by S B Chrimes
When Starkey died in October 1486, his successor as chief baron was William Hody, whose father John had been chief justice of the King’s Bench in 1440–1, immediately before Sir John Fortescue. Hody retained the office for the whole of the rest of the reign and for the first eight years of Henry VIII’s reign. He had been made attorney-general and a serjeant by Henry VII as recently as 1485.
Apart from those who were sooner or later promoted to be chief justices, fourteen further judges of the benches were appointed during the reign, and ten barons of the Exchequer. In the King’s Bench these were Guy Fairfax and John Sulyard from September 1485 (both previously Yorkist appointees), Thomas Tremayle from 1488, and Robert Brudenall. One chief justice and two puisne judges at a time sufficed for the King’s Bench, but double that number of puisne judges were appointed to Common Pleas. All four justices appointed in 1485 – Richard Neele, John Catesbey, Humphrey Starkey, chief baron, and Roger Townsend – had previously been appointed by Richard III. William Calowe and John Haugh followed in 1487, William Danvers in 1488, John Vavasour in 1490, Fineux and Thomas Wood, later chief justices, in 1494 and 1495, John Fisher in 1501, John Kingsmill in 1503, and John Boteler in 1508.
Similarly, Henry VII’s first three barons of the Exchequer had served under Richard III, Bryan Roucliffe (or Radcliffe), Edward Goldsborough, and John Holgrave. Nicholas Lathell and Thomas Roche followed in 1487 and 1488; Thomas Barnewell in 1494, Andrew Dymock in 1496, Bartholomew Westby and William Bolling in 1501, and John Alleyn in 1504.
All the justices of both benches, and the two chief barons of the Exchequer had, in accordance with custom, been called to the degree of serjeant-at-law, before being appointed justices; none of the barons of the Exchequer, however, had been, and so far as is known, only three of them were members of an inn of court; the normal course of promotion to the bench in the Exchequer was service as an official therein. The outstanding feature of all these judicial careers was continuity of tenure despite the political vicissitudes of the times. All justices held office at the king’s pleasure, but none was dismissed for political reasons, or indeed for any reason in the Yorkist and early Tudor periods, except after the Readeption of Henry VI in 1471. Sir John Fortescue had been replaced by John Markham as chief justice of the King’s Bench in 1461, but Fortescue, who was perhaps the only politically minded justice of the whole period, had removed himself by fleeing with Henry VI. In any event, the number of serjeants available for promotion to the bench was quite small at any given time.1 The common lawyer’s profession, with its own system of training, its own hierarchy of apprentices, benchers, readers, its order of the Coif, could maintain its standards, pursue its rewards, often large, and serve the king and the law whoever happened to occupy the throne at any given time. Entry into the order of the Coif was by royal command to take up the status and degree of serjeant-at-law, admission to which was designed to furnish recruits to the judicial benches, and in any event normally entailed inclusion in judicial commissions of Assize, gaol delivery, etc. Not only was this – the first and most lucrative of the laymen’s professions – a way for able men to climb to wealth and influence in the State, but it also contributed a salutary element of stability, continuity, and professional standards to a society which had need of these qualities, even though not all lawyers enjoyed public approbation.1
The king’s justices had not only their own courts of King’s Bench or Common Pleas, or Exchequer to attend to; they served regularly as itinerant justices on commissions of Assize, of oyer et terminer, gaol delivery and others, as well as sometimes on special commissions, and were also sworn of the commissions of justice of the peace for counties with which they might be connected. Some might perform other services on behalf of the government. All were liable to be summoned from time to time to an assembly of all the justices of England for matters of law, meeting usually but not always in the Exchequer chamber. This assembly for deciding difficult points of law was very much a fifteenth-century creation: the first reported assembly was in the reign of Henry IV. Reference to it was extensive from Henry VI’s time, when its authoritative position became fully recognized. Some two hundred cases are reported in the Year Books from 9 Henry IV to 19 Henry VIII.2 The function of this assembly, at which many of the serjeants and some apprentices assisted by argument, was to advise on points of law, which might be raised by the chancellor on a point of equity or common law, by parliament, by council, by any court of importance, or by the king himself. It was not a court of first instance; no individual litigant would get advice from it. Legal difficulties were referred to it, whether arising from complexities, the absence of precedents, equal division of opinion in the courts, or from reasons of policy. All kinds of law were its concern, whether common law, canon law, the law of the constable’s and marshal’s courts, law merchant, or palatinate custom. The opinions of the assembly, even of a majority thereof, were accepted without question, and no more authoritative pronouncement on legal problems could be got.1
The use made of the assembly by the king and others in the early years of Henry VII, especially on some difficult constitutional problems, is very relevant to our purpose. Indeed, the key to some of Henry VII’s actions at the time of his accession and in ensuing years is to be found in the opinion of all the justices in Exchequer chamber.
Before the opening of Henry VII’s first parliament, all the justices, it is reported,2 met at the Blackfriars to consider ‘les matters le Roy encontre le Parliament’. There were, it was asserted, plenty of good statutes very profitable for the realm, if they could be executed. But how were they to be executed? That was the question. That indeed was the question which beset Henry’s government, and it was often difficult to find satisfactory answers to it.
Two fundamental difficulties confronted Henry at the start. He was an attainted person, and his prospective wife and her sisters had been stigmatized as bastards by act of parliament. Both points were resolved by the justices in Exchequer chamber. As to the first, it was decided that no act reversing the attainder was necessary in the case of Henry, for it was held that on taking upon himself to be king, his attainder was ipso facto discharged.3 The second point was more difficult. The problem was how to procure the reversal of the act which had bastardized Edward IV’s children. Its contents were now deemed to be so scandalous that rehearsal of it in the parliament would be undesirable and recital of it in a repealing act should be avoided so as not to perpetuate its terms. But it could not be taken out of the record without an act of parliament to protect those who had custody of the records.4 In the upshot the offending act was nullified without recital.
Also in the Exchequer chamber all the justices except two held that assignments against collectors of tenths made under Richard III were still valid even though Richard III had died before the collection had been completed.5 All agreed, at the Whitefriars, that in the matter of the payment of the arrears of their own fees due from the customers and collectors of London, an act of Henry VI providing for this payment as a first charge on the customs must be followed notwithstanding an Exchequer difficulty arising from the dates of patents appointing them as justices. The law was that they were to have their rate for each day of service, without regard to the date (26 August) of the patents made by the new king for the justices and the customers in relation to the Michaelmas or Easter days at which Exchequer practice normally made the payments.1
The chancellor put a ‘great question’ to all the justices about the legal effect of a bill sent from the ‘Common hous’ to the lords for their assent. Would the bill declaring that the inheritance of the crown of England and of France, with all the preeminences and prerogatives, had passed to our sovereign lord the king Henry VII and the lawful heirs of his body have the effect of a resumption of the franchises and liberties of all manner of persons, or not? The reply of the justices was ‘not’.2
On other occasions the justices held that the statutes of England bound the king’s subjects in Ireland, and the king
could not by licence give exemption from a statutory felony;3 that letters patent ratified by parliament would be void if they did not adhere to the terms of the parliamentary confirmation;4 and that the assent of the commons was necessary to give validity to an act of attainder.5
It may sometimes have been the case that acceptable advice was given by the justices to the king rather than that the advice given was accepted,6 but this was rare, and in one outstanding case the king received a rebuff when he sought their opinion on a case of great importance to him, but which was sub judice. The king sought the opinion of all the justices on the legality of Humphrey Stafford’s claim, in advance of the trial, that sanctuary rights made illegal his arrest on charge of high treason. But the justices would not do this. ‘It is not good order to argue the matter and give our opinions before it has come before us judicially.’7 Chief Justice Huse went to the king and besought him to excuse them, which with some reluctance he agreed to do. In due course, all the justices of both benches sitting in King’s Bench decided that the claim to give sanctuary for treason could not be upheld when based on prescriptive right alone, and all concurred in sentencing Stafford to death.8
It still remains impracticable to survey the functioning of the courts of King’s Bench, Common Pleas, Exchequer, or Chancery in the reign of Henry VII. This is not because there is a lack of unprinted source material for these subjects; on the contrary the bulk of it is immense1 and this circumstance is doubtless one reason why very few research workers have so far been attracted to the formidable task of coping with it on a scale sufficient to enable conclusions to be drawn. We cannot here attempt to summarize the legal history of the reign, nor would it be within our scope to try to do more than estimate the effect of Henry VII’s government on the functioning of these courts.
It seems that the reign of Henry VII made little or no difference to the workings of the common law courts. There is not much evidence that Henry VII’s government interfered with or modified the functionings of the common law courts in any marked degree, except that in matters especially touching the king’s financial advantage greater reliance was put upon the conciliar machinery than upon the common law courts, which however continued to be the principal resource for maintaining law and order. It would be a delusion to suppose that Henry VII’s government in any way undermined or distorted the work of the common law courts. The basic difficulties of these courts arose from the inherent weaknesses of common law procedure, not from interference by the Crown; indeed these weaknesses persisted, perhaps because of the Crown’s inability or unwillingness to intervene by legislation to improve procedure. The introduction of the ‘Bill of Middlesex’ device helped to curtail procedure in some cases, but this had occurred in the mid-fifteenth century, and was in no respect novel in Henry VII’s reign. In the only serious study of the work of King’s Bench in the reign, still unpublished,2 we are told that, although the court’s intentions were good, it was often very busy doing nothing, busy recording failure rather than success. Its most serious defect was not slowness or expense, but the futility of its frequent recourse to outlawing as an expedient injudicial procedure. In the course of Michaelmas term 1488, when some two-thirds of the 958 cases were civil suits, outlawing, which was seldom reversed, was resorted to in the bulk of the cases, and few final judgments were recorded. Even in Crown Pleas, only about a fifth reached judgment. Outlawing as a means of getting defendants into court was singularly ineffectual, but its financial possibilities did not pass unnoticed by the Crown. The time came when royal administrative action was taken to profit from outlawries and inlawries.1 The Crown benefited therefrom, but the ineffectiveness of outlawing as a weapon in judicial procedure remained. But there was nothing new to Henry VII’s reign in this, except perhaps the will to extract financial profit from it, and although national crises might still further slow down the machinery of King’s Bench, it did not break down.
If what we know of the working of King’s Bench in the reign is limited, at least we know something, which is more than we can say of Common Pleas. There has been no continuation of Professor Margaret Hastings’s work,2 and we must assume that that court continued in much the same way under Henry VII as it had during the Lancastrian and Yorkist periods with which her work was mainly concerned. Her conclusion as regards the working of Common Pleas was much the same as Dr Blatcher’s for King’s Bench – slow and ineffectual functioning bogged down in mesne process, but no breakdown. She was doubtless right in thinking that ‘reforms were necessary when Henry Tudor seized the throne’.3 Yet, as she herself recognized, the enactments of Henry VII’s reign were, for the most part, not new in principle. She might, perhaps have gone further, and observed that the ‘enactments’ of Henry VII as regards the court of Common Pleas were negligible or non-existent.
As regards the court of Exchequer, we know nothing of its working for this period, except its efforts in enforcing penal statutes.4 When we come to the question of the equitable jurisdiction of Chancery, we are confronted with grave difficulties. On the one hand we have almost no facts for the period; on the other hand we have a good deal of historian’s generalities almost wholly derived from theorizings about earlier or later periods, none of which can safely be applied to Henry VII’s reign. Legal historians’ inferences drawn almost wholly from studies of Christopher St Germain’s treatise, Doctor and student, published in 1523 at the earliest,1 cannot be taken as evidence of what the Chancery was doing under Henry VII, if indeed that treatise can be taken as evidence of actualities at any time. The concrete study of the equitable jurisdiction of Chancery in the later fifteenth century is only just beginning, and has not reached the reign of Henry VII.2 But the results so far obtained are disturbing to received dogma on this subject.
Miss Avery may be right in asserting that ‘the most striking institutional development of the Lancastrian period was the growth of the equitable jurisdiction of the court of Chancery’,3 but there are formidable difficulties in demonstrating with precision what this development amounted to. In the first half of the period the material consists of little more than petitions presented; only after 1440 do answers, replications, and examinations become at all common, and recorded judgments remained extremely rare. The petitions themselves can seldom be dated with accuracy, and it is only from the long chancellorship of John Stafford, from 1432 to 1450, that materials survive in substantial numbers, but the number of cases tended to increase during the period as a whole. Certain conclusions can be drawn.4 The chancellors in this period were not administering a self-sufficient body of law; they were supplementing the common law. In the ‘equitable’ as distinct from the common law cases coming before the chancellors, the petitioners complained that no remedy was available at common law; in common law cases they complained that although a remedy at common law was available, it could not be obtained because of obstacles such as poverty or maintenance. In the absence of more than a few recorded judgments it is not possible to generalize about the remedies provided, but some cases show that the rules of common law were closely followed, and it can be assumed that these rules would be followed where appropriate. But the growth of equitable jurisdiction proper depended upon cases where the common law courts had no remedy to offer, and these cases were almost wholly concerned with contract and uses. The advantages to the petitioners in cases of contract arose from the fact that the common law courts largely restricted themselves to remedy in cases where written and sealed documents of contract could be cited. Chancery could offer equitable remedies where such documents could not be produced, or where strict performance could be deemed inequitable, or where protection was needed for victims of agreements made by force or fraud; or where specific performance or recovery of goods rather than damages1 were sought.
But the great expansion of the chancellor’s jurisdiction, Miss Avery concludes, in the fifteenth century, resulted from his defence of the interests of the cestui que use (the person for whose profit the land is held by someone else), and
this became in the reign of Henry VI the main raison d’être of the court, ‘and was due to the inability of the Crown to halt a process which was so damaging to its real interests’.2 Henry VII’s attempts to deal with the problem of uses by legislation is a matter to be considered below, under law-making,3 but here, whilst bearing in mind the limited success which Henry VII met with in these attempts, the point to note is that ‘the great development of the court was the result of pressure from the propertied classes’, who sought to get the court to protect their recourse to the creation of uses in various forms. ‘The equitable jurisdiction developed in spite of, or even because of, the weakness of the king’ in this sphere. Chancery was not primarily a court for the poor and needy, nor a royal court for the suppression of disorder and the control of the overmighty subject. It was rather a tribunal for landowners who wished to escape the restrictions imposed by common law upon their freedom to deal with their lands as they wished.4
Whether or not Miss Avery’s conclusions regarding the development of the equitable jurisdiction of Chancery before 1460 will be sustained for the period 1485–1509 must depend on detailed research upon the material for the period. But it seems highly likely that these conclusions will be upheld when that work comes to be undertaken, and some sense and substance is at last introduced into the theme. It still remains to be revealed just what part John Morton, chancellor for the fourteen years 1486–1500, played in the exercise of equitable jurisdiction. It would be interesting to ascertain how far his declaration that ‘no one who came to Chancery should leave the court without a remedy’ accorded with practice.1 But until this revelation is made, conclusions concerning the court of Chancery under Henry VII are impossible.
