Now largely forgotten is a curious legal custom which persisted until the late 1800s in Essex. Personal recollections of which are given by Courtney Kenny (1905) in the article The Lawless Court of Essex in the Columbia Law Review Vol. 5, No. 7 notes:
“It was in 1878 that, on October 5th (the Tuesday following Old Michaelmas-day), I went down from London to witness the Lawless Court. The railroad could only take me as far as Southend, a watering place at the mouth of the Thames in the south-eastern corner of Essex. But even there I found, as the evening drew on, that some mysterious excitement was abroad. There seemed a gradual disappearance of the male inhabitants of the town between the ages of fifteen and fifty; the streets grew silent, and the public houses became deserted. I caught a stray youth whom an unenterprising disposition or a maternal injunction had detained at home, and asked him the reason of this sudden emigration. ‘It is Cockcrowing Night’ he replied. And in every village and hamlet throughout the Hundred of Rochford that watchword had been passing from boy to boy all day long–” It is Cockcrowing night.”
What was this court? Morant in his 1768 History of Essex states that at King’s-hill, about half a mile northeast of Rochford Church, in the yard of a house once belonging to Crips, Gent,, and afterwards to Robert Hackshaw, of London, merchant, and to Mr. John Buckle. Here the tenants kneel, and do their homage. The time is the Wednesday morning next after Michaelmas Day, upon the first cock-crowing, without any kind of light but such as the heavens will afford.
Why was it called whispering court?
Apparently those who appeared at the court
“all such as are bound to appear with as low a voice as possible, giving no notice, when he that gives not an answer is deeply amerced. They are all to whisper to each other ; nor have they any pen and ink, but supply that office with a coal ; and he that owes suit and service thereto, and appears not, forfeits to the lord double his rent every hour he is absent. A tenant of this manor forfeited not long ago his land for non-attendance, but was restored to it, the lord only taking a fine. The Court is called Lawless because held at an unlawful or lawless hour.”
Pivotal to this was a post called the Whispering post quadrilateral in section, five feet in height and topped with a conical carving representing a candles flame. Here the orderly line was formed about the post as the lighted torch was put out. Here the scroll and announced:
“’Oh yes! Oh yes! Oh yes!, all manner of persons that do owe suit and service to this Court now to be holden in and for the Manor of Kings Hill in the Hundred of Rochford draw near and give your attendance and perform your several suits and services according to the custom of the said Manor. God Save The King’”
The origins of the custom
Kenny (1908) notes that:
“Hundreds of years since, so their tradition ran, there had dwelt at Rayleigh a sturdy baron, who was Lord of the Manor of King’s Hill. One autumn night as he lay in bed he was disturbed from his slumbers by the premature and pertinacious crowing of a barn-door cock. He rose and sallied out; and, as he walked through the chill air, he overheard whispers. He listened, and to his amazement found that he was listening to a party of the vassals of his manor, arranging the details of a plan to murder him. I suppose he strode back to the manor house, and summoned Jack and Giles and Roger and all the other knaves and varlets of the household to his assistance. But whether he was thus backed by aid, or whether he was single-handed, matters little, for anyhow (so says the story) he interrupted the conspirators, convicted them of their treason, and made them tremble for their lives and their lands. Then, of his clemency, the puissant lord consented to a compromise. The crime should be pardoned, the forfeiture should be waived, the homage and fealty of the penitent rebels should be again accepted. But, to secure the perpetual remembrance of their crime, they and their heirs were forever to hold the restored lands by a shameful service.”
As a result as he continues:
“Year after year as the anniversary of the detected plot returned-the Wednesday following Old Michaelmas Day, i. e., following October 1st -the tenants of this Manor of King’s Hill should assemble, as soon as the midnight of Tuesday was past, in the open air, with no light but such as the sky might give, on the spot where their traitorous ancestors whispered over their plans. There the lord’s steward should whisper out the roll of their names with as low a voice as possible; and the tenant that answered not when his name was whispered should forfeit to the lord double his rent for every hour he was absent. The steward should have no ink and pen to record his minutes; the blackened end of a piece of burned wood must suffice to make all the entries on the roll of this court of shame. Nor must these assembled sons of traitors venture to depart when the business of the court was done. They were to linger on the hill through the cold night, until the bird of warning who defeated their fathers’ crime should give them leave to go.
From midnight, then, to the first cockcrow, must they wait upon the King’s Hill; at the crowing of the cock they were to be free to depart. And in this manner, for unknown centuries, was the court duly held. In something of this manner was it held even when I saw it.”
However as in these cases:
“The court indeed had long lost all forensic importance. For centuries past, no prosecutions and no litigation had taken place in it. Perhaps, indeed, no prosecutions ever had; for its title, ‘Curia Sine Lege’ has been conjecturally explained as ‘ the court without a leet-day.’ And it had ceased to do conveyancing work; no demesne lands or copyhold lands were controlled by it. It had become a mere settling-day for the payment of quit-rents and suit fines. Next, something had come to be conceded to the degeneracy of modern manners. Down to the earlier part of the eighteenth century the fine for non-attendance was still inflicted. But before I8oo the tenants had come to have more fear of late hours and autumn damps than of manorial penalties. So they became accustomed to pay their dues in the morning at the steward’s comfortable office; and to leave King’s Hill and its chilly starlight to the juveniles and the antiquaries. Moreover, even in the matter of the star light an innovation grew to be allowed; and a goodly supply of torches was not only permitted, but actually provided for the suitors. And in the point of cockcrowing, a perfect revolution gradually came about. First of all, a legal fiction was introduced for shortening the proceedings; a stout lunged Rochfordian being bribed to play the part of a cock, and crow lustily as soon as the business of the court was over; so as to save the suitors from having to w three hours for the notes of the veritable chanticleer, and having to incur meanwhile imminent perils of colds and coughs, ‘catarrhs and agues, and joint-racking rheums.’ Next, the paid expert was dispensed with; and the cock crowing was done on the voluntary system. And I found that, without any stimulus from manorial compulsion or manorial pay, the youth of Rochford accepted with spontaneous enthusiasm the steward’s slightest hint that the time had come for their services, and would go on crowing as long and as loud as could be desired by the deafest ten ant or the sleepiest baron. Yet, even with these maimed rites, the court would not have survived till near the end of the nineteenth century, had it not been for one further venerable and admirable usage, of which no mention is made by any of the reverend antiquaries who have described the use and wont of the Manor of King’s Hill. The lords of that ilk had for many a long year had a good old custom,-like fine old English gentlemen of the most olden time,-of spending all the profits of the manor in providing a good supper for the attendants at this Lawless Court. So year by year, when Cockcrowing Night had come, the lord called in all his antiquarian-minded neighbours. And there, in Rochford, at the good old hostelry of the King’s Head, they would sit and sup; as their forefathers had sat and supped.”
Kenny continues to note
“A good supper i’ faith it was, when I sat down at it in the year 1878. It was held in the traditional room, with the steward of the manor presiding in the traditional chair, over the traditional joint and the traditional apple-pie, and ultimately, with the most traditional of ladles, dispensing the traditional bowl of punch, compiled from a traditional receipt of preterhuman cunningness. A jovial supper it was; as we ate up and drank up, at our feudal seigneur’s bidding, all the proceeds of his quit-rents, and chief rents, and fee farm rents, and fines of suit, and profits of rendre and prendre.”
But this curious mix of ancient pointless custom, feast and legal duty did not last beyond Kenny’s description. By the beginning of the Twentieth Century saw the ending of The Whispering Court, and despite a mock revival by the local history society, which I believe no longer enact it, and all is left today is the house, a private dwelling and in the grounds the whispering post.