Introduction

The study of the secular history of late-medieval England has flourished in the last fifty years. Once a period relatively neglected by historians, the later fourteenth and the fifteenth centuries have attracted since the Second World War more than their expected share of research interest.

The ready availability of such material was, in time, bound to engage the attention of researchers and draw them to these topics, but the attraction was probably the sooner and greater because of one of the small number of professional historians who pioneered the late-medieval secular field. This was K. B. McFarlane. McFar-lane was blessed with a personality his students found both sympathetic and stimulating.

McFarlane's writings on bastard feudalism were a compound of economic (financial), family, and political history, with a dash of inheritance and land law added.

The investigators are to be the more commended because of the nature of the sources. There survives a fairly wide range of material superficially relevant but only a small amount with any real depth. There is no particular record source, apart from the relatively small amount of contemporary correspondence extant, which can be labelled the quintessence of bastard feudalism. As a result, we have been told a fair amount about the phenomena of bastard feudalism, the families, circles, and affinities of the upper classes, the extent of their property and the nature of their politics, but relatively little about the prime causes of human activity in that milieu and the actual mechanics of behaviour.

Perhaps the greatest single lacuna in the corpus of scholarship concerned with bastard feudalism is the legal aspect, although that is not to suggest there has not been some valuable work in that area. McFarlane's own comments on the operation of the criminal law, and on the lawlessness which should have been its target, although few, were very much to the point. He argued that the increased outcry against the lack of public order, which was typical of much of the fourteenth and fifteenth centuries, was caused by a rise of sensitivity among the populace rather than by the malfunctioning of the legal system or any sort of crime wave. He held that from as early as the reign of Edward I private warfare was giving way to seeking satisfaction, albeit with the employment of legal guile, through the courts. He was clearly in disagreement with Maitland, who held that the fifteenth century, â€?the time of… private wars’, was â€?at least as lawless as the thirteenth’. There was, as McFarlane saw it, no real threat to public order in the late-medieval period, a position much in accord with his basic tenet of England at that time being a society with few, if any, grievous problems.⁷

If McFarlane's comments on the topic were perfunctory, so also have been those of other contributors to the debate, and it is important to understand why this should be so and why historians have not benefited from evidence from the rolls and files of the courts which handled criminal cases. The chief reasons are the value and extent of those records. Few of the records of the sessions of the justices of the peace, who handled most of the relevant cases in the first instance, have survived from the medieval period, and very few indeed from the period between the early fifteenth century and the middle of the sixteenth.

The value to the historian of bastard feudalism of the records of the courts which entertained private suits is somewhat greater than those of the criminal courts but not exceptionally so.

The sources from which my conclusions have been drawn are mixed and the material is scattered. As well as in the autobiographical account just mentioned, there is much relating to the law in the correspondence of the Pastons, Plumptons, Stonors, Willoughbys, and other fifteenth- and sixteenth-century families, although the majority of it is not specific but suggested or implied. It has happily been possible to supplement some of the Paston correspondence by examination of relevant files of oyer and terminer commissions of the mid-fifteenth century. Also essential to any investigation of bastard feudalism is an understanding of the land law and the changes it underwent in the period under consideration. Fortuitously, the Year Books (Edward I to 1536) and the law reports and legal collections of the early Tudor period, a large part of whose contents concerns the holding of land, have recently been scrutinized by scholars in some depth for what they can tell us about aspects of the land law. The state of the latter, it must be emphasized, was quite crucial in sustaining many of the elements of bastard feudalism. The statute and parliamentary rolls are a very necessary recourse for the historian working in the area of bastard feudalism. Lawyers were continually seeking ways round the letter of the law, and many possessed their own collections of statutes and had read them thoroughly. A new Act was not just the passing whim of one parliament, not just a token response to a petition and something which would soon be forgotten by contemporaries as some twentieth-century historians would have us believe. Legislation, then as now, was a matter of precision both in regard to the criminal law and to property. Most Acts embodied remedies which were eminently practical and dovetailed in neatly with other statutes and the general tenor of the law in their area. When it became apparent that one line of attack on the many-faceted problem of bastard feudalism was not working, then other legislative approaches were tried. There was little inertia on the part of governments, nor a lack of imagination. Indeed some of the procedural and judicial remedies stipulated were startling in their severity, even if we can appreciate how they were developed from notions and practices already part of the common law. Kings, ministers, and parliaments worked repeatedly, if not persistently, towards the eradication of the evils attendant on bastard feudalism but, because these were an integral part of the very structure of society, progress was necessarily slow.

The criminal law as it affected bastard feudalism was concerned with the duties of law-officers and jurors and how malfeasance could be restricted, which was a difficult proposition given contemporary attitudes to office-holding and contemporary belief in suitor/defendant participation in the legal process. The criminal law was also necessarily concerned with the definition and scope of the misdemeanours in the bastard feudalism orbit (riot, forcible entry, illegal retaining and livery, maintenance, embracery, conspiracy) and the process by which the perpetrators were brought to trial and adjudged. While there is not much difficulty in discovering the history of the scope and definition of these offences, we are handicapped in judging the effectiveness of the different types of criminal procedure by the loss of court records already noted. We do have, however, the writings of a number of Tudor legal commentators, some of which throw light on how the criminal law functioned in the fifteenth century as well as in their own period. Riot and armed entry into land in the bastard feudalism context bring to mind the king's council in the Star Chamber. Forcible entry and riot do indeed figure prominently in Star Chamber records but the cases were private actions: the Star Chamber was not, strictly speaking, a criminal court, that is to say one where accusations/complaints were frequently made for the benefit of the king. We are lucky in that the cases which came before the court over various periods of time during the Tudor period have been analysed in respect of the main matter at issue, although the social and legal significance of the findings have not been examined. I therefore provide some commentary on this issue, and I also address the question of why and how quarrels over land came before the Star Chamber.

If the land law and attitudes towards land are of great importance in the study of bastard feudalism, then especially so are the rules prevailing in regard to entry into land. Maitland drew attention to the custom of the twelfth and thirteenth centuries which allowed a man to expel by his own force or that of his friends someone who had ejected him from his land, provided he did so within four days of being ousted; for in four days the ejector could acquire seisin. The design behind this rule was not that a man should be expected to use force to protect his property but rather the reverse. The intention was to protect possession (seisin), even â€?untitled’ and â€?vicious possession’, against ownership. There existed, argued Maitland, â€?an extremely rigorous prohibition of self-help’ which necessitated a â€?system of possessory remedies’. These worked well at first but unfortunately â€?fell to pieces in the course of the fourteenth century’; by the fifteenth century, so he believed, the law allowed more self-help than in the twelfth century and protected possession as against ownership in a mere two particular situations.¹⁰ Recently D. W. Sutherland, in his study of the assize of novel disseisin, has argued to good effect conversely that the lawful occasions for the employment of self-help actually diminished rather than increased in the later Middle Ages, and where self-help did occur a gentlemanly standard of behaviour was expected.¹¹ Such conduct as the bearing of arms by entrants or the taking of personal property was forbidden; usually the party ousted was allowed to take away his horse, wardrobe, and cash-box.

Yet contemporary comment suggests that it was illegal entry which was the great exacerbator of disputes over land in the later Middle Ages, and I pay particular attention to that phenomenon. There is also the matter of the best way of approaching the world of bastard feudalism. I have chosen to view the struggles over land, the â€?gentlemen's wars’ as I think they should be called, from the viewpoint of the contestants rather than to centre investigation on the operations of the courts.¹² This pursuit of land-war participants and their strategies necessitates a detour away from the law and its administration in order to study their activities at the fount of influence and patronage, the Court. While much bastard feudalism activity was intended to outmanoeuvre opponents so as to be able to take the maximum advantage of the law, we should not fail to notice the contribution made by political manoeuvre, even if it was usually at the lower rather than at the higher level. Indeed, it is quite possible that one type of court may actually have been intended to provide justice of a political flavour. One final comment is necessary. My observations about the criminal law suggest that so intractable and so enduring were the problems created by bastard feudalism that the government was forced increasingly into developing that law in a direction which was quite distinct from what had obtained before the later fourteenth century. Particularly at risk for a time, in regard to a fairly extensive list of misdemeanours, were the two types of criminal jury. Whether this legal development, ultimately largely abortive, can be construed as a borrowing of foreign judicial procedure and something akin to the sixteenth-century â€?reception’, which Maitland believed he had detected, seems doubtful, but that there was a novel impulse in the development of the English criminal law for a time seems certain.

I commence this study by examining the nature of judicial administration in the milieu of bastard feudalism particularly in regard to the roles of the sheriff, justices, and jurors. For this it is necessary inter alia to unravel and analyse the significance of the welter of relevant legislation from a period of over two centuries. Only by undertaking this long neglected and somewhat onerous task is it possible to reach a conclusion on whether the evils which have at various times been attributed to bastard feudalism were created, fuelled, or even perhaps kept within reasonable limits by the administrators and the administration of the law; and whether this dark side was, as has sometimes been implied, the result of an ill-conceived, malfunctioning, or corrupt legal system.