by S B Chrimes
But Professor Roskell has taught us2 also to remember that the number of persons summoned to mediaeval parliaments was different from that which actually attended, which was smaller, and often very much smaller. It is clear that the number of lords who attended those mediaeval parliaments about which we have enough information to be able to calculate varied a great deal, and was never equal to the number summoned. This fundamental fact inevitably modifies the traditional views of the ‘upper house’. Unfortunately the attendances at Henry VII’s parliaments are not known,3 and no conclusions can be drawn. But it can hardly be insignificant that the oaths to preserve law and order, etc., supposed to have been administered to all the lords in the first parliament, were taken by only thirteen out of seventeen prelates summoned; seventeen out of twenty-seven abbots and priors summoned; and by eighteen temporal lords out of thirty-four summoned, and of these, two were dukes and eight earls, so that only eight out of the other twenty-four lay lords took it.4 The circumstances were, of coarse, exceptional, yet we cannot suppose that the attendance of lords was necessarily at all full in Henry VII’s parliaments, and apparently it is not until the later years of Henry VIII that a rate of attendance much higher than the usual mediaeval average becomes evident.
Notwithstanding the extraordinary neglect with which the Great Council of mediaeval and early Tudor periods has been treated by historians, it must be remembered that the lords spiritual and temporal might receive writs of personal summons to assemblies other than parliaments; that at these assemblies major questions of policy, of peace and war, might be considered, questions of State which might transcend in importance most of the matters, largely routine and legalistic in character, which came before the lords and commons in the parliaments.
That these meetings could be important is not open to doubt, but available information on the subject remains as slight now as it did sixty years ago. An assembly of the new King’s Council and other persons in London in September 1485, at which Henry VII renewed his promise to marry Elizabeth, and which accepted him as successor to Edward IV, not Henry VI, seems to have been a Great Council. A meeting at Charterhouse, Sheen, in February 1487, which decided to offer a general pardon to any would-be rebels who submitted, to take in hand the Queen Dowager’s lands, and to make a public exhibition of the earl of Warwick, was probably a Great Council. Another meeting in November 1488 discussed the state of affairs regarding Brittany and apparently authorized the levy of a subsidy of a tenth which was ratified by parliament three months later. A Great Council in June 1491 authorized the intended war against France and the exaction of a benevolence, said to have been ad instancium et specialem requisicionem tam dominorum spiritalium et temporalium quam aliorum nobilium (at the instance and request as well of the lords spiritual and temporal as of other notables).1 In 1496, between 24 October and 6 November, another assembly considered the threat of invasion by Scotland, and granted £120,000, at least as a loan, a grant subsequently ratified by parliament in January 1497.2
Map 3 Parliamentary England 1439 to 1509
Five meetings of the Great Council are thus known to have been held; all except the first, which was inaugural to the reign, were concerned with the threats of war or rebellion; three of them authorized the imposition of financial aid in advance of any parliamentary grant. We do not know who attended these meetings, but from the point of view of Henry VII’s urgent political needs, they clearly performed a function which must have seemed indispensable. The machinery of parliament was clearly too slow and cumbersome to respond to emergencies.
Just as little or nothing of an innovatory nature can be discovered about the lords in Henry VII’s parliaments, so also nothing significantly new can be found in regard to the commons. Electoral arrangements continued, so far as we can tell, as they had been during the preceding generation.3 The constituencies remained the same; no new parliamentary boroughs were created, so that seventy-four knights for the shires, and 222 citizens and burgesses for the boroughs, 296 members in total, continued to be summoned; there is no evidence that any attempt was made by the Crown to ‘pack’ the commons, nor is there evidence that there was any need for the government to do so. A number of the king’s councillors were frequently elected, and the speakers were clearly regarded as primarily king’s servants, and received rewards accordingly. They made the usual protestations, and no change in the matter of privilege occurred. Each of Henry VII’s seven parliaments had a different speaker; they were Thomas Lovell, John Mordaunt, Thomas Fitzwilliam, Richard Empson, Robert Drury, Thomas Englefield, and Edmund Dudley. All of them were lawyers by profession, all (except Dudley) received knighthoods, and most of them were otherwise prominent in the king’s service.1 There is no evidence of anything that could be called serious friction between the king and the commons, although it is not to be supposed that all the king’s measures put to parliaments were equally popular, and some might arouse criticism and perhaps opposition.2 But nothing approaching a crisis, or even strained relations, occurred. The king’s pleasure prevailed whenever pressed, and further steps in constitutional history do not materialize out of mere agreement and acquiescence.
For only one of the seven parliaments have we a full record of the names of the elected representatives; apart from this, and the parliament of 1491–2,3 for which we have 294 names out of 296, and for that of 1495, for which we have 114, we know only about seventy for each of the other parliaments and it is not possible therefore to obtain any complete picture of the personnel. But from the materials available, no significant conclusions emerge. The kinds of people elected were much the same as had been elected in previous decades. A modest proportion of members had served in previous parliaments, and some were re-elected during the reign; some knights of the shire class got elected in boroughs, but there was nothing new in this phenomenon; various kinds of men sought and obtained seats: ‘King’s servants, nobles’ servants and relations, local administrators, lawyers within and without the bar, knights and squires, farmers both of land and revenue, traders and tradesmen’ all can be found in the existing records.4 Two hundred and ninety-six of them were elected, but since we have no means of knowing the names of most of them, we cannot know how many of them actually attended, all the more so because many exceptions to the traditional payment to them of wages by their constituencies had occurred for one reason or another.5 There is, however, no reason to suppose that attendance was not the normal practice, and there is evidence that some people eagerly sought election. Private careers, regional and sectional interests could be advanced during the comparatively brief sessions; public concerns and a share in implementing the king’s will were attractive occupations for many who might not otherwise come to Westminster and reside for a few weeks on the fringes of the court. All of Henry VII’s parliaments were summoned to Westminster, as the practice had been since 1470, and was to be the subsequent practice with rare exceptions. Few who had the opportunity would fail to rise to the occasion.1
1 R.P., VI, 526.
2 G. R. Elton, The Tudor constitution (1960), 228, unaccountably says, ‘perhaps twenty-five weeks’; R. L. Storey, Reign of Henry VII (1968), 118, says, ‘fifty-nine weeks’.
3 See below, p. 141.
4 See below, p. 195 ff.
5 The judges held that an attainder without the assent of the commons was invalid. See Y.B. 4 Henry VII, Mich., pl. 11, reprinted in Chrimes, op. cit. 382; and Pollard, Henry VII, II, 19.
1 H. L. Gray, The influence of the commons on early legislation (1932), 141–56, was justified in stressing the importance of government bills in this reign, and emphasizing that many of the acts which became statutes originated similarly; but much of his elaborate argument was based on the fallacious belief that the heading ‘communes petitions’ in the rolls of parliament meant bills originating among the commons themselves, and must therefore be treated with great caution. See K. Pickthorn, Early Tudor government, I, Henry VII (1934), 127; S. B. Chrimes, English constitutional ideas in the fifte
enth century (1936), ch. III, 236–49; Excursus III, ‘Critical memorandum on H. L. Gray’s The influence of the commons on early legislation’.
2 See below, p. 177.
3 The not uncommon laudation of Henry VII’s legislative activity springs from F. Bacon’s History of King Henry VII (1622). Bacon, as a lawyer, was naturally interested in this aspect of Henry VII’s government, and was right to stress the importance of taking into account the legislative performances of any government in making historical assessments (ibid., ed. Lumby (1885), 75), and was right to describe a number of the statutes of the reign as ‘good’, but he does not convince us that the reign was especially remarkable for its legislation.
4 See Chrimes, op. cit. 126–30.
5 It is said that the term has not been traced earlier than 1544 (Elton, op. cit. 241, fn. 1, citing A. F. Pollard, Henry VII, I, xxxiii).
1 ‘List of members of the fourth parliament of Henry VII, 1491–2’, ed. Winifred Jay, B.I.H.R., III (1925–6), 175. The list is printed from B.M. Harl. MS. 2252, and is said to be in an early sixteenth–century hand. But there is no reason to suppose that the document is not a contemporary one.
2 J. Enoch Powell and Keith Wallis, The House of Lords in the Middle Ages (1965), 529; cf. Wedgwood, History of parliament, register (1938), lxi–lxviii.
1 For the cases that follow, see G.E.C.; D.N.B.; and The historic peerage, ed. Sir H. Nicolas and W. Courthope. For valuable details regarding each of these cases, see J. Enoch Powell and Keith Wallis, op. cit. 481, 524 ff. For Sir Charles Somerset, see also Rhys Robinson, ‘Early Tudor policy towards Wales; the acquisition of lands and offices in Wales by Charles Somerset, earl of Worcester’, Bull. Bd of Celtic Studies, XX (1964), 421–38.
2 See above, p. 35, fn. 2.
1 G.E.C., II, App. B, 565–7. Of these thirty-seven creations (or re-creations) eight were in favour of home or foreign royal personages; of the remaining twenty–nine more than half were in favour of persons who were the king’s close associates in the government or court, and among these were included John de Vere, earl of Oxford, John Cheyney, John, Lord Dinham, Giles Daubeney, Sir William Stanley, Sir Edward Woodville, Viscount Welles, John Savage, Robert Willoughby, Edward Gourtenay, earl of Devon, Edward Poynings, Gilbert Talbot, Henry Percy, earl of Northumberland, Charles Somerset, Thomas Lovell, Richard Guildford, Reginald Bray, Thomas Grey, marquis of Dorset, and Thomas Brandon. Only one lady was awarded Garter robes by Henry VII, viz, his mother, Margaret Beaufort. (His mother-in-law, wife and two sisters-in-law had been granted them by Edward IV.)
2 See analysis and tables in Wedgwood, op. cit. liii–lxxviii, 404–612.
1 ‘The problem of attendance of the lords in mediaeval parliaments’, BJ.H.R., XXIX (1956), 199.
2 ibid. 153–204.
3 ibid. 197.
4 ibid.
1 Rymer, Foedera, XII, 466.
2 For details, the only account is still that furnished by R. Steele (ed.), A bibliography of royal proclamations of the Tudor and Stuart sovereigns, 1485–1714, I, England and Wales (1910), lxxvi–lxxvii. The valuable Tudor royal proclamations, ed. P. L. Hughes and J. F. Larkin (1964), has nothing material to add to this particular subject.
3 Wedgwood, op. cit. lxxix–cxxvii.
1 Roskell, The commons and their speakers in English parliaments, 1376–1523 (1965), 298–308, and App.; cf. Wedgwood, op. cit., Biographies.
2 The remark by Thomas Betanson in his letter to Sir Robert Plumpton, dated 13 December 1485, referring to the bill of attainder in the first parliament, is revealing, but it would be unwise to build too much upon it. ‘How beit,’ he says, ‘ther was many gentlemen agaynst it, but it wold not be, for yt was the King’s pleasure.’ Plumpton correspondence, ed. T. Stapleton (Gam. Soc. (1839), 49).
3 See above, p. 137, fn. 1.
4 Wedgwood, op. cit., Register, lxxxvii.
5 ibid, cxxiii–cxxvi.
1 If we had more evidence such as that contained in a brief report made by Colchester M.Ps in 1485–6 (contained in the Red Paper Book of Colchester, ed. W. Gurney Benham (1902), 60–4; extracts in Wedgwood, op. cit. App. XIV, 752–4), we should know more about what interested at any rate burgesses and their constituencies.
Chapter 8
JUDICATURE
To survey the whole field of royal jurisdiction in the reign of Henry VII would be a task impossible to attempt in a work of the present sort, and would in any event be impracticable until such time as far more detailed investigations into the legal history of the period have been undertaken than is at present the case. In some fields much has been done, in others nothing at all. For our present purposes, however, some features of the administration of royal justice need to be taken into account, especially conciliar jurisdiction and the activities of certain special tribunals, the activities of the justices in the Exchequer chamber and the courts of common law, the equitable jurisdiction of the chancellor, and the functions of the justices of the peace, who, however, would perhaps better be considered as among the local agents of the royal government.
The King’s Council was not only an advisory and executive body, it was also a court of law.1 It exercised the residuary jurisdiction vested from time immemorial in the sovereign lord king. As a court it held sittings either in the Star Chamber at Westminster or anywhere in the realm whither councillors might accompany the king. But it was not yet the court of Star Chamber. Star Chamber was still a place, not a tribunal.2 No instance has been found of the address of a plaintiff’s bill or petition to a court of Star Chamber in this period. The bulk of known bills were addressed to the king; some others to the king and council, or to the chancellor, or to the council.3 The functions of the council as an executive body are barely distinguishable from its functions as a court. Its jurisdiction was not primarily criminal and did not extend to treason or felony; it dealt at least as much with civil disputes. There is no known instance of litigation before the council being initiated by the government; all such litigation began with the presentation of a bill or petition, submitted either by the plaintiff in person to the council in session, or to individual councillors, or to the king himself, or to the clerk of the council.1
The purpose of such bills was to seek redress from the supreme authority for wrongs that could not obtain remedy elsewhere, either because of the applicant’s poverty, or the deficiencies of the common law, or of the local power and influence of the other party, or because of a combination of these reasons. Once the council was satisfied as to the bona fides of the supplicant’s bill, it could proceed by methods not available to the courts of common law. It could summon the defendant by a writ under the Privy Seal requiring him to appear before the king and his council. But the council employed no staff of process-servers and in the great majority of cases the plaintiff or his agent were obliged to serve the writ – a circumstance that must have considerably impeded the securing of remedy. If a second Privy Seal failed to procure the attendance of the defendant, a writ of attachment addressed to the sheriff would follow – and if all else failed a commission requiring the magnates of the county to seize the culprit might be resorted to.
Once the parties had been got to attend, procedure continued by way of answer and demurrer, defendant’s oath and examination. No juries were used, but no attempt was made to oblige a defendant to incriminate himself. Replication and rejoinder, and examination of witnesses might follow, and if the whole matter were not referred to special commissioners for decision, a public hearing was arranged for formalities and for the delivery of judgment by decree. Notwithstanding the possibilities of long delays in some instances, the evidence suggests that justice was administered with reasonable promptitude.2
Fifty-nine per cent of the cases known to have been adjudicated by the council in Star Chamber at this period were private suits in which rioting, of trivial or large dimensions, was alleged as the origin of the complaint.3 Various offences against public justice were alleged in a few cases, and some criminal acts in others.
Most of the offences were of a commonplace kind, and miscellaneous civil suits and municipal and trade disputes brought up the total so far as is known. The six offences specified in the act of 1487 hardly figure at all in the known cases. The offence of maintenance was normally dealt with in the common law courts and was not regarded as Star Chamber business; the taking of bribes by juries, a common offence, produced no case in Star Chamber; embracery figures only once; there is no evidence that Star Chamber tried a single offender against the laws in restraint of retaining; complaints were made about offences by sheriffs, but were not initiated by the government, which left such cases to the common law courts. Rioting, the sixth offence mentioned in the act of 1487, accounted for more than half the extant cases, most of them initiated by private parties, but in one instance by the attorney-general. The punishment of rioting was a major concern of Henry VII’s government and must be considered later; several statutes were made to cope with the problem and one of these provided that where the riot was committed by forty or more persons or was ‘heinous’ for some other reason, the record was to be sent up to the council, presumably in Star Chamber, so that adequate punishment could be inflicted. Generally, the council left the trial and punishment of rioters to the common law courts.1
