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Home , Edmund Plowden, Gilbert Gerard (judge), Inner Temple, Inns of Chancery, Inns of Court, John Fortescue (judge)

The Catholic

Volume 3 Number 1 Volume 3, January 1957, Number 1 Article 7

Edmund Plowden, Master Treasurer of the

Richard O'Sullivan

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MASTER TREASURER OF THE MIDDLE TEMPLE (1561-1570)

RICHARD O'SULLIVAN

D ENUO SURREXIT DOMUS: the Latin inscription high on the outside wall of this stately building announces and records the fact that in the year 1949, under the hand of our Royal Treasurer, Elizabeth the Queen, the Hall of the Middle Temple rose again and became once more the centre of our professional life and aspiration. To those who early in the war had seen the destruction of these walls and the shattering of the screen and the disappearance of the Minstrels' Gallery; and to those who saw the timbers of the roof ablaze upon a certain -midnight in March 1944, the restoration of Domus must seem something of a miracle. All these things naturally link our thought with the work and the memory of Edmund Plowden who, in the reign of an earlier Queen Elizabeth, devoted his years as Treasurer and as Master of the House to the building of this noble Hall. Though his biography has never been written, his name has always been held in benediction among us. In Plowden Building is located the Treasury, from which the Inn is ruled; in the Hall corridor is a lamp of-remembrance bearing his arms; his bust is always before us here; and the main window that looks out upon the garden and the river beyond is crowned again by the arms of Plowden, on which an augmentation of two fleurs-de-lis carries memories of the Crusade, and the achievement of an ancestor at the siege of Acre which won the gratitude and the good will of Richard Coeur-de-Lion. The Plowdens are an old family with origins as early as the Saxon time. Edmund Plowden was born in 1518 and, always a firm adherent of the ancient faith, was destined to live through the political and religious -revolutions of the reigns of Henry VIII, Edward VI, Mary and Elizabeth. He married Katherine, daughter of William Sheldon of Beoley in , and was the father of three

:A reading given in the presence of Her Majesty the Queen Mother at the Middle Temple Hall, November 12, 1952. EDMUND PLOWDEN

boys and three girls. He rebuilt the Hall at "In the 20th year of my age," says Plow- Plowden at the same time as he was plan- den, "I entered upon the study of the law." ning the Hall of the Middle Temple.' His It was a critical moment in English legal descendants still own and occupy the old history. "In 1535," Maitland tells us, "the Hall and the estate at Plowden;2 and one year in which More was done to death, the of his descendants, Sir Edwin Plowden, is Year Books come to an end: in other words, the Chief Planner of our modern welfare the great stream of Law Reports that has state. been flowing for near two centuries and a Of the early education of Edmund Plow- half, ever since the days of Edward I, be- 3 den we know little. Though he had no comes discontinuous, and then runs dry." degree, both Cambridge and Oxford claim And he cites some words of Burke: "To give him. Since was not taught at judgment privately is to put an end to Re- either University before the middle of the ports. And to put an end to Reports is to eighteenth century, it is plain in any event that he learnt his law in , like , whose friend Erasmus said, that in those days it was no small part of nobility (nonnulla nobilitatis pars) to be educated in London: at the , which were "the University and Church Militant of the ." 1 The Hall at Plowden was equipped with several priests' hiding holes, which are still to be seen, and which correspond in style and character with the hiding holes at Harvington Hall, another re- cusant centre, in Worcestershire. Mass is said to-day at Plowden Hall in a chapel dedicated to St. Francis of Assisi. 2 Edmund (afterwards Sir Edmund) Plowden, a grandson of the great lawyer, links the history of the family with the history of the United States. About 1620, it seems, he sailed to America with a numerous company of emigrants and established the plantation of New Albion, "a habitable and fruitful island named Isle Plowden, otherwise Long Isle, about six leagues from the main, near Portrait of Edmund Plowden (1518-1585) de la Warre Bay, and forty leagues square of the adjoining continent of Virginia, as in the nature of the Middle Temple. of a county palatine." By Charter dated July 1634, By courtesy of Mr. William Plowden of Plowden King Charles I granted and confirmed the island Hall, Shropshire, . and lands to Sir Edmund Plowden, his heirs and assigns for ever, "with free and full power gra- 3 "The exact significance of this ominous event," ciously to confer favours and honors upon the says Maitland, "has never yet been duly explored well-deserving citizens and inhabitants within the but ominous it surely is." In a footnote he adds: province.., and to cut and stamp different pieces "The cessation of the Year Books in 1535 at the of gold such as shall be lawful, current and ac- moment when the Henrician Terror is at its ceptable to all the inhabitants." See RECORDS OF height is dramatically appropriate." Maitland, I THE PLOWDEN FAMILY, pp. 40-46; PLANTAGENET, English Law and the Renaissance, ANGLO- A DESCRIPTION OF NEW ALBION (1648). AMERICAN LEGAL ESSAYS 192 (1907). 3 CATHOLIC LAWYER, JANUARY, 1957 put an end to the law of England." At this The venerable Masters of the Bench critical moment the Shropshire lad, who endeavoured to maintain a firm discipline: was to be the author of the first and the How could communities, most perfect series of Reports that mark Degrees in schools, and brotherhoods the modem time, entered upon the study in cities.... of the law. He entered, one may imagine, But by degree, stand in authentic place? at one of the where new And so rules were made from time to students read their preliminary lessons in time; gentlemen must not wear in their ethics and politics, and learnt the outlines doublets or hose any light colour except of the classical and Christian jurisprudence scarlet or crimson; or wear any upper that gave life and energy to the Common velvet cap or any scarf; or wings in their Law. gowns, white jerkins, buskins or velvet In the there were during shoes; double cuffs on their shirts, feathers term time at least one thousand students or ribbons on their caps under penalty of at the ten Inns of Chancery, and some 3s. 4d. for a first offence; and expulsion eight hundred to a thousand students at without redemption for the second. No the four Inns of Court. These students gentleman being in Commons is to wear a crowded into London from all parts of the beard of more than three weeks' growth, realm. They were for the most part sons and under penalty of 40s., to be doubled every heirs of Justices of the Peace, who were week after monition. Gentlemen shall not the groundwork and frame of Tudor ad- wear their study gowns further in the City ministration. Sons follow their fathers; than Fleet and Holbom Bridge, or brothers are in residence together; county further westward than the Savoy. Also, neighbours go bond for one another. when in Commons they may not wear Span- And so in term time and in vacation they ish cloak, sword and buckler, or rapier, or make their exercises in the law, in moot- hats; or gowns girded with a dagger in the ing and in disputations, which gave their back. style and character to the science of plead- Though the four Honourable Societies ing. Except on Mooting Nights, at every were first of all schools for , their Mess, at dinner the rule was for the puisne legal studies did not exclude the liberal arts, to put a short case which the rest were and there was an intense intellectual and bidden "throughoutly to argue, and not to social life. Dancing was part of the ancient depart under penalty of twelve pence." Thus quam apte, quamque explicate singula resumunt, they learned, in Shakespeare's phrase, to quanta cum facilitate et copia, quantaque cum 4 practise rhetoric in their common talk. gratia et venustate, vel confirmant sua, vel re- fellunt aliena! Certe nec dialecticae vim multum 4 In an inaugural lecture at Cambridge Sir Thomas in eis desideres, nec eloquentiae splendorem.' Smith, Professor of Roman Civil Law (who was Maitland, 1 ANGLO-AMERICAN LEGAL ESSAYs 200 a contemporary with Plowden as Master of the (1907). For the special interest of Shakespeare Bench at the Middle Temple), exclaimed upon the in the Middle Temple, and of the Middle Temple skill in disputation shown by the students of in him, see Hotson, Love's Labour's Won, SHAKE- English law at the Inns of Court. Their skill ex- SPEARE'S SONNETS DATED (London, 1949). In this tended to matters of philosophy and theology: essay the opinion is offered that Shakespeare's 'Etiam cum quid e philosophia, theologiave de- Troilus and Cressida was written for, and played promptum in quaestione ponatur, Deus bone! by, the students of the Middle Temple. EDMUND PLOWDEN ritual of the place, and they were also given Like the Mootings in the Inns, the busi- to music and to drama; with regular times ness of the Courts was conducted in Law for , and Grand Christmas and the French. The Common Law of England grew Reader's Feast. At the High Table on up in the French tongue: Grand Night were to be found the Hon- Our Parliament and its Statutes, our Privy orary Fellows of the Inn, sea captains and Council and its ordinances, our peers, our great statesmen. On becoming Serjeant-at- barons, the commons of the realm, the Sov- Law a member ceased to belong to the Inn, ereign, the State, the nation, the people are French.... We must go, it seems, as far as and shared with the judges a common life the gallows, if we would find an English at Serjeant's Inn close by. The Judges and institution. 5 Serjeants had their homes in the city or in One may recall the observation of Sir the space between, and on their lawful oc- on the kind of talk that he, casions might be seen riding their mules on a Chief Justice in exile during the Wars of the way to the Courts at Westminster Hall. the Roses, heard at the Ile-de-France, in as habit- Paris and at St-Mihiel. The tongue they ually rode on a mule all trapped in crimson spoke was recognizably French but, as it velvet, with a saddle of the same and gilt seemed to Fortescue, vulgariter quadam stirrups, on his way to Westminster Hall ruditate corrupta. In the Minutes of Parlia- where, in the , Equity ment for 3 November 1570 we read: was done. Near by, in the Court of Com- It having been found that Mr Snagge, one mon Pleas, the Judges administered all law of the Masters of "le Utter Barre," used and no equity; in the court of Queen's English in a suit in the Guildhall before the Bench (so it was said) they administered Chief Justice [in an action] against Mr Fleet- equity and law; in the Court of Exchequer, woode, it is ordered by the Masters of the neither law nor equity. Bench that Snagge shall not be in Commons till the Parliament after Candlemas, and The unique centralization of law in meanwhile shall keep away from his cham- London-at there were also the ber till they decide whether he shall be expelled. 6 Court of and the Court of Requests--caused all the houses in Fleet The text-books and the Reports of Cases, Street in term time, and the streets and which now began to be written down, were lanes adjoining, to use lodgings, victualling also in Law French. And so it is with the "exquisite and elaborate" and letting-out . The end of the Commentaries or Law term was the break-up of the London Reports which Edmund Plowden started to season. On the day after the end of Hilary write down in the reign of Edward VI for or Trinity term it was usual for the Lord his own instruction. As his reputation grew, Chancellor, at a ceremonial sitting of the the existence of these private reports came

Court of Star Chamber, to deliver to Justices 5 POLLOCK AND MAITLAND, I HISTORY OF ENGLISH of the Peace and "gentlemen of sort and LAW 81 (2d ed. 1899). quality" the Queen's commandment, en- 6 Middle Temple Records, p. 173. Our anxiety is joining those who had left or forsaken their relieved by an entry under date 8 February 1571: "Mr Snagge is restored to Commons because he country dwellings to return home and at- has submitted to the order of the Bench, and has tend to their public and social duties. become reconciled to Mr Fleetwood." 3 CATHOLIC LAWYER, JANUARY, 1957

to be known to members of the Bench and cision of the Court, as wisdom gave way of the Bar; they were borrowed and copied before authority. at high speed by ' clerks who were One is particularly struck by the modesty, not expert in Law French. And the copies one might even say the humility, of the so made began to be offered for sale. At Judges. It looks as if they and Counsel ap- last in 1571, in self-defence and at the re- pearing before them at the Bar were a quest of all the Judges and the Barons of debating society, in which, at any rate until the Exchequer, Plowden published at his the moment for the last word comes, the own expense a first series of Reports, and Judges have only a nominal precedence. in 1578-9 a second series. 7 The Reports They differ openly from one another upon are inscribed: "Edmund Plowden: To the the Bench, without even turning their backs students of the Common Law of England on their colleagues when they state a dis- and especially to his companions of the senting opinion. Judges and Counsel alike Middle Temple wisheth increase of learn- are said to "argue" the matter; and they ad- ing." On the title-page, he whom Professor dress their arguments to an imaginary "Sir." Holdsworth has called the most learned They do not address the Chief Justice, be- lawyer in a century of learned lawyers, cause he also uses the same style. Thus we described himself with simplicity, and per- read: "Bromley, Chief Justice, argued the haps not without a certain secret pride, as same day that the others argued: 'Sir, as an Apprentice of the Common Law. to this I say, that it is part of the matter In these Reports which cover a period in dispute.' " In a case of ejectment in the of thirty years between the fourth year of first year of Elizabeth, the Report says: "It Edward VI and the twenty-first year of was argued by the Court, namely by Elizabeth (they deal mainly with arguments Weston, then being a Judge [he had already upon demurrers and special verdicts), we argued the case as Counsel], and by An- get a living picture of the scene in Court thony Browne, Justice, and Dyer, Chief before the day when, in the language of Justice," and the Report continues in Law Professor Holdsworth, interest tended to French: "Mes Syr Humfrey Browne shift from the debate in Court to the 'de- adonques esteant un des Justices ne argua pas per reason que il fuit cy veiel que les 7 "Better authority could not be cited," said Lord senses fueront decay et son voice ne puit Ellenborough. "They bear most deservedly as high a character as any book of reports ever este oye del audience." published in our law" is the testimony of Mr. As we turn over the pages of the Reports Hargreave. "Distinguished for authenticity and accuracy and exceedingly interesting and instruc- we find Plowden, as a Justice of the Peace tive by the evidence they afford of the extensive for the County of -Shropshire, at the 'Ses- learning, sound doctrine and logical skill of the sions held at in July 1554, at ancient English Bar," says the great American Chancellor Kent: I COMM. 482 (1826); WALLACE, which were decided several important THE REPORTERS 144. And see Coke, Preface to Crown cases from divers counties in Wales. III Rep., and Preface to X Rep., p. xxxiv: "Plow- It seems to have been the habit in those den's Commentaries, learnedly and curiously pol- days to try Welsh ished.... The author was an ancient apprentice criminals at the next of the law, of great gravity, knowledge and adjoining English county, before an English integrity." jury. The first of these cases is entitled Th. EDMUND PLOWDEN

Hall of the Middle Temple. Reproduced with permission of Society of the Middle Temple. King and the Queen against Griffith Ap whole panel, subtly and craftily to stay the to the David Ap John. At the trial the Celtic trial ... wherefore the Court said genius appears in the matter of challenges, prisoners: We perceive your subtlety well favour from for we read: enough, which merits but small if you will The Court perceived that the prisoners were the Court; and therefore tell us miided to sever in the challenge of the agree upon your challenge. 3 CATHOLIC LAWYER, JANUARY, 1957

On anotherpage is an important decision Report contains two chief points of interest: at Warwick Sessions: If A., intending to kill first that the judgment of Dyer, Chief his wife, gives her a poisoned apple, and Justice, on the wrongfulness of suicide is she, being ignorant of it, gives it to a child taken straight from the Summa of St. against whom A. never meant any harm, Thomas Aquinas; 9 secondly, that Shake- and against his will and persuasion; and speare came to know the ultra-metaphysical the child eats it and dies, this is murder in arguments that were used by Counsel in the A.; and a poisoning by him, but the wife, case, and made fun of them in the grave- because ignorant, is not guilty. digger scene in Hamlet. (One reads not without relief in Foss that there is reason to Elsewhere the interesting case of Par- believe the old Judge fell accidentally into tridge v. Strange refers to the possible con- the stream, as he was crossing the river by flict between the knowledge a Judge may a narrow bridge, at the age of 85.) have as a Judge and the knowledge hemay It appears from the Reports that, apart have as a private person; as in the case put from being Justice of the Peace in Shrop- by King Edward IV to Gascoin, Justice: If shire, in the year 1562 Plowden had already he saw one in his presence kill A.B., and been appointed Counsel to the Duchy of another that was innocent was indicted for Lancaster; and if his name seldom appears it before him, and found guilty of the otherwise in argument in his Reports of the murder, what would he do in such a case? reign of Mary and of Elizabeth, we may And Gascoin answered he would respite surely identify him with an of the judgment because he knew the party singular power who always appears anony- was innocent, and make further relation to mously as an "apprentice of the Middle His Majesty to grant a pardon; but there Temple." It is, one may recall, the way in and then he could not acquit the man and 8 which the author of Plowden's Commen- give judgment of his private knowledge. 0 taries describes himself on the title-page.' There is also the famous case of Hales and Petit which arose out of the suicide of 9 SUMMA THEOLOGICA, II-II, q. 64, art. 5 Utrum aliqui liceat seipsum accidere. And see Id. q. 26, Sir , one of the Justices of the art. 5: Utrum homo magis debeat diligere praxi- Common Bench, who was found by a mum quam corpus proprium? Coroner's Inquest to have drowned himself 10 Plowden, it seems, was deeply versed in the in a stream near Canterbury. The case, philosophy of Aristotle. See his argument on the in Sharington v. Strotton, at ff. 303-7; which was argued in the fourth year of and his learned note on Equity at ff. 465-6. The Elizabeth, raised a question of forfeiture. If works of Aristotle, in Latin translation, were (and husband and wife are joint tenants of a term are) available in the Library of the Middle Temple, and of Lincoln's Inn. Lord Campbell for years, and the husband becomes felo seems to think that the dominant philosophy in de se, is the lease forfeited? In law, yes. The England in the sixteenth century was the philoso- phy of Aristotle and Aquinas: CAMPBELL, II 8 The problem is classical in the Schools. See LIVES OF THE LORD CHANCELLORS 199, 257, 309 SUMMA THEOLOGICA, II-II, q. 67, art. 2: "Whether (1855). See also the autographed Catalogue of it is lawful for a Judge to pronounce judgment the Library of Sir , Yale, 1950, against the truth that he knows, on account of which contains the classical works of Aristotle, evidence to the contrary?" See also HOLDSWORTH, Augustine, Aquinas; see especially pp. 1-21, 22 IX HISTORY OF ENGLISH LAW 136. on the theological bases of the English law,_ EDMUND PLOWDEN

Even before he gained renown as lawyer Parliament of the defaulters, for no roll-call and advocate, young Edmund Plowden was taken, and there was no machinery to won fame in Parliament. During the reign enforce attendance on busy apprentices in of Queen Mary he sat as a Borough member the law who were in the habit at all con- in three Parliaments; once as member for venient times of slipping down the steps to Wallingford, and twice for Wootton Bassett. Westminster Hall to continue their practice While junior member for Wootton Bassett, in the Courts. in the Parliament which sat between Novem- The incident made no difference to the ber 1554 and January 1555, the authors of political life of Plowden, for he was re- the parliamentary history record "a circum- elected to the next Parliament as senior stance of a very extraordinary nature, the member for Wootton Bassett. Nor does it like of which we have not before met with seem that Queen Mary bore him any per- in the course of this history. There was a manent ill-will. In 1557 he acted as Autumn voluntary secession of some members of Reader and in 1558 as Lent Reader at the the Commons who actually left the House Middle Temple. In March 1558 he suc- when they saw the majority inclined to sac- ceeded to Plowden Hall and the estate on rifice everything to the Ministry." 11 The the death of his father. In Ministry had in fact decided, after much October 1558 debate and division of opinion in the Privy with certain other members of the Bar, he Council, to revive the old laws against received the Queen's to proceed at heresy. According to Foss, it was this de- Easter 1559 to the degree and estate of cision to revive the Acts against heresy Serjeant-at-Law. In November 1558 Queen which induced Plowden and some thirty Mary died, and the Writ abated. Queen companions to leave the House by way of Elizabeth did not include the name of protest. One gathers that, in their view, the Plowden in the new Writ she issued. The coercion of conscience was repugnant to the omission of his name from the new list of genius of the Common Law. Queen Mary Serjeants coincided with the demotion of took offence, and directed her Attorney- the Catholic Chief Justices of the Queen's General to indict Plowden and his com- Bench and the Common Pleas to offices of panions before the Queen's Bench for leav- lesser rank in the Judiciary. And so for all ing Parliament in defiance of her command his eminence in the profession, Edmund and inhibition. The record of the proceed- Plowden never became Serjeant-at-Law. ing is to be found in the Institutes of Sir Who now knows the name of any one of 12 Edward Coke. Six of the members so the Serjeants in the list from which the name indicted submitted to the mercy of the of Edmund Plowden was eliminated? It is Court. Plowden pleaded a traverse "full of a curious reflection that if Plowden had pregnancy," as Coke observes. Once a been made Serjeant he would have had to traverse had been pleaded (a demurrer not leave the Middle Temple, and his Hall being joined), it might not have been easy would never have been built. for the Crown to prove the absence from In the year 1561 Plowden was elected

11 COBBETT, I PARLIAMENTARY HISTORY 625. Lent Reader at the Middle-Temple. In the 12 See COKE, INSTITUTES, pt. 4, pp. 16-19. same year he became Treasurer and con- 3 CATHOLIC LAWYER, JANUARY, 1957

Tomb of Edmund Plowden in the Tenp1e Church, London. From the Royal Commission on Historical Monuments (London, England) reproduced with permission of the Controller of Her Britannic Majesty's Stationery Office.

tinued in office until 1570.13 During this which he was held by his colleagues. It time he undertook the building of theanew seems that Serjeant Lovelace as an appren- Hall in which he buried and enshrined the tice in the:law put his hand to a demurrer ambition ::that was otherwise denied him. objecting that a certain Bill before the Star The apprentice-at-law of, the Middle Temple Chamber contained matters other than was now, and to the end of his days con- those mentioned in the Statute of Henry VII tinued to-be; a dominant figure in the life setting up the Star Chamber, and objecting of the Inn,. and in the profession of the law accordingly to its jurisdiction in the par- in England. A story Lord Chancellor Eger- ticular case; and it seems that Edmund ton used to tell illustrates the esteem in Plowden had also put his hand to the de- 13 On 27, November- 1570 Matthew Smith.was murrer. On the cause being moved in Court, chosen Treasurer; "Mr Plowden remaining Proc- Lovelace was called upon to answer for the tor and promotor for the new Hall, both for building and collecting.' error he was alleged to have made in-ob- EDMUND PLOWDEN jecting to the jurisdiction; and Lovelace at by all the surviving Marian the Bar made his excuse "that Mr Plow- Bishops, who were immediately afterwards den's hand was first unto it, and that he deprived of office. Now the enacting clause supposed he might in anything follow St. of every Statute declares that the Act has Augustine."1 4 As St. Augustine was the been passed "by and with the advice and oracle of the schools of theology, so in the consent of the Lords Spiritual and Tem- common talk of the time Edmund Plowden poral and the Commons in this present was the oracle of the law. Parliament assembled and by the authority His reputation was now so great that his of the same." Can a Statute be said to be name was embodied in proverbs. One of enacted by and with the advice and con- them, "The case is altered, quoth Plow- sent of the Lords Spiritual if all the Lords den," passed into common use. The phrase Spiritual have voted against it? And if it is supposed to have originated in a case in has not the "advice and consent" of the which Plowden was advising a client as to Lords Spiritual, can it be a valid Statute? his liability to statutory penalties for attend- According to Maitland, "it was by no means ing at Mass. On the facts, the case seemed so plain then as it is now that an Act against to be conclusive against the client until he which the Spiritual Lords have voted as a explained that the person who said the Mass body may still be an Act of the three 6 was only a pretended priest, and actually estates."1 He also points out that just at an agent of the Government. "The case is the critical time a mysterious silence falls altered," quoth Plowden, "no priest, no upon the official journal of the House of Mass." The phrase "The case is altered" is Lords, so that if anyone wished to give used by Shakespeare in Henry VI, and was proof that the Act of Supremacy had been taken by as a title for one of carried against the voices of the Bishops, his classical comedies. The words are even there would have been no official document said to have been the last words spoken by ready to hand. Queen Elizabeth to the Lord Admiral as The constitutional issue was sharpened she lay dying: "My Lord, I am tied with a by the action of the new Bishop of Win- chain of iron about my feet... I am tied, who, pursuant to the powers given tied, and the case is altered with me." 15 by Statute, summoned the deprived Bishop In the early years of the reign of Queen of London (then in prison in the Marshal- Elizabeth, Plowden was naturally consulted ea) to take the Oath of Supremacy ap- by those of his co-religionists who found pointed to be taken by ecclesiastical persons. themselves in trouble with law. The passing The deprived Bishop, Bonner, refused to of the new Act of Supremacy raised at take the Oath so offered and his refusal was once an interesting point of constitutional certified into the Court of Queen's Bench, law. The Statute had been resisted by Con- where he was indicted of a Praemunire. vocation and had been opposed in the Bonner pleaded Not Guilty and, on the 14 HOLDSWORTH, I ISTORY OF ENGLISH LAW advice of Plowden, who never lacked cour- 513. BAILDON, LES REPORTS DEL CASES IN CAM- age in pleading (with him was Christopher ERA STELLATA, 301-2. 15 NICHOLLS, III PROGRESSES OF QUEEN ELIZA- 16 MAITLAND, I CAMBRIDGE MODERN HISTORY BETH 612. 570 ff.. 586. 3 CATHOLIC LAWYER, JANUARY, 1957

Wray), Bonner raised the constitutional proviso that none of their past acts touching issue, and alleged also that the supposed life and property were to be thereby vali- Bishop of Winchester was not a lawful dated; though (as Maitland points out) Bishop at the time of the offering of the eleven out of some thirty-five Temporal Oath. The main point here was that the Lords were for leaving the Archbishop and Ordinal according to which the new Bishop his Suffragans in their uncomfortably du- of Winchester had been consecrated lacked bious position. 19 The proceedings against all statutory recognition and authority. Bonner were stayed, and he was allowed to According to the Report in Dyer "it was remain in prison. much debated among all the Justices Being incompetent in these matters, I say whether Bonner may give evidence upon nothing about the theological issues that this issue, that he is Not Guilty, that the arose out of the alteration of the Ordinal said Bishop of Winchester was not a Bishop according to which ministers of religion at the time of the offering of the Oath; and were ordained and Bishops consecrated. resolved by all 'that, if the truth of the mat- It is of no small interest to reflect that ter be such to fact, he shall be well received Edmund Plowden was engaged in all this to it upon this issue and the jury shall critical litigation on constitutional issues try it." 17 during the years, when, as Treasurer of the The point taken in the pleading was a Middle Temple, he was ruling the Inn and good point. There is in existence, in the building this great Hall. The wide tolerance handwriting of Sir William Cecil, an admis- of his fellow matched the quality sion that the Ordinal which was used was of his courage. That his action did not unauthorized in law: "This book is not diminish the esteem in which he was held established by Parliament." 18 appears clearly from the circumstance that The legal difficulty was met or sur- in the year 1566 we find him at the Par- of mounted by a document drawn up and liamentary Bar instructed by the Dean certified by a group of Roman civilian Westminster to oppose a Bill which threat- lawyers- a document redolent, one may ened to abolish the right of Sanctuary that say, of the Imperial and of the Papal was traditionally enjoyed by Westminster finally Chancery-in which the Queen was made Abbey. As he fought the Bill and out of the plenitude of her power to "supply "dashed," that is, defeated it, Plowden will surely have had in mind the image of the all defects." The new Elizabethan Bishops were compelled to petition the Parliament Queen Mother of the little princes, in sanc- tuary at Westminster, being persuaded by of 1566 for a declaration that they were the to give ip lawful Bishops. Their prayer was granted, her younger son also to the care of his uncle and an Act was passed entitled: "An Act as it is declaring the making and consecrating of the Protector; an episode which, History the Archbishops and Bishops of this realm described by Thomas More in his tragic to be good, lawful, and perfect," with the of Richard III, is said to be "more than anything the English drama produced 17 Dyer, 243A. 19 Strype, Parker 1, 108-9; ANNALS, I, ii, pp. 2-8; 18 BIRT, THE ELIZABETHAN RELIGIOUS SETTLE- MAITLAND, II CAMBRIDGE MODERN HISTORY 570, MENT 242-48. 586 ff. EDMUND PLOWDEN

' 20 till the great age." nizances for 200 marks "for his good The fortunes of another Queen, Mary abearing." Queen of Scots, also enlisted the sympathy In the year 1575 (that is, before Dr. and the professional interest of Plowden. John Dee published his work on The Perfect In support of her claim, he prepared in a Art of Navigation), in a case concerning the manuscript of 160 folio pages: "A Treatise rights of a manor to wreck of the sea, Plow- of Succession written in the life-time of the den opened the great argument as to the most renowned Lady Mary, late Queen of bounds of England and the sovereignty of Scots, wherein is sufficiently proved that the seas. The argument was adjusted by neither foreign birth nor the last will and Queen Elizabeth to suit her maritime policy, testament of King Henry VIII could debar and was developed on different lines in the her from her true and lawful title to the Stuart time by Selden in his Mare Clausum, Crown of England." The manuscript was and by Grotius in the Mare Liberum; it was inscribed and dedicated to King James I by also taken up by Chief Justice Hale in an Francis Plowden, the son of Edmund. It early treatise on The Waste and Demesnes was known to Sir Matthew Hale who, in and Dominions of the King of England. his Pleas of the Crown, refers to "Mr. In the year 1578 we find Plowden (with Plowden's learned tract touching the right ) acting as Counsel to the of succession of Mary, Queen of ." Archbishop of Canterbury in connection In the year 1569, while acting as Justice with some land at Battersea and some of the Peace at Abingdon in Berkshire (his troublesome tenancies which the two law- principal place of residence was at Burgh- yers were able to rearrange to the satisfac- field, not far from Reading), Plowden was tion of their distinguished client. confronted for the first time with a demand One of the last recorded appearances of that he should take the Oath of Supremacy. Plowden as an advocate was in Walsing- He asked for time to study the question ham's case, which completes the second from all points of view, and having taken series of Plowden's Reports in 1578-9. The time, he informed his brother Justices that case arose on a Bill of Intrusion, and had "he could not with safe conscience subscribe to do with the title to land in East Peckham to the Oath"; for "he could not subscribe in the County of Kent. The dispute had its but belief must precede his subscription, origin in the rising of Sir Thomas Wyatt and therefore great impiety would be in him in the reign of Queen Mary, when he, with if he should subscribe in full affirmance or a great multitude of rebels and public belief of those things in which he is scrupu- enemies, "not having God before their eyes, lous in belief," assuring them "that he did nor considering their due allegiance, but not upon stubbornness or wilfulness forbear seduced by the instigation of the devil," to subscribe, but only upon scrupulosity of rode and marched towards the City of conscience." He escaped further molestation London with standards displayed; and with for the time being on entering into recog- swords, spears, bows, arrows and coats of

20 In the same little volume is a character sketch mail; "making a most fierce and terrible war of Jane Shore, one of the rarest things in English at Charing Cross in the parish of St literature, the portrait of a sinner by a saint. Martin's in the Fields and within the City 3 CATHOLIC LAWYER, JANUARY, 1957

of Westminster." having the Great Seal back immediately into In the argument before the Court of Ex- her own hands. It seems likely that during chequer the plaintiff in the action was this time she invited Edmund Plowden to represented by Serjeant Barham and "an accept the office of Lord Chancellor. There apprentice of the Middle Temple." The de- is in the Plowden family and in the profes- fendant was represented by Serjeant Man- sion a strong tradition, not unsupported by wood. After a long argument which writing, that at some time the Queen invited extended to many terms, judgment was Plowden to be Lord Chancellor; and if the given for the plaintiff. Now it so happened offer was made, it must have been at this that in a case raising the same legal issue time. In a well-known work 22 Serjeant .the Court of Common Pleas had given Woolrych prints what is said to be a copy judgment the other way. The defendants of the answer that Plowden wrote to the in the first action accordingly brought the Queen: "Hold me, dread Sovereign, ex- case on a Writ of Error into the Exchequer cused .... I should not have in charge Your Chamber where, Barham being no longer Majesty's conscience one week before I alive, our apprentice of the Middle Temple should incur your displeasure." appeared alone on the part of the plaintiff. After a delay of two months there wa; After what seems to have been a really an outcry that, for the lack of a Lord classical contest in the Exchequer Chamber, Chancellor, injunctions could not be ob- the apprentice won a decision for his client, tained, and that the hearing of causes wa; Elizabeth the Queen. suspended. An intrigue in favour of Thoma Between argument and judgment in the Bromley, the -General, led to his Exchequer Chamber, Sir Nicholas Bacon, appointment in preference to the Attorney- the Lord Keeper, died. In his Report General, . Plowden made Plowden describes him as "a man of great the entry in his Report: "Thomas Bromley, eloquence, gravity and wisdom." Who was Esquire, born in the County of Salop, ap- to succeed Sir Nicholas Bacon as Lord prentice of the , was sur- Keeper or Lord Chancellor? The Queen rogated and made Knight and Lord was at arm's length with her Prime Minister Chancellor of England." The new Lord Burleigh on the one hand, and with her Chancellor showed himself vehemently op- favourite Leicester on the other. Against posed to the projected marriage with their common will she was at this very time d'Alengon, and as we know it never took meditating marriage with a French Prince, place. 21 the Due d'Alengon. On the death of In the course of the year 1579 there Bacon, she took the Great Seal into her own came into existence (it is printed in the keeping and detained it for two months or Inner Temple Records) 23 a list of the more, lending it out for the sealing of "Readers and Chief Barristers of practice or Letters Patent, now to a member of the 22 WOOLRYCH, I LIVES OF EMINENT SERJEANTS Burleigh party, and now to a member of 115 (1869). the Leicester party, but always insisting on 23 Calendar of Inner Temple Records, App. Iv, 21 See LINGARD, VI HISTORY OF ENGLAND 149- A list of the Readers and Chief Barristers of the 54; CAMPBELL, 11 LIVES OF THE LORD CHANCEL- Inns of Court (P.R.O. State Papers, Dom. Eliz. LORS 237-8 (1855). vol. cx, no. 27). EDMUND PLOWDEN in the four Inns of Court," with an indica- within a little while attracted as many as tion of their religious allegiance. The list 150 students from England. Many of these shows that of the sixty leading barristers in after taking Orders returned home at great 1579 one in three was a Papist. Plowden personal risk to minister the sacraments to is entered as a Papist, "very learned, of those who, like Edmund Plowden, still good living." As if he had foreknowledge clung to the Catholic faith. Edmund Cam- of things to come, in Trinity term 1580, Sir pion was the most brilliant of the group. Thomas Bromley, the Lord Chancellor, Against the possibility of his arrest, he had was at pains from the Bench to state the left with a law student in London a power- good opinion he had of the great discretion, ful Address to the Privy Council. But the circumspection and honesty of Mr. Plow- young man failed to keep it secret, and den, who, as it happened, had drawn the being published abroad, it caused an im- Conveyances and advised both parties in a mense excitement. transaction which came before the Court of In the course of the trial of Edmund Chancery. Towards the end of the year Campion, Plowden made his way into the Articles of Religion were exhibited to the Court. His old colleague the Chief Justice Lords of Her Majesty's most honourable was behaving courteously to the accused, Privy Council, "against Edmund Plowden though he was engaged in work for which, of the Middle Temple," by a disaffected one imagines, he had little heart. 25 And he member of the Inn.2 4 The State Paper Office surely had no desire that the proceedings contains a record of fines imposed on Plow- should be reported. On seeing Plowden, the den but no other action appears to have Chief Justice sent a message from the Bench been taken. inviting him to retire from the Court. Plow- The year 1581 was marked by the state den, who was himself in peril of the law, trial of and his com- withdrew. Edmund Campion was in due panions, English priests from overseas who course found guilty and sentenced to death were accused of . The Chief Justice and executed. Within a month, Plowden of the Queen's Bench, where the trial was made his will. held, was Sir Christopher Wray, sometime Early in 1582 there came to England a Catholic recusant. In the dock stood from abroad a book of Christian devotion- Edmund Campion, a brilliant scholar of Of Prayer and Meditation--dedicated to St. John's College, Oxford, sometime dea- "The Right Honourable and Worshipful of con in the Anglican Church, and now a the four principal Houses of Court in Lon- Jesuit priest. Campion was one of a con- don professing the study of the Common stellation of Oxford scholars, Fellows of Lawes of our realm," by Richard Hopkins, New College and of Oriel and of Merton of Eton and King's College, Cambridge. In and of Corpus Christi and the rest, who 1560 he was admitted a member of this Inn had gone into exile in the Low Countries, and later went into exile. After much study and established at Douai and at Rome a "being convinced that more spiritual profit school of theology and philosophy, which attends books of devotion than of con- 25 See DICTIONARY OF NATIONAL BIOGRAPHY, suib." 24 Records of the Plowden Family, pp. 25-6. nom. Christopher Wray; Records of the Plowden State Papers, Dom. Eliz. vol. CXLIV, nos. 45, 46. Family, p. 27. 3 CATHOLIC LAWYER, JANUARY, 1957 troversy in religion," he had composed this showed him lying at full length in his law- little work for his friends in the four Inns yer's robes, his hands being joined and 26 of Court. pointed in prayer. The companions to To Plowden it may have seemed that whom he had dedicated his Commentaries the return of Englishmen like Campion, and and for whom he built this Hall, wrote his the appearance in England of books like simple Epitaph, adding the words: Mundo that of Richard Hopkins, had in them the valedicens in ChristoJesu sancte obdormivit. beginnings of hope for the minority of In the same year Queen Elizabeth de- English men and women who still adhered mised by letters patent to Edmund Plowden 27 to the ancient faith. the younger, and Francis Plowden, his sons, Plowden was now not far from the end of the farm or mansion of Shiplake in the his days; and it is good to read in the Rec- counties of Oxford and Berkshire to hold ords of the Inn for 1583 of a privilege ex- to them and their assigns for their lives tended to his son Francis Plowden "because successively. It was a recognition by Her his father has been very kind to the House." Majesty (so we are told), of the merits Early in 1585 Edmund Plowden died; and of "the greatest and most honest lawyer of the large tolerance of death allowed him to his age." be buried where he had asked in his will The official historian that he might be buried, in the Temple added a unique tribute, declaring that no Church, between the body of his wife one was more worthy of memory than Katherine and the north wall, near the east Edmund Plowden, who in the learning of end of the choir. A striking monument the laws of England was easily first, and in 26 Sir Edward Coke appears to have had a copy: integrity of life among men of his own pro- Catalogue of the Library of Sir Edward Coke, fession was second to none. p. 20, no. 270. 27 Not the least persuasive of the statements in Serjeant Woolrych, who sought in vain defence of the ancient faith was made in the to detach the memory of Edmund Plowden lifetime of Plowden by Lady Cecil Stonor, a from the Middle Temple and to treat him member of a family well known to the law, and as a member of Serjeant's Inn, declared that which intermarried with the Plowden family dur- an ornament to our history." ing the penal times. Being asked the reason for "Plowden is her by the Justices of Oxford, she In the last lines of the Epilogue to his made answer: "I was born in such a time when Insitutes Sir Edward Coke refers to "that Holy Mass was in great reverence, and was brought up in the same faith. In King Edward's great lawyer and sage of the law" Edmund time, this reverence was neglected and reproved Plowden, and cites the aphorism he had by such as governed. In Queen Mary's it was often heard him say: "Blessed be the restored with much applause, and now in this time it pleaseth the State to question them, as now amending hand." they do me, who continue in this Catholic pro- May we not with equal right take these fession. The State would have the several changes words of Plowden and, as we look upon which I have seen with mine eyes, good and laudable. Whether it can be so, I refer to your those walls and the screen and the Minstrels' Lordships' consideration. I hold me still to that Gallery, and the timbers of this glorious wherein I was born and bred, and find nothing roof, may we not also repeat, in humble taught in it but great virtue and sanctity, and so by the grace of God I will live and die in it." duty and affection: "Blessed be the amend- Stonor, by Julius Stonor, pp. 259-60. ing hand."