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STUDIES DI HISTOBT.EOONOmcS AND fOBUO LAW
Volume XXXn
THE ENFORCEMENT OF THE STATUTES OF LABOURERS
During the First Decade after the Black Death 1349-1359
BERTHA HAVEN PUTNAM, Ph.D.
/wfrKcter m Hiilaty at KoulU Bo^gott ColUg«
Nem'Sortt COLUMBIA UNIVERSITY
LONGMANS, GREEN & CO., AGENTS London: P. S. Kiiio ft Son
u 3I
Copyright, 1908
BY
BERTHA HAVEN PUTNAM
r
V
\
PREFACE
While taking a course of lectures on the history of Eng- lish Poor Law, given by Professor F. H. Giddings of Columbia University, I became interested in the law of parochial settlement and in its effect on the mobility of the working-man. My original purpose had been to give an account of its origin and development and of its final repeal during the era of the abolition of the Corn laws. Begin- ning with a study of the earliest instances of national legis- lation dealing with the labouring classes, I was, of course, led to consider the ordinance and the statute of labourers of 1349 and 1351, and found that although these measures and their consequences had been frequently discussed by economic historians, no detailed investigation had as yet been made of the methods and machinery by which they were enforced. This monograph presents the results of such an investigation, based chiefly on an examination of the manuscript sources in the Public Record Office, London.
I am indebted to many scholars both here and in England for valuable assistance on specific problems, and in the dis- cussion of these problems I have sought to make clear my indebtedness. To others I am under still heavier obliga- tions. My warm appreciation is due to my former teacher, Professor C. M. Andrews, once of Bryn Mawr, now of Johns Hopkins, who has given me freely of his time and has helped me with many suggestions. It is not easy ade- quately to express my gratitude to Mr. Hubert Hall, of the
Public Record Office, for the generosity with which his
111
t c
• . . * f o
iv PREFACE
paleog^aphical skill and scholarship have been placed at my service at every stage of my work — from the reading of my first manuscript to the collation of my final copy. For my transcripts of manuscript material I must thank several transcribers, but more especially Miss Mary Trice Martin; without her cooperation I could hardly have ventured on printing the appendix. In addition to making many of my transcripts, she has collated with the original manuscripts the typewritten copy of the text of all my documents and has verified all my references to manuscript sources.
For the arduous task of seeing this monograph through the press, my grateful acknowledgments must be made to Professor E. R. A. Seligman. My thanks are also due to Dr. Eugene E. Agger for correcting the English proof and to Mr. Otis Hill, Dr. Richard Riethmiiller and Dr. Clar- ence Perkins for assistance in reading the Latin and French proof.
Through the courtesy of the editor and publishers of the English Historical Review I am enabled to make use of my article entitled " The Justices of Labourers in the Four- teenth Century," which appeared in July, 1906. New York, September, jgo8.
TABLE OF CONTENTS
Introduction. —The Black Death and the enactment of the ordi- nance and of the statute of labourers
PA«I
PART I
The Enforcement of the Statutes of Labourers by Special
Machinery 7
CHAPTER I
Account of the Justices of Labourers g
(i) The form of their commissions lo
(2) Their relation to the keepers of the peace 17
(3) Method of appointment and removal 26
(4) Territorial districts of their jurisdiction 36
(5) Their oath of office 40
(6) The amount of their salaries 44
(7) The personnel of the commissions 49
CHAPTER n
Proceedings before the Justices of Labourers 57
(i) General description of the sessions and of the sessional records. 58
(2) Procedure in sessions 65
(3) Clauses of the ordinance and statute most frequently enforced . 71
(4) Economic and social status of the delinquents 77
(5) Penalties 83
(6) Rates of wages and prices 87
(7) Supervision of the proceedings of the justices of labourers • . 92
V
vi TABLE OF CONTENTS
rxGi
CHAPTER III
The Disposition of the Money Penalties under the Statutes of
Labourers 98
(i) Period of the triennial grants of 1348 and 1352; the claims of
the taxpayers 99
A. Tenth and fifteenth of 1348 99
B. Tenth and fifteenth of 1352 106
(a> System of collection and distribution of the penalties . 108
(b) Embezzlement by collectors . ..... 120
(c) A comparison of the amount of the penalties with that
. of the tax 127
(2) Period after the cessation of the triennial grants of 1348 and 1352. 131
A. The rights of the crown: Easter, 1351, to Easter, 1352;
Michaelmas, 1354, to November, 1359 131
B. The claims of the lords of franchises 138
PART II
The Enforcement of the Statutes of Labourers in the Old Local
Courts and in the Central Courts 151
CHAPTER I
The Old Local Courts: Communal Courts of the County and OF THE Hundred; Seignorial Courts, Feudal and
Franchise; Municipal Courts 153
CHAPTER II
Central Courts: King's Bench and Common Pleas, 1349-1377 166
(i) The treatment of the sources 166
(2) Numerical account of actions on the statutes of labourers . . 170
(3) Clauses of the ordinance and statute on which the actions are
brought 174
(4) Qasses to which the compulsory service and contract clauses
applied 179
(5) The contract 189
(6) The effect of the compulsory service and contract clauses on
the lord's relation to his villeins 199
(7) Judgments and verdicts . 206
TABLE OF CONTENTS vii
?AGI
PART III
Summary of the VS^ork of the King's Council 215
Conclusion 219
APPENDIX
I. Account op sources 3*
II. Documents, extracts from documents, lists and tables . 6*
A. Parliament and council 6*
1. List of parliaments 134Q-1359 8*
2. Enactments 8*
Extracts from Close Rolls and Statute Rolls 8*
B. Chancery. {Administrative side) 19*
1 . Extracts from Chancery enrollments, chiefly Patent Rolls,
and corresponding documents for the palatinates . . . 21*
2. Chronological list of commissions to enforce the statutes
of labourers issued during the years 1 349-1 359 . • . . . 32*
3. List of the 671 justices responsible for the enforcement
of the statutes during the decade . . ...... 43*
4. List of territorial districts for which separate commis-
sions for labourers were issued betii^i 1352 and 1359.138*
C. Local courts under crown-appointed justices 142*
1. Quarter sessions records 142*
Extracts from Ancient Indictments and Assize Rolls . . 145*
2. Records illustrating the supervision of the justices in ses-
sion 239*
Extracts from Assize Rolls, Coram Rege Rolls and County Placita 241*
D. Exchequer 255*
1. Extracts from Assize Rolls, Memoranda Rolls and Ori-
ginalia Rolls 258*
2. Extracts from Lay Subsidies and Memoranda Rolls . . . 268*
3. Extracts from Memoranda Rolls 289*
4. Accounts of the collectors of the triennial of 1352. A
table of figures taken from Enrolled Subsidies. Ex- tracts from Accounts, K. R., Enrolled Subsidies and Lay Subsidies 31a*
5. Extracts from Accounts, K. R., Close Rolls, Memoranda
Rolls and Pipe Rolls 363*
6. Extracts from Accounts, K. R., Memoranda Rolls,
Patent Rolls and Pipe Rolls 373*
viii TABLE OF CONTENTS
?AGI
E. /Records of th^ old local courts . . 391*
Extracts from Assize Rolls and Court Rolls. 391*
F. /Records of the central courts 400*
1. Extracts from Ancient Indictments and Assize Rolls . . 400*
2. Form of writs, counts, exigends, pardons for outlawry
from the Registrum, Nova NarraHones, Coroners' Rolls and Patent Rolls 411*
3. List of 44 reports from Year Books and abridgments and
of the corresponding records from Coram Rege Rolls and De Banco Rolls 416*
4. Cases 44, 31, 6, 42 and 20 419*
5. Cases 10, 17, 28, 32 and 36 439*
6. Cases 9, 38 and 43 • • . 452*
Bibliography of printed sources 464*
Index 475*
CITATIONS IN FOOTNOTES.
Printed sources:
A. H. R. — American Historical Review.
E. H. R. — English Historical Review.
R. D. K.— Report of the Deputy Keeper.
Cal. — Calendar.
Rot. Pari. — Rotuli Parliamentorum.
Statutes — Statutes of the Realm.
Since the full titles and names of authors are given in the bibliography, in general only shortened forms are used in the notes, but it is hoped that the abbreviations are all obvious.
Manuscript sources, in Public Record Office unless otherwise indicated :
Gaus. — Rotuli Literarum Clausarum.
Pat. — Rotuli Literarum Patencium.
Orig. — Originalia.
In each case the first numeral refers to the regnal year of Edw. III.
Mem. K. R. — Memoranda Roll of the King's Remembrancer.
Mem. L. T. R.— Memoranda Roll of the Lord Treasurer's Remem- brancer.
The first numeral refers to the regnal year and is followed by the ab- breviation for the law term, then by the sub-title and by the number of the membrane when the latter is given.
Law terms: Hill.-T-Hilary. Pasch.— Easter. Trin. — Trinity. Mich.— Michaelmas.
For the sub-titles the only abbreviations used are the following: Breu. Baron. — Breuia directa baronibus. Breu. Ret.— Breuia retornabilia. Breu. Irret. — Breuia irretornabilia.
Plea Rolls :
De Banco— De Banco Rolls.
Coram Rege — Coram Rege Rolls.
The first numeral refers to the regnal year and is followed first by the law term, then by the number of the membrane, and lastly by the name of the county. In the Coram Rege Rolls, either ** Rex " or the name of the chief justice has to be added just before the number of the mem- brane in order to distinguish between the two portions of the roll.
ix
Page 3, note 2, line 5, for 89 93 read 89-93.
Page 30, note i, line 2, for Ramsay read Ramsey.
Page 54, note 6, line 2, for 3157 read 1357.
Page 69, line 8, for snpersedeas read supersedeas.
Page 73, line 7 from bottom, for ** or he read or '* he.
Page 200, note 6, for pt. i, ch. i, s. 7, read pt. i, ch. ii, s. 7.
Page 41*, line- 16, add manor of Kirton twice.
Page 58^, for Brughbrigg read Burghbrigg.
Page 66*, for Coiuyll read Colvyll.
Page 140^, line 18, for 8 July / 30 read 26 March / 30.
Ibid,, line 21, A?r 8 June/30 fV(»/ 8 July / 30.
Page 159*, line 7, for lohanes read lohannes.
Page 171*, last line, for Johannes read lohannes.
Page 191*, line 2 from bottom, for Thirty years read Thirty days.
Page 216*, line 23, for lohannis recui Johannis.
Page 224*. line 2 from bottom, for Regeri read Roger i.
Page 253*, last line, for Robcrti read Roberto.
Page 3Q2*, line 5, for attacheret read attachiaret.
Page 374*, line 3 from bottom, for adudicata read adiudicata.
Page 413*, throughout extract from Novae Narrationes, for v read u.
Page 416*, line 4, for three tead two.
Page 425*, last line, for concordati read concordari.
P^c 454(» 1^1^^ 6 ^rom bottom, for ipsuis read ipsius.
INTRODUCTION
THE BLACK DEATH AND THE ENACTMENT OF THE ORDI- NANCE AND OF THE STATUTE OF LABOURERS
The Black Death reached Dorsetshire in August, 1348/ and spreading first toward the west, and then toward the northeast, appeared in London by the end of September or the beginning of November ; ' it was at its height in Surrey and Hampshire during the following spring,' and in the northern and eastern counties during the summer and early autumn,^ ending nearly every- where in England by the last months of 1349.' Esti- mates of the mortality during these fourteen or fifteen months vary from nine-tenths to one-fifth of the total population; a half is probably fairly near the truth,^
^Creighton, Hist, of Epidemics, i, 116; for discussion of the exact dite, see Gasqnet, Tlie Great Pestilence, 71-74.
*Creighton, loc, cit, *Gasquet, op. cit., 11^114. *IMd., 67, 128.
*Creighton, op. cit.^ i, 177, gives Michaelmas, 1349, ^s ^^^ latest date, btxt Gasquet, op. cit., 160, quotes an instance in the north as late as the spring of 1350.
^Eulogium Historiarutn, iii, 213, one-fifth; Le Baker, Chronicon, gp, nine-tenths; Rogers, Work and Wages, 223, a third; Jessopp, The Coming of the Friars^ 205-206, a half in East Anglia; Creighton, op. cii., i, 123-139, gives various estimates for specific localities; Gasquet, op. cit., 194-195, inclines to a half; Cunningham, Growth of Eng. In- dustry and Commerce, i, 329-336, in a summary of the effects of the plague and of the statutes of labourers, inclines to the theory of "nearly a half." For an accurate estimate in one district, cf. Little, "Black Death in Lancashire/' \vl E. H.R., v. These modern calculations are based largely on records of presentations to livings and on the evidence fornishcd by manorial court rolls. The sources examined for this mono- graph contain much information both direct and indirect as to the de- vastation of the country.
I
art
2 ENFORCEMENT OF THE STATUTES OF LABOURERS
representing perhaps two and a half millions of deaths/ While the plague was by no means confined to the labouring classes, the consensus of opinion is that the death rate was highest among the poor ; * complaints as to the scarcity of labour of all kinds, especially agri* cultural, of the exorbitant wages demanded by the lab- ourers fortunate enough to survive, and of the consequent inability of landowners to till their lands, arose immedi- ately, and have been recorded by all commentators from the contemporary chroniclers^ down to the modern economic historians.^ Parliament being unable to meet on account of the pestilence, the responsibility of dealing with the emergency fell upon the king's council;^ the result was the issue on i8 June, 1349, of the famous ordinance of labourers.^.^rhe continuance of the serious-^ ness of the labour problem is given as one of the reasons ] for the summoning, for February, 135 1, of the first parlia- / ment that sat after the plague;' the statement of the / commons that the council's decree is not obeyed is met / by the statute of labourers, not as a re-enactment of the ordinance, but as a supplement to it.® The provisions of \^
'The total number of deaths is also a debatable qaestion; Cunning- ham, op. cit.y i, 331-332, summarizes the controversy between Seebohm and Rogers on this point. See my bibliography for references to their articles.
Gasquet, vp, cii., 195; Creighton, op. cit., \, 124. Of the chroniclers Knighton g^ives the fullest xlescription; ii, 5^65, 74. Cf, also Eutogium Historiarum, iii, 213-214; Ckronicon Angliae^ 27; Le Baker, 98-100; Avesbury, 406-407.
'Gasquet and Cunningham both contain references to many valuable manuscript documents.
^Stubbs, Const. Hist., ii, 418, note 2, 428, note i.
•App., 8-12. '^ Rot. Parl,^ ii, 22sb.
^lind., ii, 227b; for the text of the statute see app., 12-17. The usual opinion, even that of Stubbs, is that the statute re-enacted the ordi- nance. In reality the latter was not made a statute until the next reign ; Statutes, 2 R. II, st. i, c. 8.
n
INTRODUCTION 3
the two measures will later be analyzed in detail; here It is sufficient to say that their main object was to secure an adequate supply of labourers at the rate of wages pre- vailing before the catastrophe/ and that the notable feature of these enactments is that they constitute the first important attempt of the central authorities to apply to the country as a whole, uniform legislation on wages and prices^ — matters that had been previously left to local control.* y^
In considering this legislation there are two questions that must be answered ; first, were its provisions legiti- mate, and second, were they effective? Among histori- ans we find strongly opposed ^^jpinions on both these points. On one side it is urged that the statutes ^ repre- sent an endeavor to perpetuate villeinage and to hinder the movement toward freedom* and aimed to restrict wages in the interests of the employer to a degree that
'Since the simply was to be provided in part by the compulsory labour of the able-bodied vagrant, it is true, as Cunningham points out, op. ^•» if 53S> that this portion of the ordinance marks the beginning of what afterwards developed into a poor law. I am not here concerned with this later development, which was certainly not foreseen by the framers of the measure.
' For an account of the action of the central government on economic questions previous to 1349, see Cunningham, op, cit,, i, 270 ei seq., 3^9-330, ii, 6-7; and Ashley, Ec. Hist., i, ch. 3. The closest analogy to the present enactment is that of the ordinance of prices of 131 5, which was speedily withdrawn; Rot. Part., i, 295; Trokelowe, 89 93; Stubbs, op. cii., ii, 350. I shall deal with the subject to a slight extent in pt. ii, ch. i.
'Throughout this work for the sake of brevity I use "statutes" to include the ordinance and the statute, except when it is essential that a distinction between them should be made.
* Eden^ State of the Poor, i, 41-42; Mackay, Hist, of Eng. Poor Law^ iiif 13-17; Nicholls, Hist, of Eng. Poor Law, i, 45; Pashley, Pauper- ism and Poor Laws, 161-163; Seebohm, ''Villainage in England," in E. H. R., vii, 458.
4 ENFORCEMENT OF THE STATUTES OF LABOURERS
was unjust and atrocious ; ' on the other side it is held that the statutes were hostile to villeinage, inasmuch as they interfered with the relations of the lord to his villein and lessened the dependence of the latter on the former,' and that in accordance with the economic theo- ries and practices of the age it was both reasonable and desirable that wages should be regulated, these statutes being peculiarly equitable in that they aimed to restrict prices as well as wages.^ As to their effectiveness, we
Ifind that while the belief is often expressed that the statutes were one factor in the causation of the peasants' revolt,* the common statement is that they were inopera- tive as to their avowed object and may be regarded as dead letters.' This view is based either on the fact of the undeniable rise in wages after the plague, put at from
'Eden, op. ciL, i, 39-42; Pashley, loc. cil.; Rogers, Hist, of Prices, V, preface, x\-xii, passim; Seebohtn, "The Black Death," in Fort- nightly Review ^ ii, 270-273.
' Petrushevsky, Wat Tyler's Rebellion (Russian) , reviewed by Savine in E. H. R., xvii, 781-782; Savine, '' Bondmen under the Tudors," in Trans. Royal Hist, Soc., new series, xvii, 254-256; for an important discussion of this aspect of the statutes, cf. Vinogradoff, Villainage in England, 53*55 •
•Ashley, op. cit., i, ch. 3, ii, 332-337; Brentano, Hist, of Gilds y cxlii-cxiiii; Cunningham, op. cit., i, 249-254, 335-336; Tout, Polite Hist, of England, 372-374-
^Bergenroth, Sybel's Hist. Zeiischrift, ii, 51-86; Kriehn, "Social Revolt, 1381," in A. H. /?., vii, 282-285, 477-479; Oman, The Great Revolt, 7-9, 17; Page, End of Villainage, 71; Petit-Dutaillis, in intro- duction to R6ville's SouUvetnent des Travailleurs d' Angleterre, xxxii, xlv-xlix; Powell, The East Anglia Rising, i; Seebohm in Fortnightly quoted supra, 272; Stubbs, op. cit., ii, 420; Trevelyan, Wycliffe, 189- 190, 217-218.
*E.g., Powell, loc. cit.', Stubbs, op. cit., ii, 428, 473. Eden is an exception, and with no reference to the revolt holds that the statute was "rigorously enforced;" op. cit., \, 42. Cf. also Denton, Eng. in the 15th Century, 239-241.
INTRODUCTION 5
fifty to a hundred per cent,' or on the persistence of complaints in parliament of the failure of the statutes ana on the necessity of their frequent re-enactment.^
It has seemed to me that the simplest and most ac- curate manner of trying to answer these questions and to discover what actually happened was to examine the^ available sources dealing with the methods of administra- \ tion,3 and to attempt to present a detailed account of the J efforts of central and local officials to enforce the statutes, i For this purpose I have been obliged to confine myself almost entirely to the first ten years after the Blacl Death ; my conclusions, therefore, with a few exceptions to be noted in due course, apply only to this limited period, but it is hoped that for a century in which con- stitutional, political and economic problems have at- tracted by far the largest share of attention a study of any one sphere of administration may be valuable as typical of administrative methods in general, and may therefore serve to increase our knowledge of the life of the times.
' Rogers, Hist, of Prices , i, 265, 269-270, 292, 298--500; Work and We^es^ 237; "England before and after the Black Death," in Fort- Mgkily Review, iii, 193; **Thc Peasants' War of 1381," ibid,, iv, 92. Rogers does, however, admit a possible effect on agricultural wages in certain districts. Ashley, in an article on Rogers in Political Science Quarterly, iv, 398, points out that the latter was the first to try to esti- mate this rise in wages. Other writers usually follow Rogers; cf, e.g., Gibbins, Industry in England, 153, and Trevelyan, Wycliffe, 187-188.
'Gasquet, op. cit., 197-198, presents this view with peculiar emphasis; ^. also Rogers, Hist, of Prices, i, 299.
* For an explanation of my omission of the work of the church in en- forcing the statutes, and of my insufficient treatment of the old local .anthorities, see app., 3-4, and pt. ii, ch. i.
PARTI
THE ENFORCEMENT OF THE STATUTES OF LABOURERS BY
SPECIAL MACHINERY
The assertion by the central government of its right to le^slate on economic matters for the whole country on a scale previously unheard of necessarily included the duty of providing for the administration of the legisla- tion; the special machinery devised for this purpose must first be described.
CHAPTER I
ACCOUNT OF THE JUSTICES OF LABOURERS
The lack of accurate knowledge as to the extent of the enforcement of the statutes of labourers is in no way more clearly shown than by the fact that there has not even been unanimity among historians as to whether these statutes were, in the beginning, as was certainly the case later, included in the jurisdiction of the justices of the peace or whether they were left to a separate com- mission.' My first task, therefore, is to establish the identity of the justices mentioned in the ordinance and the statute/
^ I am indebted to Professor Cheyney for having called my attention to this question and to Professor C. A. Beard for many valuable sug- gestions. Lambard (Eirenarcha, 562-3), referring to the statutes for the regulation of the sessions of the justices of the peace, writes: "The first of these foure Statutes" {i. e., 25 Edw. Ill, c. 8) '' doth (in shew, and in common opinion) concerne the Sessions of the lustices of Peace, but in truth it belongeth not at all to them: for it was made to direct the lustices of Labourers in the times of holding their sessions: and they were not Commissioners of the peace, but speciall lustices for the causes of Labourers alone, not resiant in the countrey, but sent downe for the time of that seruice, as it may expressely appeare, not onely by the preamble and all the parts of the said statute it selfe, but also by the statutes 28 Ed. Ill, cap. 5, 31 £. Ill, cap. 6, and 34 E. Ill, cap. 11, during all of which time also, the Wardens of the peace were neither called lustices by any Statute, nor authorized to deale with Labourers." For the same view cf, Howard, The Kind's Peace, 40, and Beard, Justice of the Peace, 60-61. For the theory that the persons assigned to execute the statutes of labourers were probably the keepers of the peace, see Reeves, Hist, of Eng. Law, ii, 330. The historians of the English Poor Law have usually shirked the question altogether.
'The main portions of this section and of section 2 have already ap- peared in my article on the "Justices of Labourers" in E. H, /?., xxi.
9
lO ENFORCEMENT OF THE STATUTES OF LABOURERS
(i) TAe form of their commissions. — From the point of view of the jurisdiction of the justices responsible for the enforcement of the statutes of labourers and, there- fore, also from the point of view of the form of their commissions, four periods are distinguishable for the reign of Edward III, three of which fall within the decade 1349-1359.*
I. Of these the first, running from 18 June, 1349, the date of the ordinance of labourers, to February, 1351, the date of the statute of labourers, or more strictly to 15 March, the date of the first commission issued as a result of the statute,* was a period of various administra- tive experiments. The ordinance, while specifying the duties of existing local officials, bailiffs, constables, etc., merely refers in the victuallers' clause ^ to iusticiariis pet nos assignandis, with no account of their powers; one must turn to chancery enrollments for information as to these justices. On 20 February, 1350, a commission for seven counties was issued for the preservation of the peace and the enforcement of the ordinance of labourers ; ♦ on 15 June a commission for the enforcement of the ordinance was issued by the bishop of Durham for five districts within his palatinate;^ commissions were also
' For the fourth period, see the article just mentioned, 526-527.
*App., 34. 'App., II.
^"De pace conseruanda;" app., 33. As I am here dealing with justices I have omitted from the discussion in the text the two earliest recorded commissions issued in pursuance of the ordinance, namely, one of 6 Dec, 1349 to the chancellor of the university and to the mayor of Oxford, app., 33, and one of 8 Dec. to the mayor and sheriffs of London, app., 33 , note i.
•App., 27, and note 3. Mr. Lapsley in 77i^ County PaltUine of Durham, 257, note 3, refers to a commission to execute the statute of labourers in Rot. Hatfield, ann. i, m id, curs. 30; evidently by an error, as the first year of Bishop Hatfield's pontificate was 1345, and therefore previous to the labour legislation.
THE JUSTICES OF LABOURERS j j
issued for the enforcement of the ordinance on 20 Octo- ber for Lancaster,* and on 12 and 18 November for Lindsey and Suffolk respectively;' while from sources other than the Patent Rolls there is evidence that for this same year justices were executing the ordinance in Dor- sct,5 Essex/ Northampton* and Surrey,* and in Lindsey^ even previous to November, 1350. In the case of both Dorset* and Lindsey' the Patent Rolls show that these same men were already acting as keepers of the peace. There is, therefore, a total of sixteen commissions,** nine
^"De inquirendo de malefactortbus in comitatu Lancastrie;" app., 34. Henry of Lancaster received palatine rights on 6 March, 1351; Jf. D. AT. , XXX, V. During the rest of the decade therefore commis- sions were issued by him instead of by the king; cf, p. 16, infra,
'" De operariis castigandis;" app., 34. Although this document was printed by Rymer, the only reference to it that I have found in modern writers is in Creighton, Hist, of Epidemics ^ i, 182: "The same ordinance (t. e,^ 23 Edw. Ill), with some added paragraphs, was re> issued on the i8th November, 1350, to the county of Suffolk and to the district of Lindsey (Lincolshire)." The text shows that the document is a commission to justices, not a re-issue of the ordinance.
'Mem. L. T. R., 31, Hill., Recorda, rot. 9, Somerset' Dorset', ''De vicecomite commisso prisone quia supersedit levacioni debitorum Regis;" a reference to '* Roberto fitz Pavn et lohanne de Munden et sociis suis custodibus pacts et ad excessus operariorum Regis in comitatu Dorset'
anno xxun**.
*App.,D, I.
'Orig., 24, m. 33, 12 June, " De compellendo stipendarios soluere excessiua per ipsos recepta subtaxatoribus;" Walter de Mauny and his companions are referred to as having power to enforce the ordinance; the wording indicates powers for the preservation of the peace also. On the same roll there is a similar reference to William de Thorp and his companions as acting in Leicester.
•App., 248-249. ^ App., 242-243.
•Pat., 23, pt. 2, m. 27 d, I July; Cal,, viii, 382.
*App., 243, note I.
''The commission for the several divisions of Durham is counted as <mly one.
12 ENFORCEMENT OF THE STATUTES OF LABOURERS
of which certainly included jurisdiction both for the pre- servation of the peace and under the ordinance of labour- ers. For the same period there are a number of separate commissions of the peace,* so that evidently neither sys- tem had become fixed.
The experimental character of these first attempts at enforcement is shown by the varying forms of the above commissions. That for Durham is sut generis, couched in vague terms, scarcely intelligible, but for the marginal heading ; the joint commission * includes eight important clauses: i. The preservation of the peace under the statutes of Winchester and Northampton. 2. Powers of array. 3. Inquiry by sworn inquest as to the violence committed by vast multitudes of malefactors. 4. Inquiry as to labourers who had received excess wages contrary to the ordinance. 5. Inquiry as to misappropriation by local officials, bailiffs, etc, of the penalties imposed on such labourers. 6. Inquiry as to similar misappropria- tion by the subsidy collectors.^ 7. Punishment of offences against any portion of the ordinance. 8. Power of two of the commission to hear and determine cases of homicide and felony.* The commission for Lancaster omits clauses i, 2, and 8, but contains an almost exact duplicate of the remainder of the joint commission, with merely slight verbal variations in clause 3. The form of the commissions for Lindsey and Suffolk is, however,
*Pat., 23, pt. 2, m. 27 d, CaL, viii, 382-383; 24, pt. i, m. 38 d, Cal.y 5x6.
"'Joint commission'' is used throughout to describe commissions having jurisdiction over both the preservation of the peace and the sta- tutes of labourers.
'For the duties of the collectors, cf, pt. i, ch. iii, s. i, A.
*The usual instructions to the sheriff and the authority to hear and determine unfinished indictments are not touched on in this analysis.
THE JUSTICES OF LABOURERS
13
entirely different; the letter patent begins with the recital of the whole ordinance and continues with the statement that in consequence of the complaints of its non-observance that have reached the council, special justices are now appointed to punish all offenders against the measure, ending with the reservation that these jus- tices arc not to interfere with the rights of the justices of the peace or of the collectors of the subsidy.
In view of the small proportion of counties here repre- sented one is somewhat puzzled by the clause in the pre- amble to the statute of labourers : Sur qoi commissions furent faites as diuerses gentz en chescun counte denquere et punir tone ceaux que venissent au contraireJ^ The length of time between June, the date of the ordinance, and the following February, the date of the first enrolled commission,' is also difficult to explain. It seems prob- able either that, as in the case of the five counties men- tioned, commissions similar to those recorded, or at least supplementary instructions to the existing keepers of the peace, had failed to get enrolled,^ or that some other set of officials received the powers referred to in the pre- amble. The evidence in favor of this last possibility will be given in full later.*
2. The second period, from 15 March, 1351, to De- cember, 1352, was one of joint commissions of the peace and for labourers.^ It has already been emphasized that the statute of labourers passed in February, 1351, was not a re-enactment of the ordinance but a supplement to
*App., 12. 'C/. p. 10, note 4, supra,
'For the years 1351-1359 the indications are that comparatively few eommissions were omitted from the Patent Rolls, cf, p. 21, note i.
*Pt. I, ch. iii, s. I, A.
'For conciseness I use this phrase in place of " commissions to en- force the statutes of labourers."
14
ENFORCEMENT OF THE STATUTES OF LABOURERS
it ; ' its importance consisted mainly in the much-needed* administrative details' and in the definite mention of addi- tional classes of labourers and of specific rates of wages. While many duties are still left to local officials, the "justices" who are to be assigned, and who are described as coming into the country to hold their sessions, are given, in successive clauses, full powers in regard to the labour legislation, including the responsibility for inquir- ing into the misdeeds of local officials and also for hand- ing over to the collectors of the current tenth and fifteenth the penalties arising from infringements of the act. Every phrase in the text serves to confirm Lam- bard's inference that these justices were " speciall Justices for the causes of Labourers alone." ' Hence it is a dis- tinct surprise to find that the form of the first commis- sions issued as the result of the statute duplicates almost exactly that of the joint commissions of the first period.^ The first three clauses as to the peace, array and violence of malefactors, are identical in phraseology ; clause 4, in- stead of referring merely to excess wages as does the corresponding clause of the earlier commission, has be- come a general clause for the enforcement of both the ordinance and the statute of labourers ; clauses 5 and 6 relating to the supervision of certain officials are exactly identical; clause 7, on the punishment of all offences against the legislation, has only slight verbal modifica- tions ; while clause 8, dealing with homicides and felon- ies, is considerably amplified. Commissions of the type just described were now issued for forty-two districts,
' Introduction, p. 2.
^Ibid.; the complaints that the ordinance is not obeyed find expres- sion in the preamble to the statute; evidently the first system of ad- ministration had proved a failure.
^Supra^ p. 9, note i. ^ App., 21-24, and 34.
THE JUSTICES OF LABOURERS 15
comprising thirty-nine counties and three towns* and during the following year commissions varying slightly in phraseology but all including jurisdiction over both the peace and the statutes of labourers were appointed for several counties and for a number of towns.*
3. The .third period, from December, 1352 to Novem- ber, 1359, is a period of separate commissions of the peace and for labourers, issued systematically for practi- cally the whole country. 248 commissions are recorded on the Patent Rolls ; ^ the jurisdiction of those enrolled during the first five years was limited to the statutes of labourers,* but in 1357 it was extended to include the enforcement of uniform standards of weights and meas- ures.' The form has been greatly simplified. The first three clauses as to the peace, array and violence of male- factors and clause 8 dealing with homicides and felonies have, of course, disappeared, as well as clause 6 provid- ing for the supervision of the collectors ; * clause 4, the
*App., 34. *App., 34-35.
'App., 35-42. It must be remembered that in some counties the old joint commissions were not superseded for several years; cf, e, g., Mid- dlesex which had no separate commission for labourers until i Oct. of the 29th year. ^ App., 24-25.
* In 1351 a statute had entrusted the enforcement of the uniformity of weights and measures to justices to be assigned by the king in each county whenever there should be need; Statutes, 25 Edw. Ill, st. 5, cc. 9 and 10. Cf, Pat., 27, pt. 3, m. lo-d, 4 Dec. (Cal,^ ix, 541). In 1353 and again in 1355 the commons petition, apparently in vain, that justices of labourers shall have jurisdiction over weights and measures (Rot, Pari, ii, 252b-253a, 265b); yet only two years later without any statutory change, the regular form of their commission includes this jurisdiction; see app., 25-27. As a result of a petition in parliament (Rot. Pari., ii, 260a) a statute had also given to justices of labourers the power to p^inidh these who sold iron at an excessive price; see app., 17- 18. It is not easy to understand the necessity for such an enactment.
* All but clause 6 re-appear in the form of the commission of the peace of the period; cf. e, ^., Pat., 30, pt. i, m. 20 d, 12 Feb.; ** De custodia pacis."
1 6 ENFORCEMENT OF THE STATUTES OF LABOURERS
general clause for the enforcement of the legislation, has now become the opening clause, and is followed by the clause for the supervision of local officials (formerly clause 5), and by the clause on the punishment of all offences against both the ordinance and the statute (for- merly clause 7) . Usually the power to hear and deter- mine unfinished indictments is included in this last. The only important modification is the addition of the clause concerning weights and measures.
In the case" of the counties palatine there is less evi- dence as to the form of the commissions.* For Chester the first entry on the Recognizance Rolls is a reference to a commission for Flint, apparently dated 30 Sep- tember, 1360;* but other sources show that justices of labourers, evidently on commissions distinct from those of the peace, were acting in Chester in 1352, 1353, 1356, 1357, 1358 and 1359.^ For Durham, although the statute is punctually enrolled on the Cursitor's Roll,* I have found no record of any commission issued between that of 1350, already described, and one of 1369.* For Lancaster, commissions for labourers entered on the Chancery Rolls were issued in 1355,* 1357' and 1359; *
^I have examined the manuscript evidence for the commissions for labourers only.
'"G)mmissio Ken ap Roppert ad inquirendum de operatoribus et artificibus," 30 Sept., 34th year; Recognizance Roll, no. 43, m. i. Cf. Calendar in If, D, fC., xxxvi, app. 2» 409. I have reason to believe that the date should be a year later, but the discussion of this point does not belong to this monograph.
•App., 145-149.
^Cursitors' Records, 30, rot. i, Hatfield, ann. 6, m.6 d; cf, Lapsley, op. cii.y 125. For calendar, see app., 19-20.
*Rymer, iii, pt. 2, 863; Lapsley, op. cit., 179.
*App., 29-31; there is some difficulty as to the date. ^ App., 27.
'Duchy of Lancaster, Chancery Rolls of the Palatinate, ii, no. 38d;
THE JUSTICES OF LABOURERS 17
the first of these differs slightly from the typical com- mission for the rest of England, but the last two are verbally identical with the form as finally fixed after the inclusion of weights and measures.
On 4 November, 1359, writs of supersedeas were issued to all justices of labourers throughout England ; ' never again, except for the palatinates, was a separate commis- sion for labourers appointed. Henceforth a study of the form of the commission of the justices responsible for enforcing the labour legislation becomes a study of the form of the commission of the justices of the peace."
(2) Tlteir relation to the keepers of the peace, — For the time previous to the statute, it has been shown that the data are insufficient to warrant authoritative state- ments as to the number or the jurisdiction of the justices appointed; 3 all that can be safely asserted is that the period was one of experiments, apparently not favorable to the separate commissions, since with the enactment of the statute the consolidation of the commissions of the peace and for labourers was universal throughout the country.* The number of men assigned to each commission varies from five to ten, six, eight or nine being very usual ; but from the first series of writs for the payment of wages, it appears that usually only two or three of the justices appointed to a given district were receiving salaries, their double set of duties being
^' lusticiarii assignati de operariis et mensuris;" 26 April, gth year of the duke. There is also an association on the same roll, no. iQd, 3 May, 6th year. For calendar see app., 20.
'App., 31-32.
•See my article in E, H, /?., 526-527.
*See preceding section.
^With the exception of the palatinates.
l8 ENFORCEMENT OF THE STATUTES OF LABOURERS
specified in the writs.* It seems probable, however, that some differentiation of the work soon arose ; in the next series of writs for wages, issued at a date when the joint commissions were everywhere in force, the men on the pay roll, comprising as before, only a small proportion of the whole commission, are now described as assigned merely to execute the statutes of labourers." The ex- planation of the change may possibly be found in the application to the subsidy of January, 1352, of the money penalties under the statutes of labourers. The full dis- cussion of this experiment in taxation is reserved for a later section ;3 here it is to the point to note that, since the scheme necessitated the separation of the estreats of the penalties under the statutes of labourers from those for the infringement of the peace, and also put ad- ditional pressure of work on the justices who were re- sponsible for the statutes, recourse to a division of duties and to separate sessions may easily have seemed advisable.* Dissatisfaction with existing conditions is
'Claus., 25, m. 16; 12 July: *'De vadiis pro iusticiariis assignatis soluendis." CaL, ix, 3I4-3I7-
' App., D, 2, contains an example o! an original writ to de Meignill in Derby and also his receipt for payment. There are similar writs to two of his colleagues while the commission for this county includes eleven names; Pat., 25, pt. i, m. 14 d; 15 March, /did,, m. 13 d; 15 July and 20 July.
A full list of such writs are enrolled Claus., 26, m. 16; i May: " De vadiis soluendis iusticiariis ad inquirendum de operariis assignatis." With a slightly different form of writ, — ** Aliter de huiusmodi vadiis soluendis" — the list is continued on the same membrane under the date of 20 June. These lists are summarized in Cai. , ix, 436-437 and printed in part in Rot, Pari,, ii, 455 a and b. Nearly all the justices named appear on the joint commissions of the 25th year; app., 34. For this whole subject, cf, pt. i, ch. iii, s. i, B, a.
'Pt. I, ch. iii, s. I, B.
^ It is possible that the estreats of penalties " coram lohanne de Bem>
THE JUSTICES OF LABOURERS
19
recorded several times in petitions of the commons;' but toward the end of 1352, with no apparent connec- tion with any of these petitions,"* the issue of separate commissions for labourers began tentatively and spas- modically, and continued with increasing regularity. The following table shows the number of districts for which the two series of commissions, of the peace and for labourers, were issued during the eight years when the system of joint commissions was in abeyance.^
eye et sociis suis ad pacem in comitatu Norff' obseruandam assignatis," covering the years 24-28 Edw. Ill, indicate sessions of the peace dis- tinct from those for labourers. During the first two years mentioned de Berneye was serving on the joint commissions of 1350 and 1351, and yet the estreats contain no reference to offences against the statutes of labourers. For the case of de Berneye, see next section and pt. i, ch. ii, s. I.
'These petitions are analysed in the next section.
'It is to be noted that there was not at any time during the decade any statutory enactment as to the separation or the consolidation of the two commissions.
'This table is made up on the basis of the lists in app., 35-42; the last two columns show the frequency with which two sets of commissions were issued for a given district on different dates and often for a given district on the same date.
ao ENFORCEMENT OF THE STATUTES OF LABOURERS
•a
Commissions.
26{ 32
33
{ {
Peace • - • • Labourers Peace . • • • Labourers Peace • - • • Labourers Peace • • . - Labourers Peace • • . . Labourers
Peace
Labourers Peace • - • • Labourers Peace . • . . Labourers
Districts
e
2
3 13
31 15
18 II 10
41 10
9
44
9
01
I
5 5 4
4
2
I
12
2 2 I
e ..
if «0 V)
o
|2°
2 12
4
2
19
■n
22 J 3^1 47/
s}
26\
10 1
43/
10 1
12/
44l 10 i
Number of Commis-> sions in each Series issued for
V)
8 igti
ctf
CO
U3
« a
O B
I
I II 22
5 5
S «
St;
2
5
8
12
7 7 5 9
The total number of men appointed between 1349 and 1359 to enforce the statutes of labourers was 671/ While ** justices of labourers" is commonly used in contem- porary documents to refer to those members of the joint commissions having to do with the labour legislation,*
' Of course this by no means adequately represents the number of ap- pointments; one man may have received as many as ten or fifteen letters patent for various counties, or on successive occasions for the same county.
'The phrase also occurs during the first period; but by chance I have found it only as applied to men whose appointment is not recorded on the Patent Rolls, so that it is difficult to determine the form of their commissions.
THE JUSTICES OF LABOURERS 2 1
the title belongs, strictly speaking, to the members of the separate commissions, and it is their relation to the keepers of the peace that must now be considered. Of the total 671, 501 were serving on the separate commis- sions for labourers issued between 1352 and 1359,'' many of them having been already appointed on previous com- missions. Now during the period of the double series of commissions 404 men were appointed as keepers of the peace ; a comparison of their names with those of the 501 justices of labourers for the same period shows that 299 were identical — that is that about three-quarters of the keepers of the peace were justices of labourers. A further study of names shows that 32 of the remaining list of " keepers " had previously been appointed to the joint commissions, and that one was serving as justice of labourers in the palatinate of Lancaster, so that only 72 of the 404 are unaccounted for.^ An examination of the 501 justices of labourers reveals that of the 202 names not duplicated as keepers of the peace, 80 were assigned to towns, liberties, or wapentakes that often had no com- mission of the peace distinct from that of the county. A comparison of the two series of commissions district by district shows that frequently the same men were per-
'The remaining names (not included in the 501) are distributed as follows: on the joint and separate commissions previous to the statute of 1351, 30; on the joint commissions from 1351 to 1352, 113; for the palatinates, Chester, 2; Durham, 4, and Lancaster, 10; additional names not found on the Patent Rolls, 11. The latter, distributed throughout the three periods, are: Bealknap, Brewes, Burwell, Cranesle, Forster, Houel, Lovel (R.), Nevill (R. de), Northtoft, Radeswelland Rougham. For the complete list of justices, references to their appointments, etc, see app., C, 3. Both Lovel and Radeswell had been appointed to com- missions of the peace in their respective counties as early as 1345; CaL Patent Rolls y vii, 30 and vi, 511.
' Many of them appear on the commissions of the first period.
22 ENFORCEMENT OF THE STATUTES OF LABOURERS
forming the double set of duties ; in several hundred out of several thousand possible instances (roughly speak- ing)> at the same date or within a month of the same date, a given man would be appointed on both commis- sions for the same district. Occasionally the two com- missions are practically identical, but since the commis- sion of the peace usually includes from eight to ten, while that for labourers ranges from two to five with three or four as the most common number,* merely a large proportion of the names on one list re-appears on the other. It is noticeable that the more important and distinguished names are the ones omitted from the com- missions for labourers.' This tendency to make use of the same men has been so noticeable from the beginning
^The greater number of districts, liberties, etc., that receive distinct commissions of labourers, while only one commission of the peace is issued for the whole county, explains the greater total number of justices of labourers; cf. s. 4.
' Examples might be multiplied indefinitely, but a few will serve. In Beverley, each commission includes nine names, eight of them being identical; Pat., 27, pt. 2, m. 26 d, 25 Aug., and idid., m. 25 d, 25 Aug.; CaL, ix, 508-509. In Coventry, the commission of the peace is as fol- lows: Henry Grene, William de Skipwith, Hugh de Aston, John de Meryngton, Nicholas Michel, Walter Whitwebbe, Richard Frebern (Pat., 28, pt. I, m. 21 d, 28 Feb.). The commission for labourers (idid,y m. 22 d, 28 Feb.) is identical, except that Grene and Skipwith are omitted. Cf, the estreats given in app., D, 5. An excellent instance is that of Notts. (Pat., 29, pt. i, m. 28 d and m. 29 d, 26 Jan.) . The com- mission for labourers includes William Deyncourt, Geoffrey de Staunton, John Lysens, John Bozon, William de Wakebrugge and John Powerr that of the peace is identical, except that Grene and Skipwith are added. Apparently, however, they did not act, for according to Mem. L. T. R., 30, Trin., Breu. Ret., writs dated 8 July are issued to Deyncourt ** et sociis suis iusticiariis ad pacem nostram et statutaapud Wyntoniam et Norhtamtoniam edita in comitatu Not' custodienda necnon ad ex- cessus operariorum, seruientum et artificum in eodem comitatu pun- iendos assignatis," bidding them deliver their estreats into the ex- chequer.
THE JUSTICES OF LABOURERS
23
that the petition of the commons in the spring of 1354 seems superfluous — que les Gardeyns de la Pees et les Justices des Laborers satent uns la ou bonement poet estre fait^
The precise reason why the justices of labourers had proved unsatisfactory it is difficult to understand : Lam- bard's statement that they were disliked is not an ex- planation.' After Michaelmas^ 1354, the penalties under the statutes no longer went to the subsidy,^ so there was not the same need for the separation of the two sets of estreats ; therefore, the cumbersomeness of a system that forced such large numbers of men to act in a double capacity, making necessary two series of quarter sessions etCy may have become apparent. Administrative diffi- culties increased in connection with the whole problem of the claims of the lords to a share in the penalties under the statutes of labourers. The climax seems to have been reached in Warwickshire and Leicestershire, and is perhaps indicated in a petition to the king in the spring of 1359 from the magnates of these counties:* to their complaint of the trouble caused by the necessity of separating fines from "excess,"* as well as of distin-
^Rot, ParL, ii, 257b-258a. Possibly the petition had some effect, for the duplication of names is peculiarly noticeable in the commissions issued during the following summer. Reeves, Hist, of Eng. LaWy ii, 276, says: "The commission to execute the statute of labourers was usually directed to the same persons who were in the commission of the peace," a somewhat different statement from that quoted p. 9, note i.
* Eirenarcha, 563. *pt. i, ch. iii, s. 2, A.
*Mem. K. R., 33, Trin., Breu. Baron., rot. 8d. Cf, also Mem. L. T. R., 33, Trin., Precepta, rot. 4 and 3, Warwick and Leicester. A peculiarly large number of claims to penalties are here recorded as made by the lords in these two counties.
^For the reason for this separation, see pt. i, ch. ii, s. 5, and ch. iii, s. 2, B.
24
ENFORCEMENT OF THE STATUTES OF LABOURERS
guishing between the penalties arising from the sessions of the peace and those arising from the sessions for labourers,* the king replied by bidding the barons of the exchequer stop all proceedings in the matter until the following Michaelmas in order, as he said, that the whole subject could be thoroughly discussed and the most suit- able remedy adopted. The next step of which I have knowledge is the writ of November, 1359, suspending the action of all justices of labourers.* Of the parliament of 1360 no record of enactments exists ;' and with the exception of proclamations to be made by sheriffs,^ the statutes of labourers were apparently allowed to lapse* until the meeting early in January of the parliament of 1361. In the meantime there must have been talk of the re-organization of the office of justice of the peace, and the tendency proved to be in favor of a consolidation of county administration.
The statute of 1361, usually regarded as marking the culmination for this century of the development of the
'The estreats for Coventry mentioned supra ^ — a case where the two commissions are practically identical — may have been one factor in this special crisis.
'Sec s. I and app., 31-32. The writ is signed by the king's son Thomas, Edward being out of England from a8 Oct., 1359, to 18 May, 1360. Longman, Edward the Thirds ii, 46, 57.
'Parry, Pafliaments^ Ivi.
^Claus., 33, m. 5 d; 20 Nov.: " De proclamacione facienda de sti- pendiis operariorum." Printed by Rymer, iii, pt. i, 459.
'The commissions of the peace of this period do not refer to the statutes of labourers; cf. Pat., 34, pt. i, m. 28 d, m. 9 d, m. 6d. There is some evidence that it had not been intended that either the justices or the statutes of labourers should be permanent; cf. e.g., the phrase "tant come la iusticerie des laborers dure" of the statute of the 31st year, or "durante statuto et ordinacione predictis " in a letter fiatent of the 32nd year; app.. A, 2 and D, 6.
THE JUSTICES OF LABOURERS
25
powers of the justices of the peace/ gave to them juris- diction over weights and measures ; " but, although con- taining some important modifications of the existing labour statutes,^ it does not include the specific state- ment that the justices of the peace are henceforth to be responsible for their enforcement. In spite, however, of the lack of a definite enacting clause, the first commis- sion of the peace issued as a result of it, included the power to punish labourers eU., offending against this new labour legislation/ The commissions of the peace during the years immediately following varied in form, sometimes — but not always — including the authority to deal with the earlier labour statutes also.* Finally after two petitions in parliament,^ the statute of 1368 settled the matter definitely and brought all the labour statutes permanently within the jurisdiction of the justices of the pcace.^ There is, however, an obstinate persistence of
^ Statutes y 34 £dw. Ill, cc. i, 5, 6, 9, 10 and 11, 1360-1361; usually cited as 34 £dw. Ill, 1360. The heading on the Statute Roll, m. 10, is "Statutum factum in parliamento tento . . . anno xxxiiii*";" but since the session lasted from 24 Jan. to 18 Feb. 1361 (Parry, Parlia- ments, Ivi and 127) it is only for one day that it can be described as tak- ing place in the thirty-fourth year. The first commission issued after this statute is on the Patent Rolls of the thirty-fifth year, dated 20 March (pt. 2, m. 33 d.j and contains a reference to the statute made "in our last parliament." The actions in the De Banco Rolls based on clauses of this same statute always refef to it as 35 Edw. Ill, e, g., 46, Trin., Gimb., 361, or 40, Pasch., York, 96 d.
'Cc. 5 and 6. 'Cc. 9, 10 and 11.
^Referred to supra, note i; it is headed " De pace conseruanda." Cf. Lambard op. cit,, 39 and my article in E, H, H,, 526.
*Sce my article, 526-527. ^JRot, Pari., ii, 286 b; 296 a.
"* Statutes, 42 Edw. Ill, c. 6. It is worthy of note that the scheme had been put into practice even before the first recorded petition of the commons. The increase in the powers of the justices of the peace secured in the early years of Richard II did not affect their relation to the statutes of labourers; Rot, Pari., iii, 83-85; Beard, Justice of (he Peace, 48.
26 ENFORCEMENT OF THE STATUTES OF LABOURERS
the phrase ''justices of labourers,"' — even as late as the middle of the fifteenth century — , that seems unintelligible except on the hypothesis of a recurrence to the practice of the division of the work of a joint commission ; " pos- sibly the provision in Elizabeth's labour law for a special salary for justices of the peace while executing the act^ is a survival of the old differentiation of functions.
(3) Method of appointment and removal, — The rela- tion of the justices of labourers to the keepers of the peace made it inevitable that the two sets of officials should be appointed by similar methods. By the middle of the fourteenth century, the crown, that is the king and his permanent council, had made good its authority to assign the keepers, but subject to continual efforts on the part of parliament to assert its rights in the matter. * The struggle lasted during the rest of Edward's reign, in regard to both the justices of labourers and the keepers of the peace, and was not permanently settled in favour of the crown until late in the next reign.' For the decade under consideration three out of the five parliaments of which there are printed records * contain petitions on the subject. During the second parliament of the 25th year there are complaints as to the execution of laws in gen-
* See my article, 530.
* Especially is this true in regard to the petitions in the Good Parlia- ment on the labour legislation; Rot, Pari,, ii, 340-341 » "Bille des Laboriers."
^Statutes, 5 £liz.» c. 4, s. xxxi.
* Beard, op, cit,, 42-44. For an account of the occasional election of the * * conservatores pacis" in the county court at an earlier date, sec ibid,, 23-32.
^Ibid,, 42, note 4, refers to a petition of the third year of R. II as the last on the subject; but there is even a later one in the fourteenth year. Rot, Pari., iii, 279a and b.
'See app., 8, for a list of parliaments during the decade.
THE JUSTICES OF LABOURERS
27
eral, including the labour legislation, and a request for new commissions with more comprehensive powers: that justices eslus en cest present Parlemeni^ par avis des Grants et autres de la dite Commune .... soient as- signez. The king's answer : il voet qe les Commissions des Laborers estoisent en lour force * does not prevent a repetition of the request : que commissions dez laborers soient faites as certeignes gents en chescune countee^ nomez par les ditz communes en meisme le parlementJ^ The petition in the autumn of 1353 that justices of labourers and keepers of the peace soient establiz solonc la disposi- tion notre Seignur le Roi et son bon Conseil receives the king's assent : // plest au Roi que Justices bons et covenables soient esluz^ and results in a statute. ^ Finally there is a more specific request in the parliament in the spring of 1354:
que les Nouns des Justices des Laborers soient veues et ex- aminez par le Chaunceller, et Trcsorer, et Justices de Tun Baunk ou de I'autre, & en presence des Chivalers du Countee ; et ceux qi sont covenables demoergent pur tiel noumbre come busoigne solonc le graundure du pais. Et en lieu de ceux qui serront oustez soient autres nomez par les ditz Chivalers, queux ne soient mye oustez sanz especial commandement notre Seignur le Roi, ou resonable cause tesmoignee par lour compaignons. *
Although this petition is granted, a study of the lists of appointments and removals does not indicate that the commons exercised their right with any regularity.
^Jiot. Pari,, ii, 238a and b.
'Embodied in "Statutum de Forma/' etc., app., D, 2; for an analysis of this document, see pt. i, ch. iii, s. i, B, a.
^Jiot. Pari., ii, 252b-2S3a. *App., 17.
^Rot. Pari,, ii, 257b-258a.
28 ENFORCEMENT OF THE STATUTES OF LABOURERS
Except for the 30th and 33rd years, parliament met every year during this decade, but sat for only a few weeks at a time. A glance at the dates of the appointments of the justices of labourers shows that it had not yet be- come the custom to issue a complete list annually ; ' in- stead, it appears that for nearly every month of the year some commission is issued, often for a district that has received a previous one very recently, so that many counties have as many as three commissions within twelve months." In addition, it is apparent that frequent associations are made, — on ninety-nine occasions during the decade, including usually one or two names, some- times more, and thus making a fairly large total.^ On the one hand, it is significant that in several instances full lists seem to have been the result of parliamentary action. For example, the long list of 15 March, 1351, or of 2 July, 1354,* may easily have been discussed in the sessions immediately preceding those dates ;5 while the list of 20 December, 1355, was also issued only a few weeks after parliament had sat.* On the other hand, the equally complete list of 5 February, 1357, is dated several months before the session of that year, ^ at a time when no parliament had met for over twelve months.
^See the chronological list of appointments in app., B, 2.
'This same statement is true of the keepers of the peace.
'See app., 42, and B, 3, passim. The practice of associations was evidently regarded as an evil and was forbidden in the next reign; Statutes, 12 R. II, c. 10.
* App., B, 2, contains the references to these and to the following lists.
'The respective sessions had ended on i March and 20 May; the latter had included the petition, part of which is quoted on p. 27 and part on p. 50, and which may conceivably have had some influence.
•The session had been from 12 to 30 Nov.
^It began on 10 April.
THE JUSTICES OF LABOURERS
29
Positive evidence as to how the lists are made up ex- ists in a few instances and although referring chiefly to the " keepers " may be quoted to illustrate the method. I found among Ancient Indictments a list of twenty-three names, two of which are crossed through, with a note asking the king to grant commissions of the peace to the men named for each wapentake in Lancaster;^ letters patent enrolled 2 June, 1350, appoint sixty men as keep- ers of the peace in Lancaster and include all of the above list except the two mentioned." The people of the county of Hereford petition the king and council that Gilbert Talebot, Piers de Graunsoun and Roger de Chaundos shall be keepers of the peace ; ^ the joint com- mission of 15 March, 1351, composed of eight members, includes the two last named and Richard Talbot. An important action (to be discussed again) had been brought in the court of king's bench against de Roulegh and atte Wode, who had been removed from the joint commission in Surrey;* in the winter of 1354, in the course of this process, there is a complaint to the king that there are no keepers of the peace or justices of labourers in the county, and an urgent request that Richard de Birton and Henry de Loxleye be made "keepers."* Accordingly, in the following July, (there had been no full commission for Surrey since March, 135 1,) two commissions are issued, one for labourers and one of the peace, both including de Birton.
'No. 56. '24, pt. I, m. 3 d; Cal,, viii, 533.
'Ancient Petitions, 5741; the petition is undated.
^See pt. I, ch. ii, s. 7.
* Coram Rege, 28, Hill.» Rex, Surrey, 35: ''et dixerunt quod nulli custodes pads seu iusticiarii ad inquirendum fuerunt in partibus illis et domino regi supplicauerunt quod . . . ." It seems almost certain that "de operariis, etc/' has been accidentally omitted after "ad inquiren- dum."
30 ENFORCEMENT OF THE STATUTES OF LABOURERS
In lieu of direct evidence, much information as to the method of appointment may be derived from a study of the changes in the commissions; in addition to those caused by death,' there are during this decade thirty instances of removal or discharge of individual justices* and three of the cancelling of entire commissions.^ A detailed analysis of the thirty cases gives the following results as to causation : in six, no information ; ^ in six, appointment to other duties ; ^ in one, inability to attend to the office;* in two, infirmity and old age;^ in fifteen, merely quibusdam certis de causis} In the case of two of these fifteen, it appears that complaints of their mis- deeds brought before the king's council by their col-
* Croft, Hillary, Lye, Staanton (J. dc), Styuecic (J. de). On the claim of the abbot of Ramsay to the penalties before Albert and Sty- uecle, justices of labourers in Hunts., the latter were summoned to the exchequer. Albert appears and states that no penalties were levied " per tempus contentum in brevi; eo quod marescalcia domini Regis per totum tempus supradictum in comitatu Hunt' extiterat. £t vlterius vobis significo quod lohannes de Stukele mortuus est." Mem. L. T. R*> 33 » Mich., Recorda, rot. 2d. We know that the latter was dead by Nov., 1357, and yet by the very end of 1358 the news had not reached the exchequer. For the manuscript references to the above names as well as to the other names in this section, see list of justices in app.,
B, 3.
'Adam, Beauchaump (W. de), Benteleye, Berneye, Broun, Bures (A.), Botetourt, Chaumont, Colvill (J.), Crouthorn, Debenham, Fol- vill, Golafre, Grey (J. de, of Rotherfield) , Haldenby, Hubert, Laundels, Luscote, Michel (R.), Munden, Novo Mercato, Pakeman, Roulegh, Surflet, Sutton (J. de, of Holderness), Tyrel (the elder), Ughtred, atte Watere, atte Wode and Wychingham.
'Essex, Northants. and Northumberland; see app., B,2.
* Adam, Benteleye, Bures, Munden, Sutton and atte Watere.
'Botetourt, Laundels, Luscote, Michel, Novo Mercato and Ughtred.
•Broun. ^Beauchaump (see p. 34), Crouthorn.
'Berneye, Chaumont, Colvill, Debenham, Folvill, Golafre, Grey, Haldenby, Hubert, Pakeman, Roulegh, Surflet, Tyrel, atte Wode and Wychingham.
THE JUSTICES OF LABOURERS 31
leagues had resulted first in their removal and later in judicial actions against them.' In six instances, the reasons for a change are brought coram consilio nostra)^ in one, coram nobis et consilio \^ while in seven, coram nobis or an equivalent phrase is used;^ in half of the cases, thus, the action of the crown is clearly indicated. In ten instances out of the thirty, the discharge is evi- dently honorable, as in four of these the verb is exon- erandus,^ in five, other important duties are named,^ and in one, old age is alleged ; ' in six, disgrace is implied by amouendus;^ in one, there is the doubtful phrase, "he cannot attend to the office ; " ' in three, the commissions to the individuals named are revoked ; *° while in the remain- ing ten the formula "appointed in the place of another" gives no clue to the motive. Fourteen of the thirty, or nearly a half, are re-appointed during the decade either to the same or to a different district ; but only three of these fourteen had been described as removed ; "
'Roulegh and atte Wode; see pt. i, ch. ii, s. 7.
'Botetourt, Golafre, Grey» Hubert, Roulegh, and atte Wode.
' Haldenby .
^Adam, Berneye, Debenham, Folvill, Pakeman, Surflet, and Wych- ingham.
^ B«auchaump, Botetourt, Golafre and Grey.
'See list in note 5, p. 30; Botetourt is named in note 5.
^Croathorn; Beauchaump is classed with the " exonerandus " list in note 5.
'Adam, Folvill, Hubert, Pakeman, Roulegh and atte Wode.
•Brown.
^Berneye, Debenham and Wychingham. The wording of the writ implies that it is the old joint commissions that are being revoked ; Gaus., 28, m. 29, i Aug. The news did not reach the exchequer very promptly; for on 12 Oct., 30th year, Berneye has to inform it of the change. See document quoted pt. i, ch. ii, s. i.
^* Beauchaump, Benteleye, Berneye, Botetourt, Chaumont, Deben-
32 ENFORCEMENT OF THE STATUTES OF LABOURERS
one of the three was tried in the court of king's bench and acquitted;' another was restored on better evi- dence brought before the king's council." Parliament was meeting at the time of this last decision,^ but only three times did its sessions coincide with the dates of the instances of removal.* In the first of the three cases where the entire commission was cancelled, it is because another and somewhat different commission was issued a few months later ; in the second I have no information as to cause ; 5 but in regard to the third, Northumberland, there is definite evidence.* A writ of the great seal, signed per consilium, directed to the barons of the ex- chequer, informs them that the letters patent to the justices of Northumberland have been cancelled on ac- count of the state of war prevailing in that county, and in its wording clearly implies that the action of the crown had been taken as a result of complaints to the council.^ The story of the repeal of the special commissions * as well as of the final repeal of all the separate commissions for labourers,' plainly indicating action of the council
ham, Folvill (removed), Laundels, Michel, Munden, Pakeman (re- moved) , Ughtred, atte Wode (removed) ; in the case of Broun, * * Void " is written after the entry.
* Atte Wode . " Pakeman .
'The letter close is dated 6 Feb., 1352; the session was from 13 Jan. to II Feb.
*In the case of Broun,! Haldenby and Laundels.
'^ Essex and Northants.; app., 35, note 10 and 37, note 2.
•App., 39, note I.
^Mem. K. R., 30, Trin., Breu. Baron., rot. 2 d; pro lohanne de Striuelyn et aliis: "propter discrimina guerrarum iminencia in partibus supradictis.'' Four years later it was necessary for these same justices to petition the crown to order the exchequer to stop process against them for their estreats; idtd,, 34, Pasch., Breu. Baron., rot. 5.
*See pt. I, ch. iii, s. 2, B. *See p. 23-24.
THE JUSTICES OF LABOURERS 33
and of the exchequer, without interference from parlia- ment, does not belong here ; but enough has been said to make out a strong case for the theory that it is the king's council (including as ex-offido members both the treasurer and the chancellor) with whom the actual choice of names usually rests, and that this body is some- times guided in its choice by the commons as well as by the advice of the local communities. It is worthy of note that although by the next century the practice began of establishing borough justices of the peace by charter,' at this earlier date there is no difference in method of assignment as between the county and the borough justices, either of labourers or of the peace; except that in Oxford the commissions for labourers are directed to the chancellor of the university and to the mayor of the town, and in London, to the mayor and the sheriffs."
The striking irregularity in the dates of the appoint- ments, the frequent issue of a commission for a district that had just received one,^ the removal of a man within a few weeks after he had been appointed,^ and the ex- ceedingly numerous associations to the commissions,
^ Beard, op, cii,^ 148.
*P. 10, note 4 and app., 33, note i.
'In Worcester e, g,^ commissions were appointed successively on 3 and 20 Dec. , 1355; app., 3S-39. In the course of exchequer processes for the Worcester estreats, it appears that the first set of justices had held a session for one day and had then been superseded; Mem. L. T. R., 32y Hill., Presentaciones, rot. 3 d. This must be typical of what fre- quently happened.
^E. g,, Adam was appointed for Derby on 12 July and removed on 8 Aug., 1356; app., 44. Botetourt was appointed for Warwick and for Worcester on 20 Sept., 1351; on 15 April, 1352, on the ground of his commission for Warwick ( issued on 20 April) , he was ' ' exonerated ' ' from service in Worcester; on 2 July, of the same year, he was re-appointed for Worcester, and on 26 Aug., again "exonerated" from service there.
34
ENFORCEMENT OF THE STATUTES OF LABOURERS
caused a constant shifting in the personnel of the com- missions to an extent that must have been embarrassing and inconvenient. The failure of the council in this re- spect may easily have been due to lack of knowledge of local conditions and certainly explains the continuance of the endeavor of the commons to control the lists, an endeavor that did not cease with this reign.
Closely connected. with the appointment and removal of justices is the question of the possibility of an indi- vidual's obtaining exemption from the necessity of ser- vice against his will. The list of public offices given at this period in the regular letters patent of exemption does not specify either justices of labourers or keepers of the peace, although " other bailiff or minister of the king" may be interpreted to cover both. In one in- stance a member of a joint commission, William de Beau- chaump, had received a letter patent exempting him from serving against his will in " any office or commission " ' — a slightly different phrase from the usual one — and a few weeks later, he is " exonerated " from the joint commission, presumably on the ground of this general exemption.* In four cases, however, justices of labourers who had re- ceived the regular letters patent of exemption are shortly afterwards appointed to commissions for labourers.^ In the next reign the exemptions in the printed calendars mention specifically justices of labourers and of the peace,* but I am unable to say at what date the change occurred. It is possible that so early in the development of the
'Pat., 26, pt. 2, m. 21, 13 June; CaL, ix, 297.
•App., 49.
*Pakeinan» Pat., 27, pt. i, m. 27, 4 Feb.; Cal., ix, 400. Aton, Pat.» 27, pt. I, m. 16, 12 March; CaL^ ix, 422. Frenyngham, Pat., 27, pt. i, m. 10, 16 April; Halsham, tdtd., 13 April; CaL, ix, 429.
*Scc my article in £, H, R., 530.
THE JUSTICES OF LABOURERS
35
office of justice of the peace and of labourers, it had not become apparent how onerous the service might te; it is also to be remembered that the salaries paid were some compensation. There is still another point to be considered ; were all the men named on a given commis- sion forced to do actual work? Both for the large joint commissions as well as for the smaller separate commis- sions for labourers, the writs for wages answer this question in the negative, payment being made only to those justices who held the sessions.' Evidence from other sources confirms the truth of this statement. In actions against the justices brought by the exchequer to secure the delivery of the estreats, it is clear that a given justice may excuse himself on the plea of never having received his letter patent or of not having taken part in the session, and that he is fairly sure of being sine die^ provided that the exchequer can obtain the estreats from some one of his associates.** On the other hand, it appears from a Northumberland case previous to the one already quoted that service was compulsory, — barring some valid excuse which must be made good in court. In this instance the justices explained that the whole community had earnestly begged them not to exe- cute their commission, since the enforcement of the statutes of labourers against those rascally Scots, the only labour- ers left in the county, would drive the latter in despera- tion to acts of violence ; after some consultation on the part of the court it is decided that the excuse of the justices be accepted.^ On what principle it was deter- mined by a given group of men named in a commission who were to act and who not, I do not know,** but the fact
*S. 6. *See pt. i, ch. iii, s. 2, A. *App., D, 5.
*My impression is that the first named on the list, "capitalis iusti- ciarius" might have greater difficulty than his companions in avoiding service; cf, pt. i, ch. ii, s. i.
36 ENFORCEMENT OF THE STATUTES OF LABOURERS
that the really obligatory matter was the delivery of the estreats is only one of the many proofs of the over- whelming importance of the profits of justice ; the ap- pointments may be irregular or chaotic, but there is no irregularity or chaos in the means adopted by the ex- chequer to compel service from some members of the commissions in each county.
(4) Territorial districts of their jurisdiction, — The ordinance was issued in the form of a letter close. The copy enrolled is directed to the sheriff of Kent, with a note to the effect that similar writs had been sent to all sheriffs ; ' but it has already been shown that there is no authoritative evidence as to the number of districts that received commissions in pursuance of these writs.* The statute clearly applied throughout England, including London and all other cities and boroughs, within fran- chises as well as without ; ^ but the only direct reference to the territorial limits of the jurisdiction of a given set of justices is the provision that the justices were to hold sessions in each county ."^
An analysis of the districts that at some time during the years 1 352-1 359 received commissions for labourers proves that the actual practice was more complicated than the scheme implied by the statute for the joint com- missions. The districts may be grouped as follows : ' ( i )
^App., II. 'S. I.
*App., 17. There was considerable difficulty as to London; cf, pt. I, ch. iii, s. 2, A for an account of the matter. Unwin, Industrial Organization, 138, claims that Elizabeth's great codification was the first instance of the application of uniform economic legislation to all geographical as well as to all industrial sections of the community; but cf, Cunningham, Growth of Eng. Industry , ii, introduction, for a more accurate statement.
* App., 16. ^ These lists are given in app., 138-141.
THE JUSTICES OF LABOURERS 37
34 geographical counties; (2) 7 divisions of counties, I. e. the three divisions of Lincolnshire and Yorkshire respectively, and the Isle of Wight as distinct from the rest of the county of Southampton; (3) 8 groups of wapentakes within Yorkshire, arranged in varying com- binations; (4) 22 towns, all but 2 being boroughs;' (5) 24 franchises in the hands either of individuals or of an ecclesiastical order; (6) 2 counties palatine; total, 97 districts. Previous to 1352, in addition to districts in- cluded in the above list," one separate commission for labourers had been issued for Durham ^ and one for Lan- cashire before it had become a county palatine;^ also joint commissions had been issued on one occasion to Holland and Kesteven classed as a single district,^ and to two towns* that did not again receive any commissions distinct from those of the county. These few instances belonging to the complicated and changing systems of the first and second periods are not included in the totals under consideration.
A comparison with the districts receiving commissions of the peace reveals a marked contrast. The counties show some differences; Southampton is never divided and Yorkshire almost never, — the West Riding twice,^
*On the authority of Mere wether and Stephens » Hist, of Boroughs; Newark and Southwell are the exceptions. It should be added that two of the towns comprised in the Cinque Ports group were not made bor- oagrhs until a little later.
'A glance at the list in app., 33-35, shows that during the period of the joint commissions the total number of districts was small in com- parison with the figures just given.
•See app., 27. *See app., 34. 'See app., 33.
• Ncwcastle-on-Tyne and York; app., 34.
'Pat., 27, pt. I, m. 25 d, 8 July (CaL, ix, 450); 30, pt. i, m. 20 d, 13 May.
38 ENFORCEMENT OF THE STATUTES OF LABOURERS
and a group of wapentakes once, obtaining commissions.' Only 14 towns" and 4 of the private franchises ^ appear in this series, and of the counties palatine only Lancas- ter/ making at most a total of 58, nearly a third less than the previous total. It appears, therefore, that the justices of labourers were frequently acting within much smaller geographical limits than were their confreres of the peace; but it is worthy of note that, for this decade at least, there is no foundation for Lambard's complaint that before the statute of 1360 commissions were made to the "Wardeins of the peace, not alwaies seuerally into each shire, but sometimes ioyntly to sundry persons ouer sundrie shires."^
All the joint commissions and most of the separate commissions of the peace, in cases where they were issued to towns, include a non'tniromtttant clause as against the keepers of the peace of the county.* As far as I can discover, a similar clause against the county jus-
*Pat., 30, pt. I, m. 20 d, IS Nov.; liberties of Pickering, Whitby and Scarborough and wapentakes of Rydale and Harfordlyth.
'13 identical with those in the first list; see app., 139, and Grantham in addition; Pat., 30, pt. i, m. 20 d, 10 May.
*Pat., 28, pt. I, m. 21 d, 25 Feb., Richmond; 11 March, Holderness; 30, pt. I, m. 20 d, 25 Oct., liberty of abbot of Reading in Berks.; 8 Nov., towns of Cambridge and Chesterton.
^Calendar, TP. D. K.^ xxxii, app. i.
^Lambard, Eirenarcha, 20-21 ] but cf. p. 51.
•C/. e. g.y Pat., 26, pt. 2, m. 20 d, 25 June (Ca/., ix, 332); town of Beverley. On one occasion four out of the eight keepers and justices acting in Holderness are instructed by a supplementary writ that they alone are to act in the town of Hedon; Claus., 27, m. 19; 22 April; " De non intromittendo de custodia pacis infra villam de Hedon " {CaL, ix, 543). Beard, op, cit,, 147, quotes Hale to the effect that in the Tudor period unless the charter of a corporation had the exclusion clause, the county justices could exercise their jurisdiction within its borders, even if it had justices of its own.
THE JUSTICES OF LABOURERS 39
tices of labourers does not appear in any of the separate commissions for labourers in towns, or even within private franchises, although occasionally, in the letters patent appointing justices of labourers for a county, it is specified that a given town is excluded from their juris- diction.' Usually, however, the final clause in their commissions ends : tarn infra quam extra libertates * — a phrase that seems almost meaningless when one con- siders the numerous private franchises within which special justices were acting. The discussion of the latter belongs to a later section ,3 but it should be em- phasized here that since a given franchise frequently con- sisted of widely separated holdings, these special justices must have cut into the jurisdiction of the county or bor- ough justices in a strangely confusing manner. I have no information as to the extent to which conflicts actu- ally arose, nor as to the principle in accordance with which they were settled; but in general it is assumed that a justice had full jurisdiction within the district to which he had been appointed, and that his writs would be obeyed only by the sheriff of the county within which this district lay. There was, however, a special provision in the statute of labourers that in case of a fugitive flee- ing from one county to another, a justice could issue a writ to the sheriff of the county to which the delinquent had fled, bidding him send the latter to the gaol of the first named county.^
A study of the list of 97 districts shows some over- lapping, especially in Yorkshire; this means that at a
' App., 158, notes i, 2 and 3. ' App., 27.
^Cf. pt. I, ch. ill, s. 2, B; and also the response to the petition (Rot, Pari,, ii, 252b-253 a) embodied in 2^ Edw. Ill, st. i, c. 3 (app., 17) quoted p. 27.
*App., 17.
40
ENFORCEMENT OF THE STATUTES OF LABOURERS
given date this total number of districts could not receive distinct commissions, but it is evident from the chrono- logical list of commissions that the entire country was mapped out into subdivisions sufficiently small for efficient administration. Since the statute had only provided for the county as a district, it is possible that the king and council had determined on the experiment of the smaller districts in the belief that the justices of labourers would thus be enabled to do their business more thoroughly. The fact, however, that the majority of the subdivisions are private franchises, lends colour to the theory, to be discussed later,* that it was their owners who hoped to gain by this practice of the appointment of special jus- tices within their liberties.
(5) Their oath of office. — The statutes of this decade do not mention an oath of office, but the first parlia- mentary petition having to do with the justices appointed to enforce the labour legislation, presented in the session of January, 1352, contains a reference to the justices as sennentez,* The petition as a whole is refused and in the printed rolls of parliament the question of the oath does not again come up^ until, toward the very end of Edward's reign, there is recorded the request that justices of the peace, now justices of labourers also, soient ser- mentez devant le Consetl le Rot en mesme la manere come autres gentz sont,^ There is, therefore, considerable doubt as to how the oath of office was administered dur- ing these early years, as well as to the exact form which
* C/. supra, p. 39. ^Roi, Pari., ii, 238a and b.
* Unless the prayer that the justices " soient artez par notre dit Seignur le Roi a pursuyr les Articles de lour Commission " indicates a demand for an oath of office; Rot. Pari,, ii, 252b. For this same petition cf. p. 27, note 3.
*Rot. Pari., ii, 333a and b.
THE JUSTICES OF LABOURERS
41
it took. My search for a copy of the oath has been un- successful, but a chance reference in one of the sessional records fortunately affords a valuable clue. John de Roulegh, or de Rowele, who in 1350 was enforcing the ordinance in Surrey,' whether on a separate commission for labourers or one that included the peace also, it is impossible to say, was in March, 135 1 appointed on the joint commission for the same county. In the following September, however, he was removed by the king and council, and in January was indicted by his former col- leagues of the Joint commission for offences committed during his first term of office :
Item presentant quod vbi lohannes de Rowele nuper extitit insticiarius domini Regis in comitatu Surr' et iuratus ad faciendum ius tarn domino Regfi quam populo ipsius Regis et tarn pauperibus quam diuitibus et quod ipse hoc non dimitteret pro odio, fauore, munde, nee premissa neque iniuriam alicui faceret ; ibi dictus lohannes de Rowele, nullo habito respectu ad suum iuramentum, ex falsitate et maliciosa ima^finacione sua et pro odio quod habuit versus Gilbertum.' . . .
The phrases here used are strikingly similar to the cor- responding phrases in the regular oath of the king's justices as it appears in the *' Red Book of the Ex- chequer : " 3
Le serment des Justices est que bien et leaument serviront le
* App., 248-249, and p. 11.
'Assize Rolls, Surrey, 907, m. i d; further extracts are given inapp., 211-213; see also pt. i, ch. ii, s. 7.
*See Rolls ed., table of contents, Ixx. It is printed in the /Report on the Public Records ^ of 1800, 236: '* Sacramentum Justiciariorum." In an article on the '* King's Council" in E. H, R, for Jan., 1906, Mr. Baldwin proves that this oath, used early in the reign of Edw. Ill, had adopted important phrases of the councillor's oath of 1307, which in turn goes back to an earlier councillor's oath of 1257.
42
ENFORCEMENT OF THE STATUTES OF LABOURERS
Roi en Office de la Justicerie et dreiture a lour pouer frount a touz auxi bien as poures come as riches et que pur hautesce ne pur richesce ne pur amour ne pur haour ne pur estat de nuly persone ne pur bienfait, doun ne promesse de nuly. . . .
Further, the earliest recorded form of the oath admin- istered to the justices of the peace that I have been able to discover, printed in the rolls of parliament for the year 1380,' some time after the consolidation of the two commissions, reveals in its opening a marked likeness to the oath taken by de Roulegh :
Vous jurrez que bien et loialment servirez le Roi en loffice de Gardein de la Paix, & de Justicerie des Artificers, Laborers, Pois et Mesures, & doier & terminer les tortz et grevances faitz au Roi & a son people .... selonc voz sen et poair ent ferrez avoir plein droit as touz, si bien as povres come as riches, si que pur hayour, favour, amistee, ou estat de nulluy persone, ne pur bienfait, doun, ou promesse.* . . .
This oathv^hich was to be administered by the sheriff then continues with specific instructions as to the preserva- tion of the estreats of the penalties and the rolls of the proceedings, and also as to the qualifications and the
^/^oi. ParL, iii, 85. Lambard had evidently not seen this form; in referring to the clause of 13 R. II, st. i, c. 7, that justices of the peace are to be ** sworne to keepc, and put in execution all the Statutes touch- ing their office/' he writes that it is the first oath that he has found to have been administered to the justices of the peace, although he is con- vinced that they were not ** unsworn before," and that as it was too "generall, & hard to be observed" it was changed to the form given by Fitzherbert, almost identical with that in use in Lambard's day. Eirenarchay 45-50. The words in Richard's statute are probably not themselves the form of the oath but only a reference to an oath, prob- ably to that of 1380.
' Certain phrases of the councillor's oath given by Mr. Baldwin also appear, notably "conseil le Roi celerez."
THE JUSTICES OF LABOURERS
43
\
duties of the clerk of the justices, and as to the oath to be taken by him, — provisions that were probably added only after half a century of administrative difHculties had shown the urgent need of precisely such remedies. The evi- dence just given, slight though it is, certainly establishes a presumption in favor of the theory that the substance of the oath by which de Roulegh was sworn was practically the same as that of the justices of the upper courts, and that it was afterwards incorporated into the more elabor- ate form devised in the next reign for the justices of the peace.' The inference also seems sound that the other justices during the years 1349-1359, whether of the peace or for labourers, were sworn by the same oath as that which de Roulegh violated; but in the absence of information for this decade, it is impossible to say by whom the oath was administered.'
'In the Report on the Public Records^ of 1800, 223, among the oaths of office in the Chancery Crown ofUce, not administered by the clerk of the crown or by his deputies there is printed in English under the absurd heading "Justices of the OfHce of Labourer's Weights and Measures/' an oath really made up of two oaths: i, of the justice of labourers and of weights and measures, 2, of the justice of the peace and of labourers. The latter half is practically identical with that of the justice of the peace given on the preceding page of the Report and by Lambard, op, cit,, 5C-51, and printed by Mr. Beard, op. cit., 171, and plainly goes back to Fitzherbert's form. In looking for the original of this confused oath Miss Martin reports that the clerk of the crown in Chancery says that they have nothing earlier than 1700 ; but she has discovered at the Record Office among the Petty Bag documents (Rolls of Oaths, no. 31, Various) what seems to be the desired original under the title: "Sacramentum Justiciar iorum de operacionibus et mensuris et pacis/' apparently in a sixteenth century handwriting. From the fact that the justices of labourers are still referred to specifically, it un- doubtedly antedates the form given by Fitzherbert but is certainly later than the form of 1380.
*In 1380 it was the sherifT; but in 138Q there is a petition that it shall be the chancellor and council. For the later practice see Beard, op. cii; 143.
44 ENFORCEMENT OF THE STATUTES OF LABOURERS
(6) The amount of their salaries, — Both the ordinance and the more carefully framed statute are silent as to the compensation of the justices, but within a few months after the enactment of the statute, there ap- pears on the Close Rolls a series of writs directed to the sheriffs, bidding them at a fixed rate per day pay wages to the justices out of the issues of the latters' sessions/ Since the payments are always to be made out of the money penalties imposed as a result of proceedings held before the justices, through the agency either of the sheriffs or of the subsidy collectors, it is necessary to reserve the account of the method of payment for the section on the disposition of the penal- ties.' Here it must suffice to say that owing to some hitch in the administrative machinery, these first writs were never executed, and that the failure of the justices in these early months of their work to receive their salaries explains the two petitions of the commons in the parliament of January, 1352, the first of which requests for the justices responsible for the statutes of labour ers,^«^^j covenables,^ and the second, gagee resonablez^ chescun solonq son estatey^ — in the latter case to be determined by the committee of apportionment which will be described later. ^ At the time of these petitions no separate com- missions for labourers w^ere in force, and during the rest of the decade the printed parliament rolls contain no petitions as to wages. Strictly speaking, therefore, there is no parliamentary reference to the salaries of the
'For the references, see p. 18, note i; for the fate of these writs, cf. pt. I, ch. iii, s. I, B, a and s. 2, A.
» Cf. ibid,
^Rot, Pari., ii,-238b; for this petition, cf, p. 27.
*In *' Statutum dc Forma," etc., D, 2.
*See pt. I, ch. iii, s. i, B. a.
THE JUSTICES OF LABOURERS 45
justices of labourers as distinct from those of the keepers of the peace until, in 1357, the confirmation by statute of certain claims made by the lords of franchises to the penalties resulting from the labour legislation included a provision that they should, out of their quota of these penalties, contribute a share to the salaries of the justices of labourers.' Assuredly, however, there was no need of complaints from the commons or from the justices themselves; a study of the whole subject of penalties, based on chancery enrollments and exchequer documents, shows that if the sessions were duly held and if any penalties were levied at all, the justices were fairly cer- tain, during this first decade, to receive their recom- pense."
During the running of the subsidy of 1352, when the payment of the justices* salaries was made through the agency of the collectors instead of the sheriffs, there is evidence that in some cases the instructions of the second petition of 1352 were followed, and that the rate was deter- mined by a joint committee of the collectors and the lawful men of the county, the letters close merely order- ing " reasonable wages ; ^ but normally the writs of the great seal specify a definite rate per day or per year, to be paid to a given justice only for those days during
* See pt. I, ch. iii, s. 2, B, and app., 18.
' Later, there must have been some diminution in the regularity of payment to the justices now acting on joint commissions; cf. e, g.y Rot, Part,, ii, 271b: '* Item que covenables Gages soient ordeinez pur les ditz Justices, come semblera as Chanceller et Tresorer notre Seignur le Roi. . . . Le Roi commandera as Chanceller et Tresorer sur ce sa volente." A similar request is recorded, ibid., 286b; and the accusation is even made that the justices fail to do their duty for lack of wages; Und., 312b, ^33b and 341b. In the course of the next reign the frequent petitions finally result in a statutory provision, Statutes, 12 R. II, c. 10.
'See pt. I, ch. iii, s. i, B, a.
46 ENFORCEMENT OF THE STATUTES OF LABOURERS
which he had actually sat. Except for the period of the subsidy, the only information as to how this rate was fixed comes from the date of the re-organization of the office of the justice of the peace, just after the merging of the two commissions into one ; the king apparently bids the chancellor and the treasurer settle the rate.* One may hazard the guess that this duty had, in the past also, fallen mainly to these two officials.
A brief summary of the normal rates is as follows : "
25th year, by the day: either half a mark for a justice and his clerk, t, e. 5s. for the justice and is. 8d. for the clerk, or 5s. for the justice alone.
26th year, by the day : some irregularity occurs during the running of the subsidy, since in various instances "reasonable wages'* merely are mentioned in the writs. When specified the rate proves to be as before, half a mark for a justice or the same for a justice and his clerk ; probably the clerk is assumed in the higher rate. 5s. for a justice alone is frequent, and occasionally 6s. or 3s. 4d.
There are no more enrollments of writs for salaries until early in 1356,^ the subsidy having ceased by the end
' See p. 45, note 2.
'These figures are taken from the entries on the Close Rolls, referred to p. 18, notes I and 2. It must be remembered that a mark is 13s. 4d.
'I add the references to the Close Rolls: 30, m. 13, ** De vadiis sol- uendis iusticiariis ad inquirendum de operariis assignatis;" a long list dated variously from 26 May to 12 Oct. Ibid,, m. 2^^ *' Pro Radulfo de Middelneye/' 10 Feb. 31, m. 6, *'Pro Waltero Paries, de vadiis sol- uendis, ' * 26 Nov. Ibid. , " De vadiis solvendis iusticiariis ad inquirendum de operariis assignatis;" a short list dated 12 Nov. Ibid,, m. 25, " De vadiis iusticiariis de operariis et seruientibus soluendis;" a long list dated variously from 6 Feb. to 12 Oct. Ibid., ** ProThomade Sloghtre et aliis," 16 May. 32, m. 6, '*De vadiis iusticiariis ad inquirendum de operariis soluendis;" a short list dated variously from 20 Oct. to 26 Nov. Ibid,, m. 23, " De vadiis iusticiariis ad inquirendum de seruien- tibus assignatis soluendis;'' a long list dated variously from 8 Feb. to
r
THE JUSTICES OF LABOURERS
47
of 1354. The rate is now given by the year instead of by the day, a practice that continues during the remain- der of the decade. The amount is usually £10 a year for one justice and his clerk, and 10 marks a year for the other justice or for each of the other two justices, occa- sionally falling as low as £5 a year. While at first the clerk is not always specified as receiving a share of the greater of the two usual rates, he is so rarely omitted from the later lists that it is a fair inference that the £10 regularly included his wages. Xf the intention is that all the acting justices are to be paid at equal rates, the clerk's yearly salary will be £3 6s. 8d.*
In comparing the payments per day of the earlier method with these annual payments, it is to be remem- bered that in the latter case the writs always stated that the round sum was due only if the sessions had been held for forty days during the year in question ; while in the former case forty days were named as the maximum for which the daily rate was to be computed. Under both schemes, if the sessions had been for fewer days, the salaries would be proportionately less. On this basis it is clear that normally the 5s. rate per day for a justice, exclusive of the clerk, would amount to £10 a year, a considerably larger sum than the 10 marks of the second scheme, which averages only 3s. 4d. a day. The clerk's total per year under the first scheme of is. 8d. per day,
20 Jan. /did, , ' * Pro Edmundo de Qyuedon/ ' 14 April. 33, m. 8, " De ▼adiis iusticiariis soluendis;" a short list dated from 11 Nov. to 2 Dec. IM., m. 35, ''De vadiis soluendis iusticiariis de operariis; a long list dated from 8 Feb. to 20 Aug. For an example of such a letter close, cf. app., D, 5.
'Although in one instance (see writ to Sloghter, p. 46, note 3) it is specified that the clerk is to have £2 and two justices 20 marks be- tween them, I am inclined to believe that the larger amount is more nsnal.
48 ENFORCEMENT OF THE STATUTES OF LABOURERS
would at its maximum, equal £3 6s. 8d., exactly the same amount as that which he received according to the later method.' Occasionally, it appears that justices especially zealous in the performance of their duties, I. e. successful in an unusually large number of convic- tions, are rewarded by additional payments beyond the amount of their regular salaries." It is always to be emphasized that if the justices failed altogether in mak- ing any convictions, they would be entirely without com- pensation for their labours ; a fact plainly of the greatest possible efficacy in encouraging a thorough enforcement of the statutes entrusted to their care.
^In the earliest enactment on the subject (12 R. II, c. 10) the clerk's salary was increased to 2 s. per day, while the rate prescribed for the justices (by this date serving on joint commissions) was only 4 s. per day, midway between the two previous rates; and the sessions were now only expected to last three days four times a year. It is worth while to compare with the amounts received by the justices the rate of payment to members of parliament at this date; 4 s. a day for a knight and 2 s. for a citizen or burgher. Stubbs, Const, Hist,, ii, 247.
*The writ to Edmund de Clyvedon {suprap. 47, note) had ordered ;f 10 beyond his regular wages on account of his great expenses and con- tinuous labours, '* necnon proficuum magnum, quod nobis per dili- genciam et laborem suum fecit." Likewise, an additional payment of £S Had been ordered by writ of the great seal for Peverel and Halsam in Sussex because they had shown "diligenciam et solicitudinem . . . . in sessionibus suis inde pro nostro et populi nostri commodo;" Mem. K. R., 34, Trin., Breu. Baron., rot. 14, " Pro vicecomite Sussex'." The sheriff had such difficulty in obtaining his allowance from the ex- chequer for this payment that he petitioned the crown, and nearly three years later, a second writ was issued by the king and council to the barons ordering them to make the proper allowance. For an account of the episode, cf. Mem. L. T. R., 34, Trin., Precepta, rot. 6 d, Surr' Sussex.' (Another portion of the same process is given in app., D, 6.) As the ordinary writs for wages make no provision for extra sessions held according to the statute (app., 16) at the "discretion " of the jus- tices, it is possible that these additional payments represent the reward for such sessions.
THE JUSTICES OF LABOURERS
49
It has already been pointed out that only those justices were paid who actually sat, and that with the system of practical exemption for a portion of each commission from the necessity of service, only two or three f on rare occasions four or five) received salaries;' the figures recorded in exchequer documents show that the maxi- mum was frequently, though not always, reached.* From these two considerations it is plain that there was a fairly definite limit to the total amount due in wages out of the penalties in a given county.
Suits brought by the justices to secure the payment of their salaries ^ show the importance with which such pay- ment was regarded, and prove beyond doubt that in the fourteenth century the compensation was considered an essential factor in the organization of the office.^
(7) TTie personnel of the commissions^ — During this decade the petitions of the commons as to the keepers of the peace and the justices of labourers, either of the joint or separate commissions, include no requests for a definite property qualification * but merely mention rather
*C/. p. 35. "Sec pt. I, ch. iii, s. 2, A.
'In the court of king's bench and in the exchequer; see pt. i, ch. iii, s. I, B, b and s. 2, A.
*The later petitions already quoted complaining of the neglect of their duties because of the lack of salaries point to the same conclusion; I am inclined, therefore, to disagree with Mr. Beard's view {pp, cit,^ 150), that " no attempt was ever made to provide a regular salary for the justice of the peace."
*See list of justices in app., B, 3. The calendars of Close and Patent Rolls issued since my monograph was practically completed (r/*. app., 20-21) will render comparatively easy a really thorough study of the per- sonnel of the justices. I can here emphasize only a few important points.
* Neither the ordinance or the statute had specified any qualifications. A statute of 18 H. VI, c. 11 {Statutes)^ enacted that to be eligible to the peace commission a man must have an income of £^ per annum; with the change in the value of money, this sum soon became merely nominal. Cf, Beard, op, cit,, 144.
50
ENFORCEMENT OF THE STATUTES OF LABOURERS
vague and varying requirements: they are to be les Grants de la terre. Conies et Barons^ chescun en sa Marche, od les plus loialx et sages de la ley;^ or desplus suffisantg demorants deins les Countees;^ the statute re- sulting from this latter petition enacts the appointment of iustices sachants de let, qi soient bones et couenables? The most specific demand is for des plus loialx , sages & sufficeants des CounteeSj , . , et que nul Justice soit as- signe par commission sil ne soit sufficient cCestat et con- dition a respondre au Rot et au poepie,^ Beyond the negative criticism implied by such petitions there seems to be no evidence of any general complaint against the status of the men assigned during these years. Closely bound up with the subject of the qualifications of the justices is the question of their residence in the districts to which they are assigned ; the petition for men demo- rantz deins les Countees,^ repeated next time with greater emphasis, et nient en foreins lieux^ shows that there must have been some abuse of the non-residence practice. An examination of the appointments has already brought out a notable difference between the membership of the
^ Rot, Pari,, ii, 238a; cf, p. 27.
^Ihid., ii, 252b; cf, p. 27. *App., 17.
^Rot. Pari., ii, 257b; in this case the request applies to the keepers of the peace also; cf, p. 27. A writ of privy seal, addressed to the chan- cellor under date of 17 Aug., 1350 is worth quoting although it refers to a keeper of the peace, not to a justice of labourers: "Force qe nous auons entenduz qe Laurence de Ludelowe qest assigne vn des gardeins de nostre pees en le conte de Shropshire nest pas sufisant ne couenable pur la garde de nostre dite pees et de faire autres choses qappartignent a son office, vous mandons que remue le dit Laurence facez assigner en son lieu aucun autre homme suffisant del dit conte qi serra plus couen- able pur la garde de la pees susdite." Writs of Privy Seal, Chancery, Series I, file 347, no. 21, 102.
^Rot. Pari,, ii, 252b; quoted supra^ note 2.
^Ibid,, 2S7b; quoted supra, note 4.
THE JUSTICES OF LABOURERS 51
joint as compared with that of the separate commissions ; ' the former include a large proportion of men of law and of magnates, appointed at the same date, for a great number of counties ; e, ^., John de Moubray and William de Skipwith for nine counties, William de Shareshull for seven, and similarly in many other cases.' Lambard's description, therefore, of the justices assigned to execute the statute of labourers as " not resiant in the countrey, but sent downe for the time of that seruice " is well justi- fied.^ While occasionally the payment of wages in a given district proves to be to one of these well-known men, e. g.^ to Skipwith in Lincolnshire,^ showing that he was performing actual service, usually it is the less famous names that appear on the salaried list, even in the case of the joint commissions. On the separate com- missions for labourers there is a much smaller proportion of distinguished men and very few instances where the same men were appointed to a plurality of districts. Perhaps the petitions of the commons had effect ; at any rate, on the whole, it is fair to characterize the lists of justices of labourers as composed of residents of the dis- tricts for which they were acting.
Further, while the joint commissioners, having power to hear and determine cases of felony and of homicide,
* C/. p. 22.
'The list in app., B, 3. shows the extent of this practice, an evil a little different in nature from that of which Lambard had complained; cf. p. 38.
^Eirenarcha, 562; erroneously described as justices of labourers only. Cf, p. 9, note I.
*Gaus., 26, m. 16, 20 June, in the district of Lindsey; Cal.y ix, 437. Und,^ Cavendish in Essex and Suffolk. The latter 's murder by the in- surgents has even been attributed to his relation to the statutes of labour- ers; Treveljran's Wycliffe, 217 and 219.
52
ENFORCEMENT OF THE STATUTES OF LABOURERS
would naturally include men learned in law,' there seems i priori no such urgent need in the case of the justices of labourers; but even among the latter, there appear the names of twenty-seven men who at some time during their careers, served as judges in the upper courts,* and merely a cursory study of the list shows that many of these justices were acting as justices of assize and of oyer and terminer.^
It has been shown that in boroughs there is some tendency to employ existing officials:^ the mayors of York and of Nottingham both served on commissions that, included other names as well ; in Oxford on four occasions, the mayor and chancellor are alone appointed ; while in London the mayor and sheriffs are assigned, in the first instance alone, in the second with three others.* The case of London is distinctly abnormal, for it had been stated in the parliament in the autumn of 1355 that sheriffs and coroners were not to be appointed justices.**
^The statute of 34 Edw. Ill, c. i, provided that the commission of the peace (now a joint commission) should include *' one lord, and with him three or four of the most worthy in the County, with some learned in the law."
'Including justices of the court of king's bench and of common pleas, several barons of the exchequer and several chancellors; cf, Foss' Judges of England,
' See indices of the calendars of Patent and Qose Rolls.
* As a matter of fact the ordinance had empowered the mayors and bailiffs of cities and boroughs to enforce some of its provisions; app.^ 10-11.
^ App., 33 and note i, 34, 40, 43. For London see in addition, pt. i ^ ch. iii, 8. 2, A.
*"Ne que nul Viscount, Coroner, ne nul de lour Ministres desore soient assignez Justices en nulle commission; " Rot, ParL^ ii, 365b. Later it was necessary to repeat the prohibiton; ibid,, 335b. Beard, op, ciL, 42, writes that the movement against sheriffs may have been an attempt ' * to secure greater independence from purely royal of¥i-
THE JUSTICES OF LABOURERS 53
It is probable that there had been complaints that at the present moment the evil was peculiarly pressing. A study of the lists of sheriffs ' shows, that, leaving out of consideration magnates like the earls of Arundell and of Warwick, who held the office for life or for long terms, and who were also acting on innumerable commissions, there are during this decade between thirty and forty occasions when a sheriff or a subsheriff is actually serv- ing as justice of labourers, and that, at the very time that this parliament was in session, five sheriffs were thus doing double duty.* Two days before the end of the session, Laundels, justice of labourers in Oxfordshire, was made sheriff of Oxfordshire and Berkshire; his prompt removaP from the commission of labourers may have been the result of the parliamentary agitation of the question ; but the practice was not checked, since, of the cases referred to above, about half occur after this date. The anomaly of this special combination of duties is ap- parent; a justice would issue writs to himself as sheriff to summon jurors and attach delinquents, and would then as sheriff report to himself as justice that the writs had been executed. A case to the point occurs in Bucking- hamshire ; Hamden as sheriff is ordered by the exchequer to levy from himself as justice of labourers a sum due to the crown.* A very large proportion of men who had
cers; " the objection on practical grounds seems to me sufficient ex- planation.
*No. ix, in Lists and Indexes,
*Harewedon, jtistice in Northants. and sheriff of Cambridge and Hunts.; Laundels referred to in my text; Northo, justice in Sussex and sheriff of Surrey and Sussex; Paries, justice and sheriff in Northants. ; Threlkeld, justice and sheriff in Ctmiberland.
' Appointed sheriff on 28 Nov. and removed from his commission for labourers on 2 Dec.
*App., D, 3.
54
ENFORCEMENT OF THE STATUTES OF LABOURERS
been or were to be sheriffs were serving during this de- cade as justices of labourers, often only a short interval elapsing between their two sets of duties/ In the cases where appointment to other duties is specified as the reason for the discharge of a justice from service, the following are mentioned : commission in another county,, sheriff twice, steward, collector of subsidy, and " other business of the king."*
It has already been emphasized that at the time of the enactment of the statute the commissions included a number of magnates appointed simultaneously for several counties ; it is, therefore, not surprising to find a clause allowing the justices the privilege de deputer autres soutz euXy tantz et tielx come Us verront que tnieltz sotiy put la garde de meisme ceste ordinance? There was, how- ever, some opposition to this system; a petition, in 1353^ begs that keepers of the peace and justices of labourers shall not appoint deputies;^ two years later justices of labourers are forbidden to appoint deputies.^ The only positive evidence for the custom that has come to my notice is in the case of Wiltshire, where for 1352 and 1355 proceedings exist coram deputatis iusttciariorum , although the justices themselves are also acting.^
The few definite instances where it is apparent to what other ofHces justices of labourers were appointed, the fre- quent occurrence of their names on the list of sheriffs,, and also in the indices of the calendars that are thus far
^E,g., in Northants., Blundell had acted as sheriff up to 3 March ^ 1351, and on 15 March was appointed to the joint commission.
'See p. 30, and note 5. 'App., 15.
*Rot, Pari., ii, 2S2b. ^Ibid., 265b.
*App., C, I, nos. xvi and xvii. In a later Wiltshire roll, that for 3157, there is no mention of deputies.
THE JUSTICES OF LABOURERS
55
in print, where they appear as justices of oyer and ter- miner, collectors of the subsidy,' escheators etc., give a fairly clear picture of the general character of the men who were doing the work of enforcing the labour stat- utes. Apart from a score or more of judges, afterwards famous on the bench, and from a still smaller proportion of noblemen, the large majority of these justices seem to belong to that class of landed gentry to whom at this period the business of local administration of all kinds was entrusted, and into whose hands the task of the pre- servation of the peace eventually fell.*
There is no record at this period of any general indict- ment against the honesty and straight dealing of the justices of labourers, and further evidence will show that the actual instances of their conviction for misdoings are not many. At any rate it is evident that the king's council and the commons were at one in their belief in the superior merits of local justices for enforcing the labour legislation, and were shrewd enough to see that as employers of labour in the very district in which they were acting, perhaps even of the very offenders sum- moned before them for trial,^ the justices would have every incentive to show laudable zeal as to frequent ses- sions and numerous convictions, and would thus prove the most efficient of administrators.
This account of the 671 justices of labourers affords
*£'. ^., de la Mare is acting as collector in the same county in which he had recently served on a joint commission; see Mem. L. T. R., 29, Mich., Presentaciones, rot. 7, Roteland*.
'See Beard, op. ciL, 71.
'While Gilbert de Berewyk was on the commission for labourers in Wiltshire, his own servant was indicted in sessions for departure from Berewyk's service and for receipt of illegal wages; Pat., 27, pt. 2, m. 14, 8 Aug., " De pardonacione utlagarie {Cal., ix, 485).
56 ENFORCEMENT OF THE STATUTES OF LABOURERS
convincing proof that parliament, king and council^ x:learly intended that the statute should be enforced, and that they were using every means in their power to secure this end. The results of their efforts must be looked for in the records of the proceedings before the justices and in the amounts of the penalties imposed.
CHAPTER II
PROCEEDINGS BEFORE THE JUSTICES OF LABOURERS
In comparison with the completeness of the chancery enrollments having to do with the appointments of the justices, the number of sessional records in existence for the decade is disappointingly meagre/ eighteen rolls, representing thirteen counties. Other sources, however, abound in references to similar rolls which cannot now be found,* while exchequer documents as to the penal- ties,5 especially subsidy accounts'* and entries of pay- ments of justices' wages,* afford convincing proof that the justices were sitting with fair regularity throughout the country. The eighteen rolls, therefore, by no means give exhaustive information as to the activity of the justices, and even if thoroughly analyzed will not furnish complete statistics as to rates of wages or of prices, or as to the number of oflFenders in the various economic and social classes affected by the statutes. They may, nevertheless, be regarded as typical for the administra- tive methods of the justices, their procedure in session, their relative emphasis on different portions of the legis- lation, and the character of their penalties, and contain important if not conclusive evidence as to the general trend of rates and the usual status of the culprits.
' By no means meagre however in comparison with the usual state- ment that none can be found for an earlier date than the sixteenth century.
'See p. 64, and app., 143-144. 'Pt. i, ch. iii, passim.
*IM., s. I, B. ^Ibid., s. 2, A. and pt. i, ch. i, s. 6.
57
58 ENFORCEMENT OF THE STATUTES OF LABOURERS
The following sections are based chiefly on data de- rived from an examination of the entire contents of these eighteen rolls, and more especially from the extracts selected for printing, the latter having been chosen with a view to illustrate as far as possible every phase of the work of the justices in session.*
(i) General description of the sessions and of the ses- sional records. — With characteristic administrative pre- cision the statute' had specified that the justices were to hold their sessions four times a year, Lady-Day (25 March), St. Margaret's (20 July), Michaelmas (29 Septem- ber), and St. Nicholas (6 December), and at any other time at their " discretion. "^ This earliest regulation of the dates of what may properly be called "quarter ses- sions," framed for the joint commission of the peace and for labourers,^ was held to apply also to the separate commissions for labourers,^ and until two years after the consolidation of the commissions, — and, therefore, after my decade, — was not modified by statute.^ Although there was no enactment as to the length of the sessions, the writs for payment of the salaries of the justices from the very beginning assume forty days to be the normal amount per year,' but do not suggest that this maximum is compulsory, or that it needed to be distributed equally among the four sessions. A petition of 1354, requesting that the justices sit at least forty days a year,® implies some shortcomings on their part, but the complaints do
* App., C, I.
'The ordinance had not mentioned sessions of justices. 'App., 16.
^Cf, p. 9, note I, for reference to Lambard's error in this matter. ^Proved by the dates of the Cornwall sessions, app., 159-160. ^ Statutes^ 36 Edw. Ill, st. i, c. 12. 'Pt. i, ch. i, s. 6.
^Rot. Pari., ii, 2S7b-2s8a; cf, p. 27.
PROCEEDINGS BEFORE THE JUSTICES
59
not become urgent until a later period/ It is evident from the entries on the Pipe Rolls as to justices' wages that the maximum of forty days was fairly usual, although not inevitable.* A glance at the chronology of the dates of the recorded sessions indicates wide diversity of practice in the different counties, varying from the orderliness of the Cornwall rolls, seven sessions at the statutory dates, of ten days each, to the irregu- larity, for example, of the Derby roll, where the justices sat for one or two days in six different months, with no reference to the prescribed dates. The utter chaos for Hereford and Rutland, where the sequence of the years and of the days of the week is hopelessly confused,^ seems to indicate a poor job on the part of the clerk, but the general impression conveyed by the eighteen rolls in distinction from the Pipe Roll entries, is that the maximum of forty days was rather rare, and that the " discretion " of the justices as to choice of dates was freely exercised.
With no statutory provisions as to the place for the holding of sessions, the practice varies from county to county ; in some instances the justices sit always at the chief town,-* or at two or three important towns ; ^ sometimes they move with regularity from place to place ;^ in two cases, various sets of deputies hold in-
*The stattite of the 36th year seems to be due to complaints in parlia- ment of the irregularity in the holding of sessions; Rot, Pari,, ii, 271b; cf. also ibid., 319b. The petitions continue during the next reign, but three days four times a year are finally decided as sufficient. Seep. 48, note i. Lambard complains that in his time the sessions of thc^ peace often did not last over three hours altogether; FArenarcha^ 570.
'C/. p. 45, and pt. I, ch. iii, s. 2, A.
•App., 165-166; 186-189; 202-203. *App., 145-149.
*App., 165-166. 'App., 159-160; 204-210.
6o ENFORCEMENT OF THE STATUTES OF LABOURERS
quests in every hundred, and make their reports to the justices who are conducting their sessions at the chief town.* I have been unable to discover where, within the limits of the town, the sessions were usually held; in Essex, a iusiice sur laborers is indicting and convicting labourers en le Chaustel Daungre ; it will be shown later, however, that there is some doubt as to the nature of his commission, and in any case his pro- ceedings were irregular.'
From the rolls themselves one can not always infer how many or which justices were acting, as the heading is frequently coram . . . (then follows one name) et sociis suis ; but it has been emphasized that the writs for wages indicate that the number of "working" justices ranges from two to five;^ the form of the commission implies that a minimum of two must be present,* and it appears that one of the charges against a justice under indictment is that he sat alone in judgment.^ It seems to have been the custom to speak of one justice of each commission, usually the first name on the list, as capitalis iusticiarius^ or principaliter nominatus ; ' but just what additional re-
^ App., 228-229. * App., 266. and pt. i, ch. iii, s. i, A.
^ Cf. pp. 17*18, and notes i and 2.
^ '' Et ideo vobis mandamus quod . . . vos tres et duo vestrum . . .'* app., 26.
° App., 212. It is strange that in two instances in the second series of writs for the 26th year, Kesteven and Holderness, wages are to be paid to one man only. See supra, note 3. Chester is a distinct ex- ception; some of the proceedings take place before one justice only, and the commission issued just after my decade is directed to one man only; p. 16, note 2.
•Mem. L. T. R., 29, Trin., Breu. Ret,, rot. 2 d; Henry de Percy is thus described. Ibid,, 32, Mich., Recorda, rot. 21, Derby; Braylesford appears in court under this title.
'See Exchequer, K. R., Accounts, 1 10/15, Norfolk; Berncye (whose
PROCEEDINGS BEFORE THE JUSTICES 6l
sponsibilities were incurred by him I can not say/ With the two or more justices who were holding sessions there sat the clerc des iustices, referred to in the statute of labourers, without any account of his duties.* He was paid a regular salary,' presumably in return for the labour of writing the two classes of sessional records, the placita or accounts of the proceedings, and the "estreats'* or memoranda of the resulting penalties. The former seem usually to be made up according to a definite system, beginning with the enrollment of the letters patent in virtue of which the given justices were acting, followed by the usual writs to the sheriff for the summoning of
case has been referred to, p. i8, note 4 and p. 31, note 10) makes the following explanation to a writ demanding his estreats as a member of a peace commission: " Et de alio tempore (. . . illegible) non habeo quia commissiones ante tempus infradictum ad inquirendum de infra contentis non habui nee post predictum tempus intromittere potui prop- ter breve domini Regis michi et Willelmo de Wychingham tunc socio meo de premissis directum de vlterius non intromittendo, cuius breuis transcriptum patet in cedula in ista inclusa. Et sciendum quod post illiid tempus alie commissiones de pace custodienda in comitatu predicto dxrecte fuemnt lohanni Bardolf de W3rrmegeye et alia vice lohanni de Norwico, michi et aliis, sed recorda et extracte inde remanent penes ipsos tamquam prindpaliter in dictis commissionibus nominatos. ' ' Un- doubtedly there was no difference in this matter as between a keeper of the peace and a justice of labourers. Cf, Chaucer in Prologue to the Canterbury Tales:
'* A Frankeleyn was in his companye
f »
At sessiouns ther was he lord and sire; Full ofte tyme he was knight of the shire.' Verses 331, 355 and 356,
*For tentative suggestions, cf, p. 35, note 4 and p. 64 of this section.
*App., 16.
'C/. p. 46. According to an instance noted in the Records of the Borouzh of Leicester^ ii, 80, the mayor seems to have loaned to the keepers of the peace the services of his own clerk and then to have claimed from them the amount of the clerk's salary.
62 ENFORCEMENT OF THE STATUTES OF LABOURERS
the jury of indictment, and then by the presentments and summoning of the indicted eU.; * sometimes the amount of the penalty is entered over the name of the convicted,* but normally the estreat roll is altogether separate. The chaotic condition of some of the existing rolls looks as if the clerk took merely rough notes during the session, and was then responsible for getting the roll into proper shape from memory ; in one case a justice admits that he has the estreats but confesses that they are not yet prop- erly arraiata? There is plenty of evidence that the clerk did not always do his work well : e, g.y the justices are distrained to correct mistakes in the estreats;^ the es- treats are returned to the justices because they seemed to the court of the exchequer esse insufficientes et non debita forma scriptos vel arraiatos ; ^ there is, on at least one occasion, a discrepancy between the date stated in court by the justices and that written in the estreat roll by the clerk ; * on another occasion the court questions whether the estreats brought into the exchequer by the clerk (apparently) are in truth the estreats of the justices.' The clerk was evidently used as a messenger, and appears before the barons to prove that he had delivered the estreats to the collectors.* One clerk is shown to have had the estreats in his posses- sion and to have carelessly lost them;' others are
*S. 2 of this chapter, and app., 173-175. It is not meant that this logical order is always adopted by the clerk.
'App., 181-183.
-'Mem. L. T. R., 26, Mich. Presentaciones, De diedato, Southampton.
^Ibid., 35, Mich., Breu. Ret., rot. i, Holland; a reference to the clause of Rubeus Liber, also quoted in a case given in app., 365.
^Mem. L. T. R., 32, Hill., Recorda, rot. id; Northants.
^/did., 33, Mich., Recorda, rot. 16, Lincoln.
'App., 365. "App., 290. 'App., 285.
PROCEEDINGS BEFORE THE JUSTICES
63
worse than careless and, in league with corrupt justices to aid in their extortion, are found substituting the name of an innocent for that of a guilty man/ It is not unnatural that by the next reign it was deemed advisable to administer an oath to the clerk as well as to the jus- tices, especially as by this date he had become responsi- ble for the custody of the records.*
This brings up a difficult problem ; how and where were the sessional records kept? A distinction must at once be made between tht placi^a and the estreats of the penalties ; in examining the whole question of the disposition of the penalties it will appear that there was a carefully worked- out system in accordance with which the estreats were regularly delivered into the exchequer.^ Innumerable pro- cesses show that eventually the estreats were received in safety, and that the action of the exchequer was regular and persistent in insisting on securing them ; but it also appears that the justices used exceedingly haphazard methods in the care of the estreats ; apparently any one of the "working" justices who chanced to have them penes se kept them merely in his own dwelling,* and from what has already been said as to the possibility of practical exemption on the part of some of the commis- sion, there is no certainty as to who the "working jus- tices " would prove to be. In the case of the placitay it
' App., 241-242.
'The oath of the justices of the peace who were now responsible for the labour legislation includes the following: "et que vous ne prendrez ne resceiverez nul Qerc devers vous pur faire escrire ou garder les Recordes et Proces avantdictes, s'il ne soit primerement jurez devant vous de celer le conseil le Roi, & de faire et perfournir bien et loialment de sa part qant a son office & degree apent en celle partie . . . '*; Rot, P^L, iii, 85b. Cf. pp. 42-43.
'See pt. I, ch. iii, passim,
*£, g, app., 283; cf. also "in partibus suis; " pt. i, ch. iii, s. i, B, b.
64 ENFORCEMENT OF THE STATUTES OF LABOURERS
is still more difficult to find traces of the development of any rigid system for their preservation. That they were usually kept for a time at least is clear from the follow- ing considerations : records of actions before the justices of labourers are summoned to Westminster by writ of certiorari in order that the case may come before the king's bench, the council or the chancellor;^ the ex- chequer for some special reason often orders the justices to deliver into its custody their records, rolls and pro- cesses ; * in the case of certain difficulties as to the divis- ion of the penalties the treasurer and the barons bid the justices examine their records and discuss the point in question fully among themselves ; ' on one occasion the king has heard that a certain one of three justices had the placita in his possession and therefore to him and to him alone is directed the writ ordering him to examine the records.^ There is also some indication that the capitalis iusiiciarius was more directly responsible for the custody of both estreats and placita than were his colleagues.^
An investigation of the eighteen existing rolls show that in fourteen cases their survival can be explained by special causes;* either the roll in question was wanted for a particular purpose by the exchequer,
' See s. 7; also app., C, 2.
*Cf. writs in app., C, i; note 3 infra contains one instance out of many of a reference to the existence of a roll which I have not been able to discover.
'Mem. L. T. R., 35, Mich., Breu. Ret., rot. 27, Berks.: '*nos igitur inde per vos cerciorari volentes vobis mandamus si pluries quod visis rotulis placitorum inde penes vos residentibus, discussoque plenius inter
vos . . . ."
* App., 211.
^Cf, p. 60, note 7, supra, *App., 144.
PROCEEDINGS BEFORE THE JUSTICES
65
chancery or court of king's bench,' or by some accident its membranes had been united to the membranes of some other roll of placita that normally belonged in Westminster;" in one instance the placita and the estreats of penalties were combined.^ Since it is only in the case of four rolls that there is no obvious explana- tion of their preservation, the conclusion is warranted that the writs summoning them to Westminster have been lost, and that there is at this date no provision for the delivery of such records as a matter of ordinary routine into the custody of any one department of the central government* or even for their permanent safe- guarding in the hands of the local officials.' Unless a given roll were wanted within a few years, it probably would never be wanted ; it is therefore easy to see that there would be no motive for keeping it indefinitely. One cannot but rejoice at the fortunate chance that led to the survival of these eighteen rolls to serve as a basis for a description of what went on day by day before the justices and their clerk.
(2) Procedure in sessions. — While the ordinance had
'The writs are either attached to the rolls or in some cases enrolled elsewhere, e, g,, on the Memoranda Rolls; see app., 173, 231-232.
«App.. C, i; nos. I, II, III, VII, XI and XVII.
*App., C, I, no. XIII; r/. pt. i, ch. iii, s. 2, A, as to the London records.
* Although by 1336 it had been enacted (^Statutes, 9 Edw. Ill, st. i, c. 5) that justices of assize, of gaol delivery, and of oyer and terminer should send all their records and processes into the exchequer each year.
^ ^y the next reign the oath of the justices quoted previously has the following clause: '' & touz les Recordz et Proces que serront faitz devant voos ferrez mettre en bone & seure garde." Rot, Pari,, iii, 85b. The oath continues as on p. 63, note 2, supra, putting the responsibility on the clerk. In spite of this provision there are several instances where dur- ing the peasants' revolt sessional records were destroyed by the insur- gents; see Rot, Pari., iii, 275a, and R6ville, Soulivetnent, 38.
66 ENFORCEMENT OF THE STATUTES OF LABOURERS
said nothing as to the procedure of the justices, the statute had been specific: the justices are empowered to swear in local officials, seneschals, bailiffs, and con- stables, to enforce the legislation and to make reports at quarter sessions ; they are also empowered to hear and determine all offences against the statutes brought to their attention by the suits of plaintiffs and by present- ments of juries, and, if necessary, to have recourse to the process of exigend after the issue of the first writ of capias} The last clause in their commissions informs them that the sheriff has been instructed to summon suitable juries at a time and place to be named by them.* Accordingly, the first step taken by the justices in virtue of the receipt of their letters patent,^ is the issue of a writ to the sheriff,^ bidding him summon to a definite place, at an assigned date, a specific number — normally twenty-four or twenty-' — of honest and lawful men, usu-
^App., 15. In this section, except when otherwise specified, the references are to pages of the appendix.
' Unfortunately I have been unable to discover on what principle an agreement was reached as to who of the commission were to do the actual work {cf, pt. i, p. 35), nor do I know who administered the oath of office to the justices, {jcf, pt. i, p. 43), or how the letters patent were de- livered to them. Many instances occur where the justices' excuse for not acting has been the failure to receive the letters patent, an excuse which seems always to have been accepted without further inquiry; cf. e, g,, pt. I, ch. iii, s. 2, A, and app., 282. In one of the commissions the sheriff is ordered to read aloud the letters patent in the presence of the justices; and on one occasion it appears that the justices had themselves read their commissions to a full county court.; app., 28, and 367.
^It has already been said that it was the clerk's custom to enroll at the beginning of his record a copy of the letter patent and also the en- suing writ to the sheriff; cf, s. i, p. 61, and app., 161.
* 173, 181. Less often 18, or 12; 184, note i, 204-205. ''Knights " are sometimes specified; 199, in one case the reeve and four men from each "villa;" i6i.
PROCEEDINGS BEFORE THE JUSTICES 67
ally from each hundred,' who are to do whatever shall be enjoined upon them to do ; constables and sub-con- stables are frequently included in this summons.' Next, at the appointed day and place, in the presence of the justices, the sheriff replies that he has executed the writ, and that the jurors are present ; ^ then either the whole number, or in some cases twelve, are sworn by the jus- tices^ and charged to inquire into all cases of infringe- ment of the law, while the constables are charged to per- form the duties assigned to them by the statute.^ For both a day is named on which they are to make their presentments and render their reports, or suffer a penalty for neglect/
The actual work of the session may be said to begin when the constables and the juries of indictment from each district ^ make their presentments under oath ; usu- ally to the effect that such and such individuals, perhaps a long list, are guilty of specific offences against the stat- utes. It sometimes happens in the case of such indict- ments, most frequently perhaps in those brought by the
* Other districts are wapentake, 161; burg, 204; city, 173; 'Willa/* 161; "villata," 181. •
'173; 221.
*He is sometimes forced to distrain the jurors to appear; 221*222.
* IQ9, and 222.
^222. In G)rnwall the ''decenna" and the "decennarii" have the brunt of the task of making presentments; 150-151.
* In one instance where the jurors fail to report on the day assigned they are told that the penalty of 40 s. will be inflicted if there should be any further delay; 222-223.
* If the justices are holding their sessions in various places within the county during the same year, in each place the presentments are made from the neighboring hundreds or towns only; cf. e. ^., 181. In two of the Wiltshire rolls there is a double set of proceedings, i, e. before deputies and before justices; 228-229.
68 ENFORCEMENT OF THE STATUTES OF LABOURERS
constables, that no further process is recorded, but that fints ox finem fecit is entered over each name in the list.* Probably the lack of further details is due merely to in- adequate notes on the part of the clerk; it seems pos- sible, however, that the early procedure of the old local courts was still in use, and that the presentments instead of being traversable are treated as conclusive proof of guilt.* By far the more usual method is the one now to be described. Occasionally, without further measures on the part of the justices, the indicted appear of their own accord; 3 but normally the justices issue a writ of at- tachies to the sheriff, ordering him to produce the in- dicted on a given day.^ The sheriff then reports, often according to the return of the bailiff of a hundred or of a liberty,^ that the individuals mentioned in the list given to him are attached by pledges, or that they have noth- ing by which they can be attached.* In the first case the indicted when summoned are to appear in the charge of the sheriff, and their examination can begin ; ' if they do not appear when summoned, their pledges are in mercy,^ and the justices issue a writ of capias to the sheriff, re- turnable at a later day, ordering him to produce both this latter set of indicted, as well as those before men- tioned who had no property by which they could be
» 145-148; 198; 223.
^Cf, Pollock and Maitland, Hist. Eng. Law, ii, 652-653. There are equally clear cases where a constable's presentment is treated as an in- dictment; 201.
"182.
* 152; sometimes the writ is a *' venire facias," and in connection with offences against the weights' and measures' legislation a writ of "dis- tringas" is usual.
»I53, and 175.
•153; 175. '152; 162. 'isS.
PROCEEDINGS BEFORE THE JUSTICES 69
attached." The sheriff now reports that the individuals named are either taken and in his custody, or are not to be found in his bailiwick. In this second case the jus- tices direct the sheriflF to employ the ordinary process of exigend in the county court ; * if at any time before the outlawry period ^ the delinquent should surrender to the justices and finem feceriiy he can obtain from them a writ of supersedeas^ ordering the sheriff to stop proceedings against him;'* if his outlawry has been proclaimed, he can on his surrender obtain pardon only from the king.^ Returning to the point in the proceedings at which the indicted, either attached or taken, are ready to be ex- amined by the justices, in the presence, apparently, of a fairly large number of officials and jurors, it appears that very often they confess their guilt and declare themselves in the mercy of the king ; * still more frequently, however, they plead not guilty and ask for a jury trial.' Occa- sionally at this stage, further cross-examination elicits a confession of guilt,* but usually the trial takes place. The justices issue to the sheriff a writ of summons for this second jury, plainly to be distinguished from the jury of indictment already described;' xii liberos et legates homines de irisneto . , . ei qui prediUos . . .
*i53; 175. '153-154; 176.
'Three, four or five exactions according to the method of counting; Pollock and Maitland^ op. ciL, \i, 581.
*i&; 235-238.
^The Patent Rolls contain many examples of such pardons; cf. 239.
•175. M52; 183. '*I75.
*The Cornwall Roll affords clear instances of the distinction between the two types of juries; 152-154. In one instance the trial jury failed to appear, and it was shown that the bailiff of the liberty to whom the writ of summons had been sent by the sheriff had failed to execute it; therefore the sheriff has to use process of distraint to secure the presence of the jurors; 178-179.
70
ENFORCEMENT OF THE STATUTES OF LABOURERS
nulla alfiniiate attingant ad faciendum recognicionem illam.^ They are chosen, proven and sworn and charged to give their verdict, at a time appointed for them,*
I noted one instance where a trial jury after the per- formance of its duties is then charged to make inquiries as to offences against the statute, i. e, to act as a jury of presentment and to make its report at a given time ; ^ but in general there is, in these rolls, a sharp line drawn between the two forms of juries/
In addition to the method of presentments, there are far less frequent examples of suits brought by individual plaintiffs against defendants who had infringed various clauses of the statutes ; ^ the form of such actions as are recorded on these particular rolls follows closely the form of similar actions in the central courts; in those that have come to my notice issue is taken on a question of fact and a trial jury summoned.
There are, rather to my surprise, some instances where the accused are acquitted by the jury, but it must be con- fessed that such instances are comparatively few ; * if they
* 176-177. ' 154, and 179.
*'*Ad inquirendum .... et ad reddendum veredictum suum ; " 177. Cf, Pollock and Maitland, op, cit., ii, 645: ** We are right in say- ing 'verdicts.' The answers to the articles are often called veredicia,'*
*The indicting jury had in the past acted as trial jury but at just this date a statute put a check to the practice in felony and trespass (25 Edw. Ill, St., 5, c. 3, Staiuies). " A great deal yet remained to be done before that process of indictment by a * grand jury ' and trial by a 'petty jury ' with which we are all familiar would have been established. The details of this process will never be known until large piles of re- cords have been systematically perused. This task we must leave for the historian of the fourteenth century." Pollock and Maitland» op, cit,, ii, 649.
'156-157; 185-186.
• 152; 154. One is reminded of Wyclif, 234, Of Servants and Lords: " lordis wolen not mekely here a pore mannus cause & helpe hym in his right, but suffre sisouris of countre to distroie hem but rathere wytholden pore men here hire.'* Quoted by Trevelyan, Wycliffe, 217.
PROCEEDINGS BEFORE THE JUSTICES 71
are convicted, the last stage in the whole process is reached, namely, the imposition of the penally ; but before taking up that question it is more convenient to discover on what clauses of the ordinance and statute the indict- ments are usually based, and to what social and economic classes the delinquents belong.
(3) Clauses of the ordinance and statute most fre- quently enforced^ — Weak as is the ordinance in arrang- ing efficient means by which its provisions are to be en- forced, the provisions themselves stand out lucidly.'
1. All able-bodied men and women, free and bond, without definite means of support, are commanded to accept service if offered them at the rate of wages of the twentieth year of the reign, or of five or six years previ- ous to that year ; lords are to have the first right to the labour of their tenants. This may be called the com- pulsory service clause.
2. Reapers, mowers, and other workmen or servants are forbidden to leave their masters within the term of their contracts, without reasonable cause or permission ; other masters are forbidden to retain servants who have left within the term. This may be called the contract clause.
3. No one shall give or receive higher wages than are
'The main responsibility for the regulation of wages of chaplains is in the hands of the ecclesiastical authorities and is not dealt with in this monograph ; cf, app., 3 and 11-12. Although a few instances of oiFences as to illegal weights and measures have been printed in the extracts selected for the appendix, this whole subject is scarcely touched '
on. I
'App., 8-12. The editors of the Cat, of Close Rolls, ix, translate 1
**8eruiens" by " Serjeant" both in the ordinance (87) and in the writs |
for payment of wages to the justices of labourers (436-437). !
i
I
I
72
ENFORCEMENT OF THE STATUTES OF LABOURERS
customary ; this wages clause applies first to agricultural labourers and servants, and second, to artisans/
4. Reasonable prices are to be charged for all victuals.
5. Alms to the able-bodied are prohibited.
The endeavor of the framers of the statute to be specific and to provide for all possible contingencies results in a rather confused medley of provisions, includ- ing details of administrative method, out of which it is not easy to distinguish the essentials. Leaving aside the question of penalties and of their disposition,' as well as the instructions to the justices for their sessions and their mode of procedure,^ the remaining clauses fall into two main groups, namely, provisions to be observed by the labouring classes and duties to be performed by existing local officials and by the justices in supervision of these officials. In the first group, concrete details are added to the corresponding provisions of the ordin- ance.^
1. Agricultural labourers are described by their occu- pations and their maximum legal wages specified ; their contract of service is to be by the year or other usual term and never by the day ; their service in summer must be in the same place as in winter, with exceptions for labourers of certain districts in harvest time ; they must all take an oath before local officials that they will obey these articles.
2. Three sets of artisans are referred to; for the first
' To the first by the context and to the second by a supplementary clause; in the latter case "givers" are not mentioned. App., 10. Unless otherwise specified the remaining references in this section are to pages of the appendix.
'The nature of the penalties belongs under s. 5 of this chapter and their disposition under ch. iii.
* Already treated in s. i and s. 2. * 13-15.
PROCEEDINGS BEFORE THE JUSTICES
n
set specific wages are prescribed, and for the second, the rates of the twentieth year, both as to wages for their labour and as to prices for their products ; the third set of artisans, and all other workmen, artisans and labourers, and all other servants not specified are to take an oath before the justices that they will obey these articles ; a still later clause describing the powers of the justices mentions workmen, labourers and all other servants, and also hostelers, innkeepers and sellers of victuals and of other commodities not specified.
In the second group it is stated that lords, seneschals, bailiffs and constables are to impose on agricultural labourers twice a year the oaths of good behavior re- ferred to, and to punish delinquents by stocks; the last three sets of officials are themselves to be sworn before the justices to investigate all cases of disobedience to the statute and to report the same at quarter sessions, and arc liable to punishment by the justices for neglect of their duties.'
An examination of the existing rolls shows that occa- sionally the phraseology of the indictment is ambiguous : "he infringed against the statute" "or he was convicted in a plea of trespass,"* but more often the accusation is specific. A few examples must be cited under the var- ious clauses of the law.
Compulsory service clause? A smith will not work for his neighbors but prefers the service of others at a higher than the legal rate ; * several men are vagabonds by night
* 13-15- *M5 and 158.
'For the attitude of the upper courts toward this clause » r/. pt. ii, ch. iii 8. 4.
M65.
74 ENFORCEMENT OF THE STATUTES OF LABOURERS
and refuse to work;' a labourer refuses to work except at double the legal rate ; " a number of men hold only small portions of land and yet refuse to work.^
Contract clause.^ A ploughman departs within the term agreed upon;* after making a contract, a woman refuses to enter the service of her employer;* at the com- mand of the justices a woman is delivered to her master that she may serve out her term ; ' an employer eloigns the servant of another by the offer of higher wages ; • a servant departs within the term agreed upon without reasonable cause.^
A combination of these two clauses with the clause prohibiting departure in summer from the abode of win- ter results in a type of case that reminds one of the later law of parochial settlement. A number of labourers de- part a patria in the autumn ; *"* one labourer departs him- self a patria and persuades others to depart ; " a carpenter enters service extra feodum contrary to the ordinance ; *• a servant departs from her town in the autumn for a larger salary ;'5 a number of women go to another town in the autumn although suitable service is offered them in their native place ; '^ a labourer goes out of the county, leaving his service before the end of his term. '*
Clause as to service by usual terms, A ploughman re-
*I94. *i7i.
*224. Cf. petition quoted pt. ii, ch. ii, s. 4.
* For the attitude of the upper courts toward this clause, cf. pt. ii, ch. ii, s. 5.
^ 185-186; an especially good example of an action brought at the suit of a plaintiff.
•192. '214. *i96. •223,
'• 146-147. "147. "214. "226. "198.
"Printed Wiltshire Roll, 14.
PROCEEDINGS BEFORE THE JUSTICES
75
fuses to serve except by day ; * a labourer will not serve by term but only by day.'
Wages clause. A mower receives I2d. in excess, con- trary to the form of the statute, a carpenter similarly 4od. ; ^ a long list of artisans, their occupations specified, receive wages higher than the rates previous to the plague or higher than those of the twentieth and twenty- first years ;^ household servants are also guilty of re- ceiving excess wages;* employers are occasionally in- dicted ; thus a reeve hires reapers in a public place at an illegal rate,* a mistress gives excess wages to her spin- ning women, and a rector overpays his household ser- vants.^
Price clause. Artisans are frequently indicted for tak-r ing excess prices for their products as well as excess wages ; ^ victuallers of all kinds are taking illegal prices,
>i96.
'224. The petition quoted pt. ii, ch. ii, s. 4, includes a complaint that labourers wish to serve by the day only. A passage in Gower's Vox Clamaniis written soon after the great revolt is so applicable that it belongs here {Complete Works ^ iv). Lib. quintus; cap. ix. " Sunt etenim tardi, sunt rari, sunt et auari. Ex minimo quod agunt praemia plura petunt: Nunc venit hie usus, petit en plus rusticus vnus, Tempore preterito quam peciere duo;
• V • • • •
cap. X.
Hii sunt qui cuiquam nolunt seruire per annum,
Hos vix si solo mense tenebit homo;
Set conventiciis tales conduco dietis,
Nunc hie, nunc alibi, nunc michi nuncque tibi.
Horum de mille vix est operarius ille
Qui tibi vult pacto fidus inesse suo.'*
•163. *i82; 174. *2i6.
•227. ^227. ^152.
i
76 ENFORCEMENT OF THE STATUTES OF LABOURERS
as are also producers of many commodities not specified by the statute. '
It is to be observed that the statute had provided that the justices should exercise their discretion in fixing the winter wages of certain artisans." I find two noteworthy instances where they exercise similar powers, not com- ing under this clause. In one case they establish the rate of the yearly wages of a carter ; ^ and in another, they are ordered by a writ of the king and council to buy up all the linen cloth in their district, — pro certo ptecio per vos ordinate inde soluendo colore commissionis nostre, — and to deliver it to the clerk of the war J robe or ap- pear in person before the council to explain why they had not obeyed the writ.^
In turning to the remaining offences noted in the ses- sional records, the following are important. The oaths taken by labourers to observe the law are frequently mentioned : men who have been sworn in the presence of the justices, break their oaths ; ' one man, on being summoned into court and ordered to swear, refuses to do so.^ The constables report long lists of labourers who are rebellious and refuse to take oaths of obedience to the statutes ; ' their reports vary between two extremes ; all the labourers in their district are obeying the law, or all are guilty of infringements.^ In the matter of the supervision of the local officials, the justices are kept
* 233-234; sec especially the printed Wiltshire roll passim, *I4. ^200.
* Glaus., 31, m. 7, 22 Oct.; " De panno lineo derico magne garderobe Regis liberando.'' The writ is directed: **Willelmo de Surflet et Laurencio de Leek iusticiariis suis ad ordinacionem et statutum de operariis, seruientibus et artificibus in partibus de Holand de comitatu Lincoln' custodienda assignrtis/'
*i7o; 171; igg. •156. ^223-224. "202; 201.
PROCEEDINGS BEFORE THE JUSTICES
77
busy; the constables are very often in mercy for not having their presentments ready, and are often them- selves under indictment for concealing their knowledge of guilty labourers, while the tithingmen are frequently puniihed for their failure to provide stocks/
From this brief catalogue, it is noteworthy that except for the prohibition of almsgiving to the able-bodied, the justices were taking cognizance of every clause of both ordinance and statute ; and it is probable that just at this crisis employers were not very likely to be guilty of almsgiving. The impression conveyed by the variety of offences will, however, be entirely erroneous unless it is pointed out, with all the emphasis possible, that the nuni> ber of labourers presented for the receipt of excess wages and of excess prices is far greater than the total of all the other offenders taken altogether ; in the case of the latter, in each instance, one or two individuals are indicted at a given time ; while in the case of the former, the list of names included in a specific indictment sometimes runs as high as twenty or thirty; in fact, one of the clearest and most voluminous rolls, that for Somerset, contains no example of any other offence than that of the receipt of " excess." Undoubtedly, therefore, the main work of the justices of labourers must be considered to be their endeavor to keep down the level of wages and prices to the rates prevailing before the plague.'
(4) Economic and social status of the delinquents, — Were it not for the phrase liberos used sometimes of the
' 150-152.
'In the choice of my extracts for the appendix I was guided by a de- sire to show examples of all tjrpes of offences of which the justices were taking cognizance; the complete rolls convey an impression of a far greater proportion of offences against the wages and price clauses than do the selections here printed.
78 ENFORCEMENT OF THE STATUTES OF LABOURERS
men eligible for jury duty,* there would be in these eighteen rolls scarcely a shred of evidence to show that the question of freedom versus villeinage was at this date a living issue ; " since, however, in the proceedings before the justices of labourers summoned into a higher court, the point of the case depends precisely on the fact of villeinage,^ the silence of these particular sessional records indicates not that there were no villeins among the de- linquents,— there must have been many, especially among the agricultural labourers, — but that, as far as the actions in quarter sessions went, the effect of the legislation on free and unfree was identical, and that for this reason no distinction between the two categories had to be made by the justices.
Leaving aside for a moment the question of wages and prices, the sessional records show the justices enforcing the remaining clauses of the enactments chiefly against agricultural laborers and somewhat less frequently against artisans and household servants, but in all cases as far as my observation has gone against members of what are technically known as the labouring classes, with no vis- ible attempt to extend the application of the contract clause to other than manual labourers/ It has, how- ever, been already emphasized that the justices were mainly occupied with the task of keeping down wages
* Cf. p. 69.
'Unless perhaps '* extra feodum domini " (app., 214) and the frequent departure ''apatria'* (app., 147) refer to the relation between villeins and their lords; cf, also p. 81, note 2, for the meaning of ** netrix."
^ Cf, s. 7 of this section and pt. ii, ch. ii, s. 6. It will be shown later that actions in the upper courts do involve the issue of villeinage ; un- doubtedly the justices of labourers would have found it difficult to deal with the complicated questions of law raised by such cases.
* This limitation to manual laboiu*ers must be kept in mind in com- parison with what proves to be the attitude of the upper courts.
I'
PROCEEDINGS BEFORE THE JUSTICES yg
and prices ; it is therefore the offenders against these two clauses who must be most carefully studied. The " givers " cannot always be readily identified, but fortunately there are several cases where they are referred to specifically ; e. g.j a master of a house,' a bailiff in search of agri- cultural hands, a reeve,* and employers of various classes of artisans, spinners, tailors, tanners elc, who need serv- ants in their crafts.^ It is with regard to the "takers" that these rolls furnish the most complete information ; the evidence given in a preceding section on the clauses of the legislation enforced by the ;ustices included suffi- cient examples to prove that the takers of excess wages and prices fall into the economic groups indicated by the ordinance and statute, and although my data are not enough for a statistical study, it seems desirable on the basis of my extracts from the sessional records,^ of the printed roll for Wiltshire^ and also of my extracts from the schedules of accounts of penalties,** and of the printed account roll for London,^ to present the following lists, incomplete though they are, in order to give a definite idea of the variety of crafts and occupations represented by the delinquents.' An asterisk indicates those that are specifically mentioned in either or both of the enact- ments. It must be remembered that the ambiguous term serutens is very frequent, with no clue as to the nature
*App., 227. *App., 226-227. ' App., 155. *App., C, I.
^C/. app., 228, for an account of this roll. * App., 332-334; 380.
'For this roll cf. p. 86, note i. )
"Further lists are given in pt. ii, ch. ii, s. 4 in order to show the status of the offenders in the upper courts; moreover, the extracts in the appendix from Ancient Indictments furnish additional instances, in some cases, of crafts not represented in quarter sessions. It must be left for some future investigator to compile on the basis of all these sources really exhaustive statistics.
8o ENFORCEMENT OF THE STATUTES OF LABOURERS
of the occupation, so that a large number of the offenders cannot be classified.
1. Household servants, Seruiens is sometimes ren- dered explicit by context; occasionally famulus and famula occur.
2. Agricultural labourers. Common workmen and workmen are probably to be classed here, both men and women; also labourers and daily labourers; % carter, driver, % harvester, % hoer, % mower (a great variety of terms used to describe the nature of the task), oxherd, X ploughman, X reaper, X reaper of corn, X shepherd, X swineherd, tasker, thatcher, X thresher (a great variety indicated), wood-drawer. Women as well as men among most of these.
3. Artisans,
a. Building trades. X Carpenter, coverer of houses,
dauber, lather, X maker of walls, J mason, paver, J plasterer, sawyer, stonelayer,*J tiler.
b. Clothing trade. Carder, X cobbler, collar-maker,
comber, X cordwainer, X currier of leather, fuller, X furrier, glover, maker of linen cloth, X pelterer, shapestere,' shearman, X shoemaker, skinner, spinner, spinner of wool, X tailor, X tan- ner, walker, weaver, whittawyer. There are many women in the spinning and weaving trade.
c. Various. Collier, cooper, fletcher, furbisher,
maker of baskets and brooms, maker of wheels for drawing water, miner, potter, X smith, tinker, wheelwright.
4. Victuallers. X Baker, X brewer, J butcher, X fish-
^Cf. index of Powell's East Anglia Rising where this term occurs; hit list of " Trades and callings" found in the Poll Tax lists is very valuable.
PROCEEDINGS BEFORE THE JUSTICES gl
monger, t innkeeper, miller, seller of salt, seller of oats, of beer, of mead, of v/ine, tapster, J sellers of victuals in general. There are many women among the brewers and bakers.
5. Unclassified, Carrying of doors and windows, bak- ing of lime, carrying of iron, fisherman, huckster, lighter of churches and houses, pedler," seller of cartwheels, of coal, of lime, of iron, sellers in general.
6. Unidentified, Aquebanilatrix, chickkyn, mele- maker, menbranatory netrixy^ schuppestre, seyner, sun- ycre, tentor,^
A few instances occur where the delinquents can hardly be classed as manual labourers, e, g,y chaplain, clerk, crior, merchant, but include too few individuals to be significant.
It must be emphasized once again that my sources, both the records of the sessions and the estreats of the penalties, represent only a small proportion of the simi- lar proceedings that were going on all over England, and that the extracts in the appendix from which the larger part of the above lists have been drawn represent only a small part even of these sources ; this being the case, it is clear that the justices were dealing with prac- tically every variety of economic class as far as manual labourers were concerned, but with very few individuals above this class, and also that the increase in the price of manual service of all kinds as well as in the price of
*This translation given in the printed Wiltshire roll, 4, as a sugges- tion merely , does not seem very probable.
*Is this the feminine of "netus," a bondman, or is it connected with "neo," to spin?
*I suspect that "caruce '' is understood. The printed Wiltshire roll presents some interesting combinations of occupations; e, g,y collar- niaker and mower, carpenter and fisherman, merchant and fisherman.
82 ENFORCEMENT OF THE STATUTES OF LABOURERS
all commodities had been well-nigh universal. The pen- alties inflicted for the endeavor to obtain this increase must now be considered.
(5) Penalties — Of the confused and complicated sys- tem of penalties indicated by the enactments, a brief sum- mary must here be attempted.' In the first ordinance the following penalties for infringement are mentioned : compulsory service clause^ gaol until security of good behaviour is given ; contract clause^ imprisonment ; agri- cultural wages clause^ for givers and takers the forfeit of double what was paid, promised or received, in excess of the legal rate, to go to the aggrieved party or to any who will sue ; in the case of lords, treble ; artisans^ wages clause^ gaol ; victuallers^ clause^ double of what was paid in excess.' In the second ordinance which has to do only with the wages and price clauses, the forfeit of the ** excess," i, e, of the difference between the legal and the actual rates, is substituted for the greater penalty of the first ordinance and in this case also is to go to the plaintiff, if any sue, and otherwise towards the subsidy.' In the statute, in the case of agricultural labourers, refusal to swear obedience to the articles and breaking of the oath when sworn, are to be punished by stocks or gaol until security of good behaviour is given ; in the case of artisans, the penalties for breaking of their oaths are fine, ransom, and imprisonment at the discretion of the justices. In general, infringement of any clause of the statute is to be punished by these three means, the im- prisonment to last until security for good behaviour be
^The disposition of the penalties is merely referred to here and is treated at length in pt. i, ch. iii.
'App., 9, 10 and 11. I am inclined to believe that this interpreta- tion of the amount forfeited is correct.
' App., 260. For an account of this measure, cf, pt. i, ch. iii» s. i, A.
PROCEEDINGS BEFORE THE JUSTICES 83
provided ; it is also added that the breaking of the oath of obedience shall for the first offence be punished by prison for forty days, and for the second, for a quarter of a year. In the same clause it is likewise specified that the penalty now regularly known as " excess " shall go to the plaintiff if any sue and otherwise to the current sub- sidy as long as it runs and after its cessation to the king.' In order to analyze the different clauses of the legisla- tion and to describe somewhat in detail the status of the individuals who were infringing them, it proved necessary to interrupt the account of the procedure in sessions, leaving the justices face to face with groups of labourers convicted of their guilt.' How, out of the apparent con- fusion of penalties, do they proceed to deal with the de- linquents ? The rolls show that occasionally they employ imprisonment as an actual punishment : for example, an offender guilty for a second time of the receipt of excess wages is adjudged to prison for forty days ; ^ in one in- stance they use the equitable device of delivering to a master to finish out her term a maid-servant who had broken her contract/ There are also frequent references to the use of stocks, a punishment that is often inflicted at the discretion of the constables without the interven- tion of the justices.' The system employed by the latter
*App., 14-16. Cf. Rot, Pari., ii, 227 b for a petition that corporal punishment shall be inflicted on delinquents instead of the hitherto in- effectual fines and redemptions; the statute is said to be in response to this petition, presumably the stocks fulfilling the requirement for cor- poral punishment.
'S. 2. 'App., 184-185. *App., 214.
'*E.g,, app., 169; see also the numerous references in the De Banco rolls; pt. ii, ch. ii, s. 3 and s. 4. The Patent Rolls furnish further evi- dence as to the use of stocks; e. g., a certain Richard de Buckeden of Leighton has been indicted before the justices of labourers in Hunts.
"de CO quod ipse noctanter apud Leighton cum aliis ignotis cippos qui j
I
84 ENFORCEMENT OF THE STATUTES OF LABOURERS
is much simpler than one is led to expect by the summary of the provisions. Their penalties fall into two main groups, fines and ** excess ; " the latter can, of course, apply only to the giving and taking of illegal wages and prices, and since "excess " is equivalent to the difference between the legal and the illegal rates, the amount to be assessed upon each offender is limited by the degree of his offence, very little room being left for the discretion of the justices.* The excess goes to the plaintiff if any sue but with the system of presentments by juries, so commonly used, its disposition is regulated by the statu- tory provision.* Fully as frequent as the penalty of " excess " is the finis or finem fecity applicable, of course, in case of the infringement of any clause of the statutes, including the wages and price clauses.^ It does not represent the modern idea of a fine but is an indefinite sum to be determined by the justices, all the circum- stances of the case being taken into consideration; it really means that an offender, in order to be quit of the consequences of his guilt, must pay whatever the court decides and until he can pay the amount as fixed he must abide in prison unless he can find security for such payment. Very often the offender is able to pay immediately, and if not, he can almost always find pledges acceptable to the court ; it is therefore unlikely that im-
facti fuenint per mandatum nostrum secundum formam statuti predict! in predicta villa de Leigh ton ad delinquentes et culpabiles contra formam ordinacionis et statuti predictorum inuentos in eisdem cippis manci- pandos et saluo custodiendos maliciose et contra pacem nostram fregit et separatim illos in foueam proiecit." 30 pt. i, m. 15, 23 March, " De pardonacione utlagarie. ' '
' In later years, a petition of the commons that the amount forfeited shall be double this difference is refused; Rot. ParL^ ii, 296 a.
'App., 15-16. 'App., 14s, or 230.
PROCEEDINGS BEFORE THE JUSTICES 85
prisonment for a long term was used to any great extent. The estreat rolls show that a delinquent may have to for- feit the excess, or that he may be forced to pay a fine, or that he may incur both penalties/ In the case of actions brought by plaintiffs there are many instances of amerce- ments for false actions and also for failure to continue the suit ; ' sometimes damages are mentioned, and in one instance it is stated that they are assessed by the jus- tices ;3 they would be the normal penalty in actions brought at the suit of plaintiffs on clauses other than the wages and price clauses. There are also many instances where offenders are in mercy and where it is recorded that they are amerced/ Fines and ''excess" are, how- ever, by far the most usual form of penalty, and make up the larger part of the issues of the sessions, described technically in the exchequer as *' fines, redemptions, ex- cess, issues and amercements," ' and belonging, accord- ing to mediaeval custom, to him who had the right to the profits of that particular court. Perhaps the best proof of the all-importance of the wages and price clauses is the relative frequency of the penalty known as excess as shown by the fact that in many exchequer documents connected with the subsidies the phrase excessus opera- riorum has become very common as a description of the money penalties imposed under the statutes of labourers.^ A careful study of the records of fines and of the security given for their payment reveals the curious fact that a culprit who is himself assessed to a fine, which he has not yet paid, and for which he has had to find security^
" Cf, e, g., app., 380; 338; 383. • App., 156 and 157.
'App., 146 and 186. * App., 150.
^ App., 2yZf sind similar documents, passim, * App. , 330, €t passim.
86 ENFORCEMENT OF THE STATUTES OF LABOURERS
is apparently allowed to serve as pledge for another offender in a similar plight ; ' one is led to suspect that the whole matter of security has become an empty form ; possibly the lack of sufficient prisons to hold the con- victed made it necessary to adopt almost any device to meet the emergency.
As far as my examination has gone, the amounts of the penalties are normally within fairly well-defined limits, ranging from several shillings to several pennies, sums be- tween 5s. and 3d. being most usual, but occasionally rising as high as half a mark, 8s. or los." There is at least one instance where an offender was amerced £10 before the justices for refusal to swear obedience to the statute. It seems possible that the amount of this amercement was considered unwarrantable, for three writs were issued by king and council, two to the sheriffs and one to the barons of the exchequer,* ordering the proceedings for the levying of the £10 to be suspended; what the final outcome was I cannot say. In regard to the normal money penalties, it is worthy of note that in the punish- ment for the receipt of illegal wages, if a fine appears as the penalty instead of the " excess," the amount of the fine is apt to be exactly equal to the sum that had been
^ App., 207, and 210; also the estreat roll for London summarized in the Calendar of Letter-Book G,, 11 5-1 18.
'This statement is based not merely on the sessional records but also on various exchequer documents many of which appear in the app. ; see pt. I, ch. iii.
'Claus., 31, m. 10 d, 30 July, **Pro Thoma Gobyon de Lcyndon;" "pro eo quod in quadam inquisicione coram ipsis iusticiariis (Thoma Tirel et sociis suis) nuper capienda iurare recusauit." Ibid,, 32, m. 17 d, 30 May, **Pro Thoma Gobyoun de Leyndon." The county is Essex.
*Mem. K. R., 35, Mich., Breu. Baron., rot. 11; "Pro Thoma Gob- yon," dated 26 Nov., 34th year.
PROCEEDINGS BEFORE THE JUSTICES
87
taken in excess,' so that practically there is no difference between the two forms. It will become apparent later, however, that there was, from the point of view of the income of the exchequer, a motive for sometimes calling a given penalty a fine rather than "excess," and for sometimes doing just the reverse, a motive which can be understood only after a careful study of the disposition of the penalties.*
After the money penalties had been named by the justices in session, whether fines, excess or amercements, and had been duly entered on the estreat roll by their clerk, and after the roll had been delivered to the proper person, collector of the subsidy or exchequer official, the responsibilities of the justices were over ; with the levy- ing of the penalties they had nothing to do. While the total sum of the issues of the sessions affords an excellent means of estimating roughly the number of convictions, and therefore the efficiency of the justices in performing their task, this total must be discussed in connection with the whole question of the disposition of the pen- alties ; but in the meantime, in order to appreciate more thoroughly the problems dealt with by the justices, it must be shown how extortionate in their demands were the offenders whom they were punishing.
(6) Rates of wages and prices, — It is an accepted fact that immediately after the plague there was an extra- ordinary and unprecedented rise in wages and prices ; ' it is also indisputable that an upward movement had begun during the years just before the plague.* An ac-
' App., 205, et seq. 'See pt. i, ch. Hi, s. i, A and s. 2, B.
'Introduction, pp. 4-5. During the actual ravages of the plague prices fell, but only for a few months; Knighton, ii, 62.
* Cunningham, Growth of Efig, Industry ^ i, 335-336: Denton, Ettg. in Fifteenth Century, 107, 2i7-*2]8; Petit- Dutaillis, introduction to R^ville's Soulivement, xxix-xxx; Rogers, Hist, of Prices ^ i, 292.
88 ENFORCEMENT OF THE STATUTES OF LABOURERS
curate estimate of the aims of the statutes in regard to the level of wages and prices will be possible only as a result of a detailed comparison, district by district, of the statutory rates with those prevailing before and after the cataclysm, bearing in mind that for wages the statutory rates were maximum, — where less was usual, less was to be paid,* while for prices the rate was to be " reason- able."' Since the money rate per se has little signifi- cance, such a comparison must include statements as to the relative purchasing power of the various rates of wages. Rogers' figures,^ the best that are in print, apply largely to the south and east of England,* and in view of the wide variation between rates in different localities are useless for other parts of the country. Moreover, since the publication of Rogers' tables, the continuous investigation of manuscript sources, the issue of successive official calendars and lists,^ and the in- creased printing of records,* have all helped to show the abundance of material from which statistics can be de- rived.
Of the sources that I have examined, the most useful for this purpose are the sessional records themselves and the accounts of penalties ; ' but, within the limits of my work for this monograph, it has been impossible to make an exhaustive study of the rates there recorded. Further, full as are these two classes of documents of instances of
*App., 13. 'App., 10.
^Hist, of Prices already frequently quoted.
* Wiebe, Zur Geschichte der Preisrevolutiott , 30-31.
•App., 4*
*Cf, e. g.y such a book as Miss Davenport's Norfolk Manor,
^ Exceedingly valuable also are the counts in the actions brought in the upper courts; £:/. pt. ii, ch. ii, s. 3, and also the presentments in the court of king's bench recorded in Ancient Indictments; cf. app. F, i.
PROCEEDINGS BEFORE THE JUSTICES 89
the receipt of sums beyond the legal wages and prices, the manner in which the offence is entered on the roll often makes it impossible to ascertain the rate of increase over previous siims. Sometimes when the illegal rate per day is specified, there is not a sufficiently accurate description of the occupation of the offender to enable identification of the statutory rate ; ' sometimes there is only the vague phrase, "he received excessive wages," cepti excesstue; ^ frequently it is said that " he received so much, (a lump sum), in excess ;"3 this formula of course tells the net amount of the delinquent's gain and is un- doubtedly employed so frequently because it represents that all-important fact, the amount to be forfeited as penalty, but it gives no clue to the rate of the gain. Even, however, within the narrow limits of information based for the most part on the , extracts of sessional records printed in the appendix there are a few entries so explicit that it seems advisable to call attention to them.
Household servants. A maid servant is given 5s. for half a year instead of 3s. 6d. ;* another has had 30s. a year ; * two men servants are paid 8s. for the winter sea- son, with livery and daily food;^ another man servant receives 6s. for half a year et vnam tuntcam cum capu- chioJ
Agricultural labourers — Common labourers. The stat- utory rate for various agricultural work probably applies to this class; the following rates are all described as
^E.g.f appM 148. Unless otherwise specified the remaining references in this section are to pages of the appendix.
'205, 208; see also printed Wiltshire roll, passim,
'234; printed Wiltshire roll, passim,
^202. *224. •227. ' 193.
yo ENFORCEMENT OF THE STATUTES OF LABOURERS
excessive : i8s. for half a year, ad mensam ; 6d. per day in August, with food and drink; 2d. per day in winter, with food and drink/
Reapers. Statutory rate is 2d. or 3d. per day; they frequently receive sd. and 6d."
Mowers of meadows. Statutory rate is sd. per acre; they are recorded as taking Qd., amounting to 20s. in excess;^ also lod. and 8d. for half an acre, and lod., I2d. and I4d. for an acre.*
Hoers. Statutory rate is id. per day; a woman takes 2d. per day, amounting to I2d. in excess.^
Threshing of com. Statutory rate is 2d. ob. per quar- ter, but in Derby even less must be usual, for it is said that 3d. per quarter for 20 quarters amounts to 2s. in excess.*
Threshing of barley. Statutory rate is id. ob. per quarter ; 8d. is paid for four quarters.^
Artisans. — A dauber takes 3d. per day and food, in- stead of the previous rate of id. and food;* coverers of houses arc receiving double the customary rate ; ^ a serv- ant of a smith, having been sworn to take 8s. a year, received 20s. ; '** a sawyer takes sd. per day, with food, the statutory rate for carpenter, mason and tiler being only 3d. per day ; " a fuller receives double the legal rate to the amount of 3s. 4d. ;" a weaver is paid lA. pro ulna instead of pro tribus ulnis ; '^ tailors take treble the cus- tomary wages.**
Although a great many victuallers as well as sellers of other commodities are indicted, I have found peculiarly
*I72, 267; Assize Roll, Essex, 268; m. 16. *226. *i7i.
* Printed Wiltshire roll, 17-18. ^Ibid., 18. •162-163.
'231. *I94. »i7i. '•170.
" 164. " Printed Wiltshire roll, 12. » 196. »♦ 170.
PROCEEDINGS BEFORE THE JUSTICES 91
few instances where a direct comparison between old and new rates is possible ; in one case sellers of meat and also of wine are described as making profits beyond what is reasonable, and the price of their wine is men- tioned as 2d. per gallon;' in another case it is said that a gallon of beer is sold at id. ob. instead of at id. ;' and in still another, a potter is accused of making alias ereas and selling them ad triplex? It is interesting to find a vicar refusing to perform the marriage ceremony except for what is said to be an extortionate fee of 5s. or 6s.* The incident of the Lincolnshire ploughman really tells the whole story ; he refuses to serve except by the day and unless he has fresh meat instead of salt and finally leaves the town because no one dares engage him on these terms.5
Although emphatically disclaiming the intention of presenting these few specific instances as conclusive proof of a given rate of increase in wages and prices, it is my own belief that they are indicative of the general trend and that the countless cases of the receipt of excess will bear out the high rates just quoted. For once the
'168. •201. *i7o.
*i7i. A contrast to Chaucer's **Frcrc" in the Prologue to the Canterbury Tales:
** He hadde maad ful many a manage Of yonge wommen, at his owne cost."
Verses 212^213.
*C/. Piers Plowman, . A. Passus vii, 295-2Q9:
" Laborers that haue no lond to lieuen on bote hcore honden, Deyne not to dyne a day niht-olde wortes. Moi no peny-ale hem paye ne no pece of bacun, Bote hit weore fresch flesch or elles fisch i— friyet, Both chaud and piuschaud for chele of heore mawe."
C/. Oman, The Great Revolt , 9.
92
ENFORCEMENT OF THE STATUTES OF LABOURERS
chroniclers do not seem to have greatly exaggerated/ nor does one wonder that the "malice of servants" appears to the employers the only appropriate phrase to describe the attitude of the labouring classes.
(7) Supervision of the justices of labourers. — Omitting for the present the control of the justices most system- atically worked out at this period, namely that of the exchequer, which has to do entirely with the question of the money penalties, the other methods of control exer- cised by the central authorities must now be considered.
1. The removal of individual justices and the cancelling of commissions by king and council. It has already been noted that any particularly flagrant conduct on the part of a given justice, if reported to the king and council, sometimes resulted in his prompt removal without re- course to the courts of law.*
2. The issue by royal writs of special commands to the justices and occasionally the appointment of special com- missions of investigation.
3. The ordinary mediaeval system of dealing with the extortion or other misdemeanors of officials.
4. The removal to a higher court, by writ of certiorari^ of proceedings before the justices of labourers.
The power of the crown over the removal of justices has already been treated in some detail and needs no comment here;' further, the interference of king and council with the action of the justices, by means of sup- plementary writs, is sometimes due to the necessity for an interpretation of the relation of the justices to seig-
^ It must however be admitted that the particularly high rates men- tioned by Knighton do not seem to occur very often; cf. pt. ii, ch. ii» s. 3.
'Cy. case of the Surrey justices; p. 96. 'Pt. i, ch. i, s. 3.
PROCEEDINGS BEFORE THE JUSTICES 93
norial rights of jurisdiction and to the profits of jurisdic- tion and can therefore be most profitably treated later in connection with the disposition of penalties ; ' there are, however, other causes for interference which belong here. For example, when a certain abbot complains to the king that at the instigation of some of his rivals the justices in his county had forced his tenants to serve other masters, although he himself had need of their services for the tilling of his demesne lands, the king issues a writ to the justices bidding them supply the abbot with a sufficient number of labourers/ Again, the urgent pleas of the Carthusians of Hinton and of Wytham that, owing to their peculiar situation they are utterly unable to secure workmen, result, in the case of the first, in the permission from king and council to pay wages fixed by contract instead of the statutory rates and in a command to the justices of the county not to interfere ; ^ and in the case of the second, in the permission to hire labourers from the neighboring districts in spite of the statutory prohibition against labourers leaving their place of residence/
It also appears that the justices, when in difficulties, are glad to have the aid and protection of the crown ; on several occasions when their sessions have been broken up by the violent attacks of malefactors, and they
^Cf. pt. I, ch. iii, s. 2, B, and pt. ii, ch. i. 'App., 217-218.
'Pat., 29, pt. 2, m. 4, 5 Oct., ** Pro priore ct fratribus de Henton, ordinis Cartosietisis;" quoted by Gasquet, Greai Pestilence, 1 71-172.
*Pat., 28, pt. I, m. 20, 16 Jan., **Pro priore et fratribus de Wytham;'* also quoted by Gasquet, op, cit, , 170-1 71 . There is a limitation to the use of writs in increasing the powers of the justices; cf, 42 Lib, Ass,, pi. 12; the jurisdiction of the justices of labourers in a certain county had been extended by writ to include champarties elc, and it is decided by the court of king's bench that for such a purpose a writ is illegal and a commission necessary.
94 ENFORCEMENT OF THE STATUTES OF LABOURERS
themselves exposed to danger, either they or their friends complain to the king and council and succeed in obtain- ing the issue of special commissions of oyer and terminer to investigate the trouble and to bring the offenders to speedy punishment.'
Cases of negligence, extortion, and other misdemean- ors on the part of officials come within the cognizance of the justices of the joint commissions' and of the justices of oyer and terminer, in accordance with the regular form of their commissions,^ and also in the ordi- nary course of law come under the jurisdiction of the court of king's bench. Even a cursory examination of these two latter classes of records has shown several in- stances of such cases, either in regard to justices or to the local officials for whom they were responsible ; for example, indictments against justices,* a justice's clerk,* a constable,^ a seneschal and bailiff.' Still more im-
*Pat.» 25, pt. 2, tn. 13 d, 6 July, ** De audiendo et terminando rebel- lionem factam coram iusticiariis Regis;" summarized in Cal,, ix, 138; the justices of Middlesex were actually driven from their sessions at Tottenham. Pat., 26, pt. 2, m. 10 d» 22 Aug., *'De audiendo et ter- minando pro Rege;'* summarized in CaL, ix, 341; certain evildoers assaulted John de Claymond while he was performing his duties as member of the joint commission in Holland and even sought to kill him. Pat., 32, pt. 2, m. 30 d, 30 July, De audiendo et terminando: a violent attack on Lyouns, Harewedon and others while executing their office as justices of labourers in Nortfaants.
* Cf, app., 23 and 25-26.
'C/. e.£^,, Pat., 32, pt. I, m. 24 d, 18 March, ** De audiendo et ter- minando omnes felonias et transgressiones in comitatu Hereford' :" justices are appointed to inquire "de quibuscumque feloniis, transgres- sionibus, conspiracionibus, oppressionibus, extorsionibus, confedera- cionibus, alliganciis iniustis, cambipartiis, ambidextriis, forstallariis, falsitatibus, dampnis, grauaminibus et excessibus.'*
* App. , 264 -266. ^ App. , 241-242.
* App. , 242-243. ' App. , 266.
PROCEEDINGS BEFORE THE JUSTICES
95
portant are the instances for this decade of the removal to a higher court of cases before the justices of labourers ; for, although not numerous, they are significant as to process.' Three out of the four cases involve villeinage as an issue ; two out of these three record picturesque attempts of ambitious villeins to bring actions on the statute of labourers against their masters. The substance of these cases must be dealt with again in a later section in connection with the relation of the labour legislation to villeinage ; ' at present it is the fact of an appeal to a higher authority that is to be considered. The case re- corded in the chronicle of the abbey of Meaux deserves careful study from the point of view of procedure.3 Some villeins bring suit before the justices of labourers against their lord the abbot on the plea that he has eloigned their ploughmen contrary to the statute of labourers; after they had been adjudged in mercy on the ground that the abbot is not bound to answer in an action brought against him by his villeins, they complain to the king that the justices had pronounced an unjust judg- ment against them and claim that they are not villeins of the abbot but of the crown. The king issues a writ summoning into chancery the records of the proceedings before the justices of labourers and also bids the abbot appear in person before him to answer the plea as to ownership ; the chronicler goes on to say that the abbot
'The issue from chancery of writs of certiorari demanding from the justices the records of processes of outlawry that had been carried out by their orders. need not be discussed here; it is the regular course of events before a pardon of outlawry can be obtained from the king. Cf. Fltzherbert, New Natura Brevium; 554, and app., 239 and F, 2.
'Pt. ii, ch. ii, s. 6.
^CAron. de Melsa, Rolls Series, iii, 127-142; quoted by Savine in "Bondmen under the Tudors" in Trans. Royal Hist, Sac, xvii, 254, and by Petit-Dutaillis in introduction to R£ville's Soulh/ement, xxxvii.
ge ENFORCEMENT OF THE STATUTES OF LABOURERS
by means of presents to the chancellor and in spite of the hostile attitude of others of the council obtains per- mission to appear by attorney; the question of the ownership of the villeins was finally tried before the jus- tices of assize and was settled in favor of the abbot.
The two other villein cases are found among the County Placita. In the first, a writ of certiorari had bidden the justices of labourers in Bedfordshire send into chancery a copy of certain proceedings held before them ; ' the docu- ment is endorsed by David de Woll[ore],' who was at this date keeper of the chancery rolls, at the instance of John de Herlyng,3 (usher of the kings' chamber), but I have no clue as to the outcome. In the second, there had been a similar writ to the Surrey justices of labourers ; the endorsement of the transcript of the proceedings is " to the chancellor of our lord the king " * and possibly indi- cates that the final decision was left to the chancellor. It is to be noted that in all these cases judgment had been given by the justices of labourers before the issue of the writs of certiorari.
The fourth case has been mentioned several times ; it is that of the two Surrey justices, de Roulegh and atte Wode by name. After they had been removed from their commission, as a result of complaints to the council,^ their former colleagues in their sessions proceed to bring indictments against them for their misdemeanors as justices ; but before a judgment or a verdict is reached, the court of king's bench issues to the acting justices a writ of certiorari^ summoning before it all the records in the case, and after lengthy proceedings, finally acquits atte Wode, but convicts de Roulegh of the offence for
*App., 244-248. ^Cf, Cal, Close Rolls, ix, index.
^Ibid., loc, cit, *App., 248-250. *See pp. 30-32.
PROCEEDINGS BEFORE THE JUSTICES
97
which he had been indicted in quarter sessions, and fines him heavily. '
The Coram Rege Rolls during the latter years of the reign contain many instances of proceedings before the joint commissioners of the peace and for labourers, sum- moned into chancery by writ of certiorari and then sent by a mittimus into the court of king's bench ; * undoubt- edly with the better organization of the justices of the peace, this method of control of their action became more usual.^ It is characteristic of the English system that no administrative control was provided by the stat- ute of labourers for the justices who were to enforce it ; * and equally characteristic that on the whole the super- vision of the justices by the central government was very steadily exercised ; in turning to the subject of the disposition of the penalties, the thoroughness of the control exercised by the exchequer is still more striking.
' App., 211-213; also p. 41.
'Strangely enough in 41 Lib, Ass, pi. 22, the use of the writ of cer^ tiarari is limited to its issue by chancery; cf,y however, Fitzherbert, op, cit., 554: ** The writ of certiorari is an original Writ, and issueth sometimes out of the Chancery, and sometimes out of the King's Bench.
*Cf, Beard, op, cit,, 154. I print in the appendix one such appealed case although it is of a later date than the decade under consideration.
*Cf. Beard, op. cit., 151: '* In English practice, no special institutions were ever constituted for administrative control or to provide remedies against officers as such."
CHAPTER III
THE DISPOSITION OF THE MONEY PENALTIES ^ UNDER THE
STATUTES OF LABOURERS
That the profits of justice are the essential element in the mediaeval system of law * is clearly illustrated in the per- sistent contest to establish a right to the money penalties under the statutes of labourers, a contest carried on by means of every possible legal technicality.* Normally the issues of courts under the jurisdiction of justices appointed by the central government belonged to the crown, with special pri- vileges for the owners of certain franchises ; but in the case of these penalties, the taxpayers made a notable attempt to assert their right against the crown, while the crown in its turn strove to lessen the share obtained by the lords of franchises.
From the point of view of the disposition of these penal- ties, the decade undef consideration may be divided roughly into two periods of about equal length:* 1349-1354, and 1354-1359, with the first of which the present section deals.
*Thc term **fine" used in my article in the E. H, jR, is not suffi- ciently accurate from the mediaeval standpoint, especially in view of the important distinction made by the exchequer between " fines ** and other forms of money penalties.
' Cf, Maitland, Domesday Book and Beyond , 277-278.
'The contest was not confined to legal means; the instances of mis- appropriation are numerous.
^ Since the first triennial runs through Easter, 1351, while the second does not begin till Easter, 1352, there is, strictly speaking, a year which must be classed with the second period. 98
DISPOSITION OF THE PENALTIES gy
1. Period of the triennial grants of 1348 and 1352; the
claims of the taxpayers
The immediate economic effects of the plague, the fall in rents, the rise in wages, and in prices,^ injured chiefly the taxpayers, who were, for the most part, the owners of land and the employers of labour, and rendered still heavier their burden of taxation already grievous enough because of the costliness of the French war.^ In view of continuous diffi- culties in the collection of the full amount of the taxes, the experiment was tried of applying in aid of the current sub- sidy the money penalties under the statutes of labourers, which, in by far the largest number of cases, must have come from the pockets of the wage-earners.* To the em- ployers of labour there undoubtedly seemed a peculiar fit- ness in the ingenious device to secure contributions from the one class in the community the economic condition of which had been improved by the plague. The scheme was used twice, first in relation to the grant of 1348, and secondly to the grant of 1352; but while the latter measure has attracted some attention, the former has been almost ignored * and must now be described in detail.
A. The tenth and fifteenth of 1348
In the spring of 1348, a tenth and fifteenth were granted by the commons to be paid at Michaelmas and Easter for
'See pp. 4-5, 87-92. Gasquet, The Great Pestilence, 197-198, even claims that the king issued the ordinance for the express purpose of preventing the landowners from making the high wages extorted from them an excuse for their failure to pay their taxes.
*Rot. ParL, ii, 227a; the destruction by the plague of all the inhab- itants of certain towns rendered still heavier the pressure of taxation on the survivors in other districts.
'C/. pt. I, ch. ii, ss. 3, 4 and 5.
* For a brief reference to this earlier attempt, see my article in B, H. ^•. S19-521.
lOO ENFORCEMENT OF THE STATUTES OF LABOURERS
three successive years,* in the manner that had become cus- tomary since 1334.^ The writs appointing the three sets of collectors are identical in form with those of preceding years," but shortly after the issue in the summer of 1349 of the writs for the second year, important supplementary instructions are given to the collectors. The ordinance of labourers framed by the king's council had been proclaimed in June ; in November, as a result of complaints from mem- bers of the community * that the excessive wages extorted from them by labourers, contrary to the ordinance, pre- vented them from paying their share of the subsidy, letters patent were issued to all the collectors * directing them to assess upon labourers the sums received by them in excess of the legal wages or prices, and to levy the same in aid of the subsidy ; • the collectors and their deputies, also bailiffs and constables, (there is no mention of justices) are empowered to imprison obstinate offenders until they re- fund the " excess " and give security for good behaviour. The collectors, when necessary, are to obtain evidence by
^J^oi. Pari., ii, 200 201; first year, Mich., 1348, and Easter, 134Q, previous to the ordinance; second year, Mich., 1349, and Easter, 1350, subsequent to the ordinance; third year, Mich., 1350, and Easter, 1351, the last collection being subsequent to the statute.
•Dowell, Hisi. of Taxation, i, 97; by this time a fixed sum appor- tioned definitely throughout the country.
•Orig., 22, m. 53, Anglia; 23, ms. 52-54. 16 July; 24, m. 22, 20 July.
^*' Ex popular i conquestione;" doubtless expressed through petitions to king and council.
•App., 258 261. The Cal, of Letter -Book F, 199-200, contains the enrollment of the writ for London, '* Qiod operarii capiant stipendia ut solebant et non ultra," and also of a writ to the sheriffs ordering the proclamation of the ordinance of June.
* C/. p. 82 for an analysis of the difference between the penalty here ordained and that of the more famous ordinance; Harrington, Observa- tions upon the Statutes, 207, considers that this *' improper " distribu- tion of the penalties possibly caused the neglect of the measure.
btSPOSITION OF THE PENALTIES loi
sworn inquest and are to have the assistance of the sheriff in enforcing obedience. With the cessation of this tenth and fifteenth, the said " excess " is to be levied in aid of the king per illos quos ad hoc duxerimus assignandos. In- ternal evidence shows that these instructions were drawn up by the king's council * and that they can properly be described as secunda ordinacio.^ It is clear that by this renunciation of what would normally be a source of profit to the crown, the council hoped to conciliate the discon- tented taxpayers; the sequel shows, however, that it had determined to interpret the concession in its narrowest and most literal sense.
The writs of July, 1350, for the collection of the third year of the subsidy," were followed by a repetition of the provisions as to the " excess," addressed as before to the collectors throughout England.* It is, therefore, somewhat