Chapter Six The End of Bastard Feudalism

DOI: 10.4324/9781315883625-6

If we judge by the number of times the offences which were part of bastard feudalism appear in court records it seems incontestable that that type of society continued to flourish well into the Stuart period.

Despite the number of cases, we must doubt whether forcible entry, for example, in the late sixteenth century was as dangerous to society as it had been fifty years earlier. Those persons indicted at the Wiltshire quarter sessions were largely husbandmen, artisans, or yeomen; there were few gentlemen. They do not look like those who practised the same crime in the fifteenth century or even in Henry VIII's time, although it is by no means impossible that the entrants were sometimes acting on the instructions of a local person of importance, as seems to have occurred on several occasions in Elizabethan Essex.

Even in the reign of Elizabeth I the most notorious examples of riot and forcible entry showed much hesitancy and restraint. At the â€?very great’ riot at Drayton Bassett, Staffordshire, in October 1578, in which as many as 7,000 men were reported to have been involved, there was only a single death, which seems quite remarkable considering the entrants into the manor were only driven out by cannon fire after five days in possession. Another notable riot of the Elizabethan period, one which was â€?such as has not been heard of in the Queen's time’, was caused by Lord Dudley distraining 300 sheep, his adversary Littleton replevying them, and Dudley then rescuing them with 400 of his tenants and allies. This was not an event which could have caused comment a century earlier. Even the most violently inclined among the upper classes of the later sixteenth century were hesitant in using force to further their land feuds. Such hotheads as Henry Clinton, earl of Lincoln, and Sir Edward Dymoke never progressed as far as a physical confrontation, despite the former constructing a watch-hut and manning it with a garrison in order to interfere with agriculture on Dymoke's estates, and despite the structure being destroyed by the Dymoke faction. Later the earl sought to provoke bloodshed by insulting Dymoke at Horncastle fair and he planned to destroy the latter's house in the same town, even, so it was noted, if it meant a fine in the Star Chamber.⁵ Here is revealed to us the sheer pusillanimity of the land â€?war’ at the end of Elizabeth's reign.

The limited nature of the later sixteenth century land war's violence was probably the result of several developments. There was, for example, a much greater likelihood of conviction in the courts for a criminal offence than ever before. Furthermore, the law of homicide was in a state of flux and the periphery of murder was extending. It was quite possible that where death resulted from a riot an inadvertent party might be charged with murder, or if all of one faction in a riot resolved to slay the opposition and one rioter did commit a killing, then all might be tried for murder.⁶ In the middle years of the sixteenth century noblemen responsible for the deaths of others, but who had not done the killing themselves, were found guilty of murder and executed.⁷ The rise towards the end of the century of duelling suggests that followers were becoming reluctant to do the dirty work and assault the upper-class adversaries of their master; he must now fend for himself.⁸ The effect of these changes can only have been to make men more circumspect and less hearty in quarrels over land.

A vital if undramatic constituent element in bastard feudalism had always been maintenance, the support of a suit in which the supporter had no technical share. This was usually done, as we have seen, by bringing pressure to bear on the juries or the officials involved in the doing of justice. There was also a variety of subtler moves: witnesses might be detained, records of preliminary proceedings or verdicts stolen, �evidences’ forged, and sheriffs' bailiffs or undersheriffs bribed. The elimination of maintenance appears to have taken considerably longer to achieve than the violence associated with upper-class riot and forcible entry. If we judge by Star Chamber business, the campaign was still being waged hotly in the 1620s and 1630s.

There is on the other hand evidence that bastard feudalism was still in vigorous health in several parts of England in the reign of Henry VIII and that the forcible entries and riots then committed were in their nature very much the boisterous crimes of the upper classes which had plagued the fifteenth century. Thus, in Yorkshire in around 1530, Sir William Gascoign was accused of inciting his followers to kill one who had brought an action against him, which they nearly achieved, and at a later date, when the latter tried to complain to the justices of the peace, Sir William rode to the sessions with 100 retainers to frighten the adversary away. We are told that Sir William was â€?of suche power and strengthe in those parties and hathe the moste parte of the comen jurors in those parties an othere meytenours and oppressours of your subjects in his retinue, bache, lyvery and unlawfull confederacy and is hymeself at every Sessions of the peace and there causith all such as displeysith hyme, be it ryht or wronge, to be inditted’. In 1525 Sir Richard Sacheverell's feud with Thomas Grey, marquess of Dorset, disturbed the Leicestershire assizes and quarter sessions. It was declared that Sacheverell's attendance there was disruptive of business and court order: he came with a company of 100 or more so that â€?he ruleth the whole court’.¹⁰ These instances of interference with the doing of justice in a direct manner, that is to say by threat of force or actual use therefore, to say nothing of the employment of criminal prosecution against one's private enemies, are very reminiscent of land-war episodes of the mid-fourteenth century and indeed of those celebrated in late medieval history.

In seeking to understand the decline of bastard feudalism it is necessary to pay particular attention to the reign of Henry VII. This monarch and his advisers, we cannot doubt, made a great and continuous effort to control the evils attendant on that system, although whether the king himself was the master-mind behind the campaign, or whether a particular officer like, for example, James Hobart was, is not clear.¹¹ The goverment's drive against bastard feudalism took the form of a series of attacks on several fronts. What these had in common was the utilization of legal procedures which were not in accord with the traditional methods of the criminal side of the common law, although there was little that was entirely novel. Thus the statute 11 Hen. VII c. 3 allowed charges against rioters, those retaining or giving livery illegally, embracers, and maintainers to be brought in the form of informations, that is to say accusations verbal or written and not necessarily by the party injured, which did not necessitate an appearance in court and which might in some circumstances provide the delator of the successful information with a share of any property forfeited. The employment of an informer as an instrument in the enforcement of the criminal law was not at all uncommon in the later Middle Ages, although it was rarely stipulated or permitted in regard to offences of the bastard feudalism variety. The Act 8 Edw. IV c. 2, however, had allowed information to be laid against those breaking the laws against illegal livery-giving and retaining, and before a wide variety of justices. There had also been three statutes (28 Edw. I c. 11, 7 Hen. IV c. 14, 8 Hen. VI c. 16) permitting penal law procedure (which was frequently, but by no means always, associated with informing) against livery-giving and corrupt jurors, and another (8 Hen.

The provisions of the statute 11 Hen. VII c. 3 in the area of illegal liveries and retaining were extended by 19 Hen. VII c. 14. Instead of the laying of information and the trial being before justices of the peace or of assize, the delator, under the Act of 1504, was offered the more grandiose prospect of going before the chancellor and the keeper of the seal in the Star Chamber, or before the king's bench, or council. Those he accused were to be summoned by subpoena and tried either by examination or by normal common law practice. The informer might be allowed costs, a reward, and half of any forfeiture, which was not an unattractive proposition. This was an Act, furthermore, which in regard to proceedings before trial at least, circumvented all the normal common law apparatus. In section five the statute empowered justices of the peace to examine those suspected of retaining illegally or being so retained, and allowed the certificate of their findings, if condemnatory, to amount in law to a conviction in the case of the person retained or as an indictment in the case of the person retaining. In this way it was like its companion statute 19 Hen. VTI c. 13, which provided that where a jury could not find forcible entry of maintenance or embracery a sheriffs certificate to that effect would provide an instant conviction. These procedures were not a total novelty in the field. Trial by examination had been permitted by the Act 8 Hen. VI c. 4 for those suspected of giving livery illegally. Even earlier the statute 13 Hen. IV c. 7 had allowed justices of the peace to convict those whom they personally observed in riot by mere record, while in other circumstances their certificate describing events was to serve as an indictment. The statute 19 Hen. VII c. 14 stipulated the use of another reinforcement of criminal procedure. This was that chief constables and bailiffs of hundreds should give evidence on oath to the grand jurors in support of charges laid. It was the first time such a requirement appeared in a statute.¹³

Another device intended to make criminal procedure in regard to one of the offences characteristic of bastard feudalism more summary was introduced by the statute 11 Hen. VII c. 7. It was stipulated that those against whom there had been complaint of riot should be told by proclamation by justices of the peace to appear to answer at the next general sessions or stand convicted. There was to be no need for an indictment and a trial. Possibly the Act derived from 13 Hen. IV c. 7 which had decreed that failure to appear within a certain time before the council or in the king's bench would result in automatic conviction; or from 2 Hen. V st. 1 c. 9, which in regard to both felonies and riots allowed the chancellor to issue writs of proclamation for appearance on pain of conviction; or from 8 Hen. VI c. 14, which made failure to appear in king's bench on a set day carry automatic conviction. A radical development in criminal law of another kind was introduced in a statute of the first parliament of Henry VII's reign. This Act, 1 Hen. VII c. 7, was intended to discourage an activity frequently associated with land wars, namely destructive or provocative hunting on an adversary's land and specifically when the hunter operated in disguise.¹⁴ Accusation was to be by information to justices of the peace or to the council, who were to order arrest and then examine the suspects. If the latter admitted guilt the crime was to be rated as a misdemeanour, as indeed it normally was, but should the accused deny it and refuse to name associates then the offence was to be classed as a felony. This was a remarkable statute. There had been nothing quite like it in the criminal law of England, although there had been petitions in Parliament in the Lancastrian period seeking the classification of particular instances of murder and other felonies as treason, and since Edward I's time rape had been divided into two types, the trespass variety and the felony.¹⁵ Perhaps the drafters had in mind the great riot Act of 1411, which provided that when rioters refused to admit their guilt before the council they were to be tried in the king's bench. The novelties in procedure under the criminal law and the way experimental devices embodied in earlier legislation were refurbished and developed, many of them having the closest connection with bastard feudalism, made Henry VII's reign nothing short of revolutionary and it is quite remarkable that this has gone unnoticed.¹⁶

The most notorious of the alterations made to the criminal law by Henry VII and his advisers, although not deservedly so, was probably the establishing by an Act of 1487 (3 Hen. VII c. 1) of a court comprising two judges, two or three principal officers of state, and a bishop and a lord of council, who were to hear bills and informations on a wide range of offences relating to bastard feudalism, that is to say concerned with retaining, livery, maintenance, embracery, riot, and corrupt behaviour by sheriffs in regard to empanelling jurors. The intention behind the setting up of this conciliar court, tribunal, or committee may well have been to avoid having to use the council proper because of the long-standing opposition to the practice of entertaining there accusations which were not indictments or presentments nor private actions begun by original writ.¹⁷ The design must also have been, where specifics of procedure were involved, to make special use of the relatively new form of accusation, the information, and to ensure the appearance of those reported by a method disliked but doubtless effective, the writs of privy seal and subpoena. Normal common law process was to be eschewed since all too frequently it was subject to the interference of feuding parties. After 1495 some cases which might earlier have gone before this court were probably heard by the justices of assize and of the peace under the statute 11 Hen. VII c. 3, whose concern with the same categories of crime and similar reliance on information we have noticed above. After 1504, under the Act 19 Hen. VII c. 14, those cases relating to livery and retaining probably went to the king's bench, council, or before the chancellor and the keeper of the seal.

By a statute promulgated in the parliament of 1495, 11 Hen. VII c. 25, another court to be served by distinguished judges was established to deal with an area of crime closely connected with bastard feudalism which the 1487 Act omitted, namely the juror or official who behaved corruptly through his perjury, as it was put. This court also, being in the conciliar mould, was to employ trial by means of examination. The very few records of cases which survive suggest that as with the court established in 1487 the preferred method of accusation was by information, the delator being the attorney-general. When it was that these two courts ceased to operate is unclear although 11 Hen. VII c. 25 was intended to be in operation only until the next parliament. Bayne, in his study of the council, argued that the last case for which we have record evidence came before the 1487 court in 1504, but that the wording of the statute 21 Hen. VIII c. 20, which in its opening section rehearsed and affirmed 3 Hen. VII c. 1, could be taken to indicate that the court still functioned in 1529. Another view is that the court had not operated from some point in Henry VII's reign and that the legislation of 1529 was merely an attempt to resuscitate it.¹⁸

The use of procedures alien to the common law, or at least not a traditional part of it, appears to have aroused considerable criticism and hostility by the end of the reign of Henry VII, as we have noticed in an earlier chapter. This was true whether the offences investigated were connected with bastard feudalism or not, for there were by this time a good number of statutes which allowed the bringing of information in regard to other categories of offences. The outcry in 1509–10 was probably directed in the main against the laying of information, the form of charge the upper classes had the least chance of stifling, but the Act 19 Hen. VII c. 14 may have also been disliked because it permitted suspects to be summoned by subpoena before the chancellor, the council, or the justices, without even information or suit. This statute expired automatically in 1509 and was not renewed; 11 Hen. VII c. 3 was annulled by statute in Henry VIII's first parliament (1 Hen. VIII c. 6). The fact that the court established by 3 Hen. VII c. 1 was intended to proceed against persons accused by information as well as by bill lends support to the theory that it did not function in Henry VIII's reign. These statutes, or at least the machinery they introduced, were centrepieces of the new criminal law edifice which Henry VII had erected. When they were gone, the Crown had to change its methods.

In the years immediately subsequent to Henry VIII's accession, the procedural options of the criminal law by which the complex of offences related to bastard feudalism could be attacked were limited. Still in operation were medieval statutes like 15 Ric. II c. 2, 2 Hen. IV c. 21, and 13 Hen. IV c. 7, which provided conviction by record for forcible entry, riot, and illegal livery but only so long as justices of the peace reached the scene of the crime while the offenders were still misbehaving. There was also 8 Edw. IV c. 2, which provided for information about livery and retaining offences (and even allowed conviction by examination) but into the common law courts.¹⁹ Otherwise the Crown had to rely on juries of indictment to provide charges in the traditional way. Whether these could produce the results which reward-induced informations to the chancellor or to the king's council (and the ex-officio summoning of suspects) had done must have seemed doubtful. The government of Henry VIII decided, apparently, to place much of its reliance on the council, but not however the council operating as a court of criminal justice. The council was not to concern itself directly with offences of maintenance, embracery, illegal livery-giving or retaining. It could not do so because the government was now very hesitant about using the information method of obtaining charges there. Instead, it resorted to the encouragement of party suits, and these in fact totally dominated conciliar business. Extant records provide reference to only nine cases which were not party suits for the whole period when Wolsey was chancellor and presidingjudge.²⁰ Of course the party suing might complain of maintenance, embracery, perjury, riot, or forcible entry, but each was a private complaint and danger to the king or commonwealth was no part of it. The inducement for the party to sue was his own self-interest, whereas the informer, in theory at least, was acting to benefit the king as well as himself. What was lacking from the Crown's viewpoint from the last years of Henry VII was what might be called a â€?rex side’ conciliar court along the lines of that established by 3 Hen. VII c. 1. This strange deficiency in the English judicial system seems only to have been noticed, or at least commented on, by Coke, who at the end of the sixteenth century argued that all private suits in the Star Chamber ought to be regarded as informations for the queen.²¹

The cases which came before Wolsey's Star Chamber concerned mainly assault, the carrying-off of goods and persons, ouster from land, and forcible entry. Claim to land was the underlying cause in the vast majority and indeed they are best categorized as land-war crimes. There were also a small number of cases where the suer's complaint was about corrupt courts or officials. It was a common practice for the complainant to aver the offence had been committed â€?riotously’. This was the traditional way of bringing the case within the council's jurisdiction but most of the misdeeds were committed in circumstances which made them technically riots as well as being assaults, forcible entries, abductions and the like. Riot, it will be remembered, was where more than two people came together intending to do something against the law and then at least one must have actually executed a deed to that purpose. It was essentially a misdemeanour committed by a band of persons, and it was no accident the word â€?riot’ should have begun to appear in statutes at the same time as the combination of the use with the will became popular and land wars became recognized as a major problem.²² Regardless of whatever mischiefs complainants alleged had befallen them, the cases which the Star Chamber handled in the earlier sixteenth century appear to divide into two main categories. There were those where the essence of the suit was title to land and there were the others. In Wolsey's time as chancellor apparently about 40 per cent of the cases heard fell into the â€?title’ category, and when Sir Thomas More was chancellor about 44 per cent.²³ In a bill about title the complainant would explain his claim to a particular piece of property before he alleged the offence; in a non-title suit the complainant identified his status and habitation but then plunged straight into a description of the misdemeanour. The non-title suits were most frequently about assault but abduction, asportation, and corrupt behaviour by those with official responsibility in administering the law also figured. Why this type of complainant brought his suit into the Star Chamber we can only speculate.²⁴ It may well have been because he had a better chance of obtaining satisfaction both in the gaining of the verdict and the execution of the judgment;²⁵ furthermore, as the sixteenth century progressed the Star Chamber showed itself increasingly willing to award damages.

The suit in Star Chamber concerning title was not frequent throughout the whole sixteenth century. Its high period was the years before the reign of Elizabeth. From the early 1550s the government seems to have sought to exclude it although without total success.²⁶ The term â€?title’ may be something of a misnomer. Those who brought these suits do not seem to have believed that a decree by the Star Chamber could necessarily provide them with seisin and an unimpeachable title. Their expectations were smaller. They wanted quickly to be put back into possession of the land from which they had been ousted so that they could draw the profits from the agriculture or rents from their tenants. It may well have been like bringing an action of novel disseisin at the end of the twelfth century: if successful there would have been restoration, but a final decision on title must depend on an action of right, or in the sixteenth century a suit in the common law courts. Most suitors no doubt hoped a favourable judgment in Star Chamber would give them possession of the land claimed for an extended period, but they probably expected to be involved in an action over the same land in a court of common law in the future if they were not already. In such a suit they hoped that the decree in the Star Chamber validating their claim would be of some value towards winning. We should notice, however, in regard to Star Chamber decrees that, like awards by arbitrators, they might embody decisions on a number of matters on which the parties differed and not necessarily all in favour of the same party. In this way they were quite distinct from judgments given in common law suits which followed jury verdict on a single point of law, the issue, and which made one party a total winner and the other an absolute loser.

The importance of the role of the Star Chamber in reducing the land wars of the early sixteenth century can be demonstrated not only by recognizing its ability to decide title in an efficient manner but also by studying the complainants in this category of suits and their legal relationship to the land which was involved. It was perhaps only about a third of those suing over possession of land who claimed seisin. The remainder were cestui que usent (5 to 10 per cent of complainants over title), lessees (about 40 per cent), and a small number of copyholders and tenants in tail.²⁷ What these holders of land, apart from the last, had in common was tenure that was relatively insecure. The cestui que use, often a person of superior social status, was in a particularly vulnerable position. In order to devise land as he thought fit, to avoid feudal obligations, execution of debts, and possible forfeiture to the crown for great offences, the feoffor as cestui had to divest himself of seisin. But thereby he also deprived himself of much of the protection of the common law. He could not, for example, if an adversary entered the land of which he now enjoyed the use, have resort to an action of trespass, forcible entry, or novel disseisin, the methods normally used against intruders, because title had been vested in the feoffees to uses. It is not unlikely that the phenomenon of the land war, so prominent in the English social scene from the late fourteenth century onwards, was fuelled to no inconsiderable degree by the restricted legal options available to the cestui que use to defend the property of which he was the user. Such limitations must have encouraged the adversary to enter on the cestui. So indeed did the very nature of a use. The fact that a cestui's land was held by shadowy feoffees, whose identity his adversary could not discover (which was necessary if the latter wished to bring a suit at common law), might well provoke him out of sheer frustration to enter and expel.²⁸ Thus the cestui que use, and his enemy also on occasion, was very ready to seek remedy outside the courts of common law; he did so primarily by means of a suit in the Star Chamber. When it was exactly the council began to entertain the complaints of the cestui que use may never been ascertained, but the practice was flourishing in Henry VII's reign.

Of the other recognizable categories of complainants besides cestui que usent in Star Chamber cases which hinged on title, copyholders were relative newcomers to the land wars. They were involved in a modest 3 or 4 per cent. Although by the late fifteenth century they may have been manipulated or used by the parties at feud, they were not a basic element in bastard feudalism and therefore they are omitted from the argument here. On the other hand lessees, or termors as the law called them, who had become numerous by the early fifteenth century, were involved in a large proportion of Star Chamber business. Like the cestui que use the lessee was unable to employ the legal actions to protect his tenure which a person with seisin could. If he was entered on, all he could do under the common law was to sue on the covenant in the lease or, in the late fifteenth century, bring an action of ejectment. The fifteenth-century action of ejectment, however, had very distinct limitations: it could not recover the ousted lessee's term for him, and it was designed for use against the lessor. Only from about 1530 could it be employed with success against a stranger, but it gave no security against an entrant who was a freeholder with good title.²⁹ The lessee therefore of the late fifteenth or early sixteenth century who was entered on was very much attracted to the Star Chamber in order to regain possession of his land. Since a good percentage of lessees were persons of considerable wealth, we can see that the Star Chamber of Henry VII and Henry VIII, in providing them with legal remedy, was making a notable contribution towards the elimination of land wars and the evils of bastard feudalism.

Among the suits involving uses which came before the council in the Star Chamber in the reigns of Henry VII and Henry VIII were a number where the plaintiff described himself as the establisher of what may be called an entailed use or use in tail. This meant X would enfeoff Y to his (X's) use and that of his heirs, although there were instances where X enfeoffed Y and his heirs to the use of X and his heirs, a perpetuity only likely to fail through lack of heirs or the dishonesty of Y or his line. The result was a cestui que use who was a tenant in tail, or a tenant in tail who was a cestui and protected from the financial burden of feudal obligations. The Crown cannot have failed to recognize the use in tail could deprive it of the feudal perquisites attendant on succession not just for one turn but forever. Such a device must have contributed in no small measure to the government's rising hostility in the 1520s to the employment of uses in general. St German held that uses were responsible for â€?unquietness and trouble’ in society but particularly so were uses in tail.³⁰ Whether this was primarily because of the entail element (next heirs were frequently tempted to enter in retaliation for what they took to be alienation of entailed property on the part of the tenant), or the use element (uses, as we have seen, made for a relatively impotent cestui at common law when entry occurred), or the combination of the two is not evident.

Governmental hostility to uses manifested itself first in the statute 4 Hen. VII c. 17, â€?an act against fraudulent feoffments tending to defraud the king of his wards’, which affirmed the Statute of Marlborough (1267) and stipulated that a cestui que use must declare a will if he was to save his under-age heir from the feudal incidents occasioned by his death. Government policy in the 1520s, so it seems, was to assert through its lawyers that the use had never been part of the common law.³¹ This was a difficult position to maintain in light of the Acts 1 Ric. Ill c. 1 and 4 Hen. VII c. 17, and it meant a reversal of the Crown's earlier attitude, although it appears to have tried to disguise the fact by referring to the collusion and conspiratorial nature of many enfeoffments to uses.³² When eventually a suitable case arose where the Crown's lawyers could argue to that effect in court, the escaetorial inquest into the lands of Lord Dacre of the South in January 1534, the jury was persuaded to find covin and collusion to defraud the king of the wardship and marriage of the heir. When Dacre's feoffees traversed the finding in chancery, and then later when the matter was debated by the judges of the two benches in the exchequer chamber, the Crown lawyers shifted their attack and argued rather that a cestui que use could not make a will of his lands unless there was a local custom to that effect.³³ This was only accepted by the judges after direct intervention by Thomas Cromwell, and a miscount of opinions by Chancellor Audley.³⁴ The potential effect of the volte-face, for such it was, was startling. It imperilled all the many instances where the use-will combination had been employed to devise land in the past. The possession of such a potent weapon, it might be argued, must have led Thomas Cromwell to believe that he could press on with his plan to alter the law on uses by means of statute without any fear of violent opposition.

Yet it seems quite likely that Cromwell and the Crown's legal advisers were already confident that they could count on support at large for such a revolutionary move, for there survive several indications of hostility to features of the land law among contemporaries. Christopher St German argued that feoffments to uses defrauded lords of wardships, reliefs, and heriots, and were employed to avoid execution of debts, to put wives out of their dower and widowers out of their tenancy by the curtesy, and to cheat the right heirs. Furthermore, some of them were intended to secure maintenance by the powerful.³⁵ At the time of the parliamentary session of 1529 a group of nobles agreed to make a concession to the government over wardship and the payment of feudal incidents in regard to land held in their use. Thereby they hoped to obtain for themselves the power to bring actions of right (i.e. of title) against those who took the profits from the land, a very valuable privilege when, because of a use, the title-holder of land to which they laid claim was unknown to them. There was another scheme concocted on behalf of the nobility in 1533 or 1534. It criticized secret entails and uses as great evils because of the difficulties they created for purchasers. It sought the end of entails, except in regard to the property of the nobility, and stipulated all uses should be recorded. It asked that alienation by collusive recovery or fine by tenants in tail should be held to have turned the land involved into fee simple. These two schemes reflected the interests of the upper classes but particularly so those of the most senior members, the heads of families, men eager to see the inherit- ance descend according to their own design.³⁶

Such proposals, which demonstrate how the government was assured of sympathy from a very important section of the national community, provide some explanation as to why Cromwell bullied his way through the Dacre case and then introduced legislation on uses into Parliament. Under the Act 27 Hen VIII c. 10, the beneficiary of the issues from the land held to uses, the �cestui que use, was to be deemed to be in lawful seisin. He could thus no longer avoid the feudal obligations of the land owner. No longer could the use-will combination be employed for devising land. In practice the statute abolished the will although it did not forbid the use. Complaint about this last step must have been substantial for in 1540 the government felt obliged to retrace its steps a little. By the statute 32 Hen. VIII c. 1 permission was given for land in socage to be wholly disposed of by written will, and land held by knight service up to the amount of two-thirds, the king to enjoy primer seisin and wardship in regard to the remaining third. There was one other statute from this period which must have greatly affected the land-holding classes. This Act 27 Hen. VIII c. 16 decreed that sales of land were to be enrolled in a king's court of record. Thereby the names of purchasers and sellers would be discoverable and the hostility engendered by the frustration of not knowing whom to sue could be avoided.

Such lessening of the tensions caused by claims to land and the holding of land was very likely the effect of these Henrician statutes overall. For example, when the cestui que use, through the so-called execution of the use, was given seisin, he was enabled to bring suits of trespass and forcible entry in the courts of common law and being so protected must have been less attractive as victim in the eyes of the would-be entrant. Purchasers, from 1535, were not likely to discover to their dismay that title to the land they had bought was vested in feoffees. They were less likely, therefore, to become bellicose. Creditors, who could not seek redress against cestui que usent under the Act 19 Hen. VII c. 15, must have comfort in the knowledge that execution on judgment of debt and damage could no longer be defeated by a use.³⁷ Those, who in earlier times had entered into the land occupied by a cestui simply because, since he had no title to the land, they could not sue him except under the statutes relating to â€?pernors of profit’, could now bring an action relating to that land in the courts of common law. Giving that cestui que use seisin ended the deceitful practice of secretly enfeoffing to uses in order that adversaries would bring real actions against the wrong person, or have to refrain from bringing them at all; both eventualities had caused much bad blood. It also meant the end of certain aggravations which resulted from the cestui, because of his status at law, being unable to take measures necessary for the good economy of the land. Thus he might not seize beasts which someone had put illegally on his ground, nor bring an action of waste when lessees were negligent, or one of account against delinquent bailiffs or farmers; he could not even cut down trees on the land he used. Inability, because of his legal status, to take these necessary steps had not, of course, commonly caused the cestui to remain inert. He had driven the beasts of others from the land he used, or impounded them, and had employed direct action such as seizing property against delinquent lessees and bailiffs, but this had given rise to quarrels and even local wars.

The gentry and nobility, who had reason to be upset when they were deprived by the statute 27 Hen VIII c. 10 of the opportunity to provide for their younger children and widows by means of the use and will, were put in better humour in 1540 when they were given the right to dispose of the great part of their land by will alone. The upper classes benefited additionally from the fact that there was nothing against entails in the statutes of uses, wills and enrolments, a means of devising they had traditionally favoured. Furthermore, by another Act passed in the parliamentary session of 1540, 32 Hen. VIII c. 31, covinous and collusive recoveries of land in tail, as distinct from recoveries founded on good title and former right and where the assent of the remaindermen and reversioners had been secured, were to be void. This was a moderate restraint on the alienation of land held in tail, and a reasonable compromise between the wishes of the establisher of the fee tail and those of his successors. Alienation had to be consultative and the assent of parties with a legal interest secured, a position taken also by another statute of the same parliament, 32 Hen. VIII c. 36.³⁸

What all the ameliorations to the land law, which were introduced in the period 1535–40, had in common was a potential to lower tensions amongst those who held or had claim to land. They must have reduced the level of frustration and thereby a good deal of the aggression which had been characteristic of problems of property in land during the later Middle Ages. They did so by removing some of the more notorious imbalances and particularly those connected with the enfeoffments to uses, a major cause of much of the entering into land and ousting of opponents which had caused the land wars of the fourteenth and fifteenth centuries. That is not to say that new imbalances in the land law did not appear fairly soon afterwards. Certain types of uses were untouched by the statute of 1535 and the cestui's status was unchanged. There was the use for a period of years, for example, or of copyhold, or of chattels, and the fertile minds of lawyers developed new species, notably the springing use (which came into existence on the occurrence of a particular event) and the shifting use (which shifted from one person to another after a specified occurrence). Both of these last two types gave rise to complaint. Another controversial development in the eyes of many members of the upper classes was the rise of the perpetuity, the theoretical unbreakable settlement of land. This was accomplished by such instruments as the use in tail, which we have already met, or, for example, by establishing an entail with a stipulated penalty for the tenant in tail who would put away the land from the next heir. Both methods were in operation from the outset of the sixteenth century if not earlier but only became widespread after the reign of Henry VIII. They seem to have increased in number during the second half of the sixteenth century and they were not seriously challenged at law before the 1590s when, as in the 1530s, the Grown became concerned about the feudal profits it was losing. In the last years of the century perpetuities were said to be defrauding purchasers and causing factions among kinsfolk.³⁹

Yet by that time behavioural patterns in upper-class quarrels over land had altered. Men preferred to make entry into disputed property when they believed it was unoccupied; physical confrontation between followers was avoided. The land wars had become exercises in manoeuvre. Endeavour was directed not towards ouster, assault, and asportation, but towards constructing a sound strategical plan for future litigation. Emphasis was on the deployment of resources within the courts rather than both there and outside. If alteration to the land law in the later years of the reign of Henry VIII was substantially responsible for this change, so also must have been certain measures taken to improve efficiency in the trial of private suits. Of particular importance in this respect was legislation against perjury by witnesses. Witnesses had been employed when the suits of individuals were tried for centuries, but because jurors were reckoned to possess personal knowledge of the circumstances behind the action the rules governing the participation and the legal status of the private giver of testimony remain obscure. Since there is clear reference to sworn witnesses from the early years of Edward IV's reign we may take it that the giving of evidence on oath was not uncommon by the early sixteenth century.⁴⁰ However, the important step of establishing penalties for those who suborned sworn witnesses in pleas of land was only taken in 1540, the time of the important changes in the land law. The statute responsible was 32 Hen. VIII c. 9 and it showed in its content that the Grown lawyers thought that suborning witnesses was the most dangerous aspect of unlawful maintenance, the crime which had always been at the very heart of bastard feudalism. Then, by the Act 5 Elizabeth I c. 9 punishment was instituted for the convicted witness-perjuror and even for the witness who, having been paid his travelling expenses, failed to appear in court. Because the Elizabethan statute (which also increased penalties on suborners) was designed to encourage complaint in virtually every legal form, and because every complainant whose charge was successful got half the stipulated fine, the government may have been successful in bringing about the prosecution of a good number of suborners and perjured witnesses. Many of the cases and convictions appear to have been in the Star Chamber. Whereas at the outset of the reign of Elizabethan subornation and perjury cases amounted to under 6 per cent of business in that court, they had arisen to around 17 per cent in the queen's last complete regnal year.⁴¹

Dealing with the fraudulent deeds, charters, court rolls, and wills, all of which could decisively affect the outcome of a suit over title to land, seems also to have fallen primarily to the Star Chamber.⁴² This was another important step in reducing the disruptiveness of quarrels over land taken in the mid-sixteenth century. Under the statute 5 Eliz. I c. 14 complaints of such offences could be made in chancery, king's bench, the exchequer, or the Star Chamber, by suit, bill or information, and the party grieved, if the charge was successful, was to have double costs and damages.⁴³ At the beginning of Elizabeth's reign such forgery cases had made up about 3 per cent of the Star Chamber calendar, but by the end they comprised 11 per cent and forgery was the fourth most common offence after riot, perjury, and forcible entry.⁴⁴ The forgery statute, like 5 Eliz. I c. 9 on subornation and perjury, no doubt gained additional effectiveness through condemning those convicted to the distinctive physical punishment of the pillory and deliberate disfigurement, the severity of which was to vary according to the status of the land at issue. Quite clearly disputed title to land still provoked the strongest of emotions although the open violence of the land war had largely been removed.

We must now shift our focus and set the findings of this enquiry about the end of bastard feudalism into a wider and more political landscape. A central feature of bastard feudalism was dispute over land, and what made that feature a socially disruptive one in the medieval period was the use of juries to settle those disputes in the courts and indeed their use on the criminal side to accuse and convict those involved in the physical conflicts which accompanied the disputes. The phenomena which accompanied the quarrels over land, the forcible entries, the riots, the giving of livery, the taking-on of retainers, were designed in the final instance to affect the verdicts of juries whether these were deciding title to land or the guilt or innocence of persons accused of committing land-war crimes.⁴⁵ The aim was to manipulate the law to benefit oneself and damage one's enemies. Thus the evil side of bastard feudalism sprang from the many attempts to control jurors. It was the susceptibility of the jury system to outside interference which was substantially responsible for giving latter-day feudalism a bad name.⁴⁶ To combat these disturbing practices the government put its faith, from about the end of the fourteenth century, in statutes which truncated the criminal process against those suspected of riot, forcible entry, illegal retaining and livery-giving by removing the need for indictment in some cases and by permitting summary conviction by magistrates in others. This, of course, raised the likelihood of conviction. In the later fifteenth century this tendency was reinforced by allowing and encouraging accusations about misdemeanours of the bastard feudalism type by means of information laid, a device which was soon strongly associated with the financial benefits of what came to be known as penal law practice.

It was in Henry VII's reign that the greatest efforts were made to control the verdicts of the juries which decided offences in the bastard feudalism category. The Act 11 Hen. VII c. 7 (riots and unlawful assemblies) provided for conviction by mere proclamation of non-appearers; 19 Hen. VII c. 13 (forcible entry) allowed, where a jury failed to convict because of maintenance or embracery, a guilty verdict to be returned simply on the strength of a sheriffs certificate to that effect. A notable feature of this reign was the establishment, under the statutes 3 Hen. VII c. 1, 11 Hen. VII c. 25, and 19 Hen. VII c. 14, of courts where the judges were to be men who held high, although not necessarily legal, office. Again one intention, clearly the major one in one statute but probably so in the others, was to circumvent the jury and the susceptibility of the jurors to outside pressure. These courts employed neither jury of indictment nor petty jury. Trial under 11 Hen. VII c. 25, which was directed against jurors and officials who behaved corruptly, was to be before a panel of distinguished office-holders and by means of examination. The statute 3 Hen. VII c. 1, whose competence encompassed the whole range of offences of the bastard feudalism type, was intended to establish a court which did not employ juries. Charges were to be made by bill or information and the verdicts or decrees decided on were the conclusions of the judges.⁴⁵ The courts to be employed to enforce 19 Hen. VII c. 14 an Act which was directed against illegal livery and retaining, were the council, king's bench, or a tribunal comprising the chancellor and the keeper of the great seal. Before these the defendant accused was to be examined on oath and might be convicted on the examination as if condemned according to the common law. One of the courts named, the king's bench, was of course the most senior of all common law courts and such procedure was quite alien to it. It can be argued that this establishing of procedure which avoided the use of juries was not peculiar to offences relating to bastard feudalism since the labour laws and the statutes against vagabonds of the late fourteenth and early fifteenth centuries provided somewhat similar machinery. However, the statutes dealing with the misdemeanours connected with bastard feudalism provided the most extensive and sophisticated use of truncated procedure, and indeed that procedure first found full expression in those statutes. We should remember, furthermore, that they were intended for application against those who were of considerable social standing rather than members of the lower and lowest classes.

All this was on the criminal side of the law. Suits over land throughout the medieval period were settled, unless it was by arbitration, in great part before the courts of the common law and by decision of jurors. Under Henry VII, maybe even from the time of Edward IV, it became governmental policy to entertain private suits more as a matter of course than hitherto before the council. Most of these concerned land and title to it and were of the essence of bastard feudalism. Verdicts were given by the judges of the court. When a substantial part of the summary or truncated procedure apparatus had to be abandoned on the death of Henry VII the government was left with only the council, or at least the conciliar courts, where verdict by jurors was not a necessity. Furthermore, because of the outcry against the use of �information’ which occurred in 1509–10, it did not dare to use that method of accusation except in a very small number of cases. The Crown was compelled, as we have noticed elsewhere, to resort to the encouragement of party suits into Star Chamber as support for the relatively ineffective system of indictment and jury trial at the quarter sessions and before oyer and terminer commissions. Yet there were substantial compensations in this. Corrupt behaviour by local officials was less likely because they were less involved than in common law process. The spreading of disorder and the continuation of feuding through any one case was less, because the opportunities for out-of-court settlements and arbitrations were the greater and, as we have seen, the decrees made by the judges were not likely to be entirely in favour of one party.

There must also have been another side to justice in the conciliar courts. It may well have had a political component. Of those who sat in judgment in the council and in Star Chamber under the earlier Tudors, common lawyers were probably a minority. Even those councillors who did not come within that category must, like those who sat with them, have been aware that any two litigants of anything like substantial means who contested a suit before council the government in the form of the king, or if he was not interested then the group which at that time enjoyed his favour, was inclined to favour one rather than the other. Decrees, we may suspect, were quite likely to be more beneficial to the party which had the better connection with those of influence with the king. From the viewpoint of the government, provided this did not bring it into total disrepute, the arrangement was particularly advantageous. Through the justice dispensed in the Star Chamber it could reward the members of one county faction at the expense of its rivals. If this was the scheme of events, and we cannot be certain until Tudor county factions have been identified and their success rates in Star Chamber suits analysed, then those who were determined to sue profitably must have taken careful note of the politics of the Court to see where the royal favour lay. For a suitor to have a powerful �good lord’ within the county who could put pressure on jurors, sheriffs, and bailiffs was, where conciliar suits were concerned, of little value to him unless that magnate was a councillor of the king who held high administrative office. Perhaps this is why historians have been able to detect a rise in the popularity of attendance at Court under the Tudors. The greater volume of conciliar justice in the sixteenth century can thus be considered to have enhanced governmental authority, although not quite in the way an earlier generation of historians imagined.