Chapter Four Master and Client

DOI: 10.4324/9781315883625-4

Much of the attention devoted by historians to bastard feudalism has not been directed at land wars, litigation, or sheriffs, justices, and juries, but towards the relationship between master and client and how this affected the well-being of the late medieval English state and society within it.

The dark side of the master-client relationship, so it is generally agreed, lay in three different categories of offence but three connected with each other and two intimately connected.

The first two of these examples of the connection between maintenance on the one hand and livery-giving and retaining on the other come, it will be noted, from the reigns of Edward I and Edward II, well before what is taken as the high period of leglisation against the evils of bastard feudalism. Indeed, maintenance itself was first mentioned in legislation in the first Statute of Westminster (1275), where royal officials were said to be maintaining suits in return for a part of the suitor's gains, and sheriffs and stewards of magnates were forbidden to maintain suits in county courts.

Maintenance was the subject of further legislation in the reign of Richard II.

Although largely remembered because of its stipulations about livery and retaining, the next major piece of legislation against the evils of bastard feudalism, 13 Ric. II st. 3, was intended in the final instance to strike at maintainers, barrators, and embracers, who tampered with inquests (juries) giving decisions on quarrels. Having laid down that only those of the rank of banneret and above were to be allowed to give livery of company and that the recipients must be retained for life and must be of knightly or esquire status or household servants, the Act commanded the removal from upper-class households of maintainers, barrators, procurers, and embracers of juries as soon as they were discovered.

In Henry IV's reign the pressure against the giving of livery was increased. In order that maintenance should be eschewed, said the statute 1 Hen. IV c. 7, no lord except the king was henceforth permitted to give livery to knights, esquires, or yeomen (unless they were menials, officers, or legal advisers), thus largely annulling the Act of 1390 (13 Ric. II st. 3). If indeed a liveried follower was technically a retainer, and in that the giving of cloth to be worn amounted to the giving of a fee and was therefore contractual, then this was a most severe move by the government for it meant the elimination of retainers below the social level of banneret except where the giver of the livery was the king, and even then his knights and esquires were not to wear it outside his presence. Nor did Henry IV and his parliaments retrace their steps. The statutes 2 Hen. IV c. 21, 7 Hen IV c. 14, and 13 Hen. IV c. 3 confirmed and clarified earlier legislation. They were intended primarily, however, to ensure the efficient execution of those Acts and to specify more exactly the penalties for their infraction. Thus, for example, by 7 Hen. IV c. 14 givers of livery incurred a penalty of 100 shillings for each offence and takers one of 40 shillings. Furthermore, the same statute introduced into the laws governing the abuses of bastard feudalism financial encouragement (in this case half of the penalties incurred) for him who would bring an action in the courts against the person or persons suspect on behalf of both himself and the king, a legal device which had developed in the later fourteenth century.¹⁵ The main hope of the government, however, must have lain in the bringing of indictments, yet here, as usual, it was to be disappointed: offenders, so it was admitted in the Act 8 Hen.

Procedural improvement was also the main reason behind the next statute of significance which dealt with livery-giving and retaining, namely the notorious 8 Edw. IV c. 2. This Act confirmed earlier legislation, especially 1 Hen. IV c. 7, slightly altered the size of the fines to be imposed, and made void all earlier retainings. We may take it that the suits invited under 7 Hen. IV c. 14 had not been forthcoming in sufficient number because the new Act of 1468 provided that charges might be brought by information given to the justices at oyer and terminer, gaol delivery and quarter sessions, or in the common pleas or king's bench. The information was to stand in place of bill or original writ and thereby save the delator time and money. Then the justices, as under 8 Hen. VI c. 4, might examine the accused and proceed to give a verdict on his crime or, if they wished, put the matter of his guilt to a jury. Furthermore, they had the power to award costs to the informer, who in addition was to be given half of any forfeiture. The accused was allowed the benefit of no essoins or letters or protection. This amounted to taking advantage of almost every procedural device possible under the criminal law to ensure accusations were forthcoming, and also loading, although legitimately, the method of trial to make conviction much more likely than acquittal. The truncated or summary nature of the process laid down was of a greater degree than under any other statute to date, with the possible exception of 15 Ric. II c. 2 on forcible entry.¹⁷

In its last part the Act of 1468 contained a clause to the effect that the prohibition against livery-giving and retaining was not to extend to the giving of fees, annuities, lands, and similar in return for the giving of counsel and what was called â€?loial service’, even if the person providing the latter was not learned in the law. The meaning of â€?loial’ is not clear. It might amount to â€?faithful’, or â€?lawful’ or more probably â€?pertaining to the law’. This section of the Act has been taken as implying that, although confirming earlier statutes against livery-giving, it did not totally prohibit that practice, or retaining, even to those who were not menials or learned counsel.¹⁸ Indeed, so the argument runs, it probably allowed retaining by lords to continue. This thesis is hard to accept when in its early part the statute, admitting earlier laws were being ignored, prohibited all retaining after the forthcoming 25 June. The section of the Act which mentions â€?loial service’ is probably best interpreted as referring to service given by legal advisers and agents who were not qualified lawyers, as indeed a subsequent clause seems to indicate.¹⁹ Such persons were probably the solicitors, who were beginning to be of some importance in litigation, or clerks employed in the central courts at Westminster, or plain laymen who added to their income by keeping litigants in the provinces informed about writs out against them and by checking court records.²⁰ If we omit the matter of judicial procedure, the overall result of promulgation of 8 Edw. IV c. 2 was probably an extension of the old rule that no one under the rank of banneret should retain and no less than esquire in status should be a retainer, and then only if retained for life (13 Ric. II st. 3). The statute 1 Hen. IV c. 7 had forbidden all lords except the king from giving livery to knights, esquires, or yeomen, but it had not specifically forbidden them from retaining the same. Those given livery were perhaps not technically retainers, and it may have been possible to be a retainer yet never receive robes, cap, or suit of livery from the lord; but whatever doubt there may have been in men's minds about the distinction must have been settled by the Act of Edward IV. From 1468 lords, like those of lesser social status, might retain only menial servants, officers, men learned in the law, and those giving â€?loial service’. The nobleman or banneret could no longer under the law retain a knight or an esquire. ²¹

To assess how the Act was enforced is difficult. Nobles no doubt continued to retain knights and esquires out of ignorance about the law or in the hope that it would be a dead letter or even in plain defiance. If the last was the case, they would be weighing the necessity of preserving their retinue, patronage, and territorial influence against the cost of any fine or pardon. We might expect that those who were brought before the courts for retaining in subsequent decades would have been persons of lesser social status, and the few instances which have been discovered seem to indicate that this was so. ²² Because very few of the records of the justices of the peace and of the justices of assize and gaol delivery have survived from the period 1450–1550, it is impossible even to hazard a guess as to how many informations regarding illegal livery-giving and retaining were laid before those justices as 8 Edw. IV c. 2 intended. The small number of charges found in the records of king's bench appear to be in the form of indictments and thus may not have been put forward under the procedural rules of 1468.²³

The best proof of the ineffectiveness of earlier measures lies in the appearance of further statutes against the same problem at a later date, and especially does it lie in preambles to such Acts as to their necessity. The reign of Henry VII provided plenty of this as well as other legal indications. In 1485 the nobility were asked to take an oath that they would eschew retaining against the law, while in the subsequent year the judges of the two benches confirmed that retaining anyone but household servants and legal counsel was illegal.²⁴ The preamble to the statute 3 Hen. VII c. 1 blamed illegal retaining and livery-giving, and maintenance, which now appeared in the statutes again, for many more evils than had ever been the case before. Because those evils corrupted the juries, men were being deprived unfairly of their property and robberies and murders were on the increase, presumably by way of revenge. Therefore a new court was to be erected with a very distinguished panel of judges. It was to be operated by a procedure which had the chancellor (one of the judges) receive the charges in the form of a bill or information and then summon the accused, victim, and witnesses (â€?those by whom the truth may be known’) before him and his colleagues by writ of privy seal or subpoena. They were then to try the offender in a manner which was not defined but which must have amounted to examination followed by a verdict by the bench. The punishment was to be â€?as … if… convicted after the due order of the law’. Of the few cases tried in this court which have been discovered, two may have involved maintenance but none was concerned with livery or retaining.²⁵ Yet without other record evidence we should not be too hasty to dismiss the court as ineffective. It certainly had the most knowledgeable set of judges of any, although how such important dignitaries found the opportunity to meet is a mystery.²⁶

The Act 11 Hen. VII c. 3 allotted the problems of illegal livery-giving and retaining, and maintenance (the salient offence), which were still continuing, along with those of riot, embracery, extortion, excessive wages, and inordinate apparel, in part at least to the justices of assize and the justices of the peace. They were to have power on receiving information about any instance of these offences to award process against the offender as if he were already indicted. This was similar to the power entrusted to them by 8 Hen. VI c. 4, the chief novelty of the Act of 1495 being that any false informer was to pay the accused's costs and damages in addition, these being awarded at the justices' discretion. Whether in these cases there was indictment and trial by jury in the full common law manner is unclear. Probably the latter was retained but the former dispensed with and the information allowed to stand in its place. Another statute, 11 Hen. VII c. 25, passed by the same parliament, was also concerned with maintenance, and in two ways which its fellow did not touch. When justices before the trial suspected that the empanelled jurors in a private action were being maintained so they would favour one of the parties, they were to be allowed to �reform’ (i.e. amend the composition of) the panel at their discretion. To a person who thought the verdict in either a criminal case or a private action had gone against him because of the jurors' perjury the Act gave the opportunity to make complaint to the justices, who were to certify it to the chancellor. The latter was empowered to call the complainant before a tribunal comprising himself, the treasurer, the two chief justices, and the clerk of the rolls, who would examine him and the accused and punish according to their findings. This did not, however, reverse the verdict in the original trial, which remained good until overturned by writ of attaint or error.

The last statute of Henry VII's parliaments which affected the handling of offences associated with bastard feudalism was 19 Hen. VII c. 14.²⁷ As in other, earlier, Acts the introduction referred to the ineffectiveness of previous legislation against illegal retaining and livery-giving, but ordered they should be executed.²⁸ The remedy the new Act provided was a suffer level of fines with imprisonment on conviction at the justices' discretion, and some dramatic changes in procedure. Enquiry was to be at quarter sessions by an especially substantial jury of twenty-four, and, in order that there might a greater chance of indictment, the chief constables and bailiffs of the hundreds and the constables of the towns were to give evidence on oath, which was the first time this requisite had figured in a statute. The justices of the peace were empowered to examine suspects and certify the names of those they found had contravened the law into the king's bench, the certificate standing as a conviction. If the examination showed others to be involved as well as the suspect, it was to have the force of an indictment against them. An alternative way to discover offenders which was also provided, was for an information to be brought into the Star Chamber, king's bench, or the council with the king, whither those named would be summoned by subpoena or privy seal writ to be tried by means of examination or other method. Those convicted were to pay costs to the informer, who was also to have reasonable reward from the court. For the devisers of the statute, procedure by indictment and information, reinforced and widened as both were, was still not enough, so a third method was appended. The chancellor, the keeper of the great seal, the justices of the king's bench, and the council were each to have the power to summon before them by subpoena or privy seal writ any person they knew to have offended against the Act, even if there was no indictment, no suit brought before them, nor information laid. Then they might examine those summoned and adjudge them as if convicted according to the common law. Here was a great legal rarity, the purely governmental prosecution. What the statute amounted to in terms of criminal process was the omission of the common law necessities of indictment by grand jury and trial by petty jury; instead, procedure might be of a truncated or summary nature.²⁹ This was not the first time such devices had been employed, but no other statute concerned with livery-giving, retaining, or maintenance, it is fair to say, went so far in that direction. It is apparent that virtually every device known to the English criminal law at that time, which might ensure the reporting of the offences in question and increase the normal rate of conviction, was utilized in the design of this statute, and it can be regarded from one angle as a high point in the history of summary procedure and from another as the moving-up of one dangerous category of trespass for trial before the highest officers and justices in the land.³⁰ The common element in 3 Hen. VII c. 1, 11 Hen. VII c. 3, 11 Hen. VII c. 25, 19 Hen. VII c. 14, and 19 Hen. VII c. 13 for that matter, was the downplaying, indeed the virtual elimination of the jury, both of indictment and trial, from the process stipulated.³¹

If there was any statute which by its provisions should have gone a long way towards removing the evils of illegal livery-giving and retaining it was 19 Hen. VII c. 14. Unfortunately, partly because of the range of options provided for reporting those offences, the record evidence necessary to enable us to make a satisfactory assessment of what was achieved is lacking. The years when the Act was in operation were those when Empson and Dudley, Henry VII's notorious ministers, were reckoned to have been abusing the law, and it is possible that provision for reporting offences by means of information caused exceptional resentment. Before the oyer and terminer commissions, which were appointed between July and November 1509 to investigate grievances about the old reign, there were brought some charges against the laying of false information but whether they were particularly against the operation of the 1504 Act is not clear. The terms of the commissions made no reference to accusation by informers, unless it was concealed in the authority given to deal with trespasses and offences against what was referred to as â€?the statute of Magna Carta or law and custom of England’.³² Nevertheless we cannot doubt that there was a dislike of informers in regard to their reporting offences against the laws about livery-giving and retaining. In the first parliament of Henry VIII's reign, the Act 11 Hen. VII c. 3, which had provided that method of producing accusations, was repealed (by 1 Hen. VIII, c. 6) on the grounds that some informations had been invented for the purpose of vexation. There was no need for the repealing statute to refer to 19 Hen. VII c. 14 since that had expired with the old king's death; but rather remarkable was the fact that 8 Edw. IV c. 2 was not annulled, yet it also allowed the bringing of information against those giving livery illegally. Indeed the Act of 1468 was destined to become a favourite Tudor instrument in controlling that offence.

The first occasion in the new reign on which the government showed open concern over illegal retaining and livery-giving occurred in July 1511 when by proclamation the king ordered that no one should retain or wear cognizances except as the law allowed. By October 1514 apprehension had mounted and it was proclaimed that because these offences were not being punished murder, riot, routs, maintaining, and embracery were daily occurrences. Therefore the statutes were to be observed and any permission allowing retaining and livery beyond the law was revoked.³³ Despite the danger to public order as Henry VIII and his advisers saw it, the last Act which provided a thoroughgoing system to remedy the weakness of the criminal law in the area of retaining and livery-giving had already been passed. The reign of the second Tudor king produced no novel measures in legislation. The statute 33 Hen. VIII c. 10, and 37 Hen. VIII c. 7 which slightly amended it, gave authority to justices of the peace to enquire by jury or information concerning those who retained men or gave livery illegally, as well as about maintainers, embracers, vagabonds, and commodity speculators, and to arrest and try them.³⁴ Procedure was therefore not of the radical truncated or summary type, which had been stipulated not infrequently in the reigns of Henry VII and Edward IV. Rather it replaced the procedurally conservative Act 11 Hen. VII c. 3 but omitted to give the justices of assize power to administer the Act like its forbear of 1495 had done. The statute of 1542 and its amendor of 1546 give the impression of having been designed so as not to upset the upper classes unduly rather than to totally eliminate the problem. There were to be no other statutes promulgated for dealing with retaining, livery, or maintenance during the remainder of the Tudor period.³⁵ William Lambarde tells us that 33 Hen. VIII c. 10 and 37 Hen. VIII c. 7, together with 1 Hen. IV c. 7, 2 Hen. IV c. 21, and 8 Edw. IV c. 2, were the relevant Acts which the justices of the peace were supposed to enforce late in Elizabeth's reign.³⁶

It was once thought that provisions for trying cases of maintenance, illegal retaining, and livery-giving in the common law courts were not of major importance because the conciliar courts saw those offences as their own particular preserve. C. G. Bayne and S. E. Lehmberg, however, showed that this was certainly not true of Henry VII's reign, and more recently J. A. Guy has found similarly in regard to the years when Wolsey was Henry VIII's chief minister.³⁷ Maintenance figured in conciliar business in a very small number of cases in both these periods, and illegal retaining and livery-giving almost not at all. In a single year at the end of Elizabeth I's reign about 5 per cent of the cases heard in the Star Chamber concerned maintenance but again retaining and livery-giving were almost entirely absent. The records of the courts of common law are similarly empty. Thus the files of the Norfolk justices of the peace for 1532–3 provide only a single case of maintenance and none of the other two crimes, and the quarter sessions records of Elizabeth's reign of other counties are equally barren. The home circuit gaol delivery records of Elizabeth I provide but a single example (Surrey, 1580) of indictments for maintenance and none of the other two crimes.³⁸ Besides those of gaol delivery and quarter sessions, the courts mentioned in 8 Edw. IV c. 2 as being the ones to which the informer might go were the king's bench, the common pleas, the exchequer, and those held by commissioners of oyer and terminer.³⁹ A few cases concerned with retaining and livery probably went, especially if great men were involved, into the king's bench or the common pleas and some must have gone before the justices of oyer and terminer, where county faction leaders and their followers traditionally fought their great battles at law, but the matter has yet to be elucidated.⁴⁰

The continuance of illegal livery-giving and retaining into the later sixteenth century was not, however, a matter the government dared ignore. The upper classes in that period were sufficiently worried about the possibility of prosecution and large fines for them to seek licences and pardons from the Crown fairly frequently.⁴¹ Governmental records of the non-legal variety reveal the Crown's concern about retaining and livery offences in every decade. It was thought politic to accuse Thomas Cromwell of retaining illegally at his examination in June 1540. In July 1588 the earl of Leicester reported to Sir Francis Walsingham that the number of liveries given in the last six weeks was incredible (it was, of course, a time of national crisis) but that no man feared the penalty.⁴² A list of June 1596 shows that Sir John Smythe had twenty-two retainers wearing his livery who were neither of his household nor taking his wages. Most revealing, however, were the royal proclamations of 1572 and 1583. The former referred to the multitude of retainers, which was a cause of maintenance and riots, and ordered the enforcement of the relevant statutes; the latter noted that the earlier proclamation had been of no effect, the laws were not enforced and the evil, far from being removed, was increasing.⁴³ Illegal retaining was still recognized as a public evil under James I. Cowell's book The Interpreter, published in 1607, noted the problems associated with it still existed: â€?Yet is it not this fault so well looked unto but that there is need of more pregnant lawes for the redresse thereof or at least better execution of those that be already made.’⁴⁴

The aspect of bastard feudalism which had attracted the greatest attention from historians has undoubtedly been retaining and the retainer. Historians have brought out clearly the supersession of the old custom of allotting a fief to a follower in return for military service by the practice of granting a yearly fee and later of giving a promise of favour. The contract which bound lord to retainer took the form and indeed the name of an indenture, and when it first appeared (in the thirteenth century) it usually provided for the retainer to draw a specific fee from the revenues of one of the lord's manors for a period of years or, more rarely, for life. By the second half of the fifteenth century, so it has been argued, the giving of fees was becoming uncommon, being replaced presumably by favour. Some historians have been inclined to believe that agreements where the retainer secured promise of favour undermined the cohesion and durability of the retinue and therefore the stability of society. They have pointed to the fact that it was not uncommon by the fifteenth century for a retainer to have a contract with a second or even a third lord simultaneously. Recent scholarship has been at pains to emphasize the longevity of a lord's retinue and the durability of the contractual ties, arguing that the social connections engendered were such that no follower could withdraw simply as the whim took him.⁴⁵

To try to assess which party to the contract, lord or retainer, master or client, was the more eager to enter into it may be futile, for the institution would not have persisted had not both sides been able to benefit. It is, however, worthy of notice that sanction clauses against those who defaulted on their obligations are reckoned to have disappeared from indentures about the middle of the fourteenth century, which is suggestive of a rise in the bargaining power of the retainer. From Richard II's reign retainers were to be found taking fees from more than a single lord and the proportion of gentry in a county who entered a retinue may have increased beyond the thirty-three to fifty per cent which had been the figure in the fourteenth century. This could indicate retainers were being sought by lords increasingly, or it could have been that the benefits of being in a retinue were becoming so great that no member of the gentry wished to be excluded. Rather than this being simply a social phenomenon, one view has it that politics played a role and that the coming of the Wars of the Roses forced the nobility to engage in competitive recruitment for retainers. How much of their revenues lords were willing to expend on annuities to retainers is a similarly vexed topic, but the percentage does not seem to have risen with the passing of time. What is more certain is that the majority of retainers who got fees received an amount which was only a fraction of their total annual income, and this was probably still true where a man took fees from several lords.⁴⁶

To reach the heart of bastard feudalism it is necessary to provide an accurate assessment of how lord and retainer each benefited from the institution. Yet before this can be done the lord-retainer relationship must be placed in a wider social context, for although the retinue was central there were other important elements which impinged. One was the lord's tenantry. A tenant might be a retainer but this was not frequent.⁴⁷ Retainers were usually gentry who lived some distance from the lord's county seat and demesne, although probably close to some parcel of his lands or to where he had a claim.⁴⁸ Tenants might be of use as harassers of the foe, in and out of the local courts, in the frequent land wars, and were generally treated with respect because of the rents they provided. They were used as troops only infrequently and were not likely to travel with their masters to â€?show the flag’ as a retainer would.⁴⁹ Those of the gentry, or even the nobility, who were allies or associates of a retaining lord in his land wars, litigation, and every day legal transactions were often referred to as â€?well willers’.⁵⁰ We hear of them sharing the costs which jurors incurred in travelling to sessions. Occasionally the term was used in reference to lesser men. The Paston family employed it to describe sympathetic tenants in a manor of divided loyalties.⁵¹

About the involvement of a lord's household servants we know relatively little, but a certain amount can be deduced. The laws on retaining in no way limited their number and a member of the upper classes could therefore, if he wished, employ as many persons in the running of his house and household as took his fancy. He could therefore in theory host a small army within his own walls and he ought not, it can be argued, have had to look further than to his own kitchen and stable minions for the men he might need in his land wars.⁵² Yet few of the upper classes seem to have made great use of this option. They would have had to pay many men wages over an extended period and keep them busily occupied. In any case the majority of household servants were probably poor material from which to recruit for expeditions of a semi-military variety. The skills and dexterities required for the efficient and decorous performance of duties and services in the hall and chamber would be of little use in ambushes and head-breaking, although servants who were proficient riders might, if properly clothed, be used to add size to retinue. On the other hand a retainer might sometimes double as a household servant. This we are told by an Elizabethan writer who adds, somewhat mysteriously, that the upper classes found this a more attractive arrangement.⁵³ Comments by John Smyth support this. He tells us that among Lord Henry Berkeley's servants were gentlemen and esquires of â€?remarkable families and descent’.⁵⁴ The explanation must be that the retainer-servant was valued because his social standing and graciousness gave a certain glory to the master in whose following he was, something that was doubtless thought particularly valuable at gatherings and occasions of display. A term used sometimes in contemporary correspondence for followers utilized in the land wars was simply â€?men’. Thus Robert Pilkington tells us about how he went with â€?iii score men to Mellur’ and how Thomas Legh of Adlington, esquire, did â€?sende … a hundreth men and moo in preve hemes’, although elsewhere of another occasion he refers to Sir John Savage sending some gentlemen and his houshold servants to drive out William Roubotham.⁵⁵ The term â€?men’ does not seem in the Pilkington narrative or the Paston correspondence to have been entirely, or even mainly, a generic term of convenience. It might be used in a specific manner in regard to the followers of gentry who were possessed of no great wealth, or to followers assembled for the time being by magnates. Thus the suspicion arises that many of the â€?men’ referred to in the land wars were not retainers, servants, or even tenants, but followers recruited ad hoc. They might be given temporary lodging in the master's household but they were there as hired â€?muscle’ on a per diem basis. We hear of the archbishop of York, in his quarrel with the tenants of Knaresborough Forest in 1441 over tolls at Ripon fair, hiring men from the north at sixpence or one shilling a day and bouch of court (i.e. sustenance), of a household being increased so the master could expand his quarrel, and of a gentleman borrowing from an associate strong young men when embarking on a land-war expedition.⁵⁶

For a member of the upper class to have a sizeable retinue was probably an end in itself. The lord sought the glory of having retainers at his back because it confirmed his status and local authority as well as demonstrating his open-handedness in employing and clothing them. He took his retinue with him when he went on progress round his estates, when he travelled to tournaments, parliaments, or assemblies, when he went hunting, and on martial occasions. At his seat his retainers were expected to be present when distinguished guests paid him a visit. Like feudal vassals of old, the members of the retinue probably had the opportunity to provide their master with counsel (they might even serve as his legal counsel) and he used them in administrative positions on his land. When the lord visited the locality where the retainer had his lands, it was expected that the latter would give him â€?attendance’ and â€?wait upon him’. In the fourteenth century the retainer may have actually waited on his master at his meals, but later simply being present and offering general service was probably more important than performing domestic services. The lord would know that when the client â€?waiting upon him’ or â€?giving attendance’ said he was ready to â€?do him pleasure’ it might well herald a request for the lord's support or some intervention in the client's affairs.⁵⁷ Even an outsider who hoped to gain some favour from the lord would behave in this way. The first John Paston was asked in 1450 to persuade the earl of Oxford and Sir Miles Stapleton to wait upon the duke of York â€?in the most wurchepfull wyse that they kun and do hym as good attendaunce and pleasaunce as they mown’; the intention was to secure the duke's assistance against Lord Moleyns.⁵⁸

From the retainers, associates, tenants, and servants, who collectively made up what was known as his affinity, the lord expected a variety of services. What these had in common was that all were intended to â€?help him forward’, that is to say increase his family's wealth and prestige.⁵⁹ His retainers and associates the lord would expect to be his witnesses to contracts, his warrantors to those who purchased from him, his feoffees to uses, and his executors after his death. The last two of these tasks, if they could be burdensome, might also be very profitable and were more likely to be sought after than avoided. Less enticing to the client but crucial in the lord's eyes was the task of labouring jurors. This was not necessarily to be done where the lord was himself involved; it could be another member of the affinity who was in need of such assistance. The first John Paston was asked by the earl of Oxford, whose tenant Nicholas Hert was being sued in an action of debt by a Norwich butcher, â€?that yue wole calle the jurry before you that arn impanellid between thaym and opne thaym the mater at large at myn instance and desire thaym to do as concyens wole and to eschue perjury’.⁶⁰ To act in this way was not, strictly speaking, illegal but it was something so mighty a man as the earl could not do himself, even if he was inclined to, without losing some of his dignity. Furthermore, if he did address the jury himself, a backer of the butcher might charge him with maintenance before a higher court merely as a harassment. It was therefore left to the retainer or well-wilier to perform the task and incur whatever legal risk there was. There were others as well as jurors for clients to cajole or impress on their master's behalf. When parliamentary elections were at hand clients might be of service by ensuring the freeholders voted for the candidate whom he preferred. The Willoughby family's correspondence shows that a client might also be expected to ensure the support of his kinfolk went to the preferred candidate.⁶¹ Another task we hear of, which retainers felt obliged to undertake, was the settling of quarrels between other members of the affinity; sometimes the retainers so entrusted were acting as part of, or in conjunction with, the lord's council. Retainers had to play their part also when their master decided that he could enter a rival's land, although they were less likely to be required to assist in the taking of a distress. Rarer, but it did occur from time to time, was the occasion when the lord went with or sent his retinue to overawe a court in session and impress the jurors directly. Sometime before January 1505, Sir Richard Empson, with no fewer than 200 knights, gentlemen, and yeomen in his entourage, attended York assizes to â€?countenance’, as the term was, a suit against Sir Robert Plumpton. He did not leave until the assize passed against the latter.⁶² Not only might a retinue be of assistance to its master in politics, it could also benefit him in a direct financial manner, for retainers and tenants and well-wishers as well were willing to offer not just their aid but actual gifts to obtain that vital support known as â€?good lordship’. Such bribes might take the form of money or objects, valuable animals for example, but often the lord's support was obtained by promising him (quite illegally) a share in the profit to be made from a successful outcome to the client's current lawsuit or land war.⁶³

From the viewpoint of the retainer or more distant member of a lord's affinity, the advantages of the connection were substantial. The client could count on the lord assisting him to win his suits in the courts. The lord could ensure the necessary judicial writs were forthcoming, put pressure on the sheriff, give assistance in labouring jurors, and write to the justices demanding a â€?fair’ trial of his client's cause at the least, although we may suspect he would be perturbed if the follower making the request did so too often or if he sought assistance in a case in which the facts were very much against him.⁶⁴ Direct intervention by the lord, however, was often unnecessary. To gain the verdict, it was sometimes sufficient simply to be known as the lord's client.⁶⁵ Wearing the lord's livery in court would probably have the same effect. The king's council in 1471 ordered Lord Grey of Codnor to discharge all those he had retained in Nottingham contrary to statute so that those inhabitants against whom there were complaints might be â€?justiced’, as it was put, by the king's officers.⁶⁶ If he was an active participant in the lord's land wars, the retainer or member of the affinity would take heart from the knowledge that it was reckoned an obligation for his master to recompense him for loss of property sustained therein and that should things go awry and he find himself besieged, captured, or in danger of his life the lord would seek intercession in the feud at the highest level.⁶⁷ Not to do so would ruin the lord's reputation amongst his peers. Clients also sought the favour of their â€?good lord’ for more direct benefits than assistance in local feuds. Frequently their desire was for an office or position in the lord's administration or for help in acquiring similar from the king. In the latter case the lord would be expected to supplicate to the king's ministers and offer the sum of money which the client was willing to pay for the office.⁶⁸ A retainer could rely on his lord's services in settling in an informal manner any disputes he had with those of roughly the same social status, other retainers in particular. When Sir Gilbert Debenham and Sir John Paston and their followers seemed likely to come to blows in a quarrel over the rents of Hellesdon, the duke of Norfolk, who was lord of both knights, intervened by summoning both men to visit him and ordering them to dismiss their men. He then placed a keeper, acceptable to the two parties, in Hellesdon Place.⁶⁹ An observant lord would hope to intervene before quarrels between his followers erupted into open strife and instruct them not to resort to direct action or the law courts before he took the matter in hand. This probably meant referring the matter to his legal advisers, his â€?councell’, who had the necessary knowledge of law to be able to make a fairly evenly balanced settlement, or â€?direction’ as it was called.⁷⁰

To what degree were retainers and the members of an affinity involved in crime as distinct from the formal aggressiveness which characterized the gentlemen's land wars? There is some indication that followers were not always under the lord's strict control and indeed might become a menace to public order.⁷¹ The most notorious band of errant followers about whom we have a reasonable amount of information was that headed by Charles Nowell, bailiff of Braydeston, Robert Ledham, and Roger Church, bailiff of Blofeld hundred, which operated in Norfolk and Suffolk in the years 1450–2.⁷² Nowell, who seems to have been the leader, was an esquire of the duke of Norfolk, and it is likely that his associates in crime were also from the Norfolk retinue or affinity with a leavening of servants and what were called â€?misgoverned people’. What made this band turn to violence and harassment is not clear, but factional dispute at the national as well as at the local level may have played a part. According to an information into the king's bench (presumably under the statute 13 Hen. IV c. 7) in 1452, they had, using Ledham's house as their fortress, issued forth to ambush, assault, grievously wound, take prisoner, seize cattle and sheep, enter land forcibly and disseise occupants, and stir up an insurrection in the countryside and accuse other of being the promoters. At first sight this seems to be a clear demonstration of chronic lawlessness, yet on consideration it is evident that, except for the last, these were all crimes which were typical of the land wars and its levels of violence. That violence was limited in its scope. Nowell's band, stated the information, had attacked the first John Paston at the door of Norwich cathedral intending to murder him. However, we notice he was fit enough soon after and the servant whom the miscreants hit over the head with a sword in the same incident was not reported as dying. One John Wylton was beaten by the band in Plumstead churchyard and said to have been in danger of his life, but he seems to have lived. John Coke of Witton was maimed and his mother hit on the head, â€?which wound never healed before her death’ but it was not said to have caused it. The son of one Aired of Earl Soham was killed on 1 April, stated the information; â€?perhaps by the fellowship’ (i.e. Nowell's gang), it added in a lame and indeterminate manner.

The land wars were in fact relatively bloodless. There were threats, assaults, ambushes, entries by force into land and buildings, some sacking, considerable shooting of bows and guns, but little serious theft or thrusting with cold steel. There was, it seems, a great deal of trespass but where were the felonies?⁷³ Were there no retainers, servants, or others in the affinities of the upper classes with a proclivity for real criminal activity like highway robbery and murder? Were there no latter-day Folvilles or Coterels, the notorious gentlemen-criminals of the 1320s and 1330s? Did not the phenomena of bastard feudalism, the land wars in particular, provide opportunities for crime of a more sordid and serious sort, crime which might threaten the possessions and personal safety of villagers and townsmen? The information we can elicit on this important issue from the records of the fourteenth and fifteenth centuries is minimal but from those of the sixteenth we can garner with great success. There are references which show that the felon in the households and retinues of the magnates was not an infrequent problem. Thus James Houghton, outlawed for murder, was reported in 1527 as staying in Lord Darcy's house as his servant; several murderers wearing the duke of Richmond's livery were being kept in Holt Castle in 1535; while in 1556 one Pecke, a retainer in the earl of Oxford's household who had committed highway robbery and confessed, was known to be still waiting at table. There are a good number of other similar instances and some even of the culprits being hanged. A commentator in the later years of Henry VIII's reign suggested that the committing of felonious deeds, particularly the turning to robbery on the part of retainers, was because it was not uncommon for men to be retained without wages.⁷⁴ Here again is indication that in the sixteenth century retainers might be regarded as no more than servants, but whether the incidence of serious offences committed by retainers correlated positively with their decline in social status is impossible to determine.

What we do have from the same period is a particularly instructive example of how an upper-class household could harbour felonious followers and how the master of that household, cognizant of their criminal activity, would go to lengths to protect them. It also demonstrates how maintenance in its most brazen form was still practised in the 1530s. The lord in question was Sir Giles Strangways, whose land lay in Dorset and Somerset. An information of c. 1539 stated that three or four of his servants, intimates who waited on him in his chamber, had been robbing poor men on the highway and in their houses.⁷⁵ One of these, a notorious rogue named James Ferrer who was reported to have committed highway robbery at Christmas 1528, was taken before the council where he confessed. He was sentenced to death (presumably in a common law court) but his master got him a pardon.⁷⁶ The other suspects refused to confess and continued in Strangways' service. Another of his servants named William Sampson, who was indicted five times of â€?sundry felonies’, Sir Giles was able to get acquitted. We are told there were â€?dyvers other mo fellonies by his sarvauntes and other persons commyttyd’ which showed he was a â€?gret berer agaynst the kynges lawys’ and the cause of â€?miche perjurie … in that shire’. Of considerable interest is the fact that Sir Giles was concerned about how the county viewed the reputation of his servants. The information reveals that after a local robbery he enquired of an acquaintance about what rumour there was in the county concerning his servants and was told tersely â€?A lewd rule and trim’. This seems to have prompted him to pay to the victim out of his own pocket a sum of money equal to the amount stolen, which suggests he had few illusions about the honesty of the members of his household. Strangways had no difficulty in getting his friends, gentlemen who were under his â€?riule and commanddement’, placed on grand juries so that, even when the accusers were able to point out the miscreant at the assize or quarter sessions, no indictment would be found. Nor is there reference to his dismissing any of those accused from his service. Indeed, when he himself was robbed by a servant named Brynabell he got him indicted; but at the sessions he deliberately failed to appear in order to give evidence and thus the accused was acquitted. It would probably be incorrect to suggest that Sir Giles encouraged his servants directly to indulge in felonious activity. They appear to have been eager to benefit themselves rather than their master. Very likely he was in a quandary which faced many of the upper classes in the fifteenth and sixteenth centuries: the need to have around him able-bodied men for use in the land wars but an inability to keep close control over their behaviour â€?off duty’.

We have seen elsewhere that the land wars, which sprang from bastard feudalism, resulted in the perpetration of very few serious crimes (that is to say felonies) by the participants. Yet might it not have been, we may ask, that the land wars, with the riotous and menacing behaviour on the part of the retainers and other participants, were so damaging to public order through the harassment of those whose duty it was to maintain it that offences of the truly criminal sort, for example homicide and serious larceny, perpetrated by the population at large, increased? The answer seems to be that the incidence of felony rather than rising in the fifteenth century was in general and substantial decline. In Yorkshire between 1300 and 1348 there was an average of about 114 persons arraigned before the king's justices of gaol delivery for felony each year, whereas between 1439 and 1460 the average was no more than about twenty-eight. In Norfolk between 1300 and the Black Death those similarly charged with felony averaged about seventy-eight per year but in the 1430s the number was around thirty-four. There is no reason for thinking that the machinery for producing accusations was failing in the fifteenth century, nor that the definitions of what was felony were altering.⁷⁷ Of course the several visitations of plague in the eighty years subsequent to 1348 caused a great decline in population, but not one of such a magnitude that it would explain the tremendous fall in felony charges. The proper explanation could well be that the decline was caused by the notable improvement in the fifteenth century in the lot of the lower classes, which reduced the need to thieve and rob merely in order to exist. What then ought we to make of felons like James Ferrer who were to be found in the retinues and households of the upper classes? The answer must surely be that they were there to handle what are euphemistically called â€?heavy’ duties. They probably served as their masters' â€?enforcers’, whose threatening presence was called for when stubborn tenants had to be brought into line, when debts had to be collected, and when hostile witnesses and jurors had to be spoken to. No gentleman would want to employ many such men since they might additionally commit crimes to profit themselves alone, misdeeds unconnected with their master's feuds which could be very embarrassing. Thus, on the grounds of their small numbers we may conclude that they were not likely to have affected the incidence of felony to any marked degree.