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Bastard Feudalism RevisedAuthor(s): P. R. CossReviewed work(s):Source: Past & Present, No. 125 (Nov., 1989), pp. 27-64Published by: Oxford University Press on behalf of The Past and Present SocietyStable URL: http://www.jstor.org/stable/650860 .Accessed: 23/01/2012 19:41

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BASTARD FEUDALISM REVISED* The term "bastard feudalism" may have been coined by Charles Plummer, but the concept as it is generally understood today is very largely the creation of K. B. McFarlane. Hence any reconsideration of its value must proceed via the seminal essay of 1945 in which he argued for the retention of the adjective "bastard", not in the sense of"misbegotten, debased, corrupted, degenerate", but as "having the appearance of, somewhat resembling". Thus "bastard feudalism" was to be utilized as a "label to describe the society which was emerging from feudalism in the early part of the fourteenth century, when most if not all its ancient features survived, even though in many cases as weak shadows of themselves, but when the tenurial bond between lord and vassal had been superseded as the primary social tie by the personal contract between master and man". During the two centuries which followed the death of Edward I "the new order of patronage, liveries and affinities occupied the front of the stage . . . with an epilogue which far outran medieval times. It is this new order that we call 'bastard feudalism'. Its quintessence was payment for service". l

For McFarlane, then, the heart of bastard feudalism was the replacement of the tenurial relationship by the cash nexus. All other features of its social order flowed from this or were inherited from the parent form. The new contract relationships were enshrined in a new diplomatic; its characteristic instruments were the indenture of retainer and the letter patent, creating not hereditary tenants but feed retainers (generally for life) and pensioners for a term of years.2 Despite having initial doubts in some areas, and while acknowledging

* I would like to thank Simon Lloyd for his kindness in reading a draft of this essay and for suggesting numerous improvements.

' K. B. McFarlane, "Bastard Feudalism", Bull. Inst. Hist. Research, xx (1945), pp. 161-80; repr. in England in the Fifteenth Century: Collected Essays of K. B. McFarlane, introd. G. L. Harriss (London, 1981), pp. 23-43. All citations are to the latter.

2"There thus came into existence between a great lord and those who actually cultivated his estates a class of pensioners resembling the mesne tenants of the old feudalism. By this method many who had no tenurial connection with their patron were at least given a territorial one". "Over and above his indentured retinue (the hard core as it were of his affinity), a great man therefore was the patron and paymaster of a swarm of hangers-on, both men and women, not bound to do him exclusive service but in receipt of his bounty in ways both more and less permanent" (ibid., pp. 29-30).

28 NUMBER 1 25 PAST AND PRESENT

that the "bond which kept these masters and men together was not a sealed parchment but a calculation of mutual advantage to which that document bore witness", McFarlane tended to agree with N. B. Lewis that the indenture system had "a steadying influence in a society where old institutional loyalties were breaking down".3 Per- fectly aware of the evils which persisted within the bastard feudal order, primarily the abuse of livery and maintenance, he none the less held to the view that these were not themselves a prime cause of disorder and that this society was no more disordered than the feudal order which preceded it.4 As far as political consequences were concerned, he declined to accept the view that bastard feudalism was to blame for defects of government or for the Wars of the Roses. These were the results of the failures of kingship. Only an under- mighty king need fear an over-mighty subject, in that most famous retort.5 It was, in part at least, as a reaction against older and cruder formulations about the nature of, and motivation for, later medieval conflicts, that McFarlane developed a somewhat roseate picture of that society in general, and of its aristocracy in particular.6

McFarlane's formulation has proved remarkably enduring. As J. G. Bellamy has recently said, "The quality of the debate engen- dered, and the incontrovertible fact that so many aspects of late- medieval English life were intertwined with bastard feudalism . . . has produced over the last thirty years a cohesiveness in investigation and a level of academic writing which can be regarded as a particularly creditable episode in English historical scholarship".7 What is particularly striking is the degree of unanimity which has been expressed. For this several reasons might be adduced, but the most important are, assuredly, the force and coherence of McFarlane's vision and "the seminal quality of his insights".8 He was, indeed, a great pioneer. In his perceptive introduction to McFarlane's collected essays, G. L. Harriss demonstrates not only how McFarlane continued to refine

3 Ibid., pp. 36, 39; N. B. Lewis, "The Organisation of Indentured Retinues in Fourteenth-Century England', Trans. Roy. Hist. Soc., 4th ser., xxvii (1945), p. 39.

4 "Maintenance was after all no novelty. The novelty lay in its being talked about, denounced and legislated against. It was in fact being measured by men with a higher conception of public order": McFarlane, "Bastard Feudalism", p. 42.

5 K. B. McFarlane, "The Wars of the Roses", Proc. Brit. Acad., 1(1964); repr. in England in the Fifteenth Century, introd. Harriss, p. 238.

6 For the influences upon McFarlane, see the introduction by J. P. Cooper to K. B. McFarlane, The Nobility of Later Medieval England (Oxford, 1973).

7 J. G. Bellamy, Bastard Feudalism and the Law (London, 1989), p. 3. In what follows I am particularly indebted to this most useful work.

8 England in the Fifteenth Century, introd. Harriss, p. ix.

29 BASTARD FEUDALISM REVISED

and develop his views right up to his death, but also the extent of his influence upon the current state of the art, as it were. Some of his less firmly held hypotheses subsequently proved untenable, but the overall interpretation of later medieval society which he offered has not been dented; on the contrary, it has been much strengthened.

Much of the subsequent research has concentrated on how this social order actually functioned; upon the constitution and articu- lation of the affinity, for example.9 As far as magnate power is concerned, it has become clearer than ever that the prime concern lay with the maintenance of control within the great lord's own "inheritance" and within his own "country", and that his interest in the centre was most often in furtherance of this. As far as the members of the gentry are concerned, they were drawn into the affinities in search of patronage and protection. The strong majority verdict is that indenture and affinity were forces for cohesion, the society itself essentially stable. The perversion of justice and the parading of retainers remain undeniable features of that society, but they were not the fault of the institutions of bastard feudalism themselves. To McFarlane's own emphases in explaining the tendency to disorder and political conflict which was sometimes manifested-royal inadequacy, higher expectations, better survival of records there has been added a growing emphasis upon the inadequacies of the law itself and of the legal system. The burgeoning interest in arbitration has stressed not only the potentially stabilizing factor of magnate regulation of disputes, but increasingly its role in compensating for the failure of the common-law courts themselves and indeed in effectively supplementing them. 10 Problems with livery and maintenance certainly occurred, and contemporaries were outraged when the system was abused; but these (it is averred) were not the fault of the system itself.

To a large extent the discussion here has been conducted within the parameters which McFarlane himself determined. Thus, for example, the question of whether this era was more unstable, more criminous than its predecessor has remained a vital question, sometimes in the forefront but more often in the background. The heavy

9 Among the best-known studies are C. Carpenter, "The Beauchamp Affinity: A Study of Bastard Feudalism at Work", Eng. Hist. Rev., xcv (1980); M. Cherry, "The Courtenay Earls of Devon: The Formation and Disintegration of a Late Medieval Aristocratic Affinity", Southern Hist., i (1979). Studies on and around the subject of bastard feudalism are by now legion. I hope scholars will forgive me if I am sparing n my c1tatlons.

10 See below, pp. 55-6, nn. 89, 93.

30 PAST AND PRESENT NUMBER 125

concentration on the fourteenth and fifteenth centuries has been retained, indeed deepened) with an occasional backwards glance into the thirteenth century and beyond, either in continued pursuit of the last point or with an eye to antecedents. There have, of course, been detractors. J. G. Bellamy, in particular, has argued consistently that the age of"bastard feudalism' was relatively disordered) while R. L. Storey developed an attractive thesis which emphasized the role of the affinity in the descent towards civil war during the fifteenth century. 11 Even these scholars, however) have largely operated within the framework which McFarlane dictated.

There aren however, some serious problems with the McFarlane formulation of bastard feudalism, and it is these I wish to explore in the first part of this essay, before moving on to offer a revised interpretation and to explore some of its implicaiions for our understanding of later medieval society.

At the outset it is necessary to decide whether the term should properly be used to designate an entire social order or whether it should refer more narrowly to a set of institutions operating within society. A lack of clarity in this respect often leads to conceptual looseness. However, M^cFarlane himself makes it perfectly clear that he is talking of the society as a whole, and this will be followed here: "If 'bastard feudalism' is understood not as a kind of feudalism) however modified) but as something essentially different whilst super- ficially similar) then it aptly describes the social order in England in the two centuries following the death of Edward I" 12 To this G. L. Harriss perceptively adds, "Subsequent research has perhaps tended to reverse this judgement, seeing it as an adaptation of the forms of feudalism rather than as the manifestation of a radical change in social organization''.l3 We are led, then, to a second question: should we envisage bastard feudalism as a separate category at all or should we see it rather as a subcategory, as one type of feudal order?

These questions are very much bound up with the problem of origins. As is well known, McFarlane originally saw bastard feudalism as stemming from military considerations, prompted specifically by the demands made by Edward I for contract armies in order to fight

11 J . G. Bellamy, Crime and Public Order in England in the LaterMiddle Ages (London and Toronto, 1973); R. L. Storey, The End of the House of Lancaster (London, 1966).

12 McFarlane, "Bastard Feudalism", pp. 23-4. 3 England in the Fifteenth Century, introd. Harriss, p. ix.


his Welsh and Scottish wars. There was every reason why he should take this line, for his approach to bastard feudalism was predicated upon a view of feudalism itself which centred upon the fief. 14 More specifically, he was following the orthodox Round/Stenton line which held that, as far as England was concerned, the origins of the system lay with William I's arrangements for the organization of the feudal host. It was a natural extension of this to see the new system as stemming from similar imperatives, given the work of J. E. Morris on the Welsh wars, the early work on contract armies and the observed inadequacy, by the thirteenth century, of the feudal host as a means of putting an army in the field.l5 McFarlane was aware that the late thirteenth-century contract system had antecedents, but recognized a change, both quantitative and qualitative, during the time of Edward I. By 1966, however, he had apparently come to the realization, as had others, that the impetus towards retaining stemmed more generally from the great lord's need for service, rather than specifically from his need to contribute to a national army.l6 This, however, does not appear to have seriously affected his perspective, nor to have prompted any revision of the central formulation of bastard feudalism. This still hinged on retinue and indenture, just as the concept of feudalism itself had hinged on knight service and the fief.

The difficulties in the way of a military explanation of the origins of bastard feudalism are by now very much greater. They are worth more than a passing glance, for they point to very serious problems of chronology. First, it is now realized that significant though the developments of the reign of Edward I may have been, they were by no means as revolutionary in the military sphere as had been supposed. Michael Prestwich has shown that despite this king's considerable use of contracts, his army was recruited in reality upon mixed lines, and that the fully contractual army had to wait until the opening years of the Hundred Years War.l7

14 "Feudalism, if it is to have any recognisable meaning, implies the organisation of society upon a basis of tenure. In a feudal society the principal unit is the fief, an 'estate in land (in England always a heritable estate) held on condition of homage and service to a superior lord"': McFarlane, "Bastard Feudalism", p. 24.

15 J. E. Morris, The Welsh Wars of Edward I (Oxford, 1901; repr. 1968); A. E. Prince, "The Indenture System under Edward III", in J. G. Edwards et al. (eds.), Histoncal Essays in HonourofRames Tait (Manchester, 1933), pp. 283-97; A. E. Prince, "The Strength of English Armies in the Reign of Edward I", Eng. Hist. Rev., xlvi (1931), pp. 353-71. See also J. F. Willard and W. A. Morris (eds.), English Government at Work, 1327-1336, 3 vols. (Cambridge, Mass., 1940-50).

16 England in the Fifteenth Century, introd. Harriss, p. xi. For the views of J. M. W. Bean on this point, see below, pp. 33-4.

17 M. Prestwich, War, Politics and Finance under Edward I (London, 1972), esp. ch. 2.


Secondly, contractual troops antedated Edward's reign. In 1963 Richardson and Sayles argued that contracts for military service must have had a continuous history from at least the twelfth century and pointed to a surviving contract from 20 July 1270 by which Adam of Jesmond agreed to serve the lord Edward with five knights for one year during his forthcoming crusade. "The contract does not look in the least like a novelty but, on the contrary, it has every appearance of being in common form, and we can hardly doubt that other troops of knights who accompanied Edward entered into similar contracts". 18 More recently Simon Lloyd has demonstrated most clearly that the written contract provided the backbone of the English crusade of 1270-2, and has located it within the context of contemporary French practice. In addition to the evidence of, and for, the contracts themselves, there are already clear traces of the process of subcontracting which was their essential concomitant. Most of these arrangements were short term and in this one important respect they differ from the later indentures for life service. However, at least one agreement for life, that between Thomas de Clare and Nicholas de Sifrewast, did in fact occur.l9

In effect, Edward's crusading army comprised a temporarily expanded household force, recruited by means of written contract, as indeed were those of Louis IX himself. Moreover, in so far as he was preparing for an expedition by expanding his household forces, Edward was merely following traditional practice; the nucleus of Henry III's forces had been provided in just this way, and had been maintained by a mixture of fees, gifts and wages, as it was to be under Edward I.20 Neither was this a new feature in the thirteenth century. Bryce D. Lyon's studies of the fief-rente pointed to the existence of contract troops, operating as an extension of the household, as early as the time of Henry I and quite possibly in the time of the Conqueror himself;2l while J. O. Prestwich argued that already in the Anglo- Norman period the familia regis "supplied the standing professional

18 H. G. Richardson and G. O. Sayles, The Governance of Medieval England from the Conquest to Magna Carta (Edinburgh, 1963), pp. 463-5.

l9 S. D. Lloyd, "The Lord Edward's Crusade, 1270-2: Its Setting and Significance", in J. Gillingham and J. C. Holt (eds.), Warand Government in theMiddleAges: Essays in Honour of . O. Prestwich (Woodbridge, 1984), pp. 120-33. See also the same author's English Society and the Crusade, 1216-1307 (Oxford, 1988), esp. ch. 4.

20 This was established by R. F. Walker, "The Anglo-Welsh Wars, 1217-67" (Univ. of Oxford D.Phil. thesis, 1954), esp. pp. 67-81. See also Lloyd, "Lord Edward's Crusade", p. 128; Prestwich, War, Politics and Finance under Edward I, ch. 2.

21 B. D. Lyon, From Fief to Indenture (Cambridge, Mass., 1957).


element) capable of fighting independent actions and, for a major campaign, providing the framework into which other forces could be fitted".22 In 1981, in a justly famous essay, the latter considerably extended his own and others' work to show conclusively that the military household did indeed play the central military role under the Anglo-Norman kings, that its members were directly supported, that it provided a ladder of worldly success, and that it was "remarkably heterogeneous in its composition, both socially and geographi- cally". Although the majority would indeed have consisted of those professional knights of low status to whom Sally Harvey has drawn our attention, there were certainly many of higher status, sons even of great men. Most important of all, in these, as in many other respects, there was considerable continuity between the royal household of this age and that of the time of Edward I.23 "The Anglo- Norman military forces were not then so different in structure from those of Edward I as historians have often represented them. In both, the king's military household supplied the standing professional element, capable of acting independently and, for major campaigns, of rapid expansion. The so-called indenture system was no innovation of Edward I's reign: its essential features were already established household custom, mosfamiliae regis, by the beginning of Henry I's reign" 24

Both contracts and contracted troops were important features of royal armies well before the period in which McFarlane saw the beginnings of bastard feudalism. What, then, led to the extension of contracts into civilian life? One alternative approach to the origins of the institutions of bastard feudalism would take us to the history of the aristocratic household itself rather than specifically to the provision of military service to the king. Such an approach was in fact taken by J. M. W. Bean in his study of the "bachelor" and the retainer.25 Basing himself upon fourteenth-century evidence in the first instance, Bean argues that the bachelor was "a special kind of retainer associated, whatever the precise provenance of the payments made to

2t J. o. Prestwich, "Anglo-Norman Feudalism and the Problem of Continuity", Past and Present, no. 26 (Nov. 1963), pp. 50-1.

23 J. o. Prestwich, "The Military Household of the Norman Kings", Eng. Hist. Rev., ccclxxviii (1981), pp. 2-35. See also M. Chibnall, "Mercenaries and the familia regis under Henry I", History, Ixii (1977).

24 Prestwich, "Military Household of the Norman Kings", p. 33. 25 J. M. W. Bean, "Bachelor and Retainer", Medievalia et Hutnanxsttca, new ser.,

iii (1972), pp. 1 17-31 .

34 PAST AND PRESENT NUMBER 125 him, with service in the household, and enjoying a more intimate relationship with his lord than did other knightly retainers who did not have his status".26 The thirteenth-century evidence tends towards the same usage, although it is less clear cut. As to the origin of the term, it comes of course from those young, landless or near landless, and generally unmarried, warriors who were tradttionally sustained in households. The term, he argues, was kept even when the bachelors were given land, as long as they still attended the lords in their households. He suggests that such men were already being given fees from landed estates during the thirteenth century, if only we had the sources which would permit us to see this. In fact a modicum of evidence is now coming through which suggests precisely this;27 and it may well help to explain how many of those lesser knights (milituli) of twelfth- and early thirteenth-century England were being sustained.28 Stressing the importance of the household allows one to argue for the essential similarity of the practices of Anglo-Saxon war- lords, Anglo-Norman barons and fourteenth-century magnates. As to some of the "evils" of bastard feudalism, livery can be shown to be quite ancient one only needs to think of Lady Stenton's famous north-country robber of the 1218 Yorkshire Eyre who clothed his fifteen followers in one livery "as if he had been a great lord" while McFarlane himself argued that maintenance must have been as old as lordship itself, and undoubtedly figured in Anglo-Saxon England.29 Does this mean, then, that there is little real difference between these societies and that the term bastard feudalism could apply equally well to Anglo-Saxon and Anglo-Norman England? Apparently not, for what we have here, it is argued, are antecedents, not the fully fledged retinue of the bastard feudal order. For this to have emerged there must have been some additional stimulus. What could this have been? Bean, having himself successfully disposed of the view which traced the indenture to changes in the land law, pre-eminently to 26Ibid.,p. 123. 27 See G. G. Simpson, "The Familia of Roger de Quincy, Earl of Winchester and Constable of Scotland", in K. J. Stringer (ed.), Essays on theNobility of Medieval Scotland (Edinburgh, 1985), pp. 117-18; S. L. Waugh, "Tenure to Contract: Lordship and Clientage in Thirteenth-Century England", Eng. Hist. Rev., cccci (1986), p. 829. 28 p. R. Coss, "Knighthood and the Early Thirteenth-Century County Court", in P. R. Coss and S. D. Lloyd (eds.), Thirteenth-Century England, ii (Woodbridge, 1988), pp. 53-4. The subject is dealt with more fully in my book, Lordship, Knighthood and Locality: A Study in English Society, c.1180-c.1280 (forthcoming). 29 Rolls of theffustices in Eyre for Yorkshire in 3 Henry III, ed. D. M. Stenton (Selden Soc., Ivi, 1937), pp. xxxviii, 424; England in the Fifteenth Century, introd. Harriss, p. x.


those produced by the Statute of Quia Emptores of 1290, falls back in the end upon the wars of Edward I.30 What changed was that there now appeared a new set of military requirements from the crown, which the lords could not supply by reference to their households alone. However, their normal household needs remained, so that what was required was a more flexible system which would accommo- date both. The result was that "In 'bastard feudalism' new forms of the relationship between lord and man were created; but an older one, commemorated in the 'bachelor' was incorporated within the new . .".31

More recently, Scott L. Waugh has come to rather similar conclusions by means of a detailed study of the use of contracts entered into by lords and clients, for the provision of service of various kinds, during the thirteenth century.32 They were determined, broadly speaking, by the great lords' administrative needs: "These contracts . . . represent the first efforts by lords to refine a system of retaining service that would avoid the liabilities of feudal tenere while preserv- ing its particular logic of conditional reciprocity. The characteristics of these early deeds lifetime associations, the conditionality of rewards, written instruments, and rewards other than land-set the pattern for indentures of the fourteenth and fifteenth centuries".33 As a result, when Edward I placed new military demands on the lords they had no need to invent a new system of contracts; all they needed to do was to adapt the system of contractual retaining which they had already developed for administrative service. As its military usage became more widespread, Waugh argues, the legal and administrative origin of the contract became obscured.34

Both of these writers would prefer to regard their findings as in the nature of bastard feudal antecedents, and to accept the formulaiion and the chronology urged by McFarlane. His interpretation has become so standard that it is extremely hard to resist. If the bastard feudal order took shape around the indentured retinue, and was essentially in place by the death of Edward I, are we then to conclude that it was simply longer in gestation than we had previously thought?

30 J. M. W. Bean, The Decline of English Feudalism, 1215-1540 (Manchester and New York, 1968), pp. 306-9. For this view, see T. F. T. Plucknett, Legislation of Edward I (Oxford, 1949), pp. 107-8; G. Holmes, The Estates of the Higher Nobility in Fourteenth-Centuty England (Cambridge, 1957), p. 83.

31 Bean, "Bachelor and Retainer", pp. 126-7. 32 Waugh, "Tenure to Contract", pp. 811-39. 33 Ibid, p. 824 34Ibid.,p.837.

36 NUMBER 125 PAST AND PRESENT

In fact, however, it was not only in terms of service and contracts that the McFarlane world of bastard feudalism was anticipated during the thirteenth century. In a well-known study J. R. Maddicott traces the history of the retaining of justices and civil servants, from the earliest known instances in the 1230s and 1240s.35 Although these examples are monastic, there is no reason to suppose that there were not parallels with the lay barons. "The customary granting to justices of fees and robes from private patrons marked the formation of new and stronger ties between members of the two classes . . . They presupposed a world in which magnates were such frequent litigants or so frequently in need of favour and professional advice that they found it worthwhile to have justices always on their books. This was the world of the thirteenth century rather than of the twelfth . . . and of the early part of that century as well as of the later. The occasional assumption that the practice of retaining justices developed, as bastard feudalism itself seems to have developed, only in Edward I's reign is hard to substantiate. It is more likely that it had been brought into being by the middle years of Henry III as a result of new needs and pressures which were then coming to bear upon landlords".36

Thus recent work on the thirteenth century may well prove more injurious to the McFarlane perspective than the conclusions of some recent writers might lead one to suppose. It is worth recalling that much of the explicit work on bastard feudalism has remained within the period where McFarlane's own interests primarily lay, that is to say in the fourteenth and fifteenth centuries. The consequences of this have been compounded by a comparative neglect of the thirteenth century in the recent past, at least as far as its political and socio- political history is concerned. The result has been to maintain the Powicke/Treharne perspective with its high-flown debts to consti- tutional history. Thus the politics of the thirteenth century have appeared to have little bearing upon the issues which McFarlane and his followers were attempting to confront. This neglect of the thirteenth century is currently being remedied, and some of the findings here also tend to undermine McFarlane's understanding of bastard feudalism, if not to deal it a mortal blow.

The current thoroughgoing re-examination of the thirteenth-century political scene is revealing for us what has been obfuscated in the past by rather grandiose, not to say grandiloquent, treatment of

35 J. R. Maddicott, "Law and Lordship: Royal Justices as Retainers in Thirteenth- and Fourteenth-Century England", Past and Present, supplement no. 4 (1978).

36 Ibid., p. 4.

BASTARD FEUDALISM REVISED 37

the contemporary conflicts. Those barons who took action against the king in 1258 were not seeking essentially to rescue the country from the consequences of the king's incapacity nor to run the country disinterestedly for the community of the realm. The movement was born of a split within the ruling caste, the result of rivalry for influence with the king and for control of royal patronage.37 As David Carpenter has succinctly put it: "In 1258 it was essentially a group of curiales, comprising native barons, Simon de Montfort, and Peter of Savoy, which turned on the Lusignans and their allies, and imposed reform on the king. In that sense the revolution of 1258 was very much a revolution within the court of Henry III".38 Much of the programme of that year was designed to control access to the king and to ensure that the gains to the "reforming" party were not short term. The long arm of the reform programme can be better understood now that we have had a reappraisal of the relationship between the aristocracy and royal power during the period prior to the reforms. It is quite clear that, despite the king's occasional rhetoric, the reign of Henry III was a time when the great men of the realm encroached considerably on royal power. It has been argued persuasively that the years of Henry III's personal rule witnessed considerable laxity in the crown's treatment of the high nobility. Not only did they enjoy the direct benefits of royal patronage, to a greater or lesser degree, but there was also much protection-that is to say, perversion of justice in the law courts. This had vital consequences in the localities, in some areas in particular, as magnates began to create immunities for themselves. Extensions of suit to baronial courts, and withdrawal of suits from shire and hundred, bore down heavily on the populace; they also aggravated further the position of the sheriffs with obvious consequences for those who remained within their jurisdiction. The Lusignans and other curzales appear to have been the most conspicu- ous of offenders, but patently they were by no means alone.39

In all probability, we get closest to the real situation through the arguments put forward by the beleaguered reformers in their

37 D. A. Carpenter, "What Happened in 1258?", in Gillingham and Holt (eds.), Warand Governmentin theMiddleAges, pp. 106-19; D. A. Carpenter, "King, Magnates and Society: The Personal Rule of King Henry III, 1234-1258", Speculum, lx (1985), pp. 39-70; H. W. Ridgeway, "The Politics of the English Royal Court, 1247-65: With Special Reference to the Role of the Aliens" (Univ. of Oxford D.Phil. thesis, 1983); H. W. Ridgeway, "The Lord Edward and the Provisions of Oxford (1258): A Study in Faction", in P. R. Coss and S. D. Lloyd (eds.), Thirteenth-Centuty England, i (Woodbridge, 1986), pp. 89-99.

38 Carpenter, "King, Magnates and Society", p. 58. 39 Ibid., esp. pp. 62-9.


submission to St. Louis in January 1264.4? According to them, the land of England was oppressed and nceded to be reformed. Among the grievances cited were the depredaiions of the sheriffs, depredations that were specifically linked to the shrieval increments, the monopolizing of patronage by certain courtiers, aliens and their confederates, and various abuses against Magna Carta. Among these was the contravention of clause 40, that "to no one shall the king sell, deny, or delay right or justice". In practice, since the arrival of certain aliens, "no justice could be obtained in the lord king's courts against these men or against certain courtiers, some of them native, no matter how gravely they had offended, nor even could writs of common justice, which by custom of the realm should be granted to every peiitioner, nor any other remedy at law be obtained". Most interest- ingly, it was said to have been difficult to get writs to begin legal processes against these men. Even where cases were brought, the judges would do no justice, either through fear of dismissal or because they were placed and maintained in office by the aliens and curzales and were their tnbutarii. That judges were receiving fees from lay magnates at this date is hard positively to substantiate, but there is some circumstantial evidence of such involvement and of course there is the analogy with the behaviour of the monastic houses. In addition there is certain evidence of royal interference in legal process in favour of magnates.4l In short, the magnates "influenced and corrupted in their favour the whole working of the judicial system".42 With regard to local courts we are told explicitly that "the aliens, curiales and their bailiffs, in instances where their tenants from of old had not been accustomed to do any suit of court, unjustly constrained them to do such suits, unless this was specially excepted in their charters, and forced them to perform other undue and uncustomary services, nor could they obtain against them any remedy on this or other excesses of theirs". According to Carpenter, it was in the localities that the consequences were the most profound;43 the years of Henry III's personal rule saw, in effect, "the emergence of a pattern of magnate rule in the shires similar to that which was to dominate England in the later middle ages".44

40 Documents of the Baronial Movement of Reform and Rebellzon, 1258-1267, ed. R. F. Treharne and I. J. Sanders (Oxford, 1973), no. 37C. See also Carpenter, "King, Magnates and Society", pp. 44-6, 63-5.

41 Carpenter, "King, Magnates and Society", pp. 46-7. 42 Ibid., p. 45. 43 Ibid.,p. 63. 44 Ibid., p. 40.


Certain features of this clearly anticipate the bastard feudalism of the fourteenth and fifteenth centuries. There is the same concern for control over the localities and their courts, the same tendency to recruit and to sway officials, the same interconnection here between power at the centre and power in the provinces, the same resultant rivalry among aristocrats and aristocratic factions. But none of this flows from the contractual indenture, nor from military consideraiions as such, nor even from the requirements (at least as understood in a narrow sense) of the magnate household. Frankly, it seems to me that it has become extremely difficult to sustain the view that the. appearance of the documented indentured retinue inaugurates a new era. The antecedents of the indenture and of the indentured retinue are just that; they are not the antecedents of bastard feudalism. We would seem to have two choices: either we abandon bastard feudalism altogether or, if we are to retain it as a meaningful concept, then both its constitution and its inception have to be understood differently.

II The first of these alternatives has good historiographical logic behind it. McFarlane's bastard feudalism, as we have seen, was predicated upon feudalism "of the narrower kind". The foundations upon which feudalism in this sense had been built have been rocked in recent years by the realization that the fief played a lesser role in Continental society prior to the twelfth century than had hitherto been supposed, a realization that has led, predictably perhaps, to a renewed call for abandoning the idea of feudalism tout court.45 Demands for the deposition of the "tyrant feudalism", however, have been around for some time.46 So far at least they have been resisted, for although considerable differences of emphasis persist, feudalism remains a useful tool both to signify a particular type of social formation axld as a vehicle for comparative history.47 Moreover, even if one were to

45 See, in particular, T. Evergates, Feudul Society in the Baillze of Troyes undo the Counts of Champagne, llS2-1284 (Baltimore and London, 1975), pp. 144-53.

46 E. A. R. Brown, "The Tyranny of a Construct: Feudalism and Historians of Medieval Europe", American Hist. Rev., Ixxix (1974), pp. 1063-88.

47 Marc Bloch, of course, was much exercised with the possibilities of comparison between Japan and the west: M. Bloch, Feudal Society, trans. L. Manyon (London, 1961), pp. 441-52. More attention to the comparative role of the fief would be useful in the present context, given that the chigyo seems to have played a relatively minor part in much of Japanese feudal history, at least outside the Ashikaga shogunate. For an influential discussion of the methodological problems to be encountered in undertaking such a comparison, see J. W. Hall, aFeudalism in Japan: A Reassess- ment", Comp. Studzes in Soc. and Htst., v (1962). Hall, however, responds in the

(cont. on p. 40)


accept the narrow (in my opinion unacceptably narrow) view of feudalism to which McFarlane subscribed, this would merely have the effect of limiting its range of application. Twelfth-century England was a highly feudalized society under almost any definition. The abandonment of bastard feudalism would equally be a mistake, given that there clearly are features of social organizaiion and social behaviour which have been recognized as peculiar (at the very least in their intensity) to this formation, features which have their real origins in the thirteenth century and which are extensions or continu- ations of pre-existent feudal norms.48 I wish to argue, therefore, that the concept should be retained but reformulated, perhaps towards a model of more general application and utilization.

In order to do this we must return to the question of the origin of those features which have been designated bastard feudal. The most obvious starting-point is with the notion of magnate reaction. Despite the scenario which Carpenter paints of the mid-thirteenth-century political scene, one ought not to think too much in terms of magnate strength and the crown's weakness. Both Maddicott and Waugh have shown how aspects of the behaviour of the magnates in these years was reactive. The retaining of judges and the like was a reaction to the growth of litigation and ofthe central law courts; the development of contractual relationships was a reaction to the specific problems associated with the introduction of high farming.49

There is, however, a more profound sense in which they were reacting, reacting to a threat which was much greater than anything (n. 47 cont.) opposite direction, arguing for a more restrictive usage. See also A. Lewis, Knights and Samurai (London, 1974). This is not the place, however, to adjudicate between the varieties of emphasis within the broader approach to feudalism. For a recent recital of these, see Edmund Leach et al. (eds.), Feudulism: Comparative Studtes (Sydney, 1985).

48 It is to be expected that sooner or later there will be a frontal attack upon the whole concept of bastard feudalism along the same lines. Indeed there are signs that this is on the way. For example, a recent work on later medieval society begins: "War and its impact on society have figured prominently in the historiography of later medieval Europe. In England detailed study . . . concentrated initially on the organisation and history of retinues as an aspect of social relationships, conveniently, if rather misleadingly, characterised by the term 'bastard feudalism"': P. Morgan, War anzl Soczety in Medteval Cheshire, 1277-1403 (Manchester, 1987).

49 "What began as a device to solve specific problems associated with the introduction of high-farming had evolved into a versatile tool of social organization which could be used in many different circumstances . . . The development of contractual retaining in the thirteenth century thus ensured the survival of the pattern of lord/client relations that had been worked out over the previous centuries and likewise ensured the continued dominance of the landed elite within those relations and within the social hierarchy and economy as a whole": Waugh, "Tenure to Contract", p. 839.


which can be understood in those terms. If certain latent possibilities had been allowed to develop and crystallize, they would have been faced with nothing less than the prospect of social extinction, at least in the manner in which they had hitherto persisted. It is reaction in this more fundamental sense which takes us to the real heart of bastard feudalism.

To understand this we must look a little more deeply at the changes which were taking place in English society from the late twelfth to the mid-thirteenth century. To argue solely in terms of the growth of central government and the aristocracy's reaction to this would be to see only surface phenomena. It was the potentiality of this growth within a landed society that was itself evolving which was particularly problematic.

The latent threat to magnate power lies primarily within the more direct relationship between free subject and the crown which is generally seen as developing out of the Angevin legal reforms. It is the evolution of this relationship and its implications for baronial power which we need to explore. No one these days needs to emphas- ize the significance of Henry II's possessory assizes, pre-eminently novel disseisin, which offered summary justice, or the significance of the writ of right patent and the "writ of summons" (precipe) which drew litigation into the royal court, or indeed the host of new remedies which subsequently expanded the business of the common-law courts.50 Neither do we need to stress the role of the king's travelling justices in facilitating access to the royal courts, nor the numerous duties which thirteenth-century knights and others were called upon to perform: as coroner, for example, as justice of assize and gaol delivery, and on various commissions, in addition to their partici- pation in juries and recognitions.5l All of this, of course, brought men into direct relationship with the crown.

We do not fully understand the inspiration behind the Angevin reforms, nor the balance of forces which produced them, and perhaps we never will. But two pre-conditions are clear enough. On the one hand, there is the continuance of a degree of public authority within Anglo-Norman kingship and an insistence upon some degree of direct relationship between the subtenantry and the crown. On the other, there is the steady economic growth of the twelfth century. These

50 See, for example, R. C. Van Caenegem, The Birth ?f the English Common Law (Cambridge, 1973), esp. ch. 2.

51 For a recent introduction to these matters, with full citation, see W. L. Warren, The Gave7nante of Nortnan and Angevin England (London, 1987).


together are as much the background to the Angevin reforms as are the peculiar circumstances of the reign of Stephen and the pretensions of the Angevin dynasty. What we can also say with some confidence is that these reforms were immensely popular and soon became an entrenched part of life in England. They reflect, certainly, the growing influence of lesser landowners; equally, they could not have been withstood by the barons, supposing they had wished to do so. The result was to be seen in the support for the possessory assizes, in particular, in Magna Carta. As recent commentators have argued, the importance of Magna Carta for the course of thirteenth-century political history cannot be exaggerated. It entrenched, and its repeated reaffirmation and appeals to it entrenched, the growing tendency for men in the localities to look directly to the crown.

Knights were drawn into direct relationship with the crown in other ways too. From time to time during the reigns of both John and Henry III, as J. C. Holt has recently stressed, assemblies of knights were summoned "for purposes which would now be described as administrative and political". Aside from that of 1254, which was for taxation, "the rest, as far as is known, were concerned with receiving information, or sensing the political condition of the country, or ensuring that the government's intentions were conveyed to the localities, to the centres where government policies were customarily proclaimed, the county courts".52

Governments also came into contact with local communities at the instigation of the latter, acting in acquisition or defence of local privileges or to limit the action of government agents, the methods being those of local proffer and royal grant.53 "Angevin government", it is argued, had made local communities "politically acquisitive and precociously self-conscious". "These grievances . . . generated a widely shared sense of common interest and brought together barons, knights, freeholders and often churchmen in appeals to the Charters and in fresh attempts to purchase privileges". The result was "the growth of political society in the shires".54

It is important to stress, however, that the relationship between this landed society and the central government was an evolving one; it was not something which arose immediately or automatically out

52 J. C. Holt, "The Prehistory of Parliament", in R. G. Davies and J. H. Denton (eds.), The English Parl7izment in the Middle Ages (Manchester, 1981), p. 19.

53 J. R. Maddicott, "Magna Carta and the Local Community", Past and Present, no. 102 (Feb. 1984), p. 37; J. C. Holt, Magna Carta (Cambridge, 1965), pp. 52-4.

54 Maddicott, "Magna Carta and the Local Community", pp. 28, 48, 65.


of the Angevin legal reforms. I argue elsewhere that the degree to which effective county communities operated during the early thirteenth century has been exaggerated, and that an articulated county voice was finally called into being by the baronial reform movement of 1258/9 in its quest to legitimize its factional struggles with the group that was closest to the crown.55 One cannot help feeling that the talk of local political communities has been overstated. Occasional defence of shared liberties or expression of general interest, in matters such as disafforestation or the depredations of royal officials, does not necessarily indicate a high or constant level of consciousness of community, much less of actual solidarity.56 What- ever the future may have held in these directions, it is important to remain within the context of the age.

The danger is twofold: the tendency to elevate the county as the principle of cohesion in the early thirteenth century has also led to an underestimation of alternative loci of social power. The implications of this for assessing the actuality of magnate authority are serious. Hence the honour requires our attention.

Whatever the intentions ofthe framers ofthe Angevin legal reforms, and whatever their ultimate consequences, it is clear that they cannot have eroded seigneurial jurisdiction overnight. Milsom has argued cogently and persuasively for the continuation of disciplinary jurisdiction for a time and for the slow development of abstract property rights: "the reality of that [seigneurial] control must have vanished slowly like the Cheshire cat".57 One thinks, too, of the rearguard action which the lords waged over the writ precipe which resulted in clause 34 of Magna Carta, itself sufficient witness to the persistent strength of baronial jurisdiction.58 As Sir Frank Stenton wrote: "The barons who demanded in 1215 that the writ Precipe should not be issued in a manner through which any free man should lose his court

55 Coss, Lordship, K:nighthood and Locali@. 56 See my arguments in "Knighthood and the Early Thirteenth-Century County

Court", esp. pp. 45, 49, 54-7. 57 S. F. C. Milsom, The Legal Framework of English Feudulivn (Cambridge, 1976),

p. 56 and passim. 58 Milsom writes: "What mattered to a lord was that a claim to be his tenant should

at least be put to him. If it was so put, whether by writ or otherwise, and if for any reason he was not going to deal with it, there could be no objection to a demandant compelled anyway to go to the king's court going straight there with a precipe instead of by way of the county and a pone. The mischief is that demandants choose to go directly tO the king's court. That this had become thinkable shows how lords were losing control. Their protest was surely a refusal to concede that, not just an attempt to hold on to the profits of administering a universal justice" (ibid., p. 71).


were maintaining what had been a fundamental principle of feudal society. The organization which knit this society together must have been in great part the work of feudal courts''.S9 If the honour had ever been the vibrant and efficient social force that modern studies have argued it to be, then common sense tells us that neither its power nor its cohesion can have yielded so quickly.60

Undoubtedly, we should envisage honorial jurisdiction waning slowly and unevenly during the late twelfth and early thirteenth centuries. The generations from circa 1180 to circa 1230 were thus transitional.6l When attempting to assess the social role ofthe honour court in the later twelfth and thirteenth centuries, however, several of its well-researched features should be borne in mind. The central court of an honour exercising baronial jurisdiction only the curia militum seems in practice to have been a comparaiive rarity. Most lords simply required their barons to attend whichever court was most convenient.62 Moreover, notwithstanding the continued integrity of notable honours, like Wallingford, the suitors were often subject to regrouping for administrative convenience as baronial fiefs were accumulated.63 The term "honour" was itself used in more than one sense. Although it came to be used in preference to denote the entire fief of a great lord, there were other meanings.64 In some cases it was

59 F. M. Stenton, The First Century of English Feudalism, 1066-1166, 2nd edn. (Oxford, 1961), p. 45.

60 For recent studies of twelfth- and early thirteenth-century honours, see D. Crouch, The Beaumont Twins: The Roots and Branches of Power in the Twelfth Century (Cambridge, 1986); B. English, The Lords of Holderness, 1086-1260: A Study in Feudal Society (Oxford, 1979); K. J . Stringer, Earl David of Huntingdon: A Study in Anglo- Scottish History (Edinburgh, 1985). Two important earlier works are: M. Altschul, A Baronial Family in Medieval England: The Clares, 1217-1314 (Baltimore, 1965); W. E. Wightman, The Lacy Family in England and Normandy, 1066-1194 (Oxford, 1966).

61 The honour court, moreover, persisted; indeed it could remain lucrative well into the thirteenth century and even beyond, although admittedly much of the income seems to have come increasingly from defaults andX avoidance of suit. (For the profitability of some thirteenth-century honour courts, see N. Denholm-Young, Sei- gnorial Administration in England (London, 1937), p. 97; and for the Clare courts at the beginning of the fourteenth century, see Altschul, Baronial Family in Medieval England, pp. 219-22.) Certainly, as we move into the thirteenth century, the volume of business relating to tenure and title must have rapidly declined. But there were other mattersJ principally military service, scutage and the incidents of feudal tenure. Indeed it has been urged that "the failure to enforce personal [military] service is without doubt the beginning of the decline of the honour court": W. O. Ault, Private ffunsdiction in England (New Haven, 1923), p. 333.

62 Ault, Private 3'urisdiction in England, p. 323. 63 Denholm-Young, Seignorial Administration in England, p. 93; Altschul, Baronial

Family in Medieval England, pp. 222-4. 64 See, for example, Stenton, English Feudalism, pp. 57-9.


employed to describe local components of a great fief, rather than the fief itself. It is perhaps when it is used in this sense that the military tenants and freeholders who constitute the suitors to the court might with most justice be considered a community, and it would seem highly likely that such courts continued to provide one focus of solidarity in local society even when they were in decline during the first half of the thirteenth century.

At the same time, too much stress should not be laid on the honorial court, and not just because of the phenomenon of regrouping or even because of the inroads of royal justice. Even in the heyday of baronial justice in the true sense, it is doubtful whether many feudal communities can have been entirely self-contained.65 Notions of neighbourhood and district must have coexisted with the feudal, and it is here if anywhere that we should seek the primeval principle of social organization. It comes as no surprise, therefore, to find that the neighbourhood or locality as the visnetum should figure prominently in the Angevin writs and in common-law procedure.66 It seems probable that an honour, or any other territorial lordship, may have functioned, for a time at least, as the core of a community in this sense without being coterminous with it, without actually defining it.

None the less, when all the necessary caveats have been made, the generations between the inauguration of the Angevin legal reforms and the legislation of 1258/9 witnessed considerable development in the growth of direct relationship between the central government and the society of the localities, while at the same time some of the traditional means of magnate control in the localities had become insecure. Moreover the potential consequences of this direct relationship begin to be seen clearly during the per-iod of baronial reform itself, as the reformers sought to tap the discontent in the counties. It is worth recalling some of the details here. Clause 1 of the Provisions of Oxford, the central reform programme of 1258, arranged that four

65 In the Leges Henrici Primi a man intending to hold a court is advised to summon his peers and neighbours (pares et vicinos suos) to afforce the court so that judgement may not be subsequently challenged: Leges Henrici Primi, ed. L. J. Downer (Oxford, 1972), c. 33, 1. Even Stenton, with his enthusiasm for the idea that the military tenants of an honour constituted a distinct community, had to concede that when the Leges tells us that each man should be judged (in the county court) by his peers of the same district (provincia) this "certainly does not mean that he should only be judged by fellow tenants upon the same honour": Stenton,EnglishFeudalism, p. 61.

66 See, for example, The Treatise on the Laws and Customs of the Realm of England Commonly Called Glanvill, ed. G. D. H. Hall (Oxford, 1965), pp. 24, 27, 30, 37, 110, 150, 161, 167.


knights be chosen from each county who would attend on each day that the county court met to hear complaints of trespasses and injuries done by sheriffs, bailiffs and others. They would then attach the accused and produce the complaints and attachments before the justice when he appears locally to try the complaints.67 There followed a letter from the king to the chosen knights rehearsing the situation and giving further instruction. They were to make inquiry throughout their county into all excesses, trespasses and acts of injustice commit- ted by no matter what persons and bring the record to Westminster on 6 October (1258) to be delivered to the council. The sheriff was to summon as many knights and others of the county as would enable the inquiry to be carried out. The appearance of the results of these inquiries at Westminster was intended, no doubt, to coincide with the meeting of parliament, and the king informed his subjects via letters to the counties that they should observe the statutes which have been made or would be made by the council in the future.68 Hugh Bigod, the newly appointed justiciar, duly went on circuit early in 1259 and a special eyre for the general redress of grievances was arranged at the end of the year.69 The deliberations of the council finally bore fruit in the Provisions of Westminster in October 1259.

In search of support, the more steadfast baronial opponents of the crown were eventually, of course, to go further than they had in 1258/9 and to draw local representatives into the deliberations of parliament. The lessons were not lost on the appallingly acute Edward I, as a fine recent study by J. R. Maddicott has clearly shown.70 The new king was to follow the same sequence of"enquiry, legislation and law enforcement" as the reformers had done in 1258/9. The Hundred Rolls of 1274/5 were the result of commissioners travelling through the counties investigating royal rights and the misdeeds of officials. The abuses revealed led to the Statute of Westminster I, published in the parliament of 1275 . This was followed by a general eyre initiated in 1278. Edward, like the reformers, traded on the identification and redress of abuse. He managed, moreover, to place the maintenance of royal rights high on the agenda within this overall context.

67 Doauments of the Baronial Mavement, ed. Treharne and Sanders, pp. 98-9. 68 Ibid, pp. 1 13-19 69 For these judicial eyres, see D. Crook, Records of the General Eyre (London,

1982), p. 189 and references given there. 70 J. R. Maddicott, "Edward I and the Lessons of Baronial Reform: Local Govern-

ment, 1258-80", in Coss and Lloyd (eds.), Thirteenth-Century England, i, pp. 1-30. See also the same author's "The Crusade Taxation of 1268-70 and the Development of Parliament", ibid., ii, pp. 93-117.


Parliament was central to the king's thinking. "The Statute of Westminster, promulgated in a crowded parliament, marked the growing importance of that assembly as a focal point for reform and for contact between king and subjects''.7l The link between taxation and royal concession became strong at this point too. At the parliament of Michaelmas 1275, to which knights were summoned, the king was granted a fifteenth on moveables to pay his debts. One further development is of very great importance. The reformers of 1258/9 had encouraged the use of the informal plaint (querela) by aggrieved persons before the justiciar on circuit. This was much extended during the 1270s, and from 1275 parliament provided a regular occasion for the delivery of petitions to the king. From 1275 onwards there was a growing convergence between the sessions of parliament, the delivery of plaints and the issuing of commissions of oyer and terminer, in many cases to hear and determine the very grievances named in those plaints.72 It is probable that from as early as this the representatives from the localities began to bring with them petitions from their constituents, a feature which had much expanded by the early fourteenth century.73 Maddicott is surely right to see petitioning as beginning "to create a wider public awareness of national politics and of the political remedies for complaint".74

We must be careful not to exaggerate the speed of developments, but it is clear that a new polity was tending to emerge, one feature of which was a growing partnership, however tenuous, between the crown and local society. In the mean time, moreover, local society itself had been passing through a period of considerable change. This, too, requires our attention.

In many ways it is the changing meaning of knighthood in English society which provides the key to understanding what happened in the localities during these years. This is a large and complex subject which I address in a specific local context elsewhere.75 Only the broad conclusions can be reproduced here: first, the status of the twelfth- and early thirteenth-century knight was a complex and multifaceted one, comprising life-style, service to and association with the great lords, standing in the community with further service connotations, as well as military calling (knighthood as metier). Secondly, of diverse

71 Maddicott, "Edward I and the Lessons of Baronial Reform", p. 16. 72 Ibid., p. 24. 73 J. R. Maddicott, "Parliament and the Constituencies, 1272-1377", in Davies and

Denton (eds.), English Parliament in the Middle Ages, p. 62. 74 Ibd. 75 What follows is a precis of my study in Lordship, Knighthood and Locality.

48 NUMBER 1 25 PAST AND PRESENT

origins, milituli remained an important feature of English society into the thirteenth century. Nevertheless it does look as though we should be thinking in terms of a progressive thinning of numbers beginning, very probably, during the last decades of the twelfth century and extending into the second quarter of the thirteenth.

In the end knighthood changed in status and meaning. One ought to be rather wary, however, of seeing the crown as the promoter of social changes. That the king sought to encourage knighthood, out of concern for his military resources, is beyond doubt. It seems to be the case, however, that the crown was, initially at least, reacting to changes in society rather than promoting them. Although it is clear that royal influence and involvement was strong from the late 1240s, it is equally clear that the ceremony of knighthood was becoming elaborate and the whole business fairly costly, at least in some circles, well before this. It suggests, then, that knighthood had already begun to take on a more exclusive character.

Of the reasons which have been adduced for the decline in the number of knights, cost is clearly the most significant. Quite aside from any specific factors affecting the expense of knighthood, the general price rise must have played an important part. We must be careful, however, not to see cost too much as an external factor acting upon knighthood. The causes of the price rise itself were partly, at least, on the demand side. The economic growth of the twelfth century no doubt helped to sustain more knights; it also led to increased standards of consumption which had the effect of pushing up prices. Beyond doubt, aristocratic and, by emulation, knightly life-styles led the way. But it caused difficulties for those less able to pay. That in itself made a drive towards exclusivity more of a serious proposition. The insistence on, and elaboration of, knighting ceremonies was undoubtedly an important manifestation of this growing tendency towards social exclusion. Another was the development of more self-consciously elitist witness lists to charters, where knighthood is stressed. As a result of these developments, local knights were gradually falling by the wayside. There reached a point where it became noticeable. An effect rather than a cause of the decline was that those activities such as the grand assize which traditionally relied exclusively on knights devolved now upon the few, some of whom had no particular interest therein. As a result this now became something of a burden, and may at a critical point have become a further factor reducing the numbers. The underlying problem was where the tendency towards social exclusion should stop. There was


a real danger that the middling county knight would be so threatened that he too would be taken out altogether. That this did not happen, at least not until much later, was most probably in part due to the crown's distraint of knighthood. In other words, at a critical point the crown helped to arrest the decline and to allow the fusion of knighthood to rest at a point lower down the social scale than it might otherwise have done.76

Out of the social and economic changes of the thirteenth century there thus emerged a new knightly class, a class which was ultimately to constitute the first gradation of the English gentry. It was in this context that the ethos which we may broadly term chivalric came to predominate. Its emergence was symptomatic of a growing differen- tiation among lesser landowners in the localities. It would seem highly likely that this produced a stronger sense of their territoriality. The mid-thirteenth-century meaning attached to the term vavasour, connoting the more substantial of the county landowners, is perhaps an expression of this.77 The knights were becoming a territorial elite with a degree of caste solidarity. Moreover the fact that they never entirely lost their ties with the neighbourhood and with those groups that were immediately socially inferior to them meant that their role as transmitters of cultural values was correspondingly all important.78 All of this was bound to transform their sense of their relationship to the central government.

These developments took place in a society that was characterized by a good deal oftension, a society that was considerably less cohesive by the second quarter of the thirteenth century than it had been before. Some, at least, of the reasons for this are clear: the progressive

76 For studies of the distraints of knighthood, see in particular: M. R. Powicke, "Distraint of Knighthood and Military Obligation under Henry III", Speculum, xxv (1950)) pp. 457-70; the same author's Military Obligation in Medieval England (Oxford, 1962), ch. 4; and more recently, S. L. Waugh, "Reluctant Knights and Jurors: Respites, Exemptions and Public Obligations in the Reign of Henry III", Speculum, lviii (1983), pp. 937-86. The process of change has tended to be obscured, however, by concentration on developments of the 1240s rather than taking a Bider perspective. The extension of distraint to holders of ?20 land has been seen, rightly enough, as a major development, only possible once distraint as a procedure was well under way. This has led, however, to those holding one or more knights' fees or ?20 being regarded as constituting the essential pool from which knights could be drawn. The pool of knights, in fact, was once much wider than this.

77 P. R. Coss, "Literature and Social Terminology: The Vavasour in England", in T. H. Aston et al. (eds.), Social Relations and Ideas: Essays in Honour of R. H. Hilton (Cambridge, 1983), pp. 134-5.

78 p. R. Coss, "Aspects of Cultural Diffusion in Medieval England: The Romances, Local Society and Robin Hood", Past and Present, no. 108 (Aug. 1985), pp. 44-54.


decline of the honour, pressure on resources, an emphasis upon display, and a liiigious and individualistic spirit unleashed by the ready access to the central courts. This, then, was the world in which a closer relaiionship between the central government and the leading figures in local society (below the baronage) was gradually being forged.

Why, precisely, were these developments potentially injurious to the great lords? The basis upon which feudal power rested is well hlown and hardly requires an extensive treatment here. Seigneurial wealth depended, of course, on surplus extraciion, which could be garnered in a variety of ways. As far as thirteenth-century England is concerned, this commonly involved demesne cultivation as well as a whole host of rents, taxes and dues. The conditions necessary for effeciive surplus extraction involved the use of agents and institutional forms. Power, however, was in the last analysis physical power. Hence the interpenetration of the material condiiions of production and consumption on the one hand and the organization of seigneurial life the household, retinue, and so on-on the other. But these provided only the basic conditions under which social power could be exercised. The great feudatory who enjoyed power on a wider scale needed to dominate lesser seigneurs. His lordship, to put the matter crudely, was also lordship over those who exercised lordship; it was lordship squared. However institutionalized in the form of direct relationship between man and man, this lordship had a territorial dimension even if it did not necessarily require the domination of a compact area. The tendency for privately exercised power to involve patronage and support worked in the same direction, in that it had traditionally turned servants into tenants. It was power in this sense which would be threatened if lesser landowners, loosely associated territorially, were to look solely to the crown to maintain, in alliance with them, a system of order which would give security to their estates and which would guarantee landed society.79

The great lords reacted against these tendencies in a variety of ways, but increasingly by penetrating this new type of public authority and by binding to them the lesser landowners, and indeed all those who were likely to benefit from the development of this direct, public

79 The dangers for great landowners are already to be seen in the matter of how far the legal remedies set in motion during the reform period of 1258/9 should move beyond the sphere of royal officials to include seigneurial ones: see the introduction by I. J. Sanders to Documents of Baronial Reform and Rebellton, ed. Treharne and Sanders, pp. 15-20.


relationship to the crown. The barons of the time of Henry III were in this sense forward-looking; but they were also, as yet, backward- looking. Much of their activity was still concerned with the development of local franchises, with the exercise, that is, of privatized public authority in the old sense, and the exclusion of royal officials. Hence the great importance of suit of court as a social and political issue in the mid-thirteenth century. In this sphere, the royalist reaction following the civil war did prove something of a stabilizing factor. Edward I's quo warranto proceedings halted the spread of the private franchise, bringing some fixity to the pattern of local courts and hence some order into the localities. Of course franchises were to retain a significance for some time to come, and a few of the great franchises were veritable bastions of power. In general, however, the future for aristocratic power lay much more in terms of the subversion of the public courts.

The retaining of judges and of other officers and officials was already a feature by the mid-thirteenth century. So, too, was maintenance in the courts, figuring in 1259 and again in the Statute of Westminster of 1275.8? The use of power at the centre to help guarantee and extend power locally was already apparent. On the other side, means other than tenure and service were being developed to bind men to the lords. The fear of loss of control may help to explain some further aspects of magnate behaviour during the thirteenth century. Some of their interventions in the land market can be seen in this light, rather than as economic aggrandizement; as a stepping-in to assert primacy locally, and even on occasions to offer succour to lesser brethren in difficulties.8l It may well be, in fact, that the rise of chivalric knighthood itself betokens in part a drawing- together of the great lords and the higher reaches of their feudal dependants, a drawing-together resulting from a threat to aristocratic position on the one hand, and from knightly social ambition on the other.

This is not to say that in reality bastard feudalism occurred as a series of separate steps-growth in royal government, potential

80 Ibid., p. 135; English Historical Documents, iii, ed. H Rothwell (London, 1975), pp. 404-6. See also M. R. Powicke, The Thirteenth Centuty (Oxford, 1962), p. 151; A. Harding, "The Origins of the Crime of Conspiracy", Trans. Roy. Hist. Soc., xiii (1983), pp. 89-108.

81 S. D. Lloyd, "Crusader Knights and the Land Market in the Thirteenth Century", in Coss and Lloyd (eds.), Thirteenth-Century England, ii, pp. 119-36; S. Raban, "The Land Market and the Aristocracy in the Thirteenth Century", in D. Greenaway et al. (eds.), Tradition and Change: Essays in IIonourofMariorie Chibnall (Cambridge, 1985).


partnership with the gentry, aristocratic reaction. It was not as mechanistic as this, and hence political divisions were never really likely to form along these lines. It has to be emphasized that the threat to the great lord's social power was essentially latent within the developments I have outlined. It was not in practice realized, precisely because of the inherent power of the lords. The elements of this alternative, public and landed polity and the institutions of bastard feudalism developed gradually across time. They grew, in fact, together; they were symbiotic. As there were tendencies which threatened the traditional social structure, so too there were other, as yet stronger, tendencies in society which acted to bolster this aristocratic reaction. The greater and lesser landowners were not in reality two entirely separate classes, with different interests. Their most basic sources of wealth and social power were the same; lesser men had their own agents, servants and dependants. All were therefore dependent to some degree upon the old feudal mores. Moreover the old knighthood was itself permeated by service to the great. Just as they looked to the crown for support in some respects, so they also looked to the aristocracy. Succour and patronage were there to be had. Therefore, it is not so much that there was a consciously directed policy by the baronage to control lesser fry or a conscious policy directed against the public authority of the crown, but rather that there was a series of social reflexes which operated to ensure their survival and continued pre-eminence and to reaffirm their social leadership.

The role of the crown is more complex. One might argue that in allowing its public authority to be subverted the monarchs, Edward I in particular, sold the pass. But this would be to interpret the past too much in terms of personality, in the way that McFarlane himself tended to do. The reality is much more difficult to grasp, and much more interesting.82 The medieval notion of the king's two bodies takes us some way towards understanding the situation.83 However,

82 Few would want to deny today that in general the state has a considerable degree of autonomy. It is no simple expression of the interests of the predominant class, or classes, notwithstanding their wish to bend it to their will; nor is it the mere reflection of the economic base. Many, however, would still want to think in terms of a relative, not an absolute autonomy. For a recent discussion of the spectrum of views on this, see S. H. Rigby, Marxism and History: A Critical Introduction (Manchester, 1987), ch. 11.

83 The idea of the king's two bodies was certainly known and understood in thirteenth-century England. See, for example, clause 5 of the Dictum of Kenilworth, 1266: Documents of the Baronial Reform and Rebellion, ed. Treharne and Sanders, pp. 320-3. During the quo warranto proceedings one of the royal attornies discounted a

(cont. on p. 53)


it is not jUst that the person of the individual monarch (and his policy) is separable from the idea of the crown (and its interests), but that the interests of the crown are themselves manifold. The crown, in the final analysis, is a peculiar form of feudal magnate. Thus one can separate out the latent authority of the state from the narrower interests of the crown. In the same way, contemporaries could look to the central government for redress (as many of the lesser landowners must have done in 1258/9) while actually being opposed to the policies pursued by the crown. Hence the complexity of any specific political moment and situation.

The English monarchy as it was evolving during the thirteenth century and after lived in accommodation, and in some respects in alliance, with aristocratic power, while at the same time it remained both the upholder of public authority and continued to develop its partnership with local society.84 As a result of the latter we witness a series of important developments during the late thirteenth and early fourteenth centuries, including the ending of the judicial eyres and the substitution of the more locally influenced commissions of oyer and terminer, the appointment of sheriffs drawn from and hence in some senses answerable to the local community, and the rise of keepers and ultimately justices of the peace.85 As they grow, baronial authority permeates all of these. Meanwhile the more direct binding of the lesser to the greater begins to find its fullest expression in the highly developed indentured retinue. The extravagantly expressed military ethos of the later middle ages, its heraldry, its sense of honour, its chivalric display, all contributed to this process of binding. It is very probable that the military needs of the crown played a major part in determining the form which these developments took, especially in the matter of indentures. Whatwe must not do, however, is to invert reality by mistaking the form for the content, by concen- (n. 83 cont.) charter issued by Edward I before he became king on the grounds that the king was "as if another person" from the Edward who made the royal grant: M. Prestwich, Edward I (London, 1988), p. 261. The distinction was to be given a coercive application during the time of Edward II: English Histoncal Documents, iii, ed. Rothwell, pp. 525-6.

84 As far as the king's relations with the magnates are concerned, the situation is revealed in all its complexity during the reign of Edward I. See, for example, the differential treatment accorded to individual magnates during the quo watranto proceedings: Prestwich, Edward I, pp. 258-64, 346-7.

85 A general discussion of these matters, with full references, is given in A. Harding, The Law Courts of Medieval England (London, 1973), pp. 86-98. See also R. W. Kaeuper, "Law and Order in Fourteenth-Century England: The Evidence of the Special Commissions of Oyer and Terminer", Speculum, liv (1979), pp. 734-84.

54 NUMBER 125 PAST AND PRESENT trating on the expression and not the essence. Bastard feudalism was a response to the resurrection of public authority within feudal society and within the feudal state.86

There has been some tendency to see the advent of bastard feudal relaiionships in functionalist terms; contemporary society required them in order to preserve the ideals of loyalty and responsibility which are supposed to have characterized feudalism proper. In McFarlane's words, "it was precisely because the tenurial bond had become weak that a contractual one was needed".87 On one plane, this is fair enough. However, one has to consider the role of human agency. Bastard feudalism as such was not consciously willed; but neither did it come into being to satisfy the needs of all to an equal degree. From the vantage-point of the later fourteenth and fifteenth centuries, it has been seen most commonly as a bond in which magnates and gentry freely participated for mutual benefit, and hence as a force for cohesion.88 But this in reality explains very little. One cannot understand the origins of a social system by examining the motives of those who have no choice but to operate within it once it is in full existence. It has to be understood rather in terms of the power structure that was operative during the period of its genesis. Personal control over local officials and law officers, the quest for royal patronage to secure that control, retaining and maintenance, private arbitration and the affinity, all stemmed from a single impulse that which sought the survival of magnate power.

III What manner of society was created out of all this? The first point to be addressed is the question of its stability. McFarlane did a great service in taking the moral opprobrium out of the concept "bastard feudalism". However, he and his followers have come very close to substituting a moral approbation. The historian's primary function 86 One ought not to make the mistake of supposing that public authority was in any way socially neutral. One only has to think of the social limitations on the Angevin reforms to be reminded that it was not so. In the context of the later middle ages I take public authority to refer essentially to authority publicly rather than privately administered. Except in the sense that I have been discussing, it essentially supported and reflected the social order. Of course it would be possible to conceive of public authority acting entirely differently, as the peasants clearly did in 1381. An echo of this, I have argued, is present in the Gest of Rodn Hode: Coss, "Aspects of Cultural Diffusion", pp. 75-6. 87 Quoted by Harriss in England in the Fifteenth Centuty, p. ix. 88 See, for example, Carpenter, "Beauchamp Affinity", pp. 131-2.

ss BASTARD FEUDALISM REVISED

is to understand the evolution of past society; it is neither to praise

nor condemn. The question posed by McFarlane of the comparative

stability of fourteenth- and fifteenth-century society as against pre-

vious eras is really something of a non-question. Certainly twelfth-

century society was violent and potentially unstable, much of ffie

violence arising out of conflicting territorial ambitions and from the

exercise of feudal power. Equally, bastard feudalism had its own

elements of instability; these related directly to the way in which the

society had evolved and to the balance of forces within it.

First, the territorial dimensions of the affinity sometimes gave

rise to conflicts between competing magnates and their dependants.

Secondly, as all students of this society are to some degree forced to

recognize, the intrusion of private power into the system of public

courts, whether manifested as maintenance or in a variety of other

ways, was extremely unsettling. Despite the recent work on the

subject, it is hard to see how the arbitration of great lords could have

been any substitute for the efficient and relaiively impartial rule of

law.89 Of course arbitration could contain elements of altruism, even

of public spirit. Moreover it is beyond doubt that considerable

difficulty was caused by an increasingly complex land law. Certainly,

many men strove to make their system work, just as others strove to

make it work for them, and some indeed did both. We imust be

careful, however, that we do not erect out of this a sort of legal

determinism.90 Law is created by human agency, though not always

89 The study of arbitration from this angle goes back to an essay by Joel Rosenthal

in 1970: J. T. Rosenthal, "Feuds and Private Peace-Making: A Fifteenth Century

Example", Nottingham Medieval Studies, ix (1970), pp. 84-90, in which he pointed to

a fifteenth-century example of arbitration on the part of Richard duke of York which,

so far from pushing the interests of one of his retainers, effected a peace between

two

potentially warring families: "Private justice appears to have been just, wise, and

useful. It is hard to ask for much more" (pp. 87-8). Subsequent work on affinities has

tended to support this view; see also C. Rawcliffe, "Baronial Councils in the

Later

Middle Ages", in C. D. Ross (ed.), Patronage, Pedigree and Power in Later Medieval

England (Gloucester, 1979). The most uncompromising champion of arbitration as an

effective alternative to the slowness and inefficiency of the law in recent years,

however,

has been I. Rowney, "Arbitration in Gentry Disputes of the Later Middle

Ages",

Histoty, xxvi (1982), pp. 367-76: "Arbitration's real value lay in settling problems

uncatered for by existing legislation and in defusing potential sources of

serious

disturbance by offering an honourable and cheap compromise, substituting satisfaction

for victory and bypassing the rancour and humiliation of legal defeat" (p. 376). See

also n. 93 below. I do not wish to denigrate the valuable work which has been done

in this area, but rather to suggest that arbitration must be seen in a wider historical

setting and not used to paint a roseate picture of the later medieval world.

90 The same tendency to legal determinism can be seen in some treatments of the

"Angevin leap forward". One expression of this was gently satirized by R. H.

Hilton

in The Decline of Seffdom in Medieval England, 2nd edn. (London, 1983), p. 9.


of course by legislation. Fourteenth- and fifteenth-century men had wit enough to reform their system of law, as surviving legislation surely indicates;91 even the land law was capable of being reformed. After all, the government of Henry VIII was to reform it. The question is whether there was sufficient power at the centre to effect any real change; whether extant social forces would allow it. As the history of legislation against maintenance and livery makes perfectly clear (the usual reversal of the order here tends to take the emphasis away from the real problem), the affinity was one of the chief causes standing in the way of reform.92 Arbitration by the great lords clearly functioned both as an alternative and as a supplement to litigation.93 There were many factors at work, but it is hard to deny that the social power of the aristocracy helped to create the very conditions which necessitated their arbitration. In these circumstances, how could their arbitration be anything but a poor second?

A third area of instability similarly arises from the magnates' quest to be allowed to maintain their traditional role as dispensers of patronage. Notwithstanding the tendency, seemingly, for more and more to be sucked into retinues and affinities as the bastard feudal system deepened,94 and notwithstanding too the impressive appearance of aristocratic might, the real suitors were the patrons not the clients; it was they whose survival depended upon the continuance of the system.95 Hence there may have been some tendency (as McFarlane, among others, has observed) for wealth to drain from the aristocracy to the gentry, although clearly this phenomenon

9 Bellamy, Bastard Feudalism and the Law, passim. 92 Ibid., ch. 4, esp. pp. 82-3. 93 Edward Powell has convincingly demonstrated the complementarity in practice

of arbitration and the law: E. Powell, "Arbitration and the Law in England in the Late Middle Ages", Trans. Roy. Hist. Soc., xxxiii (1983), pp. 49-67. From this he is inclined to argue that "the methods of arbitration characteristic of late-medieval England, far from reflecting the failure of the legal system, as some have claimed, represent rather a measure of its success" (p. 62). Certainly one can agree that the background against which arbitration operated and against which it should be seen is the crown's lack of resources to maintain "a primarily punitive system of justice" and its necessary reliance upon the "cooperation of society at all levels" (p. 50). It is what this co-operation entails, however, which provides the key to understanding the situation.

94 C. Given-Wilson, The English Nobility in the Late Middle Ages (London, 1987), p. 79; Bellamy, Bastard Feudalism and the Law, p. 92.

95 Several historians, including McFarlane, have observed that the sanc