by S B Chrimes
The parliament of 1487 (assembled, it will be remembered, some five months after the battle of Stoke), which saw the enactment of the ministerial-tribunal statute, also saw the enactment of a very remarkable measure, testifying at once to the dangerous weakness of Henry VII’s position even at that date and to the difficulty he evidently experienced in using the normal procedures for coping with treason. St. 3 Henry VII, c. 14, alluded to the fact that in the absence of actual deeds, there was no remedy for treasonable intentions against the king, the king’s councillors, great officers of the Household, or any lord, but the envy and malice of the king’s Household servants had of late been such as likely to lead to the compassing of the death of the king himself. For this reason, the steward, treasurer, and controller of the Household, or any one of them, was to have power to enquire by twelve ‘sad and discrete’ persons of the Check Roll of the Household, whether any servant sworn and named on that roll, under the rank of a lord, had taken part in any confederacy, compassings, conspiracies, or imaginings to destroy or murder the king or any such aforesaid persons. If enquiries suggested that any such servants had so participated, any two of the great officers were empowered to put them on trial by a jury of twelve other members of the Household, and if found guilty, the offenders were to stand convicted of felony and attainted at common law.3
If in 1487 Henry VII was driven to such a measure as this by suspicions as to the intentions of some of his own Household servants, it is not surprising that local officers and agents were exposed to statutory censure and threatened with penalization for defaults in most of his parliaments. The justices of the peace were frequently reminded of their duties, especially in the act 4 Henry VII, c. 2, which very stridently invoked them to perform their lawful tasks.1 The sheriffs were likewise censured and penalized under the terms of St. 11 Henry VII, c. 15.2 This act referred to the great extortions brought about by the subtle and untrue demeanour of sheriffs, undersheriffs, and shire clerks and sought to provide remedies. St. 11 Henry VII, c. 26,3 reminded sheriffs of the qualifications for jurors in sheriffs’ tourns that had been laid down by 1 Richard III, c. 4, but allowed relaxation if sufficient persons with the requisite qualifications were not available. By another statute,4 the sheriffs were made responsible for the keeping of all the king’s gaols (except those held in fee), and were to be fined for all negligent escapes.
Jurors were similarly visited with statutory correction. London jurors were to be highly qualified with the possession of 40 marks in land or chattels and subjected to forfeiture for non-appearance; their false verdicts were to be liable to attaint by bill in the court of Hustings, and their corruptions subject to enquiry even if their verdicts complained of were found to be true.5 The false verdicts of any jurors were to be remedied by writ of attaint obtainable by the aggrieved party against the jurors and the party benefited; jurors in attaint actions were to possess 20 marks of freehold in ancient demesne, and the penalty for jurors attainted was to be £20 each, half to go to the king and half to the aggrieved party.6 But this provision was to continue only until the next parliament. Then the duration of the validity of this and other acts was extended until the next parliament, ‘because they had not been put into execution for shortness of time’.7 Why it was deemed appropriate to enact important measures of this kind temporarily only, is a mystery, but it hardly testifies to the firm intentions of the government. Still, this act was continued again in the next parliament,8 which proved to be the last of the reign.
Four statutes of the reign sought to deal with the old problem of livery and retaining and the abuses resulting. Of these, none except perhaps the last (19 Henry VII, c. 14) was particularly original. Edward IV, in his substantial act of 1468, had sought to define what was lawful retaining, but the vagueness of the terms of that act had left uncertainty behind it. There was undoubtedly in 1485 such a thing as lawful retaining, and this continued to be the case throughout Henry VII’s reign. The problem was to define exactly what species of retaining was unlawful and to prescribe penalties for such unlawful practices. Henry VII made some progress with this definition and prescription; but it still remained open to the Crown itself to prosecute or not to prosecute for infringements of the law, and in this respect it is difficult to see that the government pursued any very consistent policy. It can hardly be said that Henry VII sought to abolish the practice of retaining. On the contrary he clearly wished to preserve it, but so far as possible only so that he himself got the benefit of it for his own purposes. He sought to repress it in so far as its practice by his subjects redounded to the public disadvantage and the corruption of public order, but to ensure its continuance so far as his own interest was engaged. It was not possible to connive and even encourage retaining for the king’s service without also risking the abuses inherent in the practice. In fact the practice and its risks continued long after Henry VII’s death.1
In his first parliament2 Henry VII had shown himself well aware of the dangers of the practice, by persuading the commons and the lords to take an impressive oath not to retain or be retained unlawfully, and a similar oath was in January 1486 to be taken locally by other persons in the presence of royal commissioners. But the futility of mere oath-taking was expressed by Chief Justice Huse on the same occasion as he made other forthright pronouncements.3 In any event, the ambiguity of the act of 1468 remained and it was hard for even judicial opinion to decide whether the retaining of persons other than household servants was necessarily unlawful.4 Henry VII’s first relevant statute, 3 Henry VII, c. 15,5 did not take the point any further, but did seek to oust from office any of the king’s local officers if they allowed themselves to retain or be retained unlawfully or participate in any field, assembly, or rout without the king’s command, and to forfeit the grants and leases of any of the king’s farmers or tenants, should they similarly offend.
The next relevant statute rather tamely referred to ‘the many good statutes’ that existed against unlawful assemblies, riots, livery, maintenance, embracery, as well as such different practices as the taking of excessive wages and the playing of unlawful games, and passed some of the responsibility for enforcing the law to the justices of the peace.1
The same parliament, however, in another act complained that notwithstanding the good statutes, the king’s officers were failing to refrain from retaining and being retained, and tightened the powers of the justices of the peace to correct them.2
Certainly Henry VII on several occasions tried to bring home to various classes of his subjects the overriding obligation to observe their allegiance to him, and consequently to refrain from entering into retainer relationships that might conflict with that obligation.3 But all retaining always had been explicitly or implicitly saving allegiance to the king, and Henry VII’s desire to emphasize the fact was not in itself a limitation or further definition of lawful retaining. The best that Henry VII could do was set forth in the statute of the 19th year, c. 14.4 But in substance this act was little more than a repetition of 8 Edward IV, c. 2,5 which, along with all other relevant statutes, it ordered to be observed and executed. Both acts forbade any person to give any livery or sign or to retain any persons other than his menial servants, officers or men of law, by any writing, oaths, promise, livery, sign, badge, token, or in any other wise unlawfully retain. It is true that Edward IV’s act in another passage appears to include among permitted classes of retainers, in addition to menial servants, officers, and men of law, persons ‘for loyal service done or to be done’, but it is far from clear whether this omission in phraseology was deliberate or significant. It still remained true that what was forbidden was unlawful retaining, but there was no novelty in that. The penalties prescribed for infringements were the same as in 1468. The giver of every livery or badge was to forfeit 100s, and every person who should unlawfully retain or be retained was to forfeit 100s, in each case per month. The act of 1468 defined the courts and the procedure to be used for cases of infringement, and the act of 1504 specifie
d that any person could sue or complain before the chancellor or the keeper of the Great Seal, in the Star Chamber, or before the King’s Bench, or before the king and his council attending upon him, and the usual conciliar procedure was to follow, with ‘reasonable reward’ for the plaintiff or informer. The act of 1504 was more forthright and stringent in the procedures it envisaged than that of 1468, and both acts contained provisos which made exceptions from the act in favour of the use of liveries at certain ceremonies and the practice of retaining in defence of the realm. Henry VII’s act was very specific in excepting from its provisions persons who, by virtue of the king’s placard or writing signed with his own hand and sealed with the Signet or Privy Seal, should enter into retaining to do the king service. The king might therefore issue licence for retaining, and so long as he used this power there would be no abolition of the practice. But the astonishing feature of the act was the temporary and uncertain duration of its validity. It was to apply from the feast of Pentecost next ensuing for the term of the king’s life and no longer. Naturally no one then knew that by Pentecost five years later the king would be dead, but the reason for such a limitation is an inexplicable mystery.
Evidence for prosecutions under the act is not abundant. Very few such cases appear to have come before the council, none in Star Chamber, some but not many of much importance in King’s Bench.1 The only peer known to have been prosecuted for retaining in Henry VII’s reign was George Neville, Lord Burgavenny.2 He was certainly a very major offender against the act, but he can scarcely have been the only one. He had however been implicated in the Cornish rebellion in 1497, and no doubt this was one of the circumstances which induced Henry VII to extract very large financial penalties from him in 1507 on charges of retaining contrary to the act. Other entries in Dudley’s Account Book suggest that compounding for retaining offences may have staved off other prosecutions and given a fillip to Henry VII’s financial advantage, if not indeed suggestive of the motive for the act.
It was after the turn of the century that Henry VII’s government took steps to tighten up the law in these matters. That more effort was taken to enforce the law, at any rate in certain spheres of particular interest to the king, in the later years of the reign, is one of the conclusions to be drawn from the only substantial work so far done in the field of law enforcement.1 So far as prosecutions for offences in the sphere of retainer, livery, maintenance, and so forth are concerned, Dr Guth’s researches amply confirm the impressions indicated above, and reveal facts that must be taken into account in any assessment of Henry VII’s policy, or at any rate, activity. There was a striking lack of prosecution for these offences. Retainer, Dr Guth reminds us, was only a social evil when it conflicted with the king’s interests. Little rigorous repression was undertaken, either in the Exchequer or elsewhere. An investigation of the plea rolls of King’s Bench shows that after 1490 about two actions of this kind occurred per term, revealing moderate activity by the Assize justices and justices of the peace. But the bulk of these cases in King’s Bench ended in pardon or dismissal. In the Exchequer only nine prosecutions for retainer occurred, all after 1501. Most of these actions were against the retainor, and the average number of men alleged to be retained was four. The attorney-general did not initiate any of these actions, two of which remained unresolved; two were dismissed, and five ended in acquittal by a jury. None of them ended favourably to the king. Only one action against maintenance occurred and that ended in a pardon.2
Taking into account all the cases of penal law enforcement in the Exchequer for the whole reign, Dr Guth comes to the conclusion that ‘the picture remains relatively unimpressive’. ‘There is,’ he writes, ‘very little evidence on the Exchequer record that the Crown was seriously interested in the general enforcement of parliamentary statute.’3 Some significant expansion in law enforcement did occur after 1500, particularly on the initiative of Crown officers, but this initiative was largely restricted to matters of foreign trade. Infringement of the law relating to customs duties was the sphere which attracted most prosecutions and the most profit to the king. Crown officials of one kind or another initiated the bulk of these actions; some but few private informers took any part in them, and ‘the notion of an army of private informers is pure myth, at least for Henry VII’s Exchequer’.1
On the whole, the Exchequer was efficient and effective in enforcing the penal law, once actions were initiated, but for the most part it functioned only in those areas which directly pertained to the king. Outside those areas enforcement remained haphazard, tied to the vagaries of the private informer system – a system which did not receive much encouragement from the Crown except when the informers happened to be also Crown officers or servants.2
Henry VII’s government therefore did not greatly exert itself to enforce penal statute law, with the exception perhaps of those laws, such as customs regulations, in which the Crown had a direct financial interest and in relation to which the machinery for enforcement existed and was comparatively easy to operate. It is indeed doubtful how far any mediaeval king expected to be able to enforce penal statutes at all fully. It is probable that machinery adequate for the purpose had not come into existence. The Crown could do little but rely upon its not always reliable local agents, whether justices of the peace, sheriffs, customers, escheators, or bailiffs, and other officers.3 The potential utility of private informers who were not also Crown officials was necessarily limited and probably inadequately motivated. In this whole sphere, there is no reason to suppose that Henry VII’s government was any more or any less efficient than previous governments. It cannot be accused of any particular ruthlessness or harsh administration, or of any special innovatory ingenuity. That Henry VII was markedly anxious to increase his revenue is not open to doubt. This increase was to come most of all, however, not from the laborious and slow processes of litigation on the penal statutes, but rather from the more expeditious, more profitable, more ruthless and more certain exploitation of the potentiality of the royal prerogative rights. In this sphere the king might be able to secure substantial revenue with the minimum recourse to litigation in the courts.
1 Y.B. Henry VII, Mich., pl. 3, cited above, p. 64. Otherwise, he went on to say, all would take them lightly, and if they were chastised or punished others would be ready to stand surety for them. I have ventured to italicize very significant words in this quotation.
1 See above, p. 162; and below, p. 191.
2 See below, pp. 191–2.
3 S.R., II, 521.
1 See above, p. 166.
2 S.R., II, 522.
3 ibid.
4 19 Henry VII, c. 10; S.R., II, 654.
5 11 Henry VII, c. 21 ; S.R., 584.
6 11 Henry VII, c. 24; S.R., II, 588.
7 12 Henry VII, c. 2; S.R., II, 636.
8 19 Henry VII, c. 3; S.R., II, 649.
1 The fullest discussion of these matters is to be found in W. H. Dunham, Lord Hastings’s indentured retainers 1401–83 (New Haven, 1955), esp. 90–116.
2 See above, p. 64.
3 See above, p. 64. He remarked that as king’s attorney in Edward IV’s time he had seen the lords swear to keep the laws and an hour later in Star Chamber break their oaths by other oaths completely contrary to the first: Y.B. 1 Henry VII, Mich., pl. 3. As Dunham, op. cit. 92, observes, the oath here referred to was not the same as Henry VII promoted in 1485.
4 ibid. 91–2.
5 S.R., II, 522.
1 11 Henry VII, c. 9; S.R., II, 57.
2 11 Henry VII, c. 7; S.R., II, 573.
3 11 Henry VII, c. 18; S.R., II, 582; declared the duty of all the king’s subjects to serve him in war if required, except the master of the Rolls, other Chancery clerks, officials of the courts and Exchequer, the king’s attorney and solicitor, and the serjeants-at-law; St. 19 Henry VII, c. 1, insisted that grantees of land from the king must attend him in war if needed, on pain of forfeiture, cf. Dunham, op. cit. 92–4, where however the connection between such meas
ures as these and the problem of retaining is perhaps over-emphasized.
4 S.R., II, 658. Proclamation to enforce the statutes against retaining had been made, 10 March 1502. See Hughes and Larkin, op. cit. I, No. 50; cf. C.P.R., 1494–1509, 286–7. Extracts from the statute are printed in Elton, The Tudor constitution, No. 18.
5 S.R., II, 426–9. Extracts printed in Chrimes and Brown, op. cit. No. 280.
1 Dunham, op. cit. 100–5, gives references.
2 ibid. 103–5. There is still no documentary support for Bacon’s story about Henry VII’s dealings with John de Vere, earl of Oxford, in the matter of his retainers. But the story itself makes no reference to litigation, it merely alleges that the earl compounded for the offence. Bacon, Henry VII, ed. Lumby, 192–3.
1 I am indebted to Professor de Lloyd John Guth, now of Michigan University, for allowing me to use his valuable unpublished Pittsburgh Ph.D. dissertation (1967), ‘Exchequer penal law enforcement, 1485–1509’, and to Professor G. R. Elton for his kindness in lending me his copy of this work, the publication of which is greatly to be desired.
2 Guth, op. cit. 271–4.
3 ibid. 275.
1 Guth, op. cit. 277.