Landholding in England/Chapter 8

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THE great struggles of the Roses, which prepared the way for the House of Tudor as a dynasty, also prepared the way for that House as a form of government. The destruction of the old nobility widened the gap between governors and governed, and the essentially modern genius of the Tudors used the situation created by thirty years of civil disorder and unstable authority, to reduce government to an organised system, every part of which system strengthened the Crown, and allied it more and more with that Civil Law, which is the will of the Prince.

The accession, not of Henry VII., but of Edward IV., marks the beginning of that reign of terror which reached its climax under Henry VIII. For three quarters of a century—from the deposition of Richard II. to the battle of Bosworth, circumstances had been preparing the way for absolute monarchy. It may seem strange that the deposition of a king should have strengthened the Crown, but the explanation is simple—the throne now rested on a military foundation. Henry IV. reigned as an arbitrary sovereign—no one can read the history of his reign without seeing this, though circumstances prevented the fact from becoming too glaringly obvious. He was a usurper, who had obtained the Crown by conquest—the first King of England since William the Norman who had done so. Edward IV. declared that he held by the same right (Rymer, xi. 710). Henry VII. appealed to it—it was indeed the least dubious of his titles; and though Parliament omitted it in the recital of those titles they knew but too well that henceforth all men would hold their lands at the King's pleasure. The question put by the Chancellor to the Judges shows this conclusively.[1] It was the doctrine of that age, that a conqueror could dispossess all men even of their lands,

The quarrel of the Roses was a faction fight—no political principle was involved, as was the case in the great Civil War. It is no doubt true that the country at large concerned itself with the quarrel as little as circumstances permitted. But the consequences were none the less deplorable. Besides all the evils of such a disturbance, so long continued, England was ruled for eighty-eight years by kings whose title was more or less openly challenged by a more or less rightful heir—or, worse, by an impostor. For fifty of these years the House of Lancaster maintained itself, in spite of conspiracies and insurrections. Then came sixteen years of civil war, with twelve pitched battles—battles in most of which only a few thousands of each side took part, but which were very fatal to the noble families who cast in their lot with the White or the Red Rose—and in that quarrel it was impossible for any great family to stand aloof. And whatever may be said of the little interest the country took in the business, it was profoundly impressed by the miseries it caused, for Henry VIII. could never have established the despotism he did, but for that dread of a disputed succession, to which he never appealed in vain.

Thus, the Wars of the Roses had destroyed the only class able to resist the pretensions of the Crown. Not until Edward IV. governed by fear were men put to death for words spoken, suggesting a doubt of the King's title, even though the Judges might give their opinion that there was no evidence of treasonable intent. Only the spectre of a renewed civil war could have made Englishmen submit to such a reign of terror. What battle had begun, attainder completed, and Richard III. carried on the work of destroying the men great enough to be formidable.

Then came Henry VII.—the most astute prince of the most astute royal house that ever sat on the throne of England. He was determined there should be no more "king-makers"—great barons who could march against him with 4000 armed retainers. A good many had been killed off in the Wars of the Roses, or had perished on the scaffold, as one or other faction triumphed. The rest he meant to rule by the law, and to rule the law by the lawyers. He had creatures—Empson and Dudley—ready to do his will. He kept within legality. Bacon says it was his plan to rule the people by the laws, and the laws by the lawyers. He elevated the Star Chamber into a legal tribunal, till it became the greatest instrument of arbitrary power that ever sovereign had. He caught men "with slumbering laws"; his ministers were "lawyers, lawyers in science, and privy counsellors in authority," and "turned law and justice into wormwood rapine." No man knew when he had offended. "Their principal working was upon penal laws, wherein they spared none, great nor small; nor considered whether the law were possible or impossible, in use, or obsolete."[2] He obtained the reputation of "a merciful prince"; but "the less blood he drew, the more he took of treasure." And "as some construed it," this was because he dared not take both blood and treasure.

He had reigned nineteen years before he enacted his own Statute of Liveries, but there were many former statutes to be revived—of Richard II., Henry IV., and a very stringent one of Edward IV. These statutes—sometimes called " of Maintenance," forbade, under heavy fines, the putting retainers—not actual servants—into livery. During the French wars of Edward III., it was rather a convenience to the King that great nobles should maintain what was in reality an independent soldiery. But this had ended in every great noble being the leader of a little army. At first these little armies had been composed of tenants, who in times of peace returned to their farms, but in course of time, and especially when the long French War made war chronic, the barons had great companies of retainers whose only trade was fighting. There are statutes of the reign of Edward III. which complain that such companies—clad in some great man's "livery"—ride armed about the country, and commit depredations, even in time of peace. They had degenerated into something not far removed from banditti.

Henry VII. put down this nuisance, but he did so in the worst way possible. By his time, the great lords had almost absorbed the "freemen," the liberi homines, whose ancient rights the Conqueror had confirmed; and one way or another, had converted soccage into military service. Their tenants held by them by that service, and now that their right to arm their tenants was taken away, they demanded rent in money. Moreover, the tenants, since they could no longer be armed, lost half their value — and sheep-farming had come up, and wool paid well, requiring only a few shepherds to look after thousands of sheep. So landlords began to enclose. "Then commenced a struggle of the most fearful character. The nobles cleared their lands, pulled down the houses, and displaced the people. Vagrancy, on a most unparalleled scale, took place" (Fisher, "History of Landholding in England," p. 54).

Bacon says:

"Inclosures at that time began to be more frequent, whereby arable land, which could not be manured without people and families, was turned into pasture, which was easily rid [worked] by a few herdsmen; and tenancies for years, lives, and at will, whereupon much of the yeomanry lived, were turned into demesnes. [That is, were now to be held in capite.] This bred a decay of people, and, by consequence, a decay of towns, churches, tithes, and the like. The King likewise knew full well, and in no wise forgot, that there ensued withal upon this a decay and diminution of subsidies and taxes ; for the more gentlemen, ever the lower books of subsidies." Henry saw he had outwitted himself; so there were enactments for keeping lands in tillage, and keeping up of dwelling-houses. Moreover, the King saw that he would never get a good infantry out of men "bred in a servile or indigent fashion," and that if husbandmen and ploughmen "be but as the workfolke and labourers of the gentlemen, or else mere cottagers, which are but housed beggars, you may have a good cavalry, but never good stable bands of foot" ("History of King Henry VII.," 70, 71).

So now the King tried to restore the people to the land. If he had done it by re-establishing the "freemen," by converting the holdings of the men-at-arms into allodial estates, held direct from the Crown, he would have created a number of small estates, and there need have been no evictions. Bacon, who praises the ordinance that "all houses of husbandry, that were used with 20 acres of ground and upwards," should be kept up for ever, with a competent proportion of land, says that it "did wonderfully concern the might and mannerhood of the kingdom, to have farms … sufficient to maintain an able body out of penury … yeomanry or middle people, of a condition between gentlemen and cottagers or peasants." The small tenants had not the capital necessary for sheep-farming, but they could have lived off the land. And the lords would have been no worse off, because they were now relieved of the great charges of livery and military service. But Henry relieved the lords from a charge, and at the same time made it possible for them to evict their tenants altogether. This was the second wrench given in getting the people off the land.

The depopulating effect of enclosure is shown by the famous Act, 4 Henry VII. (1487) to forbid the taking of more than one farm by one tenant in the Isle of Wight, The Act says that the safety of the realm depends on the coast towards France being well inhabited. The Isle is lately "decayed of people." "Many towns and villages have been beaten down"; it is "desolate," only inhabited by beasts, laying the kingdom open to the King's enemies. The depopulating effect of enclosure is thus acknowledged by an Act of Parliament. And immediately we have another Act against "vagabonds." The two things go together—Acts complaining of the clearing off of people, and Acts complaining of vagabondage. Where were the people to go, and what were they to do?

The rapacity of Henry VII. greatly affected the tenure of land. Bacon says that towards the end of the reign, Empson and Dudley[3]—the two men who carried out his schemes—ceased "to observe so much as the half-face of justice." They did not even proceed by indictment, but examined men themselves, sometimes at their private houses. And now they began to "enthral and change the subjects' lands with tenures in capite, by finding false offices"—that is, feigned and invented duties. So they made them pay for the seven incidents to which tenures in capite were liable.[4] The last vestiges of the Saxon system were vanishing.

  1. In the first year of Henry VII.—upon the Act which declared that the Crown should "rest and remain with the King," according to the 7 Henry IV., whose title was known to rest on conquest—the question was put to all the judges, "Whether the liberties and rights of the people would be thereby resumed?" "And it was said that it would not be so." But no reasons were given, and the brief entry in the Year Book reads as though it was felt that the less said the better. There was none of that setting forth of the rights of Englishmen of which there are so many examples in earlier times.
  2. Bacon, "History of King Henry VII."
  3. "Dudley was of a good family, eloquent, and one that could put hateful business into good language. But Empson, that was the son of a sieve-maker, triumphed always upon the deed done, putting off an other respects whatsoever. 'Dudley was the father of John Dudley, Earl of Warwick and Duke of Northumberland, who for a time had supreme power under Edward VI."—Bacon.
  4. Aids, relief, primer seizin, wardship, marriage, fines for alienation, and escheat. Primer seizin was the sum demanded of an heir who inherited when of full age. The orphan heir of a tenant in capite while under age became the ward of the feudal lord, who could sell his ward's marriage. (See the "Paston Letters.") Escheat, or "falling in," meant the reversion of lands in capite to the feudal lord, when a tenant died without heirs of his blood, or when his blood was "corrupted" by attainder.