Chapter Three Litigation
DOI: 10.4324/9781315883625-3
The causes of litigation were numerous (some of them have been already noted on pp. 35–8) for lawsuits sprang from circumstances similar to those which gave rise to land wars.
Most prominent, perhaps, were dashed hopes of inheritance and, in the period under review, it was often a hostile will which decided a disappointed person to turn to the law courts. By the sixteenth century, maybe earlier, men were ready to litigate in addition in order to obtain for themselves, their relatives, or their clients offices for profit. Again, however, the resort to law may have been the result of frustrated expectations.1 A rather different reason for bringing a lawsuit was a desire to aid an ally or tenant. Thus a man might bring a suit against the enemy of a friend, or an associate of an enemy of a friend, for the purpose of harassment.2 Motives were not necessarily altruistic. There must often have been the fear that should such legal action not be taken the plaintiff's own interests might suffer. As with the beginning of a land war, a lawsuit was started not necessarily when the wrong was perceived but rather when the party affronted believed, correctly or erroneously, that he was in a position to sue with a fair chance of success. Thus a son, who had recently succeeded his father or mother, might feel the desire to pursue claims to land which his parent, through age, bitter experience, or debility, had not dared to do in his later years. Similarly, a woman who married, or a widow who remarried, might acquire a partner who took it upon himself to pursue claims possessed by his spouse which she had not dared do anything about.3It was a foolhardy and indeed a rare man of lesser standing who decided to bring a suit against a magnate who had unjustly deprived him of land. All writers of the period were agreed in allowing such a person only a slight chance of success in the courts.
Unless a person had powerful sponsors, he was wise to go to law only against those whose wealth and status were equal to or less than his own, when politics, national or local, gave the intended adversary no particular assistance, and when the latter had no allies of greater standing than the plaintiff's �good lords’. It was, however, a most fortunate plaintiff who enjoyed all of these benefits, and most members of the upper classes were ready to go to law with two, or even only one if they were sufficiently enraged. There were certain occasions when a man must sue in the courts or lose face. This was when he had been grossly and openly affronted or dispossessed, and not to act would lead to his discredit in the county community and encourage others to seek similarly to appropriate his property. His failure to sue would be taken as indicating that he had no confidence in gaining the jury's verdict, which in turn would demonstrate he was without influence. To sue and to lose, certainly to lose frequently, was also bad for a man's prestige. It was taken as proof of bad judgement and lack of good connections.4 There was thus nearly always more at stake than simply the title to the land at issue. If a man was over-matched, if he was wronged or put out of land by a magnate or someone of much greater wealth and status than himself, he was well advised to put aside all thought of suit in the courts. He would do best to petition the king or seek out the legal counsel of the offender and ask for redress, as did Sir John Paston in 1475 in regard to the duke of Norfolk's seizure of Caister, and as his father did in 1450 in regard to Lord Moleyns' entry into the manor of Gresham. When Osbert Mundford was put out of Braydeston in 1452 by Thomas Daniel of Rising, Norfolk, probably with the backing of the duke of Somerset, he determined to write to the king and �other my gode lordes’ to seek their intercession against his adversaries before he brought actions of forcible entry, trespass, and novel disseisin.5Those who were defendants in legal actions seem to have viewed forthcoming litigation very similarly to the plaintiff's, although, of course, the options available to them were fewer.
To be certain that their friends and �good lords’ were ready and willing to support them in the coming suits was usually their first concern. Sir Robert Plumpton, in May 1500, was told his best protection when there was a writ of novel disseisin out against him was to �make many friends and of the best’. He was advised further to �make your frynds to take your part, as frynds shold doe’. When William Roubotham was cited before the court of arches by Thomas Worth in 1496 for slander, Robert Pilkington, whose tenant Roubotham was, sought straightaway the support and intervention of the earl of Derby, of his son Lord Strange, and of the chief chaplain to the court of arches (who was Pilkington's cousin and the earl's auditor), which proved eventually to achieve the desired result for the case was dismissed.6Often precipitated into litigation against their wishes, defendants not infrequently faced the handicap of not knowing until the hearing of the suit was imminent who was suing them and over what matter. Thus they might have little time to inform their supporters and protectors, and there would be still less for these to intercede with their adversaries and their masters before the hearing commenced. A petition to Henry VI by the first John Paston in 1450 complained that his tenants and servants in Gresham were unable to discover who was suing them in the local hundred court. They could not get copies of the plaints against them because the court keeper was in cahoots with Lord Moleyns, an enemy of Paston's. Robert Pilkington tells us that he had only five days' notice, instead of the stipulated minimum of fifteen, of the action of novel disseisin which was to be brought against him at Derby in 1497. When he appeared in court on the day, he had not even had the opportunity to retain counsel.7 This was not an isolated instance. The first John Paston, obviously apprehensive about this problem, was told by James Gresham in July 1450 that Caly and Yates, two legal agents, had promised that no writ should be returned against him �but that ye shall have copies thereof at reasonable tyme to make your avantageas the law wole … to caste your esson [essoin, i.e.
excuse] or suyche other’. To avoid this same embarrassment, Sir William Stonor in 1481 and 1482 employed men in London whose duties specifically included searching for actions newly begun against him.8 By the sixteenth century the legal agents who kept watch in the central courts at Westminster for the commencing of actions against their employer were referred to frequently as �solicitors’. It was accepted that one of their duties was to supervise the defence against these actions and advise the employer as to when he himself should sue. We are told that solicitors were instructing counsel, and that their general savvy and the manner in which they carried out their task were crucial to the success of any suit: �and such as the Sollicitor is, such commonly is the successe’. John Smyth, the historian of the Berkeley family, was very ready to find the cause of the loss of certain of its suits in such things as the employment of one solicitor, who knew no Latin, and another, who was unable to find a crucial lease.9If success in litigation depended much on careful instruction given to attorneys, there is evidence that the best instruction was given, if he knew a reasonable amount of law, by the party himself. In James I's reign Ferdinando, earl of Huntingdon, advised his son to keep a personal watch over his lawsuits of importance. John Smyth praised Maurice, Lord Berkeley as being an expert and successful litigant, and this success he attributed largely to Berkeley's close personal attention to his suits and the legal knowledge he had acquired �by adversity and experience’. This made Lord Berkeley and his eldest son into �excellent Solicitors in their own persons’.10 Although there is no proof of it, there is every likelihood that in the mid-fifteenth century the first John Paston also acted as a �solicitor’ in his own causes and that he was a successful one. He had attended the Inns of Court and was certainly knowledgeable about the law.
The manner in which he was able to satisfy Sir John Fastolf in the handling of his legal affairs, the way he was able, with a considerable degree of success, to defend his property against persons of superior status and wealth, together with the respect accorded to him in the Norfolk county community at large, speak volumes for his legal acumen, a quality he had no doubt inherited (along with good title to most of his property) from his father William, the puisne judge.11 Even if their instructing was not up to Paston's standard, most fifteenth-century litigants, unless they were uninterested, wealthy, or notably lacking in legal knowledge, communicated directly with the attorneys who were to represent them in court. Disputes in the majority of cases, as we have seen, concerned land, and therefore it was not unusual for the litigant early on to show his legal counsel all his �evidences’ (as deeds, copies of court judgments, and chancery records were called) in regard to property and settlements, together with any relevant proof of entail, the marriage of parents, and so forth. A letter of the Plumpton family of May 1500 shows Sir Robert Plumpton, who was about to be sued in an action of novel disseisin, being requested to set down all these necessary facts �verbatim’ and on paper.12The hiring of one or more attorneys to represent the plaintiff or defendant in court was clearly a step of great importance for achieving success, yet there is only a small amount of information about it to be gleaned from contemporary writings. Robert Pilkington, in his autobiographical account of his �great cause’, writes as if it would have been a major disaster had he not, when he arrived at a special assize at Derby in 1497 on only five days' notice to answer the suit of John Ainsworth, been able with �gret labur and gret cost’ to secure the services of Robert Brudenell as his counsel, although Brudenell had no prior knowledge about the case.13 It is quite possible that Pilkington had failed to retain counsel �owte of his cuntre’ (i.e.
the Manchester region), as he put it, because no attorney wished to oppose so great a man as Thomas Savage, bishop of London, who was in fact the true bringer of the assize, his nephew Ainsworth being only the technical plaintiff. The Paston correspondence provides an example of a would-be plaintiff in the 1440s being unable to obtain legal counsel in the normal manner against Agnes Paston because her late husband William had been judge and their son John was a �man of court’. The plaintiff, a chaplain, who was intent on contesting title to the manor of Oxnead, eventually petitioned the archbishop of Canterbury asking he should order three lawyers to take his instruction.14 The number of counsel retained depended on the wealth of the party retaining, the importance of the suit to him, and the might of the adversary. When, in May 1501, Sir Richard Plumpton was expecting the �great man’ Sir Richard Empson to sue out a writ of novel disseisin against him, his solicitor, John Pullan, retained on his behalf John Yaxley and Thomas Frowick, Serjeants, as well as Gregory Edgar and John or Richard Brook. The indenture of Yaxley, a copy of which has survived, shows him undertaking to attend the next assizes at York, Nottingham, and Derby, there to be of counsel with Sir Robert in regard to such assizes and actions as the latter required. The contract was for a number of court sessions, not for the length of the suit. Should the plaintiff non-suit, the defendant decide not to contest the case, or there should be an out-of-court settlement, Yaxley was to receive a stipulated lesser sum. His expenses in regard to travel, food, lodgings were to be paid in their entirety by Plumpton.15That part of the judicial process in private actions which was known as joinder of issue, including the mechanics of pleading, featured in the correspondence of contemporaries hardly at all. The design behind the pleadings was to narrow the quarrel between the two parties down to a single, or very few, issues of fact, the crucial points on which both sides were adamant.16 If and when an issue was discovered, the jury was sworn, the record of the process and pleadings was opened, and the parties presented their �evidences’, including sometimes their family pedigrees. Robert Pilkington in his narrative seems to imply that he himself rather than his counsel showed his �evidences’, which were to the effect that eight of his ancestors before him had been seised of the disputed land in Mellor. The Ainsworth evidences were shown by James Savage, the bishop's brother, who stood at the bar with Thomas Jakes, Ainsworth's counsel. Pilkington reveals that the judges did not hesitate to let all know how they regarded the pieces of evidence: they �said as favor-able for the said Robert as they goodly myght and sytt as jugges’, but Ainsworth's �evidences’ they would not allow. His �ruggenall dede was haldon up with the jugges that all the pepull myght see and poyntyd with the jugges handes how hit was enturlynyd in so mone dyvers placys’. The judges said that they had never seen a deed so interlined and �couth not alow that dede for gud’.17 �Evidences’, in the eyes of John Smyth at least, were the best way of convincing the jurors; witnesses' oral evidence, might be used, but they may have had less effect. Smyth recorded quite bitterly how in the suit in king's bench between Lord Henry Berkeley and Sir Thomas Throckmorton over title to the tithes of Oldminster, once the property of St Augustine's Abbey, Bristol, the Berkeley solicitor failed to produce the abbot's lease or any of his acquittances to the Berkeleys in court although they were in fact in that family's possession. Instead he offered the �testimony of witnesses, viva voce, which after forty-three years could not be certaine or direct’ which contributed greatly to the loss of the suit. The relative lack of impact of witnesses' testimony on the jury was probably not uncommon, since the grants and successions to land which were being contested had usually occurred a good many years earlier; furthermore, some suits were extremely long-lasting. The suit over the Oldminster tithes extended from the twelfth to the twenty-second year of Elizabeth I's reign and the matter at issue was a lease of 28 Henry VII.18 Witnesses had to be sought out by the party requiring their testimony, cosseted, then instructed as to what they should say in court. Sir John Paston, when he was embroiled with the duke of Suffolk in October 1479, rode to Dunstable himself to speak with one of his chief witnesses �whyche promysed me to take labor’ and he rewarded him with 20 shillings.19 Jurors, being themselves subject to much pressure from the parties, were not inclined to believe that witnesses' testimony was unbiased.
Few trials of suits can have lasted more than a single day. In the action in the court of common pleas at Hilary term 1597 on a writ of partition against Lord Henry Berkeley in regard to the manors of Cam, Hinton, Slimbridge, the �evidence at barre lasted from eight in the morning till fower in the afternoone’ and nothing was �left unurged or defended that art or learning might afford, or at Barre or Bench bee uttered’. Smyth also mentions another exhausting trial, of an action of ejectio firmae (ejectment), at Easter term 3 James I in the same court. This lasted six hours �wherein to the Jury at the barre were delivered more than three hundred peeces of evidence’.20 Trial was nearly always by means of a jury but there was one other means of finding the truth, namely wager of law, a procedure which had particularly strong connections with urban customs and local courts and with cases of debt and detinue. At one point in his great feud over Mellor Robert Pilkington was the object of a complaint made to Tideswell manor court by John Ainsworth to the effect that Pilkington had shot at his cattle with arrows and killed some. Pilkington entered a plea of not guilty in writing through his attorney and asked to be allowed to wage his law. He was told by the steward that there could be no wager of law in what was an action of trespass. In London Pilkington was given expert advice to the effect that wager of law in such a suit was uncommon but not illegal. However, he was denied his opportunity when the steward adjourned the court and later he had to accept trial by jury.21
At the heart of any trial before the king's court was the verdict of the jurors. A substantial amount of information about who was to serve on a jury, how they were to be picked and challenged, how their deliberations were to be conducted, and suchlike is to be garnered from the Year Books and sixteenth-century law reports, but more valuable insights are to be discovered in contemporary correspondence and personal writings, particularly the crucial matter of how the jurors might be influenced in coming to their decision. At the earliest moment possible in the suit, the plaintiff and the defendants, if they were wise, would make every effort to discover who was to be on the panel from which the jurors were to be selected. For one of the parties this was no easy task, since the maker of the panel was the sheriff, and he was likely to favour one side more than the other in his choosing, and would be in no hurry to reveal the names to the latter.22 The names might have to be sought by an indirect approach. In his suit over title to Kinoulton, Nottinghamshire, in June 1501 Sir Robert Plumpton was able to acquire the vital information through the good offices of a relative, who in turn approached a local gentleman, who obtained it by means of a douceur of 11 shillings to the undersheriff.23 So important was this panel selection by the sheriff that many men, even when the blood boiled, were reluctant to go to law if they knew the incumbent was an ally or associate of their would-be adversary. On the other hand, should a friend, servant, lord, or close legal associate become sheriff it was often taken as a signal for the fortunate party to bring suits against a number of rivals and oppressors. Ideally, if he had sufficient power and influence, the plaintiff would probably not wait for the sheriff to decide on the membership of the 24-man panel but send, or get a friend to send, to the undersheriff a list of names. In 14 Elizabeth I, in the case he instigated by means of an information into the exchequer against Lord Henry Berkeley, the earl of Leicester got his friend Lord Chandos to arrange it so that sixteen �special freeholders’ should be named to the panel and another ally, a knight, should nominate the other eight. When Leicester laid another information against Berkeley in the exchequer in 26 Elizabeth I he went still further. He had twenty-four names sent through Sir Thomas Throckmorton to his servant Richard Adams of Wotton �And by him delivered to Mr Hall then undersheriffe to Thomas Baynham of Clowerwall Esq. as sent with them from the said High Sherriffe with a comandment in the name of the said Earle of Leicester that hee should ingrosse and returne them, mixed with the delivery of forty shillings then given to Hall, and some threats if hee did not’.24
The tactics of the Ainsworth-Savage faction almost a century earlier were not dissimilar to those of Leicester, but were less high-handed. Sometime after Michaelmas term 1496, when the Ainsworth faction had sued out a writ of novel disseisin against Pilkington in regard to land in Mellor, it gave �grete rewarde’ to the sheriff to make a panel containing Ainsworth-Savage nominees including Ainsworth's �kynnysmen, lyancez and olde servandes, sybmen and lyancez of old Sir John Savage and his chyldur’. Later, at the Derby assizes in the summer of 1498, the same faction managed to secure the placement on the jury of those described as being �boundmen to the Savages, dyvers ways syb or alyed, olde howshad [i.e. household] servandes free tenandes reteyned be fee or lyverey’; furthermore, �sum were both gayne dwell ers to the Savages and thayre chyldur and dyvers of thayme syb to Aynesworth or his wife’.25 The earl of Leicester and the Ainsworth-Savage faction probably had few doubts about the loyalties of the men they nominated to the panel, but other litigants, who were fortunate enough to be in the same powerful position, might feel it necessary to enquire carefully into the sympathies of those they had in mind as jurors. The first John Paston, when bringing action against William Hogan and William Jenny in June 1465, made investigation through his younger son and two associates and was told by one of the latter �he knew non that wold pas up on any inquest for hym for he medylyd with no syche men’. The other associate reported �he kowd assyne … none men for serteyn, not tyll he had spok with some’. He knew few men of that sort in Suffolk, but had the need been for men from Cambridgeshire he would have had no difficulty in providing them. At the same time Paston was also given the more satisfactory news that his wife Margaret had approached one Baynard of Sibton Abbey on the matter, who said that although he knew �none that wold pase upon the mater at his desyer’ he could name several men whom he thought disliked the Jenny faction and would �pase upon it at your desyer if ye spok with hem you selve’.26 This all suggests that a person with more than a little influence in his region like Paston was able with some searching to find jurors lacking any tie of blood, service, or landholding with him who would give the verdict required or at least promise to do so.
If either of the parties believed that some of the jurors were unsatisfactory because, for example, of a blood tie, or affinity with the adversary, he might challenge them. Theoretically his grounds for so doing were not the bias of the jurors themselves but the partiality of the sheriff in empanelling them; so Chief Justice Fineux emphasized in 1498. In practice, at least by the reign of Elizabeth I, the parties took what exceptions they wanted, such as that the juror was lacking sufficient income, or that �he is alied, feed, or servant to his [i.e. the challenger's] adverse partie, he is his enemie etc’. Then a small number of jurors, who were unchallenged, came to a verdict on the matter in what was a trial within a trial.27 If the exceptions and the verdict resulted in there being insufficient jurors to make up a full jury, then either the trial was put off to another occasion or additions were drawn from the bystanders. Jurors were supposed to own land to the value of 40 shillings and, where freehold was at issue, four out of the twelve must possess it in the hundred where the suit had had its origins, unless, that is, one of the parties was lord of the hundred in which case they were summoned from hundreds adjacent. A panel seems to have comprised twelve jurors from the part of the shrieval bailiwick close to where the land at issue lay and the other twelve from the other side of that territorial unit.28
The challenging of the panel and of individual jurors took place at the trial. Before that, as soon as the names became known to the parties they would make great efforts to bring pressure to bear. In the language of the time this was known as �labouring’, an unspecific term roughly the equivalent of the modern British phrase �having a word with’, meaning trying to make the listener appreciate the speaker's position. We find no reference to threats of violence towards jurors who failed to oblige, but there were undoubtedly menaces of other types. To seek out jurors so as to apprise them of the merits of your claim to the land in question was expected, and there is no indication anyone ran foul of the law for so doing. The argument has been made by historians that, given the trial procedure of that period, labouring was a necessity if the jurors were to be reasonably supplied with the background to the quarrel. The practice was, of course, self-sustaining. A party felt the more obliged to labour jurors because he believed his adversary was likely to do so. We read in the Paston correspondence that the prior of St Benet's, Holme, when he was engaged in a suit against Lord Scales in 1459, �spake maysterly to the jurrorys’ and told them that if they �had dred of God and hurt of here sowlys they wold haf some instruccyon of the one party as wele as of the other’.29
There are several interesting contemporary descriptions of jurors being laboured and in different ways. The third John Paston as we have seen, used his principal witness for a forthcoming trial to obtain certain evidence pertaining to his title and to labour the jurors about them. When, in 1497, the bishop of London was suing in John Ainsworth's name to recover land in Mellor from Robert Pilkington, he first saw to it that the sheriff should make a panel containing his kinsmen, old servants, and allies, and then he and his protegé wrote to each to tell them to be certain to attend the sessions. If they did not, �they schuld neyver have thayre gud hertes’. When the panel met at Derby it was apparently spoken to by the bishop's three nephews, who told its members individually that the bishop would rather lose 500 marks than have the verdict go against Ainsworth. The Savage faction must have felt sure of the jurors' support, and did not think it needed to emphasize particular facts in the case. If a party felt less certain of his influence with the jurors, and was nervous about their attitude, he might eschew a direct approach to them and try instead to change their views by labouring their social superiors. Thus, in his suit over Kinoulton in June 1501, Sir Robert Plumpton was urged by a knowledgeable adviser to contact the bailiff of the Bingham wapentake, Nottinghamshire, in which Kinoulton lay, and also that bailiff's �master’, Sir Nicholas Byron of Colwick. Both of these persons were thought to be receptive to labour by Plumpton, and thus presumably willing and able to influence the sympathies of the jurors by direct pressure of a local sort.30 During the period between the assizes of July 1498 and its successor, when his suit was in adjournment, Robert Pilkington made �grete labur’ to the jurors. He did so actually in the places where the panel members dwelt. Twelve of those were inhabitants of Scarsdale wapentake near Nottingham, while the other twelve were drawn from the Chapel-en-le-Frith and Tideswell areas in Derbyshire over 35 miles to the north-west. Pilkington's policy on his visits, in addition to explaining his claim, seems to have been to suggest that if they did not favour his cause they should absent themselves from the assizes. Those from Scarsdale, who apparently believed they ought not to have to serve in the suit, rejoined that if they were forced to attend they �wold take gud hede and passe with ryght wysnes’. Those from north Derbyshire affirmed a similar intention of staying away, but did not promise �gud hede’ or passing with �ryght wysnes’.31 In the event, all the panel members attended the assize and the verdict went against Pilkington.
Those chosen for the panel, when being laboured, might well take the opportunity to ask one or other of the parties for their �costs’. These were the expenses they would incur in attending the forthcoming sessions. The third John Pas ton told his father in June 1465 that two jurors selected for their case had informed him that their costs, when they had last travelled to London in that capacity had totalled 10 shillings and that they would not go this time unless that amount was paid to them. This was not an exceptional demand. In May 1451 Sir John Fastolf was told in regard to one of his lawsuits that �it wold drawe xx marc to labour the Jure to London’. Sometime in 1476, so it seems, the Oxfordshire esquire William Stonor was informed that a suit in which he was involved was to be moved to Exeter and that his servants would therefore have to carry certain jurors thither at his cost, a statement which implies he and his allies had arranged to pay their expenses originally.32 Explicit references to jurors in litigation demanding actual bribes are rare. There are but two instances where the word occurs in the Paston correspondence, which suggests that to ask for such was viewed with distaste even in the hard world of the fifteenth-century land wars. One is a simple report that X had met the jurors and given them money. The other was the occasion when the third John Paston had been investigating the loyalties of the jurors chosen for his father's suit against William Jenny in 1465. He reported to his parent that two of the panel expected their expenses paid if they travelled to London for the trial, or alternatively �they wold have had a brybe of you … for to have bedyn at home’. This pair, the younger Paston noted somewhat bitterly, �have no othyr levying but brybs’. The power of the jurors is particularly well displayed here. They knew full well their value and intended to profit whatever option the party decided on. It seems from other evidence that the same men were empanelled to serve as jurors in private actions and for the king time and again. We hear of cisours (i.e. �assisers’) jurors, and �questmongers’ being hunted down in London and Southwark at the time of the Peasants Revolt of 1381, as if these were their chief occupations and pursued for life.33
When the jurors had heard the evidence they retired to consider their verdict on the issues. In this period of seclusion they were supposed to be without the comforts of food, drink, light, and heat, the idea being that such severity would hasten their arriving at the necessary unanimous verdict. Should they fail to observe these rules their verdict would probably not be accepted by the court and they would be punished. While in seclusion only the judges and their messengers might speak with the jurors. Thus in the Pilkington-Ainsworth case at the Derby assizes in 1498 the judges sent the sheriff in to the jurors to relieve them of their weapons and later on one judge paid them a visit himself, apparently so as to explain one feature of the evidence. When they were agreed the jurors returned to the court to give their verdict. On some occasions they may have returned to find the judges had risen from the bench, in which case they could only give a �privy’ verdict, the formal one to be delivered in court when it sat once more.34 Judges were known to refuse to accept a jury verdict if it was at odds with contemporary legal convention, and this seems to have been what occurred in the Pilkington-Ainsworth suit. We are told that the inquest found that Pilkington had had, presumably in the land in question, an annuity of 40 shillings �or they wyst not what yt was forsoth’. This apparently annoyed the judges who rebuked the jurors �and drave thayme agayne into the counsayle howse’. The cause of the judges' disapproval is probably to be discovered in their admonition to the jurors that they �schuld fynd authere all or non dew’. This was because according to the common law a jury must find entirely for one party or the other: it could not, as appears to have been done in the Pilkington-Ainsworth case, find the title to the land lay with Ainsworth but soften the blow for the adversary by deciding Pilkington had an annuity there.35
Occasionally, just before the moment when the jury announced its verdict, a plaintiff might decide to non-suit. This legal manoeuvre was in essence a default, a withdrawal from the action. The point in time when it occurred suggests that the move was somehow connected with the direction the jurors were heading in their deliberations, although it is possible it might be connected with the arranging of a late hour �treaty’ (an out-of-court settlement). There is luckily a reference to an example of non-suiting from the middle of Elizabeth's reign which shows exactly what happened in one such case. At the trial over the title to Haselbach farm between John Vernon, esquire, of Sudbury, Derbyshire, and his brother Henry in the court of common pleas in 22 Elizabeth I, as the returning jury came to the bar to announce its verdict one juror privately indicated to a servant �by a compact underhand’ that the verdict would go against Vernon. He meant, in fact, Henry Vernon since John Vernon had brought the suit in the name of one Buck. The servant, forgetful of this crucial fact, immediately told his master John Vernon, quite erroneously, that the jury was about to find against him. Therefore John Vernon non-suited without delay.37 The reason persons, who believed they were facing defeat, so acted was in order that they might begin a new suit over the same issue at some future time; once a verdict went against them, they were barred from doing this.
If the verdict went in favour of the plaintiff, he was entitled to costs and damages. The former were to cover the payments he had made in the course of bringing the action, the latter were to compensate for the defendant's misbehaviour. Damages and costs and their awarding were of great importance to litigants, particularly when the action was brought under a statute which multiplied their amount several times over. This part of the law was closely connected with the choice of actions to acquire possession of land available to plaintiffs and the question of why they selected one rather than another in their land wars, basic aspects of litigation which we have not as yet considered. In the period under discussion, c. 1350–1600, the options of significance were four: namely, the assize of novel disseisin, and actions of trespass, forcible entry, and ejectment. Novel disseisin was first on the scene, then trespass, which was no great rival to the former before the reign of Richard II. In a novel disseisin case the plaintiff might enjoy the benefit of trial by default should the defendant not appear. On the other hand, to be victorious he had to win not one but a series of issues: specifically, was the plaintiff seised of a freehold, was the defendant tenant in the land, and did the defendant wrongly disseise the plaintiff? Suits at the assize by the sixteenth century were not as short in duration as they had been in the century following its inception, yet they were probably of no greater length than those under rival actions. The actions of trespass and forcible entry, which in the fifteenth century attracted plaintiffs away from novel disseisin, were personal actions, and by their nature he who employed them could not be frustrated by legal manoeuvring on the part of his adversary which was to conceal who was the current tenant of the freehold. Not infrequently this obfuscation was the effect of a feoffment to uses. However, while trespass and forcible entry actions provided benefit in this respect, and where the plaintiff was successful won him damages, they did not, unlike a similar action of novel disseisin, give him seisin. This disadvantage was more apparent than real, since few defeated defendants were willing to encourage a second suit and more damages; so they would usually withdraw from the land at issue. Successful plaintiffs in actions of novel disseisin sometimes encountered difficulty in getting the damages assessed, which in turn delayed their recovery of the land because this had to come after. If the successful action was one of trespass or forcible entry, the collection of damages was relatively easy because the defendant, having been found to have broken the king's peace (unlike defeated defendants in novel disseisin cases), had to go to gaol until he made a fine with the king, and this he could not do until he had paid the plaintiff his damages. There was thus great incentive for the defeated party in these actions to pay quickly, a factor which increased their popularity with plaintiffs. If the number of times they are mentioned in sixteenth-century Year Books and law reports is a reasonable yardstick, then actions of novel disseisin may have risen again in number relative to trespass and forcible entry actions during the first three-quarters of the sixteenth century, but thereafter the decline was sudden and complete.37 The reason was probably ejectio firmae, originally an action intended to provide damages for the evicted leaseholder, which, it was discovered, could be converted through a lease by the claimant to a friend into a method of trying the former's right of entry.
When the trial was over, the victor, who was expected to pay for the jurors' dinner, may sometimes have demonstrated his pleasure by giving them rewards as, we are told, did the earls of Leicester and Warwick to each one of those who tried the issue in their important suit against Lord Henry Berkeley in 14 Elizabeth I. That there should be recompense for the jury was logical enough in a society where the same men might serve as jurors on many occasions and a litigant of substance wished his generosity to be remembered in the future. Yet it would be wrong to imagine jurors gave their verdict to whoever was expected to pay them better after the trial. Their vision, if self-centred, was greater than that, and they may even have borne in mind their promises to act in good conscience and heed the information the parties had given them. Yet, when they retired to consider their verdict, they may have remembered more clearly such a thing as the magnate who appeared in the court room to �countenance’ one of the parties, and they probably gave considerable thought, as did a juror mentioned in the Paston correspondence, to the question of who in the future �schuld rewle in this schere’.38
When the verdict had been given, a losing and dissatisfied defendant might seek to arrest judgement by a bill of exceptions, complaining for example about misconduct on the part of the jurors, or by a motion of misjoinder of issue, but the standard method of challenging the jury's verdict was to bring an attaint. This was an action to convict the jurors of finding an untrue verdict, that is to say committing perjury. No new facts could be adduced: the â€?grand’ jury, which was of twenty-four men of superior station to the twelve on the first jury, simply gave its own verdict on the evidence offered earlier to its antecessor.39 In the fifteenth century, in order to encourage the suing out of writs of attaint, statutes had been passed which awarded the successful plaintiff in that regard damages and costs and the restoration of his property (11 Hen. VI c. 4 and 11 Hen. VII c. 24). Two Acts, so that the likelihood of conviction would be increased, made the stipulation that the grand jurors, who would decide the case, should have very sizeable incomes per annum from land or in goods and chattels (15 Hen. VI c. 5 and 11 Hen. VII c. 24). The petty jurors (those on the original jury) found guilty were to be fined £5 or £20 according to the value of the property originally in dispute, pay a fine and ransom at the discretion of the justices, and never be of credence in a law court in the future. This, in fact, was a diminution of the old, traditional, punishment, which had been extremely severe, and the design may well have been to provide a more moderate penalty so that grand jurors would be less hesitant to find the first jury guilty. Half of any fine which the justices themselves imposed on the defendant was to go to the plaintiff as a form of reward for his bringing the attaint.40 The statute 11 Hen. VII c. 24 expired in 1509 but was largely renewed by three successive Acts of Henry VIII's reign and finally made perpetual in 1571. A letter to the first John Paston concerning an action of attaint which Sir John Fastolf had in mind in November 1459 shows that it was considered even more important than in other suits to give the sheriff substantial rewards to make the jury; the letter also shows Paston seeking the good lordship of the duke of Norfolk so that this would be done quickly and so that the grand jury would find as Fastolf wanted. Often the grand jurors acquitted the first jury out of pity. Indeed, Sir Thomas Smith noted that in his time the former preferred to absent themselves from the trial â€?and in the meane time they will … entreat the parties to come to some composition and agreement among them selves’; only if the corruption of the first jury was very evident would they convict. As well as having only a slender chance of success, the plaintiff had to face heavy legal expenses on account of the quality and quantity of the legal counsel usually employed and the extended duration of the suit. When the first John Paston brought an action of attaint in 1456 he retained as his counsel John Markham and Richard Chokke, Serjeants, Thomas Littleton, king's serjeant, William Jenny, John Jenny, Richard Illingworth, and William Dyne. At the trial Markham reminded the court, we are told, of the â€?longe hangyng’ of the matter.41
Another option for a defeated party was to bring a writ of error. The error was usually detected by the party or his counsel in the procedural handling of the case just lost. Robert Pilkington tells us that he chose to sue out a writ of error, despite his counsel's suggestion of an action of attaint, because he believed his opponents, the Savage-Ainsworth family, were too powerful for him. By this he meant that they might well have superior influence with the sheriff and thus over the selection of jurors. On a writ of error there was no verdict by a jury, simply a ruling by the court. For Pilkington the first step was to obtain copies of earlier process and trial record, which he passed on to his counsel-learned, presumably so that they might search for the necessary legal error. Pilkington seems to have had to show the judges in common pleas that there was a prima-facie case of error, but the matter was then moved into king's bench. There was no decision in Pilkington's lifetime. His account of what happened in king's bench refers to Ainsworth's counsel getting delay after delay, and states that the writ of error could �have no spede be cause at the recordes were alway changet and mendyt agaynis the said Robert’. Pilkington therefore arranged to return to the north and not visit London until his counsel-learned instructed. His expenses mounted: he paid his two counsel 40d. each time they appeared in court, and significant sums went to their clerks also. Eventually counsel argued the law on the matter on the morning of 11 June 1499 but this only led to another adjournment. Pilkington was then ordered by the judges to bring in precedents from the court of common pleas �of other matters in like adjudged’, which forced him to discontinue while the search was conducted. The next term (Hilary, 1500), the bishop of London, through an intermediary, approached Pilkington out of court offering to buy out his claim to the lands in Mellor. As a means of persuasion he threatened to �sewe grete accyons of dettes and for costages of damagis’ against Pilkington should he be unwilling to accept. Pilkington answered that �for drede of his saule’ he would not �sell nor forbare his ryght and taylyd enheretanse’. However, he offered, if the bishop would renounce his claim to the Mellor lands, to allow him the marriage of his son and heir. No agreement seems to have been reached, but what exactly happened we cannot be sure because Pilkington's narrative tails off at this point. The suit appears to have continued into the early years of Henry VIII's reign when his son sought to revive it; Robert had died in September 1508.42
Robert Pilkington's tale of his lawsuits, with his great cause against John Ainsworth and the Savage family at centre, tells us a great deal about fifteenth-century litigation which cannot be found elsewhere, certainly not in the records of the courts. He is more instructive on this matter than even the voluminous Paston correspondence. The theme, underneath the legal detail, is how he suffered one �great hurt and hynduryng’ after another. Certainly, if his account is veracious, and although there may be some omission there seems little reason to doubt its essential honesty, Pilkington does appear to have been a thoroughly unlucky litigant, one frequently thwarted when he ought to have been having the better of his adversary. Several times he felt that he was deprived of rightful victory by delays, particularly the failure of his opponent to appear. At other times it was the malpractices of the clerks, who operated in and around the courts, which worked against him. There were also occasions when the opposing faction employed its influence to interfere with legal process and trial procedure. From our position of advantage it is not difficult to discern why Pilkington was unsuccessful. Given his situation and the way in which the law operated in the later fifteenth century, the failure was predictable. He was guilty of several errors of judgement in pursuing the suit. The worst was the very basic one of going to law against an adversary who had powerful protectors in members of the wealthy Cheshire family of Savage, of whom the most prominent was Thomas Savage, successively bishop of Rochester (1492–6), bishop of London (1496–1501), and archbishop of York (1501–7).43 Pilkington received some support from his �good lords’ the earl of Derby and his son Lord Strange, who wrote to the justices on his behalf, but this may have been assistance pro forma only. In his capacity as a member of the king's council the bishop was able to benefit John Ainsworth directly. Although his personal interest in the matter was apparent to all, he was able to prevent Pilkington from obtaining a decision on the title to Mellor there. He got the matter remitted to the common law courts; he paid the sheriff to empanel his own nominees and did all he could to influence the jury's verdict. When Pilkington, to circumvent this, petitioned the king asking for the cause to be tried in the duchy of Lancaster chamber, his bill came to the notice of the bishop who made sure it went no further. The power of the Savage faction was probably reflected in the way the sheriff, after Ainsworth had emerged the victor at the Derby assizes in 1498, put him in possession of twenty more acres of land than had been contested in court.44
In his legal wars Robert Pilkington may have been handicapped by his modest wealth; and if he was better off than he appears to have been (it is impossible to do more than guess at his income), then by his parsimony. His account of his suit against Ainsworth and the Savages is punctuated by references to his expenses. Clearly the fees he had to pay to lawyers and clerks made a big impression on him. The cost of his writ of error and of the suit as far as it progressed amounted, he tells us, to £12. 9s. 4d., no small sum it is true. He calculated that from his father's death, which we know to have occurred in 1475 or 1476, to his defeat at the Derby assizes in 1498, he had spent in legal expenses £58. 8s. 0d., again not an inconsiderable amount but probably nowhere near as much as the Mellor rents for that period. In that period men were capable of becoming highly emotional about particular pieces of property which they or their families had held at one time, what we might call their old, ancestral land. It appears as if Mellor was such land to Pilkington, but so it may also have been for his adversary since Pilkington was distantly related to Ainsworth. A clear example of how the upper-class litigant was willing to spend far more than the value of the land in dispute to achieve victory in the courts is to be found in the history of the Berkeleys. In his suit from 1570 to 1581 against Sir Thomas Throckmorton over the tithes of Oldminster, Lord Henry Berkeley was reckoned to have incurred expenses and fines amounting to £1,500 and he lost the disputed lease. Throckmorton, the winner, affirmed that he had spent on the action £1,000 more than the lease was worth.45
The manner in which Robert Pilkington in his narrative dwells on the cost of lawyers and process is alternatively explained by his relative naïvetĂ© in matters relating to the law. How he differs in his writings from the Pastons is most striking. Most of that family were fully at home in the modes and by-ways of the common law, but to Pilkington the legal world was a mysterious one, full of pitfalls and intercessions from above which the litigant could not guard against. In particular, Pilkington seems to have made no arrangement with a lawyer or clerk employed around the central courts in London, nor with similar in Derbyshire, who could provide him with early warning of writs taken out against him. Thus he was frequently pressed to arrange for legal defence of his interests at short notice. Nor did he use a solicitor to instruct counsel, as some of his contemporaries were doing. In addition he does not seem to have understood the value of giving douceurs to judges' servants, who, so it was generally reputed, had the power to delay or speed one's suit.
The litigation between Robert Pilkington and John Ainsworth and the Savages over title to Mellor provides an interesting demonstration of what may be termed the place of litigation within the feud, and its relationship to the land-war manoeuvrings and violence which were the backdrop; for litigation was hardly ever the sole manifestation of a quarrel. The chronology of this feud, the sequence of events, may well have been typical of a substantial segment of the other long-lasting disputes among the upper classes of the period. We notice that the quarrel had its origins in descent of land from an ancestor common to both parties, and had been festering for several decades when the chief protagonists, Robert Pilkington and John Ainsworth, made their appearances. The two sides do not appear to have resorted to the courts until that time, and the reason may have been that the Ainsworths did not have the nerve or the wherewithal to challenge the Pilkington title claim until William Ainsworth, father of John, secured the maintenance of the powerful Savage family, but it is noticeable that even the Savages were hesitant to sue. What seems to have moved the quarrel into high gear was direct action, namely the kidnapping of Pilkington by his adversaries in 1478 in order to force him to accept arbitration, the provisions of which were to endure two years. The quarrel was renewed when Ainsworth's chief backer, his relative Sir John Savage, who at that point was in possession of Mellor, distrained the tenants for rents and evicted those who would not pay. Pilkington responded by securing the support of his patrons, the earl of Derby and his son Lord Strange, and then making an entry into Mellor with around 160 men �in privy harness’ at his back, with the intention of taking the rents himself and driving out non-payers.
It was only at this point that one of the parties decided to sue in court: Ainsworth brought a bill of riot before the council. This was in 1493, fifteen years after the kidnapping. Pilkington, after he had been examined there about the matter, asked that the council should try the two claims to title in Mellor, which was allowed, and both sides presented their evidences: �whedur of us ys the ryght ayr be lyne of blode and be owr evydencez’, wrote Pilkington. If we believe him, things went badly for Ainsworth but the latter succeeded in getting the council to delay the giving of judgment and in the interim both sides attempted to take rents from the Mellor tenants. Up to this point neither side had employed common law criminal process against the other but then, in November 1494, the Ainsworth faction obtained the indictment for �felonye, ryott and trespas’ of a good number of the men of �Master Vernon’, an ally of Pilkington. The only comparable incident occurred in July 1495 when associates of Ainsworth contrived, so we are told, the indictment for either felony or riot of all the Mellor tenants. Later the conciliar suit between Ainsworth and Pilkington was resumed and the latter was ordered to give her dower to the former's mother. However instead of then giving judgment on the main issue, the Mellor title, the council remitted it to the common law.
Whether it was the result of this conciliar decision or not is unclear but at Michaelmas term 1496 Pilkington brought a common law action of trespass in the name of one of his tenants against Ainsworth at relatively remote Tideswell. He did so because the latter had sued that tenant and others for trespass there, which �myght have touched the ryght and fre holde of the said Roberts’. Pilkington's response of moving these suits by writ of certiorari to a higher court suggests he recognized an unfavourable verdict at Tideswell could endanger his claim to title in Mellor. The eventual outcome of Ainsworth's suits is not mentioned but they may well have precipitated the next phase of the quarrel, the decisive action of novel disseisin over Mellor which the Savages brought against Pilkington in Ainsworth's name at Derby assizes in 1497. The overall impression, therefore, which Pilkington's narrative presents of his litigation is of his own and his adversaries' reluctance to bring a suit over title, and of hesitation to seek the indictment of opponents involved in land-war activities, at least until the battle in court over title had finally been joined. The position of the tenants in the land at issue, and their potential for turning litigation into a land war through their withholding of rents, their eviction, or their own quarrels and suits, are very noticeable and suggest that litigation over land without the accompaniment of force in some form was unlikely.46