Henry VII

by S B Chrimes

  However little Henry VII’s government may have interfered with the common law courts, and whatever the development of the equitable jurisdiction of Chancery may have been, there is no doubt that his government concerned itself actively with the work of the justices of the peace. By 1485, we are told, ‘the work of defeudalizing local government had been to a great extent accomplished, and the justices of the peace were undertaking the administrative work as well as the judicial duties of the counties, not only superseding the feudal lord but encroaching very considerably on the sphere of the sheriff’.2 We are not here concerned directly with the administrative work of the justices, but it is worth bearing in mind that the importance of the sheriffs tended to decline in this period, that their reliability diminished, and that their malpractices attracted the vigorous intervention of Henry VII’s government.3 There were to be no lords lieutenant of counties before 1549,4 and the concern with which Henry VII’s government viewed the importance and potentialities of the justices of the peace is reflected in the fact that every parliament of the reign passed one or more statutory provisions relevant to the work of the justices. As many as twenty-one out of the total one hundred and ninety-two statutes of Henry VII’s reign5 had something to say about the justices, and one of these6 represented a major attempt to oblige the justices to perform their duties properly.

  By 1485, the justices had in theory all the powers as criminal judges that they had had by 1380, with some notable additions, but in practice the justices of Assize were encroaching upon some of their highest judicial powers. But in local government as Crown-appointed and Crown-controlled officials and administrators of a great body of legislation, much of it economic, they were superseding the old institutions, both criminal and feudal. By then the justices of the peace, although still acting in some degree in competition with other judicial commissions and controlled by writs from King’s Bench, or more rarely from Chancery, or the council, had made good their position. The commons had been successful in pressing for the extension of the judicial powers of the justices, but had failed in trying to get them elected in the county courts. The development of quarter sessions helped to undermine the criminal jurisdiction of the county courts and the sheriff’s tourn and courts of private jurisdiction, even though it was the judges of trail-baston, ‘whose descendants were the justices oyer et terminer of the fifteenth century, who ‘stole the thunder’ of the justices in eyre.1

  It was doubtless no accident that the first printed treatise on the justices of the peace, and the first reading in the inns of court on their position date from Henry VIFs reign. The anonymous Boke of Iustyces of peas, first printed in 1506, ran through thirty-two printings before 1599. This treatise concerned itself mainly with summaries of statutes up to 11 Henry IV relevant to the justices, with precedents, forms of writs and indictments, and charges to jurors. The most notable of the few expressions of the author’s opinions is to the effect that ‘A justice of the peace is a statute creature, and ought to act no further than the statutes empower him’. The work is mainly backward-looking, and is not reliable for a picture of the practice of the early sixteenth century. It no doubt served as a manual for the justices, and the frequency of its reprinting shows that it was popular for the purpose. Fitzherbert’s better known L’office et auctoryte des Iustyces de peas did not appear until 1538, in French, but then in English in eleven subsequent editions; Lambard’s oft-quoted Eirenarcha not until 1581.2

  Three years before the anonymous Boke appeared, Thomas Marowe gave his reading on ‘De pace terre’, which, however significant in itself, received no mention in the Boke, nor in Fitzherbert’s treatise, and indeed no mention at all for half a century, though it came into its own in Lambard. A reading in the inns of court was not suitable as a manual of practice, and although Marowe’s exists in eleven manuscript copies, it was destined not to be printed until Professor Putnam produced her edition in 1924.3

  Marowe’s reading, though providing a substantial analysis of the history of the office, a descriptive account of the difference between the work of the conservators and the justices of the peace, and of the authority of the justices, is remarkable for its omissions. It quotes no writs or indictments, no list of statutory offences falling into the justices’ scope, no account of their administrative duties, no adequate account of their powers outside sessions. At best it can be described as a legal treatise for such justices as might be learned in the law. But of course its primary purpose was to provide an erudite reading in the Inner Temple, and we may doubt whether Marowe had any other purpose in mind.

  Marowe himself died on 5 April 1505, and his early death may account for the obscurity which befell his work. But there may have been other reasons for its neglect. Marowe had succeeded Frowike as common pleader of London in 1491, but became under-sheriff of London, for some years jointly with Edmund Dudley, and both of them were appointed to the degree of serjeant-at-law in Michaelmas term, 1503.1 Marowe’s friendship with Frowike, the future eminent chief justice, may not have saved him from the odium later to be visited upon his closer associate, Dudley, There is no evidence of any unpopularity of either of them in London during their terms of office, and both were rewarded with pensions by the City council, but in view of the later turn of events it is perhaps unnecessary to seek further for the reasons why Marowe’s reading remained in manuscript.2

  But our primary concern here is to examine the extent to which Henry VII’s parliaments made statutory provision for justices of the peace. The twenty-one relevant enactments, taken as a whole, reveal the extent to which the government relied upon the justices to perform numerous duties, some old and some new, including the matter of dealing with riots, unlawful assemblies, retainers, and the extortions of sheriffs; but also reveal the anxiety and doubts of the government as to whether the justices actually performed these duties properly.

  Among the comparatively minor duties reiterated or imposed may be reckoned the task of examining the accused on information laid of persons hunting in forests in disguise;3 of taking inquests to enquire into concealments by other inquests assessing amercements;4 of taking recognizances for the keeping of the peace and of certifying the same into Chancery or King’s Bench or Exchequer;5 of allowing bail for persons arrested on suspicion of felony only under certain conditions;1 of enquiring into ‘damnable bargains grounded in usury, coloured by the name of new chevisaunce contrary to the law of natural justice’;2 of hearing and determining defaults in weights and measures;3 of hearing complaints against collectors of fifteenths and tenths;4 of punishing keepers of houses for dicing and other unlawful games and regulating ale houses;5 of reviewing panels of inquests returned by the sheriff for the king;6 and of panels of inquests set up to enforce the laws against perjury;7 of assessing subsidies and of being associated with the commissioners;8 of compelling officers to accept certain coins as legal tender;9 of assigning persons as searchers of pewter and brass;10 of enquiry into destruction of deer and herons and of committing offenders to prison pending surety for payment of consequential forfeitures.11

  Five acts referred to the duties of the justices in regard to riots, unlawful retainers, and the extortions of sheriffs. Statute 11 Henry VII, c. 312 alleged that certain offences, such as riots, unlawful assemblies, maintenance, embracery, retainers, giving and use of liveries and tokens, not to mention the taking of wages in excess of lawful standards, the playing of unlawful games, or the wearing of inordinate apparel, went unpresented and unpunished because of the bribery and corruption of juries; it empowered the justices to proceed against committers of such offences upon information, whether they were indicted or not, except in treason, murder, or other felonies, provided the offences were committed in their respective counties. In the same parliament the commons prayed that procedure in cases of riots, routs, and unlawful assemblies should be improved, and it was enacted that the justices, whether on complaint or indictment, should make proclamation of the leaders in such activities in the next general
sessions to appear, or, failing their appearance, should commit them to custody. If the offenders could not be seized, then they should stand convicted and be bound over to keep the peace. If the riots were heinous, the offenders were to be kept in prison until surety on their behalf had been forwarded to king and council. The record in such cases was to be certified under the seal of the custos rotulorum and be likewise sent to king and council. 19 Henry VII, c. 13,1 took the point further by insisting that the justices should specify the names of such offenders under penalty of £20 for each omission, and that such specification should be equivalent to the verdict of a jury. 19 Henry VII, c. 14,2 sought to enforce acts against unlawful retainers. The justices were at each general sessions to be held four times a year to send warrant to the sheriff to return a panel of twenty-four jurors having lands of the annual value of £5 or 40s at the least, to enquire into all unlawful retainers, to enquire into such offenders and certify the cases to the King’s Bench under penalty of £100 for each omission. Such offenders might be proceeded against before the council in Star Chamber, King’s Bench, or the king and his council. Any informer might lay information of such cases before the chancellor, the King’s Council in Star Chamber, King’s Bench, or the king and his councillors attendant upon him, provided that three councillors, including two lords spiritual and temporal, were present. Informers were to get costs and reward. Extortions by sheriffs, undersheriffs, and sheriffs’ clerks were dealt with by 11 Henry VII, c. 11.3 The justices were to receive complaints of this kind of abuse and were given power to examine the offenders, or to forfeit 40s for each default or failure to certify into the Exchequer.

  Notwithstanding these numerous statutory intentions to rely upon the justices of the peace in such a variety of ways, early in the reign another statute then enacted could hardly be construed as a token of the government’s confidence in their reliability. 3 Henry VII, c. 12,4 expressed the king’s great displeasure at the negligence, misdemeaning, and favour shown by the justices, whereby the laws and ordinances made for the ‘politique wele peace, and gode rule and for the profit, surety and restful living of his subjects’ are not duly executed. For to him ‘nothing is more joyous than to know his subjects live peaceably under his laws and increase in wealth and prosperity’. Therefore it was enacted by authority of parliament that every justice of peace should cause to be proclaimed four times a year in general sessions, under penalty of 40s for each and every omission, a proclamation in the king’s name, to the effect that the king (considering daily how his coinage was counterfeited, murders, robberies, felonies occur, how unlawful retainers, idleness, unlawful games, extortions, misdemeaning by sheriffs, escheators, and others were common, all because the said laws are not put in execution as they ought to be by the justices) charged all justices of the peace to execute their commissions, under threat of being dismissed. All persons aggrieved by the mischiefs of the justices might complain to some other justice, or if not able to obtain redress, to any justice of Assize, or to the king, or to the chancellor. The king would make enquiry into such allegations, and put offending justices out of the commission and impose further punishments.

  That this statute was drastic in intention cannot be doubted, and its candid exposure of the shortcomings of some at least of the justices was unflattering to their reputation. But how far it was justified by the facts, and how far it was effective in gaining its objectives cannot be estimated until much further research into the activities of the justices of the peace for the reign has been undertaken. The unusual phrasing of its preamble, however, suggests strongly that although the king’s government was largely dependent upon the justices of the peace for the implementation in the shires of many parts of the law, it felt no great assurance that its principal instruments for the enforcement of law and order in the localities could be relied upon. If this is a fair inference, it follows that Henry VII’s government did not notably succeed in solving the perennial problem that had beset his predecessors – how to enforce the laws of the realm.

  1 For references, see above, p. 97.

  2 Bayne, op. cit. lxxv. In ninety-three references to Star Chamber in the period, all except three are references to a location not to a tribunal. Some useful points are made by S. E. Lehmberg in ‘Star Chamber, 1485–1509’, Huntington Library Quarterly, XXIV (1960–1), 189–214.

  3 Bayne, op. cit. xxx.

  1 See Bayne, op. cit. lxxiii–clxxiv, and texts 1–170.

  2 ibid. ex.

  3 ibid, lxxiv, cxxix–cxxx. It has to be remembered, however, that the total number of extant cases before the council in Star Chamber for the period is not more than 194. Of these 115 were cases of rioting initiated by private suitors.

  1 ibid, cxi–cxliv.

  2 ibid, clxv–clxxii.

  3 ibid, clxxiii–clxxiv.

  4 R. Somerville, ‘Henry VII’s “Council Learned in the law”’, E.H.R., LIV (1939), 427–42; Bayne, op. cit. xxv–xxviii.

  1 See above, p. 99.

  2 See above, p. 117.

  3 Bayne was mistaken in supposing that this was the Sir John Mordaunt who succeeded Bray as chancellor of the duchy from June to his death in September 1504. See Somerville, loc. cit. 428, fn. 7.

  4 Foss, Judges of England, Tabulae Curiales, sub nom.

  5 C.P.R., II, 546, 560, 627; S. E. Thorne, Praerogativa regis (1949), xxviii, fn. 108; and Readings and moots at the inns of court in the fifteenth century, S.S., 71 (1954), xii. See also below, p. 210. Somerville, loc. cit. 429, fnn 3, 4, 6, was mistaken in describing all these three men as justices under Henry VII.

  1 As Bayne pointed out, op. cit. xxv, it is very doubtful whether he can have been, as Somerville queried, loc. cit. 422, fn. 5, the well-known William Smith who was a king’s councillor and later bishop of Lincoln. This William Smith had become bishop of Coventry and Lichfield as early as 1493, but he is not, in accordance with normal practice, designated a bishop in the record. Bayne suggested, ibid., with plausibility, that he might have been the William Smith who was arrested as an accomplice of Empson and Dudley and imprisoned on Henry VII’s accession. But although this Smith received grants under Henry VII, he seems never to have been more than a groom of the Robes, an office hardly compatible with the status of a member of the Council Learned. But it has to be remembered that it cannot be asserted categorically that either Smith, Brudenall, Coningsby, or Hesketh was so reckoned, see Somerville, loc. cit. 429.

  2 Roger Leybourne, a fellow of Pembroke Hall, Cambridge, c. 1490, had sufficient legal training to be admitted a notary public by 1496, and vicar-general of Durham from 1500; Emden, Biog. Reg. Camb., sub nom.

  3 See above, p. 110.

  1 See below, p. 209.

  2 I. S. Leadam (ed.), Select cases in the court of Requests, 1497–1569, S.S. 12 (1898). Many points in the editor’s introduction are superseded; cf. Bayne, op. cit. xix–xx, xxv–xxviii, xxxii, xxxvii–xl, lxxvii, lxxix, lxxxv; J. F. Baldwin, The King’s Council, 442–6

  1 C.P.R., 1476–1485, 413, 496, 535.

  2 Leadam, op. cit. x–xi.

  3 For lists of names of the councillors in the ninth to fourteenth years of Henry VII, see ibid, cii–ciii; Bayne, op. cit. xix–xx.

  4 ibid, xxxvii–xl.

  5 Leadam, op. cit. x–xi, following Lambarde.

  1 Bayne, op. cit. lxxxv, mentions instances of the transfer of cases from Requests to Star Chamber. Only five cases from Henry VII’s reign are printed by Leadam, op. cit. 1–14.

  2 Numerous commissions of this sort are to be found in C.P.R., passim. A good example is the commission to Robert Sherborne, dean of St Paul’s (see above, p. 117) and Amias Poulet, knight of the body, to cite before them and examine the adherents in Somerset, Dorset, Wilts, and Hants, of Michael Joseph and Peter Warbeck, to pardon those who surrendered and fine or imprison others (C.P.R., II, 203). The ruthlessness of these commissioners is commented on at length by Polydore Vergil (ed. Hay), 108.

  3 For references, see above, pp. 99–100. The indispensable dis
cussion now is in Bayne, op. cit. 1–lxxii. Bayne made it quite clear that the tribunal was nothing to do with the council in Star Chamber, but was not equally emphatic that it had nothing to do with the council either.

  1 St. 3 Henry VII, c. 1; S.R., II, 509–10. The terms of the act are perfectly clear and self-explanatory. Printed by Bayne from the MS., op. cit. 60; and in modernized spelling by J. R. Tanner, Tudor constitutional documents (1930), 258–9; and G. R. Elton, The Tudor constitution, 163–4.

  2 For references to relevant acts, see C. Plummer (ed.), Fortescue’s Governance of England (1885), 27–30; W. Stubbs, Constitutional history, III (5th ed., 1903), 278–80; Bayne, op. cit. lii–liii; the fullest discussion of statutes against livery and maintenance is in W. H. Dunham, Lord Hastings’s indentured retainers (1955).

  3 See above, p. 64.

  1 Printed by Bayne, op. cit. 60–1.

  2 ibid, liv–lix, and 60–70.

  3 ibid, lxxii.

  4 21 Henry VIII, c. 20; S.R., III, 304; printed in J. R. Tanner, Tudor constitutional documents (1930), 259–60. Tanner pointed out that in this act the authority to call persons before the tribunal was to be by writ of Privy Seal, whereas in 1487 it was by writ or Privy Seal. The change of word, whether deliberate or inadvertent, had the effect of excluding the use of letters of Privy Seal, which do not appear to have been used in this connection up to 1529.

  5 It is questionable whether the provisions of the act of 1487 should be regarded as an experiment (Bayne, op. cit. lxi), even though another act of the same year set up a court to deal with offenders in the Household (3 Henry VII, c. 14), and an act of 1495 set up a special court to deal with corrupt jurors (11 Henry VII, c. 25).