Henry VII

by S B Chrimes

  1 Materials, I, 13. But Y.B. 1 Henry VII, Mich., pl. 4, implies that all the justices’ patents were made on 26 August. For the justices generally, see E. Foss, Tabulae Curiales (1865), 44–5; Judges of England (1870), sub nom. For the serjeants, see A. Pulling, The order of the Coif (1884).

  1 See E. W. Ives, ‘Promotion in the legal profession of Yorkist and early Tudor England’, L.Q.R., 75 (1959), 348–63. The number apparently never exceeded fourteen at any one time in this period, and might fall much lower.

  1 See E. W. Ives, ‘The reputation of the common lawyer in English society, 1450–1550’, B.H.J., VII (1959–60), 130–61.

  2 See M. Hemmant (ed.), Select cases in the Exchequer chamber before all the justices of England, I, 1377–1461, (S.S. 51, 1933); II, 1461–1509 (S.S. 64, 1943). There are instances of such meetings in the Parliament chamber, in the Inner Star Chamber, at the Blackfriars, and in the Whitefriars.

  1 Hemmant, op. cit. I, xix, xxv.

  2 Y.B. I Henry VII, Mich., pl. 3; extract in Chrimes, English constitutional ideas in the fifteenth century, 378, No. 72.

  3 Y.B. I Henry VII, Mich., pi. 5; Chrimes, op. cit. 378, No. 74; cf. above, p. 60.

  4 Y.B. I Henry VII, Hil., pl. I; Chrimes, op. cit. 379, No. 75; cf. also above, p. 66.

  5 Y.B. I Henry VII, Hil., pl. 5; Chrimes, op. cit. 379, No. 76.

  1 Y.B. 1 Henry VII, Mich., pl. 5; Chrimes, op. cit. 378, No. 73.

  2 Y.B. 1 Henry VII, Hil., pl. 2; Chrimes, op. cit. 381, No. 78.

  3 Y.B. 1 Henry VII, Mich., pl. 2; Chrimes, op. cit. 377–8, No. 71.

  4 Y.B. 10 Henry VII, Mich., pl. 20; Chrimes, op. cit. 386, No. 93.

  5 Y.B. 4 Henry VII, Mich., pl. 11 ; Chrimes, op. cit. 382, No. 81.

  6 Hemmant, op. cit. I, xxxvi.

  7 ibid, lxvii.

  8 ibid. II, 115–24; Y.B. 1 Henry VII, Trin., pl. 1.

  1 cf. G. R. Elton, The sources of history, England 1200–1640 (1969), 54–7.

  2 Marjorie Blatcher, ‘The working of the court of King’s Bench in the fifteenth century’, unpublished Ph.D. dissertation (University of London, 1936). A summary of this was published in B.I.H.R., XIV (1937), 196–9. The dissertation was based upon a meticulous investigation of the sources for Michaelmas term, 1488.

  1 Dr Blatcher, 356–7, in the dissertation above mentioned, drew attention to Belknap’s power as surveyor of the King’s Prerogative (see above, p. 130) to enquire into lands of all persons convicted of felony and of outlaws, and to seize them for the Crown. He was to be remunerated with a ninth of lands so seized, and his deputies were to receive a tenth of the residue (citing P.R.O. Exchequer, Misc. Acts, E 101/517/14–15). The result of this pressure was to enable inlawries to be made expensive. Holinshed, Chron., III, 553, says that Empson persuaded the king that it was lawful for pardons for outlaws not to be issued by Chancery until half the issues of all their lands had been paid into the king’s use for two years. Dr Blatcher suggests that this profit may have been equivalent to the forfeiture of goods and chattels if the outlaws had been convicted of felony (op. cit. 357). But of course they had not been actually convicted.

  2 The court of Common Pleas in fifteenth-century England (New York, 1947).

  3 ibid. 239.

  4 See below, p. 191 if.

  1 See P. H. Winfield, The chief sources of English legal history (1925), 321–4; cf. S. E. Thorne, preface to D. E. G. Yale (ed.), Hake’s Epieikia (1953), vi, Only after the appearance of the very influential Doctor and student … did English lawyers generally begin to differentiate between law and equity’.

  2 Margaret E. Avery’s article, ‘The history of the equitable jurisdiction of Chancery before 1460’, B.I.H.R., XLII (1969), 129–44, is indispensable. W. D. Baildon, Select cases in Chancery, S.S., X (1896), is inadequate and useless for the late fifteenth century. The generalities in W. S. Holdsworth, History of English law, V (1924), 215–18, are of no precise value for the reign of Henry VII. The latest legal history exposition, S. F. C. Milsom, Historical foundations of the common law (1969), 74–85, carries us no further on this subject. W. J. Jones, The Elizabethan court of Chancery (1967), is valuable for the later Tudor period. Stuart E. Prall, ‘The development of equity in Tudor England’, American Journal of Legal History, 8 (1964), is a useful generalized article, but has nothing to contribute on the subject before Doctor and student.

  3 Avery, loc. cit. 129.

  4 ibid, passim.

  1 See W. T. Barbour, The history of contract in early English equity (1914), a valuable monograph which does not go beyond Richard III’s reign.

  2 Avery, loc. cit. 135, 143.

  3 See below, p. 181.

  4 Avery, loc. cit. 143.

  1 Barbour, op. cit. 152, citing Y.B. 4 Henry VII, 4–8.

  2 Gladys Scott Thomson, Lords lieutenant in the sixteenth century (1923), 3. The present writer provided in Holdsworth, History of English law, I, 7th ed. (1956), a summary of recent work on the justices, 24*–29*, supplementing 285–95.

  3 See below, p. 187.

  4 Gladys Scott Thomson, loc. cit. 24.

  5 See below, p. 168.

  6 4 Henry VII, c. 12; see below, p. 187.

  1 Holdsworth, op. cit. 28*. The most important study of the early history of the justices of the peace is B. H. Putnam, Proceedings before the justices of the peace in the fourteenth and fifteenth centuries, Edward III to Richard III (1938).

  2 See B. H. Putnam, Early treatises on the practice of the justices of the peace in the fifteenth and sixteenth centuries (1924), 6–42.

  3 ibid. 145–222.

  1 See B. H. Putnam, 134–5.

  2 cf. generally, D. M. Brodie, ‘Edmund Dudley, minister of Henry VII’, T.R.H.S., 4th ser., XV (1932), 133–62.

  3 1 Henry VII, c 7 (1485–6); S.R., II, 505–6.

  4 3 Henry VII, c. 1 (1487); S.R., II, 509–10.

  5 3 Henry VII, c 2; S.R., II, 512.

  1 3 Henry VII, c. 3; S.R., II, 512–13.

  2 3 Henry VII, c. 5; S.R., II, 514.

  3 7 Henry VII, c. 3 (1491–2); and 11 Henry VII, c. 4 (1495); S.R., II, 551–2, and 570.

  4 7 Henry VII, c. 11 ; S.R., II, 551–2.

  5 11 Henry VII, c. 2; S.R., II, 569.

  6 11 Henry VII, c. 24; S.R., II, 598.

  7 11 Henry VII, c. 25; S.R., II, 589.

  8 12 Henry VII, c. 13; S.R., II, 644.

  9 19 Henry VII, c. 5; S.R., II, 650.

  10 19 Henry VII, c. 6; S.R., II, 652.

  11 19 Henry VII, c. 13; S.R., II, 655.

  12 ibid. 570.

  1 S.R., II, 657.

  2 ibid. 658.

  3 ibid. 579.

  4 ibid. 536–7. These statutes were surveyed by K. Pickthorn, Early Tudor government, Henry VII (1934), 63–6.

  PART III

  Statecraft

  Chapter 9

  LAW-MAKING

  (A) By Proclamation

  The deliberate making of new law by the constituted authority of the realm was a phenomenon less conspicuous in the England of late mediaeval times than in that of the more modern period. But it had, of course, occurred often before 1485, and had been specifically recognized for what it was during the fifteenth century. By 1454, for example, Chief Justice Sir John Fortescue enunciated that parliament was so high and mighty in its nature that it might make law and unmake that which was law.1 To make a change or addition to the existing law of the land, which was mostly the common law derived from custom and judicial decisions, was necessarily a solemn act of government, often with far-reaching consequences upon the life and activities of some or all of the people. To give authority to such legislation was always a significant and basic exercise of statecraft. Law-making, therefore, must be our first theme under that general heading.

  Any consideration of law-making in the reign of Henry VII must take account of the possibility of legislation by royal proclamation. The emphasis placed by historians upon statutory law made by king in parliament has tended to obscure the historical importance of the Tudor mona
rch as the source of law. Royal enactment of statutes is certainly the best known form of legislation at this period, but the other, until recently less well known form, was by proclamation issued by the king with at most the consent of the council.2 A proclamation has been defined ‘as a public ordinance issued by the king, in virtue of his royal prerogative, with the advice of his council, under the Great Seal, and by royal writ’.3 A proclamation conveys an express royal command; it is validated by the royal sign manual or signature; it is promulgated by the terms of a royal writ, and the penalties to be imposed for violations of the command expressed are at the king’s discretion. Few of the extant proclamations by Henry VII specifically refer to the council’s consent, but there is evidence that the council was sometimes consulted before promulgation or was involved in follow-up action, though since a proclamation was essentially an exercise of royal prerogative, council consent to it can hardly have been a necessity for its validity.

  A royal proclamation was a legislative act and would have the force of law,1 and during the course of the Tudor period the importance of proclamations greatly increased,2 and even early Tudor examples show ‘an uncanny skill in presentment’,3 but any appraisal of the significance of such promulgations in the reign of Henry VII must be based upon an analysis of the sixty-two proclamations issued by him and known to us.

  By far the largest category into which Henry VIFs proclamations fell was that of general administrative arrangements. Twenty-five fell into that category, dealing with such matters as the mustering and victualling of troops,4 the surrender of rebels,5 distraint of knighthood,6 the maintenance of public order and prohibition of the spread of false news,7 and other miscellaneous matters.8 Two more,9 making announcements about the payment of certain classes of the king’s debts, are hardly in any other category. No fewer than ten others10 refer to monetary and coinage matters, and though the royal concern for this question is vividly revealed, administration is still the primary theme, and the same can be said for six more devoted to the regulation of trade.11 Eleven proclamations12 are given over to announcing truces, treaties, peace, war, and courtesies to foreign potentates. Two13 exercise the prerogative of pardon; three seek to enforce statutes.14 Two might be described as of constitutional significance and are of substantial interest;1 one of these announces the death of Richard III and seeks to impose a pacification immediately after the battle of Bosworth; the other summarizes the papal bull recognizing the king’s title.

  There may, of course, have been other proclamations made that have not survived or are not known, but it is unlikely that any such were of greater importance than these. It seems evident therefore that Henry VII did not resort to his prerogative power to issue proclamations in order to add significantly to the law, and it is to the statute law of his reign that we must turn if we are to assess the legislative activity of his reign.

  (B) By Statute

  Francis Bacon was of the opinion2 that the laws (i.e. the statutes) made in the reign of Henry VII were his ‘preeminent virtue and merit’, and it is upon this judgment that Henry VII’s reputation as a legislator has mainly been grounded. So far as quantity is concerned, the 192 statutes enacted in his seven parliaments,3 an average of slightly above twenty-seven per parliament, testify to considerable legislative activity. But only an analysis can reveal the importance of these numerous enactments. The largest category, with thirty-five items, are acts of attainder or restitution. Next, with thirty-one items, come trade, prices and wages regulations. Twenty-eight are so miscellaneous in content that they can scarcely be otherwise categorized. Twenty-two fall into a group of major concern to the lawyers, in as much as they in some degree modified the common law. Nineteen are of a personal character, affecting only the individuals specified. Fourteen come under the heading of law enforcement. Thirteen confer privileges or pardons, but of these no fewer than ten relate to the king’s own rights. Twelve make fiscal provisions. Seven are largely concerned with the justices of the peace. Six refer to the merchants’ position, especially alien merchants. The remaining five relate to church matters and include a further restriction on the privilege of ‘benefit of clergy’ in criminal trials.

  Of these eleven main categories, a number – the acts of attainder and restitution, and the miscellaneous acts, the personal provisions, privileges and pardons – throw little light on Henry VII’s reputation as a legislator. The acts largely concerned with the justices of the peace, along with others relating to them, have already been considered.1 Those concerned with trade and mercantile regulations,2 with law enforcement,3 fiscal provisions,4 and the Church5 will receive attention below. Here our main consideration must be those twenty-two acts of significance in the juristic sphere.

  Of those twenty-two statutes, two are of a general or even constitutional import; four touch upon criminal law; nine relate to procedural law; and seven modify land law in some respects.

  The first two are the only ones that have attracted general attention; both have suffered the disadvantage of misnomer and misinterpretation springing ultimately from Bacon’s eloquent misunderstanding of them. The first of these is the so-called but wrongly called ‘Star Chamber’ act of 1487, which has already been discussed.6 The second of them is the so-called but wrongly called ‘De facto’ act of 1495.7

  In spite of the fact that A. F. Pollard (more than forty years ago)8 demonstrated beyond any doubt the significance of this act, misunderstanding of its manifest nature is still hard to eradicate, so long-lived are Baconian ideas buttressed by Coke’s phrases.9 There is nothing whatever in the act about kings ‘de facto’ or ‘de jure’; nothing whatever about a distinction between a king’s person and the king’s office. The only king envisaged in it was the king for the time being. The main provision of the act was henceforth to protect faithful service and allegiance to the king for the time being from charges of treason, but excepting from this provision any one who should fail in his allegiance in future, i.e. in his allegiance for the king that then was, Henry VII. The purpose of the act was to reassure Yorkists (or other rebels) who had so far escaped attainder or forfeiture that no proceedings would be taken on the grounds of what they had done before Henry VII became ‘the king for the time being’. It suspended the principle of ‘nullum tempus occurit regi’ (time does not run against the king) for the benefit of those persons who remained faithful in their allegiance to Henry VII. It assumed, as Pollard also observed,10 that the question of the succession to the throne was closed. The only then conceivable sovereign, after ten years of possession, was Henry VII himself. It was a ‘measure of temporary expediency of very limited scope’.

  The attempt in the act to prohibit any future change is hardly a serious assertion of the principle of the inability of a future parliament to make a change in the law by statute. The conception of repeal of an act by parliament was perfectly well understood and practised before this time.1 The Baconian phrase on this part of the act may well be allowed to stand, for it can scarcely be bettered. ‘Things that do not bind may satisfy for the time.’

  The act of 1495, therefore, along with that of 1487, must be interpreted realistically. The latter created a ministerial tribunal which had nothing to do with the court of Star Chamber and made little mark upon the jurisdictional activity of the time; the former retrospectively justified allegiance to Richard III whilst he had been ‘king for the time being’, even though it had been treated as treason from 1485 to 1495.2 It would indeed be difficult to regard such a manifest expedient as the enunciation of a great constitutional principle. It was no more than a prudent attempt at a pacification, dictated (albeit belatedly) by ‘reason and good conscience’, as the preamble to the act suggested.

  Of the four statutes that dealt with matters within the sphere of criminal law, the first alleged that murders daily increased, and sought to oblige coroners to exercise their office according to law and made some improvements in the procedure of dealing with persons accused of murder.3 The second statute4 declared
the abduction of women, whether maids, widows, or wives, and marrying them against their will or defiling them, or procuring or abetting such an offence, to be felony5 unless the woman was in ward or a bondwoman. Another statute pronounced penalty of forfeiture of goods and imprisonment upon captains retained to serve the king overseas if they failed to produce the proper number of soldiers and failed to pay them their full wages, and declared desertion by the soldiers to be felony without benefit of clergy. The same benefit was taken away from any lay persons found guilty of petty treason by the murder of their masters, by the fourth statute in this group.

  Eight statutes may be said to have related to procedural matters. But two of these were confined to arrangements in one locality only;1 one other was passed and repealed in the same parliament; another passed in the last parliament complained2 that an act in the second parliament was not being enforced, confirmed it and ordered it to be put in execution. We are left therefore with only four acts to be examined. The first of these was aimed at penalizing the suing out of writs of error only to delay judgments.3 The second sought to restrict forfeit of lands and goods by persons outlawed in the county of Lancaster to that shire only, but this was repealed in the same parliament.4 The third provided that poor persons should at the discretion of the chancellor have original writs and writs of subpoena free, and that the justices should appoint counsel for them likewise free of charge.5 The fourth decreed that, because of delays in actions on the case, like process should be had in such actions as in trespass or debt.6

  Of the seven statutes relating to land law five were concerned with feoffments to use (i.e. grants of land to be held to the use or profit of some other person), and this is clearly the question of major importance in the legislation of the reign, and requires consideration. Of the other three acts, one merely decreed that freehold in Calais chargeable for guarding Calais should be forfeit to the king on neglect of duty for a year and a day,7 and hardly comes into the land law category at all. St. 4 Henry VII, c. 24, re-enacted and improved 1 Richard III, c. 7, in the matter of procedure on fines. Fines were to be proclaimed (in accordance with 27 Edward I, St. 1, c 1) in the court of Common Pleas during the term when they were levied and the three succeeding terms, and then to be final, saving the rights and interests of others (if under certain disabilities at the time) and reversionary and future actions and rights, for five years. Henceforth fines could be levied either at common law or under the act.1 St. 11 Henry VII, c. 20, was of some but limited importance in the history of the doctrine of seisin and of conveyancing.2 This act was doubtless interesting to the conveyancers, but the other statutes concerning feoffments to uses,3 although also somewhat technical, were of much wider significance. But to put these in some perspective, it is necessary to review the background to Henry’s legislation in this field.4