cambridge dominated the educational background of those being Called to the Bar, as borne out by the many certificates of degree submitted by the offices of those universities accompanying the admission.
Following the revolution in legal education in the mid-19th century, a full set of standardised rules governing admission and Call to the four Inns of Court were introduced in the form of the ‘Consolidated Regulations’. These dictated educational requirements for those admitted to the Inns, as well as the criteria for qualification to be Called to the Bar.
Social status
From the earliest centuries, the issue of social status and class was a sensitive one at the Middle Temple. Associations with the higher strata of society, direct royal decree, and widespread snobbery presented barriers to admission to the Inn for those from different socio-economic groups.
It is written that Henry VIII once advised a suitor that while he could not himself elevate him in society, he should enrol at one of the Inns of Court, ‘where an admission makes one a gentleman’. Certainly, many admissions to the Middle Temple were the sons of the gentry and nobility, who seem chiefly to have sought a liberal education, useful contacts and a good time in London, rather than to practice at the Bar with any seriousness. King James I decreed in the 1600s that only the sons of gentlemen could be admitted to the Inns.
However, such decrees and standards were evidently flouted. The MP, historian and Master of the Revels Sir George Buck complained heartily about social standards in the Inns being diluted by the admission of the ‘sons of graziers, farmers, merchants, tradesmen and artificers’. The Benchers proclaimed in 1561 that any member of the Inn working as a servant would lose his chamber.
The Inn’s role as a (supposedly) rarefied finishing school for the upper echelons of the English and British class systems was inevitably to fade, as fashions changed, the force of antiquated regulations weakened and some of the more vociferous snobbery of the membership faded. While in 1734 the Bencher Charles Worsley noted that the Inns were seen as ‘places designed for the education of the sons of the nobility and gentry’, by 1758 William Blackstone recorded that ‘few gentlemen now resort to the inns of court’, suggesting that increasingly it was populated by those actually wishing to practice at the Bar.
Across the 18th and 19th centuries, the intake at the Middle Temple continued to evolve, and increasingly admissions came from the middle classes – the sons of professionals, merchants and the like. While social barriers continued to soften as scholarships were introduced in the 20th century, difficulties undoubtedly prevailed, including strict regulations governing the admission and Call of those employed in other professions or trades.
Barnaby Bryan, Archivist
To learn more about this topic visit our latest Library exhibition (Jan-Apr 2020) or contact Middle Temple Archive at archive@middletemple.org.uk
The path to the Bar has long been fraught with obstacles. Barriers to admission to an Inn of Court, the conditions imposed on those studying, and the requirements for Call to the Bar, have evolved over the many centuries, but rarely have things been straightforward.
Admission
The earliest admissions to membership of the Middle Temple are lost to recorded history. The Society’s formation is a matter of conjecture, but was likely a voluntary association of lawyers occupying the lands West of Temple Church following the vacation of the Knights Templar. The first known Middle Templar was one William Hankforde, a Serjeant-at-Law referenced in 1388 during the reign of Richard II, and by the early 1400s the Inn was certainly a place of education, students being admitted and serving their superiors in Hall until they had completed the first stage of their learning
Middle Temple Hall (Credit: Middle Temple Archive)
Official records of admission date from the earliest surviving minutes of the Inn’s Parliament in 1501 – John Mervyn, Voell and Boyfeld were admitted on the 2 November of that year. Admission came with associated fees, and one could choose to pay to be ‘specially’ admitted, thus avoiding obligations to engage in the Inn’s educational activities. This was popular, particularly in the 16th and 17th centuries, when many young gentlemen sought admission to the Inn with no real intention of being Called to the Bar or practicing the law. Various regulations, privileges, trends and pressures have governed admission to the Middle Temple over the centuries since.
Call to the Bar
In the absence of widespread printed legal publications, aural and practical legal education was a key element of the Inn’s activities in the 15th and 16th centuries. As a part of this curriculum, mock courts would be set up for ‘Mooting’, at which legal cases and problems would be pled and argued by members of the Inn. Junior students would sit within the ‘Bar’ or bench of the court, listening to the case, while those among their number who had undertaken sufficient study would stand outermost, at the bench, to plead these cases, coming to be known as ‘Utter Barristers’.
This gave rise to the phrase and practice of being ‘Called to the Utter Bar’ or, more briefly, being Called to the Bar. It is not quite clear when this status came to qualify those awarded it to plead in court, but it had become commonplace by the later 1500s, and was formalised towards the end of the century.
Call Day (Credit: Middle Temple Twitter)
Calling students to the Bar became the sole preserve and distinguishing practice of the four Inns of Court and a thread which runs right through their history to the present day, though the precise requirements and qualifications entitling a student member to be Called have changed many times over the centuries. Attendance at exercises and other educational activities were generally required, and dining in Hall was always, as it is today, an important aspect of membership and to a greater or lesser extent a pre-condition of Call.
The widespread reforms to legal education in the 19th century introduced many new elements to the life of a student for the Bar – officially appointed lecturers, for example, as well as standardised examinations which had to be passed before Call. It was also stipulated that all those Called to the Bar must have ‘kept’ twelve terms – dining in Hall a certain number of evenings in a term qualified it to be counted. This age-old tradition lives on in today’s Qualifying Sessions.
Barnaby Bryan, Archivist
To learn more about this topic visit our latest Library exhibition (Jan-Apr 2020) or contact Middle Temple Archive at archive@middletemple.org.uk
To “think like a lawyer” also requires one to “read like a lawyer,” navigating legal authorities efficiently and accurately. Books written to assist law students in developing this skill go back centuries. One important English legal method book was written by a Middle Temple Bencher in the seventeenth century: Sir John Dodderidge’s The English Lawyer (1631). By examining The English Lawyer alongside fellow Middle Temple Bencher Glanville Williams’ contemporary legal classic, Learning the Law, we can explore the remarkable persistence of teaching law students a particular way of reading and understanding the common law.
The English Lawyer
Sir John Dodderidge (1555–1628) was a well-respected judge of the King’s Bench.[i] During his lifetime, reading and private study were the primary means of learning the law. Aural exercises at the Inns of Court were “more perfunctory” and would cease altogether by 1700.[ii] The lack of formal direction in legal education meant that there was an important place for books like The English Lawyer, a 271-page quarto that was published posthumously in 1631. [iii]
Title page of The English Lawyer. Courtesy of the Benchers of the Honourable Society of the Middle Temple
There are two copies of this book at the Middle Temple Library, one bound in leather, and the other bound in parchment with other works by Dodderidge and some Star Chamber case reports. It carries the bookplate of “Richard Clark, Esq, Chamberlain of London.” There is also a handwritten table of contents dated 1761 with Clark’s name. Clark’s ownership of the book one hundred and thirty years after publication and its subsequent placement in the Middle Temple Library suggests it had enduring value for generations of law students and lawyers.
Table of contents with Richard Clark’s name, dated 1761. Courtesy of the Benchers of the Honourable Society of the Middle Temple
In The English Lawyer, Dodderidge advocates sustained time for reading. Time allows for reflection and guards against exhaustion:
What booteth it to reade much, which is wearinesse to the flesh; to meditate often, which is a burthen to the minde; to learne daily with encrease of knowledge, when as the matter learned is to seeke, at that time especially when we have most need of the use thereof? Memory therefore is the Chest of an inestimable treasure given from God for the preservation of all kinde of knowledge.[iv]
Time of day matters too: the morning is for committing information to memory and after dinner, “being silent and quiet,” is for memorizing speeches to deliver the next day.[v]
Both Latin and Law French are indispensable: Latin in order to read legal sources like the Magna Carta, and Law French in order to read law books. [vi] Dodderidge assumes his readers already know these languages: he includes untranslated excerpts of both Latin and Law French. He parallels the way in which common law treatises like Glanvill, De legibus et consuetudinibus Angliae, and Fleta order the common law with the divine order of the universe:
GOD in his most excellent worke of the frame of transitorie things, though hee hath furnished the world with unspeakeable variety, thereby making manifest unto all humane creatures, to their great astonishment, his incomprehensible wisedom, his omnipotent power, and his insearchable providence, yet being the God of order, not of confusion, hath admitted no infinitenesse in nature (howsoever otherwise it seeme to our weak capacities) but hath continued the innumerable variety of particular things under certaine specialls; those specialls under generalls; and those generals againe under causes more generall, linking and conjoyning one thing to another, as if by a chaine, even untill wee ascend unto himselfe, the first, chiefe and principall cause of all good things.[vii]
The common law might seem less refined than civil law, but not to Dodderidge. The law changes over time; better to have the law “not left in any other monument, than in the mind of man” so it can be applied anew as circumstances change.[viii] Such a system requires lawyers who are ready with the legal principles in their minds, so Dodderidge provides step-by-step instructions on how to extract the most important parts of a case:
First, after the case read, let us consider with our selves, & meditate in our minds, to what severall purposes the same case may bee applyed, and what matter, or severall matters the resolution of the Case can confirme. Which when wee have considered of, it shall be good for our memorie to commit them to writing […] Upon meditation had of this case, what it will prove, these Propositions or Rules following may easily be collected [.][ix]
Echoing his description of the divine order of the universe, Dodderidge asserts that law students can go from “the particular case, to the Speciall Reason, from that to a more generall, untill we finde out the very primarie ground of naturall reason, from whence all the other are derived.”[x] This draws from French logician Peter Ramus, whose method had spread to Oxford and Cambridge in the late sixteenth century. Ramism’s subsequent popularity at the Inns of Court coincided with increasing numbers of law students who first attended university, like Dodderidge, who had a B.A. from Oxford.[xi]
Dodderidge’s guidance would help law students create what was known as a commonplace book, in which passages would be organized by general and specific headings. Many Early Modern readers kept commonplace books to collect and make sense of what they read. As Robert Darnton explains,
Whenever they came across a pithy passage, they copied it into a notebook under an appropriate heading, adding observations made in the course of daily life…. They broke texts into fragments and assembled them into new patterns by transcribing them in different sections of their notebooks. Then they reread the copies and rearranged the patterns while adding more excerpts.[xii]
Creating legal commonplace books would help students make sense of the common law.
Learning the Law
First published in 1945, Glanville Williams’ Learning the Law has run to sixteen editions so far. Williams’ obituary described it as “a little introductory book about law studies which was, and still remains, indispensable reading for any would-be law student.”[xiii] Williams (1911–1997) had an illustrious career as a lawyer, reformer and scholar. Recent editions of Learning the Law still bear his name but are edited by lawyer and professor A.T.H. Smith, also a Bencher of the Middle Temple.
Williams tells students that learning to identify the ratio decidendi of a case is “an art gradually acquired through practice and study.”[xiv] The Latin phrase is an example of the persistence of Latin in law, though now, like Law French, it exists only in particular terms. Rather than suggesting a student should know either language, Williams directs students to dictionaries and guides on pronunciation.[xv]
While Williams agrees with Dodderidge that students must study cases in order to understand the law, today’s students have another option that Williams endorses: casebooks. First, there is so much more legal literature now.[xvi] Second, structured law courses compress learning into an “alarmingly short space”[xvii] with many hours needed for lectures, tutorials and other activities, in addition to reading the law. He concludes that students need only read some cases in their entirety and can rely on casebooks for the rest.[xviii]
While practicing lawyers have little need “to carry much law in the mind,” law students “must also be able to recite a considerable number of rules and authorities,” at least for exams.[xix] Like Dodderidge, Williams teaches specific mnemonic techniques, but they are adapted to the academic year:
you can learn the same amount in less learning time by distributing your learning evenly over term and vacation than by crowding your learning into the term and leaving the vacations an academic blank.[xx]
Reading should be done in small portions in order to allow time to assimilate new information into a coherent whole, and passages should be reread multiple times. [xxi] Rather than following Dodderidge’s advice to meditate silently on the reading, Williams advocates reciting aloud, drawing, perhaps unknowingly, on the Medieval technique of murmuring.[xxii]
The Continued Survival of Early Modern Reading?
Robert Darnton once described the Early Modern reader as reading in fits and starts, breaking up texts, and reassembling them to suit a purpose.[xxiii] This reading for action “compelled its practitioners to read actively, to exercise critical judgment, and to impose their own pattern on their reading matter.”[xxiv] While largely extinct, Darnton found that this type of reading still survived “in places.”[xxv] Could the legal profession be one of those places? When law students learn to brief cases and compile them into outlines for exams, they are hearing echoes of Dodderidge’s advice to “frame a Directory… fit and convenient both for the speedy finding of that we would seeke, and the ready having of that we can wish for.”[xxvi] While they may have new tools, law students continue to have to assemble their learning in a way that makes sense to them individually and makes sense of the common law as a whole. Perhaps these unique needs have meant that Early Modern reading techniques have persisted in this profession while they have been largely forgotten elsewhere.
This guest blog post was written by Amy Kaufman (B.A., LL.B., M.I.St., Head Law Librarian, Queen’s University, Kingston, Canada )*
[i] David Ibbetson, “Dodderidge [Doddridge], Sir John,” in Sir David Cannadine, ed, Oxford Dictionary of National Biography (Oxford University Press, 2005), online: <doi.org/10.1093/ref:odnb/7745>.
[ii] Wilfrid R. Prest, The Inns of Court under Elizabeth I and the Early Stuarts, 1590-1640 (Aylesbury: Longman, 1972) at 48, 124-41.
[iii] Sir John Dodderidge, The English Lawyer (London: Assignes of I. More Esq, 1631).
[xi] Richard J Ross, “The Commoning of the Common Law: The Renaissance Debate over Printing English Law, 1520-1640” (1998) 146 U Pa L Rev 323 at 346; AWB Simpson, “The Rise and Fall of the Legal Treatise: Legal Principles and the Forms of Legal Literature” (1981) 48 U Chicago L Rev 632 at 649-50; Richard J. Ross, “The Memorial Culture of Early Modern English Lawyers: Memory as Keyword, Shelter, and Identity, 1560-1640” (1998) 10 Yale JL & Human 229 at 287-95, 304; Ibbetson, supra note 1.
[xii] Robert Darnton, “Extraordinary Commonplaces”, New York Times Review of Books (21 December 2000), online: <www.nybooks.com/articles/2000/12/21/extraordinary-commonplaces/>.
[xiii] JR Spencer, “Obituary: Professor Glanville Williams,” Independent (17 April 1997), online: <www.independent.co.uk/news/people/obituary-professor-glanville-williams-1267628.html>.
[xiv] ATH Smith, ed., Glanville Williams: Learning the Law, 13th ed (London: Sweet & Maxwell, 2006) at 92.
[xxii]Ibid at 73; Mary Carruthers, The Book of Memory: A Study of Memory in Medieval Culture, 2nd ed (Cambridge: Cambridge University Press, 2008) at 205.
*Thanks to Giles Mandelbrote, Dr. Cynthia Johnston, Daniel Boyer, Sivan Tumarkin, and Simon Baron for their helpful comments on earlier drafts of the paper that this blog post is based on. I am grateful to Renae Satterley, Librarian of the Middle Temple, for all her help.
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