The British Land Corporation : A Housing Manifesto

In recent decades, successive governments have presided over a crash in the level of home ownership in the UK, coinciding with skyrocketing inequality. 30 years ago, around 50% of individuals aged 25-34 owned a home (whether mortgaged or not). Today, it has almost halved to 26% of people in that age bracket owning a home. In the 1960s to 1980s it was possible for someone to have a working-class factory job that provided sufficient income to buy a home in the new suburbs, a car, to maintain a spouse at home and children. While they may not have enjoyed certain material comforts that are now ubiquitous, their financial position was fundamentally far more secure.

The notion that a person in a working-class job (or several such jobs, as is often the case) could afford to pay a mortgage, own a car and have a stay-at-home partner and several children, in 2022, seems preposterous. Wages as a proportion of GDP has shrunk in the developing world from over 60% in 1980 to under 50% now. This coincides with a proportionate increase in corporate profits as a share of GDP; in other words, there has been a straight transfer of the income of society as a whole from wage earners to shareholders. Declining union membership has predictably led to declining bargaining power for workers, and thus the ability of corporate management to pay workers less and squeeze more profit out of an enterprise. While this has occurred, governments have year-on-year increased in-work benefits and child tax credits in a way that effectively subsidises the reduced pay, transferring liability from businesses and shareholders to the state and taxpayer.

The state of affairs in which we now find ourselves, a new gilded age, was not a random happenstance. The wealthy have created think tanks to influence government and media, and made direct political donations, sometimes with expectations so specific that it amounts to an outrageous form of legalised bribery (notably, the Cameron government’s cutting of the limitation period for claiming unpaid wages in the Employment Tribunal from six years to two, at the behest of industry lobby groups that upon their own calculation determined it would save them from reimbursing almost a billion pounds backpay they owed to workers).

Such an obscene alteration in the trajectory of our society, from one in the postwar years that was moving towards ever greater wealth equality, ever more financial freedom for ordinary workers, more financial security for the average citizen, to one where ordinary citizens are going backwards by all measures and the rich grow ever richer, must be arrested with radical action. It justifies measures that in previous years would have been seen as extreme and far outside the mainstream.

Housing ownership and security of title and tenure lies at the heart of economic advancement and equality. And successive governments, and the market in the form of the large developers, have shown no capacity to turn this around. This calls for a three-pronged strategy to make housing affordable, secure and equitable.

Part 1: British Land Corporation

Each year, the major private land developers like Barratt and Taylor Wimpey make substantial profits with very handsome profit margins (around 20%). There is absolutely no reason why the state could not create a British Land Corporation to undertake the same function for the public good. It could be run similarly to the private developers (i.e. corporatised in structure), except that its charter would require it to build houses and flats at an amount only slightly above cost. The current profit margins mean the government could build and sell a house that now costs £350,000 for around £280,000 instead. A saving of £70,000 on one’s first home would make an enormous difference to housing affordability, lowering indebtedness and the length of time required to save a deposit. The British Land Corporation would not be weighed down by the need to pay dividends to shareholders and thus would be able to deliver the product, housing, at much cheaper rates than competitors.

The existence of the British Land Corporation would, in itself, put downward pressure on the price of new homes as the large private developers would have to lower their prices, accept smaller profit margins, in order to compete with the British Land Corporation and attempt to maintain some market share. They would have to do what the private sector claims it is able to do; to offer the same product/service more cheaply and more efficiently than the state can while still paying a dividend to shareholders. We would indeed see whether the private sector is, in the case of land development, capable of creating such savings through private sector efficiencies such that they would be able to compete on price, or whether they would instead have to compete on size, quality, luxury, for those who could afford it. In any case, it seems that for the bottom half of the market, houses would become significantly cheaper as a result of the British Land Corporation’s efficient housebuilding programme.

My proposal would also be that the British Land Corporation also be permitted to develop some proportion of its properties as rental properties, in order to provide a permanent sustaining income to fund its office functions, separate from the large capital expenditures and then revenue receipt cycles that land developers experience. If it transpired that such rental income provided more than was necessary, the surplus could either be ploughed into development / lowering house prices or returned to the Exchequer. Indeed, it would be possible for

Part 2: British Mortgage Corporation

At present, the vast majority of money in circulation is what is known as ‘commercial bank money’. That is, when a bank loans money for a mortgage to a customer, they simply put an asset on their balance sheet (for debt is an asset to banks, obviously) and then electronically credit your account with the amount. Banks do not get the money they lend out in mortgages from deposits from other customers. Or rather, from deposits and other assets (cash, securities, etc) they are able to meet the central bank reserve requirement (their capital reserve ratio, at present I believe it’s 8%). So if they have £8,000 that a person deposited in cash into the bank, they can use that to meet the capital reserve ratio to loan out £100,000 to another person. This ‘commercial bank money’ only exists electronically, and it is treated as money because other commercial banks accept it as money, and it has a one-to-one value ratio to ‘central bank money’ (where commercial banks keep their accounts, and their reserves) and to cash sterling.

If I receive £100,000 in a loan from a bank, and use it to buy something real, I can do that because commercial bank money is accepted as being identical to cash sterling or central bank money for the purposes of everyday use, and because when I use that money to buy something, it is typically being transferred from one commercial bank to another commercial bank. Real pound sterling cash constitutes about 3% of the money supply. Perhaps another 10% is central bank money held and registered in Bank of England accounts. All of the rest is money that is created by commercial banks when they make loans, and simply electronically credit an account with the new money.

When the loan is repaid, all of the principal is “extinguished” so it is not as inflationary as you’d expect. Say I have a loan of £100,000 at 5% to be repaid after one year. The bank would credit me the £100,000. I would spend it into the economy. After one year I would repay them £105,000. The £100,000 principal is extinguished, but the extra £5,000 remains in the economy and now belongs to the bank as profit. Where does that extra £5,000 come from? From other new loans. You need a constant cycle of credit expansion in order to pay off old loans. I do not criticise it as a system, it has allowed economies to grow far more quickly, and create far more wealth, than we were able to do when credit expansion was constrained by the ability to dig gold out of the ground.

However, commercial banks enjoy this special privilege of money creation that no other business has. And if you think, “Why don’t I just create my own bank?”, well the prerequisites to get a licence are very high (you need at least £50,000,000 in cash, as well as an entire banking infrastructure, legal department, compliance officers,etc). But many companies have asked that question, hence you now have Sainsbury Bank and the like.

But it also raises the question, why don’t we simply have the Bank of England loan us the money for mortgages? Commercial retail banking, when undertaken with proper controls, is a literal licence to print money. It doesn’t require any particular private sector efficiency or skill. And so it does raise the question, why do we not have a British Mortgage Corporation to provide mortgages at cost to ordinary individuals? Australia had the Commonwealth Bank, which served as both its central bank and its largest commercial and retail bank. It split the reserve function off with a Reserve Bank of Australia some decades ago, and the government privatised the remaining Commonwealth Bank in the 1990s for amounts that now seem like a pittance compared to its annual profits. It can be done; it has been done before.

Such a bank would be free to provide payment holidays for mortgages during unemployment, to accept housing benefit for mortgage repayments, and generally approach mortgage provision with a more social orientation. The goal would be to get the loan repaid, but not at any cost and liquidating the asset wouldn’t be the first option if a person ceased for a certain period of time to be able to pay their mortgage. Payment holidays would also have nil inflationary effect if the ‘BMC’ also determined that interest would not accrue during such a holiday, because no further new money would be being added to the economy by the conclusion of the loan than had been originally contemplated.

A British Mortgage Corporation, working arm-in-arm with the British Land Corporation, would be in a position to provide cheaper homes, with smaller mortgages, more reasonable payment terms, and a far more comprehensive social safety net when people lose their jobs, or undergo a divorce. And they would leave commercial retail deposit banking, mortgages for buy-to-let properties, business and commercial banking and loans to the existing commercial banks. The BMC would solely address and provide for individuals seeking a mortgage for their primary home. And nobody would be forced to take out a mortgage with the BMC, so anyone who had such a strong free-market objection to an at-cost mortgage would be free to get a mortgage with a private commercial bank and pay a higher rate if they so chose.

Creating these two entities would not cost the taxpayer anything; they would be self-funding. The primary objections would come from those who fear loss of income from retail mortgage lending and housing development, and also feared that such undertakings might actually work and provide the population with thriving examples of how our economy could be run differently, for the benefit of all.

Part 3: Local Authority Housing

In this alternative housing market, I would still envision a large role for local authorities providing council housing, however it would be to provide secure rental accomodation for those who are most economically vulnerable, as well as affordable housing to be rented to those saving for their first house or who require a rental property for any other reason. Local authorities could easily fund a large housebuilding programme through borrowing, and once built they would derive a rent from the properties in perpetuity. If the BLC and BMC were providing for affordable housing and mortgages, there would be no need and no justification (even accepting the false Tory justification at face value) for ‘right to buy’ schemes, especially given so much council housing has simply been bought up by buy-to-let barons who rent it at a far higher rate to tenants who pay their rent with housing benefit, costing the state far more than when those houses were held, inalienable, by the local authority.

Local authorities would also be vital in working with the BLC to green-light new developments, and NIMBYism would undoubtedly be strong in many areas. But there are many sensible, proportionate developments on the drawing board that are just waiting for funding and approval, and I would far rather that the efficiencies/profits of such endeavors were poured back into lowering the price of property rather than paying dividends to the already wealthy.

A better way

These would be, according to the current economic orthodoxy and ‘mainstream conesnsus’, radical solutions. However, they would not cost the government anything in new expenditure. The BMC could provide all of the funding the BLC needed to get off the ground, and within 15-20 years the BLC would have all the income it needs from house sales to be self-sustaining in perpetuity. The BMC would then exit providing commercial-scale loans to BLC, and stick solely to retail mortgage lending.

This would also have the side effect of diverting investment that currently flows into the housing market, pushing up asset prices (house prices and rents) while providing little in the way of socially useful byproducts, into more productive areas of investment like manufacturing, technology development, energy, overseas trade, and hopefully drive a wave of innovations and new business startups. Money that once chased and competed over a limited housing stock would instead compete to fund business opportunities and existing enterprises.

These solutions would face intense opposition from the forces of the status quo, from capitalist think tanks, from the mouthpieces and shills of the billionaire class. But a clear-eyed and sustained political campaign from the next generation of voters for whom home ownership looks ever more out-of-reach could make it not only politically popular, but unstoppable. After decades of stagnation, what do we have to lose?

Medieval Law Bites: A ‘Freeman on the Land’?

The French senior court known as the Parlement de Paris, on the ‘Lit de Justice’ or Bed of Justice. How delightfully cosy.

This is the first in a series of posts providing a selection of the fifteenth-century Year Book reports.

R v Thomas Armethorpe (1464)

Gaol Delivery at the Nottingham Assize

In order to do justice in the shires and boroughs, the six circuits of England were each visited by two commissioners, twice a year, to hold assize sessions. The commissioners could be justices of King’s Bench, Common Pleas, Barons of Exchequer as well as the Attorney-General or serjeants-at-law.

Their commissions would be the Commission of Assize, the Commission of Nisi Prius, the Commission of Gaol Delivery and the Commission of Oyer and Terminer. In respect of gaol delivery, when the commissioners arrived at a stop on the circuit, they would try all of the prisoners held on indictments in the county gaol. A single jury might try several felons one after the other.

Item: Before Sir Robert Danby CJCP and another justice, at the Nottingham gaol delivery on 23 July, 1463. The plaintiff appealed [privately prosecuted] the defendant by bill that defendant feloniously stole certain of plaintiff’s sheep and led them away on Friday, 29 April, 1463, and the defendant was taken [into custody] at plaintiff’s suit.

Plaintiff found two pledges to sue his appeal.

Defendant was arraigned.

Defendant was asked how he would acquit himself.

Defendant replied that he would acquit himself “by God, and our Lady St Mary and by Holy Church”

Defendant was told that this was no answer, but that defendant ought to answer according to the form and course of the law, and to do as the law provided, or otherwise he would not do well.

Defendant would not give any other answer, but pleaded thus and held himself to the same answer for an hour.

The Justices told defendant and counselled him to say according to the law of the land [guilty or not guilty], and not to refuse the due answer that had been given by the law of the land.

For a long time, defendant would not say otherwise, for the space of an hour.

A stranger sued another Appeal of Robbery against defendant for taking his goods.

A third person sued another Appeal of Robbery by bill against the prisoner.

Defendant was also indicted for the same felonies and robberies.

On these (second and third) separate Appeals defendant was arraigned.

Defendant pleaded as before, and would not plead otherwise.

Danby CJCP told defendant to be well advised and not to cause his own death by his own will, which would put his soul at risk, so Danby CJCP told defendant to leave off his folly and put his life in the mouth of the jury, and say to the Court how you would be acquitted.

Defendant said that he would be acquitted by God, Our Lady, and the holy church.

Danby CJCP told defendant that if he would not plead, he would cause his own death, because by this answer the law would put him in prison, then defendant would be brought to Court and to have weight of stones and iron on his body, and one day brown bread and another day water, until defendant be dead, and and that the water would be what ran nearest to the prison, and so defendant would be better off to be advised and put another answer to the Court, and thus you would have this answer.

Plaintiff’s counsel prayed judgment that defendant be hanged for lack of answer because this was the party plaintiff’s suit and defendant had not denied the robbery, so plaintiff prayed judgment and execution that defendant be hanged.

The Justices went out to their dinner and desired the sheriff to give and to assign a good counsellor to this prisoner, to counsel him well in the meantime.

The Justices came back to do various things, and to deliver the gaol.

Defendant was demanded by the Court to know what defendant would say.

Defendant pleaded not guilty to all the felonies by separate answers, each after another.

Defendant was found guilty against all plaintiffs

Judgment was given that defendant would be put to death.

Postscript. This seems rather timely with the verdict yesterday in the Darrell Brooks trial in the United States in which the accused, found guilty yesterday of running down and killing six people at the Waukesha Christmas Parade in Wisconsin, repeatedly asserted (in representing himself) that he was a “sovereign”, that he did not answer by his own name, that he was actually counsel representing “the client known as Darrell Brooks”, and that he rejected that the court had jurisdiction (while also repeatedly demanding the judge affirm that it was a common law, and not admiralty, court)

Punish the Jezebel, Or, The King versus Joan in Parliament, 1432

A late-medieval lady like Joan Beauchamp

---

In 1432, a great lady appeared at the bar of the House of Lords. For my money, it was the trial of the century. She came with a first-class legal team of several serjeants-at-law (medieval QCs), with a train of juniors and pupils, attorneys (solicitors) and clerks. Sitting in judgment of her, the whole of the House of Lords (46 lords spiritual including abbots, 32 lords temporal, 11 law officers and justices including the Lord Chief Justice and the Attorney General). The parliament also included 266 members elected to the House of Commons but they would take no part in her trial.

In truth, Joan Beauchamp’s trial was not even the most important issue at that parliament, in the eyes of those who summoned it. Without going too deep into the politics of early 1430s England, the king Henry VI (son of Henry V of Agincourt fame) was only 10 years old. He had recently returned from France where he was crowned King of France in Paris as a result of the Treaty of Troyes. The king’s uncle, Humphrey, Duke of Gloucester, was in control of the government at this time, and as always during the Hundred Years War, the government needed money. In 15th-century England, if the perpetually-broke monarch needed money, they needed to summon a parliament to get the Commons to agree to grant taxes. It was an accepted constitutional principle in the 15th-century that the king should “live of his own” (get by on the revenue from his estates, and various feudal rights and dues as lord paramount) and that he should only resort to direct taxation, granted by parliament, in times of war or national emergency.

Nonetheless, I believe Joan’s trial is the most interesting event in this parliament. So what was the cause that brought this great lady to the bar of the House of Lords, for indeed she was great. Her income stood at £2,000 a year, easily placing her in the top 10 richest aristocrats in the realm. While in law a mere baroness in right of her dead husband, William Beauchamp (Baron Bergavenny), she was in fact by birth a FitzAlan. This family, the FitzAlan Earls of Arundel, were close relatives of the royal family and a clan of great wealth and exalted status. When Joan’s brother Thomas, Earl of Arundel, died in 1415, a male cousin inherited Arundel Castle and the earldom peerage, while Joan and her two sisters, Margaret and Elizabeth, divided up all of the Arundel estates (manors, lands, tenements, rents, reversions, advowsons, etc). This was in keeping with the medieval principle that daughters inherited in preference to males of the collateral line.

The three sisters sued each other at various times over the next 15 years, for example in 1421 Margaret and her husband, Sir Roland Lenthal, sued Joan and her sister Elizabeth over ownership of the Castell Dynas Bran, a fabulous medieval castle built by a Welsh prince in the 1200s. Just in the west Midlands and Welsh Marches, along with Abergavenny Joan owned the castles of Dynas Bran, Ewyas Lacy and Weoley.  Joan proved obsessed with acquiring, maintaining and expanding her land holdings and wealth her entire life, and maintaining the force of soldiers and supporters required to protect such holdings in the late-medieval period. But I do not judge her; her attitude was typical of male aristocrats of the era. Joan, in official documentation, was known as “the King’s kinswoman” due to her connection to the king through her aunt, who was the grandmother of Henry V. (continued below…)

Arundel Castle – Birthplace of Joan Beauchamp née FitzAlan

Joan’s wealth came from a number of sources. Her husband, William Beauchamp, Baron Bergavenny, was 30 years older than her and died in 1411. Unusually, she never remarried and thus retained full legal independence in ownership of property and legal personality as a “femme sole”. Upon his death, Joan inherited a life estate in survivorship in the entirety of the vast Barony of Bergavenny (rather than the usual widow’s one-third), along with the town of Abergavenny, castle, manors and lands appurtenant to the lordship and rights as a ‘marcher lord’. This was put in place by a conveyance she executed in 1408 with her husband which gave her a full life estate in the barony and in Beauchamp’s lands, and her son was never recognised or summoned to parliament as Baron Bergavenny in his lifetime, while Joan was referred to as the “domina de Bergavenny” (Latin feminine for lord, ‘dominus’). She also had from 1415, as mentioned above, the FitzAlan inheritance and also lands from her mother’s family, the De Bohuns and, apparently, from her grandmother Elizabeth de Badlesmere. The main geographic domain of her estates was the West Midlands and Welsh marches. She owned manors and estates in land in Worcestershire, Warwickshire, Herefordshire and Staffordshire, as well as Welsh lands around Abergavenny. But Joan also held manors and estates in other places too; she held estates in Buckinghamshire, Leicestershire, Norfolk, Hertfordshire, Essex and Huntingdonshire, a third share of the castle and barony of Lewes, and had a residence in London called Pembroke’s Inn, a ‘castellated’ townhouse just across the street from St Paul’s Cathedral and the Bishop’s Palace.

About 150 years after Joan’s time, Pembroke’s Inn was purchased by the livery company, the Stationers. Their guildhall not only still stands on that site today, but it follows the same outlines, including where the gatehouse is/was located, and even that little passageway down to Bower Rowe (now called Ludgate Hill).

Joan was fastidious, conscientious, even vicious, in protecting and enforcing her legal rights. She attracted the appellation “the Second Jezebel” from the chronicler Adam of Usk on account of an incident in 1404, when she was 29. She had three men on the Bergavenny estates hanged, without trial or jury process, upon accusation of theft. It is possible that the barony of Bergavenny had “marcher” lord (i.e. they were like petty kingdoms, and could exercise many powers that the king held elsewhere) rights that legally permitted this, and that this hanging was legal. Nonetheless, the locals were deeply aggrieved and it provoked an uprising in which her husband’s chief steward was killed. It should also be kept in mind that this was during the period of the uprising of Owain Glyndwr, during which Joan and her husband were besieged twice in Abergavenny Castle. The Welsh rebels managed to penetrate into the bailey/town, but not into the keep.  The hanging of the thieves may be an early indication of Joan’s character. One historian asserted she ruled her estates with an “iron fist” and I believe the evidence bears this out.

Here below is a list of cases in which Joan was a plaintiff (“claimant” since the Woolf “reforms”) in the Court of Common Pleas in Hilary term 1425. It is but a small part of the 87 different lawsuits I’ve identified between 1411 and 1435 in which Joan was a party (and this is only a proportion; there are further such lawsuits as yet unidentified).

Another case in the Common Pleas from 1432 and Joan is seeking to evict one Richard Smith with a writ of cessavit and recover “unum mesuagim unum gardinum et septem acras” (a house, a garden and seven acres), on the basis of non-payment of rent;

“Johanna Beauchamp de Bergavenny per Johem Banuston attorn”; Joan Beauchamp by her solicitor John Banniston appears against Richard Smith, seeking possession

I’ve checked other years between 1415 and 1435 and in any particular legal term, Joan would typically have five to ten legal cases in process at any one time. This is comparable only to the greatest magnates, and indeed a greater number than some earls and dukes. I cannot condemn Joan for seeking to evict a tenant who had not paid his rent, but this is all to say that Joan was an extremely active and aggressive, even sophisticated, litigator and knew the courts well. I will now circle back around to the main story.

The cause that brought Joan to stand at the bar of the House of Lords was a melee, perhaps better described as a battle, that occurred in Birmingham in 1431. I will first let Joan tell her own story of the events, although I caution you, just as you would never accept a claim form at face value or pass judgment before seeing the defence, do not take this story at its face value. It was a petition to the king-in-council, undoubtedly drafted by her lawyers. It reads as follows;

Joan Beauchampe, Lady Bergavenny, states that on 17 March in the king’s ninth year, she was travelling from London to her home in Harvington, and was ill at Birmingham, Edmund, Lord Ferrers of Chartley, attacked her and her servants with a large number of men of his affinity, arrayed for war and in the manner of an insurrection, against the king’s peace, laws and statutes, severely wounded several of her servants with arrows, and killed John Brydde, one of her valets de chamber. She requests a writ summoning Edmund before the Guardian and council, to be examined on these things and to have justice done to him. She also asks that he might give a surety to keep the peace towards the petitioner and her servants

Poor Joan, peaceably travelling home to her moated manor house at Harvington (see below) when she was viciously, and without cause, attacked by this Lord Ferrers. It appears that those who witnessed the battle, for it was indeed a battle between two groups of men, in armour, with weapons (like two different motorcycle gangs, the Hells Angels and the Bandidos, arriving in town and a fight breaking out), those witnesses described it somewhat differently. It seems that Joan was the instigator, and indeed we know that at this time (and for years beforehand), Joan had battled to become top dog and premier magnate in her power base of the West Midlands and Welsh marches, and particularly in eastern Warwickshire. (continued below….)

Harvington Hall, a moated manor house of medieval origin

The government in London had seen enough of Joan’s intemperance and violent ways. Or perhaps Joan’s kinship to the king was insufficient to overlook this, and the patron of Lord Ferrers, the Earl of Warwick (her dead husband’s cousin), simply had more pull at court at the time. He was indeed a war hero and considered an exemplar of chivalry. A writ was issued to Sir Humphrey Stafford, sheriff of Warwickshire, to bring Joan and others named before the King’s Bench on the Quindene of Holy Trinity [18th June, 1431], to answer for the following crimes;

before the feast of Ascension in the seventh year of our reign [3 May 1429] at Fillongley in the said county of Warwick [Joan Beauchamp] encouraged, incited and procured Thomas Michell, Richard Cokyn and Thomas Yerdeley to beat and injure John Smyth of Lichfield; and that the same Thomas, Richard and Thomas, by the abetting, incitement and instigation of the same Joan as mentioned above, made an attack on the aforesaid John Smyth at Birmingham in the said county of Warwick on the said Tuesday in the aforesaid year and beat and injured him so that he feared for his life, and inflicted other enormities on him against our peace; and that William Lee, Henry Brokesby, Henry Felongley, John Ryder, Thomas Russell, John Seggesley, Meredith Walshman, Thomas Fauconer, Thomas Yerdeley, John Loudham, John de Wyrley, Henry Cooke of Weoley, Alexander Shefeld, John Chewe, John Morys and many others by the abetment, incitement and instigation of the aforesaid Joan, at the aforesaid Birmingham on Saturday in the fourth week of Lent in the ninth year of our reign [10 March 1431] with force of arms, namely with swords, sticks, bows, arrows, shields, iron helmets, palettes and other armour, made an attack then and there on Thomas Peynton, Richard Arblastre, John Cutte, John Glover, William Squyer, John Cooke, John Fraunceys, William Stretton, Hugh Roggeres, John Penford, Richard late servant of Richard Walrond, John Necheles, John Lord and many others, and beat, injured, maimed and maltreated them so that they feared for their lives and inflicted other enormities on them against our peace

As I have previously described, Joan was a major force in the West Midlands and in response to the above writ, Sir Humphrey dithered. This wasn’t out of some respect for an exalted and respectable lady. He presumably feared her. He returned the writ saying that certain senior servants of Joan’s named on the writ couldn’t be found or were already dead. Upon the return of the writ the King’s Bench actually fined Sir Humphrey 100 shillings (£5) for this failure to do his duty as they found this unsatisfactory, although I can entirely understand Sir Humphrey’s circumspection in his dealings with the Tony Soprano of 15th-century Warwickshire.

The writ that was issued above required them to appear before the King’s Bench on 18th June, 1431 to

“to show whether they have or know of anything to say for themselves, namely, whether the aforesaid £1,200 granted by aforesaid Joan from her lands and chattels as stated above, and if they wish to say why the said £200 granted by each of the aforesaid John Barton, Richard Fox, William Aubrey and Henry Rous from the lands and chattels of each of them in the aforesaid form ought not to be rendered and levied for our benefit”

Wait, what? £1,200? Where did that come from? This requires us to take a slight detour, and a journey back in time to the distant days of 1418. I realise how circuitous this all is, but it’s vital to understand. In 1418, during the reign of the previous King Henry V, Joan was summoned before the Privy Council as a result of a disturbance of the king’s peace.

Joan had become embroiled in a dispute with the Burdet clan of Warwickshire. Sir Thomas Burdet MP, elected county knight of the shire for Warwickshire four times, and his son Nicholas, were well-known criminals and ne’er-do-wells in the shire. In the same year 1418 they were indicted for ransacking a manor and destroying a mill owned by the Abbey of Evesham (which is only 3 miles away from Baroness Joan’s house at Harvinton), although they were later acquitted before the King’s Bench (whether by jury acquittal or succeeding on an issue of law is not clear). Perhaps Joan had good relations with the abbey and was outraged by the Burdets’ conduct, although that is entirely speculation.

In any case, Joan made credible threats to have the son, Nicholas, murdered. The government in London found it necessary to step in and summoned all parties to appear before the king-in-council (although the king himself was probably in France on campaign). The records show that the council ordered that Joan be ‘mainprised’ (in essence bailed upon a surety) for £1,200 that she would not harm Nicholas Burdet “or any of our people” (the king’s people/lieges, in other words, anyone and everyone) and that if Nicholas or “any of our people” were to come to harm, or Joan “incited to be caused any bodily harm”, she would forfeit the £1,200 and six of her named servants forfeit £200 each. In reality, Joan would likely have to pay theirs, according to the standards of good lordship to your liegemen, and so it would be a total bill of £2,400 a huge sum at a time when the king’s income might be £50,000 in a year.

It would appear that one of the clever lawyers in the government remembered that Joan was so bound (and indeed, was was bound over many times to keep the peace, in different disputes, including one in which she was bound to arbitration of the Duke of Bedford in a dispute where she had already had Lord Talbot’s brother-in-law killed, and required to give assurances that she would do no further harm to Lord Talbot or his family). This government lawyer presumably saw that they could rely on the “any of our people” clause from the 1418 mainprise and recognisance to require Joan to pay the £1,200 for the Birmingham melee.

On 18th June, 1431, Joan’s solicitor William Sonde appeared before the king’s bench. For the government, a crown prosecutor was instructed, up-and-coming barrister and Warwickshire landowner Thomas Griswold, appeared for the king upon a writ of scire facias. That is, a writ that is basically “show cause why/why not X”. In essence, “Show cause why you should not forfeit the sum of £1,200 for harming or inciting to bodily harm ‘any of our people'”. Joan’s solicitor, Sonde, traversed the pleadings, asserting that Joan was not guilty of inciting, aiding or abetting the assault of Smith or the melee in Birmingham, nor were any of her individual servants guilty of the alleged crimes.

For these were indeed crimes. In medieval England, every felony was a capital offence. Robbery, burglary, arson, murder, battery, each would result in a death sentence upon conviction (although this was mitigated by the many and varied ‘routes’ to avoiding the noose). So it is indeed interesting that no criminal process issued, but instead a civil process.

In any case, the attorney William Sonde said that Joan would “put herself on the country”. That means that instead of alleging some legal defect and pleading a demurrer, she “traversed” the factual allegation and put herself in the hands of the jury and their verdict. Accordingly, the next day a new writ to the sheriff, Sir Humphrey, was issued by the council, personally witnessed and endorsed by the Lord Chief Justice William Cheney, as follows;

We command you that you shall not neglect on account of any liberty in your bailiwick but that you shall cause to come before us on the quindene of Michaelmas wherever we shall then be in England 24 worthy and lawful men both knights and others with view of Fillongley and Birmingham in your county by whom the truth of the matter might be better known; and whom Joan Beauchamp, Lady Abergavenny, has no association or contact with: to examine on their oath whether the aforesaid Joan on Tuesday before the feast of Ascension in the seventh year of our reign

It was ordered that two juries of worthy men (2 x 12), with no previous association with Joan, should be assembled to issue a verdict on the two crimes. It should be noted that Joan owned the manor of Fillongley, and many of the jurors would be her tenants. At the same time, Joan’s lawyers pursued a tactic that 15th-century lawyers loved; a “collateral attack”. Her lawyers issued suit in the Court of Exchequer against Sir Humphrey Stafford alleging that he was conspiring against her, that he was packing a jury with her enemies. Seems rather unfair to poor Sir Humphrey, who had dithered somewhat to Joan’s benefit.

Record of the proceedings of Court of Exchequer proceedings of “Johanna de Beauchamp, Domina de Bergavenny” against “Humfre Stafford militi”

She also served a petition to the king-in-council (from which we have her side of the story, as above). There appears to be other litigation issued in the Court of Chancery as well for which I am still tracking down evidence.

As this legal hearing occurred in June and the courts were about to recess for the summer break and the end of the legal year, it was ordered that the Jury should assemble in October on the “Quindene of Michaelmas”. When the time came, crown prosecutor Thomas Griswold prosecuted both cases while Joan’s lawyers attempted to secure an acquittal. The juries duly deliberated after hearing the evidence; the jury determining the Fillongley conspiracy acquitted Joan while the jury determining the Birmingham melee found Joan guilty.

Joan was now back where she started, with a writ of scire facias pending and with Griswold now having a jury verdict that proved, at law, Joan was guilty of the inciting the Birmingham melee. Joan’s lawyers now opted for the nuclear option. While the case against Humphrey Stafford proceeded in the Exchequer and other litigation made its way through the chancery, each a “collateral attack” to attempt to frustrate process against her in the King’s Bench, Joan and her lawyers opted to make a petition to parliament and appear in person. Along with all these collateral attacks, Joan also deposited £1,000 in the exchequer as a sort-of aggressive settlement offer (it seems harder to refuse settlement when they’ve already put the money in your account, and indeed the government was short of cash).

So it transpires that the trial of Joan Beauchamp, at the bar of the House of Lords, was at her own behest; she was appealing from the King’s Bench directly to parliament. She had served petition to the High Court of Parliament, which due to parliamentary sovereignty can remedy any defect in a lower court. In addition, the House of Lords as a chamber had a quasi-judicial character, and also special jurisdiction over criminal actions against members of the peerage (which, while Joan was not a peer per se, it was argued in 1409 by Constance of York, Countess of Gloucester, that she was entitled to trial in the House of Lords in a case where she was accused of having a man abducted). Present in the chamber were the people mentioned above; 46 lords spiritual, 32 lords temporal, 11 justices and law officers including Chief Justice Cheney and Attorney-General John Vampage. We do not know the names of Joan’s representatives but we do know it consisted of multiple serjeants, who in their train would be accompanied by their juniors, pupils, as well as Joan’s attorneys like  William Sonde.

The basis on which Joan’s lawyers argued for the invalidity of the judgments against her were pure technicalities. She didn’t even bother to argue factual innocence. Her lawyers submitted;

(1) In the enrolment of any recognisance, it is necessary for the place to be recorded and for the person so burdened to be present in person. They argued that it was not proven in the records that Joan appeared before in person for this matter in 1418 and that the recognisance did not record the place where it was made, and therefore “the aforesaid recognisance is insufficient in law; and whatever process has been made thereupon, and the judgment rendered thereon, are erroneous”

(2) That the writ of scire facias made before the lord king in his chancery [the government department of chancery, not the Court of Chancery] still remains in the lord king’s court [King’s Bench] never having been sent before the king himself, but the tenor of the enrolment of the security of the peace was sent by the king [a 10 year old, in reality, his council/government] to his justices by a writ of mittimus. The tenor [a summary of the facts rather than the verdict/judgment/order-in-council] is not sufficiently founded in law to warrant a writ of scire facias, and thus no process can issue from the tenor of the recognisance, rather than the original document itself, which is itself erroneous for reasons mentioned above

They made three additional legal arguments that, even for a medieval law nerd like me, are so painfully, pedantically procedural (something I usually love) that I won’t inflict them upon you (continued below…)

In medieval times, the Palace of Westminster was a rambling precinct of buildings, more like a super-sized Inn of Court or Oxbridge college. It was the home of the law courts, an archive, a royal palace, an administrative centre.

What I will relay is from the record of the parliament itself;

justices and serjeants-at-law of the lord king, and of others skilled in the law, both on behalf of the lord king and on behalf of the aforesaid Joan henceforward having been considered and reflected upon, fully heard and understood, because the court of the aforesaid parliament has not been advised to render judgment on this matter. It is therefore adjudged that the aforesaid Joan should have a day to be before the lord king in the next parliament

So after many submissions, replications, rejoinders, discussion of law and procedure, the outcome was that the council not explicitly requested the lords to give judgment, and so it adjourned to the next parliament, which occurred in 1433. The judgment in the next parliament was to ratify a settlement; the government accepted the £1,000 Joan had previously deposited before agreement, and in exchange Joan would keep the peace, cease any process in the courts, and file and serve a quitclaim for Sir Humphrey Stafford immunising him against any claims in this matter.

The Big Question

So, it all turned out to be a bit of an anti-climax. The interesting question, for me, is whether the “Second Jezebel” was being punished, whether she was judged harshly because she was a woman, whether the government proceeded against her because she was an aggressive wealthy landowning woman in a man’s world. The conclusion I have come to is no. If anything, the “king’s kinswoman” as she was called in official documents, enjoyed exceptional favour and protection, and in many ways was treated as if she were a man in the same position, in terms of wealth and status.

Joan was commissioned to undertake special missions by the government, for example in 1419 a commission was issued out of the privy council;

“Commission to the King’s kinswoman Joan, lady of Bergavenny, to seize all gold, silver, things, goods and jewels of any kind under the keeping of Friar John Randall lately dwelling in the house of the order of Friars Minor in Shrewsbury, or committed by him to any other person to keep, and bring them before the king and council”

This was a politically sensitive mission. Friar John Randall was an astrologer and personal confessor of the then King Henry V’s stepmother, Queen Joan (of Navarre). It seems they wanted to find evidence of sorcery or the like. Queen Joan was in any case accused of witchcraft and put under house arrest, all her property was confiscated. She was released and her property returned upon Henry V’s death in 1422. Many have asked why Henry V treated his stepmother this way. What is notable for our purposes is that Joan Beauchamp was commissioned to seize all of the possessions (particularly, perhaps, letters or books, or occult charms) of the friar in a case of exceptional political sensitivity. She was a trusted relative of the king. This was only a year after she was bound over to keep the peace in the Burdet dispute.

There are other indications of royal favour. After Joan’s brother died and she and her sisters inherited the Arundel estates, the privy council issued an order to the treasurer and barons of the Exchequer “not to trouble Joan de Beauchamp for her homage”, that she and her sisters were to be considered full heirs to the Arundel estates and the king had received his homage and a fine paid into the hanaper. Further claims by the male cousin went nowhere.

In 1422, when the crown went to the aristocrats and gentry of England for a “forced loan”, Joan was appointed commissioner for Worcestershire to pursue aristocrats and gentry for their share. In the list of commissioners there were dozens of men, and only two women, one of which was Joan. In short, she was a trusted magnate who could be relied upon by the government. However, she was also a well-known troublemaker. You’ve seen the incidents above, from the hanging of the three accused thieves without due process, to the apparent threat to have Nicholas Burdet murdered, to the Fillongley conspiracy (acquitted, I concede) and the Birmingham melee.

The same year Joan was commissioned by the privy council to seize the belongings of Friar Randall, she was also cited for another dispute in the patent rolls, July 15, 1419;

Order, by advice of the council, because of certain strifes and dissensions have arisen between Joan, Lady of Bergavenny, and John Skymore, ‘chivaler’, on one [side], and Isabel late wife of Thomas Wallaweyn, Richard Wallaweyn and Richard Pecoke, executors of the will of Thomas Wallaweyn, on the other [side], about the right, title and possession of the manor of Langeford, county Hereford, the manor shall remain in the king’s hands and John Merbury shall have the keeping of it in the king’s name until All Saints next

In 1426, in the Chancery (the government department of chancery, not the Court of Chancery) close rolls, Joan was cited for the Talbot affair;

Joan Beauchamp, lady of Bergavenny, to John Duke of Bedford [king’s uncle and regent]. Recognisance for £1,000.

Condition, she shall abide and perform the award of the duke [i.e. arbitration] touching debates, quarrels, pleas, controversies, demands, etc, between her and her men, tenants and servants and John, Lord Talbot, and Hugh Cokesay, knight, their men, tenants and servants, by reason of any criminal and personal action, and especially the manslaughter of William Talbot, knight, brother of John Talbot, so that the award be made before the [Feast of] Purification next. Proviso that … [Joan] she shall do or procure no hurt or harm to John Talbot, his tenants or servants, in the mean time.

People didn’t respect Joan. They were scared of her. She repeatedly appears in legal documents as being involved in violent quarrels over lands and manors, repeatedly has to be bound over to keep the peace, and yet was accorded respect by the government and king, given special missions, and at the parliament of 1433 got a bit of a sweetheart deal and in doing so saved herself over £1,500.

Motivations

Joan didn’t necessarily have an easy life, in the personal sense. Her mother died when she was 10. When she was 17, she was married off to a 50 year old man, William, Baron Bergavenny and when she was 22 her father was executed by Richard II for treason. He was beheaded (although Joan’s aunt, Joan de Bohun, Countess of Hereford, obtained revenge for the family when, during the Epiphany Uprising against Henry IV, Richard II’s half-brother John Holland, and accomplice in the murder of Joan de Bohun’s brother, Joan Beauchamp’s father, was found by Joan de Bohun’s soldiers at her castle of Pleshy. Joan ordered her soldiers to bring up a block and behead Holland immediately, for which she was rewarded with Holland’s Thames-side mansion, Coldharbour).

Joan Beauchamp had two children, Richard who died in 1422 and Joan II who died in 1430. Joan herself died in 1435. I can’t imagine how awful it would be to lose a mother so young, your father beheaded, to be predeceased by both your children. (continued below…)

Joan’s husband, William, Baron Bergavenny

Joan Beauchamp was clearly acquisitive and violent. In that sense she was not different from many aristocrats and gentry of the 15th-century although she seems to outpace many of her male contemporaries in just how vicious and inclined she was to the use of violence and litigation. But she was also known to be pious and generous to the poor, although in fairness that was fairly conventional religiosity of the time and expected of men and women of her station.

Clearly she was a complex character. She deserves a biography. In some respects she reminds me of Elizabeth I, who also lost a parent at a young age who was also killed by beheading, shied away from marriage (while Joan, unusually, never remarried), was very focused on ensuring the security of her estate and station as queen. While Elizabeth I opted for security in the love of her people, and her popularity, Joan Beauchamp opted for the “iron fist” in an age when that was not unusual.

What I do know is that the fact it took until 1431 for Joan to be fundamentally called to account by the law suggests she was not persecuted. She was not punished as a Jezebel, an unruly woman in a man’s world. Her social class and status, and her loyalty to the Lancastrian dynasty to whom she was closely related, clearly mattered much more than her sex in determining the way society dealt with her. What of women who were not quite as well-off, not quite as well-connected and exalted as Joan? It’s a subject I’m pursuing in research and I think is worthy of considerably more attention that it has received academically.

What it can teach modern lawyers

I do believe there are lessons to be learned by modern lawyers from the tactics of medieval lawyers. Collateral attacks so beloved by medieval lawyers might find their expression in the issuing of proceedings in multiple jurisdictions/courts, the use of SARs, FoIA, and professional/regulatory body complaints to harry a defendant is how a medieval lawyer might approach (for example) an employment tribunal claim.

And perhaps more useful still, the strong focus of medieval lawyers on accurate, concise pleadings and the allowance by the court of replications, rejoinders and rebutters by each side to continuously narrow down the issues in dispute. That is something that, in an age of reduced judicial resources, might be a good way to minimise the number of issues still in dispute by the time of trial (or perhaps even lead to an early settlement). There are further lessons our medieval brethren can teach us, and my next blogpost will be on some of these topics.

Jane’s guide to suing your neighbor in the 15th-century

Lady Jane at a ‘con’

(Continued below…)

For his science and for his high renoun

Of fees and robes hadde he many oon

So great a purchasour was no-wher noon

Al was fee simple to him in effect

His purchasing might nat been infect

Chaucer – The Man of Law’s Tale, 1387

Jane Doe has a problem. Jane is a Lincolnshire landowner in the year 1456. Jane was the sole heiress of her father, himself a country squire of modest means but of ancient and dignified lineage. Upon his death, she inherited the Manor of Dale, about 12 miles east of Lincoln and just east of Bardney Abbey. Jane was only 20, she had received several offers of marriage but presently preferred to remain single; in this way she would keep her legal independence and control of her property. If married, the manor would then belong to her husband.

The Manor encompassed a ‘capital messuage’ (a manor house) in which the family lived. There were also twenty three individual lots, with houses and families. The heyday of serf feudalism was long over by the 1450s; these tenements were held on long leases by the families. There was also 40 acres of woodland, some warrens where they could catch rabbits and a small mill built adjacent to a pleasant stream.

Along with the rents, mill payments, and the like, as ‘lord of the manor’ (not the same as a peerage, simply means freehold owner of the manor) Jane held a manorial court from which she took the monetary benefits in the form of fines. Jane was also the lessee of some messuages and acreage in other manors, which she sub-leased for cash rents. This provided a comfortable living for Jane of perhaps £10 a year. It was far from extravagant, but if she were a man it would be sufficient for her to be characterised as a “gentleman”. It was still well below the £40 a year that a knight required to maintain their lifestyle. (continued below…)

Jane’s ‘capital messuage’, her moated manor house

The Woodland

The woodland on Jane’s manor held many fine oak trees. These could be cut down for use in construction, or for sale. Fine, strong wood was a valuable commodity and the woodland was a valuable portion of the manor. For a time Jane had a contract with the monks of the Bardney Abbey; they would pay her for oaks. The abbey’s serfs (for monastic manors were often extremely conservative and many still held serfs in unfree tenure) would go to her woodland to cut the trees and transport them back to the abbey. However, a valuable resource such as this could also attract undesirable characters.

Sir John

Jane’s neighbouring manor, Waddingworth, was owned by Sir John Smith. Sir John was an exalted figure and the scion of one of the great county families of Lincolnshire. He held eighteen manors, and had a large retinue known as his “affinity”. These were men who wore his livery on their jackets. In return for his livery, for offices, salaries, sinecures, these men of his affinity pledged their loyalty including following him into physical battle if necessary. Sir John was also client to his patron Lord Beaumont, a great magnate of Lincolnshire and the East Midlands, and a man of great influence at the court of Henry VI. Lord Beaumont was Lord Great Chamberlain and Lord High Constable of England, indicating his strong connections to the Lancastrian house. (continued below…)

A rich ‘belted knight’ like Sir John Smith. His income is well above £40 a year, and perhaps approaches that of some the lower barons

The Cause

One day early in 1456, Jane’s steward told her that Sir John’s men had cut down two fine oaks in the woodland and carried them off. When her steward had gone to speak to the steward of Waddingworth, he was told in no uncertain terms that he would not be getting the oaks back, and in fact Sir John now claimed to be in possession of a charter that proved the woodland had been part of Waddingworth since time immemorial. He implied that it would not be in their interests to meddle with Sir John, given he was so great of wealth and fame in the county.

However, Jane was not one to accept this lying down. Dale was the ancient home of her family, she knew that if she failed to respond, Sir John and his affinity would be encouraged and might start whittling away at the manor, and perhaps eventually even try to eject her from it and claim that the charter proved their ownership. Jane now knew that she had no choice but to seek the king’s justice.

Legal Options

She travels into Lincoln to consult with the family’s longtime attorney. He advises that she can sue for trespass and detinue (return of the oaks). He suggests that she obtain an advice from Thomas Fitzwilliam, the preeminent counsel in the city of Lincoln, and the three meet for a ‘con’ in the pews at Lincoln Cathedral. Having been duly advised, she engages them on retainer and instructs them to commence litigation.

Fitzwilliam’s retainer as her barrister is 3 shillings 6 pence per legal term for the duration of the case, not including fees for advice, conferences, for court appearances, travel expenses, etc. Her solicitor’s retainer is 1 shilling 11 pence per term for the duration of the case. She’s also charged 6 shillings 8 pence for the advice / conference, another 12 pence for copying/drafting of documents and a further 10 shillings for various legal fees that will have to be paid for issuing of the claim.

The first step for her solicitor is to procure an original writ out of the chancery. This is the central government department of chancery rather than the Court of Chancery. The writ is both the procedural device that confers jurisdiction on the court and compels attendance of the defendant, but it is also the embodiment of the cause of action. In medieval law, procedural law and substantive law are very much fused conceptually and in fact. (continued below…)

 

The ruined Bishop’s Palace in Lincoln

On to London

Jane’s attorney now journeys down to London to commence the arduous, complex and at times infuriating process of 15th-century litigation. He travels to Westminster Palace to the chancery department to have the writ drawn up. It reads in part;

Rex Vicecomite, salutem, Si Joane Doe fecerit te securum de clamore suo prosequendo tunc pone per vadium et salvos plegios Johannem Smyth militi quod sit coram justiciariis nostris apud Westminstriae in quindeno Sancta Michis &c. tali die ostensurus quare vi et armis clausum ipsum Joane Doe apud Dale fregit et alia enormia et intulit ad grave damnum ipsius Joane Doe contra pacem nostram. Et habeas ibi nomina plegiorum et hoc breve

In essence, the king (“Rex”) writes to the sheriff (“Vicecomite”) saying Jane has secured pledges to prosecute “Johannem Smyth militi” (Sir John Smith) and the sheriff of Lincolnshire must arrest and secure the attendance of the defendant, or secure bail and sureties, to appear “coram justiciariis nostris apud Westminstriae” (at our court of justice at Westminster). He is ordered to bring Sir John Smith before the ‘common banc’ (Common Pleas) on the fourteenth day of Michaelmas term, at the very start of the legal year. Another writ for the detinue of having taken the oaks was also drawn up.

For the drafting of this writ, Jane’s solicitor sought out the ‘cursitor’ for the county of Lincolnshire (naturally, he resides in London). The cursitor is a chancery department official in charge of drafting writs. It is very important that all of the details, names, places, on the writ are properly recorded otherwise the defendant can secure an “abatement” at a later stage. Jane’s solicitor would present him with a paper setting out the relevant particulars, and the cursitor would draft the writ on a small strip of paper perhaps twelve inches long and of varying width according to the scope of the matter. The writ would be folded and then sealed with the great seal (for it was, officially, a letter from the king to the sheriff). Upon payment of a fee, 6 pence to the chancery department and a progressive-scale fee to the cursitor (1/200th of the value of the claim), the writ would be handed over to Jane’s solicitor.

He would then take it to Westminster Hall to have it ‘tested’ and its existence recorded. The next stage is very important indeed; her solicitor must convey the writ to the sheriff of Lincolnshire. Such writs were known as “returnable”, the return day being the date set out in the text above, on which day the sheriff or his deputy will present in the Common Pleas either with defendant, or with return “non est inventus” (could not be found). In this case, Jane’s solicitor travelled to the sheriff’s deputy’s office on Chancery Lane and deposited it with him for safe-keeping, after which the deputy would send a warrant back to Lincolnshire conveying the substance of the writ, without physically risking its loss. (continued below…)

Holding court in Westminster Hall. This defendant depicted did, in fact, turn up

Great Affinity

There is, however, one problem for Jane. As was said above, Sir John Smith is a man of great wealth and influence in Lincolnshire, and is protected by even higher men. Will the sheriff truly act against him? If he returns a “non est inventus”, will the sheriff dare execute a distraint against Sir John’s property to compel his attendance? The goal is to force Sir John or his attorney to appear at the Common Pleas, either to assert an abatement (a problem with the writ), request a licence to imparl (an application to adjourn in order to enter into settlement negotiations) or, most importantly, to plead.

He could make a ‘plea in bar’, such as a statutory limitation. He could ‘demur’, which is the legal equivalent of saying, “Yes, but so what?”; to admit the facts but deny they amount to a cause of action. Or he could ‘traverse’, which is to deny the factual allegations. It is important to note that Jane’s writ itself is not a plea. It is a summons. Only once she has secured the attendance of Sir John or his attorney can her barrister recite the “count”, i.e. “He counted that X carried off two fine oaken trees”.

A demurrer would occasion a mini-trial at the bar of the Common Pleas, for the justices to resolve whether the claim amounts to a cognisable case at law. If yes, Sir John gets his second bite at the cherry and at that point he can either imparl, or traverse and go to trial.

When, finally, both sides have reached the crux of a dispute, for example Sir John traverses the fact of trespass by claiming he owns the land himself, then they have finally “pleaded to issue” and the justices will issue an order to assemble a jury for a trial ‘nisi prius’ (unless before; that is, unless a jury trial can take place in Lincolnshire when justices are next on circuit, before one can take place at Westminster). In fact, ‘nisi prius’ was mostly a fiction; the goal and intention was a trial in the county court proximate to the dispute by two justices on circuit, and before a jury of twelve of their (male) peers.

The Cost of Doing Business

Exhausted, and after a long trip over muddy roads, staying in dubious taverns, Jane’s solicitor returns. He informs her of his progress and presents her with a bill of £2, 4 shillings and 8 pence for his expenses, copying of legal documents, chancery fees, accomodation, etc.

He also says that he has received a letter from Sir John Smith’s counsel, serjeant-at-law Sir William Laken. It has presented her two options. The first is an arbitration, a panel chaired by Sir John’s patron Lord Beaumont, and one barrister chosen each by Jane and Sir John. The other is £80 to sell him the Manor of Dale, along with issuing a release from the suit. Jane does not know what to do; £80 is far under value of the manor, and she does not want to leave her home. What would her father and ancestors think? The arbitration would also obviously be a stitch-up.

On the other hand, litigation will be long, arduous and expensive. She has already spent almost £4 on legal fees and that’s before a single appearance in court. And Sir John and his men could be dangerous. What will she do? Will she ever get her day in court?

–To Be Continued, in Chapter 2: Jane’s Day in Court—

Medieval Litigation

As you can see, medieval litigation could be an expensive and frustrating process. But I do not want to convey a sense that it was unmitigated evil. There were many laudable aspects, some of which can be read about in the blogpost linked at the very bottom of this page.

Medieval Rule of Law

Some of the more laudable aspects of the 15th-century legal system;

https://orderofthecoif.wordpress.com/2018/08/05/litigation-by-ambush-paston-v-jenney-1471-and-the-flemings/

 

Taking the BPTC in the 15th-century

Inner temple, some 500 years ago

The 15th-century was the time in which English law came, in many ways, to resemble its modern form. There was parliament with a House of Commons and a House of Lords. There was a split legal profession, with attorneys and counsel providing distinct services. The legal profession started to publish practitioner guides, like Littleton’s Tenures, and law reports, called the Year Books.

A previous blogpost, A Day in the Life of a 15th-century Barrister, attracted significant interest, and so I felt that there may be some interest in how one became a barrister in the 15th-century.

Education

While law students of the 21st-century will attend university to become a lawyer, and some lawyers of the 15th-century did attend Oxford or Cambridge (the only universities then in existence in England), most would not attend either university and in fact the universities did not really teach the common law. They taught Roman civil law, in Latin. Despite the lack of common law instruction, reading civil law was not a wholly academic exercise; the church courts and admiralty courts were both civilian courts. Latin instruction was also useful insofar as becoming a lawyer in 15th-century required facility with three languages; Latin, in which the plea rolls and writs were written, English in which the oral aspect of court proceedings were conducted and in which ‘bills’ (statements of claim in county courts and the Court of Chancery) and depositions were written, and the late Anglo-Norman language known as Law French, in which the Year Books were recorded.

To commence one’s common law career, one would proceed to membership of an Inn of Chancery. The Inns of Chancery were subsidiary to the Inns of Court, each attached to a specific Inn of Court. For example, Clifford’s Inn and Lyon’s Inn were attached to the Inner Temple. Staple Inn and Barnard’s Inn were attached to Lincoln’s Inn. The residue of a few Inns of Chancery are still in existence in central London, if one knows where to look for them (continued below pictures).

Staple Inn, on High Holborn

Doorway arch of Clifford’s Inn, off Fleet Street

Hall of Barnard’s Inn, now Gresham College, behind High Holborn

The Inns of Chancery were the venue of training for attorneys (solicitors), and initial education for barristers. Like the Inns of Court and Oxbridge colleges, each would have had a hall, a library and accomodations for the students, teachers and possibly for practising attorneys. At an Inn of Chancery, one would learn about original writs, such as Novel Disseisin (a writ to recover lands from which the plaintiff had been dispossesed), mort d’ancestor (a writ to recover possession from a disseisor when one was the next right heir of the previous owner, who had possessed in their demesne as of fee) and darrein presentment (where one had been deprived of the right to present a candidate for a church benefice). Court procedure and terminology would also be taught.

Study at an Inn of Chancery might also provide an ‘off-ramp’ for an impecunious student who could not afford to continue onto the next stage of their education for the bar. They would instead to take up an apprenticeship as an attorney from one of the active practitioners with whom they would have regular contact at their Inn. Once the student had completed their study of writs and procedure, they could proceed onto their studies at one of the greater inns as an ‘inner barrister’.

A student would learn the law in three ways. They would attend court at Westminster Hall, sitting within the bar of the court and watching proceedings up close. The direct observation of cases and pleading was considered a very effective way of teaching the law. Below is a picture of the Court of King’s Bench; on the left, inside the bar of the court, are law students watching the proceedings. At the bottom, outside the bar of the court, is a litigant, an usher and two serjeants-at-law (a medieval super QC). (continued below)

The student would also attend moots in the Inns given by older students. A reader or bencher would pose a hypothetical case, and it would be argued by students who had reached the stage at which they were permitted to take part. For example, here is a moot question that was posed at an Inner Temple moot in the 15th-century;

A donee in tail is disseised; the disseisor grants a rent-charge in fee, and then enfeoffs the donor whereupon the donee enters and dies without heir; then the donor enters, and the question is; shall the donor be bound by this grant made by the disseisor, or not?

For the 15th-century barrister and law student, studying and mooting hypothetical cases was at the very heart of their education for, and practice of, the law. Each evening at the Inn, two ‘utter barristers’ had the responsibility of presenting a “doubtful case” before two benchers, who acted as the judges of the moot. Following the argument by the utter barristers, two inner barristers had to deliver a declaration of the law in Law French. The benchers then queried the utter barristers with questions and discussed the case, and finally gave judgment.

The final mode of learning was ‘readings’. A reader of the Inn would choose a statute on which to lecture. He would begin by discussing the words and meaning of the statute. He would then speak about, “such inconveniences or mischiefs as were unprovided for” by the statute. Then he would discuss differing interpretations and controversies of the statute. Following this, a general discussion would ensue, with the youngest utter barrister having the privilege of being the first to speak.

Academic year

The law student’s academic year followed the contours of the legal terms, and was split into three components. The first component was those weeks falling within the legal terms. During those periods, the student would attend court in the mornings. The courts at Westminster Hall sat from 8am to 11am, Monday to Saturday, during the legal term. The afternoon would be spent reading and discussing the law in tutorial groups. The evening was devoted to formal moots.

Outside of term was known as the ‘learning vacations’. During this part of the year, ‘readings’ on statutes would replace the morning court session, and the afternoon and evening activities would continue as in term time. Finally, during ‘dead vacations’, there was no morning session but activities would continue in the afternoon and evenings as before, however attendance was not compulsory. There was also a Christmas vacation from Christmas eve to the 7th January, during which attendance was compulsory. During summer, it is likely that the Inns were mostly vacated due to the risk of plague. All of the required attendance weeks probably added up to about 28 weeks a year, but the most determined students might well be there many more weeks as learning activities did continue during ‘dead vacations’.

The student would of course be living in the Inn, eating in hall and worshipping in the chapel. And as is normal for students of any era, there was a certain degree of misbehaviour and mischief. The Inns were, of course, adjacent to the excitement and novelty of the City of London, and for many it would be the first time in their life they had been to an urban area of more than a few thousand people. Furthermore, many of the students were not there with any serious intention to practice at the bar, but were sent by their parents to socialise them with the values and skills required by a young man of their station (predominantly gentry and lower nobility, and a few merchants’ sons). Such students could learn a bit of law that would be useful to know as a landowner, and make some useful connections. (continued below)

Lincoln’s Inn chapel

The inns did have “chronic difficulties” with dice and card-playing in the halls out of hours. Some younger students were caught chasing rabbits in the warren belonging to Lincoln’s Inn. There were instances of disrespectful speech by students to officers of the Inn, some instances of theft and indeed violence. In an age where men customarily carried daggers, this was not wholly unexpected, and some fines were levied for students stabbing each other. Students were regularly fined for sneaking women into their chambers, which was strictly forbidden. The penalty for misconduct was typically a fine; from 20 pence for “unseemly language” or “chasing coneys” (rabbits) to £2 for “seizing a woman in Chancery Lane and bringing her into the Inn”. There were also “town and gown” disputes.

After six to eight years as an ‘inner barrister’, attending court to watch, taking part in moots, studying statutes, one would be called to bar as an ‘utter barrister’. They now had rights of audience in all common law courts save the Court of Common Pleas, which was technically (although not always in practice) restricted to serjeants-at-law. At this stage they might be called upon to become a reader, and this would lead automatically to becoming a bencher of the inn (and thus eligible to hold offices of the inn).

The next step in a career would be to attain the rank of serjeant-at-law, after which one had rights of audience in the Common Pleas, the premier common law court of the realm in which was heard pleas between subjects and all land law cases. Few medieval barristers attained this rank for it was almost a guarantee that one would become a justice of the bench after becoming a serjeant. Becoming a serjeant also meant leaving your inn behind, and moving to one of the Serjeants Inns. There were two, one on Chancery Lane (opened 1416) and one on Fleet Street (opened 1443). Sadly, both were destroyed during the war in the Blitz. (continued below)

Serjeants Inn, Chancery Lane

Serjeants Inn, Fleet Street

Four maidens, 12,000 ducats: the Saga of Drapers’ Hall

Drapers’ Hall today

On 28th July, 1540, Thomas Cromwell, the chief minister of Henry VIII, was led out to the block on Tower Hill and beheaded. This brought to a close a remarkable rise and career, from blacksmith’s son in parochial Putney, “ruffian… in his young days” and his unusual travels in Italy and the low countries, to being a successful member of the bar in London, chief secretary to Cardinal Wolsey and ultimately Master of the Rolls and chief minister of the Tudor state.

The year 1540 also saw the death of a certain merchant called Thomas Hoell, then resident in “Syvill in Spayne”. A man of apparent great wealth, he left in his will the following bequest;

“Item, I comaunde myne executours that I leve in Syvell that incontynent after my deathe , doo send to the citie of London 12,000 duckats of golde by bills of Cambio [bills of exchange], for to delyver to the house called Drapers’ Hall, to delyver theyme to the wardeynes thereof, and the saide wardeynes as sone as they have received the same 12,000 duckats, to bye therewith 400 duckats of rent yerely for ever more, in possession for ever more.

And it is my will that the saide 400 duckats be disposed vnto foure maidens, being orphans, next of my kynne and of bludde, to theire marriage, if they can be founde, every one of theyme to have 100 duckats; and if they cannot be founde of my lynnage, then to be geven to other foure maydens, though that they be not of my lynnage, so that they be orphanes honest and of good fame, and every of theyme 100 duckats, and so every yere, for to marry foure maydens for ever.

And if the saide 12,000 duckats will bye more lande, then the saide 12,000 duckats to be spent to the marriage of maydens, being orphanes, increasing the foure maydens aforesaide, as shall seme by the discretion aforesaide of the master and wardeynes of the saide house of Drapers’ Hall, and that this memoria to remayne in writing, in the booke of memoryes in the saide howse, in suche manner as it shall at no tyme be undon for ever.”

Hoell was leaving a sum of money to be used to buy land which would produce an income that would pay for dowries for orphan maidens, in order to buy them a good marriage. The money was to be applied to orphan maidens of his own lineage, and after paying out to all such women of his lineage, to then be paid to “orphanes honest and of good fame”. They were entitled to a marriage portion of 100 ducats each, or approximately £25.

Determining the modern value of the sum is particularly difficult because of the countervailing tendencies of inflation in the prices of goods and services in Tudor England, alongside deflation in the price of labour. However, I would estimate the £25 to be equal to approximately £50,000 in modern buying power. It would be an amount that could buy a very respectable marriage with perhaps the first son of a moderately prosperous country yeoman or city merchant. It would certainly save these women from a life of destitution. (continued below)

Venetian ducat

Hoell entrusted the money to the Drapers’ Company, one of the ‘livery companies’ or guilds of London. The Drapers, the company of wool and cloth merchants, were first formally organised in 1361 and received a royal charter of incorporation in 1438. They are third in the order of precedence of livery companies, just below the Mercers and Grocers and above the Fishmongers and Goldsmiths.

The livery companies were not just fraternal organisations; they had responsibility for regulating the prices, business practices and even moral conduct of their members. They were associated with particular churches in the city where their members would worship. Like most medieval collegiate institutions, the activity of the companies were based around an inn that would include a great hall, a chapel and possibly a library (much like Oxbridge colleges and Inns of Court).

The city government of medieval and early-modern London was dominated by the livery company oligarchy and, in fact, the livery companies continue to enjoy considerable power in the City of London’s mind-numbingly complex electoral system (see short video below for the fascinating details…).

In the event, the Drapers’ received 8,720 ducats from Hoell’s executors. Hoell’s death coinciding with Cromwell’s death in 1540 meant that Cromwell’s property, which had now came on the market, could be snapped up by the Drapers. Austin Frairs, or the monastery of the Augustinian Friars, had rented out property on the southern side of the friary, on Throgmorton Street, to various court notables.

Cromwell was living in the Austin Friars property by the early-1530s and invested considerable sums renovating it and acquiring adjacent properties. He spent over £1,000 building this fifty-room capital mansion, which included large kitchens, a chapel, three courtyards, an acre of gardens, stables, tennis courts and a bowling alley. This property was not merely a house for the Cromwell family but an “an administrative base and urban palace where he could entertain important guests, potentially even the king himself”.

Cromwell’s House w/ oriel windows from the Copperplate Map

In 1543, using the money from Hoell’s bequest, the Drapers’ Company purchased the Austin Friars complex (along with a number of other London properties in the attainted Cromwell estate) from the king. When the Drapers purchased the mansion from the king, they covenanted with the king to distribute the clear rents “to and for the marriage of poor maidens, being orphans”.

Instead, the Drapers turned Austin Friars into their livery company hall. While the original Cromwell mansion has long-since (and very sadly) been demolished, Drapers’ Hall remains on the Austin Friars site to this day. (continued below)

At some point in the 1550s, former maidens related to Hoell learned about the bequest. As they would have been entitled to the £25 or so as their marriage portion, they and their husbands brought a complaint in the Court of Chancery against “William Chestre, knight and alderman of the citie of London and mayster of the … fraternytie … of drapers” along with the wardens of the company. The women bringing the claim were Crysly, Jane, Cristian, Katherine, Margaret, Florence, Anne, Eleanore, Jane and Maude.

They alleged that the Drapers had purchased lands rendering £105 a year in rents but were using the money to their own benefit rather than disbursing it according to the terms of Hoell’s will.

The litigation rumbled on for several years, with the women incurring legal costs, “to commission certeyne men of worshippe and learnyng to travayle for the determinacion and hearing of the same”. During the reign of Queen Mary (1553 – 1558), the Court of Chancery made a ruling, “that the examynacion and order of the premises dyd belong to the iurisdicion of the ecclesiasticall lawes … a supersedeas was dyrected to the said commissioners [plaintiff’s common lawyers] to surcease and no further to procede them”.

Crysly v Chester (1559) | C78/16 No.34

The plaintiffs then had to instruct new lawyers, civil lawyers from the Doctor’s Commons who practised in the Roman law church courts; “the said complainants dyd prosecute … the premysses before certeyne commissioners in that behalf authorised by and frome the late lorde cardynall Pole which sute [suit] so farre procedyd that the said mayster and wardens preydyng that sentence therein were near at hande to be gyven”. In other words, judgment was about to be given.

However, the Drapers found a legal argument to prevent proceeding to judgment. They “alledged that because the legacies and thynge testamentory aforeseid by the purchase of the messuage [house] lande and tenemente aforesaid were converted to a mere laye inheritaunce and that the yerely rente revenewes and proffytes appoynted to be payd out of for the same is not examynable or determynable in the ecclesiasticall courte under payne of a praemunire but is merely examynable and determynable in the kyng and quenes majesties courte of recorde … in dede upon consideracion of the premysses it seemeth to most learned men so to be. Whereby the said plaintiffs have been mervelously delayd and impoverisshed as by the bill of complaint remayning of recorde in this honourable courte”.

In 1559 the matter finally came to judgment before Sir Nicholas Bacon, Lord Keeper of the Great Seal (between 1558 and 1579, no Lord Chancellor was appointed and Bacon acted as the head of the Court of Chancery).

Sir Nicholas Bacon, Lord Keeper of the Great Seal

The Drapers argued that to the best of their knowledge they had been giving money to orphan maidens, and than in any case they’d only received 8,720 ducats and that as a matter of law Hoell’s estate should have paid them the full 12,000 before they were under obligation to carry out the terms of the bequest. However, it seems that they knew the game was up and in their pleadings undertook to put the entire amount to the purpose set out in Hoell’s will.

Sir Nicholas ordered that the £84 a year should be paid out to four orphans, £21 each, and £21 apportioned to the maintenance and improvement of the property, and that this should continue “forevermore”. Sir Nicholas also ordered that the plaintiffs should receive their £21 each. In future, the Bishop of Llandaff and his staff were charged with identifying worthy maidens to receive the £21 payment and would issue a certificate upon which the Drapers would pay out the £21, and they would also receive a quitclaim from the Bishop’s staff extinguishing liability for that particular £21 for the year. He also ruled if further ducats were received to make up the 12,000 total, this could be applied to an increase paid out to the maidens but that the amount paid should not exceed £25 each per year.

In researching this case, I wondered about when and how the trust came to an end. I assumed that at some point in the late-19th century, the idea of buying a husband for worthy orphan maidens would become hopelessly anachronistic and that the object of the trust would be frustrated under the cy-pres doctrine and the money would have to be put to a different use. I concluded that while this might have been more difficult prior to the Charities Act 1960, a cy-pres variation of the terms of a trust must have still been possible under non-statutory equitable doctrines by application to the Chancery Division of the High Court (or to the Court of Chancery prior to 1875).

I did a search for relevant cases and found a case heard before the Master of the Rolls in 1843, almost 300 years after the complaint was heard before Sir Nicholas Bacon. While it was not a cy-pres application, it was still very interesting indeed. (continued below)

Court of Chancery sitting in Lincoln’s Inn Old Hall in the 19th-century

Upon an information filed by the Attorney-General, on the certificate of the Charity Commission, the Court of Chancery under Lord Langdale MR inquired into Hoell’s bequest. The Charity Commission had noted in an inquiry in the early 1840s that the surplus now produced by Hoell’s bequest amounted to over £2,000 a year. The Drapers were still spending £84 a year on buying husbands for worthy orphans (a fairly modest gift given the inflation of the intervening years) but were applying the surplus to the company’s accounts. While a significant proportion of Drapers’ Company general funds (perhaps the substantial majority) were spent on charitable activities anyway, it was still the conclusion of the Attorney-General and the Charity Commission’s lawyers that the company was obligated to spend the entirety of the revenue arising from Hoell’s bequest on charitable purposes specified in his will. (continued below)

Law report for AG v The Drapers’ Company

The Solicitor-General, Mr Pemberton Leigh and Mr Blunt, representing the Attorney-General, argued that under the terms of the will, the company was not entitled to take any benefit. Further, their covenant with the king upon purchase of the Austin Friars mansion and their answer in the 1559 case bound them to apply the entirety of the revenue of the investments to the charitable objects.

Sir Thomas Wilde, Mr Kindersley and Mr Lloyd, for the company, argued that under Sir Nicholas’ decree, the objects of the charity were expressly limited to £100 each year and that it could therefore be inferred that the company was entitled to the surplus. They also argued, “every presumption ought, at this distance of time, to be made in favour of the defendants who were shewn by constant usage to be entitled to the surplus”.

Lord Langdale disagreed with the company’s reasoning, and ruled that the entirety of the surplus should be applied to the charitable object. However, he also ruled that this would apply from the issuing of the information in the Court of Chancery, rather than seeking an account of moneys all the way back to 1559. It would seem that, as of 1843, money was still being expended by the company to purchase husbands for the orphan maidens, but I cannot believe that it continued for much longer after this. While the charitable object of providing a marriage portion was presumably frustrated by changing social mores, it would seem to me that given the company’s fortune was made in large part by Hoell’s bequest, they have a particular duty to apply their wealth to the advancement of working-class women as Thomas Hoell had intended so many years ago.

It would appear that is exactly what is happening, and the Howell bequest still exists as a discrete trust. Today it provides funding to girls schools in North Wales, and has disbursed £2.2 million in the last decade. It’s quite extraordinary to think that an otherwise little-known merchant could be bringing positive change to the lives of beneficiaries half a millennia later.

I leave you with some pictures of Drapers’ Hall courtyard and garden, an oasis in the bustling City of London, still on the same Austin Friars site (further pictures below).

Was Edward VI’s Devise for the Succession lawful?

Edward VI, King of England, Ireland and France

In mid-1553, the teenaged king Edward VI lay dying. The only legitimate son of Henry VIII, he had reigned for six tumultuous years, primarily under the tutelage of powerful regents; first his maternal uncle the Duke of Somerset, then the Duke of Northumberland. Henry VIII had two other children, Princess Mary (daughter of Katherine of Aragon) and Princess Elizabeth (daughter of Anne Boleyn). By the terms of Henry VIII’s will and the Succession Act of 1543, in default of Edward VI and the heirs of his body lawfully begotten, the crown would remainder to Princess Mary and her heirs, and then Princess Elizabeth and her heirs.

Concerned about possible backsliding toward Catholicism under Mary, Edward VI attempted to bypass this succession by promulgating a ‘Devise for the Succession’, backed by letters patent, which purported to displace Mary and Elizabeth from the succession. It  instead enfranchise the heirs of his cousin Lady Frances Brandon, the daughter of Henry VIII’s younger sister. The effect of this devise, if valid, would see Lady Frances’s first daughter Lady Jane Grey inherit the crown. Incidentally, Grey was married to the son of the regent, the Duke of Northumberland.

In the event, upon Edward VI’s death in July 1553, Princess Mary was able to gather sufficient support, and was sufficiently popular, to overthrow Lady Jane Grey’s administration following a 9 day reign.

In a recent, and I might add excellent, episode on the subject, the History of England podcast asserted that the Devise was a valid legal instrument and that Edward VI was entitled to dispose of the crown by letters patent. While this might be an entirely academic debate given the intervening years and the fact Grey was quickly overthrown, the question of the legitimacy of the devise is one that touches on the character of English government and the English constitution in the early modern period. Was England in effect an absolute monarchy, ruled by a caesar whose word was law? Or was it a constitutional monarchy whose sovereigns were bound by the rule of law, as set out in statute, custom and precedent?

In the first instance, one must look to the relevant statute, the 1543 act. It read, in part;

“in case it shall happen the king’s majesty and the said excellent prince his yet only son Prince Edward and heir apparent, to decease without heir of either of their bodies lawfully begotten (as God defend) so that there be no such heir … then the said imperial crown and all other the premises shall be to the Lady Mary, the king’s Highness’ daughter, and to the heirs of the body of the same Lady Mary lawfully begotten, with such conditions as by His Highness shall be limited by his letters patents under his great seal, or by His Majesty’s last will in writing signed with his gracious hand; and for default of such issue the said imperial crown and other the premises shall be to the Lady Elizabeth, the king’s second daughter, and to the heirs of the body of the said Lady Elizabeth lawfully begotten, with such conditions as by His Highness shall be limited by his letters patents under his great seal, or by His Majesty’s last will in writing signed with his gracious hand; anything in the said act made in the said twenty-eighth year of our said sovereign lord to the contrary of this act notwithstanding”

The legal effect of this act was fourfold;

(1) Mary and Elizabeth were reinstated into the line of succession, in default of any heirs of Edward VI, or of Henry with Katherine Parr

(2) Henry VIII was entitled to place conditions on their inheritance of the crown through the promulgation of letters patent to that effect

(3) Henry VIII was entitled to place conditions on their inheritance of the crown in his last will and testament

(4) The provisions of the Succession Act 1536, which displaced Mary and Elizabeth from the succession, were disapplied to the extent they conflicted with the 1543 act

The earlier Succession Act 1536, which displaced Elizabeth from the succession (Mary having been removed by the Succession Act 1534), conferred on Henry the power to dispose of the crown by letters patent or by his last will. This was not a power inherent in the king’s prerogative, as the transmission of the crown would ordinarily pass by automatic operation of succession law according to the rule of male-preference primogeniture (elder sons would inherit in preference to younger sons, sons would inherit in preference to daughters, if there were only daughters, they would inherit in preference to male relations of the collateral line, i.e. in preference to male uncles, cousins, etc).

Furthermore, the disposition of the crown had been controlled by acts of parliament long before the 1530s. It was broadly accepted that acts of parliament were necessary to ratify depositions of kings (as occurred to Richard II, Henry VI, Edward V and Richard III). In the aftermath of Bosworth, when asked why he had fought for Richard III, the Earl of Surrey had responded, “He was my crowned king, and if parliament had set the crown upon a stock, I would have fought for that stock”.

It is a principle of English law that where a statute conflicts with an executive instrument, the statute prevails. This has, in fact, been a principle of English law since the 1400s. There are cases that came before the King’s Bench in that period demonstrating this principle of law. Sir John Fortescue, Chief Justice of the King’s Bench in the 1440s and 1450s enunciated this principle in his works on constitutional law. Fortescue wrote a book called De Laudibus Legum Angliae, or In Praise of the Laws of England, in which he set out his views on the English constitution. Fortescue posited that unlike an absolute monarchy such as France, which he called a dominium regale, or a republican regime like ancient Rome, which he called a dominium politicum, England was a dominium politicum et regale. It was, in effect, a constitutional monarch. He commented that the king cannot make laws or levy taxes without the consent of parliament, and that judges were obliged by oath to follow the law even in the face of a direct order by the king not to do so.

Sir John Fortescue, Chief Justice of the King’s Bench

This is not mere idealism; it was a principle of English law practised in the courts that the king was subject to the rule of law. This can be seen in cases where the courts regularly ruled against the position taken by the king’s attorney. For example, a 1464 case of trespass that came before two justices on circuit, Yelverton JKB and Bingham JKB. The plaintiff was successful in his claim and process issued to execute the judgment against the defendant. Several days later a letter bearing the privy seal of the king arrived ordering the justices to stay process against the defendant. The judges refused, commenting;

“We ought to do as reason and conscience counsel us. It is not honourable for us nor this court, nor for any other court to vary in our judgments, as to give judgment in a matter in one term, and to give a different judgment in another term”.

Additionally, the fact that parliament (and the Commons as the indispensable component) had the sole authority to levy taxes was, by the 1530s, a long-since accepted constitutional principle. England of the late-medieval and early modern period was not an absolute monarchy, no matter how much the despotic Tudors would have wished it so.

The superiority of statute law in the legal hierarchy of construction can be seen in the fact that the Statute of Proclamations 1539, which conferred on the king’s proclamations the effectiveness of statutes, (although it also provided that such a proclamation could not be used to change the common law, or punish or deprive a person of their goods without due process) had to be enacted at all. That statute was repealed in 1547. This principle was further underlined in the Case of Proclamations in 1610, when all the justices of England confirmed the principle that the king, “cannot change any part of the common law, nor create any offence, by his proclamation, which was not an offence before, without parliament,” and, “The king has no prerogative but that which the law of the land allows him”.

The Succession Act 1536, which gave the king the power to dispose of the crown by will or letters patent, was modified by the Succession Act 1543 which not only provided that Mary and Elizabeth were reinstated into the succession, but that any provision of the prior act which was inconsistent with the 1543 act was disapplied. That means that any provision in letters patent, proclamation or will issued pursuant to that act that sought to displace Mary and Elizabeth from the succession would be disapplied.

Furthermore, it is clear from the wording that the intent of parliament was to confer this power to dispose of the crown on Henry VIII particularly, not on the crown for all time.

In the History of England podcast, David Crowther argued for the legality of the devise on two bases; first, that the king had the inherent power to dispose of the crown by executive instrument, and second, that according to the ordinary principles of common law Mary and Elizabeth were bastards and thus ineligible to inherit. I believe I have, above, made a reasonable argument above as to why the king did not have such a power, and why even if he did, it was disapplied where it conflicted with the clear provision of statute law.

With regard to the second argument, this is in fact the sole argument advanced by Edward VI in his letters patent. Edward VI didn’t merely promulgate the devise, but letters patent were also issued setting out the reasoning for displacing his sisters, which served to give the change the force of an executive instrument. The letters patent, accepting parliament had enacted that Mary and Elizabeth were to be in the succession, advance as their only argument against them that the divorces of their mothers had been valid and they were bastards and therefore ineligible. The letters patent did not cite that the power to change the succession inhered in the king’s prerogative, or that it arose under the 1536 act. It says as follows;

“And for asmuch as the lymytacion of the imperiall crowne of this realme, being lymmited by authorite of parleament as is afforesaid to the said ladie Mary and ladie Elizabeth, beinge illegitimate and not lawfully begotten, forasmuch as the mariage had betweene our said late father and the lady Katherine … was clearly and lawfully undone … and likewise the mariage had betweene our said late father … was also clearely and lawefully undone … whereby as well the said lady Marye as also the said ladie Elizabeth to all intents and purposes are and be clearly disabled to aske, claime, or challenge the said imperiall crowne”

The essence of this argument is that according to the ordinary course of the common law, Mary and Elizabeth would not be able to inherit property. This argument is invalid on several bases. First, we have clear statutory authority for Mary and Elizabeth’s succession. The only body capable of altering the common law was parliament, and they did so in placing Mary and Elizabeth in the succession. Second, the ineligibility of bastards to inherit was according to the automatic operation of law. Prior to Wills Act 1540, the only way to leave land to your children other than according to male-preference primogeniture was to convey it to trustees first, who would then hold it to their use or otherwise convey it directly to them. Failing this, the land would automatically pass upon the death of the individual. The Wills Act 1540 created a significant change in the law whereby a person could devise land to any person using their will, in any proportion they chose. If they wanted to give half to their son and half to their daughter, that was their prerogative. If they wanted to leave everything to their bastard child, that was also their prerogative.

Finally, one might argue that applying the procedures of inheritance for ordinary people to the inheritance of the crown is logically dubious, and I would agree. The transmission of the crown is a matter of high state policy, and thus appealing to the ordinary provisions and procedures of common law inheritance (which had, since 1540, been disapplied anyway), as Edward VI did, is sketchy to say the least. So even if the common law had been as Edward VI’s letters patent asserted, the fact was that parliament had legislated differently. Indeed, there was precedent for such a thing. Edward VI’s grandfather Henry VII had no legitimate royal blood; his descent from Edward III came through the illegitimate Beaufort line.

Sir Edward Montaqu, Chief Justice of the Common Pleas

The Chief Justice of the Common Pleas, Sir Edward Montagu, protested against the devise and the letters patent. He said it was not merely illegal, but treasonous. David Crowther implied that Montagu’s objections were pearl-clutching at best, and dishonest and self-interested at worst. But Sir Edward’s analysis of the law was correct. Not only was Mary entitled to the crown if one applied all of the ordinary doctrines of English law (statutes override executive instruments, the king cannot change the common law without parliament, etc), but it actually was treason. The Treason Act 1547 had provided that it was high treason to interfere with the succession as set out in the 1543 act;

“if any of the heires of the king … or any person or persons to whom the crown and dignity of this realm is limited and appointed by act of parliament made in the 35th year of the reign of King Henry VIII… do at any time hereafter usurp the one of them upon the other in the crown of this realm, or demand challenge or claim the same otherwise or in any other form or degree of descent or succession or in any other course form degree or condition but only in such manner and form as is declared in the said statute … that then all and singular offenders their aidders, comforters, abettors, procurors and counsellors therein shall be deemed and ajudged high traitor and shall suffer and incur the pains of death losses and forfeitures as is aforesaid in cases of high treason”

This was passed at the first parliament of Edward VI. It seems to me that the legal position couldn’t be clearer; the Succession Act 1543 was binding in its own right and through the provision in the 1547 act making its usurpation a crime. Any person in the succession who sought to change the succession as laid out in that act, and any person who aided and abetted such conduct, was guilty of high treason. While Edward VI himself couldn’t be guilty of high treason, Lady Jane Grey and every person who aided and abetted in seeking to displace Mary and Elizabeth (excepting Chief Justice Montagu, who was careful to procure a preemptive pardon from Edward VI well-knowing the devise was unlawful), were guilty under the terms of the 1547 act.

Based on the clear terms of the Succession Act 1543 placing Mary and Elizabeth back into the line of succession, the terms of that act disapplying any contrary provisions in the previous statute and any legal instruments arising under the 1536 act that purported to change the succession, given the terms of the Treason Act 1547 and widely-accepted common law principles of statute law overriding executive instruments where in conflict, it seems quite straighforward to say that the devise and the letters patent issued to displace the princesses from the succession were not lawful.

The superbly narrated, and at times hysterically funny, History of England podcast can be accessed at this website: https://thehistoryofengland.co.uk/

A Medieval Parliament (Part 1): Dropping the Writs

Medieval House of Lords. On the woolsacks sit the justices and serjeants-at-law. Peers, bishops and abbots are seated on the long benches. Flanking the king; “Alexander, Rex Scotor[um]”, and “Llewellyn, Princeps Walliae”.

The first in a three-part series examining late-medieval electoral law and parliamentary practices

The abiding image of the middle ages is best evoked with one quasi-derogatory word; ‘feudal’. It brings to mind foreboding castles, cruel and acquisitive nobles, peasants toiling under backbreaking conditions, mud and ploughs and dumpy little villages. And it is fair to say that these images have a basis in reality. But it also fails to capture, at least as far as England is concerned, the sophistication of its political system and its representative institutions.

The civil strife of the 13th-century, which had seen baronial rebellions against King John and his son Henry III, led to the creation of representative institutions involving not only the barons but also representatives of the more modest folk from the boroughs and shires. By the mid 14th-century, this representative body had settled into the form with which we are familiar today; a House of Commons of elected representatives, a House of Lords representing the peerage, and the monarch him/herself.

By the standards of European monarchs, the English kings subsisted in a state of relative poverty and were perpetually broke. They derived income from their feudal lands (the royal ‘demesne’), from customs charges (on wine, wool, etc), from court fines and payments made to the chancery for the issue of pardons, writs, charters and patents. With this revenue they were expected to cover all of the ordinary expenses of the court (food, clothing, servants, transportation, pensions, gifts, and magnificence in general) and government (judicial salaries, sheriffs’ expenses, castle upkeep, diplomatic missions, etc).

It was a constitutional principle, or at least a constitutional ideal, that the king should “live of his own”. In other words, he should make do with the revenues he had from his demesne and other sources without resort to direct taxation, except during wartime or national emergencies. If the king did require additional revenue through direct taxation, he could only secure it by parliamentary grant. By the 15th-century it was an entrenched constitutional convention that the consent of the House of Commons was the indispensable ingredient in grants of taxation. The Commons thereby had the opportunity to bargain their grant in exchange for the king’s agreement to petitions which, following a formal reading in both houses and the king’s consent, became statutes.

Composition and the Franchise

From the 13th-century, the Commons included representatives of the counties, known as ‘knights of the shire’, and representatives of the towns and cities, known as burgesses. In spite of the fact that perhaps no more than 10% to 15% of the population lived in urban areas, there were twice as many burgesses as there were knights of the shire in the House of Commons.

For example, in the 1399 parliament there were 74 knights of the shire and 181 burgesses (along with 49 lords temporal and 47 lords spiritual). Each county chose two knights of the shire, and each town two burgesses. How were these MPs selected? In each borough, the scope of the franchise was a decision for the borough itself and thus varied widely. In some boroughs, every free male householder was entitled to vote. In others, it was based on the property franchise (and there is some limited evidence of women voting under that franchise). In others still, the franchise solely encompassed members of the livery companies or even members of the town council only.

The evidence for the manner of selecting MPs in the shires is quite ambiguous before the late 14th-century. However, a statute passed in the parliament of 1406 enacts a procedure to be followed;

“Item, Prayer of the Commons: Election of knights of the counties. Considering the irregular election of knights of the shires for parliament, which are sometimes made in accordance with the sheriffs’ preferences or in other ways contrary to the form of the writs addressed to the sheriff, to the great disrepute of the counties and the delay of the business of the community of said county.

May it please our lord the king, by the assent of the lords spiritual and temporal, to ordain in this present parliament that henceforth elections of knights shall be carried out in the following manner. Namely, at the next county court to be held after the delivery of the said writ of parliament, proclamation should be made in full county court concerning the day and place of the parliament. And that all those who are there present, both suitors duly summoned for this reason as well as others, shall attend the election of their knights for the parliament; and then let the election be held in full county court, freely and impartially, notwithstanding any request or command to the contrary. And after they have been elected, whether the elected persons are present or absent, let their names be written in an indenture under the seals of all those who elected them and attached to the said writ of parliament. And this indenture thus sealed and attached shall be considered to be the return of the said writ with regard to the knights of the counties.”

An even more consequential statute was passed at the parliament of 1429. It enacted two provisions that were to form the essential basis of English electoral law from the late-medieval period.

“May it please your gracious lordship to consider the foregoing, and to provide and ordain by the authority of this present parliament that the elections of knights of the same counties in your realm of England, to be elected in future to the parliaments to be held henceforth, should be elected in every county by the people living and residing in them who each should have a free tenement worth 40 s . a year at least, in addition to the outgoings; and that those who will be thus elected should be living and residing in the same counties; and those who have the support of the majority of those who are able to spend 40 s . and above a year, as is said above, should be returned by the sheriffs of every county as knights for the parliament by sealed indentures to be made on this between the said sheriffs and the said electors”

The first enactment is to provide for an electoral franchise of those who have an annual landed income of 40 shillings (£2) clear of all charges. While this may seem, from our modern vantage point, a regressive and prejudiced act, it was in fact a very broad franchise by the standards of the day. The income necessary to support the lifestyle of a knight was £40 a year, an esquire £20. A gentleman would ordinarily have lands of at least £10 a year. 40 shillings (or £2 a year) went all the way down to the ranks of the yeoman farmer or prosperous peasant.

The same act also provided for a residency requirement, both as a limitation on the franchise and as an eligibility requirement for election as a knight of the shire. Finally, it provided that the knight who has the support of the majority of franchisees will be elected; the first provision in statute law enacting a democratic mode of political selection.

The ’40 shilling freeholder’ franchise was to survive all the way until the Reform Act 1918, when the property franchise was abolished for men (for women, until 1928 the franchise only covered those over the age of 30 occupying land with a rateable value of £5 or above).

Elections

As set out in the statutes above, the elections were held at the county court. Every four weeks, the sheriff of a county would hold a court to hear pleas for causes below 40 shillings in value, and to deal with certain criminal matters such as receiving indictments and remanding prisoners. The county court was in some ways the administrative heart of English medieval local government. Local gentlemen would assemble to sit on juries and grand juries (with the usual 40 shilling property qualification). On some occasions other county business might be transacted, such as the election of a coroner or a meeting called to facilitate a commission of inquiry or a commission of array. Proclamations and outlawries would also be read out at county courts.

Those in attendance would span the spectrum from ‘belted knights’ with incomes exceeding £100 right down to the prosperous peasant farmer with an income of £2. The richest landowners in the county would often send an attorney as their proxy, and we know that noblewomen, where they were a rich and influential force in the county, might also send their attorney (continued below…)

A ‘belted knight’, Sir James Audley, from the Bruges Garter Book (c. 1430-1440)

If the writs had been promulgated to hold a parliament, the election of the ‘knights of the shire’ would be held at the next county court. As the 1429 statute provides, the knights were to be chosen by a majority of those in attendance who met the property qualification. But by what procedure?

A Common Pleas case from 1553, Buckley v Rice Thomas (Plowd. 119a), sheds some light on the manner of choosing. Henry IV’s 1406 statute provided that falsely returning a candidate was actionable and made the sheriff liable for £100 to the wronged candidate. In Buckley, a plaintiff was suing the sheriff for falsely returning another candidate. The defendant, Rice Thomas, replied that if Buckley was to assert he was the one truly chosen then he should be able to stipulate precisely how many votes he received, and how many against. The court disagreed, and in deciding the case thankfully provided some insight into the manner of how the candidates were chosen at the county court, before (as the statute above sets out) the writ naming the successful candidates was engrossed by the sealed indentures of the electors, and returned to the chancery.

“As to the second exception, it seems to me that the plaintiff shall not be forced to shew the certain number of the electors; for perhaps he was elected by voices or hands, as hath been said, in which case he could have no certain knowledge of the numbers, although by seeing the Hands or hearing the Voices it might be easily told who had the majority” – Saunders J

Contested elections seem to have been the exception rather than the norm. It appears likely that the local county families would often agree on the candidates before the vote itself. The fact that two candidates were elected might have made such compromises easier. But where the elections were contested, they could be very heated indeed.

A contested election

The election of 1461 occurred at a particularly unsettled time. It was the first parliament called by Edward IV after deposing the Lancastrian monarch, Henry VI. Yorkist and Lancastrian magnates vied for influence and sought to get their candidates returned. Writs were issued on 23rd May for a parliament to be held at Westminster, and after some delay it assembled in November that year.

In this election we find a particularly contentious selection for the county seat of Norfolk. Mid-15th century East Anglia was a place of intense magnate competition, colourfully recounted in the Paston letters. The two major magnates of East Anglia were the Mowbray Dukes of Norfolk and the de la Pole Dukes of Suffolk. That year, the Pastons (an untitled gentry family of moderate wealth, derived in large part from the labours of William Paston, who served as a Justice of the Common Pleas), had two of their properties seized by force. The castle of Caister, inherited from Sir John Fastolf, was taken by retainers of the Duke of Norfolk, while the manor of Dedham was seized by men of the Duke of Suffolk. In July of 1461 the county coroner was murdered.

In the context of this disorder it is unsurprising that that the election for the county seats of Norfolk would be highly contentious. John Paston, the head of the family, was a candidate for the seat, along with three other men. The other candidates were John Berney of Great Witchingham, Henry Grey the younger (son of a Mowbray retainer of the same name who had been returned for Norfolk in the parliament of 1450), and Sir William Chamberlain, another of the Duke of Norfolk’s affinity who had sought unsuccessfully to be elected in 1450.

The election proceeded as follows. For some reason it appears that it took three weeks for the election writ of 23rd May to reach Norfolk, where it was delivered to undersheriff William Pryce on 14th June. On the morning of 15th June the county court met for its normal four-weekly session, and also to transact the business of electing the parliamentary knights. Each of the four candidates brought along their supporters to vote for them. It seems that there was a dispute as to the extent of the electoral franchise and whether certain supporters met the property qualification. The sheriff, Sir John Howard (also nephew of the Duke of Norfolk and later to become Duke of Norfolk himself), alleged that the supporters of John Berney had behaved in a threatening manner, forcing the undersheriff Pryce to abandon the court and slip away under the protection of several local gentlemen.

Pryce wrote to Paston three days later to say that he believed that Grey and Paston had been duly elected and he intended to engross this result on the writ, although ultimately subject to his master, the sheriff. No such writ was returned, however, and as a result of the need to delay the parliament until November new writs were issued out of chancery on 13th June for the election of knights and burgesses.

By early July questions were raised as to whether a new election should be held. According to Sir John Howard, the undersheriff was prevented from holding the next county court on 13th July. The popular mood in Norfolk was increasingly ugly and primarily directed against the undersheriff, particularly by Berney’s supporters. Berney wrote to Paston on 17th July;

“And as for my playn dysposysson towards the undershrewe, I wyll hym no bodyli hurt, nor shalnot be hurt by me nor by no man that I may rewle; but the comynnes throw all the shyer be movyd again him for cause of his lyght demeanyng towardes them for this elexsyon of knygttes of the shyer for the parlement”

By 10th August the second writ had been received and John Howard attempted to hold a new election. According to his account, the 40 shilling freeholders assembled in the shire house elected Henry Grey junior and Sir William Chamberlain, however John Paston arrived on horseback, asserted a claim of a general franchise independent of income and then a mob of he and Berney’s supporters threatened the sheriff. Howard relocated the proceedings to the castle yard where, so Howard claims, Paston and his supporters prevented him from examining the assembled crowd as to their income, and forced him to seal an indenture electing Berney and Paston as knights of the shire.

In the following week, there was an altercation between Paston and Howard, in which Paston was stabbed with a dagger by one of Howard’s retainers. On 7th September the shire court was again assembled, however Howard asserts it was disrupted. No election indenture was returned for Norfolk, and when Howard returned the bundle of indentures for the other constituencies in his bailiwick (the county of Suffolk, for he was also its sheriff, along with the boroughs of Ipswich, Bishop’s Lynn, Dunwich and Great Yarmouth) he returned in place of the Norfolk indenture a report explaining the disruption at the county courts on 15th June, 13th July, 10th August and 7th September.

In mid-November the Lord Chancellor turned the bundle over to the Lord Chief Justice, John Markham, placing it within the rolls of the king’s bench where it remains to this day. All other indentures from that election (and indeed all elections between 1461 and 1523, excepting 1467) have been lost from the Chancery files.

On 17th November a writ of attachment was promulgated in the king’s bench against Paston, Berney and their followers, and on 1st December John Paston appeared in the Court of Exchequer to sue Sir John Howard for failing to make a return. The case report for Paston’s Exchequer claim, for the customary £100 set out in the statute of Henry VI, is extant and can be seen here at the link below.

(http://aalt.law.uh.edu/AALT7/E4/E13no147/aE13no147fronts/IMG_0056.htm).

It reads, in part;

“Johannes Paston, armiger, venit coram baronibus huius scaccarij primo die Decembris hoc termino per Thomam Harryson, attornatum suum, et queritur per billam de Johanne Howard, chivaler, nuper vicecomite comitatuum Norff’ er Suff’, presente hic in curia eodem die super visu compoti sui de officio vicecomitatus comitatum predictorum hic ad scaccarium reddendo per Thomam Depden, attornatum suum, de eo quod predictus nuper vicecomes ei iniuste detinet centum libras argenti quas ei debet”

Or

“John Paston, esquire, comes to the court of the barons of exchequer on the first day of December this term by Thomas Harryson, his attorney, and complains by bill against John Howard, knight, late sheriff of the counties of Norfolk and Suffolk, and is present in court …. the said previous sheriff unjustly detains £100 of silver which he owes”

Election litigation

The 15th-century is said to be the most unsettled and disordered period in English history since the Norman Conquest, and yet we have the outcome of a (if not democratic, then) representative election being litigated in a court of law, to be decided according to statutes enacted by parliament. Paston’s claim in Exchequer is an early, and possibly the first, instance of a long and honourable tradition of election litigation that reaches from the late-medieval all the way to modern cases like Erlam & Ors v Rahman [2015].

In these unsettled times, with the framework and principles of our democratic order under assault by extremists and despots, I think it’s worth remembering just how far back our record of representative government and the rule of law goes.

Trump, Tresilian and the Merciless Parliament

Execution of Sir Robert Tresilian, Chief Justice of the King’s Bench – Feb, 1388

On 19th February, 1388, the Sir Robert Tresilian, Chief Justice of the King’s Bench of England, was arraigned for treason at the bar of the House of Lords. Despite having passed the better part of a quarter century as a lawyer and advocate, he was on this occasion dumbstruck and unable to speak. The Lords confirmed the verdict against him and he was drawn on a hurdle to the place of execution at Tyburn where he was strung up and his throat was cut.

Six days previously he had been impeached by the House of Commons. In accordance with the procedure for impeachment of executive officials that has subsisted in the English-speaking world since the 14th century, charges were drawn up by the lower house and remitted to the upper house for judgment.

Sir Robert was accused of treason, corruption and giving aid and counsel to traitors. For the Lords Appellant, the five peers who were the driving force behind the ‘Merciless Parliament’ of 1388, his real crimes were his radical notions of executive privilege and royal prerogative, and the support he had provided to the king in seeking to overthrow the lawful authority of parliament.

Two years previously, at the ‘Wonderful Parliament’ of 1386, the Lords Appellant had wrested control of the government away from the impetuous, arrogant and aggressive 19 year old king Richard II. At the commencement of the parliament, the king’s ministers had demanded that parliament accede to an unprecedented grant of taxation. In the medieval period, parliament granted taxation measures as ‘tenths’ and ‘fifteenths’. Tenths and fifteenths were grants of taxation equal to one-tenth / one-fifteenth of the notional value of all of the moveable goods of households in the kingdom in 1334. A grant of a ‘tenth’ and ‘fifteenth’ rendered approximately £38,500 of revenue.

The grant of one tenth and fifteenth was typical. Richard II’s ministers had demanded the Commons accede to a grant of four fifteenths and tenths, or approximately £155,000. The backlash was instantaneous; the House of Commons immediately drew up articles of impeachment for the Lord Chancellor, Michael de la Pole, Earl of Suffolk. Suffolk was found guilty by the Lords and lost his position as Lord Chancellor. This was the first legislative impeachment in the history of the English-speaking world. The most recent was the impeachment of President Clinton in 1998, which proceeded upon the same fundamental procedure; articles were drawn up by the House of Representatives and remitted to the Senate for judgment.

The Commission

Aside from the impeachment of Suffolk, the parliament of 1386 had imposed on the king a Commission of Government made up of fourteen lords and prelates. They were to control the royal administration for a period of one year, having powers to oversee the king’s household and appoint his household officers and government officials. They also had the authority to receive and disburse government revenues. The House of Commons granted a tenth and fifteenth, and excise taxes on wool and wine, which were conditional on the Commissioners exercising their powers undisturbed for the term of their commission. Undermining or hindering the commissioners was declared a capital offence.

Richard II was temperamentally incapable of accepting such a state of affairs with equanimity. He was an egocentric, bullying, arrogant man with an intense belief in the prerogative rights and executive privileges of the crown. After parliament rose, he and his household left London and decamped to the Midlands, to which he summoned a delegation of justices of the courts of King’s Bench and Common Pleas, headed by Sir Robert Tresilian. He posed to the justices a series of questions about the nature of royal authority, and procured from them legal advice to the effect that Commission of Government was treasonable.

Richard II also planned to seek help from the French to overawe and subdue parliament and the Lords Appellant. He reversed the war policy and sought to collude with the King of France, in effect selling the foreign policy of his country to its ancient enemy in order to buttress his own power. The king then raised an army of 5,000 men, intending to break the power of parliament and the Lords Appellant. He would find, however, that it was his power that was broken.

The royalist army engaged the army of the Lords Appellant at Radcot Bridge, and was routed.

Robert de Vere, Duke of Ireland and Richard II’s favourite, escapes from Radcot Bridge – 1387

After Radcot Bridge, the lords and parliament had their revenge in the Merciless Parliament of 1388, in which Richard II’s ministers, household officers and allies such as the Earl of Suffolk, the Archbishop of York, Sir Robert Tresilian, Sir Nicholas Brembre (Lord Mayor of London) and his tutor Simon de Burley, were impeached, found guilty and sentenced to death.

Despots and Depositions

Richard II survived the Merciless Parliament and over time rebuilt his power and authority, however when during the late 1390s he gave himself over fully to despotism and oppression, he was deposed and killed, and the Duke of Lancaster became the new king, Henry IV.

Between the 1320s and the 1680s, six English kings were deposed, of which five were deposed in conflicts that arose generally out of despotic conduct and attempts to overturn the English constitutional principle that the king is subject to the law, not above it. This constitutional principle was explicitly set out in the 15th-century by Sir John Fortescue, Chief Justice of King’s Bench from 1442 to 1461. Fortescue asserted in his work De Laudibus Legum Angliae (In Praise of the Laws of England), that unlike continental monarchies, which were “dominium regale”, England was a “dominium politicum et regale”; in other words, royal authority operated under the rule of law as part of a political, representative constitution, rather than a constitution in which the king was effectively an emperor whose word was law.

Since the ‘Glorious Revolution’ of 1688, when James II was overthrown by parliament, the English-speaking world has not suffered a despotism or dictatorship. It has perhaps been the genius of the common law world that the elite of our societies viewed upholding the rule of law and representative government to be in their interests. While pre-20th century English and American societies were by no means democratic or egalitarian, they had representative government and they believed in the rule of law. We simply did not have dictators because untrammeled rule by one person was alien to our political, social and legal norms.

Kavanaugh and Trump

Trump is undoubtedly a break in this constitutional, rule-of-law tradition. Not since James II have we seen a leader in the English-speaking world who was so enamoured of their ‘divine right’ to rule, and of their executive privilege and authority. There is nothing conservative about a leader who would overturn hundreds of years of representative, constitutional norms. In fact, Trump himself is quite reminiscent of Richard II whose solipsistic, childish, bullying character has led some historians to label him as having a personality disorder. That Richard II sought to collude with the King of France really is the ‘cherry’ on top of this analogy.

And like a 21st-century Sir Robert Tresilian, Trump’s nominee for the Supreme Court, Brett Kavanaugh, is peddling a view of presidential authority that sees the president as being like an elected caesar; above the law and subject to nothing but his own judgment and conscience.

In the 1380s, parliament used impeachment to take out the king’s ministers and household officers where deposition of the king himself was not considered desirable. The US congress should not forget that their powers of impeachment include the power to impeach any federal official, including judges and cabinet secretaries. Impeachment has a long and honourable history in the common-law world and even if impeachment of Trump is undesirable for political reasons (it may be better to keep him around as an easy target in 2020), the use of the impeachment power against Trump’s subordinates would be an effective way to tie his hands, discredit his policies and overawe his underlings into fearing congress more than they fear Trump.

Societies do not avoid despotisms and dictatorships through statutes and regulations, and constitutional provisions. They avoid them through political and legal norms, and conventions of behaviour, that accrue over hundreds of years. And such norms can be undermined and even destroyed much more quickly than they develop. Allowing the Trump administration to be normalised helps to destroy those political norms that have been developing since the Wonderful Parliament of 1386. Bringing impeachment back into fashion would be an excellent way to fight this unwelcome development.

Litigation by ambush! Paston v Jenney (1471) and the Flemings

Serjeant Jenney complains to his friends about Paston, before heading to a wizards convention

Imagine you’re in court representing a client. You’re getting into your stride in your opening submissions when a man comes out of nowhere and slaps a poorly-drafted money claim, written on the back of a napkin, onto the lectern. As your initial surprise wears off you recognise the man. He’s an old nemesis from your university days. You poured itching powder into his bed and he’s never forgiven you for it. In fact, he claimed it prevented him from getting a first and thus ruined a planned career at the commercial bar.

He demands that his claim be heard there and then. Expecting him to be dragged out of the court kicking and screaming, you are astonished when the judge agrees to hear submissions from both sides on the matter. Can you imagine the shock, the sense of outrage, the irritation?

It might be difficult to imagine it because the scene is so outlandish, but there is one person in the history of the bar who would know what it’s like. In 1471, serjeant-at-law William Jenney was pleading a cause in the Court of Common Pleas. His old enemy, Sir John Paston, entered the court and tendered a bill alleging a debt. Paston demanded it be heard immediately. Jenney protested that he was in court to deal with another matter on behalf of a client, but the justices agreed that submissions should be heard.

Sir John’s conduct seems reprehensible but is actually entirely understandable given the problems that inhered in 15th-century litigation. One of the most intractable problems was actually getting defendants to turn up to court. For example, here is a mesne process entry in the plea rolls of the Common Pleas from 1493.

It says;

“Sussex – Henricus Goodman de parochia Sanctus Egidi extra portam vocat Crepulgate per attornatus suum optulit se quartus die versus Thomam Maynard nuper de [illegible] in comitatu predicto husbandman de placito quod reddat ei quatuor libras quas ei debet et iniuste detinet et ipse non venit et praeceptum fuit vicecomites quod capiat et vicecomites modo mandat quod non est inventus…”

Or;

“Sussex – Henry Goodman of the parish of Saint Giles outside the gate called Cripplegate appeared by attorney on the fourth day of the return day against Thomas Maynard late of [illegible] in the aforesaid county husbandman [Maynard’s profession] in a plea of debt of £4 which he owes and injustly detains, and he did not come, and the sheriff was ordered to bring him, and the sheriff now certifies that he cannot be found”.

A very large number of mesne process entries in the plea rolls are of the “non est inventus” (‘cannot be found’) variety. John Doe against Jane Smith, Jane owes 40 shillings, she did not appear, the sheriff said she couldn’t be found, etc. This what what a writ was for; although it could in some ways be thought of as a medieval N1, its primary function was to ensure the appearance of a defendant, or to order the sheriff of a county to apprehend a defendant and bring them before the court.

While expensive writs recorded in Latin were necessary to litigate in the royal common law courts, litigation in the county courts could be commenced with an informal complaint, or “bill”, written in English. Litigation in the Court of Chancery was also commenced by bill.

The exception to the rule that cases in the King’s Bench or Common Pleas must be originated by writ was when you were litigating against a prisoner who was already in the custody of the court, or against an officer of the court. There was no need to obtain a writ to secure their attendance; they were already there.

It seems that when Paston saw Jenney in court, all his Christmases had come at once. No more faffing about with expensive writs and endless non-appearances. A hastily scrawled bill demanding some invented debt is handed over to the clerks with his issuing fee, and he gets to see Jenney sweat. What a delightful morning’s entertainment.

Jenney’s first pleading was that he was in court to minister to the business of his client, and should not be vexed with suits while representing another person’s interests. This apparently cut no ice with the justices so he then argued that since time immemorial, serjeants-at-law could only be impleaded by original writ. He demanded the court give judgment on whether it would accept jurisdiction of the claim.

Paston’s barrister, Serjeant Fairfax, responded that Jenney had appeared in answer to the bill and pleaded nothing in bar, so he prayed judgment for Paston’s debt, with damages and costs. Fairfax also argued that Jenney could not plead a prescription of the right not to be impleaded by bill as only a body corporate could prescribe, and also that as a putative negative right (not to be impleaded other than by writ), it could not be traversed.

This occasioned much argument and, as with so many medieval cases, we haven’t the foggiest who actually won. But it does serve to provide a good entree into writs and bills. In the 15th-century, something as simple as suing for an unpaid debt could occasion considerable cost and delay due to the arcane procedures of the Court of Common Pleas. Upon being summoned to court a defendant could plead ‘essoins’ or excuses for non-attendance, such as illness or being in the king’s service.

After the defendant had exhausted their three essoins and still not appeared, a writ of attachment would issue ordering the sheriff to seize some of his goods or secure pledges who would be fined in the case of non-appearance. If the defendant still did not appear, a writ of distress would issue for the sheriff to distrain his goods and the profits of his lands.

If still he did not appear to answer the claim, the plaintiff could seek a writ of capias to have the defendant seized bodily and brought before the court. However, the plaintiff would have to proceed through multiple stages of capias writs; testatum capias, alias capias, pluries capias and finally exigi facias after which the contumacious defendant would be declared outlaw. At that point, a capias utlagatum would issue.

Prisoners seized and brought before the Court of King’s Bench

With each of these stages the plaintiff would have to pay issuing fees and have his attorneys actively pursuing the matter in the courts. And even following outlawry, such a defendant might purchase a pardon from the king. In fact, the close rolls are full of such pardons issued after a fine is “paid into the hanaper”. So why would anyone bother with such a ponderous legal system? The answer is because sometimes it did work, and sometimes issuing a lawsuit was enough to trigger serious attempts at settlement.

However, given the above it’s not surprising that arbitration was extremely popular in late medieval England and many serjeants earned a good living providing this service. The exasperating, cumbersome nature of the Common Pleas and King’s Bench also made the Court of Chancery, with its simple procedures and complaint by bill very attractive indeed.

A good example of this is the 1440s chancery case set out in the bill of Arger v Vaill & Ors. Katherine Arger, “sometyme the wyfe of John Arger, the which John had for my sake grete frienship and availl in the countree of Flaundres, there of I was bore”. Katherine, a Fleming, complains to the Lord Chancellor that “for lakke of kindred and counsaill and for lakke of frienship and little Englysshe nether speke nor understond … it cost me £200 and more”.

“To the moste worshipfull fader in God, John, Archbisshop of Cauntubery, Chaunceller of Englond” – the opening prayer of Mrs Arger’s chancery bill

Katherine’s husband John had married her in her native Flanders, and retained significant business interests there. He passed away, and Katherine, speaking very little English and having no friends, family or legal counsel, was swindled by, “his attourneys Thomas Vaill and John Binfield”.

The sums in question are very large indeed. For example, Katherine speaks of, “seeing he was dede, they resseyvid an £100 of dette which was had of the enbassatours of Flaundres which was payd in Englond was dewe dette unto hym”. This is at a time when in income of £40 a year was deemed sufficient to support the rank and lifestyle of a knight.

Katherine asserts that John’s “grete goodes [and] riches … the which goodes the day of his deth that is notably knowen to all the worthy men of Norwich”, had not been transferred to her control. As widow, Katherine would be entitled to at least one-third of his goods and stock-in-trade, which she values at £1,054.

Landed property is also unlawfully sold by John’s attorneys, specifically, “A plase in Seynt Laurens parissh the which was sold for £40, besyde all his dettes the which they have knowyng of well and goodes moveable household array to his persone horses [cattle] shepe corn of which goodes I had none but 54 marks” (approx. £35).

15th-century manor house of the sort Katherine and John may have lived in

The Court of Chancery wasn’t only a venue for the resolution of individual grievances; groups of individuals sometimes tendered bills that amounted to a request for a judicial review. In the 1460s, a group of Flemish weavers in London complained they were being expelled unjustly by the city authorities.

“Besechen mekely all the clothmakers aliene of the subarbes of London… they dwelt in the citee and yf so that the said beseechers myght dwellen within the citee as they did they would well bear now as they did afore but the Chambleyn of the Geldehall, the mairs clerk… will not suffer them to abide within the citee … and hath done arest certain of the said beseechers to their utter undoing but yf they have your gracious help and succour in this case”

European workers being thrown out of London seems a particularly topical case to see in the medieval rolls. But they clearly believed that they could secure justice in the English legal system, and late medieval England was a country that believed in and respected the rule of law. That faith was not misplaced; we have a 1464 case in the Year Books that perfectly embodies that belief and respect.

In 1464 a case of trespass was heard before two King’s Bench justices out on circuit. The plaintiff was successful and writs of capias and exigi facias were issued against the contumacious defendant. Several days later, a letter bearing the privy seal of the king had arrived ordering the justices to stay the process against the defendant. This writ under the privy seal had little legal standing and the king was effectively asking them to unlawfully set aside a judgment. Yelverton JKB and Bingham JKB refused, replying;

“They said that we ought to do as reason and conscience counsel us,  it is not honourable for us nor for this Court, nor for any other court to vary in our judgments, as to give judgment in a matter in one Term, and to give another different judgment afterwards in another Term”

For all Jenney’s frustration at being ambushed in court, he could feel secure in the knowledge that the matter would be decided by argument and disputation before the justices, rather than by wealth or ‘might makes right’. If the decision went against him, he could appeal by a writ of error to the King’s Bench, and thence to the Exchequer Chamber, and finally by bill to the High Court of Parliament.

It seems to me that it’s an enormous relief that whether it’s a question of legal aid or Article 50, we can have the same confidence in our justices on the Queen’s Bench or Chancery Division as the Flemish clothworkers and Katherine Arger did over 500 years ago.