THE ORDER OF THE COIF
Between the Universities and the Judiciary of England in ancient times
there existed a close link, which is to be found in the _serviens ad
legem_ or Serjeant-at-Law. He was at once a graduate and a public
official concerned with the administration of justice either as a
recognized pleader or as a judge, for, whether in the higher or lower
grade, he owed his credentials to the Crown.
We will consider the Serjeant-at-Law in the first place in his academic
character, in which he might rank as a B.C.L. or as a Doctor Legum,
though this is not quite what we intended by graduation. Law, like the
other liberal professions, has always been regardful of outward and
visible signs. This being so, we trust we have committed no very serious
sin of plagiarism in borrowing as the heading of this chapter the title
of a well-known work by Serjeant Pulling, one of the last survivors of
the order. At any rate, the plagiarism is open and avowed.
Though the most significant, the coif was not the only exterior note of
the Serjeant, in contradistinction to the laymen; and, in order to show
how he appeared, when in full professional attire, we think we cannot do
better than quote from a fifteenth-century lawyer, one of our greatest
authorities on such matters--Serjeant Fortescue. Writing about 1467, he
says of his class that they were "clothed in a long robe, priest-like,
with a furred cape about the shoulders; and therefrom a hood with two
labels, such as Doctors use to wear in certain Universities, with the
above-described quoyf." The "long robe"--the proverbial emblem of the
legal profession--evidently corresponds with the cassock, the "furred
cape" to the tippet, and the "labels" probably belonged, not, as
Fortescue seems to intimate, to the hood, but were rather the strings of
the coif, which were the attribute of Doctors of Laws. Here we have all
the marks of graduation--that is, the process necessary for the lawful
exercise of a learned calling--and graduation might be equally
accomplished in the schools of Oxford and Cambridge and the Inns of
Court.
As regards the remainder of his dress, the Serjeant-at-Law might pass
for a Master of Arts or a Bachelor of Divinity. The distinguishing
feature is the coif, and, wherever it is discovered, it may be safely
accepted as a criterion. Thus in Gosfield Church, Essex, there is an
interesting brass of Thomas Rolf (d. 1440), who is represented as
wearing a cassock, sleeved tabard, tippet, hood, and coif. The
last-mentioned forms a circle round the head, and attached to it are two
loops or lappets, which appear below the hood. Boutell has figured this
brass, which he states to be that of a serjeant-at-law. The inscription,
which has the words _legi professus_, already pointed to that
conclusion, Rolf being devoted to law, as, under the circumstances, he
might have been devoted to religion.
To anyone interested in the study of origins the symbolic value of the
coif is very considerable. Like the _pileus_, it may be traced back to
the ecclesiastical skull-cap, the corollary of tonsure. In the Dark Ages
the lawyers were almost invariably clergy, in the modern sense of the
term. By the thirteenth century the original skull-cap, while retaining
its general shape, had developed into a head-dress of ampler
proportions, and as such, might, and did, serve as a complete disguise
of the clerical calling. For that reason it was forbidden to the clergy
by Othobon's Constitutions (1268), except as a night or travelling cap.
Like the Serjeant's coif of more recent date, it was white in colour;
and, as an appanage of the legal profession, it was worn by judges and
pleaders alike. The strings were used to tie the coif to the head, and
were fastened under the chin. It has been plausibly suggested that the
Black Cap which judges assume, when passing sentence of death, was a
device for concealing the coif, ecclesiastical justices being debarred
from pronouncing capital sentence; and in this connexion we may recall
the constitutional tradition, which requires the Bishops to withdraw
when issues involving life or death come before the Parliamentary
Courts.
We have spoken of _graduation_ in relation to law. As an explanation of
the phrase, nothing could be more apt than a passage in Coke's "Third
Report," which, although somewhat lengthy, deserves to be cited _in
toto_:
"As there be in the Universities of Cambridge and Oxford divers degrees,
as general Sophisters, Bachelors, Masters, Doctors, of whom be chosen
men for eminent and judicial places, both in the Church and
Ecclesiastical Courts, so in the profession of the law there are
Mootemen [i.e., students], which are those that argue readers' cases in
houses of Chancery, both in terms and grand vacations. Of Mootemen,
after eight years' study or thereabouts, are chosen Utter-barristers; of
these are chosen Readers in inns of Chancery. Of Utter-barristers after
they have been of that degree twelve years at least, are chosen Benchers
or Ancients; of which one, that is of the puisne sort, reads yearly in
summer vacation, and is called a Single Reader; and one of the Ancients
that had formerly read reads in Lent vacation and is called a Double
Reader, and commonly it is between his first and second reading about
nine or ten years. And out of these the King makes choice of his
Attorney and Solicitor General, his Attorney of the Court of Wards and
Liveries, and Attorney of the Duchy; and of these Readers are Serjeants
elected by the King, and are, by the King's writ, called _ad statum et
gradum servientis ad legem_; and out of these the King electeth one,
two, or three, as please him, to be Serjeants, which are called the
King's Serjeants; of Serjeants are by the King also constituted the
honourable and reverend Judges and sages of the law. For the young
student, which most commonly cometh from one of the Universities, for
his entrance or beginning were first instituted and erected eight Houses
of Chancery, to learn there the elements of the law, that is to say,
Clifford's inn, Lyon's inn, Clement's inn, Staple's inn, Furnival's inn,
Thavie's inn, and New inn; and each of these consists of forty or
thereabouts; for the Readers, Utter-barristers, Mootemen, and inferior
Students are four famous and renowned Colleges or Houses of Court,
called the Inner Temple, to which the first three Houses of Chancery
appertain; Gray's Inn, to which the next two belong; Lincoln's Inn,
which enjoyeth the last two but one; and the Middle Temple, which hath
only the last; each of the Houses of Court consists of Readers above
twenty; of Utter-barristers above thrice so many; of young Gentlemen
about the number of eight or nine score, who there spend their time in
study of law and in commendable exercises fit for gentlemen; the Judges
of the law and Serjeants, being commonly above the number of twenty, are
equally distinguished into two higher and more eminent Houses, called
Serjeant's Inn; all these are not far distant from one another, and
altogether do make _the most famous university for profession of law
only_, or of any one human science, that is in the world, and advanceth
itself above all others _quantum inter viburna cupressus_. In which
Houses of Court and Chancery the readings and other exercises of the law
therein continually used are most excellent and behoofful for attaining
to the knowledge of these laws; and of these things the taste shall
suffice, for they would require, if they should be treated of, a
treatise by itself."
This passage has been cited for the special purpose of exhibiting the
close affinity between the Universities and the Law, for which, it will
be generally conceded, it is admirably suited. It is necessary, however,
that it should be pointed out that the learned Coke was writing at and
of a period when the system was fullblown. In the early period when
"hostels" for apprentices of the law began to be, no distinction
obtained into Inns of Court and Inns of Chancery. These apprentices
were, originally, just what the term implies, but their importance
became greater until their representative is now the ordinary
barrister-at-law.
In the year 1292--a date of some significance for us, not only in the
immediate context, but with reference to other portions of the work--the
King (Edward I.) promulgated an ordinance "De Attornatis et
Apprenticiis" in which he enjoined on John de Metingham and his fellows
that they should, at their discretion, "provide and ordain from every
county certain attorneys and lawyers of the best and most apt for their
learning and skill, who might do service to his court and that people,
and those so chosen only, and no other, should follow his court and
transact the affairs therein, the said King and his council deeming the
number of seven score sufficient for that employment, but leaving it to
the discretion of the judges to add to or diminish the number, as they
should see fit" (Dugdale's Tr.).
Serjeant Pulling is somewhat perplexed concerning the precise position
of the _apprenticii ad legem_ at the time of this edict. He, however,
hazards the conjecture that "by the apprentices were meant the advanced
students, or learners of the law, who, as pupils or assistants to the
Serjeants of the Coif, had obtained an insight into practice, and
perhaps also there were included the more irregular followers of the
law--the dilettante practitioners and Cleri Causidici, who continued to
follow the law in the secular courts in spite of repeated prohibitions
and objections."
With the foundation and growth of the Inns of Court, the
apprentices--the better sort at least--obtained full recognition as
practitioners; and at the close of the fourteenth century their
reputation had become so considerable that the great apprentices had
formed themselves into a distinct order, in which they stood next to
serjeants-at-law, the gradation being as follows:
(i) Serjeants-at-law.
(ii) Nobiliores, or great apprentices.
(iii) Other apprentices who followed the law.
(iv) Apprentices of less estate, and attorneys.
The term "apprentice-at-law" yielded to _apprenticius ad barros_, and
that again to "utter-barrister," corresponding to the modern
"barrister-at-law." Not all the students admitted at an inn were
"called" to the bar, the truth being that only a small proportion
received that distinction. In 1596 an arrangement was made by the Judges
and Benchers of the four Inns of Court, by which it was agreed:
"That hereafter none shall be admitted to the Barr but only such as be
at the least seven years' continuance, and have kept the exercises
within the House and abroad in Inns of Chancery, according to the orders
of the House:
"_Item_, that there be in one year only four Utter-Barristers called in
any Inne of Court (that is to say) in Easter Term, two, and, in
Michaelmas Term, two," etc.
Again, certain orders, made for the better government of the Inns of
Court and Chancery in 1624 provided that not more than eight members of
any one inn should be called to the Bar in any one year, and that no
Utter-Barristers, except such as had been Readers in Houses of Chancery,
should begin to practise publicly at any bar at Westminster until they
had been three years at the bar.
As regards the Inns of Court, their precise origin cannot be clearly
ascertained. We hear of them in the reign of Edward III., mention being
made in the Year Book of 1354 of "les apprentices en Hostells." In the
opinion of Lord Mansfield they were at the outset "voluntary societies,"
for they "are," he says, "not corporations and have no charter from the
Crown." Serjeant Pulling holds that the smaller houses were hired by the
apprentices, and then by lease or purchase possession became permanent.
The greater houses, he thinks, had a similar history. This belief is
borne out by what happened in the case of the Temple. In 1324, when the
King granted the Knights Hospitallers the New Temple, the latter let the
Temple to "divers apprentices of the law that came from Thaveis Inn in
Holborn." This was evidently in existence at the time. How long it had
existed prior to 1324 cannot be stated, but in his will dated 1348, and
enrolled in the Court of Hustings of the City of London, John Tavye,
citizen and armourer, devised to his wife Alicia "illud hospitium, in
quo apprenticii legis habitare solebant." In all probability,
therefore, the existence of the inn did not go back farther than the
lifetime of the armourer. The notice seems to show also that the inns
received their names not from Serjeants, as fathers of the apprentices,
but from the actual owners.
Till about the commencement of the sixteenth century we are wholly in
the dark as to the management of the inns. We then hear of governors,
treasurers, and the control of affairs in the different houses
lay with the senior members of the societies, who were styled
ancients or benchers. The apprentices may be regarded as inchoate
Serjeants--Serjeants in the making, persons on the way to become
Serjeants. The Serjeants had their own inns; and, on joining the
brotherhood, the newly-appointed dignitary was rung out of the inn to
which he had previously belonged by the chapel bell.
From Fortescue's "De Laudibus Legum Angliæ," written in France after his
withdrawal to that country with Queen Margaret in 1463, we learn that
the rule was, when the degree of serjeant-at-law was to be conferred,
for the Chief Justice of the Common Pleas, with the consent of the other
justices, to nominate for the purpose seven or eight of the most
experienced professors of the common law. Thereupon the Lord Chancellor
issued a writ to each of them, summoning them to appear under a heavy
penalty, and take upon themselves the state and degree of
serjeant-at-law. On duly presenting themselves they affirmed on oath
that they would be ready on a day and at a place, which were then
determined, to assume the said state and degree, and that they would
_give gold_ according to custom of the realm in such cases ("dabit aurum
secundum consuetudinem regni in hoc casu usitatam").
On the date in question a feast was begun, which continued for seven
days, and this, with other ceremonies, involved an expenditure, on the
part of each debutant of some 1,600 nobles or 400 marks. A portion of
this amount went to the purchase of gold rings, and Fortescue tells us
that, when he was called to the degree of serjeant, the rings he gave
away cost him £40. These differed in value in proportion to the dignity
of the persons to whom they were presented. The most costly were those
of the value of 26_s._ 8_d._, which were given to every prince, duke,
and archbishop attending the ceremony, as also to the Lord Chancellor
and Treasurer of England. The Keeper of the Privy Seal, the Chief
Justices, the Chief Baron of the Exchequer, and every earl and bishop
present received one of the value of 20_s._; while every baron of
Parliament, every abbot, every distinguished prelate (_notabili
prelato_), and every eminent knight there present had one of 13_s._
4_d._ Similar gifts were made to the Keeper of the Rolls of the King's
Chancery, and to each of the justices. Rings of inferior value were
presented to every baron of the Exchequer, chamberlain, officer, and
principal person serving in the King's courts, according to their rank;
and thus almost every clerk, especially if he were of the Common Pleas,
obtained a share of the new Serjeant's liberality. His private friends
were not forgotten, rings being distributed among them also. It has been
computed that the sum of 400 marks in 1429 would be equivalent to £2,660
of our present money; hence we need not wonder that lawyers either too
poor or too economical to welcome this heavy burden sought to evade the
honour. In the time of Henry V. six grave and famous apprentices
respectfully declined the elevation, but in vain. They were called
before Parliament, and there bidden to take upon them the state and
degree of Serjeant. Eventually they did so, and certain of them, as we
learn from Sir Edward Coke, worthily served the King in the principal
offices of the law.
The reader will not fail to have observed the expression "give gold."
This, with the particulars adduced respecting the worth of the rings,
suggests that the articles were esteemed, not for their commemorative
character or artistic interest, but for their sheer pecuniary value.
That this was the case is pretty evident from the fact that, in the
reign of Charles II., Lord Chief Justice Kelynge, addressing one of the
new Serjeants, rebuked them for their gift of rings _weighing_ no more
than 18_s._ each; and he cited Fortescue as saying, "The rings given to
the Chief Justices and the Chief Baron ought to weigh 20_s._ a-piece."
To prevent misunderstanding, he added that he "spoke not this, expecting
a recompense," but that it might not be drawn into a precedent. In point
of fact, Fortescue refers to value, not weight; but it appears to have
been customary to calculate the value of the rings by the worth of their
weight in gold.
The creation of Serjeants took place in the hall of the Serjeants' Inn,
of which the Lord Chief Justice for the time being was a member. The
newly called arrived in a black robe, attended by his clerk, who
brought with him on his arm a scarlet hood and a coif. The Chief
Justice, having solemnly addressed the Serjeants, began the ceremony of
investiture, first placing the coif on the head of each of them and
tying it under his chin; and then putting the hood upon his right side
and over his right shoulder. The Serjeant thereupon departed, and
doffing his black robe assumed a parti-coloured robe of black and murrey
(dark red) and hood of the same colours. Thus arrayed he proceeded to
Westminster, his man carrying before him the scarlet hood and cornered
cap upon it.
Cornered caps were worn by the judges and Serjeants when they attended
church in state. Down to the time of the Reformation it was the practice
for them to visit St. Thomas of Acons in Cheapside, and, having made
their offerings there, to go on to St. Paul's, where they offered at the
rood of the north door at St. Erkenwald's shrine. This custom was always
observed on the admission of new Serjeants, who set forth on this pious
errand after dining. At St. Paul's each of them was appointed to his
pillar in the nave of the cathedral by the steward and controller of the
feast. It was at the parvise, or porch, of old St. Paul's, or at their
allotted pillars, that Serjeants met their clients for consultation.
They assisted the rich _pur son donaut_ and the poor for nothing, and
there appears to have been no question of any intervention by attorneys.
In this connexion it may be worth while to cite the ancient oath which
was taken by members of the order:
"You shall swear well and truly to serve the King's people as one of the
serjeants-at-law; and you shall truly counsel them that you be retained
with after your cunning; and you shall not defer, or delay their causes
willingly, for covetousness of money, or other things that may turn you
to profit, and you shall give due attendance accordingly; so help you
God."
A few months before the Great Fire of London, in which old St. Paul's
was consumed with its parvise and pillars, Dugdale wrote: "At St.
Paul's each lawyer and serjeant at his pillar heard his client's cause
and took notes thereof upon his knee, as they do at Guildhall at this
day." He adds: "After the Serjeants' feast ended they do still go to
Paul's in their habits, and there choose their pillar whereat to hear
their client's cause (if any come) in memory of that old custom."
Naturally, the Order of the Coif was jealous of its distinctions and
privileges; and the following incident, for which we are indebted to the
late Mr. Serjeant Ballantine, will serve to illustrate the point.
"I have now," he says, "taken my readers back to my old inn. I will
venture to surround it with all the halo to which it is entitled. We
were, and had from time immemorial been, connected with the Corporation
of the City of London, and inasmuch as the greatest compliment
appreciated by that august body was annually paid to us, we were
doubtless once upon a time of no small importance ourselves. We received
an invitation to dine at the Lord Mayor's on November 9, and arrayed in
robes that gave us as much claim to notice as men in armour, and,
preceded by a personage known as the City Marshal, we were assigned
seats amongst the principal guests at that great festival, and it was
really a sight worthy of notice....
"Upon this occasion it was the office of one of the high officers of the
Corporation, no less a dignitary than the Common Serjeant[8], personally
to convey to us the invitation on the first day of Michaelmas term at
our inn. Sir Thomas Chambers, when he occupied this office, was
accustomed to commit a most amusing blunder. Whether moved by some idea
of his own dignity, or acting under civic instruction, I am unable to
say, but when he came to perform his task he addressed himself solely to
the Judges, not even naming the Serjeants, although the former were
asked only in that capacity, and were included with the Lord Chancellor
and the Equity Judges specially in their official capacity, and invited
by the Lord Mayor himself personally. The Common Serjeant was not,
probably, aware that, whilst it in no respect derogated from his dignity
to convey a message from one great corporation to another, he was
performing the duty of a butler in conveying an invitation to
individuals belonging to it. There was a worthy member of our body, Mr.
Serjeant Woolrych, who had written a most exhaustive book upon the
sewers, and was very learned about City customs, and who exercised his
mind greatly upon the blunder into which the Common Serjeant had
tumbled, and wanted me, as treasurer, to call attention to it. He
considered that this was due not only to common humanity, but to our
dignity. I was, however, deaf to his entreaties. I do not remember
dining upon more than one occasion in my official capacity. On this
occasion the scarlet robes and heavy, cumbrous wig, necessary to be
worn, destroyed all possibility of enjoyment."
Serjeant Ballantine alludes to himself as treasurer. He was the last to
fill that office, and it fell to his lot, as such, to wind up the
affairs of the ancient society, and so, in a sense, to perform its
obsequies. The fiat had gone forth that no judge should be required
henceforth to take or to have taken the degree of serjeant-at-law (36
and 37 Vict., c. 66, s. 8), and, as this was tantamount to the abolition
of the order, it was resolved to sell the property of the inn. The last
meeting was held on April 27, 1877.
JUDICIAL