Law in Action in Medieval England

VIRGINIA LAW REVIEW

Vol. XVII NOVEMBER, 1930 No. 1

LAW IN ACTION IN MEDIEVAL ENGLAND ONE reading the skeleton-likereports found in the Year Booksfrom which so muchof thecommon law has filtered throughthe great medieval abridgments down even to thejuris- prudenceof our own timeoften wonders what was theatmos- phereof thecourt room in whichthese cases were argued and thejudgments rendered; and what were the social, economic, and politicalconditions that furnished the setting for the contest and affordedthe stimuli to judicialaction. It is quitetrue, as Pro- fessorBolland has so interestinglyshown,1 that one sometimes discoversin thesereports touches of humaninterest and even incidentsof historicaland sociologicalimportance; but forthe mostpart the Year Booksfurnish little data forthe sociologist and too oftenonly fragmentary and unsatisfactorymaterial for thelegal historian. The apprentices,who for the most part seem to haveindited the Year Bookreports, were primarily interested in therules of procedure.They desired to recordand learnthe correctplea and theappropriate reply, the right word which wouldset thecrude legal machinery of theking's courts in mo- tion. Theymanifested no interestin thephilosophy of law,or in thesocial and economiceffects that might be producedby the judgmentsthey recorded. Veryoften, however, these medieval scribes, these lovers of curiouswords and rigidlegal formulas, did noteven record the judgmentin case it was rendered.This characteristicis strik-

EDIrTO'S NoTv.-Our usual policyof documentingeach quotedpassage has not been followedin this articlebecause of the natureof the work and the constantreferences to the sourceof the quotationthroughout the body of the article. 1 BOLLAND, A MANUAL oi YEAR BOOK STUDIES (1925).

This content downloaded from 130.132.173.25 on Sat, 31 May 2014 18:16:54 PM All use subject to JSTOR Terms and Conditions 2 VIRGINIA LAW REVIEW inglyillustrated in Pakenham'sCase,2 whichwe now learnwas not even correctlyentitled, for the hero of this case was really LaurencePabenham, and not LaurencePakenham as the Year Book scribewould have us believe. The Year Book reportdoes not show that any judgmentwas enteredin this famouscase whichhas been so muchdiscussed, explained, expounded, and followedfrom the timeof Fitzherbertand Coke down to Hals- buryand Holmes; B but it has beengenerally supposed that what we have in the Year Book is a reportof reasonsfor a judgment thatwas in factrendered. Throughthe industryand acumenof ProfessorSydney K. Mitchell,who consultedthe originalplea rolls in the Public Record Officein London,we now knowthat the case was some six timescontinued and that apparentlyno judgmentwas ever entered.4 Examinationof this originalrec- ord failed,to disclose that therewas any considerationby the courtof the questionwhether the prior'scovenant to sing three timesa week (not once a week as statedin the Year Book report) in Pabenham'schapel would run withthe land or not,al- thoughthis is the pointfor which the case is so frequentlycited. It would rather appear that the real question presentedto the court for decisionwas whetherthe plaintiff,having in his plea allegedthat he was heirto the originalcovenantee, could main- tain his writupon proofthat he was merelyspecial heir male of the body of the original covenantee,and so having seisin and possessionof the manorwhich was held in tail male. But one wonderswhy the court was so unwillingto decidethe issue presented. Was it because of evenlybalanced arguments addressed to the actual issue? Or was it because, possibly, LaurencePabenham was a great landownerable to command such armedpower that the courtdare not decideagainst him? 6 2 Y. B. 42 Edw. III, f. 3, pi. 14. a See HOLMES,THE COMMONLAW (1881) 395. See, also, opinion of Holmes,J., in Norcrossv. James,140 Mass. 188,2 N. E. 946, 948 (1885). See Woodbine,Pakenham's Case (1929) 38 YALE L. J. 775, n. d"* * * What actually happenedwhen an action was set down for hearingin the countrybetween litigants who could bringtroops of retainers into Court a reportof 7 Henry VI makes plain to us. Justiceswent down to try an assize in Cumberland. It was promptlyadjourned to Westmin- ster,and Babington,C. J., who was one of the justices who had gone down to Cumberland,tells us why. The issue,he said, was an importantone, and

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Or did the already gathering storm of conflictbetween Church and Crown overshadow the court, threateningdismissal in case of a decision unpleasant to a favoriteof the King, or the risk of excommunicationif a decision should be rendered hostile to the Church? In regard to this case we can only guess; but we do have from fragmentaryrecords of the time some evidence of the influence of the strenuous and disconcertingpolitical and social conditions of the fourteenthand fifteenthcenturies upon judicial behavior. Thus, for example, we find in the Paston Letters a suggestion of the forces with which the courts had to contend during that period. From one of the letters we learn that a certain Lord Molynes, with a force of a thousand men, had beseiged and cap- tured a certain manor house of which John Paston was seised, while it was occupied by Paston's wife, Margaret, and twelve servants. After this violent disseisin, John Paston brought an action of trespass against Lord Molynes for the damage to his realty,and also instituted criminal proceedings against him before a court of Oyer and Terminer. Both of these proceedings were unsuccessful for a reason clearly appearing in one of the Letters: "Also the Shereffeenformed us that he hat writyng from the Kyng that he shall make such a panell to acquyte the Lord Moleynes. Also he tolde us, and as ferr as we can con- ceyve and feel, the Shereffewill panell gentylmento acquyte the Lorde, and jowroures to acquyte his men." 6 Under such circumstances we are not surprised to find that judicial action was not always consistentor even intelligible. By far the most graphic account available to us of the conditions, social, economic, and political, that controlled judicial action in the fourteenth and fifteenthcenturies is to be found in the history recorded in the Berkeley Manuscripts7 of the long

the parties came into Court with great crowds of armed retainers, more as though they had come to fight a battle than to be present at an assize. And because if the hearing had been continued in the country the King's peace would probably have been broken, it was therefore adjourned to Westmin- ster. * * *" BOLLAND, op. cit. supra note 1, at 30. e THE PASTON LUEERS (Gairdner's ed. 1910) 200. See, also, Letters num- bered 156, 158, 159, and 164. SMYTH, THE BERKELEY MANUSCRIPTS: Livis OF THt BERKELEYS, LoRDs

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FIrTEENTH CENTURYLITIGATION OVER THE BERKELEY LANDS Of all the long line of the Fitzhardings, Lords of Berkeley, Thomas, twelfthin the line and the fourth of that name, was the most distinguishedin station, the most successful in acquir- ing wealth and land, and also most given to trickeryand double- dealing. It was due to this unfortunatetrait that at his death a litigation sprang up, "the greatest sutes in lawe and of longest continuancethat were in those times or since." John Smyth of Nibley, the author of the Berkeley Manuscripts and devoted historianof the Harding family,speaks of "the blouddy and irk- some controversiesof more than fower generationsthat fell into his [Lord Thomas'] family through his wavering and ill settlement of his estate, and other judgments of God." It is interest- ing to follow the course of this litigation, involving immense interestsin land, betweentwo of the greatest familiesin England, by means of the faithfuland detailed records that were kept by the various stewards of the Manor of Berkeley as digested and woven into an historical narrative by John Smyth. This John Smyth of Nibley, himself nearly related to the ruling branch of the Harding family,was peculiarlyfitted to prepare these ancient records in such a way as to bring out in high reliefthe legal proceedings involved in this famous litigation, and to show them vividly on the background of contemporarysocial and political conditions. John Smyth was trained to the law and to business, serving for the greater part of his long life as steward of the Manor of Berkeley. As steward he was not, however, merely the business manager of this great estate; he also presided over the court baron and court leet, which in this importantmanor possessed extensive and significantjurisdiction. In order to get the settingof this long and distressfullitiga- tion, we must first acquaint ourselves with the state of the Berkeleyproperties. The firstof the English Hardings, and the

OF THE HONOUR, CASTLE AND MANOR OF BERKELEY (MacLean's ed. 1885). This work will be cited hereinafter as SMYTH, LIVES OF THE BERKELEYS. John Smyth, of Nibley, was born in 1567, and died in 1641. He wrote "The Lives of the Berkeleys" between the years 1618 and 1639.

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founderof the House of Berkeley,was an adventurousyounger son of theKing of Denmark,known as Harding,8who, learning that William, the Duke of Normandy,was organizingan ex- peditionaryforce for the invasionof England,joined himselfto him. Hardingseems to have foughtwell at the Battleof Hast- ings and to have deservedwell of the Conqueror; while the Saxon Roger of Berchlai,who was in the opposingSaxon army, sufferedconfiscation of his large estatesin Gloucester. These estatesultimately came by grantto Harding,and werelater con- firmedto his eldest son, Robert Fitzharding,who thus became the firstLord of Berkeley. The titlethus violently obtained was contestedby Roger the Saxon, but unsuccessfully. During the threecenturies following the firstHarding's ac- quisitionof the manor,castle, honor, and libertiesof Berkeley, the prudentLords of Berkeleyhad greatly increased the land holdingsof the family.A longline of successors,who proved,al- most withoutexception, to be good managersof theirestates, keen business men, bold and astute politicians,and successful soldiers distinguishedon the fields of Evesham, Crecy, and Poictiers,had culminatedin Lord Thomas IV of Berkeley, one of the most importantmilitary and political figures of Englandduring the reignsof RichardII, Henry IV, and Henry V. This Lord Thomas, who was most active and suc- cessfulas a soldierand who, as Lord High Admiralof the fleet, won two importantvictories over the French,used his political influencemost cleverly-and one fears,wrongfully furtherto increasethe familyfortunes. He rode the troubledwaters of his day so skillfullythat he profitedboth fromPlantagenets and Lancastrians. In the days of the prosperityof RichardII, that monarchwas often royallyentertained at BerkeleyCastle. It was at BerkeleyCastle, also, that Henry Bolinbroke,the Duke of Lancaster,secretly returning from exile, met the group of nobleconspirators that rose to driveRichard II fromthe throne. In 1368, at the age of fourteen,the youngThomas Fitzhard- ing, under the marriage covenantsmade betweenhis father, Lord Maurice of Berkeley,and Gerrard,Lord DeLisle, one of

8 Smyth of Nibley, with commendable honesty, admits that this heroic origin of the Harding family has been seriously questioned.

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the greatestlandholders in Gloucester,was marriedto Margaret, the onlydaughter and soon to be, by reasonof the deathof her brother,the only child and heirof Lord DeLisle. Margaretwas thenseven years of age.9 Lord Maurice died in the following year and youngThomas, at the age of fifteen,succeeded to the vast estatesof the family. The prudenceand charmof Thomas were indicatedby the factthat the old Lord DeLisle becameso muchdevoted to his youngson-in-law that when, some years later,the bridecame to her husbandat BerkeleyCastle, he, himself,came to live withthe young people. Beforehis deatha few years later,Lord DeLisle settledhis greatestates upon Thomas of Berkeleyand his issue by Margaret,his wife and sole heirof her father. In the twenty-thirdyear of the reignof Edward III (1349) Lord Thomas III, grandfatherof Thomas IV, had levieda fine by whichhis lands were limitedto himselffor life,and thento his son Mauriceand the heirsmale of his body. Thus it came about thatin his old age Lord Thomas IV, who had no male issue, was much disturbedas to the devolutionof his great landed estates,which, besides many other propertiesincluding houses and lands in Bristoland London,embraced some two score manors in fourteendifferent counties in England and Wales, includingthe manorsof Yale and Wrexham. His only daughter,Elizabeth, was marriedto Richard Beauchamp,the Earl of Warwick, famousas traveler,warrior, and statesman, and one of the greatestand most influentialnoblemen in Eng- land. She, as his heir general,could inheritonly lands held in fee,and those held in fee-tailgeneral. Those lands settledin fee-tailspecial male, which comprisedthe greaterpart of his ancestralestates, would pass to James, the eldestson of a de- ceased brother,as next heir male, unlessThomas by levyinga fineshould bar theentail and thusconstitute his daughterheir to theselands also. The over-shrewdThomas was muchtroubled.

9 It.seems that the marriageof heiressesat this early age was not un- usual. Despite its beginningin such an early marriage,the marriedlife of Thomas and Margaretseems to have been an unusuallyhappy one. Smith of Nibleysays that "shee was a verymild and devoutlady," and thatthough she bore her husbandno male heir "yet lived shee and her husbandin a most sweet and contentedsociety."

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He evidentlydesired to preservethe family name,but he also desiredto keep on good termswith his greatson-in-law, whose influenceat courtwas all-powerful.It is probable,also, thathe had real affectionfor his daughter,the onlychild of a muchbe- loved wife who had died at the earlyage of thirty.10Under thesecircumstances Lord Thomas broughtto BerkeleyCastle his nephewJames, declaring to him thathe was to have the family estates. He also thriftilysold his nephew'smarriage not once but twice,the firstchild bride having soon died. In bothof the marriagesettlements Lord Thomas covenantedthat James,his nephew-and heirmale, shouldbe made heirto all of his estates. At the same time it seemsthat this shiftyLord representedto his daughterand the Earl of Warwickthat the daughterwould inheritall of his lands. The old Lord Thomas took part gloriouslyin the Battleof Agincourt,in 1415, and two years later died withouthaving takenany definiteand finalsteps for the settlement of his estates. The stagecould hardlyhave been betterset for troubleand litigation.'1 It so chanced that at the time of the deathof Lord Thomas,which must have been sudden,James was absentat the seat of his father-in-law,Sir HumphreyStafford, while the daughter,Elizabeth, and her husband,the Earl of Warwick, were at BerkeleyCastle wherethe Lord died. Warwicklost no time,but at once took possessionof the castle and manor and was acceptedby all of thegreat tenants and officersof themanor, the servantsand other pursuivants,as the Lord of the Manor.

Of Margaret's early death, our author says: "* * * The greefe of whose death soe fastenedupon the affectionsof her lord and husband,that hee neverafter affectedmariage, although hee was at her death,but thirty eightyears of age, and of an able constitution,and then withoutissue male to upholdhis name and barony; whereatI have not only mused,but at the cause why,in a few monthsafter her death,hee betookehimself to a for- raigne pilgrimage. * * *" 2 SMYTH, op. cit. supra note 7, at 27. " The unhappyconsequences of private war and litigationare deplored by Smythof Nibleywho tells us: "* * * that with the life of this lord Thomas ended all that regularitywhich for many ages had been observed in th'estateand householdaffaires of these lords, in the Accomptsof their Receivors, keepers of the wardrobe,Steward of houshold, Clark of the kitchen,Reeves & Bayleysof manorsand hundreds,and the like accomptants, which were by their Auditorswith singularcare and exactnes,yearly cast up, and preserved ingrossed in parchment. * * *" 2 SMYTH, op. cit. supra note 7, at 37.

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He also seizedand carriedoff to his own castleall the important titledeeds and other recordsthat were found in the muniment roomof BerkeleyCastle.12 This was not all that was done by that energeticand resourcefulpeer. Since the Berkeleyestates wereheld forthe mostpart by tenancyin capite,the King, as Lord Paramount,was entitled,upon the deathof Lord Thomas, to possessionuntil the escheator13 shoulddetermine by inquisi-

" The inconveniencesand dangersincident to the English practiceof leav- ing land titlesdependent upon unrecordedmuniments is strikinglyshown in the followingpassages referringto suits broughtby Maurice, Lord Berk- eley (1491-1506), to recoverthe Berkeleyestates: "Howbeit this peace was not so soundlyon each part sawdred,but that afterwardsit leaked at certainecrannells, which were once againre cementedby an order in Chancerydated the 22th. of Februaryin the 5th. year of King Henry the 8th.,made betweenThomas Howard then Duke of Norfolke,the said Earle of Darby and the lord Maurice this lords son; wherebytwo chestsof Evidenceremaining in the Rolls Chap- ple were perused and sorted touchingthose manors and lands which were in variance,by friendsin trustappointed by each of them: which beingdone, the lord Chancellorand the Two cheifeJustices of the kings bench,and comon pleas, did the fourthand 7th. days of March after in the starrechamber,deliver such of those evidencesto each party as appertainedto them; Appointingnotwithstanding many still to remaine therein two canvas bags in a chest,which for ought I can findshould remainethere to this day.Anno.1628.whichthrough want of leisure I have not searchedafter, and only talked thereofwith the Usher that keeps otherhuge heaps and cheststhere also." 2 SMYTH, op. cit. supra note 7, at 161. "* * * This is the Replication of Maurice lord Berkeley brother and heire of William late Marques Berkeley: And furthersaith, That after the death of the said Marques Berkeleyhis brother,one espetiall Deed of the said manor with an obligationof a great sum concerning the righttitle and securityof the same manorto and for the Ancestors of him the said lord, and for the suertyof him the same lord and his heires in the same manor,with many otherevidences belonging to him the said lord Berkeley,were (amongst others) in a chest within the Gray ffryarsof London, which chest aswell for the suertyof divers evidencespertayninge to the kinge,as for the evidencesptaining to him the said lord Berkeley,was sealed up by William Marynerthen comon preistto the CardinallArchbishop of Canterbury,unto the time the said Sr. RobertPoyntz, pretending title withoutground or cause to the said Manor,by sinister,and corruptmeages came to the said chest,and there with an hott knifeloosed the underpart of the wax of the same seale fromthe same chest,and openedthe chestand searchedall the evidences thereinat his pleasure; And thereupontook away the said deed of en- taile and obligation,with divers other evidences concerningthe said manor,which were in the keepingof the said Marques, and put there by him safelyto bee keptto the use of him and his heires,whose brother and heirehee the said lord Berkeleynow is, And thereforefor the said evidenceshath sued a subpenaagainst the said Robert; And that his suing of his Scire facias is but to colour his wrongfullkeeping of the said evidencesfrom him the said Lord Berkeley." Ibid. 163. S The escheatorwas an ancientEnglish officerwho came to be appointed, underthe provisionsof the Statute14 Edw. III, for each county. His duty was to hold an inquisitio post mortem upon the death of any tenant in capite,

This content downloaded from 130.132.173.25 on Sat, 31 May 2014 18:16:54 PM All use subject to JSTOR Terms and Conditions LAW IN ACTION IN MEDIEVAL ENGLAND 9 tio post mortem who was heir,and thatheir shouldsue out his liveryby payingthe sum due in,relief, swearing allegiance, and doing homage. Warwickat once took advantageof this situa- tion. To quote the quaintlanguage of JohnSmyth of Nibley: "And the providentEarle to make the possessionof the said Castle and of the entayledmanors, (which hee then also got,) the morelegall and faireunto him,or at least soe to seeme,Hee the 21th of July,(the 8th day afterthe Lord Thomas's death,) obtainedof King Henrythe fiftha grant of the custodyof all the said lords lands and Castle, as longe as theyshould bee in the kings hands,under such a valew as shouldbe mentionedin the officesto bee found,by the manucaptionof Thomas BerkeleyClarke become the Earles Receivor; whichrent the 12thof Junein the next year was remittedto the Earle; And by forceof, the said grantin the same year and in the two next,the said Earle receivedthe rents, and kept Courtsin all the said manors entayledto theheires males, as therolls thereof in thenames of himselfand of the lady Elizabethhis wife,without any relationto thekings grant, doe shewe: wherebyit appeareth thatthe Earle and his wife pretendedright to the Barony of Berkeleyand to all manorsand lands theretobelonging. * * *,, On theother hand, James was not slow to act. On the second day afterhis uncle'sdeath he sued out of chancerya writof diemclausit extremum,14 directed to the Escheatorof the County of Gloucesterto inquireof what manors,lands, and estatesthe Lord Thomashad died seized.What followedmay be bestgiven in thewords of JohnSmyth: in order to determineof what lands he died seised, who was his heir, and the age of such heir,in orderthat the King mightreceive his rightsof relief, primer-seisin,wardship, marriage, and other feudal dues to which he might,under the circumstances,be entitled. The critical characterof the dutiesof the escheatoris indicatedby the fact that underthe statuteabove referredto, he could hold officefor but a singleyear and only for one year out of three. See 3 BL. COMM.*244; Co. LiTT. *196. 14 "The Writ of Diem clausit extremumproperly lieth, where the King's Tenant,who holdethof him in Capite,as of his Crown,by Knight's Serv- ice, or in Socage, diethseized, his Heir withinage, or of full age; thenthat Writ oughtto issue forth,and the same oughtto be at the Suit of the Heir, etc. for upon that,when the Heir comethof full age, he ought for to sue Liveryof his Lands out of the King's hands." FITZH4RBERT'S NATURA BRE- vIum . (Atkins' ed. 1704) 558.

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"* * * whereupon twelve of the most worshipful gentle- men and of the best liveliodewithin the Countyof Glouc. were impannelledat Glouc. the mundaybefore Michaelrmas day thennext following,And sworneto presentaccording to thetenure of thesaid writ;what time through the opposi- tionthen arising upon theevidence, the jury was adjourned to a furtherday: But the Earle having, (as it seemeth,) tastedthe purpose of theJury to findagainst him, procureth the22th of Octoberfollowing, a secondwrit cut of the said Court,in the natureof a supersedeas,to countermaundthe former;This lord Jameslaboreth to have theJury proceed, and an Inquisitionto bee found,And obtainetha thirdwrit out of the said Courtcommanding the Esdheatorto appear in thatCourt in person;when all theJudges of bothbenches are sent for by the lord Chancellor,by whose advice an otherwrit dated the fifthof Novemr,is awarded,whereby the formercountermandment is recalled, and the Escheator commandedto proceedupon his firstwrit of diem clauoit extremur;And soe the Juryat lengthgive up theirverdit, And foundthis lord Jamesheire male to his said unckle Thomas,and thathee was to inheritethe said Castle of Berkeley and the twelve manors. * * * But to all other manorsand lands of the said lord Thomas, (Portburyin Somersetshireexcepted,) they find the said Elizabethwife to the said Earle of Warwicketo bee heire: Accordingly shee and her husband,the fifteenthof Dece~mberfollowing, sue theirlivery for the same manorsand lands,And forfive markspaid to the King have theirhomage respited; And in the fifthof Henrythe Sixth the said Earle paid his Releese according,setting over the Releese of the entayledlands uponthis lord James, in perticularnames, accordingly to the said Inquisition,-And likewisethe lord James the firstof the same Decemberfor the said Castle and manorsintailed dothhis fealty;And forten markespaid into the Hanaper hathhis homagerespited." At this place in his history,John Smyth inserts a contempo- raryrecord of thisfirst contest in theprolonged litigation, which his industryhad foundin the Castle of Berkeleyand whichhe tellsus, "age and bad keepinghave made almostillegible." This ancientdocument gives us a graphic pictureof what actually tookplace withreference to the legal proceedingsthat were had, as follows: "* * * It'm after deces of Thomas late lord Berkeley,

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unckleto Jamesthat now claymeth,upon a diem clasuit extremumtake beforeone RobertGilbert, Eschetor of the Shire of Glouc.,which was a suffitientlearned man, and a sadde, And in his preceptto the Shreveof the said County whichreturned twelve the worthiestSquires of the said Shire at Glouc.,And the havinggrete deliberation of divers dayes by the space of nyne weeks, And both partiesand theircounsells being present, That is to say, RichardEarle of Warwickand Elizabethhis wife daughterto the said Thomas, and her counsellon the one party,and the said Jamesand his counsellon thatother party, And all matters shewedto themat that time,as is now, They foundthe Taill of the said James of the said lordshippand manors, and would not in noe wise allowe the matteirson the said Erle is perte; wherebyit apperethevidently, That though thatwere an enquestof office,yet sin it was don openlyand by gode Courtsof lawe, And the pertiesbeing in travers thereofhaving knowledgeand beingthereat, and hadden theirreasonable challengesto the polles by the whichall such personswere avoydedand put out by the discretionof the said Escheter, And by whichit was founden,that the said Jameshad right accordingto his evidenceshewed to them,notwithstanding the greatmight of the said Earle And thathee and his wife thattime were in possessionin the Castleof Berkeley,And in all the wholllordship having in ward all the evidencesthereof with them; upon which officethe said Jameshad liveryof record. "It'm afterthe said liverywas awardedto the said Jamesup- on the said office,the Said Richard Earle and Elizabeth kept the said Castle lordshipand manors with strength diversyears, unto the time of our Soveraignelord King Harry the fifthfather to our soveraignelord thatnowe is, upon a remonstranceof the rightof this lord James,being greatlydispleased withthe said Earle, comaundedhim to voyd the possessionthereof; And thenafter decese of our said Soveraignelord, the said RichardEarle entredagen in the said manorsof Wottonand others,And laid about the said Castle of Berkeleygrete multitude of peoplein maner of warre; In whichtime many persons were hurt and maymed,and some slayne. * * *'Y 15 It is evidentthat Warwickretained possession of the family lands, otherthan the Manor of Berkeley,for JohnSmyth tells

15 2 SMYTH, op. cit. supra note 7, at 43.

This content downloaded from 130.132.173.25 on Sat, 31 May 2014 18:16:54 PM All use subject to JSTOR Terms and Conditions 12 VIRGINIA LAW REVIEW us that,"This lord Jameslaboureth also to sue his liveryand to pay his Barons releese,and to have thesehis lands, (according to the ceremonyof the lawe,) out of the kings hands, which throughthe favor of the time,and the overgreatnessof the Earle, (not satisfiedwith Inquisition,)he could not procure." During the lull in the legal proceedingswhich seems to have followedLord James's initialsuccess in the inquisition,War- wick set about strengtheninghis case in formand methodthat could scarcelybe improvedupon by the unscrupulouspracti- tionersof our own time. He promptlyset himselfto secure neededtestimony by subornation.He took Lionell Sebroke,late stewardof thehousehold of Lord Thomas,before the Mayor of Southington,and thereprocured him to makeaffidavit that Lord Thomas,the year before his death,had showedto him an earlier deed of entailgeneral, which had beenexecuted by Lord Maurice Fitzhardingin the time of HenryIII,16 and that he, the depo- nent,had read it over and rememberedthe contentswell. He furtherdeposed that Lord Thomas upon seeing him read the deed, hastily snatchedit fromhim. Lest the evidenceof this priordeed should not be sufficientto serve his needs,the Earl inducedBone-John, the Vicar of Berkeleyand one of the execu- tors of Lord Thomas' will, to make affidavitbefore the Mayor of Bristolthat Lord Thomas, at a certaintime mentioned, had enfeoffedthe deponentand othersof all his lands to hold them in fee-simpleabsolute; thatthe deed was executedby liveryof seisinand by attornmentof the tenants; and thatcourts were held in the name of the feoffees.We are told thathe procured otheraffidavits of like kind. Not contentwith these achieve- ments,the Earl thenprocured a mandatefrom the Keeperof the GreatSeal of England,enjoining Lord Jamesor any otherfrom suing him. It is to be inferredthat at this stage of the proceedingsLord Jameswas in actual possessionof BerkeleyCastle, but that he had not succeededin gettinglivery of seisinof his Baronyand Castle of Berkeleyout of,the King's hands; and it would seem thatthe othermanors belonging to the Berkeleyestate were still

16 See the accountof this alleged deed in 2 SMYTH, OP. cit. supra note 7, at 57.

This content downloaded from 130.132.173.25 on Sat, 31 May 2014 18:16:54 PM All use subject to JSTOR Terms and Conditions LAW IN ACTION IN MEDIEVAL ENGLAND 13 in the possessionof Warwick. Knowing that the shiftyEarl was in possessionof the fraudulentaffidavits and thatby reason of his influenceat courthe could get prettymuch such writ as he desiredfrom Chancery, Lord Jamesnaturally concluded that it was hopelessfor him to look for reliefto the courtsalone. Ac- cordingly,he resortedto a formof finessethat was apparently frequentin those times,and whichexplains the remarkablete- nacityof the ancient common-lawdoctrine of maintenanceand champerty.At this juncturehe sought out the unscrupulous Duke Humphreyof Gloucester,17the brotherof King HenryV. A secretcovenant was made withthe Duke wherebyLord James gave a bondto two of the Duke's henchmenin the greatsum of ten thousandmarks, conditioned upon his grantingto the Duke certainlarge estatesheld by Lord Jamesin Wales, if he, by the aid of,the Duke, securedout of the King's hands liveryof his Baronyand Castle of Berkeley. JohnSmyth thus describesthe consequencesof this corruptbargain: "By this close compactthis lord James who before was a weak hopp,havinge now got a strongpole fastlyto wind about,grew up and bore the fruiteof his own desires;And withina few monthsafter in Michaelmas Terme in the ninethof the said king, (1422) upon a petitionto the king secondedby the Said Duke of Glouc.,had licenseto sue his liveryof the said Castle and lordshippof Berkeley,18And payeth,as the Releese of a Baron and peereof the Realme, one hundredmarks according to theStatute of magnacharta for his inheritancesoe intailed,and found by Inquisition fower years past as aforesaid. * * *" The aid of the powerfulDuke of Gloucesterevidently put a

17 Despite his bad characteras politicianand administrator,Humphrey of Gloucesterwas knownas "The good Duke Humphrey,"because of his interestin books and learning,and his liberalpatronage of the foremostschol- ars of his day. His collectionof books, very large for the time,was presentedto Oxford Universitywhere there is still a room called "Duke Hum- phrey's Library." '" "Before the tenantof the king shall have livery,he shouldhave a writ of the Clerk of the Rolls to the Keeper of the Privy Seal, witnessingthis, etc.,and a Privy Seal to the Chamberlainof the king to receivehis homage. And when he has done his homage,he shall have a writ from the Cham- berlainto the Chancellor,and thenhe shall have a writ to the escheatorto have livery. And this by Skrene,in the Chancery." 2 STArHAM's AnRIDG- MENT (Klingelsmith'stransl. 1920) 854.

This content downloaded from 130.132.173.25 on Sat, 31 May 2014 18:16:54 PM All use subject to JSTOR Terms and Conditions 14 VIRGINIA LAW R1VIEW new face upon the controversy.At the deathof HenryV (in 1422), leavingas his successorto the crown his infant son, HenryVI, the tenantsof diversof the manorsbelonging to the Berkeleyfamily, who had previouslyrecognized Warwick as lord, now attoinedto Lord James; while Warwick,under the new politicalsituation, consented to the arbitrationof the dis- putesbetween himself and the Lord of Berkeley. The termsof this arbitrationcovenant show clearlythat the feud betweenthe Earl and the Lord of Berkeleyhad resultedin frequentarmed conflictsbetween their adherents, on the streetsof London. The Duke became Lord Protectorof the realm and his friendship forLord Jamesof Berkeleybecame proportionally more valuable. Under the provisionsof this arbitrationagreement it seems thatthe whole field of tangled litigationbetween the Earl of Warwickand Lord Jamesof Berkeleywas submittedto Sir John Juyn,Justice of the King's Bench,and the Bishop of Worcester. Evidentlythe arbitrators had difficultyin arrivingat an award- whichwas sureto give offenseto one of two powerfulnoblemen, or perhapsto both. We are not surprisedto see thatno award was made underthe firstreference, or under the second. But since Warwick'speaceful disposition still continued,thanks to Lord James'sfriendship with the Duke of Gloucester,then Lord Protector,a thirdreference to thesame arbitratorswas moresuc- cessful,and a compromiseaward was made,evidently with little regardfor the actual stateof the legal titleto the lands in controversy. In any event,the award was so far acquiescedin as to bringabout a trucebetween the contestants that lasted for thir- teenyears, until Warwick's death in 1439. It mighthave beenexpected that the death of thepowerful and unscrupulousEarl would have leftthe contestantsfor the great Berkeleyestates on a more even footing,especially since the Earl left as his sole heirs,his three daughters. But not so. These daughtersof Warwick,especially Margaret, possessed all of the vigor,ambition, and vindictivecruelty of their father. Moreover,each of themwas marriedto a noblemanpossessing influenceand ambition. Margaret,the eldest,was the second wife of John Talbot, the firstEarl of Shrewsbury,famous as soldier and statesman. Eleanor, the second daughter,had takenas her husband,Edmund Beaufort,the Duke of

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Somerset,nearly related to the royalLancastrian family. Anne Elizabeth,the thirddaughter, was married to Richard Nevill, Lord Latimer,later to becomethe Earl of Warwick,and to be known in historyas "The King Maker." Lord James of Berkeleyhad, himself,strengthened his positionby marrying Isabel, the gifteddaughter of Thomas Mowbrey,the Duke of Norfolk. The long litigation,together with the turmoiland disorder that attendedthe infancyof Henry VI, had reducedthe Lord of Berkeleyto a lowestate. Withmost of theBerkeley lands in the possessionof Warwick,he seemsto have been in greatfinancial straitseven at theend of thethirteen-year truce which intervened betweenthe awardof the arbitratorsand the deathof Warwick. Smythof Nibleytells us, "* * * thathe becamemuch in- debted,a continuallborrower, and often of small sums, and someof thoseupon pawnes,yea of Churchvestments and Altar- goods; And recoverednot himselfin estate (throughthe worser troublesthat fell upon him afterthe death of the said Earle,) whilsthee lived,Soe thathe livedand dyedin a farrmeaner port and conditionthat any of his Ancestors from the dayes of Hardingthe Dane." Immediatelyupon the deathof the Earl the litigationflamed up anew,on accountof the inquisitionheld by the Escheatorof Gloucesterto determineof what lands he died seized, and by what tenurethey were held. Again a jury was called upon to decidebetween the finelevied by Lord Thomas III of Berkeley (in 1349) fixingthe entail in the male line,and the allegedprior settlementby Lord Maurice of Berkeleyin tail general. In the courseof thisproceeding, it is clearthat the influenceof the coparceners'husbands was irresistible,and that it foreclosedthe findingof the jury and the resultof the inquisition. Smythof Nibleytells us quaintlythat, "Against this Inquisitionor office and theseold rustyEntailes thereinfound, (which begat more troublesand expencethan is credible,) it may seem this lord Jameshad roughlyresisted it * * *." But it was useless for him to resistit; for,as our same authorputs it, "* * * his adversarieshad the greatestauthorities and officesof honor and powerthe Crownecould give. And indeedwere themselves the upholdersof thekings regality and Crowne."

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They had Lord Jamesthrown into the Tower fromwhich he was broughtbefore the King in Chanceryand probablyenjoined frominterfering in any way withthe inquisition. The finalre- sultof the inquisitionwas, thatthe jury foundthat the fraudu- lentlyalleged deed of the.LordMaurice had beenvalidly executed, and thereforehad priorityover the later fine of Lord ThomasIII underwhich Lord Jamesof Berkeleywas claiming. The effectof thesehigh-handed legal proceedingsmay be again givenin thelanguage of Smythof Nibley: "Upon returneof whichInquisitions, (which past all question werevery indirectly carryed,) this lord James found himself muchwronged; but being over-pressed with the greatness of the threeCo-heirs and theirepowerful husbands, and with the extraordinaryfavour which they had with that weake kinge,and espetiallywith Queene Margaretwho ruledand over ruled all affairs,could not avoid them; yet for three yearsor thereaboutsafter the returneof thoseInquisitions hee keptthe possessionof the manorsof Cowley,Wotton and Symondfall,(as alwayshee did of Came and Hinton,) but thereuponsprunge up such contentions,suites, quarrel- ings, bloudshedsand othermischeifes, as are irksomein theirevery remembrance, continuing five or six years to- geather. * * *" Lord James'sadversaries, being practically in posnessionof all the powersof government,seem to have harriedhim by every formof legalproceeding. He was subjectedto ordersin theStar Chamber,to mandatesand injunctionsin chancery,and sued in courtsof law. Lord James,however, was far,from submitting meeklyto oppression. He seems always to have continuedin possessionof the great and then well-nighimpregnable castle of Berkeley,situated on a hill overlookingthe Severn River, and at thisparticular time he was also in possessionof themanor houseat Wotton. Securebehind the walls of thesefortresses, he did nothesitate to defythe processesof thecourt. Thus says Smythof Nibley: "Of these stirringstake also a littlefurther tast Qut of the Courtof Commonpleas in the 18thof the king Henrythe sixth, [1440] which shews how David Wodburne with divers othersof his fellowservants, by directionof their masterJohn Talbot, viscountLisle, (son and heire'of the

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said Margaret,)cominge to Wotton,served this lord James witha subpoenafor his appearancein the Chancery:Insteed of obeyingthe proces, this lord James not onlybeat the parties,but will hee nillhee, inforcedthe said David to eat the subpena,wax and parchment;for which several actions were forthwithbrought against this lord Jamesand his men,by thesaid lordLisle and his man David." In the followingyear (1441) we findthe threedaughters of Warwick,with their husbands, bringing actions of noveldisseisin againstLord Jamesand Isabel,his wife,and William,their eldest son, for certain of the Berkeleymanors; while Lord James bringsactions of noveldisseisin against the coparceners and their husbandsfor yet other of theBerkeley manors retained by them. These lawsuitsappear to have been attendedby constantacts of violenceby both partiesand theirretainers. It is evidentthat breachesof thepeace occurred whenever the followersof thetwo contestingparties met, whether on the highwaysof Gloucester, or on thestreets of London or Bristol. The courtsbefore which thesevarious suits were pendingwere evidentlyhelpless in the presenceof such disorderlylitigants, and the situationbecame intolerable. In 1441, the partiesagreed to submitall of their controversiesto arbitration. It is interestingto note that the arbitratorsselected were Hody, Chief Justiceof the King's Bench,Newton, Chief Justiceof the CommonPleas, and Fray, Chief Baron of the Exchequer. But even an arbitrationwas prosecutedwith difficulty.Margaret's husband,the Earl of Shrewsbury,having been sent to France as Regent for Henry VI, securedfrom the King an order protectinghim fromany litigationfor one year. Evidentlythis was thoughtto be rather high-handedassumption of authorityon thepart of theKing, for we are told thatin the followingyear Parliamentpassed an act confirmingthe Earl of Shrewsbury'simmunity from suit, but also enjoininghim frominstituting any legal proceedingsagainst the Lord of Berkeley. No finalaward seemsto have beenmade by thearbitrators until 1448, sevenyears after the submission. This award appears to have beenin favorof thecoparceners and theirgreat husbands, as mighthave beenexpected. In any event,Lord Jamesdeclined to abide by the award and shuthimself up in his castle,whence

This content downloaded from 130.132.173.25 on Sat, 31 May 2014 18:16:54 PM All use subject to JSTOR Terms and Conditions 18 VIRGINIA LAW REVIEW he barredall comers,including process servers. It is clear that at thisstage the fortunesof theBerkeleys were at thelowest ebb. Lord Jamesand his foursons were literallyrun to earth. The onlymember of the familystill at large was James'swife, the Lady Isabel of Berkeley,who remainedin Londonto becomethe sole solicitorof her husband'slaw cases. Of the activitiesof this admirableand high-spiritedlady, there is foundamong the Berkeleypapers only one memorial. This is a letterwritten by her fromLondon in whichshe tells her husbandof the many difficultieswith which she is confronted,and the ever present dangerof her being cast into the Tower, and the many plots and schemesthat were on foot to compassthe deathand over- throwof herhusband. It reads,in part,as follows:19 "And Sur I trustto God and you will not treatwith them, but keepyour own in the manlyestwise, yee shall have the land forones and end: Bee well ware of Venablesof Alder- ley,of Thom Mull and your false Counsell;keep well your place,the Earle of Shroesburylyeth right nye you, and shapethall thewyles that hee can to distrussyou and yours. * * *,, She also asked him to send her money. "* * * At the reverenceof God send money or els I must lay myhorse to pledgeand comehome on my feet:keep well all about you till I come home,and tretenot withoutmee. * * *,, A yearlater, on her returnto Gloucester,this courageous lady was capturedand murderedby the retainersof the Countessof Shrewsbury. By thistime, the thirtieth year of theunhappy reign of Henry VI (1452), the whole kingdomhad falleninto disorder. The courtshad practicallyceased to function,and trickeryand vio- lenceprovided the only means of prosecutionand defense. It was in this year thatMargaret, Countess of Shrewsbury,a forceful

' See 2 SMYTH, Op. cit. supra note 7, at 62, where this letterappears in full. We are told furtherthat Lord James thereuponborrowed twenty-two marks of Mr. Nicholas Pointz,pledging therefor divers articles of an altar service. "Hereby this familyseeth the true fidelityof mariage in a just husbandto a correspondentwife, who would ratherseeme to disfurnishGod of the ornamentsof his worship,then leave her necessitousestate unsup- plyed."

This content downloaded from 130.132.173.25 on Sat, 31 May 2014 18:16:54 PM All use subject to JSTOR Terms and Conditions LAW IN ACTION IN MEDIEVAL ENGLAND 19 and ruthlessperson, whom Smythof Nibleydeclares to be "as angrya ladyas I have observedin all myreadings," by corrupting one of theservants of Lord James,treacherously secured entrance forher retainersinto Berkeley Castle. Lord Jamesand his four sons were capturedand carriedclose prisonersto the manorof Wotton,then in possessionof the Countess. The Countesswas a womanof actionand had littlescruple as to the meansused in orderto get results. Divers deeds and releaseswhereby James and his sons weremade to relinquishall right,title, and interest, even in BerkeleyCastle, as well as in all of the otherBerkeley estates,were prepared and the prisonersforced to executethem. As Smythof Nibleyrelates: "* * * and they were plainly told by the said Countess, thatif theywould not in eachthing do as theywere required, theyshould plainly dye: whereuponto theirgreat heaviness theydid whatsoevershe would,how prejuditiallso ever to theirinheritance and contraryto all right and conscience. * I* *,,

Not contentwith these muniments of titleso violentlyobtained, Margaret,with her coparceners, sued out of Chancerya commission of oyerand terminerand broughtbefore such commission an actionof forcibleentry, under the statute 5 RichardII, against Lord Jamesand his foursons. On the returnday she took.her prisonersto Cirencester,where the commissionwas sitting,and therecompelled them by threatsof death to filein the pending actionsuch pleas as were preparedby counselfor the said Mar- garet. In thisaction we are toldthat a plea in bar,a replication, a rejoinder,and a sur-rejoinderwere all filedin one day; and thatupon issue joined, a venirefacias was issued,a juryreturned, a verdictrendered, and a judgmententered all in thesame day. It is needlessto say thatthe verdict of thejury and thejudgment of the court were in favor of the CountessMargaret and her sis- ters. It appearsthat JusticeBingham presided at this farcical trial; but we are told by Smythof Nibleythat although he lived for twenty-eightyears after the proceedingsrecited, he could neverbe inducedto certifythe judgment.20But the merciless

X "* * * But the same was certified by his widow upon a writ of certiorarito her directedin the fourthof king Henry the seaventh,as the recordit self sheweth:whereby may bee gatheredthat hee held the shuf-

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Countessof Shrewsburywas not yet content. She wishedto makeestoppel by recordperfect. She thereforecompelled Lord Jamesof Berkeley,under pain of death,to bringan actionof attaintagainst the jury that broughtin the adverseverdict at Cirencester.The jury impaneledto trythis attaint immediately broughtin a verdictthat the verdictof the defendantjury was good and lawful. But just at this juncture,when the Berkeleysseemed faced with irretrievableruin, they were saved by the great disaster thatovertook the Englisharmy in France in the defeatsuffered on July7, 1453,before Bordeaux. The Earl of Shrews'burywho was in commandof theEnglish army, and his son and heir,John Talbot, the Lord Lisle, were killed. The I.ord of Berkeley's secondson, James, was also killed,and his nextson, Thomas, was capturedby the Frenchand heldto ransomin a sum that was "importable." As a resultof the deathof theseimportant par- tiesto thelitigation no judgmentwas everentered on theverdict in the attaintaction. The incredibledisorder and violenceof thesetimes is furtherevidenced by the numerousroyal pardons forbreaches of thepeace thatwere secured by the Berkeleysand are now foundamong the Berkeleypapers. Smythof Nibley gives numerousinstances in which royal pardons were issued also to the adversariesof the Berkeleys. Withthe passing of the powerfulEarl of Shrewsburyand his eldestson fromthe stage,the conditionof the Berkeleysappears to have been somewhatimproved; but it is evidentthat litigation and violencecontinued between the partiesfor ten years more. Finally,in 1463, as the House of Lancastersank into hopeless defeat,the old Lord of Berkeley,then sixty-nine years of age, and the vengefulMargaret of Shrewsbury,fifty-two years of age, enteredinto a covenantof peace wherebythey were to cease fromvexing each the other,either by violentforays or suits at law; "neitherof whom," remarkedSmyth of Nibley, "since linge fowle,howsoever the dealingmight seem faire-before him." 2 SMYTH, op. cit. supra note 7, at 70. Such a writdirected to the widow of a judge musthave been extra-legal, a tour de force. No otherinstance of it is known. Richard Binghamap- pears to have been a justice of the King's Bench from 1447 to 1471. lIe died in 1476. 4 Foss, THz JuDGEsOP ENGLAND (1851) 419.

This content downloaded from 130.132.173.25 on Sat, 31 May 2014 18:16:54 PM All use subject to JSTOR Terms and Conditions LAW IN ACTION IN MEDIEVAL ENGLAND 21 theirages of discretionhaving till that time enjoyed three months of freedomfrom law suits." But Jameswas not to enjoy his new found peace long. Thirty-sixdays thereafterhe was gatheredto his fathersand buried in the churchat Berkeley, wherehis alabastermonument can be seen to this day; and the restlessand ruthlessspirit of Margaretof Shrewsburypassed on withinthe year. Sufficienthas been told of this extendedlitigation to indicate quite clearlythat during these times, at least,as betweenpower- fullitigants, courts of law servedlittle purpose, save as fieldsfor trickeryand organsof oppression. The verdictsof juries were determinedaccording to the measureof powerand influenceof the litigants,21while the judges dared notenter a judgmentthat was contraryto the interestof any powerfulsuitor. The status of the courtsis strikinglyindicated by the fact that HenryVI is shownby the Berkeleyrecords to have exactedan oath from divers membersof Parliament,including the parties to the Berkeleylitigation, by whichthey were bound to maintainno riotouscompanies of men-at-arms,and to show no displeasure againstthe judges on accountof the dutiesof theiroffice. It remainsto recountonly briefly the subsequentevents in the ef- fortof the Berkeleysto win back theirlost estates. William,fourteenth in the line of the Lords of Berkeley,suc- ceededhis fatherin 1463. He was able,energetic, and ambitious, and an accomplishedsoldier,. but mostimprovident in the aliena- tion of the familyestates, practically all of,which he ultimately partedwith to securenoble titlesand high office. Immediately upon his accessionhe renewedthe litigationlooking to the re- *coveryof the lost estates. His proceedingsappear to have been

21 it* * * Dissentient jurors were occasionally sent to prison to punish their obstinacy, and to teach them to be more conformable in the future. Juries which were hopelessly divided in opinion were locked up indefinitely without food or drink. 'Good people,' said Stanton J. to such a jury, 'you cannot agree? Go, put them in a house till Monday, and let them not eat or drink.' This had the desired effect. The report goes on: 'on the same day about vesper time they agreed.' A jury was 'commanded to abide in one chamber, without eating or drinking, until they agreed. And on the mor- row they had agreed.' They might be dragged about in carts at the tail of the Justices from assize-town to assize-town until they could make up their minds. * * *" BOLLAND, op. cit. supra note 1, at 97.

This content downloaded from 130.132.173.25 on Sat, 31 May 2014 18:16:54 PM All use subject to JSTOR Terms and Conditions 22 VIRGINIA LAW REVIEW chieflyin chancery,where he secureda settingaside of thedeeds procuredby duress fromhis predecessor. But the long con- troversyseems, curiously enough, to have been settledby the last pitchedbattle fought in England in a privatewar between greathouses. At NibleyGreen, in 1469, two smallarmies met in battle. One was commandedby William,Lord of Berkeley, and the otherby Thomas Talbot, ViscountLisle and grandson of the CountessMargaret of Shrewsbury.The retainersof Berkeleywon a completevictory and the youngViscount Lisle was killed. At thistime Edward IV of York had quarreledwith the greatEarl of Warwickwho was shortlythereafter defeated and slain. William of Berkeleywon high favor at court; the chancellorsrendered satisfactory decrees; and the Berkeleyes- tates,so faras theywere included under the fine in tail malelevied by Lord Thomas III, in 1349, wererestored. W. R. Vance. YAJA UNIVzRSITY SCHOO01oi LAW.

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