Chapter One Sheriffs, Justices, and Juries

DOI: 10.4324/9781315883625-1

A sheriff, Sir John Fortescue tells us, shall be chosen in the exchequer on the day after All Souls by the council, the lords spiritual and temporal, the judges of the two benches, the barons of the exchequer, and the clerk of the rolls.

At the level of council at least, and very probably among the nobility and gentry at large, men knew what they wanted in a sheriff.

The reason why the magnates and gentry with land in a particular county took interest in the personal qualities, territorial possessions, and political affinities of a candidate for the shrievalty was his future power, if chosen, as an officer of the central government to aid or hinder their ambitions or interests in that bailiwick. The aspect of the sheriffs authority with which they were most concerned was the administration of the law both on the criminal side and in the field of private suits. Twice a year, even into the seventeenth century, the sheriffs held tourns in each hundred in the month following Easter and Michaelmas.

These shrieval duties of a legal nature might be performed in ways either detrimental or beneficial to particular members of the upper classes and their households and clients.

The area where it lay in the sheriff's power to affect the world of the upper-class feud the most was that of juries and their empanelling.

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

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

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

The picture which emerges of the shrieval office in the years between c. 1350 and 1600 is not therefore one of marked decline or supercession. The sheriff may not in his duties relating to public order have been the great power he was at times in earlier centuries but the position, which still provided the holder with a number of judicial duties, was certainly quite crucial in the quarrelsome world of bastard feudalism. This was particularly through the authority to empanel the jurors who produced the formal charges and the verdicts. These verdicts could mean the loss of land and the substantial, even perhaps the total, impoverishment of one of the parties involved. The hostility we detect in contemporary correspondence to the local occupant of the shrieval office appears to have arisen from trepidation that he was empanelling a jury which would prove hostile to the writer; also from distaste for another aspect of the sheriffs duties, namely the execution of process, be it the seizure of the chattels or land of those whose arrest had been commanded, the incomplete restoration of seisin, or the too efficient implementation of a court judgment. Where the law fell fairly but heavily on an individual, he was likely to view the agent of the legal system with hostility.

The law-enforcement official who had most to do with the illegal aspects of bastard feudalism was undoubtedly the justice of the peace, and indeed the rise of that social phenomenon in the fourteenth century was contemporaneous with the rise of that class of law-officer. Justices of the peace, whose domain in fact was the criminal law, not the field of private actions, were appointed by the king on the advice of the chancellor, the treasurer, and the council (2 Hen. V st. 2 c. 1).¹⁵ In practice, local politics and the connection of local magnates with their peers who were on the council must have played a part in the selection. The Paston family's letters suggest the more powerful of the local gentry also played a part in the process. Sir John Fastolf and the first John Paston were able at various times to veto a candidate, secure the selection of another, and to negotiate with the chancellor for their own reappointment and that of their friends. At the end of the sixteenth century we hear of justices of the peace appointed by the chief justice of the king's bench and by the attorney-general.¹⁶ There were several statutes which barred men in various categories from the office. A justice of the peace, who ought to be a man of good name, should not be a barrator (i.e. persistently involved in legal suits) nor a maintainer of anyone who was (1 Edw. III c. 1); he should not be the steward of one of the nobility (12 Ric. II c. 10); he should hold land or tenements worth £20 a year for the purposes of prestige and so that he would not be tempted to extort (18 Hen. VI c. 11); if he was a member of the gentry, but not if he was a lord or a justice of assize, he ought to live in the county on whose bench he was to serve. How stringently these rules were applied before the sixteenth century there is little evidence to indicate, but in 1595 Queen Elizabeth ordered the removal of those JPs who lived outside the county whose bench they adorned and those who lacked the required amount of property.¹⁷

We know for sure that justices of the peace were just as quarrelsome as their neighbours who did not sit on the bench and that a good number gave support to miscreants. Indeed, many must have sought the office in order to assist a county faction and to protect their own dependants, friends, and servants from legal action. There was never a law that justices of the peace must not be the retainers of others, although in June 1561 it was apparently the intention of Sir William Cecil, Elizabeth's chief minister, to remove such men from the commission.¹⁸ It was governmental policy from as early as Edward II's reign to exclude the sheriff. In the size of their membership, peace commissions during the later fourteenth century and the fifteenth century tended to increase relentlessly. There were as few as six JPs per county being appointed at each turn in the 1380s, over a dozen in the early fifteenth century, thirty or more in some counties by the early sixteenth, and double that by the end of Elizabeth's reign.¹⁹ In the early years of the peace commission's existence, those on it, while they usually possessed the authority to determine trespass, might not be allowed that power in regard to felony. There seem to have been occasions, furthermore, when the determination of the crimes in each of these categories was reserved to particular members of the peace commission, no doubt those with some degree of training in the law. In 1394 it was enacted that two such justices of the peace might deliver gaols in their county. This provided them with authority to arraign those indicted of felony, a power being lost to the peace commission as such, for although its members might enquire into felony, they were being forced to yield the right to try it and were being restricted in their arraignments to a diet of trespass.²⁰

In the world of feud among the members of the upper classes threats and hot words were frequent. It was the justices of the peace, both in and out of their sessions, on whom the king relied above others to defuse these potentially explosive situations, and their chief instrument was the surety of the peace. Marowe, who expounded on the peace commission in the later years of Henry VII's reign, held that the JP's power to order the giving of this surety was virtually unlimited. Lambarde, writing on the same topic eighty years later, argued that any person could ask for and secure it against anyone else, even a wife against her husband and vice versa. The cause would very likely be a fear of personal injury or damage to property, but whether justices investigated the request to see if it was based on actual danger we cannot tell.²¹ Fitzherbert stated that no surety should be given unless the party asking for it first took an oath to the effect that he was not prompted by malice. If the person reckoned to be endangering the peace refused to find sureties, then the justice of the peace could command his arrest and committal to gaol until he would comply. The sureties, of whom there were normally two, were men of substance who, by the late sixteenth century at least, must provide pledges in the order of £20 leviable on their goods; these could be released by the man in danger or the justice of the peace at their discretion but no later than the day set when the pledges were taken. The pledges were forfeit should the peace be broken by the party pledged, even if he did so only by threatening words or by carrying a weapon.²²

The justices of the peace began to make their mark as judicial officers immediately before the time certain aspects of bastard feudalism became so obnoxious that they had to be proscribed by law. Probably because they had insufficient professional judges, perhaps because they were pushed into it by the Commons of Parliament, the kings of the fourteenth and fifteenth centuries decided to utilize the justices of the peace to operate the statutes against this class of misbehaviour. Thus in the fields of the illegal giving of livery or retaining, the statute 1 Ric. II c. 7, which was directed against those who gave livery and made covenants with the recipients so that they should maintain each other in their quarrels, was left to the justices of assize to administer, yet the commission of the peace of 1380 empowered JPs to hear and determine offences of livery and maintenance. The important statute of 1390 (13 Ric. II st. 3), which defined what retaining was to be lawful, gave in contrast no indication who was responsible for trying offenders, but the Act 20 Ric. II c. 2, which forbade a yeoman or anyone below the estate of an esquire from bearing livery unless he was a household servant in the continuous employ of a lord, was given to the justices of the peace to enforce by their enquiry and by punishment at their discretion.²³ In the first parliament of the reign of Henry IV there was passed an Act (1 Hen. IV c. 7) which forbade lords giving livery of company to any knight, esquire, or yeoman. By the statute 7 Hen. IV c. 14 private suits of the qui tarn … quam variety (i.e. the complaining party sued both for himself and for the king, which later became known as a penal action) against such miscreants were countenanced, but these were to be brought before the justices of assize. These procedures cannot have brought satisfactory results, for the Act 8 Hen. VI c. 4 said that the two above-mentioned Acts were not being operated because of lack of indictments on account of maintenance (i.e. pressure on victims and jurors by someone not personally involved in the case). Thenceforward, therefore, justices of assize and of the peace were empowered to attach (arrest) suspects as though they had been indicted for trespass; then they could examine them and, if they were found guilty, punish them by a fine of 100 shillings, the examination apparently serving as both indictment and a form of trial.

Here, then, we have justices of the peace as associates of the professional judges administering justice on the errant nobility and furthermore doing so in summary fashion, the noble suspect being neither indicted (which was impossible because of his maintenance) nor arraigned before a jury. This was to be a salient feature of legislation against bastard feudalism for a century. Yet the statute 8 Hen. VI c. 4 was also unsatisfactory, at least it was considered so in Edward IV's reign. Therefore by 8 Edw. IV c. 2 it was forbidden to give livery to anyone save household officers, servants, or legal counsel. Procedure against offenders was to be by the laying of information in the king's bench, the common pleas, or at sessions of the peace. The justices in those courts were empowered, if they preferred to proceed without normal arraignment, to try the accused by mere examination. This tradition of employing justices of the peace to deal with livery-giving offences and allowing them to exercise summary justice continued into the reign of Henry VII. The statute 11 Hen. VII c. 3, noting that the Acts concerned with riot, unlawful assembly, illegal retaining, the giving and taking of livery, maintenance, embracery, and excessive wages could not be executed because of embracery, maintenance, and corruption, provided for justices of assize and JPs on information received to proceed against those named as if they had already been indicted. We notice that the procedure envisaged in this Act was not quite as abbreviated as in 8 Edw. IV c. 2 in that trial was probably (it was not stated) to be of the normal sort and not by examination.

In regard to livery-giving and retaining, the statute 11 Hen. VII c. 3 was no great success and therefore the very detailed 19 Hen. VII c. 14 was designed to remedy matters. This it did by a system of fines, by seeking to ensure better evidence about these offences came before the courts, and by encouraging accusations made by information laid before the chancellor, the keeper of the great seal, the king's bench, or the council. These dignitaries and courts were empowered to dispatch privy seal or subpoena writs and then examine the suspects summoned, the examination serving as a full arraignment under the common law. At the lower level it was provided that justices of the peace should enquire at quarter sessions by means of a jury of twenty-four substantial men about illegal retaining and livery-giving in their counties. They were to order the chief constables and bailiffs of the hundreds and the constables of vills to appear at the sessions and give evidence about the offences on oath. The suspects reported were to be examined by the JPs at the sessions or at any convenient time or place and the names certified to the king's bench, the certificate taking the place of an indictment. The 1504 Act, we may say, dealt with illegal retaining much as 8 Edw. IV c. 2 dealt with livery-giving. Indictment by jurors, it is true, was allowed a certain role but most reliance was placed on accusation by means of information. The suspects were to be tried by examination by great officers of the realm, by the king's bench, council, or justices of the peace. The effect, if they were convicted, was to be �as though [they were] condemned after the course of the common law'. Once more the JPs were the category of justices entrusted with the administration of the law at the lower level and indeed they were the only common element envisaged in the operation of 8 Edw. IV c. 2, 11 Hen. VII c. 3, and 19 Hen. VII c. 14.

Legislation which accentuated the role of the justice of the peace in regard to bastard feudalism was also forthcoming in the field of riot and forcible entry during the same period of time. What may be taken as the first statute against riot was 2 Ric. II st. 1 c. 6. This provided for lords, when â€?credibly certified’ of a riot, to arrest those involved without waiting for any indictments and commit them to gaol for trial by the justices of assize. On the grounds that it was too severe, this Act was annulled at a later date by the very parliament which passed it. The next statute on riot, 13 Hen. IV c. 7, was very probably the most important of them all. It gave power to arrest rioters to justices of the peace and the sheriff instead of to lords. If these officers arrived at a riot before the rioters had dispersed, they could seize the offenders and put them into gaol as convicted by their record.²⁴ If the rioters had dispersed, the justices were to enquire of the facts by means of a jury, but if they could not get at the truth that way, maintenance perhaps intervening, they were to certify their own beliefs about the miscreants (which cerificate was to have the force of an indictment) into king's bench or to the council, where the matter was to be tried.²⁵ There was no other statute which substantially affected the law of riot until 1495. Then the Act 11 Hen. VII c. 3, as we have seen, permitted accusations in regard to a good range of offences connected with bastard feudalism, including riot, to be made not by indictment but by means of information laid before justices of assize and justices of the peace.²⁶ Again the use of a jury for laying charges was absent and the normal procedure was therefore abbreviated.

In regard to the crime of forcible entry, which first made its appearance as an indictable trespass in 1381 (5 Ric. II st. 1 c. 7), the justices of the peace were given a major role by the two most important statutes. 15 Ric. II c. 2, which seems to have been the archetypal Act in the matter of truncated process where offences touching bastard feudalism were involved, stipulated that on receiving a complaint of forcible entry into property a single or several JPs, probably with the sheriff attendant on them, might take a posse to the scene of the misdemeanour and, if they found any person holding a place forcibly after entry made, they could put the miscreants in gaol as convicted by their mere record. There the offenders were to stay until they made a fine with the king. What is particularly noteworthy is that all this might follow from the simple word of a single justice of the peace. In 1429 there was passed a second forcible entry Act, 8 Hen. VI c. 9. This one was to deal with instances where entry was made peaceably but the property was subsequently held by force, where forcible entrants fled when a justice of the peace arrived, and where an entrant had made a gift or feoffment to a lord so as to have his maintenance in the enterprise. In regard to the last, if the party put out could prove it by a private action, the feoffment was to be void. No doubt because a justice of the peace could not â€?record’ an entry by force which he did not see, it was provided that he should enquire about the entry from the entrants themselves and from the people of the county. The latter sounds like enquiry by a local jury rather than plain examination, although the former suggests interrogation. Here the rules laid down are strongly reminiscent of those for riot as set out in 13 Hen. IV c. 7, enquiry by jury being resorted to when no â€?recording’ was possible. If the justices of the peace could not behave in a summary fashion under 8 Hen. VI c. 9 as they were able to under 15 Ric. II c. 2, they were nevertheless entrusted with an authority which put them in a potent position to discipline nobility and gentry in their land wars. The only other statute on riot and forcible entry before the death of Henry VII was passed in the Parliament of 1504 (19 Hen. VII c. 13). Although the Act rehearsed 13 Hen. IV c. 7 and ordered its proper enforcement, it provided that, where a jury was used (i.e. because the rioters had dispersed when the JPs and sheriff arrived at the scene) and it failed to find a true bill on account of maintenance or embracery, the justices and the sheriff might certify the names of the offenders and this was to work an instant conviction.²⁷

After the accession of Henry VIII nothing truly similar to these summary statutes on riot, forcible entry, livery-giving and retaining was promulgated, and most certainly nothing of the type which gave summary authority over those offences to justices of the peace. Indeed, in the rest of the Tudor period there was but one new Act touching procedure where offences were of the bastard feudalism type (33 Hen. VIII c. 10) and one which affected the technical scope of riot.²⁸ The Act 19 Hen. VII c. 14 contained a clause which cut short its operation when that king died, but the other statutes in the group theoretically continued in force. The evidence of plea rolls in regard to the utilization of these Acts by the Crown and where indictment and jury trial were used is unfortunately rather scanty. The extant records of the Hampshire peace commission for 1474–5 show two indictments for forcible entry (probably under 15 Ric. II c. 2), one for riot (under 5 Ric. II st. 1 c. 7 or 17 Ric. II c. 8), and one for the illegal giving of livery (under 8 Edw. IV c. 2) out of a total of thirty-seven.²⁹ The records of the Norfolk JPs for 1532–3 which survive provide eleven cases of forcible entry and seven of riot out of a total of some 250. The Essex quarter sessions records of July 1565 to April 1566 contain five indictments for forcible entry out of a total of about fifty-four.³⁰ Privy or special sessions held by justices of the peace seem to have had a special connection with these two types of offence. Of the eleven privy sessions known to have been held in Staffordshire between 1581 and 1597, five were concerned with forcible entry and riot and were summoned under 8 Hen. VI c. 9 and 19 Hen. VII c. 13.³¹ These totals, which show forcible entry and riot still to be relatively common offences in the sixteenth century, probably represent something considerably less than the actual incidence.

The charges appearing in the records just mentioned were brought for the most part by means of indictment, the most common manner, not by the truncated methods provided in statutes like 15 Ric. II c. 2 (forcible entry), 13 Hen. IV c. 7 (riot), 8 Edw. IV c. 2 (illicit livery and retaining), 19 Hen. VII c. 13 (maintenance and embracery), and in the similar Acts we have noticed above.³² These each provided for a method of trial quite different from that used in regard to virtually all other offences. Essentially the justices of the peace by their record could report the offenders and that record would have the force of an indictment. In the case of 15 Ric. II c. 2 the JPs record could also work a conviction, while under 8 Edw. IV c. 2 a justice of the peace could examine a suspect and that simple examination, if it were unfavourable, would count as a conviction. This was power indeed, even if the punishment meted out could not endanger life and limb.³³ The majority of cases under 13 Hen. IV c. 7 and 8 Edw. IV c. 2 must have gone before courts other than those of the peace commission. In the case of illicit giving and taking of livery, and retaining contrary to statute, many cases probably went into king's bench or before general commissions of oyer and terminer, while where the offence was riot they may have gone for the most part before the king's council. The power of the justices of the peace in cases which fell under the Acts 13 Hen. IV c. 7 and its improver 19 Hen. VII c. 13, as well as under 15 Ric. II c. 2, was such that those who caused a riot or entered forcibly might never come before the courts and still less be punished, provided the JPs who viewed the riot or entry chose not to record what they had seen or summon a jury to enquire. This situation, which cannot have been infrequent, made for one good reason why the upper classes were so keen that they themselves or their clients should be members of the peace commission. To what degree parliamentary pressure by the nobility and the gentry was reponsible for obtaining this great authority over land-war offences is not clear. If the king favoured the provisions legislated because it saved him from having to employ more professional judges, the members of the upper classes must have approved of them out of a desire to preserve their property and a mistrust of the traditional procedures.

Another facet of the authority of the justices of the peace was their ability to interfere in the selection and the work of juries. Despite the popularity of truncated process and the use of record, examination, and information to circumvent the employment of jurors, they were still necessary for the presentment and trial of a number of offences directly connected with bastard feudalism. Thus the many trespasses of the assault variety had to be handled by juries, as did all the relatively few felonies committed in the land wars. Jurors were also essential, of course, when the matter at trial was a private action, as for example of trespass or novel disseisin. The same was also true in regard to most of the actions brought by informers under the many laws which provided a share of the forfeitures, and even costs and rewards, to the successful suitor. Information, it is worth noting here, was allowed as a method of accusation in a good number of statutes against crime which had a direct connection with bastard feudalism.³⁴

In theory, the indicting or â€?grand’ jurors were picked through the bailiff of each hundred choosing two lawful men who in turn performed the actual selection. In practice, by the sixteenth century at least, the justices of the peace recommended the jurors to the sheriffs who then empanelled them.³⁵ By Elizabeth's reign there were instances of the sheriff needing to have the approval of the justices of assize for his selection. The Articuli super Cartas (1300) stated that jurors ought to be â€?next neighbours, most sufficient and least suspicious’, but it is uncertain whether this referred to all juries or only to those used in private suits. Fortescue, referring to practice in Henry VI's time, mentions the grand jury as being twenty-four men of the township where the misdeed was done, with no affinity with the accused and each worth 100 shillings a year in land or rents, a substantial sum. Lambarde refers also to another jury, one â€?from the body of the shire’ comprising the constables of the hundreds, which produced indictments for crimes missed by the hundred juries; indeed it might indict those juries for concealment. The â€?body of the shire’ jury in the mid-fifteenth century was composed of proven and lawful men not constables. The number of such jurors as were actually sworn in order to indict was usually around fifteen at that time. In 1572 and again in 1583 the Crown asked the justices of assize to make sure no retainer sat on any jury. Grand jurors were loath to accuse their social superiors, Lambarde tells us, and were still in his time much too easily influenced by the sight of livery.³⁶

The indictment process was where factions sought to interfere in order to protect their members from criminal charges and also to try to get their own accusations accepted as true bills. This we can tell from court records and contemporary correspondence. Great efforts were made to install one's allies, relatives, servants and tenants, and those of friends, on the jury, and with good reason. We hear of bills of indictment being rejected because the foreman of the jury was cousin to the person accused, or because the sheriff's servant or those of gentlemen of the opposing faction were jurors. We hear of the widow of a murdered man being allowed to name the jurors. No rank in society seems to have failed to interfere; even an archbishop would use pressure to ensure his bills became indictments.³⁷ In the fifteenth century grand juries, according to Fortescue, were happy to investigate crimes because the jurors of that period were sheep farmers. They thus had a certain amount of spare time denied to arable farmers. Yet it seems likely that although grand juries might enquire, there was a reluctance, if the misdemeanours involved great men or their clients, to find a â€?true bill’, to bring in an indictment. Sir Thomas More tells us this was particularly true of his time in regard to three crimes, one of which was riot; furthermore, grand juries were known to him to have rejected many charges where there was good evidence to support the bill.³⁸ Lambarde noticed the same thing in the later years of that century.³⁹

Although in theory grand juries scrutinized any bill brought to court by an individual, there seems to have been some attempt by justices of the peace to monitor this process. By his day, Lambarde tells us, the grand jurors were only allowed to pronounce on bills already seen by JPs. This practice he justified as a method of ensuring the form of the bill was legally correct, but we may suspect that there was an element of censorship which again made the role of those justices quite critical. We should remember, however, that grand juries were not always under the JPs' eyes directly. More tells us they were entitled to hear evidence before they came to the sessions and could keep secret the names of those who told them.⁴⁰ Justices of the peace were known to tamper with accusation procedure in another manner also. This was by persuading an informer to allow his information to become a bill of indictment and then go before the grand jury to give evidence in its support.⁴¹ Grand juries, except for a short period, were not immune from legal action by those who believed they were corrupt. Edward I laid down that those who had suffered by the procuring of a grand jury might obtain a writ of conspiracy against the suborner. A little later, by an ordinance of 1305, conspiracy was specifically defined as including allying together by covenant or bond in order to indict or acquit falsely. Such charges were apparently common at trailbaston proceedings in the earlier fourteenth century. Suits of conspiracy against suborners of grand juries are to be found among the pleas before the king's bench in the fifteenth century, but how frequent and how successful they were at this time is not known as yet.⁴²

The type of trial jury which was perhaps most affected by the pressures of bastard feudalism was not that used where prosecution was at the king's suit but rather the variety which decided private actions. These jurors were expected to have a reasonable but not necessarily a substantial amount of wealth. The statute 2 Hen. V st. 2 c. 3 set the qualification for jurors giving a verdict in private suits over land or involving debt or damage of more than 40 marks at the same level as that demanded of a member of a petty jury deciding a case of murder, i.e. having land or tenements worth at least 40 shillings a year. By the Act 27 Eliz. c. 6 this requirement was raised to £4. The reason given was that jurors of the â€?poorer and simpler sort’ were â€?the least able to discerne the causes in question’ (i.e. appreciate the legal arguments); also they were unable to afford to attend the sessions. Only in regard to jurors in party suits were there limitations as to old age and bad health: from Edward I's time it had been the rule that jurors in petty assizes (i.e. actions of novel disseisin, mort d'ancestor, and such) should not be over seventy years of age or be continually sick. Nor ought they to live outside the county where the case arose.⁴³ By the statute 35 Hen. VIII c. 6 on every jury panel which was to decide a private action in the king's courts of record there had to be six jurors from the hundred where the matter at issue originated.

To attempt to bribe or pressure jurors in a suit of party so as to influence their decision was embracery, the investigation and punishment of which by the Act 20 Edw. III c. 6 was allotted to the justices of assize, although complaint could also be made to the treasurer and the chancellor. From 1361 such offences were punishable by a fine ten times the size of the bribe.⁴⁴ For a juror to be convicted of taking a gift from a party would result in imprisonment, a fine, and future omission from jury service (5 Edw. III c. 10). However, seeking in the course of a private action to convince the jurors of the Tightness of one's case before it came to actual trial in court was considered much less blameworthy. We read of litigants who sent their evidences in regard to the land in dispute to the jurors-to-be, or who wrote to each of them, or, being of high rank, sent a messenger to tell them how they felt about the case. The third John Paston, we know, used his chief witness in the forthcoming trial to get hold of certain evidences pertaining to his title and to labour the jurors about them.⁴⁵ This was considered acceptable, if rather sharp, practice in the fifteenth and early sixteenth centuries, but by Elizabeth's reign it had become much less acceptable, even if there were no laws specifically forbidding it. Hudson, the historian of the Star Chamber, for example, states clearly that a plaintiff or defendant ought not to labour jurors about the â€?state of the cause’.⁴⁶

After labouring, the next concern of a litigant was that the jurors with whom he had communicated should actually attend the trial, for there was a high level of absenteeism. Many of the delays which beset private actions were caused, as one statute of Henry VIII pointed out, simply by the shortage of acceptable jurors at the sessions.⁴⁷ This was the result partly of challenges but largely of maintenance and embracery, that is to say pressure by one party or by those of his faction or affinity to dissuade them from being at the trial. To ensure the jurors whom he had laboured did attend, a party might help them with their travel expenses by, for example, paying for their lodging in the town where the court sat.⁴⁸ This practice continued into the sixteenth century. As with juries of indictment, the juries which sat to decide private actions were frequently packed with men who had connections with one or other of the contesting parties. Robert Pilkington tells us in regard to what seems to have been an action of novel disseisin that his adversaries packed the jury with the kinsmen, â€?sibmen’, old servants, tenants, and allies. Robert Plumpton was told in regard to his suit at the Yorkshire assizes of February 1498 that he should obtain a copy of the panel for purposes of challenge and check if any men â€?syb or allied’ to his adversary William Babthorp were included. To challenge any juror who was â€?alied, feed or servant to his adverse partie’ or a personal enemy, as Thomas Smith pointed out in the mid-sixteenth-century tract on the English legal system, was quite proper but whether the litigant was able to do so with total success seems doubtful.⁴⁹

Any plaintiff or defendant in a private action who felt that the jury which had given the verdict was corrupt might seek the attainder of the jurors for perjury (â€?the greatest mischief which can beset the realm’, as the Act 15 Hen. VI c. 5 put it) through the decision of another jury, this time one of twenty-four men. Should the accused be found guilty, they could suffer total forfeiture. Thomas Smith implies that by the mid-sixteenth century the use of juries of attaint was infrequent and that when they were used the cases rarely proceeded to a verdict; instead, they were settled out of court.⁵⁰ In Henry VII's reign two statutes were promulgated which were designed to provide a more satisfactory procedure. The so-called â€?Star Chamber’ Act (3 Hen. VII c. 1) set up a court of great postholders to examine complainants who put in a bill or information about illegal livery and retaining, embracery, and the taking of money by juries. This was, however, designed primarily to improve the criminal law. To extend this statute to private suits, there was passed 11 Hen. VII c. 25, the â€?Perjury Act’, as it has been called. Under this a complainant about a corrupt verdict was to have his bill passed to the chancellor, who would then summon the accused jurors to appear before a court comprising himself, the treasurer, the two chief justices, and the master of the rolls. The court was to examine the accused and punish them at discretion, which meant that it was to serve as a court of summary justice.⁵¹ If he did not include sufficient evidence in his bill or he non-suited, the complainant was liable for costs and damages.

The Act by its own wording ceased to be operative when the Parliament of 1504 met, while the other court, the one established in 1487, does not seem to have functioned after 1495. Cases involving corrupt juries were certainly dealt with by Wolsey's court of Star Chamber but the number, if we judge by recent research, was never high or even substantial. Guy found six cases concerning maintenance, five involving corrupt verdicts, and five of embracery or perjury out of a total of 473 cases where the records were full enough to reveal the type of crime at issue. Apparently the number of cases of this type which came before the Star Chamber increased in the 1530s and 1540s, a trend which became more pronounced still under Elizabeth.⁵² How many of these cases involved juries deciding private actions and how many were those dealing with the king's suit, we are not told. Sir Thomas More, Sir Thomas Smith, and William Hudson each refer in their writings to errant juries in both private suits and those of the king having to appear before the council. More implies that the practice of being called to the Star Chamber or before the privy council was not infrequent, Smith that it was, whereas Hudson in his Star Chamber treatise states that from 1485 a grand or trial jury was fined there for its verdict virtually every law term.⁵³ Overall, the evidence of decisive action being taken against corrupt jurors is not impressive. Probably few cases came to trial and convictions were fewer still, which of course was a major reason why the evils of bastard feudalism were so long-lived.

If some jurors were punished for their corrupt behaviour, very few sheriffs or justices of the peace can have been. The extant records of medieval commissions of the peace provide few instances of indictments for that purpose. Indeed the only example they contain of a substantial investigation into shrieval malfeasance seems to have been one in Devon in 1352, whereby two ex-sheriffs, William Auncel and Robert Hacche, were indicted of extortion in regard to the return of writs and the detention of beasts, levying fines illegally, allowing bail contrary to the law, placing men of bad fame on juries in return for money, failing to make an arrest because of a bribe, and taking payments from parties in return for maintaining them in their quarrels.⁵⁴ Each of these categories of offence was, of course, intimately connected with bastard feudalism. They were very similar to those attributed to sheriffs in Britton, the late thirteenth-century legal treatise and by the â€?rules for sheriffs’ of 1516.⁵⁵ Responsible for the prosecutions of 1352 seems to have been Chief Justice William Shareshull, who served on the Devon peace commission at the time and appears to have been a major driving force behind the attempt in the mid-fourteenth century to make the criminal law more effective.⁵⁶ Because there are no other similar indictments in these records from the later fourteenth or the fifteenth centuries, we must assume that those of the gentry who served regularly as sheriffs and justices of the peace had a tacit agreement amongst themselves never to seek the indictment of each other for malfeasance of office in the period of the land wars and that they resisted any suggestion from the centre that they should do so. This seems to be confirmed by extant fifteenth-century correspondence, which makes no reference to the prosecution for malfeasance of these officials in regard to their legal duties, although there remains the faint chance that such does exist in the files of some unexplored general oyer and terminer commission.⁵⁷

We must also consider whether the puisne justices in their capacity as justices of assize and of oyer and terminer were tarred with the same brush as the justices of the peace. Were they totally above the county feuds over land, or did they occasionally give favour to particular suitors, complainants, and accused? That in the earlier fourteenth century they accepted fees and robes from magnates is not in doubt, but it has been suggested that an ordinance of 1346, and perhaps the punishing of judges who were particularly errant in this respect, resulted in the later limitation of the practice and its probable elimination by 1500.⁵⁸ If this was so, there is nevertheless good testimony that the judges were regarded in the early sixteenth century as still being far too easily influenced. Edmund Dudley, Henry VII's unpopular minister, writing in 1509, suggested that the king should encourage judges to guard against being affected by the fear of great persons or of incurring the displeasure of the king's councillors or servants.⁵⁹ Dudley's tone is that such interference was common in his day and that the judges sometimes tilted the scales in the influential person's favour. He does not mention actually bribing a judge and the implication is that if there was any reward for the latter it took the form of a favour for a favour. The Paston correspondence suggests upper-class women might achieve the same by personal supplication and by means of their charm, and might even obtain helpful legal advice from those who were later to try their cases.⁶⁰

The superior justices, there is evidence to suspect, were most affected when they were trying private actions and it was probably not entirely their own failing. There are indications that litigation in its course and outcome was much influenced by court officials and judges' clerks and servants. These had the power to cause endless delays unless their support was obtained, delays which might cause plaintiffs to abandon their suits or affect more directly one side's chances of winning. The â€?Song on the Venality of the Judges’, a thirteenth-century satirical poem on the law, provides an instructive picture of clerks and servants of judges actually touting for business for their masters' sessions and promising the prospective plaintiff success in his suit if he was willing to hand over half of his winnings.⁶¹ The â€?Song’ advised would-be litigants over land that their chances of success were small unless gifts were made to these minions and officials. The private records of Sir John Fastolf show him to have made payments for, or in anticipation of, favours by the clerk of the petty bag, a clerk of the exchequer, and the clerk to Sir William Yelverton, justice of the king's bench.⁶² Robert Pilkington in his narrative of a long-lasting lawsuit says that his adversary, William Ainsworth, went as far as to retain the second prothonotary of the king's bench as his second attorney.⁶³

Although we hear of Sir John Fortescue, the chief justice of the king's bench, being given a robe by Sir John Fastolf, there is no evidence of substantial bribery of the professional judges in fifteenth-century correspondence or even for that matter of justices of the peace.⁶⁴ It seems to have been considered that the way to success with a judge who was serving on a commission of oyer and terminer or was on the assize circuit was to seek him out before he set out from London and explain to him informally one's forthcoming suit and perhaps the current state of relevant local feuds and politics. An incident reported in the Paston correspondence shows that the king or his close advisers, when in 1451 they sought to influence the outcome of a general oyer and terminer commission, tried to put pressure on the local sheriff rather than interfere with the judges. The first John Paston, the opponent of the party whom the Crown supported, acted similarly and tried to persuade the Norfolk sheriff to accept a douceur.⁶⁵ The absence of references to attempts to bribe judges probably reflected reality: men knew they had only limited ability to affect verdicts which in any case they were reluctant to do. Nor is there evidence from the fifteenth century to suggest that they overawed jurors, as they are supposed to have done in Tudor times, or that they interfered in a suit in such a way as to give one party an advantage in procedure or in pleading; nor do there survive reports, as there do from the sixteenth century, of their browbeating justices of the peace.⁶⁶ Certainly the Pastons do not appear to have thought of attributing any sharp practice to Sir William Yelverton, the puisne justice with whom they had a serious quarrel in the 1460s. It is additionally noteworthy that they were able, although hard-pressed at times, to weather Yelverton's hostility relatively unscathed.

The tale, then, that the laws and the behaviour of those involved in administering justice have to tell us is of a judicial administration under great pressure from society at large; furthermore, they tell us that there were a good number of sensible attempts to support and improve the legal apparatus, notably the efforts to diminish the role of the two types of jury. It is also fairly evident that although the failures in legal and judicial administration played an important part in fuelling the disruptive side-effects of bastard feudalism they were not the only causes of those maladies. To approach closer to the other major causes, we must now investigate the errant behaviour of the upper classes, namely the endemic land wars which they waged so persistently.