Chapter Two The Land Wars

DOI: 10.4324/9781315883625-2

Very few indeed of the men and women of gentry status and above, who lived in the England of the later Middle Ages or the Tudor period, did not appear as either plaintiff or defendant in the courts of assize, common pleas, or king's bench at some time in their lives.

The prevalence of the litigious spirit in the period under review has been commented on frequently by historians, but the causes for its existence have only been mentioned in the most general terms with emphasis even being laid on such variable human qualities as shortness of temper, contentiousness, and pride.² Some men and women, indeed, were â€?mervelously geven to vexation and trouble in the lawe’, and we read of a mere slight, an insult, or even a physical confrontation between the female members of two families leading to extended litigation. John Smyth, the historian of the Berkeley family, states, in what appears to be well-considered postscripts, that the many legal actions between William, marquess of Berkeley, and Margaret, countess of Shrewsbury, and her successors in the later fifteenth century and sixteenth century sprang from Margaret's spilling of the blood of William's mother Isabel in an altercation in 1454.

Virtually non-existent by the later Middle Ages were instances of sheer freebooting, that is to say the suing for or seizure of land by a person with no legal claim to it at all. Litigation concerning land, and entry into land, was based in the aggressor's eyes at least on a claim of substance. It seems that those of gentle blood were accustomed to keep to hand a list of their claims to various manors whilst awaiting an opportune time to sue at law or make an entry.⁵ The great interest in genealogies which manifested itself in the fifteenth century was derived as much from the search for land, which ancestors or family members had once held or had a claim to, as from the desire to increase social respectability. The plausible tale that a gentleman wished to check his ancestry in another's genealogies seems to have been used not infrequently to gain access to a muniment room so as to seek evidence supporting the investigator's land claims, and even to examine the strength of the host's own titles to various manors.⁶ Suing for land and seizing land were common practices of the upper classes from the fourteenth to the sixteenth century but, since men only acted thus when they thought they had a reasonable claim, we must ask if there was a factor operating which encouraged, or at least facilitated, the holding of such beliefs. The answer is in the affirmative: there was indeed such a factor.

Recently a number of historians have drawn attention to changes in the way land was passed by members of the upper classes to their successors, and to the side-effects of the rules which controlled inheritance. Saul has argued that feuds among the gentry became more common in the fourteenth century because of the increasing complexity of land settlements; the employment of entails, uses, and jointures in particular being the cause of much â€?confusion and entanglements’. In fourteenth-century Gloucestershire the histories of the Cardiff, Basset, and Langley families demonstrate, he suggests, how most vicious feuds were the result of disputed inheritances.⁷ Coward has noted the ambiguous nature of the land law at the end of the period under review, the later sixteenth century. He has argued that because of the Statute of Uses of 1535 and the inconsistent interpretation of its rubric by the courts, particularly over the matter of whether uses for terms of years fell within the Act, no settlement of land between that Act and 1620 â€?was certain of being upheld’. The result was that disputes between heirs general and collateral heirs male were common in the â€?chaotic legal situation’ which was engendered.⁸

Of particular relevance to the history of inheritance and therefore to quarrels over land was the rise of the â€?use’. Conveying the title to land to feoffees, who then gave the use of that land back to the donor (the cestui que use' as he was called), was a legal device which was in existence by the earlier fourteenth century.⁹ The intention was in part to avoid the necessity of the heir having to pay a relief on the death of his ancestor, the holder of the land. It also allowed the family to escape the tribulations of having an heir who was under age when he inherited and therefore subject to the twin burdens of wardship and the arranging of his marriage by his feudal lord.

From a study of several fourteenth-century Berkshire families, Jefferies has demonstrated that the use, in conjunction with the will, was employed, additionally to the purposes just mentioned, in order to divide the estate. This was not, however, so as to provide for younger children by alienating property from the heir.¹¹ Perhaps we should add to this assessment the words â€?in the long term’, for certainly uses provided for dependants (and even dependants' children) other than the heir and sometimes for the period of their lives. Thus, often these settlements by use and will were designed to give the feoffor's widow substantial lands for her lifetime, lands considerably more extensive than her dower.¹² Employment of the use was not without its hazards. Feoffees could and did refuse to carry out the instructions given by the feoffor. They might enfeoff someone other than those they were instructed to, or, more rarely, not enfeoff at all. Sometimes they had to consider whether they ought to ignore their instructions, as when the whole intent of the use, to escape the financial burdens of a minority, was ruined by the death of the young heir, an occurrence not infrequent in the later fourteenth and early fifteenth centuries with the recurrent outbreaks of plague. Although uses were not protected by the common law, should a feoffee act against the intent of the feoffor he could be made to answer before the chancellor or in court ecclesiastical.¹³ Whether, however, the penalties there inflicted were sufficient to deter malpractice seems doubtful.

The employment of these legal devices, the entail and the use coupled with the will, often resulted in what amounted to the disinheriting of the heir in the short term. Almost inevitably this must have created disharmony in the family. As K. B. McFarlane has pointed out, a beneficiary under an entail or a use, if he is sensible, would offer the party â€?disinherited’ some form of bribe not to bring suit against him in the courts.¹⁴ A reasonable appreciation of human nature tells us that anyone failing to inherit all he believed should have come to him was likely to be exceedingly bitter, the more so if, because the use was controlled by a will made just before death, the details of the settlement were unknown until after the demise. To receive or fail to receive a large share of a father's lands because of accident of birth was accepted; to benefit unduly because of a carefully constructed settlement or one reflecting death-bed supplications was likely to cause much resentment. Legal actions, entry into land, and even the ouster of those currently seized were the inevitable result.

Possessing a good claim supported with legal �evidences’ (as they were called) to a piece of property would not usually propel the claimant into litigation the moment he inherited the claim or acquired the evidences. All members of the upper classes, and probably even lesser men, knew the time had to be propitious for such a serious enterprise: therefore they awaited their opportunity. Not even an entry by adversaries into what a man firmly believed to be his land by right would necessarily lead him to seek remedy in the courts immediately.

Although men might delay in suing those who infringed their rights or entered their lands they were ready to make legal moves of a sort. To ensure a claim to a disputed piece of land did not lapse it was held wisest to enter the property and thereby preserve one's right of entry, which was an integral part of possessing title. This could take the form of a mere technical entry, a visit to the land in dispute in daylight and a public announcement of one's claim coupled with a demand that the occupier should withdraw. Right of entry, although from 1340 it could not be lost through time alone, could be â€?tolled’ (extinguished) should the occupant of the land make a feoffment whilst seised or should he die (â€?descent cast’) and his heir inherit. The rule that â€?feoffment over’, as it was called, should toll entry was abandoned in the 1380s but the threat of descent cast remained. Cases in Edward Ill's reign showed that the plaintiff must have raised contention up to the time of the occupant's death if he was to preserve the right, and a case of Henry IV's reign demonstrated such an attempt must be made in the year preceding the occupant's death.¹⁹ Not until the statutes 32 Hen. VIII cc. 7, 28 and 33 was the would-be plaintiff allowed to be less active. From that time, one which was of great importance to land wars and litigation, the plaintiffs right of entry, if he had one, remained intact so long as he had tried to enter at some point in the five-year period prior to the late occupant's death.

The token or technical entry was also utilized in order to bring the matter of title to the land in dispute to trial. Even if the entrant had himself never been in possession before his entrance, if his opponent refused to let him in or in any way obstructed him there was provided grounds for the bringing of an action under the assize of novel disseisin or, from the late fourteenth century, an action or trespass or forcible entry, either of which could decide title. This procedure had developed by the late fourteenth century out of legislation and judicial decisions intended to bring an end to the earlier practice of entering with a number of men in support so as to damage the tenement or throw the adversary out by force, or both. An important Act of 1381 (5 Rich. II st. 1 c. 7) made all entry by force illegal. Nevertheless, despite these advances in the law, contemporary correspondence and legal records indicate that entries with force and the ejection of the occupant were frequent phenomena from the late fourteenth century and for the next hundred years at least, and we must consider why this should have been so. It seems unlikely, on the face of it, that the reason lay in the lack of success which those who made a merely token entry and then sued in the courts enjoyed in their lawsuit. Plaintiffs at the assize of novel disseisin, up to the middle of the fifteenth century at least, appear to have been victors in a high percentage of instances (perhaps between 65 and 75 per cent), although it is possible that some of these victories were gained by the adversary (the party entered on) who, recognizing what was happening and knowing the plaintiff had the advantage, took the assize first.²⁰ The percentage of successful plaintiffs in actions of trespass and forcible entry is as yet unknown, nor do we have any inkling whether being in occupation of the land in dispute at the commencement of the suit influenced the jurors towards favouring the occupier in their decision. It is possible that a demonstration of the ability to take and hold the land in dispute proved to the jurors, some of whom were drawn from the locality where the land was situated, that the entering party was a force to be reckoned with in county politics and not to be crossed lightly. Such a demonstration might perhaps gain a verdict against the prevailing trend.

The early seventeenth-century legal treatise writer Ferdinand Pulton noted that those who made entry intending to eject their rivals and keep them out were often motivated by rage having themselves been put out by their adversaries earlier on. Pulton suggested further, however, that in entering they believed they would be able to avoid the penalties for forcible entry, but he did not elucidate. Presumably they were so convinced of the validity of their own claims to title that they believed they would win any suit brought against them and thereby escape the heavy damages losers could incur.²¹ Often, however, it appears the motivation behind an entry was very rational, as for example when the entrant set about collecting rents in the land in dispute. In that way he would remind the tenants (who were potential jurors) of his claims and his power, and at the same time increase his liquid assets against the expense of lawsuits in the future. There were many other reasons for entry. We read of the duke of Suffolk in the summer of 1465 entering the manor of Drayton with the intent, as the first John Paston, his adversary, saw it, of forcing him â€?to show his evidens or tytill’ to his land there. On another occasion the duke, so Paston believed, sent a servant to enter Drayton in order â€?to cause me to loose my labor ayens him for Dedham’.²² If Paston's interpretation was correct, the duke was entering one manor in order to counter pressure of the land-war sort by his opponent elsewhere. The design in these two cases was not to make a claim and withdraw. In the first the duke presumably intended to remain if Paston's evidences did not, on inspection, override his own. In the second he or his representative again intended to stay, at least until he was assured Paston would not continue his legal or extra-legal manoeuvring. The most obvious and probably the most common circumstance where entry was made with intention to stay rather than retire involved an entrant, claiming good title no doubt, who believed he was considerably more powerful than his adversary or that the latter for some reason could not use force in response.²³ Such entrants calculated that the adversary they ousted could not hurt them by direct action. They might intend to stay in possession indefinitely, although it is not unlikely that they hoped in the not too distant future to bargain with or compel the party evicted to accept his discomfiture in a treaty or agree to the matter of title being tried in the courts.

The actual event of property seizure tells us much more about the conventions of the land wars and something about the law as well. The number of followers whom the adversaries employed in their feuds varied enormously, even when it came to such vital undertakings as entry or permanent occupation. The force utilized might comprise between six and ten persons, or it might contain several hundred; a total of between twenty and forty was probably most common. The wealth of the party involved, rather than any legal rule about how many men there could be in an upper-class entourage, was the deciding factor.²⁴ The first objective of entrants determined to remain was to clear the manor of the opponent's followers and family servants. If the manor had been held against the entrants, the garrison was usually to be found in the manor house or where the occupant's steward resided. Resistance was sanctioned by the statute 21 Edw. III c. 34 which stipulated that the party entered on might use force in defence of his goods, including the company he had in the house, if he had been in quiet possession for at least three years.²⁵ It was, of course, impractical to think of defending the perimeter of the manor, while to offer battle in the open (if one had the men) was recognized as likely to lead to a good number of injuries and even death. The members of the forces opposing each other in the land wars were certainly not intent on such heroics if they could possibly be avoided. The battle of Nibley Green on 30 March 1469, a day â€?of knighthood and of manhood’, in which William, Marquess Berkeley with 1,000 men met Thomas Talbot, Viscount Lisle, with probably a similar band in a set-piece confrontation, was by the later fifteenth century a unique event and one occasioned by the disarray in governmental circles at the time. Few men seem to have been severely injured when entries were made and adversaries ousted. Deaths appear to have been rare. Robert Pilkington in his account of his great quarrel makes no reference to such, while in the Paston letters there is only a handful of instances where homicide figures in land wars. The uncommonness of the occurrence was demonstrated by the legal proceedings resulting: appeals of homicide were made by two widows which caused great concern to the Pastons and their men for more than two years.²⁶ Generally injuries were few because, where there was resistance to ouster, one side was ensconced behind manor-house walls which the other besieged from a polite distance. Warfare seems to have taken the form of exchange of missiles whether from guns or bombards or from long-bows and cross-bows. There was little zeal to get into combat at close quarters.²⁷ The party entering seems to have tried to raise the largest force he could so as to overawe the defenders and thereby lessen the likelihood of actual conflict and injuries. Therefore to know how many men the garrison numbered was rated a high priority.

The party entering was not by law allowed to seize the personal property of the adversary who was ousted.²⁸ Thus Margaret Paston was apparently in a bitter mood when she told her husband about the devastation done by the duke of Suffolk's men in October 1465 in their attack on Hellesdon, which had been manned by the Pastons on the advice of legal counsel. The intruders had gone beyond the normal bounds of entry practice in actually looting before breaking down the walls of â€?the place’ and the lodge; they also ransacked the church. At the same time the duke had entered another manor, Drayton, which the Pastons then held. His men drove off 1,300 sheep as well as other beasts. John Paston was able in the latter instance, however, to get the king to intervene directly and order their restoration, which suggests this pillaging was considered most unacceptable.²⁹ Both the party in occupation and the would-be entrant usually avoided using the tenants of the manor in their forces, generally preferring men from outside. Quite naturally the locals feared damage to their property should their side lose. One of the few references to an occasion when they did take part is to Hellesdon in 1465. There they were compelled to join in demolishing the walls of the â€?place’ and the lodge.

When entry had been accomplished and the adversary, if he was in the manor, ousted, there remained the problem of how to deal with occupied land over the longer term. Now the previous holder had been antagonized he would quite likely be looking for an opportunity to re-enter. Thus the entrant must quickly address the problems attendant on successful entry. The first was the establishment of seisin, a vital task given the great likelihood of future litigation over the land which was the cause of the quarrel. Proof that seisin had been established, so we are told, amounted to keeping the manor court, the selling or burning of woods, the taking of fealty, the letting of farms, dismissing the bailiff, and, in the fourteenth century at least, freeing unfree tenants.³⁰ What we find is that the party making the ouster sought first and foremost to hold a sessions of the manor court. The necessary warning to the tenants was probably given by the parish priest in his pulpit. There is reference to the necessity for the party entering to have a good number of men on hand when the day of the court's meeting arrived, but the exact purpose is not apparent, even if we suspect that there was some attempt to overawe the jurors so that no charges were brought against those of the tenants who favoured the new regime. There is some evidence that tenants who sided with the entrants were encouraged to bring suits in the manor court against supporters of the party ousted.³¹ One purpose of the court's summoning may well have been to have the tenants attorned (give their fealty) to the new occupier. If they refused, they may have been deprived of grazing rights and suchlike. Nevertheless the rival parties were inclined to treat the tenants on the land in dispute with respect and to avoid recriminations. Although the threat of eviction was not entirely absent from quarrels over land it was not used by the upper classes as a tactic against freemen, who were by the fifteenth century the vast proportion of villagers. On the other hand, tenants might sometimes decide such land wars were a burden not to be tolerated and so would quit their holdings.³² It seems not unlikely that those who wished to enter land and oust the occupant made their entry, if circumstances allowed, just before the rents of the tenants were due. The collection of the rents provided additional proof that the party who collected them had seisin. Rents were particularly valuable because it was an age when actual coin was not readily available even for a family of substantial wealth. A letter to Sir Robert Plumpton in 1501, when he was to visit lands in Nottinghamshire which were about to be entered by two adversaries of his, advised him, â€?Sir, bryng with you money convenient for your expenses for as yet … here be now rent teyned’ (i.e. no rent obtained).³³

To regard the tenantry as mere pawns in the land wars of the upper classes would be wrong. Rather they were visited, talked to, and considered with the utmost diligence, since not to do so could mean a hostility which might encourage any part wishing to enter. When he who had seisin of a manor recognized that an entry was in the mind of an adversary he had to seek to make certain of the tenants' hearts and minds. He could not, however, by the later Middle Ages prevent similar activities on the part of his adversary. Thus, in the late summer of 1461, William Yelverton visited the Paston manor of Cotton and, while there, he flattered the tenants, promised that they should have restitution for losses earlier, and asked them to pay their money (rents) only to him. â€?Because of such tales,’ said the first John Paston's informant, â€?your tenunts owe hym the better will.’ So Paston sent his servant Richard Calle to Cotton where he â€?walked about’ and spoke with the farmers and tenants â€?to undrestande her disposessyn’ as well as to receive their money. Although he was unsuccessful in the latter quest, he got them to promise to pay no man but Paston as long as he would protect them.³⁴

More valuable in such situations than the presence of a servant or a bailiff was that of the party seised himself or his wife. The tenants of Cotton, so the first John Paston was told in October 1461, â€?specyally desyr to have zowr owne presens and they wold be of gret cownfort’. When, in June 1465, the duke of Suffolk was threatening entry into his manors of Hellesdon, Drayton, Costessey, and Sparham, John Paston thought it wise to send his wife Margaret to comfort the tenants there, to show them that the Pastons had no intentions of yielding to their great adversary and were determined to collect rents as they had in the past. Margaret was even instructed to explain to the tenants that the Pastons' titles to the land were legally impregnable.³⁵ Similarly Sir Robert Plumpton, when his lands in south Nottinghamshire were threatened with entry in 1501, was advised to â€?come yourselfe and be sene amongst your tenants and frynds the which were to them a singler pleasure and comforth, and to yourselfe a great strength’. Even a nobleman would visit those he considered tenants. In March 1449 Lord Moleyns, who had entered Gresham the previous year, wrote to the tenants there to say he would declare his title to them soon, and would be with them when parliament ended.³⁶ A bold front, the exudation of self-confidence, and regular appearances by the lord and his family in the manors where entry on the part of others was feared, coupled perhaps with a readiness to talk to the tenants and listen to their complaints, were very important. This was for both short- and long-term reasons. In the short term the presence of the party seized might ensure the payment of rents, while for the long term a convicting explanation on his part of the nature of his title might well be of value through its effect on jurors and â€?treytors’ (the go-betweens in arbitration and out-of-court settlements) in later litigation.

If we examine the matter of entry from the viewpoint of the party entered on, it is clear that unless he was a landholder of magnate status defence of the land in a military fashion was rarely a possibility. Unless he could be present in person, the party seised had usually to settle for a garrison of only one or two men to maintain a presence and to ensure the legal niceties of manorial life were attended to. They did little to discourage would-be entrants, who must in any case have often sought to avoid confrontation so that the entry could be called a peaceable one and therefore not be a criminal offence under the statutes 5 Rie. II c. 7 and 15 Rie. II c. 2. Once within the manor the entrant would probably seek to communicate directly with the tenants in order to advise them of the rightfulness of his claim as he saw it. This might well be followed by an attempt to summon the manor court, then to appropriate the profits of that court, and subsequently to collect rents. Such a situation as this was in fact one of double occupation since the party seised or his followers were still on the manor. Some odd scenes were the result. We are told of the third John Paston in 1472 attending a manor court sessions held by the entrant into his brother's manor of Saxthorpe, and seeking not only to stop the proceedings but also to have his presence recorded in the rolls. He sat down by the steward and blotted his book with his finger as he wrote, â€?so that all tenants afermyd that the coort was enterupte by me … and I reqwered them to record that ther was no pesybyll coort kept, and so they seyd they wold’.³⁷ As soon as he was aware of the attempt to oust him, the party entered on would probably instruct his tenants to make sure that they had paid their rents to him, their rightful lord, and not to the intruder. Had they already made payment to the latter but under duress, they might be excused penalties. If they had paid voluntarily or entered into a bond to pay and the party entered on still had sufficient power, it could well be otherwise. The first John Páston instructed his bailiffs in regard to the non-paying tenants of Calcot early in Edward IV's reign that they should â€?politicly put them in jeopardy of losing their farms’. Men holding unfree land may have been particularly at risk. In May 1465 Harleston, the duchy of Lancaster under-steward, told such tenants at Drayton that if they paid their dues to John Paston he would put them out of the lands they held there â€?bondly’ and furthermore he would distrain and trouble them until they were weary, which put them in fear.³⁸

The legal device for enforcing the payment of rents, or non-fiscal manorial services for that matter, was the process of distraint.³⁹ Although eviction was threatened, as we have seen, it was probably as difficult in the later Middle Ages, as it had been earlier, for a lord to eject a tenant for simply not meeting his manorial obligations, provided that is, he was not two years in arrears. Distress took the form of seizure by the lord (i.e. the party claiming seisin in the manor) of some of the tenant's personal property until the latter paid the arrears or gave surety to contest the seizure in court. The distrainor, it need hardly be said, could not sell the chattels impounded in order to satisfy the debt owed him; nor, if they were animals, could he use them for purposes of cultivation. There were furthermore rules as to which chattels he could take and in what order they might be seized. Although before the thirteenth century it had been the practice for a lord to distrain for debts including rents only after securing a court judgment, by the fourteenth, to all appearances, such niceties were not observed.⁴⁰ Distraint by then may well have been taken for a prescriptive right and a weapon essential for success in the land wars, though whether financial reasons for its employment prevailed over desire to use it as proof of seisin for purposes of later litigation is not clear. There was probably an element of both. Sir John Páston wrote to his brother in October 1465 to tell him he had distrained the Hellesdon tenants in order â€?to gadryd some syllvyr’ but in August 1461 the first John Páston wrote to his wife Margaret to tell her to arrange for the distraint of such beasts as â€?occupie the ground’ at Stratton, apparently as a part of or as an adjunct to making â€?cleyme and contyn-uans’ (i.e. continual claim) to the manor. Distraint could be made to serve a third purpose in the land wars. This was the straightforward oppression of the tenants by those who had entered the manor so as to embarrass the party currently seised and cause him to lose face by his failure to protect them. In March 1469 William Yelverton and his men distrained plough animals at Guton so that the tenants were unable to till the fields at a crucial time in the agricultural year. Unless Sir John Páston could find some remedy, so he was told, he would â€?lese the tenauntis herds’ and would thereby be greatly hurt, a statement which demonstrates the vital role of distraint in the disputes over land even in the later fifteenth century.⁴¹

As in other situations engendered by the land wars, those who sought to take a distress recognized that they must act successfully or lose face among the tenantry, among their associates, and indeed in the whole county. Thus we hear of parties at feud sending their men to distrain in substantial numbers. In May 1465, so we are informed, the duke of Suffolk's bailiff of Costessey went to distrain at Hellesdon accompanied by no fewer then 160 men. The number was large no doubt because the duke of Suffolk's household and his tenantry were large. The Pastons never seem to have used more than thirty men. To seize back a distress Elizabeth Brews requested of the third John Paston that he should lend her twelve men; they were, however, to be in harness and equipped with bows and other weapons. William Yelverton took eight â€?with jakkys and trossyng doblets’ when going in January 1467 to distrain in manors once the property of Sir John Fastolf. This band took with it â€?bombardys and kanonys and chaferdeyns’ and were reported ominously as doing â€?whatsoever they will with their swords and make it law’. This suggests that the party to be distrained, usually a supporter of the distrainor's adversary, might well use force to try to prevent the occurrence.⁴²

It was perhaps to be expected that when two parties claimed title to land, and each had a supporting faction there, they should be tempted to use distraint as a weapon to counter earlier distraints of their own followers by the adversary. Thus Margaret Paston, in May 1465, told her husband that the duke of Suffolk's bailiff had said he would respond to the Pastons; supporters distraining to the value of a hen by the taking of a distress to the value of an ox, and if that was impossible then he would break into Paston's tenants’ houses and take all they contained. Clearly distraint was often the use of force, if not of actual violence, to support a claim to title. The cloak of legality was an invaluable guise for what was often direct action to harrass the opposition. Furthermore, the practice of distraint might be utilized to conceal what a seised adversary feared most, namely an entry and ouster by force. For example, the third John Paston was told sometime in Henry VII's reign that Sir John Howard and Sir Gilbert Debenham were getting together a great band of men â€?to take stresses of the Lady Roos’; however, additionally and under cover of this, they intended to try to seize the manor of Cotton.⁴³ The subterfuge, we must admit, was a neat one and certain to have been adopted many times, since it provided a rare opportunity for the gentry to ride quite legally with more men at their back than their station in life normally permitted: men, moreover, who were armed and armoured. It also put the distrainor-entrant beyond the reach of the statutes on riot, which defined that offence as three or more persons banding together for an illegal purpose, with at least one of them actually executing a deed to that purpose. As far as is known, neither king and Parliament nor the judges of the benches felt inclined to make the taking of a distress by prescriptive right into riot, although in 1531 the question was apparently put to the latter in regard to distraint which was thought to have been excessive.⁴⁴ Nor could one who claimed to be distraining on the strength of his title to the land be charged with the other criminal offence associated with the land wars, namely, forcible entry, at least not before his adversary had proven in court the superiority of his own claim to the manor in question.

The history of the last quarter of the fourteenth century and the early years of the fifteenth show the English Crown, and indeed the upper classes in general, were extremely concerned about two types of misdemeanour, the two which came to be called riot and forcible entry.⁴⁵ Both categories of crime were clearly products of quarrels amongst the upper classes over land. We may also view the several statutes of this time against illegal retaining, illicit giving of livery, and maintaining quarrels (for example, 1 Rie. II c. 4, 1 Rie. II c. 7, 13 Rie. II st. 3, 20 Rie. II c. 2, 1 Hen. IV c. 7, 7 Hen. IV c. 14, and 8 Hen. VI c. 4) in the same light, since in the land wars reasonable numbers of followers were essential if entry, ouster, and distraint were to be pursued effectively. Furthermore, it is fair to say that so great was the concern about these disturbances that new truncated methods of accusation, and even of trial, were set in place to implement the relevant laws. The laws concerned with forcible entry, which were perhaps those most central to the land wars, suggest that by Henry IV's reign there was amongst the class of substantial landholders a new sensitivity to the use of force in making the entries so vital for the successful pursuit of feuds over land.

During the middle years of the fourteenth century the judges interpreted the common law relating to ownership of land in such a way that a party with title, but not in occupation, was not jeopardized in his right of entry by sheer lapse of time unless, that is, the occupier died and his heir succeeded without the rival party exercising his right. Then, early in the reign of Richard II, came the rule that a right of entry continued to exist regardless of feoffment over. The reason for this softening of the law may well have been that many of the feoffments made by occupiers at this time were feoffments made to the use of the grantor.⁴⁶ Such feoffments were not usually known to the claimant and he would be ignorant anyway of the names of the feoffees to uses, those persons he must sue in court over title. Such frustration was likely to cause him to enter with force. In altering the law the Crown was trying to persuade would-be entrants that they would not endanger their rights by postponing their entry. To supplement this diminution of the need for entry there was promulgated in 1381 the first statute of a series designed to dissuade and punish those attempting entry by force. The Act, 5 Ric. II st. 1 c. 7, stipulated that there must be no entry except where it was allowed by law, in which case it must be in peaceable guise and not with a strong hand or a multitude of supporters. Offenders were to be punished quite severely, that is to say by imprisonment as well as fine. A later statute, 15 Ric. II c. 2, demonstrated how concerned the government was over forcible entry in its conceding to justices of the peace the power of summary conviction where entrants by force were caught in possession. A third statute, 4 Hen. IV c. 8, provided the victim of a forcible entry with the opportunity to sue out a special assize, which if successful would bring double damages from the offender. A fourth, 8 Hen. VI c. 9, extended the provisions of the 1391 Act to those who entered in peaceable fashion but afterwards held by force, and to entrants by forcible means who were no longer in occupation when the justices of the peace arrived. In addition, it declared those enfeoffments void which had been made by entrants to a lord who had maintained them, and, furthermore, it offered treble damages to a party put out who won an action of novel disseisin or trespass.⁴⁷ This Act, although directed against the â€?strong hand’ of an intruder, allowed any party, who had been in possession of land for three years or more, to use force to retain it and not be liable under the earlier forcible entry statutes.

The careful extension over the next fifty years of the measures set out in the original statute dealing with forcible entry, so as to cover a variety of criminal situations and to provide more efficient methods of judicial process and effective compensation for victims, demonstrates a deliberate policy to encourage indictments in this field. Relatively few, however, have been found in the legal records. One reason for this is that since forcible entry was a trespass (misdemeanour) the offenders would usually have been tried, if tried they were, at the peace sessions. Unfortunately, very few indeed of the rolls of the justices of the peace survive for the fifteenth century and the first half of the sixteenth. Another reason is that those offending under the statute 15 Ric. II c. 2 could be dealt with in summary fashion; and indictment and a trial were not essential. After the promulgation of the Act 8 Hen. VI c. 9 forcible entry was probably handled for the most part by indictment but the scanty records of peace sessions which we possess show very few of these cases. In the earlier sixteenth century there was something of a change. The files of the Norfolk justices of the peace for a single regnal year of Henry VIII's reign, 1532–3, show nearly seventy persons indicted for their entries by force and subsequent ouster of the occupier. Many others were said to have supported them but these, no doubt, could not be indicted because their names were not known.⁴⁸

These files contain also at least seven cases of riot, involving another sixty or so persons in what may be called typical land-war offences. Falling within the technical definition of riot were such misdeeds as the seizure of carts, the destruction of hedges and ditches, the taking of corn, the driving off of animals, the assaulting or detaining of people, and the lying in ambush to injure them: what we might call misbehaviour ancillary to the main purpose of entry and ouster.⁴⁹ There was probably no intent to steal, and certainly none to kill, merely the desire to intimidate and make difficulties for the opposing faction and its supporters. It seems not unlikely that those who incurred charges of riot had recently attempted, yet failed, to enter land and oust the party in occupation, or had been involved in distraint which had led to confrontation. The accusation of riotous behaviour would probably be brought by the occupying party when its supporters, animals, and property had suffered injury or damage, especially perhaps when the adversary had persuaded tenants on the manor to join him and his force.⁵⁰

The statute under which most riotous behaviour was handled was 13 Hen. IV c. 7, which might well be called the Statute of Riots.⁵¹ As with the most important statute on forcible entry, 15 Ric. II c. 2, those discovered committing a riot by two justices of the peace and the sheriff could be convicted by their record. If, by the time the law officers arrived at the scene, the rioters had dispersed, then an inquest was to be held into the circumstances and, presumably, those named by it were tried on the findings at the peace sessions. If the facts could not be discovered in this manner, then the details of the case were to be certified, no doubt by the two JPs and the sheriff, to the king's council, where the offenders would be punished if they admitted the truth of the charges. Should they deny the matter, it was to be tried in the king's bench.⁵² Failure to appear on the part of the accused within three weeks of being summoned resulted in their automatic conviction. One of the many noteworthy features of this procedure was that it was all designed to be set in motion by a mere informal complaint to a justice of the peace.⁵³ There was, of course, another way riot could be brought before the courts: this was by the presentment of a jury or, from the early fifteenth century, by a bill of indictment given to the justices for putting to a grand jury.⁵⁴ Both these latter methods could only operate when sessions of the peace were about to be held. The value of the procedure under 13 Hen. IV c. 7, was that the victims of the riot could seek and expect immediate action on the part of the justices of the peace.

Such was the basic machinery for dealing with the most salient categories of criminal trespass produced by the land wars. The social status of those accused ranged from esquires at the top to labourers at the bottom with yeomen, husbandmen, and such unlikely ones as mercers and carpenters, in between. Even if records had survived in greater numbers we should not normally expect to find any nobleman indicted and only rarely a knight. It is, of course, quite possible that some of the rioters in the plea rolls, and even the forcible entrants, were engaged not as agents pursuing the land wars of the upper classes but as parties in their own petty feuds, since connections between those charged and their employers were never set down in the records of the criminal law unless the accused was a household servant or had illegally received livery. We might well expect that indictments of forcible entry and riot, which had been the recourse of those involved in upper-class feuds in the fifteenth century, were being utilized by men further down the scale for their disputes in the sixteenth. On the other hand, riots and forcible entries of both the late medieval and Tudor periods, which on first inspection seem to have been isolated events, turn out not infrequently to have been part of a county-wide land war. The 120-plus men indicted for forcible entry and riot for trial at Norfolk peace sessions in a single year of the earlier sixteenth century was probably not an exceptional number for the time. When, in 1580, the marquess of Berkeley was quarrelling with Sir Thomas Throckmorton over the Oldminster tithes, indictments for riot and forcible entry, says Smyth, were â€?almost numberless’ at the assizes and quarter sessions, and at one juncture as many as forty of the Berkeley servants were indicted and fined.⁵⁵

Most of this concerned the combating of land-war adversaries at the regular sessions of the king's courts, usually before the justices of the peace, but it is important to notice that there was another way of dealing with the assaults, damage to property, and the taking of livestock, which made up the offences of forcible entry and trespass, and it was one which was common to the end of the fourteenth century at least. This was by means of a commission of oyer and terminer, which was a method of supplementing the operations of the permanent court system. The party entered on would seek a commission to hear and decide his complaint which, in theory at least, was supposed to be a great trespass (enormis transgressio, according to the statute of Westminster II c. 29). These commissions might proceed by means of hearing private suits as well as by receiving presentments and indictments from juries on the king's behalf. They often dealt with trespasses suffered by one complainant alone rather than with such offences perpetrated on the population of a particular area: thus they have been referred to as â€?private’ oyer and terminer commissions. The individual, usually a member of the upper classes, who sought such an enquiry into offences committed against him, would address a petition to the king and his council, Parliament, or the chancellor.⁵⁶ If he petitioned successfully, he would expect to pay between 10 and 40 shillings into the hanaper, as well perhaps as having to reward a courtier or servant of the king for interceding for him, but he was apparently entitled to choose the justices himself.⁵⁷ These were drawn from members of the gentry with a legal background, and from judges of the two benches. The plaintiff was probably expected to pay the justices' expenses.

There were three notable features to the proceedings by these justices. They were speedy, rarely taking more than a year; they were usually confined to the hearing and deciding of a private suit: and the plaintiff seems to have defeated the defendant in the vast majority of instances. The speed, and the fact that the plaintiff was usually victorious, accounted for some of the popularity of the â€?private’ commission, but the sizeable damages the plaintiff might be awarded, and the possibility his adversary might be sent to gaol, must also have contributed. One reason for the plaintiffs frequent success may have been that the justices selected were his friends, but another may have been the justices' practice of holding the proceedings at times and in places to suit him. The choice of locality would probably ensure that the jurors who decided the suit were drawn from an area where the plaintiff was powerful. All the defendant could do, if he heard about his adversary's petition in time, was to try to ensure it was not granted. He might, for example, contest the qualifications of the suggested justices, or argue that the offence was no enormous trespass as the law demanded, or he might seek for the case to be moved into the king's bench or before the council.⁵⁸ He could not counter by seeking an oyer and terminer commission of his own, at least not over the same issue. Thus many defendants responded initially by threats or violence: others, more sensibly, counter-sued in another court.

The seeking of private oyer and terminer commissions continued to be popular throughout the fourteenth century but in the early fifteenth the impulse, if we judge by the number allowed, declined markedly. Where they had amounted to around forty a year in the period 1373-6. they declined to an annual rate of about eight in 1391-4, about five in 1401-4, and to between two and three a year in 1442-5. In the same period there were also appointed commissions of oyer and terminer of another type, general commissions. These were intended to deal not with private suits but with one or several categories of offences seen as particularly dangerous to public order, such as murders, treasons, riots, or malfeasance of office by officials, which necessitated prosecution at the king's suit. Such commissions numbered about forty a year in 1391-4, the same in 1401-4, and about two a year in 1442-5. In the years 1472-5 there were appointed eight of these general commissions but none of the private variety, and the same pattern continued into the reign of Henry VII. Of the general oyer and terminer commissions of 1472-5, four were given competence in more than a single shire, one indeed in four shires. The indictments and trials resulting might therefore have been numbered in scores, even hundreds. At the end of the fourteenth century and at the beginning of the fifteenth a large percentage of the offences dealt with by such commissions were not connected, in a direct way at least, with bastard feudalism and the land wars, but by the 1470s the majority undoubtedly were.⁵⁹

How contemporaries viewed the two kinds of oyer and terminer commissions, in the mid-fifteenth century at least, is revealed to us in the correspondence between the first John Paston and his London legal factotum, James Gresham. Paston wanted a private oyer and terminer commission against Lord Moleyns, who had seized his manor of Gresham and taken £200-worth of goods and chattels, but initially Moleyns was able to convince the chancellor (who at the time had the decision) that the request should be denied. The reasons which Moleyns had advanced were his own involvement at that time in suppressing an insurrection in Wiltshire, and that a private oyer and terminer would cause a rising in Norfolk. Paston's rejoinders were to the effect that he, Paston, should have the commission because Moleyns, aware of the inferiority of his own claims, had refused to allow the matter of title to be decided by two judges out of court: furthermore, the justices whom he (Paston) had nominated to sit on the commission were unbiased in their sympathies. Paston also pointed out that when Moleyns had entered with force a justice of the peace had certified the occurrence into chancery, and he argued in a more political vein that rather than be moved to hostility by the granting of a special oyer and terminer commission the country would rise up against the Gresham entrants if they were not punished.⁶⁰

Paston's case for the granting of a special oyer and terminer was a blend of shrewd legal argument and political blackmail, but his requests did not stop at the private commission. His bill to the chancellor, which has survived, shows that he wished the oyer and terminer to deal not with a suit by him of trespass or forcible entry, perhaps involving title to Gresham (he must already have won a claim to title there in the courts since he possessed a writ of restitution), but rather with the land-war misdemeanours, namely the trespasses, extortions, riots, forcible entries, maintenances, champerties, and embraceries, which presumably had been committed by the Moleyns faction against him and his followers in the course of the quarrel. Paston was in fact seeking a private oyer and terminer to do criminal justice, justice at the king's suit, by obtaining indictments and making the accused answer to them. He requested a private oyer and terminer despite being aware that there had recently been granted a general commission of oyer and terminer for his home county (Norfolk), which in theory should do the same work.⁶¹ In one letter Paston pointed out that the particular value of proceedings under a private oyer and terminer, as against under a general one, was that they could not be dashed by a writ of supersedeas and that the obtainer of the commission was able to decide the duration (and presumably the scope) of its work. He was, however, willing to have as justices for his private commission those on the general one with two exceptions.⁶²

Paston was not, despite his seeking of a private oyer and terminer commission for the purpose of indicting his foes, intending to ignore the matter of Moleyns' occupation of Gresham. Yet rather than try to use the private oyer and terminer for that purpose he sought the granting of a special assize.⁶³ These were awarded under the statute 4 Hen. IV ? 8, which stipulated the party grieved should â€?affiance’ the forcible entry to the chancellor, who had the power to grant the assize himself. Attractive to the supplicant must have been the knowledge that if the defendant was convicted of the disseisin he was to be liable to a year in gaol and the payment of double damages. Either on account of the latter, or because of there being a greater chance of success for the plaintiff at the assize, the private oyer and terminer had become a relative rarity by the mid-fifteenth century. It was from not long after that time that the general commission of oyer and terminer became less used for dealing with land wars but more used for handling insurrections, overt or anticipated. Symptomatic of this change, perhaps, was the substance of a debate between the judges of the two benches in the exchequer chamber at the outset of Henry VIII's reign. They decided that under what had become its usual form the commission did not provide for the handling of indictments of forcible entry.⁶⁴ Yet if its land-war connections were weakening in the sixteenth century, there can be little doubt that the oyer and terminer commission had played an important role in regard to the feuds of the high age of bastard feudalism. Furthermore, that role remained on record because there was a rule that when the sessions ended the files of any oyer and terminer commission should be sent into the king's bench, even the undetermined indictments.⁶⁵ As a result a fair number of such records are still extant, and they probably offer more information about the land wars than any other single source.⁶⁶ They show particularly well the periods and extent of upper-class feuds, and their political aspects, although like so many other court records of the period they are by themselves of no great value in fathoming the motivation and the mentalities of the age.