by Charles Ross
Contemporaries believed that the remedy for misuse of the extensive powers vested in the sheriff’s office lay in a steady increase in the responsibility and authority of the justices of the peace. In his first parliament Edward IV continued the process by transferring to them the criminal jurisdiction in the hundred courts formerly exercised by the sheriff in his tourn.4 Like his predecessors, he continued to appoint reliable magnates to the commissions in the shires where they held land in the hope of extending government control and supervising their work. But magnates rarely served in person at the sessions of the peace, especially when, like the royal dukes or Warwick or Hastings, they had been appointed to the bench in a dozen or more counties. Yet even this remedy had its limitations, for on occasion even a whole bench of J.P.s could be intimidated into returning unjust verdicts. Thus in 1456 Edward’s future lieutenant, Sir William Herbert, then a prominent servant of his father, seized the town of Hereford by force, arrested the mayor, emptied the prisons, and so overawed a session of the Herefordshire J.P.s that they condemned six citizens to death for their supposed share in the murder of Herbert’s kinsman, Walter Vaughan, shortly before; and they were straightway hanged.5 Even the justices of assize were not immune from intimidation. In March 1464, following a riot in which Sir John Butler had been slain, Edward IV found it necessary to direct that the forthcoming sessions in Lancashire should not be held, since great troubles might thereby ensue, and from the fact that he found it necessary to summon before him Thomas, Lord Stanley, and three of his kinsmen, three members of the Harrington family, and Thomas Pilkington, it would appear that some of the most powerful men in the county palatine were involved in the disturbances; clearly any attempt by the local justices to indict them would not have been feasible.1
Juries were even more vulnerable to bribery, pressure and intimidation. Straightforward bribery for bringing in a particular verdict – the often-condemned offence of embracery – was not uncommon; but frequently all that was needed to influence a jury in one’s favour was to seek the protection of a great lord ‘whose disfavour twelve men, however good and true, would hesitate to incur’.2 Nor was there anything illegal in the practice of ‘labouring’ a jury, whereby one party made sure the jury was made aware of facts favourable to its case, especially when there was reason to suppose that the other party had influenced the selection of the panel. The king himself had recourse to the process at least on one occasion. In 1481 one John Tailour was paid 26s 8d as part of his expenses in labouring a Devonshire jury to return a verdict ‘which passed with the king’.3
Juries could also be intimidated by an open show of force. In 1475 the commons in parliament petitioned against the acquittal of certain evildoers indicted for riot and felony in Herefordshire, in spite of the king’s promise that they should be punished. The petition claimed that a jury of presentment consisting of no fewer than eighteen of the most notable knights and squires of the county had confessed to the king’s commissioners that ‘they durst not present nor say the truth of the defaults before rehearsed, for dread of murdering, and to be mis-chieved in their own houses, considering the great number of the said misdoers, and the great bearers-up of the same’, unless they had ‘especial comfort of the king’s good grace, and the assistance of the lords there present’.4 An even more scandalous demonstration of private might and malice was the action of the duke of Clarence in 1477 in dragging Ankarette Twynho and two other innocent persons before the justices of the peace at Warwick and causing them to be indicted of murdering his wife, Duchess Isabel. He then forced the jury to return a verdict of guilty, which they did ‘for fear and dread of great menaces, and doubt of loss of their lives and goods … contrary to their own intents, truth and conscience’. Ankarette and one other were hanged forthwith. Indictment, trial and judgement all took place within the space of three hours.1
With the commons’ reference in 1475 to the ‘great bearers-up of the same misdoers’, with whom only the king and the lords could deal, we come to the very heart of the problem of law enforcement in fifteenth-century England. Most of the flagrant examples of open defiance of the law, ranging from bribery and intimidation, through murder and riot, to private war and general terrorism, were the work of gangs of men – ‘riotous persons arrayed in manner of war’ as the common phrase went – acting on behalf of powerful people, or at least afterwards able to claim their protection. In 1472 a widow petitioned parliament seeking justice against the murderers of her husband, and could plausibly allege that after the murder they had sought to get themselves accepted into the service of the duke of Gloucester, so that they ‘should have been supported in their horrible felony, murder, and robbery’.2 She was justified in her belief that there was small hope of redress against a powerful nobleman through the normal channels of justice. It is a striking fact that in the entire fifteenth century no nobleman ever appeared in court charged with offences which might cost him his life.3 In some parts of the realm their authority counted for more than the king’s. Even in Tudor times it could be said that the north of England had never known a king other than a Percy, a Nevill or a Dacre. In Edward’s own day John Harding could write of the Percies that ‘they have the hearts of the people by north and ever had’. R. L. Storey’s researches have shown that for more than twenty years before 1461 the normal courts of law – chancery, king’s bench, assize and gaol delivery – had become almost totally ineffectual in the counties close to the Scots border. Men no longer had recourse to them at all. Instead, they sought the protection of great lords powerful enough to ‘maintain’ their interests since the ordinary course of law provided neither justice nor protection.1 Only the king could bring such powerful persons to book. If, on the other hand, he chose to extend to them the same protection as they in turn gave to their retainers, servants and well-wishers, then the authority and prestige of the law was being choked at the very fountainhead. What was often lacking was the will to enforce the law. This was the tenor of a celebrated speech made to all the justices at Blackfriars in 1485 by Chief Justice Hussey, most of whose professional career had been spent in the service of Edward IV. It had been agreed that there were already excellent laws, very advantageous to the kingdom if they could be carried out. The question was, would they be carried out? Hussey observed that
the law would never be carried out properly until the lords spiritual and temporal are of one mind for the love and fear they have of God, or the king, or both, to carry them out effectively. Thus when the king on his side, and the lords on theirs, will do this every one else will quickly do it, and if they do not they will be punished, and then all will be warned by their example.2
Some indication has now been given of the nature and magnitude of the problem of law and order in late medieval England. But it is also essential – with Hussey’s remarks in mind – to see it in the right perspective from the standpoint of the king. His concern with the administration of justice and the enforcement of the law was at best a limited one – limited both by choice and necessity. Like his subjects he was prepared to suffer a high level of day-to-day violence provided his own interests and the security of his realm were not threatened. He was rarely concerned to right the wrongs of individuals or to take much care to see justice done in causes between private persons. The suppression of treason and insurrection was his first concern. When large-scale disorder threatened to involve a whole countryside or flagrantly defied the royal authority it could not be long ignored. Lawbreaking which deprived him of revenue, as with customs fraud, or affected his foreign relations, as with piracy, might attract close royal attention.3 But his interest did not go much further. Even had he chosen to try to enforce penal statute law more widely and impartially his means of doing so were limited. He was hampered by dependence on unreliable and often corrupt local agents, by ingrained social habits, or by more purely political considerations such as the need to retain the goodwill of his great men. The most recent enquiries have shown that even Henry VII, whose record of acti
on by legislation, injunction and administrative device shows him to have been much more concerned with general law enforcement than his Yorkist predecessors, had remarkably little success in this sphere.1
Nevertheless, the problems inherited by Edward IV were formidable, even when allowance has been made for the restrictions of attitude and intent outlined above. The inherent difficulties of keeping the peace had been worsened by the severe deterioration in public order – never very high in late medieval England – during the twenty years of Henry VI’s majority rule. The weakness and partiality of king and council had placed little curb on the misdeeds of powerful offenders. The growth of faction was accompanied by recourse to private war, recently documented by Storey, and the outbreak of civil war, which in one aspect at least may be seen as an ‘escalation of private feuds’,2 had served only to make matters worse. Riot, oppression, vendetta and gangsterism flourished under the umbrella of civil strife and armed rebellion. The first few months of Edward IV’s reign probably saw a higher level of disorder than any other period in the entire fifteenth century.3
How then did the new king propose to break the teeth of the sinners? The reign began promisingly with a public statement of his intention to take vigorous action against lawlessness. This pronouncement is of interest since it shows clearly that he already appreciated the close connections between a rising rate of crime and the practices of illegal livery and maintenance promoted by powerful men. On the king’s behalf, the chancellor told his first parliament that because the giving of liveries and badges had led to the multiplication of maintenance of quarrels, extortions, robberies and murders, Edward had ordained certain ‘articles’. These he had caused the lords of parliament to swear to observe, and they were now to be published throughout the realm. Further, it was the king’s design to make progresses throughout the land, the better to inform himself about the state of public order. On their return to their constituencies, the M.P.s were to inform the people at large to prepare bills against evildoers in readiness for the king’s coming. The ‘articles’ thus promulgated placed limits on the giving of signs and liveries, forbade anyone to give refuge and succour to known criminals, and commanded all the king’s subjects to do their duty in bringing evildoers to jail. Nor should they be prevented from doing so by fear of any protector of malefactors, be he lord or any other person, ‘for in that case the king will suffer no lord or other to make any quarrel or hurt any person so doing’.1
As we shall see, Edward’s professed intention of making war on the abuses of the system of livery and maintenance turned out to be little more than a pious declaration. He was, however, and of necessity, concerned to act vigorously against treason, riot and major disturbances of the public peace. In this campaign he did not seek to strengthen the law-enforcement agencies by new legislation. Apart from transferring much of the remaining criminal jurisdiction of the sheriff to the justices of the peace, as noticed above, and the act against retaining and livery, the meagre body of statute law which emerged from his reign contains almost no reference to the problem of law and order. This was not to his discredit, for, as Chief Justice Hussey was to remark, there were already laws aplenty. Instead he preferred to make use of existing machinery, often infusing new life into it by the personnel he employed and his own personal backing for its work.
In the first decade of the reign especially, when the security of the realm was threatened by treason and insurrection as well as general disorder, he made extensive use of three weapons against lawlessness – the court of chivalry under the constable of England, commissions of oyer and terminer, both general and specific, and his own great personal activity in the enforcement of the law. The constable’s court, whose savage penalties won for John Tiptoft, earl of Worcester, his unenviable reputation for ruthlessness, was roundly condemned by an earlier generation of scholars. It was a summary court, acting without indictment and without benefit of trial by jury, and it employed a law other than the common law of England. Its activities, in the words of Bishop Stubbs, ‘condemned its agents to perpetual infamy’. He further regarded its summary jurisdiction over treason as a novel usurpation at the expense of the common law courts.2 However, recent research has suggested that there was ample precedent under the law of arms for its use in treason trials. As a branch of civil law, the law of arms required neither indictments nor juries. Often Tiptoft as constable was merely pronouncing a sentence which had already been ‘ordained’ by the king in advance. The king could still ‘record’ a verdict based upon his knowledge of notorious treason without further justification. Most of the court’s victims were men taken in battle, in open rebellion against the Crown, clearly guilty of the high-treason offence, under the great statute of 1352, of levying war against the king. Many too were men who had already reneged on royal pardons, and this in itself had been declared a treason by the articles of 1461. Faced by persistent insurrection, Edward can scarcely be blamed for using a summary tribunal which did away with the need for prompting or labouring juries.1
There is, however, some evidence that the jurisdiction of the constable’s court was widened to include treasonable offences which had formerly been dealt with by the common law and which came under the other major category of treason, compassing and imagining the death of the king. Such was the trial of the earl of Oxford, his son, John de Vere, and Sir Thomas Tuddenham in 1462, when Tiptoft was accused by the chronicler Warkworth of improperly using ‘the law of Padua’, that is, the civil law. Similarly, in 1468 a Lancastrian secret agent, Richard Steres, a London skinner, was tried and sentenced to death before the constable. In the second decade of the reign the constable’s court was much less active, but was still used to try cases of insurrection, and from as early as 1467 Edward appointed a special officer to act as king’s promoter of all causes civil and criminal concerning the crime of ttse-majeste before the judges of the constableship and admiralty of England.2
Of wider scope and greater importance than the constable’s court were the commissions of oyer and terminer. Such commissions might and often did try cases of treason, and some of the more famous treason trials of the reign were heard before them, such as those of Thomas Cook and his fellow-Londoners in 1468, of Henry Courtenay and Thomas Hungerford at Salisbury in 1469, and of Clarence’s associates, Stacey and Burdett, in 1477. But they were also widely and frequently used as a weapon to deal with major disorders, especially large-scale riots involving powerful offenders, which the justices of the peace or the ordinary courts were often incapable of settling. They might be either general commissions, with wide powers over a group of counties, or specific to deal with a particular crime or group of crimes. They had the advantage of speed and efficiency and were notably more successful in terminating cases than either the king’s bench or the justices of the peace. But their chief advantage lay in the quality of their personnel. They could be staffed by royal councillors and household men, magnates and peers with local influence, and a number of judges and professional lawyers. Together this often gave them an authority which even the most defiant and well-protected offender could hardly ignore.1 Thus the special commission appointed in 1469 to try Hungerford and Courtenay contained two dukes, three earls, four barons, ten justices and serjeants-at-law, including the chief justice of common pleas, three knights and the mayor of Salisbury.2 The marquis of Dorset, four earls, twelve barons and six justices formed the commission which sat in judgement on Stacey and Burdett in 1477.3 General commissions might be scarcely less impressive. Thus one appointed for six midland and Welsh Border shires on 13 February 1468, included the dukes of Gloucester and Clarence, the earl of Warwick and Earl Rivers, seven barons, all with local interests, twelve lawyers and three knights, all king’s councillors.4 It was often only by the appointment of such high-powered tribunals that results could be obtained, as may be seen from the misfortunes of a commission set up in 1463 to deal with disturbances in the county of Cambridge. Its first session was scheduled for January 1464, when only Peter
Ardern, one of the justices of common pleas, and three local gentry were present from the members of the commission, but the perpetrators of the original crime with twenty supporters forcibly prevented the jury of presentment from appearing. They even went so far as to threaten the commissioners, saying that they would let the hearings start, provided that they were not indicted. Not until February, when the king himself, with the earl of Worcester and other lords and justices, arrived in Cambridge, could a greatly strengthened commission be appointed. Proceedings got under way and the cases against most of the accused were successfully concluded.5
On this particular occasion it was probably the personal presence of the king which guaranteed firm action in a difficult local situation. But when the king was not on the spot, it was the presence of magnate members of the commissions, especially in their early sessions, which proved a crucial element in their success. For magnates implied their retinues, and a coercive force capable of casting a deep shadow over even the tallest malcontent. Here, too, the oyer and terminer commissions held an advantage, for most if not all magnates appointed to them usually took an active part in their work, in contrast to rather occasional contributions to the sessions of justices of the peace. They were also a highly personal weapon for the king, for few commissions did not include a substantial element of councillors, household men, or lords close to Edward. Thus of the fourteen non-judicial members of the midlands commission of February 1468 mentioned above, each one was either a royal councillor at the time or appears as such before 1471.1 There was also a close connection with the council itself in its judicial capacity, which played a part in preparing evidence and interrogations.2 These various advantages help to explain why such extensive use was made of the commissions as a weapon against major disorder, in contrast with the J.P.s, who were usually ineffective except in dealing with routine crime. It is also characteristic of Edward’s methods of government that he should rely upon an essentially ad hoc apparatus whose strength derived from the close connection between the men who worked it and the king himself.
