Early Nottinghamshire Judges
By Douglas P. Blatherwick
THE position of Nottinghamshire in legal history is one of considerable interest. The Common Law of England is based upon the ancient customs of all the various tribes and races who have inhabited these islands. The county being within comparatively easy reach of the coast, both by river and by land, has countless traces of the handiwork of the successive bands of invaders who came across the North Sea, from the lands at the mouth of the Elbe and the Weser, from the shores of Denmark and Norway, in the six centuries which preceded the Norman Conquest.
These folk pushed out or destroyed the semi-Romanized Britons, and it is a moot question whether the supplanted people left any customs that were adopted by their successors, who settled down to build up a local civilization of their own, even differing in minor degrees from that of their neighbours and kinsmen.
The enforcement of good customs was left to the primitive moots of the Hundred and the Shire in which the elders of the neighbourhood "declared folk-rit" in their dooms. The natural consequence of this primitive and ineffectual form of justice—if so it may be called—was that the blood feud prevailed, and that every petty tribunal had its own local rules and customs.
Then came 1066 (blessed date) and all that! William set himself to win the confidence of the people and in so doing promised that he would encourage the continuance of their native law. In his Charter to the Burghers of London, he said: "I do you to wit that I will that ye two (French as well as English Burghers) be worthy of all the laws that ye were worthy of in King Edward's days." It is interesting to note that a very distinguished Common Law Judge of a later date, Sir Edmund Molyneux, whose family lived at Hawton, and who himself lived at Thorpe, could trace his lineage back to one of the men who came over with William the Conquerer.
But the Norman influence was immense. The law might be English; but it had to be uniform and well administered. At any rate within two centuries after the Conquest, the kings had set up, not merely a system of central courts and judges in London, but a system whereby those same judges (often aided by local dignitaries) went regularly round the shires three times a year and brought justice to the doors of the people.
It was during this period of the growth and consolidation of the Common Law that we find quite a large number of judges from this county. The justice that they administered was to a large extent "natural justice." Each judge would discover some slight difference in local custom wherever he went, but he contented himself with rubbing out here and there small differences, and on returning to London there can be no doubt that he and his fellow judges put their heads together and straightened out absurdities and gradually harmonized the whole. The task, therefore, of these early judges was no easy one and when we consider the possible means of transport and the robber-infested highways, the value of these men is unbounded. The experience which befell Richard de Willoughby was no uncommon one. Willoughby was a Member of Parliament for the county when he was appointed Lord Chief Justice of the Common Pleas of Ireland, but on Edward III coming to the throne returned to this country and on many occasions acted as Chief Justice. In 1331 whilst he was journeying to Grantham on his judicial duties he was attacked by one Richard Fulville who forced him into a neighbouring wood, where a gang of lawless men compelled him to pay a ransom of 90 marks for his life. A portrait of this early judge in plain black doublet and trunk hose, basket hilted sword and sash until recent years hung in Wollaton Hall.
The earliest of the famous Nottinghamshire judges was Ralph Bassett, Lord of Colston. He is stated, according to Ordericus Vitalis to have been raised from a humble position. That he became a very important figure is clearly evidenced by the fact that the village of Colston affixed his name to its own. Bassett was entrusted with the task of carrying out King Henry the First's campaign against robbers, and the Anglo-Saxon Chronicle states that in this he acted with great severity. The following extract will serve as an example.
"A.D. 1124. The same year after Saint Andrew's Day, and before Christmas, Ralph Bassett and the King's Thanes held a Witenagemot at Huncothoe in Leicestershire, and they hanged more thieves than had ever before been executed in so short a time, being in all four and forty men and they deprived six men of their eyes and other members."
In doing this rhey were only acting in accordance with the express instructions of the King. It would be interesting to know what solution he would give to the problem of car bandits, but that is an idle question, for he died at Northampton and is buried in the Chapter House there.
I have mentioned the itinerant judges who toured the country three times a year. Ralph Murdoc, John de Daivill, John de Lexington and Robert de Lexington were such.
John de Daivill, although Justice-itinerant in the County of Westmorland, was himself a very turbulent character. As a result of joining the barons in the early struggles against King John he had his lands confiscated twice, but he must have found favour again for he was later appointed Justice of the Forests above the Trent. In the later struggle between the Barons and the King he was a violent partisan, like other Notts, landowners, of the barons, and even continued so after the battle of Evesham. Daivill was defeated, however, at Chesterfield and for the third time saw his lands taken away from him. In the "Dictum of Kenilworth" he made his peace. As if to prove that he was still independent he subsequently married Maude, widow of Sir James de Aldithley without licence and was in consequence fined the enormous sum of two hundred pounds.
The two Lexington brothers were also Nottinghamshire men. John was connected with a remarkable crime at Lincoln. Before he was elevated to the judicial bench in 1248 he was Lord Keeper. During this time a boy named Hugh was crucified at Lincoln where there were a large number of Jews. Suspicion fell upon them largely, no doubt, in consequence of a similar outrage which had occurred at Norwich a few years previously. The clergy buried the boy next to the tomb of the famous Bishop Grosseteste and as in the Norwich case there were astounding stories of miracles which the body was said to perform. At any rate the news spread to the King and he sent John de Lexington to investigate. Lexington eventually obtained, under promise of pardon, a confession from one named Jopin. After the examination of numerous other Jews the pardon was forgotten and Jopin put to death. We read that Robert de Lexington was also sent to Lincoln, ostensibly to redress the grievances of the people of the North of England, but in fact to refill the Royal Exchequer. Whilst at Lincoln he caused the grave displeasure of the said Bishop Grosseteste. Apparently the Dean had made so bold as to reprimand Lexington for hearing capital causes on a Sunday, for which he was himself summoned and punished. Whereupon Grosseteste, who cared neither for Pope nor Judge, wrote a strong letter of rebuke; a letter which is still preserved among the Grosseteste papers.
The judges who followed came in that great period of Common Law consolidation between the reigns of Edward I and Henry VII (i.e., from 1272 to 1485). It was during this period that Courts like the famous Star Chamber came into existence to cope with the terrible excess of disorder and turbulence which swept the country. We find, too, the first strong signs of the coming of that system of law known as Equity.
Two of the leading judges at that time were members of the Markham family. Sir John Markham who was made a Judge of the Common Pleas in 1397, drew up the necessary instrument for the deposition of King Richard II. He is also stated, not without opposition, to have been the judge who committed Prince Henry to prison. Amongst the papers of Francis Markham is the following: "In H. the IV's time Sir John Markham was Chief Justice of Common Pleas when a servant of ye Prince of Wales for coyning of money was in Newgate to be judged before him; ye Prince sendeing to have him released, ye judge refused; ye Prince with an unrulie route came and required it, ye judge refused; ye Prince struck ye Judge on the face, the judge committed ye Prince to ye Fleet; ye King being told it thanked God he had so good a judge and so obedient a sonne to yield to ye law."
Sir John's son, also named Sir John, followed in his father's footsteps. In the days when the profession of the law was regarded, with some truth, as the "highway to riches and distinction," young Markham made rapid progress and soon became Chief Justice. His undoing, however, was his strict honesty. He refused to find Not Guilty a Lancastrian who was accused of high treason and had been committed to the Tower, even though the King had said the prisoner must be released. As a matter of fact Sir John Markham sent him to prison and fined him heavily. In consequence the judge was himself removed from the judicial bench. Fuller relates the following interesting and amusing incident. "A lady would traverse a suit of law against the will of her husband, who was contented to buy his quiet by giving her her will within, though otherwise persuaded in his judgment the case would go against her. This lady, dwelling in the Shire town, invited the judge to dinner, and (though thrifty herself) treated him with sumptuous entertainment. Dinner being served, and the cause being called, the judge clearly gave against her; and when in passion she vowed never to invite a judge again, 'Nay, wife,' said he, 'vow never to invite a just judge any more.' "
The Staunton family is dealt with more fully in earlier issues of this magazine, but I must not pass over Henry or Hervey de Staunton who, says Lord Campbell, "filled a greater variety of judicial offices than any lawyer I read of in the annals of Westminster Hall." He began as an itinerant judge in Cornwall in 1302. In 1306 he was made a puisne Judge of the Common Pleas and summoned to attend the Coronation of Edward II in 1308. In 1323 we find him holding both the offices of Chancellor of the Exchequer and Chief Justice of the King's Bench. Later he became Chief Justice of the Common Pleas.
During this period there occurred what Maitland has called "our one great judicial scandal." Edward I was met in 1285 with a clamor miserorum "crying shame on the savagery, injustice and venality of the royal officers great and small," including the Judges. So the King did a thing that has been copied hundreds of times since —he appointed a commission! The commission was thorough and proved that many of the complaints were well founded and, strange though it may seem, their finding was carried into action and the offending parties were severely punished. Incidentally, the fine obtained from Chief Justice Hengham is traditionally believed to have been used in building the clock now known as "Hengham's Clock."
There appears to have been at least one Nottinghamshire judge mixed up in this unsavoury affair. Unfortunately all this occurred before the cheaper Press employed Special Commissioners and our knowledge is very scanty. Sir John de Lovetot came from Wysall. He was, according to Thoroton, sometimes called Clark on account of his learning in the law. At any rate he was in 1275 appointed Justice of the Common Pleas and in 1278 made one of the Justices of the Bench at Westminster at an annual salary of 50 marks. When the commission appointed by the king was formed, charges of extortion and other crimes connected with his office were proved against him which resulted in his imprisonment in the Tower where he remained until he had paid a fine of 3,000 marks.
There were other judges who hailed from Nottinghamshire in these early days, but of whom very little of interest is known.
It is of interest to note that after 1485 there have been comparatively few judges from this county. Whether this fact is a coincidence or due to some cause I cannot say. In days gone by judges were largely chosen as a result of political bias and no doubt that must have had some influence on the situation, and probably more of the sons of the wealthy landowners turned their interests to agriculture. Be that as it may, Nottinghamshire can hold a proud place among the counties of England for the work that our forefathers did in the building up of a system of justice that is second to none in the whole world.