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Volume 7 Number 3 Volume 7, Summer 1961, Number 3 Article 5

Withernam: A Legal Practical Joke of Sir Thomas More Withernam: A Legal Practical Joke of Sir Thomas More

J. Duncan M. Derrett

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WITHERNAM:A LEGAL PRACTICAL JOKEOF SIR THOMAS MORE

J. DUNCAN M. DERRETT*

T HOMAS STAPLETON' TELLS a joke in illustration of More's character.The joke itself has been wrongly reproduced in some later works.

On the whole its meaning has been misunderstood, and it is time thatthe point of it should be explained, so that More's intention can beknown. There was not a little of the rascal in More's make-up, and thefun which he had with his victim on this occasion deserves to be morewidely enjoyed.

The JokeStapleton says: 2

Quum Bruxellis legatione apud Carolum V Imperatorem fungeretur,accidit ut in tam celebri Aula nescio quis gloriosulus affixa ad valuas chartain omni cuiuscunque iuris quaestione, adeoque in humanae literaturaescientia, omnes ad certamen prouocaret: paratum se dicens cuicunquequaestioni respondere ac de quacunque disputare. Thomas Morus visahominis petulanti vanitate, hanc ex iure Britannico quaestionem proposuit.

*M.A. (Oxon.), Ph.D. (Lond.); Barrister-at-law; Scholar in Classics of Jesus Col-

lege, Oxford 1940-42, 1945-47; Lecturer in Hindu Law, School of Oriental andAfrican Studies, University of London 1949-56, and since then Reader in OrientalLaws.1 Lived 1535-1598. See DICT. NAT. BIOG.2 TRES THOMAE 265 (Duaci (Douay) 1588). As translated the episode reads asfollows: "When he was at Brussels on an embassy to the Emperor Charles V itchanced that some braggart in that illustrious Court affixed to the wall a paper inwhich he issued a challenge to all and sundry. He professed himself ready to answerany questions or dispute upon any point in law or literature. Seeing the man's vanity,Thomas More proposed the following question in English Law, 'Whether cattletaken in withernam be irrepleviable?' adding that one of the suite of the Englishambassadors desired to dispute upon that subject. The braggart could of course makeno answer to a question of which he did not even understand the terms, and wasforced to acknowledge his vanity in thus issuing a general challenge, becoming thelaughing-stock of the whole Imperial Court." See STAPLETON, LIFE AND ILLUSTRIOUSMARTYRDOM OF SIR THOMAS MORE 138-39 (Hallett transl. 1928).

Utrum aninalia capta in Withernamia sintirreplegibilia:3 addens esse in familia LegatiAnglici qui de ea disputaret. Ad hanc quaes-

tionem quum nihil ille gloriosulus respon-dere posset, ac ne terminos quidemintelligeret; et suam ipse vanitatem ita gen-eraliter omnes prouocantem agnoscere co-

actus est, et per totam celeberrimam illamAulam non sine risu acceptus.fuit.

The story is perfectly clear. Thomas

More (who, we know, was in the habit of

disputing in foreign universities whenever

he happened to be on the continent on mis-

sions) offered to dispute with one of the

jurists of the Imperial court on a question

of English law. The jurist declined to ac-

cept the question. It is plain that his chal-

lenge to all comers who might choose any

topic in law or letters they fancied was

ill-mannered at a time when foreign as

well as native savants were in the vicinity

of the court; and it was especially ill-man-

nered when a man of More's tremendous

reputation was at hand. But it was not in

itself an unusual proceeding, since no one

could proceed to a doctorate without ex-

posing himself to public disputation in the

different branches of learning that were

relevant to his claim for promotion, and

this sort of public challenge fitted into the

rontemporary intellectual scene sufficiently

well. That he should offer to dispute upon

any topic in law and letters may surprise

those who are unacquainted with the state

of legal studies at that time (1521). The

movement then was in favour of ousting the

leading jurists, the associates and academic

descendants of Bartolus, and replacing

them with humanists learned in the cultural

environment of the authors of the various

component fragments of Justinian's Corpus

3 For the correct form of the question see text

accompanying and following note 8 infra.

7 CATHOLIC LAWYER, SUMMER 1961

Juris. At this very period, Bud6, Alciati,and other celebrated innovators in legalstudies were turning legal interpretationupside down. They were insisting upon in-terpreting the original sources of Romanlaw in terms of recently-recovered Latinand Greek texts and the still more recentlygarnered comparative and historical learn-ing. The pegs upon which the Bartolistshung their rules were ruthlessly chopjedoff. A comparison of editions of the CorpusJuris published before the Alciatists hadestablished their position (c. 1550) andafterwards gives us an immediate impres-sion of the effect of their influence. To bea leading jurist in the Emperor's court in1521 one must be a humanist in the true

sense of the word as well as a jurist, andone must be able to cite precedents fromPlato, Plutarch, Polybius, or Cicero, andnot rest content with what was done by theFlorentines or the Venetians in the 14thcentury.

We notice that the jurist refused More'squestion, but we have only Stapleton'sword for his reason, and the results ofhis refusal. How did Stapleton come toknow this story, which is not known fromany other source? Stapleton, whose bril-liance and competence are well known

amongst historians of Catholic apologeticsin the 16th century, was a scrupulousworker, and can be relied upon to copy

out only what he had on good authority.Biographers of More have not hesitated to

follow him in relating the tale, 4 though it

4 LYFE OF SYR THOMAS MORE 112 (Hitchcock &

Hallett ed., London, 1950). Here we see that theword averia is correctly substituted, but in his

enlargement of the challenge so that it embraces"civil, common, municiple, or any point of otherlearning" he is doing the challenger a little lessthan justice. M.T.M., CRESACRE MORE or LIFE

AND DEATH OF SIR THOMAS MOORE 83 (c. 1631)

THOMAS MORE

must be admitted that it has not recom-mended itself (one wonders why) to allrecent biographers of note.5 Stapleton wasin close touch with descendants and asso-ciates of More, and if the tale had beenknown to them he could have obtained itfrom them. I suspect that this was hisprimary source. He could not himself haveverified unaided the question, which is atechnical question of English law; and weknow that some of More's connexions inexile were acquainted with law, and werelong in touch with William Roper, whowas a lawyer.

He could have obtained it from a writtenrecord, such as some notes of William Ras-tell's, which have survived only in frag-ments. But from whatever source he ob-tained it, confirmation of the event and itsgeneral upshot could easily have been ob-tained from the place where it is supposedto have occurred. Stapleton was in Louvainshortly after the accession of Queen Eliza-beth 6 and spent a great part of his life inwhat is now Belgium. The law teachers inBelgian universities would be likely to re-member the discomfiture of the jurist, andfor a very good reason. There is no proof

or 70 (Hunter ed., London, 1828) also has averia.HODDESDON, GENT., THO. MORI VITA ET ExITUS

or THE HISTORY OF SIR THOMAS MORE 26 (Lon-

don 1652), retains or inserts the averia; but whenhe follows CRESACRE MORE, op. cit. supra, insaying "what Art soever" he too exaggerates theterms of the challenge. BRIDGETT, LIFE AND WRIT-

INGS OF SIR THOMAS MORE 190-91 (London1891), copies Stapleton and later derivative ver-sions. He stages the event (following CresacreMore) at Bruges, where we know More had beensent, but Stapleton's Bruxellis does not meanBruges.5 The story does not appear in Chambers' biog-raphy (1935), but appears with a minimum ofcomment in REYNOLDS, SAINT THOMAS MORE 176(1953).6 His movements are detailed in the article in theDICT. NAT. BIOG.

that he was a Belgian, or even a German. 7

He was almost certainly one of the seniorjurists attached to the Imperial court, andmight have come from any country in Eu-rope. He was obviously drawing attentionto himself, and this implies rivalries, andhis ill luck must have caused delightamongst the resident jurists who wouldhave been keen to know what sort of mennormally advised their Emperor. Admit-tedly Stapleton was on the spot forty yearsafter the event, but the occasion will havebeen remembered. It was a moral story, aswe shall see, for the edification of alldoctorands.

Transmission of the Joke

Naturally, since there is no independent

source we are not concerned with distor-tions or embellishments of the tale in laterwriters. But a curious alteration appearsin the pages of the famous historian andexpositor of English law, Blackstone, whichhas resulted in false reports of the tale inlater, highly respectable writers.8 Black-stone, whilst discussing the law relating towithernam, says:

The substance of this rule composed theterms of that famous question, with whichSir Thomas More (when a student on histravels) is said to have puzzled a pragmati-cal professor in the university of Bruges inFlanders; who gave a universal challenge todispute with any person in any science: inomni scibili, et de quolibet ente. Uponwhich Mr. More sent him this question"utrum averia carucae, capta in vetitonamio, sint irreplegibilia;" whether beastsof the plough, taken in withernam, are in-caoable of being replevied.9

7 3 HOLDSWORTH, HISTORY OF ENGLISH LAW 284(4th ed., London, 1935): "omniscient German."8 See note 7 supra. Holdsworth merely copiedBlackstone with the unnecessary embellishmentindicated above.9 3 BLACKSTONE, COMMENTARIES ON THE LAWS

He gives a reference to Hoddesdon'sLife of More,10 but when we turn to it wefind that the errors with which the tale inthis form bulges cannot be attributed toHoddesdon, who has been reasonably faith-ful to his authority. In fact what has hap-pened is this: an English lawyer, consider-ing the question as reported by Stapletonor writers depending upon him, thoughtthat that the question was not sufficientlydifficult, it being one which could be an-swered without great difficulty by anyonewho knew English law. But he did know ofa complication which would make the ques-tion almost insoluble. That such a man hadlooked at the question is clear from the al-teration from animalia to averia. Averia isundoubtedly correct, and Stapleton, whoafter all had little idea what had actuallyhappened, was in no position to correct thetradition as he received it. Averia arebeasts, such as cows, pigs, and the like;animalia is slightly wider, but is not thetechnical expression. Averia carucae,"beasts of the plough" were specially pro-tected in the context of attachment (to beexplained below) by an English statute,"which the foreign jurist cannot have knownof; and, as a result, the question, if it hadbeen posed in that form, would have beenextremely hard for an English, let alone aforeign jurist.

This corruption, well intentioned thoughit was, has made it difficult to understandMore's motive, but fortunately we can re-

OF ENGLAND 149 n. v (6th ed. 1774). Blackstonein fact used CRESACRE MORE, op. cit. supra note4.10 HODDESDON, op. cit. supra note 4.11 Stat. 1266, 51 H. 3, St. 4 in Ruffhead's edition,printed among the Statutes of Uncertain Date inthe Statutes of the Realm (JowITT, DICTIONARYOF ENGLISH LAW (London 1959), where replevinand withernam are dealt with at pp. 187, 308-09,1527).

7 CATHOLIC LAWYER, SUMMER 1961

turn to the original as Stapleton left it, andthat is good enough. A slight modificationgives us the question, an averia capta inwithernamio sint irreplegibilia? "Can beaststaken in withernam be replevied?" In non-technical language, can cattle that havebeen seized by due process of law in re-prisal for the owner-defendant's havingdriven over the border the cattle which hehad seized in distraint for a debt he claimedwas owed to him by the plaintiff, be re-covered by the process of replevin while thecattle originally taken by him have stillnot been delivered to the plaintiff and thewithernam discharged? What was the pointof this question? To show that a juristwho did not understand English law wasa fool to issue such a challenge (as Staple-ton thought)? I think not. The position wasnot as simple as that.

Withernam and Law on the Continent

The nature of the process of withernamhas been explained many times, 12 and itfeatures frequently in the early law reports.It was a primitive process essential, when

12 3 BLACKSTONE, op. cit. supra note 9, at 147f;Jowir, op. cit. supra note 11. Withernam is men-tioned in passing in PLUCKNETT, A CONCISE His-TORY OF THE COMMON LAW 448 (5th ed., London,

1956), but replevin is discussed at length at pp.367-69. Exactly contemporary with More wasJustice Fitzherbert, whose Nova Natura Breviumgives ample material on withernam (1730 ed., pp.155, 157-58, 169-72), but although it is noticedthat withernam is not available if the defendant ap-pears, the answer to More's question is not given.Other relevant references are RASTELL, COLLEC-CION OF ENTREES fos. 623v-27r (London 1566);BROOKE, GRAUNDE ABRIDGEMENT fos. 337r-38r(London 1573); FITZHERBERT, GRAUNDE ABRIDGE-MENT fos. 364v-65r (London 1577); DODERIDGE,ENGLISH LAWYER 74 (London 1631) ("so theword Wythernam, yet much in use, drawne fromtwo old and outworne Saxon words wither, al-teruin, and nam, pignus; quasi altera pignorisoblatio.") COKE, SECOND PART OF THE INSTITUTES

140-41 (London 1642).

THOMAS MORE

a replevin was frustrated, to mitigate dam-ages due to distraint upon cattle, as indeedwhere men or women had been seized toenforce some claim. 13 The essential featureof withernam was the appeal to lawfulauthority to take cattle in order to forcethe defendant to give the plaintiff justice.The king's court gave a writ of withernamwhen the defendant had driven the cattleover the county boundary in order to es-cape a replevin at the plea of the plain-tiff in the court of the hundred or the sher-iff's county court. The writ was directedto the sheriff of the county where theplaintiff's cattle had been distrained upon,and where the defendant had cattle of hisown. This jurisdiction arose out of theking's duty to secure justice to his subjects,though their adversaries might reside invarious counties.

There seems to be some obscurity as tothe origins of the process, but, whateverthe correctness of the supposed Latinequivalents, and whether or not Coke wasright in distinguishing vetitum namium fromwithernam (it seems he was, but Blackstoneignored him),14 the process was well knownin Scandinavia and Germany and the LowCountries. Wither and nam, meaning "retri-butive" (or "reciprocal") and "taking"would be terms any Dutch lawyer, for ex-ample, would understand without transla-tion.15 Nam for taking in distress or distraint

13 3 BLACKSTONE, op. cit. supra note 9, at 129.14 COKE, op. cit. supra note 12; 3 BLACKSTONE, op.cit supra note 9, at 149. 2 POLLOCK & MAITLAND,HISTORY OF ENGLISH LAW 524, 577 seems tofollow Coke, and links the passages in Bractonand Britton with an action called vee de naam fordamages for retaining beasts after gage and pledgehave been tendered. They shrewdly avoid com-mitting themselves as to whether there was anyhistorical connexion with withernam. One doubtsit; so did Lambard.15 On the derivation see COKE, op. cit. supra note12; GROTIUS, cited at note 26 infra; SMITH, cited

was known from Normandy to Norway, andthe word replegiare, to replevy, was a lawFrench expression which was part of theheritage of England and the northern con-tinent alike. If the jurist was, as is possible,a Frenchman attached to the court of theHoly Roman Empire there is every likeli-hood that he and his assistants would bequite familiar with what was meant bywithernam and irreplegibile. But even ifthey were not, why should they not haveaccepted the question, and commenced byasking the questioner to formulate hisquaestionem de iure communi sive iurenaturali in terms significant to the doctorsof civil law who would be listening, andwould require the customary terms to betranslated? It is quite certain that civilianswere used to dealing with customary laws,and to hearing common institutions namedwith peculiar local names. 16 But there was

at note 18 infra; STIERNHOOK, DE JURE SVEN-ONUM ET GOTHORUM VETUSTO 126f (Holmiae(Stockholm) 1672) (nam: unde witernamiumest, quo hodie Saxones et Angli repressalias (sic)notant); 1 HICKES, LINGUARUM VETT, SEPTENTRIO-

NALIUM THESAURUS 164 n. (Oxford 1705). Thelast cites the ancient custom of Normandy, title dedelivrance de namps (obviously akin to replevin,as he suggests, though he was no lawyer).

16 Bartolus says pignorationes are known by vari-

ous names (e.g., clarigatio, presa) in differentplaces in his Tractatus Represaliarum (composed in1354) printed in, e.g., SUPER AUTHENTICIIS ET IN-STITUTIONIBUS, BARTOLI A SAXOFERRATO COM-

MENTARIA 327-40 (Basileae (Basel) 1588), ourleading treatise on the subject. Other civiliansearlier than More are cited in the margin of the1588 Basel edition of Bartolus on the first partof the Codex, p. 84 (rubric: De Judaeis et Caeli-colis, Nullus tanquam, Cod. I, ix, 14). The Ro-mano-canonical jurists frequently allude to thehabits of people of various localities, sometimeshumorously. Angelus de Gambilionibus Aretinus,commenting upon the Institutes of Justinian, saysthat by custom a contract may be binding onlywhen it is drunk on, for the idiotae of Tuscany saythe bargain is "done," when super hoc biberunt.

a good reason why the question should nothave been taken up, for it was understoodonly too well: we shall come to this shortly.

No doubt since Stapleton's day it hasbeen assumed that More's question was afoolish question to put to a continentallawyer, about as foolish as the lawyer's

own challenge. One imagines a case wheresome monks are about to hold a mediaevaldisputation and invite questions on HolyTheology. A theologian from Cairo askswith the aid of how many angels Muham-mad ascended into heaven; and anotherfrom Calcutta asks whether the god Vishnushould be shown with six or eight arms.But there is no similarity here with suchpreposterous questions. The civilians as-sumed that English law, for all its peculiari-ties (many of which horrified them),17 wasas capable of being comprehended in termsproper to the Roman law, to them the uni-versal law, as was Scots law. And theEnglish civilians held no different opinion.Sir Thomas Smith describing English in-stitutions about half a century later hasnot the least hesitation in assuming thatthey are comprehensible against a Romanlegal background."8 An even more strikingcase is that of Sir Thomas Ridley, anotherEnglish civilian, whose description of thecivil law is designed to fit English needs,with a most curious effect from the point of

17 See for example the Relatio de Regno Brittanico

attributed to a Venetian ambassador and re-printed in J. de Laet of Antwerp's edition ofSmith's De Republica Anglorum, Lugduni Bata-vorum (Leyden), 1641, at pp. 418f.1 SMITH, DE REPUBLICA ANGLORUM (Alston ed.,Cambridge, 1906). The first edition appeared in1583, but the work was written in 1565. Smithwas a younger contemporary of More, a D.C.L.of Padua, Vice-Chancellor of Cambridge, andSecretary of State (see DICT. NAT. BIOG.) Hiscomments on the word withernam appear at page135 of the 1906 edition (see note 25 infra).

7 CATHOLIC LAWYER, SUMMER 1961

view of a common lawyer.19 When HenrySwinburn wrote on the law of wills he wroteas one expounding the civil law as modi-fied by English custom and statute, andto him the peculiarities of English law werein many places to be attributed to England'sfollowing the ius naturale rather than theconstitutions of the Emperors. 20 How muchthe law of the Chancery was affected bythe learning of the Bartolists in 1521 is notknown, but that courts of requests andsimilar equity courts were staffed by menlearned in the civil and ecclesiastical lawlike Christopher St. German is alreadywell known. That the ecclesiastical andadmiralty courts were served by civilians isnotorious, and prior to 1535 civil and canonlaw were still very much part of the lawof the land.

One may object firstly that continentalcivilians concerned themselves with Romancivil and ecclesiastical law, and secondlythat a process like withernam, known tocommon lawyers, was well outside theirconcern. Neither of these points is true.Firstly, it was a point of honour amongstFrench and German civilians of the periodto work up their discussions of customarylaws, legislation or imperial placita into apicture totally comprehensible in terms ofthe universal legal system. The famous An-dreas Tiraquellus (Andr6 Tiraqueau)gained much of his reputation by writingupon the customary law of a French prov-ince in such a fashion as to weave the cus-tom and the civil law into one garment. 21

19 RIDLEY, A VIEW OF THE CIVILE AND ECCLESI-

ASTICALL LAW (2d ed. (Gregory) 1634).20 SWINBURN, A BRIEFE TREATISE OF TESTAMENTS

AND LAST WILLES fo. 19 (London 1590-91) andin many other places.21 Tiraqueau and More were contemporaries, andTiraqueau knew More's work as he cites from it.His magnum opus in customary law was the cele-

THOMAS MORE

Further, the institution called withernamwas an illustration of a wider category ofprocess, with which both civilians and com-mon lawyers were perfectly familiar, andwhich had its roots in Roman law. If thedefendant did not agree to enter a defenceto an action, or left the town or jurisdiction(whether it be a county or a country), andin some places even if it was suspectedthat he might leave or attempt to delayjustice, property of the defendant could beattached provided it was within the juris-diction and subject to certain other verygeneral requirements. In the city of London,for example, which More knew extremelywell, and whose peculiar customs werebetter known to him, we may be sure,than the intricacies of the Roman law, thereexisted the special process known as"foreign attachment," whereby a plaintiffcould distrain upon any goods or moniesowed to his-defendant unless the latter gavesecurity to appear and defend the actionin the city court. 22 It was said that this andsome other customs known in certain Eng-lish boroughs and cities was a legacy fromthe Roman period, but the truth of thishas not been established. The civil law wasfamiliar with an institution known as pig-noratio, which is the taking of pledges(i.e., distraint) out of the property of per-sons other than the defendant in caseswhere the defendant has left the jurisdictionor has concealed his property, and in or-der to bring pressure to bear upon the

brated De Legibus Connubialibus. For his workon customary and other laws see the extraordinar-ily thorough BREJON, ANDRE TIRAQUEAU (Paris1937).22 BOHUN, PRIvILEGLA LONDINI (London 1702) isvery rich on the special commercial customs ofLondon. PULLING, LAWS, CUSTOMS, USAGES AND

REGULATIONS OF THE CITY AND PORT OF LONDON

(2d ed., London, 1854) is also useful, containingas it does references to old authorities.

court of the jurisdiction to which the de-fendant is amenable to give justice to theplaintiff.2 3 This curious process is an exten-sion of the process of attachment againstthe goods, etc., of the defendant within thejurisdiction, and it is available only uponsuit to the ruler, who can grant a pignoratioto the plaintiff against goods, etc., belongingto fellow-citizens of the defendant. Only inthe last resort, and in order to achievejustice indirectly when direct methods areimpracticable, were these pignorationesused: but it is clear that they were fre-quently adopted in the Middle Ages. Thejurists tell us that the common or vulgarname for pignoratio is represalia, i.e., "re-prisal(s)".2 4 The whole subject is wellknown to international law.

Now withernam, though differing fromrepresaliae in important and obvious re-spects (for it was in use inside a country,and the goods distrained upon were thoseof the defendant himself), was identifiedby contempories with represaliae.25 Hugo

23 In the civil law this remedy was subject to the

important and difficult constitution of Justinian,the fifth/seventh Novel of the fifth collectionor "collation" Nov. 52, ut non fiant pignorationes.See BARTOLUS, op. cit. supra note 16, at 63 (wherehe anticipates succinctly material in his Tracta-tits).24 BARTOLUS, op. cit. supra note 16. GAILL, PRAC-TICARUM OBSERVATIONUM .. . LIBRI DUO (Colo-

niae Agrippinae (Cologne) 1601), DE PIGNORA-TIONIBUS (separately paginated), a work of about1578. See particularly pp. 182, 183, 186. RIDLEY,op. cit. supra note 19, at 95.25 SMITH, op. cit. supra note 18, at 135, says: "Thesame Littleton was as much deceived in withernamand diverse other olde wordes . . . it is in plainDutche and in our olde Saxon language, wythernempt, alterum accipere, iterumn rapere, a wordethat betokeneth that which in barbarous Latine iscalled represalia, when one taking of me a dis-tresse, which in Latine is called pignus, or anyother thing, and carrying it away out of the juris-diction wherein I dwell, I take by order of himthat hath jurisdiction an other of him againe or of

Grotius says: 26

Another form of the enforcement of rightby violence is "seizure of goods" or "thetaking of pledges between different peo-ples." This is called by the more modernjurists the right of reprisals; by the Saxonsand Angles "withernam," and by the French,among whom such seizure is ordinarily au-thorized by the king, "letters of marque."This enforcement of right occurs, as thejurists say, where a right is denied.

An even closer identification was open to

them with what was known in Germany asGegenpfandung (repignorationes, i.e. mu-tuae et reciprocae pignorationes), a de facto

customary institution viewed by the civil-ians with disfavour on principle.2 7 From thisit is plain that the institution known aswithernam was no stranger to the jurists of

the region in which More was, and thatthe relevance and point of his question willhave struck them at once.

The Point of More's Question

Looking at the question as a common

lawyer, the point is limited. The writ of re-plevin is available where there has been awrongful taking, and in order that posses-sion may be restored so that the plaintiff

some other of that jurisdiction, and doe bring itinto the jurisdiction wherein I dwell, that byequall wrong I may come to have equall right.The manner of represalia, and that we call wither-nam, is not altogether one: but the nature of themboth is as I have described, and the proper sig-nification of the words does not much differ." TheFlemish translator of Smith, who elsewhere didnot scorn small additions and amendments, repro-duces this passage with no appreciable amend-ment, and when he says, for "Dutche," Germanicewe take it that he knows the force of what he issaying.26 11 GROTIUS, DE JURE BELLI ET PACIS iii, 626(Scott transl., Oxford, 1925).27 GAILL, op. cit..supra note 24, at 198-99: pigna-

torus . .. via iuris, non facti, id est repignorationis,ius suum et possessionem dejendere tuerique debet.

7 CATHOLIC LAWYER, SUMMER 1961

shall suffer no loss until the right of posses-sion is adjudged.28 A capias in withernarnis a pending process, and does not affect theright to possession, still less property.2 9 It

is available by way of reprisal in order toprevent the defendant from delaying thereplevin, and thus bringing upon the plain-tiff additional losses merely by taking ad-vantage of the constitutional division ofthe country into counties, etc. Nothing thathas been taken in withernam has beenwrongfully taken: 30 It follows from thewithernam that the law has decided tobring pressure to bear upon a man who isrefusing the offer of security from theplaintiff, and is wrongfully refusing to sub-mit his case to justice. In the long runthe averments of the defendant may leavethe plaintiff with no remedy, if the actionwas misconceived from the commencement.But refusal to restore the original cattlein response to the replevin was a wrongfulact, and withernam was a lawful rejoinder.He in his turn can have a withernamagainst the cattle of the plaintiff if thelatter eloins (sends out of the jurisdiction)the cattle taken in withernam after he, thedefendant, has won the first round of thebattle.

Thus there is no question about it.Britton had long ago declared: to replevythe cattle taken in withernam is beyond thedefendant's power. 31 He must restore the

28 BLACKSTONE, op. cit. supra note 9.29 See the careful discussion in I LORD RAYMOND'SREPORTS 613-14 (2d. ed. (Wilson), London,1765), the case of Moor v. Watts.30 COKE, op. cit. supra note 12, emphasizes this.311 BRITTON 138 (Nichols transl., Oxford, 1865)says, "And if the beasts are shut up within a houseor within pound, or if they are driven out of thecounty, or if the bailiff meet with other disturb-ance, let him immediately cause beasts of the de-forcer to be taken to the extent of double thevalue by way of withernam, and keep that distresswithout permitting it to be replevied, until the

THOMAS MORE

original cattle upon which he distrained,whereupon the withernam comes to anend, for after he has given security to de-fend the plaintiff's action the sheriff will beordered to deliver the defendant's cattletaken in withernam.32 It might be arguedthat there is nothing except a very techni-cal point of English law to prevent a re-plevin of such cattle. This is incorrect. Onecould discover this by attention to firstprinciples. An attachment of a thing takenin reprisal for a denial of justice cannot bereleased upon an attempt to dissolve theattachment independently of the action inwhich that attachment was given by thecourt. He cannot have the attachmentlifted, for the court will not hear him untilhe has satisfied the original plaintiff. Re-plevin is based upon a wrongful taking, andby definition withernam is not wrongful.

But, says More, is that really so? Howdoes the civilian view such a situation?Firstly, is not withernam itself a process ofdoubtful validity? If it exists by statute, welland good. But in England it does not. Ifthe withernam is awarded in the king'scourt, no doubt it is good and repels anyattempt at replevin, for if pledges are tobe given by the defendant he must give

distress eloined be brought back." (Emphasisadded). This is assumed to be standard law byENEVER, HISTORY OF THE LAW OF DISTRESS 106-07 (London 1931), but Britton was very anti-quated (his period is c. 1270), and granted thatMore knew him in manuscript (he was not printeduntil 1534) his rule was evidently not judiciallyestablished until later. This actually emerged inMoor v. Watts (see note 29 supra) in the time ofWilliam III, but the seeds of the decision weresown much earlier and can be seen in Coke. Itgoes without saying that to take in withernammore than the value of the cattle distrained uponand eloined was quite incapable of justificationaccording to the civil law.32 The procedure is explained simply in JoWITT,

op. cit. supra note 11.

them in the original action. But what if thewithernam was obtained in the sheriff'scourt by plea? This was later to becomeunusual, but was in More's day still com-mon. 33 How had the sheriff, who had nojurisdiction over a man resident in anothercounty, and who had taken the cattle intoanother county, a right to seize cattle be-longing to that man in his own county?Was not withernam, like represaliae them-selves, contrary to natural and divine law?If this was so, what was the status of thiscustomary and widespread practice?

The jurist who affixed the challenge tothe doors in Brussels will have been pre-pared to argue, as Bartolus himself haddone, 34 that represaliae were consistent withnatural, divine, and imperial laws, providedthat certain conditions were compliedwith. 35 It will be remembered that wither-nam was characteristically a process grantedby the sheriff within his county, and it couldbe of men or beasts. At a time when it wasnot known whether the defendant had aright in the beasts, nor whether the plaintiffhad been wrong to withhold the rent orwhatever payment had been allegedly dueand had led to the distraint, attachmentwas ordered, and distraint placed, uponcattle, which by definition did not comewithin the scope of any previous attach-ment on the part of the plaintiff, and which

33 The lawyers practicing in London would dealwith the writs of withernam since proceedingscould be removed, and where they arose by pleaought to be removed in most cases, to the king'scourts by writs of recordari or pone, on which seeBLACKSTONE, op. cit. supra note 9, at 149, andFITZHERBERT, op. cit. supra note 12, under thosewrits.34 BARTOLUS, op. cit. supra note 16, at 328. Seealso GAILL, op. cit. supra note 24, at 182.35 The conditions were auctoritate superioris etiusta causa, following St. Thomas Aquinas (seenote 41 infra and accompanying text).

were not the subject of any legal claim. Ifthis was repugnant to reason it was repug-

*nant to natural law, and so (according tocontemporary ideas) void. The civilianshad had a great deal to say about repre-saliae, and the summary of previous author-ities given by Sylvester,36 More's Italiancontemporary and, like More himself, aredoubtable opponent of Martin Luther,contains many embarrassing points whichan English lawyer would like to hear dis-cussed.

Surely, says Bartolus, represaliae are notvalid in conscience, for divine law showsthat a sinner must bear his own wrong,and alius pro alio non potest capi.3 -7 Theserepresaliae were repugnant to natural rea-son. As a matter of fact the seventh title ofthe first book of the Constitutions of Naples(a famous collection of juridical material),de cultu pacis et generali pace in regnoseruanda, distinctly forbids presaliae orrepresaliae38 within the realm. Pope Greg-ory X notes that represaliae are forbiddenby positive laws, by local constitutions (e.g.,of Naples), and repugnant to natural equity,and he excommunicates those that issuethem against ecclesiastical persons. 9 Never-theless a text of St. Augustine upon iustumbellum (which would seem to have nothingto do with the matter) 40 and St. Thomas-36 Silvestro Mazzolini di Prierio, or Sylvester Pri-erias (c. 1456-1523). See Prierias in the ENCI-CLOPEDIA ITAL. His extraordinary digest of ecclesi-astical and legal learning, Summae Syvestrinae,was first printed in 1514.37 BARTOLUS, op. cit. supra note 16, at 327, refer-ring to Ecclesiasticus XVLL (apparently a slip ormisprint).38 PLACITA PRINCIPUM SEU CONSTITUTIONEs RE-

GNI NEAPOLITANI CUM GLOSSIS fo. 9 (Lugduni(Lyons) 1534).3" SEXTus LIBER DECRETALIUM V, 8, 1, the rubricEtsi pignorationes.40 LIBER QUAESTIONUM V1, 10; incorporated in

the second part of the Decretuin of Gratian:Decret: II, xxiii, 2,2, the rubric Dominus noster.

7 CATHOLIC LAWYER, SUMMER 1961

Aquinas on War, utrum bellare semper sitpeccatum,41 are relied upon to justify thepractice subject to the conditions men-tioned. We note that represaliae are likenedto acts of war. Sylvester says repraesaliaesunt quoddam bellum.42 The well-knownItalian jurist of an earlier age, Andreas abIsernia, 43 has some caustic remarks to makeabout represaliae, for to him the isolatedpassage of Augustine seemed not so un-harmed by the canon of Gregory as "mod-ern" jurists thought. He warns the ruleragainst the practice of reprisals within therealm, which he obviously thinks (as didall others) were eiusdem generis withforeign reprisals. 44

Sylvester makes it plain that reprisals ofpersons are totally forbidden (this wouldcut out the capias in withernam of a man)and adds secundum ipsum nulla consuetudovaleret.45 This is the genuine civilian speak-ing, and here is the attitude that Morewould have liked to see displayed in de-bate. Sylvester adds that in all reprisalsit is not the individual nor the foreign mer-chants that suffer, but the ciuitas or do-minus in his subjects. If he denies justicehe is made to suffer indirectly by his sub-jects' goods being seized. There is ofcourse no room whatever for this doctrinewithin a realm. And to make mattersworse Sylvester points out that only theprince can grant represaliae, except where

41 11-11, q. 40, art. 1.42 SUMMAE SYLVESTRINAE QUAE SUMMA SUM-

MARUM MERITO NUNCUPATUR, PARS SECUNDA 302(Antverpiae 1581 ).43 Andreae de Rampinis ab Isernia (c. 1220-1316). His Peregrina Lectura was published inMore's lifetime, but the edition referred to innote 44 infra appeared more than a decade afterhis practical joke.44 PEREGRINA LECTURA DOMINI ANDRAEAE ABISERNIA fo. 14v (Lyons 1533).45 See note 42 supra..

THOMAS MORE

he is a tyrant or ruler de facto and notde iure, in which case local governors (e.g.,sheriffs?) can grant them!

To sum up, withernam could survive inthe civilians' estimation only if it weregranted by the king's court, and against,say, the Scots, or the French (in respectof actions commenced in Calais). And inany case it was, like true reprisals, foundedupon a very shaky substratum of law, andmight be held to be contrary to Divine,Natural, and Pontifical Law unless con-ditions were observed which might notbe relevant. Thus if the capias in wither-nam, founded upon no certain claim in law,but only a hypothetical right to obtaindelivery of the cattle distrained upon, wereunlawful according to the fundamental lawsof the realm of England, replevin of cattletaken in withernam would be allowable!The extremely forced reasoning of HugoGrotius when he speaks of the justice ofreprisals and their derivation from ancientusage and convenience in his De lurePraedae46 does not attract us. He admitsthat men suffer who are not culprits (andit follows that goods not liable for a proveddebt - which must precede a valid attach-ment - ought to be free from such a proc-ess), yet. he tries to make out that theuniversal practice of monarchs is foundedon right as well as might. Some such de-bate could well have followed More'squestion.

More had several times been in the LowCountries on embassies.4 7 He knew Flem-ish lawyers, and was an intimate friend of

461 GROTItUS, DE IURE PRAEDAE 46-7, 104-08

(Williams transl., Oxford, 1950).47 In the years 1515 and 1517. It is to be notedthat he often represented the interests of the mer-chants of London in dealings with their counter-parts, e.g., Hanseatic League merchants. Nothingis known of the actual negotiations. See ROPER,

Gilles, a man at the heart of commerciallife at Antwerp. A comparison betweenthe commercial customs of the cities ofLondon and Antwerp must surely have en-tered their conversation, even if it is notrepresented in their surviving correspond-ence. More will have known what powerof authorising attachments of citizen andforeign merchants' goods was possessedby the courts of the commercial centres inthe northern territories of the Emperor. Hewill also have known the basic principlesof international law. He was an experienceddiplomat, and though he claimed no in-timate knowledge of canon law, he almostcertainly had more than a smattering oflegal knowledge on the Roman side.48 In

LYFE OF SIR THOMAS MOORE, KNIGHTE 9 (Hitch-cock ed., Oxford, 1935 (repr. 1958)).48 More's own statement, "For I neyther vnder-stand [the] doctors of the law nor well can turntheir bookes," CORRESPONDENCE OF SIR THOMAS

MORE 536 (lines 116-18) (Rogers ed., Princeton,1947), refers to the canonists, with particularreferences to ecclesiastical constitutional law. IfMore found it difficult to "turn their bookes" thereis many a student of our own days that can takecourage from his experience. In a recent articleby R. J. Schoeck of Princeton, "Was Sir ThomasMore a 'Roman Lawyer'?," (194 NOTES AND"

QUERIES 203 (1949)), a formidable case is madeout for More's not having been admitted to "Doc-tors Commons" in December 1514 (for the pur-pose of arguing the case of the Pope's ship). Thestiff requirements noted in IV HOLDSWORTH, op.cit. supra note 7, at 236, and cited by Schoeck,may not in fact have been applicable, and it isquite certain that if the King had wished it' Morecould have been admitted to the group of civil-ians who then composed what we would now callthe Admiralty and Prize Bar, non obstante anycustom or regulation to the contrary. ButSchoeck's main point is correct: More was highlyinterested in Roman law, but from the more orless academic angle of the sources of the funda-mental law of all countries. The internationalquestions in which he took a part, and the learn-ing of the scholars in the Low Countries withwhom he debated, will have helped to sharpen his

the affair of the Pope's ship in which he wasbriefed successfully on the Pope's side, hehad certainly had to argue points of in-ternational law, and the seizure of theship certainly suggests an attachment of athing belonging to a foreigner in order toenforce an appearance in an independentmatter.4 9 While he was one of the chiefjudicial officers of the city of London hewill certainly have looked into the allegedconnexions between London customs inthis context and Roman law. We shall notgo so far as to say that his presence in thetrain of the Cardinal in 1521 was duepredominantly to his knowledge of inter-national law: others could look after that,and he was there as the best advocate Eng-land could muster. But that a man of histemperament and learning could remainunacquainted with the embarrassing aspectsof represaliae is inconceivable. The truthwas that there was evidently a great dealof doubt in the Imperial court as to the ex-act place of represaliae in the legal set-upof the Empire. If the Holy Roman Empirewas really an empire, there was no justifi-cation for "reprisals" between any parts ofit.5O Between France and the Empire, or

interest. Natural Law was the subject of Utopia(1516), and fundamental law the issue in histrial (1535).49 Seeing that he was a lawyer, Roper's accountof this affair is singularly vague: ROPER, Op. Cit.

supra note 47, at 9-10. Apparently the case wasargued before an English civilian judge, and thePope's ambassador briefed More to appear forthe Pope as an expert in English law, and to serveas an interpreter for himself. The proceedingswere obviously in English (not French), thoughmany of the authorities will have been continental.More could not have acted without understandingthe pleadings and authorities, which will havebeen predominantly civilian.50 This is expounded in GAILL, op. cit. supra note24, and Gaill was a professional successor of thevery man who issued the challenge, a jurist at-tached to the imperial court.

7 CATHOLIC LAWYER, SUMMER 1961

between England and France, perhaps: aregrettable but justifiable institution. Butbetween Antwerp and Bruges, or betweenany of the states that made up the Empire,in fact between any two jurisdictions thatowed some allegiance to the same suprememonarch, it is difficult to make out why theinstitution should be allowed. And if thejurists (who stood to profit from the re-form) had their way, all such disputeswould come to the Imperial courts, and"reprisals" would issue only from thatsource, and only against the goods, etc.,of foreigners, e.g., the subjects of the Kingsof England and France, or of the Pope.

When the jurist refused to discuss thissubject with More it was because he wasclever enough to realise that the question,seeming like an innocent question in acustomary law, was in fact a trap. Silencewas the best part of discretion. To get intodifficulties on a subject of international andmunicipal law at the court of the Emperorin disputation with a member of a foreignembassy would not help his career. Somepeople may indeed have laughed at hisdiscomfiture, but they would not have beenlawyers, and he would be unlikely to en-lighten all and sundry as to the nature ofthe trap which More had set for him.

This episode, which must be genuine (forit is too clever for slender minds to haveexcogitated), shows More in a character-istic light. Humorous, but sharp; derisory,but sympathetic; sincere, but with a dashof sarcasm. This was rather a wicked prac-tical joke. Perhaps it was a just rebukefor a man who, instead of introducingMore to the learned company of thecourt and debating with him as More'shost upon subjects of More's own choosing,

(Continued on page 242)