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The Past and Present Society
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
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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vassal had been superseded as the primary social tie by the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).
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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 particu- larly 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.
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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 inad- equacy, 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 mainten- ance
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, some-
times 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.
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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 under- standing 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.
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31 BASTARD FEUDALISM REVISED
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 gener- ally 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 sup- posed. Michael Prestwich has shown that despite this
king's consider- able 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.
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32 PAST AND PRESENT NUMBER 125
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 them- selves, 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 ex-
panded 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).
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33 BASTARD FEUDALISM REVISED
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 "remark- ably 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 house- hold 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 associ- ated, 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 .
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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 sus- tained.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.
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35 BASTARD FEUDALISM REVISED
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 con-
clusions 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.
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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-cen-
tury 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.
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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.
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38 NUMBER 125 PAST AND PRESENT
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, dep-
redations 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.
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39 BASTARD FEUDALISM REVISED
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)
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40 PAST AND PRESENT NUMBER 125
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 organisa- tion 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.
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41 BASTARD FEUDALISM REVISED
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).
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42 NUMBER 125 PAST AND PRESENT
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
coun- try, 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.
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43 BASTARD FEUDALISM REVISED
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 inter- est, 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 jurisdic- tion 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).
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44 NUMBER 125 PAST AND PRESENT
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.
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BASTARD FEUDALISM REVISED 45
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 communi- ties 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 relation- ship 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.
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46 NUMBER 125 PAST AND PRESENT
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.
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BASTARD FEUDALISM REVISED 47
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 parlia- ment 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.
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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 grow- ing tendency
towards social exclusion. Another was the development of more
self-consciously elitist witness lists to charters, where knight-
hood 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
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49 BASTARD FEUDALISM REVISED
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.
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50 NUMBER 125 PAST AND PRESENT
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 terri- torial 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.
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51 BASTARD FEUDALISM REVISED
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 develop- ment 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
mainten- ance 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).
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52 NUMBER 125 PAST AND PRESENT
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 aristo- cratic 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)
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BASTARD FEUDALISM REVISED 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 land- owners 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.
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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 patron- age to secure that
control, retaining and maintenance, private arbi- tration 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.
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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.
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56 PAST AND PRESENT NUMBER 125
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 appear- ance 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