Simon Walker
Notions of order and law were inseparably allied in later medieval England. Order, both the public order of civil society and the domestic order of the household, depended upon the maintenance of hierarchy through the conscientious discharge of their obligations by every rank of society. The nature of these obligations was clearly set out by John Stafford, archbishop of Canterbury, in his address to the parliament of 1433. The magnates of the realm must work to maintain unity and concord within the kingdom; the knights and middling men (mediocres) should administer justice with equity; it was the people’s part to obey the king’s will and his laws.1 Disobedience of whatever kind, whether of servants towards their masters or of wives towards their husbands, was a kind of treason, the first step down the road towards general insurrection. Law was the means by which this authoritarian ideal of social harmony was regulated and enforced, acting like the sinews of the physical body as it turned ‘a group of men... into a people’.103 104 In talking of law, theorists distinguished between divine, natural and positive law, but in the case of each, the purpose of the law was agreed to be declarative: it disclosed an existing state of justice. Actions and decisions that were against justice and universal right (commun droit) could not, therefore, be considered legal.
These ideas were articulated with greatest clarity by academic theorists and political moralists and there was, of course, often a significant difference between their precise formulations and the self-interested actions of legal ‘consumers’, the men and (more occasionally) women who saw in the law a means to achieving their own ends. Litigants expected a fair and equal judicial system, but they also demanded from it confirmation of their own claims and complained bitterly if this was not forthcoming. Such theoretical formulations of order and legality nevertheless left their mark on popular expectations of justice. Codifications of local custom justified their usages by reference to the law of nature; the justices of the common law courts allowed arguments from ‘reason’ and ‘conscience’ to modify the severity of due process; and protests against misgovernment, such as the demand of Jack Cade’s rebels in 1450 that ‘every man should have his due, coming in due time to [the king] to ask justice or grace’,105 drew upon the textbook commonplaces of the civil law. Maintaining and enforcing justice was the principal duty of the sovereign. Every English king swore at his coronation to do equal right to all his subjects, and failure to keep this promise was the commonest source of political dissension. The king had consequently as much to lose from any failure to maintain the force of law as any of his subjects. Edward II was replaced as ruler because ‘although he was bound by his oath to do justice to all, he wished to do so only for his own gain’; Richard Il’s enforced abdication was justified ‘for default of governance and undoing of the good laws’;106 and the unrest, injustice, partiality and abuse of the law that supposedly characterised Henry VI’s reign were taken by his supplanters to be evidence of a defective title to rule.
To preserve their own rights, and to provide the justice their subjects demanded, English kings had at their disposal a well-articulated framework of courts, capable of entertaining both civil and criminal pleas from every part of the country and from all sections of society. By 1200, a group of royal justices was already sitting permanently in the bench at Westminster, while a larger body of judges, the justices in eyre, were sent around the kingdom at irregular intervals, punishing criminals, enforcing the king’s fiscal and feudal rights and settling private disputes brought before them. In 1194 the office of coroner was established, to provide for the regular keeping of crown pleas in each county between eyres. The county court, meeting usually every month and presided over by the sheriff, provided a local forum for royal justice, while the hundred courts, meeting every three weeks, dispatched much minor civil litigation and furnished the presentments on which the criminal work of the justices in eyre was based. Royal justice had begun the long process of dissociation from the person of the king, although many of the most important pleas continued to be heard ‘before the king’ (coram rege), a phrase that implied the interest, if not the actual presence, of the king. From 1234, these pleas before the king were formalised into a separate court, the itinerant king’s bench, with its own set of records and staff.
For much of the thirteenth century, this remained the pattern of royal justice, although the volume of litigation brought before the justices in eyre soon began to prove overwhelming. During the two months when the eyre justices were in Wiltshire in 1249, for example, nearly 500 civil actions were heard before them, almost 500 presentments were made by jurors concerning the infringement of royal rights and other criminal matters, and a further 275 persons were indicted and tried as suspect of a crime.107 There was a further influx of business from 1278, as the justices began to entertain private complaints of trespass, initiated by written bill. As a result, new groups of justices were commissioned, in the first instance to reduce the pressure of business on the eyre, although eventually their sessions came to supersede it entirely. The work of the assize justices, who heard possessory pleas, was systematised into a series of county circuits in 1273, while the justices of gaol delivery, initially a mixed body of royal servants, justices of the central courts and influential local gentry, became exclusively professional in their composition after 1299. By 1328, when the assize and gaol delivery circuits became permanently associated, their combined judicial powers supplied the central supervision of local justice that had once been exercised, in a more deliberate but less wieldy fashion, by the justices in eyre.
Supervision was not, however, sufficient to satisfy the growing body of opinion disturbed by the apparent growth in lawlessness that contemporaries dated back to the later years of Edward I’s reign. Complaints that ‘the peace of the land was not kept as it ought and as it used to be’108 became an increasingly frequent feature of political discourse in later medieval England, and successive kings sought to respond to it by a variety of more interventionist expedients. Some, like the special commissions of oyer et terminer (‘to hear and determine’) issued in response to individual complaints of injustice, enjoyed a brief vogue. Others, such as the revival of the general eyre attempted in 1329, were abandoned almost immediately. The solution that finally proved acceptable, the commissions of the peace, extended the task of law enforcement beyond the small and overburdened corps of professional legal personnel, to whom the reforms of the Edwardian era had largely confined it, and sought instead to harness the vested interests of the landed class in the maintenance of social order. Knightly ‘keepers of the peace’, charged with a variety of military and police functions, had sometimes been employed in the counties since the mid-thirteenth century. By the early fourteenth century, some gentry keepers were also involved in the work of gaol delivery and their powers were further extended in 1329 to include the ability to determine indictments made before them (that is, to bring them to judgement and impose the appropriate penalties). Although this determining power, which effectively created an independent criminal jurisdiction, was withdrawn from the peace commissions several times over the next thirty years by a government still unsure of the most effective solution to the problem of disorder, it was the justices of the peace who eventually emerged in the late fourteenth century as the principal agents for the enforcement of the criminal law at local level. Required to sit at least four times a year, and charged with a growing portfolio of social and economic responsibilities, the combination of Westminster justices, local lawyers and substantial local gentlemen that customarily staffed the shire bench proved well suited to the demands of their task.
The short-lived experiments that characterised the royal administration of criminal justice for much of the fourteenth century were not replicated in the field of civil litigation, where the court system proved generally adequate to the demands laid upon it for more than a century after the demise of the eyre. Almost permanently located at Westminster, the common bench developed into the busiest of all the royal courts. During the thirteenth century, the business of the court increased as much as thirty-fold; by the 1330s as many as 6,000 cases were in progress there each year. The common bench dealt with ‘common’ pleas - those pleas in which the crown had no direct interest - and these were, in practice, overwhelmingly actions for the recovery of property or of debt. Although process in common bench was slow, the court proved flexible in its provision of remedies, as the royal chancery tailored the forms of action it offered to the circumstances of individual litigants with increasing precision. As a result, the business of the court expanded further in the late fourteenth century and showed no signs of consistent decline until the 1440s.
This decline, when it came, may have owed something to a temporary loss of confidence in the general effectiveness of royal justice under the uncertain direction of Henry VI, but it was no less the consequence of the crown’s continuing ability to develop new institutional remedies. The court of chancery developed out of the general responsibility that the chancellor possessed, as head of the royal secretariat, for the supervision of the king’s administration and, in particular, for the correction of any defects of justice that might occur in the due process of the common law courts. By the 1380s, the chancery had developed a distinctive procedure for dealing with such cases - based on the submission of bills of complaint, the interrogation of witnesses, and a judgement delivered, without a jury verdict, according to the requirements of conscience - that proved increasingly attractive to litigants by virtue of its speed and informality. In the early fifteenth century, the court began to take regular cognisance of real property cases, especially those involving the disposition of land through the legal device know as the enfeoffment to use (a form of trust), that could not easily be accommodated within the strict rules of argument demanded by the common law. The volume of chancery business grew further, although the absolute number of cases the court heard each year - perhaps 500 a year by the 1480s - was always less significant than the disproportionate representation of the most sensitive and intractable property disputes amongst them.
The maintenance of social order within later medieval England was not, however, dependent upon the effectiveness of the king’s courts and the accessibility of royal justice alone. A dense network of subordinate jurisdictions in both town and countryside supplemented the work of royal justice in combating disorder, regulating conduct and enforcing certain social norms. The most pervasive influence in this respect was exercised by the ecclesiastical courts; the men of the bishopric of London complained in 1290, for example, that the ministers of the church courts were more oppressive to them in their exactions than all the lay courts.7 In every diocese, the bishop and his officials maintained a hierarchy of courts, stretching from the chapters of the rural deans to the diocesan consistory court and the episcopal court of audience. These courts enforced the canon law, a codification of papal pronouncements and the decisions of church councils on matters of theology and morality held to be binding on all Christians, and their relationship with the royal courts was regulated by a series of more or less accurate statements of existing
7
Rotuli Parliamentorum, i, p. 60.
Practice, the best known of which was the writ Circumspecte agatis (1285). In the punishment of mortal sin, such as adultery and fornication, the jurisdiction of the church courts was largely unquestioned, while the regulation of marriage and the probate of wills was divided between secular and ecclesiastical tribunals. A significant source of further business was ‘breach of faith’ litigation, concerned with providing redress for an alleged act of perjury. This brought the enforcement of various contractual obligations, most typically for the repayment of small debts, within the remit of the church courts: two-thirds of the litigation in the Hereford consistory court during the 1490s was of this type, for example. Although the volume of business in the church courts never rivalled that in the king’s, the nature of the suits they entertained gave them a particular potency as enforcers of contemporary conceptions of social order. Procedure in the ecclesiastical courts was divided between ‘instance’ and ‘office’ business: in instance cases, a plaintiff brought suit against a defendant; in office cases, the court initiated action on its own behalf, usually in response to a report of the ‘common fame’ of the parish, provided by the churchwardens or a group of selected inquirers (inquisitors). This allowed the more prominent members of the local community to play an active part in the maintenance of moral discipline by enforcing the punishment of scolds and prostitutes, the regulation of disorderly taverns, and the suppression of any other activity, such as gaming during mass, that seemed to threaten the effective conduct of Christian life.
Such concern for social regulation was at its most vigorous in the volatile and densely packed towns of later medieval England. To aid them in their task of enforcing the social and legal order, urban magistrates had at their disposal an especially extensive array of parallel, and sometimes competing, jurisdictions. The jurors of Stamford identified as many as eleven free courts in their town in 1274, serving the needs of no more than 5,000 inhabitants, besides the ‘court of Stamford’ itself, in which the lord of the town exercised regalian rights of justice by grant of the king. Most borough courts had begun, like Stamford’s, as hundred courts, enforcing the king’s peace, but the need to find a speedy resolution to commercial disputes, as well as the particular urgency that the general issues of public order and hygiene acquired in an urban environment, led to the development of further tribunals and the modification, in civil pleas, of the recognised procedures of the common law by the dictates of local custom and of conscience. In Colchester, for instance, regulation of urban life was shared between the hundred court, which dealt mainly with police matters, and a court of pleas, in which the town’s bailiffs delivered judgement according to the flexible procedures of the law merchant. The level of litigation in towns was high by contemporary standards, chiefly because the greater availability of credit within urban society led to the widespread use of borough courts for the recovery of commercial debts. The London sheriffs’ courts, which attracted a mixture of debt and trespass litigation, handled at least i, ooo civil actions a year during Edward IV’s reign - roughly equivalent to the annual workload of the adjacent king’s bench - and it seems that provincial towns like Nottingham and Shrewsbury could also generate substantial levels of debt-related activity in their borough courts.
For the great majority of the population, however, those who depended directly or indirectly on the cultivation of the land for their livelihood, experience of the law was shaped, though not wholly bounded, by the workings of the court of the manor in which they resided. The manor court was a private institution, usually presided over by the steward or bailiff of the lord of the manor, which had as its principal purpose the protection of seigniorial interests. It regulated the lives of all the lord’s tenants, though it bore most heavily on the unfree, enforcing the labour services due from them and controlling the transfer of land between them. It served, in addition, as a forum in which the agricultural affairs of the community such as the grazing of the common fields could be agreed, and dealt with minor cases of assault, trespass and slander. Manorial courts met frequently - in theory, once every three weeks, though usually rather less often in practice; the eight sessions a year the court at Sevenhampton (Wilts.) managed between 1275 and 1287 is characteristic.109 They discharged their business haphazardly, regularly mixing leet business with the control of husbandry: the creation of legal and natural order, respectively. Procedure in the manor court differed in certain important respects from that encountered in the common law courts: business was discharged by the ‘whole court’, all the tenants of the manor obliged to attend, rather than by a small group of jurors; the commonest form of trial was by compurgation, in which the accused swore formally to his innocence and had his oath confirmed by the oaths of a (varying) number of oath-helpers; and if a judgement of right had to be rendered, it was based upon the court’s collective understanding of manorial custom rather than upon substantive principles of law.
Evidence for the existence of manorial courts stretches back no further than 1209, although there is no reason to think that they could not have operated effectively, granted their reliance upon oral testimony and collective memory, at a very much earlier date. The proliferation of surviving rolls of court proceedings from the 1270s implies, however, a new stage in the development of the manorial court. Better recordkeeping bred more standardised procedures as landlords, anxious to retain the profitable legal business of their free tenants in the face of growing competition from the royal courts, sought to streamline and improve the range of services they offered. Judgements were no longer rendered by the whole body of suitors to the court but, instead, by trial juries; wager of law and compurgation gave way, as the dominant mode of proof, to jury verdicts; documentary evidence began to be preferred to the oral statement of custom. While presentments remained principally concerned with the enforcement of seigniorial obligations, private suits were also initiated in growing numbers to settle pleas of debt, claim damages for minor nuisances and try titles to land. By the early fourteenth century, the manorial court had consequently come to constitute, for many litigants, a swifter and substantially cheaper forum for the resolution of disputes than the hierarchy of royal courts. The changes in manorial organisation that followed the Black Death inevitably reduced the importance of the manorial courts as agents of seigniorial discipline but, in other respects, they retained their significance. The development of presentment procedure, in particular, gave the court a powerful new instrument of communal policing, deployed against those elements within a village whose behaviour appeared to threaten social harmony, like the Saffron Walden couple who were said, in 1384, ‘by their insulting words, [to] bring dissension among the people’.9
The rich variety of courts active in later medieval England and the available indications of the levels of business they entertained therefore suggest a culture in which recourse to the law was seen as the most natural and convenient solution to many social and administrative difficulties. Litigation was expensive and time-consuming but it appeared to offer advantages to all those who could afford the associated costs. The social range of those seeking resolution of their disputes in the courts was consequently broad; at least three-quarters of Lincolnshire plaintiffs in king’s bench between 1291 and 1340 were villagers, while an analysis of the status of litigants in common pleas in 1441 suggests that about a
9
M. K. McIntosh, Controlling Misbehavior in England, 1370—1600 (Cambridge, 1998), p. 60.
Quarter were yeomen or husbandmen and another quarter were merchants, traders or artisans.10 Recourse to the law played such a central part in the conduct of relations at every level of society for several reasons. Some were practical, for many routine administrative problems were addressed through the agency of the law: the king’s finances were audited and investigated by a bench of judges, the barons of the exchequer; roads were repaired and water-courses were kept clear by the authority of commissioners armed with judicial powers to examine and punish delinquents; land was most securely conveyed from vendor to purchaser by engaging in a ‘final concord’, recorded before the eyre or bench justices. At a more general level, law offered the promise of binding authority in a world that often lacked it. Appeal to the fixed and predictable norms of due process was especially attractive within a society in which private authority, whether exercised legitimately by a franchise-holder or illegitimately by those who took advantage of their local influence to flout the king’s peace, frequently appeared a more significant force than the occasional intervention of a distant royal official. A working knowledge of the law inevitably became a highly desirable skill for anyone with a stake in landed society. For a minor gentleman like Robert Godsfield of Sutton (Lincs.), who prosecuted and defended all his cases without the aid of an attorney, procedural dexterity and some formal legal training conferred the ability to confound more substantial opponents in the courts.
This necessary familiarity with the law was further promoted by the penetration of legal professionals deep into local society. A group of specialist pleaders, known as serjeants, were active in the common bench by the 1240s. Their appearance, the first step in the growth of a recognisable English legal profession, was a response to the increasing popularity of royal justice. In the twelfth century, when most litigation had been pursued through the communal courts of the hundred and the honor, knowledge of the technicalities governing the entry and subsequent conduct of a plea was apparently widespread among the suitors of each court. The common bench had its own rules, however, in which only the small group of pleaders who regularly frequented it were well versed; their services consequently came to be highly valued by those
B. W. McLane, ‘Changes in the court of king’s bench, 1291—1340: the preliminary view from Lincolnshire’, in W. M. Ormrod, ed., England in the Fourteenth Century: Proceedings of the 1985 Harlaxton Symposium (Woodbridge, 1986), pp. 158—9; C. W. Brooks, ‘Litigation and society in England, 1200—1996’, in C. W. Brooks, ed., Lawyers, Litigation and English Societysince 1450 (1998), pp. 77-8.
Wealthy enough to use the court. A second group of legal specialists, the attorneys, who handled the paperwork on behalf of clients in the Westminster courts, emerged towards the end of the century, as the growth in levels of litigation generated sufficient business to allow the creation of profitable regional practices. By the end of Edward I’s reign, serjeants could be found acting in most shire courts, while lawyers combining the role of serjeant and attorney were present in many major urban jurisdictions; even in the manorial courts of St Albans, the abbot was forced to prohibit the employment of outside pleaders (adventicii placitatores) as early as 1275.11 It was this growing band of provincial lawyers who did much to spread knowledge of the law and appreciation of its power among their clients, providing the precise references to statute law with which many private individuals chose to decorate their petitions to parliament and furnishing, for a price, the advice and expertise that allowed groups of tenants a new ability to resist the demands of their lords. At Titchfield (Hants.), the unfree tenants of the Premonstratensian abbey responded to the threat of heavier labour services by suing out a common law writ of monstraverunt against the abbot in 1271 and, when this action failed, appealed to the evidence of Domesday Book in order to preserve their privileged status. They maintained their resistance for a further five years and the final composition conceded some, at least, of the villagers’ claims.
There were, then, definite advantages to be gained by the acquisition or purchase of some practical legal literacy; but it is a striking feature of the period that the legal professionals who furnished such advice - the solicitors and conveyancers who operated in local courts as much as the justices, serjeants and apprentices at Westminster - were one of the least popular occupational groups in later medieval England. Wat Tyler’s demand, during the Peasants’ Revolt of 1381, that all lawyers should be beheaded was the most extreme statement of this antipathy but there were many more limited, and more practical, expressions of the same distaste. Lawyers were excluded from elections to parliament in 1404, for instance, while a later parliamentary petition sought to limit and regulate the activities of the allegedly excessive number of attorneys practising in Norfolk and Suffolk, who were said to be encouraging vexatious suits for their own profit.12 Lawyers attracted this kind of opprobrium chiefly because, as discussed elsewhere in this volume, they were a new and
A. E. Levett, Studies in Manorial History (Oxford, 1938), p. 192. Rotuli Parliamentorum, v, pp. 326—7.
Strikingly successful social grouping within later medieval society.110 An apprentice-at-law could expect to command a professional income of around ?6o a year, enough to place him on a par with the established local gentry, while, at the top of the profession, a serjeant-pleader’s earnings might be as much as ?300 a year.111 Such men used their command of ready cash and the knowledge of the land market acquired in the course of their professional lives to build up substantial landed estates that excited the envy, and disquiet, of their new neighbours: Robert Belknap, chief justice of common pleas, was thought to be ‘most powerful in the county of Kent in those days’;112 And the scions of several legal dynasties, the Scropes, Stonors, Bourchiers and Pastons among them, came to exercise a similar authority.
Equally, the faith that individuals and communities invested in the law’s ability to deliver them from oppression did nothing to prevent a growing chorus of complaint at the English legal system’s perceived inability either to guarantee good order or to offer impartial justice. These complaints took innumerable particular forms but certain general themes ran through them all. One was alarm at the level of public disorder within the kingdom, which popular opinion periodically considered to be on the verge of anarchy: ‘If the turbulence is not stopped, general warfare may result’, warned the chronicler Peter Langtoft, during the troubled final years of Edward I’s reign.113 A second general grievance was the seemingly limitless degree of expense and delay that the royal courts, in particular, proved capable of inflicting upon litigants. Contemporaries ascribed this state of affairs to the venality of lawyers and court officials; an early fourteenth-century satire complains that judges were seduced from justice by bribes and partiality towards the powerful, while their clerks sat at their feet, ‘like people half-starved, gaping for gifts’.114 Finally, a widespread perception developed that the law had itself become an instrument of oppression, serving the turn of the powerful more readily than it protected the interests of the innocent. This was a view especially associated with the complaints of the parliamentary commons, who, throughout the fourteenth and fifteenth centuries, consistently identified the protection afforded by certain sections of the nobility to their clients and dependants against the due process of the courts as the principal source of injustice within the realm.
These complaints had about them a significant degree of self-interest. ‘Justice with favour’ was what most litigants wanted and, if it was not forthcoming, they were quick to apportion blame. Nevertheless, there was much in the administration and execution of later medieval justice to give colour and substance to their grievances. Litigation was undoubtedly costly: every royal writ had to be paid for; learned counsel required both an initial retainer and further consultation fees; the clerks of the central courts expected further payments to record and file the resultant proceedings. An active suit in the Westminster courts cost around ?2 a term to prosecute and, for those whose business required frequent recourse there, the cumulative expense could be very considerable. Such expenditure did not, however, guarantee either a speedy or an equitable outcome. In criminal cases, the main problem was to get the defendant into court. Continued non-appearance could only be countered by initiating the lengthy procedures leading to outlawry - a sanction that had become, in any case, largely ineffective by the later middle ages. In civil suits, too, there were vexing procedural delays to be negotiated; but the real problem often lay deeper, in the growing complexity of the common law itself. The customary rules of inheritance in England were augmented and modified during the later middle ages by the development of a series of legal devices, most notably the entail (a means of specifying inheritance rights within families) and the enfeoffment to use (a form of trust), that allowed landowners to make a more flexible disposition of their property but also rendered an unimpeachable title to land increasingly hard to acquire. In disputes over real property, appeal to the common law began to prove more effective as a means to create a claim rather than as a guarantee of existing rights. When each of the principal litigants possessed a defensible claim to the disputed lands, even a relatively routine property dispute, like that over the Kentish manors of Richard Lovelace, might take more than forty years to resolve.115
Still further disquiet was created by the routine exercise of private influence upon the progress of litigation. Among disappointed plaintiffs, the complaint that ‘it is seldom seen that a poor man hath favour when a lord is party’116 Was understandably common. Until the late fourteenth century, it was customary for great magnates and the major religious houses to include a number of royal justices among their retained legal counsel. Edward III’s trusted servant, Sir John Molyns, successfully concealed a career of violence and extortion from official investigation for many years thanks, in large part, to his close working relationship with John Inge, a justice of king’s bench. Even when the direct retaining of royal justices ceased, gifts in kind, to encourage the judges towards a more favourable decision, continued to be considered acceptable. Such payments were only the most conspicuous element in a constant process of informal suasion designed to create the atmosphere of good favour (benevolentia) deemed necessary for successful litigation. Sheriffs’ clerks were paid to empanel favourable juries, or to allow litigants access to the names of the jury panel; the jurors themselves were lavishly entertained as each party sought to convince them of the strength of its case; and suitably imposing groups of influential ‘well-willers’ were assembled to pack the courthouse when an issue finally came to trial. If all else failed, the threat of force that lurked behind many of these manoeuvres could be openly articulated. Edward Courtenay, earl of Devon, threatened to break the head of a royal commissioner if he continued proceedings against one of his retainers.20 Although it was the illegitimate exercise of their social influence by great men like Courtenay that most concerned contemporaries, the pressure of ‘lordship’ upon due legal process was routinely encountered at every social level and within every jurisdiction. Outsiders complained, for instance, that the ‘great acquaintance’ enjoyed by the local merchants at Southampton gave them a decisive advantage in the borough court.21 In many manorial courts, considerations of status and family interest meant that, while the jurors were prepared to present for a whole range of felonies and misdemeanours, the burden of conviction fell disproportionately upon the poorest and least powerful villagers.
In evaluating the quality of order and justice prevalent in later medieval England, therefore, the precocious development of a network of public and private courts, the elaboration of the common law, the growth of a group of specialised legal professionals and a demonstrable public appetite for litigation must be weighed against expressions of a widespread disenchantment with the effectiveness of royal justice and the 117
Abundant surviving evidence for the partiality and intimidation of which contemporaries complained. Such complaints are, in one respect, as universal as the gulf between ideal and reality. Lacking the financial resources to maintain either a standing army or a permanent police force, English kings were dependent on the co-operation of their subjects for the maintenance of civil order and the doing of justice. For most of the time, this co-operation was freely given, as much by the village notables who staffed the juries of presentment as by the substantial gentry who acted as justices of the peace and took their turn in the onerous office of sheriff, but it carried with it an inevitable price: the pursuit of private interest by those charged with public office. Sir Thomas Metham, a justice of the peace in Yorkshire, was accused in 1387 of ransoming a rival landowner’s tenants ‘as if they had been prisoners in time of war’; a little earlier, Sir Thomas Bradeston was said to have used the powers of his office as constable of Gloucester Castle to conduct himself ‘like a little saint in court, and like a raging lion in his own country’.118
Such incidents were commonplace, but they generated less outrage than the tone of many parliamentary petitions implied. In a society where most administrative or legal transactions depended to some degree upon the co-operation of friends and neighbours, lordship was recognised for what it was, less an abuse of power than its necessary condition, and regulated in its exercise by considerations of honour and ‘worship’ that ensured only the most headstrong or desperate magnate would risk open defiance of the law. Its management was as much a political as an administrative matter, involving calculations of relative advantage that stretched far beyond the judicial arena. Although the evolution of due process often provided the powerful with an additional means of enforcing their authority, it could also place some restraint upon its unfettered exercise. Influential support could keep a weak case open but it could not easily overcome a secure title, while even a well-connected peer like John, fifth Lord Lovell, might be thwarted by a lesser opponent prepared to use to the full the resources of publicity and delay the common law provided.119
Although England was no different from any other western European monarchy in the later middle ages in its reliance upon seigniorial initiative to shore up the edifice of royal authority, the consequences of this reliance were rendered especially far-reaching by two distinctive developments. One was the expansion of the English state apparatus that inevitably accompanied the crown’s pursuit of new military ambitions - in Scotland, France and Wales - during the late thirteenth and fourteenth centuries. The further delegation of royal authority that this necessitated, to the purveyors, arrayers and tax-collectors whose job it was to satisfy the king’s demands for men and money, not only intensified expressions of discontent at the consequent levels of fiscal exaction - ‘they hunt us as hounds do a hare on the hill’, one contemporary complained of Edward Ill’s tax-collectorS120 - but also made the task of supervising and restraining the actions of such lesser officials more difficult. The general investigations into complaints of official malpractice ordered by Edward I in 1290 and by Edward III in 1340 proved only temporary solutions, while commissions of oyer et terminer, established to provide a speedy response to specific complaints of injustice, soon became a favoured device of the powerful for harassing their opponents. Yet the resentment aroused by the abuses of such lesser officials ran deep, for they confounded contemporary expectations of social order by wielding an influence that their status did not warrant. William Chorlegh, under-sheriff of Lancashire during the 1370s, was said, for example, to have acquired so much wealth by his extortions while in office that, although his lands and rents were worth only ?10 a year, it was well known that the annual expenses of his household exceeded ?200.121 The failure of successive kings decisively to address these concerns produced a new disenchantment with the effectiveness of royal justice and created an atmosphere of hostility towards its representatives that eventually threatened the rule of law itself. It was acts of disobedience towards the king’s lesser servants, the chancellor argued in 1383, that had lain at the roots of the great rising of 1381.122
The second distinctive feature of English state development that served to define popular attitudes towards the issues of order and law was the unusually swift development of the system of public justice itself. By the late thirteenth century, the scholastic commonplace that the king was the fount of all law was, in England, becoming a reality. Litigants who wished to contest a title to land, to pursue a debt of more than ?2, or even to enjoy the uncertain privilege of a jury verdict, were most likely to pursue their actions before the king’s justices. Certain categories of cases initiated
In subordinate jurisdictions were now easily removed to the royal courts, and judgements passed in them routinely put under review, by securing a writ of pone or recordari. The consequences of this expansion in business for public perceptions of royal justice were not, however, always positive. The increased competence of the king’s courts fostered an expectation of the speedy and final resolution of all types of dispute that it proved, in practice, impossible to fulfil. In part, this was a question of resources. The Westminster-based legal establishment was always small, amounting to no more than 400 active practitioners even in the late fifteenth century, and demand for royal justice outstripped the supply of suitable lawyers. Assize sessions were, for example, expected to be held three times a year in each county, but it soon became clear that this was too ambitious a provision: in Yorkshire, the justices of assize held only thirty-six sessions in the quarter-century between 1389 and 1413.27 This shortage of qualified personnel also compromised the crown’s periodic attempts to maintain a rigorous standard of probity among the judiciary: Chief Justice Willoughby, dismissed from king’s bench in i340 for selling the laws of England as if they had been sheep or cattle, was sitting once again in common pleas by November 1343; Chief Justice Thorpe, sentenced to death for accepting bribes in 1350, was acting as a baron of the exchequer a year later.
The real problem, though, lay deeper, in the nature of the common law itself. The king’s courts attracted custom by their promise of speedy and effective justice but, in order to fulfil this promise, they imposed upon the concerns of litigants a necessary formalism, requiring plaintiffs to define their grievances in terms of a standardised set of pleas and juries to adjudicate upon a single ‘issue’ placed before them. The procedure was an antagonistic one, which deliberately excluded from consideration many relevant circumstances, yet aspired to deliver an uncompromising verdict in favour of one party or the other. The common law provided judgement more readily than justice and, within the context of communities in which litigants had to go on living with each other after judgement had been rendered, recourse to the royal courts could prove highly disruptive, stimulating accusations and recriminations that destroyed the social equilibrium upon which the maintenance of good order depended. On occasion, the availability of legal redress itself fanned the flames of local discord; the provincial itinerations of king’s bench sometimes evoked a tenfold increase in the levels of trespass litigation brought before the court.123 The growing sophistication of legal procedures further accentuated this tendency, for the emergence of the attorney allowed litigants to remove their dispute from the cognisance of local jurisdictions, where the social pressure towards compromise was strongest, and to pursue their case by proxy at Westminster instead. The consequent proliferation of courts in which a suit could potentially be pursued meant that, unless both parties to a dispute were wholeheartedly committed to finding an acceptable settlement, a final resolution was hard to achieve. New opportunities to delay an opponent, or to reopen an apparently settled case, would always present themselves. When William Paston, a justice of common pleas, clashed with a local esquire at the Norfolk shire court in August 1424, their subsequent dispute was pursued through seven different tribunals, from the manorial court of Forncett to the king’s bench and the court of exchequer chamber.
Neither order nor justice was, therefore, an inevitable outcome of recourse to the law. It was this failure in what appeared a natural progression from cause to effect that most exercised and angered contemporaries. They ascribed it to the effects of sin within the body politic and sought to extirpate the individual vices - of greed, anger and lust for domination - they identified as responsible. A more fundamental problem, however, was the clash between competing understandings of the nature of order itself that played itself out in the daily execution of the law. The king’s justice embodied a positive and interventionist conception of order, which sought to reveal the natural harmony of a hierarchically ordered society and, where such a harmony did not exist, to impose it. Although dominant ideologically, this positive ideal of order was not necessarily the most prevalent in later medieval England. Besides the vision of disciplined social harmony that the educated publicists of the state advanced, the notion of order meant, for many people, simply the desire to live at peace with their neighbours. Edward IV’s ambition to make things ‘sit still and be quiet’124 Was one shared by many of his subjects. In the close-knit communities of rural England, this was never an easy task. The necessary co-operation that a shared agricultural livelihood required created many sources of tension, while the constant
Availability of tools and knives, as well as the casual consumption of ale, meant that violence could easily flare.
As a result, later medieval society had evolved a variety of informal means, based on natural justice and common sense, for settling disputes without recourse either to violence or to litigation: by the mediation of respected individuals, like William Clowne, abbot of St Mary’s, Leicester, who ‘in his country and everywhere beyond was ever a composer of dispute and contention’;125 By communal self-regulation of the kind practised by many craft guilds and religious fraternities, whose statutes insisted that members should be accorded before the officers of the guild before litigating against one another; by holding lovedays, at which representatives of the disputing parties would seek to negotiate an acceptable agreement on their behalf; and by formal submission to the arbitrement and award of a third party, often a great magnate or a judge. These varied methods of dispute settlement had in common procedures that appealed to a set of communal values that the precocious growth of the common law had, in some respects, disturbed. The rigidity of the common law forms of action meant that royal judges could consider the circumstances of a dispute only in so far as they related to the legal issues at hand. Arbitrators could be asked to examine a broader range of issues and generally took pains to ensure that the process of negotiation over which they presided accorded due recognition to the social status and obligations of the disputing parties. Their aim was to frame a settlement acceptable to all sides and their awards sought to create or, more usually, re-establish social ties between the disputants. So strong was the preference for settlement over judgement that many cases initiated in the royal courts were subsequently concorded before the parties joined issue, either by private treaty or by agreement arrived at in a lesser (and less costly) court; this was, for instance, the case for almost half the civil actions initiated before the eyre justices in Berkshire in 1248.126
The problem that the king and his subjects had to confront was that these two approaches to the task of maintaining order were, in certain respects, incompatible. The adoption of common law procedures in manorial courts increased seigniorial profits but diminished the degree of direct community participation in the legal process, delegating the task of rendering judgement from the whole court to a group of jurors, among whom the better-off villagers were disproportionately represented; the growing popularity of presentment replaced a civil suit for compensation with a procedure that sought the punishment of the accused. In the enforcement of public order, local communities were sometimes unwilling to allow the common law its full disruptive force. Since the effectiveness of criminal justice largely depended upon the indictments made by the presenting juries, they were in a position to assert their preference. The preamble to the Statute of Winchester (1285) complained that, ‘from day to day, robberies, homicides and arson are more frequently committed than they used to be’ because jurors were reluctant to present certain types of offence.127 Presenting jurors also enjoyed a certain degree of discretion in deciding, for example, whether a theft would be classified as a trespass (punishable by money penalty) or as a felony (punishable by forfeiture of life and limb). In taking that decision, their concern was with the offender more than with the precise nature of the offence. Only the habitual local criminals, such as the ‘common malefactors in fairs and markets’ identified by the Lincolnshire trailbaston jurors in 1328, were liable to be presented as felons; other offenders would be presented for trespass, punishable by a fine.128 In cases of homicide, jurors often operated a distinction in degree of culpability that the formal legal rules did not draw, between killing by stealth and with premeditation (usually described as ‘murder’), and other forms of violent death. They also proved consistently unwilling to credit the evidence of ‘approvers’, confessed criminals who now sought a stay of execution by informing on their accomplices; their proven bad character made them unpopular figures, whose testimony was not to be trusted.
The jurors’ exercise of their discretion in such cases was a source of frustration to the king’s judges but, as long as royal and communal attitudes towards public order issues remained approximately consonant, did little harm. Where social attitudes were at odds with the crown’s legislative initiatives, however, the consequences could be less welcome. In the most serious cases, judicial or executive intention could be thwarted entirely. Henry V’s attempts to enforce the provisions of a newly agreed maritime truce upon the shipmen of the south-west encountered considerable resistance, for example; the king was seeking to condemn as piracy what local opinion regarded as legitimate self-help. As a consequence, the royal commissioners sent down to Exeter in 1414 managed to secure only four indictments from the forty separate juries summoned before them.129 More characteristic was a differential pattern of compliance, as local communities picked and chose between the elements of a single legislative package. The clause in the Statute of Winchester (1285) requiring the clearing of woodland from beside the royal highway was widely welcomed, as a sensible precaution against thieves and robbers, whereas the provision that local communities make restitution to the victims of any unsolved robberies occurring within their jurisdiction was subject to a variety of ingenious delays. In general, communal implementation tended to impart to statutory enactments an idiosyncratic construction that conformed more closely to the locality’s expectations of good order than to the crown’s.
A clear instance of this is the paradoxical development of the law of rape and ravishment in later medieval England. For much of the thirteenth century, the crime of rape was, unless made the subject of an appeal by the victim herself, treated as a misdemeanour, punishable by a fine or by imprisonment. In the second Statute of Westminster (1285), however, rape was reclassified as a major felony, punishable by loss of life or limb. The immediate consequence was a drastic reduction in the number of convictions. Juries disliked the seriousness of the new penalties and refused to convict, with the result that the victims and their families turned instead to civil actions for damages in order to gain some sort of redress - a recourse that preserved the communal preference for reparation over revenge at the expense of the crown’s legislative intentions. Presentments for rape continued to be made, but their purpose was now only indirectly punitive. Juries developed them, instead, into a flexible instrument for the imposition of social discipline, using the shame of a presentment as a sanction to be deployed against priests who kept mistresses, the clients of prostitutes and other offenders against agreed moral norms.
In coming to some final judgement about the nature and quality of order in later medieval England, then, it is important to accommodate both official and communal expectations of justice. The king’s law was not a unique recourse; it was one among several concurrent jurisdictions, and proved most effective when deployed in conjunction with less formal sanctions. Popular expectations and priorities constantly influenced the enforcement of royal justice, occasionally mitigating its force but more often giving purpose to a legal process that could appear, in formal terms, largely futile. Judged in terms of results, for example, the criminal law can only appear ineffective; the derisory conviction rates - about 30 per cent for theft and 20 per cent for homicide - for gaol deliveries at Newgate in London in the 1280s remained characteristic throughout the later middle ages.130 But if the severe capital sentences of royal justice held little appeal to local jurors, common law procedures provided other sanctions, such as outlawry and abjuration of the realm, that more effectively enacted the preferences of communal justice for publicity and exclusion by identifying and expelling the offender from the community. Litigants continued to find that recourse to royal justice served their purpose, despite the usually inconclusive nature of its outcomes; the volume of East Anglian business in king’s bench more than doubled between 1422 and 1442, although defendants appeared to answer the charges against them in only II per cent of all cases.131 This was because their expectations of royal justice were not always those implied in the judicial record. Using the superior coercive powers of royal justice to afforce the traditional procedures of communal dispute resolution was a well-established pattern. A suit in the king’s bench might not bring a result, but it could apply an informal sanction against unacceptable behaviour by threatening the perpetrator with the nuisance and dishonour of a court appearance, and brought useful pressure on an opponent to settle out of court. When such a settlement was agreed, collusive litigation between the parties provided essential confirmation of its terms by making the award enforceable in the common law courts. The public courts were thus chiefly valued for their ability to enforce and ratify private arrangements. Astute legal consumers, like the Townshends of Rainham, used common pleas to collect the many small sums owed them, while reserving the major property disputes in which they became entangled for the more flexible routines of arbitration.
Judicial procedures in later medieval England are, in these respects, best judged as a means to an end, rather than as an end in themselves. Royal justice worked most effectively as a regulatory device, reviewing the decisions of subordinate courts and co-ordinating the efforts of individuals and communities to police their own activities. Although the developing legal establishment at Westminster was sometimes dismissive of the formulaic actions and traditional procedures of the communal courts, the king could not hope, in reality, to maintain the good order his subjects demanded of him without the considerable resources of time, learning and manpower that such tribunals provided. Accommodating the demands and preferences of the local potentates who held sway in them might mitigate the force of royal authority, but it also served to impart a crucial responsiveness to the legal remedies the crown provided. Dilatory and uncertain though it could be in the delivery of justice, the king’s law was developed, by this necessary co-operation, into a powerful instrument for the implementation of a broader conception of social order.
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World History
