The Thomas Sutton Lecture 2019

More and more: Law and the Charterhouse in London, presented by Sir Mark Warby*

It is an honour and privilege to present this lecture to you today. To be fair, it was a request that – as consort to the Master – I could hardly refuse. But I have very much enjoyed the challenge.

This is based on researches I have done since we came here nearly 3 years ago. It is not the fruit of original academic research, more a drawing together of threads from other sources. But I hope to provide everyone with some new information and perspectives.

“The first thing we do, let’s kill all the lawyers.” [1]

Shakespeare’s Dick the Butcher was not an advocate of half-measures: “… kill … the lawyers”, he said, “… all the lawyers”. Leaving aside his extremism, his general attitude is one that has been common among the population at large for centuries, or longer still.

Hostility of this kind is of course unwelcome, if you are a lawyer.  We often put it down to the fact that people hate paying for anything. Most of all they hate to have to pay someone to prove they are right, when they knew it all along; and if the court finds they are wrong, then it must be the lawyers’ fault, and yet they want paying.

Dick the Butcher was not a dissatisfied client, though. As ever, in Shakespeare there is a deeper meaning.  Henry VI is one of a trilogy, about the Wars of the Roses.  Dick was one of a band of pretenders to the throne, bent on overthrowing the establishment, in order to “improve” the lot of the people. The interpretation of Shakespeare’s line that I favour is that Dick saw lawyers as an obstacle, standing in the way of the revolutionary aims which he and his colleagues were pursuing – a brake on the populist autocracy they wanted to impose.

Dick himself was not a great role model. He was a criminal – a brute, and a callous murderer. He was famously depicted in an 18th century engraving of this scene, arresting Emmanuel, who was later hanged for the multiple offences of being able to read, write, and do his arithmetic. In the background of the engraving you can see a lawyer already being hanged.   This was Cade’s Rebellion of 1450, which started to the South East of London, with a gathering at Blackheath, and got as far as the Guildhall, just around the corner from here.

It is a remarkable thought that by then the Charterhouse was already a venerable institution, nearly 80 years of age. It was in about 1371 that they started building the monastery from which these buildings emerged. As the modern institution’s motto has it, they have been “living the nation’s history since 1384”. That was the first and possibly the worst plague year of  the time, which is when the site began to be used for burial of the dead. By the time Jack Cade and his rebels were beheading people for alleged corruption in 1450 the Great Cloister was complete, with its water supply secure, and the monastery was in its prime, behind these walls.

So, the Charterhouse has been here in one form or another for well over 600 years. And so indeed have the lawyers. I am here to tell you that Dick the Butcher’s call was not heeded. The lawyers were not all killed. They, and their conventions, have survived.  Or, I should say, we have.

We lawyers need to live with the bad reputation we have acquired. We are indeed a pettifogging and awkward lot, with our stubborn adherence to laws, and rules, and fair procedures.  But one of my aims in this lecture is to show that not all lawyers are all bad. That may sound unambitious. But I have a second and slightly more ambitious aim: to show that some of us sometimes do some good.  You will see that I am less absolutist than Dick the Butcher.

I have the privilege of putting forward those two modest propositions by reference to six more or less distinguished lawyers who have a strong link to the Charterhouse in London, going back to a time not long after the Wars of the Roses.

Each of the six is famous, somewhere, to some people.  But here is a third modest proposition: the links between the Charterhouse in London and the law are not as well understood or as well recognised as they deserve to be.

I refer to the Charterhouse in London because I am talking about this place and its buildings, and not just the school or indeed Thomas Sutton’s institution.  That may be obvious from the title of this lecture which refers, as you will have realised, to Sir Thomas More. I am going to come to his time, which was well before that of Thomas Sutton’s school and almshouse.  I will indeed be touching on each of the four main phases of the history of this place. But I hope I will be forgiven for taking a somewhat contrarian approach, and beginning at the end – or rather, with the most recent of my subjects.

“Nico”, Lord Browne-Wilkinson (1930 – 2018)

Nicholas Browne-Wilkinson was a resident of the Charterhouse, living in the Infirmary for the final year of his life.  He had been a barrister for 24 years and a Judge for 23. He started his judicial career as a High Court Judge in 1977 and ultimately became the senior “Law Lord”, in the forerunner of our Supreme Court.

Just before his appointment to the High Court, Nico wrote down lists of the good and bad features of a Judge. He had ten good ones and seven bad ones.  Lawyers do like lists. “Good” features including listening and not talking too much; being patient and humble; and “doing justice”. That last feature is something which he naturally had to define, and he did: “i.e. not permitting the technical and unmeritorious argument to prevail unless there is no intellectually honest escape.”

Nico has been described (by Lord Neuberger) as having a “fierce sense of right and wrong coupled with a palpably benevolent humanity”. I can illustrate. It is not often appreciated that Judges write an enormous amount, sometimes 20-30,000 words a week. Most do not read our judgments, and many that do think they are wrong, or too long, or both. There is a wealth of material on which to draw. You will be relieved to know, however, that I am going to pick out just two short citations from Nico’s judicial decisions.

The first is from an early privacy case, over 30 years ago. It was about a newspaper article revealing details of a lesbian relationship. You may not be surprised to learn that the background facts were “lurid”. I use the Judge’s term. Let me describe them shortly. A Mr Telling killed his wife. He was eventually convicted of manslaughter. At his trial, he maintained in his defence that he had found his wife in a compromising position with another woman. Unsurprisingly, the trial received a lot of publicity. Later, the Mail on Sunday reported that the “other woman” was Mrs Stephens, and the paper gave an account of the relationship.

Mrs Stephens sued for damages. Her case was that this was private information that she had confided to a friend, a Mrs Avery, who had passed it on to the newspaper; Mrs Stephens said it was confidential information which should not have been made public. The defendants applied to strike out the claim before trial, on the basis that it was bound to fail. Two of the main arguments were that the information was trivial and inconsequential tittle-tattle or gossip, or related to “grossly immoral” behaviour, so the Court would not recognise or enforce any duty of confidentiality. I am not sure the argument was that the immorality lay in the fact of a same sex relationship; it seems to have been argued that any sexual behaviour outside marriage was so “grossly immoral” that information about it could not be confidential. Nico rejected both lines of argument.

On the question of immorality, he drily observed that it was hard for the defence to argue that the plaintiff’s sexual conduct was outside the law’s protection because it tended to produce immorality. Her conduct, he said, was “not so morally shocking … as to prevent the third defendant, a major national Sunday newspaper, from spreading the story all over its front and inside pages.” But he made another point which I would like to highlight. Nico was not willing to let uncertain moral judgments trump legal rights:-

“The court’s function is to apply the law, not personal prejudice. Only in a case where there is still a generally accepted moral code can the court refuse to enforce rights in such a way as to offend that generally accepted code.” [2]

My second “desert island judgment” from Nico Browne-Wilkinson also comes from the sphere of personal privacy. The police had investigated a Mr Marcel on suspicion of fraud. He was also being sued for damages for fraud in a civil claim. The plaintiffs in the civil claim wanted to obtain and use some of the documents seized by the police. Mr Marcel applied for an order prohibiting this. Nico’s view was that it would be an abuse of state power to allow anyone to use the information the police had obtained, for any purpose other than the criminal investigation. He highlighted the dangers of allowing the state to make free use of information obtained under compulsory powers in these stirring words:

“The dossier of private information is the badge of the totalitarian state” [3]

When I started preparing this lecture, I did not set out to identify unifying themes, other than a connection to the Charterhouse; but in putting it together and studying the lives of these six men – because they were all men – I have stumbled on two themes. The first could be called liberalism. Both my quotations so far exemplify what I mean by this: their focus is on the protection of individual freedom against the moral disapproval of others, or (in the other) the abuse of state power.

A second, somewhat paradoxical theme must be acknowledged: that of intolerance indeed, in some cases irascibility. I say at once that this is not something which I have seen or heard said of Nico. Quite the opposite.  Lord Neuberger also said of him that “From the start, he was humane, courteous and thoughtful … both collegiate and avuncular”.  In fact, Nico was so well-behaved that rudeness and impatience did not even feature on his list of “bad” judicial characteristics. But they were known to him when he was a barrister, at least; and if we go back a couple of centuries, irascibility is a well-recognised characteristic of my next legal luminary with Charterhouse connections.

Edward Law, Lord Ellenborough (1750 – 1818)

The last time I saw Lord Ellenborough was in Cornwall. This was on television, in a recent episode of Poldark.   He was the trial judge who sentenced a man convicted of treason to be hanged, drawn and quartered. He appeared to be relishing it, and when he later had to announce that the Prime Minister had remitted parts of the sentence – leaving only the hanging part – he seemed genuinely disappointed and disgusted.

That was fiction, and some of it departed quite a bit from the way things were actually done, even then. But it cannot be said that Ellenborough was a bad choice for the sentencing judge in the fictional case.

He became Chief Justice of the King’s Bench in 1802, at the age of 51, and he remained in post for the next 16 years. These were days when judges could be involved in politics, and he was. His behaviour in the house of Lords was objectionable to many. In 1803, the Lords debated the increase in criminal libel cases. These had been used to quell political dissent, but Ellenborough defended the practice, and he did so vigorously. His words were described as “dogmatism” which disgusted one listener, who said he spoke “with the coarse violence of a demagogue.”  His conduct in Court was known as harsh and overbearing. He had a short temper and a sarcastic way of treating Counsel if he thought they had transgressed the laws of advocacy – and he was very ready to think that they had done so.  Sir Samuel Romilly was a liberal-minded lawyer of the time, and he summed up what he saw as the feelings of the Bar. “There is but one sentiment of condemnation respecting Lord Ellenborough’s intemperate and indecent conduct, universal among the bar, who feel this as a professional concern.”

Ellenborough’s severity in criminal matters was legendary. An Act of Parliament, introduced when he was Chief Justice, bears his name. Its short title is the Malicious Shooting or Stabbing Act 1803. The long title was “An Act for the further prevention of malicious shooting, and attempting to discharge, loaded fire-arms, stabbing, cutting, wounding, poisoning and the malicious using of means to procure the miscarriage of women, and also the malicious setting fire to buildings.” The chief purpose of the Act was that if an offence would have amounted to murder if the victim had died, the penalty should be the same if he survived: “such offenders shall suffer death as in cases of felony”. Sometimes defended as a consolidating measure, Lord Ellenborough’s Act created no fewer than ten new capital offences, one of them being performing or attempting to perform an abortion.

This was characteristic of the man.  As his biographer Townsend says, “To all amelioration of the criminal code, Lord Ellenborough was a steadfast and active antagonist”.  He opposed Romilly’s attempts to infuse more humanity into English criminal law. One project was to repeal the statute which made the death penalty compulsory for shoplifting to the value of 5 shillings (£20 in today’s money).  Ellenborough was appalled, and warned the House of Lords: “this, above all others, is a law on which so much of the security of mankind depends in its execution”. It was the thin end of the wedge. If they gave in to this proposal, the next thing the House would be called on to do was to repeal the death penalty for stealing 5 shillings in a dwelling-house. “Repeal this law”, he thundered, “and … no man can trust himself for an hour out of doors, without the most alarming apprehensions that on his return every vestige of his property will be swept away by the hardened robber.”

It is perhaps no surprise, in the circumstances, that the portrait which Thomas Lawrence painted of him in about 1806, Lord Ellenborough is looking to the right.

But there is evidence of a different side to his character. Indeed, this very painting suggests a kinder, gentler man. There are other likenesses of him which do so. One of them is the large memorial in the Chapel, opposite the tomb of Thomas Sutton. This sculpture was done by Sir Francis Chantrey, a fashionable sculptor of the early 19th century.  I suspect, but do not know, that it was modelled on the Lawrence portrait. It bears some similarity.

Ellenborough’s likeness can therefore be found in these buildings, prominent and for all to see.  The reason is that he was a pupil here, and a governor as an adult, and he is buried here, in a vault alongside Thomas Sutton. He died on 13 December 1818. Townsend conjures up a powerful image: the funeral cortege wending its slow path “through dense fog” to the Charterhouse a few days before Christmas, two centuries ago.

The memorial in the Chapel tells us that Ellenborough wanted to be buried here “in grateful remembrance of the advantages he had derived through life from his education upon the Foundation of the Charter House”.  This reflects a heart-warming aspect of his character. His successor as Chief Justice, Lord Campbell, reported that Ellenborough used to say that while enjoying the dignity of Captain of the School he felt himself a more important character than when he was Chief Justice, and a Cabinet Minister.

Besides these softer images and impressions of Ellenborough’s character, what are the reasons to think he had a gentler side than the quotes I have given so far?  His life is shot through with strands of decency and humanity.  Let me offer you a list of three points.

First, there is evidence that he had a kind and generous side when he was younger.  One contemporary at Cambridge, by the splendid name of Capel Lofft, described him as at once moody and good-natured, a bluff, burly boy, ever ready to inflict a blow, or perform an exercise for his schoolfellows.  Another friend called William Coxe describes him as a student, with “a warm and generous disposition” and refers to “the goodness of his heart”.  At the Bar he had the reputation of being “a very pleasant companion.”

Secondly, this is a man whose marriage to the beautiful Ann lasted 35 years of what, by all accounts, was marital harmony. She was Ann Towry, a descendant of Sir Thomas More. Her beauty was such, so they say, that passers-by would linger to watch her watering the flowers on the balcony of their home in Bloomsbury Square.

Thirdly, the general view was that Ellenborough was a just and fair Judge. And here is some evidence. In the same year that he promoted “Lord Ellenborough’s Act” he decided Rex v Inhabitants of Eastbourne, a case about the duties of a parish to maintain the English wife and children of a German expatriate. The details are often misreported, but the argument before the Court was that the poor-laws were not designed for the relief of foreigners or their families. Ellenborough’s famous line is accurately quoted:

“The law of humanity, which is anterior to all positive laws, obliges us to afford them relief, to save them from starving.” [4]

This, therefore, is an example of an appeal to fundamental human rights.  Ellenborough went on to hold that the English statutes were only passed “to fix the obligation more certainly” and establish how it should be performed.

William Murray, Lord Mansfield (1705 – 1793)

Winding back about 40 years we enter the realm of real legal stardom. William Murray, 1st Earl of Mansfield, was Chief Justice of the King’s Bench for over 30 years.  He was the most powerful judge, and the most influential English jurist, of the 18th century.

Famously, Mansfield developed the law of equity and commercial law principles, declared that foreign slavery contracts could not be enforced on English soil, opposed the American independence movement, had a great-niece called Dido Elizabeth Belle who was black, and bought and embellished Kenwood House in Hampstead. This was the Age of Enlightenment.

Mansfield was not a pupil at the school, but he was a governor of the Charter House (as it was then known), and an active and effective one at that.

He was elected a governor in 1758. He was 53 years old.   He had enjoyed a spectacular few years. In 1754 he had bought “Caen Wood” (as it was then known). He rose to Chief Justice two years after that, when he was made an Earl. He was at the height of his power and influence in the law, and influential in politics too.

At the Charterhouse he showed some neat political footwork in the in-fighting over who should be appointed Master in 1761. The successful candidate was Rev. Samuel Salter, a portrait of whose wife adorns the Great Hall, downstairs.

Allow, me a short digression on this, one of only a few pictures of women in these buildings. The general view seems to be that this is from Hogarth’s studio, but he may have only painted a bit of it. But there is no doubt that he did paint this woman. He did so in 1741, before she became Mrs Salter.

Five years on from Rev Salter’s appointment, Mansfield’s legal nous was useful to the Charterhouse. The governors were made aware of a problem involving two boys and some sexual activity.  Again, some of the details are veiled by the mists of time.  Salter was still Master. The school’s headmaster was Lewis Crusius. Also a Charterhouse old boy, and Cambridge Scholar, he had long experience. Aged 65, he had been in post for 18 years. But the matter was not left to him, or to Salter (or Mrs Salter). Evidently there was something of a panic. The issue was considered serious enough for a meeting of the governors to be called, to decide how it should be dealt with.  The Archbishop (Thomas Secker) wrote to Lord Newcastle (former Prime Minister) about it – both in their capacity as governors. The Chief Justice – in the same capacity – advised on the issue.

Mansfield’s biographer, Norman Poser, says, “It seems astonishing that a leading politician, the highest-ranking clergyman in the land, and the Chief Justice all became involved in a matter of this kind.”  Maybe he is right to speculate that one or both of the boys were from an important family. We do know, however, that Charterhouse governors are a conscientious group. So the governors’ involvement in such a matter may not of itself be surprising. But Poser is probably spot on when he suggests that the concern was to avoid a scandal.

Litigators know that sometimes the best policy is masterly inaction.  Mansfield brought the wisdom of experience to bear.  He advised against any meeting of the governors, or any action at all, until after both boys had been taken away by their parents.  That may have done the trick, as no record has been found of any disciplinary measure or further action on the issue.  That was 1766.

Now to 1772, and the case of James Somersett. He was a slave “owned” by one Stewart. He had escaped and been recaptured, and held captive on a ship moored in the Thames, awaiting his return to the West Indies. His abolitionist godparents applied to Court for a writ of habeas corpus, requiring his release. The slave owner resisted the claim, justifying his position on the basis that Somersett was his property. Mansfield, now 67 years old, ruled in favour of the godparents.

“No master ever was allowed here to take a slave by force to be sold abroad because he had deserted from his service, or for any other reason whatever …” [5]

These are not the words most often attributed to Mansfield’s decision in this case. He is often credited with the statement that “the air of England has long been too pure for a slave, and every man is free who breathes it”. That is a ringing pronouncement, but these are not Mansfield’s words. They stem from (remarkably) a 16th century decision of the Star Chamber.[6]  Their attribution to Mansfield is legal folklore, – or, as others would put it, fake news. The point made in the words which Mansfield did use is a much narrower one.

But he did say this: “The state of slavery is … so odious that nothing can be suffered to support it but positive law …” meaning an Act of Parliament or judicial decision. He found none, and concluded that “the black must be discharged.” At the least, his decision can fairly be read as a clear pronouncement that a slave cannot be forced to leave this country, any more than any other individual.

Somersett’s case did not end the slave trade, nor could it have done. Abolition took another 30 years. The decision in Somersett’s case is much debated, but by far the better view is that it played a real and significant part in hastening the end of slavery.

Mansfield’s portrait by John Singleton Copley shows him – in his Parliamentary robes – in his mid-60s, shortly before the Somersett case. To me he has a wise and benevolent look.   Sixteen years later, when Mansfield was 80, Sir Joshua Reynolds did a more famous portrait. All we have now is a copy[7] and some contemporary engravings of the original – the most famous by Bartolozzi. The former Court of Appeal Judge, Sir Stephen Sedley, had always seen this likeness as a “thin-lipped and cruel face”, and one can see why. But Stephen Sedley has identified the prosaic explanation: Mansfield had by this time lost all his teeth.

That said, Mansfield did have his conservative, illiberal, even intolerant side. He supported the King against the American colonists.  Like Ellenborough, he supported the use of the laws of criminal libel to silence critics of the government and church. The libel laws were a primary means of control at the time. This was why Fox’s Libel Act was passed, providing for jury trial in libel cases. One pamphleteer wrote of Mansfield that he “has succeeded so far in his vile, his infamous design of destroying the liberty of the press. That there is not one bookseller that has now resolution enough to publish the most trifling essay … in defence of the common rights of mankind.”  Not, I would say, the greatest review.  Mansfield was also fairly stern when it came to the criminal law – but then riots were a problem in his day. One of them, the Gordon riots of 1780, led to his own house in Bloomsbury Square being burned down.

Sir William Blackstone (1723 – 1780)

That was the year that William Blackstone died, aged 57.

Blackstone was the outstanding English legal academic of the 18th century – a man with a genius for systematic analysis and exposition that has rarely been matched. He was a Doctor of Civil Laws, a Fellow of All Souls, the first Vinerian Professor of Common Law at Oxford University and, by the same token, the first professor of the English common law. He practised as a barrister, and in that role he appeared in Mansfield’s Court. In the 1760s, he published his masterpiece: the four volume Commentaries on the Laws of England. For ten years, he was a High Court Judge.

Blackstone, like Ellenborough, was a pupil at the Charterhouse School. There is a mention of this in the Museum Room, but not much else. This portrait, by Gainsborough, is not on public display. That may seem surprising.

Today, he is remembered, and still admired in England. His statue (by John Bacon Senior) can be seen at the Codrington Library, in Oxford. A leading set of barristers has taken his name. Charterhouse School has a Blackstone scholarship, for the children of lawyers. But Blackstone’s star shines much higher in the sky and more brightly in the USA than at home. I will come to some possible explanations for this, among them the fierce opposition of a powerful adversary, in the form of young Jeremy Bentham, and his temperament. But let me first sketch in his background.

William Blackstone was born in Cheapside, in the City of London, near St Paul’s Cathedral. He was a posthumous child, born five months after his father, Charles, died at the age of only 38. So it was that on 10 July 1723, William’s mother Mary became a young widowed single mother of three. They were all boys, and all under 5 years old. (A fourth boy had died in infancy). And she had a house and business to run.

The Blackstone family was not impoverished. But nor was it well-to-do. Such money as there was came from retail. William’s grandfather had been an apothecary – what we would call a pharmacist, or dispensing chemist. The late Charles Blackstone had traded in silks, from premises ‘at the sign of the Blew boar’, by Paternoster Row, which served as a retail outlet and a home. In other words, the family lived over the shop. They had three bedrooms of their own, and it seems they may have had two servants in the garret rooms. They were prosperous by the standards of the parish. But this was relatively modest middle-class living, by the standards of the time.

Despite all this, William and his two older brothers all went to distinguished public schools: Charles and Henry to Winchester College and William, the youngest, to Charterhouse – just half a mile from home. The explanation is that Charles Blackstone had “married up.”

Mary’s family, the Biggs, were landed gentry with substantial estates in Wiltshire. Dr Henry Bigg was Warden of Winchester, and his patronage is the likely explanation for the schooling of the older Blackstone boys. Mary also had well-connected cousins called Wither, and it seems it was they who were able to help get William into Charterhouse at the age of 7. When the family fell on hard times, the Withers were able to enlist support from no less a figure than the Prime Minister, Sir Robert Walpole. He, as a Charterhouse Governor, had the right to nominate a Foundation Scholar.

The evidence suggests that William was a hard-working, clever and well-liked pupil who flourished academically despite the sad loss of his mother, when he was only 12. As orphans, he and his brothers received more family support. In William’s case, the support included that of Thomas Bigg, an eminent surgeon at Bart’s Hospital, and heir to the Bigg estates.

At Charterhouse, William did well, becoming head of the school at the age of 15. He showed a keen interest in poetry, beginning a slim volume of poems and translations which he was to finish during his time at Oxford. He won a prize for an Essay in Latin on Milton, and left the school with gifts of books from the headmaster, John Hotchkiss. In November 1738, he matriculated at Pembroke, an Oxford College with a newly established scholarship for Charterhouse boys. Less than two years later, he had transferred to the Law Faculty. This was 9 July 1740, the day before his 17th birthday. Thus began Blackstone’s career as a legal academic, practitioner, and judge, which spanned the next 40 years.

Why then, is Blackstone revered in the United States and less well-known over here?

Probably the most significant reason is that his Commentaries gave a clear well-structured account of the common law of England, the law that does not stem from statutes, but from customary principles that have evolved over centuries. Blackstone was not sympathetic with the American Revolution. But with its emphasis on “natural law” and the fundamental rights of individuals, his work was ideally suited to a new English-speaking republic in need of a system of law that had few links to the monarchy. An illustration of his pithy style is so well-known that many forget or ignore its source

“It is better that ten guilty persons escape than one innocent suffer” [8]

US law was to a significant extent founded on Blackstone’s work, which is revered, and still cited in the Supreme Court.  This is not the case at home, where the Commentaries have been largely forgotten. Their reputation suffered early on from a ferocious attack by Bentham, a young firebrand at the time, who criticised the work for lacking principle. The work fell from practical use in the 19th century.

The Americans were also spared direct experience of Blackstone himself. This was an ambitious man, who rose to greatness from relatively ordinary beginnings, fighting his way determinedly to the heights of academic and judicial life, confronting and overcoming obstacles placed in his way by the forces of academic conservatism. Everyone knows how badly that can go down in some circles.

He did, also, have a prickly personality. As a Judge, he had a reputation for self-importance, haughtiness in court, and rudeness to Counsel. “Sour, morose and imperious” was one contemporary character summary. As anyone familiar with English advocates will know, they are fiercely independent and slow to take “industrial action”. But Blackstone managed to provoke a barristers’ strike at Bristol Assizes. His method: to demand that the Court sit at 7am.

These are not character traits that came upon Blackstone in later life. At Oxford, the satirical poet, Charles Churchill, described him as “the scowling Blackstone”. If we can put to one side his undoubted character flaws, however, his was a remarkable and admirable life.

Edward, Lord North (c. 1496 – 1564)

Let me now take you back about 200 years, to a date nearer the start of the history of these buildings, and before their acquisition by Thomas Sutton.

In the middle of the 16th century, Sir Edward North owned the buildings on this site. He made a ruin of the monastery and crafted a palace from the elements. In this place – in this room – he entertained Elizabeth I for about 10 days in all, before her coronation.    They say that ruined him.

North was a distinguished lawyer in his way. That term is used of him in one of the histories of this place.[9] He went to St Paul’s School, and then to Cambridge, apparently without taking a degree. But he was then called to the Bar and he became Counsel for the City of London, making a deal of money along the way.

North later became Chancellor of the Court of Augmentations. This is not a very transparent title, to modern eyes. The odd, almost Harry Potter-esque name conceals the reality. The Court was not an institution designed to try cases or resolve disputes. It was a body established by Henry VIII following the dissolution of the monasteries and the confiscation of the assets of the Catholic Church.  This is a process which can be likened in modern terms to nationalisation – without, of course, compensation.  The process was started in 1536 and complete by 1540.

An institution had to be set up to administer the plunder. Thus came into being the Court of Augmentations, the functions of which were to hold, administer, and realise the land and property of the Church. Lord North was put in charge, first as Treasurer (1541) and then as Chancellor, when a barony was conferred on him. That was in 1545.

The Charterhouse was one of the monasteries that fell to the Crown. It had to be sold off.  It was in about 1545 that Lord North, as he now was, apparently in need of a London townhouse, acquired the Charterhouse. It may not be the case that he bought it from the public body of which he was at the time the Chief Executive. There is evidence that others acquired it first. But it does not look very good.

North was certainly a good operator, as he kept his title, his possessions and his head through all the twists and turns of 16th century politics. He survived the reigns of Henry VII, Henry VIII, Edward VI, and Queen Mary, and lived on into the reign of Elizabeth. He died a natural death, in his 60s. But I think we can safely say that he is not the most distinguished lawyer of my six.

Sir Thomas More (1478 – 1535)

Winding back another 60 years or so, to the start of the 16th century, we find Henry VIII on the throne with the dissolution of the monasteries not even a glint in his eye. We reach the years when Thomas More was here.  Sir Thomas More, as he became, has been summed up as a lawyer, social reformer, author, statesman and Renaissance humanist. Since 1935, he has been Saint Thomas to those of the Catholic faith, a martyr for his beliefs.

Contemporary sources tell us that he lived here, in the Carthusian monastery, for 4 or more years, in the early 16th century, when he was in his 20s.

He was a local boy, born in Milk Street, just by the Guildhall, half a mile to our East, into a legal family. His father was a lawyer, who later became Sir John More, a Judge of the King’s Bench Division. Thomas went to Oxford in 1492, and then spent 6 years training at Lincoln’s Inn, a mile to our West.  He was called to the Bar in 1502. He became a member of Parliament, Reader at Furnival’s Inn, then practised as a barrister and later became a Judge himself, rising to the top job as Lord Chancellor.

More managed to combine his work at the Bar with a period of residence with the Carthusian monks. Not long after More’s death his son-in-law, William Roper, wrote an admiring biography. He recorded that, after his spell as Reader at Furnival’s Inn, More “gave himself to devotion and prayer in the Charterhouse of London, religiously living there, without vow, about 4 yrs.”

I think we can almost envisage the scene. Furnival’s Inn was one of the Inns of Court – an Inn of Chancery. It stood in Holborn, on the North side, where the Prudential Building now stands – about half a mile from here. The Inn was founded in 1383, two years after the Peasants’ Revolt, and a year before the plague that inspired the Charterhouse. It was there for about 600 years. But no longer. Today, there is a plaque commemorating the last Furnival’s Inn building, which was demolished to make way for the Pru in the 19th century. The journey was a short distance to the East, down the hill to the Fleet River (which today runs beneath Farringdon Road), across the river, and then uphill to the pleasant setting of the Charterhouse, just outside the City walls.

Why?  Harpsfield, a friend of Roper, suggested that More’s purpose was to see if he was fitted to the monastic life “or at least to sequester himself”. Another less elevated theory is advanced by Professor Caroline Baron of London University More was in his early 20s, still living with his mum and dad until the mother died and the father re-married in 1499. Was he was taking an opportunity to leave home, and escape the stepmother?

What was he doing here? The Catholic academic Dr William Fahey is President of the Thomas More College of Liberal Arts in New Hampshire. He has written of More as a “lawyer and statesman formed by Carthusians”. He explained the regime. More followed as closely as he could the rules of the Carthusians. He devised  his own abbreviated form of liturgy. But every day, he would rise at about 2am and pass the first several hours in contemplative and communal prayer. As all sources agree, More was continuing at this time to practice as a lawyer.  He was elected to Parliament, translated the life of Pico della Mirandola from the Latin, and learned Greek. On any view, that must have required a remarkable constitution.

But More has his detractors, and I do not pretend they lack evidence.  For instance, I have read Hilary Mantel’s account of this period, and More does not emerge with unblemished reputation. He was himself responsible for the execution of death sentences for religious dissent. He himself was convicted of treason, and executed, for refusing to renounce the authority of the Pope and acknowledge the supremacy of King Henry VIII. It is not my aim to resolve the disputes about More’s legacy. But his conviction is of interest. It followed, it must be said, a jury trial. But the case of treason which the jury swiftly found proved was based partly on his silence. More’s defence is famous. I have selected one aspect of it for today.

“… it is not lawful for me to be judged to death for… silence …, because neither your statute nor anything in the laws of the whole world can rightly afflict one with punishment, unless one has committed a crime in word or deed …”

This was not a new principle, but this expression of it can be seen as one of the sources of the right to silence which is an integral element of our criminal law.

More suffered the fate that was all too common in his day. He was sentenced to be hanged, drawn and quartered. The King mercifully commuted this to decapitation. On St Thomas’s Day, not far from here, at Tower Hill, he was beheaded.

Blackstone would have disapproved of an innocent being convicted; he would have been readier to see the guilty go free. A related issue is the question of the death penalty.  Lord Ellenborough would no doubt have been in favour. We can deduce some of More’s views on criminal justice from his famous work, Utopia. His was a distinctly more liberal view than that of Lord Ellenborough

“… putting thieves to death is not lawful; and it is plain and obvious that it is absurd and of ill consequence to the commonwealth that a thief and a murderer should be equally punished …”

He made no point about treason.

 

So, what now should we make of the proposition with which I started?

“The first thing we do, let’s kill all the lawyers.”

Can I offer three observations? I think I did mention that lawyers like lists. I should have added that we like lists of three best of all.

The first thing I would like us to do is to note that it is not lawful to kill all the lawyers.  This matters.  It has to be said that the views on criminal justice of some of my subjects were at the harsh end of the spectrum. Ellenborough in particular seems to have been a keen advocate of the death penalty for offences that might nowadays result in a non-custodial sentence. But whatever their views on legal policy all my subjects were, I am sure, believers in the rule of law – meaning, in this context, that what happens should be governed by law and not by discretion, caprice, or the arbitrary exercise of power by some autocrat or despot, because he or she can.

So today you cannot kill the lawyers, for three reasons. (Another list). One is that you always need a lawful excuse to kill a person. Secondly, before you can lawfully impose a punishment it is necessary to identify and prove an offence before you can lawfully impose a punishment.  Just being a lawyer is not an offence, at least not yet. Thirdly, of course, you cannot impose the death penalty on a lawyer because Parliament has abolished the death penalty. So one thing that comes out of this short review is the importance of the rule of law.

Secondly, though, I have to accept that my review displays the frailty and complexity of human nature.  It cannot be claimed that this institution or this place has left the stamp of goodliness on all these disparate characters.  Sir Thomas More was, or is, a Saint. Nico was a good man, with few critics that I know of.  So my sextet is bookended by good men and true. But each of the rest had significant flaws, some of which are all too obvious.  I think in particular of William Blackstone’s bad temper and his absurd suggestion that hearings in his court should start at 7am.  Ellenborough, again, is the chief villain, however.

Thirdly, I would like to suggest that we can see in my examples some fine illustrations of the good that lawyers, and even judges, can do.  Thomas More bravely argued against the death penalty, at a time when it was all too common. As I heard Dr David Starkey point out just a few weeks ago, this was an era when there was no compromise or compassion.  More stood up for his principles, and paid the ultimate price. None of the rest were so unfortunate, but my examples do show them all in their different ways as champions of the fundamental rights and freedoms of the individual.

We can see judges affecting people’s lives for the better by giving individuals protection against oppressive or unfair treatment, whether it be by the state or by private persons.  Mansfield, protecting the slave from being forcibly removed from the country. Blackstone, affirming the critical importance of being sure before convicting someone of crime – an aspect of the presumption of innocence. Ellenborough, for all his faults, proclaiming the right to life, and the duty of society to feed the starving. And Nico, standing up for the right to live as one chooses, and to keep one’s sexual affairs private.  These are examples of fundamental rights being recognised and protected.

So those are my three observations. But as many advocates have discovered over the years, one of the risks of numbered lists is that by the time you get to point three you have thought of a fourth.  So my fourth and final reflection is this:-

It is time, now, to recognise and salute the lawyers of the Charterhouse, in all their rich diversity, and to celebrate their achievements.

The Thomas Sutton Lecture 2019 was kindly sponsored by Diploma PLC

[*] A Judge of the High Court (Queen’s Bench Division), and husband of the 33rd Master of the Charterhouse (2017 – ), Ann Kenrick OBE.

[1] William Shakespeare, Henry VI Part 2, Act IV, Scene 2 (c 1591)
[2] Sir Nicholas Browne-Wilkinson, V-C, Stephens v Avery [1988] Ch 449, 454
[3] Sir Nicholas Browne-Wilkinson, V-C, Marcel v Commissioner of Police for the Metropolis [1991] 2 WLR 1118, 1130
[4] Lord Ellenborough, Rex v Inhabitants of Eastbourne (1803) 4 East 103; 102 ER 769
[5] Lord Mansfield, Somerset v Stewart (1772) Lofft. 1, 1; 98 ER 499
[6] Cartwright’s case (1569)
[7] By James Mason, now in the Scottish National Gallery
[8] William Blackstone, Commentaries on the Laws of England, iv.27
[9] Eardley Wilmott & Streatfield , p21

Screens kindly provided by Moonlite Productions Ltd

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