Bastard Feudalism and the Law (Routledge Revivals)

John Bellamy

• Publisher: Routledge
• Year: 2013
• ISBN:
  9781134672585
• Edition: 1
• Topic: Histoire
• Subtopic: Histoire du monde

This title, first published in 1989, was one of the first to directly address the legal dimension of bastard feudalism. John Bellamy explores the role and vulnerability of local officials and juries, the nature of the endemic land wars and the interference in the justice system by those at the top of the social chain. What emerges is a focus on the role of land in disputes, the importance of royal favour and political advantage and the attempt to suppress disruption. This is an interesting title, which will be of particular value to students researching the nature of late medieval and early Tudor feudalism, royal patronage and legal procedure.

Chapter One

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SHERIFFS, JUSTICES, AND JURIES

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A sheriff, Sir John Fortescue tells us, shall be chosen in the exchequer on the day after All Souls by the council, the lords spiritual and temporal, the judges of the two benches, the barons of the exchequer, and the clerk of the rolls. These nominated for each bailiwick three knights or esquires of better repute and disposition of whom the king then chose one.¹ An appointee was supposed to hold his post for only a single year at a time (14 Edw. Ill st. 1 c. 7) and there must be three years between terms (23 Hen. VI c. 7). Who had the greatest influence on the selection of the Hiree candidates and the final choice of one of these (for the king must usually have acted on advice) must have been dictated by the politics of the time. A dominant monarch, who took a personal interest in legal administration, would have some idea whom he preferred, but rulers of a different disposition or occupied with more pressing matters would probably leave it to the council, or more likely to the minister or ministers who dominated there. Since it is the nature of man to be political, there can have been few occasions in the centuries under review when there were no factions within the council and when one of these factions did not have the king’s ear and confidence to a greater degree than its rivals. This dominant Court faction, probably headed by the king’s favourite minister of the time, would normally prevail in the sheriffs appointment. However, there may well have been times when one or several of the dignitaries who had a voice in the nomination were willing to cede their rights to members of the local nobility or gentry, perhaps to settle political debts. There is one such reference in the Pas ton letters but how frequent such aberrations were we cannot tell. The local gentry may also have been successful in having sheriffs they found obnoxious removed during their term of office.²

At the level of council at least, and very probably among the nobility and gentry at large, men knew what they wanted in a sheriff. This is clearly displayed to us in sixteenth-century correspondence and there is no good reason to doubt that similar views obtained in Lancastrian and Yorkist times. It was reckoned essential that the sheriff should have property in the bailiwick in which he would serve. He should possess a reasonable amount of land overall but he must not be litigious, at least he must not be engaged in more than a minimum number of lawsuits when his name was being considered. Nor must he be involved in any bitter factional dispute in the area or be known to have received substantial benefits in the recent past from one of the contesting parties. On the personal rather than the political side, youthfulness or a large family to provide for were definite disadvantages. On the other hand, it was considered meritorious to have been a regular member of the local peace commission (though one could not, of course, be a justice of the peace while sheriff), to be without debts, and not be a castle keeper. That he should not be the steward of a magnate was not a desideratum but a rule. Ideally, because it would mean he had fewer enemies in his bailiwick, the candidate for the shrievalty should hold land there but have his main residence outside it.³ Like the vast majority of justices of the peace, the sheriff was a member of the gentry and thus himself a part of the world of bastard feudalism, even if temporarily charged with authority over it.

The reason why the magnates and gentry with land in a particular county took interest in the personal qualities, territorial possessions, and political affinities of a candidate for the shrievalty was his future power, if chosen, as an officer of the central government to aid or hinder their ambitions or interests in that bailiwick. The aspect of the sheriffs authority with which they were most concerned was the administration of the law both on the criminal side and in the field of private suits. Twice a year, even into the seventeenth century, the sheriffs held tourns in each hundred in the month following Easter and Michaelmas. There they enquired by a freeholder jury of presentment of felonies and trespasses (homicide and other sudden death excepted), the indictments subsequently being forwarded to the justices of the peace for determination (1 Edw. IV c. 2) or for later handling at gaol delivery sessions.⁴ Once a month the sheriff was also responsible for holding a session of the county court to hear pleas of debt where the sum involved or the damages claimed was under 40 shillings. The sheriff and his officers (the undersheriff and the hundred bailiffs), men whom he himself had appointed and whose time in office could not exceed his own, had the power to arrest persons appearing suspicious or travelling armed.⁵ Under fourteenth-century statutes the sheriff took part in the examination of ‘roberdsmen’ and ‘draghlatches’ (5 Edw. Ill c. 14) and of vagabonds (7 Ric. II c. 5). By the Act 1 Ric. Ill c. 3 he was given authority to bail those who had been arrested for felony. The sheriff also had the power to order any person to find surety of the peace and it was he who frequently had the right to appoint the keeper of the county gaol, a task he would take care over since escapes from custody could cost him large sums in fines to the king.⁶ He also had the duty of certifying the names of the prisoners to the justices of gaol delivery when they held sessions. Another vital task of the sheriff concerned the property of those who came before the courts on criminal charges. From the fourteenth century, when a suspect had been indicted or on receipt of the second writ of capias (arrest), it was up to the sheriff to take into his keeping his goods; after the suspect was arraigned and convicted, the sheriff then took possession of the guilty person’s lands as well. A change in practice was instituted by a statute of Richard Ill’s reign: thenceforward goods, like lands, were not to be taken into the sheriffs hands before the suspect was tried and convicted.⁷

These shrieval duties of a legal nature might be performed in ways either detrimental or beneficial to particular members of the upper classes and their households and clients. The full force of the law might be used quickly and heavily against one group but the misdeeds of another ignored or the normal peace-keeping procedures implemented but slowly or slackly. This was clearly most important to the nobility and the gentry, but what concerned them perhaps even more than maintaining public order directly was how a sheriff conducted himself in the world of the ‘gentlemen’s wars’, the struggles for aggrandisement by litigation and self-help which characterize upper-class and even national society better than anything else over a period of at least three centuries. In this world felonies were rare but trespasses (of the non-commercial kind) and private actions numerous. A duty closely connected with these ‘wars’, and indeed the activity for which the sheriff was mentioned with great frequency in contemporary records, was the execution of writs, an essential feature of any litigation and a shrieval monopoly. The control of writs gave the sheriff considerable influence in local politics, for without proper communication justice could not be done since men would not know they were summoned to court nor, if a trial did occur, would the judgment of the court be implemented. By failing to serve writs a sheriff could get men into great legal danger and even cause them to lose their lands. The sheriff had it in his power to delay suits greatly and in so doing he was sometimes in covin with one of the contesting parties. From the fifteenth century there is evidence that, despite his oath on taking office, a sheriff might demand a substantial bribe before he would serve a writ or implement its instructions when the matter was a suit between parties.⁸ Particularly was this the case when the writ was a distringas (distraint) or a replevin (restoration) whereby a defendant’s goods were seized or returned.

The area where it lay in the sheriff’s power to affect the world of the upper-class feud the most was that of juries and their empanelling. Of the many aspects of litigation and criminal process which gave rise to concern and argument in the centuries under review, there was none which caused emotions to run higher than the selection of jurors and their potential for corruption. Although in practice jury panels for both personal actions and criminal cases were empanelled by his officers rather than by the sheriff himself, no panel was in fact supposed to be returned without his approval.⁹ All knew that a single jury verdict could lead to a person losing his whole inheritance once and for all because the opportunity to appeal the verdict to a higher court was very limited. A very good legal case indeed had to be made by the defeated party to the justices before they would countenance such a request. Those who knew the legal system well would advise a friend, when his suit was to be tried, to ‘labour’ immediately the sheriffs of those counties where the land in dispute was located.¹⁰ To ‘labour’ in this instance meant seeking to influence the sheriffs supposed neutrality in a particular direction, and it was usually accomplished by paying that official a bribe in cash. Fifteenth-century correspondence refers to this as though it was considered somewhat bold but not uncommon or truly reprehensible. The examples we possess show bribery in operation in private actions rather than when prosecution was at the king’s suit, and the design was that the sheriff in return for the bribe should install on the jury kinfolk, friends, associates, tenants, or former servants of one of the parties involved. In these actions, where possession of land was frequently at stake, much store was set on the obtaining of the jurors’ names before the court sat.¹¹ In theory (under the Act 42 Edw. III c. 11) the sheriff was obliged to array panels of jurors four days before the suit came to trial. This was so that the parties should have time to acquaint the jurors with their ‘evidences’, which were usually deeds demonstrating their claim to the property. Because over 90 per cent of lawsuits and quarrels among the upper classes from the fourteenth to the sixteenth centuries must have involved claims to land, and because these were settled by juries which were empanelled under the sheriff’s supervision, it is clear that the sheriffs favour was essential if one was to be a frequent winner in litigation.

On the criminal law side the situation was not dissimilar. The person against whom complaint was made endeavoured in the first place to ensure that the bill of assault, forcible entry, trespass, or even homicide, did not gain the approval of the grand jury and so become an indictment.¹² To achieve this the sheriff had to be persuaded, as in a private action, to load the jury with men who had an affinity with the person complained against or were persons at his command (baliffs, clerks) as the statute 23 Hen. VI c. 9 noted. If the bill of indictment was found to be true, then the petty jury had to be embraced (as the contemporary term was) in a similar manner and again it was the sheriff who could do it. For the complainant the problem was the same. He must try to arrange for sympathizers, relatives, or tenants to serve on the grand jury and the petty jury. If the criticisms of sixteenth-century legal writers about the shortage of actual indictments at that time reflected the situation in the fifteenth, we may conclude that complainants pestered sheriffs over empanelling of jurors somewhat less than did the accused and their associates.

The sheriff was also involved with bastard feudalism in a judicial or quasi-judicial capacity. It was a feature of the English criminal law, one relatively unnoticed by historians, that in the fifteenth century officials were on several occasions invested with the power to do summary justice against those suspected of offences connected with bastard feudalism such as riot and forcible entry.¹³ The recipients of these powers were primarily the justices of the peace yet the sheriff was also given a role. It is worthy of note that he had been allowed to do justice without the need for a formal enquiry by jury even in the fourteenth century. The Ordinance of Labourers (1349) stipulated that labourers who refused to work at the wage rates of 20 Edw. III for those who required their services should go to gaol until they gave sureties to so serve if their refusal was proven by two witnesses before a sheriff, constable, or bailiff. In 1383 sheriffs were given authority with justices of assize and justices of the peace to examine vagabonds and compel them, if in default, to find sureties for their good behaviour, or if they could not do this to put them in gaol.¹⁴ The first occasion the sheriff was given a role of this type which involved offences connected with bastard feudalism was under the great riot statute of 1411 (13 Hen. IV c. 7). This commanded that, when a riot was reported, two justices of the peace and the sheriff, with the posse, were to go to the scene of the offence and arrest the miscreants. If the three law-officers actually found the riot in progress on their arrival, their record of this was to be sufficient to convict the rioters who were to be lodged in gaol until they paid a fine. What catches the eye in this statute is the manner in which the sheriff was given the same powers as the justices of the peace. It did not occur in other statutes which provided members of the peace commission with authority to use judicial process of an abbreviated character. Nor did the sheriff appear in the most important of the Acts on forcible entry, 15 Ric. II c. 2, the procedure in which served as a model for the designers of 13 Hen. IV c. 7. In the early Tudor period, however, the sheriff made one appearance in criminal law legislation which was compar- able with his role in the statute of 1411. The Act 19 Hen. VII c. 13, which also ordered the fifteenth-century riot statute to be enforced strictly, stipulated that, where in cases of forcible entry the jurors would not find a verdict of ‘guilty’ because of interference and pressure by the parties accused, the sheriff might certify the names of the maintainers, which would have the effect of a conviction. This was power indeed, but it was soon lost. The Act ceased to be operative with the accession of Henry VIII and there were no similar windfalls for sheriffs in the remainder of the Tudor period.

It would have been remarkable had there been no laws enacted in the centuries under review to control and remedy the misbehaviour of so vital an officer to the doing of justice as the sheriff. In regard to his duties relating to bastard feudalism, there were between the reigns of Edward III and Elizabeth I at least seven statutes. The Act 20 Edw. III c. 6 set justices of assize to enquire into and try cases of the taking of gifts by sheriffs and other officials and the illegal making of panels of jurors. The Act 4 Hen. VI c. 1 provided for private suits with double damages against sheriffs extorting from those whose writs they were serving. The Act 8 Henry VI c. 9, designed primarily to provide remedy for those evicted from land by force or kept out by force, gave authority to justices of assize to try sheriffs accused of defaults. Charges were to be laid either by indictment or by the relatively new method of information, a process which would provide the informer, if successful, with half of the convicted sheriff’s forfeiture in addition to costs and expenses. The Act 23 Hen. VI c. 9 forbade the putting of sheriffs’ officers on inquests and the taking of anything to their profit ‘for ease or favour’ from those they had arrested; enquiry into these abuses was to be by justices of assize, of the peace, or of the two benches, but suit could also be brought by the victim (who could win treble damages). By the statute 11 Hen. VII c. 5 it was provided that two justices of the peace might examine sheriffs accused of mis-entering in the records plaints made in their tourns, while under 11 Hen. VII c. 24 justices of gaol delivery and justices of the peace were empowered when the suit was the king’s to remove unsuitable jurors from panels made by sheriffs and others. By the Act 27 Eliz. I c. 12 the rule was made that undersheriffs should swear an oath not to empanel corrupt juries; furthermore, justices of gaol delivery and justices of the peace might, without opposition from the sheriff, remove jurors and install new ones. Again complaint could be made by either bill of indictment or information. These Acts do not seem to have diminished shrieval authority and activity markedly but they demonstrate that the sheriff had come in time squarely under the supervision of the justices in regard to duties connected with bastard feudalism. This legislation cannot have done other than diminish the prestige of the shrieval office. It goes without saying that sheriffs were never empowered to investigate the behaviour of any justices.

The picture which emerges of the shrieval office in the years between c. 1350 and 1600 is not therefore one of marked decline or supercession. The sheriff may not in his duties relating to public order have been the great power he was at times in earlier centuries but the position, which still provided the holder with a number of judicial duties, was certainly quite crucial in the quarrelsome world of bastard feudalism. This was particularly through the authority to empanel ...