Notes

Abbreviated bibliographical reJerences are given in full in the bibliography

Introduction

1. For example T. F. Tout's Chapters in Administrative History (Manchester, 1920–33) and The English Government at Work, 1327–1336, ed.

2. The pioneering study here was J. S. Roskell's The Knights of the Shire for the County Palatine of Lancaster (1377–1460), Chetham Society, New Series, 96 (1937).

3. I am drawing here on my own recollections of McFarlane. There is a perceptive appreciation of him by K. J. Leyser in �?K. B. McFarlane’, Proceedings of the British Academy LXII (1976), 485–506, and critical assessments of his scholarship and its development by J. P. Cooper and G. L. Harriss in their edition of McFarlane's The Nobility of Later Medieval England (Oxford, 1973), vi–xxxvii, and by Harriss in McFarlane's England in the Fifteenth Century (London, 1981), ix–xxvii.

4. K. B. McFarlane, �?Bastard feudalism’, Bulletin of the Institute of Historical Research, 20 (1943–5), 161–2; J. P. Cooper, Lane, Men and Beliefs, ed. G. E. Aylmer and J. S. Morrill (London, 1983), 248.

5. The impact of the McFarlane school was made the greater by the expansion of university history departments in the later 1950s and early 1960s when it became de rigueur to have a late-medieval English historian on the staff.

6. There is one caveat I would enter, however. Whereas the constitutional historians, doubtless as a result of their analytical approach, emphasized the disparate groups in English medieval society, albeit their co-operation within limits, the practitioners of social history in recent years, especially those whose field has been the English nobility, have tended to adopt an organic or �?seamless robe’ interpretation of the nation in which division is played down and law, in the statutory sense at least, viewed as irrelevant to social development.

7. McFarlane, The Nobility of Later Medieval England, 115; The Collected Papers of Frederic William Maitland, ed. H. A. L. Fisher (Cambridge, 1911), I, 443.

8. R. C. Palmer, The Whilton Dispute, 1264–1380: A Social-Legal Study of Dispute Settlement in Medieval England (Princeton, 1984), 11–13.

9. The author was Robert Pilkington, c. 1447–1508, lord of Rivington (Lanes).

10. The Collected Papers of Frederic William Maitland, I, 410, 419, 434.

11. D. W. Sutherland, The Assize of Novel Disseisin (Oxford, 1973), 121–3, 148–69.

12. This book is a development of the arguments which I advanced in a lecture on �?The gentlemen's wars’ delivered on the invitation of Professor James Sweeney in April 1978 at the Pennsylvania State University, University Park, Pennsylvania. The lecture was financially supported by a grant from the Institute for the Arts and Humanities of that university.

Chapter One Sheriffs, Justices, and Juries

1. Fortescue, 55. By the Articuli super Cartas (1300) sheriffs were to be elected by the people of the county. The statute of sheriffs of 1316 changed this to the practice referred to by Fortescue.

2. Paston, no. 298; HMC, Shrewsbury and Talbot, I, 18; C. E. Long, �?Wild Darell of Littlecote’, Wiltshire Archaeological and Natural History Society Magazine IV (1857), 219. It has been pointed out recently that England was ill-served by her medieval chroniclers in the matter of internal pressures at the late fourteenth century Court for �?There is an almost unbroken wall of silence’: see C. Given Wilson, The Royal Household and the King's Affinity (New Haven, Conn., 1986), 260–2.

3. HMC, Salisbury VII, 536–7; VIII, 437; XII, 495–7. Cal of State Papers, 579. HMC, Shrewsbury and Talbot, II, 101. The Articuli super Cartas c. 13, the first piece of legislation on sheriffs' qualifications, stipulated they should not be poor nor disinclined to reside for a time in one place, nor be a cleric.

4. Fitzherbert, fos. 36v.–37.

5. See 2 Edw. III c. 3 and 11 Edw. III c. 14.

6. R. B. Pugh, Imprisonment in Medieval England (Cambridge, 1970), 148–9.

7. 3 Hen. VII c. 3; 25 Edw. III st. 5 c. 14; 1 Ric III c. 3.

8. Brinklow, HMC, Various Colls, II, 33.

9. Historia … Gloucestriae, III, 289–90. The first law to limit sheriffs in their selection of jurors was the Articuli super Cartas c. 9.

10. See HMC, Various Colls, II, 51–5; Plumpton, 150.

11. See HMC, Various Colls, II, 39; Letters … Henry VIII, Addenda, 1509–37, no. 783; Plumpton, 161; Smyth, I, 305.

12. I am referring here to misdemeanours committed by the upper classes and their minions.

13. See J. G. Bellamy, Criminal Law and Society in Late Medieval and Tudor England (Gloucester and New York, 1984), ch. 2.

14. 23 Edw. III cc. 1–7; 7 Ric. II c. 5.

15. These officials were known as keepers of the peace before 1361. In 1390 the Commons of Parliament were able to secure the nomination of the justices of the peace for one turn: Rotuli Pari, III, 279.

16. Paston, nos xxxvi, 503; Gawdy, 96.

17. Requests by the Commons of Parliament for members of the peace commission to be resident in the country for which they were appointed date from at least 1348: Rotuli Pari, II, 174; Les Reportes … Hawarde, 21.

18. See Letters … Henry VIII, X, no. 245; PRO SP 12/17/47.

19. 19 Cal. of Patent Rolls and Letters … Henry VIII, passim; R. L. Storey, �?Lincolnshire and the Wars of the Roses’, Nottingham Mediaeval Studies XIV (1970), 80.

20. The statute of 1394 was 17 Ric. II c. 10. Sometimes one or two of the peers on the peace commission were regular attenders: see R. B. Goheen, �?Social ideals and social structure: rural Gloucestershire, 1450–1550’, Histoire Sociale/Social History 24 (1979), 267. By the late sixteenth century there seems to have been little attention paid to legal training in selecting justices of the peace. For a recent discussion on the authority of the justices of the peace in the fourteenth century see E.

21. B. H. Putnam, Early Treatises on the Practice of the Justices of the Peace in the Fifteenth and Sixteenth Centuries (Oxford, 1924), 328; Lambarde, 87–91. The records of the Wiltshire quarter sessions for Epiphany 1603 show forty-eight recognizances taken out of sessions and seventy taken actually at the sessions: R. W. Merriman, �?Extracts from the Records of the Wiltshire Quarter Sessions’, Wilts. Arch. and Nat. Hist. Soc. Mag. XXI (1883), 100.

22. Lambarde, 93, 102, 109, 113, 118.

23. 23 Rotuli Parl., III, 84. The wording of the statute 20 Ric. II c. 2 may imply that procedure was to be entirely by examination. The investigation of offences of maintenance, on the other hand, was withheld from the justices of the peace and left to the justices of assize as 4 Edw. III c. 11 and 20 Edw. III c. 6 show. This may have been because maintenance emerged as a dangerous offence in Edward I's reign, before the keepers of the peace were well established.

24. At first 13 Hen. IV c. 7 was not utilized properly (as the wording of 2 Hen. V st. 1 c. 8 demonstrates) but plea rolls from later in the century show it in operation.

25. Should the accused admit his guilt he would be punished by council; should he traverse the certificate he was to be tried in king's bench.

26. Lambarde tells us that Chief Justice Huse intended to �?load’ the justices of the peace with the operating of the statutes on forcible entry, livery, maintenance, and embracery: Lambarde, 38.

27. It is of course very hard to gauge the incidence of cases where the justices operated in a summary manner. Because of their nature no summary convictions found their way into the plea rolls.

28. The former allowed JPs to receive presentments and informations under the neglected statutes on retainers, liveries, and maintainance.

29. B. H. Putnam, Proceedings before the Justices of the Peace in the Fourteenth and Fifteenth Centuries (London, 1938), 237–69. The statute 5 Ric. II st. 1 c. 7 was designed in essence to deal with peasants assembling for the purposes of insurrection. It was being misused in 1475.

30. NRO, 24 Hen. VIII; ERO, 15–18. Two of the forcible entry cases in the Norfolk records was specifically under 8 Hen. VI c. 9. The Essex total of fifty-four indictments omits presentments in regard to upkeep of bridges and unlicensed ale sellers.

31. The records of the Staffordshire quarter sessions of Epiphany 1591 show true bills in regard to six cases of forcible entry and one of riot; the Staffordshire Michaelmas sessions of 1586 provide four of forcible entry and one of riot: �?Staffordshire quarter sessions rolls, 1581–97’, ed. S. A. H. Burne, Williams Salt Soc, 3rd Series, 1927 (1929), 156–181; ibid. 1930 (1932), 91–9.

32. The statute 11 Hen. VII c. 3, which was only in operation until 1509, allowed the crimes mentioned above that sprang from bastard feudalism to be prosecuted alternatively by means of information with the justices of the peace �?hearing and determining them under penal laws at discretion’, that is to say allowing a share of the forfeitures to the informant if successful.

33. Such summary justice, for that is what it amounted to, has for some reason gone unnoticed by historians for the period before Elizabeth I. I have made an initial exploration of the phenomenon, particularly its origins, in my Criminal Law, ch. 2.

34. There was 8 Hen. VI c. 9 (defaults of sheriffs in cases involving the forcible holding of land), 8 Edw. IV c. 2 (illegal giving of livery and retaining), 11 Hen. VII c. 3 (riots, illegal retaining, and embracery), 19 Hen. VII c. 14 (illegal livery-giving and retaining), 33 Hen. VIII c. 10 (maintenance and illegal livery-giving), 5 Eliz. c. 9 (perjury), 31 Eliz.

35. Probably from 1512. 3 Henry VIII c. 12 stipulated that since substantial persons were being wrongfully indicted by perjured grand jurors all panels of jurors were to be submitted to justices of gaol delivery and justices of the peace at open sessions who might remove those they wished and substitute others. See also Lambarde, 307.

36. Fortescue, 60; Lambarde, 307–8; Hughes and Larkin, II, 351, 495–7; PRO KB 9/262-270A; William Lambarde and Local Government, ed. C. Read (Ithaca, NY, 1962), 59.

37. See Plumpton cx, 171; HMC, Salisbury, V, 288; Letters … Henry VIII, IV, pt I, no. 681; ibid., Addenda, 1509–37, nos 45, 783.

38. Fortescue, 69; More, 993. More, alone of the legal commentators, noticed the connection between crimes related to bastard feudalism and truncated or summary procedure of the type we have referred to. He observed, quite correctly, that it must have been because of the difficulties of indictment that �?the statute’ on riot (he probably meant 13 Hen. IV c. 7 but it would also be true of its reinforcers II Hen. VII c. 3 and 19 Hen. VII c. 13) avoided that method of procedure: More, 993. By the sixteenth century grand juries might hear both evidence and witnesses before deciding to pass the bill.

39. William Lambarde and Local Government, 120. So did Wilbraham: Wilbraham, 20.

40. Putnam, Early Treatises, 384; Lambarde, 385; More, 987.

41. 41 Cal. of Patent Rolls 1416–22, 266; Lambarde, 405.

42. A. Harding, �?The origins of the crime of conspiracy’, Transactions of the Royal Historical Society, 5th Series, 33 (1983), 95–7; Select Cases in the Court of King's Bench, VII, ed. G. O. Sayles, Seiden Society, 88 (1971), 191.

43. 13 Edw. I c. 38.

44. See 34 Edw. III c. 8 and 38 Edw. III st. 1 c. 12. Parties might themselves sue jurors taking bribes from adversaries; so might also any other person. Should the latter succeed in his suit he got half of any fine. The party who sued successfully was able to obtain damages. The juror so convicted was put in gaol for a year (34 Edw. III c. 8). 38 Edw. III st. 1 c. 12 made the penalty for the errant juror ten times the amount of the bribe and extended his punishment to the embracer, who was not mentioned in the earlier Act. If either could not pay he was to suffer a year's imprisonment.

45. HMC, Various Colls, II, 39; Paston, no. 840.

46. Hudson, II, 92–3.

47. 35 Hen. VIII c. 6.

48. Plumpton, 161; Smyth, I, 321.

49. See HMV, Various Colls, II, 39, 42; Plumpton, 134; Smith, ed. Alston, 79.

50. Smith, ed. Alston, 111. Robert Pilkington states that he had no chance of securing the attaint of what he believed was a corrupt jury because of the disparity in rank between himself and his opponents: HMC, Various Colls, II, 51.

51. Bayne found seven accusations in the extant conciliar records which were brought under 11 Hen. VII c. 25 and four accusations (all instituted by the attorney-general) under 3 Hen. VII c. 1: see Bayne and Dunham, cxvii–cxviii.

52. J. A. Guy, The Cardinal's Court (Hassocks, 1977), 53.

53. More, 999; Smith, ed. Alston, 109–10; Hudson, 72.

54. Putnam, Proceedings, 73–8.

55. Britton, I, 86–95; Historia Gloucestriae, III, 289–90.

56. B. H. Putnam, The Place in Legal History of Sir William Shareshull (Cambridge, 1950) 52–4, 69–70.

57. The terms of a few commissions of oyer and terminer included such offences as oppressions, extortions, conspiracies, and misprisions: see, for example Cal. of Patent Rolls, 1452–61, 388 and Cal. of Patent Rolls, 1461–7, 301.

58. J. D. Maddicott, �?Law and lordship: royal justices as retainers in thirteenth and fourteenth-century England’, Past and Present, Supplement 4 (1978) 40–2, 81.

59. Dudley, 35.

60. Paston, nos 513–518.

61. Political Songs, 35–6.

62. E. W. Ives, The Common Lawyers of Pre-Reformation England (Cambridge, 1983), 310. The reference is to Magdalen College, Oxford, Fastolf MS 42. There is a reference in Fastolf MS 71 m. 3 to Sir John's executors having to pay a court clerk 20d to get him to enter a release in the records: ibid.

63. HMC, Various Colls, II, 52.

64. K. B. McFarlane, �?William Worcester, a preliminary survey’, Studies presented to Sir Hilary Jenkinson (London, 1957), 214; Paston, no. 19.

65. Paston, nos 159, 513.

66. The letter in The Paston Letters which comes closest to referring to overbearing and partial attitudes on the part of judges is no. 158. It tells how at an oyer and terminer session Prisot, chief justice of common pleas, refused to allow any lawyer to speak for the plaintiffs.

Chapter Two The Land Wars

1. Smyth, I, 310; Paston, no. 395. Between 1413 and 1419 over half the gentry in Warwickshire were involved in litigation: C. Carpenter, �?The Beauchamp affinity: a study of bastard feudalism at work’, English Historical Review, XCV (1980), 524. Of the eighteen gentry who served as knights of the shire for Staffordshire in Richard II's reign only one (John Delves), a lawyer, did not sue at sometime in his life at the assizes or in the common pleas or the king' bench.

2. L. Stone, The Crisis of the Aristocracy, (Oxford), 1965), 241.

3. Willoughby, 84; Smyth, I, 115, 336.

4. Thus the assault and the slight were symptoms of hostility already festering if not overt.

5. For example, the duke of Suffolk in the summer of 1465 sought to have Drayton from the first John Paston as the heir of a family, also named de la Pole, who had held it years before: Paston, no. 514; Smyth, I, 159. Lord Moleyns, despite what the Pastons had to say, had a genuine claim to Gresham: see PRO C 47/70/79.

6. Paston, no. xi. Should documents which might help the cause of your future opponent in the courts come into your possession, you might well order them to be burned: see Smyth, I, 314.

7. N. E. Saul, Knights and Esquires: the Gloucestershire Gentry in the Fourteenth Century (Oxford, 1981), 194–6.

8. B. Coward, The Stanleys, Lords Stanley, and Earls of Derby, 1385–1672, Chetham Society, 3rd Series, 30 (1983), 44.

9. On the early history of the use see J. M. W. Bean, The Decline of English Feudalism, 1215–1540 (Manchester, 1968), 142–74.

10. Thus Margaret Paston referred in her will to �?such londes as I have putte in feffement to accomplish my wille’: Paston, no. 861.

11. P. Jefferies, �?The medieval use as family law and custom: the Berkshire gentry in the fourteenth and fifteenth centuries’, Southern History, I (1979), 58, 65.

12. Bean, The Decline of English Feudalism, 142.

13. ibid., 172: Bean suggests the chancellor was ready to protect the interests of a dead cestui que use by no later than 1420. ibid., 166: it seems that in 1380 the employment of a use was still hazardous for the cestui que use since there was �?no general acceptance’ his will must be accepted.

14. K. B. McFarlane, The Nobility of Later Medieval England, ed. J. P. Cooper and G. L. Harriss (Oxford, 1973), 76.

15. Paston, no. xxix.

16. Lesser men were usually loath to sue a nobleman in the courts of common law or even to put a bill into parliament against one, however brazen his wronging of them. They would petition to the lord's legal counsel, or seek to put pressure on the aggressor through the interference of a third party, usually another nobleman: see Paston, nos. 255, 766. Men of the fifteenth century felt certain that the litigant who received fees from a magnate was sure to win his suit against an adversary of roughly equal status who did not: ibid., no. 28.

17. Smyth, I, 318; HMC, Various Colls, II, 44. Pilkington did not act totally out of loyalty or from sheer good-heartedness. He was also afraid these suits might touch his own rights and freehold.

18. Smyth, I, 313; Paston, no. xxx.

19. D. W. Sutherland, The Assize of Novel Disseisin (Oxford, 1973), 162–5. In a case of 1407, Hugh Huls, justice of the king's bench, argued that �?when a man lays a claim (to land) it is valueless unless he makes it anew each year’: Year Books, Mich. 9 Hen. IV pi. 18.

20. On the use of force in thirteenth century entry see Sutherland, The Assize of Novel Disseisin, 118–20. The estimates of plaintiffs as victors are my own impressions from examining scattered samples. They exclude instances where the plaintiff defaulted since these suggest a treaty was made.

21. Pulton, 34.

22. Paston, nos 514, 1003.

23. Paston, no. 108. A good example of an ouster by a superior party who scorned other than direct action is the famous seizure of Caister castle from the second John Paston by the duke of Norfolk in September 1469: ibid., nos 616, 620, 626.

24. Year Books, Hil. 10, Hen. VII pi. 2 shows that by the end of the fifteenth century at least it was an offence for a party trying to enter to be accompanied by a band of supporters greater than the number who would customarily attend on him. From 1381 entry was supposed to be by peaceable means only.

25. In June 1470 Sir John Paston was told by his legal advisers that he might justify his defence of Caister in a military manner by �?the pesybyll possessyon that ye have had in it mor than iii yeer’: Paston, no. 641. Since a person's goods were usually to be found in his house or his closes the party entered on probably had the right in the circumstances mentioned to defend these as well: Les Reportes … Hawarde, 140–1.

26. Smyth, I, 109–11; Paston, nos 636, 641–2, 666, 676–7, 688–9.

27. See particularly Paston, nos 67, 620.

28. Year Books, 22 Liber Assisarum no. 57; Year Books of Edward II, The Eyre of London, 14 Edward II, A.D. 1321, ed. H. Cam, Selden Society, 85 (1968), 237.

29. Paston, nos 518, 533–5, 592. When animals in substantial number were seized by a party entering disputed land, the subsequent indictment only rarely claimed the deed was felony, normally making the charge one of mere trespass. See for example PRO KB 9/266/75; KB 9/267/5, 7, 10, 31, 34; KB 9/270A/28, 65; KB 9/271/43. The value of the property taken was over £10 in several of these indictments.

30. See R. C. Palmer, The Whilton Dispute, 1264–1380: a Social-Legal Study of Dispute Settlement in Medieval England (Princeton, 1984), 31.

31. Paston, nos 419, 468, 529, 823.

32. ibid., no. 504; Stonor, no. 131.

33. Paston, no. 631; Willoughby, 45–6; Plumpton, 156.

34. Paston, nos 414, 418. To help him regain the manor of Mellor in 1477 Alexander Pilkington offered the tenants a reduction in rent: HMC, Various Colls, II, 29.

35. Paston, nos 419, lxi.

36. Plumpton, 156; Paston, no. 65.

37. Paston, nos 688, 693.

38. ibid., nos 468, 504.

39. Distraint was also used to enforce appearance in the king's courts in private actions especially for debt and trespass.

40. F. Pollock and F. W. Maitland, The History of English Law before the Time of Edward I (Cambridge, 1911), I, 352–3.

41. Paston, nos 408, 531, lxxx. The taking of a distress might lead to the eviction and flight from the locality of the party distrained: see HMC, Various Colls, II, 31, 38.

42. Paston, nos 418, 502, 896, lxx.

43. ibid., nos 502, 900.

44. J. G. Bellamy, Criminal Law and Society in Late Medieval and Tudor England (Gloucester and New York, 1984), 57–8; Spelman, I, 207.

45. The relevant statutes on riot were I Ric. II c. 6; 2 Rie. Il st. 1 c. 6; 5 Ric. II st. 1 c. 6; 17 Ric. II c. 8; 4 Hen. IV c. 8 and 13 Hen. IV c. 7. On forcible entry they were 5 Ric. II st. 1 c. 7; 15 Ric. II c. 2; 4 Hen. IV c. 7; 4 Hen. IV c. 8; and 2 Hen. V st. 1 cc. 8–9.

46. See Sutherland, The Assize of Novel Disseisin, 152–66.

47. 8 Hen. VI c. 9. A curious feature of the statute, but one which must have been responsible for attracting a good many bills of indictment from those put out by forcible entry, was the stipulation that if the person indicted was found guilty then the complainant was to be put back in possession, an interesting amalgam of criminal and private law. This seems to have been the forcible entry statute most later indictments were based on: see, for example, B. H. Putnam, Proceedings before the Justices of the Peace in the Fourteenth and Fifteenth Centuries (London, 1938), 239–41, and Nottingham City Library, CA 30 D/5.

48. NRO, 24 Hen. VIII.

49. For example ibid., 50i, 63b, 69f, 78a.

50. This last may be the reason why we meet references to insurrection in riot charges occasionally. The practice was really an abuse of 5 Ric. II st. 1 c. 2.

51. By the mid-fifteenth century the term �?riot’ carried with it the idea of victims being put in fear. By the sixteenth century there was also the idea of an interest common to all the miscreants: see Bellamy, Criminal Law, 58.

52. See, for example, Paston, no. 420. A good example of such a certificate is PRO KB 9/262/46. It is a certificate by the earl of Oxford in his capacity as a JP of his observation of the riotous expulsion of John Paston's feoffees from Gresham on 29 January 1449.

53. As Margaret Paston did in August 1465 against the men of the duke of Suffolk: Paston, no. 518.

54. Riot was among the crimes which presenting jurors must report by 1403–4 at the latest: Putnam, Proceedings, 12.

55. Smyth, 310.

56. See R. W, Kaeuper, �?Law and order in fourteenth-century England: the evidence of special commissions of oyer and terminer’, Speculum, LIV (1979) 758.

57. See, for example, the special commissions in Cal. of Patent Rolls, 1391–6. The minimum payment into the hanaper in the fifteenth century declined to half a mark: Cal. of Patent Rolls, 1401–5, 506, and Cal. of Patent Rolls, 1441–6, 422.

58. Kaeuper, Speculum, LIV (1979), 754, 757–9, 762 764, 766–7.

59. 59 See the volumes of Cal. of Patent Rolls for 1391–6, 1401–5, 1441–6, 1467–77, and 1485–94, passim.

60. Paston, nos 103, 107, 108.

61. The commission's records are in PRO KB 9/267.

62. Paston, no. 108. The two exceptions were Lord Scales and Sir John Fastolf. The former was related to Moleyns’ wife, while Fastolf Paston hoped to recruit as his co-plaintiff.

63. The statute 2 Edw. III c. 7 made it quite clear that oyer and terminer commissions were for determining the suits of private parties as well as those of the king. Paston seems to have hoped his obtaining of a private oyer and terminer would persuade Moleyns to withdraw from Gresham without the need for actual proceedings: Paston, no. 103. Paston sought the special assize on behalf of his feoffees; technically he was only the cestui que use in Gresham.

64. Eng. Reports, Keilway, 159.

65. Eng. Reports, Brooks New Cases, 864, 868.

66. These are the so-called �?Ancient indictments’ (PRO KB 9). The first extensive use of this type of evidence relating to late-medieval feuding was by R. L. Storey in his The End of the House of Lancaster, (London, 1966).

Chapter Three Litigation

1. Copie of a Leter, 89; Willoughby, 37–8.

2. The first John Paston sued several actions in the names of his associates as did Robert Pilkington: see Paston, nos 77 and 502, and HMC, Various Colls, II, 38.

3. Smyth, I, 106-7; �?Chronicle of John Harestaffe’, 107.

4. Paston, nos 235, 255, 388, 766. A large number of suits seem to have been undertaken merely to harass an enemy. The records indicate that in certain courts, notably the common pleas, very few suits ever progressed to jury verdict, which suggests that they were often tactical ploys intended perhaps to force the opponent into arbitration or to reduce his options in regard to counter suits and courts.

5. ibid., nos 77, 766, xix.

6. Plumpton, HMC, Various Colls, II, 49.

7. Paston, no. 77; HMC, Various Colls, II, 39.

8. Paston, no. xvii; Stonor, nos 291, 311, 313.

9. Smyth, I, 165, 311.

10. HMC, Hastings, IV, 335; Smyth, I, 165.

11. Paston, nos 211, 293. Sir John Paston retained an attorney in the king's bench, whose job it was to take heed of all indictments and other matters hanging there which might affect his employer: ibid., no. lxxi.

12. Plumpton, 149–51.

13. HMC, Various Colls, II, 39.

14. Paston, no. 47.

15. Plumpton, 150–3.

16. However there were three issues in novel disseisin actions: see pp. 70–1.

17. HMC, Various Colls, II, 39, 42.

18. Smyth, I, 310–13.

19. Paston, no. 840.

20. Smyth, I, 316, 325–6.

21. HMC, Various Colls, II, 45; Paston, no. 298.

22. On the behaviour of sheriffs see chapter 2. Sir Robert Plumpton was told in no uncertain terms by his solicitor in February 1499 that since he was to be sued at the next assizes he must secure a copy of the panel: Plumpton, 134. In 1500 when Plumpton was involved in litigation with Sir Richard Empson the latter ordered the Derbyshire sheriff to empanel a jury which would favour him (PRO KB 9/453/87).

23. ibid, 159–61.

24. Smyth, I, 294, 306.

25. HMC, Various Colls, II, 39, 42.

26. Paston, no. lx.

27. Year Books, Mich. 14 Hen. VII pi. 5; Smith, ed. Dewar, p. 99. On consanguinity as grounds for challenge to the array see Spelman, II, 105.

28. HMC, Various Colls, II, 41.

29. Paston, no. 341.

30. ibid, no. 840; HMC, Various Colls, II, 39; Plumpton, 159.

31. HMC, Various Colls, II, 41–2. Sir Robert Plumpton also seems to have sought the non-attendance of jurors in one of his suits: see Plumpton, 161.

32. Paston, no. 158, lx; Stonor, no. 174. Some of the examples of jurors being bribed in K. B. McFarlane (The Nobility of Later Medieval England, ed. J. P. Cooper and G. L. Harris (Oxford, 1973), 117) are more likely to have been the covering of their expenses, or other legitimate payments.

33. Paston, nos xxi, lx; Anonimalle Chron, 142.

34. HMC, Various Colls, II, 42; Spelman, II, 114.

35. HMC, Various Colls, II, 43.

36. 36 �?Chronicle of John Harestaffe’, 85.

37. For a thorough examination of the rivalry in the fifteenth and sixteenth centuries between the various actions of trespass to land and tenements, forcible entry, entry in the nature of an assize, ejectment, and novel disseisin see D. W. Sutherland, The Assize of Novel Disseisin (Oxford, 1973), especially 169–94.

38. Smith, ed. Dewar, 100; Smyth, I, 290, 324–5; Paston, no. 53.

39. According to Smith the judges should be those who heard the earlier case; if the second jury found as had the first the party bringing the attaint paid a fine to the king and damages to the adversary: Smith, ed. Dewar, 122.

40. The statute 15 Hen. VI c. 5 was also intended to stop the delays caused by each of the original trial jurors being allowed to answer �?in whatever county him pleaseth’. In providing �?reward’ for the bringing of an action of attaint fifteenth-century legislators were following the fairly recently established fashion of encouraging parties, who had suffered, to sue those suspected of corruption, negligence, or malpractice, in operating the law. See J. G. Bellamy, Criminal Law and Society in Late Medieval and Tudor England (Gloucester and New York, 1984), 90–112.

41. Smith, ed. Dewar, 122; Paston, nos 151, 224, 281.

42. HMC, Various Colls, II, 51–6; J. Pilkington, The History of the Lancashire Family of Pilkington and its Branches, 1066–1600 (Liverpool, 1894), 41.

43. Proceedings on Pilkington's writ of error were delayed four terms when Thomas Savage was promoted to the archbishopric of York: HMC, Various Colls, II, 55. Pilkington's great-grandfather Ralph had married Katherine Ainsworth, and their son Alexander was for �?mone yeres’ peaceably seised in Mellor (which his mother had brought to the Pilkingtons) until driven out by William Ainsworth, bastard son of Alexander (Katherine's brother) with the assistance of John Savage, the grandfather, and Sir John Savage, the father of Bishop Savage. The claim of the Ainsworths to Mellor was based on what Robert Pilkington said was a forged deed: it purported to be a confirmation of a feoffment of the Mellor lands by John Ainsworth the elder (floruit c. 1390) to William Hyndley, vicar of Glossop. John Ainsworth the younger, principal opponent of Robert Pilkington, was son of William Ainsworth the bastard. He is referred to in Pilkington's narrative as �?negh kynnysman and houshalde servand’ of the Savages, who were, in the phrase of the time, his maintainers: see especially ibid., II, 28–9, 32.

44. ibid., II, 36–7, 39–40, 51.

45. ibid., II, 44, 56; Smyth, I, 311–12.

46. HMC, Various Colls, II, 28–51.

Chapter Four Master and Client

1. See for example C. Plummer's edition of J. Fortescue, The Governance of England (Oxford, 1885), 14–45, W. Stubbs, The Constitutional History of England (Oxford 1898), III, 548–61 and K. B. McFarlane, �?England: the Lancastrian kings, 1399–1461’, in Cambridge Medieval History, ed. C. W. Previté-Orton and Z. N. Brooke (Cambridge, 1911–36), VIII 382–3.

2. It has recently been pointed out that the �?bastard feudal tie’ is now �?less often seen as a cover for crime and a resort of criminals, but rather as an honourable tie sought by respectable gentry everywhere’: M. A. Hicks, �?Restraint, mediation and private justice: George, duke of Clarence as “Good Lord” �?, Journal of Legal History 4 (1983), 56.

3. K. B. McFarlane, The Nobilitiy of Later Medieval England, ed. J. P. Cooper and G. L. Harriss (Oxford, 1973), 115; K. B. McFarlane, �?Bastard feudalism’, Bulletin of the Institute of Historical Research 20 (1943–5), 180. McFarlane seems to have changed his opinions somewhat between 1936 and 1945.

4. C. Carpenter, �?Law, justice and landowners in late medieval England’, Law and History Review I (1983), 215.

5. Sayles vii, 176–7. It was maintenance even to hire an attorney for a colleague or friend, or to offer in court to give evidence for a party, or to pay fees to a party's counsel: Spelman, I, 163, ii, 342–3.

6. 6 Rotuli Parl., I, 96.

7. Sayles iv, p. 134.

8. B. H. Putnam, Proceedings Before the Justices of the Peace in the Fourteenth and Fifteenth Centuries (London, 1938) 12.

9. Chronicle of Guisborough 361–2; A. Harding, �?The origins of the crime of conspiracy’, Transactions of the Royal Historical Society, 5th Series 33 (1983), 97–8. See also Britton, I, 89, 94–5.

10. Council was to examine offenders and make them abandon such practices: 20 Edward III c. 5. This was the beginning of conciliar interest in this group of offences.

11. The act concerned with retaining was 13 Rich. II st. 3. Anyone disseised as a result of the malpractices mentioned in 1 Rich. II c. 9, if he sued successfully under that statue, was to have recovery and damages in addition.

12. There are virtually none in the extant records of the justices of the peace and justices of gaol delivery and they are rare in the fifteenth-century files of the justices of oyer and terminer. Where maintenance does occur in the latter it is really assistance given by accessories or is a general charge (colour) the specific offences alongside being usually extortions. See for example PRO KB 9/267/18, 25.

13. About 10 per cent of the cases included in Baildon were such.

14. This was apparently happening early in Henry VI's reign as 8 Hen. VI c. 4 indicates.

15. See J. G. Bellamy, Criminal Law, pp. 93–4. For an example of a suit (1410) under 7 Hen. IV c. 14 see Sayles, vii, pp. 192–4.

16. See Bellamy, Criminal Law and Society in Late Medieval and Tudor England (Gloucester and New York, 1984) especially chs. 2 and 4.

17. ibid., 10–11, 15.

18. See W. H. Dunham, Jr, Lord Hastings' Indentured Retainers, 1461–1483 (Hamden, Conn., 1970), 74.

19. The Act was not to extend to persons �?for their council given or to be given and their lawful (loiall) service done or to be done … although the person or persons to whom such gift, grant or confirmation is or shall be made be not learned in one law or the other’: Statutes of the Realm II, 428.

20. See ch. 3.

21. cf. Dunham, Lord Hastings' Retainers, 73–6.

22. See ibid., 82–4 and Putnam, Proceedings, 249–50.

23. It is unlikely they originated in the king's bench. In most cases they would have been moved there by writ of certiorari.

24. 24 Rotoli Parl., VI 287–8.

25. Bayne and Dunham, liv–ix. Ten have been found. One was a case or riot, one concerned corrupt conduct on the part of a sheriff, and eight were where juries were prosecuted for perjury (false verdicts).

26. Those who were to judge were the chancellor, the treasurer, the keeper of the privy seal (or two of these three), plus a bishop and a temporal lord of the king's council and the two chief justices.

27. 19 Hen. VII c. 14 in one section shows men used livery without the lord's consent. They apparently were the keener to become a lord's servant because it allowed them to wear livery. This presumably gave them prestige in the community and was influential if they had to appear in court.

28. Recent investigators have tended to regard the statute as finally making the retaining of anyone other than household servants and lawyers illegal, but, as has been pointed out above, this had been done in practice by 1401 and technically in 1468.

29. On the general theme of truncated and summary procedure see Bellamy, Criminal Law, ch. 2.

30. The only legal device of a summary nature lacking was conviction by record.

31. In addition under three of these acts offenders appeared before high officers of state. 19 Hen. VII c. 13 concerned cases where juries of indictment would not find riot because of maintenance and embracery. The Act therefore provided justices of the peace and sheriffs might testify the names of the maintainers and this would serve as an indictment.

32. J. P. Cooper, �?Henry VII's last years reconsidered’, Historical Journal 2 (1959), 117–20; G. R. Elton, �?Henry VII: a restatement’, ibid., 4 (1961), 26. One complaint to the justices cited the Act 42 Edw. III c. 3, which was taken as necessitating a presentment, judicial record, or original writ, before a man was put to answer. This was true, but only if life, limb, or land was at stake. Of course information could not be used to accuse men of felony.

33. Hughes and Larkin I, nos 62, 77.

34. The alteration which 37 Hen. VIII c. 7 made was to award to the informer half of any forfeiture.

35. Although 35 Hen. VIII c. 6 provided for more substantial jurors in private suits so as to defeat maintenance.

36. Lambarde, 383.

37. Bayne found but four cases in which maintenance was alleged (out of 194 apparent cases), and one of illegal retaining, in Henry VII's reign: Bayne and Dunham, xic–cxiv. S. E. Lehmberg counted four of maintenance or embracery: �?Star Chamber, 1485–1509’, Huntington Library Quarterly 24 (1960–1), 207. J. A. Guy reckoned that out of 473 in Wolsey's Star Chamber documented sufficiently to enable us to discover �?the principal “real” matter’ six involved maintenance, champerty, embracery, perjury, or subornation, but there were apparently none where the essence was illegal retaining or livery giving: The Cardinal's Court (Hassocks, 1977), 52–3.

38. NRO 24 Hen. VIII; West Riding Sessions Rolls 1597/8–1602, ed. J. Lister, Yorkshire Archaeological Society Record Series 3 (1888); ERO, 1565–6; Cal. of Assize Records, Surrey Indictments, Elizabeth I 193. Guy found only a single case of maintenance in Star Chamber records of the first regnal year of Elizabeth I and none of illegal livery or retaining. However the regnal year 1601–2 provided thirty-five cases of maintenance, but only two of illegal livery giving: J. A. Guy, The Court of Star Chamber and Its Records to the Reign of Elizabeth I (London, 1985), 57–60.

39. On king's bench and exchequer prosecutions see S. B. Chrimes, Henry VII (London, 1972), 191.

40. On oyer and terminer commissions see ch. 2.

41. See for example Letters … Henry VIII, XVIII (I), no. 623/80; ibid., XIX (I), nos 80/51, 610/72; ibid, XX (I), nos 846/92, 910/51; ibid, XXI (I), 302/38; ibid, XXI (II), nos 200/2, 476/29; Cal. of Patent Rolls, 1547–8, 249; ibid, 1555–7, 280–1.

42. Letters … Henry VIII, XV, no. 776. Cromwell denied he retained anyone other than household servants �?but it was against his will’; Cal. of State Papers, 1581–90, 511.

43. ibid, 1595–7, 242; Hughes and Larkin, II 350, 495–7. The solution proposed by the proclamation of 1583 was for justices of assize and gaol delivery to make sure no retainer sat on a jury, a stipulation originally made by the statutes 8 Edw. IV c. 1 and 3 Hen. VII c. 12.

44. See J. Cowell, The Interpreter (Cambridge, 1607), under �?retainer’. According to �?I. M.’, the author of A Health to the Gentlemanly Profession of Servingmen, who wrote in the reign of Elizabeth I (1598), the reason why the laws were not enforced was that offences were not reported by constables or bors-holders (Sig. 13, J3).

45. See McFarlane, �?Bastard feudalism’, 167; Dunham, Lord Hastings' Retainers, 9, 65; C. Carpenter, �?The Beauchamp affinity: a study of bastard feudalism at work’, English Historical Review XCV (1980), 524; McFarlane, Nobility of Later Medieval England, p. 109. On the thirteenth-century origins of contractual retaining see S. L. Waugh, �?Tenure to contract: lordship and clientage in thirteenth-century England’, English Historical Review CI (1986), 811–39. The contract seems to have been intended to prevent annuities becoming hereditary.

46. McFarlane, �?Bastard feudalism’, 166–7, 173; N. E. Saul, Knights and Esquires: The Gloucestershire Gentry in the Fourteenth Century (Oxford, 1981), 94, 97, 101; Carpenter, �?Law, justice and landowners’, 206, 226; Carpenter, �?Beauchamp affinity’, 514–15, 519.

47. McFarlane, �?Bastard feudalism’, 167.

48. A major reason why a lord found a retainer at that distance so useful was no doubt the latter's influence with the jurors drawn from the hundred where he dwelt.

49. The duke of Norfolk sent for his tenants to help him at the siege of Caister castle in September 1469: Paston, no. 620.

50. Robert Pilkington, referring to the early period of his quarrel with the Savages, tells us that �?divers gentlemen of worship’ offered him aid: HMC, Various Coll, II, 31. These, in the parlance of the time, would have been �?well willers’.

51. Paston, no. lxi.

52. 52 ibid., no. 502.

53. The author of the Profession of Servingmen, who says this, states that servants were incapable of performing manual labour (Sig. 13, J3).

54. Smyth, I, 286.

55. HMC Various Coll, II, 32, 46; see also Paston, no. 601.

56. Plumpton, liv–lv; Letters … Henry VIII, XV, no. 72; Stonor no. 190.

57. Willoughby, 35–6, 57–8; Stonor nos 285, 309; Paston, nos 42, 534. Additional pressure could be brought to bear by having one's wife �?wait on’ the lord's wife: Paston, no. 765.

58. Paston, no. 116.

59. ibid., no. 1003.

60. ibid., no. 373. On another occasion Paston was asked by Oxford to put in a good word with a Norfolk lady on behalf of a close servant, her wooer: ibid., no. 97.

61. Willoughby, 63.

62. Plumpton, cvii.

63. Stonor, no. 285. A correspondent informed John Paston I in October 1450 that Sir Borie Young and one other were offering Sir William Oldhall £1000 on behalf of John Heydon and Sir Thomas Tudenham for his good lordship: Paston, no. 113. There is an instance of the seizing of a manor (Winchesters in Mendelsham, Suffolk) in January 1443 where, after the occupants had been expelled, the entrants in order to have their maintenance immediately enfeoffed no less a duo than Humphrey, duke of Gloucester and William de la Pole, earl of Suffolk: PRO KB 9/266/18.

64. HMC Various Coll, II, 35, 40, 44. In Elizabeth I's reign the earl of Leicester expressed surprise to hear that writing to jurors on a client's behalf was maintenance: Hudson, 72. In 1594 the earl of Essex wrote boldly to Lord Chief Justice Popham concerning a case before him involving the interests of his kinsman Sir Thomas Knyvett and ultimately himself: J. E. Jackson, �?Longleat Papers, No. 4’, Wiltshire Archaeological and Natural History Society Magazine, XVIII (1879), 270.

65. See Paston, no. 28.

66. Nolttingham, II, 384–7.

67. On this aspect of the �?gentlemen's wars’ see Paston, nos 620, 626.

68. Willoughby, 21–2, 37–9.

69. Stonor, no. 309; Paston, no. 531.

70. Plumpton, 33, 45–6, 72–3, 76. Thus the earl of Northumberland referred disputes among his clients to Sir Robert Plumpton, one of his officers and a member of his �?counsell’. The evenly balanced settlement was of course the essence of arbitration; neither party was usually total winner or total loser as would be the situation after trial in a court of common law. There was, however, no rule that a �?treaty’ or �?direction’ (as contemporaries often referred to to arbitration) must of necessity share out the benefits.

71. Even in regard to collecting rents by threat of distress: Paston, no. 502.

72. ibid., nos 175, 176, 178, 179, 180, 181, 201. See also PRO KB 9/271/44 (an indictment of Nowell; all the alleged offences are trespasses).

73. In the fifteenth-century oyer and terminer files the taking of goods of twelve pence or over in value was often rated as trespass rather than, as it should have been, felony. Whether this underrating was the decision of the indicting jurors or of the victim who brought the charge is not clear. Good examples of the diminishing of what appears to have been obvious felony are to be found in PRO KB 9/266/75; PRO KB 9/267/3, 5, 7, 13, 31; PRO KB 9/270A/28, 65.

74. See Letters … Henry VIII, III no. 2132; ibid., IV (II) no. 3033; ibid., IX, 510; ibid., XIV (II), no. 384; ibid., Addenda, I (I), no. 151; Acts of the Privy Council, V, 223; Lanes, and Cheshire Cases 120–1; Brinklow, 44–5. In 1451 seven of Lord Scales �?housold meny’ were indicted for felony as �?strong thefes’: Paston, no. xxvi. I am inclined to view the land wars of the later fourteenth and the fifteenth centuries as being dangerous to the crown in that they might lead to extensive factional dispute high up the social scale but not as being substantial generators of crimes of the type to which the lower classes were generally inclined.

75. HMC, Middleton, 142–6.

76. Letters … Henry VIII, IV (III), nos 6683, 6708.

77. The figures for the early fourteenth century have been calculated from B. A. Hanawalt, Crime and Conflict in English Communities, 1300–1348 (Cambridge, Mass., 1979), 67. Those for the fifteenth century I have drawn from PRO JUST 3/209, 211, 213. Similar fifteenth-century evidence for other counties points in the same direction. It seems unlikely that the decline in felonies tried before the justices of gaol delivery was caused by new competition from the justices of the peace or oyer and terminer commissions.

Chapter five the Search for Royal Favour

1. 1 Collection … Royal Household, passim.

2. A. R. Myers, The Household of Edward IV (Manchester, 1959), 106, 201. The Black Book of c. 1471–2 refers to �?the grete chambre’ and �?the kinges chambre’ (ibid., 90), the former being a presence chamber.

3. Presumably bouche au court was originally the right to dine in the king's hall. If we judge by the Eltham ordinances (c. 30) this was not very attractive to the upper classes, probably because the king dined there only rarely from the fourteenth century. By the sixteenth century the chief officers of the chamber and household sometimes offered open table in their lodgings to which visitors to court were invited: A. P. Newton, �?Tudor reforms in the Royal Household’, in Tudor Studies, ed. R. W. Seton Watson (London, 1924), p. 250.

4. C. F. Richmond, John Hopton. A Fifteenth Century Suffolk Gentleman (Cambridge, 1981), 106; G. R. Elton, �?Tudor government: the point of contact, III. The Court’, Transactions of the Royal Historical Society 5th Ser. 26 (1976), 217; Copie of a Leter, 48, 51.

5. J. Nichols, The Progresses of James I (London, 1828), III, 445.

6. The Black Book refers simply to �?when lords of great estate resort to court’, as though they might do so at their whim: Myers, 101.

7. Cal of State Papers 1591–4 432–3.

8. The experiences of the second John Paston at the court of Edward IV suggests this pattern. See below, p. 113–15. Given-Wilson has argued that in the fourteenth century nobles and gentry went to court largely to supplicate for payment of annuities and war wages: C. Given-Wilson, The English Nobility in the Late Middle Ages (London, 1987), 176.

9. Smyth, I, 291; Willoughby, no. 37; Paston, no. 763.

10. There is little indication in England men could achieve favour by performing for the king acts of political skullduggery as may have been the case on the continent. See S. Anglo, The Courts of Europe (London, 1977), 33, on the writings and advice for courtiers of Louis Guyon.

11. Paston, no. 411.

12. 12 Copie of a Leter, 48–50.

13. Paston, nos 99, 411, 841, 846.

14. ibid., no. 410; Plumpton, pp. 31–2.

15. Paston, nos 612, 846.

16. ibid., no. 410; Stoner, no. 285.

17. Paston, no. 409. The necessity, if they valued their fellows' good opinions, for those at court to spend freely must always have been present. The compiler of the Gest of Robyn Hode, a late-fourteenth-century piece, had his hero, a �?vadlet’ of the king's chamber, spend £100 in fifteen months �?for knyghtes and for squyres / to get hym grete renown’: see R. B. Dobson and J. Taylor, Rymes of Robin Hood (London, 1976), 110.

18. Letters … Henry VIII, XVII, no. 1076; ibid, XVIII (I), no. 837; ibid, XVIII (II), appendix, nos 2, 3; ibid. Addenda, pt II, nos 1553, 1573, 1802. According to regulations made in 1526 those who served the king in the privy chamber were not supposed to seek their own advancement or press the king over suits: Collection … Royal Household, 157.

19. Letters … Henry VIII, XVII, nos 416, 1076; ibid, XVIII (I), no. 837; ibid. Addenda, pt II, nos 1553, 1625, 1802. In November 1472 Sir John Paston �?for as moche as men may not lure none hawkes with empty handys’ offered the duchess of Norfolk £20 �?for an horse and sadeir so she might be an intermediary for him with the duke: Paston no. 706.

20. 20 Letters … Henry VIII, Addenda, pt II, nos 1546, 1716, 1802, appendix. no. 3.

21. ibid. Addenda, pt II, nos 1625, 1784. A royal servant was thought to have a particularly good opportunity to petition the king if the latter should visit a house of which he was the keeper: ibid., no. 1625.

22. This was champerty, which classified as a crime from the time of Edward I. In 1595 Sir Robert Cecil was offered £150 by John Daniel out of grants Daniel hoped Cecil would obtain for him from Elizabeth I: G. Chesters, �?John Daniel of Daresbury, 1544–1610’, Transactions of the Historic Society of Lancashire and Cheshire, C XVI11 (1966), 8–9.

23. R. M Sargent, At the Court of Queen Elizabeth (Oxford, 1935), 12–25. See also Paston, no. 411.

24. The qualities which the upper classes hoped to find in their servants are well described in Profession of Servingmen, Sig. B2-I3. They would also be those the monarch hoped to find in his courtiers. Antoine de la Sale in his Jehan de Saintré written in the 1450s, but purporting to describe the French court of a century earlier, emphasized that success at court went to the handsome and well-mannered. He laid particular stress on the manner in which fine clothing might gain the king's attention for the wearer and even his patronage and financial support: Sale, 49–53.

25. G. von Bulow, �?Journey through England and Scotland made by Lupoid von Wedel in the years 1584 and 1585’, Transactions of the Royal Historical Society, IX (1895), 265; Smyth, I, 291; J. Bellamy, Robin Hood: an Historical Enquiry (London, 1985), 81–2.

26. See G. W. Bernard, �?The rise of Sir William Compton, early Tudor courtier’, English Historical Review XCVI (1981), 757–8 and H. Miller, Henry VIII and the English Nobility (Oxford, 1986), 14–15.

27. Myers, 129.

28. Letters … Henry VIII, XIII (II), no. 755.

29. T. More, The History of Richard III, ed. R.S. Sylvester (New Haven, 1963), 10–11; D. Mancini, The Usurpation of Richard III ed. C. A. J. Armstrong (Oxford, 1969), 67–9; Bernard, 757.

30. Myers, 127; Smyth, I, 314.

31. English kings who had been born the sons or grandsons of reigning monarchs tended to form intimate and long-lasting friendships with those who were close to them in their youth.

32. Paston, xxxviii–xliii. Rather remarkably the activity of the second John Paston at court is a theme which still awaits proper examination.

33. ibid, nos 355, 397, 997.

34. Supplication to a social superior for a favour against someone who had interfered with your property did not necessarily lead to confrontation with the latter like a law suit would.

35. Paston, nos 392, 393, 464, 532. John Paston had been a client and servant of the duke of Norfolk in 1450: ibid, no. 121.

36. ibid, nos 407, 409, 411. Young people of upper-class blood, who were placed as servants in noble or even royal households at th end of the Middle Ages, were usually supported there financially by their families and did not expect reward from their masters: see R. F. Green, Poets and Princepleasers (Toronto, 1980), 41. Their intent was often to obtain a permanent position in the upper reaches of the household. One attraction of being employed in the king's service was that it carried with it protection from being sued: see for example Plumpton, cxvi and Paston, no. 111.

37. Paston, nos 409, 410, 411, 465.

38. ibid., nos 572, 603, 604, 672.

39. ibid., nos 626, 654.

40. ibid., nos 570, 596, 703.

41. Sir John's selling of the manors of Saxthorpe and Titchwell and his borrowing from Roger Townsende, the judge, may have been on this account: Paston, nos 634, 694, 695, 696, 702, 708, 745, 746, 752, 754, 802. Gairdner saw Sir John as a failure: �?Thriftless, extravagant and irresolute, Sir John Paston was not the man to succeed either in money matters or in anything else’: ibid., ccv-ccvi.

42. ibid, nos 717, 729, 750, 775.

43. ibid, nos 750, 753, 763.

44. ibid, nos 701, 703, 714, 762, 765.

45. ibid, nos 763, 764, 765, 768, 778, 779.

46. ibid, nos 512, 513, 514, 517, 518, 530, 533, 534. Saul has recently made the point that there was a relative absence of large-scale gentry violence in fourteenth-century Sussex and that the reason may have been the absence of �?overlapping spheres of magnate influence’ (N. E. Saul, Scenes from Provincial Life (Oxford, 1986), 77). There is, however, no weighty evidence that the reverse was true of fifteenth-century Norfolk. The Pastons, we must remember, because of the nature of their landed interests in the period c. 1450–80 were particularly liable to be subjected to pressures of the land-war sort. Furthermore what is very evident from their correspondence and what has not been commented on is the fact that the family of John Paston was a swarm of legal tigers. They were very literate, very knowledgeable in the ways of the law, and very ready to make use of any opportunity in and out of the courts which their adversaries allowed them. Thus their correspondence can hardly be typical of that of a fifteenth-century gentry family. The very fact so much of it survives suggests it was preserved, indeed, for legal purposes. probably so that the strategic and tactical thinking behind land war moves and the nature of those moves should be remembered at a later date were particular quarrels to revive. The letters would also provide enlightening commentaries on the circumstances behind �?evidences’ in the Paston deed boxes and thus be a source of invaluable and decisive information in the case of later law suits.

47. ibid, no. 579.

48. ibid, nos 600, 603, 604, 815, 817, 818. Sir John's delay in marrying amply demonstrates his appreciation of the strategic value of remaining in the marriage market while heavily engaged in the struggle for land.

49. The general content of petitions to the kind in the early fifteenth century is discussed by J. L. Kirby in Cal. of Signet Letters, especially 8–9.

50. Stow, 342; Chr. Ch. Letters, 70; Pastori, no. 612. There is a reference to Elizabeth I receiving bills (i.e. petitions) when going to chapel. She gave them to a master of requests attendant on her person: Leadam, xii.

51. Elton, �?Tudor government’, 216; Pastori, no. 410.

52. J. G. Bellamy, �?Justice under the Yorkist kings’, American Journal of Legal History 9 (1965), 136–9; Ingulph's Chron. 484; Paston, no. 612.

53. J. Raine, The Priory of Hexham, I (Surtees Society, 44, 1864), cxiii-cxiv; Paston, no. 841.

54. Paston, nos 753, 764.

Chapter Six the end of Bastard Feudalism

1. J. A. Guy, Court of the Star Chamber and its Records to the Reign of Elizabeth I (London, 1985), 57–9; E. Skelton, �?The Court of Star Chamber in the Reign of Elizabeth’ unpublished M. A. thesis (University of London, 1931), I, 194–6.

2. T. G. Barnes, �?star Chamber litigants and their counsel, 1596–1641’, inj. H. Baker (ed.), Legal Records and the Historian (London, 1978), 13; H. E. I. Philips, �?The last years of the Court of Star Chamber 1630–41’, Transactions of the Royal Historical Society, 4th Ser., 21 (1939), 116.

3. See 'staffordshire Quarter Sessions Rolls, 1581–97’, ed. S. A. H. Burne, in William Salt Archaeological Society, 3rd Ser., 1929 (1931), 1930 (1932), and 1932 (1933), �?West Riding Sessions Rolls, 1597/8–1602’, and Minutes of Proceedings.

4. Minutes of Proceedings, 44, 91, 98, 101, 109–10, 113; F. G. Emmison, Elizabethan Life: Disorder (Chelmsford, 1970), 119–24; BL. Lansd. MS 620f. 3v. In Elizabethan Wiltshire there was usually a single indictment for either forcible entry or riot at each quarter sessions, which suggests a token accusation by the grand jurors in response to the list of crime catagories which comprised the justices’ charges.

5. Acts of the Privy Council, x, 325; William Salt Soc, 3rd Ser, 1912, 206–7; Les Reportes … Hawarde, 34–5; HMC, Salisbury, v, 515–18, XII, 410–12.

6. I have dealt with these developments in extenso in my forthcoming book Felony in England, 1300 to 1600.

7. Notably Lord Dacre of the South in 1541 and Lord Stourton in 1557.

8. Probably not only because of the greater certainty of punishment for felony or misdemeanor than hitherto but because they might be left by their leader to pay their own fines: see Smyth, I, 310.

9. Philips, �?The last years’, 116; BL. Lansd. MS 620f. 3v.

10. 10 Yorks. Proc, 50–6. The Sacheverell-Dorset case is noted by J. A. Guy in The Cardinal's Court, (Hassocks, 1977), 60–1.

11. The nature of the solutions attempted suggests the involvement of a person with legal expertise who had lived for some time abroad.

12. I have considered the employment of non-traditional criminal law procedures in this period at some length elsewhere. See Bellamy, Criminal Law and Society in the Late Medieval and Tudor England (Gloucester and New York, 1984), particularly chs 1, 2, and 5.

13. ibid., 11–13, 15–19, 46.

14. ibid., 17–18.

15. On attempts to get specific instances of felony rated as treason (by Act) see J. G. Bellamy, The Law of Treason in England in the Later Middle Ages (Cambridge, 1970), p. 125.

16. It can be argued that Henry VII's desire to remove the evils of bastard feudalism very nearly led to the development of a new criminal law procedure of a truncated or summary nature: see my remarks in Criminal Law, 4–6, 15–19.

17. See the statutes 25 Edw. Ill st. 5 c. 4 and 31 Hen. VI c. 2. There were objections raised to writs of privy seal in parliament in 1347, 1363, 1377, 1384, 1401, 1402, 1406, 1421, and 1427.

18. Bayne and Dunham, lxiv; G. R. Elton, The Tudor Constitution, Documents and Commentary (Cambridge, 1960), 160. It is worthy of note that those who drafted the statute 5 Eliz. c. 9 on perjury by witnesses believed 11 Hen. VII e. 25 was still in operation.

19. Another statute worthy of notice is 8 Hen. VI c. 4, which allowed justices of assize and justices of the peace to attach those suspected of illegal livery and try them by examination. It was an obvious precursor of 8 Edw. IV c. 2.

20. Guy, The Cardinal's Court, 72. There must also have been some reliance, where offenders were of less prominent status, on indictments before the quarter sessions.

21. Eng. Reports, 5 Coke 51a. BL Harl. MS 6847 f.133 seems to have a rough draft of a bill to enlarge the jurisdiction of the Star Chamber to offences mentioned in 3 Hen. VII c. 1 and 21 Hen. VIII c. 20, such cases to have priority over private suits. This supports the view that there were very few criminal prosecutions in Star Chamber and that the act of 1529 was ineffective.

22. On the origins and early history of riot see Bellamy, Criminal Law, 54–67.

23. Guy, The Cardinal's Court, 52–3; Guy, Court of the Star Chamber, 52–3; J. A. Guy, The Public Career of Sir Thomas More (Brighton, 1980), 51. Guy does not explain in exact terms what he takes to be a �?title’ case. There is evidence from the mid-fifteenth century that those who sought the indictment of foes who had entered on them sometimes saw to it that their title was stated in the indictment. Should the accused be convicted their title was then of record in the king's court: see PRO KB 9/267/12, 34.

24. 24 In the later years of Elizabeth I, so it has been argued, Star Chamber suits were often brought for purposes of harassment or counterattack, and were intended to put defendants to considerable cost. They were also intended sometimes to discover conspirators, secrets, and especially evidence relevant to a case already before the common law courts. Such evidence �?could not readily be used elsewhere, thus effectively arresting proceedings in another court’. Another intent of the collateral action in Star Chamber was to impeach one's adversary's chief witness of perjury but most common was the impeachment of procedure, evidence, or verdicts, in other courts through the impugning of deeds, wills, or by charging perjury, fraud, maintenance, or embracery: see Barnes, �?star Chamber litigants’, Historian, 18–21.

25. We know very little about the very crucial matter of the percentage of winners and losers among complainants. Legal historians, like lawyers, are prone to emphasize such variables as choice of action, the role of counsel, and the facts of the case, and to underestimate the greater truth, which was that certain courts at certain periods gave the complainant a better chance of defeating the defendant than did other courts. We may speculate that Wolsey's Star Chamber was popular because it gave the complainant just such an edge. In litigation before Wolsey in chancery the success rate of plaintiffs is said to have been as high as 61 per cent in decided cases: J. A. Guy, Christopher St German on Chancery and Statute (Seiden Society, Supplementary Series, 6, 1985), 68, quoting the findings of Dr F. Metzger.

26. BL Harl. MS 2143f. lv; HL, Elles. MS 2652 f. 17; BL Harl. MS 1226 f. 18b.

27. My estimates here are based largely on the Star Chamber cases in print. Although cestui que usent were complainants in relatively few cases a use was not infrequently behind the grievances of lessees and tenants in tail. I am not attracted by the argument that the title cases which came before the Star Chamber were those where there was genuine violence or complexity: c.f. Guy, Public Career of More, 57.

28. However, in theory, if one party, who had occupied land in contention, was suspected by the other of then enfeoffing others to his use in order to conceal his misdeed he was permitted by the statutes 1 Rich. II c. 9 and 4 Hen. IV c. 7 to bring an assize of novel disseisin against the disseisor claiming the enfeoffment was obstruction. On the inability of the cestui to bring an action of trespass see Eng. Reports, Keilway, 42 and 46 (referring to cases Pasch. 17 Hen. VII pl. 7 and Mich. 18 Hen. VII pl. 2). The attraction of the Star Chamber for cestui que usent does not seem to have drawn the attention of modern investigators nor does the plight of the lessee (see below).

29. Spelman, II, 181–2.

30. St German, Litle Treatise, 341–2. Uses in tail were obviously common by the beginning of Henry VII's reign. Their rise, one imagines, may have been a response on behalf of senior land holders to the arrival of common recovery in the second half of the fifteenth century. Alienation by cestui que usent in tail was the issue in an important case in 1488 (Year Books, Mich. 4 Hen. VII pl. 9) and another in 1528 (ibid., Trin. 19 Hen. VIII pl. 11)

31. See Spelman, II, 195–200.

32. The Acts 1 Rich. III, c. 1 and 4 Hen. VII e. 17 both treated the use as an integral part of the common law. There had been statutes touching uses less directly in the reigns of Richard II and Henry IV.

33. See E. W. Ives, �?The genesis of the Statute of Uses’, English Historical Review 1XXXII (1967), 689–91, and especially Year Books, Pasch. 27 Hen. VIII pl. 22, which shows (7–10) counsel for the defendant argued that the jury's interpretation of the law was quite erroneous, that uses were well known at common law and had never been challenged until now, and that since the will had been declared nothing illegal had been done. The crown may have been particularly grieved that the Dacre will required money to be raised for the payment of the deceased's debts and when raised conveyed to the heir, and thus was collusive: see S. F. C. Milsom, Historical Foundations of the Common Law (London, 1969), 189.

34. What was remarkable about this judicial conference was that the opinion of Thomas Cromwell (at that time king's secretary and master of the rolls), was allowed to count on the matter at issue as being equal in weight to that of one of the puisne justices. Furthermore the latter had been obliged to attend the hearing in chancery as observers, and to give their opinions �?by appointment’ of Chancellor Audley and Cromwell; procedure which seems quite novel. The best report is in Spelman, I, 228–30.

35. St German's Doctor, 223–4.

36. The two schemes were printed by W. S. Holdsworth (History of English Law (Boston, 1924–6), IV, 572–7).

37. The statute 19 Hen. VII c. 15 made cestui que usent liable to execution against them in regard to statutes staple and merchant.

38. 38 Hen. VIII c. 36 decreed fines were to be a sufficient bar against persons claiming land by force or any entail or use. Fines were by their nature an agreement or compromise and thus those with a legal interest had already been consulted. Also worthy of notice is 34/5 Hen. VIII c. 5, which forbade a tenant in tail from discontinuing an estate tail by means of a will.

39. Holdsworth, History of English Law, vii, 546–7, for the socially revealing bill against perpetuities, which received one reading in the parliamentary session of 1598.

40. On the early history of witnesses see Bellamy, Criminal Law, 33–7.

41. On the incidence of these offences in the Star Chamber see Skelton, Court of Star Chamber, I, 194–6, and Guy, Court of the Star Chamber, 60.

42. As with perjury there are few forgery cases to be found in Elizabethan assize records. The small number there are concern the forging of licences to beg and for the purposes of cozening.

43. This was in fact the second statute specifically on forgery. The first, 1 Hen. V c. 3, was mild, simply permitting private suits at common law against a party suspected of forgery in order to recover damages.

44. Skelton, Court of Star Chamber, I, 194–6; Guy, Court of the Star Chamber, 58, 60.

45. It should perhaps be pointed out here in respect of the justices who presided in the criminal courts which employed juries (i.e. under the common law) that there is little evidence from the fourteenth or fifteenth centuries of particular justices who are able to influence the juries towards a level of convictions above the norm for the period and area where the trials occurred.

46. A recent contribution to the history of juries, Twelve Good Men and True. The Criminal Trial Jury in England, 1200–1800, ed. J. S. Cockburn and T. A. Green (Princeton, 1988), is very welcome. Unfortunately it does not deal specifically with the jury in the context of the segment of crime connected with the �?gentlemen's wars’.