by S B Chrimes
For more than a hundred years before this period feoffments to uses had been accepted as the most convenient and advantageous way for a landholder to make settlements of his land, and provided a lord did not deprive the king of all his rights, the royal escheators usually did not interfere in such arrangements. In any event without specific legislation the powers of escheators and other officials were insufficient to prevent losses of incidents due to the Crown by the evasive possibilities of the practice. Little, however, was done to limit the erosion of royal revenues from this source by this practice until the reign of Edward IV.5 The first Yorkist king addressed his attention to the problem, particularly in the duchy of Lancaster, by setting up commissions of enquiry to investigate evasion of royal rights, and is reported to have imposed heavy fines on those who entered on inheritances without licence. By the time of his last parliament, Edward IV6 was attempting to legislate on the problem by act of parliament, but only in relation to the duchy of Lancaster. The act as passed, however, was weaker than the bill upon which it was based, and it would appear therefore that he was obliged to accept amendments made to it in the course of its passage through parliament. Even so, this act of 1483 was repealed by Richard III’s parliament of 1484,1 presumably in the hope of getting the political support of the tenants of the duchy. Edward IV’s attempt, however, was remarkable as the first legislative effort to prohibit the evasion of feudal incidents – the essential raison d’être of feoffments to uses. The very legislation itself was based on the assumption that the cestui que use was the real occupier of the land. Uses had become an inherent part of the structure of land ownership, and neither the Yorkists nor Henry VII could alter the fact. Henry VII sought to put some limit on Crown losses of feudal incidents, but was unable to do more than a very little. St. 4 Henry VII, c. 17 (1490), was the first attempt to legislate on uses on a national scale, and was followed fifteen years later by St. 19 Henry VII, c. 15, which if anything revealed how little he could do in the matter.
That Henry VII made the collection of the feudal incidents which were his due a major feature of his financial policy is not open to doubt,2 but here our concern is with his legislation on the point, and it is the modest nature of his achievement in a sphere so close to his financial interests that is the outstanding feature, pointing as it does at once to his consciousness of the importance of the problem and the weakness of his political position vis-à-vis the vested interests of the landed classes.
The statute 4 Henry VII, c. 17, was passed in the third session of the parliament of 1489–90, and its passage then was inspired by apprehension of the situation which would arise in the lands of Henry Percy, fourth earl of Northumberland, who had been murdered on 28 April 1489, leaving an heir of eleven years of age and roughly three-quarters of his landed revenues in the hands of feoffees to his use.3 The act of 1490 was a legislative recognition on a national scale of the state of affairs in which tenants-in-chief, by employing feoffments to use, were manipulating after their death revenues which belonged to the Crown. The act4 provided that if a cestui que use died without making a will of his lands, the lord should secure the incidents of tenure which would have been due to him if his tenant had died seised. This provision applied to all sub-tenants, and although the writ of ward procedure specified for enforcing the lord’s rights could not apply to the king there is no doubt that the act, which the Crown had initiated, gave to it the advantage of its provisions. Even so, the act was in no sense a radical one; it could operate only where the cestui que use had not made a will at the time of his death.
If St. 4 Henry VII, c. 17, is no great tribute to Henry VII’s power as a legislator, St. 19 Henry VII, c. 151 is almost a monument to his humiliation in tackling the problem. It reveals the extent to which he was obliged to continue to accept loss of incidents by the practice of uses. The act, apart from useful but minor provisions,2 laid down that the cestui que use shall have all the advantages in law as if he were sole seised, but if he were a bondman, his lord might enter on land held to his bondman’s use, as if the land was held in fee or otherwise. ‘No doubt the Crown, as the lord of the largest number of bondmen in the kingdom, gained most from this statute. But only in the case of unfree manorial tenants did it succeed in securing legislation which in effect enabled it to oust their feoffees.’3
The conclusion to be drawn is that Henry VII, even towards the end of his reign, was not strong enough to prevent the loss of feudal revenues because of uses; he could neither abolish uses completely nor adequately safeguard loss of incidents consequential from uses. He could not deprive landowners of the great advantages accruing from uses. He could but tacitly accept the practice, whilst striving to obtain increased revenue from feudal incidents by methods which, according to Professor Bean, verged on, or approximated to, blackmail.4
So far it seems that there is little to support Bacon’s encomium to the effect that Henry VII ‘may justly be celebrated for the best law-giver to this nation, after King Edward the first’.5 We cannot, of course, here examine the legislative achievements of all the sovereigns between Edward I and Henry VII in order to comment more fully on Bacon’s claim, still less those of Henry VII’s successors to James I, but useful as many items in the legislation of the reign may have been, they are hardly of sufficient novelty or substance to confer upon Henry VII any great reputation as a legislator.
Nor can we accept the assertion that ‘to the parliaments of Henry VII there was to be presented a greater number of official bills than of commons’ bills or that the government was largely to replace the commons as the initiator of statutory legislation’. These assertions were originally made1 on the assumption that there was such a thing as an ‘official bill’ (i.e. a bill initiated by the government subjected to procedure different from that accorded to other bills). But this assumption was not proved at the time it was made.2 There has in fact never been such a thing as an ‘official bill’, but naturally the government could and did initiate bills which became statutes in the time of Henry VII, as it has always been able to do. But there is no simple means of identifying for certain in what way many of the statutes of Henry VII originated, unless the content reveals it. A substantial number of these statutes specifically refer to the prayer of the commons or to the petition to the commons by some other body. Such instances as these can be taken as not having been initiated by the government. Others make no such reference, and the inference in these cases must be that the government had taken the initiative, an inference which is certain when, as occasionally happened, the king’s will was explicitly mentioned. We may doubt very much whether such instances account for the majority of the statutes enacted and there can be no supposition of the ‘dominance’ of official bills over commons’ bills in the parliaments as a whole, though this may have occurred in some parliaments, provided we mean by ‘dominance’ merely ‘arithmetical majority’. Naturally the content of these bills was more significant than that of other bills, for the government would not bother to initiate legislation that was not of substantial government interest, except when it was moved to support some private or individual interest. In any event, there was not any doubt that the commons, the lords, and the government had the right to initiate, and who did originate and what the fate was of any bill depended upon the play of political forces at the moment.
1 On the subject generally, see Chrimes, English constitutional ideas in the fifteenth century 192–203, 249–53. For Fortescue’s assertion, see R.P., V, 239.
2 R. Steele (ed.) A bibliography of royal proclamations of the Tudor and Stuart sovereigns 1485–1714 (Bib. Lindesiana, V), I, England and Wales (1910), provided a general commentary and list of fifty-two proclamations by Henry VII. P. L. Hughes and J. F. Larkin printed the text of fifty-eight such proclamations, Tudor royal proclamations, I, 1485–1553 (Yale, 1964), and four more in the Appendix to vol. III (1969). Some comments on this valuable work are provided by G. R. Elton in his review of it in Hist. Journal, VIII (1965), 266–71.
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3 Hughes and Larkin, op. cit. xxiii.
1 Hughes and Larkin, op. cit. xxvi–xxx.
2 As under Henry VIII, see the standard histories, and the statistical tables in G. R. Elton, loc. cit. 268–9.
3 Hughes and Larkin, op. cit. xxvi, citing John Craig, The Mint (1933), 106.
4 ibid. Nos 4, 6, 12, 20, 27, 36, 37.
5 ibid. Nos 8, 15, 41.
6 ibid. Nos 9, 48, 49, 53.
7 ibid. Nos 11, 13, 14, 16, 19, 22, 24, 46, 47.
8 ibid. Nos 32, 58.
9 ibid. No. 55 ; and III, 20.5.
10 ibid. Nos 10, 25, 38, 42, 43, 44, 54, 57; and III, 20.6, 20.7.
11 ibid. Nos 18, 26, 27, 31, 45, 56.
12 ibid. Nos 3, 7, 21, 23, 29, 33, 34, 40, 51, 52; and III, 23.5.
13 ibid. Nos 2, 35.
14 ibid. Nos 17, 30,50. The first of these refers to 4 Henry VII, c. 12, regarding the duties of justices of the peace; the second to 3 Henry VII, c. 2, and earlier acts regarding felonies and other offences; the third to acts of earlier reigns prohibiting retainers.
1 ibid. Nos 1, 5.
2 Henry VII, ed. Lumby, 74.
3 Ten in 1 Henry VII (1485); sixteen in 3 Henry VII (1487); twenty-four in 4 Henry VII (1488–9) ; twenty-four in 7 Henry VII (1491) ; sixty-five in 11 Henry VII (1495); thirteen in 12 Henry VII (1496–7); forty in 19 Henry VII (1504); see S.R., II, 499–694.
1 See above, p. 164.
2 See below, p. 220 ff.
3 See below, p. 186 if.
4 See below, p. 195 ff.
5 See below, p. 243 ff.
6 See above, p. 100.
7 11 Henry VII, c. 1.
8 “The de facto act of Henry VIP, B.I.H.R., VII (1929), 1–12. The correct inter-pretation and the text of the statute were given by G. R. Elton, The Tudor constitution (1966), 2, and No. 2.
9 Henry VII, ed. Lumby, 133. The terms ‘de facto’ and ‘de jure’ appear to have been introduced into the discussion by Sir Edward Coke, Third Institute (ed. 1809), 6 ff.
10 Pollard, loc. cit. 12.
1 See Chrimes, English constitutional ideas, 265–6.
2 It is notable that from 1495 onwards the description of Richard III as ‘king indede but not in right’, until then common in acts of parliament and elsewhere, appears to have been dropped, and thenceforth he figures as ‘Richard, late duke of Gloucester, otherwise called King Richard III’, or as ‘the said King Richard’. Pollard, loc. cit. 2.
3 3 Henry VII, c. 2. Under other terms of this act murderers might be arraigned within a year and a day without waiting for an appeal to be initiated; if acquitted an accused person was to be imprisoned pending a possible appeal until a year and a day had elapsed. Townships were to be amerced for escapes of prisoners by day, and the coroners were to enquire into, and justices of the peace were to certify, such incidents.
4 3 Henry VII, c. 3.
5 7 Henry VII, c. 1.
1 12 Henry VII, c. 7. A further statute, 4 Henry VII, c. 13, concerned with other restrictions of benefit of clergy, must be borne in mind, but is better dealt with under another heading. See below, p. 243. It is, however, considered to be of some importance in the history of the legal concept of murder. See J. M. Kaye, ‘The early history of murder and manslaughter’, L.Q.R., 83 (1967), 569.
2 19 Henry VII, c. 16, fixed the qualifications for jurors in the sheriff’s tourn in Southampton, Surrey, and Sussex. 19 Henry VII, c. 24, decreed that the shire courts of Sussex should be held alternately at Chichester and Lewes.
3 3 Henry VII, c. 11, confirmed by 19 Henry VII, c. 20.
4 7 Henry VII, c. 10, repealed by c. 20.
5 11 Henry VII, c. 12.
6 19 Henry VII, c. 9.
7 11 Henry VII, c. 16.
1 cf. Holdsworth, History of English law, III, 120, 244; IV, 483. A fine in this context meant a legal agreement between parties, especially to convey land.
2 ibid. IV, 484.
3 Three of these may be dealt with summarily. 3 Henry VII, c. 5, related to uses but not to land and strictly speaking does not fall in the present group. By it deeds of gift of goods and chattels made in trust for the use of the donors (to defraud creditors) were to be void. Two other statutes dealt with minor points and can best be mentioned here. 1 Henry VII, c. 1, allowed demandants informed on to proceed against the pernor of profits, i.e. the cestui que use, and were not to be obliged to sue the feoffee. By 3 Henry VII, c. 16 (apparently only until the next parliament), a person having action or such ‘hanging to the use of other persons’, was not to be excluded from proceeding, notwithstanding outlawry, attainder, or conviction; cf. Holdsworth, op. cit. IV, 443, 444, 428.
4 It would scarcely be practicable to do this but for the valuable work of J. M. W. Bean, The decline of English feudalism, 1215–1540 (1968), on which the passages that follow are largely based: cf. Holdsworth, op. cit. IV, 407–49, generally. Some useful information is contained in J. L. Barton, ‘The mediaeval use’, L.Q.R., 81 (1965), 562–77.
5 Bean, op. cit. 235–40.
6 R.P., VI, 207.
1 R.P., VI, 261–2; H. G. Hanbury, ‘The legislation of Richard III’, American Journal of Legal History, 6 (1962), 95–113, has little historical value, and p. 99 misses the essential point of this act.
2 See below, p. 209.
3 Bean, op. cit. 242–5.
4 S.R., II, 540.
1 ibid. 660.
2 The other main points were to make the lands of the cestui que use liable for execution of judgments of debts, and to secure to lords the relief and heriots of the cestui que use of lands in socage, cf. Holdsworth, op. cit. IV, 428, 443, 449.
3 Bean, op. cit. 255.
4 ibid. 256.
5 Henry VII, ed. Lumby, 69.
1 H. L. Gray, The influence of the commons on early legislation (1932), 141–61.
2 S. B. Chrimes, English constitutional ideas in the fifteenth century (1936), 236–49. K. Pickthorn, Early Tudor government, I, Henry VI (1934), appreciated that the caption communes petitiones did not necessarily mean ‘commons petitions’ (p. 127), but failed to discount the notion of ‘official bills’ (p. 128). G. R. Elton was very right to question the assumption that much of the legislation of the reign necessarily represents the king’s policy, except in the sense of mere acceptance, ‘State planning in early Tudor England’, E.H.R., 2nd ser., XIII (1961), 433–9. See below, p. 219 ff.
Chapter 10
LAW ENFORCEMENT
At present it is difficult to find much evidence that Henry VII’s government attained any marked success in tackling the perennial problems of law-enforcement. There is indeed little evidence that any very striking attempts were made to enforce it, except where such attempts redounded to the financial advantage of the Crown. At least fourteen statutes were enacted that can be considered to fall within the sphere of enforcement, and the preambles to some of these manifest acute awareness of the unsatisfactory observance of the law, but with a few exceptions, the substance of the enactments did little but reiterate what had previously been enacted or provide some further measures that reveal how little the law was in reality being enforced. Clearly the will to enforce the extant laws was often lacking in those whose position, powers, and influence should have provided the impetus without which the government could only partially function. Chief Justice Huse put his finger on the essential point at that meeting of all the justices at Blackfriars early in the first year of the reign. ‘The law,’ he said, ‘will never be well executed until all the lords spiritual and temporal are of one accord, for the love and dread they have for God or for the king, or both, to execute them effectually, and when the king on his part and the lords on their part both want to do this – and do it.’1
The basic problem was of course a moral one, as it always is. If the great and powerful (including the king himself) did not exert themselves to enforce the law and to refrain from abusing legal process, inevitably the standard of observance would not be high. Whilst we may well believe that Henry VII
desired to secure the maintenance and enforcement of the laws, and sought by statutory and other means to improve the prospects, it is not easy to find much concrete evidence of his government’s action to enforce the laws, except in spheres of financial interest.
As we have seen, surprisingly little initiative was taken by the government, so far as we know, in prosecuting offenders before the council in Star Chamber or elsewhere, or before the ministerial tribunal set up by the statute of 1487. That more was done in King’s Bench is possible, but the only study of its workings so far available is not very encouraging to the idea.1 We do know, however, that a good many prosecutions were initiated in the court of Exchequer.2 In any event, whatever the government may have desired, it was to a very large extent dependent upon instruments which were often decidedly unreliable. The statutes of the reign in themselves reveal the shortcomings of justices of the peace, the corruptions of sheriffs and sheriff’s officers, and of jurors. The weakness of the common law courts in the face of the old practices of maintenance, champerty, embracery, the giving of liveries, and of retainers by indenture or otherwise – the very offences which the tribunal of 1487 had been set up to deal with – is obvious. But these offences continued to be legislated against until the last parliament of the reign, and we can therefore hardly suppose that the tribunal or the other courts met with any marked success in suppressing these notorious evils during the first nineteen years of the reign.