184

Burgesses and Knights of the Shire

I

was good and great in mediæval life was languishing even to death," writes Stubbs; and when Henry VII ascended the throne, in 1485, there were but few signs of returning health. It was in such a time that the first great attempt at government by Parliament, i. e., by representatives of the people of England, was made. Despite the growing disorder, injustice and immorality, the middle classes of the fifteenth century were prosperous as never before. The nobles were busy with their own feuds, and flocks, herds and fields of grain were not much disturbed, even during the Wars of the Roses. The disorderly elements Commerce flourished in the towns.

of the age circled round the feudal lords, and while protected by them, warred against each other. It was a time of the strong yeoman and his stalwart sons, the thrifty burgess and his trusty apprentices, and it was the representatives of such men-burgesses from the towns uniting with knights of the shire-who now took the lead in Parliament, and attempted to press back the advancing flood of anarchy. The troubles and weaknesses of the age forced a rapid development of constitutional government, but put a fiercer strain upon parliamentary institutions than they were then able to bear. The Commons of England had grown strong, but had not yet learned how to use their strength wisely. They were still the slaves of the blindest prejudice. The shire-moot, the basis of the representative system, was falling into decay, and the Lords were able frequently to return their own servants to Parliament. There was absolutely no assurance that the statutes passed by one Parliament would be enforced by the next, an evil which cabinet government has since remedied. Consequently, the House of Commons seems always seeking a champion among the great lords, who believed their power, wealth and even personal safety dependent upon the maintenance of the bands of ruffians who disgraced them, 1 Stubbs, iii, 632.

and whom Parliament and the people were trying to punish

as criminals.

"The livery of a great lord," writes Stubbs," was as effective security to a malefactor as was the benefit of clergy to the criminous clerk." The supporters of maintenance and livery were too powerful for the government. Through the long list of statutes enacted against them, we can see these practices growing stronger and stronger,3 and the evil was by no means confined to the great lords alone. How important an element of disruption lay in this custom of livery and maintenance during the latter Middle Ages may be judged from a statute of Richard II. aimed, however, only against small offenders, that declares: "Divers people of small revenue of land, rent, or other possessions, do make great retinue of people, in many parts of the realm, giving them hats and other liveries . . . . taking of them the value of the same livery, or percase, the double value, by such covenant and assurance that every of them shall maintain other in all quarrels, be they reasonable or unreasonable, to the great mischief and oppression of the people."

Unfortunately the nation did not succeed in punishing as criminals the liveried hirelings of the great lords, and it permitted the extension of benefit of clergy to many evil-doers far outside the pale of holy orders. Consequently we cannot

1 Stubbs, iii, 552.

3

Rot. Parl., ii, 10, 62, 166, 201, 228, 368, for petitions against maintenance.

3 Edw. I., Stat. Westmin., i, cc. 25, 28, 33; 1 Edw. III., Stat. 2, c. 14 (1326);

4 Edw. III., c. 11 (1330); 20 Edw. III., cc. 4, 5, 6 (1346); 1 Ric. II., c. 4 (1377); 7 Ric. II., c. 15 (1383).

Closely connected are statutes of liveries. 1 Ric. II., c. 7 (1377); 16 Ric. II., c. 4 (1392); 20 Ric. II., c. 1 (1396). This last act also confirmed the Statute of Northampton: 2 Edw. III., c. 3 (1328), "which enacted that no one should go armed except on certain specified occasions."

For the great importance of making maintenance and livery criminal offences, See Stubbs, iii, 50-2; Stephen, iii, 236–9.

1 Richard II., c. 7 (1377).

186

Maintenance and Livery

rightly call the man who slew another in his lord's feud a criminal, any more than the malefactor who escaped punishment through the laxity of the ecclesiastical courts. The Commons perceived the nation's danger, and tried repeatedly to make both maintenance and livery crimes; to punish the anarchic lords as well as their evil dependents. But the lawless forces of the age proved themselves too strong for the yet unhardened institutions of representative government, and it required the strong arm of a despotic king, following up the self-destruction of feudalism in the Wars of the Roses, to crush out organized anarchy and restore law and order to the nation.

Parliamentary government failed, though supported by the body of the nation, because it was not strong enough to punish as crimes actions then most destructive of social welfare. It failed to maintain order and to enforce equal justice. The forces of armed anarchy, of reactionary class privilege, and of injustice prevailed. How hard the House of Commons strove to safeguard the upward progress of the nation to constitutional liberty by the creation of new crimes and the reformation of the courts of law, will be seen from even a casual examination of the legislation attempted.

But not only did Parliament prove itself too weak to punish acts rightly criminal at this stage of the nation's development. It was guilty also of attempting to stamp out as crimes new modes of life which the social welfare demanded. Statute after statute was passed to drive back the working classes into that condition of serfdom from which they were but just emerging. Every effort to establish a competitive system of wages was declared criminal,' and these statutes were re-enacted many times. "Attempts

1 See Statutes of Laborers, (23 Edw. III.) and (25 Edw. III., Stat. 2), 1349-50 fixing rates of wages and tying laborers to their existing place of residence. 12 Ric. II., cc. 3-10, (1388), etc.

to evade or neutralize" such laws were also made highly penal.'

It seems hardly fair to charge the landowners and middle classes, who were then supreme in Parliament, with intentional self-seeking in this matter; for they tried repeatedly to fix the price of provisions and other goods (as well as laborers' wages), thus preventing a rise in value of produce which would have been most advantageous to themselves.' It was the new competitive system which they dreaded and deemed highly dangerous; but their attempts to dam it back by penal statutes were as futile as an attempt to dam back the sea. Repressive measures only added wide-spread social discontent to the other misfortunes of the country. Parliament could not see that its laws were foredoomed to failure. More and more severe penalties were decreed— outlawry, branding, imprisonment instead of fine for even smallest infractions of the statutes. "To enforce these laws universally was of course impossible, but in many instances the landlords did not flinch from the attempt," and Parliament kept encouraging them constantly and adding new penalties.3

Doubtless, it was from ignorance that Parliament tried to make competitive prices criminal, as it was from weakness that it failed to punish maintenance, livery, organized ruffianism and legal injustice as crimes. But for both these reasons parliamentary government well merited its overthrow. It had fallen upon evil days, and while good in

1 See 3 Hen. VI., c. 1, (1425), in which confederacies of masons were forbidden to meet in their general chapters under ban of felony for the officers who called them together, and imprisonment, fine and ransom for others.

See laws regulating prices, keeping them down after the Black Death. They were laws of tort, an overcharge being punished by double the price received to the party "damnified." See Ordinance of June 18, 1349 (23 Edw. III., c. 6), and Statute of Laborers, 1351.

Traill, ii, 146.

itself and destined to rule the future, it was not strong and wise enough in its callow youth to meet the needs of the times. A long period of royal despotism was necessary before it could grow to manhood; but that despotism was the choice of the people, was supported by them, and the people prospered under it; while all through the period of Tudor sovereignty there was abundant evidence, in Parliament and in the nation at large, that the spirit of constitutional liberty was not dead, but only sleeping.

If the theory of this book is correct, we should find in this age of social disorganization, injustice, immorality and growing anarchy, a decrease rather than an increase in the amount of crime when compared with centuries immediately preceding. The evidence is of course fragmentary, but on the whole it seems to warrant this belief. The Year-Books from the reign of Edward I. to that of Henry VII. show that the written law of crimes varied little from the days of Bracton to Tudor times. It consisted still of "a few vague definitions of the greater crimes," while Stephen believes "it hardly provided for the minor offences at all, except by the vague and arbitrary system of fining . . which seems to have been greatly restricted and to have fallen much into disuse during this period." "Statutes creating new offences were not very numerous," and related chiefly to "crimes of violence, especially crimes directed against the public peace and the administration of justice, treason, riot, maintenance, livery, forcible entry and extortion of officers." But these statutes, for the most part, rather aimed at the creation of crimes than actually created them, for the laws could not be enforced. Justice was delayed and thwarted by royal writ (contrary to the charter) and by the solicitations of great lords and ladies "who maintained the causes not only of their own bona fide dependents, 1 Stephen, ii, 203. • Ibid., ii, 203.

I